AANR Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Thursday, May 8, 2003

¿

0900

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

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

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

Mr. Charles Hubbard (Miramichi, Lib.)

The Chair

Mr. Yvan Loubier

¿

0905

¿

0910

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

¿

0915

¿

0920

The Chair

Mr. Charles Hubbard

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Charles Hubbard

¿

0925

The Chair

Mr. Charles Hubbard

The Chair

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

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

Mr. Maurice Vellacott

¿

0930

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

Mr. Maurice Vellacott

Mr. Yvan Loubier

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

The Chair

Mr. Michael Lukyniuk (Legislative Clerk)

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

¿

0935

¿

0940

The Chair

Mr. Yvan Loubier

Ms. Lucie Angers (Senior Counsel, Criminal Law Policy Section, Department of Justice)

Mr. Yvan Loubier

Ms. Lucie Angers

Mr. Yvan Loubier

¿

0945

¿

0950

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

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

Ms. Lucie Angers

¿

0955

Mr. Maurice Vellacott

Ms. Lucie Angers

Mr. Maurice Vellacott

À

1000

Ms. Lucie Angers

Mr. Maurice Vellacott

Ms. Lucie Angers

Mr. Maurice Vellacott

Ms. Lucie Angers

Mr. Maurice Vellacott

Ms. Lucie Angers

Mr. Maurice Vellacott

Ms. Lucie Angers

Mr. Maurice Vellacott

Ms. Lucie Angers

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

À

1005

À

1010

The Chair

Mr. Yvan Loubier

À

1015

À

1020

The Chair

Mr. Pat Martin

À

1025

À

1030

The Chair

Mr. Yvan Loubier

À

1035

À

1040

The Chair

Mr. Yvan Loubier

Mr. Pat Martin

À

1045

À

1050

The Chair

Mr. Pat Martin

À

1055

Á

1100

The Chair

Mr. Charles Hubbard

Á

1105

The Chair

Ms. Anita Neville (Winnipeg South Centre, Lib.)

Mr. Warren Johnson

Á

1110

Ms. Anita Neville

The Chair

Mr. Yvan Loubier

Á

1115

The Chair

Mr. Yvan Loubier

Á

1120

The Chair

Mr. Pat Martin

Á

1125

The Chair

The Chair

Mr. Pat Martin

Á

1130

The Chair

Mr. Charles Hubbard

Á

1135

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Jeffrey LeBlanc (Legislative Clerk)

The Chair

Mr. Yvan Loubier

Mr. Jeffrey LeBlanc

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

---

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

---

NUMBER 071

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, May 8, 2003

[Recorded by Electronic Apparatus]

¿  (0900)  

[English]

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

    We have completed the discussion on clause 29; therefore we're going to the vote.

    Note in your agenda that under clause 29 you have amendment G-11.7 and amendment CA-44. That is what we're voting on.

    Amendment G-11.8 is a new clause, and that's what we will undertake after the vote on this.

    (On clause 29--Rights of passage)

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

[Translation]

    Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Mr. Chairman, it's about the fact that my colleague, Réal Ménard, started a debate yesterday on whether or not clause 29, as amended, should pass. I would like us to continue that debate. We each have ten minutes at our disposal.

    The Chair: So, you want to speak to the clause.

    Mr. Yvan Loubier: Yes, to whether or not the amendment should pass.

    The Chair: Mr. Loubier.

    Mr. Yvan Loubier: Thank you, Mr. Chairman.

    Yesterday, my colleague, the Member for Hochelaga—Maisonneuve, whom I want to thank for his excellent participation—I believe you all enjoyed his comments—started a debate on the question before us now, namely whether clause 29, as amended, should pass.

    Had he been here this morning to continue the debate he began yesterday, he would have told you that he doesn't agree, nor do I, that clause 29 should pass as amended, because even when with the amendments, indeed, because of the amendments, what we end up with here is even worse than what was initially proposed in the Bill. How many people, how many witnesses appeared before this Committee saying that that clause in particular, and in fact clauses 19 to 29 were especially problematic, because—

[English]

    Mr. Charles Hubbard (Miramichi, Lib.): Mr. Chair, we completed debate on that last evening.

    The Chair: We're on the clause now.

    Monsieur Loubier.

[Translation]

    Mr. Yvan Loubier: In light of all the testimony we've received, those clauses, including clause 29, raise considerable difficulties when you look at the wording that is proposed and what is allowed under the Canadian Charter of Rights and Freedoms, especially as concerns the role of the officer, who is mandated by the band council to carry out inspections and searches. When you take a closer look at the role of the officer, it immediately becomes clears that there are weaknesses in terms of the framing of that role. Indeed, a number of witnesses told us that the officer's work must be more strictly defined, because he is not a peace officer, for one thing. Second, he can't do whatever he likes. Third, it is impossible to predict whether or not violence could occur when an inspection or a search is being carried out. What happens in those cases? Is the band council officer authorized to intervene in cases involving violence or assault? Those are the kinds of questions our witnesses put to us. Fourth, is it reasonable to think that an officer who enjoys almost unlimited powers, since they are not clearly defined, should have greater powers than most other officers, including peace officers in Canada? That is the question a University of Ottawa professor raised and put squarely on the table.

    So, the government amendments to clause 29 and the ones that came before with respect to the role and mandate of the officer, rather than improving matters, have only made things worse. I would even say that compared to the status quo, if it happened by pure coincidence—which would surprise me—that Bill C-7 were to pass, we would find ourselves in a worse situation than currently, since this language could pave the way for interminable legal proceedings, and it wouldn't be the Members opposite who would be involved in those proceedings; the band council would be left to try and handle that hot potato and respond to legal actions regarding offences under the Charter of Rights and Freedoms.

    Yesterday, my colleague, the Member for Hochelaga—Maisonneuve, made an excellent point. If we were to submit clause 29 and the six previous clauses to the Privacy Commissioner, they would surely not pass the test, particularly since we tried to introduce language into clause 29 and the six previous clauses that was in fact added to clause 24, that dealt with different circumstances and said that the officer's powers of inspection and search could be exercised on the reserve, under certain conditions, but not in places of residence. We tried a number of times to get that amendment through, but unfortunately, the Liberal majority defeated it. And it's difficult to understand why, given that it was agreed to introduce that exception into certain provisions under clause 24. So, why the refusal to repeat that exception regarding places of residence in each of the provisions dealing with the activities of the band enforcement officer?

    So, the problem associated with the band enforcement officer remains unresolved, and I certainly don't believe that our intent, as legislators, is to put the band councils in a situation where they will be subject to prosecution. Nor do I think it is our intention to create a situation for band councils whereby First Nations' lands would become unmanageable, simply because of our failure to provide the kind of clarification that the many precedents relating to infringement of the Canadian Charter of Rights and Freedom demand. We have to understand that if we use imprecise language in each of the clauses dealing with the role of the officer and the places that can be searched or inspected, there will be consequences. But the federal government will not be the one to suffer the consequences; the First Nations will.

¿  (0905)  

    And let's talk about the legal system. It seems to me that Bill C-7 focuses a great deal on band enforcement officer, as well as the whole system for dealing with offences on the reserve. If the government had put as much time, as much energy, as much clarity, as many words, as many assertions and amendments into this Bill to deal with the question of the inherent right of self-government as it did to put in place a quasi-correctional system for offences committed by First Nations, we would be a lot further ahead now. An extraordinary amount of care has been taken to develop a list of circumstances where an officer could exercise his powers, carry out searches, obtain a warrant from a justice of the peace, or even from a peace officer. All of this is so elaborate that I just can't believe this is the only follow-up to the many examples we've had in recent years of recognition of the inherent right of self-government and treaty rights. This simply can't be the logical continuation of Erasmus-Dussault and the Special Committee's 1983 report.

    There is something totally incomprehensible about the attitude of Liberal lawmakers, who never want to accept any improvement, except improvements that come from them and are drafted by them. Clause 29 as amended can never be acceptable as far as we are concerned because we believe—and I think Mr. Martin will share this view—that to pass clause 29, we would have had to make consistent changes, not only to clause 29 but to the previous clauses, because they pose very significant problems.

    The witnesses who appeared before us, who didn't have any particular political or party affiliation and were truly objective witnesses—indeed, expert witnesses, such as the Canadian Bar Association, the Quebec Bar, the Aboriginal Bar Association, university professors, including a professor from the University of Ottawa—all told us, and we were all here when they made their point… And just for those who weren't here, the briefs they presented clearly indicate their views. We also have summaries of these briefs, that can be had from the Library of Parliament and our own Committee researchers. All of that information is accessible. And what clearly emerge are some very strong criticisms of the language and of the consequences of passing clauses like these.

    So, if we are being asked whether clause 29, as amended, should pass, well, my answer is no. As amended, this clause should not pass. Even without amendments, it should not pass, because it contains far too many fundamental flaws.

    So, Mr. Chairman, I want to salute the Member for Hochelaga—Maisonneuve for the initiative he took yesterday.

¿  (0910)  

[English]

    The Chair: Mr. Martin.

    Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Chairman, thank you for this opportunity.

    I believe you begged the question of the committee, should clause 29 carry? We are now allowed to debate that motion as to whether we believe clause 29 should or should not carry. I'm surprised that we haven't had this debate on each clause as we've proceeded. Maybe that's the advantage of having some of the substitutes who have taken our places in the whole process.

    Now, as the debate around Bill C-7 grows, there is a growing interest on the part of members of Parliament to take part in this debate. In fact, rather than having difficulty finding substitutes to take my place during the unreasonable hours the committee has chosen to sit, we actually have people lined up wanting to take my place so that they can take part in this debate. Such is the interest developing across the country about the unfairness and the basic injustice associated with the implementation of Bill C-7, particularly about the practices of this standing committee and the unfairness associated with it.

    So it was due to the interest of other members of Parliament who came in last night around midnight to give us--Mr. Loubier and I--an hour's relief. Some veterans showed up, some people with a lot of parliamentary experience, and it occurred to them that we're missing an opportunity to debate the clauses as a whole by not reacting to the question, shall clause X, Y, or Z carry? In fact, that's the opportunity for members of Parliament to voice their opinions about the clause as amended.

    The entire clause, after the process of moving amendments, is different from the one tabled or presented to us in Bill C-7.

    So on clause 29, the final question--“Shall clause 29 carry as amended?”--is quite different from our first observations of clause 29 or the debate surrounding whether the clause should be amended or not. That's no longer the question. We moved amendments to try to alter clause 29, as we moved amendments to try to alter all the aspects and powers of enforcement officers, starting from the basic premise that this body may have the legal jurisdiction to make those changes, but it doesn't have the moral authority to make those changes on behalf of first nations. It doesn't have the authority, in our opinion, in any legitimate way, or the jury is still out as to the authority to interfere with first nations' ability to set their own standards regarding what an enforcement officer shall or shall not do.

    To build that argument, I'd like to go through arguments made about that very thing, especially in the context of environmental issues and the enforcement officers, or should aboriginal peoples be exercising governance over environmental issues, period. I think we can safely say the role of the enforcement officer in clauses 23 through 29 may often have to do with environmental issues.

    We have to begin that debate by asking the question, does the Canadian Constitution encompass self-governance by aboriginal people? I've been doing some reading in the time I've had off, along that subject, and I'd like to share some of that with you, Mr. Chairman, and with the committee to try to garner support for our position that this committee should not be interfering with the constitutionally recognized right to self-governance that we argue is enshrined in the Constitution.

    Canadian lawmakers often assume that governance is exclusively distributed between federal and provincial levels of government. Kent McNeil, whom I believe this committee has heard from, in his article “Envisaging ConstitutionalSpace for Aboriginal Governments”,said we should visit aboriginal title and the division of powers in reference to this question.

¿  (0915)  

    The Constitution Act 1867 does not define environment as a specific head of power. The Supreme Court has confirmed that each order of government has a specific role to play regarding the environment. As I understand it, that's section 91 for the powers of the provinces, section 92 for the powers of the federal government, and we would argue, then, section 35 for the powers of aboriginal governments as the third order of government.

    When the court rules that each order of government has a role to play, does this include aboriginal peoples? I would make the case that aboriginal rights must include the rights of governance and that aboriginal peoples' governance must be included in our constitutional concept of government in Canada.

    Now, as it pertains to environmental issues, there's a recent trend to transfer regulatory responsibility from federal to provincial governments and, further, to private entities, some of which are industry based. Examples of this include the recent development of authority to the Technical Safety Standards Authority in Ontario. This is passing jurisdiction from federal to provincial to the private sector, essentially, or to industry-based authority.

    Assertion by aboriginal people of positive rights to control activities that affect aboriginal rights or aboriginal title or aboriginal fishing and hunting lands, or even reservations lands, may conflict with these new regulatory regimes. In other cases, activities that will affect aboriginal peoples, because of detrimental impacts on their environment, should be subject to full environmental assessments, even under provincial and federal legislation. But many projects are now escaping such scrutiny.

    So far, the Supreme Court has not articulated an approach that accords full rights of governance to aboriginal people. There's been a lack of meaning and definition to section 35, as I've made the case before, Mr. Chairman. It's only incrementally and bit by bit that the Supreme Court has been giving us guidance as to what section 35 means.

    The court's concern was articulated in Nikal, the Supreme Court ruling regarding Nikal, in which Justice Corey stated that the government must ultimately be able to determine and direct the way in which these rights of aboriginal people and others should interact. The implication in the statement is that the government is a body separate from aboriginal peoples, for example, the federal or provincial government.

    In contrast, an approach that recognizes aboriginal people as having constitutionally recognized rights of governance and aboriginal peoples as another level of government would avoid the conflicting rights paradigm that the Supreme Court seems to fear. The court's involvement would be to arbitrate the rightful jurisdictional spheres of each level of government, including aboriginal peoples, as a body of last resort.

    So the Supreme Court's ruling in reference re secession of Quebec provided a useful model from which to consider a constitutional conception of governance in Canada that allows for federal, provincial, and aboriginal governance.

    In that case the court said, and I'll quote:

The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. ...The function of federalism is to enable citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level.

¿  (0920)  

    Now, this conception of governance is equally applicable to the role of aboriginal peoples governance over environmental issues and the issues that the enforcement officer in this clause would be charged with the responsibility of upholding. So as in the secession case, the Canadian Constitution thus viewed allows for the pursuit of collective goals by many diverse groups within Canada. This speaks to the diversity that Mr. Loubier was calling for, the openness or the willingness that most Canadians have expressed, to recognize cultural diversity as one of our strengths and one of our goals and something to be celebrated, not something to be undermined.

    The Chair: Thank you, Mr. Martin.

    We'll have a recorded vote on clause 29.

    (Clause 29 as amended agreed to: yeas 8; nays 3)

    The Chair: We are now on new clauses 29.1 and 29.2, page 187, amendment G-11.8.

    Mr. Hubbard.

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

[Translation]

    Mr. Yvan Loubier: Could you explain the process here, and the fact that we are moving to G-11.8, rather than the Canadian Alliance amendment?

    The Chair: Because it wasn't tabled. That was done last night.

    Mr. Yvan Loubier: I see.

[English]

    The Chair: Mr. Hubbard.

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

    In terms of government amendment G-11.8, it reads that Bill C-7 be amended by adding after line 36 on page 17 the following. These would be new clauses 29.1 and 29.2.

    With a marginal notation of “Duty to assist with inspection or search”:

29.1 The owner of--or any person who is in possession or control of--a place that is inspected or searched shall give the band enforcement officer or peace officer any assistance or information required to enable the officer to conduct the inspection or search.

    With another marginal notation of “Seizure during inspection or search”:

29.2 (1) A band enforcement officer or peace officer may seize any thing found in the course of an inspection or search that the officer believes on reasonable grounds will afford evidence of the commission of an offence under the band law in respect of which the inspection or search is being conducted

--and with that, Mr. Chair, with the permission of the committee, putting in the following words--

and must provide a receipt for anything seized to the owner or the person who is in possession of it.

    I think you have a copy of that.

¿  (0925)  

    The Chair: Are you looking for unanimous consent?

    Mr. Charles Hubbard: Yes.

    The Chair: We are seeking unanimous consent to add....

    No?

    Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): There's a part right in after the--

    The Chair: I didn't even say what the unanimous consent was for, but I got a “no”, so we don't have unanimous consent.

    Mr. Vellacott.

    Mr. Maurice Vellacott: On a point of order, can I just do my insert here?

    After new subclause 29.2(1) is where I thought there might be agreement to--

    The Chair: That's what we were going to seek unanimous consent for. We don't have it.

    Mr. Maurice Vellacott: Well, we need to read it, I guess, do we not, at least to ask what the unanimous consent was for? I'm not sure that was heard.

    I'm proposing--

    The Chair: We have to follow process. Mr. Hubbard tried to do it as unanimous consent. It was turned down before we even heard what the question was. I suspect Mr. Hubbard wants to move a subamendment now. That's the process.

    Mr. Maurice Vellacott: I'm not sure it was even all read, though, at that point.

    The Chair: It was not. I asked for unanimous consent and I didn't get to say it. Unanimous consent was denied. That puts an end to my request.

    Mr. Maurice Vellacott: Can I try it again?

    The Chair: We just did it and it was turned down. The only process now is a subamendment.

    Mr. Hubbard, you have the floor.

    Mr. Charles Hubbard: Continuing, Mr. Chair, with the other marginal notation--

    The Chair: Are you on the amendment or are you speaking on your subamendment? You didn't move it yet.

    Mr. Charles Hubbard: I'm on the amendment.

    The Chair: Okay, you're on the amendment as is.

    Mr. Charles Hubbard: And under “Application of Criminal Code” in the submargin again:

Sections 462.32 to 462.46, and 489.1 to 490.1 of the Criminal Code apply, with any modifications that are necessary, in respect of a thing seized under subsection (1).

    With this, Mr. Chair, if I could comment, some members of the committee are taking a lot of time, and I think everyone recognizes why they want to do that, but certainly it would be to the benefit of all if we were reading ahead a little bit in terms of the amendments that are proposed.

    Yesterday we spent a lot of time discussing information that was brought forward in terms of amendment G-11.8. With the position that one honourable member from Winnipeg seemed to take, I would say that there is a similar type of enthusiasm in terms of the people on this side of the table. We certainly recognize the benefits that all first nations peoples and Canadians will benefit from when this bill is brought back to Parliament and becomes law. And, as you note, in terms of the people here, we have lineups of people who want to sit here and hear. The reports we had from the people who were here yesterday and the day before are that they're very upset with the limited amount of information that is being presented. But the fact of the matter is that the same songs are being sung continuously. I'm not sure if they're looking for what they call golden records or whatever, but it takes a lot of production to become a producer of a golden record, and I'm not sure who wants to buy that golden record, but I don't think it'll have much value in terms of the proceedings we have here.

    So, Mr. Chair, I would propose that we accept G-11.8.

    The Chair: Mr. Vellacott.

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

    I have a concern about this clause in that I think we want to curb the misuse of this clause. I propose that a receipt be issued to the owner if something is seized or taken at the time. So I will attempt to again do a little word change, very slight. I think the clerks may in fact have it at the table here. I'm going to try for unanimous consent to get this in here.

¿  (0930)  

    The Chair: I'll pay attention so I won't have to read it.

    Mr. Maurice Vellacott: It reads, at the end of 29.2(1), after it says:

will afford evidence of the commission of an offence under the band law in respect of which the inspection or search is being conducted and must provide a receipt for anything seized to the owner or the person who is in possession of it.

    So I've added a couple of words in there. That's my proposal, to see if by consensus we could get that in there as part of the motion.

    The Chair: There's a request for unanimous consent. Do I have unanimous consent?

[Translation]

    Mr. Yvan Loubier: Is this an amendment?

[English]

    Mr. Maurice Vellacott: No.

    Mr. Yvan Loubier: It's a subamendment.

    Mr. Maurice Vellacott: With that then, without further ado, I will propose it as a subamendment.

    The Chair: Accepted. Mr. Vellacott, on his subamendment.

[Translation]

    Mr. Yvan Loubier: Would it be possible to repeat the sub-amendment, Mr. Chairman?

[English]

    The Chair: I'll hold the clock.

    Mr. Clerk, would you read the subamendment?

    Mr. Michael Lukyniuk (Legislative Clerk): The amendment proposed by Mr. Vellacott is in section 29.2 at the end, after the word “conducted”, to add the following: “and must provide a receipt for anything seized to the owner or the person who is in possession of it.”

    The Chair: Mr. Vellacott.

    Mr. Maurice Vellacott: I think the basic point of this is simply that a band enforcement officer might come in to seize something in the course of a search that they believe on reasonable grounds is something they need for the collecting of evidence or whatever, so we want to propose that the enforcement officer provide the owner with a receipt so as to curb any possible misuse of this particular section; it's that a receipt be issued to the owner or the apparent owner, the one seeming to be in possession of whatever item or piece of property it is.

    The Chair: Does anyone else wish to comment?

    Mr. Martin.

    Mr. Pat Martin: On the subamendment, Mr. Chairman, it's another example of the interest on this committee, or an interest on the part of the Liberal Party at least, to micromanage every aspect and every detail of reserves and even try to anticipate the wishes or the needs of first nations communities as they put in place enforcement officers and rules under which those enforcement officers will conduct themselves. Without the full participation of first nations around this table, we have no right to do that.

    Some of the things being contemplated here are very complex. Some of the rights involved that may be trampled on we have to factor into this whole debate. And it hasn't been clearly articulated what impact clauses like this might have on the right to privacy. What training and what skills or what knowledge the enforcement officer may need in order to make these judgments on reasonable grounds has yet to be entertained by this committee. We haven't gone through the process of how people will be trained.

    We tried to introduce amendments yesterday regarding adding to the definition of what “reasonable grounds” might be, cautioning the committee that when an enforcement officer exceeds what might be considered reasonable grounds, or acts without what might be considered reasonable grounds, it causes incredible complications in terms of infringing upon people's rights. Even getting into the minute details associated with what the enforcement officer may or may not do in the community seems to fly in the face of even what the government's own objectives were by introducing this whole Bill C-7, because as recently as today in the newspapers we have the Minister of Indian Affairs saying that first nations leaders aren't representing the interests of people in the first nations communities, and that individuals in communities are crying out for help, if you will, from the government in that their individual rights are being trampled on. The only reason we don't see them in numbers here, so the minister says, is because they're afraid of reprisals.

    I don't accept that for a minute. I think we would see some evidence coming forward in our travels if this was a widely held sentiment among first nations. But contemplating this clause here, and envisioning the enforcement officer bursting into a place and seizing property, etc., seems to invoke the image of dictatorial powers, authoritarian powers, especially without all the safeguards, and checks and balances that we enjoy in mainstream society.

    The police and the RCMP cannot do certain things, and we have a whole regime to watch over our individual rights to ensure that they're not trampled on. It doesn't give me any comfort that a person of unknown training, unknown skills, and questionable authority can enter a place and seize my property. It doesn't make it okay if they give me a receipt afterwards. That's not enough to satisfy me, frankly.

    And when we make reference in this clause that sections 462.32, 462.46, 489.1, and 490.1 of the Criminal Code apply, what the hell are those? I don't think the members of Parliament around this table can tell us what the Criminal Code says in each of those four categories. We do our homework and our research as best we can within the unreasonable timeframes, or limitations of timeframes, imposed on us by this committee, but we're not making informed votes when we haven't explored what the impact of the Criminal Code is.

¿  (0935)  

    And is the enforcement officer--this quasi-cop--in the position of enforcing the Criminal Code of Canada? Is he now an agent of the federal government enforcing the Criminal Code? We don't know. It's all so mixed up and muddled that even if you ask people in the communities, or even the leadership of the communities, what their opinion is of this particular sketch or outline of what an enforcement officer shall or shall not do.... There hasn't been a debate about this. There hasn't been an informed exchange with first nations communities as to how they would like to see this unfold or be articulated.

    It raises the point again that this process should stop. If the government is seeking to achieve some national standards as it pertains to accountability, transparency, the enforcement of bylaws, it should stop this process, back up two steps, and begin a consultative process with first nations around the table. As was recommended by Warren Allmand when he presented to this committee, it should start the process again.

    I would predict that the minister would in fact achieve some semblance of national standards on those issues of concern. But this is not the approach to take. It's the process that offends almost as much as the content, and what we're doing here today is offensive to the very people who are affected by the rules we're passing here. What should be done is that we withdraw, suspend these proceedings, quit this farce of an exercise, and back up and start over again in a way that's respectful of the jurisdictions as they exist, and respectful of the inherent right to self-governance as recognized in the Constitution.

    I intend to walk us through, as we go through the day and into the night tonight, some of the research that I have been doing, such as on articles by Kent McNeil, who made presentations here, and some of the leading Supreme Court rulings regarding the right to self-governance as recognized under the Constitution. I think that will be useful to all concerned, because there's been very little use made of the research that was tabled with this committee. So I've been revisiting some of the original research papers that were circulated when we began this process, which seems like ages ago. Within those documents that were tabled with us, we can find direction that would have avoided this whole mess we find ourselves in now--this whole divisive mess. Had we taken guidance from the information that was made available to us at the beginning of this process, I think we would have been able to design and bring forward recommendations that would get broad acceptance in the communities.

    I didn't hear a single presentation that said anybody in the first nations communities is against accountability and transparency. We did hear people say they thought it was a myth that rampant abuse of financial management issues is so prevalent that it warrants the interference by the federal government into what is clearly the jurisdiction of aboriginal governments. That we did hear.

    But regarding G-11.8, Mr. Chairman, I asked early about enforcement of the preceding provisions. I asked earlier about what happens when the enforcement officer commandeers an individual and makes them a deputy and says, “You, pick up that computer and bring it to my truck, because I'm seizing it on behalf of...”--God knows who. What happens if that person says, “Forget it, carry it yourself, I refuse to cooperate”? What would happen then, Mr. Chairman? Does that person get dragged away to Stoney Mountain? That's one of the questions. Is their house seized?

    I'd like the government officials to explain why the provisions of the Criminal Code mentioned are simply not incorporated into the legislation with the modifications made? Why is the government leaving it to the courts to justify what are the necessary modifications after the fact? Those are questions I intend to be asking.

    My understanding of the law is that to be lawful the search must meet three conditions: first, a specific statute or common law rule must authorize the search.

¿  (0940)  

    Secondly, the search must be carried out in accordance with the procedure—

    The Chair: Mr. Martin, thank you.

    I would really appreciate that questions be asked of our experts. Then we will get some facts on the table, because in the last 13 years we've been talking about a lot of stuff and now we have experts here who could clear up a lot for us. But it doesn't help to say we would like to ask, and we may ask, or maybe some day we'll do it. We should ask and allow them to put the facts on the table.

    Monsieur Loubier.

[Translation]

    Mr. Yvan Loubier: I'm going to put the question to them directly. What do sections 462.32 to 462.46 and 489.1 to 490.1 of the Criminal Code cover, in broad terms? I'm not asking you for complete information, but I would like to have a general idea of what these clauses cover, Ms. Angers.

    Ms. Lucie Angers (Senior Counsel, Criminal Law Policy Section, Department of Justice):

    Thank you, Mr. Loubier.

    The provisions referred to in sub-section 29.2(2) of the proposed amendment deal with the way seized property is handled. When property is seized, it isn't always clear who owns the property. The purpose of these articles is to determine in what cases the property is to be returned to the person, in what cases it should not be returned, the timeframe within which that should occur and, where perishable goods are concerned, for example, the specific action that should be taken.

    Sections 462.32 to 462.46 of the Criminal Code deal more specifically with detention procedures for the proceeds of crime where the offences involved are offences relating to those covered in the Criminal Code with respect to the proceeds of crime.

    Mr. Yvan Loubier: Ms. Angers, do these provisions make an exception for religious or sacred objects in terms of search and seizure?

    Ms. Lucie Angers:

    The seized goods must be items related to the commission of an offence. This is a provision of the common law which has always been in the Criminal Code. If the property cannot prove the offence, it cannot be seized. However, any and all goods or property that are related to an offence can be seized. Search powers are such that anything can be seized, once again, provided that whatever items are seized are related to the commission of an offence.

    Mr. Yvan Loubier: Thank you. I have my answer.

    I'm very happy to have had that clarification, because this was the first time I had ever seen those clauses of the Criminal Code. We don't really discuss those clauses much. We discuss others, of course, but not those ones.

    I want to come back to our basic criticism. We have discussed the fact that when the officer arrives on the premises, he must identify either the owner or the person who is in control. Once again, sub-section 23(2) states: “…produce the certificate of designation to the individual appearing to be in charge of the place or the goods.”

    So, we did not correct that wording in sub-clause 23(2), and now we're on proposed clause 29.1, which says: “The owner of or any person who is in possession or control…”

    From the very outset, we highlighted the fact that at the beginning of these six clauses, which refer to “the individual appearing to be in charge”, the language used was biased and had an impact on all the others. That flaw was not corrected, because in sub-clause 23(2), we are still facing a situation where an officer could arrive on the premises to conduct a search or inspection and find a person appearing to be the owner or to be in charge and actually order him to cooperate, even though that individual may not be the owner or the person in charge. That's my first comment. That flaw was not corrected and now we find ourselves with a contradiction between the wording of proposed clause 29.1, the amendment, which talks about “the owner of or any person who is possession or control” and the wording of sub-clause 23(2), which refers to “the individual appearing to be in charge…”

    Second, not only has the initial problem not been resolved, but potential problems continue to accumulate because seizures are another aspect of the officer's work which is problematical, in the sense that this officer has not been trained. There is no provision for this band officer to be trained, nor is this person an officer of the peace. So we're dealing with a situation where the band enforcement officer, because it does say “A peace officer or a band enforcement officer”, can conduct searches and seizures. If that band officer has not been trained, if he is not supervised in his role, as we saw with past clauses, what will happen is that the peace officer could find himself on dangerous ground with respect to the band council. Indeed, the government added an amendment to the terms for releasing this peace officer. It's not for no reason that we are highlighting this.

    Second, it's the band council that would be subject to prosecution as a result of unreasonable seizure, and unreasonable seizures are not something that only happen once in a blue moon. We have had cases in the past. Even on the part of peace officers there have been certain abuses. I'm not saying this happens all the time, but it does happen. We could list cases where it has. And these unreasonable seizures are sometimes made by peace officers who have been duly trained. So, you can just imagine what could happen with a band enforcement officer, given that nowhere does it say this band officer will be trained or that resources will be made available to so that he can be trained. His role is so poorly defined that this could give rise—and we are not the only ones saying this—to serious offences under the Charter of Rights and Freedoms.

    Imagine what we're dealing with where seizure and enforcement of the Criminal Code is involved. This is my third point. I have trouble understanding how the Criminal Code could be enforced by a band officer who is not a peace officer. The wording says: “A peace officer or a band enforcement officer”. It doesn't say just the peace officer; the band enforcement officer is also mentioned. So, it seems to me that asking an officer who is not a peace officer, and has received no training, to enforce the Criminal Code is problematic in a number of ways.

    I agree with Mr. Martin when he says that this is almost worthy of a police state. When you say that people are required to give all reasonable assistance, but the owner or the person in charge has not even been identified, and the apparent owner or person in charge is the one subject to the action of the officer, then that clearly raises serious problems.

¿  (0945)  

    From clause 20 to clause 29, with all the amendments that came forward, and all the provisions regarding offences that could be committed… So far, seven clauses out of 59 only deal with offences and the prosecutions that could affect the reserves, as well as seizures. So these seven clauses basically tell us that this or that action must be taken where offences occur. It seems to me that is an awful lot of words, clauses, and consideration, not to mention a lot of amendments brought forward by the government, that deal solely with enforcement. Where does it say anything about building in these clauses? Where do we see any mention of building or rebuilding the First Nations? Where in there is there any opportunity for the First Nations to exercise their inherent right of self-government in relation to offences, searches and seizures, since everything dealt with in those seven clauses is negative? Is the situation that problematic among the First Nations? Are we facing daily offences that are so unacceptable that in these seven clauses, and all the amendments put forward by the government, we should be considering only penalties, seizures, and the enforcement of the Criminal Code? I'm absolutely floored by this, particularly since we know full well what the true needs of the First Nations are.

    And there are needs. There is a pretty incredible list of those needs and the solutions that could be put in place to satisfy them, if we really wanted to take a positive approach to the future of the First Nations and were prepared to let them define their own future and define the areas where they want to exercise powers.

    In terms of housing, it's absolutely incredible. This morning, I was given an example of the deterioration…

¿  (0950)  

[English]

    The Chair: Merci, Monsieur Loubier.

    Mr. Vellacott, closing remarks.

    Mr. Maurice Vellacott: I think I've made my case fairly simply and to the point. I think this is a necessary protection so that there are not problems, and it's very explicit and clear if they go in doing their supposed role. I have expressed my concerns about the band enforcement officers' broad powers, but I guess we certainly want to mitigate where we can, and even this small thing of them providing a receipt for something they've seized, I think, would be a little bit of a helpful addition.

    I have some questions later on certain sections, but I'll leave that for when we go back to the main amendment.

    The Chair: It's a recorded vote on subamendment G-11.8, page 187.

    (Subamendment agreed to: yeas 9; nays 2)

    The Chair: Now on the main amendment, Mr. Vellacott.

    Mr. Maurice Vellacott: I have questions, I guess. Mr. Martin, or maybe it was Mr. Loubier, asked questions with respect to one of the sections. Can you quickly clarify for us the sections--I don't have them before me--462.32 to 462.46 and 489.1 and 490.1? Can you quickly read them to us or let us know the impact of those?

    Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): Lucie Angers should respond to that, please.

    Ms. Lucie Angers: Thank you.

    The purpose of these articles is to make sure that when something is seized by the band enforcement officer or the peace officer, either in the context of a search or in the context of an inspection--and obviously it has to be seized for the purpose of providing evidence of the commission of an offence--these provisions will make sure there's a procedure that has to be followed in order for the goods to either continue to be seized or to be returned to their lawful owner.

    As I said to Mr. Loubier, the provisions are very long, very encompassing, and deal with issues such as the detention of the goods, for how long and in which conditions they are detained, and what the duty of the person who detains them is. There is also how it works in terms of the record of the property seized in the context of proceeds of crimes, for instance, how these proceeds of crime are returned or not returned, which conditions prevail, how these seized goods are managed, and in which cases they are forfeited--there is specific provision in relation to their forfeiture--if the lawful owner cannot claim he has a right to them. There is also the issue of restoration of property in cases in which the property had to be destroyed.

    That's why all these provisions provide a complete regime that pertains to the thing that has been seized pursuant to the commission of the offence. It's a very all-encompassing scheme, and that's why normally in federal legislation we do not replicate all these provisions; we do refer to them in the context of the federal legislation as such.

    One thing that should be clear to members is that these band enforcement officers, or the peace officers in that context, will not be enforcing the Criminal Code. They are applying provisions in relation to what happens in relation to the goods seized. But it's only the procedure that is being followed; they're not implementing nor enforcing the Criminal Code. They're only making sure that the goods that are seized are treated according to a procedure that is in the Criminal Code but could have been replicated in any federal legislation.

    Once again, it's a very long list of disposition, very technical and very detailed. That's why these provisions are not replicated in most federal legislation but only referred to in the context of federal legislation.

¿  (0955)  

    Mr. Maurice Vellacott: Right. They're very extensive, I gather. That's why, obviously, you didn't want to read them all here. It would have taken far too much time.

    I'm interested in the fact.... Does this bind them, or does it create some difficulty for them if they are in fact doing all the things a peace officer would in respect of the sections that are here under subclause 29.2(2)? But they're not a peace officer, so they're not seizing it, as you say...I don't know what the term was that you exactly used there, but in that kind of a manner. Does that not set up a bit of a difficulty for them? Do they have the full powers, the full authority? Does it not tie their hands or hamper or restrict them at points then?

    Ms. Lucie Angers: The provisions in relation to a detention, retention, restitution of goods seized, are not targeted toward peace officers. The goods can be seized, and the Criminal Code provides for different ways in which the goods are being reported back to the judge, depending if the person who seized them is a peace officer, is a public officer, or is anybody else authorized according to legislation or an act of Parliament.

    That's why they are not proceeding in relation to the seizure of the things as peace officers but only in terms of their own powers. Therefore, there are specific provisions that relate to the way in which these goods seized are treated by virtue of their status as being not peace officers and maybe not public officers either.

    Mr. Maurice Vellacott: I think it's pretty much implied, by what you've responded to us, that these people...I mean, it goes without saying, and it would be evidently clear to anybody hearing this or reading this hereafter, that even with extensive sections like this, these individuals will need to be well trained. It's not a matter for somebody to say eenie-meanie-minie-moe, hey, you're it for band enforcement officer. These people obviously need some fairly decent training to get a grasp and comprehend these sections of the act and so on, these things that pertain to their job.

    Would that go without saying? It's not spelled out here in terms of training a lot and so on, but I would think, implied by this, it is obvious they will need some decent training to carry out their jobs responsibly.

À  (1000)  

    Ms. Lucie Angers: Band enforcement officers will need to know that they have to report back to the judge the goods they seize. Their duty is not an extensive duty in relation to all the management and all that, because the court, once it's seized of the things that were seized by the band enforcement officer, will be dealing with the things that were seized in accordance with the different provisions. The only duty for the band law officer would be to report these things back to the judge. Then it's up to the court to decide what will happen and how the goods will be returned or not returned.

    Mr. Maurice Vellacott: So in all instances, anything that's seized will by necessity end up in a court situation. Are we assuming that in the absence of their own justice system set-up, it would be a provincial court, at least until such time as there is a first nations system of some sort?

    Ms. Lucie Angers: Yes, it would be before a judge. The judge is defined according to the Criminal Code as encompassing different categories of judges; therefore, depending on which province you are in--because as you know, the administration of justice is a provincial responsibility--it will be this type of judge or that type of judge.

    Mr. Maurice Vellacott: It could be a justice of the peace?

    Ms. Lucie Angers: No, it can't be a justice of the peace. It's a judge in those particular circumstances, not a justice.

    Mr. Maurice Vellacott: Since these sections have obviously stood the test of time and are “charter-proof”--they have a track record and stand solidly--why would we even have a term such as “with any modifications that are necessary”? Why would we play around with something that has served well in a broader context, with such a statement as “with any modifications that are necessary”? What's that all about?

    Ms. Lucie Angers: When you incorporate some provisions of other legislation in a particular act, normally the provisions do not necessarily jibe exactly with what you want. For instance, in the case of the provisions in relation to return of property, some provisions might not apply because they're not appropriate in other circumstances relating to seizure.

    That's why, in legal drafting, to make sure you are not encompassing things or issues that would not be appropriate in your own legislation, if you incorporate by reference certain provisions, you always make sure you have a provision that says these provisions apply with appropriate modifications.

    Mr. Maurice Vellacott: Is that assumed to be in quotes in the regulations, then? When we talk in terms of “modifications necessary”, who would be making these modifications, or where would they be made?

    Ms. Lucie Angers: It would be the judge who would be deciding that in this case this is not appropriate, or in this case it is appropriate. It's certainly not by regulations. You couldn't be doing that by regulations. In each case that comes before the court, the court will say yes, this article--I don't know--462.36 is applicable or not applicable.

    Mr. Maurice Vellacott: Oh, I see: it's extempore; it's case by case. It's not even an issue of rewriting it so much as the judge exercising good judgment and discretion at the time.

    Ms. Lucie Angers: Yes, the judge will obviously be able to interpret the fact that in certain cases this provision will not apply, or it applies with this kind of modification. But the modifications are not substantive; the modifications adapt the different words that are in there. They would not deal with the article dealing with a peace officer in the case of a seizure that was done by a band enforcement officer, for instance. The judge would know that the provision in the Criminal Code referring to the peace officer would not be applicable in that particular circumstance.

    Mr. Maurice Vellacott: Okay, thank you.

    The Chair: Thank you, Mr. Vellacott.

    Monsieur Loubier.

[Translation]

    Mr. Yvan Loubier: Thank you, Mr. Chairman.

    I was saying earlier, with respect to Mr. Vellacott's sub-amendment, that even though we are faced with real problems among the First Nations, we end up with a Bill on governance which, at least in terms of the last seven clauses and all the amendments and sub-amendments we have reviewed, deals with enforcement, with the fact that offences may be committed, and that there could be seizures on reserves, when my sense was that the report of the Erasmus-Dussault Royal Commission on Aboriginal Peoples would lead to renewal.

    The work plan that was proposed did not look at ways of handling enforcement or lay out meticulously defined procedures for inspections, searches and other such activities on the reserves. Particularly since what was proposed was a scheme to make the inherent right of self-government a reality and ensure that the extensive ancestral rights held by the Aboriginal peoples could be reflected in some kind of legislative arrangement that would, first and foremost, allow them to define themselves in relation to those rights, as well as to define themselves as a people. And yet, what we have here is a bill which, in accordance with the wishes of the Minister, Robert Nault, and the Prime Minister, Jean Chrétien, a former Minister of Indian Affairs, deals in at least these seven clauses—and I don't remember whether the others relate to the same subject—with all the conditions surrounding searches and inspections, even though the Canadian Bar Association, the Quebec Bar, the Aboriginal Bar Association, many university professors—indeed, just about everyone, except the federal government, says that these seven clauses are extremely problematic.

    And when you take a close look at clause 29 of the Bill, you can clearly see that it in no way responds to the considerable needs of the First Nations. All you need to do is look at the First Nations' quarterly bulletin on health to see that what the First Nations are talking about are not problems relating to offences, penalties, inspections, searches, band officers, or searches carried out under section 462, 489 and 490 of the Criminal Code. Those are not their main concerns, and I guess they must know what is going on in their reserves and on their lands.

    Indeed, in the Spring 2003 bulletin issued by the Assembly of First Nations, it talks about something that should be of the greatest concern to us, which is suicide prevention in youth. The news is absolutely shocking. We know that in Quebec, for example, the suicide rate among young people is much higher than average in Western countries, but among the Aboriginal people of Quebec, it is twice as high. The suicide rate among young people is two times higher than among non-Aboriginal Quebeckers. I don't have statistics for all of Canada, but I sense that it's probably quite similar; so, here we are talking about a very serious problem—suicide prevention in youth. We should be trying to determine why young people have this strong tendency to commit suicide. And yet when a young person has no future, which is the case for many young people who are members of First Nations, that becomes a terrible source of discouragement at some point. Young Aboriginals don't know what kind of future lies ahead, nor do they know how or in what type of environment they will raise a family. Nor do they know that they might one day regain the dignity lost by their parents, their grandparents and the ancestors. Year after year hopes are rekindled that things might change, and then those hopes are dashed. They must be extremely disappointed with Bill C-7, because this is not a Bill that in any way meets their concerns.

À  (1005)  

    And here is another topic that is very current : the Assembly of First Nations bulletin that is distributed to both Aboriginal and non-Aboriginal Canadians says that the federal budget in no way reflects the concerns of the First Nations with respect to health care. Those are real concerns. The federal budget should have addressed that. Indeed, when we heard the Speech from the Throne after Parliament resumed, mention was made… It looked good. It always looks good in a Throne Speech to say that the government is concerned about the health of the Aboriginal peoples, education, and so on. But when the budget comes down and we see that totally inadequate amounts of money are set aside to meet the needs of the Aboriginal peoples, then it becomes crystal clear that's a lot easier to talk about Aboriginal rights, and health and education for young Aboriginals than it is to take concrete action.

    Another important topic is pre-natal nutrition. That is another example of a question that needs to be debated and for which solutions must be found. In order to resolve problems related to pre-natal nutrition and foetal alcohol syndrome, which is a very serious problem, the First Nations have to take control of their destiny and their future, and set out to define for themselves their third order of government. If they engage in discussions and are trying to find solutions to all these issues at this time—because these are real problems, not non-existent governance problems—it's because they want to resolve these problems, and if they had all the appropriate instruments, if they had the tools at their disposal to resolve the problems I referred to, as well as a lot of other ones that they are facing, they would use those resources to serve their communities. There is no doubt about that.

    So, Mr. Chairman, I could talk about other problems the First Nations are facing that are in no way addressed in this Bill. Just take housing, for example… Mr. Chairman, I was told about a house on the Lac Barriere Reserve, a small house with two bedrooms where seven people are living. Some people sleep on the floor, there is mould and it's a completely unhealthy environment. But in the meantime, while the First Nations are trying to cope with social housing problems, here we are discussing how searches should be conducted in these unhealthy houses, and how we should go about making seizures and carrying out enforcement on First Nations' reserves. That is extremely unfortunate. There is really something shameful about this whole situation.

    As we already said, the amendment poses a problem, from clause 1 to 29. I may not be successful, like what happened the first few times, but I would like to attempt, once again, to add a sub-amendment to proposed clause 29.1, which would state, after the word “place” : “other than a sacred site of the First Nation”. So, I would like to table that sub-amendment to amendment G-11.8.

    I move that the amendment, as amended, be further amended by adding to new clause 29.1, after the words “any person who is in possession or control of”, the following : “other than a sacred site of the First Nation”. So, proposed clause 29.1 would read as follows :

29.1 The owner of—or any person who is in possession or control of—a place, other than a sacred site of the First Nation, that is inspected or searched…”

À  (1010)  

    The Chair: Mr. Loubier, you have the floor on your sub-amendment.

    Mr. Yvan Loubier: Thank you, Mr. Chairman. Thank you for giving me this opportunity to debate the sub-amendment.

    Mr. Chairman, since we began considering the clauses of this Bill that deal with the role of the enforcement officer and the place where he can carry out inspections and searches, there has been a consistent refusal to respond positively to our desire to add to the wording of these clauses that inspections and searches conducted by band officers or peace officers, in cases where laws developed by the band council have not been complied with, should be carried out in places other than places of residence. We have been unsuccessful in having that accepted, even though sub-paragraph 24(1)a) includes such a consideration, one that was not retained for the other clauses. So, our understanding is that for clauses 25 to 29, places of residence or living quarters can be subject to inspections, seizures, and searches.

    There has been a failure throughout this section—and I am trying to correct that—to include in the list of exceptions the sacred sites of the First Nations. And yet when you know as much about the First Nations as I'm starting to know and learn to appreciate as never before, you realize that spirituality among the First Nations and their spiritual traditions that were completely dismissed for decades, even centuries, following the arrival of the Europeans, to be replaced by what the Europeans believed to be the only religion and spirituality worth having, and that they believed they had a duty to impose at all cost on the First Nations, so that they would adopt the religion, the God and the habits of the Europeans, are being revived now as never before, because we're talking about traditions and a spirituality that they want not only to recreate and strengthen, but allow others to appreciate. And I'm very happy about that. But that spirituality must be allowed to express itself in sacred places, and there are sacred places not only on the reserves, but outside the reserves.

    Let me just give you one example. Among the Mashteuiatsh Innu, as well as the Etsiamites, Essipit, Mamuitun or any other Innu group, the Nitassinan forest is considered to be a cathedral. There in the forest is where First Nations' members and their spiritual chiefs come together to commune with the Creator. For the Innu First Nations, the forest is a cathedral; it is a place of worship. And not only is it a place of worship, it is also a school. First Nations' members learn about nature, learn how to listen to nature, see nature, look at it, observe it and learn about it. A human being becomes whole when spirituality, education and the environment come together and make him whole. This is what allows a First Nations' member to be considered to be a whole person. His spirituality and his life are thus very closely connected.

    There is also what is called the Long House. We tend to hear the English term more than the French term, but the expression maison longue is also used in Quebec. For example, the Mohawks hold spiritual ceremonies in the Long House. So, if there were to be inspections and searches in the Long House, that would mean that a sacred place been subject to search and inspection.

À  (1015)  

    I think it would be preferable for clause 29 to state that the places where searches or inspections can be conducted do not include sacred sites. We were unsuccessful in having clarification added with respect to places of residence, but I hope that for sacred sites, the people across the way will show a bit more judgment and that this change, which is absolutely fundamental, will be accepted. We cannot allow band or peace officers to conduct inspections or searches in places considered to be sacred, where spiritual ceremonies are held.

    Other examples of sacred sites could also be cited, and we should be aware of them. That's why the need for training is even more important. If my sub-amendment to proposed clause 29.1, as it appears in the government amendment, is agreed to, officers will have to be trained so that they can recognize the First Nations' sacred sites. On Manitoulin Island, for example, the Ojibway have a place they call Dreamer's Rock; the French translation would probably be rocher des rêves. This is a place where year after year, generation after generation, young Ojibway have come to meditate as part of their spiritual quest. This is where they go to commune with their God, where they practice their own spirituality, and I believe it would be totally unacceptable for a place like Dreamer's Rock on Manitoulin Island to be subject to searches and inspections. We must respect these places of worship where the First Nations express their spirituality.

    I talked about the forest earlier. I was telling you that for the Innu, the Nitassinan is a place of worship and spirituality. The Nitassinan is also an immense cathedral for the Innu. We could also cite the example of the Mohawks in Oka. The Oka crisis did not erupt for no reason. The fact is that at the time of the crisis, it hadn't occurred to anyone that the pine forest claimed by the Mohawks in Oka was also a place of worship, a place they considered to be sacred. They even believed that many many years ago, that place could have been a burial ground for the ancestors of the Oka Mohawks. So one can certainly understand, by the reaction of the Kanesatake Mohawk First Nation, just exactly what it meant to them when a sacred place such as this was violated.

    Mr. Chairman, I'm appealing to my Liberal colleagues' judgment here. I would really like this sub-amendment to at least be included in one clause, and I believe that proposed clause 29.1 would be the best place to put it, as a way of demonstrating to the First Nations that their places of worship, their places of spirituality, their sacred places, are places that are just as worthy as of respect as churches, for example, that we could not allow to be subject to searches or inspections without feeling they had been violated and dishonoured.

    So, I hope that the Members opposite will consider the need to show the proper respect for the First Nations' sacred places. That is fundamental.

À  (1020)  

[English]

    The Chair: Mr. Martin.

    Mr. Pat Martin: Mr. Chairman, I want to thank Mr. Loubier for using his time to try to introduce some reference to, or respect of, the cultural component to any legislation dealing with first nations people, and for trying to heed the advice we had from so many that anything we do in dealing with first nations issues has to be culturally sensitive. There has to be a cultural match, to use the words of some of the authorities who shared their opinions with us in the consultation process. It's especially relevant now, seeing that we are dealing in the bill with the issues surrounding search and seizure and the rules of enforcement officers.

    There's such a negative history associated with search and seizure in our past experience. I don't think this committee is paying enough attention to the track record of the Canadian government in the latter's atrocious experience to date in dealing with first nations. I was reminded of what a flashpoint or sensitive issue this is by one of the observers with us today, who said that the RCMP entered the Onondaga longhouse in 1924 and seized wampum belts and other items that formed the constitutional basis of the traditional Iroquois government. That was in 1924, when they were trying to force the band council or Indian Act model of governance on them, as opposed to their traditional governance. To this day, the two exist in parallel; the Iroquois refused to give up their traditional government and to adopt the Indian Act form of government alone, so the two have existed in parallel to this day. Raiding the longhouse and seizing the wampum belts was the first step in how Canada imposed the Indian Act system of governance on the Six Nations of the Grand River territory. I don't think they had any specific right to search and seizure; they just took the absolute right.

    So now we're institutionalizing search and seizure mechanisms, and this alarms people because of the very real history that exists. The Six Nations are still searching museums and private collections to get their property back. And that's not unique, Mr. Chairman. The same happened on the west coast, when the Government of Canada sought to abolish the potlatch system. They seized thousands of priceless artifacts--which is the wrong word, because they're artifacts to us, but they're very real parts of the culture to the first nations who lost those things. So when we even enter into this debate about search and seizure, it's alarming people because they have very real memories of this relatively recent history. While those of us around this table wouldn't have any sensitivity to this, as it didn't happen to us, we're talking about fairly recent history. This shameful part of our history is a very real and open wound to many first nations people, including when the government banned the sun dance on the prairies.

    Banning cultural strengths or cultural traditions and rituals was a way of deliberately undermining the strength of the traditional governance structure--and no one can say it wasn't. Though I know people are offended when we use the word “genocide”, it was deliberate cultural genocide along a very well-prescribed model that colonizers have used, not just in Canada, but also in Angola and Mozambique by the Portuguese, and in the areas of Tanganyika in Africa that the Germans colonized. There was methodology associated with colonizing, and the first step was to undermine the religions. You send in the missionaries first and undermine the traditional religion, and then you break up the traditional nuclear family structure, or whatever structure was in place traditionally. You break those up--by force, if necessary--by transplanting people and breaking up their groups.

À  (1025)  

We have records of this. The Hudson's Bay Company in Manitoba has the best historical records of what went on in the period from 1673...from contact, at least, and then beyond. There are actual personal handwritten notations of the Indian agents recording the progress of breaking up units. They would say, “In unit 6, good progress is being made. Three have died, and of the two left, they've had to seek refuge at the gates of the fort.” Therefore, that particular group was less of a problem. So there are literally records of the Indian agents deliberately and consciously undermining the traditional structure.

    Another element was banning the language. I remember hearing Matthew Coon Come speak prior to becoming the national chief. Years before he became the national chief, he was speaking at a group I was with, telling us about his experience of being seized and brought to a residential school. It is a terrible and heart-wrenching story of him being six years old when they came to his community to seize all of the children. It's almost one of those stories of the slaughter of the innocents in the Bible, which is what it invokes to me. People arrived, seized all of the children by force, and took them away against their parents' wishes.

    In Matthew's first experience at the residential school, he and his little brother were forced to take a shower. His little brother looked up at him and said in his own language, “Should I wash between my toes?” They'd never been in a shower before; they'd never seen a shower before. The residential school master swept into the shower room and beat them with a rod for speaking their own language, because they were not allowed to speak their language. So on his first day, at six years of age at the residential school, he was beaten for speaking his own language.

    He also told the story about the village the day the children were seized. There was dead silence in the village after the initial protest and the outrage at the children being taken away. Once they were gone, there was dead silence through the day, but all through the night, all you could hear were the parents weeping. You could hear crying from every house, as the parents wept because of their children being seized.

    This is very recent history, because I don't think Matthew is any older than I am.

    So when we fail to recognize the cultural sensitivity, or the impact of the things we do here today, it's just blatant Eurocentric ignorance--and deliberate and conscious ignorance, because we know better, or the very people around this table, at least, should know better.

    When you read people like Peter Farber, who has studied the linguistic patterns of first nations around North America and the pre-contact migrations of peoples...it was Farber who cited and brought to my attention the methodology associated with colonization and the deliberate, conscious steps that colonizers took. Well, we're extending that methodology by failing to acknowledge and recognize the cultural component of the things we do.

    I raised that one example at least of the Onondaga and the raid on the longhouse. Museums and private collections all over the country have these sacred objects that were raided and then seized. So any talk about search and seizure creates a level of apprehension that's quite justified.

À  (1030)  

It also begs the question, Mr. Chairman, of amendment G-11.8 seeking to involve or mandate that others assist in the search and seizure. Where else do we see this anywhere in this country? In the city of Winnipeg, do you have to assist police when they're conducting a search of your premises, even if it's not your domicile but a building you control? I think if the police arrived to conduct a search, you would fold your arms and phone your lawyer. But if the police said, “Will you give me a hand in packing this computer out to the truck, please”, you'd tell them to get stuffed--unless you chose to cooperate. If you chose to do that, that's one thing. And then it begs the question of what the sanctions are if a person refuses to assist the enforcement officer in seizing their possessions.

    The Chair: Thank you, Mr. Martin.

    Monsieur Loubier.

[Translation]

    Mr. Yvan Loubier Would one of my Liberal colleagues like to comment on my sub-amendment?

    Does that mean the First Nations' sacred places are of no importance?

    Mr. Chairman, I hope the silence of my Liberal colleagues is not an early sign of the fate that awaits my sub-amendment. With the help of my colleague and friend, Pat Martin, I have the sense that I have been able to illustrate the importance of sacred places, places of worship, places where the First Nations express their spirituality. It is absolutely essential that this be included in clause 29, that talks about searches and inspections. There has to be an exception for sacred places. I would find it very hard to accept that incidents such as the RCMP search conducted in a Long House back in 1924 could occur today.

    Humanity is increasingly aware of spirituality and the fact that such places of worship should not be violated. These sacred places are different from what we are used to seeing, and our conception of these sacred places is different from that of the First Nations. As I was explaining earlier, for us, the forest represents nature, the environment, a place to fish or hunt or trap. It is also that for the First Nations, but in addition to that, the forest is a temple, a cathedral, a place where First Nations' members can meditate, recharge their batteries and express their spirituality.

    Let's take the example of Dreamer's Rock on Manitoulin Island. As I was saying, for us it is just a place of beauty and a beautiful rock to gaze at. But for young Ojibway in the region, it is also a place of meditation and a place of spiritual exploration.

    In 2003, it may not be easy to show sensitivity to these cultural and spiritual differences, but as lawmakers, I believe we have a duty to be aware of them and show respect for them. The historical events that I referred to a few moments ago are very telling in that respect: the RCMP search of a Long House in 1924, the fate of the Aboriginal peoples' culture, habits, language, education, and quest for spirituality, the imposition of our religion, our way of doing things, our culture and our manner of dressing and caring for ourselves. We imposed all of that on the First Nations. Let's not make the same error again by showing a lack of respect for their places of worship and their sacred sites. Let's not allow history to repeat itself.

    When we met with representatives of the Federation of Saskatchewan Indians, in the northern part of the province, an Elder by the name of Mr. Jimmy reminded us of what had happened to his generation. I quoted his comments in full because I felt that his words really said it all. He talked about the fact that they had been taken away from their families, that their hair had been cut, that they had been sent to orphanages even though they had both their parents, that their religion, their language and their culture had been taken away. As he completed his comments, he said quite candidly that they still didn't understand why their culture had been taken away from them. This should give all of us food for thought. His testimony touched me very deeply, and I said to myself that if there was a way to contribute to the future of the Aboriginal peoples of Canada, that way would surely be to allow them to take full control of their destiny.

À  (1035)  

    Our fiduciary responsibility is such that our role was to support them in their efforts to rebuild culturally, economically and spiritually. Culturally, because in many communities, people are only now starting to again speak the first tongue of the First Nations. During a short break last evening, I was listening to a program on the Aboriginal Peoples' Television Network that told the story of a small community in the Maritimes that was rediscovering its language, its traditions, and even stories that were told again and again, extraordinary legends, including the one about the long ears, a tale passed on by word of mouth from elder to elder, that ended up in the community. I won't explain the legend, but children were being told a story in their aboriginal language—a legend about that community, the name of which escapes me for the time being but will come back to me in a moment, and the children who were all about six or seven years old, had wide eyes as they learned their language all over. There they were being given a philosophical interpretation of those legends, legends from their community that had been passed on from generation to generation. And we wanted to stop those legends from being heard; we wanted to break that spirituality and ensure that they would speak French or English, but we are now seeing that their language is alive and well, because the communities are rediscovering pride in being what they were before, and we have no right to destroy those dreams and hopes.

    When you see the profound problems the First Nations are experiencing, problem like suicide among youth, and health and delinquency problems, it is clear that everything begins with self-esteem; that is always the starting point. If you tell a young Aboriginal that nothing will change in the future, that young Aboriginal will have no self-esteem and will refuse to believe that his future can hold anything but grim prospects. And rather than tackling that problem and giving the First Nations all possible means of taking their situation in hand and, in some cases, rebuilding, we prefer to focus on enforcement, and just on enforcement, in a clause like this. Enforcement is an important issue for the First Nations.

    Indeed, we shouldn't have any trouble figuring out why 100% of the inmates at the Kingston Prison for Women are Aboriginal women. We forget that rehabilitation and prevention of crime and delinquency are important, and that in order to prevent crime and delinquency, the First Nations have to take their own situation in hand and once again control their destiny. As long as that control is not there, any hope we may have of their being able to start over again with something new that will continue to develop, will be dashed, generation after generation. It is impossible to consistently tackle issues like crime and delinquency and all the other problems facing the First Nations without looking at the root cause of those problems. And the root cause is the fact that the First Nations do not enjoy a right of self-determination, because the federal government is still keeping the First Nations under and preventing them from taking control of their future, just as it did 130 years ago with the Indian Act, and as it did even before that when it betrayed all the wampum that the First Nations and the Europeans based their agreement on.

    With Bill C-7, we are continuing to treat the First Nations like children, like vassals, and to disappoint the many hopes of young Aboriginals, the ones who are thinking of suicide and who believe their future prospects are bleak. The government continues to think that this is the way we are going to rebuild our relations with the First Nations and that they will regain the dignity they lost through our actions, and through the weight of history.

    So I hope that my amendment dealing with sacred places will find some receptive ears among my Liberal colleagues, because I believe it is a very important sub-amendment that will demonstrate, at least once, that the people sitting at this table have tremendous respect for the First Nations and for…

À  (1040)  

[English]

    The Chair: Thank you, Mr. Loubier.

    We'll have a recorded vote on the subamendment to amendment G-11.8

    (Amendment negatived: nays 7; yeas 2)

    The Chair: Mr. Martin, on the main amendment as amended.

[Translation]

    Mr. Yvan Loubier: That is an absolute disgrace!

[English]

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

    As disappointed as I am that we've seen fit not to include any reference to cultural recognition in this government amendment, or what will become clause 29, I have a number of issues I want to raise with this clause.

    I'm still not comfortable, Mr. Chairman, about the application of the Criminal Code sections being where they are and being referenced. Essentially, I believe this crossover, this uncertainty now... we have these band enforcement officers, who are a new category of enforcement officer or peace officer, enforcing aspects of the Criminal Code... or direct reference to the Criminal Code. I still don't know, I don't accept, if the government seeks to include the elements of sections 462, 489, and 490 of the Criminal Code, why those items weren't specifically included rather than citing the application of the Criminal Code. That begs a number of questions now.

    Also, my understanding of the law regarding search and seizure is that to be lawful, a search must meet three conditions. First, a specific statute or common law rule must authorize the search. I suppose that's being satisfied by clause 29. Second, the search must be carried out in accordance with the procedural and substantive requirements that the law provides. In other words, the enforcement officer had better be abundantly familiar with his or her authority as provided by clauses 23 or 29, and the training had better be sufficient. The issues around funding for training that we cited before stem from this.

    Now, the enforcement officer must be able to explain, within the purposes of protecting the police, protecting the evidence, discovering evidence, or by reference to some other valid purpose, why they conducted a search. So it's not sufficient that the justice of the peace understood. The officer himself had better be able to explain it, because that will be the person ultimately held to task. They must have subjectively had some reason related to the arrest for conducting the search and that reason must be objectively reasonable.

    So we're back to the reasonable grounds issue, which I'm still not satisfied we've addressed in the fullness it deserves. These are complicated provisions for any person to understand, never mind an enforcement officer when we're not sure what level of training they will have received.

    Again, it begs the question of where else in law are there similar provisions of search and seizure as they pertain to the requirements for others to be deputized to assist the search and seizure. Do people in Winnipeg have to assist the police when they're conducting a search? Well, I don't think so. I know they don't.

    In order to understand the parameters of this amendment, I'm wondering, for example, what would happen if an enforcement officer, believing he had to enforce a band law, wanted to go through the mail in the store on the reserve, maybe even open some of the letters in the mail? What in the legislation would prevent the officer from doing this? That search would be a blanket search of many persons for unknown offences. Generated by the interest in finding information about a specific offence, it would extend and creep out well beyond the parameters. Worse still, there's no requirement that reasonable or probable grounds for believing an offence has occurred exist before this type of search is authorized.

    So it doesn't address the issues I tried to raise earlier, that the reasonable grounds have to exist and there has to be enough reason to believe these grounds exist before the search takes place. Using the evidence found after the fact does not justify the search before the fact. The rights of people to maintain privacy are of great importance in any democratic society such as ours, and those issues are no less important on first nations lands.

À  (1045)  

    Our laws concerning the limits of the powers of all levels of governments to invade that privacy are clear. The Charter of Rights and Freedoms recognizes that in several of its provisions, including the provision protecting the security of the person and the provision against unreasonable search and seizure.

    How are these protections carried forward in Bill C-7? What do people do in this case if they feel their rights are violated? What's their avenue of recourse? It's not outlined in these provisions, Mr. Chairman. My argument is, what do people do if they feel their rights are violated by this provision? Do they go to court, and under what authority? Do they hire a lawyer? Who has the jurisdiction, and what kinds of proceedings would rule on this type of thing?

    My point is that this is an incredibly poorly written law. If it leads me to ask this number of questions, I can just imagine the flurry of questions that are being generated in the communities where this bill will have an impact. If members of Parliament have trouble putting this together and getting their minds around it, it will be very difficult for people living in isolated northern reserves, who are without access to libraries, the Internet, and all of the legal opinions we've had to research even the measly 10 minutes of debate that each of us is allowed, Mr. Chairman.

    People are going to invoke section 8 of the charter, that “Everyone has the right to be secure against unreasonable search or seizure”, as soon as this becomes the practice in communities. I expect there will be a number of challenges associated with the language contemplated here.

    The band enforcement officer needs to understand very important legal facts, and there's no assurance anywhere that they will receive any legal training. It's okay in a community like Six Nations, where they have a police force, and whose officers train with the OPP and are held to the same standard and same expertise. But that's a big, flourishing community, which is developed and sophisticated in many ways. I'm thinking of communities like Red Sucker Lake, Shamattawa, Pukatawagan, and northern communities, where the room for abuse is extraordinary--from what even we see as extraordinary powers.

    The concern I've focused on mainly, Mr. Chair, is the reference in amendment G-11.8 to the fact that:

The owner of--or any person who is in possession or control of--a place that is inspected or searched shall give the band enforcement officer or peace officer any assistance or information required to enable the officer to conduct the inspection or search.

    Mr. Chairman, I find that unreasonable and would like to move a subamendment to remove the word “shall” and substitute the words “may or may not” in proposed clause 29.1.

À  (1050)  

    The Chair: Mr. Martin, then, on your subamendment.

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

    I think it would take away from the absolute and prescriptive nature of this clause. We were assured at the outset of this process that this bill would not be prescriptive but would give guidance or options to first nations who may want to adopt standardized codes of conduct affecting the financial management and administration of the community. Rather than having enabling legislation giving guidance and offering alternatives to first nations, who may wish to have guidance from the federal government to establish some standardized codes of practice associated with governance, we've been critical all along that the inverse has been true. What we've seen is the very rigid and prescriptive language of “must” and “shall” and “will”, instead of “may” or “might” or “can”. We prefer language that provides options.

    In the words of my subamendment, “The owner--or any person who is in possession or control of--a place that is inspected or searched may give the band enforcement officer or peace officer... assistance”. I think it's reasonable that if they choose to, they “may”.

    I have an example of that in a friend of mine who was busted for growing marijuana. He was growing so much marijuana that it couldn't fit into the police officer's truck, so he had to loan his own truck to assist the police officer to load up that truck as well, so they could bring all of the marijuana down to the police station to enter as evidence. By loaning his truck to drag the evidence down to the police station, this individual willingly helped the police officer, because it wouldn't fit. But that was his choice; he chose to do that, which was an optional thing.

    My point is that this is certainly not mandatory anywhere else in the law. The police officer couldn't say, “Fire up your truck, and drag this dope down to the police station”. This wouldn't be tolerated in any other setting--yet it is contemplated by this legislation. I think this is fundamentally wrong. Again, it's imposing standards that don't exist anywhere else in the country in any setting, or in any other country, other than a fascist dictatorship. It would give this absolute power to someone who could be a poorly trained enforcement officer who would deputize someone and assign them duties.

    What about the rights of the person who is being coerced into participating? What about that individual's rights? Again, the way the minister featured this whole exercise was that it would somehow look after the rights of grassroots persons in communities, with the implication that somehow their rights weren't being adequately shielded, or were somehow being abused. I never saw evidence of that, and we didn't hear evidence of that in the many, many presentations made to the committee. But that was the story that was sold to us.

    Well, isn't this contradictory, then? The room for abuse here is unbelievable. Without my subamendment, who is going to supervise these isolated communities to make sure the enforcement officers aren't abusing the powers invested in them by this clause? I think the subamendment I put forward is reasonable. In fact, I think this whole bill should be combed through and be looked at under a microscope to find any other places where the language is so mandatory and so binding that it doesn't leave the option for first nations communities to opt in or opt out, or to avail themselves of this guidance, if they see fit and if they wish.

    I should note for the record, Mr. Chairman, that that was the tone of the legislation that was being developed prior to the parliament of 1997 concluding and an election being held. There was a piece of legislation dealing with governance and first nations on reserves and first nations communities, but the codes of governance contemplated in it were optional. You didn't see the resistance and the overwhelming opposition that we see now across the country as first nations gather together in numbers we haven't seen in modern times to voice their opposition to this bill.

À  (1055)  

    The protest is growing across the country. Today it's manifesting itself in Vancouver at the Assembly of First Nations confederacy in British Columbia where this is the subject of debate. First nations right across the country are coming together in opposition, and the protest is growing and beginning to resonate. I guess the impact we're looking at is a long hot summer, I'm predicting, in terms of the level of protest and the level of resistance—and righteous resistance.

    I wish them well. I think they're showing great courage. It's going to be—

    A voice: An Indian summer.

    Mr. Pat Martin:—a long Indian summer. I predict that my friend is absolutely right, because this legislation has the effect of poking people in the eye with a stick. This legislation has the effect of provoking, deliberately provoking, and insulting people in a way that won't be tolerated.

    It's best typified by the one member from the Liberal Party who's not here today but who, every time he shows up, sparks an outrage from the witnesses watching who won't tolerate that kind of colonial attitude. This whole bill, frankly, is of that nature.

    I was explaining how fundamentally wrong it is for this group of members of Parliament, who have no direct connection to first nations communities, to be dictating the minute terms and conditions by which a first nation must govern itself and conduct itself.

    I was hoping to have time... although there's rarely time in this setting that has been manufactured by the parliamentary secretary and others; the limitations of this process don't give us the time to debate in any fullness the issue of recognizing jurisdiction. But I will at times throughout the day and night be trying to introduce some of the conventional wisdom associated with the recognition of self-governance and how this bill stands in direct contrast and conflict with that prevailing wisdom.

    In argument along those lines, I quote again the Quebec session case where the court said,

A political system must also possess legitimacy, and in our democracy that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people.

    But there is more:

Our law’s claim to legitimacy also rests on an appeal to moral values, many of which are embedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the “sovereign will” or majority rule alone.

    In other words, just because the Liberal Party has the power today, it doesn't make it right and it doesn't give this process any legitimacy over the legitimate jurisdiction of first nations, especially to the exclusion of other constitutional values, and those values are expressed in section 35.

    So we argue on this side that self-government is protected and recognized by section 35 of the Canadian Charter of Rights and Freedoms, not created by section 35. This is the difference, that self-government is recognized by section 35, not created by section 35.

    That's where I could cite a number of authorities: Slattery's article on first nations in the Constitution; Burrows, constitutional law from a first nations perspective; Turpel, indigenous peoples' rights to political participation and self-determination... These are the authorities we should be guided by, not the whims and notions and anecdotal ad hoc information that stem from, first, the Canadian Alliance Party, and then picked up by the minister, when we hear Professor Kent McNeil arguing that in Canada:

Á  (1100)  

Parliamentary sovereignty therefore has to be redefined so that legislative jurisdiction is divided amongst federal, provincial, and aboriginal governments. The rule of law must also be redefined to include aboriginal laws as well as the—

    The Chair: Thank you, Mr. Martin.

    Mr. Hubbard.

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

    It's not easy to debate something as lacking in wisdom as that amendment is.

    We received the amendments in book form approximately three weeks ago, and the member who just finished speaking certainly had an opportunity to make suggestions or amendments or subamendments to those, and he comes today and writes into the record here. I would ask him, Mr. Chair... we haven't had many real responses in terms of how this system is to work.

    The concept is that the mover makes an amendment, he listens to the people around the table, and then, according to the rules we have established, he answers the questions that might be raised by other members. We have not seen that happen.

    With that, we would assume that the honourable member, in concluding debate on this particular subamendment, could give to our committee, and probably to anybody who'd be watching, the difference between “may” or “may not”. It certainly shows a lot of legislative experience. I don't have much, but I've been here a little while and I've read a few bills and a few acts over the years, and I've never seen before where somebody is given the option of “maying” or “maying not”.

    Basically, we speak in the English language, and maybe he is involved in something different, but we have the difference in law between “shall” and “may”. The honourable member from Winnipeg Centre, who is so involved in this debate and who is trying to prove to his constituents what a tremendous member he is, probably should go back, the blustering member from Winnipeg Centre. His own paper calls it a “filibluster”.

    I would hope that when he concludes his arguments on this, perhaps he can ask some of our experts here, including some people who are coming to our committee to offer suggestions in terms of how to improve legislation... Maybe he could offer to them his interpretation, in terms of English language and good law, the difference between offering someone the ability to “may” or “may not”.

    We'll ask for Mr. Martin's explanation of what “may not” means.

    Thank you, Mr. Chair.

Á  (1105)  

    The Chair: Thank you, Mr. Hubbard.

    Ms. Neville.

    Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you, Mr. Chairman.

    We hear references to debate here. I find myself thinking about debate. What we're seeing is in fact a performance for an audience, and I find myself thinking frequently of the words of the great actor John Gielgud, who said he never speaks unless he can improve on silence. I wish those actors here today could take heed of that.

    But that's not my point today. My point is really to ask the witnesses about some issues around self-governance.

    We've heard much about self-government, and I don't think there is anyone around this table who is not committed to the concept of self-government. I'm wondering if the witnesses could provide for the committee some information as to what progress has taken place on self-government since the launch of this bill, the First Nations Governance Act, in April 2001. I think it's important that we know that and that it be on the record.

    Mr. Warren Johnson: Mr. Chairman, as the minister has publicly noted, there are approximately 80 active self-government tables taking place nationally. From the information I have, since its launch the first nations governance initiative, as I think the minister was at pains to enunciate, was not an either/or exercise as a tradeoff or a substitute for self-government. A variety of milestones have been reached at various tables. Members will remember an earlier discussion where we had to make a distinction because there is a variety of self-government tables: there are sectoral self-government tables, comprehensive self-government negotiations, and self-government negotiations combined with the claims process.

    In terms of the comprehensive self-government tables, for the Beaufort-Delta table, the Inuvialuit, and Gwich'in, the two tribal groups in that area, signed an AIP on April 16, 2003. The West Bank First Nations have initialled a revised final agreement on April 11, 2003. The United Anishnaabeg Councils initialled a final agreement March 1, 2002. We have an initialled framework agreement with the Treaty 8 and an AIP with the Sahtu Dene and Métis of Deline.

    At the sectoral self-government tables, Fort Frances signed an AIP on education on November 12, 2002. The Anishinabek--the Union of Ontario Indians--signed an AIP on education on November 29, 2002. The Blood Tribe governance and child welfare AIP negotiations have been pleaded and an AIP is anticipated to be signed there shortly.

    Under the First Nations Land Management Act --as we noted earlier, it's a form of sectoral self-government--six first nations have ratified and are operating under it now. Of the 30 in the process, we expect 15 ratification votes this fiscal year. There could be 21 there by the end of the year, depending on the results of those votes.

    That's at the sectoral comprehensive tables. In terms of the claims-related tables in the B.C. treaty negotiation process, the In-SHUCK-ch Council in eastern Fraser Valley has initialled stage three of their framework agreement; the Lheidli T'enneh Nation has anticipated concluding an AIP by this summer; the Sliammon anticipate their amended AIP again by this summer; and there are at least two others in that category in the treaty process in B.C.

    We also have the Conseil tribal Mamuitun in Quebec, who initialled an AIP d'ordre général on June 25, 2002. The Labrador Inuit signed their AIP on June 25, 2001. The final agreement for the Tlicho--the Dogrib in the Northwest Territories--was initialled in March of this year; it's a final agreement on a comprehensive self-government agreement.

    The Tr'ondëk Hwëch'in signed their final agreement on January 13, 2002. The Kluane initialled their final agreement on April 11, 2003. The Carcross Taglish and the Kwanlin Dun have completed their final negotiations, and their initialling is scheduled for May and August respectively of this year.

    In terms of anticipation, I've already mentioned the FNLMA issues this fiscal year. Under the B.C. treaty process, my colleagues in the claims and Indian governance sector of the department understand that there are six AIPs in addition to what we've targeted to be completed this fiscal year, and there are four more AIPs, or agreements in principle, expected elsewhere in the country.

    The last piece in that would be the potential for the work for the pilot first nations in Alberta and the complementary legislation being developed to complement the First Nations Land Management Act with another piece of optional sectoral self-government legislation dealing with oil and gas and money management for first nations. That could be tabled in the House as early as this fall.

    That's the picture since the beginning.

Á  (1110)  

    Ms. Anita Neville: That's very helpful. Thank you.

    The Chair: Thank you, Ms. Neville.

    Monsieur Loubier.

[Translation]

    Mr. Yvan Loubier: Thank you, Mr. Chairman.

    I was listening to the Parliamentary Secretary's comment to the effect that three weeks ago, we were given an opportunity to table amendments, and that additional amendments are still being tabled. I would remind the Parliamentary Secretary that three weeks ago, we said that we had much too little time to draft complete amendments. I hope that you are not going to criticize us for thinking about the different clauses of the Bill as we go along and trying to find ways to improve them. I hope you won't criticize the fact that we are trying to do our work properly and use our brains here. If you don't want to make a contribution to the debate by bringing forward innovative ideas to improve the Bill, that's your problem, but don't try to prevent us from moving amendments for that purpose, as Mr. Martin did with his sub-amendment to clause 29.1 proposed by the government in its amendment.

    I agree with the colleague who spoke : this is in fact a performance. But I'd say it's a pretty sad performance that the First Nations are witnessing, given the attitude the federal government has taken to this whole issue right from the outset. It's a very sad performance; on that we agree. It's also pretty sad to move an amendment like the one I moved earlier regarding an exception for sacred places, for places where the First Nations express their spirituality, when it comes to conducting searches and inspections. I'm asking that you consider the possibility that sacred places be deemed an exception for the conduct of searches and inspections, and you are refusing to recognize those sacred places, those places where the First Nations express their spirituality, as exceptions to places where searches and seizures should be performed. So, I completely agree that this is a sad performance indeed, and I'm extremely uncomfortable about the whole thing.

    To my knowledge, this is the first time in a bill that people are being forced to help out a band or peace officer in the performance of his duties. And Mr. Martin gave an excellent example earlier when he talked about the seizure of cannabis plants, where you wouldn't be forcing someone to lend his truck to police officers to cart away all the material that might be there.

    In my riding, I asked the police forces whether, with respect to seizures of marijuana plants in the fields of farmers who had been threatened with death if they told anyone that the plants were there, it would be possible for Army personnel, for example, to come and help them pull out the plants. The argument I was given at the time—and I raise it today to support Mr. Martin's sub-amendment—was that Army personnel were not trained to do that. They might go into the field and destroy evidence needed for the investigation. So, if Army personnel, who are used to doing this sort of thing—during the ice storm in Quebec, we saw just how effective they could be in cleaning up places destroyed by the ice—and who are perfectly capable of doing a proper job can't help pull up cannabis plants in fields because peace officers are afraid they'll destroy the evidence they need for a prosecution, I really wonder why we have a reference here that says :

The owner of—or any person who is in possession or control of—a place that is inspected or searched shall give the band enforcement officer or peace officer any assistance or information required…

    I can certainly understand the part about “information”, but the words “any assistance” leave it quite open-ended, since the owner or person apparently in control—because we haven't yet resolved this business of the owner or person in control—could destroy evidence that is fundamental for proper investigation of the offence.

Á  (1115)  

    I don't know whether it is possible to amend a sub-amendment. I'm going to ask the question directly in a few minutes, to find out whether it can be done, but the fact is that even though Mr. Martin's sub-amendment improves the language, I, personally, would be in favour of prohibiting a band officer or peace officer from forcing people to help him carry out his seizure or other work on the premises, precisely to avoid arriving at a situation I was presented with, to the effect that people with no experience at performing that kind of seizure could destroy evidence needed both for the prosecution and for the other party, which also concerns me. That should actually be noted. In any case, this Bill will never come into force; that's for sure.

    But supposing such a provision were in another Bill; I think we need to ascertain what kind of effect it could have. It could abort certain prosecutions because the evidence had been wiped out, compromised or half-destroyed by people with no experience at handling such evidence.

    I'll put the question directly to the clerk. Is it possible to amend a sub-amendment?

    The Chair: Put your question to the Chair.

    Mr. Yvan Loubier: Right. I will be supporting this sub-amendment, which I believe to be appropriate, but personally, I would have gone much further than that, given the comments I just made.

    Mr. Martin's sub-amendment certainly improves the language, and this is what we have been doing from the very beginning, whether you liked it or not. We tried to make improvements, and you are criticizing us because we tried to do that. We have even worked on the government's behalf, because we did try to change some language we knew would be problematic in terms of legal action that could be taken against not only the federal government, but the band councils. These were points that were made during our hearings and were among suggestions we received in the many briefs presented here in committee, and which we had an opportunity to read. I hope everyone sitting at that table read the briefs that we received, and that the various witnesses we heard from, including certain First Nations' members, the Canadian Bar Association, the Quebec Bar, the Aboriginal Bar Association, the First Nations we visited, and other experts as well, didn't appear before the Committee for nothing. I hope you have read those briefs, or at least the summaries that have been available for some weeks now.

    What we tried to do was reflect these problems and reflect the views of the people who devoted their time and energy to writing a brief or appearing before the Committee.

    So, you shouldn't be upset with us for trying to reflect what we heard and carry out our own analysis, based on what we heard and the opinion we have formed about the Bill and the different clauses of that Bill. Criticizing us for doing that is tantamount to criticizing us for doing our job.

    To paraphrase my Liberal colleague who spoke just before me : the only time we ever speak is to improve on silence. I'd say that may be the case here, but the fact is you must be extremely unhappy as a parliamentarian, because your primary responsibility is to debate the issues. So, if you never improve on silence because you comment only very rarely, you should be questioning your future. How, by remaining silent, can one possibly improve a Bill that needs to be improved from start to finish? That is, without doing highly spiritual hata yoga exercises where people can communicate without words.

    But so far, we haven't attained that level of spirituality, and I certainly don't think you have either, given that you have completely dismissed a sub-amendment dealing with respect for sacred places and places of worship. I don't think you have attained a level of spirituality that allows you to communicate in silence and without words. Unfortunately, we still need words. If we ever reach a time where we live in silence, we will be great sages, and once we have become great sages, we will not introduce bills as stupid as this one; I'm sure of that.

    Mr. Martin's sub-amendment is a sub-amendment that deserves to be supported. I would have gone much further than that, but that is what the exercise is all about. If we had initially been given more time to draft other amendments… We had to rush through all of this. We only had three or four days to read all the briefs, but we did read them. I can bear witness to the fact that Mr. Martin…

Á  (1120)  

[English]

    The Chair: Thank you.

    Mr. Martin.

    Mr. Pat Martin: Thank you, Mr. Chairman, for an opportunity to speak again to my subamendment, which would mean essentially that the owner of or a person in possession or control of the place being inspected or searched may or may not give the band enforcement officer or peace officer assistance--in other words, would make this an optional clause that contemplates the possibility, but leaves it up to the community, or in fact in this case the individual, to exercise his or her right not to participate.

    The reference to John Gielgud was good. It was very nice, and I accept it in the spirit, I'm sure, of generosity that was intended: that if you can't improve on silence, you shouldn't say anything at all. But in this case, silence is shame, I maintain, and accusing us of playing to an audience by trying to legitimately improve this bill is shameful.

    What's doubly shameful is the script the Liberal members are following. They have a manual that's been issued to them with all the arguments and all the rationale, and perhaps even legal opinions, that we have not been given access to, which is shameful, I think. To deliberately deny us access to that same information is a shameful thing.

    I understand it's part of a public relations strategy--an expensive communication strategy on the part of government to try to sell the bill--and I find that Liberal members are simply actors in that public relations strategy. At a certain point in the script, the member starts by abusing me a little and then goes back to the script and asks a scripted question of the officers here, who have the scripted answer ready for them and who cited a series of agreements in principle that we know, or anybody here should know, are not ratified by our first nations.

    I don't mind a recitation of the victories or the achievements that have been made in genuine negotiations toward true self-governance, but it's misleading to list a series of agreements in principle--or AIPs--as part of those successes, because they're not yet ratified by first nations.

    I'm heartened by the fact that these negotiations are going on, but I'm critical of the fact that we intend to spend $550 million on something else entirely that will take energy and resources away from those tables, putting them towards implementing a bill nobody wants and that people resist--$550 million. The very people who would be affected by this bill have opposed it and reject it. The government is misleading in trying to imply that there's broad support for the bill in anything they've said following their script.

    Speaking to my amendment, Mr. Chairman, I have to point out that the government amendment we seek to change doesn't take into full consideration the importance of the subject matter. Evidence an enforcement officer might seize would be ruled inadmissible by a judge if a search and seizure has not been properly conducted. Even if the evidence is crucial to the case, it would be thrown out of court::

The Supreme Court of Canada has said that use of evidence (even so-called “real” evidence such as narcotics, weapons, etc.) obtained as a direct or indirect result of a breach of the accused's Charter rights will generally make the trial--and any resulting conviction--unfair, and should not be permitted.

    We're asking a great deal in asking first nations enforcement officers to be familiar with all the intricacies of recent Supreme Court decisions as they pertain to the charter right to privacy in section 8. Why are these provisions for enforcement officers not provided in the default regulations? This is interesting. It would mean that the first nations could deal with these issues in the codes, which they can pass, and be more sensitive to cultural values. That is a question that's been raised with me.

Á  (1125)  

    One of the other situations that is somewhat parallel to what we're doing here is with the national parks that may lie within a province. From a jurisdictional point of view we should explore that relationship, where a park warden or a peace officer or an enforcement officer in a national park that lies within a province--we have a similar crossover of jurisdictions here--may:

enter and search any place and open and examine any package or receptacle in accordance with [the] warrant issued...at any time during the day or, if so specified in the warrant, during the night

    --and seize any thing they believe on reasonable grounds is or has been possessed or used in connection with an offence under this act.

    So here's comparable language dealing with national parks. I don't know if there's been any kind of analysis or comparison done about the language chosen here, which far exceeds the language chosen as it pertains to national parks and provincial jurisdiction: “where on ex parte application the justice [of the peace] is satisfied by information on oath” that there have been reasonable grounds to believe that there is in any place....

    Mr. Chair, I believe we have a quorum issue.

    The Chair: There's a quorum call.

Á  (1128)  

---

Á  (1129)  

    The Chair: Mr. Martin.

    Mr. Pat Martin: Actually, Mr. Chairman, I don't know why the parliamentary secretary is so abusive towards me. I'm only trying to help him understand the issue.

    In the case of national parks that lie within a province, the language that applies to enforcement officers or park wardens or peace officers is quite different from the language provided for enforcement officers or peace officers in first nations. I'm wondering why they didn't draw from precedent in other, comparable cross-jurisdictional settings. The language there reads: where “a justice of the peace, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that there is in any place”, including a building, boat or other conveyance, “or in any package or receptacle”, inside or outside the park, an animal, fish, bird, part of an egg, bird, fish, firearm, trap, device, etc.--all those things--then the “park warden or enforcement officer named in the warrant” can “enter and search the place or...open and examine the package or receptacle”, subject to the conditions specified in the warrant.

    There's no mention here anywhere of being able to commandeer, or to deputize the person being accused of the offence, forcing them to be a sherpa for them and carry out the bird or the animal. You don't have to strap the moose onto your own back and carry it down to the warden's office for them to use it as evidence against you in a proceeding--or a bear, even; a bear or, for that matter, any mammal you can think of: any furry primate, or anything you might find.

    We'd like to know specifically what the difference is between a band law and what we might call a “real law”. How would the Supreme Court look at this when a case gets to the court? I point out the difference between these things.

    When I was researching this question of search and seizure--when I took an intermission last night and had to try to pull together information on these things--I was amazed at the complexity of the issue. The Supreme Court has had dozens of cases, and law professors give courses on this subject and write books. Some of those books are on the difference between “shall” and “may”, or “will” or “will not”, or “may” and “may not”. How do we expect enforcement officers to understand all of this when they have to decide about a search and seizure? And what's going to be the training, or the training funding? Is that funding going to come from that $550 million the government intends to...?

    I would suggest the money they're spending on this failed public relations campaign to sell this bill would be better applied to giving some advance training to the enforcement officers who might wind up on the problem end of this stick. We dealt earlier with how you fire an enforcement officer. We have a clause dealing with how you get rid of an enforcement officer if they breach their duties. They wouldn't even consider that those enforcement officers deserve representation in the event of being accused of doing something wrong.

    There are situations when an offence has not been committed but people are planning to commit an offence under a band law. Would the enforcement officer be able to conduct a search under those circumstances? Is there such an offence as conspiracy to breach a band law, as there is conspiracy to commit an offence under federal law? It's another example of what happens when we get half a set of laws. It's like half a cow; it doesn't stand up very well.

    We have several alternatives before us. The Royal Commission on Aboriginal Peoples set out a certain legal regime. The Penner-Jamieson committee set out a legal--

Á  (1130)  

    The Chair: Thank you, Mr. Martin.

    Now for a recorded vote on subamendment 3 to G-11.8, clauses 29.1 and 29.2. We're not voting on the clause; we're voting on the third subamendment.

    (Amendment negatived: nays 7; yeas 2)

    The Chair: Now, Mr. Hubbard, closing remarks on the same amendment, as amended.

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

    We're ready for the vote on it. I hope no one believes that somebody thinks we have to carry all these animals around. The legislation before us is quite straightforward. It doesn't differ that much from anything else. But above all, we'd like to point out that this is legislation that will be put forward by chiefs and councils. It's not something the honourable member or someone else is to do.

    So we're ready for the vote, Mr. Chair.

Á  (1135)  

    The Chair: A recorded vote on amendment G-11.8 as amended. It makes reference to the creation of a new clause, 29.1 and 29.2 together. Are we clear?

    (Amendment agreed to: yeas 7; nays 2 )

    The Chair: I'm told that by adopting the amendment we have in fact adopted clauses 29.1 and 29.2. That's the advice I'm getting.

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

    The Chair: I'll hear your point of order, but that's the advice I've received.

    Mr. Pat Martin: As a point of order, Mr. Chairman, that denies us the opportunity to debate whether clause 29.1 and 29.2 shall carry. We're entitled to this debate. I mean, it's a motion as to whether clause 29.1 shall carry, and any motion is subject to debate of the committee. We were simply debating amendments to the clause, not the carriage of the clause. We debated amendments and subamendments.

    The Chair: Okay, you've made your point.

    Mr. LeBlanc, you coached me to do this, so we'll ask you to explain it.

    Mr. Jeffrey LeBlanc (Legislative Clerk): The reason you don't subsequently vote on these two new clauses is that the committee has already decided by adopting the amendment to insert them. You don't have to ask the committee to adopt them once again. It would be deciding the same question twice.

    It is not the same as a clause that already exists, which you amend. You can then debate the clause separately. But the entire text of the new clauses was contained in the amendment, so to vote on them again would just be deciding the same question.

    The Chair: I accept the advice and I'm ruling that the issue is done with, terminated.

[Translation]

    On a point of order.

    Mr. Yvan Loubier: Has the government's proposed article 29.1 already been amended by Mr. Vellacott's sub-amendment? Did his sub-amendment pass? So, that means we have to debate proposed clause 29.1, as amended. That's different. Proposed clause 29.2 has not been amended, but clause 29.1 has. So, the question has to be put, and we have to debate it.

    Mr. Jeffrey LeBlanc:

    You had an opportunity to vote after passing Mr. Vellacott's sub-amendment. You had a chance to pass the amendment, as amended by the sub-amendment. You even had an opportunity to move other sub-amendments, which both you and Mr. Martin did.

    Mr. Yvan Loubier: But earlier, the same principle…

    The Chair: So, what is your point of order…

    Mr. Yvan Loubier: What is the difference between this situation…

    The Chair: That is not a point of order. The subject is now closed; we have already dealt with that. A point of order is not a question put to the clerk. A point of order is a point of order. That is settled; we have already completed our discussion of that.

[English]

    Colleagues, the question is done. It's dealt with.

    Before we go to the next amendment, in 23 minutes we will have been at this clause-by-clause for 90 hours. This is our thirteenth week on this bill. We spent three months last year on this bill.

    I have endured insults, abuse, and you have all endured that. We have had people in the audience controlling parliamentarians. I feel it is the duty of our House leaders to not allow this to happen. They have a duty to ensure the proper functioning of Parliament and of committee.

    I endured all of this because my final responsibility is to assure that work progresses. I endured it because it allowed work to progress, even during the protests.

    I now feel that work is not progressing. I will adjourn this meeting now and inform you that you will be receiving advice that on Monday we will be sitting from 3:30 until 9:30. We will order dinner.

    The day we have some kind of consensus or solution from our House leaders, who are supposed to represent all of us--all of our five House leaders--then we could, maybe, increase the number of hours. If the government is serious about this legislation, they will come to the assistance of the chair of this committee.

    At the present time, we're not progressing. I'm adjourning until 3:30 Monday.