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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Wednesday, April 9, 2003

1530

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

Mr. Pat Martin (Winnipeg Centre, NDP)

The Chair

Mr. Pat Martin

1540

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

1545

The Chair

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

Mr. Charles Hubbard

The Chair

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

The Chair

Mr. Yvan Loubier

1550

1555

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

1600

1605

The Chair

Mr. Yvan Loubier

1610

The Chair

Mr. Yvan Loubier

1615

The Chair

Mr. Charles Hubbard

1620

The Chair

Mr. Pat Martin

1625

1630

The Chair

Mr. Pat Martin

1635

1640

The Chair

Mr. Pat Martin

The Chair

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

1645

The Chair

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.)

The Chair

Mr. Stan Dromisky

The Chair

Mr. Yvan Loubier

1650

1655

The Chair

Mr. Yvan Loubier

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1700

1705

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

1710

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

1715

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

1720

1725

The Chair

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

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

Ms. Anita Neville

Mr. Andrew Beynon

Ms. Anita Neville

The Chair

Mr. Charles Hubbard

1730

The Chair

Mr. Yvan Loubier

1735

1740

The Chair

Mr. Julian Reed (Halton, Lib.)

The Chair

Mr. David Chatters (Athabasca, Canadian Alliance)

1745

The Chair

Mr. Pat Martin

1750

Mr. Andrew Beynon

The Chair

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

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

The Chair

1755

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Ms. Mary Hurley (Committee Researcher)

Mr. Pat Martin

The Chair

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Andrew Beynon

1800

Mr. Warren Johnson

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

1805

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Ms. Mary Hurley

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

Mr. Charles Hubbard

Mr. Pat Martin

The Chair

Mr. Pat Martin

Mr. Yvan Loubier

1810

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Ms. Mary Hurley

Mr. Pat Martin

Mr. Julian Reed

Mr. Pat Martin

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

1815

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. David Chatters

1820

1825

The Chair

Mr. Charles Hubbard

Mr. David Chatters

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Gilles Rochon (Director General, Community Development Branch, Department of Indian Affairs and Northern Development)

1830

Mr. Maurice Vellacott

Mr. Gilles Rochon

Mr. Maurice Vellacott

Mr. Gilles Rochon

Mr. Maurice Vellacott

Mr. Gilles Rochon

Mr. Maurice Vellacott

Mr. Gilles Rochon

Mr. Maurice Vellacott

Mr. Gilles Rochon

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

Mr. Gilles Rochon

1835

Mr. Maurice Vellacott

Mr. Gilles Rochon

The Chair

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

The Chair

Ms. Nancy Karetak-Lindell

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Charles Hubbard

The Chair

1905

Mr. David Chatters

The Chair

Mr. Pat Martin

1910

The Chair

Mr. Pat Martin

1915

The Chair

Mr. Andrew Beynon

Mr. Paul Salembier

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

1920

Mr. Paul Salembier

Mr. Pat Martin

Mr. Paul Salembier

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

1925

1930

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1935

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

1940

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

1945

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

1950

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1955

Mr. Warren Johnson

2000

Mr. Pat Martin

The Chair

Mr. Andrew Beynon

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Charles Hubbard

Mr. Warren Johnson

Mr. Charles Hubbard

Mr. Andrew Beynon

2005

Mr. Charles Hubbard

Mr. Andrew Beynon

Mr. Charles Hubbard

Mr. Warren Johnson

The Chair

Mr. Pat Martin

2010

The Chair

Mr. Yvan Loubier

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

2015

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

The Chair

Ms. Nancy Karetak-Lindell

The Chair

Ms. Nancy Karetak-Lindell

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

The Chair

Mr. Maurice Vellacott

2020

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

2025

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Warren Johnson

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

The Chair

Mr. David Chatters

2030

The Chair

Mr. Charles Hubbard

The Chair

Mr. John Finlay (Oxford, Lib.)

The Chair

Mr. Julian Reed

The Chair

Mr. Warren Johnson

Mr. Julian Reed

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

2035

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. David Chatters

The Chair

Mr. Yvan Loubier

Mr. Warren Johnson

The Chair

Mr. Maurice Vellacott

2040

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

2045

The Chair

Mr. Charles Hubbard

The Chair

Mr. David Chatters

The Chair

2050

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

2055

2100

The Chair

Mr. Charles Hubbard

The Chair

Mr. David Chatters

The Chair

Mr. Charles Hubbard

2105

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

Mr. Warren Johnson

2110

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

2115

The Chair

2120

Mr. Yvan Loubier

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Todd Krohman (As Individual)

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 062

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, April 9, 2003

[Recorded by Electronic Apparatus]

¹ (1530)

[English]

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

I'll call to order the meeting on Bill C-7, an act respecting leadership selection, administration, and accountability of Indian bands, and to make related amendments to other acts.

Before we start, I'd like to welcome the people observing the meeting. One thing that I should have done yesterday is to explain how things are done in committee rooms on the Hill. Committees are an extension of the House. Therefore flash cameras and photographers are strictly forbidden, as is participation in the committee meeting by observers. I apologize that I did not explain this to the people in attendance yesterday. So today we all know what the regulations are.

We are now on amendment BQ-8. The mover, Mr. Loubier, has spoken on it. Now I invite others to speak on it.

Mr. Martin.

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

I'm happy to have an opportunity to address another amendment by my colleague from the Bloc Québécois, Mr. Loubier, on this bill.

I believe that this particular amendment speaks to the very fundamental objections that we've heard across the country, from one end to the other, as to what's absolutely wrong with Bill C-7. It's appropriate that we should address this in the context of clause 3, because that clause is entitled “Purposes of Act”, and outlines for all the world to see what this act is supposed to do on behalf of, or to, aboriginal people and first nations.

The offending language that Mr. Loubier's amendment would withdraw from the bill speaks to the fact that if first nations and bands and councils cannot or will not adopt the codes of governance that are contemplated by Bill C-7, then codes designed by the government will be imposed upon that band against their will. That's the very heart of the matter. It's the very issue that we've been told will be subject to constitutional challenges in the courts, and it's the very idea or concept that we believe infringes upon constitutionally recognized aboriginal inherent rights.

Our constitution recognizes the inherent rights of first nations to self-governance. We believe that even contemplating the idea of imposing rules of governance on a free and sovereign nation undermines the very idea of self-governance. It's absolutely contrary to name the bill the First Nations Governance Act, and then to design it to impose rules of governance on a first nation against their wishes and without their participation, and especially without deference to traditional cultures and mores, which may be inherent in the first nation—a point that we have heard over and over again.

Mr. Chair, please call a quorum.

The Chair: Quorum call.

¹ (1534)

¹ (1536)

The Chair: Mr. Martin.

Mr. Pat Martin: Mr. Chairman, what I was saying is the amendment put forward by my colleague from the Bloc Québécois seeks to amend the bill to remove some of the most offensive aspects of the bill, or those parts of the bill that we've been told by countless first nations across the country offend the sensibilities of the very people who would be affected by the bill. That aspect of this bill is under the purposes of the act, clause 3.

In the current language, it says, and I paraphrase, if first nations will not adopt the codes of governance as deemed appropriate by the government, then the codes of governance and election codes will be imposed on that first nation, we feel, against their will and without their participation or consent.

Not only is this a recipe for failure and a recipe for disaster, it's offensive to first nations, in that it doesn't respect their inherent right to govern themselves and to design codes of governance that are appropriate and have deference to cultural and traditional norms and mores within that community.

So the language my colleague from the Bloc puts forward would delete any idea that the government can then impose, by default, these codes, but would also add language that, instead of that, if a band is unable to introduce codes of governance, election codes or accountability codes within the timeframe, then, in my honourable colleague's opinion, what the government should do is to provide administrative and technical support to assist bands or first nations with the development and implementation of those codes.

So rather than impose with a heavy hand a paternalistic, heavy-handed approach of “Here's the way you're going to govern yourselves”, my colleague suggests, in deference to the sovereignty of first nations, that the federal government should provide administrative and technical support to assist bands along the road to acceptable practices of election codes or governance codes.

This seems to me to mitigate some of the most offensive language in the bill while offering a constructive suggestion as to steps that government might take in the case where a band, a council, or a first nation may have difficulty in developing administrative codes that will enable future economic development.

All this, I suggest, is really unnecessary, because we have found in our research that fully 96% of all the first nations in the country already conduct their audits and provide their bookkeeping in an accountable and transparent way. Of the remaining 4% of first nations who may have some administrative difficulties, those difficulties are often due to the impossible task of trying to provide for the basic needs of their constituents without adequate resources. So we challenge the whole idea that it's even necessary to design a bill about accountability and transparency for first nations.

However, if we are going to be saddled with this bill, at least I'm glad we have some members around the table who are proposing amendments to the bill, as I say, to defuse some of the flashpoints around it. It didn't take long. In the first review of this bill, analysts across the country balked at this particular clause. It wasn't lost on analysts across the country, the contradiction between the name “First Nations Governance Act” and the statements from the minister that these in some way are stepping stones to self-government for aboriginal first nations and the actual text of the bill, which is anything but first nations self-governance.

In fact, throughout all of this bill we find measures that undermine the very idea of self-governance and expand and enhance the discretionary authority of the minister to interfere with the free operation and development of good governance codes.

We've had representation from the Assembly of First Nations, who protest this. We've had representation from the Anglican Church of Canada, whose bishop from Moosonee made it abundantly clear that he felt this was fundamentally wrong. We've heard from the United Church of Canada, the Law Society of Quebec, the Canadian Bar Association, and the Indigenous Bar Association.

¹ (1540)

So not just first nations leaders found fault with this particular aspect of this bill. Civil non-aboriginal society also commented on how this is fundamentally wrong and against the very spirit of the concept of the right to self-determination and self-governance.

I remind colleagues that by leaving the language as it stands in this bill, we would also be contributing to a violation of the international covenants and conventions that Canada has stipulated to and ratified regarding the right of indigenous people to self-determination. This was pointed out by a former Minister of Indian Affairs when he made a presentation to this committee. The Honourable Warren Allmand sat at the head of our table and cautioned us as a committee that not only are we leaving ourselves open for court challenges and constitutional challenges if we trod all over the recognition of the inherent right to self-determination, but we're also violating those very international conventions that we often refer to with great pride.

Canada is one of those countries that actually ratifies international covenants and conventions regarding human rights. When we do sign them, as I've pointed out before, we don't sign them lightly. We don't take our commitments to international conventions in a frivolous or light-hearted manner. We are bound by them.

I believe that passing clause 3 unamended violates not only the constitutionally recognized right under section 35 of aboriginal people to self-governance, but also the international conventions that Canada has signed, such as the international convention on human rights and the international convention regarding the right of indigenous people to self-determination. It's in direct contrast.

The spirit of the amendment that Mr. Loubier has moved is beneficial in two ways.

The Chair: Thank you.

Mr. Hubbard.

Mr. Charles Hubbard (Miramichi, Lib.): Mr. Chair, I know that some members want to use all the time possible on each of these amendments. It would probably be good for all of us if their speeches would differ from one amendment to the next, because we might gain more information from them. Being repetitive is not helping your situation.

Mr. Chair, I'm not sure what your plans are for next week in getting this bill eventually finalized. It is taking a long time.

The amendment presently before us is almost similar to the one we looked at last night. You might again ask Mr. Johnson to offer the committee the background to this and how it would affect the rest of the bill.

¹ (1545)

The Chair: Mr. Johnson.

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): In the first part, the deletion of what has come to be known as the fall-back provisions in terms of the codes, which would be in the next part that the committee will be looking at, given the way the bill is constructed now, that is an intent of the act. If dropping it from the purpose implies that other clauses of the bill would be affected, then that's a consideration.

It is a purpose of this act, in the process of providing enabling features in the clauses that follow this for bands to develop their own codes with respect to leadership selection, administration of government, and financial administration, to provide rules for those in terms of fall-back provisions and regulations, which will be consulted on with first nations for those bands who choose not to do so at any point in time. So that is a purpose of the act in the plain-language version of the word “purpose”.

The addition of the wording in replacement of that raises other issues. I don't know whether the questioner wanted me also to comment on that. It is unusual that bills contain specific commitments to funding. Where Parliament is considering a bill dealing directly with funding, for example, the Unemployment Insurance Act, that would be common. But this bill doesn't specifically do that in any of the following clauses. Again, in the plain-language version of “purpose”, it is not a purpose of the act to do what is being added here, unless clauses are to be added to accomplish that.

The minister's remarks to the committee somewhat earlier tried to make it clear that the commitment to do that is there, and that would be part of the consultation process on the regulation and implementation issues once the bill has emerged from committee and all its features are explicit.

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

The Chair: Is there anyone else?

Mr. Loubier.

[Translation]

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ) : Mr. Chairman, it's surprising to hear Mr. Hubbard say that we take all the time we're allotted. Of course we take all the time we're allotted; why wouldn't we?

Moreover, I'm going to tell you that it's because of a motion, a gag order, that we suggested to you a few days ago that we have 10 minutes to present our amendments and 10 minutes to conclude.

[English]

The Chair: Mr. Loubier, in the same way that I asked Mr. Hubbard the other day not to address directly...please, through the chair.

[Translation]

Mr. Yvan Loubier : To come back to the amendment, it consists in providing administrative and technical support to bands and First Nations to help them develop and implement everything required of them under Bill C-7.

I heard Mr. Johnson answer us and I find his answer utterly unsatisfactory because he says that it is exceptional to include such provisions in a bill. I would remind him that it's not exceptional, that it's a highly common approach in bills in which third parties are asked to implement measures, where they are asked to bring about virtual administrative revolutions. In such cases, this type of federal government support is always stated, and the value of the support is given in the schedule, the support either in cash or administrative support, as well as the method for calculating that support.

So far from being exceptional, a measure such as this is entirely logical and utterly consistent with the claims we heard when we toured Canada from east to west to meet the First Nations. It corresponds to a major demand by the First Nations. Do you know why? Because the First Nations are bombarded on all sides. They are told they have to continue fighting the government, the federal machine and its battery of lawyers, right up to the Supreme Court, to defend the rights that have been recognized over the past 20 years, judgment after judgment : the inherent right to self-determination, treaty rights, land claims and so on.

They are asked to use their resources to fight this big federal government machine, to assert their internationally and nationally recognized rights. After that, they are asked in specific claims to enter a new mould, which is Bill C-6, and to use resources to make specific claims and further pursue endless debates to assert their rights, culminating in compensation that is limited to $7 million.

Under Bill C-7, they are asked to put governance parameters in place, and you're telling us that, even after those battles, their resources are so unlimited that there's no need to provide for technical, administrative or even financial support.

This amendment has been introduced because it is consistent with a consensus we observed when we made our tour. Some of you senior officials followed us nearly everywhere to listen to the people, but I got the impression we didn't hear the same persons make those claims.

Moreover, I would remind you that we're still on clause 3. Clause 3 poses quite a problem. We've been on clause 3 for two days and have introduced a number of amendments to clause 3 because it's a fundamental clause. It's the clause that establishes the spirit and letter of the act and everything that will follow.

Last night, I was surprised at this situation, in which we see recognition of an inherent right to self-government in the preamble. It talks about respect, it talks about nation to nation, but that's done in the preamble. But in the body of the bill, in the act as such, in the clauses, one would say that all the good intentions and all the thorough analyses evaporate. Recognition of the inherent right to self-government, it states that we're going to negotiate in the context of the act, whereas it's a natural right, it's an inherent right. An inherent right means that it's a right that exists on its own.

A representative of the Aboriginal nations would tell you that it's a natural right that God gave them. So they don't have to negotiate that inherent right. Here's what you find in paragraph (a) of clause 3:

(a) to provide bands with more effective tools of governance on an interim basis pending the negotiation and implementation of the inherent right of self-government;

Right off the bat, you demolish a principle that must have precedence over all the others, the inherent right to self-government, and also the recognition that the Aboriginal nations are true nations. Without those two conditions, you're getting off to a very bad start in the bill.

In the preamble, you talk about mutual respect, equality and so on, and, in the body of the bill, once again, at the end, you impose rules--and this is what I delete with my amendment--if ever the First Nations did not manage to define their own rules and their own codes.

¹ (1550)

Not only is there no recognition, not only is there no administrative, technical or financial support, but, in addition, things are imposed on them that they don't want. Even worse, we noticed, over the many questions that were put to the people from the Department of Indian and Northern Affairs Canada, to those of the Department of Justice and even to the Chief Electoral Officer of Canada, that you yourselves aren't even familiar with the codes and rules that you want to impose by default. You don't even know where you're going with this bill. Is that strong enough?

You claim you can tell the Aboriginal nations what to do, what's good for them, good for their future, what institutions must govern them, what democratic rules must preside over the selection of their leaders, and you demand that they be transparent, whereas they perhaps have a few lessons to give us with regard to transparency. You need only look at the Auditor General's report every year. There are examples of a lack of transparency in the federal government administration, among others at the Department of Indian Affairs. Perhaps they have lessons to give you in this respect.

So you claim to have better answers than the Aboriginal nations about how to manage their affairs, about the future, which is theirs alone, as sovereign nations, and you say after that that you have developed this bill in the context of mutual respect, that it's a basis for a new partnership for the future, that you are setting aside the 130 years of application of an utterly indecent and vile Indian Act and that you're starting out on a new basis.

Wake up boys, as they say. It makes no sense to come up with an act such as this one, based on so Rhodesian an analysis, worthy of the old apartheid, and to say that we're doing things, that we have to be careful because it would be an exceptional measure to help the people on whom we are imposing constraints such as those you are imposing on them. I understand why we don't venture into this type of bill and why, despite hundreds of thousands of dollars and even millions of dollars that have been spent over some 10 years to analyze all the issues facing the Aboriginal nations in coming to lasting solutions in a manner respectful of who we are and what they are, we wind up in situations such as this one today, where we are obliged to debate and justify the fact that we are offering administrative, technical and financial support to the Aboriginal nations to help them complete a job that you're asking them to do and that they don't want to do.

Imagine : they're going to use their resources to put in place things they detest. Put yourself in their shoes. If I were them, I'd be extremely angry. You're asking them to use their own resources, which are extremely scarce, which could normally be invested in social housing. Moreover, yesterday, the Auditor General published a report that stated that there were a lot of problems with mildew in houses on reserves and that some $100 million would be needed to solve the problem and provide the Aboriginal nations with a healthy environment. So you come and you take away their resources which could be used for things such as social housing, health problems, education, and you require them to produce results on the basis of a bill that they detest in the extreme.

If I were required to pay for things I didn't want, I think I'd be the first to climb onto the barricades and assert my rights. And you're surprised at the reaction to this bill over the past few weeks. I don't think there's anything surprising about it. You're being irresponsible by continuing work on the basis of such an unacceptable bill. In the meantime, you're saying that an amendment designed solely to improve at least a few things would be exceptional, that we can't help them. We impose on them things they hate, but we can't help them carry them out. It's utterly abominable.

I'm going to request a recorded vote on my amendment to see who refuses technical assistance to the Aboriginal nations, whereas we're imposing things on them...

¹ (1555)

The Chair : The 10 minutes are up. We'll go on to the recorded vote.

[English]

(Motion negatived: yeas, 2; nays, 9)

The Chair: Before we go on to NDP-9, I will make a comment. I find it very inappropriate and unfair that we should attack employees of the government. This is not their bill. They are employees doing their job. They are here to assist us in clarifying positions. I find it very unfair that we should attack them, and if it continues, I will suggest that the invitation we extended to them to be here to assist us be taken back. Our intent in inviting employees of the government to assist us was not to have them here to be insulted.

Mr. Martin, please address your amendment NDP-9.

[Translation]

Mr. Yvan Loubier : Let them give us answers that make sense and we'll respect them.

[English]

The Chair: The floor is yours, Mr. Martin.

Mr. Pat Martin: I have the floor; thank you.

Our motion NDP-9 seeks to add a subclause to the clause entitled “Purposes of Act” in the current bill that's presented before us, Bill C-7.

Under “Purposes of Act”, this subclause we would seek to add would add further clarity or would give some comfort, we would hope, to the many, many first nations and members of civil society who cautioned us about the nature of the bill. It would address some of the many concerns raised in the four-week tour we undertook, going across the country hearing the concerns of Canadians about this bill. In adding the following language, we would hope some of this would be addressed. Subclause 3(2) would read:

Nothing in this Act shall be construed as defining the nature or scope of any right to self-government or as fulfilling the obligations and commitments of the Government of Canada in relation to the negotiation and recognition of self-government agreements. For greater certainty, neither a code adopted by a band pursuant to section 4 nor regulations made under section 32 shall be construed as defining the nature or scope of a right to self-government or as relieving the Government of Canada of its obligations and commitments in relation to the negotiation and recognition of self-government agreements.

The language is ponderous, I suppose you could say, but it's worded very carefully and very deliberately to recognize the very real concerns that were raised, that aspects of this bill seek to undermine the fiduciary responsibilities the federal government has and to off-load those responsibilities onto first nations communities with their newly formed legal status. Some have said it would be a municipality status.

This is to make sure that the government's fiduciary obligations and commitments are not interrupted in any way by this bill--and it's not the intention of this bill to do so. It's also to give some satisfaction that it's not the intention of this bill to define the nature or the scope of any self-government agreement, nor is it the intention to preclude the rights of continuing...and recognize ongoing, existing rights of first nations to shape and define their own methodology for self-governance.

Now, the reason we raise this, the reason we believe it's necessary to add to it, is that we have asked the federal government directly, does this bill in any way infringe upon, extinguish, or diminish existing aboriginal rights? The answer has been no.

When we've asked for evidence to that effect, we've been told we won't be allowed to see that evidence. They imply that they have evidence, that it doesn't infringe upon rights, but they won't show it even to members of this committee. Neither will they show it to the Indigenous Bar Association, who have been waiting for a year and a half under access-to-information requests to see the legal opinions of the government. They won't show it to the very lawyers who represent first nations under the excuse that it would be against the interests of the Crown to share that information.

We have legal opinions that say it does infringe upon constitutionally recognized rights from the Quebec Bar Association, the lawyers of the Indigenous Bar Association, etc. The government says they have information to the contrary but won't show it to anybody. How can you fault anybody for concluding, then, that the government actually knows that this bill will in some way infringe upon or even extinguish rights?

Therefore, if we are to believe what the government is saying, why don't they say in this bill, in clear language, that it is not the intention or purpose of this act to define the nature or scope of any right to self-government? Why don't they say, nor is it the purpose of this act to get out from under any ongoing fiduciary obligations and responsibilities by off-loading some of those fiduciary responsibilities onto this newly created legal entity that will be the corporate band entity they're contemplating under the municipalization of first nations?

º (1600)

I think it's a perfectly reasonable thing and it's not inconsistent with what the minister says about the bill. It is, unfortunately, inconsistent with the government's actions in trying to defend the minister's statements, because if the minister is serious, and if the government is serious, then they should be willing to state this in the clause in this act called “Purposes of Act”.

Another good reason this particular clause should be allowed is that what's being proposed under the proposed First Nations Governance Act is complex. It's sweeping, comprehensive, and complicated, and it's difficult to understand. It's difficult for me to understand, and that's my job. Imagine how difficult it is for people in rural Canada in first nations communities to understand what's being done to them.

We haven't even had adequate time to assess what's being done to them, frankly, because of the way this committee is ramming the bill through. At least having this clear statement that it is not the purpose of the act to do the following things would give some comfort that this is not a Trojan Horse, that the bill is not some kind of sneaky attempt to gradually erode, chip away, diminish, and undermine the current obligations of the federal government.

This is why we believe it's important for the government to put the cards on the table, if you will. If you want us to believe you--and I'm speaking to the MPs on this committee directly--if you want us to believe you and take you at your word that the bill is not a Trojan Horse that's seeking to diminish or even extinguish the current relationship, then say so clearly, in plain language.

On the aspect that nothing in this act shall be interpreted as fulfilling obligations, one of the fears brought to our attention was that it's only once in every fifty years that the federal government seems to have the political will to address the relationship between first nations and the federal government. They are concerned that once this bill or this suite of legislation is rammed through, that will be the end of it for another generation, that there won't be any willingness to finish the job, and because this interim step is called the First Nations Governance Act, the government will be able to point to it and say they've addressed the issue of aboriginal self-governance; they've passed that suite of legislation to that effect. The fear is the government may try to make the case after the fact that this somehow fulfills the obligation of recognizing the right to self-governance by imposing the codes of governance that the government wants to impose on unwilling first nations.

That would be fundamentally wrong, and it would be contrary to what the minister has said. That should be clearly stated so it's understandable by future judges and arbitrators who will have to interpret this act to give guidance and direction as to the intention of the original crafters of this legislation. Because we may not be elected representatives by the time the bill filters its way through the Supreme Court of Canada and ultimately gets ruled upon. I know some of you have always been here and always will be here, I have no doubt, but I may not be. I may not be here to answer those questions.

So we want it clearly stated in the bill that it was never the intention of the government in passing this bill to try to define, limit, or be prescriptive about the nature and scope of the right to self-government.

That's a term the lawyers used when they presented here--that this was a very prescriptive piece of legislation. It shouldn't prescribe what self-governance looks like because it's the right of first nations to describe what their self-governance arrangements will look like.

It would give some relief and some comfort, and I would appeal to members on all sides to give this serious consideration in the interest of goodwill, if nothing else, in the interest of trying to salvage some semblance of goodwill in the fractured relationship that currently exists due to the heavy-handedness of this bill. It would be viewed as a gesture of goodwill.

º (1605)

In fact, that's another term that the Anglican Archbishop of Moosonee used when when he appealed to the government to withdraw this bill. He said that it would be viewed as a “gracious gesture of goodwill” to at least acknowledge these legitimate concerns and to deal with them.

The Chair: Thank you, Mr. Martin.

Mr. Loubier.

[Translation]

Mr. Yvan Loubier : Mr. Chairman, first allow me to congratulate my NDP colleague, Mr. Martin, for the wisdom and intelligence of this amendment. This amendment is also consistent--and I believe that Mr. Martin mentioned it--with what we heard from the vast majority when we received the witnesses or when we met them in the various parts of the country. This amendment corresponds to our need for a non-derogation clause.

What does a non-derogation clause mean? It means the clause which specifically specifies...

[English]

A voice: Mr. Chair, I think you're going to need more chairs, so we might want to take a break to have more brought in.

º (1610)

[Translation]

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

Mr. Yvan Loubier : Such a clause means that a very clear, very precise specification is required in the bill to the effect that the implementation of that bill does not permit the federal government to derogate from its fiduciary responsibilities toward the Aboriginal nations, does not enable it to derogate from its responsibilities with regard to the rights referred to in the many judgments rendered by the Supreme Court over the past 20 years concerning its rights and obligations, that the federal government does not derogate from its international obligations either because the federal government must meet not only its domestic obligations. Clearly, over the past 20 years, the most recent court reports, including the Penner Report, the Corbiere Report and the Marshall decision, provide all the ingredients to solidify, like a kind of cement, a reinforced concrete foundation, the claims of Canada's Aboriginal nations respecting self-government, recognition of their existence and their inherent right to self-government and the fact that they constitute nations that must be considered as equals, like all the member nations of the United Nations.

We see that, despite all these court decisions, including those of the Supreme Court, and despite the fact that there have been warnings from international bodies such as the UN to the effect that the federal government was not complying with the principles of the Universal Declaration of Human Rights in its relations with the Aboriginal nations, despite the pressures of other countries, such as certain European countries that asked the federal government to comply with its rights and obligations in its dealings with the Aboriginal nations, even despite reports that may seem unusual, such as that of Amnesty International, for example, which normally speaks out on countries that are not obvious examples of democracy and which has just published a specific report on the federal government's treatment of the Cree nation of the Lubicon over the past 50 years condemning it because it has not met its commitments, has not carried out its duties toward the Cree nation of the Lubicon, despite all those warnings, despite all that national and international recognition, we have attempts of this kind to undermine the rights of the Aboriginal nations.

At some point, we have to wonder where we stand as legislators. In view of all these condemnations, all these rights that have been run roughshod over, all the federal government's obligations that have been set aside as though they never existed, all the attempts to eliminate the Crown's obligations toward the Aboriginal nations, how can we act in this way and say at the same time that we are a democratic country, a regime that is something other than a banana republic?

I believe there is a serious problem, and the amendment proposed by my NDP colleague, Mr. Martin, could in any case help attenuate the negative aspects of Bill C-7, not eliminate them completely, but at least attenuate them, at least reassure the Aboriginal nations that the federal government does not want, through this bill, to sweep from the table all its obligations, all its duties and everything that requires it to honour the Aboriginal treaties and the inherent right to self-government. That would at least reassure the Aboriginal nations that this bill is not devastating in that regard.

º (1615)

If, on the other hand, we refuse to agree to such an amendment, that will mean that our assumptions that the federal government, following the attempts of the other House, is trying to eliminate the rights of the Aboriginal nations and to disregard all the treaties that have been signed since time immemorial... At that point, we will see the federal government's true intentions in Bill C-7, which, when combined with Bill C-6 and C-19, constitute a genuine offensive to eliminate the rights of the Aboriginal nations in Canada and aims to strangle them with financial and technical obligations which may not be realizable for many of them, and to ensure that all their energies are taken up in fighting the federal government rather than building in areas where there is great need : social housing, education, health, multiple substance abuse and economic development.

It seems to me that it would be doing justice to the Aboriginal nations to immediately inform the Aboriginal nations, by supporting the amendment introduced by my colleague Mr. Martin of the NDP, that there is no eel under the rock, that we are not attacking their rights and that the federal government is not abandoning them while it has a fiduciary duty toward them.

It seems to me we owe them that when we say that we want to start out again on a new basis, put in place partnerships, negotiate between equals for a new contract for the future. It seems to me, when we sign commitments like that, that we must demonstrate our good faith and that we are not doing, through the back door, what the courts, in particular the Supreme Court, but also the international courts, prohibit us from doing by the front, that is to say eliminating Aboriginal rights and disregarding what has happened over the past 130 years during which the Indian Act was in effect.

Mr. Chairman, I look at this amendment and I am persuaded that we will manage to convince our colleagues around the table that support for this amendment is a matter of mutual trust between the federal government and the Aboriginal nations. This amendment does not distort the bill. It states that the federal government's rights and obligations do not disappear under the bill, but that the federal government will remain responsible in all respects as fiduciary of the Aboriginal peoples.

So I invite my colleagues to support the amendment introduced by my NDP colleague as a sign of good faith and mutual trust. If we were to vote against this amendment, that vote could be interpreted as a vote of non-confidence and non-respect on your part for the Aboriginal nations.

It seems to me that, since yesterday, we have been introducing amendments that are all intended to improve matters, to try at least, if this is not a valid bill, to minimize the negative effects it could have on our relations with the Aboriginal nations, but also on their future. And since yesterday, we have received only negative responses from our Liberal colleagues and those of the Canadian Alliance.

It seems to me we should be in favour of this amendment...

[English]

The Chair: Thank you, Mr. Loubier. Your your time is up. There's no respect for the committee.

Mr. Hubbard, you have the floor.

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

I've listened to the argument, and I don't think I have to remind the honourable member that clause 3 has three parts, paragraphs 3(a), (b), and (c). I think the intent of paragraph 3(a) is quite clear to all. This bill, which we're looking to be declared eventually an act, states that it's providing “more effective tools of governance on an interim basis pending the negotiation and implementation of the inherent right of self-government”. So the authors of this bill are saying to us that it's an interim bill.

I'm also a little bit confused, because clause 34 deals with bands who are nearly reaching the point of self-government. There is some latitude there. But what is most concerning to me is the fact that this amendment somehow has a number 2 in front of it, and clause 3 doesn't seem to have a 1.

Perhaps, using a summary of this, Mr. Martin could define more clearly how he sees this particular amendment applying in terms of clause 3.

º (1620)

The Chair: Does anyone else wish to comment on the amendment?

Mr. Martin, last remarks.

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

Thank you, Mr. Hubbard, for your question.

I think it's pretty self-evident that when we do adopt this and when we vote in favour of this amendment, it will constitute not another paragraph in the (a), (b), (c), and (d). Because it's a new idea, it would be subclause (2) of clause 3. In other words, subclause (1) would 3(1)(a), (b), and (c), and then subclause (2). So I don't think that renumbering should serve as any kind of a barrier. It's pretty straightforward.

The reason this clause, I believe, is so important is that it's supposed to be in keeping with the stated theme of clarity and accountability, to clearly state what this bill is all about. If it's one of the objectives to enhance accountability and clarity, it's incumbent upon those of us who are drafting a bill about transparency and accountability to be transparent about the intent, or what we intend this bill to do.

Some of the presentations we heard across the country spoke directly to this idea, that the process is as important as the content of this whole exercise. That's where, really, the government has been criticized almost unanimously by the witnesses we heard. They stated that the process has been flawed, in terms of the original consultation process wasn't meaningful, and that the very people whose lives this bill is going to affect had no direct input into the crafting of the bill or the content of the bill, and even to this day are having no opportunity to even influence the crafting of the bill, because the Liberal members have been ordered to vote against every single amendment.

I should point out that these amendments were not written by my office. These amendments I'm putting forward, by and large, were recommended to us from first nations across the country, using us as a vehicle to introduce them on their behalf. So when you're voting against these amendments, I don't care if it's showing disrespect to the points I'm bringing forward, but be aware that you're disrespecting the people who asked for these changes.

So the minister led first nations to believe that they would have a role in crafting this legislation. In fact, he told the world, when he announced it publicly, that this bill was crafted by the 10,000 first nations people who they consulted. He said that in his opening remarks to this committee, on the record, which we all know is a farce; it's anything but the truth. There was no direct meaningful consultation because consultation, as I've pointed out before, requires accommodation of the views put forward. It's not legitimate consultation to hold up a piece of paper to a person and say, “This is what I'm going to do to you. What do you think about it?”

So the real consultation took place, unfortunately, after the bill was already drafted, when we toured the country for four weeks, asking people, what do you think of this bill? And even then, this is proving to be an unsatisfactory exercise, because, again, the minister promised participation when he said we're going to give this bill to the committee at first reading, instead of after second reading, because by giving it to you after first reading we want it to be wide open for lots of constructive amendments to be made, and this will enable that process by having it at first reading.

Here we are at first reading. We finished hearing the last witness on Monday past, and the deadline for putting in amendments was that Friday at three o'clock. There's this incredibly complex legalese that we have to plow through and make meaningful amendments for, and now we're told that it's the government's plan to have even this amending process concluded the end of the business day this Friday.

That, in mind, trivializes the seriousness of these issues we're dealing with and it shows disrespect to the lives and the futures of the very people this bill have an influence over.

But getting specifically to the point of why this particular amendment is so necessary now is that there was a commitment made regarding participation and clarity, and being up front with the intentions and with the dealings of first nations.

º (1625)

So seeing as first nations people across the country have lost the opportunity to have any input into the bill at consultation, it appears they have no input into the bill at this forum, because you're just by decree voting against every amendment we bring forward, no matter how constructive it is. I think that at least you owe it to people across the country to make a clear declaration that you're not trying to screw people with this bill. In the absence of any language to the contrary, that's the conclusion people would have to come to, isn't it.

An hon. member: That's unparliamentary, Mr. Chair.

Mr. Pat Martin: Frankly, it's not a very satisfactory arrangement. Now the importance of an open and transparent process should be self-evident because of the distrust that's been created over 130 years of an unsatisfactory relationship. In fact, I heard today Vice-Chief Francis Fox for Ontario, who is the Acting National Chief of the Assembly of First Nations, made it abundantly clear that relations between the federal government and first nations are at a new all-time low. He declared publicly at a press conference today that he was worried that the relation is fractured in such a way that it set back relations fifty years, to the 1969 white paper.

That should be cause for concern for everybody around this table. There have been parallels drawn between this First Nations Governance Act and the 1969 white paper. It's ironic that yesterday was the 40th anniversary of the Prime Minister being a member of Parliament, and it was the Prime Minister who, as the Minister of Indian Affairs in 1969, tried to ram through that incredibly unpopular concept of assimilation then, which spawned a whole generation of militancy and activism among the first nations leaders.

The leaders who we know today were spurred to action and spurred to the militancy that we see sometimes by the offensive 1969 white paper, and here we have the reincarnation of it in the twilight years of this Prime Minister. It seems like this is part of a legacy initiative on his part to finish a job he left unfinished and to ram through this concept of assimilation, which contemplates diminishing and eroding and undermining the genuine self-governance inherent right, the constitutionally recognized rights to self-governance.

That's the fear out there, whether I'm right or wrong. And you can prove me wrong, I suppose, by allowing some of these amendments, if you choose to. In the absence of allowing these amendments you're essentially admitting that I'm right, that this is the Trojan Horse, this is the 1969 white paper wrapped up in a little bit different package and being rammed down the throats of first nations people in spite of their overwhelming opposition, almost unanimous opposition, to the contrary.

I don't know how in the year 2003 we can in all good conscience act like a bunch of colonial governors occupying imperially in a colonial manner, imposing our wishes on a people who we claim in our Constitution have a sovereign right to self-determination. It flies in the face of all things I thought Canada stood for to now impose our will on the peoples of first nations communities.

This clause, not to overstate things and not to overstate the importance of this clause, but I will state clearly that this language has great weight. This language was very carefully selected because first nations leaders have learned the lesson that you have to be really careful in the language you choose because it has the effect of coming back to fail you later on.

Thankfully we have the courts pretty much doing the government's job for them. In all of these issues, when they're brought through the agonizing process of going all the way through to the Supreme Court, first nations win every time, in virtually all the recent challenges. We're asking for similar challenges in this legislation.

º (1630)

Unless we take some serious steps to back off some of the offensive language here... And the parliamentary secretary, Mr. Hubbard, felt that the purposes of the act, clause 3, already gives sufficient language to give comfort or relief to those who may be apprehensive. I say it's just the opposite. We tried to amend paragraph (a) earlier, yesterday. If you'll remember, Mr. Hubbard, Mr. Chair--

The Chair: Thank you, Mr. Martin. This completes your ten minutes. Thank you.

We go directly to the vote on NDP-9.

Mr. Pat Martin: I want a recorded vote.

The Chair: A recorded vote.

(Motion negatived: nays 7; yeas 4)

The Chair: Before we go on to the next amendment, which is NDP-10, I will say that most of the debate I heard on amendments since we began has very little to do with the amendment in question. It's more of a bashing of governments, of individuals, of employees.

Other members have the right to wonder why the chair doesn't intervene. The reason the chair doesn't intervene is because my experience with this committee is that if I intervene to bring us back to the issue, we will debate for ten hours getting back to the issue. I find it more expeditious to allow the bashing to last the ten minutes.

That is my apology and my explanation to other members who have to endure it.

Mr. Martin, on your amendment NDP-10.

Mr. Pat Martin: Mr. Chairman, I believe everything I've been saying is exactly on topic and appropriate, because you can't look at these clauses in isolation. We're talking about the effect and the impact of the bill itself, so if I tend to gravitate toward the larger picture, I don't apologize for that. I think it's relevant, and I'm not going to limit my comments to commas and semi-colons, because the bill is flawed in fundamental ways. Even with the amendments we're putting forward, it's questionable whether we're going to be able to make it into a satisfactory bill.

The amendment I'm proposing, NDP-10, speaks to the fact that there are aspects of Bill C-7 that, contrary to the expensive advertising campaign that has accompanied the bill, actually do expand and enhance the discretionary authority of the Minister of Indian Affairs. It's contrary to everything we were seeking to achieve when the idea of revisiting the Indian Act came up. Many of us had some hope and optimism two years ago when the Minister of Indian Affairs stood up in the House of Commons to announce they would be looking at amendments to the way the relationship is structured and steps toward self-governance. Many of us stood up and complimented him. We said we would be happy to participate in an exercise that would lead toward aboriginal self-governance. Little did we know what he really had in mind.

This has very little to do with self-governance. In fact, you would have to say many of the clauses stand completely contrary to the actual transfer of jurisdictional powers or the devolution of real decision-making authority. The real decision-making authority, in many aspects of the bill, remains vested with the minister. So how can you talk about self-governance when the minister has all the power?

In fact, we're going to see--it wasn't me, it was other people who made the point--the Minister of Indian Affairs become the biggest Indian agent in the country after all these first nations either won't be able to implement or will not implement the governance codes that are being forced down their throats. They'll be either unwilling or unable to within these timeframes. The default mechanism will kick in, and all of a sudden the Minister of Indian Affairs will be in charge again, imposing these governance codes. And then, if there's a reluctance to comply, what are the sanctions?

We've asked that question. What are the sanctions to not cooperating? I predict that out of protest or unwillingness or the inability to cooperate, we will have first nations refusing to accept these codes that are being imposed upon them. The only sanctions available to the minister then are intervention, including third-party management. Those are the sanctions. And that makes the minister again the one in charge of people's lives.

I want to correct, for the record, some of the comments we heard earlier today at a press conference. It was the Ontario vice-chief for the Assembly of First Nations, Charles Fox. I'm not sure what name I said in my hurry earlier, but for the record, the points that were being made by Vice-Chief Fox were along those lines.

The concern is that instead of seeing negotiated devolution of jurisdictional authority from the federal government to a third order of government, which will be aboriginal self-government, taking place, we're seeing the minister putting in place a bill that actually enhances and expands his unilateral ability, his arbitrary ability, to interfere with the very day-to-day operation, the micromanagement of the communities.

That again is a recipe for failure, a recipe for disaster, Mr. Chairman. That's been pointed out to us by numerous presenters. I think my assistant listed some of those who raised the issue in the presentations. I wish I had adequate time to plow through all the presentations we heard across the country.

º (1635)

I remember hearing it dozens of times. I can mention the professor from the Faculty of Law at the University of Ottawa who made that very specific point. That was pulled out for us by the research staff of the House of Commons.

Over and over again we heard first nations saying that they would welcome the opportunity to participate in the transfer of jurisdictional authority to first nations communities, because that, we've been told, is the foundation toward economic development opportunities. All the models of economic development that have been studied across North America and even the world say that it has to start with decision-making authority. Then economic development enterprises have the ability to succeed. But you can't put the cart before the horse. You can't withhold decision-making authority and expect economic development to proceed and succeed. That has been the empirical evidence. That has been shown over and over again in experiences in the United States, which I've outlined to you before.

This bill flies in the face of that unless it diminishes the ability of the minister to interfere, not go in the other direction and actually expand it. If there were true consultation, this is certainly not something the minister could claim he heard from communities and first nations leaders. I don't know who he was consulting if this is the result. If someone were asked how they would like to change their life, nobody in their right mind in Indian country would say “I'd like the Minister of Indian Affairs to have more ability to butt into our affairs”. I think you would find pretty much that the polar opposite would be what they would request if they were asked.

But we say that nobody asked them. We say that consulting 10,000 people and spending $10 million to do so is an absolute farce. I challenge anybody at this table to show me the 10,000 opinions of people who support this bill. In fact, I presented more names of people who were opposed to this bill on petitions presented in the House of Commons, which were gathered by the woman you had thrown out of the meeting last night, Grand Chief Margaret Swan from the Southern Chiefs' Organization. Ironically, she is also a card-carrying Liberal and vice-chair of the Liberal Party's aboriginal commission. But that was--

º (1640)

The Chair: Mr. Martin, I have to make a correction. Yesterday I asked that the lady leave. Mr. Loubier convinced her to leave peacefully. She was not thrown out. She left in a very distinguished way, and Mr. Loubier is the one who talked her into that.

Mr. Pat Martin: With a guard on each arm and then escorted very genteelly.

Some hon. members: Oh, oh!

Mr. Pat Martin: I say to you that nobody wants more ministerial authority. Everybody I've talked to wants less ministerial interference. It should be one of the stated purposes of this act “to reduce the frequency and nature of departmental and ministerial intrusion into the governance and administrative decisions of First Nations.” Frankly, if this bill had this language in it, you would find people lining up to put bums in the seats here to support this bill.

Virtually everybody in the country wants to reduce the frequency and nature of departmental and ministerial intrusion into the governance and administrative decisions of first nations. That should be the objective. That's the objective I thought the minister was announcing when he stood up in the House of Commons. I now regret my endorsement of his remarks. He said, “Finally, this government has the courage. We're going to take on this 130 years of social tragedy that is the Indian Act, and we're not going to stop until it's fixed.” I stood up in the House and said “That's great. I want to be part of that. I support that.”

Unfortunately, nobody asked us what we thought and nobody asked the first nations leadership what they thought, and we ended up with a bill that actually gives more power to the minister to interfere with and intrude upon the most minute details of the administration and governance of first nations communities.

I ask members here, if it's not their intention to enhance the powers of the minister, say so under the purposes of the act. Put in this simple paragraph (d) consisting of four lines. Mr. Hubbard doesn't even have to renumber anything, if that's what irritates him so much. We can simply state--

The Chair: Thank you, Mr. Martin.

Mr. Vellacott.

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

As I look at this, I see this particular clause here actually mirrored or in some places inferred or implied in other parts of the bill. The whole intent, as I understand it from comments that the minister has made, and that others around this table have made, has certainly been to the effect that the bill would reduce the involvement of the department and the minister in the governance and administrative decisions of first nations. I think most Canadians would desire that, to in fact get some code that's sensitive, written by, and in the ownership of the first nations people. The whole upside of that is that you will not have the involvement. In fact, doing away with the Indian Act would give us a total coup in respect to that, and you wouldn't have the department's involvement. You wouldn't need it and it would be no longer required at all.

I'm going to be in support of this particular amendment. I can't see, at all, the harm. In fact, it is some pretty positive comment, I think, in respect to what we intend this act to be about. I think we should be reducing the frequency and nature of the departmental and ministerial intrusion. Sometimes they have had their hands tied by way of the Indian Act itself, and sometimes there have been well-meaning people who don't know how to deal with situations out there, but they stumble into it. At other points maybe they don't err as much, but I have heard of many stories in fact where well-intended department people come into situations and there is more mess in the aftermath than before they went in sometimes.

I really think of this as a protection for them as well. They don't want to be involved. They would like for that to be handed off and for people to take control of their own lives and destiny and self-determination.

This is an acceptable amendment and one that should go forward. I would hope that there would possibly be even members on the government side who would see their way to supporting this particular paragraph 3(d) in the bill.

º (1645)

The Chair: Thank you, Mr. Vellacott.

Is there anyone else?

Mr. Dromisky.

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.): I'd like further clarification from the sponsor of this amendment. To me, when it states that there will be a reduction in the frequency and nature of departmental and ministerial intrusions, it's not clear. This is a land mine for future legal battles. Regarding frequency, we don't know what we're talking about here. We don't know whether we're talking about two, six, 15, 100, 168. We're not sure. We don't know what we mean by “the nature of departmental and ministerial intrusion”, what quality, what degree, what intensity, what substance. Would it be qualitative or quantitative? We're not sure. Therefore, I'm not really too sure.

I know what they mean here. I have an idea. But I'll say again it's a land mine. There should be a clear structure here regarding guidance in a bill of this nature.

The Chair: Is that it, Mr. Dromisky?

Mr. Stan Dromisky: That's it.

The Chair: Monsieur Loubier.

[Translation]

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

I'm going to support this amendment of Mr. Martin's because, once again, it is consistent, if you will, with an attenuation of the irritants that can be found in Bill C-7. And in the light of the sittings we have held here and elsewhere, this concern was very much present in the great, the very great majority of witnesses, who found that the Minister, who said he wanted to leave room for the Aboriginal nations, for the First Nations, so that they could decide for themselves on their future and what is good or bad for them, was doing exactly the opposite with Bill C-7.

The minister and the department are consistently present. And we realize that, far from reducing the frequency of intervention and reducing the department's presence in the everyday lives of the members of the First Nations, we are bringing together all the conditions for greater future interference by the Department of Indian and Northern Affairs Canada. If you question the officials, they will quite clearly tell you that that's not what they are preparing. But have you ever seen people work against themselves? Have you ever seen people work against themselves and against their future?

What I felt when we conducted the tour was that there was a kind of system at the Department of Indian and Northern Affairs Canada that had been put in place over the years because the budget is starting to be quite big at Indian Affairs--it's gone from $1 billion a year in the 1980s to $13 billion a year--and there were a number of minor kings within the Department of Indian and Northern Affairs Canada. So when my colleague Mr. Martin, with his great lucidity, tried to translate precisely what we were able to derive from our proceedings, our consultations with the First Nations, when he talks about the nature of interference, I understand it, because, in a number of cases, it was said that the interference of certain officials, of certain Indian agents, as they are called, could go as far as intimidation in the awarding of subsidies, in the spending of a subsidy in certain areas. You were there, Mr. Dromisky, when we conducted the tour, and a number of representatives of the First Nations told us that there was this type of intimidation. We can't deny it; it's written in the blues. We only need to go and check it.

There is even the Quebec Native Women's Association--I've had the opportunity to mention this a number of times--whose subsidies were cut off from the moment it opposed Bill C-7. So to be able to receive grants from the Department of Indian Affairs or Heritage Canada, because there was also some question of Heritage Canada as well, you have to agree with the government. You must not challenge the government. You have to say what the official tells you as well because he's a direct agent of the government.

At the Department of Indian Affairs, it seemed to me, in any case--perhaps this is a false feeling--that there was a fairly generalized kind of endogenous system, a system that lived on its own, that fed on itself and that served much more to consolidate the power that some could have over the First Nations across Canada than to help the First Nations achieve their objectives.

When the minister speaks about supporting the First Nations, I agree with him, except that it's not support that were able to sense. We sensed that the actions of the Department of Indian Affairs were often carried out through a kind of system of terror and that if their requirements were not met, native representatives paid a heavy price. This is so true that, in the consultations we conducted, some members of the First Nations took me aside, just like that, a little further away outside the room, to explain to me in secret, because they were afraid of reprisals, what could happen in certain communities, in relations between the leaders of those communities and the Department of Indian and Northern Affairs Canada.

º (1650)

I'm willing to believe that everyone is in good faith in this, but there is surely some truth in the denunciations of intimidation we heard during our proceedings. How far can the intimidation go? What proportions can the interference of the Department of Indian and Northern Affairs take on? Only a more thorough investigation could determine that for us. As for me, I nevertheless felt a quite extraordinary degree of discomfort wherever we passed.

I'm almost surprised--and moreover, Pat Martin's amendment refers to this--that the recommendations of the Erasmus-Dussault Commission are not referred to more frequently when we talk about the non-interference of the minister or department in the day-to-day affairs of the Aboriginal nations.

I would like to cite a brief passage from the Commission's report on this point :

Aboriginal people have made it clear, in words and deeds, that they will no longer sit quietly by, waiting for their grievances to be heard and their rights restored. Despite their long history of peacefulness, some leaders fear that violence is in the wind. What Aboriginal people need is straightforward, if not simple :

This is from the 1997 report of the Royal Commission on Aboriginal Peoples, which took six years to prepare. There must be some truth in it. I continue :

...control over their lives in place of the well-meaning but devastating paternalism of past Canadian governments; lands, resources and self-chosen governments with which to reconstruct social, economic and political order; time, space and respect from Canada to heal their spirits and revitalize their cultures.

Today we have an amendment that could demonstrate the federal government's good will since it would respond, at least in part, to the Aboriginal nations' need for self-government. It will also show that we respect their inherent right to self-government and their aspirations as a people.

In my view, the best thing that could happen today, or at least in the next few minutes, would be for all members of this committee to support unreservedly the will expressed in the context of the proceedings held across Canada--and here in Ottawa--that the control of the Department of Indian and Northern Affairs be reduced and that the interference noted across Canada become the exception rather than the rule.

For that reason, I invite my colleagues to vote in favour of this amendment in principle which follows from the very wise analysis conducted by my colleague, Pat Martin of the NDP. It is in a way a gift from heaven to have such an amendment in hand. It can attenuate the problems associated with Bill C-7 and help restore trust between the federal government and the First Nations.

The container is as important as the content. Mr. Dromisky, you asked the question earlier; we don't know...

º (1655)

The Chair : Please address the Chair, not committee members directly.

Mr. Yvan Loubier : Mr. Chairman, like me, you heard Mr. Dromisky say earlier that he wondered about the nature of this interference. Of course, we can wonder how many angels can dance on the head of a pin and try to define the phenomenon very precisely. However, like us, you were able to sense that certain things were not working in the relations between the department and the Aboriginal nations. You as much as we sensed discomfort in the testimony provided by members of the First Nations.

A kind of principle emerges from all this, that is to say that the less there is in the way of relations between the First Nations, the Department of Indian and Northern Affairs and the minister, the more the malaise that we sensed may be attenuated. We would also be expressing our respect for this self-government that all the members of the First Nations desire.

I believe we as legislators are capable of seeing that there are...

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard.

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

With this clause, now, Mr. Martin has seven different amendments. I think as members we might find it difficult to deal with seven that are all around the same issue. It appears that this particular amendment has some merit. The spirit of it is probably good, and we may look at it in terms of a previous amendment that was proposed yesterday. But the wording of it--“intrusion”--certainly would be a difficult word to work with in terms of any legality this act might have. I would like to suggest that we on this side will have difficulty supporting it because of the wording.

I would also like, Mr. Chair, to say that this meeting is being recorded. I did make reference across the floor a few minutes ago about a word Mr. Martin used in terms of the chair and the people visiting here today, and I hope the record would reflect the proper preposition when he made reference to our guests here today. Thank you, Mr. Chair.

We will not be supporting this particular one, but we are looking forward to amendment CA-2, which may come back later today.

The Chair: Thank you, Mr. Hubbard.

Mr. Martin, you have the last remark.

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

I'm not sure what the parliamentary secretary was making reference to concerning previous remarks I may have made regarding guests and visitors in the room.

The Chair: Would you like him to explain?

Mr. Pat Martin: Yes, if you don't mind. It may be something I'm willing to withdraw.

The Chair: Mr. Hubbard, would you explain the remark you made reference to?

Mr. Charles Hubbard: Mr. Chair, the remark was in reference to “bums” either in or on the chair, and I think the record, the blues, should indicate that our guests are honoured guests and that you're referring to their--

The Chair: You've made the point, and I'll leave it with Mr. Martin.

Mr. Pat Martin: I see. I understand what the parliamentary secretary is getting at. It's a common phrase in show business and in the theatre: to “put bums in the seats” means putting your posterior into a chair. It doesn't mean the person is a hobo or a bum.

Voices: Oh, oh!

Mr. Pat Martin: We want bums in the seats, witnesses. I have the utmost respect for those who see fit to give up their evening to observe us here tonight, and I'm happy to see their bums in the seats. That's what I was trying to get at.

I'm disappointed that the parliamentary secretary indicated they'll be voting against yet another amendment we're putting forward in good faith and with a genuine and sincere interest in trying to improve this piece of legislation, which has caused such animosity and such hostility across the country. In fact, if the parliamentary secretary thought that the term “ministerial intrusion” was the barrier here, perhaps he should have moved a subamendment to put in language that was perhaps less volatile or less critical or that didn't imply criticism in the clause. We may be able to entertain that as a subamendment.

It seems a pattern has developed here where the government side is not willing to entertain any of these amendments no matter what the merits of them are. This is true, as even Mr. Vellacott from the Canadian Alliance has pointed out, even for an amendment that is actually reflected elsewhere in the document, one that barely deviates from what is elsewhere and that simply puts that language into the category of “Purposes of Act” for future reference.

I'm disappointed, but in arguing why this clause should be under “Purposes of Act”, I refer you back to the most recent Speech from the Throne. The Prime Minister did make frequent reference to aboriginal issues, remarks that amounted to--in interviews afterwards, at least--him wanting to see us moving off the issue of rights and redress and moving forward with issues of economic development. His argument was, and I don't disagree, that the answer to chronic long-term poverty in first nations communities does lie in meaningful economic development, however you want to picture or visualize that.

We know, however, that successful models of economic development in first nations communities obviously rely to some degree on access to lands and resources. But even more important than the actual physical wealth they can draw from on traditional lands is that structures have to be in place. The true decision-making authority and ability have to be in place. Practical sovereignty has to be in place before economic development seems to succeed.

We've seen and had presentations made to this committee by university professors, experts in the field, explaining that the issue of practical sovereignty is as important as anything else in terms of preparing a community or any institution. It doesn't even have to be a first nations institution; any institution, in order to succeed, has to have decision-making authority. This translates, I suppose, in this case into the practical sovereignty that would stem from the devolution of decision-making authority from the federal government onto first nations.

We find or it was made known to us that throughout Bill C-7 as it currently stands there is commonly ministerial and departmental interference--or whatever language you want to use--and the bill actually contemplates even expanding or broadening the opportunities for either INAC or the minister to intrude on first nations. The ultimate intrusion would be in the form of sanctions for first nations unable or unwilling to implement--or simply for not implementing--the codes of governance within the required timeframe. That ultimate sanction is third-party management, third-party intervention, where the heavy hand of the minister takes absolute control over everything to do with first nations. You and I know, Mr. Chairman, this has become a mini-industry across the country. Third-party management has become this blossoming business within the chartered accountant community.

» (1700)

I hope it's an investigation this committee undertakes, because we have examples where the minister has signed a contract with a third-party manager to take over the direction and control of all the financial activity in a first nations community. On the face of that contract, right on the opening cover page, it says the third-party manager shall be known as the “Indian agent”.

That's offensive to begin with, but what's more offensive is that when you open that contract of a third-party manager, where the minister has directed a third party to take absolute control over that first nation, the fees charged are between $15,000 and $30,000 per month. Those are fees we've seen in various third-party management contracts. This is an absolute windfall for chartered accountants to be able to bill that for the relatively minor financial activity of a small community. I don't know what it would be, a day's work or a week's, I would believe, for a chartered accountant to be able to handle the comings and goings of spending in a first nations community. Yet they're charging up to $30,000 a month on behalf of the minister.

Now, I think it's absolutely shameful. This comes out of the actual operating budget of the first nations community. You have a first nations community that might have a $1-million-a-year budget, and $30,000 a month is being hived off to a third-party manager. That's $360,000 a year going to a chartered accountant.

We have one example of a reserve under third-party management, Pikangikum, Ontario, and I went to visit it. They've never seen their third-party manager because he won't go to that reserve; he says it wouldn't be safe. Yet he's billing that reserve for flights between Hamilton and Toronto, for instance; these are being billed to Pikangikum, Ontario, where he's never been. This is a guy from Kenora, a chartered accountant from Kenora, somebody the minister knows and trusts, I presume, who got this lucrative and juicy contract to gouge the people of Pikangikum.

That's the kind of interference and intrusion we anticipate could be much more frequent because 633 first nations across the country will not be able to comply with the onerous time limitations of this bill. They're supposed to change the way they do business within two years, in keeping with the minister's vision of how the world should look, and if they refuse to do so, they get these rules imposed on them. Well, if I were part of a first nations community I would say in no uncertain terms, get out of my life. In fact, I'd say it in stronger terms than that.

So we're going to find some communities who simply will not cooperate. The sanctions, then, that will flow from that will be that the minister will take the ultimate step, I suppose, and punish them with the economic hammer only the minister has: the ability to undermine their very freedom to control their own affairs and even manage their own accounts and bookkeeping.

That kind of interference and intrusion has to be brought to the forefront. That will be the extreme case, but it's the exception to the rule now. When we did our research about the number of bands that are actually in arrears or having problems filing their audits on time, we found that 96% of all first nations do cooperate and file their audits on time. Even the Auditor General says they're over-audited and that having to fill out 168 documents per year to keep their revenue stream flowing is onerous, unrealistic, and ridiculous. They still manage to comply, 96% of them.

The remaining 4%.... When we did that research, there were about 35 communities under third-party management. I predict that number of communities will blossom, ones that will be put under some kind of trusteeship or economic sanctions because of their inability to cooperate under the imposition of these rules they neither need nor want.

Mr. Chairman, in light of that argument, I would suggest that this is a reasonable request, and I'd like to move--

» (1705)

The Chair: Thank you, Mr. Martin.

Mr. Pat Martin: That's the conclusion of my speech on the amendment, but I'd like to ask unanimous consent, in fact, for a subamendment to change the words to “ministerial interventions” instead of--

The Chair: Just a moment, Mr. Martin. You cannot move a subamendment on your own amendment unless you get unanimous consent.

Mr. Pat Martin: Then I would like to rephrase it by asking for unanimous consent.

Mr. Maurice Vellacott: I would still move it. Can I move it as--

The Chair: I think it's safer for Mr. Martin to ask someone else to move it. I suspect you probably won't get unanimous consent, but I'm only guessing.

Mr. Maurice Vellacott: I would still move it. It would just simply be to have at the point that it's meant to be a friendly help here in terms of if the word “offensive” in the fact of saying....

The Chair: We were discussing procedure.

» (1710)

Mr. Maurice Vellacott: Intending to be helpful here, I would just suggest, Mr. Chair, that instead of the words “ministerial intrusion” that it would simply read “ministerial interventions”, which would be, hopefully, a less offensive or negative tone to that. That would be the subamendment, “ministerial interventions”.

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

Just a moment, I have a point of order.

Mr. Charles Hubbard: On a point of order, Mr. Chair, I'm a bit taken back with this, because normally when we proceed with a motion and the conclusion is reached with that motion, to begin an amendment after that motion has been concluded in terms of our speeches would certainly be deemed to be irregular. I think, Mr. Chair, I could see them being introduced during debate but not at the conclusion of debate on that particular amendment.

The Chair: I take your point of order, and there's no retort. I will ask our clerk to interpret the rules of the House.

The problem is that the debate, with Mr. Martin being the last to speak, was complete. I won't try to influence the recommendation of the clerk. I have my views on it too, but we will read it to the.... And yes, we'll allow them to respond to that point of order.

The regulation as shown to me here is that the motion that the committee passed the other night and/or “any other motion for a maximum of 10 minutes”--that's what the mover gets--“after which time the mover may answer questions raised for a further maximum of 10 minutes”--that is really what Mr. Martin did--and directly it says “and that the vote then be taken”. So I have to go to the vote after Mr. Martin.

Mr. Maurice Vellacott: On a point of order, Mr. Speaker, mine is not part of the “main amendment”. It's not an address to the main amendment. It's a subamendment.

The Chair: It can only be a subamendment to the amendment. It can't be a subamendment to anything else.

Mr. Maurice Vellacott: Exactly, so it's a subamendment....

The Chair: And that amendment had been fully debated according to the rule there.

Mr. Maurice Vellacott: But at this point I'm not speaking on the amendment, I'm rendering, putting on the table, the subamendment.

The Chair: You can only speak to the subamendment if it's been received by the chair and accepted; that is the point of order. The rule indicates that the chair cannot accept that subamendment because the debate had been completed. I think it's pretty clear.

Seeing that it was suggested by someone from the government side, you still have the option of asking for unanimous consent. But to accept the subamendment, I cannot accept it.

Mr. Maurice Vellacott: I raise another point of order, then, Mr. Chair, in regard to this.

We've got ourselves, whether well intentioned or otherwise, into bit of a dilemma in the fact that if there's some friendly help to a government amendment, or on the opposition side here, if the only point it can be done is.... If at the time when early on I had the floor and there's some issue that comes up later and I want, as a helpful contributing member of this committee, to suggest a way out--a way where we get some amicable resolution to the whole thing--then I don't have the floor any more at that point.

We've put ourselves in a bit of a corner. It binds members to be having to suggest amendments, or subamendments, if you will, at a point early on in the conversation when I have not even heard the very proper intervention by Mr. Hubbard--

The Chair: That is why everyone has an opportunity before we go back to the mover, who gets the final word.

You speak of goodwill, and I would like to see some in this committee, but I don't. But if there were goodwill, why not ask unanimous consent on the understanding that we don't get another hour of debate? What have we got to lose by giving unanimous consent? Everybody agrees that the word is better and it still allows everyone to vote whatever way they want if we go directly to the vote. If you're looking for a way out, that's a way out.

» (1715)

Mr. Maurice Vellacott: With that kind of preface, then, and if the members on this side of the table will concede that we move directly to the vote, I would ask for unanimous consent that we proceed.

The Chair: Is that on the proviso that we go directly to the vote if you get unanimous consent?

Mr. Maurice Vellacott: Yes.

The Chair: Do I have unanimous consent that we--

Some hon. members: No.

The Chair: No, we don't. We'll go directly to the vote.

Are we ready for the question on NDP-10?

An hon. member: I would like a recorded vote.

(Amendment negatived: nays 7; yeas 3)

The Chair: We now go to NDP-11.

Mr. Martin.

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

As disappointed as I am in the lack of cooperation from the government side on such a minor detail as the last clause, I will take my place and speak to the next amendment we're putting forward.

We believe, and most people we've heard from believe, that the most important feature lacking in this bill is what would traditionally be called the non-derogation clause. It's a term we throw lightly around the table here because we hear it so often it becomes second nature for us to use and make reference to it. But this has been identified to us as one of the biggest sticking points in this bill.

As I stated earlier, people are apprehensive that this bill infringes upon, seeks to extinguish, or at the very least diminishes or derogates from existing aboriginal or treaty rights. The case has been made that aspects of the bill certainly do. Legal opinions have been shared with us that this bill does in fact have the effect of derogating from or abrogating existing aboriginal and treaty rights.

The government has been asked to prove that is not true. We've put the burden of proof onto them by asking the question, does it or does it not? And we can't get an answer.

It's implied by the government they don't believe this bill does have any impact or effect on these aboriginal or treaty rights, yet they're unwilling to share their legal opinions to that effect. They won't share them even with committee members, which I find unbelievable.

They wouldn't share them with the Indigenous Bar Association, which made the request formally and waited a year and a half under Access to Information Act and Privacy Act laws. They waited for a year and a half and got a negative response--they would not release that information to them. I have the quote here. It was a ridiculous excuse that it would be against the interests of the Crown, or something to that effect, to release that information.

I understand client-lawyer privilege. If a lawyer has a customer or a client, there's a privilege that exists that they won't release detailed information about the client, but surely this is different, in the interest of crafting good legislation. Also, in a courtroom setting you share the evidence you have with each other before a trial begins.

This isn't a criminal trial, but surely, in the interest of crafting good legislation, we deserve to know what research and evidence the government has to lead them to believe it has no such impact.

If the government were sincere in making the statement that there's nothing to worry about in Bill C-7 they would have no problem putting in a clause to that effect in the language. The clause we suggest is one that's been tested in the courts. It's legal language that we've chosen very carefully out of a variety of non-derogation clauses. We want this language in the bill. It would say:

“For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.”

It's plain and simple. But in the absence of that language, can you blame people for concluding that the government does intend to abrogate or derogate from existing aboriginal or treaty rights? You would have to be stupid not to come to that conclusion, and certainly people with a vested interest in it, like people who will be affected by this bill, are not stupid. They've twigged to it right away. That's partly because it's very common to put clauses like this into bills dealing with aboriginal issues. In fact, it was the norm.

» (1720)

We saw the first moving away from that in Bill C-49, I believe, the First Nations Land Management Act, where they altered the non-derogation clause. That was cause for concern, when they deviated from the usual language in a non-derogation clause. In this case, they've left it out altogether, and deliberately so—because I don't believe any of these things are by accident.

So by moving this amendment, I'm also asking the question, does the government honestly believe that nothing in this act abrogates or derogates from existing aboriginal or treaty rights? It's a fair and legitimate question. It was a question that was asked, and opinions given about, at our hearings. I'll read some of the presentations that cited this as a problem, out of many hundreds that mentioned it.

The Hupacasath First Nation raised this in their presentation, as did John Twoyoungmen in Red Deer, Alberta. The Kitsumkalum First Nation raised this as a concern of theirs. Mr. Bradford Morse, a professor with the law faculty at the University of Ottawa, said that this bill must have a non-derogation clause, or it shouldn't move forward. The Treaty 7 Tribal Council also made this case, as did the Kamloops Indian Band. The Assembly of First Nations, speaking on behalf of all the legitimately elected leadership of first nations communities across the country, also made this abundantly clear. The national aboriginal law section of the Canadian Bar Association said that if we wanted this bill to be sound, etc., we should include and state clearly an aboriginal non-derogation clause.

The Association of Aboriginal Friendship Centres supported this clause as well. Interestingly enough, so did the Congress of Aboriginal Peoples, which was the one aboriginal organization that actually was onside with the government in supporting this bill. In my opinion, they were bought and paid for to be onside, but even they insisted that their support was qualified for the actual bill and demanded that there be a non-derogation clause.

The Cree-Naskapi Commission felt strongly that the bill should have such a clause, even though they're excluded from this particular bill, because they've already concluded a self-governance agreement. So did the New Brunswick Aboriginal Peoples Council and the National Council of Women of Canada, a non-aboriginal organization in civil society. All of the mainstream churches saw the basic unfairness in this, including the Mennonite Central Committee of Canada, or the Mennonite Church, and the United Church of Canada, the Anglican Church of Canada, and the Quakers of Canada. Anna Hunter, a professor at the Department of Political Studies at the University of Saskatchewan, also favoured a non-derogation clause.

I could go on and on about the number of groups who called for this simple amendment to the act. If the government is not up to something here, why doesn't it make it clear by saying so in this amendment:

It's beyond me. I don't want to have anything to do with any bill or I don't even want my name associated with any bill,that deliberately plans on or contemplates erosion of these constitutionally protected rights. If this is not moving in the right direction, it makes me uncomfortable even going down in history as having participated in the Indian Act.

I hope many members feel free to speak on this particular clause, because it goes to the very heart of the question of what this bill is all about. I can't emphasize strongly enough that we have to send a message to aboriginal peoples everywhere and to the elected leadership in first nations communities that by passing this particular clause we would at least be suggesting that it's not our intention to deliberately interfere with aboriginal or treaty rights. I suppose the amendment doesn't preclude this happening inadvertently, or on a case-by-case basis, but in the absence of this clause, it's reasonable to assume that it's the intention of the government to do so.

» (1725)

We have the technical advisers here, the assistant deputy minister and the senior lawyers, who have dealt with other agreements, such as the Nisga'a Final Agreement, etc. I hope we have time to get their opinion about what the effect—

The Chair: Your time is up, Mr. Martin. Thank you very much.

Ms. Neville.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Through you, Mr. Chair, I have a question for the officials here.

My understanding is that this clause is very similar, if not exactly the same, to clauses in other pieces of legislation, notably the firearms legislation. Can you tell me why it's not included in this bill?

Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development): Perhaps I can answer that question.

You are right to note that this formulation of the clause is the same as in some previous legislation, including the Firearms Act, as you correctly mentioned. It is a different formulation from a number of other non-derogation clauses. I think other presenters have noted before this committee that's there's actually quite a wide variety or many different formulations of non-derogation clauses in federal legislation. The clauses were first introduced starting about 1988, and have a series of different formulations, as I say.

On the question of why no such clause is included, I would simply reiterate what I said before the committee on an earlier occasion. The government is studying non-derogation clauses generally, or in a broader context outside of the context of first nations governance. That analysis and study of the issues isn't complete yet, which is the reason why there's no clause in this bill. The work on this is underway or ongoing.

A voice: Oh! Oh!

Ms. Anita Neville: How would the study currently underway impact on the inclusion of this clause, or a clause similar to it? If the government or department were to determine that the community, or whoever, might be better served by a different clause with different wording, presumably an amendment could be brought forward to this legislation. Is this correct?

Mr. Andrew Beynon: I guess my answer would be that I'm not sure what the study is going to lead to in terms of recommendations on a formulation, or on the use of clauses. But because that work isn't finished while you are dealing with the bill, I don't know whether or not it would be a matter of this coming up later in the House of Commons, or perhaps at the stage when the bill is before the Senate. If the work is not done and there is not a consensus on how to proceed until after the bill is finished and becomes law, then in answer to your question, yes, it would be a matter of dealing with it by amendment—if there were an intention to include a clause.

Ms. Anita Neville: I have no further questions, Mr. Chairman.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, very briefly again, the fact is that this was a very important aspect of the bill to nearly every first nations group that we met across the country. Regardless of our looking at the bill today, I think it's a part that most members, on both sides of the House, would like to see in the bill.

I'm not sure, though, whether clause 3 is the proper place for it in the bill. It probably would fit better in the preamble than it would under clause 3. With the assent of the mover, we could consider it under the preamble. I think it is important, and I would like to have a little bit of time to come back to it. Hopefully our people at the end of the table will give us a more definitive ruling on this. I think it's important to all first nations, and I don't think there's a single person around the table who denies that it should be a very, very important part of this legislation.

We have now looked at the preamble. If it's to be done later, it would certainly be better for all members of the committee if the mover would table it until we discuss it at that time.

» (1730)

The Chair: Thank you, Mr. Hubbard.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier : Mr. Chairman, I'm beginning to believe that the Liberals are being nice with us. They give us treats to prevent us from speaking. That's the problem I had when you gave me the right to speak; I had another big treat in my mouth.

Once again, I congratulate my NDP colleague for his clear-sightedness with regard to this bill, since what he has put into his amendment is precisely what we heard tens of times about the dangers of Bill C-7 for the First Nations. We had the impression, and I increasingly believe rightly so, that we were being swindled by this bill and attending the extinguishment of treaty rights and even of the inherent right to self-government.

There was even one jurist who told us that certain provisions, and particularly the fact that there was no non-derogation clause, might violate the 1982 Constitution, and I'm beginning to have no doubt that this bill will require an amendment of the kind that states that :

3.1 For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

I find that this amendment is now more necessary than ever, particularly since I heard the argument of the legal expert from the Department of Indian and Northern Affairs in response to an excellent question from Ms. Neville. He told us that they couldn't include a non-derogation clause because they were currently working on various forms of non-derogation clauses and the work was not completed.

It makes no sense to submit arguments of that kind to us. It's as though you were asking someone to buy a house, to sign the offer to purchase, to go to see the lawyer and you told him, at the end of the process, that you didn't even know what house you wanted to offer him. It makes no sense. That's no way to work. How do you think a partner such as the Aboriginal nations considers an incomplete contract, one with no protection of this kind. Any contract must contain safety clauses. And in the case of bills concerning the First Nations, the safety clause is that there be a non-derogation clause. There have always been such clauses in bills passed by Parliament concerning the First Nations. And here we learn that there is none because work is not completed elsewhere and they don't want to introduce one.

I'm sorry, but things won't work like that. We can't pass an incomplete bill without knowing whether there will ultimately be a non-derogation clause, the nature and content of that clause and whether, relative to previous non-derogation clauses, the non-derogation clause of a new kind, which we don't yet know anything about because work elsewhere is not yet complete, will adequately protect the rights of the First Nations.

You're asking them to sign a blank cheque. Not only are you not responding to the concerns of the First Nations by rejecting all the amendments introduced by the opposition last night, but, in addition to that, you are accepting an explanation of the kind given to you earlier, according to which there is no non-derogation clause because work is not yet completed. We can't operate like that. Either the work is complete and we're able to propose a whole package to the First Nations, or the work is not done and we set aside this bill in which we're asking that a blank cheque be signed, in which we're asking that something be approved when we don't even know its fundamental scope.

This makes no sense. With an answer like that, you're proving that all the witnesses who appeared, the vast majority of whom told us they had quite incredible apprehensions about the bill, were right. That isn't a personal attack. Don't interpret it that way. It's an attack based on analysis, common sense and the law. You don't send a contract that is full of holes and protects neither side, neither the vendor nor the purchaser of a product or service, even less a treaty that you want to present as a revolution. That makes no sense.

» (1735)

As Mr. Martin said a little earlier, I think this bill is a real Trojan horse. The reference to section 35, at least at the outset, could protect, provide some assurance that, at the end of the process, there will at least be a non-derogation clause that is applied to this bill and that there won't be a kind of legal vacuum subject to completion of work in a committee, which moreover is not sitting here and of which we have absolutely no idea where it stands in its work, where it is headed or what will be the configuration of that non-derogation clause. That would be a logical minimum.

If you vote against this amendment, I won't understand anything. It would be the minimum minimorum, as they say in economics, the smallest of minimums, to agree to the amendment of Mr. Martin of the NDP in this regard.

I'll tell you one thing : section 35 is so important that, in Quebec, even though, and this is well known, all the parties, both federalist and sovereigntist, did not accept unilateral repatriation of the 1982 Constitution, as a result of that meeting, as a result of the repatriation, Mr. Lévesque, who was premier at the time, agreed, even though Quebec did not accept the repatriation without its consent, to comply with section 35 so as not to undermine the negotiations with the Aboriginal nations in Quebec.

So this right and this recognition of the right under section 35 are so strong that even a sovereigntist, even a Quebecker who rejected the unilateral repatriation of the Constitution in 1982 accepted and supported section 35 of the 1982 Constitution because it made it possible to negotiate agreements on the basis of equality with the Aboriginal nations in an atmosphere of mutual respect and preservation of the rights related to the inherent right to self-government and treaty rights.

Now it's just been suddenly said that we're going to put nothing in because we haven't finished, that we're not going to have a reference to section 35, and in any case that will come later. We're being told to wait, to trust them. That makes no sense. Look, let's be logical. I'm speaking to you personally and individually. If we, as legislators, have a sense of duty, we cannot agree to approve a bill such as this one, which has a fairly incredible legal vacuum, on the ground that we haven't completed the wording of what could fill that legal vacuum.

That's not how we were taught. Most of you have been here for years, and that's not how we learned our trade as legislators, that is to pass bills such as this, which have fundamental holes as a result of which apprehensions are more than apprehensions; that's true. There's no non-derogation clause in this bill, which means that, with Bill C-7, apart from any good will to come to the end of the process and make an amendment to Bill C-7 which is adopted, the federal government, by including a new type of non-derogation clause, is asking that we agree to support a bill which could strip the Aboriginal nations of the treaty rights or rights stemming from the inherent right to self-government. It would also remove the Aboriginal nations' right to consider that the federal government will continue in its fiduciary role, as it has a duty to do.

Look, this is serious. It's serious, and you're going to confirm it, if you don't agree to this amendment, considering Mr. Beynon's answer, that this is precisely what the federal government is doing, that it is removing... It is distancing itself from its fiduciary role, offloading its problem and municipalizing the Aboriginal First Nations, as it tried to do with the White Paper in 1969. You're proving that all the opponents who appeared before us were right and that we are right too.

I would have thought that perhaps there were other clauses elsewhere--we're not legal experts--preserving those rights and maintaining the fact that the federal government has a fiduciary duty toward the First Nations, that something serious has just been thrown onto the table in an utterly candid manner, but really proves us right in the fierce opposition we can have to this bill and that the First Nations have mounted in their great clear-sightedness since we've been analyzing Bill C-7.

I'm flabbergasted, Mr. Chairman. I didn't expect this to be put on the table in this manner, saying that there's a working group and...

» (1740)

Fortunately Ms. Neville proved to be clear-sighted as well in asking why there were no non-derogation clauses or references to the Constitution, to the consitution acts, as there are in other bills. Well here, we no longer understand.

[English]

The Chair: Merci, Monsieur Loubier.

Before I go to Mr. Reed, I know this committee has been working extremely hard in the last two months. I know you're all tired. But you're not seeing double. We have Jeffrey, who is the legislative clerk, and we have Jeremy, who is a committee clerk, and they are twins. So you're not seeing double. And my comment to them was if I had an identical twin he would spend an awful lot of time in Ottawa. I'd be back home and he would be here today.

Welcome, both of you.

Mr. Reed, ten minutes.

Mr. Julian Reed (Halton, Lib.): Mr. Chairman, just as a preamble, because I'm a new member on this committee, I feel rather inadequate to participate to the full extent. This is one of the things I thought about later--was it the wisest thing to bring it to committee after first reading, rather than have full debate in the House at second reading and then bring it to committee, so that all members of this committee could be as fully apprised as possible of the details of the bill and its ramifications.

But I have knocked around this business long enough to be able to see a few things about legislation itself. I look at this amendment, and it's all-encompassing. It applies to the whole bill. It doesn't apply to one section. Therefore I would respectfully ask my friend, Mr. Martin, if he would be prepared to lift it until we get to the--what do you call it--the preamble of the bill and include it there, so that it can be representative of the whole bill. I'd just ask that if he would consider doing that.

I also would point out to him, Mr. Chairman, that if in fact it doesn't work, he still has further opportunity to present that amendment again. This is not the one and only time that this amendment could be presented.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Reed.

Anyone else?

Mr. Chatters.

Mr. David Chatters (Athabasca, Canadian Alliance): I have to respond to that comment, because under the latest version of the rules of the House, you are not allowed to reintroduce an amendment at report stage that was introduced at committee. You only get one shot at introducing an amendment.

You can't reintroduce the same amendment again another time, Mr. Reed. I don't think that's a correct statement.

And from my perspective, I would wholeheartedly agree with you that accepting the presentation of this bill to committee before second reading in hindsight was a serious mistake, and I would not favour that again, although I bought into the rhetoric at the time and thought that maybe it was a good thing. But in hindsight, I don't believe it was.

But I just want to make clear that you have one shot at introducing an amendment.

» (1745)

The Chair: Anyone else? Anyone else on this amendment?

Mr. Martin, closing remarks.

Mr. Pat Martin: Thank you, Mr. Chair, and thank you to those of you who took this amendment seriously and made constructive comments, and for your input. I appreciate that.

I understand, I believe, what Mr. Reed is saying. I guess it's essentially an offer that if we withdraw the amendment now, it will be given serious consideration as to be included later when we get to the preamble.

The other night I actually came here thinking that we would be debating the preamble first. I learned when I saw the order on which they had decided that we'd be dealing with the preamble after the fact. That the preamble would reflect what's in the bill as amended I presume is the logic--that we don't craft the preamble and then craft the bill because the language may not be compatible. I think I understand that, and I can accept why that's done.

My fear and my reservations about what you're recommending--even though, as I say, I appreciate the spirit in which it was made--is that I don't think in my experience, and I'm not a lawyer, that what's in the preamble is not enforceable in the same way that language within the text is enforceable. That's my concern. I quite genuinely and honestly share that with you as a reservation I have--not that I'm not interested in the idea of getting at least this language somewhere into the bill, though.

When you suggested that by putting it into the preamble it would have the effect of influencing everything else that follows in the act, it's like when you're crafting a resolution--what goes into the “whereases” is not as important as what goes into the “therefore be it resolved” part of a resolution. You only vote on the “be it resolved” portion; you don't vote on the “whereas”. You can leave them off to the side once the point is made.

It's almost as though the preamble is the introduction to what will follow. In my opinion, in my gut feeling, it doesn't have the same enforceable weight. This particular language is so important that I don't see why there'd be a reluctance to put it in the body of the text of the bill. Maybe after talking for a few minutes, I'll use what few minutes I have left to ask that question of the technical advisers. That may be useful.

I had another point that I wanted to make here. The preamble aspect speaks to all the arguments we heard on if there is going to be an infringement. Sometimes governments make a conscious choice to infringe upon existing constitutionally recognized rights. The Supreme Court has held in Sparrow, I believe, that if there is going to be an infringement there has to be a corresponding justification and negotiations involved. There may be times when the government deems it necessary to step on something they agreed to previously in terms of rights, but in that case--and I'm unsure whether it's Sparrow or Vanderpeet--I believe it's under Sparrow where they make reference to if the government intends to infringe they have to provide justification, which includes consultation and negotiation.

If that's the objective of the government, then they should state that outwardly. They should go through that process of genuine consultation, which includes accommodation and negotiations, to put into effect this infringement with the least impact possible.

If it's not the intention of the government to infringe in any way on existing aboriginal and treaty rights, then I think they should be willing to say so within the body and within the text of the document.

Just to answer Mr. Reed's very legitimate point, I think that placing it under the purposes of the act is the appropriate place because it's the first enforceable opportunity to make the statement that would have the effect of influencing everything that follows it in the bill.

» (1750)

That's the question I'd like to use what time I have to left to ask the lawyers. Is there an enforceability issue about where it shows up--in the preamble or within the text? Would putting it under the purposes of the act address the intentions of Mr. Reed that it would flavour the rest of the bill?

Mr. Andrew Beynon: I would need, perhaps, to have some assistance from Mary Hurley on this.

There's a provision in the federal Interpretation Act that deals with preambles. I stand to be corrected. I'd like to look at the actual provision in the Interpretation Act. It may be useful to share with members. But as I recall, it is a provision that indicates that preambles serve to provide guidance to the rest of an act and that they are part of the act itself. But as I say, I'd like to just double-check the wording in the Interpretation Act on that point.

The Chair: Continue, Mr. Beynon.

Mr. Andrew Beynon: My only other point is that the provision, as it's drafted now in the proposal that has been presented by Mr. Martin, says in part that “for greater certainty, nothing in this Act...”. I can't provide legal advice to the committee, but I can offer the comment that this language, I believe, is trying to refer to the whole act.

So, on the issue of placement in the preamble having a general effect on the whole act, that's correct--again, subject to double-checking the Interpretation Act--because the preamble speaks at the start of the whole act. But this language as well is saying “nothing in this Act”, so it is, I believe most lawyers would say, aiming at all of the provisions of the act, not just the purposes clause.

Mr. Pat Martin: If it were found in the purposes clause, would that have the effect of giving direction that it applies to the whole act? Is that not the purpose of the purposes clause, to say this is the purpose of the act?

Mr. Andrew Beynon: I'll answer that, and I may ask my colleague Paul Salembier to speak to it as well.

I would note that as the bill is drafted now, clause 3 begins with the opening words “The purposes of this Act are”, and then you have paragraphs 3(a), (b), and (c). Then the proposed subclause 3(1) would appear after that and start with the language, “For greater certainty”.

Maybe I'll ask Paul to speak to the issue of whether, because of that numbering, it would be separate from purposes and just say what it says as a non-derogation clause.

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): In interpreting a statute, the purposes are one of the things a court will look to in interpreting particular provisions of a statute. Now, those purposes can be found in the purpose clause, which is an obvious place to look, or they can be found in the preamble. They can also be found in the text of other provisions. But the effect of putting it in the preamble would be substantially the same as putting it in the purpose clause. If it's clearly identified as a purposive provision, then a court would look to it in interpreting other provisions of the act. Like any purpose, the court will look at it, for example, if other provisions of the act are ambiguous. So if there's an ambiguity in another provision, and the provision perhaps could extend one way or could be limited another way, it will look to the purposes of the act to interpret that provision. It will do the same thing whether that provision is included in a purposes provision, like clause 3, or in the preamble.

The Chair: I guess, Mr. Martin, it's not my responsibility to run errands for members, but there is a member who suggested you should consider asking for majority consent for more time.

» (1755)

Mr. Pat Martin: That's exactly what my staff and I were just about to do, Mr. Chairman. Thank you.

I think, given the genuine interest in this particular clause, I'd ask for unanimous consent that we extend the ten-minute time limit to debate this until it's resolved.

The Chair: I think it's just majority consent.

By show of hands, are we allowing Mr. Martin another ten minutes?

Mr. Pat Martin: Ten minutes would be adequate.

Some hon. members: Agreed.

The Chair: You have the floor for another ten minutes.

The person who suggested I pass that on voted against it, so I don't know what I'm doing here any more.

Mr. Pat Martin: I appreciate your raising it, and actually, just to satisfy Mr. Hubbard's concern, I'd like to use that ten minutes to interview the witnesses and our researcher as well.

The Chair: You have ten minutes.

Mr. Pat Martin: Thank you.

Given what we've just heard from Mr. Salembier.... Am I allowed to ask our researcher a question in this ten minutes?

The Chair: Yes, but it won't be directly to the researcher. It will be through the chair.

Mr. Pat Martin: Through the chair, I'd like to know the opinion of Mary Hurley, if she thinks there's any difference in the enforceability or the weight given to language if it's in the preamble or if it's under the purposes of the act.

The Chair: That's a legitimate question. But just to set the tone of future deliberations, to the support staff, if there ever is a question you don't feel comfortable with, no one is obligated to go beyond the call of duty, although I see that as a reasonable question.

Ms. Mary Hurley (Committee Researcher): Mr. Martin, I'm not an expert in statutory interpretation, but I will be calling the reference section of the library to get them to find me the provision in the Interpretation Act.

In the meantime, while I agree with Mr. Salembier's statement that the courts will look to language in the preamble in order to aid in interpreting ambiguous provisions in the enforceable part of the statute, because the preamble kind of sets the table, in a way, it's my understanding that enforceability is more a feature of the substantive provisions in a piece of legislation.

But as I say, I don't consider myself an expert. I will be calling to get the provision in the Interpretation Act. That's my understanding.

Mr. Pat Martin: I'm wondering if it would be--

The Chair: We hope to get an answer before your ten minutes are up.

Mr. Pat Martin: Okay. Then we'll work on that. That would be great.

I'm interested in any other opinions.

Perhaps, Mr. Johnson, you have a view on this. I'm not asking for your professional legal opinion. Is it your view or personal opinion that language in the preamble is just as enforceable as language in the act itself?

Mr. Warren Johnson: I agree with the opinions addressed by my colleagues.

Mr. Pat Martin: I'm just sharing this with the committee. We were led to believe or the people we talked to felt strongly that while it's true that the courts may look to the preamble after the fact, once you've reached an impasse or have such ambiguity that somebody has to resort to the courts for an interpretation, as far the day-to-day use of the bill, once it becomes law, is concerned, it would give more direction and more clarity in terms of what you can and cannot do by having it within the body of the bill and not in the preamble.

So in the unfortunate event that ambiguity is such that you reach an impasse and you have to go to the courts, then yes, maybe the courts will consider the preamble with as much importance, but in the day-to-day actions or day-to-day interpretation of the bill, a level lower than the courts' daily usage, wouldn't it be fair to say that having it within the text of the act...?

Andrew, do you have an opinion on that?

Mr. Andrew Beynon: Again, I think the answer is going to depend on looking at that provision of the Interpretation Act, and it will assist in providing guidance.

I would just offer one comment on it, though, Mr. Chair. That is, the provision that is proposed is one that itself, even if it were in the bill, raises a question as to whether or not it simply operates to provide guidance to the overall interpretation of the bill. Many of the provisions of the bill are provisions that operate and do something by themselves. Whether one has a provision that's in the preamble or within the body of the text, I think the courts would be driven to the same point. They would be looking at the interpretation of another section of the bill and then coming back to purposes, or to the non-derogation clause, or to the preamble for an indication or a guidance as to how to interpret the bill.

One of the issues again, as I said at the outset, is the fact that there is a wide number of formulations of non-derogation clauses that have been found in various bills and a number of issues that have been raised by various sources as to the proper interpretation and effect of those provisions. That's a major part of what the broader study of non-derogation clauses is about, to consider placement, drafting, interpretation, and the policy issues as to what is to be achieved.

¼ (1800)

Mr. Warren Johnson: I don't wish to complicate the issue before the committee any more than need be, but there is an Interpretation Act, which is where we find similar clauses in other acts. So we have the preamble, the interpretation, and the purpose.

Mr. Pat Martin: One of the things that was pointed out to me is that we do find pretty dramatic differences between the preamble as proposed and the language of the bill. For example, there's quite strong language in the preamble about the Government of Canada recognizing the inherent right, which we'll get to, and then in the body of the bill, under “Purposes of Act”, we talk about the negotiation of the inherent right of self-government. That was one of the language items we tried to have changed. We don't think you negotiate inherent rights. We saw satisfactory language in the preamble and what we found to be less satisfactory language regarding the same thing under the purposes of the act. We're wondering if it was a conscious thing to put softer language within the bill for some reason. That would help give us some guidance about where it should be.

Mr. Andrew Beynon: I think that's a matter of different amendments that have been proposed, as you say, on the issue of inherent right or negotiation of self-government.

I don't think that what you're raising in that question is an issue that the non-derogation clause would turn on at all. The statement in the preamble of the recognition of the inherent right and the reference to negotiation of self-government is then followed by a provision again in the preamble that this act, and even the Indian Act, doesn't define the nature and scope of a right to self-government. It then focuses on not prejudging the outcome of any self-government negotiation. Coming back to what was said a few moments ago about preambles, this would serve as an explanation of what the rest of the bill does.

Mr. Pat Martin: If I could, one--

The Chair: Mr. Martin, I will interrupt at this point. There's a minute and a half left. If you wish to ask for more time, you have to do it before you finish speaking. So you should do it soon.

Mr. Pat Martin: Thank you for that advice.

I think we're really getting down to the nitty-gritty. I move that we extend the time on this particular subject by a further ten minutes, with the proviso that I won't dominate the discussion. I will simply ask questions. In fact, I'd be happy to share it with other members who want to ask questions.

The Chair: If I were on that side, I'd negotiate the next clause with you.

¼ (1805)

Mr. Charles Hubbard: Can I make a point?

The Chair: No, it's without debate.

(Motion agreed to)

Mr. Pat Martin: Thank you very much to everyone for that.

I'll be interested in hearing the results of the researcher's phone call on this. With two amendments we tried to have the exact language that's in the preamble put in the body of the text; that is, nothing in this act “is intended to define the nature and scope...or to prejudge the outcome of any self-government negotiation”. That is word for word what I asked to be put into the text, and it was turned down. I presume it was turned down because they didn't want that very desirable language in the body of the bill. But they didn't mind it being in the preamble of the bill. Doesn't the same logic apply about this language we're proposing now?

The Chair: Mr. Martin, do you wish our researcher to share with you her information?

Mr. Pat Martin: Yes, it would make sense to hear what Ms. Hurley has to say.

The Chair: Ms. Hurley.

Ms. Mary Hurley: I was only able to verify the content of two provisions in the Interpretation Act that relate to preambles. There may very well be more. In section 13 it says “The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.”

The other provision--sorry, I don't have the section number--says: “The enacting clause of an Act shall follow the preamble, if any, and the various provisions within the purview or body of the Act shall follow in a concise and enunciative form.”

Mr. Pat Martin: I kind of get a definition of what the preamble is supposed to do, but we don't get very much.... Well, I guess it's self-evident what the body of the act is supposed to do.

Having heard that, I guess I'm still concerned as to why the government-side members want this language of the non-derogation clause in the preamble as opposed to in the clause “Purposes of Act”. I don't find the answer in the fact that they wouldn't allow the language we propose, and I believe it was NDP-9 where we wanted this language. The same language from the preamble is word for word what we tried to get into the body of the bill, and it was refused. I can't ask the technicians about why the....

The Chair: While we're clearing that up, Mr. Martin, you did say that you even wished to share your time. There seem to be other members who'd like to share your time, so I'll leave that with you. You be the judge.

Mr. Pat Martin: I'd be happy to share some time, but I would like one minute at the end. I have a direct question I'd like to--

The Chair: When I say sharing, I mean addressing your issue. It's your time; if you wish to dialogue with others, use it for that purpose.

Mr. Pat Martin: Fair enough.

Mr. Hubbard, do you have a question?

Mr. Charles Hubbard: It's not really a question. I'd rather point out that in my opening statement on this I said our side would prefer to deal with this under the preamble. If you recall, I asked you to table it so we could get more wisdom here at the table.

I know many of the members on this side certainly support a non-derogation clause, and with your forbearance, I'm a bit worried today it could be defeated and that would be the end of it. Maybe it will pass, I'm not sure, but I think we should have the wisdom of a day later to bring back your amendment when we consider the preamble.

Mr. Pat Martin: My only concern about that is that then I'll lose the opportunity to ever get it into the body of the text. We will have moved off amendments to clause 3 or anywhere. Once we're onto the preamble, we've finished with the body of the text of the act. We're only--

The Chair: If you move to stand your amendment, it means we're not dealing with clause 3. We'll deal with amendment CA-2, and we won't finish clause 3 until we bring it back, which will probably be Christmas Eve.

Mr. Pat Martin: I understand. I'll take that under consideration.

Did you have a question, Mr. Loubier?

[Translation]

Mr. Yvan Loubier : Yes. It's in order to come back to the comment you made, Mr. Martin, and also in reaction to the answer given by Messrs. Salembier and Beynon.

I want to talk about the weight of the preamble relative to the body of the act. I get the impression that, when a section in the body of the act is not sufficiently clear, reference is made to the preamble to determine what motivated the legislator, to see the legislator's intentions. When there is a contradiction between the text of the preamble and the text of the bill, the bill takes precedence, and, in the case of the bill, you gave a good example that we noted earlier. In the preamble, the inherent right to self-determination is simply recognized, and the text of the act, in clause 3(a), refers to “negotiation of the inherent right”. So you can't both recognize in the preamble...

¼ (1810)

The Chair : Mr. Loubier, this is a dialogue. We want short questions, not speeches. We're on the thirtieth...

Mr. Yvan Loubier : I'm asking you the question, Mr. Martin. Wouldn't it be possible to put the question to our legislative drafters again? It's not clear in my mind what interpretation could be made of the definition in paragraph 3(a) and of the contradiction in the preamble. Parliament will have to decide at some point. Once again, this gives us an indication that this bill is very poorly put together.

[English]

The Chair: Mr. Martin, the time belongs to you again. If you wish, you may give time to our witnesses. You have four and a half minutes left.

Mr. Pat Martin: I'll ask you to answer Mr. Loubier's question.

Mr. Warren Johnson: I think the point was answered in at least one of the discussions yesterday; that is, the intent or the interpretation of “negotiation” in paragraph 3(a). It's not the negotiation of the existence of the right, it's the negotiation of how it will be implemented in each specific case. It doesn't contradict or weaken, and there wasn't an intent. There's no intent, nor in the language was there a meaning whereby that clause weakens or somehow is different from what's in the preamble. It's not negotiation of the existence of the right, it's the negotiation of its implementation. The preamble notes that it's already the position of the government that it is an existing right in the Constitution.

Mr. Pat Martin: There's one question I'd still like to ask the researcher, Mary Hurley. Given what they told you about the Interpretation Act there, in your opinion, is there any difference in where this clause would wind up in terms of weight?

Ms. Mary Hurley: I can only tell you what I just told the chair. Again, I'm not an expert in statutory interpretation. When I started to summarize legislation for the Library of Parliament, I did go to the statutory interpretation techs. It was my understanding from them that it makes a difference in the sense that while the preamble sets the table and provides an umbrella for the context and the rationale for a piece of legislation, the provisions in the body of the legislation are considered more substantive and enforceable. That's always been my understanding.

Mr. Pat Martin: That's certainly in keeping with what our advisers have told us too. I think we've learned a lot and this has been helpful to me.

I have a technical question. If I agree to withdraw this temporarily and table it, does it preclude the possibility of it ever being put where I suggested it be put in the bill?

Mr. Julian Reed: No, it doesn't.

Mr. Pat Martin: In that case, if people would rather give it more thought in order to deal with it later, I have no objection.

Mr. Maurice Vellacott: I do have a question, then. If I understood what you were saying, Mr. Chair, that means that if it's being pulled now, we will deal with clause 3 after the preamble. Am I correct in my understanding of what you were saying?

The Chair: No, we'll deal with your amendment, and then after that, clause 3 stands until we decide to bring it back.

Mr. Maurice Vellacott: It stands off to the side, and then it's going to be dealt with in finality after the preamble is finished?

The Chair: Yes, unless the committee wants to bring it back anytime in between, and we have to do that before the time is up if we want it to stand. If we do it within the next minute and five seconds, it takes a majority vote to stand it. If we do it after that, it requires unanimous consent because we'll be into the vote. So if anybody wants it to stand, you have less than a minute to put in a motion that it be stood down, deferred.

¼ (1815)

Mr. Pat Martin: If it's my turn to talk about it, I would like--

The Chair: Just don't tell me that your time is up because by the clock you have 28 seconds. If you tell me you've finished speaking, you'll need unanimous consent, so let's make a decision. Do we want this stood?

Mr. Pat Martin: We'd like it to be stood down.

(Motion agreed to)

The Chair: Let's be clear. Amendment NDP-11 is stood. It will be brought back without debate when we decide to deal with clause 3, unless you authorize further debate, because everyone has spoken the maximum on this. So NDP-11 is stood and now we are on CA-2.

We're on page 17, an amendment that was stood yesterday. We said we would deal with it last.

Mr. Chatters, you have the floor.

Mr. David Chatters: Well, I think it's regretful that we're spending as much time as we are on this clause 3, but I think it's important and that it goes certainly to the heart of what this bill is about, because this is what it's about. Certainly my amendment addresses somewhat the same issue as the BQ-6 amendment and the NDP-10 amendment. My arguments certainly are similar.

I have to say again that our party cannot support the bill in its present form. One of the reasons for that is because it's quite clear, to me at least, that the introduction of this bill is premature, in that the government and the minister have failed to negotiate and to come to some agreement on the definition not only of inherent aboriginal rights but the inherent right to self-government. There seems to be a real discrepancy in the definition of those things between the minister and the first nations themselves and their representatives. So we continually run into this roadblock of what's allowed to be amended and what isn't allowed to be amended because of the prematurity of introducing this act.

I think it's really important to note that in this clause 3, the purpose of the act is “to enable bands to design and implement their own regimes in respect of leadership selection, administration of government and financial management and accountability”. I think the minister on a number of occasions has added at least verbally to that the term “transparency”. I don't see how you can adequately address those issues of accountability and transparency for Indian bands when you look at the fact--and our researcher managed to confirm my own research--that in 1991 some $10.1 billion of federal money flowed to aboriginal peoples for services and programs from the federal government. I have to suggest, considering that 1991 was 12 years ago and the commitments in the last number of budgets of this government, that figure is considerably higher than $10.1 billion.

By its own admission, the department has indicated that only 2% of that amount of money actually reaches the band membership level. If you're going to go to this kind of length to hold bands accountable for that small amount of the pie, then I think it behooves us to ask the same degree of accountability from the department, and I'm including tribal councils. I know there's some problem there because technically the department and tribal councils are creatures of the minister. Therefore, if we accept the concept of ministerial responsibility, then the minster himself is responsible for the accountability of the vast majority of those federal funds that flow to Indian people.

I introduce this amendment worded as it is simply because there doesn't seem of late to have been any great degree of ministerial accountability. I look at the gun registration and the Department of Supply and Services and some of these other ones. I revert back to the Department of Indian Affairs and Northern Development and other umbrella organizations, and I make reference to the tribal council issue. Certainly we heard a fair bit about tribal councils, which again reaffirmed my own understanding of tribal councils.

We heard from Chief Earl Commanda on March 17, 2003. Certainly he makes a lot of reference to the fact that tribal councils are a creation of the department and that tribal councils have evolved to have responsibility not only for the delivery of financial management, band governance, community planning, technical and economic development advice, but also the tribal councils have now entered into agreements with other federal government departments--the Department of Health and the Department of Human Resources Development--to deliver programs and services to those bands.

¼ (1820)

I have a great deal of difficulty holding the bands accountable and transparent for funds that are not within their control. Someone else receives those funds, disburses those funds, and delivers those services.

I think it's very important that there be some reference in the purpose of this act to dealing with the other entities, or the other entity, that being the minister, if one prefers that, or the department and the tribal councils through the minister. The purpose of the act has to be to some degree to hold those people responsible for their role in the delivery of these moneys and the transparency of the use of those moneys that Indian people should be receiving.

I introduce this, and I understand, Mr. Chairman, that there has been some difficulty with my reference to the department and other agencies. I'm open to suggestions as to how that might be changed without changing the intent of my amendment to make reference to others who have responsibility for accountability and transparency of funds flowing to band members.

I think the resentment this bill has caused among aboriginal leadership in particular, and membership to some degree, has been in good part because the demand for accountability and transparency has been only directed at the band councils and band chiefs, when there is a huge responsibility for that same degree of accountability and transparency from others in the food chain, if you will.

I introduce this with good intention and hope the committee can see fit, even if they have to have some kind of a subamendment, to introduce the concept of ministerial accountability back into the amendment. I have no trouble with that, but I would ask the committee to support it on the basis that I outlined.

¼ (1825)

The Chair: Thank you, Mr. Chatters.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, I don't want to be.... I do hope the statistics Mr. Chatters has provided certainly don't reflect the actual accounting and disbursal of money across the country.

Mr. David Chatters: Our researcher confirmed it.

Mr. Charles Hubbard: I have known a great number of Indian bands and first nations, and I would have difficulty accepting that as a preface to this particular amendment.

I would like to make a subamendment, Mr. Chair. Following the first comma in his amendment, it would read as follows: “to enable bands to achieve independence in the management of their affairs”, deleting the rest of his amendment with these words to be in its place, “to reduce the degree of involvement by the Minister in band affairs”. I would so move, Mr. Chair.

The Chair: The subamendment will be distributed. While that's being done, as a procedure I will rule that the last word.... If the subamendment carries, and not only on this one but for future, that becomes the main amendment. Therefore, the last word goes to the first mover. Fair enough? I think that's fair.

You're still on your ten minutes, Mr. Hubbard.

Mr. Charles Hubbard: I don't want to take any more, Mr. Chair.

The Chair: Okay.

We will now speak to the subamendment. I'll make sure everyone has a copy of it before giving the floor to Mr. Vellacott.

Mr. Maurice Vellacott: I would want to know in respect to this amendment if the department officials can respond at this point. I guess it looks like there's some good merit to this subamendment.

My concern relates back to this whole tribal councils issue. It was a little bit of a surprise to me to find, at least in northern Alberta, that there was a great deal of angst and concern. They were really upset about something of what had become the role of tribal councils there. In my province, Saskatchewan, I thought they were voluntarily entering into these tribal council arrangements without either inducement or any kind of allurement or money, so to speak, being deprived or not granted them, if they were to choose to stay out of tribal councils.

I would like to know from the department officials, at least in my time here, if there is a difference across the country, in different regions of the country. Are we having the minister insist that he only has an involvement with bands in terms of certain moneys flowing to them if they're involved in a tribal council? I guess that's my question. And the other side of it would be is that uniform across the country?

I'm gathering that there's an admission that there is--I don't know if I want to use the word “coercion”--certainly strong inducement by way of moneys that are then going to flow via a tribal council, and you're deprived of that, in fact, if you're not involved in that, in choosing to be involved in a tribal council. Is that so in parts of the country, or is it generally the practice across the country?

Mr. Warren Johnson: I'd ask my colleague Gilles Rochon to speak to that issue.

Mr. Gilles Rochon (Director General, Community Development Branch, Department of Indian Affairs and Northern Development): Mr. Chair, as an opening comment, let me just say a few words about how tribal councils are established.

Tribal councils, as was indicated, are voluntarily established by member first nations, and first and foremost, they are accountable to the member first nations. So tribal councils are basically administrative organizations. They are set up by member first nations for the tribal councils to provide services and programs to the bands. They're not governments. Member bands are in control of tribal councils.

¼ (1830)

Mr. Maurice Vellacott: So if a band community chooses not be involved with a tribal council, is it true that certain kinds of funds would not come their way, by virtue of that? Is that correct?

Mr. Gilles Rochon: That is correct. If they choose not to be part of a tribal council, and if they are under a certain size of population, they will not be entitled to certain funding, which is known as advisory services.

Mr. Maurice Vellacott: What are those advisory services? What does that all consist of?

Mr. Gilles Rochon: Those are services in the area of economic development, community planning, technical services, and financial management.

Mr. Maurice Vellacott: Okay, what's the size? If they're under a particular size, as you say, they would no longer receive this kind of funding.

Mr. Gilles Rochon: The population size is 2,000. If they are below a population of 2,000 and they decide or choose not to be part of a tribal council, then they will not receive an amount of funding.

Mr. Maurice Vellacott: So that being the case and the fact that most of our bands.... You probably have a percentage of band communities across the country. Any with a population size under 2,000 not then having access to those moneys would sound to me like a sweep of a fairly significant percentage. Would I be hazarding a guess at 50%, 60%, or 70%? How many band communities would then be so deprived by virtue of being under that 2,000? How many are over 2,000 in population? I guess that's what I'm asking.

Mr. Gilles Rochon: I don't have the number of those that are over 2,000.

Mr. Maurice Vellacott: Do you have the number under 2,000?

Mr. Gilles Rochon: Well, I believe I have those, not under 2,000, but those that have selected not to be part of tribal councils.

Mr. Maurice Vellacott: You can provide me that number, but I guess I'm more concerned at this point in terms of--and I use this term carefully and not necessarily derogatorily--the issue of the coercion element, in effect. I know there's a big percentage of bands across the country that are not over 2,000 in population. Most of them have 1,000 or under, a few hundred--400 or 500.

So I would be hazarding a guess, and you can't provide me those figures, but we're looking at a very significant number of the 600-plus bands in the country. Is that correct, Mr. Johnson?

The Chair: If I may, Mr. Vellacott, the number of bands over 2,000 is 32. That's from DIAND's Indian registry.

Mr. Maurice Vellacott: That's of a total of how many bands in the country? 600 and...?

The Chair: Out of 612.

We hear a different number every time.

Mr. Maurice Vellacott: Well, that's very concerning to me, as I probe that a bit. That tells me you have the bulk of the bands, in effect--500 and some--not having access to development moneys and those very things we believe necessary to grow that sense of independence.

I have a concern about that. It may be for administrative convenience that the department, for viability.... There may be possible explanations that have a ring of credibility, and I might even concede some of those points, but to me it seems we really are cutting off and hurting a lot of these bands by virtue of coercing or forcing them into tribal councils. They have no choice, as you say, if they're under 2,000. That's very troubling to me, and I was not aware of that until I became a part of this committee and heard testimony.

So maybe there's some.... I'm giving you some time here, I guess, before I wrap up.

How much time do I have left, sir?

The Chair: You have three minutes, and after your time, we will suspend for fifteen minutes to hit the food.

Mr. Maurice Vellacott: Okay.

Can you try to convince me or sell me on the merits of tribal councils? I know in some parts of the country they're doing some good jobs. I just resist the coercive element a little. I would have thought maybe, as in a relationship with Quebec, if they opt out of certain things they get the moneys directly. I don't know if that's an appropriate parallel, but the Bloc member would probably be aware of that, those from Quebec and so on. Is there not a way to do that on a proportionate or per capita basis or something?

Mr. Gilles Rochon: Mr. Chair, if I may clarify, I think I was misinterpreted here. The majority of the bands are under tribal councils. I would say around 80% of the bands are under tribal councils.

The 32 of those that are of a sufficient size select not to be part of a tribal council, and because of their size, they still receive what we call band advisory services. So there's only a minority of bands that voluntarily select not to be part of a tribal council.

¼ (1835)

Mr. Maurice Vellacott: That's because they didn't really have the choice, if they're under 2,000. If I understand you correctly, you don't really have that choice. I mean, obviously if they want a little piece of the pie, then they would choose to, but it's not all that voluntary; it's imposed upon them.

Can you sell me on the merits of the tribal councils in terms of viability, feasibility, base of numbers, and so on?

Mr. Gilles Rochon: By the very nature of tribal councils--and that's reflected by the fact that the majority of bands do select to be part of a tribal council--by coming together, they're able to tap expertise, they're able to achieve certain economies of scale in the services they provide, which individually they would not be able to afford.

So by joining a band council, by joining a tribal council, a group of communities is coming together to be able to afford and achieve a certain degree of sophistication that individually they would not be able to do.

Tribal councils are in a way like public administration. It's a group of communities coming together and deciding they want to give themselves a public administration. A parallel can be made to rural municipalities. Individually, on their own, it's difficult for them to obtain certain expertise, but they often come together into regional bodies to obtain that level of success.

The Chair: Thank you. That completes Mr. Vellacott's time.

We will suspend for 15 minutes.

I invite the members to get some food, and our witnesses and the support staff. After that, hopefully there will be some leftovers.

¼ (1837)

½ (1900)

The Chair: We'll resume the work of the committee. We are on the subamendment to amendment CA-2 and the floor now belongs to Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): I don't recall putting my hand up to speak.

The Chair: You might not have put it up for that purpose, but I saw it up. It's like an auction: you put up your hand, you pay the bill. But I can move on to others if you wish.

Ms. Nancy Karetak-Lindell: Yes, I'll pass.

The Chair: That's fine. I don't want to impose.

Anyone else on the subamendment?

Mr. Martin.

Mr. Pat Martin: Yes, I'm actually interested in supporting the subamendment, but I don't understand why the Canadian Alliance members.... Well, I heard why they wanted to specifically mention tribal councils in this amendment, but I don't fully recognize or understand the logic or the rationale. I was interested to hear our adviser, Mr. Rochon, as to the explanation of why tribal councils are in fact advantageous developments in terms of the organization of smaller bands and councils and there's a benefit to acting collectively and to acting.... It's an economy of scale in many cases when they structure themselves within a plenary organization like a tribal council. But by substituting the sentence or all the language after the comma with “to reduce the degree of involvement by the Minister in band affairs” is not unlike the amendment we sought to achieve earlier on that was voted down, which was I suppose more specific and stronger language.

But I have no objection to a clause that says “the purpose of the act is at least in part to enable bands to achieve independence in the management of their affairs and to reduce the degree of involvement”. Is that the language proposed--“and to reduce the degree of involvement by the Minister in band affairs”? That's a laudable objective, and it's in keeping with the wishes and desires that we heard across the country. I would speak in favour of voting for the subamendment and then for the clause....

Well, I guess I have a question then. I don't fully understand. If we vote for the subamendment, then we're left with the amendment as amended, and then we'll have a second vote on the amendment.

The Chair: And if that passes also, it's incorporated in the main motion in the clause. But then we still have to deal with NDP-11 before we vote on the clause.

Mr. Pat Martin: As a part of my presentation, I would like to recommend that we vote for the subamendment and then encourage others to do so. We will also then be voting in favour of the amended CA-2 and then I would like to seek unanimous consent to go back to NDP-11 and deal with it tonight, so we can conclude clause 3.

The Chair: Not until we complete this. I will entertain that request, but only when we finish CA-2.

Mr. Pat Martin: And that concludes my remarks. Thank you.

The Chair: I will say, though, Mr. Martin, that as chair I would prefer to deal with NDP-11 right after, so that we can say that after two days we did one clause. I need something to put in my diary tonight.

All right. That completes the....

Mr. Hubbard, you may speak last on your subamendment.

Mr. Charles Hubbard: No, I think it's fairly clear, unless there are questions.

The Chair: The questions would have been asked before. Therefore we go to the vote on the subamendment.

(Subamendment agreed to)

The Chair: We now are dealing with CA-2 as amended. Mr. Chatters has spoken on that, Mr. Hubbard has spoken on that, and the floor is open to others who wish to speak on CA-2 as amended. There being no one, Mr. Chatters gets the last word on that one, ten minutes.

½ (1905)

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

I appreciate the support for the principle involved here. It does go some distance toward achieving what I need to achieve. By removing the wording that we have I guess that requires me to introduce another amendment at report stage to take that last step to achieving what I want to achieve.

I didn't want to leave the impression with anyone that I have any problem with the concept of tribal councils. I think coming together to get numbers and to provide efficiencies is a good plan. My problem and my experience from tribal councils is that there's a real problem, just as big a problem, or perhaps a bigger problem with the accountability of tribal councils to the band members of the bands who belong to the tribal councils.

Band members don't seem to be, at least in my experience, able to access financial information and information on program services from tribal councils. I think our technical expert suggested that tribal councils are accountable to the bands that belong to them.

Therefore if we're making the bands accountable and transparent to the band memberships--in other words, band members can access that kind of information from the band councils on everything from how many dollars go into health care, and how many dollars go into economic development, or what the chief's salary or the council persons' salaries are--then that same degree of accountability for the tribal council operation has to be available through the band council to the band members.

This amendment that we appear heading toward approving doesn't achieve that accountability. I don't know how we can support that degree of accountability for the band and the band council and the chief and not in some way incorporate in this act a reference to the requirement for tribal councils to achieve that same accountability and transparency to those band members.

So that's my ultimate objective. I certainly will try to find a way to introduce an amendment, I guess at report stage, to achieve that next step of accountability. I would hope that all of those on the committee could support that, because without it we've still got a huge gap in accountability that band members out there are looking for.

I think we could do it here somewhere. I welcome any input from members on the government side as to where that would appear in the act and how that last stage of accountability might be achieved. I think it's absolutely essential that we address that somewhere in the act.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Chatters.

We will now vote on CA-2 as amended.

(Amendment agreed to)

The Chair: I sense that we are rejoicing and we're forgetting to ask to deal with NDP-11 before the chair goes to NDP-12.

Mr. Pat Martin: Mr. Chair, if you would recognize me, I would like to ask for unanimous consent to bring back NDP-11 so that we could conclude dealing with clause 3. We can do that without debate if it's....

½ (1910)

The Chair: Can I please have unanimous consent? You can criticize me with the Speaker. I shouldn't say “Can I please have it?”, but I said it and I'll stick to it. I have to get something out of this, too.

On NDP-11 we go directly to the vote, because you recall we've had seven speakers, and the seventh for two extensions. Therefore on NDP-11, are you ready for the vote?

(Amendment agreed to)

Some hon. members: Hear, hear.

The Chair: Now I'll ask the question I've been wanting to ask for two days: Shall clause 3 as amended carry?

(Clause 3 as amended agreed to)

The Chair: Let's go to a bar to celebrate. I gave up drinking for Lent, but I'd break my promise tonight for sure. I probably will.

(On clause 4--Proposal for adoption by band)

The Chair: Okay, we're into clause 4.

NDP amendment number 12. Mr. Martin.

Mr. Pat Martin: Mr. Chair, clause 4 is perhaps second only to clause 3 in having the largest number of speakers interested in it and making representation as we toured the country.

B.C. Regional Vice-Chief Satsan Herb George made the clearest and most straightforward objections to this clause and helped to craft these amendments. His brief was developed in collaboration with the First Nations Summit chiefs, the United Native Nations, and the Shuswap Nation Tribal Council, who jointly analysed the extent of the impact on self-governance of clause 4.

They believed that it was necessary to in fact delete references to the regulations in clause 4 particularly. This is what my amendment would have the effect of doing, mostly because the regulations have not been set. The reference to “in accordance with the regulations” gave cause for concern because they haven't seen the regulations. They don't have any real confidence that they'll have a participatory role in developing the regulations. In fact, their recent experience with this bill is such that they have no confidence at all that they'll have a role in developing these.

They felt it was important that under “Band Governance” codes there be this reference, and we suggest:

The council of a band may, at any time before the implementation of a self-government agreement with the Government of Canada, propose any

(a) leadership selection code;

(b) administration of government code; and

This language or this way of phrasing the step towards enhanced levels of self-governance is more in keeping philosophically with what we heard around the country, and the proposal for changing or deleting any reference to regulations poses no particular threat.

I would point out too--and we would ask our counsel or the advisers while we have them here as well--that in my opinion, deleting the specific reference to “in accordance with the regulations” doesn't preclude a provision being in accordance with the regulations. It just isn't as prescriptive in its language. I think it's quite likely that codes as they are developed will be in keeping with the regulations and that there will be places elsewhere in the act that may in fact accommodate that.

The difference in the language as well is that in the proposed language in my amendment it also says “at any time before the implementation of a self-government agreement”. It includes reference to this and it repeats a theme you will notice we develop through all the NDP amendments. There are certain themes that get reiterated throughout to make it abundantly clear that whatever we're doing now is done as an interim measure, and the implementation of a true self-government agreement is restated as the ultimate conclusion we should all be working towards.

I would ask whoever, probably Andrew, if he wants to share an opinion about deleting the language in accordance with the regulation. Would he see that as posing a problem in the future when it comes to implementing band-designed codes?

½ (1915)

The Chair: Andrew Beynon.

Mr. Andrew Beynon: If I may, Mr. Chair, I would ask my colleague Paul Salembier, who works much more on regulations than I do, to answer that question.

Mr. Paul Salembier: I think the reason for referring to the regulations in the opening words of subclause 4(1) is to avoid the possibility a court might decide later, looking at the regulations, that the regulations perhaps conflict with the act. If the act says a band may propose any of the following codes for adoption and then a regulation comes into place that would perhaps purport to restrict the freedom of the band to propose that code in any way it wanted, we would want to avoid the danger a court would find that the regulation is actually seeking to restrict the act in some way and therefore hold the regulation to be invalid.

It's there for assurance the government will be able to consult with first nations regarding the kinds of procedures they would like to see in place, the way in which codes will be presented to them perhaps, and perhaps how far in advance they might like to see a code presented, and it's there just to have assurance that there will be adequate regulation-making power for that.

Mr. Pat Martin: Can you speak to the idea of asking people to include reference to regulations that don't exist yet? Really, you're asking people to support the idea of limiting the way they conduct themselves in accordance with regulations they've neither seen nor really had any role in developing.

Mr. Warren Johnson: Mr. Salembier may want to comment, but it's not unusual. Legislation provides for specific regulation-making authority, and that's done afterwards. What we've been at pains to do in this act is to point out where those key pieces of regulation would be so they're not.... Quite often one finds it in a general provision, that the Governor in Council has authority to pass any regulations necessary to implement this act, so they're not always defined.

The specific places for those key points of definition are there--for example, clarity in the code area--where the regulations must follow the same standards as the codes themselves are asked to follow, and they'll be dealing with the same subject matter, etc. It's not unusual.

In fact, others may have more experience with this. Paul or Andrew may be able to comment as to whether it is more common than not. I think the regulations are developed after the legislation is in place, not beforehand.

Mr. Pat Martin: I understand that. It's also very common to have some kind of reference that the government shall create and introduce regulations after the fact, and it made reference to it somewhere. But this is different, in that it says “The council of a band may, in accordance with the regulations”. It's different to have language in the act that speaks to the fact that regulations are to follow and the government is given the authority to develop those regulations. This is limiting the band, in that whatever codes they adopt must be in accordance with these regulations.

Now, even though you and I may agree that this might be perfectly sensible, it's the larger issue of somebody dictating as to what those future codes will look like. It's already limiting the size, shape, and colour of those band-designed codes that will follow.

Mr. Warren Johnson: Is that a question?

Mr. Pat Martin: Yes. Is it reasonable to think that? Do you agree that it's a reasonable concern?

½ (1920)

Mr. Paul Salembier: No, sir. I would suggest that it should not be a major concern. The phrase “in accordance with the regulations” modifies “propose” in this provision, and therefore it's just the manner of proposing the code, not what goes in the code, that will be in accordance with the regulations.

Again, clause 4 is a ratification procedure. It's the initial step, and the view is that we want to have transparency and uniformity in the way first nations bring codes to the attention of their members and vote on them. Beyond that, the provision does not speak at all to the content of the code.

Mr. Pat Martin: Does it speak at all, in your opinion, to your default mechanism?

Mr. Paul Salembier: No, sir. The default mechanism would be under clause 32 regulations, not regulations dealing with the manner of putting forward codes.

Mr. Pat Martin: My position still stands that we want this amendment for two reasons. One is to delete what was seen to be or interpreted to be binding the development of the codes in accordance with regulations they've not seen yet. I think it's the cart before the horse. Secondly, it is desirous--

The Chair: Thank you, Mr. Martin.

Mr. Loubier.

[Translation]

Mr. Yvan Loubier : Mr. Chairman, to continue on in the same vein as my colleague Mr. Martin, it's not because this reference to regulations that do not exist is not something unusual that it is necessarily something acceptable. We are often presented with bills and told that the regulations will follow, and most of the decision-making and decisive clauses respecting the application of those bills are contained in the regulations.

So we find ourselves with exactly the same problem as earlier, which led to our unanimous stance when a non-derogation clause was introduced in reference to section 35 of the Constitution Act, 1982. We find ourselves with wording that states : “4(1) The council of a band may, in accordance with the regulations...” But these are regulations that we don't yet know about, regulations which are probably still being worked on at work tables where we don't know the results. We're being asked to agree to this clause, whereas we have no knowledge of the regulations and, according to the minister, they may consistently limit the First Nations' ability to select a leadership selection code, a band government code, a financial management and accountability code.

That means that, when the First Nations develop these leadership, government and financial management codes, they will have no assurances, even if they consult their people, that, when they have defined those various codes, the choices they have made regarding the various codes concerning the proper operation of the community will be respected. No one will know, even after those codes have been defined and after an effort has been made, in defining those codes, Aboriginal codes, if you will, which date back to before the Europeans' arrival, to try to see how the First Nations functioned when the Europeans arrived, before their institutions, most of which were highly democratic, were demolished. We won't know whether that reconstruction, which we're attempting to perform, is consistent with the wishes of the Governor in Council or even the minister as such, because, at that point, we'll have no knowledge of the regulations.

Mr. Chairman, there's no difference between the current situation regarding clause 4, in the absence of clear regulations on what is an acceptable code for the government, in terms of leadership selection, band government and financial management and accountability codes, and the situation in which we were earlier, when the officials claimed that there was no non-derogation clause because that was being worked on elsewhere. So if there are no details on the regulations applying to the selection of the various codes provided for in Bill C-7, don't worry about it, it's coming, there's just a working group polishing up those regulations, which will provide a framework for the First Nations' ability to define their own codes.

In other words, there's a second aspect that makes the wording of this initial clause even more unacceptable and that makes the wording introduced by Mr. Martin of the NDP all the more acceptable. Consequently, when consideration is given to the final decision for approval of all those codes, not simply in the absence of codes as a result of which a code will be imposed by default, that means that all the other First Nations which will determine the codes, if those codes, in the view of the minister or Department of Indian and Northern Affairs, are not consistent with the impending regulations, of which we have no knowledge but which could come within two years, they will have to be reviewed in accordance with the wishes of the Department of Indian and Northern Affairs, in accordance with the wishes of the minister, in accordance with the guidelines that have been determined behind closed doors in some kind of committee and which will be reflected in the regulations of which we now have no knowledge.

½ (1925)

When you go through this reasoning, what is in fact being said is that the First Nations are being given a period of two years to determine a leadership selection code, an administration of government code and a financial management and accountability code, but, in fact, the power to do so is not being granted, since that power is conditional on the content of the proposals that the First Nations make regarding those various codes being consistent with regulations that will be known only one day to officials, but which we do not yet have any knowledge of at the time we must dispose of clause 4 of Bill C-7.

So once again, I find that, in referring to the regulations that do not exist, we find ourselves with the same problem as with clause 3, where no reference was made to the non-derogation clause linked to section 35, as Mr. Martin had introduced it. As a result, we find ourselves in a kind of legal vacuum, approving in its present form a clause that does not completely mean what the government claims it wants it to mean, since we don't know the essential nature of the guidelines that will be used to construct the three codes I previously referred to.

Once again, we're being asked to provide a blank cheque. And who's to say that, ultimately, in view of the spirit that has animated this bill from the start, that is from its conception to the analysis of the bill and to the work done by the many witnesses who have appeared for us, we won't find ourselves with a kind of draft pledge of allegiance once again? Although it would appear to be giving the Aboriginal nations the flexibility to define their codes themselves, we would ultimately find ourselves with a bill requiring approval of those same codes, which would have to be consistent in all respects with regulations of which we now have no knowledge.

I also feel that we are dealing with a proposal that requires us to provide a blank cheque, to trust all the aspects of this bill that we don't know about, to vote on the basis of what we know and to wait and see the type of decision to which we have contributed through our work, through not shouldering our responsibilities and not showing the most basic sense of duty to determine where we were headed before voting on a bill or on a clause of a bill when we did not really know its scope.

I hope that Mr. Martin's amendment, NDP 12, will be agreed to since, unlike the present wording of section 4, which refers to those regulations of which we have no knowledge, at least, we know what is being proposed. It states :

4.(1) The council of a band may, at any time before the implementation of a self-government agreement with the Government of Canada, propose any

of the following codes.

Here we know that the idea in the spirit and body of Bill C-7 is to propose the formation of those codes before entering into subsequent negotiations on self-government, and that is entirely consistent with the spirit actuating Minister Robert Nault, according to what he says.

As a result, I suggest to you, as we did when we filled a legal vacuum earlier by introducing a reference to the section in the Constitution Act, 1982, that you support this amendment of Mr. Martin's and avoid the dangers of a lack of clarity such as may be observed in the initial wording of clause 4. I also suggest that we prevent anyone from making the interpretation I described to you earlier, because it's quite serious, that is to say that under the appearance of giving the First Nations flexibility, we compel them quite incredibly through regulations of which we have no knowledge and we submit them to a process of approval of their codes which could result in a broad consultation by those First Nations of their members and which could give rise to hopes about the content of certain codes, either for leadership selection or the administration of government or for financial management and accountability.

½ (1930)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard.

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

I was just watching my watch—though I guess you don't watch a watch, but usually a clock. It appears that the intent here is to use up the clock. It's like the old hockey game, but you can only rag the puck so long, and sooner or later someone is going to have to....

Clause 4 uses the permissive word “may”. With “may”, of course, it's hoped that most first nations would, over a period of time, take and develop their own codes. These are defined here as we go through the bill.

I don't think the concept of regulations, Mr. Chair, is any different in most legislation. You look at the bill first; it's passed in Parliament; and then, of course, regulations follow. So it's no great abnormal process we're talking about.

I'm not sure, Mr. Chair, how many members of the committee.... Most of us would like to have next week off. I'm not sure what you, as chair, plan to do in terms of calling meetings next week or the following week, when Parliament is not in session, but I think that many members on this side are prepared to come back for whatever time is necessary. Just because the House isn't sitting doesn't necessarily mean that we have to be home—

Mr. Yvan Loubier: Absolutely. Yes.

Mr. Charles Hubbard: —when such important legislation is being considered. It may have to happen.

I don't want to take a lot of time, because I think we have to progress with this. We'll watch and see how the clock moves. If it stands still, then we'll have to take the work accordingly.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Hubbard.

You're asking what the chair plans on doing next week. If the committee decides to sit, the chair will be here; that's my job. But I would have preferred hearing about your hockey game.

Does anybody else have something to say on this amendment?

The final word is to Mr. Martin.

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

I was hoping I might hear an amendment or subamendment from the parliamentary secretary, because I think there is an obvious argument that could be made here, which may answer or speak to the points raised by Mr. Salembier while still satisfying the people who wanted this language changed.

I guess I should have emphasized more strongly that the most significant change that we seek is really where it says “The council of a band may, at any time, before the implementation of a self-government agreement with the Government...propose...”. Including a reference to “at any time” does speak to the two-year default mechanism, which will come into effect in clauses 31 and 32.

I am just looking up the notes that I took at the presentation of the B.C. regional vice-chief. Their frustration at that time was that if one doesn't implement those changes within the two-year time period, even if they were in accordance with the regulation, then the default mechanism would kick in. I hope that I could be corrected on this, but our understanding is that after the default mechanism kicks in, you lose your window of opportunity to construct you own codes—even if the codes are in accordance with the regulation. Am I wrong?

½ (1935)

Mr. Warren Johnson: Yes, you're wrong.

Mr. Pat Martin: Yes, I see that I'm wrong.

For further clarification, so at any time up to a self-government agreement being signed with the Government of Canada, you can introduce codes of governance. So even after the two years have expired, the default mechanisms are only an interim mechanism, until such time that you design your own in keeping with the regulations.

Mr. Warren Johnson: Yes, they can be designed any time after the regulations are available. That's when this clause comes into force—not before.

Mr. Pat Martin: Yes, I understand that.

Mr. Warren Johnson: So they will be known ahead of time. And they can be done any time afterwards.

For further clarification, you have to be a little careful with the language here, because there are a variety of types of self-government agreements. Bands are negotiating self-government agreements that don't include the subject-matters in the FNGA, so even with those agreements in place they would still be doing codes in these areas, because the codes don't deal with these subject matters.

For a comprehensive self-government agreement that dealt with governance and everything else, then that statement would be correct.

Mr. Pat Martin: In other words, the language that I'm putting forward isn't contradictory at all. In fact, it's not asking for anything new. It's just asking for recognition of that fact.

Mr. Warren Johnson: No, it would mean that if a first nation, for example, did an education self-government agreement à la the Micmac in the Maritimes, if they negotiated one of those agreements now, they would no longer be able to have their own codes on election leadership and this, they'd have to fall under the fallback provisions because their self-government agreement only dealt with education; it didn't deal with governance.

Mr. Pat Martin: One way or another, you're going to have to accept leadership selection code, the administration and government code, and a financial management and accountability code.

Mr. Warren Johnson: Until you've done a self-government agreement that deals with those subjects. There are a variety of types of self-government agreements that deal with subject matter. The first nations in the First Nations Land Management Act consider that a self-government agreement. There are sectoral self-government agreements being negotiated in education, in child and family services, and in a variety of areas. If they don't deal with the subject matters of this act, then they're not exempt from this act. And since they haven't dealt with internal governance, their own internal constitutions--that wasn't the subject of that self-government agreement--then the act would still apply to them, and this would remove their ability to develop their own codes at that point.

Mr. Pat Martin: The language that we've put forward would eliminate their ability to introduce their own codes at that point.

Mr. Warren Johnson: Yes.

Mr. Pat Martin: But their right to introduce their own codes exists currently, unimpeded--

Mr. Warren Johnson: At any time.

Mr. Pat Martin: --at any time.

Mr. Warren Johnson: Not just for the two-year period.

Mr. Pat Martin: Then we go back to the original point, the reference to “in accordance with the regulations”. We still have serious reservations that whatever they propose must be in accordance with regulations they've never seen.

I guess I should ask the question. Have there been negotiations and dialogue, even with the JMAC committee, dealing with what the regulations might look like? Has there been groundwork done on the regulations?

Mr. Warren Johnson: No, there hasn't, but the regulations, to confirm again, do not affect the content of the code. Anything that would affect the content of a code is already in the act. Regulations will not have any impact on what first nations do in terms of the development of their codes, except in this case the reference here is to the process.

Prior to having the code, after which their election procedures and the rest will govern their own processes--for example, how much notice will band members have to look at the proposed code before the election, things like that.... It would be equivalent to what's now in the Indian Act, for example, in terms of election and referendum regulations.

It's just the process. It has nothing to do with the substance of the code. The substance of the code cannot be affected by the regulations. Anything that would affect the substance of the regulations is already in the act. It's the next sections of the act that you'll be looking at.

Mr. Pat Martin: The reservations that were brought forward to us, as I say, from the B.C. regional vice-chief at the time--and this is from the lawyers they engaged to do the study on their behalf actually--felt they weren't satisfied that it was clear that a code can be adopted at any time. Can you tell us where in the bill that's clearly stated?

½ (1940)

Mr. Andrew Beynon: Perhaps I can speak to that.

I think the answer to it is the fact that there is no provision I can see that puts a time limit for the adoption of a code. There is no provision in the bill that says, for instance, a band may only, before it has a self-government agreement, or may only, during a period of five years, or may only, before x, y, or z propose a code.

This provision will continue to speak in the future. That's part of the Interpretation Act. A bill or an act always speaks in the future. It's a general reference. The council of a band may propose any of the following codes, and I agree strongly with my colleagues that the words in commas that say “in accordance with the regulations” modify how you propose, not whether you can propose codes.

Mr. Pat Martin: Or what the content of the codes would be.

Mr. Andrew Beynon: Or what contents would be. That's right.

I have a great deal of respect for those who work with the AFN out in British Columbia and their legal counsel, but on this point, if they're suggesting that there's a problem created by that language that would suggest somehow there is a time limit that you can't propose codes in, with all due respect, I wouldn't agree with that view.

Mr. Pat Martin: I'm lifting this directly from their brief to us. That was their concern. I'm trying to faithfully represent that concern as expressed to us.

Perhaps then the proposal I put forward, the amendment that I put forward, needs some modification to more accurately represent what you have here: “The council of a band may, at any time before the implementation of the self-government agreement that pertains to leadership codes, government codes, and financial management codes...”. Would that more accurately describe what the act currently does?

Then it would be interesting if we could entertain a subamendment. I can't move a subamendment to my own amendment, can I? We're after the fact. There will be no other speakers after me. That's too bad. I wonder if there would be unanimous consent that we entertain a subamendment without debate.

The Chair: Do I have unanimous consent?

[Translation]

Mr. Yvan Loubier : What would be the proposed amendment?

The Chair : We don't know. We're not discussing it.

[English]

Mr. Maurice Vellacott: On a point of order, Mr. Chair, I would question the comment. I'm not sure where in any of the books, the procedural manuals, it said you cannot propose a subamendment to your own amendment. I just don't have a reference in respect to that and I've never heard--

The Chair: It was shown to me earlier today.

Mr. Maurice Vellacott: We looked in the same place again. There's no reference to that, actually. We can show you that again. It's not there.

The Chair: What's his name now--whoever was here before? Jeffrey told it to me earlier. He said we couldn't do it. That's why I repeated it.

Mr. Maurice Vellacott: Well, we may want to check in the other. The reference should have been read then, because we did check later and I wasn't--

The Chair: Too bad we didn't clear this up while we were--

Mr. Charles Hubbard: We have concluded debate.

The Chair: He hasn't concluded, no. His time is up, but he brought the issue up before his time was up.

Mr. Maurice Vellacott: I checked through the references and I didn't find anything.

The Chair: The question is can we move a subamendment on our own amendment. My recollection is that you cannot. If I'm not corrected here, I'll be corrected in the papers.

Mr. Maurice Vellacott: I looked at the other one, the big one. We didn't find anything in the system.

Mr. Charles Hubbard: Mr. Chair, we spent 26 hours establishing a way to proceed. The mover was to conclude the motion, not the amendment.

The Chair: Here is the rule for the House, and my recollection of the rule for committee is that you cannot. I'll read the rule for the House:

A member, having proposed an amendment and subsequently desiring to amend the same can do so only if the House allows the original amendment to be withdrawn, at which time the member may then propose a new amendment.

Therefore, you would have to get the approbation of the committee to withdraw the initial amendment to introduce another one. But keep in mind that you had a deadline to submit amendments. On that, I would have to rule that you can't do it.

I'm not playing games. We know that we had a time limit of whenever it was.

Mr. Maurice Vellacott: Can you read it one more time, Mr. Chair?

½ (1945)

The Chair: It says that if you want to move an amendment to your own, you first must get approbation from the House--

Mr. Maurice Vellacott: That's the word, “approbation”.

The Chair: I'll read it then. I don't think it changes anything.

A member, having proposed an amendment, and subsequently desiring to amend the same can do so only if the House allows the original amendment to be withdrawn, at which time the member may then propose a new amendment.

Really, it justifies that you cannot move a subamendment. You can ask the House to withdraw the amendment in order to present another amendment, not a subamendment. I personally stick to my recollection that you cannot amend your own amendment.

Mr. Maurice Vellacott: That refers to the same member, the member withdrawing the amendment, wanting to pose a subamendment.

The Chair: That's right, to his own amendment.

Now, we started this discussion before Mr. Martin finished speaking. My recollection is that anyone else could have moved an amendment before he finished speaking; but I'll find you a book where everything I saw is right and I'll find you another book where everything I say is wrong--and that's why we're always fighting in committees.

Mr. Pat Martin: I wish I had the opportunity. I accept what you say because that was my understanding of what we had agreed to before. I didn't know its source or its origins, but that was my understanding. If I had the opportunity, I'd move an amendment to say “the council of a band may”--

The Chair: You might ask for unanimous consent.

Mr. Pat Martin: That's an idea.

The Chair: I've been accused of coaching before, but it should be okay if I coach the opposition.

Mr. Pat Martin: Well, I would like to ask unanimous consent because I think I have a way to give satisfaction to both sides, leaving in “in accordance with the regulation” and pretty much just stating more clearly what the government says the bill already is seeking to do. So if I had the unanimous consent, I'd like to suggest a subamendment without debate.

The Chair: No, you're going after the unanimous consent to break the procedures. What I'm suggesting is that you ask unanimous consent to adjust your amendment. On unanimous consent, without a vote, your amendment would be reworded with the same sense, without a mover or a debate or even a vote.

So if you're clear on what you're asking the committee, tell us what you would ask me to seek unanimous consent for. It's hard to follow a line.

Mr. Maurice Vellacott: As a point of clarification, Mr. Chairman, you said that he is the only one in the position to do this at this point, at the end as it's wrapping up. Is someone else able to move a subamendment before his time elapses? Is that what you were saying?

The Chair: No, he can't move a subamendment to his own amendment.

Mr. Maurice Vellacott: Okay. Someone else can move a subamendment, but he has the floor.

The Chair: They can interrupt and submit the subamendment.

Mr. Maurice Vellacott: They can interupt before his time has expired.

The Chair: That's right--with the member's permission.

Now, is everyone clear?

Can you be clear, Mr. Martin, on what you're asking the committee to consent to?

½ (1950)

Mr. Pat Martin: I'd like to seek unanimous consent to alter my amendment, and then deal with it without debate.

The Chair: Alter it in which way--page 26?

Mr. Pat Martin: I would like to then ask for unanimous consent to alter my amendment to read “the council of a band may, at any time before the implementation of a self-government agreement pertaining to leadership codes, administration of government codes, financial management, or accountability codes--”

The Chair: Slowly, please. “Pertaining to leadership--”

Mr. Pat Martin: “--leadership codes, administration of government codes, and financial management and accountability codes--”

The Chair: Hold it, hold it; “administration of government codes”. And what was the third code?

Mr. Pat Martin: Financial management and accountability codes--it's the same language used in the bill now.

The Chair: Yes, “...code with the Government of Canada”--and does it start over then?

Mr. Pat Martin: No, then I would say “in accordance with the regulations, propose any...”--no, I'm getting mixed up too. I'm sorry.

The Chair: The phrase is “in accordance with the regulations”.

Okay, so regardless of the word you're looking for, we don't have consent. Therefore, we move to the vote on NDP-12 as is.

(Amendment negatived)

The Chair: We move on to NDP-13 from Mr. Martin.

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

I'll begin with amendment NDP-13, which proposes to amend clause 4 by replacing lines 1 to 7 on page 4 with the following:

(2) A proposed code is adopted if

(a) it is approved in accordance with the adoption procedure negotiated and agreed to between the band and the Minister; or

(b) in the absence of an agreement referred to in paragraph (a), it is approved in accordance with the adoption procedure agreed to by a majority of eligible voters of the band, if those who vote to approve it constitute more than twenty-five percent

In other words, this is amending the election code, the prescriptive aspects of the election codes in the proposed bill, to recognize that if the band and the minister can't agree upon the adoption procedure, then the election will be approved in accordance with the adoption procedure agreed to by the eligible voters. So the band will have the right to determine their own way of approving the election. I believe it's in keeping with certainly the numbers. The 25% of all eligible voters is in keeping with what's referenced elsewhere in the agreement, a majority of 25% voter turnout.

We know of municipal elections in Canada that elect mayors with a majority of less than 25% turnout, unfortunately. We certainly hope there's greater than 25% turnout in most first nations elections, given that there's a sufficient level of interest to poll the vote on election day. But it's important in what was presented to us, this compromise between a 25% and 50% formula dictated in Bill C-7, and we have to find something that reflects aboriginal customs and traditions and recognizes the right to adopt procedures that are sensitive to and recognize customs and traditions.

This proposal states a plan A for code adoption procedure that should be a method agreed upon between the band and the minister. But in the event of a failure of that, a breakdown or inability to reach an agreement, plan B or the fallback position would lean towards the choices of the local community, and it would be up to them how to design this.

This is another recommendation that came from B.C. Regional Vice-Chief Herb George, but also the Native Alliance of Quebec made reference to this in their brief to us. The Blood Tribe Historical Society asked for at least 51%. So I suppose it's not the numbers that matter nearly as much as the idea that the fallback position or the plan B position that we would adopt is the adoption mechanism that's approved by those in the community, in the event of any kind of fallback or inability to agree upon the procedure with the band and the minister.

Currently, subclause 4(2) reads that:

A proposed code is adopted if it is in writing and is approved, in a vote conducted by the council in accordance with the regulations, by a majority of the eligible voters of the band who participate in the vote, and if those who vote to approve it constitute more than twenty-five percent of all eligible voters.

So it's a majority of those. Again, we haven't changed the language there at all.

What we have done is, instead of in strict accordance with the regulations, we will have this at least to introduce the idea that it's preferable, at least in the view of those who presented this in the briefs to us, that the two options are at least cited, and it recognizes or more fairly reflects the long-term goals and aspirations of aboriginal people to be in control of those things themselves, and not have them dictated or imposed by anyone else.

½ (1955)

In whatever time I have left, perhaps I could ask Mr. Beynon again what he might think of this, the impact of the proposal or breaking subclause 4(2) down into paragraphs 4(2)(a) and 4(2)(b), what effect he sees that might have.

Mr. Warren Johnson: Maybe I'll take this to respond.

To clarify in terms of the way this was presented, this would not give the band the right. It would have to negotiate with the minister. That would put this proposal in conflict with the earlier proposal in the purpose to remove the minister.

Secondly, the way it's worded could mean that it would have to be negotiated every time you wanted to develop or amend your code. So operationally, this could get quite difficult. You'd have to renegotiate, and we'd create quite an industry with 600 bands.

Also, the threshold has been significantly raised, which I don't think is what Mr. Martin referenced or perhaps meant, because in the current draft of the bill, it's a majority of those who participate, not the majority of all voters. In this case, that would mean 51%. Since it's the majority of eligible voters in this case, that would mean at least 51% must vote, and all of them would have to vote yes. So the 25% at the end would become redundant.

It's not the same threshold, in fact. The wording is changed, and it's raising the threshold significantly for a band to get a code adopted under the fallback.

¾ (2000)

Mr. Pat Martin: Thank you.

The Chair: Carry on, please.

Mr. Andrew Beynon: If I may, Mr. Chair, paragraph 4(2)(b) in the amendment proposed by Mr. Martin is language similar to what is in subclause 4(2), but at one point line 5 in subclause 4(2) talks about “who participate in the vote”, and those words were dropped.

Mr. Pat Martin: I see that as an oversight, frankly, because I don't think that was the intention. I think that may have been an oversight in our crafting of this amendment, because Mr. Johnson is absolutely right that it holds it to a much higher standard, to a majority of all eligible voters in the band, in the last line.

The Chair: If it's not fitting, do you wish to withdraw it, or what?

Mr. Pat Martin: I'm interested in how we might fix it.

The Chair: There are two more amendments coming after, on the same issue, the Bloc and the Canadian Alliance amendments.

Mr. Pat Martin: I think we have an opportunity to salvage this one. I think the inclusion of the words “who participate in the vote” is important. I'm going to make a note of that.

To answer Mr. Johnson's first comment, in the bill we have before us, in subclause 4(2), it doesn't make any reference to being approved in accordance with the procedure agreed to between the band and the minister. I think that's sort of a gesture, if you will, that this may be the ideal situation, that there's an agreed-upon adoption code in place. But in the absence of any agreement or putting in the adoption code or procedure for that community, it's more likely that they will in fact be looking to be. So maybe it's not necessary, in Mr. Johnson's view, but I don't think it does any harm either.

I think adding the words “and who participate in the vote” would salvage this and would still allow the last two lines to have meaning, because it's actually the same language as what we see in subclause 4(2).

Because I can't move a subamendment of my own, I'd be interested in hearing what others have to say about this bill.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Thanks, Mr. Chair.

Maybe I don't read this amendment the way others read it, but it's rather surprising. Maybe I'm reading it wrong, but if I'm reading it right, it would be even more surprising. But it would appear that the honourable member is saying that this code could be arranged between a band council and a minister without any ratification by band membership. I'm not sure of Mr. Martin's motive, but I always thought we're dealing in a democracy and if there's a code that would affect all band members the least we could expect is that there would be some consensus or agreement among band members that the code would have a significant approval.

Maybe Mr. Johnson or Mr. Beynon could go further in this to explain. Maybe I'm from Kentucky and I don't understand all these legal things, and Mr. Martin of course apparently had some pretty good legal advice, but am I reading it right or am I reading it wrong in terms of how a code is to be recognized and approved for a first nation?

Mr. Warren Johnson: In terms of the interpretation you were just providing--

Mr. Charles Hubbard: Of the amendment, yes.

Mr. Warren Johnson: I think it may be less of a legal question. I think what you were addressing is the policy base that the minister put forward to the committee for effectively much of the act if not all of the act--that is, to empower first nations in terms of citizens dealing with their governments and setting up these kinds of procedures and stuff, and withdrawing the minister. And this, as you say, is putting the minister back into it.

Mr. Charles Hubbard: But am I correct in assuming that it could be done by a band council rather than by band membership, this approval of the proposed code, the adoption?

Mr. Andrew Beynon: If I could answer that question, in the proposed amendment, under paragraph (a), it is saying that there could be an approval procedure negotiated and agreed to between the band and the minister. If the intention in this context were to refer to an adoption procedure negotiated between the band council and the minister, I think the courts would say other parts of the bill have indicated where there's a specific role for the band council, as opposed to the band, and they would likely say in this case it's a deliberate reference to the band as a whole, which would suggest that what would happen is you'd have to negotiate an adoption procedure with the band as a whole to determine what the band as whole would have as an adoption procedure.

¾ (2005)

Mr. Charles Hubbard: So with this, then, if a band didn't take leadership from its chief and council would the minister have to negotiate with 300 people?

Mr. Andrew Beynon: It would likely be a negotiation between the minister and the band council, as with, for example, self-government negotiations, specific claims negotiations; but in order to comply with the act and find an adoption procedure agreed to between the band and the minister, after negotiations with the band council, the proposed adoption procedure would have to be put to the band membership for ratification to find out if they agree with a different procedure. So you'd have two layers of band-wide ratifications.

Mr. Charles Hubbard: Thank you.

Mr. Warren Johnson: With the first ratification process undefined.

The Chair: Does anyone else have a comment on NDP-13?

Mr. Martin.

Mr. Pat Martin: I want to thank Mr. Beyon, because that's the way I read this as well, that if it's a negotiation between the band and the minister, it means that the band has arrived by their own devices at some way of ratifying or approving or choosing representatives, or somehow working that through. We've heard of examples of unique election practices or different customs and traditions that may or may not be approved by the minister. But in the absence of that, the fallback position would be as we outlined it. I think the words “and who participate in the vote” were intended to be in this amendment and they may make that simpler and more straightforward for those with whom we're arguing today.

Looking through the actual submission of the Assembly of First Nations, Office of the B.C. Regional Vice-Chief, their language in paragraph 2(b) is:

“In the absence of an agreement referred to in paragraph (a), if it is approved in accordance with the adoption procedure, which has been approved by a majority of eligible voters in the band who participate in the vote, if those who vote to approve it constitute more than twenty-five percent of all eligible voters.”

Call it an oversight if you will. If Mr. Johnson's right, it changes in a significant way the meaning, and I'm not sure we can get that repaired in the context of this NDP-13 amendment.

The idea of the band and the minister working together to agree upon this is trying to make reference to customary codes and traditions that may be beyond the norm of the European model of adoption procedures. The example I used was when I was in the aboriginal rounds of the Charlottetown Accord debates in 1992, when an aboriginal elder woman was saying that in her home community the women weren't allowed to run for chief. Everybody said that was a shame, until she pointed out that the men aren't allowed to vote. So these contrasts exist in some communities that have developed over the years, and we need to adopt a cultural sensitivity to recognize and acknowledge selection methods, election methods, etc., maybe outside the norm that we're used to in a European context or a Eurocentric view of the world.

When we put forward the idea on behalf of Herb George, whose legal counsel I know has worked closely with Andrew on other cases and issues, I think they had a legitimate reason for using the term “band” instead of “band council”, because it implies there's some approval mechanism or structural mechanism so that the band could work with and negotiate with the minister.

So I think the amendment still has merits. I wish it did have the words “and those who participate in the vote” included, but we're not going to see that now. Perhaps we'll see how the vote goes on it, and I will decide if there's sufficient interest to revisit it in the next motion.

I'll conclude there, Mr. Chair.

¾ (2010)

The Chair: Thank you.

(Amendment negatived)

The Chair: BQ-9, Mr. Loubier.

[Translation]

Mr. Yvan Loubier : Mr. Chairman, in view of the explanations given by Mr. Johnson a moment ago, I'm going to withdraw my amendment, BQ 9.

[English]

The Chair: Thank you.

BQ-9 is withdrawn.

CA-3, Mr. Vellacott.

Mr. Maurice Vellacott: That's Mr. Chatters', isn't it?

The Chair: Mr. Pallister, but signed by David Chatters. That doesn't matter; you don't have to sign it.

Mr. Maurice Vellacott: Let me get there.

The Chair: Page 29.

Mr. Maurice Vellacott: One second, Mr. Chair.

The Chair: It's your time.

Mr. Maurice Vellacott: Yes, I know, I understand. Let the clock run; I have to find my notes here on this one.

Can you defer this, Mr. Chair, until I get my act together, and come back right after the next one, or is it in sequence where it has to be dealt with right now?

The Chair: I would prefer we deal with it now because we just had the debate on that. Your motion is very compact, to the point.

Mr. Maurice Vellacott: It's just getting up to threshold a little bit. I don't have....

The Chair: It doesn't prevent you from moving that we stand the motion. I don't want you to think that.

Mr. Maurice Vellacott: Let's just stand it temporarily if we could do that. I'd like to do that.

The Chair: You're asking that we stand it?

Mr. Maurice Vellacott: I want us to stand it, at least long enough till I get my stuff together, but move on to the next CA one.

The Chair: Would you like us to stand until we deal with CA-4?

Mr. Maurice Vellacott: Yes, that's right.

The Chair: Can I get unanimous consent for that?

Some hon. members: Agreed.

The Chair: Thank you very much.

CA-4, and after we will deal with CA-3. Who's on CA-4? Mr. Pallister again? Who will take CA-4, pages 29 and 30? Are you okay?

Mr. Maurice Vellacott: I'm okay.

The Chair: On CA-4?

Mr. Maurice Vellacott: Yes.

The Chair: Let's go.

Mr. Maurice Vellacott: I think what's pretty important under here is that the members of the band have access to the codes and be fully aware of some of that content there before the vote's conducted. And what we're proposing here is that they're allowed a little more time to discuss changes...the chief and council, and other members of the band.

Basically this amendment stipulates that, as in the requirement that the proposed band laws are to be made public before their adoption, the same requirement should be required of the proposed codes. There were actually some representatives of the United Chiefs and Council of Manitoulin who said you have to have a buy-in, you have to have an ownership of something if it's going to work, and that was in Sudbury at meeting number 42 there.

So if the reserve residents are to respect the codes, they must have an opportunity to access them and suggest any changes to their council. So for that reason we think the codes should be made available to all members at least 15 days prior to ratification of the votes. So it's basically in the interest of their having the longer length of time to be properly and adequately informed on this whole thing.

¾ (2015)

The Chair: Am I hearing that we have support on this side? If we can go directly to the vote, this chair will be very happy, but I don't want to push the vote and then you lose it.

Mr. Maurice Vellacott: I have no further comments.

The Chair: You're saying that on this side we're okay with this? Are we ready for the question?

Mr. Pat Martin: I'd like to address this briefly, Mr. Chair.

My only concern about this--and I won't use the full ten minutes, and I'm not trying to be difficult--is that raising this bar to 50% might not take into account the fact that--

The Chair: No, it's page 30. All it says is that a 15-day notice will be given of the proposed vote.

You're okay there? Did you wish to speak on this?

Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: I'm wondering if we're making regulations that really should be made by the band. Let's say somebody wanted to make it even more time, like let's say 30 days. We're starting to restrict how a band decides their own codes.

From reading this legislation, we're trying to give them as much flexibility as we can in making their own rules. If we put this right in the act and 15 days is non-negotiable, for the ones who want to do 30 or 45, we're starting to restrict how they do.... Again, by putting in something like 15 days, we're assuming that they're not going to give anybody any notice, instead of the other way of assuming that they're going to have common sense and put in their own number of days of publication.

The Chair: How do you feel, though, about the fact that it says “at least 15 days”? It could be anything over.

Would there be instances when they would want fewer?

Ms. Nancy Karetak-Lindell: The more I look through this legislation the more I see it as a very skeletal framework of guidelines--what they have to have. By starting to put in numbers of days and whatever, I think we start to get more restrictive, rather than general. And we all know that once something gets put into legislation, it's a heck of a procedure to try to change it.

In the legislation I've been working with, I thought we've always tried to keep away from putting in restrictive things. For some reason, in good conscience, we think they will help, but we find out we've made it too limiting, instead of what we thought it would be.

The Chair: Mr. Vellacott, you will have the last ten minutes, because we're not going to the vote; there are a lot of speakers.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier : Mr. Chairman, I entirely agree with Ms. Karetak-Lindell. I believe that would be adding everything we have denounced since the start of Bill C-7. We said that, under the guise of giving the First Nations more flexibility and freedom, we were limiting them and limiting them even more because regulations would be subsequently forthcoming of which we had no knowledge. So I entirely agree with my colleague. Why impose another framework when we're saying we want to give the Aboriginal nations more independence? So I'm going to speak out against this proposal which ultimately adds nothing to the process.

[English]

The Chair: Is there anyone else?

Mr. Martin, you spoke on this.

Mr. Pat Martin: I have spoken on this, okay.

The Chair: Mr. Vellacott, for the last word. You may want to ask our witnesses some questions.

Mr. Maurice Vellacott: Sure.

I think it's fairly basic and fairly straightforward. I understand and I'm respectful of what Nancy has to say here.

Certainly, at least in terms of the very obvious reading of it, “for at least 15 days”, if in their good judgment it needs to be longer--30 days, 45 days, two months--that would be certainly possible. We're just saying it should be a minimum in terms of getting a buy-in and ownership. In some remote and sparse places, you'd obviously have a longer time, and this doesn't preclude that.

I don't know how anybody could argue that fewer than 15 days is wise. I don't know how that argument could be made. So it's just trying to provide some guidelines there, and they may well decide it takes several months.

I understand, and we heard from a lot of the committee witnesses, that instead of the western European model, they want to do more of a consensual, well beyond the majority 50%. We heard that in some of the witnesses' comments. If they want 75%, that's well beyond the minimum required.

In this case, regarding the number of days it has to be published and out there for discussion by family members, small groups, band meetings, etc., I think it's not unreasonable. On the contrary, if you have fewer than that, I'm just not sure it's a good thing at all for getting a buy-in and getting the information out to the numbers of people who would need it in hand to make proper decisions.

I'm not going to belabour this long. I just think it's a reasonable thing, and we'll leave it up to the will of the committee from here.

(Amendment agreed to)

¾ (2020)

The Chair: We now go back to amendment CA-3, on page 29. Who will carry the ball on that?

Mr. Vellacott.

Mr. Maurice Vellacott: This one, the very obvious intent--I alluded to it just moments ago--is that any code that's to govern the lives of reserve members in the constituencies of various members here must have the support of at least half the electorate if it's to be adopted. Democratic principles seem to demand an adoption threshold higher than 25%.

I remember some specific comments in one of the meetings almost scorning the lower threshold of 25%. I think there's a greater degree of legitimacy, if you will, when the majority of the community, those people affected by it, are in support of it.

The current provision of the bill would allow a very small proportion of the population to determine the content of the codes and effectively alter band administration, leadership selection, and accounting practices. That seems to run contrary to a greater buy-in by first nations people.

To circumvent that issue, we strongly believe the adoption threshold be raised to at least 50% of all eligible voters.

The Chair: Thank you, Mr. Vellacott.

Mr. Martin.

Mr. Pat Martin: I raise this in all sincerity, that I am very concerned that this might be putting such an onerous task on some communities that they'll have election after election, and all of them will be rendered null and void because of voter turnout—which is something beyond people's control. It's an issue of natural justice to make people aware that there is an election and to give them every opportunity to participate in it, if they so choose, but you can't force them to participate. There are municipalities or non-aboriginal communities who have had 20% turnout. So a majority of those who voted elect the mayor with a very low turnout. It's not anybody's first choice; we'd all like greater voter participation.

There is an added complication in first nations communities, in that lots of those who we have information on have two-thirds of their membership on reserve and one-third off reserve; and some have a 50-50 on reserve and off reserve, with a diaspora of of eligible voters on their band list spread out across the world. It is even more difficult for them to encourage those people to cast their ballots, so I think there was probably a good reason why the government chose to put in a reasonable threshold of 25% in this case. As some would argue, I suppose you could make the argument that they should not have put in any threshold, but I didn't hear a lot of opposition to that 25% threshold in the hearings process and in the submissions that were made.

Could I ask if there is any comment from Mr. Johnson, Mr. Beynon, or Mr. Salembier? Obviously, there was some rationale behind the 25% threshold.

¾ (2025)

Mr. Warren Johnson: To come back to the standard again, the rationale behind it was to note when things in the FNGA were different from the practices or experiences of other governments in Canada, and why that would be. In this case, it's different from a simple majority—which might be used in the example you cited earlier—because there is a range of procedures for entering agreements first nations get involved with, and some have more permanence. Examples include the ratification procedure for entry into the First Nations Land Management Act; out-of-court settlements for larger sums of money, such as over $10 million; major specific claims; non-section-35 self-government agreements, or the kinds of sectoral self-government agreements we referenced earlier, like in education. In these latter cases, all of the procedures have used this model, and most of them have been put forward by first nations themselves in the negotiations around the agreements.

Thus far, the higher thresholds have been reserved for those affecting basic section 35 rights, such as the ratification of a treaty in the case of the Nisga'a, for example, or a major land claim, or treaties affecting the section 35 right. That's where people have gone to an absolute majority threshold. That seems to be the—

Mr. Pat Martin: What do you mean by absolute majority? Is it the majority of all eligible voters?

Mr. Warren Johnson: Yes, in this proposal.

Mr. Pat Martin: Right, 50% of all eligible voters.

What was the Nisga'a ratio or threshold?

Mr. Andrew Beynon: As I recall, the number was 50% plus one.

Mr. Pat Martin: Was that of all eligible voters?

Mr. Andrew Beynon: Yes.

There was one ratification level for the Nisga'a constitution, and a separate one for the Nisga'a treaty. As I recall, it was a high threshold, as Mr. Johnson suggests. Where you're dealing with such a fundamental matter as a treaty, there is a high ratification level.

Mr. Warren Johnson: Those are constitutional issues, and provincial governments have special rules for dealing with the constitution as well, which are higher than just a simple majority.

Mr. Pat Martin: If we left it the way that you have it in the bill, nothing would preclude setting a higher threshold for section-35 type votes in the future. It could simply be stipulated as an aspect of that particular vote. Would that be fair to say?

Mr. Andrew Beynon: Yes—if I could answer that. In self-government treaties, or in more comprehensive treaties dealing with land issues as well, there is usually a ratification chapter negotiated by all of the parties, often including the province, first nation, and Canada. All of the parties work out not only what the high level of ratification by the first nation is, but also Canada and the provinces' ratification procedure. So this is a negotiated matter, as is the rest of the treaty and land claim. This is a different context.

To answer your question, if this bill is passed as an act, the provisions setting how you adopt a code would not at all govern what you negotiate in a land claims context.

Mr. Pat Martin: I understand that.

Having heard that, I'd have to speak against this amendment. I'd rather risk having a vote decided by a very few people if the turnout was low. For example, if a band consisted of only 100 members, that means that 25%, or 13 people, could vote on the future of 100 people in the context of that particular vote. I would rather risk that than set the threshold so high that it would be impossible to achieve. So I'm going to speak against CA-3.

The Chair: Thank you.

Mr. Chatters.

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

I have to speak for the amendment because I think that in the public hearings I was able to attend, every group that made representation and referred to this clause suggested that it was ludicrous that the threshold be set that low. It's fundamental to our democratic process in Canada that we make democratic decisions by a vote of 50%. These codes, after all, are going to govern the fundamental life and operation of a band government. I think in a very meaningful way they carry the weight of a constitutional provision for that band at least in the interim, till they negotiate a self-government agreement. I think that to set the threshold so low at 25% of eligible voters opens up the process for abuse. So I support the amendment.

¾ (2030)

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, I don't know if Mr. Martin is listening. I don't want to say the same as he has already said. I think this would create problems. Many bands have one-half of their people living off reserve. It wouldn't be fair to set a higher standard for first nations or aboriginal people than those of us from a so-called European background would expect for ourselves. So I would have to vote with Mr. Martin and against this particular amendment.

The Chair: Mr. Finlay.

Mr. John Finlay (Oxford, Lib.): Mr. Chair, there are bands that have had three and four votes to try to get 50%. As Mr. Martin has pointed out, times have changed since Corbiere. The people who are not on reserve also have to vote. In the case I'm thinking of, that wasn't the factor. It was just that they couldn't get more than 50%. This still means that if it's going to be a close vote, for instance, it's probably a vote of at least 50% because the majority must be 25%.

The Chair: Mr. Reed.

Mr. Julian Reed: Is there anything in the bill that says the band can't set it higher if they want to? Is there any restriction on the band?

The Chair: Mr. Johnson.

Mr. Warren Johnson: I think the answer is no, they can't set it higher. They could run it that way, and if everybody agreed, that would happen. But they don't have a law-making authority to set it higher. Once they've passed the code, the code itself will have its own rules, which include what their future vote and amendment processes will be, and they can set it at that point. This is the initial entry into the code. The code itself will contain election procedures, etc., which they will develop, and whatever threshold they propose then will be their threshold.

Mr. Julian Reed: Thank you.

The Chair: Mr. Vellacott, final remarks.

Mr. Maurice Vellacott: I understand what some of my colleagues are saying on this. I don't know if it's quite as fair a comparison as has been made by our specialist here today, or even members across the way. This is not simply a vote in terms of your band council member or your chief. This is actually in terms of the laws that govern, as has been expressed, and we don't really have any parallels to that in Canadian history. It's not fair to say that we don't do this elsewhere in Canada, because we don't vote directly on law and legislation in our country, although the Canadian Alliance Party would prefer that we do referendums, plebiscites, and so on. We vote on our member, who then votes in the House of Commons.

Maybe, Mr. Johnson, you could take just a few minutes to address that. Maybe you have something in mind that I don't. You made the point that we don't require this elsewhere, but the ordinary voters across the country are not voting directly on laws.

Mr. Warren Johnson: To clarify my point, I was saying that the standard that we have used--and we use that in terms of our information to the committee as well--is wherever you are differentiating or using a different approach from what we find in other situations in other governments in Canada, we would be conscious of that and reason why. In this case we are. This is higher than a simple majority. You require a majority of those people who show up for the election and you need a minimum 25% of the total population to show up and say yes. So this is a higher threshold.

¾ (2035)

Mr. Maurice Vellacott: Would you concede, though, Mr. Johnson, in our country, that we're not voting directly on laws? When we're voting, and we don't require a minimum, it's voting on a representative, who then takes to Ottawa or provincial legislatures or whatever.

Mr. Warren Johnson: That's right. That's why there was a rationale to move to a higher threshold, and there is a higher threshold than the norm proposed in this act now. The rationale we were asked for, and why it wasn't gone one step further, which is the threshold proposed here, is that those have traditionally been used in this environment only where you're making basic constitutional changes, which are very difficult to undo or don't get undone.

There is a set of examples, like code ratification in the First Nations Governance Act, that exist elsewhere already--exactly the same codes in different subject matters or classed by first nations under the First Nations Land Management Act, etc., ratifications and major big special claims, etc. Those use the kind of threshold that we've proposed here so that it's consistent with that. That committee may take a different view on it, but that's the rationale.

Mr. Maurice Vellacott: Yes, and that's my point, simply. That may be high-sounding kind of language. This isn't exactly a constitution, but quasi, in an interim kind of basis, or pending self-government agreements. It's the laws, if you will, the constitution, in a sense that governs, and therefore in our country we do have, for constitutional amendments and change and so on, that higher threshold.

In conversation, I think there might be some openness to a proposal of about a 30% range, possibly, by members across the way. I want to test that.

My colleague here is trying to butt in on me. He wants to propose a subamendment to that effect, that instead of 50%, it be 30%, so I'll concede the floor.

Mr. David Chatters: I would move that.

The Chair: On the subamendment that 50% be replaced by 30%, do we need to debate that? Can we agree that we go directly to the vote?

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier : Just give me a second, Mr. Chairman. I would just like to ask Mr. Johnson or Mr. Beynon a question. Based on what we know, in common practice, in the voting habits of the First Nations, wouldn't requiring more than 25 percent participation be extremely demanding for certain communities, particularly if one thinks of quite dispersed communities with low population density and immense lands?

[English]

Mr. Warren Johnson: That's a little difficult to answer, because, as I mentioned earlier, the higher thresholds that exist for other types of ratifications are associated with different kinds of decisions. You're not making a simple comparison.

There are, and have been, a number of ratifications, approval in principle, for example, of self-government agreements that have failed in the first nations communities, and people are concerned about that, whether that's the issue of ratification or whether there needs to be better information upfront. So there are a number of issues at work there.

However, as I referenced earlier, for example, the First Nations Land Management Act uses exactly the same procedure, as do a number of others, and in that there is law-making. There's precedence, but it's aboriginal precedence, not non-aboriginal precedence for this, where they develop their own codes and laws in terms of land management and land use planning and the revenues therefrom.

In that case, there is not universal success, even with this ratification procedure, which is less than an absolute majority, the one that's proposed in FNG. There still have been failings, in terms of communities not accepting entering into the First Nations Land Management Act and the codes that have been developed there. There have been some failures even at that level of threshold, so it's not black and white.

From the experience, I guess I would suggest that this is already a fairly high threshold, and whether it should be higher or not is another question. It's a judgment call.

The Chair: Mr. Vellacott.

Mr. Maurice Vellacott: I'll use my time to query a little more then.

I guess off the bat here I'd like to know.... I feel in fact that this was brought forward by some first nation witnesses to us, if you go back and reference some of the committee testimony on that. I only have to take them at their word, obviously, but they were making much of the fact that they have a more consensual basis for decisions. And yet I hear a pessimism to the effect of why would we expect that, since it's a difficult task, or chore, even to get 25% of all eligible voters.

What I was led to believe in terms of customary and historical among first nations was this much more consensual model of doing things. If I'm to believe that, then I'd have to concede the fact that 25% is not, and shouldn't be, a big issue. I'm just listening and taking at face value some of the testimony that we heard across the country. I was left with the impression even from some of the personal conversations that sometimes in their traditional historical way of doing things it was 75%, 80%, 90%, or virtually unanimous in some cases, but certainly a far higher degree than the 50% western model.

I guess my question, then, Mr. Johnson, would be this. Do you know of any land management or some of these comparable areas that you're talking about within first nations that have failed for lack of having the numbers out for the vote? Are you aware of...?

¾ (2040)

Mr. Warren Johnson: Yes.

Mr. Maurice Vellacott: How many of those...? Would 50%, 5%, 10% fail for lack of...?

Mr. Warren Johnson: I'm afraid I'd be searching a little bit for the answer to that question, but it's a fairly significant percentage. I think there have been two failed ratifications for entering into the First Nation Land Management Act, and there are nine in now.

Mr. Maurice Vellacott: That would be two of eleven.

Mr. Warren Johnson: Two of eleven, roughly 20%.

Mr. Maurice Vellacott: That's 20%. But might I suggest there--

Mr. Warren Johnson: Those numbers stand to be corrected, but it would be in that order of magnitude.

Mr. Maurice Vellacott: If among something crucial that affects the lives of people or on a land management issue they're not able to get that number of people out and therefore get their ratification of it, is it also a bad a thing to have to do it over again? Maybe there wasn't a buy-in and maybe there wasn't the proper information out--people weren't aware. That might in fact be the reason for your low turnout in respect to it. Maybe it's pretty bullish and maybe a little bit too aggressive to then be pushing ahead when in fact you don't have very many people in your band or that first nations community who are aware.

Maybe the groundwork needs to be done. Maybe there needs to be much more diligence in getting the information out. I'm not so sure I see it as a total loss. They just build on that to get the information level up and so on. I wouldn't see that as a failure so much as maybe a strong signal that they have to do a much more thorough and much more effective job of getting the information out, so people are aware of this very crucial issue--land management or whatever it is--that's going to affect the lives of all of them, so they had better get aware. Leadership has a real onus then to get that information out.

With that, then, and, as I said, trusting the wording and witness of those before us who were saying they almost scorned this lower threshold, in deference to them, I want to go with the 30%.

The Chair: You're talking of 30% as opposed to 50%.

Mr. Maurice Vellacott: Yes. I would like to, as a minimum, go with the 30%--this proposal here. I would suggest that if people can't do that good or better, as it's something that so directly and intimately affects their lives, then a whole lot more information sharing, a lot more dissemination of stuff on that, has to go out, and so be it. If they have to send the information out to places around--these are major decisions--out to people in Vancouver, wherever it happens to be, then so be it. That's the nature of democracy. That's the nature of buy-in. That's what it takes so that at the end of the day you don't have people saying “I was never told, never informed. That's why I wasn't out. It wasn't because I didn't care, because I didn't want to have a part in this. It's because nobody let me know about the thing.”

Anyhow, at that point, I rest my case. I guess the subamendment of 30% is where we'll see and test the will of the committee.

¾ (2045)

The Chair: Thank you.

Mr. Hubbard.

Mr. Charles Hubbard: Very briefly, Mr. Chair, I certainly would like to support this. I think, morally, all of us would support it. In fact, it would be nice if even 50% would be involved with a positive vote.

But I do know from experience of at least one band that, with money sitting in the bank, can't get enough people to vote to decide how it is to be dispersed. They've had two or three calls for votes, but it's very difficult, in some cases, to get people not only to support it in a majority vote, but also to get what would be 50% or more on election day.

I know all of us, as great democrats, would like to have everyone participate in this. I would think, Mr. Chair, that it's very difficult to put this above 25%. It would be impossible, at least from my perspective, for me to support the 30% or 50%.

The Chair: Thank you.

Your final word, Mr. Chatters.

Mr. David Chatters: We're proposing a compromise here. My hope here is that we're solving some problems that have existed and continue to exist in aboriginal communities. As a result, I think we have to pay attention to what we heard from aboriginal people at our public hearings on this issue.

As I said, anyone who addressed this particular clause was very adamant that 25% was too low. I think if you can't get 30% of your eligible voters to respond in a vote, maybe the money should stay sitting in the bank until you can.

My colleague made reference to his experience. In my experience, what can happen out there is, without the 15-day rule we approved, and with the threshold kept so low, it's conceivable that a very important issue can be brought before the band membership without adequate notice or information, and then a vote is held respecting a very low threshold.

I think it's a corruption of democracy to do that. I think 30% certainly shouldn't be difficult if the governing body of the band makes the effort to get the information out to the eligible voters and allows them the minimum 15 days to look at the material and decide how they feel about it. I don't think the compromise 30% is that ominous a threshold. Certainly in terms of the democratic process, I don't think 30% of eligible voters is too much to ask for.

Thank you, Mr. Chairman.

The Chair: That's the final word on the amendment. We go directly to the vote on the subamendment.

Those in favour of Mr. Chatters' subamendment--that is, that we go at 30%.... Do you want a recorded vote?

Well, I asked the question. In all fairness to others, it's too late.

(Subamendment negatived)

The Chair: We now go directly to the question on the main amendment, on a recorded vote.

(Amendment negatived: nays 9; yeas 2)

The Chair: I'd like to note the presence in the room of two students from the Forum for Young Canadians who are in Ottawa with us today and visiting the committee. They are future prime ministers of the country, as all young Canadians are.

When chairing committee meetings visited by young people from the Forum for Young Canadians, it has always been my practice to invite them to the table. I was not going to do it today because I have to invite them to the opposition side; that's where the chairs are. But I will invite you to sit at the table and observe for a few minutes.

I thank my colleagues for allowing us to do this.

Order.

We'll hold you to order also; and when you feel you've heard enough of the repetitious participation, you can just up and leave.

We are on amendment NDP-14. Mr. Martin, you have the floor for ten minutes.

¾ (2050)

Mr. Pat Martin: I'd like to withdraw NDP-14.

The Chair: Hey, I wish our guests would have come to the table before.

Mr. Pat Martin: They're having a calming effect on me.

The Chair: Agreed.

Now we have BQ-10 from Monsieur Loubier.

Mr. Vellacott has a point of order.

Mr. Maurice Vellacott: I'd like to move adjournment at this point without debate, Mr. Chair.

The Chair: I have a motion to adjourn without debate.

(Motion negatived)

The Chair: We will proceed with BQ-10. Monsieur Loubier, you have ten minutes.

[Translation]

Mr. Yvan Loubier : Mr. Chairman, it would be a poor example to set for our young people to go away in this manner, following an adjournment motion, when they have not yet taken part in our work.

[English]

The Chair: Order, order. Let's get to work.

[Translation]

Mr. Yvan Loubier : Mr. Chairman, there is such a meeting of the minds between my colleague Mr. Martin of the NDP and myself that, without consulting each other, we have introduced exactly the same amendment to Bill C-7. For that reason, Mr. Martin has deferred to the amendment introduced by the Bloc québécois, BQ 10. What is the nature of this amendment, Mr. Chairman?

I'm still a bit nervous when young people are present, as they are today. I feel a duty to set an example, not to become angry and not to say anything offensive. I'm nevertheless going to do a serious job.

The purpose of the amendment I'm introducing is as follows : that Bill C-7, Clause 4, be amended by adding a subsection (4) as follows :

(4) Adoptions of leadership selection, administration of government or financial management and accountability codes as set out in this and related sections :

(a) are interim measures pending the fulfillment by Canada of its commitment to negotiate and implement self-government arrangements with Aboriginal peoples;

(b) in no way diminish the Government of Canada's commitment to negotiate and implement self-government arrangements.

Mr. Chairman, I'm introducing this amendment for a number of reasons. First, Professor Larry Chartrand of the University of Ottawa has requested that this type of principle--which moreover was recognized when the Minister of Indian Affairs appeared before the committee--be clearly stated in the act, in other words that the adoption of codes on the various aspects of governance and on leadership selection, administration of government, financial management and accountability be interim measures pending the fulfillment by Canada of its commitment--reiterated by the Minister of Indian Affairs--to expedite negotiations on self-government and the manner in which it will be exercised, and also pending the truly concrete implementation of those self-government arrangements.

To respond to the fears expressed by the very great majority of the witnesses who appeared before us from the start of the hearings on Bill C-7, the idea here is to ensure that Bill C-7 is not viewed by the government as an end in itself, but solely as a kind of transition between the old Indian Act and the aspirations of the First Nations, that is to say the exercise of their inherent right to self-government and their treaty rights.

It is thus an interim measure, which must not attenuate the federal government's will to negotiate agreements with the Aboriginal nations. Furthermore, compliance with the conditions set out in Bill C-7 must especially not reduce the financial and technical resources that would enable the government to expedite negotiation of the real issues with Aboriginal peoples.

Those real issues are stated in the many Supreme Court judgments and in the report of the Royal Commission on Aboriginal Peoples. That report was published only a few years ago, in 1997, following six years of work which mobilized considerable human and financial resources. The report's recommendations were accepted almost unanimously by the First Nations. However, to all intents and purposes, those recommendations were disregarded in order to move on to Bill C-7, which has no real connection to the main recommendations of the Erasmus-Dussault Commission's report.

In hearing a number of the witnesses, the First Nations had the impression that Bill C-7 was a return to the 1969 White Paper, which had been tabled by the Minister of Indian Affairs of the time, our current Prime Minister, who yesterday celebrated 40 years in parliamentary life.

¾ (2055)

What did that White Paper say, and what relationship can there be between the 1969 White Paper and the fears raised by this amendment?

First, the 1969 White Paper stated that treaties and sacred rights had to be done away with. Second, the federal government's fiduciary responsibilities had to be terminated as well. Third, the First Nations had somehow to be municipalized.

One gets the impression that, with Bill C-7, we are reproducing the main recommendations of the 1969 White Paper, whereas it was presented to us--and we would like to believe it, but it should be stated in the heart of the bill--as a necessary transition to full self-government and to enabling the First Nations to exercise their inherent rights to self-government. I'm willing to believe it. The very great majority of those who doubted and who appeared before us would like to believe it as well, but, as you know, to believe without seeing any guarantee that that's really what will happen in future and that we're not sweeping aside the federal government's responsibilities toward the First Nations, there is a gulf that no one on the opposition side, even less on the First Nations' side, is prepared to bridge.

Mr. Chairman, with regard to the principles clearly stated by the law professor from the University of Ottawa, Professor Chartrand, and also by the Regroupement des centres d'amitié du Québec des Cris et des Naskapis, it is preferable in our view that a fourth subsection be added to clause 4 which would provide the First Nations with this type of guarantee that Bill C-7 is not an end in itself, that Bill C-7 is like the plumbing in a much larger and nobler building, which is called full self-government for nations which must be considered as such with respect and dignity, and that, once the federal government and the First Nations have negotiated the exercise of that inherent right to self-determination, the provisions of Bill C-7 concerning them will be brought, even if the ink has scarcely dried on the three codes, which, by obligation and forcing, as it were, have been imposed on them under Bill C-7.

What has been lacking since the start of this debate--and this comes back to paragraph (b) of my amendment--is a kind of exercise of conviction on the government's side, in particular on the part of Minister Robert Nault, to convince the Aboriginal nations of its good faith and to convince them as well that the Canadian government's commitment to negotiate true commitments which are consistent with the precepts and premises expressed in the report of the Royal Commission on Aboriginal Peoples, the Erasmus-Dussault Report, will be realized sooner because there is a political will to resolve the situation.

We can understand the representatives of the First Nations, who do not believe the government, even less the minister, because they have been lured in the past by nice projects, such as expedited self-government projects, a major investment in education, solutions to the problems of economic development, expedited land negotiations, by the minister's own admission...

¿ (2100)

The Chair : Thank you, Mr. Loubier, your 10 minutes are up.

[English]

Before I go to Mr. Chatters, we will put on record that our guests are Travis Morgan from Whitefish, Ontario, in the riding of Nickel Belt, and Todd Krohman, from Langley--Abbotsford.

You can both contact your members of Parliament to get copies of the blues of this meeting, which will make reference to you. We are honoured to have you with us.

Mr. Charles Hubbard: Is the member of Parliament for Nickel Belt here?

The Chair: This wasn't a set-up.

I've always told you that people from northern Ontario always stick together, and when they come to Ottawa, they visit their MP.

Mr. Chatters.

Mr. David Chatters: I will be very brief on this amendment, Mr. Chair.

The interim nature of this bill is affirmed in the preamble and again in clause 3 in “Purposes of Act”. I don't think it's necessary to reaffirm the interim measure of this bill in every clause of the bill, and I don't know why we would even try to do that. I think it's very clear in the preamble and in the purpose in the preamble that it doesn't diminish inherent treaty rights and in the purposes of the bill that it is in fact an interim bill pending the negotiation and implementation of the inherent right of self-government. I don't think it needs to be reaffirmed.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, first of all, a lot of us thought we would conclude tonight by about nine o'clock. I'd like to thank those who voted to stay on, because I think it is quite significant tonight that we have some young people. They get a little feeling on what this is all about. They'll go back to their high schools and they'll say, “I was there, and I heard Mr. Loubier, and I heard Mr. Chatters. They had a pretty good chair too.”

I would like to say the same as Mr. Chatters. We already have the same intent in the purposes of the act. With that, I think it's quite important that as legislators we don't take and create bills you need a donkey to carry around. There's really very little need of adding to what's already there. A bill should be concise and brief. I don't think saying the same thing two or three times, Mr. Loubier, is in the best interests of our country and the people who have to read it.

With that, Mr. Chair, I move that we adjourn until tomorrow.

¿ (2105)

The Chair: If we finish this, we can finish that clause. I need something to put in my diary at home.

Mr. Charles Hubbard: Then I'll withdraw my suggestion.

The Chair: Mr. Martin.

Mr. Pat Martin: Thank you.

I would like the opportunity to address this clause put forward by Mr. Loubier. Actually, it is exactly the same as the amendment I just withdrew. I felt it would be repetitive for the NDP to put forward the same amendment as the Bloc, but I appreciate the fact that the Bloc member saw fit to seek amendments in the same light.

I note he cited a number of organizations that did see the value in introducing this language at this stage in the bill. I would like to bring to the attention of the committee as well that there were not only those organizations Mr. Loubier cited but also the National Aboriginal Law Section of the Canadian Bar Association. It specifically asked that the FNGA should expressly provide in clause 4 “that any codes adopted are interim and transitional in nature, pending a final agreement on self-government between a First Nation and the Federal government” and to make it abundantly clear that the FNGA would no longer apply “to a First Nation with a concluded agreement.”

Clause 3, which we just finished dealing with, does make reference to “an interim basis pending the negotiation and implementation of the inherent right of self-government”. The language proposed by Mr. Loubier is tighter than that. He provides the interim aspect as “interim measures pending the fulfillment by Canada of its commitment to negotiate”. The language is stronger. It finds itself outside just the purposes of the act. It was announced under the purposes of the act, but it manifests itself, I would think, in a number of places. I don't think this adds to the bulk of the document.

But I think it's justifiable that first nations people are apprehensive--and we have to use an abundance of caution when crafting legislation, because they've been burned in the past--that if they don't clearly articulate and state and restate the intentions, when it winds up in court, they seem to be on the wrong end of things.

This is important to many of the presenters who came forward. Also the Opaskwayak Cree Nation in The Pas, Manitoba, made the same request, that this be reflected in clause 4. Actually, the minister of Indian affairs for Manitoba is the chief of the Opaskwayak Cree Nation, and I think we should give deference or at least serious consideration to these issues they brought forward.

Clause 4, especially seeing as it deals with band-designed codes, is the first place in the bill that would seek to enforce or impose codes on first nations. Reference should be made within that clause to make it abundantly clear that this is simply a bridge to a higher objective, that these interim measures are to be viewed as a bridging mechanism, and not the be-all and end-all. We need to remind everyone who reads this bill, and especially the people who are affected by this bill, that there's nothing permanent and concrete here. This is an interim measure, pending the fulfillment by Canada of its commitment to negotiate.

Second, I think it's entirely appropriate that we remind any reader of this bill again that these clauses or the adoption of these leadership selection codes in no way diminishes the Government of Canada's commitment to negotiate and implement self-government arrangements.

I would ask, I suppose, our advisers again if they see this language as being entirely redundant or if there is in fact merit to having it restated and articulated in this even subtly different way. The question is to Mr. Johnson or Mr. Beynon.

Mr. Warren Johnson: There are two parts to that. In the first part, with the language “fulfillment by Canada of its commitment to negotiate”, the question is, how would you measure that? For example, if there were negotiations, the community took the results back, and the vote failed, would that mean the fulfillment of its...? So there's an interpretation question; this language would raise a specific issue there.

On the question of the legal redundancy, which especially relates to the second part, I'll turn that over to my colleague.

¿ (2110)

Mr. Andrew Beynon: I would answer that I would share the view that it is legally redundant because the preamble and the purposes already speak to this issue. But I would caution that this formulation sets up the issue in slightly different language from what is in the preamble and the purposes, so the courts would have to wind their way through the several different formulations.

Here's just one other note of caution. The proposed language refers to the adoption of codes as an interim measure in having a certain effect. I would suggest, though, that the thought is more that the whole act and the entirety of codes don't have these effects or are interim measures, not just the narrow issue of adopting the codes.

Mr. Pat Martin: I suppose the people who moved this or wanted this language put in took that into consideration when they crafted this. Now, for the adoption of codes, the possibility is contemplated that those codes were adopted with the cooperation of the minister and were recognized as custom codes or traditional codes that may be exempt in some way. Would you agree that this might be the situation being addressed here?

Mr. Andrew Beynon: Yes, I think the intention is to refer to the effective codes generally. I'm just making a point about the language, that it only refers to adoptions of the code itself. Again, this is just stressing the point that the language in the body of the text is different from that you find in the purposes and the preamble.

Mr. Pat Martin: That's all I need. Thank you.

The Chair: Thank you.

Mr. Loubier, what is your final word?

[Translation]

Mr. Yvan Loubier : Mr. Chairman, the idea isn't to add words for the pleasure of doing so. Bill C-7 is only about 30 pages long. In my opinion, it's one of the smallest bills--but one of very great scope--that has been given to us to see in the House of Commons.

I know of bills that consist of hundreds and hundreds of pages. For example, I could mention Bill C-28 from a previous Parliament, which contained 800 pages and enabled Mr. Martin to exempt his boats from Revenue Canada audits. So I don't believe that adding some 15 lines to a 30-page bill to meet the requirements and allay the concerns of some members of the Aboriginal communities is pointless.

Mr. Bonin told us earlier that there was legislative repetition and that that should be avoided. I don't see any repetition, particularly since he was referring to the preamble.

There are two things involved. First, as admitted earlier, when interpreting what must be done with a bill for decision purposes, the preamble carries much less weight than the body of the text. A judge may refer to the preamble if there's a lack of clarity in the body of the text as such, or in the sections, but he does so only to verify the legislator's intentions.

In this case, it may be said that a number of clauses of the bill have been worded by the legislators with a precision that could be envied by a Swiss clock-maker. It is therefore clear that, if a judge considers one of those clauses, he will find all the answers he needs in the body of the text; he will not find it necessary to refer to the preamble.

We are referred to the preamble on the ground that it expresses the political will to negotiate and implement agreements on self-government. I have read and reread the preamble, and although it is weak from an interpretation and legal standpoint, it makes an observation but does not express the political will to expedite negotiations or to implement the self-government of the First Nations in Canada.

But this is completely different. We are adding the renewed commitment of the federal government, in other words the political will to negotiate and express the First Nations' inherent right to self-government. In addition to that, we want it to be explained clearly and in a detailed manner in the body of Bill C-7 that the adoption of codes is only an interim measure pending the First Nations' full self-government and independence from the minister, department and the federal government and that they express what they are, that is to say sovereign nations on land that they claim and that they should have.

As far as I'm concerned, this kind of answer is not satisfactory and confirms me in my wish to ensure that, in the act as such, which serves as the basis for direct interpretation of the bill, this interim aspect of the adoption of the three codes is expressed and that there is as clear a statement of the federal government's will--not through an observation, but rather a firm will on the government's part--to expedite negotiations for the self-government of the First Nations of Canada.

This then is something completely different from what Mr. Beynon described in talking about the preamble. As I mentioned to you, there are two weaknesses in the preamble. The federal government's will is not clearly expressed; there is an observation to the effect that there is an inherent right to self-government and that this policy provides for negotiation on the subject.

¿ (2115)

However, it is not stated that the federal government has the political will to negotiate and sign self-government agreements. Next, as I mentioned to you, the preamble has much less force than the clauses of Bill C-7.

Earlier, we referred to the motion of my friend Mr. Martin, who expressly referred us to section 35 of the Constitution Act, 1982, which concerns self-government. In the same frame of mind, I invite my colleagues to make the bill clear with respect to the interim aspect of the codes and the federal government's formal commitment to expedite and complete negotiations with the Aboriginal peoples.

I therefore ask my colleagues to support this motion.

[English]

The Chair: Thank you.

Are you ready for the question?

¿ (2120)

[Translation]

Mr. Yvan Loubier : I request a recorded vote.

The Chair : I asked the question earlier, and, as I have told others, it is now too late to proceed with a recorded vote.

[English]

It's too late to ask for a recorded vote. I turned down the Canadian Alliance because I had called the question, and I will stick to my habits.

(Amendment negatived)

The Chair: And now we can ask the question on clause 4.

Mr. Maurice Vellacott: Could we have a recorded vote?

The Chair: We have a recorded vote on clause 4 as amended.

(Clause 4 as amended agreed to: yeas 6; nays 4)

The Chair: With all the tension on this committee with my friends Mr. Martin, Monsieur Loubier, and others, I will dare to attempt a small joke. I will say to our guests, please don't go back home and say that your MP subjected you to political contamination by sitting you on the opposition side.

Mr. Todd Krohman (As Individual): It's too late. I'm already a member of the Canadian Alliance.

Mr. Maurice Vellacott: Is the last comment about the young gentleman being a member of the Canadian Alliance on the record?

The Chair: It is now on the record.

Mr. Maurice Vellacott: Mr. Chairman, I'd like to make a motion to adjourn the meeting.

(Motion agreed to)

The Chair: We are adjourned until tomorrow morning at 9:30 in Room 371, West Block.