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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Thursday, January 30, 2003

0905

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

Ms. Pamela Paul (President, National Aboriginal Women's Association)

0910

0915

0920

The Chair

Ms. Pamela Paul

The Chair

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

0925

Ms. Pamela Paul

Mr. Brian Pallister

Ms. Pamela Paul

Mr. Brian Pallister

Ms. Pamela Paul

0930

Mr. Brian Pallister

Ms. Pamela Paul

Mr. Brian Pallister

Ms. Pamela Paul

Mr. Brian Pallister

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

0935

Ms. Pamela Paul

Mr. Charles Hubbard

Ms. Pamela Paul

Mr. Charles Hubbard

Ms. Pamela Paul

Mr. Charles Hubbard

Ms. Pamela Paul

0940

The Chair

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

Ms. Pamela Paul

Mr. Maurice Vellacott

Ms. Pamela Paul

Mr. Maurice Vellacott

Ms. Pamela Paul

Mr. Maurice Vellacott

Ms. Pamela Paul

0945

Mr. Maurice Vellacott

Ms. Pamela Paul

Mr. Maurice Vellacott

The Chair

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

Ms. Pamela Paul

Ms. Nancy Karetak-Lindell

Ms. Pamela Paul

Ms. Nancy Karetak-Lindell

The Chair

Ms. Mary Hurley (Committee Researcher)

Ms. Pamela Paul

0950

Ms. Nancy Karetak-Lindell

Ms. Pamela Paul

Ms. Nancy Karetak-Lindell

Ms. Pamela Paul

Ms. Nancy Karetak-Lindell

Ms. Pamela Paul

The Chair

Mr. Maurice Vellacott

Ms. Pamela Paul

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

0955

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Ms. Pamela Paul

The Chair

1000

Mr. John Reid (Information Commissioner of Canada)

1005

The Chair

Mr. Maurice Vellacott

1010

The Chair

Mr. Maurice Vellacott

Mr. John Reid

Mr. Maurice Vellacott

Mr. John Reid

Mr. Maurice Vellacott

Mr. David Chatters (Athabasca, Canadian Alliance)

Mr. John Reid

Mr. David Chatters

The Chair

Mr. John Reid

1015

The Chair

Mr. John Reid

The Chair

Mr. David Chatters

The Chair

Mr. John Reid

The Chair

Ms. Mary Hurley

The Chair

Mr. Jim Aldridge (Co-Chair, Joint Ministerial Advisory Committee)

Mr. Roy Bird (Co-Chair, Joint Ministerial Advisory Committee)

1030

1035

Mr. Jim Aldridge

1040

1045

1050

1055

1100

1105

1110

The Chair

Mr. Maurice Vellacott

Mr. Jim Aldridge

1115

Mr. Maurice Vellacott

Mr. Roy Bird

Mr. Maurice Vellacott

Mr. Jim Aldridge

1120

The Chair

Mr. Charles Hubbard

Mr. Jim Aldridge

1125

The Chair

Mr. Charles Hubbard

The Chair

Mr. David Chatters

1130

Mr. Roy Bird

1135

Mr. Jim Aldridge

The Chair

Ms. Nancy Karetak-Lindell

Mr. Jim Aldridge

1140

The Chair

Mr. Jim Aldridge

The Chair

Mr. David Chatters

The Chair

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

The Chair

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

Mr. Jim Aldridge

The Chair

Mr. Jim Aldridge

Ms. Anita Neville

1145

Mr. Jim Aldridge

The Chair

Mr. Maurice Vellacott

Mr. Jim Aldridge

Mr. Maurice Vellacott

Mr. Jim Aldridge

Mr. Maurice Vellacott

Mr. Jim Aldridge

Mr. Maurice Vellacott

Mr. Jim Aldridge

1150

The Chair

Mr. Rick Laliberte (Churchill River, Lib.)

The Chair

Mr. Jim Aldridge

The Chair

Mr. Jim Aldridge

1155

The Chair

Mr. Roy Bird

1200

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 018

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, January 30, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

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

This morning we're pleased to welcome, from the National Aboriginal Women's Association, the president, Ms. Pamela Paul, and a board member, Ms. Shirley Gagnon. We invite you to make a presentation, which will be followed by a question and answer period. Depending on the time we have, I will designate maybe five minutes per question and answer. Therefore, if my colleagues take too much time asking the question, it robs you of some of your time. The strategy for you, if you don't have enough time, is to include that response in answering the next question of another member, and you will have an opportunity for closing remarks.

So, we invite you to make your presentation.

Ms. Pamela Paul (President, National Aboriginal Women's Association): Thank you.

I'd like to thank the committee for the invitation to bring the voices of the National Aboriginal Women's Association to the debate on the First Nations Governance Act. The National Aboriginal Women's Association, NAWA, believes, if democracy and good governance are to be achieved in our communities, the rights of aboriginal women must be given serious consideration. We believe every effort must be made to ensure that the voices of aboriginal women are given full and equal participation in the governance process at all negotiating tables. In keeping with this philosophy, NAWA negotiated with the Minister of Indian Affairs for NAWA to be a full parter at the joint ministerial advisory committee on the first nations governance initiative. As a result, a wide range of aboriginal women from across Canada with varied experiences were able to contribute and provide debate and guidance to the process.

Its board of directors felt it was vital that aboriginal women participate in the upcoming discussions over the proposed legislation. For too long aboriginal women have been left out of the political process. The first nations governance legislation affects all first nations women and their children in Canada, regardless of where they live. Aboriginal women must ensure that they are well informed of the impact and the content of this legislation and able to make decisions based on this acquired knowledge. We have encouraged our members and individuals to make their support, concerns, or criticisms regarding Bill C-7 known to this committee, and we have held nine information sessions and one national meeting to inform women about the contents of Bill C-7. Response to Bill C-7 across the country has been varied. Many of the women felt the bill had some fundamental ideas that could benefit communities, while others felt there was not enough understanding about it, and still others were frightened by the proposed changes.

As a national organization whose purpose is to conduct policy research and analysis on issues affecting aboriginal women, NAWA has not taken an overall position for or against Bill C-7. NAWA believes aboriginal women have a right to know what is contained in such sweeping changes to the Indian Act. It is for first nations individually to decide whether these proposed amendments meet their self-government needs and respect their inherent rights. This is why we travelled the country delivering information sessions. Aboriginal women should be a part of the decision-making process in each first nation. However, this in itself is problematic, in that many first nations people do not understand what is contained within the Indian Act today. NAWA's goal is to examine key aspects of the bill from a perspective sensitive to aboriginal women.

That being said, NAWA does have concerns relating to Bill C-7 that we wish to bring to your attention. The three we've identified are the most important to us. The first is that there is too much power given to band enforcement officers. The second is the use and definition of “band member”. The third is the amendment to the Canadian Human Rights Act.

The First Nations Governance Act includes a number of provisions that grant the band council the power to appoint band enforcement officers. However, the proposed powers are too wide and exceed powers that are now available to law enforcement powers of other governments in Canada. This includes the right to enter homes without reasonable grounds. This particular power may see women being evicted from their homes and their community if they are considered to be in violation of a band law or on the whim of the elected leadership or other members of the community.

The main concern we have with the band enforcement officer provision is that band enforcement officers are not police or judicial authorities, nor are they trained as such to handle infractions relating to the increased authority of first nations. We know the federal government typically fails to commit adequate financial resources to support new law-making authorities or other legislative changes. Under the FNGA first nations have been given powers of enforcement, and if they overstep their authority or if the new powers themselves constitute charter violations, it will be left to first nation individuals to either find the resources to challenge enforcement measures or just take it.

It is of some concern to us that the only complaint mechanisms, other than the courts, that this bill contemplates are, again, band-created mechanisms, with no assurances that the principles of natural justice or procedural fairness will be applied. NAWA was very disappointed that the JMAC recommendation for an independent mediator office is not reflected in this bill, nor the recommendation for an ombudsperson, nor the recommendation to follow up establishing much needed governance resource centres.

¿ (0910)

There has been no discussion as to how band laws would be enforced under this new authority. There are no other communities in Canada that would be given such powers of enforcement without working out some kind of system that properly addresses adjudication and financing of adjudication and appeals. It is conceivable that a first nation might issue traffic tickets, but who would enforce this? There is no infrastructure in place. There's also the risk that the band enforcement officers not trained in law would infringe on an individual's rights under the Canadian Charter of Rights and Freedoms. The whole approach with the band enforcement officers suggests law enforcement on the cheap, at the risk of fundamental charter rights. There is no appeal process within the proposed legislation to ensure protection of constitutional rights against unlawful search and seizure.

The second concern we have is related to band membership. One of the most pressing concerns we have with the FNGA is the use of the word member. The 1985 amendments to the Indian Act, still popularly known in first nation communities as Bill C-31, redefine the use of the “band member” within first nation communities, and this has created as many new problems as the old problems it aimed to address.

Bill C-31 amended various sections of the Indian Act, in particular the Indian status and band membership provisions. While Indian status would continue to be determined by the federal government, Indian status was restored to those women who lost it under paragraph 12(1)(b) and other similar discriminatory sections of the status and membership provisions. First-generation children of restored persons were granted first-time status. For the first time legal status as an Indian and band membership are now separated under the Indian Act. An Indian band could now take control of its own membership from the Department of Indian Affairs by following the procedure set out in the Indian Act. Once a band took control of its membership, people could be added to or deleted from the list of members according to the rules established by the band in a membership code. Individuals are registered under subsection 6(1) of the Indian Act if they are deemed to have two registered Indian parents. If a person can only demonstrate that they have one registered Indian parent, they are then registered under subsection 6(2). If an individual registered under subsection 6(2) has a child with a non-registered person, the child is not entitled to registration.

Since the federal government did not protect the rights of people registered under subsection 6(2), many Indian bands created band membership codes that do not allow people registered under subsection 6(2) to have band membership. Membership codes that restrict these people from having membership with the band limit an individual's participation in the governance of the band and exclude them from participation in many civil and political rights within the first nation.

The creation of subsection 6(2) has also lead to situations where members of the same family might be registered in different categories, which then lead to differing political rights. The children of women who married out prior to 1985 are a specific group singled out for this discriminatory treatment, while the children of men who also married out prior to 1985 are not. This residual sex discrimination that flows from federal policy decisions in the 1985 amendments themselves is currently being challenged as a violation of charter rights in the Perron case recently heard by the Ontario Superior Court of Justice, decision pending.

In those communities that have limited band membership to only individuals who are registered under subsection 6(1) voting rights, land transfer rights, and possible residency rights will remain intact and have not been addressed by the use of the word member within the FNGA. Anyone who is registered under subsection 6(2) and resides or is affiliated with a first nation community that does not grant band membership to individuals registered under subsection 6(2) will not be able to vote on any of the codes the first nation would be creating under the FNGA.

The third concern we have is the Canadian human rights exemption. One of the most important aspects of the proposed FNGA from a first nation women's perspective is the proposal to remove the Indian Act exemption in the Canadian Human Rights Act. This exemption removes from review under the act decisions by band councils or the federal government that are taken under the authority of the Indian Act.

¿ (0915)

First nation women's organizations have long urged the federal government to remove the Indian Act exemption contained in section 67 of the Canadian Human Rights Act. In fact, first nation women firmly opposed this exemption when the bill introducing the Canadian Human Rights Act was debated by Parliament in 1977 and 1978. The government of the day rationalized this measure as temporary, pending comprehensive reform of the Indian Act through discussions with the National Indian Brotherhood. This never materialized. Even when the act was amended in 1985 to remove some of the sex discrimination in the Indian status and band membership entitlement provisions, the exemption remained. I doubt that the parliamentarians of the day contemplated temporary as 25 years and counting.

Since 1978 first nation women have frequently sought the protection of the Canadian Human Rights Act where it applies to employment and the provision of government services on reserve. First nation women have done so by probing the scope of the section 67 exemption as it applies to decisions both by the federal government and by band councils. In some cases they have succeeded in having the Canadian Human Rights Act apply on reserve, in some cases they have not. First nation women have brought cases involving all manner of discrimination covered by the act, including discrimination based on sex.

While section 67 does not exempt all decision-making on reserve from review under the Canadian Human Rights Act, there is a very wide field of decision-making by band councils and by federal authorities that is exempt. Several experts in recent years, most notably the Canadian Human Rights Act review panel, have studied the substantive legal effect of section 67. I won't try to explain the technicalities of the operation of section 67, as they have been well explained by other authorities. What is important to note is that the panel, chaired by former Supreme Court of Canada Justice La Forest, concluded that section 67 produces anomalous results with regard to which decisions are subject to review and which are not, and that those anomalies cannot be sensibly justified. Other experts, including the joint ministerial advisory committee on the first nations governance initiative, agree with the panel's conclusion. NAWA agrees with this conclusion.

The need for human rights protection at the community level, especially for first nation women, is real. It is clear, for example, that first nation women have experienced various forms of discrimination imposed by the federal government and by band councils. First nation women continue to be vulnerable to discrimination based on sex, race, marital status, family status, and on multiple grounds simultaneously. However, the section 67 exemption excludes a large number of potential claims. It too often prevents the application of the protections and remedies offered by the Canadian Human Rights Act. You might ask, what about the Canadian Charter of Rights and Freedoms? While charter protections likely do apply to a large number of situations on reserve, charter litigation is costly, time-consuming, and beyond the means of the vast majority of first nation people as individuals.

This disturbing and conscious decision to exclude first nation people in reserve communities from the protection of the Canadian Human Rights Act is contrary to the spirit, intent, and substantive promise of international human rights standards. First nation people and first nation women are entitled just as much as other human beings to locally accessible complaint mechanisms and to remedies for human rights violations, whether these violations occur on reserve or off reserve. Canada has so far failed to ensure that such mechanisms and remedies are available in the Indian Act context, whether by recognizing first nations jurisdiction to enact human rights legislation or by amending federal law.

Consequently, NAWA was pleased to see the federal government finally respond to the long-standing injustice represented by section 67 of the Canadian Human Rights Act, and we applaud the intent of removing the exemption and adding an interpretative clause. However, we feel that the proposed wording of the interpretative clause has some serious deficiencies. If the intent of the interpretative clause is, as the Canadian Human Rights Review Panel suggested, to signal the need to take account of collective aboriginal rights when interpreting and applying individual human rights, the focus of the clause should be on the relationship between these different types of rights, not a vague and overly broad notion of community needs and aspirations. The reference to the needs and aspirations of the community in the proposed interpretative clause is too vague, too general, and too far removed from the critical issue of the need to balance collective and individual rights. The attempt, apparently, to clarify the principle that men and women are equal by the reference to gender equality is less clear. The interpretative clause as a whole is badly in need of redrafting to make its purpose and intent crystal clear.

¿ (0920)

Instead of the wording currently proposed by Bill C-7 for an interpretative clause, NAWA recommends that this clause expressly direct human rights panels and courts applying the act to take into account the collective rights of first nations, as these operate within the framework of the Canadian constitution. This directive, however, should always be subject to the principle of equality between men and women. It should be drafted in a way that is consistent with notions of substantive equality, meaning equality is not always achieved by sameness of treatment. We suggest wording along the following lines:

In respect to its application to First Nation governments, this Act shall be interpreted in a manner that takes into account the collective rights of First Nations within the framework of the Canadian Constitution.

Or:

Notwithstanding, nothing may justify any practice, law or decision that impairs the fundamental human dignity of women or of men or undermines the principles of equality between women and men.

Special mention of equality rights between men and women is necessary given the long history of the Indian Act using sex-based discrimination as a means of achieving various policy objectives, such as assimilation of first nation people through the targeting of first nation women.

It is disappointing that the government did not pick up on the recommendation of the Canadian Human Rights Act review panel to recognize the jurisdiction of first nations to enact their own human rights laws that would ultimately displace the Canadian Human Rights Act. We believe the first nation governments should be actively encouraged to think about and draft human rights instruments of their own, just as provincial and federal governments each have their own. The involvement and participation of first nation governments in the drafting of such laws will increase understanding, acceptance, and commitment to fundamental human rights principles. A notwithstanding clause preserving the inherent jurisdiction of first nations to pass laws respecting human rights should also be considered, with provision that the Canadian Human Rights Act applies until such jurisdiction is exercised in a manner consistent with international human rights laws.

On behalf of the NAWA board of directors and the members, I want to thank the committee for this opportunity to register our concerns regarding Bill C-7 as it is now drafted. We hope you will see fit to incorporate our concerns into the final draft.

The Chair: Thank you very much for an excellent presentation. It's evident that you've spent a lot of time preparing, and this committee appreciates the fact that your presentation refers to the work we have to do. You speak directly to the bill, and we appreciate that, because with your assistance, we can improve this bill.

Without minimizing your concerns over enforcement officers, I just want to clarify that in paragraph 24(1)(a) it says that enforcement officers may “enter any place on the band's reserve, other than living quarters”, and in clause 26 it speaks of the need to have a warrant to enter those living quarters. I just want that cleared up, but I don't wish to minimize your concerns. I think they are legitimate.

Ms. Pamela Paul: I think you'll hear some more from other groups on that same issue.

The Chair: And it may come out in questions.

Mr. Pallister.

Mr. Brian Pallister (Portage—Lisgar, Canadian Alliance): Thank you, Mr. Chairman.

Thank you, madam, for your presentation, it was excellent. We share many of the concerns you've raised, in particular about enforcement officers' powers. I think there's a very real danger, not in most first nations communities, but in some, and we have to be concerned about that, because it's the rights of those people who are subject to intimidation already in some cases that we must protect.

I will just take exception to the chair's comments on your concerns about warrants and so on. We share your concerns. There is the potential for abuse. This act does not limit the ability of an enforcement officer to actually go through a home to conduct a search on the other side of that home, for example. So the power of intimidation is very real if these particular codes are not amended, and we will be proposing amendments to effect the changes you have addressed in your presentation today. It isn't so much the powers themselves, but the threat of those powers that first nations women are telling me and my colleagues in meetings we're having they're concerned about, the potential to threaten, the potential to remove people from a home they've lived in for a long time, or the potential to press a charge on one of the code provisions. We will certainly be proposing amendments to place far greater constraint on the powers of the enforcement officers.

You make the observation that these powers are too wide and exceed powers now available to law enforcement powers of other governments in Canada. Could you clarify that? I'd like to give you the opportunity to explain that statement.

¿ (0925)

Ms. Pamela Paul: I was given that comment by some lawyers. They are basically saying they can enter for whatever reason. I'm not sure why they interpret it this this way, but they're saying they can enter without a warrant. I don't know the full explanation, I'm just telling you what the lawyers have told us, that there is a potential for them to enter without warrant, which means that power would exceed that of other law enforcement officers in Canada. The other thing is that the band enforcement officers may not be law enforcement officers, they may just be people from the community with no training whatsoever.

Mr. Brian Pallister: I think you're quite right, and we've had that same communication from law enforcement people to our office as well. We were talking earlier specifically about homes, and there is a reference that would make it potentially and theoretically more difficult to get a warrant for a home. There is no provision to require a warrant to go into a person's place of business, for example, or a person's place of work to conduct a search. Also, there are provisions here to compel the person to cooperate fully with every aspect of said search. So again, the powers are excessive. One of the comments we got from an RCMP officer was that he felt the RCMP didn't have powers that even approach the ones we're bestowing here.

You know, because you're quite familiar with the lives of women on reserves across Canada, that the difference between living in Moose Jaw or Markham or Medicine Hat and living on a reserve is pretty remarkable in a lot of first nations communities. The level of power and the differentiation between the powers held by regular citizens and those in charge are incredibly magnified in most first nations communities, as opposed to the communities many of us grew up in and are familiar with. This is why we're very concerned about this. So I want to address the issue of a redress officer.

We're very concerned that under this proposal the chief in council would not only appoint the enforcement officers, which I think you can understand we have concerns about, but would also point the redress officer. For example, I have a band in my constituency that has about a hundred adults, and it's comprised, basically, of four or five families, but all interconnected. The chief would be put in a position, by this act, of appointing an enforcement officer who might be his cousin. Then there's a complaint against the enforcement officer, so that goes to the redress officer, who's also the chief's cousin. That redress officer is supposed to protect the rights of people on reserve, but the best they can do is ask the chief, who's their cousin, to reconsider a decision he made. Some chiefs I've spoken with laugh at this. Don't you find this totally unworkable? Wouldn't it be better to create some separation by way of having, say, a national ombudsman office or a national ombudsman function, to get the independence of these people and strengthen their role? It would be far more protective of aboriginal women's rights, and aboriginal people's rights generally, than this model that's being proposed.

Ms. Pamela Paul: That's what the JMAC proposed, that there be this separate redress mechanism to take that away from the reserves. Yes, there needs to be an ombudsman, there need to be governance structures set up so that this act can be run in the way it was meant to be run. I think our preference would be that they just scrap all the band enforcement officer provisions for now, because there's just not been enough work done on it. It just turned up in the legislation without any consultation or discussion.

Mr. Brian Pallister: Sorry, which one, the redress proposal?

Ms. Pamela Paul: No, the band enforcement officers. That just turned up in the legislation when we saw the draft. Our preference would be that it be scrapped altogether, but if it goes ahead, there certainly need to be some systems in place, some redress systems outside the reserve, so that people get a fair shake.

¿ (0930)

Mr. Brian Pallister: Yes, the one creates the need for the other, doesn't it?

Ms. Pamela Paul: Yes.

Mr. Brian Pallister: It really does.

We're also really concerned, and share the concern you've expressed here, about the lack of resource commitment. I don't know if we've had any witness tell us at committee that there has been any preparation they're aware of in pricing out what this might cost. There are going to be 600-plus, potentially, enforcement mechanisms and enforcement codes and officers and 600-plus redress officers. We already have established the ineffectiveness of such a model, really, on reserve, but the costs associated with this type of mechanism, surely we could direct them to a more effective institutional structure than the government is proposing.

Your human rights concerns we also share. We're concerned that aboriginal women, and all aboriginal people, should have the protection other Canadians take for granted of human rights. We listened to the head of the Human Rights Commission the other day talk about the problems associated with the interpretative clause, and you've repeated those concerns. I thank you for that, because it's a concern we certainly share.

I also have a concern with this intersectionality point a number of people have made and found in articles your organization and other aboriginal women's organizations have written, which essentially means that it's very difficult for a woman to prove that her rights have been violated on the basis solely of her gender. Aren't you concerned that with this interpretative clause, the way it's structured, it's simply not going to protect aboriginal women? You could be discriminated against on the basis of several other factors. These intersect, and it's very difficult to prove it is be because of your gender, I think.

Ms. Pamela Paul: It is difficult. The interpretation of this clause from community to community is going to change, because each community determines whether or not someone's rights have been violated on principles that are consistent with gender equality. So because that's an interpretative clause, it's very subjective and will change; because there's no continuity, it's not going to provide the same rights for everyone.

Mr. Brian Pallister: Yes. Thank you.

The Chair: Thank you, Mr. Pallister.

Because Mr. Pallister took exception to my comment, for the record, I want it known that I didn't express an opinion, I merely read what is in the bill. I had no intention of expressing an opinion. I make every effort not to do that, at least while I chair.

Mr. Hubbard.

Mr. Charles Hubbard (Miramichi, Lib.): Thank you, Mr. Chair. It's certainly good to have somebody from New Brunswick here leading a delegation, and she and Madam Gagnon are following this very closely.

We will look at this, Mr. Chair, in light of what you said and how Brian has interpreted it. We certainly want to assure you that we'll do our best to make sure your concerns about enforcement and search and so forth are closely regarded in whatever legislation we bring back to the House. I would like to just draw upon a couple of little points here.

I see your major issue of having someone redress your grievances band members might have.

You also made a very good suggestion there about governance resource centres. Yesterday we heard reports that there are various families of first nations. When Brian talks about a reserve of 100 people, it's a serious problem to provide all the special resources and special training people do have. There is a great need out there. Do you have any comments to make as to how you see some of these objectives of the bill working in respect of families of first nations, rather than reserves per se. Even in New Brunswick we have reserves that have, in relation to national groups, sometimes a rather small membership. We have some as low as about 100 people living on reserve. In your study of the bill and attitudes that are reflected, do you think there is an ability for various groups to work together to offer good governance, rather than having 600 or more individual ones?

¿ (0935)

Ms. Pamela Paul: Are you saying you think families could group together? Is that why you brought in families?

Mr. Charles Hubbard: Some people contend that we don't have 630 first nations. Maybe the Mi'kmaq are first nation Atlantic Canada as a group. Maybe groups within that are really first nations. I'm not sure. But from the work you've done, is there a collective source of responsibility and concern among the various reserves such that they can collectively look at some aspects of governance. Rather than having 630 separate codes, could there be 100 across the country, or 30, or 50, a number to reflect the Cree, the Ojibway, or whatever it might be?

Ms. Pamela Paul: There is a provision for groupings in the FNGA. The whole discussion in JMAC was, what about these small groups that aren't big enough to really form governance structures? There had to be something in the act that would allow them to group, and there is. If there's a tribal council that's quite good at managing, they could actually go to the tribal council and manage 10 to 12, maybe 15.

Mr. Charles Hubbard: I'm asking, Ms. Paul, whether there is an appetite for that, from what you've seen. Do you think it might happen? I guess the possibility is there.

Ms. Pamela Paul: It's already happening. You already see tribal councils delivering programs and services for groupings, so I think there is a chance that this could happen. One of the things built into the legislation is that they can collaborate with other small groupings.

Mr. Charles Hubbard: This would certainly enable us to reflect, but as parliamentarians, we wouldn't want to impose something that would be restrictive. I guess it will take a period of debate among our first nations or various groups of first nations to see if there is a possibility of working together among the various first nations, whether it be your own in Woodstock, Tobique, and so forth.

You also brought to our attention very strongly the concept of band membership. We have so many different categories, as you mention. We have people under subsections 6(1) and 6(2), we have people on-reserve, off-reserve. We have people who feel they've been left out by bands. In fact, in New Brunswick we have a whole new group who are out there probably going back maybe eight or ten generations, trying to define themselves as being part of our first nations communities. Do you have any suggestions as to how membership could be better defined?

Ms. Pamela Paul: My suggestion is that it not be legislated, that you give first nations the opportunity to develop their own criteria for who their people are. I don't like this whole notion of a legislated identity and that we go around carrying cards to prove who we are. My suggestion would be that cabinet be mandated to look at this issue, because it's one of the biggest issues facing first nations in Canada, even under this First Nations Governance Act. Defining the self in self-government or defining who the member is has got to be the most important issue facing people. Cabinet has never looked at it. Nobody wants to lose control of it, I guess. I'm not sure what the reasons are. I think it's time we started looking at our own structures of determining our membership.

Let's just take the Atlantic. We only have two types down there, Mi'kmaqs and Maliseets. When I lived there, we were starting to get into discussions about how we might actually come up with models for determining who Mi'kmaqs were and who Maliseets were. The thing is that the federal government has to be of a mind to release control over that, and it has not been looked at since 1985. There are so many changes under that whole system now that we're living in this fish bowl, with a whole bunch of different categories of Indian people, totally because of a whole group of people called ghost people, because they're not registered Indians, which means they're not counted by the federal government and they're not counted by the provincial government, because they're reserve. It's a big problem.

¿ (0940)

The Chair: Thank you.

Mr. Vellacott, five minutes.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Thank you, Pam, for being here. It's good to see you again.

I wanted to ask a question that came up yesterday. It's the issue of the so-called default codes: if they don't accept and write things up on their own, based on the provisions in the act here, within a certain period of time, the matter reverts to default codes. Can you recall the intent within JMAC discussions? We don't know what these default codes are, at least I'm not aware if they're written somewhere and not yet provided to us. Do you have a sense if these are written? Was the intent to write them in the future?

Ms. Pamela Paul: I don't think they're written yet. They're going to be in the regulations. The next phase of regulations is actually going to be the default codes. You can ask Jim Aldridge that when he appears, because I wasn't there for all of the discussions in JMAC. We had a lawyer who was there for most of our participation. As far as I know, they are not written yet.

Mr. Maurice Vellacott: Would that concern you as a first nations woman? They say the devil's in the details sometimes. These things do not have the scrutiny of Parliament, being in the regulations, but have the same force and effect as if a band wrote its own, as in the guidelines here. Is there some way there could be public scrutiny of that, maybe even before this body here?

Ms. Pamela Paul: Yes, because if they come up after the fact, after the legislation is passed--though I'm not an expert on how things work here--we wouldn't have had any say, it's already law. If the default regimes are already there and they're not shared with us, that would be a concern to us for sure, because there could be things in there we might actually object to. Once this thing is law, there would be no redress for us to go back and say, we never agreed to that, we don't like that. The way I understand it, they're supposed to be developed afterwards.

Mr. Maurice Vellacott: That's a concern at this point. I don't have the answer on that, but it does concern me. I realize that you always do regulations after legislation, but given the importance of these default codes, which are parallel to some of these guidelines in the legislation, I'm wondering if it's appropriate to stick them in regulations, when there is such a great impact on the life of every first nations' woman.

With JMAC discussions and so on, matrimonial rights are a key area for reform. Do you believe this issue is addressed in Bill C-7 adequately, or at all?

Ms. Pamela Paul: It's not addressed at all. As far as I know, the Department of Indian Affairs has a second stream going. They've commissioned a discussion paper on matrimonial property rights on reserve. I was part of the committees that were put together, two steering committees, one of aboriginal women lawyers and one of just aboriginal women from across the country. They developed a very good paper written by Wendy Cornet, but there has been no indication from the Department of Indian Affairs on what is going to happen with this paper. We could write a paper at NAWA too, but if we don't do anything with it, it just sits on the shelf as a research paper. To date we haven't had any feedback on what's going to happen with the matrimonial discussion paper.

Mr. Maurice Vellacott: It is an important area, I believe, to go by discussions and things that have been conveyed to me by first nations women. Would you be of the view that it's quite all right to just leave it for something later, or could it be part and parcel of this particular bill?

Ms. Pamela Paul: I was part of the committee, and the whole idea of matrimonial property I don't think can be dealt with in this legislation. There was so much discussion on the whole idea of what constitutes a marriage in first nation communities, because people aren't getting married as much, they're living together, and now we have to look at same sex marriages. A whole lot of factors came into this discussion paper from the women across Canada. I don't think it can be dealt with in this piece of legislation.

¿ (0945)

Mr. Maurice Vellacott: How do you protect women in the interim, because it may be another 25 or 50 years before we get anything in respect of that? How do you protect matrimonial property rights in the meanwhile?

Ms. Pamela Paul: I haven't read the total paper, but if you don't mind, I will send it to you. It has a number of different suggestions on how that might work.

Mr. Maurice Vellacott: Okay. Thank you.

The Chair: Thank you, Mr. Vellacott.

Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): I'm interested in the section on the human rights exemption, where you said this exemption removes certain decisions made by band councils under the authority of the Indian Act. Clause 37 refers to existing bylaws of the band made under the Indian Act. It says existing bylaws are deemed to become the laws of the band. Is that the transitional time you're talking about? It says existing bylaws should not conflict with this proposed act, which takes the Human Rights Act into consideration. I'm just wondering if you can give any examples of decisions you feel would be falling through the cracks.

Ms. Pamela Paul: I'm sorry, I don't have any for you right at this moment, I didn't bring any. I didn't look at it from that perspective, applying each of the band laws to see what decision might be made there in respect of a human rights violation.

Ms. Nancy Karetak-Lindell: What are you looking at, then, when you say, “This exemption removes from review under the act decisions made by band councils...that are taken under the authority of the Indian Act”? Can you give any examples of what those areas are? The understanding I'm getting from your intervention is that a band will keep going back to the argument that a certain decision was made under the Indian Act in order to keep the Human Rights Act from defining whether someone's rights have been offended or not, so this exemption will stop bands being taken before the Human Rights Tribunal.

Ms. Pamela Paul: I'm sorry, but I really don't understand your question.

Ms. Nancy Karetak-Lindell: I'm trying to get a better clarification of the sentence you put in there, and maybe I'm reading more into it than the message you're trying to give.

The Chair: Excuse me. I think our researcher might be able to offer assistance in an interpretation.

Ms. Mary Hurley (Committee Researcher): I might be wrong, but I'm reading that sentence as simply an introductory paragraph to explain what the existing situation is, not what would happen after the exemption is removed. In other words, it's saying, at the present moment this is the effect of the exemption, it removes from review the decisions of the band council under the Indian Act.

Ms. Pamela Paul: That's absolutely right. Currently, the decisions by band councils, under the Indian Act, aren't reviewed in reference to the Canadian Human Rights Act. So what it's saying is that they will be with the exemption removed.

¿ (0950)

Ms. Nancy Karetak-Lindell: But then at the bottom of the page it says, “While section 67 does not exempt all decision-making on reserve from review under the Canadian Human Rights Act, there is a very wide field of decision-making by band councils...that is exempt.” So you're saying those will no longer be exempt, as far as you're concerned, when Bill C-7 goes through?

Ms. Pamela Paul: No. What we are saying is that before this some decisions the band council made relating to employment, for example, were subject to the Canadian Human Rights Act, because that's really what it was set up for, to protect employment. Now there will be a whole field of decision-making by the band that will be subject to the Canadian Human Rights Act. And within that is this interpretative clause as to whether or not it is consistent with the principles of gender equality. Is that what you're asking?

Ms. Nancy Karetak-Lindell: I'm not exactly sure what your position is. I'm assuming you're supporting the repeal of section 67?

Ms. Pamela Paul: Yes, with changes.

Ms. Nancy Karetak-Lindell: And you're just concerned about the interpretative clause, as was also the view of the panel we heard yesterday?

Ms. Pamela Paul: Yes, and suggesting a change.

The Chair: Thank you very much.

Mr. Vellacott, two minutes.

Mr. Maurice Vellacott: I'm interested in the part where it says there's no appeal process within the proposed legislation to ensure protection of constitutionally protected rights against unlawful search and seizure. This bill is supposedly about making native leaders more accountable to their own people. It seems to me that with this provision, there could be a lack of accountability in the exercise of police powers. Why do you think this is in the bill in this manner? Is it just kind of thrown out there for us to kick around and improve? Why would it come in as flawed as it is?

Ms. Pamela Paul: Honestly, I don't know. At JMAC band enforcement officers weren't really discussed at all. When the draft legislation came out, the band enforcement officer provisions were there. If I remember, JMAC recommended that they take them out. The purpose of their being in there was simply to give first nations the ability to issue tickets, but they stretched it out so much and gave them so much power that it really became more of an enforcement authority. I don't know why it was put in there. That's why I think we should just scrap it, because we don't have the judicial systems in place. There's been no discussion on having the provinces recognize first nation laws to begin with in communities where they don't have police services. So I think the whole thing is just messy and throws another phase into it. You talked earlier about all the band enforcement officers who need to be trained, need to be hired. It says it may do that. But if you don't--

Mr. Maurice Vellacott: There are a lot of mays in there, and it's not a mandated requirement so much as a possibility. It makes me a little nervous when they may or may not, which is the other side of it. So just drop this band enforcement stuff altogether.

The Chair: Thank you, Mr. Vellacott.

Mr. Hubbard.

Mr. Charles Hubbard: Following up on Nancy's intervention a few minutes ago, the researcher probably could tell us more, but under this human rights legislation, if we suddenly open this up to first nations people, in particular women, is there a statute of limitations? Can you go back five years to human rights violations in 1995, or 1990, or does it begin at some point in time with the change this act will bring about? It's something I think our committee should look at, and Nancy brought in a very good point on this: at what point in time is a human right violated?

¿ (0955)

The Chair: We don't have a copy of the act here? We don't have that information?

Mr. Charles Hubbard: No.

The Chair: Our researcher indicates to me that she will get the information for committee members.

Carry on.

Mr. Charles Hubbard: Thanks, Mr. Chair.

The Chair: Thank you very much. You take your work seriously, and it's evident. We really appreciate the help you gave us. We now allow you five minutes for closing remarks.

Ms. Pamela Paul: We do bring three concerns, and we have travelled across the country listening to women. Women have told us they like some of the provisions. They like the accountability provisions. They like the fact that the community can now have these structures in place. There are, however, some problems we've also identified, with the help of some of the people from JMAC.

The chief and council have to be the ones to initiate, whether or not a community ratifies a code. That takes away from the whole idea of community control, because if the council decides it's not going to ratify a code, it automatically goes to default, and the community doesn't get an opportunity to come up with something that's more suitable to them. That's another item I didn't go into, but I'd like you to look at.

As to the legislation overall, we got into it on JMAC with the intent that it was going to be something good for people, and I still believe that. I still think people in the communities, the women we've talked to, like the fact that they're going to have some structures in place relating to finance, relating to elections, and relating to some of this other stuff. They are, however, frightened as to whether or not, in the long run, it will affect aboriginal treaty rights. That is one thing that's come up across the country. They are also frightened as to whether or not there's been enough discussion relating to off-reserve, whether the rights of the off-reserve will change under some of these discussions. I'm sure you'll have presentations from people who may raise that, but as to our women, that's something they raised.

The biggest thing, again, is that they are very much concerned about the whole issue of band membership and Indian status and how that fits into all of this and into any future legislation, including the other suites of legislation that are on the table.

I've given you what we've identified as our concerns. I did tell you we try to be a non-political group. That's our goal, because we want to get the information out there, we want to share it with the women, and we want them to make the decisions that will empower them and their communities. We do not want to go out there and tell them what to think.

So thank you very much for having us here, and I look forward to the changes you recommend in the future.

The Chair: Thank you very much. You've been very helpful.

I'm now pleased to welcome Mr. John Reid, Information Commissioner of Canada. He is accompanied by Mr. Alan Leadbeater, Deputy Information Commissioner of Canada, and senior legal advisor Mr. Lawrence Kearley. We invite you to make a presentation. After your presentation we will go to a question and answer period. I will urge my colleagues not to impose too much on your time. We are here to listen to you, and I hope they are listening to me as I say this. We don't have these meetings to listen to the members, we have them to listen to our witnesses, who are the experts.

Mr. Reid, please proceed.

À (1000)

Mr. John Reid (Information Commissioner of Canada): Thank you very much, Mr. Chairman. I'm delighted to be here. I should say at the outset that I was not consulted on the sections of the act dealing with access to information, but I'm delighted to be here to speak about them after the fact.

I'm pleased that the act contains sections dealing with access to information. As the first nations of Canada continue on their road to self-governance, it's heartening to see that the democratic notions of transparency and accountability are being incorporated into these new governing structures by way, among other channels, of the inclusion of provisions for access to information. The two provisions in the bill that deal with access to information are paragraph 6(4)(c) and paragraph 18(1)(e). I'll address each one in turn, although they're very similar in wording.

Part 1 of the bill provides that the council of a band may, in accordance with the regulations, propose a variety of codes for adoption by eligible voters of the band. Paragraph 4(1)(b) states that one of these codes may be on the administration of government. Paragraph 6(4)(c) sets out that if a band has an administration of government code, it must include rules “respecting access to information under the control of the band, protection of personal information under its control and access by individuals to information about themselves”. Later in the bill, in clause 16, band councils are given the power to make laws for local purposes. Paragraph 18(1)(e) permits the band council to make laws in relation to “access to information under the control of the band, the protection of personal information under its control and access by individuals to information about themselves”. This provision reflects the existence at the federal level and in all provinces and territories of access to information and privacy laws that regulate decisions about secrecy and openness and resolve the tensions that sometimes arise between them. The words of paragraph 18(1)(e) are virtually identical to those found in paragraph 6(4)(c).

What's not clear to me from reading the legislation is why there appear to be two methods of providing for an access to information regime, one a code through paragraph 6(4)(c), which is proposed by the band council and must be voted upon by the band members, the other a law through paragraph 18(1)(e), which is only voted on by the band council. It isn't evident what the difference in effect might be between the code and the law, but it's clear what will happen if there's any conflict between a law and a code or between a law and any act of Parliament or regulation under the proposed First Nations Governance Act. Subclause 18(3) provides that:

In the event of a conflict between a law made under this section and an Act of Parliament, any regulations under this Act that are applicable to the band or any code adopted by the band, the Act, the regulations or the code prevails to the extent of the conflict.

Unlike in clause 16, however, it is left unmentioned what will happen if a first nations law under clause 18 is in conflict with a federal regulation or another statute.

It's a bit difficult under these circumstances to comment on the effectiveness of the proposed right of access to information, since there are no details other than what I've mentioned. I'm troubled, however, that clause 18 of Bill C-7 does not make it mandatory for a self-governing band to adopt an access to information law. I'm also disappointed that Bill C-7 does not set out some of the necessary elements of an effective access to information regime.

À (1005)

It would be preferable for Bill C-7 to include guidance along the lines provided by section 2 of the federal Access to Information Act, which sets out the guiding principles of that statute:

The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

A clause like that included in the act would make quite clear what would be necessary to meet the standards of the legislation. Right now there are no standards, so an access to information act could be anything or nothing under the current proposals.

It's my view that a statement of principle like this should be included in any code or law made under the provisions of the First Nations Governance Act. It should be included in the enabling provisions of paragraph 6(4)(c) and paragraph 18(1)(e) of the bill, so it would become a necessary part of any code or law. Thus, access regimes adopted by self-governing bands would meet minimum standards of openness, and a uniformity of approach across bands would be encouraged.

Of particular importance is that all access to information codes or laws provide a mechanism for independent review of decisions made by local band governments regarding access to information. There are several accepted methods by which you can accomplish this. At the federal level and in some provinces the review mechanism is based on the ombudsman model. Under that model the information commissioner is given strong powers of investigation, but only a power to make recommendations for remedial action. In some provinces the quasi-judicial model has been developed, under which the independent review officer has the power to order governments to undertake remedial action. In the United States it is the courts that review decisions by government to deny access.

As you might expect, I'm comfortable with the federal model. I've often said the ombudsman model is less formal, less reliant on lawyers, less expensive, and less likely to invoke recourse to the courts. As well, since only recommendations are being made, no binding orders, the commissioner may feel less conservative and more courageous in his determinations. On the other hand, the quasi-judicial model appeals to many as a somewhat speedier process with greater finality, subject, of course, to the use of courts by government to seek to quash the orders made by the access to information commissioner. The U.S. model, which requires dissatisfied access requesters to go to court, is seen by most observers as far too expensive, complex, and slow to be desirable as a review mechanism. Most countries in the world that have access regimes have rejected the U.S. model.

In closing, I want to make it clear that as Information Commissioner, I stand ready to offer advice to band councils, and to this committee if necessary, to assist them in designing their codes or laws relating to access to information.

Thank you for your attention. I will be delighted to take questions.

The Chair: Thank you for your presentation and your generous offer. I'm sure they are listening, and they probably will be asking for assistance.

Mr. Vellacott, for nine minutes.

Mr. Maurice Vellacott: Thank you.

If I don't use up my entire time, do I have your consent to share it with a colleague?

À (1010)

The Chair: You can share it with your party.

Mr. Maurice Vellacott: Okay.

If I understand correctly what you're saying here and statements you've made in other contexts, Mr. Reid, your preference is for a uniform and fairly structured access to information privacy code. I think I would agree with that, but if you're going to have some 600 bands writing this whole thing, I'm wondering if it's feasible to have codes when bands are small, and what kind of variance there might be. How are they going to have structures in place to even deliver on those codes?

Mr. John Reid: Almost everybody in Canada is now covered by either federal or provincial legislation. For example, most municipalities, no matter how small, are covered by provincial legislation. So the principle for how it's done in small organizations is already well-established. In point of fact, it's often much easier for the smaller units to comply with the act, because they actually know where the records are. In larger organizations there's a tendency for records to be lost. So in a small community, with a small administration, the costs are very small in satisfying these kinds of requests. The ability to provide them, because they're small, is also fairly straightforward.

Mr. Maurice Vellacott: Again, there are a lot of these mays at points through this piece of legislation; if nothing is done, there are default codes as a possibility. Does that concern you, that a code “may” be on the administration of government, so under paragraph 6(4)(c), if they have the administration of government code, it also requires the access to information rules and so on? You would be of the view that it should be written that they “must”?

Mr. John Reid: Yes. I'm very concerned about permissive things when it comes to access to information. It's important to recognize that almost everybody in Canada who lives in a municipality, no matter how big or how small, is covered by access to information legislation. If we decide to make this permissive, it is quite possible that some members of the first nations would be denied the right in their own municipality that is available to every other Canadian. I believe there should be uniformity in rights of Canadians to their own information and to the information of their governments, and there should not be any exceptions.

Mr. Maurice Vellacott: Right.

I'm going to pass the ball to my colleague here. I think he has some questions on that.

Mr. David Chatters (Athabasca, Canadian Alliance): Thanks, Maurice.

Certainly, you present an interesting perspective. It's an area we also have been concerned with. It appears that each band is given the opportunity to develop codes for band approval, but they have to meet a certain standard, and if they don't meet that standard or they choose not to develop those codes, there are default codes developed by the department that apply. Our question to you would be similar to that we posed to a group of witnesses the other day. Has there been any contact with you from the department to help develop guidelines for these default codes the government would put in place?

Mr. John Reid: No. As I said at the beginning, I have not been consulted by anybody on this piece of legislation. Again, we would be delighted to provide assistance if we were asked, and we would volunteer that assistance even if not asked.

Mr. David Chatters: You do lay out some direction in your presentation. I don't know what power the committee has, but it would be very helpful, from my perspective, if the committee asked you to present us with an example of a default code for access to information. From our perspective on this side of the table at least, we would certainly support the ombudsman model, perhaps adopting some of the powers of the other model, not the judicial power, but some power to enforce with regard to the bands. I don't know if there's a question in there, but that would certainly be our position.

The Chair: Let's resolve that right now.

Mr. John Reid: We would be delighted to look at equivalent municipal and provincial legislation and provide you with that kind of information, and to make some recommendations to you.

À (1015)

The Chair: Are you able to do this in a document?

Mr. John Reid: Yes, we'll do it in a document.

The Chair: Okay.

And to my colleagues, if you wish to invite the commissioner again, that opportunity is there also. We'd really appreciate that assistance. If you would direct it to clerk, it will be shared with all members. I encourage Mr. Chatters to bring it back to the floor.

You still have a few minutes.

Mr. David Chatters: I think that was all I had. Thank you, Mr. Chairman, I appreciate that.

The Chair: Are there any other questions from members?

Well, I suppose we'll probably have another discussion before the end of this nine-week journey we have. We wish to thank you very much. It has been helpful. We pride ourselves on being the ones who have consulted with you, and I suppose we will continue to, because the expertise you have and the information you can provide are very helpful. Thank you very much.

Mr. John Reid: Thank you.

The Chair: Colleagues, we will verify if the witnesses are here for the next presentation. If so, we will proceed early and finish early. If not, we will suspend until we are able to. I will inform you very shortly.

Our researcher already has an answer for Mr. Hubbard, so I'll ask her to share that with us.

Ms. Mary Hurley: Mr. Hubbard, the answer on the existing provision in the Canadian Human Rights Act is that the commission considers compliance to do with acts or omissions the last of which occurred one year before receipt of the complaint or such a longer a period of time as the commission considers appropriate in the circumstances.

The Chair: We will now suspend for five minutes while our next witnesses are preparing for their presentation.

À (1018)

À (1025)

The Chair: We'll now 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.

I'm pleased to welcome, from the Joint Ministerial Advisory Committee, co-chairs Roy Bird and Jim Aldridge. I will invite you now to make a presentation, which will be followed by question periods. As you probably know by now, when we say five minutes, it's question and answer, and I urge my colleagues to ask brief questions.

Please proceed.

Mr. Jim Aldridge (Co-Chair, Joint Ministerial Advisory Committee): Thank you very much, Mr. Chair.

I will make some brief introductory comments, my colleague and co-chair Roy Bird will add to those comments, and then I'll pick up with a longer description of some of the main issues we see identified in this bill.

The Joint Ministerial Advisory Committee was established in November 2001 to provide the minister with technical advice in respect of possible amendments to the governance provisions of the Indian Act. Roy Bird and I were asked to co-chair the committee. The other members were Andrew Beynon of the Department of Justice; Carolann Brewer on behalf of the National Aboriginal Women's Association; Bernd Christmas, who is the CEO of Membertou First Nation and was an individual appointee; Wendy Cornet, Congress of Aboriginal Peoples; Roger Jones, initially for the Assembly of First Nations and subsequently on behalf of a number of regional groups of first nations who wished to continue to participate, largely based, as we understand it, in B.C., the Yukon, Alberta, and elsewhere; Gordon Shanks from the Department of Indian Affairs; Geneviève Thériault from the Department of Justice. And we were assisted by Gordon Williams, an elder. Members were chosen by their respective organizations or departments on the basis of their individual skills and the contribution they could make to the many difficult technical issues, not to negotiate or to reach agreements on behalf of their principals. Obviously, each member did benefit the discussion with the perspective of their respective organization, as well as with their own experiences and background knowledge. We also received, of course, valuable assistance from a number of persons from within the Department of Indian Affairs.

JMAC submitted its final report to Minister Nault on March 8, 2002. It has been available on the department's website since shortly thereafter, and we understand that it has already been provided to members of the committee.

To begin, we would like to say that it was a great privilege for us to chair a group of such talented individuals, who were all able to work together in a spirit of mutual respect and cooperation. We should also say we're proud of the work we did, and we sincerely hope our report and recommendations will be of assistance to this committee as you embark upon your examination of the many complex issues raised by Bill C-7.

Next, we understand that there's now to be a political debate in respect of this bill, a unique debate, in that it is taking place in the context of a bill sent to you after first reading. We are very aware of the significance of this way of proceeding. As we understand it, you will have much more opportunity to determine the detailed contents of this bill than is normally the case when a bill comes to you after second reading. With this opportunity, of course, there will come great challenges, Mr. Chair, as you not only grapple with the broad issues of policy raised by this initiative, but also engage in the process of considering many technical questions of law, and indeed of legal drafting, that will inevitably arise as you carry out your responsibilities. It is in this latter context especially that we hope our report will be of assistance to you.

We would also like at this point to commend to you and to all committee members the paper in your possession that was prepared by Mary Hurley of the Library of Parliament last October. Ms. Hurley has done a fine job of summarizing issues raised by the bill and comparing the provisions of the bill with JMAC's recommendations. I joked with Ms. Hurley the other day that she saved us a lot of effort, because she had already compared the JMAC recommendations to the provisions of the bill.

Before proceeding to discuss some of these more technical matters, my colleague and friend Roy Bird would like to make his own prefatory comments.

Mr. Roy Bird (Co-Chair, Joint Ministerial Advisory Committee): Thank you. Good morning to the members of the standing committee, and thank you for inviting us to speak to you today regarding Bill C-7.

I come to you today as a former chief and councillor of my band for over 20 years. I am now a federal public servant. Along with my colleague Mr. Aldridge, I am representing the important work of the Joint Ministerial Advisory Committee.

Today in my community and in other communities I know of many families who live in poverty. Some have been torn apart by violence, physical abuse, sexual abuse, rampant alcoholism, and drug abuse. I have personally known many young people, including members of my own family, who have committed suicide because of despair and low self-esteem. Elders in our communities are overwhelmed by this harsh reality and worried that our cultural and spiritual ways are being threatened by these forces. We are no longer able to cope. There are circumstances where communities are split because of leadership factions and conflicts between leaders and their own people. I have witnessed and mediated some of these, at times with a police escort at my side.

Mr. Chairman, my one message today is that the status quo is not good enough. Things have to change, and they have to change soon. Why is the need for change so urgent? I'll give you some indicators.

The unemployment rate for aboriginal Canadians is twice the rate of non-aboriginal Canadians. For first nations people on reserve it is almost three times the rate. In Saskatchewan, where I come from, the unemployment rate among first nations people is five times that of the rest of the population. Some 40.9% of first nations people live at or below the poverty line. Youth suicide rates among the first nations population are five to eight times greater than the national average. The incarceration rates of aboriginal people are five to six times higher than the national average. In Saskatchewan 80% of the offenders in the provincial jails are aboriginal, of whom 75% are first nations people. The life expectancy of first nations people is six years less than the Canadian average. The quality of life of many of our first nations people is unacceptable. Today we are fighting a losing battle.

How will Bill C-7, which is before this committee, help to bring about change? Bill C-7 is about building a foundation for growth, for communities determining their own governance needs, for building capacities from within, for sound management of programs and services, for sustainable economic development, and most importantly, a foundation for hope in our communities, hope for a better future for this generation or for generations to come.

Bill C-7 lays a foundation for economic development. It clarifies the legal capacity of first nations, and will provide a foundation that will support first nations' pursuit of economic development opportunities, opportunities to engage in new markets, start up new businesses, and create new jobs. Poverty, income levels, and unemployment start to be addressed. There will be greater certainty for potential business partners and investors, who will be more confident in dealing with first nations that have stable and effective governments, more authority over their own interests, and sound governance structures in place. This will support the efforts of those first nations and first nations organizations that are involved in successful economic development and business projects.

À (1030)

But how does governance relate to the suicide rates, the family violence, the addictions, and other issues I have mentioned? To my mind, Bill C-7 will empower first nations people. Governance is an important foundation for addressing and improving these social issues. Not only does good governance support effective administration of social programs, it also promotes the overall health and stability of a community. It empowers people and provides hope.

Under Bill C-7 first nations members will be involved in developing and ratifying the leadership selection code, an administration of government code, and a financial management and accountability code. It allows first nations people to participate in the positions that affect their communities and their families. Whether it's in the area of education, social assistance, housing, or health, Bill C-7 promotes open, transparent, and accountable administration and delivery of programs and services. It ensures that financial reporting to the community members is consistent and transparent. They will also be informed about the laws, policies, and directives of their first nation. And first nations people would for the first time have access to redress, which is unavailable to them under the Indian Act.

Mr. Chairman, the adversity many first nations communities face is compelling, and the status quo cannot continue. Things have to change, and they have to change soon. I hear this call for a change on a daily basis from first nations people, people who want effective and accountable governments, to be more involved and well informed, to participate in the decisions that affect their communities, and they want to be empowered and treated fairly. Many first nations are addressing these issues and are leading the way through innovation and commitment to good governance. Bill C-7 is enabling legislation that supports these successful practices by ensuring that first nations governments across Canada have the tools they need to meet the needs and aspirations of their people. This is about first nations people taking an important step forward. Bill C-7 will help establish the legislative framework and governance foundation for a better future. It is an interim step, an important practical step forward that helps to develop a solid foundation on the capacities for self-government.

Mr. Chairman, I will turn it back to Mr. Aldridge. Thank you.

À (1035)

Mr. Jim Aldridge: From the beginning of our work we understood clearly that the legislative initiative had taken place within a context in which there are already a number of different processes currently under way in Canada whereby first nations are negotiating agreements in respect of various aspects of self-government. These processes, as members will be aware, include negotiations pursuant to the inherent right policy, the comprehensive land claims policy, the British Columbia treaty process, the First Nations Land Management Act, and others. Implicit in these various processes is the idea that a range of solutions to the difficult questions of self-government is not only likely, but inevitable in a country as varied as Canada. These processes also recognize that lasting solutions can only be found when each first nation is directly involved in designing and affirming the details of its own self-government regime and its on-going relationship with the governments of Canada. Ultimately, the aspirations of each first nation are unique, and no “one size fits all” approach can provide the specific tools each first nation requires to address its particular needs and aspirations.

In the meantime bands continue to be burdened by having to function under the archaic and paternalistic provisions of the Indian Act, provisions that no one believes work particularly well. JMAC understood that the intention of this legislative initiative is to address at least some of the problems with the existing regime in order to take an incremental step that will have immediate benefits for the governance of first nations and will facilitate, rather than obviate or interfere with, the establishment of long-term self-government arrangements.

It was in this context that we received our basic instructions, which we set out in the overview chapter of our report--we broke the report into different chapters dealing with various subject matter. For your convenience, you'll also find the same instructions set out in Ms. Hurley's paper at page 8. Those instructions were as follows:

The Minister has clearly statedthat the amendments must not infringe existing aboriginal or treaty rights; must not alter the fiduciary relationship between First Nations and the Crown; must be consistent with the Canadian Charter of Rights and Freedoms, including section 25 of the Charter; must maximize the ability of bands to determine their own governance regimes, while providing those who prefer to operate under a statutory regime the ability to do so, and providing basic rules of political and financial accountability to apply to all bands; and must not impose requirements on bands that many of them would be unable to fulfil due to lack of resources or capacity, or as a result of small populations.

Bearing all those basic instructions in mind, we deliberated and discussed at considerable length all the various topics. In some cases there was consensus on the committee, in many cases there wasn't, and we simply indicated in those situations that there were options, some JMAC members felt one way and some felt another, and we did our best to repeat the views of all members. We set out our conclusions as to the broad approach that would best achieve the objectives at page 8 of our report in the overview chapter, as is also set out at pages 8 and 9 of Ms. Hurley's paper.

À (1040)

Our recommendations were that a bill should be prepared that will include a preamble and a statement of purposes to guide the interpretation and implementation of the act--it does that; include a non-derogation clause--it does not do that; address the legal status and capacity of bands--it does that; provide statutory or default regimes in respect of leadership selection, governance structures, procedures, and financial accountability to apply to every band that does not choose to design its own regime--we give that one a half, because it provides for the establishment of default regimes, but as was discussed earlier this morning, it provides that they will be done by regulation, one of the techniques that was discussed; enable the Governor in Council to enact regulations to provide the details of the default regimes following an appropriate consultation process--it does that; enable bands to design their own regimes in respect of the subjects we discussed, provided that certain essential elements are addressed, while leaving to each band the particular way in which those elements are addressed--it does that; eliminate or reduce the current role of the minister and Governor in Council in band governance--it reduces it considerably, but does not completely eliminate it; establish an independent institution to assist bands with governance, particularly during the transitional period between the enactment of legislation and the coming into force of the default of the band-designed regimes, and to replace some of the current functions of the minister and Governor in Council--it does not do that, although I understand it is contemplated, and we have an entire chapter on the subject of an institution and an ombudsman function that could be considered; finally, bind the Crown, a concept I'll come to later in the paper--it does not do that.

On a review of the bill, as just noted, we saw that many of our recommendations were indeed followed. We certainly didn't expect all of them would be. We know our report was only one of several streams of advice to the minister and the government, and account had to be taken as well of the results of the consultation process, the views of the Department of Indian Affairs, as well as other departments, and the minister's cabinet colleagues. Having said that, we would like to cover a number of issues with you briefly to point out what we consider to be some of the strengths of the bill and some of the areas to which you might wish to give further thought, even recommending changes and improvements, as a part of your task.

As the minister said to you on Monday and as we found throughout the JMAC meetings, reasonable people of good faith can rationally and respectfully address all these subjects, regardless of their complexity, and they are complex, and regardless of their sensitivity, and some of them are quite sensitive. It is in this spirit that we offer the following general observations about the bill as it's currently drafted.

In our view, in its broad contours, the bill does most of what it was supposed to do, enabling bands to design codes or choose to operate under default regimes. It sets out minimum standards or rules. I pause to note that some of these may well be subject to debate, as to whether it's the right list, but it does set out a list of minimum standards, while leaving a great deal of flexibility as to how those standards can be met by different bands or groupings of bands. One of the most challenging parts of our work was trying to decide what these minimum rules should be--a very interesting question--in order to avoid, on the one hand, being too prescriptive, while on the other hand trying to ensure that each band addresses fundamental matters of government, organization, and accountability. There are no simply answers to these questions, and reasonable people can and do differ on whether a particular standard or rule is essential or unduly prescriptive.

The “preamble and purposes” section distinguishes between the establishment of governance tools under this bill and the inherent right of self-government, quite properly recognizing that the latter should be the subject for negotiations. The statement of purpose in clause 3 is particularly salutary and speaks to the need to enable bands that are still under the Indian Act to move forward, pending the implementation of the inherent right of self-government.

Legal capacity is addressed in clause 15. This will enable bands to more easily enter into commercial and other arrangements, while not turning bands into corporations or affecting their unique legal status. Most important, the interest in reserve lands and Indian moneys, which are held not by the band, but by the members of the band in common, is not to be affected or put at risk by this clarification of capacity--I refer you to subclause 15(4). It should be noted as well that some JMAC members considered that this provision should be optional.

It is essential that any government's laws be known to the public; there should not be such a thing as secret laws. To this end, the provisions of the bill in respect of registries of laws are also salutary, in clause 30. We would be remiss if we failed to point out that the bill does not provide for the enactment and registration of laws in the first nation's own language. Some JMAC members felt such a measure would facilitate the protection and rejuvenation of first nations languages across Canada. You can find a lengthy discussion of that idea at page 27 of our report, appendix 1.

There are also a number of matters in respect of which the bill might be improved and concerning which there may well be submissions and debate from other witnesses, as well as committee members. We would like to briefly identify some of the most important areas and indicate the reasoning of JMAC members in respect of these items. There are four particular topics to which we would like to draw your attention. In no particular order of priority, these topics are the absence of a non-derogation provision; the need to treat all bands equally in respect of leadership selection; something discussed already today, powers of band enforcement officers; and ensuring that the act is binding on the federal government and its employees.

The absence of a non-derogation provision is turning into a broader issue that transcends this bill, extending to the notion of non-derogation through a variety of pieces of legislation. If you'll bear with me, I would like to set out our reasoning on this very important question.

À (1045)

As pointed out, one of JMAC's fundamental instructions was to advise how to ensure that the legislation does not infringe upon aboriginal or treaty rights. JMAC's advice was that the only way to ensure that this objective is satisfied is for the bill to clearly state Parliament's intention not to infringe upon those rights. Such a statement of legislative intent is called a non-derogation provision, which is a fairly lengthy description of a statement of Parliament's intent not to infringe. Non-derogation clauses or provisions have been routinely included in many federal statutes over the course of the last two decades. Our discussion of non-derogation provisions is set out in appendix 2 of the overview chapter of our report, commencing at page 21 of that chapter. In that appendix we argue that the so-called non-derogation provision drafted by the Department of Justice and included in a number of recent enactments and bills is at best ineffective, and we set out options and reasons for having an effective non-derogation clause.

We understand that the Department of Justice now advises against including effective non-derogation clauses such as those that were used by the Parliament of Canada between, roughly, 1985 and 1996. It prefers instead a clause most JMAC members and other lawyers who have examined the issue consider to be ineffective. Justice lawyers have said to other committees and to this committee and other contacts that those who propose effective non-derogation clauses are really trying to enhance or to top up the constitutional protection afforded to aboriginal and treaty rights by section 35 of the Constitution Act 1982. With respect, this is simply not correct. The arguments that have been presented by the Department of Justice in support of their view fail to make the basic distinction between an expression of legislative intent and constitutional capacity. A non-derogation provision is an expression of Parliament's intent not to infringe upon aboriginal and treaty rights. It is not, nor could it be, an enhancement of constitutional protection against such infringements. You can't alter the Constitution by ordinary legislation.

As committee members are no doubt aware, the Supreme Court of Canada has ruled that aboriginal and treaty rights are not absolute. Parliament can, in support of a valid legislation objective, infringe upon those rights, provided that the government can satisfy the courts that the infringement is justified in accordance with the honour of the Crown. In the absence of an effective non-derogation clause, the Government of Canada reserves its ability to subsequently argue that any infringement of aboriginal or treaty rights under an enactment is justified, regardless of whether or not Parliament intended to infringe upon those rights, indeed, even if Parliament intended the contrary. If an enactment does not include an effective non-derogation provision, the Crown can later argue in court, long after the political debate has ended, that Parliament did intend to infringe upon aboriginal and treaty rights after all, and moreover, that it was justified in doing so.

It is our view that if the intention of a bill is to infringe upon aboriginal and treaty rights, the government should boldly and unambiguously say so, identify the infringement, and engage in the political debate about whether the infringement is justified. If Parliament's intention is not to infringe upon those rights, an effective non-derogation clause must be included. There should not be accidental or hidden infringements. Section 35 protects aboriginal people when Parliament intends to infringe upon their rights; non-derogation provisions are used when Parliament does not intend to infringe upon those rights.

The easiest way, Mr. Chair, to understand this issue is to imagine someone coming to a minister about a bill and saying they oppose a proposed bill on the basis that it infringes upon their rights. At that point the minister would have three choices. He or she could say it does not infringe upon those rights, in which case they should write that down and include it in the bill. He or she could say the bill does infringe upon the rights, but the infringement is justified, for whatever reasons, in which case there can be a political debate. Or he or she could say they don't know whether it infringes upon the rights. Those are the only choices--it does, it doesn't, or “I don't know”. If they say they don't know whether it infringes, the person is unlikely to be very comforted, and there will not be a proper political debate on the issue.

À (1050)

If there is no effective non-derogation clause, the question of any infringement and its justification will then have to be pronounced on through the expensive, time-consuming, and divisive process of litigation. If there is an effective non-derogation provision, the bill will in all probability be implemented and administered in a way that avoids possible infringement. While this makes litigation much less likely, if litigation is unavoidable, Parliament will have ensured that the courts give expression to its intent by reading down the section, avoiding the infringement, and not enabling government lawyers to attempt to justify something Parliament never intended in the first place. That's what these provisions do. To repeat, this is not about an increase in constitutional protection, it is rather about whether Parliament can and should clearly state its legislative intent. We can see no legal or technical reason that Parliament should be precluded from stating its legislative intention not to infringe upon aboriginal and treaty rights.

I move to the need to treat all bands equally in respect of leadership selection. Clause 5 of the bill establishes three categories of bands, each of which has different options, depending on the category in which it finds itself. JMAC recommended that all bands should be treated equally and have the same choices available to them. Instead of treating all bands equally, the bill will entrench and continue distinctions caused by the current Indian Act, which, in our view, are arbitrary and discriminatory. JMAC set out its views on this topic--and it's a large and complex topic--in the chapter on leadership selection and voting rights. To understand clause 5 of the bill, it's necessary to be familiar with the content and effect of section 74 of the current Indian Act. We set out this background, as well as certain key judicial pronouncements interpreting and applying these provisions, at pages 2 and following.

To summarize, at the present time, as members may know, there are three broad categories of leadership selection regimes in place in Canada. There are what are referred to as section 74 bands. Those are the bands that currently operate under the election provisions of the Indian Act. We were advised there are approximately 260 of those. The second category we referred to as custom election bands. Custom election bands are bands to which section 74 does not apply, but that currently have their own election codes, all bands that have “reverted to custom” since 1988 and an unknown number of bands that developed election codes before 1988. The final category is other custom bands. Those are bands to which section 74 does not apply, but that do not currently select leaders by way of elections. We're not sure how many of those bands there are, but we understand there are perhaps 10 or 11 in the entire country.

It is vital to understand that “custom” does not mean the same thing as “traditional” or “hereditary”, although these might well be customary forms of government. Rather, custom bands are simply those that have adopted their own means of selecting their leaders, rather than having rules imposed upon them under section 74. It is also vital to understand that the power of bands to establish their own leadership selection rules through custom is not a power granted by the Indian Act. As the Federal Court of Canada has put it, “it is an inherent power of the band, it is a power the band has always had, which the Indian Act only interferes with in limited circumstances, as provided under section 74 of the act.”

JMAC said at page 18 of that chapter of our report that the ability of bands to establish their own leadership selection regimes is likely an aboriginal right, a treaty right, or both. Imposing a regime on a band that prefers to select its leaders using some other regime would therefore likely be an infringement of that right. To address this, JMAC proposed that there be provisions to accommodate the different circumstances of bands, while respecting their rights, by establishing default election procedures that will apply to every band, unless the membership of the band adopts a different regime in accordance with the act--so their choice is maintained;establishing a means by which bands can adopt their own election codes or other leadership selection regimes, provided that certain basic standards of political accountability are maintained, clearly setting out the basic standards of political accountability consistent with the default rules with which any band-designed regime must comply; and ensuring that the basic standards are as unintrusive and non-prescriptive as possible, while striving for a high degree of political accountability--always working that balance.

À (1055)

The bill takes a different approach. It treats bands differently based solely on whether or not a band is currently under section 74, under a custom election regime, or otherwise. Subclause 5(1) of this bill provides that section 74 bands must always have a leadership selection code that includes specified rules in respect of the listed subjects or be under the default regime. With bands that are not subject to section 74, but currently have election codes, custom election bands, subclause 5(2) provides that they may adopt a leadership selection code that complies with the act or adopt the custom election rules they had on a specified date, which must include rules about some, but not all, of the matters that are listed in subclause 5(1), or go under the default rules. For example, the leadership selection codes of these bands will not have to include rules specifying the size and composition of their council. They will not be required to have a majority of members of their councils elected. They will not need rules specifying the term of office, not to exceed five years, or rules respecting the manner of filling vacancies, removal from office, corrupt electoral processes, and so on.

We do not understand why bands that are currently under section 74 should be required to have rules about all these matters, while bands that are not under section 74, but have adopted electoral processes should not be required to have them. Either all bands that design their own election codes should be required to address all these matters or none of them should. In our view, the distinction between different categories of bands, both of which intend to elect their leadership, is unsupportable. That's not to say the list is the right list, as I indicated at the beginning; reasonable people can differ as to what that list should be. Our point is that it should be the same.

Finally, with bands that are not subject to section 74 and currently select their leaders by traditional or other non-electoral means, subclause 5(2) provides that they may have a leadership selection code that complies with the act, the custom rules they had on a specified date, or the default rules. In other words, they can maintain a non-electoral system or be subject to the same rules that apply to section 74 bands, but they can't have an electoral system similar to that of bands in the second category. Once again, in our view, the distinction is unsupportable.

It was JMAC's view that the Indian Act's outdated distinction should not be frozen into the bill and carried forward based on the historical accident or design that has resulted in some bands being under section 74, some under custom elections, and some with other regimes. We believe there's no good reason for restricting choices available to bands that are currently under section 74 and carrying forward historical anomalies and injustices. Indeed, it's possible that doing so may very well violate the equality provisions of the Canadian Charter of Rights and Freedoms.

Moreover, in considering clause 5 as it now reads, it's necessary to confront the simple fact that restricting bands in respect of their leadership selection is almost certainly an infringement of the inherent right already recognized by the courts to select leaders according to custom and to have their customs evolve in accordance with the broad consensus of the community. We've listed all those court decisions in the appropriate excerpts in the report for members' consideration.

In JMAC's view, then, it is most simple and most fair to provide all bands with the same options for leadership selection, either the default regime, or a band-designed election code that complies with the act, or any other regime, provided that it's written, is accepted by the membership, and can be changed by the membership. It's our view that those are the only conditions that need to be imposed, and every band would have the same choice.

The next topic is the powers of band enforcement officers. I was privileged to listen to some of the discussion this morning with Ms. Paul. For the sake of time, I won't go into it in too much detail, although members may wish to ask us questions about it. I can say generally that the provisions of the bill that create the band enforcement officer are, in our view, problematic. They did not result from our report, although we did address the need for better enforcement and prosecution of band laws. That's important. We believe the proposed powers of the band enforcement officer are too broad, and there need to be well thought out legal controls and accountability. There's a real question about whether or not the powers of this officer to go into premises would be contrary to section 8 of the Canadian Charter of Rights and Freedoms, providing that everyone has the right to be secure against unreasonable search and seizure.

Á (1100)

What members do need to realize is that there is a real problem with enforcement of band laws that exist today, largely as a result of the reluctance of many, though not all, police officers to treat these laws seriously and to enforce them, either because of attitudinal issues, because of lack of funding for that particular purpose, or for other reasons discussed, again, in our report. So we assume that these provisions reflect a good intention to empower bands and to bring about enforcement of their laws--laws have to be enforced--but we believe there should be some rethinking of the particular approach that's been taken.

The last general topic I wish to go over briefly with you is ensuring that the act is binding on the federal government and its employees. JMAC's advice in respect of this important question is set out at page 19 of the overview chapter of our report. “Is the legislation binding on the Crown?” is the technically correct way of describing this issue, but in ordinary terms, the simple question is whether the federal and provincial governments and their employees will be required to comply with band laws. Will a Department of Fisheries official have to comply with speed limits on the reserve, or will he or she be immune to them because of Crown immunity? Will governments be able to ignore zoning laws and trespass laws? Will a department be able to run machinery late into the night in contravention of noise bylaws? In other words, do the band's laws apply to officials and servants of the federal and provincial governments?

The reason that becomes a question in federal legislation is section 17 of the Interpretation Act. Of course, everybody spends their time paging through the Interpretation Act, but it's one of the basic rules that governs your drafting and passage and enactment of legislation. Section 17 of the federal Interpretation Act says, “No enactment is binding on her Majesty or affects her Majesty or her Majesty's rights or prerogatives in any manner except as mentioned or referred to in the enactment”. In other words, the enactment has to expressly provide that it's binding on the Crown in order for the provisions of the act to apply to the federal government's agents and servants. That's different from many provincial interpretation acts, where the reverse is true. Certainly in British Columbia, where I come from, the Interpretation Act says every enactment is binding on the Crown unless it says it isn't. The federal legislation says no enactment is binding on the Crown unless it says it is.

An example of the sort of clause that's required is, in fact, in the First Nations Land Management Act, section 3: “This act is binding on her Majesty in right of Canada and any reference in this act to her Majesty means her Majesty in right of Canada”. Clearly, federal officials do have to comply with laws enacted by bands under the First Nations Land Management Act. In order to ensure that the proposed amendments are binding on the Crown and that they'll work consistently with the FNLMA, JMAC advised that a similar clause be included with these amendments. Otherwise, you can see the problem. A band may be operating under the First Nations Land Management Act, under which it has a number of law-making powers, and simultaneously under the First Nations Governance Act, under which it has a bunch of law-making powers. And they would actually have to go through the process of thinking, if we enact it under FNLMA, then the federal civil servants will have to obey it when they come onto our land, but if we enact it under the First Nations Governance Act, they won't. It's a silly and artificial distinction that bands should not, in our view, be burdened with.

I should point that if the concern is that a band law could prevent federal officials from carrying out their duties, if that's the reason for it, it should not be a problem, because the band law could not preclude them from carrying out a duty they're required by law to perform, in light of the conflict of laws provisions: if there's a conflict between a band law and a federal law, the federal law prevails to the extent of the conflict. But the absence of a clause binding the Crown will create a fundamental inconsistency between law-making by a band under this act and by the same band under the FNLMA, a technical point, but one that can be easily addressed.

There are a number of other largely technical problems, drafting problems, glitches, and so on with the current wording of the bill, many of which can be attributed, I'm sure, to drafting difficulties. I'll give you a few examples before I close.

Á (1105)

Subclause 4(3) is important, because it deals with the application of the default regulations. The way it's drafted, at least in the English version, is ambiguous. It says a code dealing with “the same matters” doesn't apply. What does “the same matters” mean? It could therefore be ineffective. Clearly, the intention is that a band should be able to choose to be completely under its own code or under the default regime. And the concern is that the clause, as drafted, could be interpreted as imposing particular matters from the default regime on bands who have chosen not to include those elements in their own code. I do not believe that's the intention, but it could be read that way.

Subclause 32(1) empowers the Governor in Council to establish default regimes by way of regulation, also discussed earlier today, but what it does not provide is that those default regimes are subject to the same minimum requirements as will apply to band-designed codes. We believe this was the intent, that the same ground rules, the same standards, apply whether the Governor in Council is doing it or the band is doing it, but it doesn't provide for that, and it should, in our respectful view, clearly so provide.

Clauses 16 and 17 distinguish between laws made for local purposes and laws made for band purposes. In our view, particularly when you review the matters that are listed, that distinction is not easy to understand, and maybe some thought could be given to that.

Clause 41, which was referred to this morning, is the new language that's to be included in the Canadian Human Rights Act. In our view, the proposed language is not clear. Its interpretation is difficult to predict. Specifically, what is the relationship between the needs and aspirations of a first nations community, which are to be taken into account, and the rights of that community, which are not referred to? How does it fit into the overall regime? JMAC recommended that this change should take place in the context of the overall review of the Canadian human rights approach, rather than just being picked off.

I'll tell you how it happened. The federal panel reviewing the Canadian Human Rights Code recommended--and we set out the recommendations--that section 67 be repealed, but that there be an interpretative clause that would have a certain effect, and they describe, as opposed to drafting, the clause. It appears that the drafters of this legislation took that description, which I believe wasn't intended necessarily to be the drafted clause, and put it in. So it's a description that seems to point in some direction, but with the greatest of respect, it's not drafted in a legally rigorous way, so it's difficult to predict exactly how it will be interpreted.

In conclusion, we hope very sincerely that this presentation and, more importantly, the entire JMAC Report will prove to be of assistance to you as you continue in your consideration of this important bill. We would like to say that Roy and I have been privileged to participate in the development of this project. We believe that with your assistance and consideration of the input you'll be receiving in the next weeks and months, this bill can constitute an important step on the road to the restoration of real self-government by first nations.

We're certainly available for questions now, Mr. Chair.

Á (1110)

The Chair: Thank you very much. We realize the amount of work we will have to do. You have provided us with a wealth of information, and we appreciate that. We will have the benefit of having your report. I'm glad there's not a test after your presentation, but we will certainly be referring to your document many times.

As heartbreaking and embarrassing as it is for us, as Canadians, to hear of the suffering aboriginal people endure, I'm pleased that Mr. Bird put it on record. It reinforces the commitment members of this committee have made to work diligently and seriously and to take this legislation to heart. You will notice that there's very little politics in this committee. The members are committed. In the next nine weeks we'll spend an awful lot of time together, and I'm sure we'll get along. And because of your fine work, I am convinced that the situation of those people we love will improve.

Nine minutes, Mr. Vellacott.

Mr. Maurice Vellacott: Okay. Thank you very much.

It's good, Mr. Aldridge, to have you here today. It's good to see Roy again as well. I remember the last time we met was some months ago on an airplane, where we had a very helpful, candid conversation. Fortunately, Dick Proctor wasn't in the seat behind us, so it was candid and it was beneficial, and I thank you for that. I know your heart for your people. I have a brother, Randy Vellacott, at Timber Bay, up near Montreal Lake, and he knows of a number of the Bird family members who serve commendably in leadership in Montreal Lake up in Saskatchewan.

The initial recommendation was to make legislative changes by way of amendments to the Indian Act, rather than in a piece of stand-alone legislation like this. Why was that suggestion made? Can you give be a little background to some of the discussion? I know it's there in some of the stuff, but a little flavour or feel for it would be good. And are you quite disappointed in how it worked out, if that was your initial recommendation?

Mr. Jim Aldridge: To answer your last question first, no, not particularly. For your later reference, we discuss it really on page 9 of the overview chapter. We set out a number of reasons, and I won't read it all to you. There is no legal significance to the decision whether to do it by way of amendments to the Indian Act or by way of stand-alone legislation. The statutes of Canada all fit together, and whether there is one statute or five statutes, if they have the same sections, has no legal significance.

One of the reasons we recommended that it be by way of amendments to the Indian Act was that we thought it would be technically simpler. It's a more complex task to draft a stand-alone piece of legislation and ensure that you have all the consequential amendments and the places where the two acts refer to each other, to make sure you get it right, than it is if you do it within an act itself. It's a technical preference for keeping it simple. It's not driven by any policy or ideological reason at that level.

The second was a pragmatic reason for the utility of bands. When this is all done, they're out there, they have a book, and they have to look and find out what the law is. It would be easier for them, we thought, if, to the greatest extent possible, it's in a single statute. There's already something of a proliferation of rules by the time you take the Indian Act and put it together with the First Nations Land Management Act, and now there'll be a First Nations Governance Act. It's not impossible, you just have to turn more pages and get the cross references correct.

Certain JMAC members felt strongly that amending the Indian Act, rather than establishing a new statute, would more clearly indicate the transitional nature of this bill. But to a great extent, that concern is addressed by the preambles and purposes clause, if you see what I mean.

Those were the main considerations.

Á (1115)

Mr. Maurice Vellacott: Thank you.

Mr. Bird, you would know the bands across our province, across the west, across the country, and the struggles they have. They want to get this thing right, but there's not the capacity, as things stand. It's growing. Is this going to be a real deficiency in getting bands up, getting people with a capacity to do this kind of stuff, particularly if there's not an independent institution set up, as was suggested?

Mr. Roy Bird: More than 50% of our bands are in financial trouble in Saskatchewan. There's no simple answer to that. A governance institute with the ability to build capacity and work with the bands is the way we wanted this bill to go. Right now in Saskatchewan we have approximately nine bands in third-party management. As they get into financial difficulty, we then start the process of moving in, yet we don't have a process of building that capacity, of helping them to train their people in governance and administration. There is in the prairies, and particularly in Saskatchewan, a need to support first nations in development, building that capacity, especially in the financial field.

The other element to Bill C-7 is that the code will force the bands to go to their membership with their budgets, with their financial plan. The band membership will finally be able to review that and to say yes or no to the financial plan. Right now councils don't have to do that, and they don't do that in a lot of situations. There are many bands that do that; they have three or four assemblies per year. The issue is to empower the membership to say yes or no to education. In a recent exhaustive poll done in first nations communities 86% of the membership said education is their key concern. Yet we find that in some cases money for education is diverted to other areas. In our case, a kid in grade seven who goes from Montreal to Saskatoon will probably be put back into grade six, maybe even grade five, because of the capacity in the school. The quality in the school is hindered by money being taken.

I think the governance institute is required to support the bands, but legislation is also required.

Mr. Maurice Vellacott: Okay.

I'll come back to this at a later point as well, but I might as well launch into it now. With the issue of the default codes, you were privy to all the discussions that went on there. Are you satisfied with the fact that they're totally in the regulations? Is there going to be any kind of consultation, or do we basically sign a blank cheque here? You have the provisions in the act, and it goes to a default code otherwise. Roy or Jim, I don't know how comfortable you are in respect of that. Are there ways we can make everybody concerned a little more comfortable that there are going to be good default codes?

Mr. Jim Aldridge: We discussed this quite a lot at JMAC. There's a balancing, again, between having rules, in this case about the default, in the legislation, which means they're clear and well known, but relatively difficult to change--it requires a statutory amendment--and having them in regulations, which are usually the place, as you know, where detailed rules are promulgated, and they are much easier to change. So questions of practicality and questions of predictability start to be balanced against each other. We discussed it a lot.

What the act should do--and I alluded to this--is make it clear that the Governor in Council is bound by the same standards as bands, can't go beyond those. We're told there will be detailed consultations on the contents of the regulations at the appropriate time, so people will then have their views known, and we understand there's a regulatory review process, different from that with statutes, but nonetheless a regulatory review process, at which time those comments will no doubt be taken into account. But in my view, it is important to make sure the standards, the basic ground rules are the same.

Á (1120)

The Chair: Thank you.

Mr. Hubbard, seven minutes.

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

Chief Bird, it's disheartening to hear your presentation of the way you see life on many of our first nations reserves. All of us deal with various groups. The presentation we heard this morning is so strong in urging that we need to make change, but groups appeared just this week who tell us change should not occur, but we should live with the old Indian Act. Those people, apparently, are representative of their first nations. I don't want to put you or Mr. Aldridge on the spot, but it's difficult for us to look at maybe 600 leaders across the country and hear people who say, don't do anything, then to hear today what is going on in some area, and bring legislation, send it back to House, changing something about 600 chiefs across Canada think we shouldn't do. It's a formidable task for us to say to Chief Coon Come and all the people he represents that we hear others saying change has to occur.

I'm not sure if you want to comment on that, but from my perspective, it's something we have to be concerned about.

This morning, Mr. Aldridge, you spoke about election of chiefs. Tied into that, of course, is the time-honoured concept many of us so-called European people have had, that we've evolved through a system of voting. At one time it was open voting, and then we went to secret ballots, and then we went to giving votes to even women in this country less than a hundred years ago. So changes do occur. The Indian Act, of course, is probably fixed in time. You said codes must be written, the methods of election must be available to everyone on reserve, and I think you also said there must be a way of amending the method, whether it be customary or otherwise. But how is this approved? We talk about codes, we talk about processes. Would there be secret ballots? Would it be standing behind one person who represents one idea and another person who represents another to show which has the stronger force? How would you see this happening?

Mr. Jim Aldridge: The recommendation the committee made was that there be some means by which--I'm choosing my terms carefully here--the broad consensus of the community would be demonstrated. That's what the courts have said is the situation now. The courts have clearly said there's an inherent right for a broad consensus of the community to have their custom evolve. So if we don't want to infringe that right, we should try to stay close to that kind of language.

How should the broad consensus be evinced? There are a number of different ways. We list them, starting at page 14 of the overview chapter of our report. Briefly, what we tried to set out for consideration of readers of the report was that there are challenges with every way of doing it. Let's say it's a simple majority of those voting in a secret ballot, but there's a very low turnout. Then a very small number of the community would, in effect, be deciding something that is fairly fundamental. Some people thought, it's just not right; what it should be is a simple majority of everybody who is entitled to vote, whether they vote or not. That's going to show a higher consensus, but it could be a problem too, because it means people who choose not to vote are taken as a vote against; apathy actually becomes a vote against. Other people talked about having a double majority. You would have people voting on reserve, people voting off reserve. Other people suggested that in many first nations communities consensus is established not by voting, but by sitting together and talking the issue out until people are comfortable that there is a consensus.

We outlined options for consideration. I should mention one other. The First Nations Land Management Act provides for a referendum, in which at least 25% of the public have to vote in favour, but the band can increase that threshold before the vote. If the band thinks this is so important that it shouldn't just be 25%, it can increase it to 40% or whatever they want. This bill doesn't have exactly the same technique as the First Nations Land Management Act.

So there's a range of choices for people to make. We would urge that a high degree of regard be paid to the way in which the community has made its decisions in the past, as long as there is some ascertainable way of telling whether there's a broad consensus of the community and support.

The second part of your question, Mr. Hubbard, is, who can initiate such a change? Under the bill, as was mentioned this morning, the adoption of a code can only be initiated by chief and council. If they adopt a code, they can put their own amending formula in, where they would figure out how it could be changed in the future, and that should be fine, but the first time out requires chief in council to initiate it. That's something else you might want to consider and ask witnesses about, whether there should be some way in which the band members themselves could initiate that process, regardless of whether the chief in council were so inclined. The problem with that is, of course, then you have a referendum on whether to have a referendum; you can get an infinite regression as well.

These things all have to be balanced out. I would ask you simply to focus on and be very sensitive to the fact that the courts have said the broad consensus is the test.

Á (1125)

The Chair: Thank you.

Because these meetings are recorded, I wouldn't want people, in 20 years, when they read everything that is said here, not to understand the intent of a comment that was made. I know Mr. Hubbard very well, he's a close friend, and when Mr. Hubbard says “even women”, he's not suggesting it's a generous gesture that finally Canadians made. It's his way of saying, we finally saw the light.

Mr. Charles Hubbard: I can only say we made great progress among our own people with voting procedures. I certainly meant that changes occurred. This morning a good amount of our evidence seemed to say that with our women in first nations, the act of 1876 is set in time, but things have changed in Canada. I think that's what we're hearing, Mr. Chairman. I'm sorry if you took it wrong.

The Chair: No, I did not take it wrong. I just don't want people in 20 years to take it wrong when they read it. I understood very clearly.

Mr. Chatters, five minutes.

Mr. David Chatters: Thank you, Mr. Chairman.

I'd like to thank both gentlemen for an excellent presentation. There's just so much here to absorb that I'm not sure we won't have to go over and over the transcripts. I've seen many of the things Mr. Bird spoke about in my constituency, and Indian people continually come to my office looking for somewhere to go, pleading for help to deal with some of the issues you spoke about. I find it extremely frustrating that there doesn't seem to be any way I can help them address those kinds of things.

I want to focus in this bill, at least to some degree, on the establishment of the enforcement officer and the ombudsman position. What's proposed in this bill seems to me totally inadequate, that those positions would be put in place by the chief in council. Most of the complaints I get are about the actions of the existing chief in council. It doesn't seem to me that the chief in council establishing those positions for the band members to take their complaints to is in any way adequate. So I'd like you to comment on that one.

You went on for some time on this non-derogation clause, and I would certainly agree with your position on it. If we could solve some of the other issues on aboriginal and treaty rights before we got into this bill, so that there was a consensus in Canada between aboriginal people and the government as to the definition of treaty and aboriginal rights, there wouldn't be a problem with that clause. But I don't know what the definition is. I have a sense that it may be different for aboriginal people from what it is for the Canadian government. So I see that as a problem.

Mr. Bird did make a comment that the default codes would require the band to take its financial plan to the membership for approval. That struck me as strange, because you spoke as if there were some guidelines in the default codes, and we are desperately looking for any indication of what those guidelines might be. I'd like you to comment on that.

Á (1130)

Mr. Roy Bird: I'll try to answer the last one first about the code. With the preparation of an annual budget for each fiscal year, the council has to take it to its membership for adoption and to explain exactly where they're going to spend their money. I was a chief in my own band for many years, and we built a strong governance capacity by doing that on a regular basis and by having assemblies and telling the people exactly where we were spending the money. This Bill C-7 will make sure the council take their budget to the people. Bill C-7 also ensures that they meet a minimum of at least once a year, and we know of bands that don't meet. It ensures that they take the budget to the people for acceptance, and then they have to spend the way the people have told them to spend.

I just want to comment quickly on the other matter. It's disheartening to hear leaders' personal comments that there's no need for change. There is a need out there. In Saskatchewan our budget is about $615 million a year. Fifty per cent of the people live on reserve, 50% off reserve. As I mentioned before, 80% of people in provincial jails are aboriginal people. You go to the emergency rooms in the hospitals in Saskatoon, Prince Albert, and Regina, and the majority of people there are aboriginal people. The education standards are different on reserve and off reserve, and we're making an effort to deal with that. A lot of children are now under care. There are things happening. Maybe it's a fear of the unknown, I don't know, but beneath that is the viciousness, the cycle of violence, the cycle of drugs and alcohol and suicides.

There is a quick story I want to tell about a young lady in my reserve many years ago who was overcome by drugs and alcohol and despair--there's no hope out there--and at 16 she hung herself. Her boyfriend, a week later, with the same problems, went to the graveyard, right to the cross, took the drugs, put a small rope around the cross and his neck, and the next morning he was found there--a suicide.

So when people say there's no need to change, I disagree, because there is a need to change for our youth who are going to ensure that our aboriginal people grow. Particularly in Saskatchewan, we need to make sure the skills are there to sustain that province. When people say there's no need for change, where are they coming from? It's just a personal opinion.

Á (1135)

Mr. Jim Aldridge: Mr. Chair, is there any time left for the other points Mr. Chatters raised?

The Chair: No, but you will have an opportunity, you will have closing remarks.

Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: I very much appreciate Mr. Bird's comments, because sometimes, when we have legislation and some people are at opposite ends, it's our job to try to find some middle ground, and as Mr. Hubbard commented earlier, that becomes a very difficult job for us.

In light of the comments I heard this morning, I know the approach has been to try to make things as flexible as possible, so that different groups across the country have some ability to adapt matters to their own area. When we make national laws, of course, trying to please everyone is difficult. I know there will end up being very many different codes across the country. So how do we effect that balance, making sure there's enough flexibility that they can cater to their own area of the country in a way that fits in under this legislation, but without setting up very different situations where the human rights adjudicators will be flooded with different complaints, going from 50 aboriginal situations a year to maybe 1,000, because this legislation allowed so many different situations when we were trying to make it as flexible as possible for different groups to fit their needs?

Mr. Jim Aldridge: If I may say, Mr. Chair, the member has put her finger on exactly what makes this such an interesting and complex question. How does one both establish minimum rules of government that there's some ability and desire to say everyone must live up to, while at the same time recognizing the need for flexibility, the need for different arrangements, and indeed, the historical rights of first nations to determine the rules under which they wish to govern themselves? That's the question. We had our best shot at answering those questions under the various subject headings in our report, indicating that on some things there was consensus and on some things there wasn't.

I will say this, no matter what our background is--and we found this on JMAC very much--we all of us have to be careful of thinking that just because a particular value is manifested in our society, with the kind of institutions and evolution Mr. Hubbard was talking about a little while ago, that is therefore, through some Darwinian process, the only way or the best way in which the values we all share can properly be expressed. Here's an example. There's a requirement in clause 5 that a majority of members of council be elected. One superficial reaction is, of course, how could it be otherwise? But if you think for a minute about it, maybe there's a situation where you could have a majority of people not elected, but appointed by their families or their elders, but without the same voting rights; they're there to represent an elder's viewpoint. People may find it surprising that there's a government institution in this country that has a second house full of people none of whom have been elected, and in order to get there, they have to have a certain amount of property. Yet it's part of our governmental system that has evolved. To someone from outside it may seem quite bizarre--perhaps even to some people on the inside. In any event, we can't leap to an assessment of these things that seem obvious.

I don't have any simple or glib answer. We wrestled with those questions and set out our recommendations in our report.

Á (1140)

The Chair: Thank you.

If you want to address the last question, can you do that in about 40 seconds?

Mr. Jim Aldridge: Band enforcement officers I won't speak about during those 40 seconds. I did want to say, though, don't be too negative about the complaints and redress provisions, the mere fact that the chief and council establish this. Members wouldn't want to conclude that they will therefore necessarily lack impartiality. The statute expressly requires, in clause 11, the council of the band to “authorize an impartial person or an impartial body” to carry out the complaints and redress function. I don't think we should predict this or assume the worst about people. If it weren't impartial, it wouldn't comply with the law, and a complainant could have it set aside on the grounds of lack of impartiality, reasonable apprehension of bias. I know the member wouldn't suggest that just because it's a small community, just because it's chief in council, they won't take the responsibility to appoint somebody impartial very seriously. I think, in most cases, they will.

The Chair: Thank you very much.

Mr. David Chatters: I'll discuss that further with you afterwards.

[Translation]

The Chair: Mr. Loubier.

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): No, it is all right.

[English]

The Chair: Ms. Neville.

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

Let me begin by thanking you for your presentation. As a relative newcomer to this committee, I found it a very enlightening and pithy presentation, for lack of a better word. I also want to say to you, Mr. Bird, that I was very moved by your comments. As somebody from Manitoba who has travelled in the north a fair bit, I have seen, if not experienced, much of what you described. I too would question the the support you have for this bill, as opposed to others who have appeared before us.

I'm just getting my head around this bill and the complexities of it, but I want to ask some questions about the leadership selection. Your report proposed that legislation related to leadership selection include all members, that everybody participate, and Bill C-7 indicates that non-custom leadership selection codes should respect the right of those both on-reserve and off-reserve, while it does not make the same requirement of custom election codes. So I'm curious about how you see the differential treatment of off-reserve members with the leadership selection system in place. Do you think it is potentially open to charter challenges?

Also, there's a specific requirement in the bill for an appeal process to the minister, based on elective band council positions. I'd like some comment on that, because there has certainly been a lot of criticism of ongoing ministerial responsibility as it relates to elective boards.

Mr. Jim Aldridge: In respect of the first question, I'm a little at a loss, and I may have to actually find the reference, but I can advise that JMAC's recommendation in respect of this was not a “one size fits all”.

The Chair: Excuse me. The reference is subclause 5(5).

Mr. Jim Aldridge: Thank you.

Ms. Anita Neville: I'm sorry, I should have given it to you.

Á (1145)

Mr. Jim Aldridge: Subclause 5(5) is, in a way, an expression of the principles that emerged from the Supreme Court of Canada's decision in Corbiere. We spent a great deal of time wrestling with this difficult conundrum. On the one hand, we were to give advice in respect of voting rights, on the other hand, we were not asked, because it was not part of this initiative, to deal with the issue of membership. So you take as a given the existing membership rules, you take as a given the Supreme Court of Canada's pronouncements in Corbiere, and then notice that even though the Supreme Court of Canada gave the government so much time to solve it, it didn't, and we wanted to say how happy we were to be stuck with that one too. I don't mean stuck with it, but it was another big challenge, almost enough of a challenge all by itself.

What the discussion revealed was that there is indeed a tension between working out voting rights between people who are most directly affected by decisions and those who, while affected, are much more peripherally affected. We struggled with questions such as this. You could have a band in which a small number of members continue to reside on reserve, not because they don't want to, but because there aren't opportunities for them. So perhaps 80% of the membership live in a city 100 miles away. Should they really be able to control the day-to-day decisions about noise bylaws? They don't care, they're not living there. On the other hand, there are questions that will deal with their joint assets, the reserve land or reserve money, and they're really interested in that. How do you balance these things out?

We came up with a number of different options, which we listed, and you can drive yourself--and perhaps I'm testament to this--quite insane trying to balance out how these different voting schemes might work. We attached them all, for anybody who wants to take a look in our report, in appendix 1 of the leadership selection chapter, starting at page 34. What we did was enunciate a principle for the statute, and we think subclause 5(5) captures that principle. Is it susceptible to a charter challenge? Everything is susceptible to a charter challenge. Is it likely to be overturned? Not if the band seriously addresses itself to taking people's interests seriously. That's what the Supreme Court of Canada said to do, and bands, we believe, are able to do that.

The Chair: Thank you.

Mr. Vellacott, you have two minutes.

Mr. Maurice Vellacott: On the enforcement officers and so on, you said you thought the powers were too broad. Do you think this should be thrown out of the present bill, because it wasn't anything you had discussion about, as being too broad? Should we dispense with it altogether and move it out of here?

Mr. Jim Aldridge: In my view, yes, but there should be something else that addresses the enforcement of band laws, which could even be something like a direction to police officers to take first nations laws seriously. As it is, this is very problematic, so either rethink it and put something else in or be rid of it.

Mr. Maurice Vellacott: Second, you made the statement, Mr. Aldridge, about having the same uniform leadership selection process for those under section 74 of the Indian Act and those under custom and other regimes. I enjoy history a bit, and I have a historical curiosity here. You talked about the need, whatever it is, for uniformity across the piece and political accountability in the whole process of selection of leaders. Would hereditary chiefs fall into the category of political accountability?

Mr. Jim Aldridge: In my view, yes.

Mr. Maurice Vellacott: Can you describe that for me? If I understand this correctly, it's passed on by family line. If somebody goes bad on it, how do you hold him accountable? How is there political accountability? They're in forever, kind of like the Queen, her heirs and successors.

Mr. Jim Aldridge: Take away their heredity? No, you can't do that.

Mr. Maurice Vellacott: I want to know how political accountability works in this instance.

Mr. Jim Aldridge: Basically, the view would be this. If a band chooses, through voting in a referendum, to continue to be governed by a hereditary system they know and understand, they should be entitled to do that. It would not be up to us to take that away from them. But together with that, they must also be able to change the rules if they don't like it, if they want to move to an elected system in the future. Further, the way in which hereditary chiefs are accountable to their people, as I understand it--and my primary knowledge of this comes from my work with the Nisga'a Nation in northwestern British Columbia--is that the hereditary position doesn't necessarily mean they have carte blanche to do anything for the rest of their lives, in the way we think of some of the more unfortunate hereditary leaders in our history, the various kings and queens--well, some of them lost their heads when they got too far out of line. Rather, there's a process of community consensus and understanding as to the responsibilities of the hereditary chief and pressures within the family for that person to carry out his or her responsibilities seriously, including means for replacing them when they don't. Far be it from me to say that my notion of democracy should preclude that, provided that the people choose to do it through adopting a code that so provides and the people can change the code to a different system if it doesn't work out.

Á (1150)

The Chair: Thank you.

Mr. Laliberte.

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

A key part in this bill is the definition of first nations, and it stems from the Constitution, but there is no echo of a treaty in the preamble of this. It talks about Canada having powers, but before Canada could have powers, it would need to have a territory, in order for it to create a country. So the Crown, by treaty, engaged with the first nations of Canada. Can we push the limit in this act and really define the first nations: the first nations of Canada are the Cree, the Dene, the Mi'kmaq, the Mohawk, the Oneida, the Haida, Blackfoot, Ojibway. Can we truly identify to the world who the original nations of Canada are? Because at the end of 2004, at the close of the indigenous decade, the world will be looking upon itself, and when they look towards Canada, we will have this act, and in this act we will be defining who our first nations are. Can we truly identify these nations?

The Chair: In 15 seconds.

Mr. Jim Aldridge: Yes, but you'd have to be brave to try that. We have a lengthy discussion on the terminology at pages 5 and following of the overview chapter. It seems like a worthwhile question. Should the Parliament of Canada tell nations who they are, or should it provide for them to define themselves?

The Chair: Thank you very much.

I'm already getting messages from my colleagues that we want these gentlemen back, we'd like to hear from them again, so I suspect that after we do our travelling, there will be a request from members to invite you again. I hope you will be available. I've said how impressed I am by your presentation; I won't take up your time to tell you again. You have about five minutes for closing remarks, and I won't interrupt if you want to go for 10 minutes.

Mr. Jim Aldridge: Let me then, Mr. Chair, before I turn it over to Roy to close, deal with the question that was just asked, which I think requires a little more attention.

Some JMAC members were very concerned, and our report reflects this, about the absence in the bill of a process for nation recognition, and it leads to the discussion of what a first nation is. We recommended strongly--and personally, I'm pleased that this recommendation was accepted--not to use the phrase “first nation” as equivalent to “band”, because it mixes two concepts. I worked for many years for the Nisga'a Nation, in which there were four bands. I'm glad to say there are none today, because the Nisga'a Treaty replaced the Indian Act completely, but there were four bands, not four first nations. There was one nation, the Nisga'a. What we see across the country in many cases is the use of “first nation”--and I say this with the greatest of respect to everyone--as a politically correct euphemism for “bands”, because band is an Indian Act term that was imposed from outside. There are different views on this--that's why I joked about being brave. Some people would really have serious arguments about who is in the nation and who isn't in the nation. But we notice that according the AFN, a presentation that National Chief Coon Come made, “there are about 80 first nations in this land and 633 first nations communities”. So in there we don't see “first nation” and “band” being synonyms, we see the idea that a nation may well be broader.

It was our advice not to tackle that here. If it's transitional, if it's interim, if an inherent right of self-government is coming down the road, stick with Indian Act language, unfortunate as it is, and use the “band”, and you'll see that advice was taken. First nations are going to be asserting themselves for recognition no matter what the Parliament of Canada does, as they re-establish their nationhood and pronounce themselves proudly to the world. It will be interesting to see how the Parliament of Canada can figure out a way of accepting those declarations of nationhood as they arise in the years to come.

I'd like to thank the committee for hearing from us. On behalf of myself, I'd be delighted to come back if you were to issue such an invitation, and we can work out arrangements.

Á (1155)

The Chair: You can expect that.

Mr. Bird, do you have comments?

Mr. Roy Bird: Yes, I have a couple of comments. If we could be invited back when it's warmer, we wouldn't mind, but of course, it's colder in Saskatchewan then.

I've painted a story of gloom and doom out in the communities, and it is true; it's not hard to get the information from the communities on how they're living at the poverty level. It is there. But at the same time, there are many first nations business people, entrepreneurs, and bands that are very successful in business, and they're trying to make a difference; they're ploughing ahead for their own people.

In the consultation sessions in Saskatchewan we approached all 70 bands asking if we could go to their communities. Fifty-eight band chiefs said, yes, of course; we may be there or not, but listen to our people. Of the other 12 half said, at a later time, we're busy right now. We did 73 consultations altogether prior to the bill, along with the FSIN senate, the veterans, the youth, the elders, the women, the provincial government, all kinds of stakeholders we went to and talked with about the bill. Whether it's a JMAC comment or not, I believe it's a small minority of first nations people who are vocally opposed to this legislation: let's deal with the rights first, let's deal with treaties.

At the same time, you've got to look at what's happening at the home level, at the reserve level, at the urban level. You've got to try to do something about that. The kids in 10 or 20 years time might be the majority in Saskatchewan. I think we're looking at about 35 to 40 years when first nations people and aboriginal people will be the majority in Saskatchewan. So how do you sustain a province when all we're trying to deal with is rights? We've got to improve the education, the skills, the training. The business opportunities are there, the ethanol, the forestry. There's a whole series of things we should be tackling together with our membership. I think we're moving forward with Bill C-7. I think we're going to empower first nations people with the hope that now, with education money being in one spot, they can get a proper education, training, skills and be involved in the community. It's community cohesion. If it saves 1, 2, or 3 people, I think it's worth it.

With that, along with Jim, I thank you for the time here, and we'll come back when required.

Â (1200)

The Chair: Thank you very much. I do suspect the members will be requesting that. The time would be between March 31 and April 8, if we're able to stay on schedule.

Colleagues, have a good end of the week--I didn't call it a weekend. You've worked at this bill every day this week. I know you are behind in your other responsibilities and in your constituency work. So have a good end of the week.

Thank you, everyone. We are adjourned.