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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Tuesday, February 4, 2003

1010

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

Ms. Donna Morin (Chair, Aboriginal Financial Officers Association of Canada)

1015

1020

1025

The Chair

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

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

1030

Mr. Daniel Ryan (Chair and Chief Executive Officer, Aboriginal Financial Officers Association of Canada)

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

1035

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

The Chair

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

Mr. Daniel Ryan

Mr. John Godfrey

Ms. Donna Morin

1040

Mr. John Godfrey

Mr. Daniel Ryan

Mr. John Godfrey

The Chair

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

1045

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

Mr. Maurice Vellacott

The Chair

Mr. Julian Reed (Halton, Lib.)

Ms. Donna Morin

Mr. Julian Reed

Mr. Daniel Ryan

1050

Mr. Julian Reed

The Chair

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

Ms. Donna Morin

Ms. Nancy Karetak-Lindell

The Chair

Mr. Maurice Vellacott

1055

Ms. Donna Morin

Mr. Maurice Vellacott

Ms. Donna Morin

The Chair

Ms. Donna Morin

The Chair

1100

Ms. Wendy Cornet (Cornet Consulting and Mediation Inc.)

1105

1110

The Chair

Mr. Maurice Vellacott

Ms. Wendy Cornet

Mr. Maurice Vellacott

1115

Ms. Wendy Cornet

Mr. Maurice Vellacott

Ms. Wendy Cornet

1120

Mr. Maurice Vellacott

Ms. Wendy Cornet

The Chair

Ms. Wendy Cornet

The Chair

Ms. Wendy Cornet

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

Ms. Wendy Cornet

Mr. Charles Hubbard

Ms. Wendy Cornet

Mr. Charles Hubbard

Ms. Wendy Cornet

Mr. Charles Hubbard

Ms. Wendy Cornet

1125

Mr. Charles Hubbard

Ms. Wendy Cornet

Mr. Charles Hubbard

The Chair

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

Ms. Wendy Cornet

1130

Mr. Brian Pallister

Ms. Wendy Cornet

Mr. Brian Pallister

The Chair

Mr. Brian Pallister

The Chair

Mr. John Godfrey

1135

Ms. Wendy Cornet

Mr. John Godfrey

Ms. Wendy Cornet

Mr. John Godfrey

Ms. Wendy Cornet

Mr. John Godfrey

The Chair

Mr. Brian Pallister

1140

Ms. Wendy Cornet

Mr. Brian Pallister

The Chair

Ms. Wendy Cornet

The Chair

Mr. Maurice Vellacott

Ms. Wendy Cornet

1145

The Chair

Ms. Wendy Cornet

The Chair

Mr. Bradford Morse (Professor, Faculty of Law, University of Ottawa)

1215

1220

1225

1230

The Chair

Mr. Brian Pallister

Mr. Bradford Morse

1235

Mr. Brian Pallister

Mr. Bradford Morse

Mr. Brian Pallister

Prof. Bradford Morse

1240

The Chair

Mr. John Godfrey

Mr. Bradford Morse

Mr. John Godfrey

Mr. Bradford Morse

Mr. John Godfrey

The Chair

Mr. Brian Pallister

Mr. Bradford Morse

1245

Mr. Brian Pallister

Mr. Bradford Morse

Mr. Brian Pallister

Mr. Bradford Morse

Mr. Brian Pallister

The Chair

Mr. Charles Hubbard

Mr. Bradford Morse

1250

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

Mr. Bradford Morse

1255

Mr. Maurice Vellacott

Mr. Bradford Morse

The Chair

Mr. John Godfrey

Mr. Bradford Morse

Mr. John Godfrey

Mr. Bradford Morse

1300

Mr. John Godfrey

Mr. Bradford Morse

Mr. John Godfrey

The Chair

Mr. Brian Pallister

Mr. Bradford Morse

Mr. Brian Pallister

The Chair

Mr. Bradford Morse

1305

The Chair

Mr. Bradford Morse

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 020

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, February 4, 2003

[Recorded by Electronic Apparatus]

À (1010)

[English]

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

We will resume our public hearings 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 Aboriginal Financial Officers Association of Canada, the chair, Donna Morin. Welcome. With her is the chair and chief executive officer, Daniel Ryan. Welcome.

I invite you now to make your presentation, which will be followed by a question and answer period.

Ms. Donna Morin (Chair, Aboriginal Financial Officers Association of Canada): Thank you, Mr. Chairman, Madam Clerk, and members of the committee, for inviting us to present today.

At this time I would like to present Dan Ryan, CEO of AFOA Canada, who is partly of Algonquin descent. And I'd like to introduce myself. I am the chair of AFOA Canada and also a proud member of the Peter Ballantyne Cree Nation in northern Saskatchewan.

The proposed First Nations Governance Act, which we have come here to discuss, has drawn widely different reactions from members of Canada's aboriginal community. Some see it as a positive change to the status quo, while others consider the changes far from profound. These differing reactions highlight a simple fact: this proposed legislation has sparked divergent opinion because the community it will effect is so diverse.

As chair of the Aboriginal Financial Officers Association of Canada, or AFOA for short, I see the diversity first-hand in the widely differing background and experience of our members who live all across Canada. Today I'd like to give you a picture of AFOA and explain why we are here, why we are in a position to show leadership on the issue of governance in the aboriginal community, and how we would like to exercise our leadership. AFOA is the leading voice of aboriginal financial management in Canada. We promote and support our members by setting standards and providing professional development, access to training and research, and professional accreditation. Our future aim is to become a full-fledged centre of excellence in aboriginal financial management.

In summary, AFOA Canada is an organization that is all about strong financial management, and as we all know, good governance is an important element of sound financial management. In fact, it is a foundation that has to be in place if an organization is to thrive. The building blocks for that foundation are the policies, procedures, and practice that enable accountability, transparency, and redress to occur. As financial managers, it is our responsibility to master those building blocks and then to implement them into the organizations that employ us.

As professionals, we also know that recipients of change must have a clear say in developing it if they are truly to own it and to experience it. In saying that, it's imperative that you know that AFOA is not a political organization. Our activities in support of our members are purely professional and technical in nature. To that effect, our board has decided that an appropriate role for us is to consult with the first nations leaders, the federal government, and the financial community regarding the new governance legislation.

Our consultations to date have brought us to an interesting place. While we clearly support the principles that underlie good governance, we also find ourselves supportive of the directions the first nations leaders have taken on the proposed legislation, that it must be developed by the people to whom it will apply. We have come here today, therefore, to urge you to listen carefully and to give the divergent voices you hear full consideration, because in the end the only approach that will find acceptance and that will succeed will be the one that contains a great deal of input from the members of the first nations communities and that truly reflects the widely different needs and expectations of those same communities.

Today we would like to first present AFOA's views on the proposed act, and secondly, to bring your attention to the opportunity for a partnership. AFOA has already accepted the challenge to act as a key adviser to the First Nations Financial Management Board to be created under the First Nations Fiscal and Statistical Management Act. As well, we believe we have the expertise to contribute to the development of the First Nations Governance Act, whether it be first nations driven or from the government.

Although it isn't widely known, work is well under way to bring better financial management, accountability, and governance to the aboriginal community. And I'm proud to add that AFOA is at the forefront of this development.

It is important that you acknowledge and recognize that considerable work has already been done, and I'm sure you will agree that time spent legislating policies, procedures, standards, and mechanisms that already exist and are proving workable could be better devoted to other activities.

Before I speak further to this issue today, I would like to give you a picture of AFOA and explain why we are in this position to take the leadership role in this matter. As I said at the beginning of my presentation, AFOA is the leading voice of the aboriginal financial management in Canada. We promote and support our members by setting standards and providing professional development access to training, research, and professional accreditation.

Our history is deeply rooted in the move towards self-government among first nations. In fact, the Assembly of First Nations was instrumental in giving us our first breath of life. Our mandate grew out of the 1997 report of the Royal Commission on Aboriginal Peoples. The report attempted to explain why we as a people have missed out on the prosperity enjoyed by our fellow Canadians.

The report was followed in 1998 by an action plan entitled Gathering Strength. The plan focused on the priorities that had to be set to lead to jobs, growth, stability, and an improved quality of life for aboriginal people. It is recognized that to become strong, aboriginal communities must be built on partnership, good governance, and a new fiscal relationship.

The action plan also identified capacity development, especially in the area of financial management and accountability, as a critical element and a precondition to self-government. This led to the formation of a working group involving the Assembly of First Nations and the Certified General Accountants of Canada, or CGA for short. The aim of the group was to raise the accounting skills and standards of first nations and to build the essential foundations for self-government. A year later, the AFOA came into existence as a national professional association.

Let me stress again one very important point. The AFOA is not a political organization. Throughout our history we have consistently based our actions on our unswerving commitment to enhance the skills and the expertise of aboriginal financial managers.

Today we have more than 500 members across Canada, and we are active in supporting good management and accountability in all areas of aboriginal society, including program management, commercial enterprise, and governance. Although AFOA is a young organization, only three years old, we have been able to develop a wide range of tools and services by entering a number of strategic alliances. A good example of this approach is our partnership with CGA Canada, which has allowed us to become a world leader in developing and recognizing aboriginal financial management capacity.

Working with the CGA we have developed an accreditation program that now sets a key hiring standard in some of Canada's aboriginal communities and organizations. Equally important, it provides a measure of capacity for funding agencies and financial institutions. To our knowledge, the certified aboriginal financial managers designation is the only program of its kind in the world, which makes AFOA an authority in developing aboriginal financial capacity. To date, 207 of our members have earned their accreditation. In our third year of operation alone, we've doubled the accredited numbers.

Partnerships are also allowing us to use the Internet to bring distance learning and knowledge sharing opportunities to our members no matter where they're located. Many of our communities are remote and isolated. The Internet is allowing us to educate and to share information. We are putting agreements in place to share information and expertise with indigenous people in other countries. For example, we recently formalized an agreement with our counterpart organization in the United States to exchange experiences, ideas, and solutions to common challenges that face aboriginal communities.

One of the things we are bringing to the table is the exchange in our experience in setting up the accreditation program. Our members are managers at every level, from clerks, to supervisors, to chief financial officers running huge operations. While we support them, we also benefit from being able to engage them. We regularly seek and receive their counsel to deal with issues and challenges.

We are proud of our ability to draw on the expertise of our more experienced and senior members, but we are equally proud of our contact with the grassroots of aboriginal public service.

Our first conference in the year 2000 attracted roughly 300 managers from across Canada. The next year more than 400 people joined us in Vancouver, and in the fall of 2002 we went to Saskatoon where we met with more than 500 managers. We expect to see these numbers continue to grow far into the future.

Everyone in this room is well aware of the stories of mismanagement and lack of accountability in some of Canada's aboriginal communities. It happens everywhere, not only in aboriginal communities. Such incidents, however, for first nations have been reported widely in the media. The success stories, on the other hand, do not always get the same attention, and so I'd like to take a moment to tell you about a couple of them.

The Membertou Mi'kmaq Band in Cape Breton, for example, has successfully met the international office and accounting standards necessary for ISO 9001 certification.

À (1015)

The work that AFOA chapters are doing is promoting the sharing of best practices within aboriginal communities throughout Canada. Financial managers from different aboriginal organizations are pooling their ideas, with the result that their organizations are becoming more efficient and effective.

A good example is the Sample First Nation's operations manual produced by the members of AFOA Saskatchewan. This manual covers a wide range of personnel, financial, government, and administrative policies. We have shared it with the Assembly of First Nations and we have also made it available on our website to anyone who wants it.

Few groups in Canada have had the unique government-to-government relationship that first nations share with Canada. Until recently, few if any fiscal planning aids addressed this special relationship. Today, however, many aboriginal financial managers are using the fiscal planning calendar. This calendar and its various components address the three main cycles of fiscal planning--planning, budgeting, and accountability--making it easier for first nations managers to balance their fiscal pressures from their communities and funding agencies. I use this at my place of employment and it's a guide. If you would like to look at it, I will leave it with the committee.

While we take heart from these successes, our consultations with members have also made us acutely aware of the challenges they face. With more than 600 first nations, not every community has access to equal resources or access to training, or even the same attitudes towards change. The governance legislation will provide new tools, but that development alone will not be enough. It is critical, in our view, to make sure that people in first nations communities understand how to use those tools. In fact, it's a matter of survival.

The leaders in first nations communities will only make decisions that truly pass the test of transparency and compliance required today if they receive accurate information from well-qualified and supported managers. Providing access to the financial tools that will make aboriginal communities self-sufficient is at the heart of the AFOA mandate. We offer knowledge, training, networks, accreditation, standards, and other tools to support managers. Our members in turn have already used their expertise to develop many of the policies and procedures that the current governance legislation outlines.

So as you make your recommendations, be aware that you're not filling a vacuum. Do not create legislation that radically alters what's already in place and proving workable. We are ready to contribute our expertise and solutions that truly meet the needs of the people. In fact, we have formed an internal advisory body to review the governance legislation in detail.

À (1020)

A number of our members, hand-picked from across the country, will study the bill and report back with detailed recommendations. Once that information is available it will become the basis of another, more in-depth submission to this committee.

We make this offer to you in the spirit of partnership and we hope you will give it due consideration.

The time is right for AFOA to share its expertise in the area of financial management. Look on the business pages of any newspaper today and you will see a renewed focus on transparency, compliance, and other governance issues.

Looking ahead, it is also clear that better governance will be the key to providing ordinary residents with greater accountability as first nations communities move towards self-government.

AFOA is committed to excellence in financial management for aboriginal organizations. As I mentioned earlier, good governance is built on the basic building blocks of accountability, transparency, and redress. AFOA strives to advance expertise in all these areas.

We believe that much more consultation and work is needed if the Government of Canada and the first nations are going to get it right. Our experience tells us that to truly meet the diverse needs of first nations communities the changes must come from those people who will be most affected by these changes.

We also believe that some of the building blocks of good governance have already been put in place by the aboriginal community, and we urge you to take advantage of this work and the value it offers by incorporating it into the bill.

As I prepared for this committee meeting, I kept thinking back to the AFOA conference in Saskatoon last fall. The theme of that conference was reconciling the past and balancing the future, something that accountants do every day, but to first nations it means much more than that.

Those words could apply to the exercise we're engaged in today. While we cannot deny or we will never forget what has happened in the past, we can shift our focus to the future and concentrate on making it much better for first nations people. It's critical that the people of the first nations have a direct say in how that future is to take shape. AFOA is here to say that we'd like to work in partnership with both the federal government and the first nations government to build a foundation for good governance.

Thank you very much.

À (1025)

The Chair: Thank you very much for your presentation. Your offer to assist, to advise, and to form partnerships has been noted. I would like to mention, though, that the assistance this committee needs is to make this piece of legislation, Bill C-7, a better product so that we can send it back to the House.

A lot of the things you've mentioned and that you probably have a lot of expertise in to assist with will be areas that are not implemented by this committee--as long as you are aware of that. We do need help to improve on the clause-by-clause of this bill to make better the lives of the people affected by it.

We will proceed to the question period, which means I'll start with seven minutes with the official opposition for the question and the answer. And the old trick is, if we cut you off too early you can give your answer in the next answer.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Nine minutes?

The Chair: Do you want nine minutes?

Mr. Maurice Vellacott: Okay.

The Chair: The opposition has exercised their right to insist on the time agreed upon before, so we'll take the flexibility away from the chair. I will accommodate. Nine minutes.

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

First off, I think all the committee members appreciate you being here, Donna, both of you, and Mr. Ryan may have opportunities to get in on some of this too.

To what degree, if any, was AFOA involved in the preparation of Bill C-7? Were you consulted? Were you engaged at any point along the way in terms of the drafting of the bill?

Ms. Donna Morin: Well, we were engaged once by the Department of Indian Affairs and Northern Development. We did have a session with a couple of people from the department, and what that session actually did was this. The board of AFOA Canada developed a position on the governance legislation and that position was that we could either have rejected it outright or we could have said outright that yes, it's a great thing, go ahead.

Actually the position we took was to say, wait a minute, this is a huge undertaking and it crosses so many boundaries for everyone involved that the most prudent action to take would be to consult with the first nations leadership and to consult with the Government of Canada. Most importantly, we would consult with our membership on how the bill could affect AFOA members, and also, because most of our members are members of first nations themselves, how it would impact upon the organizations in our communities. So our position is one of review and consultation at this point.

Mr. Maurice Vellacott: Just in a very brief comment, Donna, are you expecting more, or is this what you would consider to be part of the consultation at this point? Are you anticipating more? We're into the bill already, so when you say “consultation”, it moves through this process now. You're going to be having input, maybe, by various others across the country. Is that what you're doing now, in terms of input to the bill?

Ms. Donna Morin: I believe at this point AFOA Canada has struck an advisory committee to actually look at the details of the act. As I said, we would be providing the information to this committee, but I understand you're saying that this bill is going forward. Is that what you're saying?

Mr. Maurice Vellacott: Well, it's proceeding, in terms of actually getting the responses and input and so on, even as we speak. I guess you're saying you're going to have a more complete, detailed proposal, in terms of a critique of the bill and so on, to this committee at some point. Is that what I'm hearing you say?

À (1030)

Mr. Daniel Ryan (Chair and Chief Executive Officer, Aboriginal Financial Officers Association of Canada): That's exactly right, if I may jump in here. At this time we've set up, as outlined by the chair of AFOA, a committee that will be meeting in the next week or so to look at it in detail and re-submit a document that will enclose specific recommendations with reference to the bill.

That being said, as well we've been consulting on a daily basis, so to speak, with the department on various aspects of the legislation. Therefore, we have thoroughly been consulted in that respect.

Mr. Maurice Vellacott: I would assume, with the permission of the chair and the consent of the members here, that other document in its details would be able to come to this committee for every one of us.

My question, then, is—I guess we can't assume the final shape of the bill here—do you assume you will be involved in implementing Bill C-7's financial accountability system? Is that what your anticipation would be, that you will be key in getting that into place?

Ms. Donna Morin: Speaking as a financial officer myself, most aboriginal financial managers are already doing some of the activities outlined in the governance legislation; we are all about accountability and financial management. So some of the items outlined in the governance legislation we are already doing as part of first nations governance.

Mr. Maurice Vellacott: Are there particular features of the bill that at this point stick out and strike you as being problematic or that you have particular concerns about at this juncture, in a general way?

Ms. Donna Morin: I'm a certified management accountant by trade, and I'm also a CAFM, a certified aboriginal financial manager. From my studies and my work experience, I'd support the management theory that if you want to make change, you get the people who are going to be affected by that change to agree to the change and let them help develop the changes. Then they will truly meet the needs of those people and also pass the test of true governance, I believe.

Mr. Maurice Vellacott: Are there any particular concerns...? Well, I'll bring one up to you right now. It's the matter where the bill requires greater access to the financial statements in the communities, to make them publicly available, to provide a copy to any person. It doesn't define the scope of the statements—whether they're consolidated or public revenues.

I guess I'm making reference to what was called the Montana decision, which is about Indian money and band moneys. In your opinion, what is the scope of the financial statements communities must make public under this legislation? Is it about their own revenues and also those that come via the government?

Ms. Donna Morin: I believe it is up to each first nation to decide what should be public financial statements and what shouldn't. Some of the businesses that are run in first nations communities are commercial ventures. What other commercial venture just outright and publicly declares some of the information that's required of first nations? It almost becomes a burden and a—

Mr. Maurice Vellacott: But if it was a “commercial venture” in which the band, the corporate body represented the members there...? In another municipal or provincial or whatever setting, at least those electors would have that information accessible to them, would they not? So are you talking about compromising some commercial competitive advantage or something?

Ms. Donna Morin: Yes.

Mr. Maurice Vellacott: It's their own band members. It's at stake for them to know how well it's doing and if the money is accessible.

Ms. Donna Morin: There are different ways you can report to band membership. It would be up to the band membership to decide what level of information will flow to the council, to the leadership, to discuss it with the management of the organization, and then it goes out to the membership. The membership needs to know the basic facts, that their money is being spent in the way they have decided through the process of true governance.

Mr. Maurice Vellacott: Right. In this case, though, I appreciate what you are saying.

Are you telling me that you would disagree if in fact this bill is about making some fairly complete declarations and is accessible? Would you have a concern with some of what might be the intent of the bill here?

À (1035)

Ms. Donna Morin: As I said in my presentation, some of this work has already been done. To then legislate some of it is maybe not appropriate. Some first nations already have those kinds of policies, procedures, and governance legislation in place. It would be doing something that's not necessary.

Mr. Maurice Vellacott: What about those that don't?

Ms. Donna Morin: Those that don't should be given the opportunity to develop and enhance what they already have in place. Organizations such as AFOA will be able to assist them in developing the foundation for good governance that I'm talking about.

Mr. Maurice Vellacott: What do I say to grassroots aboriginal people from various bands when they come to me and their concern is about getting some access to basic stuff that, I would assume, is a given?

If I want to go to my city of Saskatoon, or if I was in a small community, it would be a given that I would receive it without any obstruction whatsoever.

You're right. Some of the bands are exercising, I think, good leadership and are providing it without any kind of impediment or obstruction. In other cases it's very difficult for these people to get even the basic information. I think you'd probably be aware of this, Donna, and you in fact inferred that.

They have to wonder. Right away their antennae are up. They're suspicious as to why it's not so readily provided and why the chief and council would be standing in the way. Are they trying to hide something? Maybe they're not, but the very fact raises the question.

The Chair: Thank you, Mr. Vellacott.

Mr. Godfrey, you have seven minutes.

Mr. John Godfrey (Don Valley West, Lib.): Thank you, and welcome.

To pick up where Mr. Vellacott left off, my first question would be, when do you anticipate that the consultation process with your members will be finished and you will have a package of detailed recommendations on the bill for us? Do you have a date in mind?

Mr. Daniel Ryan: I'd like to be able to tell you that within the next two weeks we would be able to submit a document that would have the recommendations. Insofar as we know at this time, as we speak, things are unfolding and the committee is trying to come together to look at it in detail, as we've outlined before.

That being said, yes, it is the hope and wish of AFOA Canada to be able to come forth with some very strong and solid recommendations that the committee would consider.

Mr. John Godfrey: We very much look forward to those.

My second question relates to the testimony we received last week from the Auditor General. She made two very compelling points.

One was that in any successful accountability regime, there has to be an element of reciprocity. That is to say, the expectations of those who are receiving reports has to mesh with the people who are supposed to deliver the reports. In that regard, she reminded us that the average first nation aboriginal community is expected to deliver 168 reports a year, even if there are only 200 people in the community.

In your work, do you find that the demands the federal government puts on first nation communities is an impediment to accountability, good governance, and sound financial practice in itself, because of the amount of resources that are diverted to filling in often duplicate reports?

I'll let you answer the question.

Ms. Donna Morin: Yes, I did read the Auditor General's presentation to this committee, and I think she hit the nail right on the head when she said the present reporting system was not sustainable.

First nations spend much time producing reports for the federal government, so perhaps we could look at some of those reports--this is where the AFOA could come in--and see which ones were actually useful for the federal government, and even more importantly, useful for the first nations themselves. Perhaps once we do away with some of these reports, the external reporting to the membership will occur.

So to answer your question, it is a burden to first nations to produce those reports. It takes time, it takes resources away from the first nation, and it almost creates a business unto itself for the federal government and for our first nation.

À (1040)

Mr. John Godfrey: If we're going to be clearing up things on both sides of the equation, has any consideration been given to having your organization come forward with a proactive series of suggestions on the reporting burden from the department? I guess that would not require a change of legislation; it would simply be an administrative improvement. There would be an improvement in the clarity and transparency of accounting regimes on the first nation side, but also a reduction of the unnecessary burden. Logically the two should proceed together.

Have you given some thought to actively engaging the department in that?

Mr. Daniel Ryan: If I may just answer part of it, that's really what AFOA is all about: developing these tools and looking at these scenarios and the burdensome aspect of reporting. The AFOA is a young organization. It's only into the third year of its mandate, and already we've developed quite a few tools that are being utilized by first nations and aboriginal organizations across the country. I think that bodes well on the success of those tools.

Of course we are building. We hope we have demonstrated that we have the expertise and capacity to tackle the other issues we and our communities are challenged with and help them--coming back to both sides of the equation--and the Government of Canada be able to bring to the process rules and regulations that will comply with the requirements of both parties.

Mr. John Godfrey: Thank you very much.

The Chair: Mr. Vellacott is next for five minutes.

Mr. Maurice Vellacott: Coming back to the issue of different levels of government, it's not up to major cities like Saskatoon, with 220,000 people, to decide on the practices themselves, so why would each band be given that option? Each band is not a first nation necessarily. When you have different levels of government or even major cities...some of these bands are smaller than that. Why wouldn't you have a uniform thing across the piece? It's not optional for cities to do their books in a particular way or account as they choose, so would there be openness?

I guess I'm saying that maybe the Prince Albert tribal council or the FSIN should have a required common standard all across the piece, instead of everybody doing their own thing. Do you follow what I'm saying here?

Ms. Donna Morin: Yes. You've probably heard before that any agency that funds first nations, like Health Canada or Indian Affairs, requires different reporting formats. Unfortunately, that has driven first nations to develop reporting centres based on the requirements of the federal government. Of course, different levels of reports are generated from one first nation to the other, depending on what kinds of funding arrangements they have.

At AFOA we would like to not have one system that fits all, but focus on certain reports that are necessary in financial management, assist the first nations in developing them, and focus on reporting to the membership.

Mr. Maurice Vellacott: You're not talking about everybody--as I think scriptures say--doing right in their own eyes, but about trying to be flexible and still have some common standards--minimal standards, if you will, but moving away from the federal government's, if those are not appropriate or helpful in the situation.

Ms. Donna Morin: As professional accountants, we have to follow accounting standards--GAAP. AFOA is hoping to influence those standards and possibly develop accounting standards that are GAAP, but also specifically oriented to first nations. That's what GAAP is all about. We can influence GAAP because we're developing and producing financial information.

Mr. Maurice Vellacott: Right.

Donna or Daniel, Bill C-7 doesn't provide for an external auditor general, or for what you would call results-based accountability. Do you have some comment on that? Would that be a good feature to inject, results-based accountability, where you have to see a certain result, a certain success, for example, that the education is happening, the health is happening, those types of things?

Ms. Donna Morin: I couldn't hear you. Can you say that again?

À (1045)

Mr. Maurice Vellacott: Bill C-7 doesn't provide for an external auditor general or for what would be known as results-based accountability, meaning that for health you'd have to have certain incomes in a band or on a reserve, for education or whatever, and they would be results based for dollars expended.

Would that be a good feature to have in the bill? There's nothing along those lines. It's money, obviously--

Ms. Donna Morin: Are you talking about reporting standards for education and health? I don't quite understand your question, because number one, I can't really hear you.

Mr. Maurice Vellacott: There can always be receipts to indicate money has been expended. That's not an issue. But was there any result? Was there any achievement in terms of those dollars expended?

In Bill C-7 there is no external auditor general. There is no results-based accountability. It's basically just money in, money out, and receipts to document it.

Ms. Donna Morin: Again, I will refer to my accounting training as a CMA. We are looking at different levels of budgeting and reporting based on those budgets. That is a true test of self-government, to produce reports that actually compare financial results to non-financial results. That is a goal and a standard that should be set for every organization. I know the Government of Canada is striving to do that too--to connect those two--so that better decisions can be made. I think first nations are on a roll in this area.

Mr. Maurice Vellacott: Thank you.

The Chair: Thank you very much.

Mr. Reed.

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

You are a very young organization and obviously a very dynamic and growing organization. Have you, at this point, been able to reach out with your expertise to every band? Is there a majority of bands now that have adopted AFOA?

Ms. Donna Morin: We are a professional development organization, so we don't force anybody to join our organization. We target aboriginal organizations and the financial managers in those organizations. We provide tools, like some of the tools I brought today. We provide access to the Internet, hold conferences, and provide a forum where we can share information with these people.

As I also mentioned, potentially down the road we could be the organization that sets accounting standards, but at this point we're in the development stages in that area.

Mr. Julian Reed: Do you have any feeling about where you are in the development stage? You really have something going here, and obviously it would be to the advantage of every band to utilize this expertise.

Mr. Daniel Ryan: In the document that Donna presented earlier, we talked about our membership moving up to 500 in a short timeframe of two years. We don't have a breakdown with us, but I can tell you that we basically have representation in just about every part of the country, including first nation bands, tribal councils, and so on. So we are getting there.

As we keep mentioning, I think the trick here is that AFOA is the new kid on the block. Like everything else that's new on the block, whether it's a new car or a new fashion of some type, we are getting a degree of resistance. The normal question is, “Why did people invent AFOA?” We obviously pride ourselves in saying we are a professional membership organization, developing the tools adequate to respond to all the concerns and challenges of the past, and looking to the future in terms of working with these people.

In terms of membership, we are looking at the whole first nation concept in terms of joining AFOA, and so on. At this stage it's done on an individual basis. But recognizing that most memberships are paid for by the band council, it needs to be approved by the chief and council in most processes. So when we look at this internally in our office, I think it's fair to say we have a good, solid representation. When we speak today, we speak on behalf of those 500 across the country.

À (1050)

Mr. Julian Reed: Thank you.

Thank you, Mr. Chairman.

The Chair: Ms. Karetak-Lindell.

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

My question is very much along the lines of the other questions. I was very interested when you asked why we should legislate the accounting procedures when we're already working them out with the different bands. But I guess we're always trying to make sure there is a bottom line and that everybody has to at least get to that level.

So I just want you to expand a little bit on your comment that we should not legislate and force bands to take certain accountability measures. If we don't legislate this, then aren't people still falling through the cracks in the system? It's always the one bad apple who ruins the reputation of all the other good success stories, which we have heard about in listening to witnesses in the last week.

Ms. Donna Morin: I guess the reason I said that was it's been proven already that for this type of legislation to work, it actually has to be passed and approved by the people who are going to incorporate the legislation. So perhaps a different model than what you're proposing would be for each first nation to have to engage their membership and discuss the appropriate rules for reporting, governance, and administration. The people from the first nation should stamp or approve those rules and guard them. Then they can say, “Here they are. Here's what my first nation wants the government of the day to follow.” If anybody is going to change those rules, it's only the membership who can make the changes. If any person decides to go out of that boundary, there are repercussions.

In our sample first nation policy, there are actually guidelines on how to set band policy and how the membership has a say in those. I think it's key that it's the membership who will demand accountability. I think that's what has to happen. It will only truly happen if the membership is given the ability to develop the policy.

Ms. Nancy Karetak-Lindell: Thank you.

The Chair: Thank you.

Mr. Vellacott, for three minutes.

Mr. Maurice Vellacott: Donna, I want to ask a question along that line again.

Unfortunately, I'm just too aware of the lesser voter turnout among the general Canadian public at large during elections, or apathy almost, if you will. Cynicism might not be too strong a word to use in some instances. I'm talking about the non-aboriginal community here.

I can appreciate that maybe there's some cultural stuff that makes people have a greater fascination and interest in being involved, and, as you say, in forming it, guarding it, and protecting it. But I just want to draw a comparison with the non-aboriginal community, where I know people are so busy with their lives otherwise, you're probably not going to easily draw them together on some of the seemingly boring but crucial stuff. With your professional designation, you would know it is crucial.

Is it realistic to think people are going to have a tremendous fascination with this and to make the effort to be out there and comprehend this? Sometimes this is not light or bedtime reading. Do you know what I'm asking, Donna? Is it realistic to say there's going to be this high degree of ownership by the band?

Maybe this is why you sometimes need a tribal council or people who are interested in this. This is their lifeblood; they're political junkies. They want to do what is right for their people. They will do it, instead of every individual band of 200 people. Some people may be fascinated by a lot of other things in life than this governance stuff.

À (1055)

Ms. Donna Morin: Well, I know there are band meetings in first nations communities. Some of them get quite lively. I'm not sure what the popular turnouts are in terms of voting and whatnot, but you can engage a community.

When you engage a first nations community, you're respectful of who is sitting at the table, what language you have to speak, and what format you have to present in. You do not present dry written material in these situations. It's respectful to present information in a format that elders and single mothers can understand.

So we can engage the first nations population.

Mr. Maurice Vellacott: Do you think this is more so than among the non-aboriginal population? Do you think there's a higher—

Ms. Donna Morin: I believe so, just by the very nature of what's happening in first nations communities today.

Chief Matthew Coon Come told you about some of the disparities that occur there. People want better housing and they want better education. They're going to demand it. They're going to sit at that table, if they're given the opportunity to make a difference in their community.

I believe that only first nations can engage these people.

The Chair: Thank you very much.

Thank you very much for your valuable information. We invite you now to make closing remarks.

Ms. Donna Morin: In closing, perhaps the difference that can occur would be to include first nations people in the development and ratification of this legislation, and to build this endorsement of first nations people into the agreement. Once this is done, AFOA can assist in developing and maintaining the financial capacities of first nations and aboriginal communities in Canada. This is what I'd like to leave the committee with.

The Chair: Thank you very much.

[Translation]

Thank you.

[English]

We will not suspend. We will go directly to our next hearing and allow time for the representative from Cornet Consulting and Mediation Incorporated to arrive.

The Chair: We will resume proceedings.

We welcome from Cornet Consulting and Mediation Incorporated, Ms. Wendy Cornet. We invite you to make your presentation, which will be followed by a question and answer period.

Ms. Cornet.

Á (1100)

Ms. Wendy Cornet (Cornet Consulting and Mediation Inc.): Thank you very much.

Thank you for inviting me to appear here today. I'm here in my capacity as an independent consultant specializing in aboriginal affairs. I'm not representing any organization or government. Over the past 25 years I have worked for various first nation, Métis, aboriginal, and Inuit organizations, as well as the federal government.

In considering the proposed First Nations Governance Act, Parliament is engaged, in part, in an exercise of Indian Act reform. It's not for me to say whether Bill C-7 is a good or bad initiative overall for the first nations affected. However, I will offer a perspective on key policy issues that are at stake in any Indian Act reform exercise and what I perceive to be significant barriers to achieving real reform or consensus on reform.

While Bill C-7 aims to somehow move away from the Indian Act and its colonial roots, the intent is nevertheless to move some distance short of a complete break. This is evident in several aspects of the bill. For example, there is the recognition of first nations jurisdiction over elections while providing parameters and conditions for its exercise; the attempt to provide more modern, local forms of governance, but one still grounded in Euro-Canadian legal norms; and the explicit recognition in the preamble and purpose clause of the inherent right of self-government while acknowledging that the bill itself is not self-government nor an implementation of it, but rather it constitutes provisions of an interim nature.

There is also recognition that the terminology of “Indian” and “band” is somehow inappropriate, but it doesn't dismantle the existing legal and administrative system that creates and perpetuates the existence of both those legal categories. While it has become a consistent part of the government's political lexicon to refer to first nations rather than Indian bands, the legal apparatus that both the federal government and bands are called upon to administer refers primarily to Indians and bands. There is an emerging trend in legislation in other areas, such as the environment, to refer to aboriginal or first nation organizations or governments. Nevertheless, Bill C-7 reveals an ambivalent position by using both “first nation” and “Indian”, thereby highlighting an unresolved policy issue.

The term “Indian”, as I'm sure you know, has its roots in colonial times. When it was used in the Indian Act in 1876, the first consolidated Indian Act, it was a commonly used racial term in Canadian society. It lumped all the diverse peoples and nations indigenous to the territory of Canada into one race, irrespective of their cultural or national identity as Mi'kmaq, Nisga'a, and so on.

There are two points to keep in mind about the historical treatment of first nation peoples as a race. First of all, the term “Indian” has served as a means by which diverse nations were racialized into one group and assigned a label they did not create.

Secondly, the definition of any race represents a social construct. Racial categories are not biological categories. Racialization is a term used in academic literature in various disciplines, geography, social science, and some legal analysis, that describes social processes that create arbitrary classifications of people based on physical appearance or rigid descent criteria.

The concept of citizenship, by way of contrast, may use descent criteria but does not have to rely on descent criteria alone. Canadian citizenship is an example of that.

Within western European countries, in its UN sense, meaning including the U.S. and Canada, it is a popular misconception dating back to colonial times that certain superficial physiognomic variations in humans signify more fundamental biological or genetic differences.

Various authorities, including a leading equality rights theorist in the United States, Ian Haney Lopez, have pointed out that populations that resemble each other can be genetically quite distinct, and conversely, populations that may be genetically quite similar can be morphologically distinct.

Classifying people by physical features, for example, is quite an arbitrary exercise. You could do so based on skin colour and nose shape. It's as arbitrary as using eye colour or shoe size.

Á (1105)

The conclusion of this kind of analysis is that human interaction rather than natural differentiation must be seen as the source and continued base for racial categorization.

While the Indian Act reinforces the notion of an Indian race--and my longer brief goes into explaining some of that--the term “first nations” is an effort to counteract racialization and to require non-aboriginal people to focus on the existence of first nations as distinct peoples or nations in cultural and political terms. This point is quite critical to understand. First nations people have assured self-government and land rights based on their status as distinct peoples and nations in cultural and political terms and not on their presumed racial distinctiveness, a distinctiveness assigned to them by social forces outside of their communities. Likewise, the cultural, social, and political rights encompassed within the right of self-determination attach to first nations based on their status as peoples and nations, and again, not as a result of the racial classification of them by other peoples or governments.

While treaties have been entered into with first nations and the Constitution recognizes aboriginal peoples, the Indian Act does not mention peoples nor the nation status of aboriginal peoples in Canada.

In addition to this problem of racialization, a long history of federal policy aimed at imposing Euro-Canadian elective systems on first nations through federal legislation needs to be kept in mind. My brief refers to a study by Wayne Daugherty and Dennis Madill and other sources that illustrate this.

They demonstrated that the imposition of a federally designed elective system through the Indian Act was an element of a larger program aimed at assimilating first nations people by eradicating manifestations of their traditional cultures, including aspects of their traditional political systems. Attempts to get first nations to adopt the elective system voluntarily often were not successful.

There are provisions in the Indian Act to impose this system should the minister or the government decide they want to do that.

A cautious approach, however, was eventually adopted of allowing traditional forms of governance, or variations on traditional forms of governance, including elective systems to continue under custom.

Ever since the first introduction of provisions respecting an elective system in the Indian Act have been introduced, there have been tensions within the federal government about the continuing role of traditional leaders and custom forms of governance, the roles of clans and families, the selection of counsellors, and the role of women in matriarchal nations. Often the refusal of first nations to embrace elective systems or to leave behind their traditional systems has been interpreted as sheer stubbornness or somehow some kind of inability to recognize the advantages of elections. The sources that I cited earlier demonstrated some of these reactions by federal officials in governments past.

It's easy to get fixated perhaps by the polarized views and the conflict that surround this bill, but examining the larger political and historical context, some of which I refer to, I think helps understand why this conflict can arise. It also helps to realize that the First Nations Governance Act is situated in a legal and policy environment with various contradictory elements, which is basically a result of the historical process that brought us to this point.

You have a colonial relic like the Indian Act still present on our statute books, on the one hand, and on the other, you have a recognition of the inherent right of self-government and government policy and the recognition of aboriginal rights and treaty rights in our Constitution. It's significant that the First Nations Governance Act declares itself not to be a self-government initiative, but at the same time it does assume the ultimate implementation of the inherent right.

The delegation and regulation of first nations jurisdiction over first nations elections is similar perhaps to the way provincial laws might regulate municipal elections off-reserve. This approach has not been well received by many first nations as they do not tend to see themselves as junior governments to the federal government nor as delegates of federal power. First nations today simply do not see themselves as objects of regulation but as partners, as levels of government equal to provincial and federal governments. Consistent with this, they would expect to be trusted and treated as provincial governments are; that is, to exercise power responsibly under broad heads of power.

Á (1110)

If you look at the heads of power granted provincial governments under section 92 of our Constitution Act of 1867, for example, there's not a lot of detail there. The remedy for not exercising that power responsibly is the ballot box.

There are other issues, such as the de facto imbalance in power between the federal government and first nations. First nations have seen the vast resources of this country transferred from themselves to a settler government, the same government that now controls the pace and the parameters of decolonization, and perhaps even whether it will occur at all.

The federal government has committed itself to the goal of an implemented, inherent right of self-government in its policy statements. This creates for the federal government and its provincial partners a need for decisions that go well beyond the stated goals of this legislation but that form a backdrop to it; namely, how and when to let go of power, as well as how much and how quickly.

There are certain nuances in the self-government policy that can be irritants, such as the fact that the policy states the inherent right of self-government is an existing aboriginal and treaty right and yet also says it only “may be” enforceable.

There are significant differences, as I'm sure you're well aware and will have seen by now, between the first nations and the federal government on the merits of Indian Act reform as a transitional step on the way to self-government.

The Indian Act in many ways is the Gordian knot of the aboriginal affairs area. There are different views on whether to slice through it by moving directly to self-government, or whether the complexities of the problem require a gradual unravelling through incremental Indian Act reform on the way to self-government.

The Chair: Thank you very much for a detailed presentation.

We will proceed to a question and answer period. When I say nine minutes, it's for the question and the answer; then we'll move to five and see how it goes.

Mr. Vellacott, you have nine minutes.

Mr. Maurice Vellacott: Thank you, Mr. Chair. Thank you for being here with us again, Wendy.

In your brief to the committee you said that past federal governments have tried to eradicate traditional political systems in first nation communities by imposing a federally designed electoral system through the Indian Act.

In that you mentioned the push for secret ballots—in a negative light, I guess it would be fair to say—can you flesh that view out a bit more for us and indicate why you're not really pumped about secret ballots and explain your negative comment with respect to them?

Ms. Wendy Cornet: It's not me personally who's not really pumped about secret ballots. It's a question of different views of how democracy can operate and whether or not you can have a democratic system that doesn't depend on secret ballots. There are different views on that.

My brief was alluding to the study by Daugherty and Madill, which discusses previous attempts, in the nineteenth century, to deal with that issue. Initially, I think, that study suggests the federal government wasn't particularly exercised about secret ballots one way or the other. At a certain point it developed an opinion and has tried to encourage it from time to time. But I'm pointing out that it's an issue that has always been there. The federal government, expressing certain political ideals of its own, may have opinions on it, and there have always been certain first nations with a different view of a democratic system, or proper forms of governance that respect the people who are being governed. There are different views on that.

Mr. Maurice Vellacott: I don't disagree that there may be some different views on that. Are you saying accountability to electors in the first nations situations around the country and improved outcomes are not something worth working toward?

I find it difficult and struggle a bit to see how, if you don't have things like secret ballots, you're not open to—let's talk in non-aboriginal terms—intimidation. There's a whole pack of things that can enter in when people know exactly how you voted and be used against you.

I'm open to hearing how you can have a truly unhindered, unintimidating kind of situation where you don't have secret ballots.

Á (1115)

Ms. Wendy Cornet: I think one thing to keep in mind is that the systems we're working with as non-aboriginal people are basically designed for societies where you have strangers governing strangers, as one leading authority in this area has pointed out. Very often with first nations communities you are dealing with small communities where several families comprise the entire community.

I understand that first nations have developed very creative ways of working around the Indian Act. Even if secret ballots are used, often there are common agreements as to who is going to vote for whom. So even if you say that you must have secret ballots, that doesn't necessarily mean that people won't attempt to find ways to carry tradition forward.

I think the other point to keep in mind is that in many ways we probably don't know very much about custom forms of governance. Before we attempt to extinguish them, I think we should actually inform ourselves about them and then do a proper analysis in terms of section 35. I have an open mind on the issue, because, frankly, I don't know very much about custom forms of governance other than what I have heard. As pointed out by several people, including the Joint Ministerial Advisory Committee, there's a strong chance that custom forms of governance attract section 35 protection. If that's the case, we had better be pretty sure about what we are regulating, why, and how it stands up in terms of the Constitution.

Mr. Maurice Vellacott: I'm going to make a comment, and then I have another question. I'd like to go back to your point, Wendy, about small communities. I've been involved in small volunteer associations, as I'm sure other members have been as well, where you know each other quite well, you've worked together, you may in fact be related, and you know each other very intimately on a social basis. Even in those instances we feel it's probably wiser to go with secret ballots. It may be different in some of the reserve situations.

We look at other countries around the world, the Middle East, Africa, and so on. Some would call it colonialism, but when we put dollars there, we want to be sure that there's some kind of democratization, if you will, because it would appear--I'm not a social historian--that those that have moved to a “western democracy”, if that doesn't sound too strident, succeed. They prosper. That's the case around the globe, as I understand it.

Western democracies used to have kings and other forms of government, but they have evolved, obviously. Is it not possible, in terms of more sophisticated technology, especially if first nations people are living close to urban centres, that there would be a necessity to evolve? We're not necessarily going to be able to keep it in a fixed state. It may need to evolve as well. Would that be something you would agree with?

Ms. Wendy Cornet: I don't see it necessarily as a matter of evolution. If you look at some of the first nations that did use hereditary systems, they include some of the strongest and richest culturally and in terms of resources; for example, on the west coast. If you looked at a relationship between development and the use of a hereditary system, I don't think you'd necessarily see that thesis proven in every case in terms of first nations in Canada.

In a contemporary sense, frankly, I don't know. I would probably need to know a lot more about custom forms of governance before I'd be willing to say go ahead and wipe out the political collective right of any particular group to have them. I'm not informed enough to say that would be a good idea.

Á (1120)

Mr. Maurice Vellacott: I've looked at some of the situations. I've read the books, and I'm very impressed with some of the accounts. It's nostalgic and impressive in terms of the bonds and cohesion in the community. I think the question that you and I and any fair-minded person would ask is, how workable is that? You would have to try it out. In a sophisticated, modern society, with the Internet technology and all the other kinds of complications, is that possible? Maybe it is, but certainly with some adjustment, I would think. I'm just wondering if you're against the idea of it evolving. What if it is a greater western democracy-type move that happens? Is that necessarily opposing an aboriginal path?

Ms. Wendy Cornet: I think most, if not all, human societies change over time. I'm sure the first nations hereditary systems have as well, in the same way that our own monarchy has evolved from what it used to be several hundred years ago to what it is now. Presumably, the same happens or has happened with first nations communities.

The Chair: Just to throw this into the debate, nothing would prevent such a community from running a slate and having them all acclaimed.

Ms. Wendy Cornet: From having what?

The Chair: They could run a slate and have them all acclaimed, if they could agree on their representation. It's not foolproof, but it would at least grant the right to one individual to represent his or her community, if they wished to.

Ms. Wendy Cornet: Mr. Aldridge, I think, answered some of these questions quite well in his appearance before you. Within the context of Bill C-7, there is an opportunity for the community members to examine custom and say, yes, that is our custom, we approve it, and then there are mechanisms by which people can change from custom to elections if they choose. However, it's not the other way around. Unfortunately, you can't change back from elections to custom under Bill C-7.

The Chair: That's right.

Mr. Hubbard, seven minutes.

Mr. Charles Hubbard (Miramichi, Lib.): Thanks, Mr. Chair. I'm not sure I'll use all of the seven minutes.

Ms. Cornet, with your organization, do you specialize in certain geographic areas of Canada, or do you work broadly, from coast to coast?

Ms. Wendy Cornet: Most of my work has been in Ottawa with national organizations or with the federal government, because I'm situated here and it's convenient.

I have worked in the past with regional organizations, as an employee for the Crees in northern Quebec back in the eighties. I've recently done work for first nations in western Canada.

Mr. Charles Hubbard: In your presentation you spent quite a bit of time at the beginning trying to develop terminology, who is who, what is what, and so forth.

In terms of Bill C-7, it appears that although we have a lot of different titles, groups, or ways that we define aboriginal people, it mainly deals with those on and off reserve who have Indian status. With that, you bring up in your paper the concept of band membership. Are the two synonymous?

Ms. Wendy Cornet: Is band membership synonymous with what?

Mr. Charles Hubbard: With Indian status.

Ms. Wendy Cornet: No, it's not. It can be, but it's not always.

Mr. Charles Hubbard: Is there a problem across the country in this area with people who are on reserve who have band memberships and who really aren't involved in terms of the Indian Act of the 1870s?

Ms. Wendy Cornet: Prior to the 1985 amendments Indian status was pretty much synonymous with band membership, with very few tiny exceptions.

One of the things the 1985 amendments did was to allow bands that wished to take control of band membership to do so. If they did take control in accordance with the act, they could define band membership in a way that didn't correspond with Indian status.

Now bands are free to define band membership in a way that includes people who do not have Indian status. That creates other legal policy and administrative challenges, because within the same family you can have people who have band membership and not Indian status, or Indian status and not band membership. You even have people who have Indian status for some provisions of the act and not others.

Since the 1985 amendments, which were aimed at removing discrimination based on sex, in terms of both Indian status and band membership, and giving some measure of control to bands over the definition of band membership, one of the by-products has been a more complicated system in terms of creating new subcategories and overlapping and non-overlapping categories of legal identities for aboriginal people.

Á (1125)

Mr. Charles Hubbard: With the human rights legislation, which has not applied but will apply after this act, could you make a comment to our committee on what might happen in terms of that process for people who have status or don't have status, who have membership or don't have membership? How big would that problem be in your vision of what might result from Bill C-7?

Ms. Wendy Cornet: It's possible that those issues could come percolating through as either challenges directly to provisions under the Indian Act or as band council decisions based on those categories by applying the categories that have been created.

In a paper I did for the Status of Women, I wrote that people were interested in challenging what they viewed as discriminatory impacts. It may not be the best vehicle, but it would possibly be available. I haven't worked through that issue totally in terms of trying to imagine what such a challenge would be. There have certainly been a number of cases in the past involving people who were reinstated under Bill C-31 bringing cases before the commission. I expect there would be more.

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

The Chair: Mr. Pallister is next for seven minutes.

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

Thank you very much for the presentation. I also want to thank you for the work you've done on Canadian human rights for aboriginal women. Of all the research documents I've had the chance to read, I've found yours to be the most illuminating for my purposes.

The government has taken an incremental approach here, and incremental is an interesting concept. For people who want to change quickly, incremental just doesn't work very well. Many of the aboriginal women I've spoken with are very concerned that certain rights they feel they haven't had for a long time are not being addressed in this proposal at all. So they're sick and tired of the incremental approach.

I'm not sure where it came from, but I have this lovely new document that tries to describe what can happen after marriage breakdown, and it talks about the rights of aboriginal women. Only under the Land Management Act or a self-government agreement is the issue of matrimonial property addressed. I'm wondering how you feel about that oversight in this particular proposal.

I don't see any evidence that the government is moving at all, let alone incrementally, toward establishing a regime where members of a couple that is breaking up are going to have any certainty under the law as to the nature of the property they own and how it will be treated.

I wonder if you'd like to comment on that issue.

Ms. Wendy Cornet: Matrimonial real property is certainly a very broad and complex topic, probably as much so as elections. A research paper I did for the department on that subject has been publicly released.

If you were attempting to work through those issues, there are several sets of questions you'd have to ask yourself and work through an analysis. At the front end there are a number of broad policy issues. For example, to what extent should a bill like this one--if that's what you're thinking of--address such complex issues as matrimonial real property, which aren't necessarily related to the core areas of governance?

You'd also need to ask yourself whether first nation cultural interests can be properly met through an amendment to the Indian Act, because you're not dealing with the land provisions. Matrimonial real property is going to involve looking at sections 20, 24, and so on, that deal with land, land transfers, and land allotments.

Another big issue is custom allotments. I've been told that custom allotments are used by perhaps as many as half the Indian Act bands in this country that are still subject to the Indian Act, but they're not recognized by the Indian Act and they're not registered in the land registry. If someone wanted to take on matrimonial real property in a comprehensive way that would reach all bands, whether through recognizing law-making power or any other initiative, you'd have to take on the issue of custom allotments.

There'd be some constitutional issues. For example, we know that provincial laws cannot apply on reserve to matrimonial real property. The federal government hasn't occupied that field to date, so you can ask yourself whether that means there's an inherent right resting in first nations to deal with that issue. Then you'd get into issues of infringement.

Once you get past those kinds of large policy issues there's a whole number of specific issues to deal with, such as the scope of relationships: whether to address married-only couples; common-law, same sex, and aboriginal customary marriages. How do you deal with couples who are mixed in terms of whether they have band membership and Indian status or not? All of those things have different legal consequences in terms of rights in relation to land on reserve.

Á (1130)

Mr. Brian Pallister: So maybe just the incredible complexity that you've only briefly alluded to in your response is the reason that nothing has really progressed in this spot, and perhaps the danger is that a government, or members of a government, might find the task excessively daunting and therefore not undertake it. What possible reason could there be, apart from that, for a government not proceeding--in fact some time ago, probably--to establish a regime that gave assurance of the ownership of property following a marriage breakdown? The only place in Canada where there isn't one is on an Indian reserve.

Ms. Wendy Cornet: That's a question better put to the government than to me, but the notion of equal division of matrimonial real property is also relatively recent, in relative terms, off reserve. It was basically the 1970s, more or less. We're also still working through issues relating to common-law and same-sex relationships.

Obviously the development--

Mr. Brian Pallister: But to be fair, those are issues that will evolve, and I'm sure there will be additional complexities in our future on this file.

That said, for a quarter of a century now, non-aboriginal women have had some assurance, whereas aboriginal women have not. I'm expressing to you the frustration that I'm hearing from largely aboriginal women, not exclusively, on this issue.

But I'm going to segue, because I think I only have two minutes left here.

The Chair: You have 45 seconds, if you want an answer.

Mr. Brian Pallister: Okay.

On the issue, I think you're aware of our concerns about the dangers of a chief-appointed ombudsman, as far as that conveying any sense of real protection or redress to aboriginal people on reserve. We're very concerned that this is just not a model that can work. Could you address that issue?

The Chair: I'm very sorry; you took up your time.

Mr. Brian Pallister: I did not.

The Chair: Mr. Godfrey.

Mr. John Godfrey: First of all, thank you very much for your paper, which I found very helpful and provocative.

Secondly, of course, you're an ideal witness because, as you say off the top, you're independent; you're not representing any views other than your own, which means we can ask for your views. Therefore, when you end your paper with the Gordian knot, I have really two questions.

You say there are differing views, really, on incrementalism, as to whether you can fix a busted colonial construct or whether it is actually possible, whether we can find any encouraging examples of just starting fresh. So the first question is, what is your view on the Gordian knot?

Secondly, I was fascinated by the references to the social construction of race versus the concept of peoples. Realizing that you've outlined a huge variety of complexities--land and all the rest of it--if you were in charge of us, is that where you would begin in terms of definitions? Is that the beginning of the problem, and if we could somehow deal with that head on, a lot of other things would flow from that?

So those are two little simple questions.

Á (1135)

Ms. Wendy Cornet: I'll start with the second one first, which is to say, yes, to me, but that's my own very personal viewpoint.

Mr. John Godfrey: That's what I want.

Ms. Wendy Cornet: If you're faced, as you are, with looking at some amendments to the Indian Act, it seems to me job one is, what do I think “Indian” means, both legally and in some other social context?

To me, that's the starting point of some kind of analysis about amendments to the Indian Act and where you might take it. What does “Indian” mean in the statute? Is it a racial term, a cultural term, a political term, or all three mixed up together?

In another piece of work I've done, I looked at how court cases have dealt with that term, and frankly, that's not of much help either. There is confusion there, and there would be room for legislators to actually get a grip on this in this century and maybe start to say, how should we conceive and express a legal identity that references in a respectful way the political identities of the first nations of this country? That is a concern of many people, but it's a complex one, and it's again another task that's probably as big as this one.

That leads into the second question, and I guess I feel somewhat schizophrenic on it. The logic of things like self-government agreements is that you sit down and take everything on. That's the negotiation process that is there, and it's still available.

In the meantime, if you look at the other argument, which is to say “We're not going to get to all the first nations simultaneously, even if we had the best self-government policy in the world, so what do you do”, some people feel that the status quo is so unacceptable that something has to be done.

That leads you to the next thing. Is the thing you're doing an improvement? Are you creating other issues and problems that you're going to have to deal with? That's a very complex answer on which I'm sure you'll hear many, many things.

Mr. John Godfrey: Where do you finally come down on that? What I'm hearing is that you're conflicted.

Ms. Wendy Cornet: The ideal process would be one where each first nation in this country has the opportunity to decide that question, to decide whether to participate in legislative reform or to go to self-government, but--

Mr. John Godfrey: I couldn't tell from your paper whether, when you use the term “first nation”, you're referring to the 50 or 60 groups rather than the 625 individual first nation communities. In other words, do you put aside what is described as a band and think of the larger group of folks when you use that term?

Ms. Wendy Cornet: It's however people identify themselves. Whether it's an Indian Act band that's making that decision or a larger first nation composed of several Indian Act bands, there will be a collective decision on what's best for those people. It's not for me to say, for people I'm not a part of yet, this is good for you or that's not good for you.

At the end of the day it's really a political decision, so this is a discussion that has to take place between people like you and the first nation leaders. Someone like me can provide an analysis and some policy decisions, but my personal opinion on it really isn't very relevant because it's a political decision.

Mr. John Godfrey: Thank you.

The Chair: Thank you Mr. Godfrey.

Now Mr. Pallister has three minutes to be shared with our witness.

Mr. Brian Pallister: You just made a comment that struck me as interesting, that this is a collective decision and that you can't make that decision for people you're not a part of. That's what we're told sometimes, that we really don't have the right to set up structures for leadership selection because, well, we're not really those people.

I have a lot of trouble with that concept of separateness. We didn't think Quebec was a separate country, so why would we think there are 60 or 600 different, separate aboriginal nations in this country? I have trouble with that, and because I do, some will call me disrespectful. That's probably the crux of what we have to deal with here, because we're going to be dealing with that issue a long time if we don't have a debate about it, if we don't talk about it with each other.

I'm particularly concerned when my efforts to advocate for things like matrimonial property rights for aboriginal women is taken as disrespectful of aboriginal people generally. You commented on that in your document, about how women who have advocated equal rights for years, for example, under the Canadian Human Rights Act, have been told that they're running counter to the best interests of their own people because they want rights.

Do you want to elaborate a bit on that ongoing friction?

Á (1140)

Ms. Wendy Cornet: Well, regarding the first part of your comments, you could look at it as a matter of jurisdiction. For example, all the people who live in the various provinces and territories of Canada are part of the same nation. But the government of, let's say, Province A probably wouldn't appreciate it if the government of Province B had a firm and fixed opinion about what their matrimonial property law should look like. By the same token, first nations may feel that they have a jurisdiction in that area, and they're not really interested in other people infringing on it.

Mr. Brian Pallister: Except Wendy, let's go back. Let's start with the end in view, which would be that aboriginal women understand that they have matrimonial property rights. If we could achieve that goal, that would be a wonderful thing. What's in the way of that? Mr. Godfrey asked you a question about what a nation is. Is it 60 or is it 600? Well, you said, that would be up to the people to decide. Yet if it's up to the people to decide, perhaps they won't decide. Perhaps it will just remain the way it is forever. I have bands in my riding who were historically part of one nation but who are the most vicious rivals now, who would not cooperate--not for the foreseeable future in any case--with one another on a dog bylaw.

It's nice to talk in theoretical terms about nationhood and defining it, and it's nice to talk about ideal service delivery models that would be better if there were bigger economies of scale. Yes, it's nice to talk about those things, but darn it all, if we just leave it to those people to do.... Do you see what I'm saying? If we keep this attitude of it being up to them, which we've heard coming from a lot of presenters, how will it ever get matrimonial property rights for women in this country?

The Chair: Mr. Pallister, your time is up, but I will give our witness two minutes to respond.

Ms. Wendy Cornet: First off, the Indian Act itself does not recognize jurisdiction to address matrimony real property resting in first nations. Their jurisdiction over land and even family law is limited. With respect to family law, it's almost nonexistent, so it's not necessarily because they decided “We don't feel like addressing it so we're not going to”. Provincial laws don't apply and the federal law has been silent. Clearly, a vacuum is not a good situation.

The first question really to ask yourselves is, where is the appropriate source of law-making power, federal or first nation? In either case they're going to have to consider how this law with respect to real property is going to interact with the provincial personal property laws that do apply on reserve, which is yet another policy complication.

The Chair: Thank you.

Mr. Vellacott, you have the last intervention. You have three minutes.

Mr. Maurice Vellacott: Thank you, Wendy, for that.

I'll just follow up on that. Bill C-7 is seen, particularly by the AFN, as a way to erode the collective rights of first nations by focusing on the paramountcy of individual rights, and they have a bulletin in respect of that. There's concern that on the basis of section 15 of the charter, the principle of individual rights and general equality could be used against claims that customs are constitutionally protected aboriginal rights.

Someone suggested the government's approach in Bill C-7 and otherwise is aimed at giving section 15 paramountcy over section 35 of the Constitution Act of 1982, which recognizes and affirms existing aboriginal treaty rights. I'd like you to describe the relationship between section 15 on individual rights and section 35 on collective rights.

I guess a case in point is, do collective rights trump individual rights in the case of matrimonial property? Would they conceiveably trump the individual rights of an aboriginal woman, and just how would those play off against one another, section 15 on individual rights and section 35 on collective rights? Can you make some comment and describe the relationship there?

Ms. Wendy Cornet: In terms of the relationship there would be two things to keep in mind. In addition to the Constitution and the sections you referred to, there is the proposed full application of the Canadian Human Rights Act, which is a different kind of legal analysis.

In terms of the relationship between sections 15 and 35, the Supreme Court of Canada hasn't declared itself on that. It had an opportunity to do so perhaps in Corbiere but said “We don't think we need to say anything”.

It is an interpretive provision, however. Section 25 of the Constitution basically says that in interpreting charter rights, the courts are to take into account the aboriginal, treaty, and other rights of the aboriginal peoples of Canada. I think what that does is provide an opportunity for the courts to recognize that there may be different ways of meeting and protecting equality rights. Just as in this country you have provincial governments that each pass their own human rights legislation, first nations governments could conceivably do that also.

Now, in terms of rights between men and women who are aboriginal, our Constitution provides in subsection 35(4) that the aboriginal treaty rights of the aboriginal peoples of Canada apply equally to men and women, so there seems to be quite strong constitutional protection for the principle of equality between men and women. This bill as well envisions the application of the Canadian Human Rights Act.

Á (1145)

The Chair: Thank you very much.

We now invite you to make closing remarks up to five minutes if you need it.

Ms. Wendy Cornet: Actually, I don't think I have any closing remarks.

I thank you again for inviting me here, and I wish you well in your deliberations on this bill.

The Chair: Thank you for an excellent presentation, and thank you for responding directly to the questions with pertinent information.

Colleagues, we will suspend for 15 minutes. The food has arrived. I ask everyone to let the members go first, followed by support staff, and support staff means the people working behind these cameras. We will resume at 12:05.

Á (1147)

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The Chair: We will resume public hearings on Bill C-7, an act respecting leadership selection, administration, and accountability of Indian bands, and to make related amendments to other Acts.

We are pleased to welcome today, from the University of Ottawa Law Faculty, Professor Bradford Morse.

Welcome. It's nice to see you again.

As I've said to you earlier, the more things change in Ottawa, the more they stay the same. We did this bill in 1997 and Mr. Morse was very much involved.

I look forward to hearing from you because I know you're an expert on this.

Mr. Morse.

[Translation]

Mr. Bradford Morse (Professor, Faculty of Law, University of Ottawa): Thank you very much.

I am very glad to appear before you today as a witness with regard to Bill C-7.

[English]

It's a pleasure and an honour to be here today as a witness before the committee on Bill C-7. Let me begin also with a disclaimer, as I guess some of my predecessors have done. While I've worked for a number of first nations and national and regional Indian and Métis organizations over the years—and as the chairman has indicated, I worked for a former minister of Indian affairs—I'm very much here in my personal capacity. Contrary to some suggestions even before this committee last week, I've not had any involvement in the development of Bill C-7, or in the first nations governance initiative consultation era before then, although I have been very much observing what's been going on in this regard.

I filed a written submission with the committee two years ago, so I would just note that there is a longer submission than what I plan to present today that I hope will form part of the record. Let me just try, then, to hit some of the high points of that submission.

Six score and seven years ago, our forefathers brought forth on this continent a new brand of colonialism within the newly emerging country of Canada, conceived not in liberty but in racial prejudice and misguided good intentions. Contrary to President Abraham Lincoln's Gettysburg address of 13 years earlier, which was dedicated to ending slavery and confirming the equality of all men—-although I must add, not the same equality for women—this august body enacted the Indian Act in 1876.

This statute was intended to expand and consolidate the intrusion of federal law and federal civil servants into the lives of previously independent and economically self-sufficient peoples with whom we generally had solemn treaty relationships in eastern Canada and emerging western Canada at that time, and upon whose generosity the early colonists had relied to make a new beginning.

Today we are still in the early stages of a new century and a new millennium. We have the opportunity to break with the false sense of superiority that imbued your predecessor parliamentarians who enacted the Indian Act in 1876, by adopting a fundamentally different foundation for the relationship between first nations and the rest of Canada.

At the same time, it's important for you as legislators not to continue to stand by passively and watch the public service retain far too many of the colonial attitudes and behaviours that have dominated the Indian Affairs branch through much of the twentieth century. With the exception of efforts to bring this act into compliance with the Charter in 1985 through Bill C-31, and some important but limited amendments that have been called the Kamloops amendments, the Indian Act has been left largely untouched for over 50 years.

I invite you to pause for a moment to think of what Canada and the rest of the world was like in 1951 when this statute was last given major attention by Parliament and last received a major shake. We're not just talking about a time before DVDs or CDs, but even before 8-track tapes—which shows how old I am, that I can remember that—let alone cassettes. It's a time before colour TV, let alone computers; before seat belts in cars; portable phones, let alone cell phones; the war in Vietnam, let alone Desert Storm; and on and on.

The Indian Act in force today was drafted and passed before status Indians even had the right to vote, which was acquired in 1960, and at a time when segregation was still common. To make it even worse, the last major review of the Indian Act by a parliamentary committee in 1951 did not even bring the act up to date for that era, let alone for the present.

The world we're in today is one in which over half of first nations citizens have been born since the Montreal Olympics and the advent of video games. So how can the statute that really was not appropriate even for 1951 continue to operate in 2003?

In this light, the Minister of Indian and Northern Affairs should be applauded for overcoming decades of inertia and active resistance to change by sparking the debate he has through this bill. At the same time, this bill is light years away from the heady days of 1982 to 1987 and 1991 to 1992, when aboriginal leaders and first ministers sat around a table debating constitutional amendments to expressly reflect an inherent right of self-government.

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It also falls far short of the ideas generated by the predecessor to this committee in 1983, with the Penner report, and more recently with the federal inherent right policy in the final report of the Royal Commission on Aboriginal Peoples. The bill does not attempt to do all of that.

Furthermore, Bill C-7 obviously does not reflect a consensus among first nations as to how they wish to see federal law evolve, if at all. It would be argued no doubt by some before this committee that Bill C-7 does intrude upon section 35 rights such that the duty to consult that's been evolving through the courts has been violated.

My purpose here today, however, is not to focus upon the process that got us to this point, but rather about the bill's contents. Let me just try to hit a few elements of the bill where I think there are some shortcomings.

One of the positive things in some ways about the bill is the preamble. It's the first time, to my knowledge, that the Parliament of Canada is being asked through legislation to acknowledge the fact that the Indian Act has not historically made effective tools of governance available. This is a relatively unusual assertion by statute that a long-standing legislative regime has had its limitations and been inadequate. Seeing Parliament make such a statement through this preamble is quite a striking event.

At the same time, though, this is a rather weak statement when we're speaking of the horrendous history that's been involved with this statute. Failing to directly state how misguided this statute has been is truly missing a historic opportunity to begin to redress some of those past disasters, in my view.

The implication of limited first nations inherent authority is also to some extent fostered within the preamble when it uses language such as “bands, within the meaning of the Indian Act, require effective tools of governance”, thereby suggesting that a federal statute is the only way to fill this vacuum. I'd urge you to amend those clauses.

The preamble does attempt a positive move by referring to the federal government's policy of recognizing the inherent right of self-government as an aboriginal right. Again, I think this is the first time in legislation, if the bill passes, for this to occur, though I'd suggest it's unfortunate it talks of it as a federal policy in this regard, rather than reflecting the federal government's legal position.

I think the preamble is also somewhat misguided when it fails to capitalize “first nations” and instead keeps using lower case, while the department itself uses the capital letters, as do documents. Using lower case is probably the thinking of the Department of Justice officials, but it's not, I think, particularly helpful.

It contains as well a thoroughly unnecessary reference to all federal legislation being subject to the Charter of Rights and Freedoms. Why include this clause? Do the drafters honestly think that the courts, parliamentarians, the general public, or aboriginal people need to be reminded of this? Why choose to include it here and in no other federal legislation? I think by including it here and not elsewhere it sends a message that is unnecessary and may be seen as insulting.

Similarly, why refer to representative democracy and regular elections by secret ballot within the preamble? If those are accepted elements of the bill, they do not need to be stressed in the preamble, nor does that kind of message need to be suggested about first nations generally. Similarly, we see a clause that to some extent on its own is not bad in terms of the non-derogation provision in the preamble, but the difficulty is that's the only place we see this language. This is something I'll come back to a little bit later.

On the other hand, one must ask, what is missing from the preamble? I'd strongly recommend that the committee consider amending the bill to include an express reference to the fiduciary relationship that has existed between the crown and aboriginal peoples since the beginning of contact. The Supreme Court of Canada has been clear that it exists and has existed for centuries. Saying so in the preamble is simply a statement of fact. Why not do so as a clear message that this is the view of the Parliament of Canada?

Similarly, I think the preamble should contain a reference to the treaty relationship and the continuing importance of treaty commitments. The preamble speaks not only to first nations but also to non aboriginal Canadians, and these are important messages to convey to them.

As you see in my submission, I've suggested that the title of the bill might also be something to consider amending.

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I look at it as a law professor, and I know my students will be looking at the statute books, as will many others in the future. And it would be somewhat unfortunate if the only time that people looking at the statutes of Canada see the issue of first nations governance is in relation to this bill. It's not intended to be a complete package in that regard. Why then have it stand out in such a way and thereby suggest that this is the source and the sole source of governance authority and jurisdiction?

As I mentioned, while the preamble does use the term “first nations” in lower case and it is in the title in upper case, it then proceeds to disappear once we get past the definition stages and we revert back to the language of bands in the Indian Act. While it's easy from a legislative drafting standpoint...so it's understandable, but I invite you as members of Parliament to consider coming at it another way.

I think it's very positive to have the purposes clause in the bill, and the purposes that are identified here are appropriate. On the other hand, similarly, it seems to me that one of the clear purposes behind the bill, articulated by the minister and the government, is to reduce the frequency and nature of departmental and ministerial intrusion into the governance and administrative decisions of first nations. That being the case, why not say so directly in the bill?

The bill, as you know, is structured upon first nations having the authority to pass certain codes, and then if they don't there will be default codes. What we don't have, though, are the default codes. Those would be developed by regulation. I think it would be beneficial for the committee to be prodding colleagues in government, particularly in the Department of Justice, to provide copies of the codes to the committee so that you can see what the fallback regime will look like.

One of the interesting things about the bill, where it's breaking new ground, is in the requirement, or, if you will, the opportunity, to create a scheme for resolving complaints by first nations. I firmly believe that it is vital that members of first nations and non-member residents on reserve have a readily available, efficient, and low-cost formal mechanism to pursue complaints. A number of first nations do have this, but likewise, many do not. Having one is a good idea. On the other hand, that doesn't mean it has to be compulsory, and making it compulsory may in fact undermine the utility in this regard.

Also, the provisions in the bill, frankly, don't really tell us what happens if one wants to challenge the decision of the complaints body. And I suggest that this will lead, no doubt, to unnecessary litigation by trying to come to grips with this question. Can you challenge a decision that such a complaint vehicle may render, and if so, which court has the necessary jurisdiction to deal with it? It would be easier to address this directly.

There is, as I note, somewhat of a technical issue, an intersection between subclause 11(1) and paragraph 18(1)(a) in terms of the authority to create the body and then the obligation to create it under clause 11. That interplay is a little less than clear. It seems to me that as a general principle, the clearer we can have the bill the better. Not only is it more readily understandable, which is always a positive objective for a law, but also it will reduce the prospects for conflict and unnecessary litigation and debates in the future.

One of the cornerstones of the bill, and an issue that has often been mentioned as retarding economic development, is legal capacity. The bill does address that in subclause 15(1) and the vehicle it does use is a fairly common approach for municipal and regional governments and corporations, namely, to declare that first nations governments will have the “rights, powers and privileges of a natural person”.

I suggest in my submission that even with subclause 15(3) attempting to address some of the concerns, it will still give rise to lots of debate and unnecessary argumentation. I think a far more appropriate and simpler alternative would be to recognize first nations governments as having a legal capacity similar to provincial and federal governments, not as natural persons or legal entities through the vehicle of a natural person. An alternative would be to make this provision optional.

The law-making powers provisions are significantly expanded over what they were in the past, at least in terms of the Indian Act as it stands today. This, of course, is a subject of particular controversy on which a number of people have spoken, and more will speak to the committee on this.

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Let me mention here that one of the most fundamental gaps, it seems to me, that's left untouched by these provisions is the absence of express jurisdiction over education. It's both ironic and surprising, where we have a reality of first nations operating over 400 schools on reserves across Canada, that we have no express law-making authority in this regard.

The bill expands the penalty provisions. It's a positive issue. I note, however, even where we're expanding the penalty for environmental offences up to $300,000, as I read the bill, we're still subject to the $100 maximum fine under the Indian reserve waste disposal regulations. It seems to me to be a bit ludicrous. I suggest it's something to be readily remedied through a technical amendment.

A more substantive major shortcoming really is the failure to recognize the importance of first nations creating their own justice systems, at least to some degree. It's possible under the Indian Act right now in section 107, but there's no linkage to this new bill. At least there would not be if the First Nations Governance Act is passed.

It's particularly surprising, given that this House, three years ago, in passing the First Nations Land Management Act, recognized the authority of first nations to establish their own justice systems in section 24 of the act. I would encourage you to consider doing that in this bill as well.

What the bill does speak to is enforcement, although it doesn't speak to where the resources will come from. It's also silent in terms of prosecution. While the bill sets out enforcement officers, it leaves open the question of where the offences will be prosecuted, who the prosecutors will be, and what jurisdiction they will have.

I've noted a few other small points in terms of the national registry of laws and codes to be enacted, encouraging this as an opportunity to create similar independent bodies, like Bill C-19 is doing or the Indian Taxation Advisory Board has been doing for over a decade.

I note another technical issue in terms of section 33 failing to at least extend to laws made under section 18.

Similarly, I note a technical issue in part IV. It's attempting to keep alive bylaws enacted under section 81. To me, it does not look like it succeeds in the same way for bylaws under section 83 and section 85.1 of the current act.

I note the changes that will lead to jurisdiction for the Canadian Human Rights Commission. I have a few comments in that regard, one of which I note here orally. We're creating a new term here, as I see it, in federal law. I can't find a parallel in any existing federal statute of an aboriginal governmental organization that is not defined in the bill.

Let me mention, very briefly, some of the missing elements. As I mentioned, there is not a clear non-derogation clause. I know it's an issue the committee will grapple with, I am sure. It has come up in various bills before this committee recently and will continue to do so. I encourage you to address it head on.

I suggest as well in my submission that there is a role for an ombudsman function here. More generally, the bill enables first nations to establish a complaints mechanism. There are some limitations on it. Furthermore, it's really within the scope of first nations. It doesn't deal with other first nation organizations, such as tribal councils, and, more importantly, it doesn't deal with the Department of Indian Affairs itself.

What we're talking about is an objective transparency and accountability in the bill. The bill seems to thrust that on first nations, towards their own citizens and towards the federal government. What we don't really have is the parallel complaint mechanism, or ombudsman function, with the federal department.

Let me mention that I flagged “optionality” issues and sunset review requirements as matters for consideration by the committee.

I think I've probably already gone a bit over my time. Let me stop and thank you for your attention, again, and the opportunity to be here.

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The Chair: Thank you very much.

I wasn't about to interrupt. We expected some good information and you didn't let us down.

I'll keep my comments to a minimum, because I know members will have many questions.

You have seven minutes, Mr. Pallister.

Mr. Brian Pallister: Thanks very much for your testimony.

You talked about the need for default codes and for us to see them. I couldn't agree more.

Could you elaborate on the dangers or benefits of proceeding with our discussion in the absence of those default codes?

Mr. Bradford Morse: The benefit clearly, of course, is that if you have the default codes in front of you, you can more effectively assess the provisions that are set out in the bill, as can first nations and other Canadians, to see what happens if these provisions are in exercise.

The structure of this bill is different, for example, from what was used in Bill C-31, where in some ways it was reversed. First nations had the ability to enact codes--that's similar to here. If that didn't happen, then provisions in the act itself would apply, whereas here the default codes will apply, and we just don't know what they are.

At this stage, it seems to me that parliamentarians assume that those regulations will be in compliance with the structure of the act, but until you see them, you can't know that absolutely. My fear is, by virtue of not having the default codes available, it will cause some sense of conspiracy or speculation as to what they may be. If the difficulty is simply that the Department of Justice hasn't drafted them yet, well then, I hope they're busily burning the midnight oil and can come forward with those within the near future. I think the committee just doesn't need the headache, if you will, nor does the minister, for that matter, of these being outstanding.

What happens if they don't come forward? Well, the committee has its authority to proceed as it wishes, if it does proceed with the bill through the process. The government, of course, doesn't have to go forth with implementing the act, once passed by both houses, until the default codes are available. So it retains some capacity to have the bill passed but not yet proclaimed, or enforced, until those codes are available and people have the chance to look at them.

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Mr. Brian Pallister: Thanks.

What about the reality? You talk about separate justice systems and things like that.

I'll give you a leading question here.

Mr. Bradford Morse: Feel free.

Mr. Brian Pallister: In Canada today, isn't there a greater degree of association between aboriginal and non-aboriginal people than there has ever been? So why would we move towards a system of separating out different justice systems? Why would we do that in reality?

I can understand the theory behind it, and I can understand some of those arguments, but in my experience...and I understand the statistics say, for example, there's more intermarriage and more cross-association, or whatever the word is, among our Canadian people than there has ever been. Why, then, have duplicate, separate systems?

Mr. Bradford Morse: Let me give you a couple of reasons for it. One, of course, is that what I'm suggesting here is not an aboriginal justice system for all aboriginal people, but rather a justice system within the territorial boundaries of reserves in relation to whoever is there, because that's what we're talking about with the bill. The bill is just going to apply on reserve, so that would mean this justice system would apply in relation to first nations members or non-members, such as you and I, who might be on the reserve or residing on the reserve--and of course, not only on residence. If you commit a traffic offence on a reserve, you should be within the jurisdiction of that local government.

In some parts of Canada, we have a cour municipale, a municipal court system in Quebec. I use that just as an example of a limited territorial base that has a court.

Section 107 of the Indian Act has been there since the 1880s, so we have 120 years of having a distinct justice of the peace system on reserve, which is operating right now in Kahnawake, Akwesasne, and Pointe-Bleue without difficulties.

The First Nations Land Management Act proposes it, the Yukon self-government agreements have this capacity within them, and the Nisga'a Treaty has this capacity as well. So what we're really talking about is the ability of territorial-based governments to have a local justice system to resolve those disputes.

The flip side of it is that provincial courts are not close by. You know the problem in Manitoba--fly-in courts in northern Manitoba--so that's a reality for reserves. For southern communities, most prosecutions go on within the county seat, as opposed to on reserve.

Mr. Brian Pallister: He's going to cut me off. I want to invite you to get together with me and my colleagues; we'll talk for about two months on this issue. There are so many issues. There is so much here.

I'll give you my last comment, and I know the chairman will cut me off. Part of the problem is the incredible diversity: the differences among first nations communities are perhaps greater, arguably, than the differences among all Canadians. We have the difficulty of coming up with legislation that's going to try to apply rules to all when the difference is so great.

You cited Akwesasne, but the difference between Akwesasne and the Dakota Tipi in my riding is incredible. I'm coming at this, obviously, as all of us do: from our own background and our own perspective. My concern is that we don't set up a system that creates an even greater difference between the powers the chiefs have and the powers of individual band members, which are very minimal in many bands.

I'm concerned about the appointment mechanism for redress officers being given to each chief. I don't see how the arm's-length situation can be created that we need for ombudsmen. Would you like to address that?

Prof. Bradford Morse: Let me address it in a couple of ways.

One is that some communities, I'm sure, will do an excellent job of this: it will be at arm's length; there won't be any difficulty; they have a public service that is untouched when elections come and go. Then there are other communities, as in other parts of Canada, where as soon as a new government comes in all of the senior officials are let go. We'll see some variation in this regard.

One of the difficulties, or at least a blank spot within the bill, is that it is not clear where complainants will go if they're not happy with the complaints mechanism. One can predict that what will happen down the road is they will look for an appellate body. That's what people do. If we have no appellate body within the bill itself, I think people are going to then turn to the court.

That immediately leads to a question within Canada: is it the federal court or the provincial superior court? We can fight that one out for years and spend a ton of money and employ lots of lawyers on that debate, but it's not a particularly fruitful one.

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The Chair: Thank you.

Mr. Godfrey.

Mr. John Godfrey: I'm going to continue in the same vein, because I read your view of a better option under the complaints mechanism being one to some extent inspired by the Indian tribal courts in the United States. I couldn't get, from the last sentence on page 7, whether you were arguing that the bill—or someone—ought to create an appellate system that would have some kind of overriding jurisdiction for all first nations covered by this bill. Is that what you were getting at?

Mr. Bradford Morse: I think that's a task beyond the scope of the committee, and frankly beyond the scope of the government at present. We might see that develop at some stage down the road. I don't see it in the short term. As you mentioned, we look to the U.S. experience. They've had tribal courts for many generations now. There's still been no national appellate body. Some parts of the country have created regional Indian tribal appeal courts. That might happen here in Canada as well.

My expectation is that in the short term what we would see is appeals being taken from Indian justice systems or first nations justice systems into the general court system. That is what happens, for example, at Kahnawake. Their courts have been challenged from time to time. In the Cour supérieure du Québec and the Cour d'appel du Québec the JP court at Kahnawake has been upheld, but those cases have gone into the provincial superior courts. I would think we'd see the same here more generally.

Mr. John Godfrey: Are you saying that in order to avoid the unnecessary litigation as to which we would go to—the Federal Court or the provincial court—and since we can't set up the dream first nations appellate court, we should arbitrarily pick one or the other? And which one would you pick?

Mr. Bradford Morse: That's a nice question.

To some extent, that's what your predecessors have done under the Indian Act right now. When we look at appeals from the Registrar of Indian Affairs about membership, it sets out precisely where they go. It seems to me the issue will arise in any event, so I would encourage the committee to raise it.

There are some advantages to choosing the provincial superior courts just because of proximity: they tend to be closer than the federal court system is in some parts of the country. But there are some benefits to each court being chosen in this regard.

My biggest concern is that by choosing none, we'll have this debate go on for a number of years, and in the meantime the merits of the issues that have given rise to that litigation remain unsettled.

Mr. John Godfrey: Thank you.

The Chair: Mr. Pallister, you have five minutes.

Mr. Brian Pallister: Professor Morse, you made the comment earlier that the systems might work well for some bands and not for others. Of course, we have a concern with where they won't work when we're looking at this.

Again, you talked about redress mechanisms where there needs to be an appeal. If you set up a system where the chief is appointing the ombudsman, given the relatively small size of the vast majority of first nations communities, aren't you setting up a system not only that's not arm's length, but where you're guaranteeing there'll be a need for such an appeal mechanism?

Why not start with something that is arm's length at the outset, rather than start with a model that, as you said, may work well in some communities but will very likely, certainly from my experience, not work very well in others? Why not start with an ombudsman that is arm's length?

Mr. Bradford Morse: Under section 11 it won't be the chief making the appointment; it will be the council as a whole. They will have to do it by a band law that authorizes them to do it. One would anticipate some community input in the development of the law and its ultimate enactment.

Clearly, I think a number of first nations, particularly smaller first nations, may well consider appointing people from outside the community. This has been an issue, for example, again looking at the U.S., in tribal courts. Do they choose a judge from within their community or from outside?

Many of the smaller communities there have made the conscious choice that they will choose their judges from outside the community to avoid the potential of conflict of interest or the appearance of conflict of interest. I would hope, frankly, that many of the smaller first nations in Canada will do the same.

This is an opportunity where tribal councils and province-wide bodies, such as the Assembly of Manitoba Chiefs or the Federation of Saskatchewan Indian Nations, can create a roster of people to fill the role as complaints mediators who can be called upon by an individual first nation.

You used the example of Dakota Tipi, where by their law they will choose someone from an AMC list that will be available. I think it avoids that conflict.

As you say, in many small communities, it's not so much that there'll be a conflict of interest as there may be an appearance of a conflict of interest.

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Mr. Brian Pallister: It's like election finance rules.

Mr. Bradford Morse: When you have small communities in which the complainant may be the cousin, spouse, or sibling of the person who normally does this, then you get debates as to whether they are really impartial. They can be entirely impartial, but there might be a perception that they won't be because of a family tie.

Mr. Brian Pallister: This is sort of where theory and practice meet. I share your optimism, believe me. I'm a hopeful person and I know you are.

We see it here all the time. A leader-appointed official designed to provide counsel, the ethics counsellor model, is just not feasible. We also see an extreme reluctance on the part of those with authority to relinquish any of that authority too. It is especially the case when power is centralized, and power is certainly centralized in first nations communities.

Although I'm hopeful too, I'm realistic. I seriously doubt that chiefs and councils are going to be ready to relinquish their powers to any other official, regardless of whether the person is appointed from outside or not, unless of course the powers are toothless, as this bill proposes in saying you can reconsider it. If the powers are toothless, yes, I'm sure councils might be more inclined to relinquish their authority.

Wouldn't you rather see an ombudsman with some power?

Mr. Bradford Morse: I think, generally, the government's proposal in Bill C-6 is to create an independent body and in Bill C-19 it is to create a number of independent bodies. What's missing, to some extent, in Bill C-7 is that similar approach. We don't have the First Nations Governance Institute, etc., here to play some of these roles.

As I mentioned in terms of the registry of laws and codes, I think a national body along that model would fit neatly here. Similarly, in this regard, in terms of complaints or ombudsman functions, a national body that could assist in that regard, I think, would be very helpful.

Mr. Brian Pallister: Thank you.

The Chair: Mr. Hubbard.

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

Mr. Pallister did bring out a number of points there.

On the concept of an ombudsman, which he has been advocating, whether or not the person or office would be a national one or, as you say, a regional or provincial one, I guess is something that we may have to consider, Mr. Chair. The point he is making probably does have some merit, as you say, in terms of the size of some of our first nations peoples.

Brian, we'll have to look at that, but I'm not sure how it may all come about.

The other item, Professor Morse, that I'd like you to comment on is the legal status of a band or a first nation. Is it adequate in terms of what we're dealing with? Could you make some comments on it in terms of the bill?

Mr. Bradford Morse: Sure, I'd be happy to.

The situation under federal law, or under Canadian law, right now is unsatisfactory. What the courts have generally told us is that the best or safest way, if you will, for a first nation to bring a lawsuit or to be sued by someone is through a representative action.

Usually the chief and council, named personally and on behalf of the membership as a whole, are the direct parties to the litigation. Why do we do that? Because we're not sure, given some of the case law, about the status of a band under the Indian Act. Is it a legal entity or not?

It's not just an issue in litigation. Its bigger effect I think has been in terms of economic development. When companies are thinking of pursuing economic opportunities in partnership with first nations, they want to know that the contracts they enter into are fully enforceable. It's not clear that they can do that.

What many first nations have had to do is to create a separate legal entity, such as an economic development corporation, to be the party to the contract in order to persuade their non-aboriginal partner to do business. The reality is this is a problem. It does retard some economic development. Goodness knows, first nations are so desperately in need of economic development in Canada that you don't want obstacles in the way.

My concern is not with the objective, therefore, if you will, of eliminating that issue, but the way in which the bill attempts to do so. First nations, for a long time, have been reluctant to see a provision like subclause 15(1) because their fear is that it does incorporate them. It turns them from a government and a community of peoples into a company with shareholders. Subclause 15(3) attempts to address that and says, no, this is not incorporation.

On the other hand, what 15(3) also says is that the provision does not “affect the legal status of a band”. But if it doesn't affect the legal status of a band, then what is it actually doing under 15(1) except confirming the legal status or creating the legal status. I think the objective here of the government is a positive one. I think the objective even within 15(3) is positive. The way they've implemented that, though, I think is ineffective and should be remedied.

What I propose in fact, even if you don't want to just remedy that technically, is that in 15(3) the better way of proceeding is not to try to use the fiction of a natural person as the vehicle to resolve this issue. That is the common approach in Canadian law, but it's not the one that's used for federal and provincial governments. It's not the one that's used generally for governments that are seen to have some sovereign capacity. It doesn't have to be the one used here.

I would think it would be far more positive and more in keeping with the political position of the government today, when it speaks of having and wanting to nurture a government-to-government relationship with first nations, to talk in terms of first nations as governments, not as natural persons.

I think the solution is readily available here from a legal perspective. Whether or not the Department of Justice is so inclined is another matter, but I think politically and legally it is resolvable in a way that would be more satisfactory from a first nations perspective.

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

The Chair: Mr. Vellacott, five minutes.

Mr. Maurice Vellacott: Thank you very much, Professor Morse.

I do concur with you, and I have grave concerns also, about not having a look at the default codes for the reasons you stated, because I think it does engender a little bit of suspicion, if maybe not necessarily well founded. But why don't we have them? I think we should have them before this bill is completed. I would suggest that this bill is a little bit premature. If it's an issue of consulting, but it's like signing a blank cheque here, I do have concerns, and I know aboriginal people probably would too.

You have some strongly stated statements on that. I know our good parliamentary secretary, Mr. Hubbard, is committed to get back to us with a response on what's the intended process. Hopefully, maybe they could burn midnight oil to get something going here or hold off on the adoption and implementation of the bill.

My question, though, is on something that came up with some previous witnesses here today. JMAC, from their report of March 2002, recommended that matrimonial real property rights be a key priority for future reform. Do you share JMAC's view that this is a key issue for reform? Should it be something addressed in this particular Bill C-7?

My second question from there is with respect to the broad search and seizure powers authorized by the bill, possibly subject to challenge under the charter. I'd like your comments with respect to that second issue.

Mr. Bradford Morse: I'd like to mention on the default codes that the good news is the committee will be holding hearings for at least two months, I guess until the end of March, so there's time for those codes to come forth. The fact that the committee is dealing with the bill after first reading is very positive. That clearly indicates the government's willingness to engage in dialogue with the committee, so I hope the codes do come forward.

In terms of matrimonial property, there's a critical issue. It's been one identified by the Supreme Court of Canada in the Derickson v. Derickson decision and in the Paul v. Paul decision of over 15 years ago. It's another one of these legal black holes when it comes to reserve lands because it's related to lands. We have a black hole in environmental law on reserve lands and we have one here on matrimonial property.

Provincial legislation on matrimonial property can deal with the off-reserve assets, but it can't touch the real property on reserve. The bill here repeats the provision, to a degree, that's in section 81 now, in paragraph 17(1)(g). That is a law-making power to deal with, and I quote:

the rights of spouses or common law partners and children who reside with members of the band on the band's reserve, with respect to any matter in relation to which the council may make laws in respect of members of the band;

There is a fairly similar provision in section 81 right now. There's some chance, I think, to make an argument that if this bill passes, when you remove the ministerial power disallowance and the somewhat narrow interpretation of bylaw-making authority by federal government officials, that first nations may be able to use this provision to enact a limited form of matrimonial property laws to apply within their reserve. It's arguable.

The current provision, the way I read it, seems to be linked to the paragraph above it on residency of members and non-members. I think the interpretation has tended to be that the current Indian Act provision really only deals with the residency issue. I think this may give some room on it. Is it enough? No.

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Mr. Maurice Vellacott: I think in the discussions from first nations women they are concerned that it be guaranteed, that it not just be a “may”, and that makes me really nervous that there “may” be a possibility.

Can you move to respond in terms of the broad search and seizure measures authorized by the bill and give your comment on that?

And I guess, particularly, would it be subject to challenge under the charter? That would be my question

Mr. Bradford Morse: Well, everything's subject to challenge under the charter. It's one of the joys of living in a charter universe; you can challenge everything.

The question, really, I guess is, what are the prospects of success in that regard? And I think there are some reasonable prospects here that may come about in one of a couple of ways, one of which is practically on the procedural level. Because of the absence of any kind of a justice system operating within first nations communities, the ability to get the kinds of search warrants that one would normally anticipate for search and seizure provisions is in fact a real challenge in many first nations communities, particularly in more isolated communities.

What tends to happen are things such as “telewarrants”, where I do it over the phone to get the authority. That's iffy in terms of the ability for that to withstand proper charter scrutiny, where the documentation and the argumentation are not occurring directly in front of the justice of the peace who's issuing the warrant. I think, practically, just on the implementation side of this, even if it looked good on its surface, there may be some difficulties here of charter challenge.

Separate and apart from that, I think there are some provisions here in the search warrant and seizure provision that, let me put it this way, make it by no means clearly charter-proof in this regard. When I talk to some of my colleagues who are more expert on this issue than I, they say that, in their view, it will be challenged and there are some prospects of those challenges being successful.

The Chair: Thank you.

Mr. Godfrey.

Mr. John Godfrey: I want to come back to the legal capacity question. I'm a non-lawyer, so you may have to help me here. I understand, I think, the natural person status. I think I understand what a government status is. What do you call the current status, the first one? It seems to be undefined or it seems to involve personal liability. Does that actually have a name, this thing that we currently have, other than confusing?

Mr. Bradford Morse: No, I think the word “confusing” describes it perfectly—

Mr. John Godfrey: Is there a legal term for this kind of confusion?

Mr. Bradford Morse: Well, that's it.

The law likes to put things in clear compartments. Therefore, it likes to say it's either a legal entity or it's not. The “not” category tends to be called an unincorporated association.

So if all of us around this table decide to declare ourselves a group, but we don't incorporate ourselves, we're just a club that has not incorporated. So we're an unincorporated group. Therefore, the liability we carry for anything the group does is personal liability; each one of us would be liable for anything that might happen. We'd all have to be sued, or have to join in a suit if we wished to do anything. In this sense, we're still in our natural person's capacity. The unincorporated club has no legal identity of its own.

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Mr. John Godfrey: If a first nation community decided it wished to be considered a government, because it helped advance the argument for self-government, is there an unintended consequence here? Would a greater degree of collective liability be carried with that, in the same way that the crown is liable in our name?

Do you know of any among the 630 first nation communities, or is it conceivable that there would be those, who would prefer the unincorporated association model precisely because there's less danger—although they get more personal danger as a result?

Mr. Bradford Morse: I'll give you a couple of answers. First, creating this in an optional way clearly allows people the maximum flexibility in this regard. Second, I think you can use the declaration of a government status effectively, because that's what I believe first nations say they are right now. I've not heard any first nation ever say they're not a government, or that their chief and council is not a government, or that they're not a distinct community. So I was simply suggesting that we recognize the reality that they are governments, and that we do so in a confirmatory way rather than as if we were creating it.

As for liability issues, right now the way first nations are found to be liable, or seek to enforce actions themselves, is by suing the chief and council on behalf of the members as a whole. In theory, if they're the defendants and they lose, the victor could go against any individual member of that first nation and try to enforce the judgment against them. So they already carry the individual personal liability, and they carry the group liability. The difference is the way it's generally being treated. They're carrying it by virtue of being members in an unincorporated association, or an unrecognized government, if you will, rather than having a clear legal identity as a distinct community and government.

Mr. John Godfrey: Thank you.

The Chair: Thank you.

Mr. Pallister, you can ask a one-minute question, followed by a response from Mr. Morse. Then we will go directly to closing remarks.

Mr. Brian Pallister: Forgive me for speaking rapidly.

This removes the minister's ability to intervene, except in a very narrow range of financial cases. Therefore, he wouldn't be able to intervene in cases in the future that he's intervened in during the past, such as Dakota Tipi, where people were stabbing each other. He couldn't intervene. Is there a problem with this?

Mr. Bradford Morse: It seems to me this is no more of a problem than the ability to intervene in other non-aboriginal contexts as well. If there's a law enforcement issue, then it's the appropriate jurisdiction of the police force to be intervening in this regard, with the assistance of any other police forces they may need to call upon.

Mr. Brian Pallister: But do we not then abdicate the responsibility for peace, order, and good government?

The Chair: Your time is up, Mr. Pallister.

Mr. Bradford Morse: In my view, I wouldn't suggest it's an abdication. I think we have mechanisms within our law enforcement ability and our legal system to address issues without needing to empower a minister of the crown—whether federal or provincial in relation to first nations or other people—to intervene to prevent people from doing what they're doing.

If there's a view that a law passed by a first nation is invalid, then the courts have the capacity to strike it down, just as they can strike down any law passed by this House, a province, or a city. So our courts can deal with the validity of laws. We don't need a minister of the crown to prejudge their validity by precluding them from even being tested in a court, which is the reality we have today. It's incredibly intrusive and unnecessary.

In terms of physical violence or the like, I'd say we need adequately resourced police forces within first nation communities. I think the problem has not been the absence of police forces but the shortage of resources available to them.

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The Chair: You have five minutes.

Mr. Bradford Morse: In terms of closing remarks, I'd just mention there are a number of issues within the submission itself. Frankly, there are a whole lot of other issues I could have addressed as well.

You have a very challenging and exciting opportunity here. Let me stress that it's very important that it be emphasized to Canadians generally that you are dealing with this on first reading. This is an opportunity within a parliamentary system that, in my view, doesn't get used enough. But there's clearly an important opportunity for you to really engage in the kind of thorough review you're doing, with the clear belief the government is not wedded to the precise wording of any provision in here and is willing to entertain the ideas coming forth before the committee and from the committee itself. I think this is very positive.

You have a difficult task here. The dilemma here really is between doing nothing and.... We can continue to have a thoroughly unacceptable Indian Act stay in place while we wait for the self-government negotiations to be successful on a community or region-by-region basis, but this is a recipe for no change for many communities for a generation. Or we can try to do something while making sure that it is temporary and transitional and does not preclude more substantive changes to come, which are more reflective of regional concerns, as Mr. Pallister said, rather than trying to do it through a national bill.

If we were starting from scratch, we would not have the Indian Act and we would not have Bill C-7. We wouldn't be trying to resolve it nationally. It's a crazy way to do it; we all know that's true. Unfortunately, the reality is that we have had an Indian Act for well over a century. It's completely misguided, totally out of date, and tries to do the impossible thing of having a national statutory scheme apply to such incredible diversity among first nations from coast to coast to coast.

That's the reality you've got. It's an impossible task. All one can do is try to do the best one can and come up with the most effective bill that does not undermine our Constitution or the recognition of first nations' jurisdiction, and that tries to move the yardsticks in the short term while communities are developing more permanent solutions.

Thank you very much for the opportunity to be here today. Merci beaucoup.

The Chair: Thank you very much for the wealth of information.

You are correct to note that we have an opportunity, because it's after first reading. With the information we received this morning and every day that we're sitting, I will have the task of working on consensus. The committee members intend to present amendments. I feel quite comfortable working on consensus. We will do it at 30,000 feet in an airplane with 25 people and 24 parachutes.

Some hon. members: Oh, oh!

The Chair: I think that's a good way to reach consensus.

I want to thank you very much. Thank you, colleagues.

The meeting is adjourned.