AANR Committee Meeting
Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.
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37th PARLIAMENT, 2nd SESSION
Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources
EVIDENCE
CONTENTS
Tuesday, April 29, 2003
| Á | 1110 |
 |
The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)) |
|
Mr. Pat Martin (Winnipeg Centre, NDP) |
|
The Chair |
|
Mr. Charles Hubbard (Miramichi, Lib.) |
|
The Chair |
|
Mr. Pat Martin |
| Á | 1115 |
| Á | 1120 |
|
The Chair |
|
Mr. Charles Hubbard |
|
Mr. Pat Martin |
|
Mr. Charles Hubbard |
|
The Chair |
|
Mr. Charles Hubbard |
|
The Chair |
|
Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ) |
|
The Chair |
| Á | 1125 |
|
Mr. Yvan Loubier |
| Á | 1130 |
| Á | 1135 |
|
Le président |
|
Ms. Anita Neville (Winnipeg South Centre, Lib.) |
|
The Chair |
|
Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development) |
|
Ms. Anita Neville |
|
The Chair |
|
Mr. Pat Martin |
| Á | 1140 |
| Á | 1145 |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
| Á | 1150 |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Charles Hubbard |
|
Mr. Pat Martin |
|
The Chair |
| Â | 1205 |
|
The Chair |
|
Mr. Charles Hubbard |
|
Mr. Andrew Beynon |
|
Mr. Pat Martin |
|
The Chair |
| Â | 1210 |
|
The Chair |
|
Mr. Andrew Beynon |
|
The Chair |
|
Mr. Charles Hubbard |
|
The Chair |
|
Mr. Pat Martin |
| Â | 1215 |
| Â | 1220 |
|
The Chair |
|
Mr. Andrew Beynon |
|
Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development) |
|
The Chair |
|
Mr. John Godfrey (Don Valley West, Lib.) |
|
Mr. Warren Johnson |
| Â | 1225 |
|
Mr. John Godfrey |
| Â | 1230 |
|
The Chair |
| Â | 1235 |
|
Le président |
|
Mr. Charles Hubbard |
|
Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development) |
|
The Chair |
|
Mr. Charles Hubbard |
|
The Chair |
|
Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance) |
|
Mr. Paul Salembier |
| Â | 1240 |
|
Mr. Maurice Vellacott |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
| Â | 1245 |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
The Chair |
|
Mr. Pat Martin |
| Â | 1250 |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
Mr. John Godfrey |
|
The Chair |
|
Mr. John Godfrey |
| Â | 1255 |
|
Mr. Pat Martin |
|
Mr. Derek Lee (Scarborough—Rouge River, Lib.) |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Paul Salembier |
| · | 1300 |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
| · | 1305 |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
The Chair |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
| · | 1325 |
| · | 1330 |
|
The Chair |
|
Ms. Anita Neville |
|
The Chair |
|
Mr. Yvan Loubier |
| · | 1335 |
|
Le président |
|
Mr. Yvan Loubier |
| · | 1340 |
|
Le président |
|
Mr. Yvan Loubier |
|
The Chair |
|
Mr. Pat Martin |
| · | 1345 |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
| · | 1350 |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
The Chair |
|
Mr. Pat Martin |
|
Mr. Warren Johnson |
|
Mr. Pat Martin |
|
Mr. Paul Salembier |
|
Mr. Pat Martin |
|
Mr. Paul Salembier |
|
Mr. Pat Martin |
|
Mr. Andrew Beynon |
|
Mr. Pat Martin |
|
Mr. Andrew Beynon |
| · | 1355 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Maurice Vellacott |
| ¸ | 1410 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
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 |
| ¸ | 1425 |
|
The Chair |
|
Mr. Pat Martin |
| ¸ | 1430 |
| ¸ | 1435 |
|
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 |
|
The Chair |
|
Mr. Pat Martin |
| ¸ | 1440 |
|
The Chair |
|
Mr. Charles Hubbard |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
| ¸ | 1445 |
|
Mr. Maurice Vellacott |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
|
The Chair |
| ¸ | 1450 |
|
Mr. Benoît Serré (Timiskaming—Cochrane, Lib.) |
|
The Chair |
|
Mr. Maurice Vellacott |
| ¸ | 1455 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
| ¹ | 1500 |
|
Mr. Warren Johnson |
|
The Chair |
|
Mr. Charles Hubbard |
|
Mr. Warren Johnson |
| ¹ | 1505 |
|
The Chair |
|
Mr. Pat Martin |
| ¹ | 1510 |
|
The Chair |
|
The Chair |
|
Mr. Pat Martin |
| ¹ | 1525 |
|
The Chair |
|
Mr. Maurice Vellacott |
| ¹ | 1530 |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
| ¹ | 1535 |
|
The Chair |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
| ¹ | 1540 |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
| ¹ | 1545 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témiscouata—Les Basques, BQ) |
|
Mr. Warren Johnson |
|
Mr. Paul Crête |
|
Mr. Warren Johnson |
| ¹ | 1550 |
|
Mr. Paul Crête |
|
Mr. Warren Johnson |
|
Mr. Andrew Beynon |
|
The Chair |
|
Mr. Paul Crête |
| ¹ | 1555 |
|
Mr. Andrew Beynon |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
The Chair |
|
Mr. Pat Martin |
| º | 1610 |
| º | 1615 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
| º | 1620 |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Maurice Vellacott |
| º | 1625 |
|
The Chair |
|
Mr. Jeffrey LeBlanc (Legislative Clerk) |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Paul Crête |
|
Le président |
|
Mr. Jeffrey LeBlanc |
|
Mr. Paul Crête |
| º | 1630 |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Jeffrey LeBlanc |
|
The Chair |
|
Mr. Jeffrey LeBlanc |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Jeffrey LeBlanc |
|
The Chair |
| º | 1635 |
|
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 |
|
Mr. Jeffrey LeBlanc |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
| º | 1640 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
| º | 1645 |
|
Mr. Warren Johnson |
|
Mr. Paul Salembier |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
The Chair |
|
Mr. Paul Crête |
|
Le président |
|
Mr. Paul Crête |
|
Le président |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Paul Crête |
| º | 1650 |
|
The Chair |
| º | 1655 |
|
Mr. Jeffrey LeBlanc |
|
The Chair |
|
Mr. Paul Crête |
| » | 1700 |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Paul Crête |
|
The Chair |
|
Mr. Paul Crête |
| » | 1725 |
|
The Chair |
|
Mr. Pat Martin |
| » | 1730 |
| » | 1735 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Le président |
|
Mr. Paul Crête |
|
Mr. Warren Johnson |
|
Mr. Paul Crête |
| ¼ | 1835 |
|
Le président |
|
Mr. Maurice Vellacott |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
Mr. Pat Martin |
|
The Chair |
| ¼ | 1845 |
|
Mr. Pat Martin |
| ¼ | 1850 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Jeffrey LeBlanc |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Jeffrey LeBlanc |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Jeffrey LeBlanc |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
| ¼ | 1855 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
| ½ | 1900 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
The Chair |
|
Mr. Pat Martin |
| ½ | 1905 |
| ½ | 1910 |
|
The Chair |
|
Mr. Larry Spencer (Regina—Lumsden—Lake Centre, Canadian Alliance) |
| ½ | 1915 |
| ½ | 1920 |
|
The Chair |
|
Mr. Larry Spencer |
| ½ | 1925 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Pat Martin |
|
Mr. Maurice Vellacott |
| ½ | 1930 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Pat Martin |
| ½ | 1935 |
| ½ | 1940 |
|
The Chair |
|
Mr. Larry Spencer |
| ½ | 1945 |
|
The Chair |
|
The Chair |
|
Mr. Maurice Vellacott |
| ½ | 1950 |
|
The Chair |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
| ½ | 1955 |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. John Godfrey |
|
The Chair |
|
Mr. John Godfrey |
|
The Chair |
|
Mr. John Godfrey |
|
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 |
| ¾ | 2000 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
| ¾ | 2005 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
Mr. Warren Johnson |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Mr. Charles Hubbard |
|
The Chair |
|
Mr. Pat Martin |
| ¾ | 2010 |
| ¾ | 2015 |
|
The Chair |
|
Mr. Ken Epp (Elk Island, Canadian Alliance) |
| ¾ | 2020 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Sylvie George (As Individual) |
|
Mr. Maurice Vellacott |
| ¾ | 2025 |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
| ¾ | 2030 |
| ¾ | 2035 |
|
The Chair |
|
Mr. Ken Epp |
| ¾ | 2040 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Sylvie George |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
| ¾ | 2045 |
|
Sylvie George |
|
Mr. Maurice Vellacott |
|
Sylvie George |
|
Mr. Maurice Vellacott |
|
Sylvie George |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Charles Hubbard |
|
Mr. Warren Johnson |
| ¾ | 2050 |
|
Mr. Charles Hubbard |
|
The Chair |
|
Mr. Pat Martin |
| ¾ | 2055 |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
|
Mr. Ken Epp |
| ¿ | 2100 |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
|
Mr. John Godfrey |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
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 |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Charles Hubbard |
|
The Chair |
| ¿ | 2105 |
|
Mr. John Godfrey |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
Ms. Sylvie George |
|
Mr. Maurice Vellacott |
|
Sylvie George |
|
Mr. Maurice Vellacott |
|
Sylvie George |
|
Mr. Maurice Vellacott |
|
Sylvie George |
|
Mr. Andrew Beynon |
| ¿ | 2110 |
|
Mr. Maurice Vellacott |
|
Mr. Andrew Beynon |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Pat Martin |
| ¿ | 2115 |
|
The Chair |
|
Mr. Pat Martin |
| ¿ | 2120 |
|
Mr. Andrew Beynon |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. John Godfrey |
|
The Chair |
|
Mr. John Godfrey |
|
Mr. Andrew Beynon |
|
Mr. John Godfrey |
|
Mr. Andrew Beynon |
|
Sylvie George |
|
Mr. John Godfrey |
|
The Chair |
|
Mr. Maurice Vellacott |
| ¿ | 2125 |
|
The Chair |
|
Mr. Maurice Vellacott |
| ¿ | 2130 |
|
The Chair |
|
Mr. John Godfrey |
|
Mr. Warren Johnson |
|
Mr. John Godfrey |
|
Mr. Warren Johnson |
|
Mr. John Godfrey |
|
The Chair |
|
Mr. Pat Martin |
| ¿ | 2135 |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
|
The Chair |
|
Mr. Pat Martin |
| ¿ | 2140 |
|
The Chair |
|
Mr. Maurice Vellacott |
| ¿ | 2145 |
|
Mr. Warren Johnson |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
| ¿ | 2150 |
|
The Chair |
|
Mr. Pat Martin |
| ¿ | 2155 |
| À | 2200 |
|
The Chair |
|
Mr. Ken Epp |
| À | 2205 |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
| À | 2210 |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Maurice Vellacott |
|
The Chair |
|
Mr. Yvan Loubier |
|
The Chair |
|
Mr. Yvan Loubier |
|
The Chair |
|
Mr. Ken Epp |
|
The Chair |
| À | 2215 |
|
Mr. Maurice Vellacott |
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Mr. Warren Johnson |
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Mr. Andrew Beynon |
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Mr. Maurice Vellacott |
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Sylvie George |
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Sylvie George |
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Mr. Maurice Vellacott |
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Le président |
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Mr. Pat Martin |
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Mr. Charles Hubbard |
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Mr. Maurice Vellacott |
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Mr. Yvan Loubier |
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Mr. Charles Hubbard |
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Mr. Maurice Vellacott |
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Mr. Maurice Vellacott |
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Mr. Yvan Loubier |
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Mr. Maurice Vellacott |
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Mr. Yvan Loubier |
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Mr. Maurice Vellacott |
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Mr. Yvan Loubier |
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The Chair |
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Mr. Yvan Loubier |
| Á | 2305 |
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Le président |
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Mr. Yvan Loubier |
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Mr. Yvan Loubier |
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Mr. Ken Epp |
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Mr. Charles Hubbard |
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Ms. Joann Garbig (Legislative Clerk) |
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Ms. Joann Garbig |
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Mr. Pat Martin |
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Mr. Pat Martin |
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Mr. Ken Epp |
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Mr. Maurice Vellacott |
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Mr. Derek Lee |
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Mr. Pat Martin |
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Mr. Pat Martin |
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Mr. Andrew Beynon |
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Mr. Pat Martin |
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Mr. Andrew Beynon |
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Mr. Pat Martin |
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The Chair |
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Mr. Yvan Loubier |
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The Clerk of the Committee |
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Mr. Yvan Loubier |
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Mr. Yvan Loubier |
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Mr. Yvan Loubier |
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Mr. Pat Martin |
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Mr. Pat Martin |
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Mr. Yvan Loubier |
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Mr. Ken Epp |
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Mr. Pat Martin |
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Ms. Joann Garbig |
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Le président |
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Mr. Maurice Vellacott |
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Mr. Maurice Vellacott |
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Mr. Yvan Loubier |
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Ms. Joann Garbig |
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Mr. Yvan Loubier |
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Ms. Joann Garbig |
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Mr. Yvan Loubier |
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The Chair |
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Mr. Charles Hubbard |
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Mr. Andrew Beynon |
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Mr. Yvan Loubier |
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Mr. Maurice Vellacott |
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Mr. Pat Martin |
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Mr. Charles Hubbard |
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Mr. Yvan Loubier |
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Le président |
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Mr. Yvan Loubier |
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Mr. Pat Martin |
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Mr. Pat Martin |
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Mr. Pat Martin |
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Mr. Maurice Vellacott |
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Mr. Pat Martin |
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Mr. Maurice Vellacott |
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Ms. Marlene Catterall (Ottawa West—Nepean) |
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CANADA
Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources |
|
l |
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EVIDENCE
Tuesday, April 29, 2003
[Recorded by Electronic Apparatus]
Á 
(1110)
[English]
The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): Good morning, everyone, and welcome to the 65th meeting of this committee. I think the number in the House itself is somewhere around 70, and we're at 65 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 continue with NDP-20, I'd like to thank you all for the honest effort that was made to try to resolve our dilemma. It's unfortunate we couldn't accomplish that, but I commend you for making the effort.
We will now proceed to NDP-20 and Mr. Martin.
[On clause 6--Administration of government code]
Mr. Pat Martin (Winnipeg Centre, NDP): Thank you, Mr. Chair.
I, too, appreciate the honest effort that was made earlier today to try to reach some agreement to negotiate with the government at least in terms of getting past this stage of this bill. Unfortunately, at the end of the day both sides agreed that this wasn't possible, so we're faced with the prospect of proceeding with the hundreds of amendments we have yet to deal with and to do our best to influence and to shape this bill.
As I speak to my amendment, which seeks to amend clause 6 of the bill, I am reminded, and I'd like everyone on the committee to keep in mind, that this bill was sent to the committee at first reading. It's a rare thing to do; it's certainly not a frequent thing to do, when the committee is allowed to deal with a bill at first reading. In this case we were told it was done in the context of allowing greater flexibility and more opportunity for meaningful amendment of the bill. In other words, the bill is not formally established; it's not gelled or set, as it were, until such time as it reaches a second reading, and then you're dealing with a formally crafted bill.
At this stage it's still a work in progress. We were led to believe that the advantage of the committee dealing with the bill at first reading is that there would be more latitude shown and more genuine interest on the part of the government side and the minister himself to put into effect what we heard throughout the standing committee's touring of the country and the many, many presentations that were made to the standing committee.
I should remind members that during that exhaustive four-week cross-country tour, literally hundreds of individuals made representation. In fact, 89 individuals and 175 organizations appeared before the standing committee in Ottawa and across the country, and 44 individuals and 147 of those organizations were vehemently opposed to Bill C-7.
The bottom line is that they didn't all speak to specific clauses. Many did make specific reference to clause 6, which we're dealing with today. Some spoke in more general terms and simply said, Bill C-7 has no merits; Bill C-7 has no legitimacy; we object to and we resent Bill C-7; we oppose it and we advise the government to withdraw the bill. The overwhelming majority of the presenters spoke in those sorts of absolute terms.
Of those first nations, individual presenters and other members of civil society who did do a detailed analysis of every aspect of the bill and actually made recommendations about amending the bill, the overwhelming majority of those found particular fault with the concept of imposing codes of governance on independent, sovereign first nations. We were reminded over and over again that first nations have never, by treaty or by legislation, ceded or forfeited their sovereignty or their right to operate as sovereign, independent nations, and it undermines the very idea of self-governance to impose codes of governance on independent people.
The Chair: Yes, Mr. Hubbard.
Mr. Charles Hubbard (Miramichi, Lib.): I have a point of order, Mr. Chair. Just for clarification, are we dealing with this amendment? I'm listening to the honourable member and I'm not hearing about the amendment. Are we discussing the amendment?
The Chair: The intent is to discuss the amendment. For the last nine weeks we have been on this, I've had a lot of difficulty bringing the debate around to the issues on the table.
My experience has suggested this to me. The members have a maximum of 10 minutes, and I know that at the end of 10 minutes at least we stop talking about the other things when we choose not to talk to the amendment, but it takes us longer to argue over whether it's relevant or not than to allow the members to talk. That explains why time after time I allow members to deviate from the issue, and as surprising as it might seem, allowing people to deviate from the issue is a time saver in our case because this committee chooses not to talk about the issue.
So because of what we have established in the last nine weeks, I will allow Mr. Martin to continue.
Mr. Pat Martin: Thank you, Mr. Chair.
In response to the parliamentary secretary, I believe everything I've said so far has dealt specifically with the imposition of the administration of government codes, which is clause 6, the clause I seek to amend with the amendment.
If I were wandering far afield I could see that the member's criticism would be justified, but what could be more appropriate than to focus on the very clauses that speakers and witness after witness have condemned in strong and no uncertain terms? We even had witnesses present before this committee who said that it infringed on the constitutionally recognized aboriginal and treaty rights of first nations to impose codes of governance on people. Well, this is one of those codes. Clause 6 is the very clause where we deal with the three codes that we have heard representation say people resent having shoved down their throats.
So in my attempts to convince you to change clause 6, there is certainly nothing off topic in making reference to the many witnesses who spoke abundantly clearly and eloquently on the issue that they believe it will be an infringement on their constitutionally protected rights if we proceed with the imposition of these codes. We seek to amend Bill C-6 in a substantial way to take away from the irritant--the particular language in clause 6 that people find most offensive that will be the subject of court challenges.
I think we have an obligation as members of this committee to do what we can to craft legislation that won't be overturned by the courts a couple of years down the road, or that won't get future governments in trouble. We're about to have a regime change in this country. We're going to saddle the future Prime Minister and Minister of Indian Affairs with an unworkable piece of legislation. We all know that as of November the current Prime Minister will be stepping down. With him will probably go the Minister of Indian Affairs.
We will be saddled with a new Indian Act, essentially an amended Indian Act that's unworkable, that's subject to charter challenges, and that has caused unrest out there in the Indian country, the likes of which we haven't keen since Oka.
So we've stirred up the hornet's nest, created a level of unrest, and undermined any goodwill that existed between first nations and the Government of Canada, just in time to hand this whole thing over to, I presume--it's not telling any secrets out of school--Paul Martin. So Paul Martin and some new Minister of Indian Affairs are going to inherit this unworkable mess.
I'm not trying to do anybody any favours on that side, but it would be doing them a favour if we amended clause 6 now so that it wasn't so volatile, so that it wasn't so glaringly obviously an infringement on first nations rights and freedoms. The Indigenous Bar Association has told us that in their opinion the First Nations Governance Act infringes upon constitutionally recognized rights. They have legal opinions to that effect.
When we ask for the government's legal opinions that it doesn't infringe on constitutional rights we get a big fat zero. They refuse to produce those very documents. So what are we to believe? What else could any intelligent person or observer conclude but that the government does contemplate an infringement. We know from Supreme Court challenges that if the government intends to infringe, the Supreme Court has ruled there has to be justification.
We've asked for that justification from the officials from the government. Why? What is the justification? What is the national urgency that warrants infringing upon constitutionally recognized rights? It hasn't been forthcoming. We won't present it. We're asking you here today to consider amending clauses of this bill so it's not going to be the subject of being overturned by the courts in the very near future.
I've seen the court challenge the Assembly of Manitoba Chiefs intends to table the day this bill gets royal assent. It has started already. If we have 200 court challenges that are pending already on other aboriginal issues, believe me, get ready for the onslaught of other court challenges.
If we could only have access to some of the internal cabinet documents, we would know just what they were considering.
Á (1115)
I'm sure the government must be ready for or aware that there are going to be these challenges. They must be aware of what the risks are, and they must have put in place some kind of contingency plan on how they will cope with these challenges, because they will be coming and they will be coming hot and heavy.
I think the budget for it is too low. Their budget for implementing Bill C-7, forcing it onto communities who neither want it nor need it, is $110 million a year for five years. They've reserved $550 million for forcing this bill through. I think they'd better reserve another couple of hundred million dollars for the court cases alone.
Á (1120)
The Chair: Thank you.
Mr. Hubbard is next and then Monsieur Loubier.
Mr. Charles Hubbard: Thank you Mr. Chair.
I'm rather taken aback again by the honourable member's position again this morning. He has an amendment before the committee, and last night you as chair consented to cut our committee work short so the opposition could meet, clarify their proposed amendments, and bring to the table this morning the main points of focus and concern. Certainly all of us as legislators want to place before Parliament the best possible bill for report stage at the end of first reading.
The group met last night and this morning at 9 o'clock. Now we're at 11 o'clock. We lost a good part of last evening and a lot of time this morning. The tactic Mr. Martin is using again is to get an opportunity to talk, not necessarily on his amendments, which our committee would like to consider in terms of whether or not they have merit.
Mr. Pat Martin: Stay on topic.
Mr. Charles Hubbard: I'm very much on topic, Mr. Martin, much more than you were a few minutes ago.
The Chair: You are both off topic.
Mr. Charles Hubbard: The point is we have an amendment here again proposed by Mr. Martin, which he did not make any reference to in his presentation of some 10 minutes.
It's rather disappointing to us as a committee to listen to the same song, time after time, across this country for four weeks and for the past three weeks here in Parliament. It's well rehearsed. It's a song we certainly know about and are concerned about in terms of the position he's bringing before the committee and the people of this country.
I hope, Mr. Chair, you will attempt to focus us on the amendments that are before the committee. If we don't focus on those amendments we will simply take up a lot of good people's time here to really hear very little in terms of amending this legislation.
NDP amendment 20 deals with three aspects here, and in terms of what he has not presented, other than on paper, they place restrictions upon our first nations people. As a bill, we are attempting to put enabling legislation to enable first nations people to develop codes and work with their people to present a better system of government that is acceptable to all first nations members.
So I don't want to take my full 10 minutes. The purpose of what we're trying to achieve here isn't simply to consume time. But as a group here we're ready to consume time, because Bill C-7 is an important bill to many people in Canada, especially the people who live in first nations across the country.
We are prepared, as a group on this side of the table, to sit here for whatever time it takes to make sure we bring the best possible legislation back for consideration at report stage of the House.
Thank you.
The Chair: Thank you Mr. Hubbard.
Monsieur Loubier.
[Translation]
Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Mr. Chairman, I would just like to say something about our attempt of last night and this morning. It was a serious attempt. We reviewed all the amendments we're proposing. Moreover, it was so serious that I'm going to drop some of them along the way because they are amendments for which we have already had satisfactory responses, and we withdraw them.
Mr. Martin also told you exactly the same thing this morning, Mr. Hubbard, and we said to ourselves that, at every opportunity we had to do so, we would try to limit time on the amendments we were introducing. So I don't think you're expressing any good will this morning because, this morning, our minds were predisposed in a completely different way from yours.
So we're making an effort. We also tried to go further last night, but don't say that my colleague and I showed ill will when we tried and made certain commitments to the committee and you this morning.
The Chair: Mr. Loubier, I would like to say something before you begin your 10 minutes.
[English]
Both sides have commented on the negotiations, and that's acceptable. It's done now. We're not going to enter into negotiations here. Both sides have given their opinion on why it didn't succeed, and I appreciate your comments.
Now we will move on to our 10 minutes each.
[Translation]
Mr. Loubier, we'll restart the clock.
Á (1125)
Mr. Yvan Loubier: Perfect, Mr. Chairman.
I won't conceal from you that I readily support the amendment introduced by my colleague Mr. Martin of the NDP. Once gain, Mr. Martin has shown clear-sightedness and intelligence in introducing this amendment. The amendment he's introducing, from what I understand, is designed to remove the irritants that were also observed in the previous clauses, but especially in the subclauses of clause 6, which refers to an obligation, an imposition on the band councils.
The preamble states that the First Nations must be considered as nations and that we must have an agreement that looks like a new partnership with respect for treaty rights, the inherent right of self-government and so on, but that spirit or that wish of the legislator does not appear in the wording of the bill as such outside the preamble.
Mr. Martin proposed in his amendment to delete the obligation for a council to give public notice. I believe that's wise on his part because, by deleting that obligation, which is being thrown in the face of the First Nations, we're already removing an irritant with respect to what I just explained to you. In addition, and we have had occasion to see this in a number of clauses, to the extent that the wording of clauses such as that concerning the obligation for a council to give public notice, and, as we saw in other clauses as well, the obligation to invite members within a reasonable period, and so on, for people reading the bill and who are capable of thinking, that presupposes that, for the moment, as we speak, the band councils generally do not give sufficient public notice or do not send invitations to public meetings in a reasonable time or do not sufficiently inform the people or display a lack of transparency. This is a defect of form and of substance as well.
When you draft a bill and require persons, organizations or taxpayers to act in a particular way, it's because that obligation corresponds to a deficiency. That means that a problem in that respect has generally been observed.
For my part, in nine and a half years of parliamentary work here, in finance in particular, I've never seen a financial or tax bill where there was an obligation such as the one in clauses 5 and 6, without there being a prior analysis of the need for that obligation.
Why is an obligation there? Because it corresponds to a need. However, I've been talking my lungs out for two days now asking the senior officials, who are supposed to give us clear answers on the subject, whether there are any investigations or studies proving, among other things, with regard to the subject before us on lines 16 to 27 of clause 6, that it's a widespread practice for band councils not to give sufficient public notice for public and other meetings.
I didn't get an answer yesterday either when we were talking about the minimum number of meetings that should be held annually. Moreover, yesterday, we had a completely crazy debate in which some claimed that one annual public meeting was not enough, that it should be increased to four, then back to two. At one point, we would have done just as well to draw a number out of a hat in order to know what we would dictate to the First Nations.
I'm very skeptical about that. We asked that those studies be produced, but we didn't get an answer on that. I moreover doubt that those studies or investigations exist. Besides with regard to the meetings, for example, the more I speak with Aboriginal representatives about their practices, practices which are consistent with what the First Nations are, the more I realize, from meeting representatives--and we have met quite a few over the past nearly eight months--that, in most of the First Nations, the band councils have set very strict rules regarding meetings and the ability to reach each of their members to invite them to public meetings.
Á (1130)
I cited the example of Six Nations--and I was reminded of it once again yesterday--who have, I believe three public meetings a month with their members: two meetings of the general council and one general meeting on the Six Nations' public finances, so 36 public meetings a year. They send a notice within a reasonable period of time like any organization that wants to reach its members in order to have the legitimacy to take action and make decisions on behalf of its members. They send reasonable notices. They do not need to be told that the council has an obligation to give sufficient public notice. That's already being done. Why prejudge that that's not being done?
Most of the First Nations organizations we meet give us quite incredible examples of attempts to reach all their members in large territories. We saw this in the Yukon, for example, where the leaders of the Aboriginal communities went to meet each of the members, even in the most remote areas, in order to be able to consult them.
In my opinion, if there is any example to be set, it's the other way around, that is to say that we should follow the example of some of those communities, and I believe it's the majority because the sample of representatives of the First Nations who tells us that they have formal public meetings and that they don't need to be told that they are obliged to do this or that is starting to grow. This is no longer the nineteenth century. We have to come back to the present century and we also have to come back with the spirit that must guide us in a new partnership.
The Erasmus-Dussault Commission didn't tell us to continue hitting the members of the First Nations on the head, but it did say that we needed to start off again on a new basis. Moreover, allow me to cite a few lines of what the Erasmus-Dussault Commission said in its conclusion, which I think could provide us with a kind of context for redrafting clause 6:
| The direction change must take is toward freeing Aboriginal people from domination by and independence on the institutions and resources of the governments. The end of dependence is something Aboriginal and non-Aboriginal people alike profoundly desire. It would be quite unacceptable for First Nations, Inuit and Metis peoples to continue to find their autonomy restricted and constrained in the twenty-first century. |
They didn't say to limit self-government further; they said that it would be incongruous in the twenty-first century to have a situation in which we continue in the same manner in which the Indian Act was implemented over the past 130 years. The Erasmus-Dussault Commission continues on, saying:
| Yet renewal of the relationship must be done with justice and generosity. |
Tell me where's the justice and generosity when we continue to impose things on the First Nations, while acknowledging solely in the preamble, for example, that we respect their inherent right of self-government and Aboriginal treaty rights? Where's the justice and generosity in that?
This is a framework that the Erasmus-Dussault Commission has drawn for us. I continue:
| History and human decency demand restoration of fair measures of land, resources and power to Aboriginal peoples. |
On the basis of the remarks by the Minister of Indian and Northern Affairs Canada, when he said, for example, that this is renewal, that Bill C-7 is a springboard for a new start, that this is a new partnership, where in this does it talk about giving the Aboriginal peoples a fair share of lands, resources and powers? A good response to Erasmus-Dussault!
I continue:
| On those foundations, self-respect and self-reliance will grow steadily firmer in Aboriginal communities. In their absence, anger and despair will grow steadily deeper - with conflict the likely result. |
End quote.
This is what we're experiencing right now. We're not at all taking the path that Erasmus-Dussault laid out for us.
Á (1135)
I'll come back to this later, Mr. Chairman.
Le président: Thank you, Mr. Loubier.
[English]
Ms. Neville.
Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you very much, Mr. Chairman.
In listening to my colleagues opposite, I'm trying to gain some understanding of what's at play here. I hear them talk about the need for substantive change, and we all spoke to the fact that this bill is coming to committee after first reading. But when I go through this amendment word by word and I look at substantive change, I see that paragraph 6(1)(a) of the amendment will “permit affected persons to comment”. Yet what I've heard in the presentations to date is that first nations or aboriginal peoples want to be in control of their own affairs and that this is very important to them. I don't disagree, but when I see something saying “affected persons”, does it mean the whole community can comment? Is this opening it up to all non-aboriginal persons to be part of the discussion and the dialogue?
I listened carefully when the amendment was introduced and I heard no comment on that, but it would give me some considerable concern to see an amendment of this sort. I guess I would ask the administration whether the words “affected persons” in the amendment today open it up to the world, who might feel they're “affected” by something and they can comment on it?
The Chair: Mr. Beynon.
Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development): Perhaps I can answer that. If you look at the proposed amendment compared to the language in the bill now, one issue that has been raised is the question as to whether or not bands must or would have to do certain things or take certain steps. I just note that the existing language imposes an obligation, as does the new amendment, so it doesn't address that issue.
On the issue of what the degree of notice is, in paragraph 6(3)(a) of the existing legislation there is a requirement for “reasonable public notice of a proposed law”. By way of contrast, the amendment suggests “reasonable notice to band members”. So there is a difference between the two. In the existing language the public notice is the first step, which is then particularized to say “in order to enable members of the band and residents of the reserve to comment...before it is made”. The reason for that choice of language is because it's anticipated, of course, that band laws can apply to band members--but also to people who live on the reserve. In fact, band laws can apply to people travelling through a reserve or visiting a reserve, but those who are most affected would be members of the band and those who reside on a reserve. That's the rationale for the current wording.
In the proposed amendment, there is “reasonable notice to band members”, so that band members are made aware of the context of the proposed law. But then it says “and permit affected persons to comment on it”. The curiosity here is that the affected persons could be more than band members and yet they wouldn't have received notice of it.
To answer very precisely your question on what is the scope of “affected persons”, I think that band councils would have to engage in trying to consider who are the affected persons. For some laws, maybe they are just band members; for others, maybe it would extend to residents of a reserve; and maybe some other groups would be affected, such as businesses off reserve that deal with the community and some people who live in a neighbouring place who frequently come to the community. That's a question. The scope of the words “affected persons” could be quite vague.
There's a bit more precision in the existing wording.
Ms. Anita Neville: Thank you.
The Chair: Mr. Martin, closing remarks.
Mr. Pat Martin: Thank you, Mr. Chair.
My point in seeking to amend not just this administration of governance code but all of the other qualifiers about an administration of governance code made reference to in clause 6 is simply to address some of the concerns brought to our attention by witnesses throughout our cross-country tour. The language I recommend here is language that was presented to us after consultation in first nations communities among themselves. It was agreed upon by the Assembly of First Nations, B.C. This is the source of this particular amendment. They felt that the language as you see it in our amendment is preferable to the language in the current bill, the whole of which is qualified by the fact that they don't support Bill C-7, period. They don't believe the government has any right to be dictating the terms and conditions of an administration of governance code for their first nations, period.
We have to qualify all of the amendments we put through here. We're seeking to minimize the impact of the bill should it succeed. But all of our comments should be prefaced by the fact that we don't support Bill C-7. We think it should be withdrawn. We think it doesn't have any merit. In fact, we think it's going to create a degree of unrest and animosity out there in the community and that any perceived benefit on the part of the government is far outweighed by the ramifications of putting Bill C-7 forward even to its next step, back to the House of Commons.
One of the things we should be considering now is putting the brakes on this entire process and backing up and re-evaluating what we heard in the consultation process. Many people knocked themselves out to present briefs. I'm holding one here from the Big Island Lake Cree Nation in Saskatchewan. They wanted to make us aware of and to table for our consideration their Convention Act, Financial Management Act, Personnel Management Act, Education Act, Elections Act, Citizenship Act, Economic Development Act, Wildlife Management and Environmental Protection Act, and Cree Language Act, all of which make up the laws they have developed in their own way and with sensitivity to their own customs and traditions, without any kind of qualifiers imposed on them by the FNGA. They're not the only ones. Many other first nations and witnesses from across the country tabled similar documents, which we should have taken guidance from, instead of filing for information in some big warehouse somewhere.
I would have hoped that members around the table would have had time to digest all the input we had from presenters around the country and perhaps used that input to craft this bill. That was the promise made. That was the tacit agreement under which we went forward as a committee. We were all apprehensive about what shape this bill would take. The minister, to address these concerns, said, you can have the bill at first reading. Go out there and canvass the countryside and find out what people are thinking, and then come back and tell us what we need to do to improve the Indian Act. This is exactly the understanding. This is what I heard the minister say when he initiated this entire process.
The fact is that even the consultation process failed in that they went to first nations communities with the proposed bill and said, here's what has been done. What do you think of it? It's a far cry between that and asking, what would you like done? I think anybody should be able to see the difference. Now we're stuck with the bill, flawed as it is, and we sense no willingness whatsoever to make serious and meaningful amendments to the bill based on what we heard.
I think the wisest thing we could do would be to suspend these committee hearings immediately and go back and digest some of this information and look at some of the best practices around the country. This is one. There are many others. Then hold them up as an example and say here is a best practice example for you smaller communities that may be having administrative difficulties or would seek to change your administrative codes, your governance codes. Here are some models, some examples, you may wish to incorporate in your own community.
Á (1140)
That would be a progressive, enabling measure. That would be helpful instead of imposing. That would be something I would be proud to fully participate in.
I'll remind committee members, as I've been told, that some of the members of the current committee took part in a similar exercise prior to 1997, when the government changed at the end of that Parliament. It was working on proposals along just that vein. They would develop these proposals and then present them as options to smaller communities that might wish to avail themselves of that assistance or guidance.
But this is sort of the inverse. This is a completely different tone. I don't know what happened in the interim, over the past five years, to change the government's mind in terms of their approach to what they're still calling “enabling measures”, but it's dramatically different.
Now, administration of government codes, if properly crafted, have to take into consideration the diversity of aboriginal communities, never mind of 53 different language groups. The Cree of Big Island Lake, which I made an example of.... The Coast Salish people have a completely different social and political system from the Plains Cree. The Swampy Cree have a different system from the Plains Cree.
So how do we have the right to impede the evolution or the development of first nations ability to develop their own codes of governance by imposing these lists?
The last four items we've dealt with in clause 6 say an administration of government code “must include”, ad infinitum for a page and a half, dictating the minutia, even up to and including the way meetings are announced in public or the number of meetings per year. My colleague from the Bloc said soon they'll be down to dictating the type of cookies that will be provided at the meeting, or the number of cookies per person who attends.
It borders on the ridiculous, this paternalistic approach that somebody's hand needs to be held to show them how to call a public meeting or to determine who is an affected person versus a resident of the reserve. The language chosen--affected person versus a resident of the reserve--was quite deliberate. There may be people who are affected by the decision, whether they be cottage owners, leaseholders, residents of the reserve, or non-residents of the reserve. Leave it up to someone else to decide who will be given leave to participate in the development of band laws or comment on them. Don't outline and dictate it in specific prescriptive terms in the bill. It's not our job. We have no right to prescribe exactly in the bill.
The Indian Act imposed a system of wardship on first nations, and the FNGA is nothing more than an extension, a modern form, of that wardship. In fact, the wardship element is being compounded instead of diminished. The promise was that the FNGA would loosen the iron grip the minister has on first nations. Instead, it's compounding it. It's exacerbating it. It's making it worse. And it's accentuating, actually expanding, the discretionary authority of the minister instead of reducing the authority of the minister. It's going 180 degrees in the wrong direction.
I think the national chief of the Assembly of First Nations said it best yesterday, when he said “You cannot modify colonialism”. And this is what the attempt is here. Instead of dismantling colonialism, we're trying to put a modern spin on it. It's offensive, and I don't want to be a part of it, personally. If I had my druthers I wouldn't be around this table, wasting my days and nights trying to modernize colonialism or being forced into the position of trying to minimize the impact of those who would modernize colonialism. I'm offended that my time is being wasted being associated with an enterprise like that.
Look at examples around the country. If we were sensible about trying to develop codes of governance that work for first nations, why didn't we look around the country at what's being done and at the successful models?
Á (1145)
The Chair: Thank you, Mr. Martin.
Mr. Pat Martin: Why couldn't we look at the longhouse people or the Iroquois Confederacy?
The Chair: Thank you.
We'll go directly to the vote.
Á (1150)
Mr. Pat Martin: I'd like a recorded vote.
The Chair: We'll have a recorded vote on amendment NDP-20.
(Amendment negatived: nays 6; yeas 2)
The Chair: Now, before we go to government amendment 1.1, I have a request to make of my colleagues on the committee. On behalf of the people in attendance, especially yesterday, what we do here is address an amendment; we don't introduce what the amendment is, because we're not speaking to the issue most of the time. So the people wonder what we're talking about, and after we vote, they're still wondering what we're voting on. I think it would be a courtesy to everyone in the room--and when we're televised, for people at home--that the mover of the amendment at least at the beginning tell us something about what the amendment is and what it will do. So when we deviate from the issue, everybody will know we're not talking about the amendment, but more importantly, when we vote, the people in attendance will know what we're voting on.
At this point, it must be very frustrating to be attending these meetings not knowing what we're talking about and then not knowing what we're voting on. We have the book before us, so we know what the amendment is. As a courtesy, colleagues, I would hope the mover of an amendment would at least tell the people what we're talking about. I chose this time because it's a government amendment, and I hope this practice will start now, putting a lot of pressure on Mr. Hubbard.
Mr. Hubbard.
Mr. Charles Hubbard: Thanks for your notice, Mr. Chair. Under the--
Mr. Pat Martin: I don't believe we have a quorum.
The Chair: We'll have a quorum call.
We'll adjourn for a maximum of 15 minutes.
Á (1152)
 (1204)
 (1205)
The Chair: We are now on government amendment 1.1.
Mr. Hubbard.
Mr. Charles Hubbard: Thank you, Mr. Chair.
Getting back to the amendment proposed here, G-1.1 and subclause 6(3) on line 19, it's quite normal in terms of most government operations that if certain abilities are given to other groups to make laws or codes dealing with their particular aspect of government, it must be approved by the population of that group. That's really what we're saying here. Perhaps Mr. Beynon could explain further, but it's only a normal part of most government operations where certain groups work within that government.
Mr. Andrew Beynon: I may ask my colleague Mr. Salembier to provide additional detail, but broadly speaking, what this proposed amendment would do would be to add into subclause 6(3) a requirement that rules respecting the development of laws include provisions regarding the delegation by the band council of its law-making powers.
Mr. Pat Martin: Mr. Chairman, I request a quorum call.
The Chair: We have a quorum call. The meeting is suspended.
 (1205)
 (1209)
 (1210)
The Chair: We have regained quorum.
Mr. Beynon.
Mr. Andrew Beynon: Again, subclause 6(3) is a provision that deals with how administration of government codes must have rules regarding the making of band laws. It allows community members as a whole to provide or to set the rules for how band councils go about making laws.
The proposed amendment would provide for inclusion within that of rules on the delegation by the council of its law-making powers. So essentially what this amendment would do is to make it clear that through codes the community members can themselves set up rules for how the band council will go about delegating its law-making powers.
I think it's noteworthy that this suggested amendment is actually in response to a number of groups across the country who have indicated a concern that as Bill C-7 is drafted now, there is a law-making power that allows band councils to delegate, but there's nothing that, expressly at least, makes it clear that band councils have to take the views of the band membership in respect of that.
By making this amendment, again, it would make it clear that one function of the code is to allow the community members, who vote on the codes, to set rules if they want in respect of how band councils would go about delegation.
The Chair: Mr. Hubbard, the floor is yours.
Mr. Charles Hubbard: I think it's quite clear and ready for the vote.
The Chair: Are we ready for the question?
Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair.
With respect to this particular amendment introduced by the government, I take Mr. Beynon's point that was raised by a number of witnesses who made reference to it. I don't have that information as to exactly which ones. I'd be interested in knowing which presentations it came from, and I'll give time in my 10 minutes to ask Mr. Beynon to clarify that.
The concern that's been raised with us about this particular aspect is that it essentially orders and directs council to contemplate the delegation of authority and powers. First of all, it implies that without the specific language in there, they don't currently have that authority. In other words, it's the empty box vision of what their powers are currently, that until that box is filled with permission or authorization by way of this act, it can't happen currently, whereas we all know it is the practice currently in many cases.
It also opens up some of the concerns that have been brought to our attention, ones I'd ask you to consider. It also brings up the possibility that it could even have the effect of expanding and enhancing the minister's authority again because of powers delegated or surrendered to the minister or a delegate chosen by the minister, etc. We're concerned that any reference to or development of this idea may in fact fail to recognize existing rights, strengths, authorities, and powers that are exercised currently by band council. We're concerned about any kind of scenario or situation that may lead to expanding the discretionary authority of the minister when the whole purpose of this exercise was to reduce and diminish that authority.
We don't accept on the face of it that it's a benign step or that it's just an administrative detail. We think that nothing is introduced in this bill accidentally, and we think it could in fact have a broader effect than what we may see on the face of it.
Also, the point being made, again, is that council's powers shouldn't be limited to what is included in the written rules. The written rules may be a statement of intention that would be of value to band members who want to know what course of action their council might be taking, but it's not as though their right to exercise that particular practice doesn't exist until some rule is put in some act to allow it. It's the whole concept, the very notion, that the box is empty until we fill it up with things they are permitted or not permitted to do.
So just for further clarification, in deference to what the chair was saying to keep people who may be following this abreast, the effect would be this. Currently the proposed bill, Bill C-7, reads “An administration of government code must include rules respecting the development, making and registration of band laws made under this Act and, in particular,” it must include rules “requiring reasonable public notice of a proposed law in order to enable members of the band and residents of the reserve to comment on it before it is made”. It must include rules “prescribing the procedure for the making of band laws by the council”.
You will notice, Mr. Chair, the reason I'm reading this is that the language is very strong: it “must” include rules “respecting the maintenance of the band registry required in subsection 30(1).” There are a lot of musts, and that language is not accidental either. There have been whole books written on the difference between may and shall or will and must. These words have legal meaning, they have legal weight, so the whole tone of this particular clause is already very heavy-handed. Now, with the change being proposed by the government, that first clause would now read:
| An administration of government code must include rules respecting the development, making and registration of band laws made under this Act and the delegation by the council of its law-making powers and, in particular, rules |
 (1215)
This clause that the government is seeking to amend now, subclause 6(3), makes reference to and ties into clause 30, which I had flagged here before for that very reason. Under clause 30, it also outlines in very specific, minute detail that:
| A band shall maintain at its principal administrative office a band registry containing its codes and all laws made by its council under this Act to which all persons have reasonable access during normal business hours. |
Talk about prescriptive; talk about specific. They even dictate what hours of the day the stuff will be available to all band members. I don't think anybody has any objection to these things being made available to band members. In fact, the practice across the country, as we've seen, is that all of these things are developed in a very professional way and are made accessible to band members.
We're not only suggesting and agreeing that this should be the practice, we're even prescribing where a band registry of all the codes and laws will be held and at what times of the day they'll be made available. And I have a package of all the codes and laws right here, made by the Big Island Lake Cree Nation.
We're getting down to the level of ridiculousness that my colleague, Mr. Loubier, pointed out, of providing milk and cookies at the public meetings. Well, perhaps we should specify what type of lock should be on the door when the building is closed, or how many steps lead up to the front door of the building where the laws will be enshrined.
I object to the tone of the bill as much as I object to the content of the bill. It is prescriptive to the point of being ridiculous.
Again, one of the commitments that was made to us was that this wouldn't be a prescriptive bill, it would be an enabling bill. Well, the facts don't bear that out. In fact, we're seeing now an effort made again to even extend the “must” aspect and the rules aspect to include that the band council must include rules regarding the delegation by the council of its law-making powers. Should band and council choose to delegate their law-making powers, there's nothing stopping them from doing so currently. I have a hard time thinking of examples where that delegating by the council of its law-making powers might be desirable. I can see having the council's law-making powers superceded by the minister. If it's the concept they're trying to introduce here, then that would be a serious problem. We would be opposed to anything that would augment or exacerbate a minister having absolute power currently.
So we're concerned when we see amendments to this particular clause. Instead of amendments dealing with the whole concept of administration of government codes must include rules respecting, etc... and then where we see the amendments that we were promised here.... We were led to believe that amendments would be coming forward by government, again, based on what they heard.
Perhaps that brings me full circle to asking Mr. Beynon this. What groups were calling for this and which presentations made reference specifically to this?
 (1220)
The Chair: That is not a fair question for the resource people.
If you want to address it, fine, but I think we would be better to ask you about the differences. If you want to touch it, it's up to you.
Mr. Andrew Beynon: I'I'll ask Mr. Johnson to take it.
Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): Where we have that information, Mr. Chairman, yes, the Indian Act does not have delegation authorities provided in it for first nations. And the committee will find, at a later stage in viewing clause 18, that Bill C-7 does provide for that as a result of the consultations.
That came from three kinds of perspectives. One was the smaller communities that wanted to ensure that they would be able to group together, to gain efficiencies in terms of various kinds of governance functions they might want to undertake. The second were specific concerns with respect to program and service delivery issues, where things might be better done in a group rather than at the band level. For example, they might want to undertake the establishment of regional housing authorities or other kinds of activities. And the third was a specific reference from those first nations that they wanted to be able to use...in Bill C-7 as an interim step in their self-government negotiations. If they could delegate functions immediately, they could continue with the nation building at the tribal or treaty level that they were undertaking through their self-government negotiations. So this would help enable that.
That's the general delegation function.
The specific concerns that prompted this amendment were raised, in general terms, by Wendy Lockhart Lundberg from the First Nations Accountability Coalition of Manitoba, and the Maritime Aboriginal Peoples Council. They worried that where there were band authorities like that, they needed to be counterbalanced, wherever possible, and we needed to look at that in terms of the empowerment of the individuals to understand what was going on and to have input into what was going on.
In this specific area, that was raised by the Opaskwayak Cree First Nation and the Kinbasket Tribal Council, as well as the National Aboriginal Women's Association. They were specifically worried that while delegation of functions was fine, and we had a general delegation authority in clause 18, the delegation of law-making itself was something special within that realm; therefore they made specific references to that.
The response here is then to have that dealt with in the government's code, to provide individual band members an opportunity to consider whether there should be any special procedures in place within their community with respect to how the chief and council exercise the delegation authority when it involves the basic authority of law-making itself.
So it's in direct response to that.
The Chair: Thank you. Your time is up.
Before we go on to Mr. Godfrey and then to Monsieur Loubier, there is food. Members and our witnesses, the translators and the support staff can serve themselves first, and then anyone else. We're not going to break for lunch, so help yourselves.
Now, Mr. Godfrey.
Mr. John Godfrey (Don Valley West, Lib.): Thanks, Mr. Johnson, for that explanation. I want to make sure that in general terms I understand this. Most of the examples you gave, as I heard them, would have been what I would call the delegation of authority upwards to a larger unit for purposes of efficiency and so on.
I'm trying to imagine, and perhaps I missed something in the presentation, if there is any way in which this also could apply to delegation down to a subunit of some sort of authority less than, smaller than...?
Mr. Warren Johnson: Yes, you'll see there are various sections in clause 18 that deal with that delegation issue. There's the establishment of joint bodies, the delegation up and the delegation down, if you will.
And the committee will want to look at that issue with respect to clause 18.
 (1225)
Mr. John Godfrey: Thank you.
 (1230)
The Chair: Mr. Loubier.
Mr. Yvan Loubier: Perfect, Mr. Chairman.
I won't conceal from you that I readily support the amendment introduced by my colleague Mr. Martin of the NDP. Once gain, Mr. Martin has shown clear-sightedness and intelligence in introducing this amendment. The amendment he's introducing, from what I understand, is designed to remove the irritants that were also observed in the previous clauses, but especially in the subclauses of clause 6, which refers to an obligation, an imposition on the band councils.
The preamble states that the First Nations must be considered as nations and that we must have an agreement that looks like a new partnership with respect for treaty rights, the inherent right of self-government and so on, but that spirit or that wish of the legislator does not appear in the wording of the bill as such outside the preamble.
Mr. Martin proposed in his amendment to delete the obligation for a council to give public notice. I believe that's wise on his part because, by deleting that obligation, which is being thrown in the face of the First Nations, we're already removing an irritant with respect to what I just explained to you. In addition, and we have had occasion to see this in a number of clauses, to the extent that the wording of clauses such as that concerning the obligation for a council to give public notice, and, as we saw in other clauses as well, the obligation to invite members within a reasonable period, and so on, for people reading the bill and who are capable of thinking, that presupposes that, for the moment, as we speak, the band councils generally do not give sufficient public notice or do not send invitations to public meetings in a reasonable time or do not sufficiently inform the people or display a lack of transparency. This is a defect of form and of substance as well.
When you draft a bill and require persons, organizations or taxpayers to act in a particular way, it's because that obligation corresponds to a deficiency. That means that a problem in that respect has generally been observed.
Pour ma part, en neuf ans et demi de parlementarisme ici et aux finances en particulier, je n'ai jamais vu un projet de loi de nature financière ou fiscale où il y avait une obligation comme celle qu'on peut retrouver dans les articles 5 et 6, sans qu'il y ait eu au préalable une analyse des besoins de cette obligation.
Why is an obligation there? Because it corresponds to a need. However, I've been talking my lungs out for two days now asking the senior officials, who are supposed to give us clear answers on the subject, whether there are any investigations or studies proving, among other things, with regard to the subject before us on lines 16 to 27 of clause 6, that it's a widespread practice for band councils not to give sufficient public notice for public and other meetings. I didn't get an answer yesterday either when we were talking about the minimum number of meetings that should be held annually.
Moreover, yesterday, we had a completely crazy debate in which some claimed that one annual public meeting was not enough, that it should be increased to four, then back to two. At one point, we would have done just as well to draw a number out of a hat in order to know what we would dictate to the First Nations.
I'm very skeptical about that. We asked that those studies be produced, but we didn't get an answer on that. I moreover doubt that those studies or investigations exist. Besides with regard to the meetings, for example, the more I speak with Aboriginal representatives about their practices, practices which are consistent with what the First Nations are, the more I realize, from meeting representatives—and we have met quite a few over the past nearly eight months—that, in most of the First Nations, the band councils have set very strict rules regarding meetings and the ability to reach each of their members to invite them to public meetings.
 (1235)
[Translation]
Le président: Thank you, Mr. Loubier.
[English]
Mr. Hubbard, closing remarks.
Mr. Charles Hubbard: Mr. Chair, I'm surprised at the amount of confusion. We had asked our experts here, in terms of legislation, to comment on this when we started, and I think it's quite a normal way by which most governments and democracies around the world operate in terms of enabling people to make decisions and to authorize people who work for them and are associated with them to make certain rules and regulations.
Maybe we'll ask Paul, again, to go back over this. Mr. Loubier has tried to confuse the issue, and I think it's a pretty straightforward type of amendment here. It's not different from most other ways governments work.
Paul, would you comment again on what this really means in terms of...?
Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): Sure. As Andrew explained, clause 18 of the bill already confers a power on councils of the first nation to delegate their powers. What we're doing here, in the sections relating to administration of governance codes, is providing that those codes will include provisions relating to how such a delegation will be exercised.
Given that their council is exercising law-making powers, if they are going to choose to give those law-making powers to someone else, I think it's only normal that the membership of the community have some say in how they want those powers to be delegated.
Since the administration of governance code is something like a quasi-constitutional document for the band, all we're doing is providing for provisions in that document that will govern the way in which the council delegates its law-making powers to other parties.
The Chair: Mr. Hubbard.
Mr. Charles Hubbard: Are we ready for the vote then, Mr. Chair?
The Chair: Are we ready for the question? Did I hear a recorded vote? On G-1.1.
(Motion agreed to: yeas 7; nays 2)
The Chair: BQ-22 has been withdrawn.
We are on page 67, CA-15.
Mr. Vellacott.
Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): I move CA-15. This one is, again, an attempt to have a fairly basic aspect of good governance entered into the bill itself, a quorum, so that in fact there would be a specification of quorum within the different codes they write, a specification of the number required to be present at a meeting of the council in order for the council to make a band law.
Again, it's not being specific as to what that would be. I know the other day it was mentioned that quorum could even be one. I suppose theoretically that's true, but if we understand correctly, there's something of a more consensual model among first nations, at least historically and practised by many across the country. I would think that would be a higher number and possibly even higher than what's used in more of our western European situations. My point there is simply, again, that there should be this quorum.
One thing I was noting and I was going to ask our witnesses, Mr. Johnson or Mr. Salembier, about is that as I look at the clause before us here, clause 6, and particularly subclause 6(3) here around the area of line 25, what would happen if you have a band not setting anything like quorum? Is it a possibility that they would not set quorum?
Mr. Paul Salembier: The administration of government code requires that a council make rules regarding the making of their laws. Therefore, one would assume that a natural rule would be the assent of how many members will be required in order to make a law. So one would contemplate that this would be an essential part of virtually any administration of governance code.
Your amendment, however, contemplates that there must be a meeting and that would therefore preclude councils from putting in place a procedure, say in certain circumstances, where a law might be made by the written consent of a certain number of councillors, even though they haven't been convened at a meeting.
 (1240)
Mr. Maurice Vellacott: That's an interesting thought. So you're saying law is being made, no meeting having even occurred. Is that what I just heard you say?
Mr. Paul Salembier: A council could provide for a procedure whereby, for example, a resolution is hand delivered from councillor to councillor, and a certain minimum number of councillors having approved it, it could become law. It's the same way a corporation can pass bylaws without actually having to have a meeting of the board of directors.
Mr. Maurice Vellacott: Yes, theoretically, I understand.
The Chair: Mr. Vellacott, that is why I had problems accepting this amendment, and I did, but I find it difficult to say we require that a quorum be present when we didn't include in the bill that a quorum is needed. I have problems with that, but I let it go anyway. We're demanding that a quorum be present, and when we were asked to deal with the issue that we establish a quorum, we said no. So we don't have a quorum in existence, and in this amendment we're asking that it be present.
So my position was not to accept this. Others, who have more experience than me, say that I should, and I did. But it's pretty hard to ask that they be present when they're not required to exist.
But I leave it with you, Mr. Vellacott. We'll vote on it.
Mr. Maurice Vellacott: I'm really struggling now with the fact that when we try to make a first nations governance like unto corporate law, where laws are passed and there's not even a meeting that's occurred, this is moving off into new territory, at least in terms of public governance, I would suggest.
I don't know what other comparable bodies--federal, provincial, municipal--would be making “laws” without having had meetings and just doing that by way of some... Is this a possibility? Does this happen in countries? Does it happen in provinces, municipalities, where they're having laws passed with no meeting having occurred?
Mr. Paul Salembier: Yes, it's certainly possible. It's possible to have laws that are made by a single person in many countries, and therefore there's obviously no meeting that is convened if the law is being made by a single person.
Mr. Maurice Vellacott: What types of government? Are you talking dictatorship? Is that what we're talking about?
Mr. Paul Salembier: I think if you had an autocracy, then you would have laws made by a single person.
Mr. Maurice Vellacott: But surely we're not wanting to draw parallels. I understand theoretically in terms of all the...but we certainly don't want to draw a comparison, Paul, to--
Mr. Paul Salembier: I didn't mean to. I was just responding to your question. You asked if there were any countries in which laws were made at other than meetings.
Mr. Maurice Vellacott: Yes, but in terms of where there are “deemed to be good governments”, reasonable democratic forums, I don't think we ever have such a situation, so I'm a little appalled and taken aback at that, actually. I know in the abstract, in the theoretical, that might be very well possible, but I--
Mr. Paul Salembier: I think the point would be that this would restrict a council from deciding it wants to operate in that fashion. I can't give you a survey of the law-making practices of all of even the Canadian jurisdictions, but you might want to ask, for example, whether any orders of the governor in council might ever be made by written consent, as opposed to requiring the convening of a meeting of the council, of the cabinet, under any number of governments.
Mr. Maurice Vellacott: This is troubling to say the least.
I know I have served on some boards in my lifetime, a few, and we even got to the point, at least on one of the boards I serve on, where in fact we've decided now that maybe in emergency situations we could come up with decisions via conference calls.
But the scenario we had once was the individual, the chair of the particular board, would phone individual members asking them for their input on a particular given issue. Then he was doing the polling, if you will, in terms of the issue and then the approval based on that. We found out pretty quickly that one can paint an issue and hear what one wants in terms of the response on the other end of the phone. This is not a good scene, so we kiboshed that. We said no more of that stuff, because it's too easy for one to convey it as they want. You don't hear the interaction, the wisdom, the input of all the others around if you were at a table, a face-to-face meeting.
So I find it rather distressing, if I understand correctly, that there is every possibility that we could have first nations communities--and I would hope that their own better judgment and sense would prevail on this, but am I understanding you to say that we could very well have one individual making law, no meeting having occurred, based on the draftiness of the legislation we have here?
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Mr. Paul Salembier: Yes. As I say, in this respect it would be no different from Canadian law. For example, if you look in statutes, there are a number of cases in which ministers can make regulations. There's no meeting required since it's a single person who has law-making power under a variety of Canadian statutes.
Although a council might decide for its own purposes that they do not want to proceed in that fashion, doing so in certain cases wouldn't be unprecedented at all since it's part of the governing regime of Canada to do the same thing.
Mr. Maurice Vellacott: In fairness, Paul, is that not a little different when we're talking regulations? I know that sometimes the devil is in the details, and it's every bit as problematic, but that's regulation based on law or legislation. Maybe you're giving them one and the same status here at this point.
Are we not talking here of setting the law? Then of course maybe you have a procedural way of putting it together from there in terms of regulations.
Mr. Warren Johnson: I think the answer to the question is no. This is not a power in this section of the chief and council. This is a power of the community in establishing a code. What this says is that the community, with respect to law-making, will consider how law-making will be done. That's why, in terms of the chair's previous reference, there was a discussion earlier on this point of whether you needed to reference quorum or not without defining it, because we would take it to be implied in here. That's one of the things that would have to be done in deciding how decisions were being made.
The law that governs law-making is the code. If a community sees a regulatory, to continue that theoretical example...that there are some responsibilities that wouldn't require convening the whole of the council. There might be a committee relating to housing issues involving one or two of the members who might have authority with respect to certain regulatory activities on housing for the community. This is the law that would provide that authority. It's not all in the same place. The code is the law that governs how the law-making function will be conducted. It's the code that the community members will consider.
You have another section, which we've already made reference to, about how law-making itself would happen in terms of notice, etc.
The Chair: Does anyone else wish to comment?
Mr. Martin.
Mr. Pat Martin: I'd like to explore this a little further myself. I don't know if Mr. Vellacott intended what the interpretation has been regarding adding the reference to a quorum of members of council. It does worry me that by adding that language you're introducing a requirement as to a certain type of meeting taking place. That's the reservation I have, that it further micromanages the structure of committee meetings or the structure of the decision-making process there.
It fails to take into account the idea that, for instance, a lot of what is done in first nations communities uses the format of resolutions, which I see quite often. I have examples of them, where they'll begin with a “whereas” and a series of “whereases”, much like my own political party, for instance, would use at a convention, or a resolution would be introduced with a series of “whereases” and then a conclusion, and then a list of the people who signed on to this resolution. A resolution like that could be circulated throughout a community to a number of band councillors until a majority was achieved, without ever convening into a room with a quorum.
Maybe the impact of this would be softened if we consider that if we did want to make reference to this type of thing in the bill, a majority of the members of council must take part in the process. I accept the input from the technical advisers that we would be then holding a first nations community to a higher standard than we ourselves are held to, in a sense, because we do know that a minister, by order in council or whatever, can actually conduct quite a lot of business without any consultation with anybody. I suppose the check and balance that's in place is that anyone operating in an autocratic fashion to much of an extreme will be punished in the next election. That would be the built-in check and balance that has to exist.
So often in the debates we're having, though, I get the feeling that we're sometimes confusing the two concepts of “governance” and “government”. The term “governance” seems to get bandied around to such a degree that I wish I could even ask members across to share some of their views on this subject. It's really only in the last few years that we've been embracing the term “governance”, or it has come into common usage. I'm concerned that even around this table, as we explore amendments, we are sometimes deviating from, or in our minds we have a different view of, what governance really is when we explore all these elements. It's a term that's often used really very lightly. It has gone from obscurity. I mean, 10 years ago, how often did you hear the term “governance” bandied around?
So there are different views. There's a tendency to use “governance” as a synonym for the word “government”. I just have a feeling that--
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The Chair: Mr. Martin, you suggested that you might want to ask.... We have an expert on the government side on the issue you're asking about--Mr. Lee. If you want to share your time, I'm sure it could be very helpful.
Mr. Pat Martin: I was looking at Mr. Godfrey as I was saying these things, as I know he has only recently....
I know we have a number of experts on this subject. I'm just wondering if that isn't worth us exploring for future use, if we address this, because we're all going to be using these terms interchangeably in the coming weeks and months as we deal with this bill.
“Governance” and “government” are two different things. Even the word “government”...it's only in recent times or recent history that we view government as an institution instead of a process. What we're dealing with here, I think, with even the amendment put forward by Mr. Vellacott, is looking at government institutions, but we're really talking about the process of how we govern and what we address.
I'd ask the chair, who in this group do you think I might address a question to?
The Chair: With my faith in my colleagues, you can pick any one of my colleagues on the Liberal side. They're all brilliant.
We have two individuals who have done a lot of work and study on that, Mr. Godfrey and Mr. Lee--if they wish to participate, but it will be on your time.
Mr. Pat Martin: Well, that's less attractive to me, as interested as I am in Mr. Godfrey's and Mr. Lee's views on the issue.
I guess I would be interested in posing a question. I'll ask Mr. Godfrey, has that been flagged as problematic, in your view, and do you think it warrants us maybe getting some clear definitions down in the interests of better debate as this issue moves forward?
Mr. John Godfrey: I'm very flattered by the thought that I have some special competence in this field, but I would of course defer to Mr. Lee.
The Chair: I will forewarn both of you that no matter what you answer, you should be ruled out of order, because this refers to quorum.
Mr. John Godfrey: Right. I wouldn't want that to happen.
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Mr. Pat Martin: I was asking Mr. Godfrey because he had recently taken part in this two-day conference on governance issues put on by the Institute on Governance. I wasn't aware of Mr. Lee's background.
Mr. Lee, do you see that as a barrier or obstacle, if we're not using the terminology correctly as we try to explore some of these concepts?
Mr. Derek Lee (Scarborough—Rouge River, Lib.): I would only grace the record with an acknowledgment that perhaps those issues of definition and precision and democracy will always be with us no matter what we do in this bill.
We have witnesses from the department here who I'm sure have poured through the intellectual underpinnings of our Canadian democracy and where the issues percolate to the surface in a statute. I know they're quite capable of providing vending-machine, quick-and-ready answers.
The Chair: Mr. Lee, you may continue. He has two and a half minutes left.
Mr. Pat Martin: I guess I'm interested in exploring, with anybody sharing their views, the concept of governance as being separate and distinct from government, that “government” is an institution and “governance” is the way we conduct ourselves.
The reason I think it's relevant is because in some of the criticism we've been making, this bill gets very prescriptive and seeks to build an institution of government on behalf of people who are more interested in governance and have been operating under codes of governance in formal and informal ways for thousands of years. Part of the philosophical difference we're having, I think, is that maybe we're just not embracing these two concepts as separate in the details associated with Mr. Vellacott, or specifically referring to his amendment, calling for this specific structural requirement in order to conduct business is really putting forward part of the institution of government. I argue that it's none of our business and not our concern to be so seized with the minutiae and the details of what that structure looks like. The outcomes are more important than the building up of the institution.
So I am not going to support this particular amendment, and I don't think we should for that reason, but I'm again interested in exploring it if that idea has any resonance with anyone else.
We have to appreciate that in public issues, its interests are not confined to government. There are other elements and other actors who have a role, who play a role in other influences than the structure and institution of government and how governance takes place. We're governed by other influences, such as religion.
In the case of first nations communities, it's often a spiritualism. At some point I'd like to share with you the preamble to the constitution of the Big Island Lake Cree Nation.
The Chair: Thank you, Mr. Martin.
To help answer your question, our researcher, in our initial briefing book binder, has a paper exactly on that, governance and government. There are references on that here.
Does anyone else wish to comment?
Therefore, Mr. Vellacott, please give your closing remarks.
Mr. Maurice Vellacott: I guess I again need to go back to Mr. Johnson and Mr. Salembier.
I'm pretty sure I understand what's being talked about here. This is an overall governance, or administration of a government, code in which I'm requesting in my amendment that there be this requirement of quorum. They'll set it as they want, because there is this second level under it.
So am I misunderstanding something? I understand that this is about the administration of the government code, making rules respecting these different things, including a rule with respect to quorum, which is my intent. Is there something I'm missing here?
Mr. Paul Salembier: Yes. I think our view would be that, perhaps as a by-product of what you intended to achieve, it places a restriction on a band in establishing the means by which its council will make laws for the band. As a by-product, or inadvertently, it seems to require that there be a meeting of a council before a law can be made. Of course, as we saw in the last amendment the committee considered, a council can in fact delegate its law-making powers to another body. Of course, if it does so, then there will be no meeting of council when that law is made. So proceeding with this sort of language would be inconsistent with the concept of the band having power to delegate law-making functions to another person or body.
· (1300)
Mr. Maurice Vellacott: How does that work in terms of their handing off their authority? Give me an example.
I'm not saying that it's going to be the same quorum for every committee, or whatever is being set up, but I am just suggesting that they put in place a quorum. I'm not suggesting what that number would be. For this group it might be 25%, or for another group it might be a different amount or a different fixed number, and so on. I'm allowing for the fact that there are going to be all of these different committees, task forces, or whatever they have.
Ultimately, does it not come back to the band council, in that the council will be handing off its authority to somebody else to make the laws? How would this work, or who would they hand it off to?
Mr. Warren Johnson: If I could provide some examples, they could hand it off to a regional housing authority, a regional educational authority, a regional social service agency, a regional child and welfare agency, or a regional redress mechanism--albeit you were speaking of law-making specifically, and redress mechanisms obviously don't make laws. But it could be to any one of those institutions, if the community felt it to be appropriate. Or it could be communities, because they'd each have to, and their codes, to have enabled their chief and council to do that.
For example, in providing for specific aspects of law-making in here, they may view it as more of a regulatory function than as a law-making function. We don't make that distinction with respect to first nations law-making. Landlord-tenancy rules may be delegated, for example, and other rules that may be important in the conduct of a housing program. You could establish a regional housing authority in a tribal or a treaty area, or whatever were the wishes of those first nations. And some of the specific functions under this act and chief and council could also be delegated, including law-making to that authority.
But it would mean that in exercising its authorities, the new authority might be making decisions that might be viewed as law-making in the context of Bill C-7. That law-making would be occurring without the meeting of the chief and council, because they delegated that authority to a regional housing authority, or to any of the examples I've provided.
Mr. Maurice Vellacott: Maybe therein lies the big difference, because I guess you're telling me that you don't make a differentiation in any of this between law and the regulations of that law. I think that's what I heard you say, and I guess I was assuming that there was definitely a difference. The ultimate and eventual oversight of it would still come back to the council, which they can overturn at a point. But this is just not the case here.
You've actually got bodies out there, such as social and educational agencies, and so on, who are actually making the “law”. You call it the law.
Andrew.
Mr. Andrew Beynon: Perhaps I can respond to that. There could be bodies like child and family service agencies, and so on, who undertake some activities with the full knowledge of a band council--not necessarily by delegating any law-making authority whatsoever, because they could do it contractually. It's a question for each band council. There is no obligation to delegate any of its law-making authorities whatsoever. If it wants to, it can; if it doesn't want to, it doesn't have to.
But if it chooses to delegate, then the first question is going to be, what has it delegated? It can perhaps deal with the whole subject of child and family services, or just some very narrow aspect. If it chooses to delegate a law-making authority, then a year later or five years later, or whenever they want, they can revoke the delegation. That's how a band council would control the issue, by deciding whether or not to delegate, and if so, for how long to delegate, and whether to revoke the delegation at any time.
If they do delegate and say, “This is the particular subject matter over which somebody else can make laws”, then it is a delegation. It means that body makes those laws and does it by itself. They don't need to say, “We as a delegate are proposing that the law be of this type, and we'll go back and check with the band council and see if they will approve it”. If they really are a delegate, then they do it by themselves.
But again, as I say, it's clear that band councils can revoke the delegation if they want.
· (1305)
Mr. Maurice Vellacott: So who pulls the law if there's concern or great disgruntlement in the community with that law? Does the agency pull the law? Is it a law parallel to anything else the council would strike and set as laws? Who has the oversight to pull that law?
Mr. Andrew Beynon: Again, the fundamental question is what has been delegated to a particular body, like a child and family services agency. If they have authority to make a law as a delegate, then they would have authority to amend it as well; and they might do so in response to concerns of caregivers, or community members, or what have you.
If a band council found that a child and family services agency to whom authorities had been delegated was not responsive to the needs of children, or community members, or elders, or what have you, they might well pull back the delegation when considering those laws.
Mr. Maurice Vellacott: I guess if they decided not to put a timeframe on that delegation, then that body would be tantamount, equivalent, or synonymous to one that exists ad nauseam. It could remain in place for a long time. So you would think that they would put parameters on that delegation.
Mr. Andrew Beynon: Yes.
I think the short answer would be that most lawyers advising a band council would suggest that you should put the parameters clearly into the delegation. But if they didn't, and if they didn't say, “Here is the time period”, then band councils could still come in and say, “We made a law to delegate an authority in the year 2004, but here's a new law in the year 2005 revoking everything we did.”
Mr. Maurice Vellacott: Right. I guess that would ultimately be my concern. You have to think in terms of responsible, accountable government. The government authority ultimately has to be the one to be held to account for it and to have control of all these aspects under its jurisdiction as well.
Mr. Andrew Beynon: I think that comment goes to why a government amendment was proposed, which the committee voted in favour of, saying community members should be able to develop, through a code, rules on the delegation of law-making authority by a band council. If a community says, “We don't want that to happen, or we don't want that to happen without a vote and our approval”, they'll set as many or as few rules as they want.
Mr. Maurice Vellacott: Okay.
I think it an excellent amendment that I put forward, but I suspect we won't have it passed. Let's do the vote.
Can I have a recorded vote, please?
The Chair: We will have a recorded vote on amendment CA-15, on page 67.
(Amendment negatived: nays 6; yeas 2)
The Chair: On amendment NDP-21, Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair.
The 21st amendment we're introducing today, in seeking to change Bill C-7, again deals with the administration of government codes and the codes that will be put into place.
Mr. Chair, I think we've lost quorum.
The Chair: We have a quorum call. We'll suspend for 15 minutes.
· (1309)
· (1320)
The Chair: We have quorum. We'll start the time now.
Mr. Pat Martin: All right.
I'd like to begin by speaking to the 21st amendment the NDP has put forward to try to amend Bill C-7. By way of explanation as to why we're seeking amendments to this particular clause, this is one of those issues, one of the administration of governance code issues, that so inflamed the debate surrounding Bill C-7. It's the very heart of the matter, the very heart of the subject we're dealing with here, that the federal government seeks to impose codes of governance and to structure and to describe in the most minute detail how governance codes should be structured in first nations communities.
It's been brought to my attention again that there is an irony or an omission at the very beginning of our debate in that we look around the table and we see a bunch of white men in suits and a couple of white women in suits discussing and putting in place codes of governance for first nations communities. I'm reminded of the fact that early on in this committee hearing we tried to expand the representation of this committee to include first nations people around the table, much like the historic precedent of the Penner report, where we had a representative of the Assembly of First Nations, with a voice but no vote, around the table for the entire study and commission. There was also a representative from the Native Women's Association of Canada around the table for the entire debate. There was even a member of the Métis. So the AFN, the Native Women's Association, and the Métis were at the table and present for every aspect of the Penner inquiry in 1983, and we believe that should have set a precedent.
The Chair: Mr. Martin, you speak of precedent. There is no precedent for legislation having members who are not elected members of Parliament. To do studies, it's not extraordinary to have invited people to participate. But to do legislation, there is no precedent, I am told. So there's a difference.
Carry on.
Mr. Pat Martin: I accept your input and, you're right, there may not be examples of that being done in the past. Also, it's very, very rare that we're opening up the Indian Act. After 130 years of social tragedy, once every 50 years the government has the political will to open up the Indian Act to try to fix some of the atrocities of the Indian Act. So I believe extraordinary events justify extraordinary measures.
This committee could easily have been expanded. We could have welcomed the participation and the input, because now we're faced with the uncomfortable situation of having spent months hearing witnesses across the country, virtually every one of whom told us they objected to and reject Bill C-7, and the only way we can even have their voices heard is by bringing their comments in through our testimony during this very weak and flawed process surrounding the amendment process.
We're limited to 10-minute speeches on issues of great substance, issues that we're advised infringe upon or violate our Constitution and charter issues. We're limited to 10-minute speeches, and we're not even hearing from the very people whose lives will be affected.
Again, even as I go through the motions of speaking to these amendments, it's with a heavy heart, in a sense, because I know fundamentally that what we're doing here is wrong. People should be aware, the public should be aware, that I believe and some of us around this table believe that we lack legitimacy in terms of dealing with the subject matter we're dealing with. We have no right to impose our views on the structure of codes of administration, codes of governance, on the first nations communities by way of legislation around this table, without even the meaningful input and participation of first nations.
We believe that some of the submissions made should serve as a model. I'm reminded of the presentation of Chief Louis Stevenson on behalf of the Peguis council, who quoted from the Royal Commission on Aboriginal People, which should have been our guidance, our direction, that informed the substance of the work we're doing here today. But he reminded us in his presentation that the Royal Commission on Aboriginal People provided a partial list of the core of what is aboriginal jurisdiction. That partial list, as agreed to in the RCAP report, includes: constitution and government institutions--number one on this list; citizenship and membership; elections and reference.
We just went through leadership selection codes that we have now, and because we're finished trying to amend those leadership selection codes, they will go forward as part of the substance of Bill C-7 and will dictate to first nations their leadership selection process, in glaring contrast to what the Royal Commission on Aboriginal Peoples in their expertise recognized as exclusively the jurisdiction of first nations. Lands, water, sea-ice and natural resources; economic opportunity and development, including commerce, labour, agriculture, grazing, hunting, trapping, fishing. I emphasize fishing because we note, by omission, that at a later point in this bill we will be dealing with the fact that Bill C-7 specifically excludes fishing as an area of jurisdiction in terms of control over lands and resources. The operation of businesses, trades, and professions is the jurisdiction of first nations, as well as the transfer and management of public moneys and other assets, taxation, family matters, marriage, divorce, adoption, child custody, property rights, education, social services, language, culture, values and traditions, health, policing, and public works.
That is a partial list of the jurisdiction claimed by first nations and recognized by the Royal Commission on Aboriginal Peoples in their final report. Yet we, in what I view as a presumptuous manner, are putting in place administration of governance codes that may not be of interest or of use to or value to first nations, that they may reject outright the rules imposed by this particular bill.
· (1325)
The current subclause 6(4) deals again with what first nations must do. It says:
| (4) An administration of government code must include rules |
| (a) setting out the roles and authorities of the band administration and its relationship to the council; |
| (b) respecting conflicts of interest of members of the council and employees of the band; |
| (c) respecting access to information under the control of the band, protection of personal information under its control and access by individuals to information about themselves; and |
| (d) establishing a procedure for amending the code. |
In very minute detail it specifies exactly how first nations must structure themselves, again, in absolute contrast to everything we've heard from the many hundreds of representatives who made presentations, who worked very hard to make presentations because they took this tribunal seriously. They honestly believed the minister when he said he was going to give the bill to this committee at first reading because he was open to their ideas. In fact, the opening words the minister spoke when he presented to this committee were “This bill is drafted by the 10,000 first nations people we consulted with.” Well, we know that to be a farce. We know that to be an absolute falsehood. This bill was not crafted in consultation with any 10,000 first nations people. It wasn't crafted by us around this table. It wasn't crafted in consultation or with input by anybody in first nations communities, because they would never have asked for this stuff.
If you asked them what their priories were, they would have said housing, health care, education, fresh water, economic development. They would have cited a number of things that were priorities. Key and paramount, probably, would have been implementation of the recommendations of the Royal Commission on Aboriginal Peoples. That's what they would have asked for. Instead, they got a package, a bill of goods that they now have expressed, in no uncertain terms, that they neither need nor want and in fact are insulted by. What we're faced with is the prospect now of going through these motions and trying to tinker with the Indian Act, tinkering with colonialism, tinkering with paternalism.
I find it offensive, and certainly the people who have come to observe today find it offensive. I thank them for coming to observe part of the functions of this committee. I am disappointed--almost embarrassed--by what we have to show them because we are debating--
· (1330)
The Chair: Mr. Martin, thank you very much.
Monsieur Loubier. Excusez, monsieur Loubier, I have Ms. Neville first, ensuite M. Loubier.
Ms. Anita Neville: Thank you.
Mr. Chairman, I'm comparing the proposed legislation with the proposal put forward across the way by my colleague, and I'm having a little bit of difficulty with it. I would like to, I hope, give him the benefit of the doubt, that it's simply bad drafting of the amendment, because I surely can't believe that he would include something that would provide for conflicts of interest of members of the council and employees of the band, that the code must provide for conflicts of interest, and that this is simply bad drafting.
The other concern I have is when he speaks to the amendment, he speaks to an administrative code that must include, but in the drafting, again, he leaves out the word “include”. I guess I'm wondering whether my colleague will only see the government code including the items listed under paragraph 4(d), that it's prescriptive only to that and not inclusive of a larger potential there.
As I say, I hope it's bad drafting and not simply frivolous playing with the committee.
The Chair: Thank you, Ms. Neville.
Monsieur Loubier.
[Translation]
Mr. Yvan Loubier: Thank you, Mr. Chairman.
Since the start of the study of this bill, in particular clauses 5 and 6, we have been faced with the same problems of approach in the bill. We are still imposing views that we think are right and that follow from what we are, but that are not necessarily applicable to the Aboriginal nations.
The problem has remained intact since the analysis of this bill began. That's becoming increasingly clear as the reading of the bill and our understanding of it progress.
In addition, some answers from officials are unsatisfactory. We realize that this bill has been botched, with all the inaccuracies that that can entail. It also reveals a lack of concern for historical developments that have led us to redefine a partnership with the Aboriginal nations.
· (1335)
Le président: Excuse me, Mr. Loubier,
[English]
I must interrupt. If the answers from our resource professionals are not satisfactory...they are not satisfactory to the member, Monsieur Loubier. There's no one else around this table who has indicated that they are not satisfactory to them, and I think in all fairness we should put that on the record.
[Translation]
Mr. Loubier.
Mr. Yvan Loubier: Mr. Chairman, with all due respect, I want to say that, as a member of Parliament and member of this committee, I'm entitled to my personal opinions. Furthermore, I'm entitled to express them here. I offended no one in saying that, thus far, the answers to my questions were utterly unsatisfactory.
If others are satisfied with the answers given to the questions I asked, that's their business. But I'm dissatisfied and I want that stated in the record.
Mr. Chairman, I should also say that the more I advance in the study of the bill, the more I realize that it ultimately has only one aim, to continue subjugating the members of the First Nations and to ensure that we perpetuate what we have experienced for 130 years. We're going to continue imposing our vision, our economic and social development and our conception of the governance of the First Nations, whereas it should be their responsibility to determine their own conditions for governing themselves.
Earlier, my NDP colleague, Mr. Martin, referred to the 1997 Erasmus-Dussault report, which is highly revealing in this regard. In broad terms, the report states that we should not reproduce the errors of the past. In its conclusion--and I continue the reading I began earlier because it's entirely related to the wording of this clause--it states:
| Aboriginal people must be enabled to function once again as nations. This is a new way of thinking about old and persistent problems. For many years, the watch-word for the progress of Aboriginal people was 'self-government'. But this is only one piece of a larger undertaking - the restoration of nations... |
what is called nation-rebuilding,
| ...not as they were, but as they can be today. Land and economic vitality are essential for successful, hard-working governments. Whole, healthy, hopeful people are more vital still. |
A paragraph like this is very revealing when applied to the study of this bill. One can wonder what has happened to the spirit conveyed by this marvellous report that took so many years to produce and is much more balanced in its make-up than anything we've subsequently seen. In the working committees, there were more Aboriginal representatives than non-Aboriginals. Why did they proceed in that way? Because the Commission co-chairs knew perfectly well that, to redefine methods of governance and new bases for partnership with the Aboriginal nations, those nations had to have majority representation on the committee, had to be able to express their expectations and ensure that we could first support them--not decide for them, but rather assist in rebuilding the nations--and then repair some of the harm they had suffered over more than a century.
However, as regards the bill, the government should have proceeded in a different manner. When we talk about self-government, power, negotiating the terms of self-government and the inherent right of self-government on a nation-to-nation basis, that should result in very specific agreements and the definition of the powers of the Aboriginal nations have authority to exercise.
I remember that a genuine self-government agreement was reached with the Cree in Quebec. It clearly defined both legislative and administrative powers; they follow from that agreement, which was called the Braves' Peace Agreement. Genuine powers are conferred by that kind of agreement. Those powers must correspond to everything that must be negotiated in the context of self-government in a manner respectful, of course, of the situation of each of the nations.
The Braves' Peace concerns, among other things, the jurisdiction of the Cree nation respecting economic development: land management and land registration, culture, archeology, police and justice, human resources development, transportation, functions related to environment and security, real property management, activities associated with community services, finance and treasury, translation services, administration, staffing and operations management. All that is part of the actual powers exercised by the Cree nation, as well as social development. It has exclusive jurisdiction in that regard, as well as for international affairs in their areas of jurisdiction and the entire question of the implementation of Cree obligations. The Cree nation performs those functions.
· (1340)
We're far from that with Bill C-7, in which we're again wondering whether the Aboriginal nations can govern themselves. It's quite shabby to see that, particularly since we have an incredibly high-level report, a kind of bible we can rely on, the 1997 report of the Royal Commission on Aboriginal Peoples.
That was a genuine consultation, a true work of analysis, real reasons to say that we are proud of the direction we're going to take in the next 20 years because the Erasmus-Dussault Commission allowed 20 years in the conclusion of its work for a renewal of our relations with the Aboriginal peoples and the reconstruction of their own nations.
Mr. Chairman, I don't think it's too late for the government. My colleague Mr. Martin was right a little earlier this morning when he said that there would soon be a new Prime Minister of Canada. It will probably be Mr. Martin, Mr. Paul Martin, not Pat Martin's brother. It seems to me that that will be the opportunity for genuine renewal. We know that the current prime minister stands by his 1969 White Paper, but a lot of water has flowed under the bridge since that time and 1969 is no longer the reference point.
Even Warren Allmand, who is Minister of Indian Affairs, admitted in Montreal, twice, not just once, that he had been mistaken, that he had changed and that he had a new vision of a true partnership on a basis of equality with the Aboriginal nations.
So it seems to me it would be a good idea to take this bill, to burn it symbolically, perhaps in front of Parliament--that might be an idea--or simply to throw it into the waste basket--that could be worthy of the work it contains--and wait for a new administration which may perhaps be a little more open to modernity, you never know. It might also be Mr. Manley or Ms. Copps. I'm convinced that the three leadership hopefuls have completely different visions from the one being forced down our throats by the Minister of Indian Affairs, Mr. Robert Nault, and perhaps from that of the Prime Minister of Canada, who has not backed down from his idea in the 1969 White Paper.
To come back to clause...
It's already over?
Le président: I didn't want to give you more time because I don't think we should ask a sovereigntist to determine the bill of the next federal government of Canada.
Mr. Yvan Loubier: You never know. It's not because you haven't experienced history that you don't know it.
[English]
The Chair: Mr. Martin, could we have your closing remarks?
Mr. Pat Martin: Thank you, Mr. Chair.
I agree with Mr. Loubier that the best thing we could possibly do is just stop this process immediately, stop it right now so as not to bind the future leader of Canada with a mess, with an administrative and bureaucratic nightmare, and with the costs associated with it. Whether you like the amendment I'm seeking to inject into clause 6 or whether clause 6 as it stands passes in Bill C-7, there's going to be an administrative and bureaucratic nightmare associated with trying to impose these codes on people who have told us they neither want them nor need them.
There are going to be court challenges, there's going to be animosity, and there are going to be costs, enormous costs. Now again, I say that the $550 million that is already budgeted to implement Bill C-7, to force Bill C-7 on a bunch of people who neither want it nor need it, is ridiculously low. We believe that's low-balling, but even for that $550 million that's budgeted and is made reference to in this cabinet document, it says right here in this.... Well, we know that cabinet documents have said that IAND's funding for this initiative will be resourced from its A-base, and therefore no new funding is being requested from cabinet to implement Bill C-7.
That means the $550 million is coming out of product, it's coming out of money that would have otherwise been spent on health care, education, housing, roads, and fresh water, meeting the basic needs of people in third world conditions. Now, is that a wise use of $550 million? If we can get right past the ideological debate as to whether Bill C-7 is good, bad, or indifferent, can we afford to blow $550 million--and we predicted it would be double that or more by the time the dust settled--on something...? I mean, how will anybody be better off?
I've heard other witnesses, speakers, and representatives come before this committee and ask, will one diabetes victim in Manitoba be better served? Will one child suffering from malnutrition be better fed as a result of this bill? Will the students at Red Sucker Lake in fact have a school to go to next month instead of being out of school as they are currently? How are any of these basic needs issues going to be satisfied and solved by tinkering with administrative details?
Here I simply chose to remove the word “rules” because I find the word “rules” in this particular clause offensive in the way it's used. If these codes of governance we're supposed to be crafting to impose on people really just boil down to a bunch of rules, it smacks of the residential schools to me. It smacks of children behaving badly who need rules under which they will be disciplined.
We're not even talking about law-making abilities of sovereign nations anymore. That was what we thought this exercise would be about, exploring, assisting, and enabling the law-making jurisdiction of sovereign nations. Instead, we're talking about rules to keep unruly children in line, if you will.
I'm confused about the interchangeability of the words “rules” and “laws” as they pertain to governance in this act. This particular amendment I seek to make eliminates the word “rules” at least from contemplating what an administration of government code should look like in any institution, whether it's a first nation or a 4-H club. If you are going to have an administration of government code, it could be considered rules when it's for an elementary school, but it's laws when it's for a sovereign nation, I would hope.
There was the clerical error that was pointed out by Ms. Neville, which I concede. I don't think it's a big problem because nobody ever lets my amendments pass anyway, so it's not likely to become law. But obviously, we meant to say that an administration of government code should provide for remedy regarding conflicts of interests instead of just providing for conflicts of interest. I don't think anybody is interested in promoting and supporting conflicts of interest.
· (1345)
The Chair: Mr. Martin, are you asking me for unanimous consent to add that one word? I'm quite willing to do that.
Mr. Pat Martin: Well, I would be interested in moving an amendment to my amendment if that was in order, Mr. Chair, but I understood that someone else had to move a subamendment.
The Chair: No, I'm suggesting that you ask for unanimous consent to add that one word.
· (1350)
Mr. Pat Martin: Oh, I see. Then yes, I'd be interested in having unanimous consent to correct what I believe is a clerical error in leaving out the word “remedy”.
The Chair: The request is that we seek unanimous consent to add the word “provide”. Is that correct?
Mr. Pat Martin: To add the word “remedy” after “provide” in paragraph (b).
The Chair: That's right. Is it “provide for remedy”?
Mr. Pat Martin: It will read “provide remedy for conflicts of interest”.
The Chair: Okay. Sorry about that.
Do I have unanimous consent?
Some hon. members: Agreed.
The Chair: We have it.
Carry on, Mr. Martin.
Mr. Pat Martin: Thank you very much.
I hope that spirit of cooperation extends further as we start to vote on some of these amendments. Perhaps it's the dawning of a new age of cooperation. That would be great.
I'd be interested in knowing the difference between using the word “rule” and the word “law” in this clause and elsewhere in the bill. It jumped off the page at me and the people who drafted these amendments on our behalf, which are the witnesses who came before the committee. They found fault with using the word “rule”. In your view, does using the words “rule” and “law” in clause 6 make any difference whatsoever, or is it just the paternalistic sound of it that offends people?
Mr. Warren Johnson: I think there are potentially two levels of response to that question, Mr. Chairman. I'll try the first and then turn the second over to my colleague Mr. Beynon.
The general construct we have within Bill C-7 as drafted and before the committee is that the overarching law, if you will, the superior law--I'm not using legal terminology here--is the codes that first nations will develop. They have to develop that with their communities and have their communities ratify that. They describe how the first nation will function in a whole variety of areas, such as law-making. So the codes themselves are laws. In individual law-making in the sense of specific laws, as we see in clauses 16, 17, and 18, I think it is, of FNGA, those laws and the other authorities that first nations would exercise pursuant to Bill C-7 must be consistent with those codes. So you have those two levels of laws.
The rules here are the rules within the codes.
Mr. Pat Martin: Would the rules have the force of law in terms of enforceability?
Mr. Paul Salembier: Yes. Normally, within any legislation you'll have different types of provisions, and one of those is rules of conduct. That's the sense in which the word is used here. So “rules” just means must contain provisions that provide for this, this, or this. The word “rules” is used here in the most general sense.
Mr. Pat Martin: Would the word “regulations” be interchangeable with the rules or provisions that you're contemplating here?
Mr. Paul Salembier: Regulations refer to a collection of rules or legislative provisions that are contained in delegated legislation. A statute would be a collection of legislative provisions made by Parliament.
Mr. Pat Martin: That's very helpful.
Did you have something to add, Andrew?
Mr. Andrew Beynon: Perhaps I could just add one point. I think you were asking whether or not it would be helpful if this referred instead to regulations. In other words, the code would set out regulations. I think that would be somewhat confusing because we deal in another part of the bill with what will be the regulations or the fallback regulations. If you started to introduce language of regulations in here, I think it would actually create confusion.
On the issue--
Mr. Pat Martin: Are you referring to the default regulations?
Mr. Andrew Beynon: That's right. I think it would be more confusing to the average reader.
As the provisions are right now, I don't think it would make any major legal difference whether or not you used the language of rules.The one advantage of it, I suppose, is that it does make it quite clear as a matter of ordinary English that a series of rules are contemplated by the codes, and that governs the conduct of the band councils. In other words, as we've said before, codes are what the communities establish as the rules for how band councils operate. If you were to remove the language of rules, you'd probably get there in the end, but it's just not quite so clear that these are intended to be restrictions, operating parameters, rules, provisions that dictate how band councils operate.
· (1355)
The Chair: We'll go directly to the vote. A recorded vote has been requested on amendment NDP-21 on page 68.
(Amendment negatived: nays 7; yeas 3)
The Chair: We will go to amendment CA-16.
Mr. Vellacott.
Mr. Maurice Vellacott: Prior to beginning, I was going to move a motion, Mr. Chair, that we recess from now until, say, 3:30, or whatever the customary time is for question period.
(Motion negatived)
The Chair: Mr. Vellacott.
Mr. Maurice Vellacott: My particular amendment is in respect to the conflict of interest code.
So you have it there that clause 6 be amended by adding after line 42 on page 6 the following, and I'll read it just in case people haven't had a chance to read it:
| (5) The code referred to in subsection (4) shall specify that members of the council and employees of the band |
| (a) are required to carry out their duties in an impartial manner; and |
| (b) will be considered to be in conflict of interest and in violation of the code if they |
| (i) take part in a decision in the course of carrying out their duties, or use their position to influence or seek to influence such a decision, knowing that the decision might further a private interest of the member or of the employee, or of their spouse or minor child, or |
| (ii) use or communicate information not available to the general public that was obtained by the member or employee in the course of carrying out their duties under a financial management or accountability code with a view to furthering or seeking to further a private interest of the member or of the employee, or of their spouse or minor child. |
And in violation of the code, if, and I quote:
| (6) A member or employee who exercises supervisory or inspection functions or other discretionary authority in relation to other persons shall disqualify themselves from acting in that capacity in relation to any person with whom the member or employee |
The Chair: Sorry, I have to interrupt. We have a quorum call.
We are suspended for up to 15 minutes until we regain a quorum.
· (1358)
¸ (1405)
The Chair: We will resume.
Mr. Vellacott, you have the floor.
Mr. Maurice Vellacott: You don't have a quorum, do you?
The Chair: Yes, I do.
The clock is running, Mr. Vellacott.
Mr. Maurice Vellacott: Are there seven people here?
The Chair: There are nine.
Mr. Pat Martin: On a point of order, Mr. Chairman, are we sure we have all the substitution sheets that are necessary for people to be coming and going like they are? I don't mind substitutions, but....
The Chair: The clerk says we have substitution sheets.
Mr. Pat Martin: They're not signed yet.
The Chair: Well, we will wait.
They are signed.
Okay, I'll reset the clock, Mr. Vellacott.
Mr. Maurice Vellacott: I was reading off the particular amendment that I have in place here where in fact it says:
| (7) No member or employee shall accept, from any individual, organization or corporation, a fee, gift or other benefit that is directly or indirectly related to the performance of their duties. This does not include |
| (a) the customary exchange of gifts between friends; |
| (b) the customary exchange of hospitality between persons doing business together; |
| (c) token gifts exchanged in accordance with protocol; or |
| (d) the customary presentation of gifts to persons participating in public functions. |
| (8) Where the council of a band makes an allegation of conflict of interest against an employee of the band, the employee may request the intervention of the Ombudsman appointed under section 11. |
| (9) The code shall specify the penalties for failure to comply with the code. In the case of employees, the code shall specify what disciplinary measures may be imposed by council, including dismissal, and the circumstances when those penalties are applicable. In the case of members, the code shall specify what disciplinary measures may be imposed by a quorum of the council, including removal from council, and the circumstances when those penalties are applicable. |
It's a fairly comprehensive conflict of interest code that applies to band councillors and employees. This is prompted by my discussions with a number of first nations people. It is very distressing for them, and for their families, obviously, as well, that if there is a change of administration, a change of council, a change of chief and so on, these individuals are then out of a job. This can happen overnight. All of a sudden an election happens one day, and the next day they're out of jobs.
I think it leaves an incoming chief-in-council in a very difficult position, too, because many of them would prefer not to have this kind of burden. People are figuring out that if they are elected chief-in-council, the next day, after the election is over, if they have supported that person, then they will have a job in the band office as the administrator for the social welfare program...in the education program. It is very unfair for them to be all of a sudden without a paycheque and unable to provide for their families. These are first nations individuals.
I note, Mr. Chair, that we don't have a quorum again, and that distresses me.
¸ (1410)
The Chair: I never thought I'd see the NDP and the Canadian Alliance working together.
Mr. Maurice Vellacott: It's the government's bill. If the government wants this through, they have the responsibility to keep the numbers up.
The Chair: We have a quorum call. We will have to suspend.
¸ (1412)
¸ (1420)
The Chair: The clock is running, Mr. Vellacott.
Mr. Maurice Vellacott: I don't count.... Mr. Chair, with due respect--
The Chair: We're missing Mr. Dromisky.
Mr. Maurice Vellacott: He's not at the table.
The Chair: He's not at the table when he gets food. He doesn't have to be at the table. He's in the room. There's a quorum.
Mr. Maurice Vellacott: He has to be at the table.
The Chair: When you go get your food, we count you.
Mr. Maurice Vellacott: Well, you shouldn't.
The Chair: Well, we do. We have been since we've been a committee. We have been counting...that's why I didn't--
Mr. Maurice Vellacott: I don't see quorum. I want Mr. Dromisky to hear the good stuff I say here. Stan's a respected colleague, and I think he should be here.
The Chair: That is why I didn't accept that we put the food in the other room, because when you're in this room, you're a quorum member.
Mr. Maurice Vellacott: Okay, I'll go with that. I just recall lots of times, Mr. Chair, when we've had members of government side just step back from the table, and the quorum collapsed at that point.
The Chair: If the committee wants it to be the practice, we can change our rules.
Mr. Maurice Vellacott: Okay, thank you for coming back, Stan. I appreciate that.
How much time do I have, Mr. Chair?
The Chair: You have 4 minutes and 10 seconds left.
Mr. Maurice Vellacott: Thank you.
Again, with all the disruption here, just to get us back where we were, this is to insert on page 6, in subclause 6(4), after line 42... I've read it already.
I think hardly a member here would disagree that some conflict of interest code is a good thing in terms of responsible governance. I think bands will want, if they don't already have them, to put those things into place.
Some would say, well why are we so specific, so “helpful”--is the word I would use--in respect to this? I think we could actually save hundreds, maybe thousands, of dollars in legal fees by way of the very comprehensive draft I have here. That's the intent here. We have this all together fairly adequately, and it covers it all off. That'll be in the questions I'll ask of our witnesses here.
It's a fairly comprehensive conflict of interest code. It applies to band councillors and employees. We're purporting, particularly from the government side, that this bill is about good governance, so I would think a meaningful conflict of interest code is quite essential and of necessity.
In order to separate the politics from the administration of programs on reserves there must be a comprehensive conflict of interest code. I think often there have been comments made around this table as well that there needs to be a separating of the political from the administrative, from the civil service, if you will. That's where there's a necessity for a comprehensive conflict of interest code.
Numbers of witnesses have told this committee that often with a new chief and council comes a round of firings and hirings at the band office. Band employees need to know their jobs will not automatically be in jeopardy when a new chief, a new political order, comes to be on their reserve. It's also pretty crucial to keep personal financial interests separate from the duties a public office holder must fulfill. At all times, employees and councillors must act with impartiality.
A conflict of interest code, whether it be this one, one that somebody else suggests, or one that's put together at great expense by lawyers hired by bands, is in the nature of a protection for the leadership as well, for the chief and council. Who wants to be in the position of the expectation that if I support you in election as a councillor, as a chief, there's the promise you're going to give me a job? It jeopardizes those who are currently holding those job positions, and in some cases it gives false hope and promise to those who do not as yet have jobs.
Good governance demands that a stable conflict of interest code be upheld at all levels of administration, from the upper echelons right down to the lower levels of administration. I think we need to take the precautions that will limit the centralization of power and promote good governance.
That's the intent of it.
Possibly Mr. Martin will be speaking shortly, and I think he'll understand the spirit of my very specific, comprehensive amendment here is to save bands buckets of money, lots of dollars, because we know there are not going to be adequate dollars for writing the codes. It's going to be a great financial burden for some to get it together and write all the codes.
So in one small area, we've gone the second mile and put it together in such a comprehensive manner that it will save considerable dollars. All you need in terms of a good conflict of interest code is there.
¸ (1425)
The Chair: Thank you.
Mr. Martin.
Mr. Pat Martin: Mr. Chair, I'm happy to contribute to the debate around the amendment put forward by the Canadian Alliance, their sixteenth amendment to Bill C-7, where they're seeking to change clause 6.
We've had a lot of comment on clause 6 in Bill C-7. In fact, we've pretty well gone over it with a fine-toothed comb and a microscope, and nothing I've heard to date or none of the changes I've heard debated today really address the fundamental question of whether or not we should even be in the business of putting together something like clause 6 in a bill like Bill C-7.
In that vein, I would speak strongly against going further in the direction Bill C-6 already goes in compounding the affront, as I see it, to first nations by putting in place very specific and rigid conflict of interest language and requirements that most of us would understand to be self-evident and unnecessary, in putting it into language in a bill.
The language I'm referring to that I find to be superfluous, unnecessary, or redundant is proposed by the Alliance on an administration of governance code says:
| (5) The code referred to in subsection (4) shall specify that members of the council or employees of the band |
| (a) are required to carry out their duties in an impartial manner; |
Notwithstanding all the problems I have associated with the accusatory nature of that language or the implications therein, I don't know how you'd enforce that kind of thing. Maybe as an issue of basic principle in the preamble to a bill you would want to make reference to how it would be desirable if people conducted themselves in an impartial manner, but I don't know how you could enforce that in any way. Who is going to police the enforcement of such a broad principle, and how do you prove that somebody has not been operating in a manner consistent with impartiality?
Also, their proposed paragraph 6(5)(b) anticipates the findings of an arbitrator when it says that a person who is not in compliance with proposed paragraph 6(5)(a) “will be considered to be in conflict of interest and in violation of the code”.
You don't have to prescribe those things in a piece of legislation. If somebody contravenes the spirit or intent of the code you leave it up to an arbitrator, or a complaint or a grievance is filed and others decide. So you don't condemn people on that basis, nor do you specify the type of penalty associated with it. That's left up to others.
So they're adding this type of language, which in very narrow terms explains what in their view a conflict of interest should be, down to the narrow details of what types of gifts could be exchanged between friends. I've seen codes of conflict of interest like this associated with business and corporations, and even members of Parliament are subject to some of the language along these lines. But any kind of conflict code or codes dealing with carrying out duties in an impartial manner, etc., should be left up to the community to design themselves.
To impose this type of language is almost insulting. It's so detailed and so rigid that whether it's necessary or not is not even worth arguing here. The Alliance seems to feel there has been enough abuse in the communities that it justifies the heavy hand of government intervening to protect the interests of people, but I don't accept that. All along I've opposed the inference on the part of the Alliance that the abuse is so rampant that these measures are necessary.
¸ (1430)
We would rather concentrate on good models of governance and good models of healthy communities. They should be featured, promoted, and used as best practice examples in providing guidance to those communities that may wish to change the way they do business, or change their codes of practice as they relate to obligations and duties of members of council or employees of the band.
I don't see how having this language here will change the unfortunate circumstances Mr. Vellacott made reference to. It's kind of like Atlantic Canada politics: when the government changes the grader operators change, etc. I've heard people make reference to that kind of patronage politics happening at all levels. I have no knowledge of whether it happens more frequently in first nations communities or not.
I don't see why it's necessary to include two full pages of text that is difficult to enforce or unenforceable. I think it offends the very principle and spirit of the idea of enabling first nations to design their own codes of governance. We find ourselves in the same unfortunate position of crafting language without any input or participation from first nations communities; the very communities that will be affected by this language if Bill C-7 succeeds in passing and getting royal assent.
I'd be interested in knowing who is going to monitor these things, who is going to be the adjudicator, who is going to police language that's narrow and inflammatory. Are you not inviting a flurry of activity along those lines? Are you opening a Pandora's box? In every election there's a winner and a loser, and the losing party often feels aggrieved.
Mr. Chairman, I think we've lost quorum. I'd like to suspend until we finish a quorum count.
¸ (1435)
The Chair: I count nine.
Mr. Maurice Vellacott: I have a point of order, Mr. Chairman.
The Chair: You have a point of order.
I count ten, as a matter of fact.
Mr. Maurice Vellacott: I find it rather strange that when we're in the House--
The Chair: A point of order is not finding something strange. What is the problem?
Mr. Maurice Vellacott: I'm getting to my point of order, if you'll just bear with me. When we're in the chamber in the House of Commons we're not counted if we're back behind the curtains. We have to be at the table.
The Chair: Mr. Vellacott, you've been on this committee for over a year. That is the way it's been called.
Mr. Maurice Vellacott: No, because somebody hasn't called quorum--
The Chair: So today, because it's not convenient we're going to change the rules?
Mr. Maurice Vellacott: No, we never had rules like that.
The Chair: When you go out to get some food, are we not going to count you in quorum?
Mr. Maurice Vellacott: No. With due respect, Mr. Chair, because somebody never called quorum doesn't mean there was an understanding of that sort. I never had an understanding that because somebody was out.... I was gracious enough not to call quorum, but you can't have a scenario where just because people are in the room or in the building that's quorum. How are we going to stretch this after a while? They should be at the table hearing and listening to what's being said. I don't think it should count, otherwise.
The Chair: I will rule again. The final judgment by the Speaker of the House is that the committee is always master of its own destiny, and we have always operated that way.
I chaired this committee in 1996, 1997, 2002, and now it's 2003 and we have always done that. You know that when the food comes in we have to get up from our chairs to pick it up. If we're going to call quorum every time someone wants to get a coffee or something, then we can have a future business meeting and change the practice we have had for years.
For the time being I will rule that if you're in this room, because of our practice of years and years, you are counted in quorum.
Mr. Maurice Vellacott: Can I make a statement that if I'm not at this table...
The Chair: You have to be in your seat to vote, of course, but you're counted in quorum if you're in the room. That's the way I'm ruling.
Mr. Maurice Vellacott: So you're saying that if I'm not sitting at this desk here and I'm sitting back there I'm counted as part of quorum?
The Chair: If you're in the room--that's right. I've always counted that way.
Mr. Maurice Vellacott: Well, I object to that.
The Chair: Well, you're objecting. I ruled, and if we want to change the practice, well, we're not going to do it today. We have to be sitting, or then get your colleagues--
Mr. Maurice Vellacott: Then I would like to challenge your ruling on that, Mr. Chair, right here and now.
The Chair: Okay, my ruling is challenged. Will my ruling be sustained?
Some hon. members: Agreed.
The Chair: So my ruling is sustained.
Where were we? We had Mr. Martin; the floor is still yours.
Mr. Pat Martin: I'm just a little confused about the status. I guess I'm still making my presentation, then.
I'm critical of the idea of micromanaging the lives of first nations people in this prescribed fashion. Everything about Bill C-7 seems to interfere or seeks to influence the way first nations govern and manage themselves. I've been critical about that from the very beginning, and unfortunately the amendment I see here even exaggerates and compounds that concern I have about the bill.
Also, I believe it's the type of language. Perhaps Mr. Vellacott borrowed from codes of conflict of interest that may exist in the private sector among corporations and businesses. I'm not sure what the source was for some of this language, but I especially don't see it applying readily to some of the smaller communities, which may have 100 people. Many, many of the first nations have fewer than 500 people and some have fewer than 100. To bind people to this kind of...this really looks like more of a corporate model that may be contemplating employment of thousands of people.
It would be difficult if not impossible to police and to manage, and I really question whether or not it would be to anyone's benefit. Does it really give any satisfaction that people will conduct themselves in a fair and impartial manner in the administration of their duties?
Some things you can't legislate, to tell you the truth; they don't lend themselves. You put practices in place and you try to design things so fairness reigns and fairness rules, and then you put in place checks and balances so if there is an aggrieved party, they have an avenue of recourse. But this particular clause goes way beyond that, even specifying or requiring disciplinary measures.
¸ (1440)
The Chair: Mr. Hubbard.
Mr. Charles Hubbard: Thank you Mr. Chair.
Very briefly, I would suggest that certainly first nations, in developing their codes and regulations, could put something like this in, Mr. Vellacott.
For the record, Mr. Chair, we've been here as parliamentarians for some 135 years, and we still haven't been able to develop a code like this for ourselves. I think it would be a bit presumptuous for us to say to our first nations peoples that they should do something ahead of our doing it. I know that it certainly has some merit as something we're working on as parliamentarians, but by the same token, to write it into legislation for someone other than ourselves would be unacceptable.
So Mr. Vellacott, having heard my point--
The Chair: Mr. Vellacott, could we have your closing remarks?
Mr. Maurice Vellacott: I want to be in the quorum here for sure.
The Chair: Closing remarks.
Mr. Maurice Vellacott: In reference to what Mr. Martin said, I note that in fact I did support one, NDP-21—and I supported other ones here from my colleague on this side—but I notice there is provision for remedy for conflicts of interest. So as I said before, there's not one of us around this table, Mr. Martin included, who doesn't acknowledge that there has to be something like that in place. We have just taken the approach of being a little more specific.
A lot of this does come from conversations I've had with good first nations people. You'll notice a whole part under proposed subclause 6(7)...and it's very customary. We have a lot to learn from our first nations friends in terms of the exchange of gifts. It's there at other levels in other countries too. I know from spending time in Taiwan or some other countries--I'm not a world traveller, but I've been to some of these places where there is that customary exchange of gifts--you certainly wouldn't want to put that in a position of a “conflict of interest”.
From talking to first nations people, we have made the exclusion of all of these things listed in proposed subclause 6(7), where “No member or employee shall accept, from any individual, organization or corporation, a fee, gift or other benefit that is directly or indirectly related to the performance of their duties”, but it doesn't include “the customary exchange of gifts between friends”, “the customary exchange of hospitality between persons doing business”, “token gifts exchanged in accordance with protocol”, and “the customary presentation of gifts to persons participating in public functions.”
I have some other remarks to make, but before that I'd just ask Paul or Warren if it would occur to you that there's anything in this particular, more itemized, delineated conflict of interest provision that would strike you as not being part of a good conflict of interest code--that is, in what we have before us in the amendment, in what I have proffered here.
Mr. Paul Salembier: The only comment I would make is that proposed subclause 6(9) departs from the scheme of the bill by adding the concept of penalties in the code. Right now first nations can enact a law under paragraph 18(1)(d) of Bill C-7 that would provide for penalties for breaches of conflict of interest, but so far there has been no provision in the act for penalties for breaches of codes.
Clause 11 provides for a redress body that can direct a council to take remedial action if there's been a breach of a code, but otherwise there are no penalties provided for. I would say that just to that extent, what's proposed departs somewhat from the scheme of the rest of the bill.
Mr. Maurice Vellacott: It's just not in the tenor of the bill to do that. It's just not stylistically in keeping with how it's done elsewhere; that, I guess, is what you're saying.
Mr. Warren Johnson: If I could intervene, there are two other points there.
One, there are references here to family and familial relationships. The difficulty is in terms of translating that into a first nations environment, where things may often occur within a clan system or within other forms of relationships that might exist there that might be referenced in a conflict of interest by a first nation.
The difficulty is that, as I understand it, by adding this into the code, two things occur. One is that in fact it is not unlike all of the other elements of a code, provisions that should be in the code; this is the resulting code. There's nothing a first nation can do to change this, and you will notice anywhere in the bill that where there are provisions that are not enabling of first nations in the sense that they are more prescriptive, they are not in the code themselves.
So there is a technical question of whether an amendment like this would be better placed outside the section of codes than in the section of codes if codes are to describe, as they do everywhere else, the what first nations would be doing, not the how they would do it. The how they would do it would be in the details of their own code development, benefiting from regulations. We had seen this in the context of the code development and back-down regulations.
Placement may be an issue if the committee is interested in providing this amount of detail, because in fact it does not allow the first nations to change it. This is it; this is their code. It is being prescribed. There's nothing else to do. Then you get to the danger of this particular wording, where the relationships, the common use of the legal term “familiar” or whatever, may not adequately describe the kinds of relationships in the first nation community the community would want to cover in a code. That's just one example.
That's why we had contemplated leaving these questions as to the code development itself within the community and our consultations, which would then provide the model as you had suggested this amendment would, to first nations for their own development.
¸ (1445)
Mr. Maurice Vellacott: Right. Yes, although it has a lot more detail than mentioned in NDP-21, in terms of providing remedy for and so on. It's obviously a lot more detailed than that. This is not to say this is the whole deal. There could be additions. In fact I expect there probably would be. But it's giving some of the very definite basics here in terms of stuff that's come up from various things that one has heard or had discussions on with first nations people.
As for the familial thing, I wouldn't disagree with that, because often bands are comprised of several families. They're large families and there's a good connection there among those different members. I guess that would complicate the conflict of interest codes, but I think it is also all the more reason why there needs to be something there. When I served on a district health board, most conflict of interest codes were very much along the lines of family. Where somebody is personally familial, they could gain an advantage by some inside information or knowledge—that type of thing.
I guess that's the spirit of what we have before us here today. I'm encouraged by the fact maybe of the principle being more complete than what you had anticipated. I don't hear any particular objection other than that the familial thing may create a complication in some reserve situations. Is there anything else that seems out of sync with what might fit in a first nation culture or custom as far as you'd be concerned?
Mr. Paul Salembier: Just on a technical point, I note that in subclause (8) you're referring to an ombudsman, and that's the subject of a future proposed amendment to clause 11. I think anything done along those lines would have to take in account whether the other amendment proceeds as proposed.
Mr. Maurice Vellacott: Right. Okay, fine.
I guess with that, then, I leave it, Mr. Chair, for the judgment of the committee. I'd like a recorded vote in respect of this particular amendment of mine.
The Chair: Recorded vote on CA-16, page 69.
(Amendment negatived: nays 7; yeas 1)
(Clause 6 as amended agreed to: yeas 5; nays 3)
¸ (1450)
Mr. Benoît Serré (Timiskaming—Cochrane, Lib.): If I'm not going to vote, I don't need—
The Chair: I'm going to leave this party. Nobody would want to leave this meeting, it's so much fun.
On the ruling I made on Mr. Vellacott's point of order, I mentioned that if we wished to change our procedure we would have a future business meeting and the members would decide. That part of my ruling is not correct, because there's no need for a meeting on future business.
I was correct in my ruling that if you're in the room you are counted in quorum. That is supported by the clerk and the legislative clerk and the example given in the House. You don't have to be sitting at your chair to be counted in the quorum. There are no drapes here. So unless we suggest that they change the Standing Orders and put curtains here, when you're behind you're not. So my ruling stands.
(On clause 7—Financial management and accountability code)
The Chair: In clause 7 we have amendment CA-17.
Mr. Vellacott.
Mr. Maurice Vellacott: Thank you, Mr. Chair.
On this particular one we're into clause 7 now, which is in our books on page 7 as well. A nice coincidence there. We're asking to add on line 5 here, in the particular clause 7 on page 7, “together with a current balance sheet”.
We'll hear from our witnesses again, because I know they made comments on this previously. It's one thing to offer a budget for each fiscal year, as is the suggestion here, and “its adoption by council and presentation to members of the band during the last quarter of the preceding fiscal year”, but getting a clear picture of where they are year to date—a current balance sheet—I think is also pretty important.
I probably want to add at this point that I think it's a necessity to have it in fairly straightforward, plain language, at least for the explanation. Sometimes some of this very complicated accounting language is used and people really are none the wiser for what went on with their funds or with their finances. I think plain, layman, non-accountant-type language is necessary in terms of at least the explanation of some of these things.
We're asking for a current balance sheet here, a balance sheet that ensures that band members are aware of the band's liabilities and assets. Band members would then have a better understanding of the band's overall financial position, as opposed to a simple projected spending plan—a hope, a wish of how dollars are to be spent in the upcoming year.
In order to evaluate the council's budget, members should have an accurate and full understanding of the band's financial situation. As you're looking at that particular budget, it's in terms of what they're anticipating to expend dollars on in the course of the next year, but if at present you have a big hole, a big debt, maybe there wouldn't be approval on the budget because they'd say, “We're in such dire straits, so dollars can't be expended in this area that you're projecting they are to be spent in this budget. We need to be pulling back and reallocating to this area instead.” I think tying a current balance sheet together with the budget makes a lot of sense from that point of view.
Just before I go on, I'd like to put some questions to Warren and Paul again. How can you simply present a budget without a reference back to the previous year? How can you have any sense of whether that's a good budget you should be approving as a member of that particular first nations community?
I'm just noticing we have another lady at the table. Can I catch the name there?
¸ (1455)
Mr. Warren Johnson: That's what I was going to do, introduce to the committee Sylvie George, who's joined us, one of our colleagues, to help in the later sections of the bill here in terms of the responses.
Mr. Maurice Vellacott: Welcome. I hope you enjoy your time here.
Mr. Warren Johnson: In response to your question, to begin with, this is the annual budget and expenditure plan in paragraph 7(a). And in consideration of the motion and the question you put forward—references with respect to controls on the management fund, the incurring of debt, deficit—they're also referenced in later sections, and the statement of accounts is referenced in subclause 9(3). In consideration of this, the committee will want to look at those various clauses.
Mr. Maurice Vellacott: Those are not necessarily at or about the same time as this annual budget presentation, are they? Some of this is within 120 days thereafter.
Mr. Warren Johnson: Yes. In the case of paragraph 7(a), we're dealing with the budget or the expenditure proposals, the annual budget forward-looking, a reference that would be some time during the last quarter of the preceding year—the last quarter preceding the year that plan would apply to.
The financial statements, which would normally include the balance sheet, etc., of the first nation in subclause 9(3) would be available 120 days after the end of the fiscal year.
Mr. Maurice Vellacott: Right.
Mr. Warren Johnson: Which is the normal accounting practice.
Mr. Maurice Vellacott: Right. I hear you. That's why I think they're talking about different things, Warren, from what I have in mind here, because you're looking at a year-to-date balance sheet, if you will , so you're actually looking for individuals to approve its adoption by the council, presentation to members of the band. How can you adequately do that without actually having some sense of where you've come thus far in the year? If you don't know what kind of a surplus or a hole you've dug, how can you be adequately rendering a judgment in respect to adopting a budget?
I know for me, I'd be very hard pressed to render an intelligent judgment on a budget if I didn't know where we were at that point in the year.
Mr. Warren Johnson: The band may very well want to do that. It would be at its discretion. These are the minimum requirements. Bands obviously can exceed them where they want. But this contemplates, in paragraph 7(f), that there would be rules already in place with respect to debt and deficit management, so for the security of the members, if they wanted to know that at any time there was never going to be a deficit of more than 5%, then they would have that security irrespective of where they were in the budget cycle, depending on how they had developed their code with respect to the management of deficits.
So it's the combination of those here that would be at play.
Mr. Maurice Vellacott: That's right. It's again the matter of if they choose to do...if there is that in another place, actually. But to me this is fairly crucial. I think in fact I would use that term “basic and essential” here. I can't see it as producing any harm at all, and I can't see why in fact the government, the department, wouldn't simply concede an opposition member has come up with a thing that's not all that bad, and maybe a good idea. I just throw it in here. It's a sum total of about six words here, and it actually does make good sense to have a fiscal year-to-date statement before you approve your budget. So it may not be common, but I think it makes good sense in the circumstance.
So that is the point of this here. I actually hear band members from time to time tell me as well that they'll get these reports on the financial status of their band from accountings, a third management person or accountant, and it's not even in language that's all that clear to them, maybe not even that clear to a lot of us, because we're not into that realm of facts and figures to that degree. They want just a simple explanation saying dollars have been expended in this area and this area, and this is what dollars we have left till the end of the year, that kind of a very basic explanation of things.
I think it's too easy sometimes to cloud it up. Sometimes people don't do it intentionally, but I think accountants can do that. And sometimes it can be done in an intentional manner as well where it is simply taken with all its complexity and laid out there such that nobody is really clear on what the picture is.
So that's my point here. I want to see that we have a very common-sense approach of tying in, so these individuals who are, as you say, adopting a budget here and then presenting it to the members don't have to fear getting egg on their face. If they've actually seen a year-to-date presentation of the current balance sheet, then they're in a position to be confident, as they go before the members of that band in the last quarter of that fiscal year, that they can justify whatever they're laying out in the year ahead.
I think it's a fairly basic thing, and I'd like to see that included. Maybe I should ask the department here, does this throw some major monkey wrench in if members on the government side were to accept this? Does it create some inordinate difficulty that I'm not aware of if we were to insert or segue in council in presentation together with a current balance sheet? Does it create some difficulty, some logistical or some possible problem? I'd ask Warren or Paul or Andrew.
¹ (1500)
Mr. Warren Johnson: Not offhand.
The Chair: You only have ten seconds left. You won't have time to respond.
Mr. Hubbard.
Mr. Charles Hubbard: Thanks, Mr. Chair.
We'd all like to live in a perfect world, and like your previous amendment, Maurice, this would be a higher standard than we as members of Parliament have. As you know, our budget usually comes down in February. We see no end-of-the-year statements on March 31. I could be wrong, and our witnesses could probably comment further, but we would like to think that we have a perfect situation.
I would also maybe like to ask if you could group your coming amendments, to enable us to speed through them a little quicker. They all deal with subclause 9(3).
As members, I'm sure that we couldn't support a higher standard or a more perfect world for somebody else than we ourselves can live under. Maybe Warren would comment on what I said. Maybe what I said is not entirely correct, but as members of Parliament, we never see the end-of-the-year, or March 31, statements until later in the year.
Maybe, Warren, you could comment on that, or Paul, or somebody else at the table could.
Mr. Warren Johnson: I think you are correct. My understanding is that in the normal presentation of an annual budget you do have the projections, the opening balance and closing balance, etc. To the extent that the interest in the balance sheet is not in the disposition of assets but in the deficit or surplus positions, you would find that in the expenditure plan anyway.
I guess a more general issue may be implied by the question, which may involve a higher standard, should first nations communities bring all of the various financial statements together for simultaneous presentation at one time? I don't think that's a common practice. It's a bit of a problem that we all have in government, in government organizations, and in corporate bodies, etc. Expenditure plans for one year are usually done before the year-end statements are available, which is some time early into the year that you're already planning for. You're making projections and estimating opening and closing balances. One is dealing with the flow and the expenditure plan. It should include the statement of where you are in terms of surplus and deficit, and where you'll be getting to, because that's part of the balance within the expenditure plan.
The final balance sheet is the final audited statement, including the disposition of assets, etc., as well as verifying the final deficit or surplus situation and its accumulation. I guess that is the reason why other bodies and governments haven't had too much difficulty keeping them separate.
I don't know if that answers your question, Mr. Hubbard.
¹ (1505)
The Chair: Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair.
In dealing with clause 7, we're finding the amendment put forward by Mr. Vellacott relatively minor, although I'm going to speak against it. But in the larger picture, clause 7 deals with the requirement to put in place a financial management and accountability code that must include rules respecting the preparation of an annual budget for each fiscal year; its adoption by the council and presentation to members of the band during the last quarter of the preceding fiscal year; the control of expenditures of band funds, including financial signing authorities, etc.; the internal controls with respect to the deposits, the asset management, the purchase of goods and services, including the manner of tendering of contracts; the lending of band funds to members of the band and other persons; the making of loan guarantees by the band to persons other than members; the repayment collection of loans; the remuneration of members of the council and employees of the band; incurring of debt by the band and debt management.
I read these only to point out that we're dealing with an incredibly comprehensive list of what the band must do in the view of the people who wrote this bill, who were not first nations, I would point out. Again, it's worth noting that there are no first nations people around this table. There are first nations watching the proceedings of this committee, but they're certainly not involved. Their voices are not being heard around this table except on a rare occasion when somebody can submit an argument to us and we can try to introduce it.
It's offensive to me that we're again trying to put together a road map by which first nations can develop. In fact, it was recommended to me earlier today by somebody that we should change the name of the First Nations Governance Act to the First Nations Recognition Act, and instead of trying to find out or devise ways and rules by which people are supposed to live, to recognize the established and existing structures that are in place in first nations, and to celebrate them or to at least recognize them as the codes of governance that people have chosen.
And by way of example, I'd like to share with the committee a process for putting some of these codes in place that's in contrast to a bunch of white guys in suits sitting around a table designing codes of governance. I'll give you this one example, which I've used before, and I use this example just because I have it handy. The Big Island Lake Cree Nation gave this explanation of the development of their financial management act, which is comprehensive and sweeping:
“Throughout the development and review of the ratification stages of our law-making we have followed our traditional customs at all stages of decision-making. We started this process in 1985 and we determined that in order to ensure full understanding and participation by all of our citizens, the proposed laws would be presented in English and in the Cree languages, and that audio tapes in Cree would be distributed throughout the community.”
That was to take care of any literacy reading and writing issues that may inhibit understanding.
“The community-oriented process is based on reaching consensus within the community before the laws are implemented. A simple majority of 51% is not good enough. Full consensus must be achieved before we move forward. These same principles have been applied to the creation of the codes, regulations, and procedures that are necessary to the successful implementation of our laws.”
That's the process put in place by this first nation, and I would argue that's a typical process among many of the examples of witnesses who we heard. And it is so contradictory for us to be dealing with these issues here today without defference and respect for the process of developing very evolved and very sophisticated management structures and governance structures that exist in first nations today.
Looking at their Big Island Lake Cree Nations Financial Management Act, it would rival any in the country that I've seen. It's modern, it's contemporary, it's sophisticated, it's strong.
¹ (1510)
Mr. Chair, I'm going to call quorum please.
The Chair: Quorum is called. And we know the limits and the rules.
The meeting is suspended.
¹ (1510)
¹ (1520)
The Chair: Order.
Mr. Martin, you have five minutes left.
Mr. Pat Martin: Mr. Chair, before we lost our quorum I was pointing out that I don't believe we've done a good job in trying to assess the best practices that exist out there in the country. I'd be interested to know, and I intend to ask our witnesses, are our experts aware of how many first nations already meet or exceed or surpass the terms contemplated in this financial management and accountability code?
It's my belief and my understanding, and it's a point of view that is shared by the Auditor General of Canada, that first nations are in fact over-regulated and over-audited in many senses. We heard the Auditor General say she found it surprising that first nations have to already file some 168 forms and documents related to financial statements, simply in order to keep their revenue streams from the various funding agencies going.
Financial statements being made available to band members is already the practice in terms of an audit. The annual audit takes place. I'd be interested in hearing from the witnesses as well, but our information is that 96% of all first nations communities conduct an audit on time, in compliance with all the rules and regulations, and make the information of that audit available to their band members without incident or complaint.
Of the remaining 4%, our research indicates that the problem is often simply being late with the audit, or some administrative detail surrounding the audit, or financial stress associated with trying to meet the basic needs of the community without adequate resources.
I don't see anything in the financial management and accountability codes that the federal government wants to put in place that will do anything except micromanage the activities of a first nations community as it is. So I'm opposed to the idea of this first nations management accountability code being put in place in such a rigid fashion, but I'm certainly opposed to adding further burden by adding the language that the presentation must be made.... In the amendment put forward by the Canadian Alliance, they envision adding to the requirements around a financial management and accountability code that would suggest a code must include rules respecting the preparation of an annual budget--no problem, I'm sure that's done in each fiscal year--and its adoption by council and the presentation to the members of a band between the last quarter. Well, they add “presentation of the budget as well as a current balance sheet”.
Now, I don't know of any level of government that does operate at that level that has to produce a current balance sheet with the budget. They are two separate things that occur at different times of the year. We also, within this financial management code that we seek to impose on first nations, exceed the requirements of the federal government in the estimates process as well. We're holding people to a higher standard in this than we live by ourselves.
Financial statements have been the subject of great debate in the private and the public sector in recent years. Of course, we have to be able to trust the financial statements and the audits. That's not always the case in the private sector when we're dealing with an Enron-type WorldCom scandal, where audits are subject to abuse if the auditor is engaged in practices other than auditing, or selling financial services to the same company they're auditing. We then have a serious problem.
We're aware of many first nations that have financial management codes that certainly easily meet or exceed that contemplated by clause 7. We're also not satisfied that there's a need, nor would it be desirable, to include language such as the Canadian Alliance is proposing in their amendment CA-17.
¹ (1525)
So we're suggesting that the best possible practice would be to back up and have a look at what exists out there and then show by example to other first nations communities that may wish administrative help--
The Chair: Thank you, Mr. Martin.
Mr. Vellacott, closing remarks.
Mr. Maurice Vellacott: I appreciate the remarks that have been made around here. I wasn't here entirely for Pat's speech at the end.
These other things are already part of the government bill. We're just adding that particular phrase “together with a current balance sheet”.
I suggest to you that this could maybe be a change in practice for even our federal government, because we have tended to run up billions of dollars of deficit over quite a number of years and a big debt.
An hon. member: Not yours, of course.
¹ (1530)
Mr. Maurice Vellacott: No, not since I've been here. Our party takes some credit for the fact that we haven't run deficits for a while in this country.
Unfortunately, we still have that big overall debt. Maybe if we had had a different scenario where we could in fact have seen the year-to-date figures, we might not have run the deficits. But then again we might have. It's the governments of the day that have big plans that kind of get out of line, I suppose.
Basically, it's trying to protect the individuals who are in those leadership positions as they come to this very crucial point of approving a budget and then presenting it to the membership of their band. What I find very interesting in this discussion is that there's an assumption that whether or not this is here, something of this nature would be requested by the council members as they deliberate before they put their stamp of approval on the particular budget. I find that rather curious, and I'm baffled as to why we don't just formalize the whole thing by including this particular amendment.
Did I understand you to say, Mr. Johnson, or maybe it was Paul who made the remark, that you would assume that prior to the adoption of the budget, there might be a request by a council member saying they need to know the fiscal position to this point?
Mr. Warren Johnson: Sorry, could you repeat that? That a council member might what?
Mr. Maurice Vellacott: That as you come up to adopting your budget in the last quarter for the year ahead, it might make a lot of sense for a council member to ask for the current fiscal position of the band.
Mr. Warren Johnson: My statement was that as a code, the first nations can develop these provisions as they want. So they may add to them. If the part of the balance sheet you were interested in was the surplus or deficit situation, that would be equivalent to the opening and closing balance on the budget itself. The coming together of all of the statements of the first nation are dealt with in later clauses--I think it's subclause 9(3)--because that's where the audited statements, which include the balance sheet, the statement of revenues and expenditures, the statement of changes in financial positions, and all of the notes to the financial statements, are all presented together subsequent to an audit. It's a question of timing. One is presented when all of those statements are available, which, as Bill C-7 is drafted, is within 120 days of the end of the fiscal year. Here we're dealing with the provision for their budget forecast for the upcoming year.
Mr. Maurice Vellacott: So they're adopting this budget based on what?
Mr. Warren Johnson: On forecasts, as do all people who do budgeting.
Mr. Maurice Vellacott: I would think that these forecasts would also contain some hard numbers in terms of where they're at up to that point in the year. At least three-quarters of the year has gone by at that point. So we've done three-quarters of the year already, and you would extrapolate those figures.
I think we're maybe using slightly different language here, but I think it amounts to the same thing. I would think that as well this would be an ordinary way to keep it within the range and grasp of most of the members of the band. They can know with confidence that their council has adopted a decent budget. You could actually have that particular balance sheet presented to the members. So it's not something that only the council is privy to.
I think that would be a very good approach to go with, plain language such that it's all apparent to people who are in a position to adopt the budget. I know that we can get into lots of legalese here in terms of why it's not a good thing to do, but I think that common sense should prevail, and we should accept this.
Rather than belabour the point, I think I'll just turn it back to the chair, and we'll see if we can go for a recorded vote on that.
¹ (1535)
The Chair: We'll have a recorded vote on amendment CA-17, on page 72.
(Amendment negatived: nays 7; yeas 3)
The Chair: We'll now go to amendment CA-18.
Mr. Vellacott.
Mr. Maurice Vellacott: Thank you, Mr. Chair.
This particular one again is in clause 7. It's replacing line 6 on page 7 with the following: “band and residents of the reserve during the last quarter of the preceding” fiscal year. So it's “members of the band and residents of the reserve”.
I guess basically what we're intending here by this one is that reserve residents could include individuals from other bands who are living on the reserve, spouses who may not be status Indians and so would not be on that band list but for all intents and purposes that band counts them as part of their body, part of their family, if you will, and the children of those members and maybe children of members of other bands, neighbouring bands as well.
I think it's pretty important to ensure that basic levels of freedoms, rights, and protections are offered to all Canadians regardless of their residency and that all reserve residents, regardless of band membership, have an interest in the financial status and the health of the band and therefore should have access to the budgets and the balance sheets.
That's kind of what we're doing here, trying to show an equality so that all the reserve residents, those who reside there, those aboriginal, first nations people there, would then have access that would make sense, being that they are so greatly impacted by the financial dollars, the expenditures, the money that's used for the delivery of services. So that's the spirit of this particular amendment.
I know we will have some comments again questioning and figuring that this makes it rather complex. Maybe I could ask Mr. Johnson or Mr. Salembier, because I anticipate the objection might be that possibly non-first-nation individuals might be in mind here too, but that's the spirit of this.
Is there a way one could actually include and protect the rights of those who are serviced on the reserves? They may not have membership there, but is there a way to do it using some technical term other than “reserve residents”? Is there a way to cover this off so that those people are given basic protections too?
Mr. Warren Johnson: There isn't a convenient term, or one that we've found, if the issue is to get at aboriginal as opposed to non-aboriginal residents of the reserve, if that's the question. In the references you'd made on the motion, the concern was members of other bands, and so on.
We do have a not insignificant number of first nations in Canada with very large non-aboriginal resident populations. I may be wrong, but one of the biggest, for example, would be Westbank in British Columbia, where the number of non-reserve residents on the reserve are many multiples of the actual band membership or the aboriginal population on reserve.
There isn't convenient or obvious terminology that we have seen people using in this regard, so the distinctions that are referenced within the draft of Bill C-7 that you have before you distinguish only between issues of members and of residents.
Within “residents”, there could be many categories with different relationships with the council. The non-aboriginal residents, at a minimum, are interested in the local services that are provided to them--the local utilities and services, garbage collection, and all those things that one gets from the local government. So there's a variety of interests within the non-residents.
¹ (1540)
Mr. Maurice Vellacott: So I would imagine with Westbank and how many situations, it only takes a few like that for one to be cautious and then take that into account, of course. Regarding Westbank, on a scale of things across the country, are there a few other situations like that where there are large non-first-nation populations?
Mr. Warren Johnson: Yes, there are a number of them that come to mind, and they are growing.
Mr. Maurice Vellacott: Do they tend to be in more urban areas out in B.C., a west coast kind of thing?
Mr. Warren Johnson: Yes, that's where most of the ones that would come to my mind would exist. There are significant commercial developments for non-aboriginal residents on reserves in B.C., both in the interior and elsewhere. So we're dealing with a variety of situations.
Because of that, the variety of distinctions that could be made, the issue here was, in the drafting of this bill, could we maintain an adequate base just making the distinction between members and residents, where at least we have two clear constituencies and roles of the first nations as governments?
Mr. Maurice Vellacott: Right.
Then how do bands like the ones in B.C., Westbank and other ones, take into account...?
I'd imagine you'd have some real problems at points if you didn't in some ways attempt a process whereby you took those into account. Are you saying it's 50% or more in that situation?
Mr. Warren Johnson: In the Westbank case, my colleague says it's perhaps ten times the non-aboriginal residents on reserve relative to the members living on the reserve.
Mr. Maurice Vellacott: So these are individuals leasing the land. Because it's a lease scenario, in terms of services provided, and so on, how does it work out that they include those individuals in things that will so directly affect them? Do they have a process for that? Maybe Andrew is aware or maybe somebody has a comment in terms of how they take that into account. Surely I would think they would.
Mr. Warren Johnson: There's a variety of means, and it's hard to generalize. Many first nations in that situation are into property taxation situations, and there, through the work of the Indian Taxation Advisory Board, they put in place a number of means of consulting with and dealing with the specific reference with respect to property taxation and services.
There are also guarantees and mechanisms within the lease agreements themselves. It depends on the style of leasing agreement how that works out.
I know a number of the first nations, whether they're taxing or not, have set up special advisory councils. That's what we find in a number of the self-government agreements--for example, the Nisga'a as well, where there are advisory councils of the non-member residents on Nisga'a--or in this case, with respect to Bill C-7, not applying to the self-governing first nations but on reserve land.
A variety of mechanisms have been used, and we see those best practices reflected in a number of other references here. For example, we talked earlier about members and residents being informed of potential laws, to be given opportunity to input on them. That's often where you see the issues around land use, municipal servicing, services and fees being set up. You'll see that in the law-making sections in Bill C-7.
So there's a variety of places they are consulted on, which there have been pains to try to build that on, based on that and the advice in these sections from people like the Aboriginal Financial Officers Association. The chairman of the Indian Taxation Advisory Board addressed that question to the committee as well.
Mr. Maurice Vellacott: It's a given that it's a pretty necessary thing in terms of decent, responsible government for that kind of an engagement to happen. You're suggesting that it's problematic to be included here, but I think from the remarks you made, it's kind of an underlying assumption that it would be a given or a necessity to be an inclusionary way of handling those situations, otherwise there could be strained relations, obviously, and so on.
So you're just questioning whether here is the place to insert it. They would do it in some other adjunctive or corollary manner outside Bill C-7 in terms of setting a process.
¹ (1545)
Mr. Warren Johnson: And within Bill C-7.
There are a number of references here to notification and input from residents on a variety of areas, some of which we've talked about and some of which will come up. For example, on the redress, on the access to information, on policies and procedures, and input into law-making, there's a variety of sections where we see that. It's also in terms of the public presentation of the statements and accounts.
Mr. Maurice Vellacott: I guess that's all I'd have to comment for now.
The Chair: Good move. There are ten seconds left.
[Translation]
Mr. Crête, you have 10 minutes.
Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témiscouata—Les Basques, BQ): Thank you, Mr. Chairman. First of all, I have a few questions.
From what I understand of it, the amendment would expand the application of the budget presentation to persons residing on reserves. Would you have an estimate of the number of persons to whom an additional presentation would have to be made, based as well on the number of reserves? Are there places where it's two persons, four persons or six persons, and other places where it would be suddenly 50 or 100 persons? What would be the quantitative implications of this amendment?
[English]
Mr. Warren Johnson: We don't have that exact information here, but if it's important to the committee, we could retrieve that as soon as possible. But even on the individual situations, we were just referencing in the previous discussion, for example, on Westbank, that we're already talking about in the thousands. It's not a small number, but obviously, as was referenced earlier, it's more with respect to those reserves closer to urban areas and the isolated reserves. So it's non-existent for a variety of reserves, but for other reserves it's very significant.
[Translation]
Mr. Paul Crête: All right. So, even if the figure isn't available, that confirms for me that there are places where, ultimately, if the amendment were not accepted, we would really have two classes of citizens in that area, that is the band members who would be entitled to the information and possibly people who are not members and who...
I would like to have your interpretation. Ultimately, wouldn't the amendment eliminate a major barrier of prejudices that will be there? And if we only keep the text of the act as it currently stands, wouldn't we risk having legal challenges from people before long, particularly in the example you cite, who live on a reserve, who are not members of the band, but who are present, and even in thousands, on that reserve and who, at some point, would like to have a copy of the budget or things that are provided for in the clause, and whom the band council will answer that they are not entitled to it, that the council is not required to provide them with it, since Parliament is not deemed to speak for no purpose and since there was a debate, among other things, in this committee? If the clause is agreed to as it stands, don't we risk adding to the legal mess that may arise in this field rather than open the door to better knowledge and the opportunity for people to obtain available information? At that point, many people, once they know what's in the budgets, for example, will be faced with the facts, rather than cultivate prejudices. In that sense, wouldn't you find that appropriate? At that point, would the amendment contradict the general scheme of the act?
[English]
Mr. Warren Johnson: The basis of the question is obviously a question for the committee, but an amendment here would not get rid of those distinctions. Those distinctions exist already.
In an earlier discussion before the committee we referenced that the Supreme Court itself has recognized that first nations governments have at least two constituencies. One constituency respects all band members, whether they're on or off reserve, where there are responsibilities with respect to political representation, the assets of the nation in terms of the land, its capital moneys, disposition of assets, etc.
The other constituency is residents, whoever they are, whether they're members or not, where there are specific program and service responsibilities to the first nations. That situation, which is unique from a governance situation in Canada in some sense, means that different means have to be taken to address the rights and interests of those two types of constituencies of the first nations.
We are referencing a variety of places in Bill C-7, depending on the subject matter. For example, in elections it's membership-based; in law-making it can affect all residents...that all residents, whether they're members or not, should be informed, etc. So there's a variety of places within the bill to recognize those different instruments because the distinction, in a sense, can't be gotten rid of--if that was the gist of your question, that those are addressed.
The question for the committee is whether the presentation of the annual budget--i.e., the expenditure plan--in this specific reference is an issue for members, or members and residents.
To clarify again, in subclause 9(3) the full financial statements, including the balance sheets, expenditure plans, etc., are publicly available within 120 days anyway, so all residents will receive them then, whether or not they are members.
¹ (1550)
[Translation]
Mr. Paul Crête: But to come back to my question, I would like to know whether an evaluation has been done or whether you could tell us what that would entail, in terms of legal challenges, to obtain the information. For example, would the clause meet the Charter test in the case of a person living on reserve land who is not a member of the band and who is not entitled to attend the budget presentation? What type of legal guerilla war can we expect after this clause is passed?
[English]
Mr. Warren Johnson: I'll turn the legal question to my colleague, Mr. Beynon.
Mr. Andrew Beynon: The difficulty with the question is that it is a matter of some speculation as to what kinds of court cases might be brought up. I'm aware of questions surrounding, for example, the tax treatment of band members and persons who are residents of a reserve but not band members. Questions come up about charter treatment of those groups, but that's not dealt with in this bill.
On the question of whether or not a clause saying that a code has to have rules respecting presentation to members of the band, for persons who are not members of the band to try to come forward and say that provision of the act would create a legal situation with a charter challenge I can develop, I'm not quite sure how that would come forth.
In a community, if members as a whole, because of their particular situation and the number of people who were residents but not members of the band, wanted to extend their presentation of the budget beyond band members to include those who were residents of the reserve, a code could go that far.
The Chair: Monsieur Crête.
[Translation]
Mr. Paul Crête: Mr. Chairman, allow me to doubt the practical aspect of that. I expect that, if the bill is passed as it stands, we'll be providing a livelihood for a large number of lawyers.
The following question concerns paragraph 6(4)(b), on page 6, which states:
| (4) An administration of government code must include rules |
| (b) respecting conflicts of interest of members of the council and employees of the band; |
Are band employees band members? Couldn't there be situations in which people employed by the band, who, under clause 7, wouldn't be entitled to access to information and would be included in that group under the amendment introduced by the Canadian Alliance Party? I'm talking about cases where a single group of individuals would include employees who, in legal terms, are currently not entitled to that information. They could be unionized persons concerned by major challenges under this clause. Is it correct to say that those employees wouldn't have access to information, as is the case for band members?
¹ (1555)
[English]
Mr. Andrew Beynon: I think the three groups aren't necessarily the same. Employees of a band could conceivably be band members. They could conceivably be people who aren't members of the band, but who reside on a reserve. But there's also the possibility that they could be people who don't even live on a reserve and aren't band members. So the proposed amendment, by extending to members of the band and residents of the reserve, wouldn't necessarily cover all employees, because some employees could be neither band members nor residents of a reserve. Perhaps others can comment.
This would set the legal standard that codes must provide for presentation of the budget to members of the band. Whether or not a band council, as a matter of good practice so its own employees would know what was going on for their work every year, would present them with a copy of the budget, I don't know.
[Translation]
Mr. Paul Crête: Thank you.
[English]
The Chair: Mr. Martin.
Mr. Pat Martin: Thank you.
I'd like to speak to this amendment as well. Specifically including reference to other residents of the reserve is fraught with problems. On the financial management and accountability code that's contemplated in here, as much as we oppose the principle and the concept of it, it's not that we just reject the very idea. We are concerned that adding the language the Canadian Alliance wants here will further compound the issue, and other residents of the reserve will not have the same rights and privileges of band members, in terms of an obligation to present and show an annual budget for the fiscal year.
In this clause that the Canadian Alliance seeks to amend, the band council must have rules respecting the preparation of an annual budget, its adoption by the council, and its presentation to members of the band. The Alliance would like to change it to read “presentation to members of the band and residents of the reserve”.
As has been pointed out, I know of examples where there are about 15 to 20 full-time residents who are members of a band in an area, and thousands of non-aboriginal people. I'm thinking specifically of Buffalo Point in southern Manitoba, which is largely a recreational cottage area. There are very few full-time band members. You would have an obligation then to present the annual budget to all these other residents of the reserve who are not members of the band and don't have any rights.
So I don't think it has any merits at all. The language we recommended earlier in other codes was that other affected persons may have a right to be included in some aspect of the development of codes, and then it would be left up to others to determine who was an affected person.
If you are passing bylaws about water usage, for instance, on the reserve, people who hold leases to have houses on the reserve and are not members of the band might have a right to be informed about water use or changes to water use, or at least have a right to comment on that type of bylaw. But it should go no further than that, because the relationship....
Mr. Chair, I'm going to call quorum, please. I notice highlighters are disappearing like crazy.
The Chair: We will suspend for quorum.
¹ (1559)
º (1605)
The Chair: Mr. Martin.
Mr. Pat Martin: The point I was seeking to make about the amendment that the Canadian Alliance has put forward about clause 7 is that it begs the question, what happens when the interests of a non-member resident outweigh the interests of the band members and there's a vast difference in the majority? What are the safeguards in this kind of provision for Indians on lands set aside for Indians? Whose interests have primacy? We have to keep that clear in our minds.
I would argue that in the way I'm envisioning it, other residents of the reserve have more of a customer relationship. It's a business relationship. You're leasing land to somebody so that they can build a house, etc. You're making rent or lease payments. That's your client or your customer, but you don't owe them the obligation to show them your annual budget. I just can't see how that would be wise, necessary, or desirable at all.
A more legitimate amendment to clause 7 would be to eliminate it. I don't see tinkering with it.
I don't really see what principle or issue the Alliance is going after. If he seeks to address the interests of somebody who moved back to a reserve or was seeking to regain band membership under Bill C-31, etc., or who had married into a first nations family that was a band member and felt that their interests weren't being represented, I suppose there are other areas in which those things could be addressed, but I don't see how their interests would be better served if somebody showed them a copy of the annual budget or the financial statements. That really doesn't address issues of housing or the right to vote.
Maybe we should have been having this debate on the interests of band non-members who are residents of a reserve or other affected persons in the context of the leadership selection codes. Then it would have been an issue of who should be able to vote. But those things again are within the exclusive jurisdiction of first nations. Membership and citizenship issues are not for us to decide. Throughout history people have become members of first nations by any number of means.
We heard people speaking in more general terms. It's always my hope and wish to express the views of those people who made representation to the standing committee and who brought their views to us, sometimes at great expense and effort and with great hope and optimism. They wrote briefs and came to the standing committee to present those briefs and make their views known, and 99 times out of 100 they had their views ignored.
I feel that it's my obligation to try to reintroduce some of the many points that were brought to our attention by the presentations put forward, and I'll use this opportunity to share one in the context of amending clause 7 of Bill C-7. The Algonquin Nation Secretariat said: “I am requesting that you recommend that Bill C-7 be withdrawn. It is too fatally flawed and the process by which it was developed is too contaminated for it to have legitimacy.” They're using strong language--a fatally flawed bill and the process was contaminated to the point where it doesn't have any legitimacy. So in deference to the comments brought forward by the Algonquin Nation Secretariat, we're wasting our time in trying to fine-tune or amend clause 7 of Bill C-7 when the very people it affects want it to be completely withdrawn.
Grand Chief Dennis White Bird from the Assembly of Manitoba Chiefs was here earlier today, and he said “We find it to be regressive. We find it to be too prescriptive. ... We see so many things wrong with it. It's manipulative, and it's a form of municipalization that the forerunner of the 1969 white paper tried to promote. It's just not acceptable.” He said the bill should be withdrawn. That's another case of strong language from one of the presenters.
º (1610)
Now, the Auditor General of Canada uses much more diplomatic language. She points out that in the interests of accountability--and that is what this particular clause is all about, a financial management and an accountability code.... In making reference to accountability, the Auditor General of Canada said: “Bill C-7 increases the requirements for band councils to report to their members, but it does not change the reporting requirements that exist in funding agreements between First Nations and federal organizations.” She said the present reporting system is not sustainable. That was the Auditor General of Canada.
That leads me to the point I wanted to make about accountability, that there's more than one level of accountability we should be dealing with in revisiting the relationship between first nations and the federal government. There is the administrative accountability of DIAND for the decisions it makes affecting bands and band councils. There is the accountability of the Crown with respect to its fiduciary relationship with indigenous peoples and the corresponding fiduciary responsibilities. And then there is the accountability of band councils to the membership.
There are three levels we see in terms of accountability here. Only one is being addressed in Bill C-7, and many, many presenters who came before the committee said that they wanted some kind of reciprocity of accountability, not just the onerous burden of accountability to be expanded even further in terms of the accountability of band and council to membership.
John Borrows is a professor, the law foundation chair of aboriginal justice and governance at the faculty of lawat the University of Victoria. He says that these proposals in Bill C-7 “take two-decade-long discussions of self-government 180 degrees away from liberation, back to federal oversight and control.” In other words, he believes that Bill C-7—
º (1615)
The Chair: Thank you, Mr. Martin.
We'll have a final word from Mr. Vellacott.
Mr. Maurice Vellacott: Thank you, Mr. Chair.
There have been interesting comments made on this. In respect to that, again, my heart and my spirit are for those first nations people, and I know it has brought in the discussion of non-first-nations persons as well. Maybe the best way at the end of the day is for them to take total control of their own membership lists. For those who are resident on that reserve, who have really been long regarded kith and kin and who are residing there, how do they have their rights protected in that particular situation?
I'm interested in whether we have ever had any cases, to your knowledge--and maybe Andrew would be the one to answer--in terms of any challenge at lower-level courts and maybe at the highest court as well under the charter. It is something we want to have, that individuals, regardless of place of residence, have the basic kinds of protections we all assume. All Canadians, regardless of residency, should have a basic level of freedoms and rights and protections and should be offered all this. Have there been any challenges at any point here in history past along the lines of this whole issue of residency?
Mr. Andrew Beynon: There's nothing I can think of that would really go at all to paragraph 7(a) and the proposed amendment. The only suggestion I could make is litigation in the context of the Musqueam Band's activities on leasehold rights, but I don't really think that issue has any bearing on which way this would fall out.
Mr. Maurice Vellacott: What was the status of that one?
Mr. Andrew Beynon: If I remember correctly.... I'd have to double-check for you, but it had made it at least to the Federal Court of Appeal.
Mr. Maurice Vellacott: That was a basic challenge because they figured that their rights were infringed on or not protected.
Mr. Warren Johnson: If I could comment, that case had to do with the issue of evaluation of leasehold interests. I don't think that case is proceeding any further, but we stand to be corrected on that. The court came to a determination on the appropriate way of evaluating as leasehold interests came due, and they were to be re-evaluated at market rates. How that would be done provided a model that has now been implemented in all lease agreements across Canada.
Mr. Maurice Vellacott: It's getting a little away from the spirit of the amendment here, but how is it playing out in terms of the Nisga'a situation in British Columbia, where individuals there are residing on....? How are they covering off, including the process, maybe those who are not part of the membership?
Mr. Warren Johnson: That's quite similar to what you have here in Bill C-7. There are different aspects. I think there's an advisory council established with specific opportunities to input in areas that affect residents, but not for all residents as opposed to members. They've had the same distinction we're talking about and have dealt with in different aspects of Bill C-7. In some ways I think it's conceptually not that different.
The issue before the committee, where it will come up in a variety of sections, is likely how do the various aspects of Bill C-7 deal with that? You had asked the question, could somebody make a complaint here or a legal challenge based on that? Well, the court would have to look at the other ways their interests are taken care of: were they adequate, or was there something crucial here that needed to be added?
So just to recapitulate, because most of those interests of non-member residents relate to the local program and service offerings of the first nations that apply to them, they have access to those policies and procedures following the lines of Bill C-7. They have a right to redress in terms of the administrative decisions as to how they're applied to them. They have opportunity to input and to be notified on input in law-making because a number of these would actually be law-making functions establishing bylaws, local laws, fees, service functions, etc. We'll see that later. Those opportunities are there.
It's the balancing of all those various aspects of Bill C-7 that would be the judgment of the committee, I think, in looking at any one clause as to whether an amendment would be warranted or not.
º (1620)
Mr. Maurice Vellacott: That's some reassurance. So you think in full confidence that this would withstand, if I understand correctly, a charter challenge if it ever came to that, because of these other parts of the act?
Mr. Andrew Beynon: As I've said before, I can't give legal advice to the committee. I can only say that on this one, I'm hard-pressed to see how the charter challenge would be developed. I agree with what Mr. Johnson has said. Both in the context of Bill C-7 and the Nisga'a Treaty provisions, which I'm very familiar with, there are provisions that deal with the rights of all residents and then other provisions that are specific to band members. It is a question for the committee as to whether you have that balancing right. It's more a policy question, I think, than a legal one.
Mr. Maurice Vellacott: Do I understand, then, that you used the model from the Nisga'a, that kind of template or precursor for how you put this together? Would that be fair to say?
Mr. Warren Johnson: I wouldn't put it that way. We were cognizant of how and did take a look at how, for example, the self-government agreements in the Nisga'a Treaty, that being the most recent and comprehensive one, handled it to see whether this would be out of line or in line conceptually, and we were satisfied with that.
The specifics here were more taken from the consultations, and I think there were representations here to the committee. We benefited from the model provided from various first nations who have excellent procedures in this already, and they were supplied by the Indian Taxation Advisory Board.
This has also been a topic of conversation at the AFN national table on fiscal relations, where they have agreed there is a need to develop these management accountability codes. The Aboriginal Financial Officers Association was also part of the participation process, also made a presentation to the committee, and is looking towards a number of these procedures here and has recommended them.
That's where the specific input came from, and then the result was compared against the other agreements, for example, as we see in Nisga'a, to satisfy ourselves that the balancing was more or less in line.
Mr. Maurice Vellacott: I understand as well in respect to Nisga'a that it's working out reasonably well, so what you've said is reassuring and encouraging there. There's the Chief Mountain challenge or case that's...rather a definition, I suppose.
In view of what's been said at this point, I am prepared to go directly to the vote on CA-18 and get it done.
(Amendment negatived)
The Chair: Mr. Martin, would you address NDP-22?
Mr. Pat Martin: I'd like to withdraw NDP-22, Mr. Chair.
The Chair: Thank you very much, Mr. Martin.
Amendment BQ-23 has been withdrawn.
CA-19. Mr. Vellacott.
Mr. Maurice Vellacott: Mr. Chair, just for our listening audience and for all of us here as well, this is in respect to clause 7 and amends by adding after line 27 on page 7 the following:
| (2) The budget and balance sheet referred to in paragraph 1(a) shall express the financial position of the band in as clear and accurate manner as possible. |
It's just adding a new clause there to the financial management and accountability code that states our basic principle that the budget and balance sheet referred to in that particular paragraph 1(a) expresses that financial position of the band in as clear and accurate a manner as possible.
Again, maybe this is not a precise and technical term here, but I think people just reading normally the English language would understand clearly what this is about. Financial statements should be made available to members in a format that is easily understood. It would seem obvious, I think.
Band members need to be able to assess the band's projected budget in a more thorough manner, and will be able to if they have a full understanding of the band's financial status.
I've had conversations with a number of first nations people. I think particularly of the dear older ladies, grannies, who have those nurturing instincts. Some of them are categorized or designated as elders, others in some cases not, but certainly all have a heart for their children, for their families. They want to know that things are done well for the next generation. They're at the later years of their life now, and these dear folk are smart. They're wise. They may not have the secondary or post-secondary education to understand how some of these things are presented in terms of a financial statement, but even they can understand when it's laid out in a basic elementary fashion that most of us would like and can get a better picture or assessment of how well things are going with their first nation, with those funds that provide for the health, for the education, for the university training for their offspring, for their grandchildren.
It's basically wanting for those folk, and for all band members actually, that they have it in an understandable format. I think this would actually be a good thing for other levels of government as well, not only in respect to the first nations communities. Every effort needs to be made to disclose the financial position of the band to its members and residents and do it in a plain-language manner.
In fact, I've heard in certain parts of our country where they are coming up with an approach that says that all laws and regulations need to be in as plain language, plain-spoken language, as possible. I think this would aid in terms of the transparency.
º (1625)
The Chair: Mr. Vellacott, I've just been advised that this motion is out of order. I will ask the legislative clerk to explain why.
Mr. Jeffrey LeBlanc (Legislative Clerk): The motion refers to the balance sheet referred to in paragraph 1(a). That was what was proposed in CA-17, and CA-17 was defeated, so there is no balance sheet in paragraph 1(a). Therefore, the amendment also should have been considered defeated along with CA-17.
Mr. Maurice Vellacott: Okay.
The Chair: Okay. Thank you very much.
Monsieur Crête.
[Translation]
Mr. Paul Crête: I have a clarification question. Paragraph 7(a) refers to the preparation of an annual budget...
The Chair: Are you talking about CA-19?
Mr. Paul Crête: Yes.
The Chair: CA-19 is done. The amendment was not agreed to.
Mr. Paul Crête: But I'm questioning you about that. I would like to understand the explanation because I don't really understand the explanation the legal counsel gave us, referring to the budget. So I would like him to repeat it.
Le président: All right.
Mr. Jeffrey LeBlanc: Amendment CA-19 moved by Mr. Vellacott states:
| The budget and balance sheet referred to in paragraph (1)(a). |
By amendment CA-17, he wanted to provide that an updated balance sheet had to be submitted. However, since amendment CA-17 was defeated, where is no balance sheet in paragraph (1)(a).
Mr. Paul Crête: So, by concordance, since amendment CA-17 was negatived, shouldn't we consequently agree that the words “and balance sheet” could be deleted, but the budget part retained because budget already appears in paragraph 7(a)? It seems to me you give a very broad interpretation of the fact that the clause is no longer acceptable since it concerns only part of the amendment and it could not be provided for before it was agreed to.
º (1630)
The Chair: We're moving on to amendment CA-20. I've received opinions and I've made a decision.
[English]
Mr. Vellacott, amendment CA-20.
[Translation]
We can't spend two hours on this. We're going to be here for three days.
Mr. Paul Crête: It's a logical argument. Do you have problems with logic, Mr. Chairman?
The Chair: Do you have problems with decisions, Mr. Crête? So accept them and let Mr. Vellacott make his contribution.
Mr. Paul Crête: I acknowledge your profound sense of democracy, Mr. Chairman.
[English]
The Chair: Mr. Vellacott.
We have the same problem with amendment CA-20, because at paragraph 2(a) it says “present the budget and balance sheet”, and CA-21 also.
Mr. Maurice Vellacott: In these cases it is not making a reference back to paragraph 1(a). It's any balance sheet that's ever presented, period.
The Chair: You're the legislative clerk; advise us.
Mr. Maurice Vellacott: In the specific I can accept that, although the point of it is just basically plain language.
The Chair: We'll give the legislative clerk time to assess that, Mr. Vellacott. That's why we hire experts.
[Translation]
I have opinions. There's no point in talking for hours; that's what we're doing in this committee.
[English]
Mr. Maurice Vellacott: [Technical difficulty--Editor]
The Chair: The training for committee chairs on Parliament Hill is zero minutes. So chairs are thrown into a position...
I'm just killing time while we're doing research.
And the rule of order that we have on Parliament Hill is Marleau and Montpetit, which is an interpretation of Beauchesne. If you don't find in Marleau and Montpetit what you need, you're referred by that book to Beauchesne. Beauchesne is a series of essays on Bourinot; if you don't find in Beauchesne what you're looking for, it says refer to Bourinot.
Any expert you talk to on the Hill will say to you, don't use Bourinot, it's too old. And that is why every time a chair makes a ruling, because eventually you have to make a ruling—you're like a referee in hockey, you blow the whistle and you live with it—the members of the committee will appeal through the chair to the Speaker of the House. The Speaker will rule and then say that committees are masters of their destiny. That is what chairs of committees have to work with on Parliament Hill. It's an embarrassment, and that explains to you why we're always in hot water. The best thing to do is not make decisions and you just run forever and never finish any work.
Now I have expert advice and I'll blame him if I make a wrong decision.
Explain it to them.
Mr. Jeffrey LeBlanc: If you were to take out the words “and balance sheet referred to in paragraph 1(a)”--
The Chair: So you're suggesting we accept subamendments on each one of those?
Mr. Jeffrey LeBlanc: I would say amendment CA-19 was moved. Amendment CA-20 hasn't been moved yet. If you could move it without the words “and balance sheet”, then there would be no....
The Chair: Well, based on the information I had, I made a ruling on CA-19. If we're going to allow a subamendment on CA-20, we have to recall amendment CA-19. We have to be fair. We will do that, and I will apologize to Monsieur Crête.
So we are on amendment CA-19 if you're proposing a subamendment or if you ask for unanimous consent.
[Translation]
Mr. Paul Crête: If we have something to correct, that's a sign of wisdom, Mr. Chairman.
The Chair: We do what we can.
[English]
Mr. Jeffrey LeBlanc: If you were to take out the words “and balance sheet referred to in paragraph (1)(a)”...
The Chair: Would you request unanimous consent?
º (1635)
Mr. Maurice Vellacott: I would just take a motion to that effect, yes.
The Chair: If you make a motion, we go to a subamendment and then we go to the amendment. You're going to do it on every one of those.
Mr. Maurice Vellacott: Let me understand this procedurally. It's a domino effect--
The Chair: In the House, when we voted on the first, it would have affected all of the others. I have no doubt about that. But we're in committee, which is an extension of the House but with different rules. Here we go again. But it's nobody's fault. That's what we have to work with.
Mr. Maurice Vellacott: So the fact that we defeated a previous amendment....
The Chair: They would have been grouped. The Speaker of the House can even group votes. We can't even group amendments.
Mr. Maurice Vellacott: Right. Therefore, we would not have gotten into this difficulty in the House. Is that what you're saying?
The Chair: The vote on the first one would have cleaned up all of the others.
Mr. Maurice Vellacott: It would have cleaned up and dealt with all of the others.
The Chair: It wouldn't have brought it back.
Mr. Maurice Vellacott: I admit the fact that we lost the vote on the balance sheet issue. The plain language is the essence--
The Chair: Can I be upfront here? I could have been stubborn and stuck to my ruling, knowing I'm wrong, even when I was reminded. I faced up to my error, and I admitted it. I ask you as a courtesy to the committee, rather than going with a subamendment and putting us through hell, would you ask for unanimous consent? If you don't get it, put your subamendment. And you'll do that on every one of them. Is that fair?
Mr. Maurice Vellacott: Remove the words “and balance sheet”?
Mr. Jeffrey LeBlanc: Remove “and balance sheet referred to in paragraph (1)(a)”.
Mr. Maurice Vellacott: Okay. Budget is referred to there. That's fine.
The Chair: Are you seeking unanimous consent on that?
Mr. Maurice Vellacott: Yes.
The Chair: Can I please have unanimous consent? Do I have unanimous consent?
Some hon. members: Agreed.
The Chair: Thank you very much.
Thank you, Mr. Vellacott.
[Translation]
Mr. Paul Crête: Will we have to do the same thing for each of the following amendments?
The Chair: Yes.
Mr. Paul Crête: All right.
[English]
The Chair: Mr. Vellacott.
Mr. Maurice Vellacott: What time do I have remaining, Mr. Chair?
The Chair: Carry on.
Mr. Maurice Vellacott: I'm asking how much time I have remaining.
The Chair: We're starting over.
Mr. Maurice Vellacott: We're beginning.
The Chair: Yes. We're on CA-19 on page 76.
Mr. Maurice Vellacott: Since you gave me some time on this before, I don't anticipate using the entire ten minutes this time.
To reiterate for the sake of the record here, as we move back to CA-19, I think it's really helpful to people throughout a first nation, a body that's grouped together to hear a budget presentation, probably in a bigger way than anywhere else in government in Canada.... That budget and what is presented before them affects their lives in ways well beyond what any of the rest of us would experience or face.
When a provincial government presents a budget it's not all-encompassing; there are federal aspects outside of it. If a municipal government presents a budget, a whole lot of things outside of it affect the citizens of that particular city. So no budget is probably as all-embracing and all-inclusive as these budgets that affect the everyday lives and welfare, from A to Z, of these first nations persons. So for it to be written in plain language in as clear and accurate a manner as possible would be helpful for the process here, in terms of those first nations people and transparency, accountability--the whole thing.
I hear too often stories. First nations people have come to me and said, “Well, I can't really...the way they write that stuff up in its language”. Then they show it to me and I tend to agree. I've gone to a few years of school myself, but I don't understand all that's being said there, you know. I've served on boards and so on, and there are ways of presenting a budget so it's comprehensive and understandable. Then I can get a sense of whether I support it or not. That's what we want here.
I guess my question to our witnesses here is there might be an accusation or a statement around the table here somewhere, which may be pre-empted or headed off, that this language is not precise enough. I think clear and accurate are pretty precise terms, but is this as helpful as we intend it to be, by way of the amendment we're putting forward now? Is this language that would be helpful or precise enough, or do you want something clearer, in terms of the statement, when I'm talking about plain language, clear-spoken kind of stuff, instead of some of the very complex manners in which budgets are put out?
º (1640)
Mr. Warren Johnson: I think we appreciate the concept you are referencing in terms of the language, even with the change. The budget referred to here is the budget in paragraph 7(a), which is really on the annual expenditure and revenue plan of the first nation. That does not express the financial position of the band.
The financial position of the band is expressed through the statements in subclause 9(1). So there may be a technical difficulty here because it does not say that the budget shall be expressed in as clear and accurate manner as possible; it says the budget shall express the financial position of the band--and that's not the purpose of a budget.
Mr. Maurice Vellacott: Well, this is in reference to the anticipated budget of the band. It's looking to the future. Isn't the point of a budget to kind of lay out what you expect the financial position of the band will be in the year ahead?
Mr. Warren Johnson: It depends on your understanding of it, but the financial positions are embodied in the financial statements. I think that's the way we would view it. The financial statements are referenced in clause 9, not in clause 7, and they're included to present the financial position. There's reference to the practices, in subclause 9(1), of the Canadian Institute of Chartered Accountants because that would require a balance sheet, a statement of revenue and expenditures, a statement of change in financial positions, and all the notes that are normal to those statements and the audit statement. One understands that package to be the complete financial position.
Mr. Maurice Vellacott: You're not objecting to the concept here of a plain-language kind of budget.
Mr. Warren Johnson: Other than the question on financial position, that reflects a statement of intent and is a judgment, so that's fine if the interest is there.
I don't know whether my colleagues have comments on it.
Mr. Paul Salembier: There is one comment we might make. This would imply that the requirement that financial statements be prepared in accordance with generally accepted accounting principles would result in financial statements that were inaccurate or unclear. But GAAP standards are in fact the standards used by all governments across Canada, so requiring something different from GAAP--as in clear and accurate as possible, implying that GAAP standards are not adequate--would not necessarily assist in this circumstance.
Mr. Maurice Vellacott: I understand that. GAAP is a great thing. It's good to have standards like that. But when we're talking about a band of 200 people, a small body of people, or smaller in some circumstances, some of these individuals will have the ability to understand. Maybe one or two have gone to university and have chartered accountant or commerce degrees. I think we clearly understand as well that many have basic and average educations. GAAP is helpful when we have people playing at the levels of corporations, major city councils, and so on, but in those very small band situations it's clearly necessary to get this in a language that's helpful to the people.
Maybe the difficulty lies in the fact that we're covering small bands of a few hundred or a couple dozen people, like some in B.C. Others are larger, like Six Nations in southern Ontario, and are run in a far more sophisticated manner. Is that where the difficulty lies? Are you not aware of the fact that out there in first nations country...? Have you never had complaints come in saying they can't read and understand this GAAP stuff, they can't understand the CA-provided or third-party management statements? These are ordinary people. They're not individuals who have chartered accountant or commerce degrees, or whatever.
Do you know what I'm saying? Have you ever had complaints or concerns expressed about that? I have. Has it never come your way?
º (1645)
Mr. Warren Johnson: On the question of my colleague here, it appears that we get those statements, but at the same level of frequency as we all do. Sometimes financial statements aren't as clear as people would like them to be.
Mr. Paul Salembier: I think the real question here is whether first nation governments should be held to a different standard from other governments in Canada. As I mentioned, you'll find that GAAP standards are required for reporting throughout all federal legislation.
Mr. Maurice Vellacott: Is there not a way of still having GAAP but setting alongside of it a much more simplified plain-spoken version? Is that a possibility? Is there a way to tag these together?
Mr. Warren Johnson: In an attempt to be helpful, I think the issue may be the presentation of the budget, not the budget itself.
Paragraph 7(a) talks about the preparation of a budget and its presentation. So in presenting it to the members of the band, one hopes it is a clear and concise presentation. That's a function of the presentation. That's one way of dealing with it, as opposed to the issue we're dealing with here of whether this implies a change in standard, or whatever.
But coming back to it, the wording we have.... Paragraph 7(a) refers to the annual budget; this refers to the budget. It's not clear that they're the same thing. But the reference is here, and it's not that that would be expressed, but that the financial position of the band would be expressed in a clear fashion. This is not what expresses the financial position of the band; the accounts in subclause 9(1) do that.
The Chair: Thank you.
[Translation]
Mr. Crête, you have 10 minutes. I won't repeat it every time. It's still a 10-minute limit.
Mr. Paul Crête: Mr. Chairman, I understood that we could introduce a sub-amendment. Is that in fact what you told me?
Le président: Yes.
Mr. Paul Crête: In view of the exchange that took place, which I find interesting, the amendment now reads as follows:
| The budget [...] shall express the financial position of the band in as clear and accurate manner as possible. |
I would like the clause to be amended to state: In accordance with section 8 and subsection 9(1), the budget shall present the financial position of the band in as clear and accurate manner as possible.
Le président: We're going to wait while you write it.
Mr. Paul Crête: I'm going to write it immediately, and I'm going to speak as I do so. You can count my minutes right away.
The purpose of this amendment to the amendment is precisely to ensure that the budget will be presented in accordance with the financial statements referred to in section 8 and subsection 9(1), which are audited financial statements in acceptable form. So I ask that the clause be amended to add “conformément à l'article 8 et à l'article 9” after the word “présente”.
We can argue about my amendment to the amendment, if you agree.
The Chair: We're going to request a little time to see if it's admissible.
Mr. Paul Crête: All right.
º (1650)
[English]
The Chair: I will ask our legislative clerk to read the subamendment.
º (1655)
Mr. Jeffrey LeBlanc: Mr. Crête has agreed to reword the subamendment so that it makes it a little clearer what he's looking for.
[Translation]
A comma should be added after the word “possible”, and then it should read:
| à partir des états financiers prévus à l'article 8 et au paragraphe 9(1). |
after the word “possible”.
The Chair: So, Mr. Crête, let's discuss the amendment to the amendment.
Mr. Paul Crête: Mr. Chairman, if I understand correctly, we're starting a new round on the amendment to the amendment.
» (1700)
The Chair: Yes, Mr. Crête. You have the floor.
Mr. Paul Crête: Thank you, Mr. Chairman.
I decided to introduce this amendment to the amendment because, based on the exchange between Mr. Vellacott and the department's experts, it seems to me we must avoid falling into a kind of paternalism under which we would ultimately treat the people of the Aboriginal bands as if they were not adults. They are capable of producing high-quality financial statements, but, at the same time--and we're living in our own parliamentary system--there is a necessary concern for clarity.
I refer, for example, to the defence of votes, where piles of documents are brought before us here in which we have to find what is relevant and what is not. At the other extreme, people can also arrive with a sheet of paper containing a budget for the upcoming year, but which makes no reference to audited financial statements. That could also be subject to a major challenge and would not have the basic credibility necessary.
So the amendment to the amendment I am moving is that the budget present the band's financial situation as clearly and precisely as possible, that is on the basis of the audited financial statements referred to in clause 8 and subclause 9(1). In this way, we are ensuring that the basis of the budget submitted can be nothing else than the audited financial statements from the previous year.
The actual situation is that, to comply with the clause, a band chief or band council could present something that is not based on the past, that does not take the actual situation into account. It should therefore be possible to correct the situation accordingly. That's the purpose of my amendment.
However, Mr. Chairman, I see that we don't have a quorum. So I'm asking you to call a quorum.
The Chair: Six, seven, eight...
[English]
Quorum call.
» (1702)
» (1720)
[Translation]
Mr. Paul Crête: How much time do I have left?
The Chair: You're at two minutes and thirty seconds out of 10.
Mr. Paul Crête: Since there are new committee members opposite us who haven't listened to the argument, I'm going to go back to the start so that we get it straight.
The clause of the bill provides that the budget that is presented to the members of the Indian band will express the band's financial position in as clear and accurate manner as possible.
There was an exchange between Mr. Vellacott and the experts on how to ensure that that budget, the document that will be submitted, is of sufficient quality for there to be adequate information.
Of course you have to be careful not to fall into excessive paternalism, as we have in the past in our relations with the Aboriginal nations. They are people who are perfectly capable of understanding financial statements. I've seen some elsewhere in Quebec who are doing just fine financially, very profitable, who have had major economic success.
But, on the other hand, whether it's Aboriginals, whites or any community, we know perfectly well that it is not necessarily easy to understand financial statements or budgets. From the exchange between Mr. Vellacott and Mr. Johnson in particular, I believe, I came up with the suggestion that we should ensure that that budget is based on the financial statements referred to in clause 8 and subclause 9(1).
Those clauses guarantee that the financial statements from the previous year, on the basis of which the budget estimate would be prepared will be audited financial statements, and thus financial statements that have been approved by an auditor and are not figures pulled out of a hat, somewhat in the same way as a government budget can be prepared, but based on the economic reality of the previous year.
So, for example, no one could include in a budget a debt repayment that was not consistent with the debt appearing in the financial statements. That would ensure a solid base in that area and, with that guarantee provided by an auditor, by someone recognized by a professional association, then we would have a greater chance that the budget presented could be readily comprehensible and accurately reflect the band's financial situation.
Obviously we must also give the people who are going to do this some flexibility and trust their ability to make a clear presentation. I don't wish on them what we often receive when we're studying votes in Parliament, that is to say piles of documents requiring hours and hours of research to understand and find what we need. That's not what I hope for them, quite obviously. But I hope there will be the necessary maturity--I believe that will be the case with regard to the Indian bands--to ensure that the documents are comprehensible, sufficiently clear and stated in laymen's terms.
But the amendment to the amendment I am proposing would give us an assurance that the budget is based on previously audited financial statements. That's why I'm moving this sub-amendment, Mr. Chairman.
» (1725)
[English]
The Chair: Is there anyone else?
Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chairman.
Thank you, Mr. Crête, for the work that you put into this subamendment and for the thoughtful presentation of the important views you bring to the debate.
I'm inclined to agree with you, and I do appreciate that you took an amendment to the clause that was put forward by the Canadian Alliance, which I was prepared to speak against. I personally didn't feel that the Canadian Alliance amendment had merit or would elevate the debate or serve the interests of this initiative at all, and you've added another element to it. You've added a development to the proposal by the Canadian Alliance that I think is worthy of our consideration and is worthy of deeper review and deeper analysis.
What I do regret--and I point this out for the benefit of those people who are new to the committee or who are just joining in order to fill the quorum obligations on the other side--is that there is no one here from any first nations community that we can bounce this idea off. I lament when I look around the table and see a bunch of white men in suits, with the exception of one white woman in a suit. If we are going to make any amendments to this bill, we owe it to the very people who will be affected by the bill to seek out their counsel and their input and their reaction to the bill, or to any aspect or any detail of the bill.
Notwithstanding the fact that I may agree that this idea has merit, it's again a shortcoming of the work of this committee that we're doing without the input or the participation of first nations. I have been trying to represent some of the views that were brought to our attention in various submissions made by first nations, and one of the main themes that came through is obviously the subject of sovereign nations. It's the very definition of self-government of a sovereign nation to be able to design their own codes of governance and practices and so on that are suitable to customs and traditions and so on of that entity.
So, again, I believe it's a shortcoming in the whole process that we aren't taking into consideration comments when we hear informed people, people who are actually authorities in this field, people who have dedicated their lives to the study of governance issues as they pertain to first nations.
When we hear the opinions of people with that sort of experience and tenure telling us that Bill C-7 is so flawed and has such little merit that it should be withdrawn altogether, for us to not take that into account is, I believe, being irresponsible--I guess that's the word I'm looking for. If we are going to go out and consult and ask people's views, what good is that if we don't take their views into consideration as we work on amendments to this bill?
I cited the Auditor General of Canada, who had comments to make regarding the very financial accountability measures that we seek to address in clause 7 of this bill when she commented on the present reporting system, on the accountability provisions of first nations as they stand, that if anything, first nations are over-audited, that they already have an onerous burden with the amount of paperwork they have to fulfill just to keep their revenue streams flowing from the various funding agencies.
I would like to quote Professor Larry Chartrand, who is the professor of the faculty of law at the University of Ottawa. He entitled his presentation to this committee “On the Wrong Road”. He actually felt that we were making a fundamental mistake in proceeding with this. He even suggested that international human rights law, domestic constitutional law, and morality itself do not allow Parliament to act unilaterally or to enact legislation that has an impact of the nature contained in Bill C-7--in other words, a complete condemnation from authorities on this subject.
» (1730)
The Canadian Bar Association's national aboriginal law section said that the Canadian Bar Association's primary objectives are improvements to the law and in the administration of justice. They said it is for these reasons that we ask that this bill be withdrawn. The Canadian Bar Association's national aboriginal law section asked specifically, in fact gave direction to this committee, that this bill be withdrawn.
I think what we are having difficulty with, I suppose, and perhaps it's a failure on the part of this committee, is that we haven't incorporated the views of enough first nations people on this committee. This was why I moved the motion to expand the membership of the committee to include first nations. But we've failed to incorporate the input we have received from a number of the witnesses who made representation to the committee; we've failed to try to listen to them and think outside the box in terms of our relationship and to make accommodation for the views that were brought forward.
Consultation without accommodation is meaningless. If you ask somebody their opinion of something and they suggest, here's what you should do, and then you ignore it, it hasn't been a fair consultation process. What we have to do as mainstream Canadian society is get our minds around another level of government altogether. We're willing to acknowledge the unique status of first nations to a degree, but we're going to have to expand that now to recognize the sovereign right of the first nations as a governing body with the right to govern themselves with their own codes and systems, etc.
I see the bells are ringing to call the members back to the House of Commons for a vote. But as we go into the evening, a long evening of debating the various clauses of Bill C-7, we shouldn't lose sight of the fact that we shouldn't be around this table at all, never mind the fact that we'll all be exhausted by midnight, and you can't make good law when you're in a state of exhaustion.
Notwithstanding the fact that the substance of many of the aspects of the bill has been condemned by leading authorities on these subjects, both aboriginal and non-aboriginal, around the country, the very simple fact of the matter is we have no right to move forward with this legislation when everyone virtually across the country has unanimously condemned the bill. When those who should be our partners in this exercise of moving the issue of first nations self-governance forward say that we've got it all wrong, that we should stop right now, we should back up, we should withdraw this bill, then we really have no business sitting now, or 2 hours from now, or 10 hours from now, as the clock starts to ring toward midnight.
My question has to be to this committee, what is the pressing urgency about this bill when we've been told by everyone concerned that there's no support across the country, that fully 191 opposed and 10 in favour was the standing count of the presentations made? What is the urgency that compels us to move forward in spite of overwhelming opposition to the contrary? I haven't heard anybody on the government side say anything to convince me that it's a state of national emergency that warrants moving forward and potentially damaging what's left of the relationship that exists between first nations and the Government of Canada.
Nobody has been able to convince me that the circumstances out there in the various communities are of such a state of affairs that it warrants the heavy-handed intrusion of the federal government. By heavy-handed I mean that we've been cautioned, we've been advised, by numerous legal opinions that in fact this bill violates, or infringes upon at least, constitutionally recognized aboriginal and treaty rights.
» (1735)
Now knowing what we know, we've been told this by legal experts, the Canadian Bar Association, the Quebec Bar Association--
The Chair: Mr. Vellacott.
Mr. Maurice Vellacott: I have some things to say with respect to the subamendment here. Would it be in order to make a motion to adjourn for at least the purposes of the vote?
The Chair: A motion to adjourn for the vote.
Mr. Maurice Vellacott: For the purposes of the vote, and then resume.
The Chair: To suspend for the vote.
Mr. Maurice Vellacott: Suspend for the voting.
The Chair: Until five minutes after the end of the vote. Is that all right?
Mr. Maurice Vellacott: That would be fine.
(Motion agreed to)
The Chair: We'll resume five minutes after the end of the vote, and you will have the floor on the subamendment.
» (1736)
¼ (1830)
The Chair: We'll go to Mr. Vellacott on the subamendment. I understand there will be food, la nourriture qui s'en vient, at seven o'clock.
Mr. Maurice Vellacott: With respect to the amendment that came from Mr. Crête on this one, it took me a little by surprise, but I can't say I disagree with it. I think what he's trying to do is almost in terms of a balancing off of my wanting it in plain and clear language. In deference to our witnesses here, he still wants it to be obviously in terms of normal accepted accounting standards and so on.
I had no intent to really undermine that principle such that we would have it all done in the most standardized and highest of standards. So on that matter I think I would be supportive of his subamendment here. I don't think it undermines, or guts, or undercuts the whole point of my particular amendment, which was to basically have clear, plain language statements so that ordinary band members could grasp and comprehend what was there. There was no attempt, or was it in any way meant, to say that we want this in a manner that is not acceptable to the Canadian Institute of Chartered Accountants. I'm supportive of the amendment. I will vote in favour of it.
With that particular basic expression of support, I think I would let it go to a vote and then we'll move to our amendments thereafter.
[Translation]
Le président: Mr. Crête, do you wish to make any closing comments?
Mr. Paul Crête: Mr. Chairman, may I ask the experts' opinion? I would like to know the views of the departmental people on the amendment I've introduced. Do they feel it will provide greater assurances that the budget will be presented in proper form or that it's not necessary? What other implications do they see in such a proposal?
[English]
Mr. Warren Johnson: I think to answer that question, if it's appropriate, we would have to look at the complete clause with the amendment. If I have it correctly, the comments would be as follows. It would start “The budget shall express”. Since this would be in clause 7, then I take it it would be clear that referred to the annual budget in paragraph 7(a) “The budget shall express the financial position of the band”. The issue remains that the budget is not where one finds the financial position of the band. That's in the balance sheet. So that issue wasn't dealt with, with respect to the subamendment. Then the amendment continues with “in as clear and accurate manner as possible”. So it's the financial position, not the budget, that's being prepared in as clear and accurate a manner as possible. Then it would continue based on the subamendment, as I understand it, “based on the financial statements outlined in clause 8 and subclause 9(1)”.
The difficulty there may be a question of interpretation, because the budget is the expenditure plan, the forecast for the year to come, according to the way clause 7 is now crafted, to be submitted sometime in the last quarter of the preceding year, whereas the financial statements referred to are only available 120 days after the end of that year, which would imply, although it would remain somewhat ambiguous, that the only way to fulfill this requirement would be to use the previous year's financial statements.
[Translation]
Mr. Paul Crête: You're asking whether that's part of the general scheme of the clause and the act. I believe so. The spirit of the act is that we should ensure that the people in the bands behave responsibly, but that we also have a minimum guarantee that it will work. I agree that there is a big difference between the notion of a budget and the notion of financial statements, but the budget is prepared on the basis of financial statements from the previous year. It is an estimate of what one hopes to implement for the coming year, financial objectives that one wants to achieve. The budget is presented to band members to see whether they agree or have suggestions or comments to make.
I feel my motion does not contradict that. Of course there is a difference between a budget and financial statements, but we suggest that the budget be prepared on the basis of existing financial statements to ensure there is a realistic basis that deserves to be supported. Your arguments do not convince me, and I find that the amendment is still as justified. I also think that, in a few years, we will realize that this amendment would have enabled the situation assessment and budget preparation work to become increasingly important and band members to be more involved, which appears to be what we want. The budget would be prepared on the basis of an objective, realistic starting point certified by an auditor, and I believe that would make it possible to achieve the purposes of the act. That's why I have moved this amendment to the amendment, Mr. Chairman.
I request a recorded vote on the amendment to the amendment.
¼ (1835)
Le président: A recorded vote on the amendment to amendment CA-19.
[English]
(Subamendment negatived: nays 5; yeas 3)
The Chair: We are now on the amendment. Mr. Vellacott and Mr. Crête have spoken on it. Can we go to final comments?
Mr. Vellacott.
Mr. Maurice Vellacott: I have some final comments, unless somebody else wanted to speak first.
Mr. Pat Martin: If I could ask, Mr. Chair, what is the procedure here? We were partway through debate on amendment CA-19 and then a subamendment was moved. We began debate on the subamendment. Do we resume where we left off on CA-19? I don't believe I've spoken on CA-19.
The Chair: No, you haven't spoken. I was hoping I would get you off guard, but you're astute, and you must indicate to me that you wish to speak.
Mr. Pat Martin: I understand. I just wasn't clear where we were.
The Chair: And to be fair to you, I'll say to you now, I will not seek more speakers than we're getting already. You did not speak, so the floor is yours, Mr. Martin.
Mr. Pat Martin: Thank you. I don't believe we have a quorum anyway so I think it would be an appropriate time to wait until we have quorum.
The Chair: Quorum call.
¼ (1839)
¼ (1840)
The Chair: Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair. I'm happy to have an opportunity then to speak to the amendment that the Canadian Alliance has put forward, Canadian Alliance 19, the 19th attempt that they've made to amend Bill C-7. I note that most of the amendments being debated today are from the opposition parties. It's the opposition parties that have found a great deal lacking in the bill and very little that we can support in the bill. We're doing our best in an earnest way to try to amend this legislation to make it less offensive to the people who are affected by the bill.
I note, though, in dealing with the amendment put forward by the Canadian Alliance, that it was necessary for them to delete reference to the “balance sheet” in their amendment, and it was by unanimous consent that we deleted that reference. But we still have the wording that the budget referred to in paragraph (2) “shall express the financial position of the band in as clear and accurate manner as possible”. If this bill is supposed to be about transparency and accountability, I have no objection to reference to that if it's going to improve the situations in any community that sees fit to adopt these kinds of measures. But language like this implies that there is no accountability and transparency currently or that there's a great want for it, a great shortage, a great lacking.
It seems to me, Mr. Chair, we're out of quorum. Thank you.
The Chair: Quorum call.
¼ (1840)
¼ (1843)
The Chair: Mr. Martin
¼ (1845)
Mr. Pat Martin: If it's Tuesday, this must be transport.
I'm glad we do have quorum so I can continue my views of the Canadian Alliance amendment to Bill C-7, and I point out that the whole exercise, the whole study of this bill, has been hampered by a reluctance on the part of government to release the documents we believe were necessary in order to do our job properly.
Now, it may interest members opposite to know that I moved a motion early on because we have legal opinions that suggest that Bill C-7 infringes upon constitutionally recognized aboriginal rights. The government claims they have legal opinions to the contrary, yet they won't table those documents with us. We're at a disadvantage from the start in that the members of this committee don't have all of the information. The members of this committee are operating blind, if you will.
If the government does have documents and legal opinions they have either developed or commissioned that say that Bill C-7 does not infringe upon constitutionally recognized rights, you'd think they'd be obliged to table them. You'd think that if we moved a motion at this committee asking for the committee to have all the information, we would have it. It does a disservice to the very issues we're trying to deal with. It trivializes the issues we're trying to deal with when people are playing politics with lack of information.
I note that in at least one other standing committee of the House of Commons--and it's a committee of which I'm in fact a member but at which I couldn't be in attendance--the members of the committee felt they couldn't proceed with the clause-by-clause analysis of Bill C-25 until such time as they had all the information and all the pertinent documents. Members of that committee saw fit to suspend their analysis of Bill C-25 until such time as the government produced the documentation, the relevant and pertinent documents associated with that bill.
Time and time again I have tried to get the government to release the documentation pertaining to this bill, and they've refused. They've refused by way of motion and they've refused by way of formally introducing a 48-hour notice motion. They won't show us the documents they have. They won't even tell us about the documents they have, the research they've done, or the legal opinions they've developed.
How are we supposed to move forward with this bill when the Canadian Bar Association, the Quebec Bar Association, the Indigenous Bar Association, and university professors right across the country tell us that the bill does infringe upon constitutionally protected, acknowledged rights? The government says it doesn't, but it won't produce their evidence. We'll show them ours, but they won't show us theirs. So we're at a serious disadvantage here right from the get-go.
That being said, this particular amendment deals with financial management and accountability codes, which the bill says must be developed and must include rules. The bill then goes on to explain those rules in great detail. This particular amendment adds even further to that list of prescribed steps first nations must take, even though it undermines the very idea of self-government to impose codes of governance on independent, free, and sovereign nations, which is how we should be viewing first nations. It undermines the very idea of self-governance.
But having said that, we're also disappointed that this particular clause they're trying to add now fails to take into consideration the development work that has been done in improving the administrative capacity of first nations across the country. There have been partnerships developed across the country between the chartered accountants' association of Canada and the Assembly of First Nations, where they share information, where they help to develop and build administrative capacity among first nations where people have sought out that help. The guaranteed or the generally accepted accounting practices we use and that are commonplace with this level of government are the accepted accounting practices used among first nations. Audits are conducted in keeping with the obligations, a mandate of the act as it stands. If anything, the Auditor General says, first nations are over-audited.
She says they're put in a fishbowl and put under a microscope, held to a higher standard than any other level of government or even any private sector enterprise. But if you add to and even compound this by making it necessary that the budget referred to shall now be expressed in a specific way, above and beyond the generally accepted accounting practices, and then shared with members of the band, you fail to recognize the very real skills that are currently in practice and in place in communities that are keeping these books. In fact, it again implies that the current budget, books, or financial statements as they're kept now are in a state that is not clear or accurate.
It's coming from a completely negative view of the status quo and it implies that abuse or maladministration of financial statements and budgets is so rampant and so commonplace that it warrants and justifies this intrusion, the heavy hand of government, dictating in a paternalistic and neo-colonial way again the actual accounting practices or the financial activity records of first nations communities.
Now, as we've noted time and again, first nations leaders and people from non-aboriginal civil society have come forward as witnesses to this committee and have found fault with the whole idea, the whole general idea, where this committee is crafting legislation first nations across the country have made it abundantly clear they do not want, legislation that does not meet their needs and that they are offended by.
Yet we continue this exercise. Having turned a deaf ear, we either cannot or will not--it's almost a wilful blindness on the part of some members of this committee--listen to what we were told by the experts, by the authorities, by the people who have dedicated their lives to elevating the standards of living conditions in first nations communities, whether they be the legitimately elected leadership of first nations, who the minister specifically chose not to listen to because he didn't like their message, or the mainstream churches, many of whom have been involved in the development of first nations from one aspect or another for many years.
We chose to ignore the United Church of Canada when they said withdraw Bill C-7 for any number of good reasons. I have their report here, and I'll be happy to quote from it as we work through the night. The Anglican Church of Canada, the Bishop of Moosonee, all the Mennonite council, virtually all the mainstream churches that came before us pleaded with the committee to not go forward with Bill C-7 because we're further damaging the relationship between first nations and the Government of Canada. They believe that Bill C-7 is going 180 degrees in the wrong direction in terms of enabling.
In fact, it's such a misnomer. The very fact that the bill is named the First Nations Governance Act implies it has something to do with self-governance, when in fact--
¼ (1850)
The Chair: Thank you.
Mr. Vellacott, could we have your closing remarks?
Mr. Maurice Vellacott: With respect to the particular motion before us now, I'm prepared to take it to a vote and get the judgment of members at this time.
(Amendment negatived)
The Chair: We're on amendment CA-20, Mr. Vellacott. I hope we don't start debating until we modify it, if that's what you want to do.
Mr. Maurice Vellacott: That was my question for the clerks here: was this one in need of amendment at any point?
Mr. Jeffrey LeBlanc: You should take out the words “and balance sheet”.
The Chair: In proposed paragraph 7(2)(a), the first line, remove “and balance sheet”, and at the end of proposed paragraph 7(2)(b), the next-to-last line--
Mr. Maurice Vellacott: My question is, because there's not a specific reference to proposed paragraph 7(1)(a), is there a--
Mr. Jeffrey LeBlanc: In reference to the concept of balance sheet, if you left it in there without defining why you had a balance sheet, it doesn't really make sense, with amendment CA-17 in mind.
The Chair: Are you moving your amendment, Mr. Vellacott?
Mr. Maurice Vellacott: I'm certainly moving the amendment. I'm just questioning the wisdom of why it can't stay intact, because this is not a reference to 1(a). I think it stands valid as it is before us.
Mr. Jeffrey LeBlanc: This reference to the balance sheet is nowhere else—
Mr. Maurice Vellacott: But we have it.... Well, no, just because we've negated it in that other place, that's not say to we can't ever talk balance sheets anywhere in the bill elsewhere, does it?
The Chair: You didn't create the requirement for a balance sheet.
Mr. Maurice Vellacott: Well, I don't need to create it. I'm making a reference to it here. If you want to vote it down based on the fact of it at this point, then that's valid to do that.
The Chair: So you want to leave it in?
Mr. Maurice Vellacott: I think leave it in. I think it's valid as it is.
The Chair: We're dealing with amendment CA-20 as is.
Mr. Vellacott.
Mr. Maurice Vellacott:
I'll just read it off for us:
| That Bill C-7 in clause 7 be amended by adding after line 27-- |
So it's added a whole section here.
| (2) The council of each band shall conduct an annual meeting, which shall be attended by the auditor, during which the council shall |
And if you have some third-party manager here, then they should be on the hot seat, as the case may require, and should be there to answer as well, so the council shall
| (a) present the budget and balance sheet to all members of the band and residents of the reserve in accordance with the financial management and accountability code; |
The budget is prospective and the balance sheet is looking backwards, in terms of a glance at the past.
| (b) allow sufficient time, after the presentation, for members of the band and residents of the reserve to submit to the council and to the auditor questions and comments relating to the budget and balance sheet; and |
| (c) make every effort, with the auditor, to give a thorough answer to all questions put to them. |
I think it's fairly straightforward there. We're just adding this new section that includes an annual meeting held by the council where the auditor--this is the key thing here--presents the budget, the balance sheet, and makes the time available to answer any and all questions by members--and reserve residents, I guess, would be a preference as well. They can be at this meeting, I would hope, with the help of the auditor.
The financial statements--I made the point before in a previous amendment, but it's inferred here as well--need to be easily understood. I think it's a basic right. When for so long a people have been disempowered, if you will, in terms of getting a handle on their own affairs and so on, for them to be able to understand and comprehend clearly and simply the financial statements before them makes for a heightening of responsible government. Band members are in a position to assess the band's projected budget in a more thorough manner if they have full understanding of the current financial situation of the band. It sets them up to have greater ease then to be able to ask questions as well.
I think it goes without saying that every effort should be made to disclose the financial position of the band to its members. I think in numbers of bands that's the case, but there are always other situations where there may not be that preference to do so. Transparency is needed in all good governance, as books and academic pieces written on it confirm. It is most important in the financial aspect of governance. I think having those auditors there is a good thing, as is having them there to respond to questions members of the band may have. Every effort should be made to answer the questions.
I want to ask our witnesses again, just to be sure.... I'm not a lawyer, but we've done a careful look at all of these in terms of some legal impact. Can we be given to understand if there are any legal issues or problems with having an auditor appearing and responding to questions in a proposed annual meeting? Is that something that's verboten or a problem at all for...?
¼ (1855)
Mr. Warren Johnson: No, that's quite normal. The difficulty is that the auditor doesn't audit the budget, and this is with reference to the budget, so the auditor would be ill-placed to answer questions on the budget. The auditor audits the financial statements in clause 9, so this amendment may be placed in the wrong section of the act.
The other difficulty that is created by putting it in clause 7 as well is that makes it part of the governance code, and as part of the governance code, anything in it can be challenged with respect to the redress mechanism. When we have terms that are subject to debate, especially perhaps among lawyers, with all due respect to my colleagues, such as “sufficient time”, “every effort”--all of that--because it's in a code, it can now be challenged that there was insufficient time, there wasn't every effort. Some mean-spirited person could tie a first nation up in knots by seeking redress on all of these items because it's placed in clause 7.
The other reference too with relation to that is it says “each band according to the financial code”, but not each band may have a financial code. So it's not clear what would take precedence, the “each band” or those with financial codes.
Mr. Maurice Vellacott: Where was this last remark directed to in the clause here?
Mr. Warren Johnson: It reads “the council of each band”, and this is in the section on financial codes, clause 7; and then in paragraph (a) it says “in accordance with the financial management and accountability code”. Well, not each band may have a “financial management and accountability code”, so the question is, what happens to those bands that don't have financial management and accountability codes but that for whatever reason use the fallback regulations in lieu of developing their own code? There's a potential contradiction there.
The placement creates a number of issues here that combined with the wording...
Mr. Maurice Vellacott: Well, let me understand that then. If they're going with a fallback code, then isn't this a reference to the default code at that point?
½ (1900)
Mr. Warren Johnson: Not legally, I don't think, no. The fallback regulations aren't codes. The way the act defines the codes or what the bands define themselves, should they wish to replace or alter in any way at any time the fallback regulations--they have their choice.
Mr. Maurice Vellacott: You're saying if they write it themselves, that's called “code”, right?
Mr. Warren Johnson: Right.
Mr. Maurice Vellacott: If they decline to do that or omit to do that, and it's the government's, or what they put in place there, impose, or whatever, that default is not called a code?
Mr. Warren Johnson: That's correct. That's called a regulation in the act.
Mr. Maurice Vellacott: Okay. So we've been using the term rather loosely when all along the way for several months now we've been calling it “default codes”. Is that correct?
Mr. Andrew Beynon:
Yes. I think in common parlance some people have called it “default codes”, but strictly speaking, in accordance with the language of the act, it's either a code or it's the regulations. By way of example, subclause 4(3) of Bill C-7 would be the kind of language where it says:
| While a code adopted by a band is in force, regulations made under section 32 providing for the same matters as the code do not apply to the band. |
I'll just read that again. On page 4 of Bill C-7, subclause 4(3) is a good example of the language used in the bill to draw the distinction between codes, which bands may adopt, and regulations, which apply as the fallback. You'll see there:
| While a code adopted by a band is in force, regulations made under section 32 providing for the same matters as the code do not apply to the band. |
The language clearly draws a distinction between codes and regulations--codes for fallback regulations.
The point Mr. Johnson is making is that in this proposed amendment, in paragraph 2(a) at the end, when it says “in accordance with the financial management and accountability code”, that could only be a reference to a code, if adopted by a band; it couldn't be a reference to the regulations.
Mr. Maurice Vellacott: Now that's interesting. You probed into something a bit interesting, but is it just not a matter of semantics for a term that's used? Are they not the same effect--a code and a regulation, as you call it?
Mr. Andrew Beynon: I think it is more than a matter of semantics. It is a matter of proper drafting. This proposed amendment would say you must present the budget to the members in accordance with the financial management and accountability code. That's relatively straightforward if there is a code. As Mr. Johnson suggests, it's a bit hard to understand what the obligation is if you haven't adopted a code.
Mr. Maurice Vellacott: So it would have been better to say “financial management and accountability code or regulations”.
Mr. Andrew Beynon: That might be the drafting solution to that point.
Mr. Maurice Vellacott: Okay.
Let me understand this in terms of the legal strength of it. Whether it's the code they write themselves or the regulations the department applies, the default regime, if you will, that still has the same binding force and effect, does it not? It still governs their day-to-day lives, those various issues and subject areas and so on, for all intents and purposes in the same way, does it not?
Mr. Andrew Beynon: Yes, I believe so.
Again, I would refer back to subclause 4(3), the provision I referred to before, where it says:
| While a code adopted by a band is in force, regulations made under section 32 providing for the same matters as the code do not apply to the band. |
That language suggests that either regulations apply to a band or a code applies to a band.
The Chair: Thank you, Mr. Vellacott.
Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chairman.
I'd like to speak as well to Canadian Alliance number 20, the 20th amendment that particular opposition party has made to try to improve Bill C-7. I note that all of the opposition parties are faithfully submitting resolutions in an effort to improve this bill but are not having a great deal of success.
I would point out that one of the questions we asked was about the impact any aspect of Bill C-7 might have in terms of liability or the impact it might have on outstanding court challenges, and we weren't given that information. Looking at the amendment put forward by a member from the Canadian Alliance, I'm wondering again about the liability or about challenges in terms of obliging a certain process by legislation. There have to be some consequences or some sanctions associated with failing to comply with that language.
This is a real burden, what's being proposed here, in that the band council conducts an annual meeting--that's one thing--attended by the auditor--another thing for a remote northern community--during which the council shall present their budget and balance sheet to all members of the band and residents to the reserve again.
Now, let's explore this maybe to its logical conclusion. Suppose some small community failed to comply with these provisions in that it was difficult if not impossible to ensure that their auditor was in attendance at the annual meeting and that it was impossible to circulate the information to the thousands of people who might be resident on the reserve but who weren't band members. What would happen then? If someone grieved and complained, ultimately, with the new Bill C-7, they'd be able to sue the community in its new legal status for damages--if there were any damages associated with it--instead of going to the minister with a complaint. I'd be interested to know if you're opening the door to a whole flurry of complaints along with the prospect of a band failing to comply with this new, onerous burden.
The second observation I'd make is that--I raised the point earlier--we sometimes tend to confuse “governance” with “government”; we interchange those words, something we should be careful not to do.
In some of these amendments we're also confusing the way a government should conduct themselves and the way a business or corporation conducts themselves, and the two are not necessarily the same or interchangeable either. I've heard the Canadian Alliance say that governments should act more like businesses, but governments are not businesses or corporations. The idea of the annual meeting, even, is more of a corporate concept, where shareholders have the right to certain information at certain times.
There are other ways within a government that information is distributed and circulated. It's not always along some corporate model, which, it almost seems, this particular language was borrowed from, the corporate boardroom of a corporation and how they conduct their annual general meetings. The two are quite different.
All of that notwithstanding, a lot of what we do and a lot of what we recommend here not only fails to recognize that perhaps this is more suitable for a business or corporation than it is for a government, but there are some aspects even about governance we're failing to recognize as not suitable for first nations governments. There are unique aspects to the way first nations are governed that go above and beyond the normal structures we may be used to dealing with.
Being Eurocentric is the term I've heard used for trying to apply our standards of what may be good and necessary to first nations, that is, if we are going to say on the one hand they have the right to self-determination and then impose our view of what their form of governance should look like. Self-determination includes the right to craft codes of governance that are suitable and have a cultural match to traditions and customs.
½ (1905)
We find ourselves faced with trying to micromanage every aspect of the way first nations conduct themselves as it pertains to finances or accountability or transparency, without even any deference to... Let me give you an example of what one first nation has as a preamble to their financial management act, and I think it's important because you may find this instructive in trying to illustrate the point I'm making here. The preamble to the Big Island Lake Cree Nation codes of governance starts:
| Placed here by the Creator, we, the indigenous peoples of the Big Island Lake Cree Nation, living in our Territory with other beings--the earth, air, water, sun, plants and animals--in peaceful co-existence, as provided by the Creator, believe that harmony and balance between all beings was required in the past, and is required and necessary for life now and in the future. This belief extends to other peoples and cultures as a belief in the respect for those of other cultures, and is reflected in our individual and collective rights and responsibilities. As the indigenous peoples, who co-exist with other original beings, neither ranked above nor below those other beings, we are obligated and responsible to conduct ourselves, individually and collectively, in a manner that promotes and enhances harmony and balance among all original beings. As a means to ensuring that this co-existence, balance and harmony among original beings is as the Creator intended, and is understood and enjoyed by the people of the Big Island Cree Nation, in the present and the future, we have organized our intentions and beliefs into the form of principles and codes that will guide our people both in the present and in the future. All of this is based on the natural laws provided by the Creator. |
| We, the representatives of the peoples of Big Island Lake Cree Nation... |
I don't think you'd find that kind of a preamble in a corporate document, in the mission statement of a corporation. You don't find it in the preamble of the Constitution of Canada even. There's a spirituality, a spiritualism, associated with the traditional ways that people have governed themselves that we have to factor into account, and if we don't factor it into account, it's at our peril because it's not going to work. It's a naïveté on our part to be moving forward with these prescriptive and detailed outlines of how we think things should look and should work in dealing with putting together financial management and accountability codes without consideration or deference to the vast amount of input we had from first nations across the country.
When people said that Bill C-7 is without any redeeming virtues whatsoever, what they were specifically referring to, I think, the major irritant, was these financial management and accountability codes, and in clause 6 what was called the “administration of government code”, and the whole system of codes that were to be imposed, or the standards, which were to be set by others.
When this bill gets royal assent and this becomes law, the people have had very little or no input into what this particular financial management code looks like. They'll be saddled with somebody else's vision of how their community should be run. That's the very heart of the matter and what people find so offensive and what people find so fundamentally wrong with this entire process, Mr. Chairman, that we're not listening to what we've been told.
This amendment narrows down how specific the financial management code is even further, when you look at the language put forward by Mr. Vellacott. Not only would you have to present the budget and balance sheet to all members of the band and all residents of the reserve, no matter who they are, but you would also have to allow sufficient time after the presentation for members of the band and the residents of the reserve to submit to the council and the auditor questions and comments. You might as well put the times of day you have to meet.
½ (1910)
If we're going to be that specific about how these meetings have to unfold, I'm surprised we haven't gone to the ridiculous extent, as my colleague from the Bloc used, and described what kind of food will be served.
The Chair: Thank you, Mr. Martin.
Mr. Spencer, you have 10 minutes.
Mr. Larry Spencer (Regina—Lumsden—Lake Centre, Canadian Alliance): Thank you, Mr. Chairman.
This amendment speaking about how the council of each band would conduct an annual meeting and who should attend and some of the things that would happen may seem to be restrictive, but at the same time, I remember in my own experience over the last 30 years serving on different executive boards--some of them international, some of them simply in western Canada, some of them strictly within Saskatchewan--that there are government regulations in those organizations that applied and told us what should be or could be in an annual meeting and what was required by the government. Even though we were a self-determining group, we still had to follow those guidelines and those regulations. So I do not find these kinds of things to be offensive to me because I've conformed with them for the last 30 years, as I have conducted those other kinds of business meetings.
The intent here, of course, is to not only lay out some guidelines as to how a meeting would be carried out, but also, in doing that, to create an explanation of what the purpose of that meeting would be. One of the main things, of course, is that transparency would take place.
I have a number of first nations people who have come to me in my city--and not all of them are even my constituents--and they're very concerned about what's happening in the first nations community. I must listen to them and take their concerns to heart and think about what it is they're asking for.
The reason most of them are coming to me is because they're very, very concerned about what is or is not happening in the first nations community. These are first nations people who actually feel cut off from the process of what's happening within their own community because they happen to live, in particular, off reserve rather than on their particular reserve. They feel a lot is happening there that's covered up and not visible, not transparent to the band members. Any way we can help, I believe, to move the cloak of secrecy away and help create transparency is an important aspect of what's happening.
I think of the organizations I have worked with and I think of the government requirements that are there many times, and transparency is legislated. Donations, for instance, are a part of public information where people can find out what the donors have given in these organizations, and that's legislated. So I don't think even the first nations people would necessarily want to veer away from having some of these kinds of suggestions made in order to be transparent.
I think every effort needs to be made--and that's a part of what this amendment is doing--to disclose the financial position of the band to its members.
For instance, I have an aboriginal son. I have a son who I adopted when he was three years old. He's now 30. He has a status card. He's a member of a band in northern Saskatchewan. He's applied to that band for some assistance for his education. He has had extreme difficulty in receiving any information from his own band as to why he could or could not receive some assistance with his own education. There is a difficulty in him getting information.
So every effort we can make to help disclose the financial position of a band to its members seems to me to be a positive thing.
½ (1915)
Band members also need to have the opportunity to not only have that information given to them, but given to them in a form and format that's understandable, readable, usable, not in some sort of legalese or “accountese” language that only an accountant can understand--and I'm not too sure they do. From the Enron scandals and the different things that have happened in our recent history, we know sometimes even accountants aren't that open.
So I don't find it difficult for us to think about making this as transparent and as open as we can. That's obviously what this budget or this amendment is trying to do, suggesting that it not be a closed or a rushed thing, but that the band members would have sufficient time and opportunity to ask questions and feel like they were in on the process.
½ (1920)
The Chair: You have three minutes and fifteen seconds.
Mr. Larry Spencer:
We talked about a question that arose with regard to the wording of paragraph (a), where it says:
| present the budget and balance sheet to all members of the band and residents of the reserve in accordance with the financial management and accountability code; |
Mr. Chair, I would like to suggest or propose a subamendment here that we add two or three words to this to clarify the problem we were having with it. I would like to propose that we add the word “a” in front of the words “balance sheet”. That would answer your question about whether there is a balance sheet or not. This wording would create a balance sheet--that they “present the budget and a balance sheet to all members”. Then, at the end of that paragraph (a) we simply add, after “accountability code”, the words “or regulations”. That would perhaps satisfy the wording as was agreed by some of our witnesses. These words, in my view, would add the requirement that not only would the budget come but also a balance sheet.
One of the organizations I work with in the city of Regina just last weekend had its annual meeting. Obviously, there was a budget presented and adopted at that meeting. But before that budget could be presented and adopted, they needed to know where they had been the previous year, and so there was provided a balance sheet that demonstrated to them where the money had been spent the year before. It demonstrated to them the property the organization owned, where its assets were, where its money had gone, and those kinds of things--what its financial position actually was.
I wouldn't see any reason why a band would not want to share that kind of information with its members, so that they know where it is. One of the biggest complaints the group of first nations people in my city have is about certain organizations within our city to which large amounts of program money have been given. Yet they do not see those programs being carried out in their eyes in the community. There's money set aside for training. There's money set aside for certain child and youth services. There's money set aside for women's services and different things, and the amount of money, in their information to me, is out of proportion to the service that they see happening in the community.
Now it would seem to me that a balance sheet and a budget to go along with it would help clarify some of these things to the band members. I don't see this as being intrusive at all but in keeping with what the first nations people of my town have asked me to help them do.
This group of people in Regina are so concerned about this that they are in fact in the process of meeting as a group, which they call an accountability group. They want to see accountability in their own community.
½ (1925)
I commend them for that. I don't for a moment think that first nations people do not want to be accountable, forthright, and honest. It's just the steps to get there that we need to see them learn to take.
The other part of the subamendment was simply addressing what Mr. Beynon had suggested to clarify whether it's code or regulations.
So I think this is just a very straightforward thing to make sure a balance sheet is presented and that we do not lose the accuracy of what we're asking for by the argument of whether it's applied to code or regulations.
Thank you.
The Chair: Thank you.
Mr. Vellacott.
Mr. Maurice Vellacott: Thank you, Mr. Chair.
I hope this is something of an address to the issue that was brought up before by our witnesses here today. There was certainly no intent to create some difficulty for those who were just, on a default basis, going to go to a...maybe by their own choice, maybe because they didn't have the dollars, the legal fund if you will, to put together the code and so on.
That is a concern. It's been brought up a lot of times here whether bands will have the kinds of resources, in terms of writing these up. I guess we inserted this additional term of regulations here with the assumption that there will be, maybe unfortunately in some cases, those who will have to go to that default code or regulations, as now we have them more specifically defined or indicated here tonight.
I guess my question would be--and I think we've had some tentative responses on this before--what are the dollars? Maybe you can remind us again of the amount of money the minister has committed to help write codes, or regulations as you're referring to them now. Do we have a figure in mind? We were told that at points along the way. Is it a hard and fast figure?
Mr. Warren Johnson: The figure is $110 million and it's not hard and fast.
Mr. Maurice Vellacott: It's not a hard number. Good.
Mr. Pat Martin: It's $110 million per year.
Mr. Maurice Vellacott: I guess that has been expressed as a concern by people before. I think the department is certainly well aware of that. Many bands may simply go to the default, so that's why it's important to have that statement on regulations there.
With that little cleanup issue happening there, the issue of the auditor, there's nothing that forbids an auditor, with the permission of the person chairing the meeting, from responding to questions that come his way at an annual meeting, is there, Mr. Johnson?
½ (1930)
Mr. Warren Johnson: No, but the auditor normally only responds to questions on something he's done. The auditor isn't involved in the budget in clause 7; he's involved in the financial statements in clauses 8 and 9.
Mr. Maurice Vellacott: On paragraph (c) again, the issue of the council of each band making every effort with the auditor to give a thorough answer to all questions, you would again question the expression “with the auditor” at that point as well, or question the need for it there. Is that correct?
Mr. Warren Johnson: Yes. The basic point is that the auditor is normally in attendance at meetings dealing with the financial statements, but that's not the meeting called for in paragraph 7(a). That's the presentation of the financial statements that would follow from clauses 8 and 9. The auditor's not involved in the budget; he's involved in the audit of the financial statement.
Mr. Maurice Vellacott: That's after the year is completed, you're saying. After the year is completed, he's involved in that process, right?
Mr. Warren Johnson: That's right.
Mr. Maurice Vellacott: Maybe we have a technical glitch there.
The point of this throughout has simply been to urge bands to have a process whereby there's the annual meeting. We tried for more than one meeting, but at least there's going to be an annual meeting, which is a standing kind of thing, of course. And then they would send the budget, the balance sheet, to members of the band in accordance with the financial management and accountability code.
I think allowing sufficient time is obviously nothing more than should be asked of any of these meetings. If people feel they have the adequate time, I think that goes a long way toward relieving any concerns they might have about any issues around how dollars are spent.
I'm going to leave it at that and move it along to somebody else on either the government or opposition side who wants to respond to that particular subamendment, which now includes the issue of regulations. Mr. Martin or others may want to respond before we go to a vote.
The Chair: Mr. Martin.
Mr. Pat Martin: Yes. I appreciate the opportunity to respond to the subamendment that has been put forward on CA-20. It's the twentieth time that the Canadian Alliance has tried to amend this bill.
This is my concern. I understand the reason that you sought the subamendment to include “a” balance sheet, along with the reference to a budget. And I even understand your motivation in saying that all members of the band should be able to review the budget and the balance sheet at the same time. It's useful, I suppose, to be able to compare the projected spending or the proposed spending and the most recent experience of the last year. I understand why members of the band would be entitled to that information and would find that information useful.
I also point out that I have every reason to believe that's common practice in most first nations communities, because the incidence of complaint, although exaggerated, we believe, or overblown in some cases, is really quite minor. We know that 96% of all first nations submit their audits on time and without incident and that an aspect of submitting them on time without incident is making them available to their band members.
Where I have to question, I suppose, the rationale here, or question whether it's a good idea or not is when you've added other “residents of the reserve”. The obligation would be that the band council would have to present the budget and the balance sheet to all members of the band and residents of the reserve. As has been pointed out, in some situations other residents of the reserve may outnumber band members by a large factor. The example was used of Kelowna, B.C., and West Bank. It's a highly developed suburban real estate development where there are expensive homes built on first nations land by some kind of lease and permit situation, where they're paying lease fees or some sort of a rent. The residents would be considered, under this definition, residents of the reserve. In my view, they would have no justification or right to examine or peruse or comment on the budget or the balance sheet of the band.
And later on, I think as we get into clause 9, I'm going to have a lot to say about that because it does require or expand the existing obligation, which is for a band and council to make available to their own band members financial information. That no one can argue with. Later on, in clause 9, it'll be saying, we will find, it is made available to the general public at large, so that in fact you or I, Mr. Vellacott, could find out the personal, or what I would consider the private financial information of a band and council somewhere in Quebec or Newfoundland or B.C. I would argue we don't have a right to that.
I will be speaking to that later under clause 9, but I think perhaps that's where the people who drew this particular clause got their inspiration from. If clause 9 passes unamended, there will be an obligation to disclose that financial information to the public, to everyone at large, in which case it wouldn't be that unusual then, to follow your thought through, that residents of the reserve would also be given a budget and balance sheet. Nobody would have any privacy associated with bands and councils, if I understand clause 9 correctly. I'm certainly critical of that.
If I could speak further, with regard to some of the questions you asked the officials here regarding the cost of code development, my understanding is it is $110 million per year for five years, for a total of $550 million. It's not limited to code development. That figure is the projected figure for the introduction of Bill C-7, the communications plan, and all the costs associated with implementing Bill C-7, which certainly includes the development of these codes.
½ (1935)
This prediction was made, I believe, without anticipating resistance, without anticipating strong objections from the communities. We've been served notice in no uncertain terms that there will be strong resistance and opposition to having these new codes imposed or even developed.
If there's a foot dragging, it has the effect of industrial sabotage or bureaucratic sabotage. If there's no willingness to cooperate and to comply and there's a dragging of feet, or if there's an unwillingness or an inability to comply with the introduction of these new codes within the two years and government is forced to take action to force cooperation or compliance through the default mechanism, we predict that the costs will be far higher than $550 million. In fact, it could double or triple.
The analogy has been made that this could be the next great gun registry fiasco-type spending boondoggle because it's an open-ended expense. Who can predict the costs of 633 independent communities being told to change the way they do business and not cooperating, and then the government having to be forced to implement those changes against their will with court challenges? As I say, it's just absolutely astronomical.
We don't know how they developed that figure in total--the $110 million. I don't think it was intended to be leaked and released, but once it was, it became a matter of public record because it was spoken about publicly. We find reference to it frequently.
What particularly worried us about the financial figure is that it comes out of the A-base of DIAND and therefore no new funding is being requested, as I'm reading from information we have. In other words, it comes out of money that should have been spent on product, if you will, in terms of meeting the basic needs of first nations people. It should have been spent on housing or education or fresh water systems or health care--any number of the urgent basic needs that are necessary to bring some of these communities from the third world into the first.
It worries me that we're sitting around this table contemplating spending $550 million at a minimum to introduce changes that first nations have told us they neither want nor need, in fact that they are vehemently opposed to.
Again, I understand the goodwill in which this amendment was put forward because we were told this bill is defendable, or the spending of this bill is justifiable, because it's about accountability and transparency and enabling first nations to move forward with economic development. That was the selling package, the promotion, the public relations campaign that went along with the introduction of Bill C-7, but the actual experience, now that we've had a couple of months to study the bill, is that we find it's anything but. In fact, it has very little to do with accountability and transparency.
What it has to do with is institutionalizing or legislating what is already policy. Practice that is already policy and already complied with to an overwhelming majority of first nations will now be legislated and enforceable by law. It's shifting practice from policy to legislation and the associated difficulties that come with that, but also the associated convenience that goes with it from the government's point of view, because then they can mandate and enforce, and many first nations would say interfere with their activities, more readily because it's now in black and white in legislation.
½ (1940)
Now the question I would have, the question we need answered is this. Is this an intrusion? Is this intrusion an infringement on constitutionally recognized rights? That question needs to be asked. The other question that needs to be asked is, does Bill C-7 have any effect or impact on outstanding court cases or anticipated court challenges? We've never had those questions satisfactorily answered. How much is being set aside for court challenges, if there is going to be the flurry of court challenges we anticipate?
The Chair: Is there anyone else?
Mr. Spencer, please give your closing remarks on your subamendment.
Mr. Larry Spencer: Just in closing, I think we always run into problems of overkill with too many details, but at the same time, sometimes we make assumptions that things will happen that don't necessarily happen because they weren't put in writing. Therefore, as the discussion brought out earlier, part of the purpose of the subamendment was to state that there would be a balance sheet, rather than just assume that a balance sheet would accompany the budget.
Perhaps it will be a little difficult to include all the members of the band or the residents of the reserve, but at the same time all those people deserve to be informed. I'm assuming there's some possibility of communication with those who are registered with that band. Perhaps even that accountability to know who and where their band members are might be part of this.
But to let them have a look at the balance sheet and the budget in accordance with the financial management and the accountability code in regulations is really a very simple thing. People need to be informed, have time to consider those things, and be made a part of what's going on. I think the intent of this amendment is to simply include those people and have them better informed.
That's part of the self-government process. Part of the government process we are all involved in is informing our constituents and allowing them to have input into our work here; bringing their voices here and bringing information back to them. I think it's actually a very simple subamendment and needs no further explanation.
½ (1945)
The Chair: Thank you. We'll have a recorded vote on CA-20 subamendment.
(Amendment negatived: nays 7; yeas 4)
The Chair: It is defeated.
Mr. Vellacott, closing remarks on the amendment.
Mr. Maurice Vellacott: Well, it was a valiant attempt to kind of lay out what we thought was probably done in most cases across Canada and in first nations territories. I suspect that whether this amendment passes or fails, that will ultimately be the case.
Laying it out kind of gives you a picture of an annual meeting where you have the auditor--he's the guy who can respond in terms of previous.... You have the council there--hopefully somebody presenting the budget in plain-language fashion with some visual aids and so on, so they can get a clear picture of what the situation is and what's anticipated to happen in the year ahead, in terms of expenditures on different areas.
You also have a balance sheet--there was the attempt to have that as well--so they know year to date the financial status of the band. They will know if they are overextending themselves by way of particular budgets, categories in the budget for the year ahead, or maybe they need to be moving stuff more into the education fund. Education is very crucial and rather important in terms of the advancement, the progress forward, of first nations people.
It always delights me when I'm in contact with first nations young people who have gone on and finished either tech school or university--some very sharp, very bright people. They are the future for first nations. Sometimes they have to make very hard choices, because to take from one area and move it to education, if that is the case, might mean a shortfall or a deficit in health care or some other crucial area. There often isn't enough money to go around and cover everyone.
You hear too many stories as well where students are denied education funding because there aren't the dollars. Sometimes they think it's because they aren't favoured in the eyes of a band member or councillor. But sometimes I get the distinct impression it's not that--that could happen too, I guess--but it's more the issue that there are not enough dollars to go around and cover the education needs of all their post-secondary students.
So it's allowing the members to ask the questions, query their representatives, their responsible elected members, and get a sense of the picture for the year ahead. In any kind of annual meeting I've ever been at--and I've chaired some as well--having that very extended time, which sometimes turns out to be a little longer than one in a chair position would like it to be, is pretty crucial. You don't want to cut it off prematurely, but allow the questions, the comments, the observations to come from folk out there on the floor.
As leadership, we live and learn from those comments that have been made. We sometimes get a picture, even beneath the words that are there, of concerns and issues that just end up indirectly reflected by whatever comes up at that time. On making the effort instead of cutting people off, I've always found it a much better approach if one can display the patience and so on to answer the questions as thoroughly as possible, draw in some other resource person who might be present--a staff member, an individual who might have the more thorough and complete answer.
I've been in those situations. I haven't always handled them well, but you live and learn. Sometimes for the next annual meeting you kind of scope it out, project it a little bit better, and things run smoothly. It's a satisfying feeling when at the end of the day you've gone through an annual meeting, laid out the plans based on maybe the last year, and then projected some hope, vision, and so on for the future.
So the intent of this is to kind of give a sense of what can be. Thankfully, a lot of reserves--maybe the bigger ones--sometimes have the resources for this kind of stuff, do nice PowerPoint presentations, and lay it out in a pretty helpful manner.
½ (1950)
I realize that smaller bands sometimes struggle to get it together to pull off presentations as smooth and as understandable, yet some of them do very fine jobs as well, I'm sure. This is just kind of laying out what we assume to be the case in a lot of places through the country and is a pattern that could be followed to good effect all over the country in first nations communities.
With those concluding remarks, Mr. Chair, I think I'd like to go to a recorded vote on that.
The Chair: We have a recorded vote on amendment CA-20.
(Amendment negatived: nays 7; yeas 3)
The Chair: Amendment CA-21 is ruled out of order.
Mr. Maurice Vellacott: I thought that with the matter of the deletion of the reference to paragraph 7(1)(a) it would be acceptable.
The Chair: Have you modified your motion?
Mr. Maurice Vellacott:
That's right. So this is what would be moved, Mr. Chair. With the deletion, CA-21 would read:
| The council of the band shall make available to the members of the band and the residents of the reserve a copy of the budget and balance sheet at least 14 days before the budget and balance sheet are presented in accordance with the financial management and accountability code. |
The Chair: And you are moving it, Mr. Vellacott.
½ (1955)
Mr. Maurice Vellacott: Thank you.
Again, this is an issue, I think, of fairly significant importance in that it allows adequate time in advance for individuals to assess that, to scrutinize it, to look it over carefully, and maybe even to discuss it with their councillor at hand, maybe a relative or a friend, and get some answers from the band office. Then you'd get more of the answers in advance and you'd probably have less in the way of questions when it comes to the time of the annual meeting itself.
That would be the intent of this, that the 14-day notice would hopefully allow enough time where it had to be mailed to off-reserve members off in some major city. If Canada Post is doing its job, then we're going to have at least a seven-day period of time where they can go over it, assuming mail gets anywhere in the country within a week's period of time, roughly.
I think it's really a good thing. It adds this new subsection so they make the budget and balance sheets available 14 days before presented. Financial statements, I think as we've said before, should be made available in a format easily understood. Band members are then able, after a 14-day advance receipt of it--
The Chair: Mr. Godfrey.
Mr. John Godfrey: Mr. Chairman, I have a point of order.
As I understand it, this amendment was ruled out of order. In order to put it back into order, I assume it would require the consent of the committee to allow that change to take place. I don't recall giving my consent to that, and I'm wondering if you'd like to determine whether there is consent, because without that consent this motion is out of order.
The Chair: The only problem I have with your point of order is that until the motion on the amendment is presented by the mover, it hasn't been moved.
Mr. John Godfrey: But it has to be presented in the form in which it was delivered to us; they are not allowed to change it. That's why we had a deadline for when amendments came in, and they arrived in the form in which they're in.
The Chair: We had an agreement to that effect. There's no doubt about that.
Mr. John Godfrey: Therefore, I would like to challenge this. I would like to suggest this amendment is out of order.
The Chair: The advice from the legislative clerk is that it's left to the chair whether I accept it or not, based on whether it's a tinkering or a substantive change. I am now going to rule that to remove “referred to in paragraph 1(a)” is substantive, and I will rule it out of order.
Mr. Maurice Vellacott: We're kind of stepping back, are we not, Mr. Chair, inasmuch as you had obviously accepted it and I had already moved into my time?
The Chair: It was challenged on a point of order.
Mr. Maurice Vellacott: But you had accepted it beforehand.
The Chair: That's right.
Mr. Maurice Vellacott: So once you've accepted, you can't--
The Chair: It was challenged, I reviewed it, and I am now not accepting it.
Mr. Maurice Vellacott: Can you keep flip-flopping back and forth over the course of the meeting?
The Chair: That's all this committee does is flip-flop, so you're going to allow me one once in a while.
Some hon. members: Oh, oh!
The Chair: This is a joke, this committee, so let's not pretend we're a bunch of professionals here.
I've ruled on that. It's out of order.
(Clause 7 agreed to)
(Clause 8 agreed to on division)
(On clause 9--Audit of financial statements)
The Chair: We have amendments to clause 9.
We have CA-22 on page 79. Mr. Vellacott.
Mr. Maurice Vellacott: We're amending clause 9 of Bill C-7 by replacing line 39 on page 7 with the following:
| rated under the laws of a province and who has no apparent or actual interest in the finances of the band. |
Currently it says:
| A band's financial statements shall be audited, in accordance with the generally accepted auditing standards of the Canadian Institute of Chartered Accountants, by an independent auditor who is a member in good standing of an association of auditors incorporated under the laws of a province. |
Then we've added the additional:
| rated under the laws of a province and who has no apparent or actual interest in the finances of the band. |
We've added a line to the section after “incorporated” so this individual will have no particular conflict of interest, that is, no apparent or actual interest in the finances of the band.
I think it's a fairly straightforward kind of amendment here. Financial transparency is key to maintaining an informed electorate, and an auditor not having any perceived or real interest in the band's financial affairs is, I think, pretty tantamount...
I'm not sure what the experience of other members around the table would be here, but one of the situations that first came to my attention as a member of Parliament, actually, was in fact a scenario--I don't know how common this is and I'm not even sure...I was a little spooked by the whole thing. There was an individual who seemed to have an inordinate amount of control, and there were suggestions that this individual did in fact have some direct interest in the finances of the band. I said, well, that's pretty serious stuff you're talking about, and I'm not sure how that stands up in terms of the Canadian Institute of Chartered Accountants.
I need to ask my colleagues and the witnesses at the end of the table here what their knowledge is in terms of the kind of scenario that prompts the amendment we have before us here. Do you from time to time become aware of individuals who are doing the accounting--I would have thought it would be forbidden, actually--for a band where the individuals have something of an apparent or actual interest in the finances of the band?
¾ (2000)
Mr. Warren Johnson: Our understanding is that the standards referred to already include the independence required by the amendment, so in that case it may be redundant.
Mr. Maurice Vellacott: And where is that? Within the Canadian accounting principles themselves or within the Canadian Institute of Chartered Accountants?
Mr. Warren Johnson: Yes, in terms of their standards and practices they require that independence.
Mr. Maurice Vellacott: That there has to be an independence and arm's-length--
Mr. Warren Johnson: Yes, and the word “independent” is already in the text as well to add emphasis to that.
Mr. Maurice Vellacott: Well, obviously this has the intent to strengthen that then, because this didn't appear to be the case. It certainly was the allegation of those fine folk within that band that this was not particularly the case. Their inference was that he was kind of paid under the table in a fashion. I guess one would suggest or recommend at that point that the individual be reported, if you will. Would that be how one would proceed as a member of Parliament with a case like that?
Mr. Warren Johnson: Yes, there is a remedy, as I understand it, to the association. In the context of Bill C-7 there's also a remedy in the local redress as well, since it's a requirement both in the wording “independent” and in meeting those standards to be independent. If any member of the first nations felt the auditor wasn't independent, they could deal with it directly through the redress mechanism through the courts or through the other mechanisms, whether they're in Bill C-7 or otherwise.
Mr. Maurice Vellacott: We don't know what that redress mechanism would be at this point, do we?
Mr. Warren Johnson: Well, yes, we haven't reached that in the discussions here at committee, but there is a redress mechanism called for in here that would...
Mr. Maurice Vellacott: What you're saying is that redress mechanism is put together by band and council. Then he would go to that body or through that particular process. Is that what you're suggesting?
Mr. Warren Johnson: Yes, citizens would have that available to them.
Mr. Maurice Vellacott: The complication in this case is if that individual--that accountant--is in collusion with the band who appoints or sets up this redress mechanism, it gets a bit convoluted. How in fact would that address the issue if in fact this redress...? It's like putting the fox in charge of the chicken coop in a sense--the body that's the mechanism is put in place by the very group that's in collusion with the accountant. These things don't happen without some cooperative work or some agreement together.
How would that help? Does there not have to be an independence, or an assumed-to-be independence, from the redress on the part of that redress body?
Mr. Warren Johnson: Yes, that's outlined in that section of Bill C-7.
Mr. Maurice Vellacott: I guess I'm failing to understand. The courts would be the other route or the professional association would be the additional other one. I think you made mention of that as well. I would suggest in such a case that may well be their better course to pursue, because it occurs to me in these rare instances where you might have a situation, as was brought to my attention, then the very redress mechanism put in place by individuals who are then in collusion with this particular chartered accountant would not be exactly satisfactory in terms of resolving and getting to the bottom of the issue.
From my point of view then, I think you'd clearly have to go to the professional body, the Canadian Institute of Chartered Accountants, or take the route of a legal thing. In taking the course of a legal action, this strikes me as rather interesting, because sometimes that's not possible. There are certain barriers or protections such that there would not be access. I'm not clear on that point of view--why in fact they'd be able to go through a legal process when some of this would be shielded. Would it not? This would be shielded from--
¾ (2005)
Mr. Warren Johnson: I'm not aware of what shielding you would be speaking of.
Mr. Maurice Vellacott: Well, how would you go to a court when in fact the first nations money, the first nations situation, is protected and is not accessible to challenge?
Mr. Warren Johnson: I don't understand where it's protected and not accessible to challenge.
The Chair: Mr. Vellacott, are you trying to prevent criminal activity with this clause? Because if there's collusion with a chartered accountant, it's criminal activity. You won't resolve that with this--
Mr. Maurice Vellacott: But if it's with respect to band moneys--
The Chair: With any money. It's fraud. Are we trying to prevent fraud with this clause? You don't prevent criminal activity with a clause like this.
Mr. Maurice Vellacott: Why don't you? You just said....
The Chair: We're not going to spend all night on it. Your amendments are so poorly crafted, we end up helping you fix them. That's what we've been doing for a couple of weeks and it's really not fair to the committee.
Mr. Maurice Vellacott: That may be your judgment, Mr. Chair, but that would have been the whole point of having a little more time at the outset, I guess, to have some discussions and so on, instead of having forced upon us a period of time in which it wasn't possible to craft it with the kind of deliberation that maybe it deserves--
The Chair: It seems to me that the other two parties and the government side were able to craft them properly, because we're not helping them clean them up.
Mr. Maurice Vellacott: I think this one could stand. I'm not exactly sure why there'd be a particular problem and offence at having this in place as it is. I think there'd be no difficulty at all, no challenge to it, I suggest, if this was in fact in the bill and this clause was accepted.
I will turn it over to whoever else wants to speak on that.
Mr. Charles Hubbard: Mr. Chair, I had hoped that Mr. Vellacott would remove that amendment from the table. I know that probably he has some intent with it, but for most accepted accounting principles we either have the Canadian Institute of Chartered Accountants or I think the Certified General Accountants Association of Canada, who also do similar work here in some provinces. They are groups with ethical standards and codes of conduct that are acceptable in most courts of law and that have very high standards. To try to impose something on them in terms of their own ethics, over and above what they already have, by saying they have no apparent or actual interest in the finances of the band would certainly be a contradiction of what those institutes stand for.
Mr. Chair, I don't want to expound at length on this, but it's pretty difficult for us to sit around here tonight and try to further define government-regulated institutions that are already at high standing in terms of the financial situations they audit.
Thank you, Mr. Chair.
The Chair: Thank you.
Anyone else?
Mr. Martin.
Mr. Pat Martin: Mr. Chairman, I actually appreciate Mr. Vellacott's amendment. I think it has a lot of merits, because I disagree with Mr. Hubbard that the ethical standards put in place by the Canadian Institute of Chartered Accountants or the Canadian Certified General Accountants Association are adequate. A great number of institutional investors around the country have been lobbying the federal government to change the Canada Business Corporations Act because they've agreed that voluntary compliance to ethical standards amongst auditors and accountants is not enough to provide stability and to bring back investor confidence. It's a very real issue on Bay Street and in the corporate world, and I think it should be a very applicable issue here as well. It's not unreasonable.
I would be more comfortable deleting from clause 9 any reference to the Canadian Institute of Chartered Accountants and “an association of auditors incorporated under the laws of a province”. To me, they are secondary to hiring somebody with the necessary skills who was not in any way associated with the organization they're auditing, because the problem arises when an auditor, or an accountant hired to conduct the audit, is also selling other financial services to the same organization. You can't have an auditor auditing financial statements that they themselves put together.
I've had the Canadian Institute of Charted Accountants and the CGA in my office debating this very issue. Under their code of ethics or ethical standards, they still don't see any problem with an accountant providing tax advice, data services advice, data systems and technology advice to a company or a business and also being the auditor. They don't see that as a conflict--yet many of us do. I was a trustee at a large union pension fund that was a major investor, and a lot of us were challenging the idea of whether an auditor should be selling financial services to an organization and offering to be its auditor.
Let me explain how academic this has become. A lot of chartered accountant firms are now offering the audit as a freebie, as a loss leader. They'll throw in the audit for nothing in order to win the business of doing the other accounting services, database services, and data systems services for that company. So it's a very real issue.
I don't see the relevance in making reference to a provincial body or “an association of auditors incorporated under the laws of a province”. To me, that is secondary, and I'm wondering about its relevance. If we're dealing with a sovereign first nation, and we're setting standards for them or for the accreditation of accountants under the laws of a province, it seems to be a little contradictory. But what isn't contradictory is language like Mr. Vellacott put forward, that in the interest of making sure there's no bias associated with this audit or that it's a clean audit, the auditor should have no other financial involvement with that band at all.
I've heard it raised that it may be problematic because in a northern reserve or perhaps an isolated northern community it may be difficult to find somebody who has no contact whatsoever. But it's not insurmountable. If you're from Island Lake or St. Theresa Point in northern Manitoba, there are accountants in Thompson and other such places who do this kind of work all the time.
Frankly, I think Mr. Vellacott is right on the money here, but I would be more interested in seeing clause 9 amended in substantial ways, which we'll be dealing with further.
But it's no comfort to me that the Canadian Institute of Chartered Accountants relies on voluntary compliance to ethical standards, instead of legislation or anything that's more binding than that, because we've seen that this was exactly what was happening in the Enron fiasco. That's one example. At Disney and Sprint and a lot of these outfits, you'll see Arthur Andersen billing $25 million for financial services and $2 million for the audit, or ten times the volume of activity for other financial services.
¾ (2010)
This is an issue of great interest to me.
A simple amendment could be made, frankly, to the Canada Business Corporations Act under the definition of “independence”. It currently lists those things that define an auditor's independence. An auditor shall be considered independent when, blah, blah, blah, or shall not be considered independent when.... You could simply state when they've sold other financial services to the same firm, enterprise, business, corporation, or band council in this case. I think this has merit and should be acted on. It's a harmless, innocuous change that I don't believe has any risk or threat of challenge.
I'm disappointed that Mr. Vellacott's amendment doesn't propose to eliminate some language within clause 9. It only seeks to add language. Even that qualifying language he seeks to add, I think, helps to protect the interests of the people involved, and it would preclude the possibility of any kind of a biased or prejudiced involvement of the accountant.
It's the fox watching the henhouse otherwise. You'd be asking an auditor to make critical comments on work that they themselves may have sold to the band. It seems ridiculous in my mind. You can't be judge and jury. You can't do it all, frankly, in that amount of work.
It reminds me of some of what I view as the serious malfeasance associated with the administration of accounting on behalf of first nations when we deal with some of the third-party managers. I wish there was a great deal more scrutiny associated with what I see as one of the biggest untold scandals in the country, which is the absolute exploitation of a financial situation in first nations communities when a third-party manager comes in and starts charging $30,000 and $40,000 a month to administer the fairly straightforward and simple financial activity of a first nation.
The comparison has been made to me in this light. The amount of financial activity associated with a relatively small first nations community--and I've visited some recently that were under third-party management and I've seen the contract of the third-party manager who's been assigned the administration--is comparable to a small business, a corner store, a men's clothing store. That's about the volume of monthly flow of activity. In fact it's less complicated because there are fewer daily transactions. A block of money comes in, cheques are distributed, and accounting has taken place. It should take an accountant a day a week maybe.
To be charging $30,000 and $40,000 per month for this administration--you could have three or four full-time chartered accountants working 40 hours a week to be able to bill $40,000 a month. In fact it's a dream come true to get that amount of billable hours in a month. There are not enough hours in a day to bill yourself out to get $40,000 a month as a chartered accountant.
Yet that's the kind of windfall we're handing over when the minister swoops in and puts a band council under trusteeship and appoints a third-party manager, or an Indian agent as they're called in their contract, as offensive as that is. The contract says, “between Xfirst nation and the Indian agent, to be referred to as the agent later on the contract”. It's grotesque because that money comes right out of the operating budget of the first nations community. I remind you that $30,000 a month times 12 is $360,000 a year in accounting fees.
The example I used I didn't make up. When we did research on what accountants charge for audits, Disney Corporation was one example--$25 million for accounting services, $2 million for their audit. When one of the largest corporations in the world spends $25 million a year on their accounting services, and some small community with 100 people is spending almost a half a million dollars per year, it's just insane.
This is a story that needs to be told. So if we are dealing with accountants and their exchanged--
¾ (2015)
The Chair: Thank you.
Mr. Epp.
Mr. Ken Epp (Elk Island, Canadian Alliance): Thank you. I would like to have just a short intervention.
You know, whether this amendment passes or not really depends upon the members of the committee. I guess the question I would ask, especially if I were on the majority side of this committee, is will the protection of the natives in the individual bands be enhanced if this motion is passed, or will it be enhanced if this motion is defeated?
I think, personally, just from observing the words here and listening to the debates so far, it would strengthen their protection. I think they would be better off if this were in here, even if it's a redundant motion. Then it's a certainty. If it closes a potential loophole then it's an improvement.
So I would like to urge the members of the committee--especially the eight on the other side who basically control the outcome of this vote--to strongly consider that question. Is it better if it's defeated, or is it better for those people if it's passed? I think it's better if it's passed.
Thank you.
¾ (2020)
The Chair: Mr. Vellacott, do you have any closing remarks?
Mr. Maurice Vellacott: I'm quite with you in respect to what you said before, Mr. Chair, that this is a good amendment. Under difficult circumstances and early time constraints and so on, I think we've put together some pretty reasonable amendments. There'll be others out there in radio land and elsewhere reading the transcripts who I think at the end of the day would judge this to be reasonable, as my colleague has just indicated.
If in fact it's a given because of the principles of the Canadian Institute of Chartered Accountants, then so be it. If it's not there--and I don't have that document before me--I'm not as positive as our witnesses are that it is in fact a given that one can't have an apparent or actual interest.
In fact, I would put a question to them this way. Is it possible for an individual, third-party-manager accounting firm to also do the audit of the band one is in? Is it possible as things stand?
Sylvie George (As Individual): I don't think this occurs, but I guess in theory it could, although they do have professional CA's or CGA's or CMA's. Whichever professional is designated as being able to audit depends on the province one is in. These people do have to abide by professional standards, and if it is deemed that they are not in an “independent” state, they cannot carry out an audit. “Independence” is a matter of professional judgment.
Mr. Maurice Vellacott: I'll take a shot at answering this question as well.
I know that in certain remote and northern areas of some of the western provinces, in fact, when you have maybe only one major accounting firm in a small city or town or some community near at hand, the odds are pretty good that the very same group who has been entrusted or tasked with being the third-party manager is also the body who does the audit at year end. It's a given.
I think you would be well served in fact if you would check through your records. If you have copies of those audits that identify the individual who performed the audit, you would find a striking and a strange resemblance between that individual and the person who was the third-party manager for the band; it would in fact be the exact same person.
I would suggest, Sylvie, that this be something you do some checking into. I think the cross-reference is going to show that in fact it does happen. It might be a lot more common than you would initially or at first glance be able to view.
Rather than assume--and I know we've often had those words used, that this is “assumed” or “inferred” in another part or portion of the act, in another clause--I would always err on the side of inclusion in some of these things. I'm not very comfortable with assumptions or inferences and so on, particularly when it's something as crucial as people's lives. If this kind of thing is going to so directly affect the lives of first nations people all across the country, I think it's better to err on the side of inclusion.
I know there is a mindset, at least as exhibited in some of the other committees I've served on, that says, well, if it's there once or it's hinted at or inferred or assumed elsewhere, then you make a point of not being redundant or having it in another place. Well, if it's explicit in another place, I would concur that maybe there's not a need, it's not a necessity for it to be in the place one proposes; but in this case I'm not at all convinced of that. So for that reason, Mr. Chairman, I think it would be an excellent thing.
As my colleague, Mr. Epp, stated when he asked the question of whether it would help, I think we can definitely say in response, yes, it would. For that reason, I move this amendment and ask for the careful consideration of it by government members. I'd like a recorded vote on something as important as this.
¾ (2025)
The Chair: A recorded vote has been requested on CA-22, page 79.
(Amendment negatived: nays 8; yeas 3)
The Chair: Amendment 23. Mr. Martin.
Mr. Pat Martin: We find that within clause 9 one of the issues raised by many presenters who came before the standing committee is the objection to what we see as the breach of privacy associated with the obligation under this bill that
| (3) A band's financial statements shall be made publicly available within 120 days after the end of the fiscal year, and a copy shall be provided to any person requesting one on payment of a reasonable fee. |
Whose business is it, really, the internal financial activity of a first nation? I believe every band member has a right to see the financial statements. There may even be situations where other affected persons may have a justifiable reason to see the financial activity and financial statements of a first nation. But why would it be made publicly available to any person who asks?
This bill finds its origins in the perception that there's wild abuse out there in first nations, and I blame the Canadian Alliance, in part, for whipping up that public perception, because year after year in the House of Commons they were making reference to isolated incidents of mismanagement--and they were just that. I see that my colleagues agree with me.
The Chair: Mr. Martin, I'm allowing a lot of leeway, but you know I don't accept attacks on other members or other parties. We're spending weeks not talking to the issues on the floor. I'm allowing it, and I'll be criticized for it, but I will not tolerate that we attack individuals or other parties.
Mr. Pat Martin: Fair enough. I don't accept that I reached the point where I was attacking anyone. I think it's a matter of record that some opposition party members stood up frequently in the past couple of years, some individuals from some opposition parties--I'll really qualify it--and drew reference to isolated incidents of financial mismanagement across the country in first nations communities. And then attempt was made--I believe--to thread those isolated incidents together into a common theme that there's widespread mismanagement, malfeasance, maladministration--whatever you want to call it--of funds, of money on reserves.
Now we've challenged that. We've contested it and presented empirical evidence to the contrary. However, I believe that's part of the origin of this very heavy-handed legislation. It sort of crystallizes and gels in subclause 9(3)--the clause I seek to delete in this amendment, because it offends me. I wonder what justification they could possibly have to require the full release of all financial statements and information to anyone who asks. I mean, it literally says “to any person requesting one”.
One of the compounding issues brought to our attention is that a particular band could operate a business as part of their economic development on their reserve. It might be a sawmill, a fish processing plant, or any number of things in their community. It might be a high-tech software company. If they have to divulge.... How fair is that in terms of operating a business in a competitive environment if your competition for the same product you're producing has access to or a right to send in a request for the financial statements of all the financial activity in your community?
Now, I could be convinced otherwise, I suppose, if people say that's not true, but that's certainly the way this has been read--and not by me, but by the lawyers who reviewed the legal opinion of the people who did the assessment of this bill on behalf of the Assembly of First Nations. This was a comprehensive, detailed report and analysis. They believed that even though currently first nations are required to provide financial statements only to INAC, for funding received for band operations and program delivery, this would expand that obligation to file their audited financial statements and make them available, not just to INAC and members on their band's membership list, but to any who ask, to anyone who comes forward, to me personally, if I were nosy enough to inquire, for a reasonable fee. It even throws stumbling blocks in the way for a first nation that may not wish to cooperate by putting in an outlandish fee associated with it.
So clearly, what's being implied here is that the abuse is rampant across the country--that's what's being implied, or how I read it--that we can waive anybody's right to privacy and hold people to a higher standard than any of us are held to.
I agree, I can get the financial statements of the Royal Bank and other publicly traded companies, but that's their choice. Once you're a publicly traded company, you have an obligation to...but you don't circulate those to anybody who asks; you circulate them to your shareholders. They get into the public domain, granted, but it's not just anybody who can phone up and demand the annual financial statements of any business or corporation. It's not necessarily a matter of public record.
So I feel very strongly about this particular clause, and many people have brought it to our attention across the country, not the least of which was the presentation we had on the very first week of our touring task force. It was brought to our attention that under the financial management accountability codes outlined in clauses 7 to 9, there are serious privacy rights issues.
¾ (2030)
I'll read from the opinion we have from the lawyers who did this report:
| Currently, First Nations are required to provide financial reports to INAC only for funding received for band operations and program delivery. With consent from a First Nation, this information is placed on the INAC website. To the extent that Bill C-7 requires that First Nations be required to report on all financial affairs, including other government support, own-source revenue and private sector funding, the Bill could very well violate a band's collective privacy rights. It appears that Bill C-7 is making all financial reporting mandatory and would entrench the Minister's role in the affairs of the First Nation. As well, this requirement could place a First Nation at a competitive disadvantage in business development by virtue of being required to report financial matters to the public that other bodies are not required to report. |
Your competitor in a business enterprise or venture is not bound by that same set of rules. You're put at a competitive disadvantage if you have to disclose information that others do not. So there should not be a blanket requirement to release financial information to anyone who asks for it. It's simply wrong on a number of levels, and it speaks to the level of intrusiveness associated with this bill.
What's even worse, if they fail to comply with this provision, when we get to clause 10 it gives the minister justification to take remedial measures in any of the following circumstances.... “The Minister may carry out an assessment of a band's financial position and...require that remedial measures be taken” when, as in paragraph 10(3)(b), “the failure to make financial statements publicly available within the period specified in subsection 9(3)”....
So not only are you mandated to do it, but you're threatened with punishment. And the only remedial measure the minister can take is third-party management, putting you under trusteeship and taking away your right to manage your own financial affairs, which, as we've cautioned, just expands this burgeoning industry of third-party managers.
It makes the Minister of Indian Affairs the biggest Indian agent the country has ever seen, because as more and more bands refuse this intrusion into their right to privacy, they'll be slapped under third-party management. That's one of the predictable consequences we've cautioned about this bill from day one. It expands and augments the minister's discretionary authority. Instead of seeing that authority diminished and the recognition of the right to self-governance, we're going in the opposite direction. The minister's discretionary authority is being enhanced and broadened.
I think members around the table will agree that's been a bit of a theme with just about every piece of legislation we've dealt with in virtually every portfolio, that somehow in virtually every bill we see, the minister's arbitrary and unilateral authorities are being enhanced and strengthened. It's a pattern.
¾ (2035)
The Chair: Thank you, Mr. Martin.
Mr. Epp.
Mr. Ken Epp: Thank you.
I would like to address honourable members again on this issue.
First of all, let me clarify something my honourable colleague from Winnipeg just said. Indeed, our party received reports of pretty blatant mismanagement by some bands, which is why we made these things public. It was because we were convinced the allegations made had some legitimacy and needed to be investigated.
But as with almost all of our laws, this doesn't necessarily imply that everyone's doing it. I'm going to take a very extreme example here. We have laws against murder, yet there are very few murderers. The reason we have the law is to restrain those few who don't act within a natural moral code. I think the same thing is true here. I would agree with my honourable colleague that in all likelihood, 85%, 90%, 95%, or maybe even higher, 96% of boards operate with total judicial honour and accountability, and there is no problem. But that still does not prevent us from putting into place rules to restrain the 4% where there are abuses. I think that is what our obligation is here, to look at restraining those.
I'd also like to address the idea of openness and accountability, which is the ultimate goal. Who should have access to these records? I agree with my honourable colleague that you shouldn't just abuse people's privacy or confidentiality. However, when you are spending public money or money that is not your own, it is a different ball game. These members of the band or managers are not spending their own money, but money that properly belongs to either the people of Canada or the people of the band, or both, or whatever. There is not an element of competitiveness here. Generally, we don't have two or three groups who are seeking to compete for the management of the band. I understand that these are elected people; they are like you and me. We ought to be able to throw open the books and to show everyone that we have managed them properly.
I would perhaps go along to the degree of saying that, okay, they should be made available, and instead of at a reasonable cost, maybe at no cost to any member of the band, but at no cost, because it's their money and because these are the people they elected. They should have the right to have access to the records, to make sure that things are being handled correctly and that there is no abuse of the money entrusted to them.
This might be a way of achieving accountability, but I think that to say that it's a closed book and that it violates privacy is going a little over the top, my dear friend.
I would have a little bit of difficulty supporting the amendment to delete this clause—although I'm with the member in saying that I don't think we do a service to any municipality or band government by suddenly throwing them open to the scrutiny of the whole world. That invites fishing expeditions. What we ought to do is to put in a mechanism that provides for accountability with proper independent audits, with access to these funds by the Auditor General, if it involves public funds from the federal government, and certainly accessibility of those records and the documentation to the band members themselves.
Maybe that is all I should say on this. I have a tendency to not want to support this amendment for the reasons I've stated, which I think are reasonable.
¾ (2040)
The Chair: Thank you, Mr. Epp.
Mr. Vellacott.
Mr. Maurice Vellacott: I would be pleased to respond to this briefly as well.
Again, I'm not clear on this, but I was not aware or am not particularly of the view at this point—unless our witnesses would confirm otherwise—that this would necessarily apply to all of those other private interests they have, if they have a sawmill, oil reserves, or various business enterprises, and have financial statements available for them.
We probably need to get 100% clarity on this. Maybe we should ask Sylvie, Warren, or Andrew to make it clear for us. Does this apply to all of their financial statements with respect to oil and gas companies, some private business enterprise, or a hotel or a strip mall that they also manage?
Sylvie George: I can answer that.
In the bill, we require that they present financial statements in accordance with GAAP. Presently, GAAP for the public sector requires that everything owned or controlled by the government entity be presented in a consolidated format in the financial statements. That being said, there are other governments or levels of government that do provide financial statements on that basis. Some of them do conduct economic development and don't suffer unduly from economic disclosure, because it's presented in such a summary form that you don't get a level of detail that provides, for example, the bill of materials for building trucks or your supplier list. It's often just a one-liner on your financial statement. It's like an investment in that corporation, using the modified equity method of consolidation.
Otherwise, it's on a line-by-line consolidation, with the cash from businesses and government activities and programs meshed in together. So they would not suffer a commercial disadvantage with that disclosure.
Mr. Warren Johnson: If I could, part of the witness to that are the 57 first nations who now publish their accounts that way on our website, a number of whom have significant commercial operations. So there doesn't appear to be an issue here, or a substantive concern, with respect to the potential release of confidential or commercial information that would put businesses at a competitive disadvantage.
Mr. Maurice Vellacott: Warren, are you saying that it is more the manner of the presentation, that there are a couple of different formats that can be used, such that they don't have to be specific with some of those private or other band enterprises?
Then with respect to the other “band moneys”—to use the technical term, I believe—or the moneys that come from the department, I would assume that they are presented with greater detail or specificity in these financial statements. Is that correct? Would you assume or require that?
¾ (2045)
Sylvie George: Maybe I can take a step back.
Presently, we fund bands through transfer payments and through contribution or flexible transfer agreements. Through our year-end reporting handbook, we require that bands present in accordance with GAAP, and we also specifically require that they present each program funded by INAC in a greater level of detail. These financial statements are not presented in accordance with GAAP, but are more detailed and would not be required in the act—although we would surely still require that level of detail in our funding agreements, in order to abide with Treasury Board authorities and accountabilities to Parliament.
That being said, no, you wouldn't have that much detail with respect to programming, either. It's very much a matter of professional judgment. In the GAAP requirements, I think that expenditures must be presented by line object and by program. So you could possibly have a few programs rolled up into a bigger amount.
Mr. Maurice Vellacott: At this end, let's say that it's going to the first nations person or the member of that bigger band. Would it be in sufficient detail or at a level for him to get some reasonable understanding of how moneys are being spent, and so on? Is there enough detail for a first nations person? Would they come and say “Well, this is just so vague, with a couple of itemized big global figures, we can't get a picture or a handle on things”?
Sylvie George: I guess my response is that the Government of Canada currently presents its financial statements in accordance with GAAP. So I would say yes, it would be at a level of detail that would be sufficient.
Mr. Maurice Vellacott: That's my question. It's a bit of a tricky one. I hear and understand what my colleague Mr. Martin has been saying here.
You're saying that it can be in more of one-liner statement that doesn't give away competitive position. Can you quite assure us that these bands' financial statements as presented don't compromise the competitive position of a band enterprise, business, or whatever?
Sylvie George: I can assure you of that, because generally accepted accounting principles set out minimum standards. If a band wishes to disclose more, they may do so. So that is the minimum requirement.
Mr. Maurice Vellacott: Yes, I understand.
What reasonable and right-thinking people would actually provide more, to the effect of hurting them competitively? I wouldn't think that would be the case, but if they choose to, I guess that's their call, too.
That's all I have to say, Mr. Chair.
The Chair: Thank you, Mr. Vellacott.
Mr. Hubbard.
Mr. Charles Hubbard: Mr. Chair, just very briefly, I find it somewhat difficult to understand why this amendment was brought before the committee, and why any member would think that it would not be necessary to have some system of public accounting.
But just for the record, and while we have witnesses here, there are moneys that leave the department and go through other organizations or tribal councils and make a roundabout route towards first nations. In terms of this legislation and how we talk about public accounting, how would that money fit into this scheme of Bill C-7?
Mr. Warren Johnson: I think I might be able to answer that.
Perhaps the clearest way of answering that would be to refer the members to the definitions section of the act, because band funds are defined there. In simple terms, they would include all revenues the band has received, irrespective of where they're from or what route they took to get to the bands—with the exception of Indian moneys as defined under the Indian Act, or moneys controlled in the central revenue fund, as opposed to by the band, and individual trust accounts also held that way.
¾ (2050)
Mr. Charles Hubbard: Thank you, Mr. Chair.
That point was brought up by Mr. Chatters before we began a study of the bill directly. It's reassuring to know that all moneys that reach the band level are accounted for. Thank you.
The Chair: Thank you.
Mr. Martin, closing remarks.
Mr. Pat Martin: I'm disappointed in the response. I actually expected a more sympathetic response to this amendment because I thought people would be able to see plainly how fundamentally wrong it was and the potential risk, in terms of the disadvantage on a competitive basis, in requiring this kind of full disclosure to anyone who asked about all the financial activity of a band.
Let's say it is a private enterprise that's operated by the band as an economic development enterprise in the community. Even if there's not enormous detail, even knowing whether that particular operation was in debt, carried a debt load, or lost money last year would make a business vulnerable, in terms of bidding on future work in the competitive environment. I'm thinking of the building construction industry, for instance. Let's say two companies are bidding on a major construction project and it's revealed that one company lost a lot of money last year, maybe looks kind of risky, and is really desperate and counting on winning this particular contract to stay solvent. That's the kind of vulnerability, the kind of weak hen in the chicken yard, where a business gets picked on and loses an opportunity. That information is used against a business in the private sector.
So it worries me that if two competing construction firms were bidding on the contract, one is a building construction firm owned by a first nation and one is out there in the mainstream non-aboriginal community, the aboriginal firm would be at a disadvantage because the records of how that company was doing would be accessible to everyone who asked for them. It's clear and plain to me in my own experience of running a small contracting company what a disadvantage that would be. That's information you never want to let out to your direct competitors if you had a bad year last year. Even if all the expenditures of that particular business operation weren't listed line by line, the bottom line would be listed. It would be in the red for the last year, in the example I've used.
We've had witnesses verify that the things that would have to be listed under Bill C-7 as publicly available information are all financial affairs including government support, own-source revenue, and private sector funding. I think that's fundamentally wrong, and I'm disappointed that people either cannot or will not see that.
The recommendation we've made simply deletes any reference to this. We're satisfied there's already an obligation to report all that financial activity to INAC. In fact, reporting a detailed financial audit to all band members is something I fully support. Every member of the band should have access to the financial activity, but not anyone who asks. That's the language we're dealing with here in subclause 9(3):
| A band's financial statements shall be made publicly available within 120 days after the end of the fiscal year, and a copy shall be provided to any person requesting one on payment of a reasonable fee. |
Then there's a penalty if you don't comply. So it really sets communities up, in a sense, because as we read further into subclause 10(3):
| The Minister may carry out an assessment of a band's financial situation and, if the Minister considers it necessary, require that remedial measures be taken when any of the following circumstances.... |
One of those circumstances is “the failure to make financial statements publicly available within the period specified in subsection 9(3)”.
Now, to whose benefit is this? Why are we putting in place legislation that is not only not to the benefit of the band or the band members, it's to their distinct disadvantage? Who gains by this? What are we doing here, if not trying to elevate the standards of living of first nations people?
I would argue this is not only a violation of an abstract right to privacy, which you may or may not value or feel is important, but it's a disadvantage in terms of the operating capacity of a first nation to develop entrepreneurial activity in their community.
¾ (2055)
That was supposed to be the end game here; that's really what the minister was pitching for. He announced, very publicly--the Prime Minister in fact made reference to this--that they're moving away from issues of rights and redress and from now on our energy and attention will be put towards economic development as the vehicle and the mechanism out of poverty. Well, successful models of economic development can be encouraged, but also we can anticipate problems associated with it. This I'm flagging and identifying with you as a detriment to economic development in first nations communities, because it imposes a burden on the enterprise that other similar enterprises don't suffer from.
This is the very type of thing.... We've also seen, though, and there have been other examples and testimony from witnesses, that successful economic development in first nations communities is directly tied to what we call practical sovereignty, to true decision-making authority, to the recognition of that authority within first nations, because it's not the transfer of power. That power lies inherent. That power is inherent in first nations now. As for those rights, we're not here to afford those rights; we're here to recognize and accept that those powers and authorities lie vested in first nations. That's the successful model to economic development.
We hear a reference to the Harvard study over and over again. We've had Dr. Stephen Cornell as a witness to this committee telling us that he personally was apprehensive that Bill C-7 has very little to do with putting in place the steps necessary towards successful economic development. If anything, he questioned the government's real motivation here, because it certainly wasn't in keeping with the recommendations of the Harvard study, which made very concrete recommendations as to what steps should take place if we're serious about promoting economic independence and economic development.
This is one example that offends on the abstract level of violating a person's right to privacy—the collective right to privacy of the band council. It also is just plain dumb in terms of trying to promote and enhance the likelihood of successful economic development. It's a business mistake. You can't make a business case for requiring one competitor to divulge all of their personal or private information and another competitor to be able to operate without having to divulge those things. I feel very strongly that this is one of them.
Maybe there would be interest then in supporting this amendment if I move a subamendment to the amendment. I'd like to suggest now that a subamendment I would move would be to delete lines 5 through 9 on page 8--
The Chair: Mr. Martin, you cannot amend your own amendment.
Mr. Pat Martin: Oh, yes, right. That's too bad. I forgot for a moment.
The Chair: Mr. Epp has a point of order.
Mr. Ken Epp: Mr. Chairman, I'd like to test the will of the committee. I sense that this is going to be defeated, but as it is--
The Chair: That is not a point of order.
Mr. Ken Epp: I'm going to seek unanimous consent to make a subamendment to this at this stage. I'm asking for unanimous consent.
The Chair: You don't have the floor. Mr. Martin has the last word on this amendment.
Mr. Martin, you can--
Mr. Ken Epp: May I ask the researcher? This is not a point of order.
The Chair: Can he interrupt the speaker to ask unanimous consent to reverse rules? He's speaking. If you're telling me that, I'll follow your advice.
Mr. Ken Epp: I didn't mean to interrupt him, so if he wants....
The Chair: I want to know if he has the right to interrupt the speaker to ask the committee for unanimous consent.
Mr. Ken Epp: I thought he was finished--my apologies.
¿ (2100)
The Chair: We're going directly to the vote.
Mr. Pat Martin: I'd like to finish my remarks on this. I didn't quite understand what happened to Mr. Epp's intervention. What was the ruling of the chair?
The Chair: Mr. Epp interrupted you on a point of order to ask unanimous consent of the group to agree to you putting in a subamendment to your amendment. The point I need to rule on, and I need help from the experts, is whether we can interrupt the speaker to ask unanimous consent on anything.
You can ask unanimous consent on a point of order at any time.
Mr. Epp.
Mr. Ken Epp: Okay, then, I would just like to ask the committee for unanimous consent to change just the last part, because that's the objectionable part, “provided to any person”. I would like to move a subamendment that it be stated, “be provided to any member of the band”.
The Chair: We're asking unanimous consent to be authorized to place a subamendment.
Mr. Ken Epp: To place a subamendment.
The Chair: If you get that, then we'll talk about the subamendment.
Mr. Ken Epp: Okay, but I wanted to make sure that the members knew what I was proposing to do.
The Chair: Well, I know that, but first we'll deal with your request for unanimous consent.
Mr. John Godfrey: But that's not a point of order.
The Chair: I have been advised that it is. I don't agree, but I'm not the expert.
Do I have unanimous consent...?
An hon. member: No.
The Chair: There you go.
Mr. Martin, would you continue?
Mr. Pat Martin: That's too bad.
I'll continue, then, with my comments on our amendment, which was to delete subclause 9(3) in its entirety. Frankly, I would have been satisfied with the amendment that was being considered by Mr. Epp, that instead of any person being allowed this information, substitute any member of the band. I would have had no objection to that. I think I would have welcomed it as a friendly amendment, because the financial statements.... Well, I still would have had some difficulty with “financial statements shall be made publicly available within 120 days”, because currently we're told by our consultants there are 57 first nations who voluntarily put their financial statements on the website at INAC. That's up to them. This will mandate that.
The Chair: Thank you very much. This completes your time.
We go to a recorded vote on NDP-23.
(Amendment negatived: nays 7; yeas 3)
The Chair: BQ-24 was withdrawn. It's identical to the previous one.
We are now on CA-23. Who will take that one?
Mr. Pat Martin: On a point of order, Mr. Chairman, what is happening to the order of amendments? With no Bloc member here to move this amendment, would it be in order for someone else to move it?
The Chair: Are you referring to BQ-24?
Mr. Pat Martin: Yes.
The Chair: That was withdrawn by Mr. Loubier.
Mr. Pat Martin: I see. I'm sorry. I missed that.
The Chair: Thank you.
Mr. Vellacott.
Mr. Maurice Vellacott: Before I proceed to question, Mr. Chair, is it in order for ones that have not been withdrawn and a member is not here for another member to put this forward?
The Chair: I would be forced to accept it.
Mr. Maurice Vellacott: If they're already submitted.
The Chair: They are not deemed moved until they are presented here.
Mr. Maurice Vellacott: But they have been submitted in writing.
The Chair: They have been submitted on time.
Mr. Maurice Vellacott: Yes.
The Chair: Then I would have to rule, unless I'm being advised differently....
Mr. Charles Hubbard: On a point of order, Mr. Chair, we were informed by the member who presented the amendment that he wished to have it withdrawn.
The Chair: The question was not about that one.
¿ (2105)
Mr. John Godfrey: Should it not have been withdrawn?
The Chair: No, the question was when we get down further, if we reached an amendment by the Bloc that was presented on time and the Bloc is not here, could another member move it. I would have to rule that we have to accept it.
Do you agree?
Yes.
Mr. Maurice Vellacott: I'm not asking about those that have been already withdrawn.
The Chair: No. Well, if you want to stay here all week, yes, I'll give you permission. I just don't like wasting taxpayers' money the way we're doing it here now.
Mr. Maurice Vellacott: No. I'd like to ask the question.
The Chair: Amendment CA-23. Mr. Vellacott.
Mr. Maurice Vellacott: Our amendment still stands here. Again, the intent as moved by my friend here, Mr. Epp, or at least an attempt at that.... If you have audited financial statements for band members--and I assume this is the kind of thing our guests would indicate to us--that are available to band members, I assume by posting at the band council office or such place as that.... It's not apparent or they are not clear that it is necessarily a meeting that is required here.
Anyhow, in fact there will be supporting schedules as well, so at the band office or wherever these things would be, they are supposed to be made publicly available. They are at the band office and there would be the supporting schedules as well. Sometimes a band member requires a little greater level of detail if he has things he wants to search out to get a little more complete picture of them. Our point is that we are simply asking for supporting schedules to be there. I think it allows the kind of scrutiny a band member wants and a higher level of transparency; this is the intent of it.
Again, I leave it to others to speak to or respond to it from here. First, I'd want to ask our witnesses if there would be anything in the way of being problematic from the point of view of schedules being included here. That can always be done by the individual who has done up the books and so on, to attach those schedules. Is that maybe something that is already done by bands across the country?
Ms. Sylvie George: I guess the act requires that it be in accordance with GAAP. GAAP would indicate that it would encompass a balance sheet, a statement of revenues and expenditures, a statement of changes in financial position, and notes to financial statements. Your supporting schedules, I'm not sure what they refer to, so I would....
Mr. Maurice Vellacott: Is it not something you are familiar with?
Sylvie George: No. It is not common accounting terminology.
Mr. Maurice Vellacott: With these other things, do you want to just go over them and mention them again, those things required by GAAP? Tell me about GAAP in terms of their requirements.
Sylvie George: There'd be a balance sheet statement of revenues and expenditures, a statement of changes in financial position, and notes to financial statements. Typically, the notes describe at a greater level of detail what is found in the upfront statements.
With respect to public sector accounting rules and recommendations, however, they do speak a bit about additional information that may be attached, but that is not really a requirement. It is for the judgment of the government entity.
Mr. Maurice Vellacott: What's the nature of the additional material or information?
Sylvie George: It would be information regarding revenues and expenditures at a program level and things like that.
Mr. Andrew Beynon: If I may add something as well, in English in subclause 9(1) there is a reference where “A band's financial statements shall be audited,” and then it goes on. In subclause 9(2) you have “A band's financial statements must include a schedule”, and then in subclause 9(3) it says “A band's financial statement shall be made publicly available”.
The proposed amendment does two things. One, it refers to a band's “audited financial statements”, and then it says, “with supporting schedules”. It might help if one looks at the French text in Bill C-7. In subclause 9(1) there is a reference to
¿ (2110)
[Translation]
“A band's financial statements shall be audited...”.
[English]
It's quite a literal translation of the English, a reference to financial statements that are audited. In subclauses 9(2) and 9(3) in the French there is the pronoun “Ils”. I hope I can explain this adequately in terms of the French, but there is the pronoun “Ils”. What that does is refer you back to subclause 9(1), so it means the audited financial statements.
I guess there is some economy of language in the English, and if there were any confusion in subclause 9(3) as to whether those “band's financial statements” are the same audited financial statements, I would suggest that the French makes it very clear that it's a reference back to the audited financial statements. I hope that's clear enough in terms of the English and French difference. I can explain a bit more if you need it.
Mr. Maurice Vellacott: I think I understand. So in subclauses 9(2) and 9(3) it's basically there without being there specifically. But you could well insert something to be in keeping with the French, such as “A band's audited financial statements” in subclause 9(2), and again in 9(3), “A band's audited financial statements“. That's the effect of it, then.
Mr. Andrew Beynon: Again, I think it's actually not needed in English. When you read clause 9 as a whole, the reference to “financial statements” is likely the same reference back to subclause 9(1), the audited financial statements in accordance with GAAP. What I'm just suggesting is if there were any ambiguity whatsoever in the English text, there is no ambiguity on that in the French. French and English of course have equal weight in law in the courts, so the courts would look to both of them.
Mr. Maurice Vellacott: Those are my concluding remarks, so I'll turn it over to the next....
The Chair: Mr. Martin.
Mr. Pat Martin: I'd like an opportunity to speak to this as well, Mr. Chair. It is the same clause that I sought to have amended in my previous effort, NDP-23, I believe it was called.
I've seen a trend throughout this bill to try to take what's already policy and introduce it into legislation and make it more enforceable, in fact mandating that way and including repercussions, or more direct punishment associated with it in terms of if you fail to comply. We've seen the default codes that have come into play if you fail to comply, but also the minister's expanded role in terms of intervening if you fail to comply.
The fact is that bands are already doing more than this. The supporting documents are already part of any financial annual report to INAC on each program rendered. This is common practice. The amount of documentation that's filed with INAC is already onerous. We've had the Auditor General tell us that 168 reports per year from a first nation is the norm, and she said that these groups are overaudited. There's a surplus of auditing, and the problem is in fact that the audits are so abundant that they pile up at INAC and nobody even reads them or has time to plow through them because they're so frequent.
These clauses mandating supporting documents or supporting schedules--or whatever terminology is used--are already part of all funding agreements now, whether they're contribution agreements or anything else. So the information we have is that it's unnecessary, first of all, but it's taking things to a ridiculous extreme almost to be requiring further and further and further accounting based on what I think has already been admitted, the very isolated ad hoc occasions of financial abuse that have been accounted. If it were a norm, if it were a rampant epidemic, I suppose it may justify this heavy-handed intervention, but it's not. So even the time that we're dedicating to this today is hard to justify and to defend, never mind $110 million a year as a bare minimum figure, which we believe is terribly low.
It speaks to a larger problem, though. The very fact that we are sitting here with officials from the department, essentially crafting legislation for us and guiding us in the further crafting of this legislation, speaks to a conflict of interest situation, which has been brought to our attention by a number of witnesses.
As Grand Chief Carol McBride told us, the Royal Commission on Aboriginal Peoples concluded that the Department of Indian Affairs should have no role in reforming Indian policy because the department was too tainted by conflict of interest and because its whole culture was based on control and manipulation of first nations. These were comments made to this committee that cautioned us that we shouldn't be taking direction from DIAND in crafting legislation dealing with the reform of Indian policy, at least according to Grand Chief Carol McBride. She points out that the sham consultations and the process that has led to the creation of this bill are good evidence of what the royal commission was talking about.
I quote further:
| As I mentioned at the outset, we are fully in support of accountability, democracy, and transparency. We are actively applying these principles, and if we are given the respect we deserve, we will succeed. |
So what I would like to know is why the Government of Canada isn't also prepared to live by these very principles. I suppose she is referring to accountability, democracy, and transparency. Because if this bill is supposed to be about accountability and transparency, where is the transparency in divulging the legal opinions that DIAND is secretly withholding from us as committee members, the legal opinions about whether or not this bill does infringe on constitutionally protected rights, the legal opinions about whether this bill has an impact on the 200 outstanding court cases currently in the court system?
¿ (2115)
We want that information. We've asked for that information. They refuse to give it to us. It points to a conflict of interest. I think we have a double standard here in legislation.
Another witness--and I'm speaking from witnesses' testimony to the committee because I don't believe they were heard sufficiently the first time around--RogerObonsawin, pointed out that we should be concerned that we are legislating about conflict of interest on the reserve level when on the macro level Indian Affairs is in a conflict of interest. We had clauses we just dealt with on conflict of interest. Mr. Obonsawin said:
“If you say Indian Affairs is not interfering or using coercion to define our governments and how we run ourselves, you're being very naïve. We saw examples of that coercion when you talked to the Native Women's Association. You fund the groups that support you and you squeeze the ones that don't support you. We've seen examples of that where there's a reward and punishment aspect to every aspect of this bill; that if you cooperate, you get funding, and if you don't cooperate, you see your funding slashed. It's no wonder people are cynical about this.”
He went on to say that Indian Affairs is in a conflict of interest position and should not even be involved in developing any legislation or any initiatives that have to do with native people--just get them out of the picture. That was recommended before in other reports and by the Royal Commission on Aboriginal Peoples.
Should we not deal with this before we deal with any amendment? I think we should. I think we should confront the basic issue that was brought to our attention that when we're asking questions and taking direction from DIAND in this, or the minister indirectly, in the crafting of this legislation, the minister's in a conflict because he has a fiduciary obligation to do what is in the best interests of aboriginal people, yet he's defending the interests of the government as a priority. That's a blatant conflict of interest. That's why the Supreme Court and virtually every authority have determined that the only way to craft legislation dealing with first nations people is by cooperative negotiation at the table with us as partners, as equals, not by one party imposing circumstances on another party. We're way off track here, and the process is so flawed--I'm glad the chair agrees--that we're a mile off track in where we should be if we were trying to make meaningful amendments to the Indian Act
Again, I draw attention to the fact that another committee of the House of Commons had the courage to suspend their study of the amendments to Bill C-25 until the government gave full disclosure of the information that they had pertaining to the bill in question there. But we're at a distinct disadvantage. We're operating blind. We know that these government documents and legal opinions exist, because there's reference to them in cabinet documents, but when we ask our colleagues, or the staff here, for a legal opinion, they can't even divulge whether or not such a legal opinion exists. When we ask what is his legal opinion, he says he's not allowed to give legal opinions to members of the committee. I say “You're allowed to give legal opinions to the minister, so you're operating on behalf of one party and against another party.”
The Chair: Mr. Martin, the support staff professionals who we have here are here to assist us. They are not here to be put down, or berated, or have their professionalism questioned. If you have a question of them, ask them on their professional abilities, but other than that, let's stick to the on-the-issue comments.
Mr. Pat Martin: All right. I would like to ask a question of Andrew.
Have you done a risk assessment on behalf of the minister to assess the liability associated with court challenges that may come from this bill? Have you been called upon to undertake such a legal risk assessment of the impact of this bill?
¿ (2120)
Mr. Andrew Beynon: Mr. Chair, I think this is going back to the same question that has been raised before, about whether there is legal advice, and trying to get disclosure of it. I'm sorry, but I don't see how it deals with this amendment.
Mr. Pat Martin: So you won't answer that.
The Chair: Please don't answer.
Mr. Pat Martin: Will this violate inherent aboriginal rights? Will this violate constitutional--
The Chair: That is a legal opinion.
Mr. Pat Martin: Do you anticipate court challenges stemming from passing Bill C-7?
The Chair: Thank you very much, Mr. Martin; your time is up.
Mr. Godfrey.
Mr. John Godfrey: At the risk of returning to the amendment, Mr. Chair, I just--
The Chair: Don't do that to us.
Mr. John Godfrey: I hate to be a spoilsport, but would it be fair to say that the difficulty with the amendment is quite simply that it's redundant, that is to say, that everything it would purport to do is, as you indicated, both in the French and English text, covered and therefore you don't need to repeat the supporting schedules simply because it all flows from the first two parts of the clause?
Mr. Andrew Beynon: I think there are two pieces to that question.
Mr. John Godfrey: There's the audited part.
Mr. Andrew Beynon: Yes, it is redundant on the issue of an expressed reference to audited financial statements, for the reasons that I have about the French and the English, and even the English text.
As for the issue of the specific reference to supporting schedules, it is probably redundant. It's a question that Sylvie can speak to perhaps better. Again, I think her comment was that in most cases GAAP requires, in terms of financial statements, disclosure of the statement of revenues, the balance sheet, the statement that changes in financial position and notes to financial statements. Those notes may perhaps be the same thing as supporting schedules, probably in most cases would be. It might have a slightly broader depth to it, but I'm not sure.
Sylvie George: “Supporting schedules” isn't a common accounting term; therefore I can't really comment further.
Mr. John Godfrey: The first part, part one, says they have to be audited. Part two says they must have a schedule attached, these audited statements; and part three says these audited statements with a schedule attached have to be delivered in a certain amount of time. So it's one, two, three, always the same financial statements.
The Chair: Thank you, Mr. Godfrey.
Mr. Vellacott, closing remarks.
Mr. Maurice Vellacott: Mr. Godfrey helped me make my point there. Thank you, John; it was well done, and I appreciate that. I always can appreciate the help from a good colleague across the way there.
I expect that probably this does occur in most of the cases around the country. In fact, this is the case to the point that I think it was last year that one of the bands in my constituency actually published their financial statements in the local paper. I don't know if that's real common, but that was a real credit to the band. It was all there. I think in terms of people in the surrounding communities and so on, it was a very positive step; there was nothing to hide, they ran their books well. They'd been in a bit of a difficult financial situation and they were coming out of it, and there'd been very good management there, good leadership.
I knew the leadership personally and had a lot of respect for them, and then out of the blue this was published in the newspaper and it got some comments around that part of the country. I thought it was very commendable.
I sympathize and empathize with what Mr. Martin says on some of these things, but in cases in my experience, good leadership on reserve or band communities are taking a forward, progressive step and even going to that end. They're handling things well. They're very transparent, very above-board about it, and I expect this is probably very common, or could be very common, across the country.
So I don't think it's asking a lot. Who knows, if it's voted down here as an amendment today, it may well be that it will pop up by way of their own proposed codes anyhow. That would be my hope for the sake of their own people who want to know, deserve to know, and I think it would be something that many would want to consider doing anyhow.
So I'll leave it with that and we'll go to a recorded vote.
¿ (2125)
The Chair: Recorded vote on CA-23, page 82.
(Amendment negatived: yeas 2; nays 8)
The Chair: BQ-25 was withdrawn. CA-24 at page 84, Mr. Vellacott.
Mr. Maurice Vellacott: This one is pretty straightforward, I think. It's just changing or adjusting some wording in clause 9, replacing line 9 on page 8 with the following: “payment of a nominal fee that does not exceed the cost of printing”.
The wording before was that a band's financial statements be made publicly available after the end of the fiscal year, and it speaks of a payment of a reasonable fee. I think this is more than a housecleaning amendment. We propose changing the term “a reasonable fee” to “a nominal fee that does not exceed the cost of printing”.
I was before mildly chided...maybe that's too strong a word, but it was commented earlier that maybe some of my terms, like the expression “reasonable”, were a little vague, not specific enough, a little too general, and here we have that very term. It might be rather open as to what “reasonable fee” might mean. Reasonable to one person might not be at all reasonable to another. A person of means, a person of wealth, might say $25 is not unreasonable. For somebody who has a marginal or lower income, maybe $5 would be too much.
What we're proposing here is that it be no more than the cost of the printing. If it's three or four sheets, whatever it would be with these schedules, as was suggested by Sylvie before, then maybe 40¢ or 50¢ would be quite sufficient. But we don't want there to be any mistaking the fact it needs to be made available at a cost that's not going to be prohibitive to people.
I've had the privilege to know some first nations people who have jobs where they're bringing in considerable income, but I've also had the privilege to know a number of dear people who have very little money, and I certainly don't want that to stand in the way. They do certainly have an interest in the issues of governance, the affairs of their first nation, and I don't want there to be any exclusion or shutting them out from the democratic process.
I've always been one to say we need to keep it within the range and reach of everybody who has an interest, who wants to be involved in the governance of their community, whether it be on a first nation or a federal, provincial, or municipal level. I know when it gets to political parties sometimes there's dispute about whether the cost of a political membership is too much, so some waive it and remove it altogether. There are some of us on occasion who, just so it's not standing in the way of somebody who wants to be involved in the process, might spot them $10 or loan it to them or just outright grant it to them so they can have that particular membership. I think, under the circumstances, for somebody who would otherwise be denied involvement that's a commendable thing to do.
Our point here, as a party, in proposing this is to make that process as open as possible to every one who wants to look at a financial statement so they're not denied or deprived of that.
That's the point here and I think it speaks for itself pretty much.
¿ (2130)
The Chair: Thank you.
Mr. Godfrey.
Mr. John Godfrey: I have a question, Mr. Johnson or Ms. George. I assume “reasonable” has a legal meaning, does it? When we see a word like this, what is commonly understood, so we don't get into the kinds of exaggerations Mr. Vellacott fears?
Mr. Warren Johnson: Our understanding is that in a variety of areas faced with a language like this, courts have interpreted it to ensure we are talking about the reasonable administrative expenses of providing whatever this service is. They take care where those are exceeded, because that would in fact be equivalent to a tax in legal terms, and normally it would not be allowable with this kind of language in legislation.
Mr. John Godfrey: On the other hand, if I were to read the proposed amendment literally, I suppose I might come up with the view that the payment of a nominal fee that does not exceed the cost of printing could be the cost of printing the whole report, whatever that meant. In other words, supposing you had.... You could have a very expensively printed report, I would think.
Mr. Warren Johnson: If you wanted to use a colour photocopier, call in a consultant to make the copies, and--
Mr. John Godfrey: Yes, there's nothing that says it wouldn't necessarily be a pretty expensive operation. Anyway, enough.
The Chair: Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair.
I'm glad to have an opportunity to expand further on subclause 9(3), because it's one of the most controversial clauses in the entire bill.
I supported the last amendment put forward by the Canadian Alliance on subclause 9(3), but in this case I have to object, because it really does lend to this trend we've seen of the interest of the federal government to micromanage the activities of a first nation. It flies in the face of the concept of self-governance, or the respect that should be shown to a sovereign and independent state.
Just to follow this through and make sure I understand it correctly, subclause 9(3) mandates that a band's financial statements shall be made publicly available within 120 days after the end of the fiscal year, and a copy shall be provided to any person requesting one on payment of a reasonable fee.
We object in principle to the whole concept that any person can walk up and request a copy of the private financial statements of a first nation. I've made it abundantly clear that our recommendation would be to delete subclause 9(3) altogether. If you don't accept that it violates the collective privacy rights of a first nation to have to disclose private financial information to anybody off the street who asks for it, surely you can accept the other side of the argument that it puts a first nation at a competitive disadvantage, in terms of economic development or business enterprises.
If a business activity on a reserve is bound to this set of rules where they have to disclose their financial statements to any Tom, Dick, or Harry who asks, and the company they're in competition with doesn't have to disclose theirs--if you can't accept one surely you can accept the other. If you can't accept either, I think you're showing a wilful blindness to how offensive this clause is.
The Canadian Alliance is proposing that you would not only have to provide a copy of the private financial statements of the band to any person who asked, including your competitors, but you would also have to provide it at a nominal fee that doesn't even exceed the cost of printing.
Let's not confuse this with the requirement that bands provide to every member of the community copies of financial statements, because that's what they do now, free of charge. I don't know of any first nation that charges a fee for a copy of the audited financial reports they're obliged to share. They submit them to INAC and circulate them to their own band members. But that's another thing entirely.
Transparency and accountability to their own band members is a desirable thing, and I don't think anybody here is trying to imply or should be implying that isn't the current situation or the status quo. But to go beyond that and require that we have to disclose everything about the financial activity of a community to anybody who asks.... It's none of my business how Red Sucker Lake conducts their financial affairs. It's entirely their business. So that's what is wrong with the section.
We're also conducting ourselves here in a way that I think is completely improper. I was quoting Mr. Roger Obonsawin just before he walked in, and drawing attention to what he pointed out in his report. He said: “Indian Affairs is in a conflict of interest position”--and in fact the minister is in a conflict of interest--“and should not be even involved in developing any legislation or any initiatives that have to do with native people. Get them out of the picture.”This was a recommendation in previous reports and the Royal Commission on Aboriginal People.
That's more to the point, because I want to talk about questioning in whose interests is this bill. Certainly it's not in the interests of those who would have to forfeit their reasonable rights to privacy. Therefore it must be in the interests of the other party in this process, which is the federal government and the minister. The minister has a fiduciary obligation to act only in the best interests of aboriginal people, but he--
¿ (2135)
The Chair: Mr. Martin, what does the minister have to do with the cost of printing? That's what the amendment is about. I'm allowing a lot of leeway, but I think we're pushing it a little bit.
Mr. Pat Martin: We're debating subclause 9(3), Mr. Chairman.
The Chair: No, we're not debating the subclause. We're debating the amendment CA-24. It speaks of the cost of printing.
Mr. Pat Martin: I agree. Okay, then when we read the subclause as amended, as contemplated by Mr. Vellacott, it has the effect of speaking to the disclosure of financial statements. It goes beyond--
The Chair: I'll let you go, but I just wanted everybody to know that we're not talking about the amendment.
Mr. Pat Martin: Well, I understand that. We have examples of interference already. If people don't cooperate with this bill they see their funding cut. It's a glaring example of conflict of interest. It's a glaring example of the abuse of power to coerce people into accepting something they don't want to accept.
( Applause )
I call it an abuse of power. This bill is about transparency and accountability. Well, what's really transparent is what the minister is trying to achieve here, and that's to shift things that are already in policy into legislation so people can then be punished by legislation for not cooperating with policy initiatives.
We're talking about the Alliance's amendment CA-24, which deals with subclause 9(3), which introduces an obligation to disclose the private financial information of a community to any person who requests it, and then at a nominal fee not to exceed the cost of printing. But if you don't comply, if you don't disclose your private financial information, all of a sudden--move down to subclause 10(3)--then the minister may carry out an “assessment” and take “remedial measures” if you fail to make financial statements publicly available.
Well, we know what those remedial measures will be--financial intervention, trusteeship, third-party management, financial punishment, discipline. That's what we're really talking about here: coercing people into an avenue of recourse or a way of doing things into which they have no input, in which they have no interest, and which they oppose and reject.
We simply didn't listen to witnesses who advised us in their submissions, in a very respectful way, that they were not interested in this becoming law. They believed us when we said we're going to do a consultation and we're going to take what you tell us and put it into the bill. Many people spent a lot of time developing comprehensive and detailed submissions suggesting what should be in the bill and making comments on what was proposed in the bill.
The very first day of hearings I attended, one of the very first witnesses was the Vice-Chief of the Assembly of First Nations for British Columbia. That presentation made it abundantly clear that subclause 9(3) would be flagged as being a specific irritant. They said “Why should we have to disclose? Why should we forfeit our rights to collective privacy and disclose to any Tom, Dick, and Harry the private and confidential details of our financial activities on our reserve, up to and including private enterprise or a competitive business that we may have developed on our reserve?”
It's crazy. It makes me suspect strongly that the motivation of the First Nations Governance Act has very little to do with transparency, accountability, or self-governance. It has more to do with getting out from under the fiduciary responsibility of the minister. I suspect strongly it has to do with the potential impact on some 200 outstanding court cases currently working out through the system. It certainly has to do with expanding and augmenting the discretionary authority of the minister, because we have a whole new section that talks about what the minister may do to you if you will not or cannot comply with these new provisions.
We're concerned as well about the cost of this particular imposition here, that if a community does not comply with this, with providing all the financial statements to anybody who asks in a certain period of time, the ultimate intervention is third-party management. Well, I am determined that we are going to get to the bottom of this issue, this mini-industry of third-party management.
¿ (2140)
The Chair: Thank you.
Mr. Vellacott, closing remarks.
Mr. Maurice Vellacott: Thank you.
It's interesting that in terms of some differing perspectives rendered on this particular kind of very innocent little amendment, wanting people to pay only a nominal fee that doesn't exceed the cost of printing, we can almost be like ships in the dark.
I understand in part what Pat is saying. I'm obviously taking a different line altogether. I want the ordinary first nations person to have access to this at a very nominal fee that does not exceed the cost of printing. That's my desire.
I am well aware that many of the first nations people who have come to me use dollars very carefully. Many of them are in a fairly low-income kind of situation; not all, but this is again designed for those who are hard-pressed financially to be able to come up with the dollars for anything costing a great deal of money. But they are interested in the process. They want to be involved. They want to be a part of it for the sake of their children and their grandchildren and those of the future.
I find it interesting, Mr. Johnson, that you would comment in respect to the matter of a reasonable fee in response to Mr. Godfrey here, when you said that a court would judge that reasonable fee means reasonable administrative cost--at least that's what I thought I heard you say. Is that correct, that a reasonable fee would be judged by a court to mean a reasonable administrative cost?
¿ (2145)
Mr. Warren Johnson: Yes, as opposed to a fee that was above the cost of doing whatever it was, and therefore it would be considered a revenue-generating item or a tax thing and should be subject to different kinds of language, different kinds of treatment.
Mr. Maurice Vellacott: Right. Exactly. That makes my point again, and the point of this amendment, which is the fact that somebody who can hardly afford to pay for a 10- or 12- or 20-sheet financial statement, whatever it would be, is hardly going to be in a position to go to a court if he's turned down on this one. This is an individual with no financial means to speak of, and because the charge has been higher and bands have latitude in terms of what “reasonable fee” means, he's not going to be in a position to go to a court to come up with the determination that “reasonable fee” means reasonable administrative cost. He's not in a position to go and chase this one down by way of the courts, obviously.
So with that, I think Mr. Godfrey would understand my point. It's pretty apparent. This is an individual who can barely afford the cost of printing, and we're going to be asking him to go to the court to ask for a judgment because the fee wasn't just the reasonable administrative cost.
Again, I think it's plain, apparent, and simple. It's layman's language here to say that the payment must be of a “nominal fee that does not exceed the cost of printing”. If people get to playing games with it, as my colleague across the way suggests, with elaborate covers and designs and so on, and professional printers who have these glossy statements done up fancy just to keep them out of the range of what people can afford, I would think it would be exposed for exactly what it is--a kind of a subterfuge to keep it out of the hands of an ordinary band member, who reasonably and rightfully should have access to it.
Again, I think the language in the amendment here would be much more plain. Maybe “reasonable fee” won't have to be challenged in the courts by a poverty-level or low-income person, but I would think that just to prevent this--head it off or pre-empt it--the amendment would be quite sufficient to make it obvious to all that the statement could be in the hands of every person, without any kind of a cost prohibition or restriction, by way of saying “nominal fee that does not exceed the cost of printing”.
I would ask for a recorded vote on that, on behalf of all first nations people.
The Chair: Recorded vote on amendment CA-24, page 84.
(Amendment negatived: nays 7; yeas 2)
The Chair: Amendment CA-25. Mr. Vellacott.
Mr. Maurice Vellacott: This is on clause 9 again, that it be amended after line 9 on page 8 by inserting a new subclause, 9(4), that:
| Within 60 days after a band's financial statements have been made publicly available in accordance with subsection (3), the council shall conduct a meeting open to all members of the band and residents of the reserve. The auditor shall attend at the meeting to respond to any question or comments from members and residents in respect of the financial statements. |
This amendment, this new subclause to clause 9, says in straightforward language that there will be a public meeting 60 days after the financial statements have been made publicly available, the meeting being open to band members so they are then able to ask the auditor questions.
Again, the premise of this and the underlying intent are that these financial statements should be made available to members in a format that's easily understand, not just in “accountantese”, as we say sometimes, but it has to be GAAP principles with parallel, insert, interleaf, or some other kind of sheet there that will make it really understandable even to people like me.
Band members will be able to have access to the band's projected budget in a more thorough manner if they have a full understanding the band's current financial status. Every effort should be made to disclose the financial position of the band to its members. Transparency is most important in the financial aspect of governance.
Auditors should be available to answer questions residents and members may have, and every effort should be made to answer those questions. It's not unlike what we proposed or sketched out or painted before, something I think happens in a good many places and something I think would be an excellent example or model to follow all across our country in first nations communities.
Actually, in reference to this audit, it came up often where I was talking at the annual meeting about having an auditor there and so on, but I can see that this might be the more appropriate time to have him on the spot, in place and responding to questions.
What good or at least to what extent of good is it when you publicly make available an audit but then you don't have any kind of back-and-forth, some give-and-take, some response to that particular audit? The point here is simply that within a 60-day or two-month period after the accounts are available, a meeting will be conducted with the members of the band and the residents of the reserve there and with the auditor attending the meeting and responding to questions or comments from members in respect of the financial statements.
This, I think, kind of helps to complete the picture. They earlier had the projections, they had the budget, they had the year-to-date kind of financial statements we talked about before, they had the balance sheet, and now they have the full picture. A year-end has closed off. They've had those statements and now they're going to have a discussion about that. I think that would be a noteworthy kind of thing to do, and maybe it's what's done in a lot of situations across the country already.
I rest my case with that and look to the wise comments and interventions of other members in respect of the particular clause we've proposed here.
¿ (2150)
The Chair: Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair.
I see we're still on clause 9 of this lengthy bill, and I think there are 58 clauses. The amendment proposed by the Canadian Alliance, their 25th amendment, CA-25, would add a whole new subclause to clause 9.
My criticism, the reason I won't support this amendment, is that this particular clause even adds to the micromanaging tendency of the bill. It's taking what are either policy initiatives or administrative details and putting them into legislation. There is a big difference there. The minutiae of operating an enterprise such as how often you hold a meeting, where you hold the meeting, who shall attend the meeting, how long the meeting shall last, what type of milk and cookies you serve at the meeting, all those details, are taken to a ridiculous extreme in this and in other examples we've seen.
What's being proposed in this amendment is that within 60 days after a band's financial statements have been made publicly available according to subclause 9(3)--which I objected to strenuously--now the council shall conduct another meeting open to all members of the band and residents of the reserve. It's not just members of the band, but also, again, we have this issue of other “residents of the reserve”, who may not be band members, being allowed to attend this meeting. It says “The auditor shall attend at the meeting to respond to any question or comments from members and residents in respect to the financial statements.” In other words, it's an open bear-pit grilling session, where the auditor would have to respond to questions.
It's not that I object to the idea of this taking place, but it doesn't belong in legislation, nor is it up to us to decide how much of this extreme form of accountability and justification should take place, notwithstanding the practicality of bringing the auditor back in, etc., to personally attend in what might be a small northern community. You have to remember, what's put in this bill applies uniformly to all 633 first nations across the country. There may be first nations within an easy drive or commute from the major centre where they hired the auditor, but it may be that this applies to a fly-in community like Pauingassi in northern Manitoba, where the practical aspect of dragging the auditor in to be grilled by everybody in the community really exceeds what you would even consider common standards or common practice of accountability.
Certainly the Prime Minister and the cabinet aren't required to conduct meetings and be available so the Canadian public can all have a go and take a shot at things. That's why you have an administrative or government structure with the executive authority to do some of these things.
I really question the practicality of the clause, but I also caution that it adds to this body of micromanaging requirements, all of which are enforceable and all of which, once they are in legislation, are binding and mandatory; anybody who fails to comply is subject to punishment and intervention by the minister, again.
I don't know why we're going in this direction or why we're fixated with this type of inclusion of language. What we heard from witnesses in submissions made to the committee was that they wanted to amend the Indian Act as much as everyone else, but they wanted to do so in a collaborative, cooperative way; we would agree on what items should be prioritized and dealt with immediately even if it meant only dealing with some items and not others in the interests of time, dealing with some of the worst irritants.
The worst irritants as identified by first nations and by the representatives who addressed the committee were not issues of bookkeeping, accounting, tinkering with the Indian Act, and administrative details. They were issues of housing, health care, fresh water, education, and basic needs. Those are the issues that would have been the top-of-mind issues. If you had conducted an honest consultation in first nations communities and told them that this government is interested in elevating the living conditions of first nations people, do you think these would have been the priorities that would have been identified?
¿ (2155)
In fact, many of the people who came to the consultations, of the thousands the minister claims were consulted, didn't come to talk about the details of Bill C-7. They came to register their legitimate grievances about not having their basic needs met, about the epidemic of diabetes that exists in first nations communities, or about any number of things other than these administrative details.
So it does a disservice and it trivializes the legitimate grievances of first nations people for this committee to be seized of the issue of how often a band has to conduct meetings, disclose information, and blah, blah, blah. It's really of very little interest to anybody, and it's certainly not a top-of-mind issue for any of the people I've heard who came to this committee or for the people I've talked to subsequently.
We had thoughtful, comprehensive briefs presented by authorities in the field, people who have dedicated their lives to trying to end the tragedy of 130 years of the Indian Act. I specifically make reference to a presentation made by Grand Chief Leon Jourdain of Treaty 3 Grand Council, who put together a package, an appeal almost, a heartfelt appeal to the government to listen for a change, to try to embrace issues that are top-of-mind issues. One paragraph is relevant here, because it speaks directly to some of the absence of substance. The quote is:
| The intent of Bill C-7, the proposed First Nations Goverance Act, violates the spirit of peaceful coexistence between the Crown in right of Canada and the Anishinaabe Nation in Treaty 3. Bill C-7 has no legitimacy. It has no place in our Sacred Constitution. It is another act intended to fragment my Nation. It is a ruinous intrusion on our inherent right of self-government. It violates the honour of the Crown. It is a contravention of your own Constitution. Any act that seeks to destroy a people is an act of genocide. We have no choice but to oppose it. Bill C-7 must not go forward. It must not pass. It must be stopped. |
That's the kind of passionate appeal and passionate plea we heard witnesses give in testimony to this committee--thoughtful, detailed, comprehensive remarks that appealed to this committee to put the brakes on this initiative, back up a couple of steps, and take another run at it. If the government is bound and determined to formalize policy and in some way make it more universal and standardized, then so be it. There are ways of doing so that aren't confrontational and don't offend, insult, and trample upon constitutionally recognized inherent aboriginal and treaty rights. There are ways of doing that.
We are reminded over and over again of the treaty process. If anything, as a first step, give definition to section 35 of the Constitution and then move forward with enabling legislation if need be. But even without that, even returning to the table and implementing the treaties that people hold sacred to this day would be a step in the right direction, with no rancour and no choleric around the country and with less effort and less expense than we're expending today in trying to devise codes of governance that nobody wants, and then devising ways to shove them down their throats or make them accept them when they're opposed to them.
So again, I challenge the whole exercise we're going through. I ask committee members here, is it worth $550 million and five years of terribly fractured relationships between first nations and the Government of Canada to accomplish what are really administrative, bookkeeping, and accounting details? There's nothing of substance here other than dictating and preaching to sovereign, independent nations, as if this were a 4-H club or a church auxiliary.
Frankly, when we're micromanaging people to the degree of even specifying how often, where, when, and in what format they will consult with their own membership, we do a disservice to the seriousness of the issues.
À (2200)
The Chair: Thank you, Mr. Martin.
Before I go to Mr. Epp, those of you who are interested in hockey scores, it's the Senators, 3 to 2.
Mr. Epp.
Mr. Ken Epp: It shows perhaps my lack of interest in really important things that I don't even know who's playing hockey today. My apologies.
I would like to take a tack different from the one that Mr. Martin has taken with respect to this particular amendment. Here again what we're talking about is enabling rank-and-file members of the first nations in their reserves, or wherever they find themselves, to have accountability for the money that rightly belongs to them.
Moving an amendment such as this, which requires the band administration to have a meeting so that answers can be given to the people to whom the money belongs, I don't think is an unreasonable step at all. It's a protection for the rank-and-file members. And yes, indeed, it also gives an opportunity to the leadership to say, “We're doing things correctly, and let's get together and let's explain that. If you have any questions, we have nothing to hide. Here are the facts, and we're ready to explain them in easy-to-understand language.”
Not everyone knows how to read accounting statements. I find this even when I have meetings in the various organizations I belong to. When we have our annual general meeting and the treasurer gives the statement, the balance sheet, and the statement of income and expenditures, there are often questions asked by ordinary people who say, “I don't quite understand how this works. Can you explain it to me?” The treasurer or the other financial person responsible for managing the financial affairs gives an explanation, and people are then satisfied.
I think this is an eminently reasonable opportunity for both the band members at large and the band councils to get together and to show accountability, really, to each other. I would like to very, very strongly recommend to the members of the committee that this motion should be supported.
Now, in all deference to my colleague at my right, I do understand what our NDP colleague is saying when he asks if we should be micromanaging and telling them that they must have such a meeting. Well, Mr. Speaker, I would think.... Mr. Speaker--I've elevated you; my apology. Well, maybe you deserve it at this time of the night.
À (2205)
The Chair: I apologize for not paying full attention.
Mr. Ken Epp: Mr. Chairman, I would think that most bands would welcome this opportunity and there would be no problem with it. I really would. I want to believe that. I think that where this again comes in as a protection is for those few bands, the minority, the 6% where accountability is less than totally full and open and transparent. In those instances now there would be an accountability. And do you know what would happen? If there are abuses, they will cease, because now they're going to be made public. I think that's our goal in the end—to avoid these financial abuses.
With that, Mr. Chairman, I would simply urge my colleagues on the committee to support this very, very reasonable amendment. Let's put that into the bill as an addition after subclause 9(3) and let's see what happens. I think this bill has a clause in it that it's going to be revisited after a certain length of time. If it doesn't work, it can then be amended. But I think we need to start taking some really active steps to make sure that the money that rightfully belongs to the rank-and-file members in the first nations is properly accounted for and justified. As I said, in most instances there is no problem, and there will be no problem having such a meeting.
The Chair: Thank you.
Closing remarks, Mr. Vellacott.
Mr. Maurice Vellacott: Thank you, Mr. Chairman.
I wouldn't be at all surprised, Mr. Chairman, if many of these things that have actually come up as amendments from any of the parties here will in fact be part of the code that is drafted by first nations across the country. This will be the formal practice of many, and in fact already is, I'm sure.
I recall—was it today—a couple of my colleagues mentioned—in fact Chief Roberta Jamieson is here—Six Nations down in southern Ontario had some 36 meetings over the course of a year. This was mentioned by the BQ and the NDP member here. I wouldn't be surprised if it in fact gets to the point of the audit, where council maybe has a council meeting and maybe an open council meeting at that. There is discussion of that audit. Audits deserve to be discussed and deserve to be looked over. I'm not so sure what the stretch is to understand that this would be done in many, many first nations across our country.
In fact, I have enough confidence in a number of these proposals that have been put forward, amendments that have been rejected here by members opposite, that in fact they will be. There will be that sense of satisfaction some day down the road. I have no doubt that many creative ideas will be brought together and put into the codes by first nations people. I also have the confidence that—who knows—first nations people will be learners and get input from wherever they can in terms of doing better governance. They may even be looking over some of the Hansard records and say, “Hey, that's the very thing we should be doing. That's the kind of process we should have, and here is one that's already suggested, laid out. Let's do it. Some day when I'm old and grey and sitting in a rocking chair and my grandchildren are around me...”
The Chair: That's when we'll get to clause 52.
Mr. Maurice Vellacott: Clause 52.
I have one grandchild now.
An hon. member: You'll have two at the end of--
Mr. Maurice Vellacott: I have one on the way.
I recall I was actually in this committee when the members here actually had a little presentation to me, a little surprise from the chair and so on, in recognition of my being a grandfather for the first time. Well, there's another one on the way, so you can get ready for that. I hope for many more.
I expect that at some point down the road maybe my first nations nephew and niece, either one or both, will say, “Well done, Uncle Maurice; you did us proud. You put forward some proposals that some first nation, or maybe many first nations across the country, brought up in a formalized way, put in their code, or are practising it, if not in a written format.” I expect that will be the case some day.
Again, this is what in fact is probably practised already, and will in fact be by many first nations across the country. It is the simple practice that within 60 days after this audited financial statement comes forward, they conduct a meeting for having a decent kind of discussion of what can be learned from that financial statement, where they go from there, with the auditor in attendance at the meeting.
Sometimes auditors can shed a little more light. Maybe even the leadership would want that outside person there to respond, to go back and forth in terms of the questions and answers, and to make plain to all how the finances were handled, how the money was expended.
With that, Mr. Chair, whether adopted tonight or whether some day down the road, as a much older man, I'll be in a position to say that the principle of what I suggested here, what was put forward by the Canadian Alliance, people actually took up and they're practising it. That will be a satisfying thing for me, Mr. Chair.
Thank you very much. And let's go for a recorded vote on this one.
À (2210)
The Chair: Thank you, Mr. Vellacott.
My wish for your grandson is that he does not spend his adult life reading the blues from this committee. That would be cause for concern.
Mr. Maurice Vellacott: It's a granddaughter at this point.
The Chair: Granddaughter. It would be as bad.
Do you have a point of order?
Mr. Maurice Vellacott: Yes, I asked for a recorded vote.
The Chair: Mr. Loubier has his hand up.
Is it on a point of order?
[Translation]
Mr. Yvan Loubier: No, no.
That's the continuation of the debate?
The Chair: No, it's the last...
Mr. Yvan Loubier: It's the conclusion. All right, I'm going to wait for the other...
[English]
The Chair: On a recorded vote, amendment CA-25, on page 85.
(Amendment negatived: nays 8; yeas 2)
(Clause 9 agreed to: yeas 6; nays 4)
The Chair: Is there a point of order?
Mr. Ken Epp: Mr. Chairman, I want to try something again.
I learned many years ago that one does one's best work when one is bright and cheery. For me, it's now been just a little more than 16 hours. I therefore move that the meeting now be adjourned.
The Chair: I will put that to a vote.
(Motion negatived)
The Chair: We will continue with Mr. Vellacott, on amendment CA-26.
(On clause 10--Financial breach and recovery plan)
À (2215)
Mr. Maurice Vellacott: The night wears on here. At this point, we are obviously getting into clause 10.
I move that clause 10 be amended by replacing line 10 on page 8 with the following: “In the event of a breach”.
Subclause 10(1) reads:
| In the event of a significant breach of any rule respecting the deficit or debt of a band contained in its financial management and accountability code or, in the absence of such a code, in the regulations, the council shall assess the band's financial position and develop a recovery plan for the financial management of band funds, which shall be presented to the members of the band no later than 45 days after the time the breach became known to the band. |
I'm proposing that the word “significant” be removed, whose meaning is unclear. In order to limit any confusion or the misuse of this term, we propose that it be deleted. A breach is a breach, and any or all remedial measures should be employed as soon as the councillors have been made aware of the circumstances. We talked with auditors from some large corporations in the country, and their advice to us was that it was a strange adjective to have inserted “significant”, because what is signficant? As we say, “significant” is in the eye of the beholder. So it should just read, “In the event of a breach”.
I would like to turn to our witnesses here, and ask what their thinking is on having this word “significant” in there. Why would we have such a word? According to auditors we've talked with, surely it has no meaning on a legal basis, so why would we have the word “significant” when it's a rather loose term?
Mr. Warren Johnson: I think there are two parts to that.
Since the words “significant breach” apply to rules respecting the deficit or debt of a band, set in their financial management and accountability code, the policy issue is not to trigger the relatively extensive remedies in clause 10 in the event that such a breach were insignificant. To use a trivial example, if the band had adopted the position that their deficit should never exceed $1 million, and the audited statement came in with it at $1,000,001, it might not be considered a “significant breach”. That was the policy issue we were trying to address.
In terms of how the legal definition of “significant” would be interpreted, I'll turn that over to Mr. Beynon.
Mr. Andrew Beynon: I agree with Mr. Johnson that the idea is to make it clear that an insignificant breach doesn't trigger what's required under subclause 10(1). I will admit that the term “significant”, as an adjective, is not one of the most precise terms in the world, but it's hard to conceive of something that could be more precise to describe that category.
The proposed amendment would simply make it any breach, no matter how insignificant, trivial, or technical.
Mr. Maurice Vellacott: I guess my question from there would be did you seek actual counsel from individuals involved in terms of their thoughts on this word in the general auditing field, where “significant” doesn't mean anything?
Maybe Sylvie would be the one to comment here. Would you have a comment on that?
We've talked to auditors, and they said that means twiddle, that means nothing. Is this an Indian Affairs term or something?
Sylvie George: It's a term in the common English language, and I would just repeat Andrew's comment.
Mr. Maurice Vellacott: Okay. We sometimes defer to professionals on this, because if it's going to be challenged, then they're certainly the ones who are consulted in a court of law. I certainly wouldn't want you to be in a position of some day looking back and saying, boy, we kind of misjudged in terms of whether that was significant or not.
The other question there on this thing, too, is when breaches occur within your present department, is this a term you use? Is that common parlance from present lingo in the bill and the Indian Act, or someplace in some of your materials already?
À (2220)
Sylvie George: The word “breach”?
Mr. Maurice Vellacott: The word “significant”. Where was it derived from, other than coming from the dictionary? Does it have parallels or something comparable elsewhere?
Mr. Andrew Beynon: I guess I defer to Sylvie on whether or not it's already used in some part of the documentation that Indian Affairs uses. But apart from that, my understanding is that over time, if the accountancy profession, say, were to develop a common understanding of what “significant breach” is in a financial sense, that may influence the courts. In the absence of that, I agree with what Sylvie said. If there's no technical terminology behind that--and I take her point that right now there isn't--then it's a matter of simple dictionary English: what is “significant breach”; and in French, what is “un manquement important”?
I think the courts will use the ordinary language and again suggest that it is just making clear that anything insignificant, trivial, technical, or minor is not what's going to trigger these provisions.
Mr. Warren Johnson: If I could just add to that, I think that would be interpreted in the context, as well, because the remedy is, reading further in subclause 10(1), for the council to “assess the band's financial position”--a relatively non-trivial activity, because it would require expertise in that regard--“and develop a recovery plan...presented to the members of the band no later than 45 days after”. So there's a fairly significant set of activities required in the event of a breach, and it's in that context. In other words, is it significant enough to warrant that kind of a response? I think that would be the interpretation of it.
Mr. Maurice Vellacott: That kind of makes my point again. I think it would be every bit as strong, and maybe stronger, if it just said “In the event of a breach of any rule”.
This is a breach of a rule respecting the deficit or debt of a band. If you have a breach of the dikes in Holland, I'm not so sure that people would be arguing, well, that's an insignificant breach, or that's a significant one. A breach is a breach. If you broke the rule, if it's a breach of a rule respecting deficit or debt, it's important; it's a breach.
I'm not sure how one could rightly argue that when breaching a dike in Holland, or a dam, or whatever, that is all of a sudden significant or insignificant. A breach is a breach.
So I don't know. Our advice that comes out of the auditing world and was intended sincerely here is simply that this is really not the kind of wording that you should be using. Maybe you want to actually go and take a second look at this, if it's turned down today on the strength of your recommendations here. Maybe the minister or the department, in reading the transcripts today, will come back at report stage and remove it themselves, because in terms of professional counsel that we've had, they suggest that this word is without a lot of point in meaning, a breach is a breach, and it should be removed. It's not appropriate language here at this point in the bill.
So I will make that pitch, based on good counsel to us, and appeal to others to hear that, or to the minister as he reads these transcripts, that if it's turned down today, he would actually delete it and show that good sense on his own initiative.
The Chair: Thank you.
Monsieur Loubier.
[Translation]
Mr. Yvan Loubier: I'm coming, Mr. Chairman. I made a round trip to my constituency since we celebrated the 150th anniversary of the oldest French-language weekly newspaper in America. So it was an important event that I couldn't miss, particularly since I was at the governors' table, as it's called.
I'm happy to be back to talk about this important bill. When I look at clause 10, I too have a lot of questions about the terminology used in drafting this clause, which speaks “of a significant breach of any rule respecting the deficit or debt of a band”.
I admit to you that, in 10 years as an opposition critic, and, in the first four years, as official opposition finance critic, I have never see a term like that. I don't know what it means, even after 10 years as a finance critic, where it states: “of a significant breach of any rule respecting the deficit or debt of a band”.
I even spoke about it with Mr. Epp. He and I sat on the Finance Committee for years, and we've never seen a term of this kind in a public finance bill. So I don't know what that term means. Where it states “of a significant breach of any rule respecting the deficit or debt of a band”, does that mean, for example, that, if that same logic were applied to the federal government, an accumulated debt of $535 billion would, I imagine, be a “significant breach of any rule respecting the deficit or debt”? Let's replace “band” with “federal government”; that's roughly what it amounts to. In that case, do we ask the federal government to turn around on a dime and, in 45 days, adopt measures to correct its “significant breach of rules respecting debt”? No.
I think it's completely stupid to have put in this kind of wording, which means nothing, which is even more confusing and which requires of Aboriginal nations something which we are incapable of applying ourselves, if my definition “of a significant breach of the rules respecting debt” applies to the federal government's accumulated debt of $535 billion.
I remember proposing to prime ministerial contender Mr. Martin--not Pat's brother, but Paul Martin, the Liberal, the ship's captain--a balanced budget bill that I had written myself, an anti-deficit bill that, for him, would have meant, if he incurred a deficit, catching up at a rate of perhaps 20 percent or 30 percent a year over the following two, three or four years in order to achieve surpluses so as to eliminate the deficit that he would have created in the first year. I didn't ask him for 45 days; I asked him for three years. And if that had been as a result of a disaster, such as a war or flooding, we were kinder, we talked about five years. If there had been a deficit, a “material breach of any rule respecting the deficit or debt”, under the balanced budget bill, the anti-deficit bill, we gave him up to five years to finance the deficit he would have created in the first year.
Here your clause has two or even three major defects. The first, most important defect is the definition of “significant breach of any rule respecting the deficit”. This is the first time that I've seen this kind of wording. In my mind, it means absolutely nothing.
The second is where a recovery plan is requested in 45 days. I would say that, when I put that anti-deficit bill to Mr. Martin, he simply rejected it because he found it removed his flexibility and that he could not manage that way. We allowed him three years to finance his deficit, if it was a significant breach resulting from the incompetence of the Minister of Finance, for example, and we gave him up to five years in the case of a natural or economic disaster. Even with three to five years to present a recovery plan and finance the deficit, he rejected the bill that we were proposing.
À (2225)
So how can we require the Aboriginal nations to provide a recovery plan in 45 days, based on a very narrow definition of “breach of any rule respecting the deficit or debt”, whereas we ourselves are not even able to apply these wonderful principles that we want to impose on the Aboriginal nations? I always say that, before imposing things on others, we should try them out ourselves. But we don't have this kind of obligation with regard to the management of federal public finances. We haven't tried out an anti-deficit act; we don't require the federal manager to present a recovery plan in 45 days. So why ask, require the Aboriginal nations to submit that plan in 45 days, without any flexibility, and even providing, in clause 10, that that is the only way to solve a band's financial problems. I have a lot of difficulty with that.
The other thing I have difficulty with is, once again, the idea of prescription, the idea of always imposing rules on the Aboriginal nations, whereas it's been so well said that the new way to move into the future with a partnership between the federal government and the Aboriginal nations is through partnership agreements on a basis of equality. So let's not impose anything. Let's talk, let's support the Aboriginal nations, let's give them the means to achieve what they want to achieve and let's mind our own business. We're not going to tell the Americans, the French or the Italians what to do. By what right are we going to tell the Aboriginal nations what to do, when successive judgments by successive courts on the inherent right of self-determination, on Aboriginal treaty rights, have conceded all those rights to them. We don't have to give them anything; they already have those rights.
So by what right do we come up with proposals such as this, which make no sense technically--the drafting is completely ridiculous; I've never seen drafting like this--and do we require a plan, whereas we aren't even capable of looking in our own backyard and accepting recovery plans such as we of the Bloc have proposed?
Moreover, at one point, the Canadian Alliance suggested to the Minister of Finance that it should have public finance recovery plans to prevent repeated deficits and to attack the debt. That's the first major remark I want to make.
Here's the second. I always come back to the Auditor General of Canada and to the Auditor General who preceded her, Mr. Desautels, who came to exactly the same conclusions. When they took a sampling of the First Nations, of the requirements made of them, of the documents they produced, of the balance sheets they filed, they realized, year after year--and the Auditor General's last report is no exception to the others--that, in the vast majority of First Nations, of the communities of the First Nations, there were no management problems, there were no balance sheet or audit problems. There are even communities of the First Nations which offer more than the customer wants, as they say. And we request so many reports from them...
The problem is at the Department of Indian and Northern Affairs Canada. That's where all these documents that are required of the First Nations are received. They don't even look at them; they throw them in the garbage can, whereas the First Nations allocate incredible resources to meeting the requirements of the Department of Indian Affairs, where there is housecleaning to do, where recovery plans should be proposed. I would take 30 days to correct that.
After that, we could define what breaches of the elementary rules of good management of public funds are because, in our consultations, we realized...
À (2230)
The Chair: Mr. Loubier, I allow you to talk about everything but the amendment on the table, but I do not allow you to talk to them as though they were children being punished. So, please, we'll treat the witnesses with respect. Otherwise I'm going to ask them to leave the table.
Mr. Yvan Loubier: Mr. Chairman, I have two brief remarks to make to you. The first is that we members around this table are free. We have freedom of speech and freedom of action. Verbal language and body language are part of political rhetoric, and you shouldn't dictate to me how I should present things, the gestures I should make and the words I should put on the table. So if you want to act like a dictator again...
The Chair: Your time is up.
Mr. Yvan Loubier: ... you are free to do so, but you don't have the right to prohibit me from speaking.
Le président: Out of courtesy, I told you that, if you treated our witnesses like children who are being punished, I was going to ask them to leave the table; it's not complicated. I didn't criticize you; I only told you that, if you did it, in my judgment, I was going to invite them to leave.
[English]
Anyone else?
Mr. Martin.
Mr. Pat Martin: I welcome the opportunity to speak to clause 10 as well, because clauses 9 and 10 both offend me, and certainly many, many witnesses who have made presentations to this committee have made it clear that these clauses offend them as well.
It's pointed out to me that leaving the word “significant” in the draft bill will give the minister even broader discretionary authority and powers than he currently has, because the current threshold of overspending or mismanagement, if you will, is 8%. That's the current guideline. Any time the spending of a band and council goes beyond 8%, or in the red by 8%, that's cause for concern and that's problematic, and measures begin to fall into place to correct that.
But even that 8% is onerous, because many first nations are dealing with the pressing financial crisis of trying to meet the basic needs of their constituents with woefully inadequate resources. There comes a time, sometimes, when because the best interests of their constituents is the first priority, it becomes a matter of robbing Peter to pay Paul, or meeting the urgent basic needs becomes a priority and we'll find a way to pay for it later, or there's a temptation or a tendency to go into deficit spending because the urgency of the needs is so apparent, the basic needs are not being met.
That has led to serious problems already. We believe it compounds the problem, having such loose language in the bill as “significant breach”, that whenever there is a “significant breach”, certain actions must be taken.
I agree with my colleague Mr. Loubier. What is “significant”? I know Mr. Vellacott asked our witnesses what in their mind the term “significant” would mean. But in my mind, it's far too vague and far too open to interpretation and to an arbitrary treatment of this idea. It leaves too much control for the minister to step in, even if a deficit was caused by crisis situations, emergency situations. Some would argue that malnutrition and chronic long-term poverty is a crisis that people perhaps would no longer be willing to tolerate and that the temptation is extreme to make that money stretch.
Housing is an issue that was raised time and time again and the crippling burden that first nations have now in terms of their membership list growing inadvertently by Bill C-31 expanding the membership list but without commensurate transfer of resources to accommodate the new members on that list. You can appreciate the difficulty that leaders find themselves in, of wanting to do what's best for their community, wanting to provide decent housing and living conditions. The temptation is to spend beyond means and try to meet these basic needs.
Situations of a one-time crisis situation that the minister has refused to deem a crisis has caused many first nations to take the step of choosing between third-party management and taking care of their people. It's like playing a game of chicken. How far can you push it before the minister steps in and intervenes? We find within clause 10 the remedies are not only extensive, but draconian, with the minister's newly established and further authority to intervene in a band council's financial position. Even failure to divulge financial statements can be deemed by the minister to be a situation where he considers it necessary that remedial measures be taken.
In other words, the minister can swoop in and intervene and put a whole community, a whole supposedly independent first nation under trusteeship because they wouldn't disclose their financial statements to a complete stranger, if they were not in compliance.
So it's not just the 8% overspending rule that could trigger these draconian measures or ministerial intervention with these measures. You can deal with any number of things, minor details--I view them as minor details.
À (2235)
Even if a band fully discloses all the financial information to their membership, if they fail to disclose it to perfect strangers who have, I argue, no right to that information, they can find themselves under trusteeship, under third-party management and having their band and council disciplined and punished. It's significant to note that a chief who is uncooperative or fails to comply with the measures set out can be personally attacked in terms of having their salaries reduced or diminished. This kind of heavy-handed economic hammer, this sword of Damocles that's hanging over people's heads to brutalize them into cooperating with measures that they may not agree with, I argue is an abuse of power.
There's no other way of putting it. It's thuggery, and it's in keeping with the way this entire bill has been handled from one end to the other.
Leaving the word ”significant” in the bill and talking about a significant breach of any rule--that's the other thing we should point out. “In the event of a significant breach of any rule respecting the deficit or debt of a band contained in its financial management and accountability code...” these measures kick in and take place. Then, “...the council shall assess the band's financial position and develop a recovery plan for the financial management of band funds, which shall be presented to the members of the band no later than 45 days...”
With a breach of any of those rules, the minister could determine that you're failing to comply with the new financial management codes and then, again, the minister has this right to sweep in and intervene, resulting in yet more of this burgeoning mini- industry of third-party management.
It seems that's the most predictable consequence of this whole bill, that more and more first nations are going to find themselves under third-party management. More and more chartered accountants are going to be gouging first nations by charging $20,000, $30,000, and $40,000 per month to administer the simple or relatively modest financial transactions that take place.
I met an aboriginal lawyer recently who has acted as a third-party manager for first nations, and he was billing that community $1,500 a month to take care of all the financial transactions that took place in that community while it was under third-party management. That was his fee, because it's all he could justify. It was maybe a day a week billing time for a lawyer to handle these things, to pay specific firms, and often the same firm.
In the case of Pikangikum, the one first nation in northwestern Ontario that was put under third-party management, it was an individual from Kenora, Ontario, who had never been to Pikangikum, had never set foot in Pikangikum, but I saw his billing statements: he was billing Pikangikum for flights between Hamilton and Toronto and London, Ontario, and Toronto, not even related to the administration of the details of the town of Pikangikum. It's no wonder Pikangikum went to court and had it overturned. The minister had no right to put them under third-party management simply because they refused to cooperate with initiatives such as the First Nations Governance Act.
That is simply an example of the predictable consequences of trying to force people to do something they don't want to do, trying to tinker with the Indian Act in ways that are not prioritized and are of no interest to first nations communities. It's a glaring example.
What concerns me most about this particular clause, clause 10, and the amendment addresses it in part, is the use of the word “significant” in talking about a breach: “a significant breach of any rule” leaves the door wide open for the minister or the minister's representative to swoop in.
This undermines the very idea of a sovereign status of first nations as recognized by treaties. Once again, we're in a situation where the federal government is ignoring what the Supreme Court has to remind them of, the sovereign status of first nations recognized by treaty. It's also, again, an example of chronic micro-management, this desire to micromanage first nations communities on the part of the government, the minister, and DIAND.
In my opinion, the whole bill is indefensible; the entire bill should be scrapped.
À (2240)
Clause 10 is one of the most offensive clauses in the bill. This particular amendment put forward by the Canadian Alliance addresses one aspect--
The Chair: Thank you, Mr. Martin.
Mr. Hubbard.
Mr. Charles Hubbard: Thank you, Mr. Chair.
We certainly welcome a lot of visitors here tonight. Mr. Chair, tonight and today our proceedings have not been telecast, and I would think maybe in the best interests of everyone that hopefully our clerk could arrange by morning, by eight o'clock, that we could have the system back on the air.
À (2245)
The Chair: It would have to be at 3:15 or 3:30 tomorrow afternoon because we lose this room at 4:30 this morning, and we can only come back in this room at 3:30 tomorrow afternoon.
Mr. Charles Hubbard: Would it be possible, Mr. Chair, to make these arrangements?
The Chair: Is it the general consensus that we reinvite the cameras so the country can see what we're doing here? We can't do it right now. I doubt if the staff are here to do it and we have to leave this room at 4:30 this morning.
Mr. Maurice Vellacott: We can't get them in at this point of the night?
The Chair: Do you think it's reasonable that we should ask whoever is responsible to bring people in from their homes? According to the guidelines they have to go from beginning to end, but--
Mr. Maurice Vellacott: So until they hear the gavel, they should be here.
[Applause]
The Chair: Everyone who is applauding should understand that the committee's work is an extension of the work in the House of Commons. Applauding is not accepted. Even taking pictures is not, yet I say please do it without the flash. We're being as flexible as we can be, but I would like you to cooperate with us too. The members are tired and we're doing the best we can.
A voice: You do not understand--
The Chair: If you challenge the chair, I will ask that you be removed. I don't want to do that, but I know the pattern of one individual at least.
Yvan.
[Translation]
Mr. Yvan Loubier: I have a point of order, Mr. Chairman.
You say that photographs are prohibited, but when people from your constituency came...
The Chair: I didn't say that.
Mr. Yvan Loubier: ...to the committee, they took photos with a flash for almost 20 minutes. There were even two children who sat around the table here. So it's a double standard. You have to be fair in life.
The Chair: On the point of order,
[English]
in regard to this point of order, when two young persons were in the room, I asked the committee if they authorized them sitting at the table with us. Permission was granted, and after we adjourned pictures were taken.
A voice: And then you denied our people--
The Chair: I will ask this young lady not to intervene any more because we will ask security to ask her to leave.
Mr. Hubbard, you have the floor on CA-26.
Mr. Charles Hubbard: Mr. Chair, I'm looking at subclause 10(1). The mover of the amendment tried to define “breach”, and I think he did refer briefly to probably an old Dutch story about a breach, what an insignificant breach can do and how it can be corrected. When we're talking about a significant breach, we're talking about something more, but if we don't look after the small breaches, the big ones suddenly become major floods that cause first nations great amounts of difficulty. I think that for most first nations chiefs and councils, there's nothing more humiliating than to have their finances brought under review and under third-party management.
Subclause 10(1) attempts to avoid that, and with it, it speaks in terms of significant breaches and the fact that the council and chief have the need to look at a significant breach and attempt a recovery system to bring that financial system back into proper management. It's not an intervention by the minister, as our honourable members have suggested. That's mentioned later in clause 10.
I would hope, Mr. Chair, that we could look at the bill as it's written and not be speaking all over the entire bill. When we have an amendment, we should address the amendment and attempt to move forward in terms of speaking for or against that amendment.
I would suggest, Mr. Chair, that with this, a significant breach certainly means, as our witnesses have indicated, a major problem that must be addressed as soon as possible in the hopes that none of our first nations would be placed under a type of management that would have to be directed by the minister or by the department. So with that, I would have to say, in terms of our position, that we would not be supporting this amendment.
À (2250)
The Chair: Mr. Vellacott.
Mr. Maurice Vellacott: I guess, Mr. Chair, I made my point fairly plain and clear throughout here that by adding the word “significant”, you have to find out what the word “significant” means. It's one of those terms where to one person something may be significant but to somebody else it may not be significant. Then you get into this little game being played of finding what in fact is meant by “significant”. I don't think we'd want to be in that kind of situation, writing up a dictionary of some kind or a thesaurus or whatever to figure out what in fact this word “significant” means.
I would think, as was rightly pointed out by Mr. Hubbard across the way, it is in fact the council that assesses the band's financial position and develops that plan for the financial recovery. I would think that at any point where there is in fact a significant breach or there's a breach of any kind, a band council with good, responsible leadership would want to have that addressed forthwith and as quickly as possible if it's in respect of deficit or debt. They'd take a look at it very quickly; you wouldn't want that kind of thing getting away on you.
If it's something of a bigger magnitude, maybe there's a better word to be using, actually, and then of course it's going to take a little more serious address by the band leadership. The financial portfolio people will look at it and say, this requires more serious and larger steps to be taken here. If it's something of a lesser magnitude--there's another word that could be used--then it's still something you'd want to address, obviously, but it may not take the same extent of measures that would be required in a large case.
Again, I'm troubled by the word “significant” only insofar as auditors are, and auditors stated this is an inappropriate kind of language. It makes no sense and it's not at all helpful to the bigger thing under consideration here. I would propose that this word be deleted, and then hopefully it won't come back to haunt us in any particular way because somebody has to quibble over what is meant, looking up different dictionary definitions or making them up, if you will, to try to figure out what the word means. I think it's one of those nebulous words, almost nonsensical in the context here, and it does no particular good or no help at all. Therefore, I think it deserves to be removed, and the simple, clean language “In the event of a breach” would be much more in keeping with a bill that's going to be tight and not one constantly open to challenge.
With that, I rest my case and ask for a recorded vote on this.
The Chair: We have a recorded vote on amendment CA-26.
(Amendment negatived: nays 7; yeas 4)
The Chair: We're on amendment CA-27. Mr. Vellacott.
Mr. Maurice Vellacott: I move that clause 10 be amended by replacing line 11 on page 8 with the following:
| of any rule respecting the deficit, debt or accounting practices of a |
Subclause 10(1) reads:
| In the event of a significant breach of any rule respecting the deficit or debt of a band contained in its financial management and accountability code or, in the absence of such a code, in the regulations, the council shall assess the band's financial position and develop a recovery plan for the financial management of band funds, which shall be presented to the members of the band no later than 45 days after the time the breach became known to the council. |
So we are addressing it within about a month and a half at minimum. In proposing to include the expression “accounting practices of”, I would think that band councillors would want to inform their members if there had been a breach of accounting practices, and not just of the rules respecting the deficit or the debt. If their accountant hasn't been up to speed and up to the code, so to speak, within the principles of his own profession, I would think that the sooner that's found out and the membership is informed... It's for the protection of those first nations members. I think members need to be informed of any accounting breach and then of what remedial measures the councillors have adopted to rectify that situation as soon as possible.
So I would hope it is a very acceptable amendment to all members. This provision provides councillors an incentive to ensure that the financial reporting is accurate. They would probably want to let go of some accountant pretty quickly, if in fact he was playing fast and loose with the rules of his own accounting profession and thereby creating trouble for them--maybe to the extent that they are then called onto the carpet by the Department of Indian Affairs. You obviously wouldn't want that to happen by way of some problem with accounting practices. We're suggesting this particular addition to deal with a breach, not only of the rules respecting the deficit or debt but also of any accounting practices. I think this is a sensible proposal.
We've heard a lot about third-party managers. I've heard those stories too, and I know of situations where it does seem--as Mr. Martin has mentioned on more than a few occasions--unconscionable the amounts of fees charged by some third-party managers. I even know of situations where the accounting fees charged by an accounting firm happen, for some strange reason, to be a little bit higher for a band as opposed to doing the same or similar amount of work for a non-first nations individual. In fact, in some instances, the fees are more than a fair bit higher. For whatever reason, which I'm not sure of, they feel they can take advantage of a band that is perhaps isolated.
So we just want to cover that here. If there's a breach of an accounting practice as well, it should be brought to light and those people be exposed right away. It should be something that's dealt with forthwith by the band councillors. They assess the band's financial position; they develop the recovery plan for the financial management of band funds; and they present that to the members, so that the members of that band have the assurance that the breach is being dealt with or taken care of very quickly.
I think this enhances confidence in the band leadership, in the chief and in the council, when they are shown to be individuals who are ready and who quickly note these things, deal with them, and take steps thereafter to ensure that they don't happen again. I'm sure they will be more careful in who they hire thereafter, or if a person is given a second or third chance, to be more careful that they are going to be watched, that there is going to be oversight, and that they take the steps to address it.
So that's the point of the amendment, Mr. Chair. I would hope that other members would engage me on it. I appreciate that members on this side have done so, and that we get an intervention from the government side on occasion as well.
À (2255)
I think it merits debate and discussion. This is a serious bill, and I obviously think it behooves us to engage it and, for the good of first nations, to show responsibility as we deal with these motions.
[Translation]
The Chair: Mr. Loubier,
Mr. Yvan Loubier: I would like to emphasize, Mr. Chairman, that there is an error in the French version. It states “important aux règles relatives...”. I don't believe that Mr. Vellacott wanted the word “important” to be used since he subsequently tried to delete it. That word does not appear in the English version.
[English]
You struck “significant”--
Á (2300)
Mr. Maurice Vellacott: Oh, yes, I struck it.
Mr. Yvan Loubier: But “significant” in French is “important”, and there is a difference between the French and the English versions.
Mr. Maurice Vellacott: Okay, but my amendment doesn't say anything about that.
Mr. Yvan Loubier: I propose scrapping “important” in the French version.
The Chair: I will seek unanimous consent, just so that it doesn't come back in three days to haunt me. It's a minor detail and doesn't affect things, and it's only in the French section.
Is it agreed that we remove the word “important”?
Some hon. members: Agreed.
The Chair: Thank you.
Merci, Monsieur Loubier.
[Translation]
Mr. Yvan Loubier: Mr. Chairman, Mr. Vellacott's amendment obviously has the quality of being precise, but it would be worth the trouble to discuss it. With regard to the accounting audit, good bookkeeping and proper conduct in business management and accounting, all the problems that might arise should be included, not only in terms of the deficit and debt, but also with respect to accounting practices. With Enron and the others, we recently saw how these things could occur. It seems to me we should draw lessons from events of this kind.
I acknowledge the soundness of this amendment. However, the problem regarding the approach advocated in Bill C-7 remains intact. Even though your amendment, Mr. Vellacott, is a good technical amendment, adds accuracy and precision to this subclause and makes the content more consistent with what can be found elsewhere in other statutory instruments, clause 10 contains an incredible formal defect. We denounced it some three weeks ago, as did the representatives of the First Nations, who have been doing it for months now.
I'm very uncomfortable with the fact that we're discussing what the First Nations should do, whereas most of them already apply some of these rules. According to the Auditor General of Canada herself, they already display exemplary conduct.
The First Nations don't need us to discipline themselves and show transparency. They can do their reporting very well without us taking them by the hand. They can also conduct public meetings on their own. Yesterday we had examples of transparent public meetings for which sufficient notice had been provided so that the members of the First Nations could be present in large numbers.
I'm still uncomfortable and I even feel ashamed, in a way, that we have to state in a bill what the First Nations should do, while acknowledging in the same breath that they are sovereign.
The Erasmus-Dussault report... Of course, my Liberal colleagues, whom I see...
Mr. Chairman, would there be any way of getting coffee or tea?
Á (2305)
Le président: We'll continue and we'll see.
Mr. Yvan Loubier: It's not for me, but for your Liberal colleagues, who are all falling asleep. I've already had some, but it would be for your colleagues.
It's this entire approach that is revolting. If, for example, the federal government were going to interfere in the affairs of the Quebec National Assembly or the Legislative Assembly of Ontario, to tell the Prime Minister of Ontario or the Prime Minister of Quebec, Mr. Charest, that they should change their accounting methods and that we should adopt the federal government's accounting methods, that we should impose the federal government's ways of doing things on the legislative assemblies and the Quebec National Assembly, I don't know in detail how you would be welcomed, but, generally speaking, you would be welcomed very poorly.
So if the example, the analogy I've just given is also incongruous, why would it be normal to submit that to the First Nations, as though it were trivial, as though the 130 years of the Indian Act had not taught us that the experiments that have worked in both Canada and the United States, according to a professor from the University of Arizona, are precisely those in which nothing was imposed on the First Nations, but in which they were asked what their social objectives were as First Nations, what their aspirations were as peoples, what future they were preparing for their children?
We supported them in those objectives. We imposed nothing on them; we supported them. We told you, there was a screen, and I think it was quite big. There was a giant screen that we had here, from a professor of the University of Alberta, who explained to us that the best experiments had been those in which nothing had been imposed, but in which assistance had been provided and compensation for harm caused to the First Nations over decades. Those are the experiments that worked, not the experiments in which things were imposed.
Furthermore, for 130 years, a disastrous act was imposed, which removed dignity, which removed prospects, which blocked the future for young Aboriginals. And now we're starting over by treating them once again as children and subjects.
In the Erasmus-Dussault report, there are six years of work, incredible resources, the best resources on the Aboriginal and non-Aboriginal sides. The Commission published an extraordinary report which laid the ground work for what could have been 20 years of building, because that was the horizon that was set, and it was not a horizon remote-controlled by Ottawa, but a horizon that was chosen by the First Nations and supported by the federal government.
But the great technical value of your amendment is the defective wording, the bias in the drafting of this bill which appears in clause 10, but also in the first nine clauses which we have had to consider here over a number of days, a number of hours, with all the range of emotions, from love to hatred, through aggressiveness and congratulations.
That said, we're still faced with the same problem. If I vote against your amendment, Mr. Vellacott, it won't be because of its technical value, but because I've had enough of seeing us tell the Aboriginal nations what to do. I know that we're moving amendments in order to repair the damage of the bill. In reflecting more on your amendment, we may support it in order to prevent ultimate disaster.
[Applause]
[English]
The Chair: Cut the mike.
Monsieur Loubier, I have to come back to our friends who are witnessing these meetings. We cannot accept applause or any disruption. The meeting is for the members. We invite you, we welcome you, and we're happy to have everyone here. You will have to cooperate with us. Otherwise, I have a problem, and I'll have to pull the committee and go next door and ask them to decide if they want me to clean out the room. I don't want to do that. It may be a good publicity stunt, but I don't want to do that. So please cooperate with us.
Monsieur Loubier.
[Translation]
Mr. Yvan Loubier: Where was I, Mr. Vellacott? I'm stunned by the applause. It's obviously good...
Perhaps on further reflection, I'm going to support your amendment because it's ultimately a technical improvement, and perhaps, if the Liberal majority persists in wanting to pass this bill, the wording you propose will at least be clear. It's a think-about-it; I still have a few minutes to think about it.
However, since we've been introducing amendments, it's not to improve what cannot be because this bill is fundamentally not even worth the paper it's printed on. That paper is worth nothing; it's not even a continuation of what our relations with the Aboriginal nations should be. That's not how we had seen the future; that's not how the Erasmus-Dussault Commission pictured this new partnership, a new springboard for the next 100 or perhaps 200 years based on a relationship between equal nations, a relationship of mutual respect, as in the good neighborliness between sovereign nations. That's what's sad in this entire exercise. It's becoming something dry, very difficult since, on the face of it, the bill doesn't even merit our wasting the slightest effort to justify and defend it.
I wonder how my Liberal colleagues can summon all their energy and say it has to pass, that it's a bill that works, that we're going to score points with it, that we're going to move society forward, when the first society concerned, Aboriginal society, a group of Aboriginal nations, does not even agree on the bill.
Stop saying that some do agree, but that some do not agree because they want to retain their leadership in the community. Come on! It's cynical to say things like that. It's arrogant to present matters in that way, saying that, if the Aboriginal leaders of the First Nations are opposed to this bill it's because they want to keep their seats. That's what I heard from the minister. You have to have a twisted mind to say things like that, when we, who aren't Aboriginal, are capable of reading and seeing that the direction taken by Bill C-7 is not the right one, is not consistent with the vision of the future, for the twenty-first century and beyond, of partnership, equality, mutual respect and restored dignity? This bill is worthless. It must be set aside.
Á (2310)
The Chair: Thank you, Mr. Loubier.
[English]
Mr. Epp.
Mr. Ken Epp: Thank you, Mr. Chairman.
I want to challenge all members of the committee, the Liberals as well as the members on this side.
With respect to this specific amendment, at this state we have to assume that if it is defeated, the members opposite will in fact vote in favour of clause 10 when the chairman calls it. Clause 10 reads that, “In the event of a significant breach of any rule respecting the deficit or debt of a band”, which will be followed by redress.
In other words, you're going to vote in favour of a clause that's going to say to aboriginal bands that if there's a breach in your rules respecting the deficit or debts, then you must do these things. But if you vote against this amendment, you are saying, in effect, but we don't care if there are any breaches in accounting practices, which I think is a fairly serious dichotomy in thinking. You're basically saying you can change the accounting practices so that it doesn't show the debt or the deficit, when in fact there is one. Now you're saying that if there is a deficit or a debt, you must take redress. But by not voting in favour of this amendment, you're saying it's now okay to fudge the books, to show that there is no deficit, when in fact there is--or vice versa. I think this is a very serious flaw. Plus, you will be on the record as having said with respect to first nations governance that accounting practices don't mean a twit, because you can do whatever you want.
So this is a very, very commendable amendment. It includes in the significance....
There are a lot of problems with this whole clause, but I'm saying that on the assumption that you're going to vote in favour of it, you should definitely want to have this amendment included if you can justify it.
I really would appreciate hearing a justification from a member of the Liberal Party who is going to vote in favour of clause 10, who I am assuming is also going to vote against this amendment. Correct me if I am wrong, but I would really like to hear your justification in view of what I just said.
That's the end of my intervention.
Thank you.
The Chair: Thank you, Mr. Epp.
Mr. Hubbard.
Mr. Charles Hubbard: Thank you, Mr. Chair.
Very briefly, I have some difficulty in trying to answer questions, which the honourable member just placed, that indicate some of the members are not following the bill as it's being discussed by committee. Perhaps our witnesses could tell us better.
We've just completed clause 9, which outlines the accounting practices and procedures of an audit and how a band would conduct its business. Why would this amendment we're looking at now be brought back, in terms of CA-27? To think that financial accounting practices are outside either deficit, debt or financial management.... I fail to see how whatever the opposition is looking for is somehow outside what the bill already states.
Could either Mr. Beynon or Mr. Johnson please give us some further direction in terms of what this means, putting into the bill an additional two words--“accounting practices”--and how that is outside other deficit, debt, or financial managements?
Á (2315)
Mr. Warren Johnson: I think there are two issues with respect to that. On the one hand, again in the French version, the act does more than that because it also references the accounting practices “prévues dans son code”. The “accounting practices” are in fact not code issues in clause 7; they're referenced in clause 8. The French and the English versions before the committee are inconsistent.
On the substantive point of the addition of the words, I would expect the “accounting practices” as referenced would be taken, under any reasonable interpretation, to be the accounting practices outlined in clause 8, which are the accounting practices of the principles of the Canadian Institute of Chartered Accountants.
Any breach of the provisions of the act requires rectification. The point in clause 10 is that if you're dealing with a significant issue with respect to the deficit and debt, that issue, as a significant and special issue, may require significant and special attention. So it's not that breaches of accounting practices would not be dealt with in the bill; they wouldn't be dealt with in clause 10.
They would be dealt with in clause 9 because the financial statements would be required to be audited. If you were in breach of the accounting practices, the auditor would spot that and fix it in the report or require that it be fixed.
So the definition is in clause 8 and the remedy is in clause 9, and there's an issue with respect to the code in clause 7. In addition to deficit and debt as described in clause 10, the policy issue for the committee is whether the development of a recovery plan is the appropriate remedy for correcting accounting practices in lieu of an audit report. It's not quite clear to me how one would make that link.
Mr. Charles Hubbard: Thank you, Mr. Chair.
The Chair: Mr. Beynon.
Mr. Andrew Beynon: If I could just add, subclause 10(1) is referring only to a rule respecting the deficit or debt of a band that it is in a code. To follow up on this question and a point that was raised, I believe, by Mr. Epp, subclause 10(1) is triggered where there is a significant breach of a rule respecting deficit or debt of a band contained in a code. Then subclause 10(1) imposes obligations on a council in respect of dealing with the issue on a 45-day timeframe. But if there is a different breach of a rule in a financial management and accountability code that doesn't trigger subclause 10(1), one that doesn't involve deficit or debt, then that is still a breach of the financial management code that the community members have approved and that could go to the redress mechanism under clause 11, because clause 11 allows individuals to say, I want to make a complaint in respect of a breach of a code.
I think the critical point to understand here is that subclause 10(1) is only imposing a special rule where there is a problem with respect to deficit or debt, where there is a breach of a rule on a code in respect of deficit or debt. Deficit or debt issues are such that this needs to go through a recovery plan presented to the band members no later than 45 days and quarterly reports to follow. That's what subclauses 10(1) and 10(2) do.
As to other breaches of a financial management code, as I say, it's not that they aren't rectified or that they are irrelevant or that they are ignored; they can go through the redress mechanism, which is in clause 11. And if I may just conclude so that we have all the pieces of the puzzle, subclauses 10(1) and 10(2) are rules in respect of what a council must do when there is a deficit or debt problem in violation of a code. Subclause 10(3) sets out what the minister may do in terms of financial intervention. It's a separate provision. The minister's authority to require remedial financial measures is triggered by paragraphs 10(3)(a), (b), and (c). And those paragraphs link back to other parts, but not to subclauses 10(1) and 10(2).
To conclude on that point, in the event of a significant breach of a rule in a financial management code in respect of deficit or debt, subclauses 10(1) and 10(2) make it clear what the band council has to do in respect of that. Other breaches of a financial management code could go to the redress mechanism if somebody wants to complain under clause 11. The minister's authority in respect of financial intervention is under subclause 10(3) and it's not in respect of the matters that are in subclause 10(1). They are different and separate provisions.
Á (2320)
The Chair: Thank you, Mr. Hubbard.
I have been informed by our legislative clerk that the word “important” is appropriate and should be in there.
Did you wish to question it? I invite you to question it so we can ask her to explain it.
[Translation]
Mr. Yvan Loubier: You say that the word “important” must be kept in French.
The Chair: That's what I'm told.
Mr. Yvan Loubier: Well, no. Look at the English version...
[English]
The Chair: If you need an explanation, I will ask the legislative clerk to explain it to us.
Please.
[Translation]
Mr. Yvan Loubier: I would like to know why.
[English]
Ms. Joann Garbig (Legislative Clerk): Thank you, Mr. Chairman.
Amendment CA-27 deals with accounting practices. This is a different change from that proposed in amendment CA-26, which was specifically to remove the word “significant”, “important”.
In amendment CA-27, which begins in line 11 of the English and line 10 of the French text, this line begins with the word “important” in French, and because it is not what is being changed by the amendment the line appears—
[Translation]
Mr. Yvan Loubier: All right, I understand. You're right. We trust you more than the Chairman.
[English]
Ms. Joann Garbig: Thank you, Mr. Chairman.
Mr. Ken Epp: That's because we tried to delete “significant”, but that attempt was defeated.
The Chair: We understand each other that we reinsert in the French version “important”. All agreed?
Some hon. members: Agreed.
The Chair: Thank you.
Closing remarks, Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair.
Up to a point I am in agreement with Mr. Loubier in his review of this particular amendment. But I would also like to point out that including the term “accounting practices” in clause 10, added to breaches in deficit or debt or accounting practices, further accentuates or augments the discretionary powers of the minister and officials and their financial control and financial powers. It gives another area within which, if there is a breach, intervention is allowed.
Now, accounting practices, as we've heard, are already standardized, spoken of, and addressed elsewhere in the bill. They use the GAAP practices, the generally accepted accounting practices, which is the norm for governments, etc. We think they could go further in terms of reference to what the auditor may and may not do, but that's not the point.
The point is that this further expands and enhances the intervention of the minister in that it's taking things out of policy, out of even current regulation or practice, and putting them into legislation, where it falls under a whole different regime, once it's institutionalized or formalized under the legislative process.
Now, we can have this debate and go back and forth as to whether or not it should be here, but Mr. Loubier's point, which I refer to, is that it seems so fundamentally wrong that we are having this exchange back and forth, this debate, when the very people who are experts in the field are sitting in the room and relegated to the status of observers.
I would very much like to, if I could and if I thought it had any chance, put forward a motion that we would expand the membership of this committee to include representatives from the audience that we have here today and have a dialogue and an exchange with them. It just strikes me as an unbelievable waste of resources when we have here authorities knowledgeable on these issues, like the grand chief of the southern chiefs organization in Manitoba. We also have Six Nations Chief Roberta Jamieson, who was a leading member of the group that wrote the Penner-Jamieson report of 1983, a comprehensive, detailed analysis of many of these issues regarding amendments to the Indian Act. We have this wealth, this resource, in the room here with us, but the structure is such that we can't even consult with them or get input or direction from them.
It just strikes me that this whole exhaustive, expensive, tedious, and acrimonious process is going to lead us absolutely nowhere, except to further damage the relationship between first nations and the government, when the alternative would be a bilateral dialogue where the two parties come together in order to achieve some standardization of administrative policies to do with accounting and bookkeeping. That would be the logical approach.
I should point out that this has been going on for years. Anybody who is involved with the Assembly of First Nations would be able to tell us that meetings and round tables have been going on for years, leading towards and getting very close to accepted practices on these very concerns.
Now a lot of energy and time has been spent developing these administrative codes, if you will, across the country, but all of a sudden that process has been terminated and the government has decided to unilaterally and arbitrarily go ahead with a legislative approach that will dictate the terms and conditions of how these financial statements or whatever are accounted for and kept, up to and including the most minute, micromanaged detail.
How does that benefit anybody? Frankly, why does government want that level of interference? How is it of benefit to the government to even be burdened with those administrative details, when the whole goal should be to build the administrative capacity and enable first nations communities to manage those affairs at their own will and in their own way?
Á (2325)
It strikes me as the height of arrogance for us to be sitting around this table debating the future of people who are actually in the room. It's even more uncomfortable that they're actually sitting here watching this process without opportunity for input.
It just galls me, and I think Mr. Loubier shares my concern that we have no right. I don't want to be a part of this, but I have no choice but to be a part of this process, because frankly, without our being here to intervene and to try to at least mitigate some of the impact of this legislation, it would go through unchallenged completely.
Earlier I was making the point about a conflict of interest that is so apparent. It's so fundamentally wrong for the minister or even the minister's delegates to be having, essentially, control over this process with the conflict of interest that exists: the minister has a fiduciary responsibility to act in the best interests of the people over which he has this supreme authority and power. Yet he seems to be serving another master. He seems to be serving the Government of Canada and not the best interests of the people who he is duty-bound to uphold the terms and conditions of their lives over which he has control.
I quote again Grand Chief Carol McBride when she gave testimony:
| The royal commission concluded that the Department of Indian Affairs should have no role in reforming Indian policy, because the department was too tainted by conflict of interest and because its whole culture was based on control and manipulation of the first nations. |
Clearly this woman speaks the truth and is drawing attention to a glaring omission on the part of the government--that they've abandoned the bilateral process of nation-to-nation development of these issues and have chosen instead the unilateral imposition of these very issues on their subjects. It extends and expands colonialism, and just for the record, and I think Mr. Loubier agrees with me, it gives us a sick feeling in our stomach to even be playing a role, to participate in that type of activity.
But if there is any role we can play, it's to point out that some input coming to us through the presentations we heard, we are quoting from and paying attention to, including an observation that was suggested to me that including accounting practices in the bill as proposed will increase the minister's and the officials' discretionary financial powers. Given the current minister's misuse of powers, specifically the allocation of Indian moneys by Parliament to meet the legal and fiduciary and moral obligations, any first nation surpluses and their uses can be determined by DIAND. This is an observation that's been brought to my attention.
Therefore, the minister's powers are increased instead of diminished, which is contrary to what this whole exercise was supposed to be about. The commitment made is that we would take steps that would lead toward self-governance, which in my mind means diminishing the interfering role of government and acknowledging and giving meaning to and recognizing the inherent rights of self-government of first nations.
There's a contradiction right off the bat when clauses in this bill actually expand the discretionary authority of the minister to intervene even further into the lives of first nations people and into even more minute detail as to how they have to conduct themselves--dictating the number of meetings and where the meetings were held and every single aspect of how the minutes will be kept. It even cites how the minutes will be kept. This is micromanagement to a ridiculous degree. These are things that are usually found in internal bylaws of organizations that are developed among themselves, not imposed from on high.
This intervention maintains, in addition, that there doesn't appear to be a definition for accounting practices. I agree with that concern. Whose standards are supposed to apply here? It isn't really the accounting practices that should constitute an offence. It's the results of bad accounting practices.
Á (2330)
If the accounting practices have led to a mismanagement of funds or a misappropriation of funds, etc., then I think there are grounds or—
The Chair: Mr. Martin, thank you.
Mr. Vellacott, closing remarks.
Mr. Maurice Vellacott: Thank you, Mr. Chairman.
Again, getting us real focused on the amendment at hand here, this might be the most succinct way to state it: this particular amendment is about holding the accountants accountable. It's about holding accountable the accountants. I think it's rather interesting that in a question across the way from Mr. Hubbard, he said, why would we need to do that when in fact there are all these standardized things that apply in respect to this particular profession, or the various sorts of professions, which all have their standards, their bodies?
I think the one answer to that, or the one response to that, quickly, is in a word and it's spelled E-n-r-o-n. There is such a thing as creative accounting practices. There are different ways to keep the books, if you will. Some of these ways can obviously get you into a big pile of trouble and create some real difficulties for your clients. So I think in fact if you have individuals who are rather creative, which would be the most polite way to put it, in terms of their accounting practices, such that they get their client, the first nation, into a debt or deficit situation, then we would want to be concerned about that.
If we would want to say we can have things looked at, and the council needs to assess it if there's a breach regarding a deficit or a debt, and in fact maybe it's the accounting that's heading them in that direction or down that road, I would think they would want the liberty and in fact the encouragement to move on that as quickly as possible. Why in fact we just don't deal with it when there's a “significant breach of any rule respecting the deficit or debt”, when in fact in some cases it's an accountant who is too creative by half and he's beginning to move them into a position, maybe unbeknownst to them, where they're accumulating deficit over time and racking up a significant amount of debt because of the way some accountant has kept their books and made this major problem for them....
So this is about holding accountable the accountants. In a word, it's about Enron. It's about keeping those people accountable, and this is the explanation for it. For whatever reasons people may, just with a shake of the head, say you have GAAP, or you have this, or you have that, when in fact we know, as was admitted by our witnesses today, there a couple of ways to present statements, there are a couple of ways to come at this, and even in what's acceptable within the profession, and indeed obviously that was why we had the major fiasco with Enron in the United States....
So I would think that creative accounting practices are certainly not something unknown to the majority of the people in this room. All we're attempting to do here is get at what in fact might be the underlying root cause of why one gets into a deficit or a debt situation where somebody has played a little fast and loose in terms of the accounting, they have not done the accounting in an appropriate manner, and as a result we have a situation where the client is running into a deficit situation, running into a debt. I would think they'd want to be in a position to actually go ahead and address that, the quicker the better.
So what we're asking for in this particular amendment is that as a result of it, for any rule respecting the deficit, debt, or the accounting practices, the band councillor would then be in a position to inform the members if there's been a breach of accounting practices, not just rules respecting the deficit or the debt. I would think that members want to be, and should be, informed of any accounting breach immediately, or as soon as possible, and about what remedial measures the councillors would then want to adopt. The members would want to know of that in order to rectify that situation as quickly as can be, as soon as possible.
So this particular provision that's in this amendment provides the councillors an incentive to ensure that financial reporting is accurate. If they have to get rid of somebody quicker than later because he's--he or she for that matter--created a problem situation and headed them down the road of deficit and debt, then I think they want to be encouraged to deal with it as immediately as possible.
Á (2335)
I would leave that as a comment on a crucial and helpful amendment here. I think we could go to a recorded vote in respect of that, Mr. Chairman.
The Chair: A recorded vote on CA-27, page 87.
(Amendment negatived: nays 6; yeas 4)
The Chair: The next amendment is NDP-24.
You will note that there is an error in the English version, on the second line where it says 13--Mr. Martin, you should pay attention. In your amendment it should be 18. That doesn't affect the amendments. We'll just make the change.
The Chair: Mr. Martin.
Á (2340)
Mr. Pat Martin: Thank you, Mr. Chair.
I'd like to move the amendment. I think that was simply a clerical error. The amendment we put forward in clause 10 seeks to amend the bill by replacing lines 18 to 20, on page 8, with the following:
| presented to the members of the band at a date as early as the council establishes feasible. |
What we're seeking to do with this amendment is to take away what we seek as an onerous time limit or time guideline put on a first nation that runs into a significant breach of any rule respecting deficit or debt. In the event that such a breach does take place, and remedial measures are in order, actually even to put a recovery plan into motion, we believe that by having this rigid 45-day timeline is an unreasonable thing to ask.
I should point out that timelines in any legislation are usually for guidance only. They are not meant to be rigid, after which certain actions trigger and take place, because it's an arbitrary length of time. Who is to say that 46 days isn't the right timeframe, and who is to say that 44 days isn't the right timeframe?
In our opinion, the right timeframe is that length of time that a band council establishes to be realistic and feasible, because you have to take into consideration other concerns. There needs to be an assessment on what will work financially for the first nation, as well as maintain a quality standard of life. It would be counterproductive to insist on a--
The Chair: I apologize for interrupting you. I sense that I'm being tested. We will continue with the meeting. I ask you to cooperate in consideration of all the members on all sides, who are tired. This place is not orderly. It does not reflect the House of Commons. I think it deserves the respect that the House of Commons deserves.
I urge you to help us out with this and try to keep some decorum.
Mr. Martin.
Mr. Pat Martin: Yes.
The Chair: I have a point of order.
[Translation]
Mr. Yvan Loubier: Mr. Chairman, I have a point of order.
[English]
The Chair: Mr. Martin.
[Translation]
Mr. Yvan Loubier: I would like to know what you're referring to when you say that kind of thing; everyone is sitting in silence and no one is applauding.
[English]
The Chair: Mr. Martin.
A microphone for Mr. Martin, please.
Mr. Pat Martin: Thank you, Mr. Chair. I'll continue with my recommendation. It's the 24th amendment that we've moved on this bill and we're only on clause 10, Mr. Chair.
What strikes me, or what I find most glaring, I think, is the willingness on the part of the government in clause 10 to implement what is already policy and what are already aspects of virtually every contribution agreement when any transfer of moneys takes place to a community, for which there are very rigid and specific outlines and guidelines. One of the observers in the room brought it to my attention when we were debating the same clause, through the previous speaker, that so much of this, if these rules are deemed to be necessary--and of course some accountability and responsibility is necessary--already exists in practice, and in policy, and as binding aspects of the contribution agreements.
But for some reason it's the government's wish, or the minister's wish, to transfer all that policy into legislation, so that we now find it outlined in legislation and subject to very rigid disciplinary measures for failure to comply. Really it's so damaging to the relationship and so unnecessary in terms of what it actually achieves.
Again, I'm fond of referring to the actual presentations that have been made to this committee because I think they are underappreciated and undervalued, and a great deal of thought and consideration went into the presentations that were made. One of the witnesses, Eric Tootoosis, expressed the importance of developing an ethic and values that deal with conflict of interest and other financial administration details, rather than taking a legislative approach.
He pointed to this very issue that I'm raising and he said:
| We are responsible for conducting ourselves individually and collectively in a manner that promotes and enhances harmony and balance among all original beings; as a means of ensuring the coexistence of balance and harmony among original beings, as the Creator intended. |
It is understood and enjoyed by the people of the Big Island Lake Cree Nation in that case.
He also went on to say, by way of explaining what's wrong with this shift from policy and from values to legislation:
| We have organized our intentions and beliefs in the form of the principles and codes that will guide our people both in the present and in the future. All of this is based on the natural laws provided by the Creator.These values and spiritual beliefs will guide our relations with Canada and at all times will be incorporated into our policies, programs, and fiscal arrangements with Canada. We have given you copies of nine laws we have in place.... |
And I have them here, the nine laws: their Convention Act, their Financial Management Act, their Citizenship Act, their Economic Development Act, their Education Act, their Elections Act, etc.
He said:
| We have given you copies of nine laws we have in place, as well as several other codes regarding community-based accountability, conflict of interest guidelines, transparency, and ethical conduct. |
He asks, why should we replace our values with your laws? I think that rings true as a question we should be asking ourselves here. To what end and to whose benefit are we taking, in many cases, spiritual values that constitute the governance codes that exist in many first nations, we are told, and putting them into legislation, into the rigid, narrow parameters of unilaterally imposed legislation? It's not legislation that was co-developed in a bilateral approach with first nations but unilaterally imposed.
We also have to understand, Mr. Chair, when we're dealing with this issue that many first nations have worked for years to put these codes in place and now would have to go through all this again, and the referenda again, and the expense of debating again to implement these kinds of codes.
I should explain to you the process that's been brought to our attention, the exhaustive process that is undertaken by many first nations when they do develop these issues, and I use that as an example, or as a model, that I would recommend. I want to point out as well the difficulty in having to change course now and ratify a new set of codes and bylaws.
Á (2345)
Here's how these particular laws were put into effect in this community. He says:
| Throughout the development and review of the ratification stages of our law-making we have followed our traditional customs at all stages of decision-making. |
He said:
| We started this process in 1985 and we determined that in order to ensure full understanding and participation by all of our citizens, the proposed laws would be presented in English and in the Cree languages, and that audio tapes in Cree would be distributed throughout the community. |
| The community-oriented process is based on reaching consensus within the community before the laws are implemented. A simple majority of 51% is not good enough. Full consensus must be achieved before we move forward. These same principles have been applied to the creation of the codes, regulations, and procedures that are necessary to the successful implementation of our laws. |
That exhaustive and comprehensive process is an example of what's going on today among first nations who wish to implement governance codes pertaining to wildlife management, or education, or elections, or the Personnel Management Act. What we're going to impose now is a whole new set of rigid guidelines and force them to either disregard what they're doing now or go through this exhaustive, comprehensive process again at great cost. The cost is something we should be cognizant of as responsible members of Parliament.
The estimated cost according to the cabinet's own internal documents is $550 million. That, as I've said before, is a lowball estimate, because we believe as soon as they run into any opposition, and that price could spiral out of control. That $550 million is taken right out of the A-base budget of DIAND, the budget that is supposed to go to the delivery of services and products to first nations, whether it's housing, or education, or health care, or clean water systems. It's going to even further starve those very necessary objectives, and it's going to disrupt any semblance of a relationship that we might have in first nations communities, and for what? I ask you, to what end and to what benefit? So that the minister can have even more unilateral authority to interfere with first nations?
I should quote again from other presenters who have presented before this committee, such as the Cariboo Tribal Council of British Columbia. They said:
| So why the rush? Why does this have to be pushed through Parliament so quickly without our people at a grassroots level knowing what's happening? |
Because, frankly, even though the informed people in this room who are observing today are fully aware of what's going on, I think if you stop people on the street out there in Indian country and ask them, “So what's this First Nations Governance Act all about”, they'd have to shrug their shoulders; they wouldn't know.
Á (2350)
The Chair: Thank you, Mr. Martin.
Monsieur Loubier.
[Translation]
Mr. Yvan Loubier: Mr. Chairman, what a great amendment! My friend Pat Martin has again shown ingenuity and generosity in drafting such an incisive amendment. The amendment he is introducing is somewhat consistent with the criticism we made when discussing an alliance amendment to the effect that the bill states that, if there is a breach, a deficit or debt, if there is a significant breach, a recovery plan must be produced in 45 days.
I criticized the 45-day figure, saying that, when Mr. Martin, the aspiring Prime Minister of Canada, was Minister of Finance, we had proposed an anti-deficit act, a balanced budget act, with horizons with three to five years for correcting the situation, that he had refused because he found it too restrictive. It might have been too restrictive, but here we're imposing a 45-day deadline for producing a recovery plan for significant breaches of the rules regarding debt and deficit. It's utterly unrealistic. Depending on the type of breach, the type of problem, it may be that more complex measures should be considered and that it will take us more time and more resources to do so.
Mr. Martin's amendment states:
| presented to the members of the band at a date as early as the council establishes feasible. |
That not only respects the First Nations' ways of doing things, but also provides a deadline that the band councils could find reasonable, not a 45-day deadline imposed by the federal government. That's completely restrictive. I don't know where they came up with that 45-day limit, but I believe Mr. Martin's amendment is highly laudable in that it allows all the necessary flexibility to solve problems that could be observed by the band councils.
On the amendment's technical value, once again--and this is what we've been saying since the start of the analysis of the bill, the technical amendments--this amendment is undoubtedly a very good amendment. But we still get the impression--I don't know whether my colleague Mr. Martin shares this view; probably Mr. Epp will--but we are, in a way, goalies in a hockey game; the opponent has all the forwards and wingers, and we only have goalies. We're trying to block the shots and, with technical amendments like this one, we're trying to ensure the opponent can't really score. Without technical amendments, we're trying to ensure that, if the Liberals persist in selling this unsaleable, universally unacceptable bill, we can at least attenuate lamentable failures, situations which could be irreparable, situations in which the First Nations could be confronted which would be tragic situations in some instances, because some people wouldn't have seen beyond the end of their nose in imposing things that we don't even impose on ourselves because they are unrealistic. You don't ask a manager to submit to a kind of deadlines that is set in order to correct a financial or other situation. Even the Bankruptcy Act is more flexible than that and provides a longer deadline.
When a recovery plan is filed for a company, for example, the courts can give us up to eight, 10 months, a year--that's already happened in the case of large companies--whereas here we have a 45-day deadline. I believe the most realistic part of this clause 10 could be the part Mr. Martin wants to introduce.
Á (2355)
Once again, these are goalie amendments which seek to ward off the blows of the situation that could become devastating for the First Nations. The problem remains substantially intact.
Mr. Martin mentioned it earlier; it shouldn't even be the Department of Indian Affairs, it shouldn't even be the government that paves the way, builds the future according to the Erasmus-Dussault report, but that should be the responsibility of an independent commission reporting directly to Parliament, not to the government. The government is both judge and party. The Department of Indian Affairs has been criticized a number of times in recent years by the Auditor General, by her predecessor and by others as well, who denounced it, including opposition parties. At one point, even the government examined the Department of Indian Affairs, saying that it made no sense for the department to direct what should be the introduction of new relations between the federal government and the Aboriginal nations. It shouldn't be so much like that that it's reflected in the bill. It's a shabby bill, an unacceptable bill that is entirely inconsistent with the 1997 recommendations of the Royal Commission on Aboriginal Peoples.
I still come back to the conclusion of the Erasmus-Dussault report because I find it admirable. They were paving the way for changes over the next 20 years. In speaking of the change that must occur in relations between the federal government and the First Nations, the Commission stated:
| The direction change must take is toward freeing Aboriginal people from domination by an independence on the institutions and resources of governments [...] It would be quite unacceptable for First Nations, Inuit and Metis peoples to continue to find their autonomy restricted and constrained in the twenty-first century. |
We're doing precisely the opposite of what was proposed in the Erasmus-Dussault report. We're further limiting the autonomy of the First Nations. The report also stated:
| ...renewal of the relationship must be done with justice and generosity. |
Where is the justice and where's the generosity in this bill, in which things are imposed which the First Nations don't want?
It also stated:
| History and human decency demand restoration of fair measures of land, resources and power to Aboriginal peoples. |
Where does it talk about fair measures of land, resources and power given to the Aboriginal nations in this bill, which is as subjugating as the Indian Act of 130 years ago? That's not what the Erasmus-Dussault Commission told us to do. The Erasmus-Dussault Commission told us to do the complete opposite of what we're doing today. I understand why the First Nations are angry. I would be angry at 10 percent of that.
So I hope my Liberal colleagues will wake up because they're already starting to go to sleep a little more as time goes on. Earlier I asked the Chairman if we could be served coffee; that would do them some good. I hope we're going to wake up and review the main conclusions of the Royal Commission on Aboriginal peoples. And it's on that basis which achieved consensus... Everybody was in agreement in 1997. We all agreed. Everyone had worked hand in hand to prepare this observation over six years of work, resources, energy and hope put into the work of that royal commission.
Today it's quite surprising because Commissioner Dussault said that the Aboriginals had appeared before the Commission to ask one question: “Can you promise us that your recommendations won't be put on a shelf?” Today they have their answer. They have taken the Royal Commission's report, which was admirable in its content, form and projection into the future, and they have put it on a shelf and are presenting us instead with an agreement as shabby as Bill C-7. I'm disappointed and ashamed.
I say I'm speaking from my heart against this bill because I feel directly concerned. My peers want to impose their own laws, their ways of doing things, their customs and their culture on other peoples. They're trying to impose things, as was done 130 years ago. This bill and this approach are unworthy of the twenty-first century. I believe that, when you agree to the articles of this bill one by one, you should all be ashamed around this table.
[English]
The Chair: Thank you, Mr. Loubier.
Mr. Vellacott.
Mr. Maurice Vellacott: Thank you, Mr. Chair.
In respect to this particular one, I think it commendable that the members who spoke this far are talking in terms of the council's judgment in coming forward as early as they establish feasible, and I want to establish a subamendment here to say as long as it's within six months.
I'm going to throw that out as a possibility, see if it's acceptable, and get some support here this evening.
The Chair: Would you write it down, please, and submit it?
Mr. Maurice Vellacott: It would say “as the council establishes feasible, as long as it's within six months”. I think that's pretty straightforward--as long as it is within six months.
The Chair: Mr. Vellacott, on the subamendment.
Mr. Maurice Vellacott: Thank you.
I think it's probably not a bad idea to have a little bit of a timeframe here. This certainly gives adequate or more than adequate time, it would seem to me, and surely within that period of time the members of the band and the council would judge that there's time to move on this thing.
I don't want to speak at great length. I just want to propose that as a subamendment and see if it's acceptable to members around the table. I'll let it pass on to others who wish to speak on it, but I always think it's an appropriate thing to have something about parameters or bracketing, if you will. I think it still allows the discretion, the judgment, of members of the band in terms of their making a decision in respect of its feasibility. But I don't know if anyone would say that outside of a six-month period of time there'd be still merit to proceeding.
So we're just going to test that, I guess, by way of the speeches, comments, and discussion at this point.
The Chair: Is there anyone else?
Mr. Martin, on the subamendment.
Mr. Pat Martin: The subamendment is not interesting to me. I don't anticipate it will get a great deal of support. You're either in favour of imposing these limitations and timeframes on first nations communities that are trying to recover from what could be a financial crisis, or you're in favour of allowing them to design and craft their own recovery plan within a timeframe that is realistic and feasible.
The language we chose quite carefully is that in the event a financial crisis--which may in fact be a crisis generated by severe underfunding, which we see in first nations communities--takes place and it's deemed, I suppose by the powers that be, that a significant breach of the rules regarding deficit has taken place within a band--that's the language in clause 10--we would argue that a recovery plan should be crafted by the council and be presented to the members of the band as early as the council establishes to be feasible.
We believe that shows respect--deference to the urgency, I suppose--for the council's interests and wishes to correct any abnormalities, inequities, or imbalances in the budget and financing system, but within a period of time with a recovery plan that depends on the goodwill and cooperation of INAC bureaucrats. That's really what it boils down to--there has to be goodwill and cooperation from the bureaucrats, because that's who they're going to be designing these codes or recovery plan with, essentially. A financial management plan would depend heavily on that kind of cooperation.
Imposing any timeframes, whether it's 45 days, three months, six months, or two years, is simply none of our business. It's not our job to do that. We don't have the legitimacy or the right to do that. Changing the amount of time contemplated doesn't change the basic fact that this is an intrusion into the inherent rights of a community to design and govern themselves as it pertains to financial management.
I think that's a theme, Mr. Chairman, we have to keep reiterating and repeating until it starts to resonate with people in general. We get so caught up with the onerous task of ploughing through this bill that we're forgetting the bigger picture.
I'm going to quote again from one of the presentations we heard, Chief Rod King, who gave evidence to this committee when he said:
| In my band we have all the regulations we need to run a good form of government. We have conflict of interest guidelines, we have codes of ethics, we have a band manual that we have developed over the last five or ten years, we have an education act, we have a financial administration act--we have all those acts that the Government of Canada sometimes doesn't use itself, but we do. We live in a very glass house that is viewed by a lot of non-Indians with a lot of contempt, I think, and I have to say that we have to be squeaky clean in order to live in this world. |
That's the frustration expressed by one of the chiefs who was wondering why this committee is seized with the issue of trying to interfere with their governance and their community when they feel quite strongly they have worked very hard to put into place the measures they need to have sound and accountable governance practices.
Chief Roderick Alexis told the committee about all the efforts of the Alexis First Nation to put these codes in place. Bill C-7 and these amendments would wipe out those efforts because they would have to start all over again with referenda and education campaigns and all the rest. The consultation that takes place in building consensus in a community is far greater than a simple majority vote or a show of hands.
Chief Alexis, in the evidence he gave to our committee, said:
| In my early term of office, upon urging the community members, we, the chief and council, set out to implement many of the documents required in the proposed legislation. Specifically, we passed customary election regulations that appended conflict of interest rules, council responsibilities, and the terms of a senate of elders. We also passed financial and personnel management regulations. Unfortunately, with a shift in the leadership, implementation of policies and regulations passed by the ongoing chief and council became an issue. Clearly, there are areas of governing our communities that need careful scrutiny, but it is also important that any remedial strategy be in step with the aspirations and the visions of our community. |
Surely, we would not want to wipe all this out by legislating it, which harkens back to the points made by Eric Tootoosis when he asked why they should replace their values with laws. The prescriptive nature of some of these laws is in direct contrast to the commitment made by the minister when he even introduced this bill, that it would not be prescriptive in nature, that it would be for guidance purposes; it would be general and would speak to the broad generalities of the concerns expressed.
I have to ask again, what happened to all the progress made at the round tables between INAC and the AFN in dealing with some of these issues? We know these round tables were almost to the point of conclusion, that an exhaustive amount of work had been done and a fair amount of consensus had been reached. In the minister's own words in pitching this proposal to cabinet, he cites the fact that for many of the issues dealt with in the bill there has already been fairly broad consensus achieved in the correct manner, I would argue, which was a bilateral approach, a round table approach, where these standardized codes can be developed and adopted in a process that people can relate to. But somehow, the patience ran out for that process. Instead, this legislative approach seems to have gained primacy, and that's where we find ourselves today.
In dealing with accountability and transparency issues, I'd like to point out that there's more than one issue of accountability when it comes to the Crown/Indian accountability framework, if we can call it that. The Indigenous Bar Association pointed out that there are three levels of accountability they deal with on a regular basis, and one is the administrative accountability of the department for the decisions it makes affecting bands and band councils.
I think that would be a priority for a lot of people. Had we broached the subject of accountability to first nations and said, “What would you like to see improved about accountability?”, I think I can almost predict that their response would have been that they'd like to see improvements in the administrative accountability of the department and the accountability of the Crown with respect to the fiduciary relationship with indigenous people.
That's another accountability aspect that's not being dealt with in this bill.
Third, and in the lowest order, the Indigenous Bar Association then lists the accountability of band councils to their membership, including political accountability, financial accountability, and the accountability for administrative decisions that affect the rights of individual band members. That's a third and legitimate level of accountability that needs to be addressed, but the order of priority is much different from the order of priority that the minister seems to have chosen when he had the departmental officials craft this particular bill. In fact, you would hope, with the fiduciary obligation, that the minister would be the champion of first nations people and not the adversary of first nations people. That would be a refreshing change.
I think we're going to see a change in ministers. I predict that very safely, I think. It's almost a fait accompli. It's almost a guarantee that as the Prime Minister changes, so will the Minister of Indian Affairs and Northern Development. Why would anybody on the Liberal side want to saddle a new Prime Minister and a new Minister of Indian Affairs and Northern Development with a mess like Bill C-7 and all its associated grief? The new Prime Minister and the new Minister of Indian Affairs and Northern Development are going to be given an unfair start to their new office because they are going to be handed relations that have never been so poor and so low between first nations and the Government of Canada.
The Chair: Thank you, Mr. Martin.
Mr. Epp.
Mr. Ken Epp: Thank you, Mr. Chairman.
I would like to reiterate--
Mr. Yvan Loubier: You are finished; your political career is finished because of your support of Bill C-7.
The Chair: Mr. Epp, you still have the floor.
Mr. Yvan Loubier: You will see that in the next election. I will be the Indian minister.
The Chair: Mr. Loubier, Mr. Epp was polite enough to listen to you and Mr. Martin. You should listen to him.
Mr. Yvan Loubier: Your career will be finished too.
Mr. Ken Epp: I would like to point out to the members of the committee once again that laws are generally not built for those who comply with common sense and who deliver that which they're expected to deliver. For example, you don't need a law for murder for me, because I have no intention ever of killing someone. In fact, the fear I have is that I may at some time be in a car accident where a person will be killed. I have chosen, as a result of that, to never drink any alcohol, so I can never drive while I've been drinking. I make those choices. The law, though, is there. The law is there to restrain those who don't do things like that of their own accord.
When I speak in favour of the subamendment, and also the amendment of my NDP colleague here, I must emphasize and reiterate that we are not doing this for the 94% who carry on their duties in a responsible fiduciary way. Those are the band councils that we look to as an example for the other minority to follow. But this bill...again, I think it ought to be scrapped. But given that the Liberals today are all voting on command, I think we can expect the amendments we're putting forward to all be summarily defeated. That will be done because the Liberals have their little check sheet on these amendments and they are to vote against all of the ones that say NDP or Bloc or Canadian Alliance, and they're to vote in favour of any that happen to have “L” on them. They will do that.
When this bill comes to the House it will be passed, without amendment, without improvement. It will be the way it is. So if you're going to put in this particular bill and if you are going to strike a balance between recognizing and respecting the bands who are doing a good job, then you'll want to include the idea that Mr. Martin has here, and that is to give the councils greater freedom on how to respond if there's an event of a significant breach.
But for that minority who are not following the rules to a T and the ones where we find their grassroots members are coming to us to ask for help because their band is getting money but it's not available to them, to fix their broken windows or whatever it is they need, and they have no other income and are in distress and asking for help, that's the minority you must build a rule for. Originally it said no later than 45 days. That's restrictive. My colleague has put in a subamendment to say that instead of leaving it wide open, he would like to make it six months, which, by the way, is interesting. The very next statement in the very next clause, which will be passed because it's in the original--right from the people who never make a mistake and therefore it will be passed--says the council shall make quarterly reports, which is basically every three months. So we're basically saying we give you two quarters to come up with the plan, then quarterly reporting afterwards.
As I said, I object to the whole bloody thing, but given that it's going to pass, let's at least give them some respect, according to Mr. Martin's amendment, but still restrain from saying we deem.... This is a problem here. He has put in the amendment “as early as the council establishes is feasible”. What if they say it's feasible in six years? You see, that's not good enough. That's only for those who are in breach and don't want to do anything about it, thereby letting down their own people.
That's where we come into play as parliamentarians, where if we're going to have this law, let's at least have it as “reasonable”. Therefore, I commend to the members sincerely, at 20 minutes after 12, that they first of all support my colleague's amendment, thereby leaving some time limit in there for those who need it, and then accept the amended motion of Mr. Martin in order to give respect to that vast majority of first nations councils who act in a responsible way.
Mr. Chairman, just before I close my speech, it has often been said that at midnight I turn into a pumpkin, and if you observe, you see in fact it's a true statement. In fact, that may have happened a little bit earlier.
Therefore I would again like to appeal to the members here, and especially in deference to our witnesses, who cannot go for replacements, even though the Liberal members can, and others. I think it would be really reasonable of us as rational people to say let's call it a day. Therefore I move again that the committee now adjourn.
The Chair: We'll put it to a vote.
(Motion negatived)
Mr. Vellacott, your final comments on your subamendment.
Mr. Maurice Vellacott: Thank you, Mr. Chair.
In respect to this, it has been so eloquently stated by my Canadian Alliance colleague Mr. Epp, and I regret to say that he does turn into a pumpkin after midnight, but I enjoy him a lot. He's a valuable colleague and has played an effective role. He's a good pumpkin, that's for sure.
I think it's not unreasonable at all. I'm just trying to show some latitude of spirit here. If it's quarterly reports to the members in terms of the recovery plan, I would think it not unreasonable that a chief and council, a band, could within a quarter, if it's a major or significant breach--I guess it's the word that's used here--but if it's a major one, it might take a while to come up with a plan and work this thing through so that you have a competent kind of expression, a confident kind of presentation that you can put forward in terms of the resolution of this issue. Maybe in that period of time you have it en route as well.
So I thought I was being fair-minded by proposing a two-quarter term here. Some would say that is extensive and there's lots of flex there. Obviously there would be those around the table, other members on this side, in fact, would disagree and say it should be indefinite. But that was the proposal I put forward, meant as a friendly amendment, and I know I'll have at least one other vote in support of that when we call for a recorded vote at this point.
The Chair: We'll have a recorded vote on subamendment to amendment NDP-24.
(Subamendment negatived [See Minutes of Proceedings])
Mr. Hubbard, on the amendment.
Mr. Charles Hubbard: Thank you, Mr. Chair.
It has been some time since we heard both Mr. Martin and Mr. Loubier on that amendment, and I do take some offence with the statements Mr. Loubier made--if he can recall them--but I don't think there are any--
The Chair: One moment, Mr. Hubbard. I would prefer that you would do as Mr. Martin did and say, “I take offence to comments made by one member”. Everyone will know who it is if it's quoted properly, but I don't accept personal criticism or attacks from the opposition, and I can't do that from the government side.
Mr. Charles Hubbard: I will change, of course, to the way you say, but I do take offence at some of the statements that were made. I think the member knows who made them. But he seems to have lost sight of the significant concerns that first nations people have when they get into financial difficulty with their budgets and their financial accounting.
Subclause 10(1) talks about a recovery plan. We have a lot of different types of situations and different names that are placed on those. For example, third-party management was referred to here tonight, and there's no first nation, no chief, no council, no band member that wants his first nation to be involved under third-party management.
Almost as serious is co-management, which is under the Indian Act as it presently exists, and there's no chief or band that wants to have its resources placed under co-management. But for the record, we're talking about a recovery plan not by someone outside the band, outside the first nation, but a recovery plan being identified as a possible solution to a problem that is evident from a serious breach of one's financial situation.
I think all of us recognize that this is enabling legislation. It's enabling the chief and council to go to its membership and offer a plan to turn around the affairs of the first nation and to bring the first nation back under a suitable, accountable financial management system.
With that, I personally, and I think most of us do, support the concept that first nations have the ability to address their own problems. It shouldn't be by someone from the outside attempting to do that, but rather the opportunity within a 45-day period for the chief and council to address the situation and attempt to work with its band members to find a suitable solution.
I know a subamendment was made in terms of 180 days. There's another amendment coming up suggesting 60 days. I'm not sure in terms of all these days, but in terms of what is presented in the bill, 45 days seems to be most acceptable. With that, we'll stand our position.
The Chair: Thank you, Mr. Hubbard.
Mr. Martin, closing remarks.
Mr. Pat Martin: Mr. Chair, I thank you. Even at this late hour I find it as difficult as others to do justice to the serious issues we're facing here. It's bad enough that we're unilaterally trying to address issues on behalf of, or for, first nations people when they have no input, but frankly, we're all exhausted. I can preface my remarks with that.
I would like to point out, Mr. Chair, in speaking to this whole issue regarding financial management and breaches of same as part of legislation, what I'm holding in my hand here is what's called a Manual for the Administration of Band Moneys. It's absolutely mind-boggling. My eyes roll into the back of my head just frankly thinking about having to live in compliance with this package, this manual. It's devastating in that it's almost a set-up for failure because it's so demanding and so detailed. Bands wind up in trouble if they don't follow to the letter this Manual for the Administration of Band Moneys.
Now some of these obligations are finding themselves into binding legislation. One aspect I found here within this manual in sorting through it is “Evidence of Consistent Financial Responsibility”. This is one of the requirements in here. I think anybody who gave any time and attention to reading this particular section of the Manual for the Administration of Band Moneys would agree with the Auditor General that, if anything, this administration of these band moneys is over-regulated and over-audited to the point where the information garnered can't even really be of any use to INAC officials because you'd have to have an army of them to even assess and register the material coming through.
Here's one thing that has to happen to prove “evidence of consistent financial responsibility” that's already in place:
| The regional submission will contain statements on the amount of moneys currently in the First Nation's revenue account as well as a description of any moneys expected to be deposited into the First Nation's revenue account in the near future (e.g., settlement claims or major leasing agreements which may be pending, etc. |
| The submission will include copies of the last three financial audits of the First Nation. Those audits should be unqualified. |
In other words, clean audits.
| If the audit is qualified, evidence must be provided to the effect that the First Nation has taken acceptable corrective measures to remedy any problems. |
In other words, those corrective measures, as made reference to in clause 10 already exist in the Manual for the Administration of Band Moneys. This has to happen annually anyway or the flow of band money ceases.
Where is the urgency to take this manual, this administration manual, and enshrine these concepts into legislation with even more restrictive language? If these regional submissions have to be submitted regularly with evidence that corrective measures have been taken to address any breach of any rule regarding deficits or debt, I just wonder why it was so pressing and so urgent that we have before us this clause in this bill today.
| The submission will consider whether the First Nation has otherwise: demonstrated good financial control; used Indian moneys for the purposes for which they were authorized; and been diligent and consistent in the management of its funds. |
That's just an example above and beyond the language in place that's an aspect to any contribution agreement, which I've also reviewed, which are incredibly comprehensive legal documents that it would be very, very difficult to deviate from to even get into a breach of any rule respecting deficit or debt.
The circumstances under which a significant breach of rules takes place, as I pointed out, are often the result of a band council chief trying to cope with the reality of chronic underfunding. We've watched membership lists grow, for whatever reason, without the commensurate transfer of resources to provide services to that expanded membership.
Chiefs are elected every two years, council, etc. But even if it wasn't an election issue, it's an obligation to do what's right and what's necessary for the membership they represent. It's trying to pull a rabbit out of your hat to provide for the basic needs with inadequate resources. Overspending is not only a temptation, it's sometimes a necessary reality.
Currently the rule is 8%. If you go over budget by 8%, a certain series of events kick in, or it triggers a certain reaction. Here the language has been changed to “a significant breach of any rule respecting the deficit or debt of a band”. We wonder what happened, I suppose, to that 8% rule. Whether that was fair or not is beside the point, but we're critical again that policy issues are becoming legislated issues.
Mr. Chair, a number of the clauses we've been dealing with have been addressed by the many representations that were made to the committee. Again, there has been an unwillingness to take those seriously, and I regret that, because a number of first nations worked very hard to put these presentations together, as well as individuals who came forward. In terms of clause 10, some of the recommendations that specifically were made deal with subclause 10(3), which expands the role of the minister. But that's not specifically what we're on now with subclause 10(1).
Suffice to say, the vice-chief for Ontario on the Assembly of First Nations, Charles Fox, made a presentation. The language he used was:
| The basic position of the Chiefs of Ontario is that Bill C-7, in its entirety, is unacceptable. Tinkering amendments are not possible, and the Chiefs of Ontario will not discuss them. If the bill is passed, there will be permanent long-term damage to the bilateral relationship between first nations and Canada. The next federal government will have to deal with the negative consequences. The bill should be scrapped immediately. |
These are things we heard. These are things that were told to us, cautionary notes, brought in the spirit of goodwill, I might add, because at that time there was still the hope and the optimism that we would listen to these submissions. The reason I want to focus on Chief Charles Fox's comments is that he drew attention to the fact that it's not the people around this table who are going to be forced to deal with the implications and the ramifications of Bill C-7. It's the next government. It will likely be a Liberal government, and we can almost predict who the Prime Minister will be. The Prime Minister is going to be saddled with this severely damaged relationship.
Now, the one thing that the Anglican bishop who presented to the committee asked, I think, with great wisdom, was he said it would be considered--what was the term he used--“a gracious gesture of goodwill” if this bill was withdrawn at this time. That's the appeal made to us by a thoughtful observer--a non-aboriginal person who was a thoughtful observer. He said he cautioned us about permanently damaging, or irreparably damaging, the possibility of working together in a bilateral, cooperative, relationship, and he advised strongly that we should back off this bill. If those same issues are so important to government, there are better, more effective ways for a bilateral discussion process that would likely be far cheaper than the implementation costs of Bill C-7 and would heal the rift that's developed instead of accentuating it.
The departmental officials and the minister have always paid a lot of attention to Professor Stephen Cornell and the Harvard study. Well, in one line he cautioned us:
| However, several aspects of the proposed legislation strike as us problematic from the point of view of the research we have carried out. |
He pointed to the contrast between the work they had done and the recommendations they had done, if you're looking for successful models of economic development, and the route taken by the government with Bill C-7.
The Federation of Saskatchewan Indian Nations said the first nations believe Bill C-7 is a less than honourable process. Well, as an example, we can look around this room.
There's nothing honourable about us discussing this without the input and participation of the people in it.
The Chair: Thank you, Mr. Martin.
Now we will go directly to the vote.
It's too late. I gave enough time.
(Amendment negatived)
The Chair: We'll go to amendment BQ-26, Monsieur Loubier.
An hon. member: What is your intention, Mr. Chairman? To work until tomorrow morning, until 10 a.m. or noon, or what? What is your intention?
The Chair: Mr. Loubier has the floor.
An hon. member: What's the intention? I'd like to know.
The Chair: Mr. Loubier has the floor.
[Translation]
Mr. Yvan Loubier: Mr. Chairman, before talking about my amendment, I would like to have the committee's unanimous consent. There is an error: I had asked that it read “than 160 days after the time the breach became”, not “than 60 days after the time the breach became”. So if I obtained unanimous consent, we could use the following wording: “than 160 days after the time the breach became known to the council.”
[English]
The Chair: Can I get unanimous consent to add “1” before the “60”?
Some hon. members: Agreed.
[Translation]
Mr. Yvan Loubier: You're so kind I'm going to continue along the same lines. With my amendment, Mr. Chairman, I'm going to draw a link, as it were, between what Mr. Martin proposed earlier, that is to say a period of up to several months, even several years, and what Mr. Vellacott was proposing, that is to say a kind of time limit.
I've practically served as a visionary; I had anticipated it, as it were. I knew that the Liberals would vote against Mr. Martin's amendment and that there would be discussions for as long a period as possible to be adopted, hence my idea of proposing a period of 160 days, rather than 45 days, to submit the recovery plan. That's an honourable compromise between Mr. Martin's infinite horizon and Mr. Vellacott's finite horizon.
But once again, Mr. Chairman, I disagree with the way we are proceeding for the passage of this bill, particularly with regard to its drafting.
Earlier, I heard another member--I won't name him, although he named me--give the First Nations management lessons. I named no one; I never indulge in personal attacks. I was talking about a fund's management principle according to which accounting rules must be applied. He said that care had to be taken and so on.
I get a bit irritated when I hear a government member talk about sound management and effective management of public funds. We know that, had it not been for the theft of $43 billion from the employment insurance fund, which represented the contributions of employers and workers from the last six years, the federal government would still have an annual deficit. If the idea is for you to give lessons on sound management, there may be a minor problem in what you're proposing.
The amendment I'm introducing could at least diminish the brutal nature of the limits imposed by clause 10 of Bill C-7. There is still a substantive defect: this bill is utterly unacceptable; it is inconsistent with what the First Nations, which are the first ones concerned by this bill, want for their future or what they need to address their genuine concerns.
My colleague, Mr. Martin, made an excellent suggestion earlier, that the First Nations experts be invited to advise us on the drafting of this bill. That would be the best thing to do. Moreover, Mr. Martin and I—and even Mr. Vellacott—had previously proposed it.
The Royal Commission on Aboriginal Peoples, which also goes by the name of Erasmus-Dussault, was composed of seven members, four Aboriginals and three non-Aboriginals. They produced an outstanding report which described the partnership relationship that should be established in the coming years between the federal government and the Aboriginal nations.
When we made that proposal, it was opposed on the ground that the persons around the table had to be elected members and that the members of the Aboriginal communities were not elected. However, we noted that there were joint committees of the House of Commons consisting of elected members--that goes without saying--but also of senators, who are not elected, but appointed by the Prime Minister, and that those committees were entirely legitimate. In that perspective, the argument that the Aboriginal representatives could not join us because they are not elected is invalid.
There's a kind of blockage that's causing problems—in my view, they are probably anthropological or anthropomorphic problems; in fact, I think they are more anthropological—preventing us from getting away from this dominant-dominated type of relationship which has characterized recent decades. We seem to have trouble imagining that everything we have experienced in terms of changes in human relations, both nationally and internationally, should also apply to the relations the federal government maintains with the First Nations.
It's as though the United Nations Organization existed only for the Liberals, for Canadian representatives of European extraction, but that it did not exist for the First Nations. And when you quickly reread the UN Universal Declaration of Human Rights to refresh your memory of the various articles, you can see, just at first glance, without even delving deeply, without even determining the status of the relations between the federal government and the First Nations, that the relations we maintain violate the Universal Declaration of Human Rights, but all the more so since we want to continue maintaining those relations with Bill C-7. I'll cite a few examples.
Article 1 of the Universal Declaration of Human Rights states:
| All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. |
In Bill C-7, which imposes things on nations which are recognized as such, with an inherent right of self-government and equality of peoples, how are we complying with article 1 of the Universal Declaration of Human Rights? Not at all.
Article 2:
| Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion... |
How does Bill C-7 maintain this relationship of mutual respect? Not at all. This is the second violation of an article of the Universal Declaration of Human Rights.
Article 4:
| No one shall be held in [...] servitude... |
Oh, what is Bill C-7 doing imposing frameworks, requiring the Aboriginal nations to enter into a mould that we impose on them? Doesn't that seem a little like servitude? That's the fourth violation of the Universal Declaration of Human Rights.
Article 6 of the UN Universal Declaration of Human Rights, which, in the federal government's view does not apply to the First Nations, states:
| Everyone has the right to recognition everywhere as a person before the law. |
How is the legal personality of the First Nations recognized in the bill, based on the court judgments rendered over the past 30 years, including by the Supreme Court of Canada? Not at all, except in the preamble. Of course, the preamble has no force in matters of interpretation, except where there is doubt in the mind of a judge who must interpret Parliament's intent. There is no doubt in the clauses developed in Bill C-7. They are so precise, they say so clearly what to do, that I come back to the joke about the coffee pot and the kind of cookies that have to be put on the table when there are band council meetings. It goes that far. So many details are imposed that there is no ambiguity in this bill.
Article 12 of the Universal Declaration:
| No one shall be subjected [...] to attacks upon his honour and reputation. |
Once again, what does Bill C-7 do by insinuating that there is a lack of transparency in the Aboriginal communities, by considering that there is a lack of accountability, that there is not enough transparency? What are we doing? We're violating article 12 of the UN Universal Declaration of Human Rights.
This report states that there are incredible problems that harm the reputation of the First Nations. This is the sixth violation of the Universal Declaration of Human Rights. When you look at that, it's serious. Moreover, the United Nations has preached to the federal government a number of times, but the federal government seems insensitive to its sermons, particularly since the UN has repeated a number of times, and extremely clearly on the last occasion, that it recognized the right of self-government of the Aboriginal nations, that it recognized the inherent right of self-government, which means the natural God-given right to self-determination, and that it recognized Aboriginal treaty rights. It couldn't be more clear than that. The only party that does not understand is the federal government. That's serious.
We've previously spoken of Mr. Pearson here. Although I'm a sovereigntist and I'm called a separatist, an independentist and all the “ists”, I have incredible respect for Canada; I have incredible respect for its politicians and especially for Mr. Pearson because Mr. Pearson enabled international human rights to advance. Mr. Pearson's efforts opened the minds of the Liberals of the time. Mr. Pearson probably opened the door to all the major social changes in this country. Mr. Pearson may also have opened the door to nation-to-nation recognition.
I know that the Chairman has previously said he didn't care about Mr. Pearson; that's another matter. But it seems to me that, in the Canadian tradition, we should keep an open mind about everything that comes from the United Nations because we have contributed to it, particularly under Mr. Pearson's reign, when the UN Peacekeeping Forces were put in place. And that's an extraordinary international work. But one would say that, in the past 10 years or so, the international community has preached in vain to Canada, has told it in vain that it is wrong, has told it in vain that it is on the wrong track in its relations with the Aboriginal nations; the courts can also get involved and find in favour of the First Nations judgment after judgment; no one cares. There is an incredible lack of responsibility, Mr. Chairman.
[English]
The Chair: Thank you, Mr. Loubier.
Is there anyone else?
Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair.
I'd like the opportunity to speak to Mr. Loubier's recommendation, and I appreciate the thoughtfulness that went into the amendment he's recommended. I think he's trying to address the concerns I brought forward in a way that may in fact even be marketable to the Liberal members across the way. There may be interest on their part to support an amendment that would in effect mediate between the two positions--as Mr. Loubier expressed--between my objection that there be a prescribed time limit before which a band and council has to bring forward a financial recovery plan to deal with any significant breach of rules regarding deficit or debt and the position brought forward by others who felt that such a timeframe should be put in place but perhaps extended to a longer period.
So we're dealing with a compromise solution. Maybe that's the way good legislation evolves and is crafted. The only thing lacking is the participation of the very people who will be affected by the legislation. It's ironic that two white guys in suits are having this debate and not the very first nations people who will be impacted by this.
So I'd like to take input from people in the audience, who I think deserve to have input and participation. Some have asked me to include language so they can participate. Some people believe that clause 10 in its entirety increases the minister's power to interfere and is therefore coercive. That's one of the suggestions, one of the quotes.
Another aspect is that having officials conduct an assessment of how this clause affects the government's fiduciary obligation--
The Chair: Mr. Martin, may I have a point of order?
Mr. Lee.
Mr. Derek Lee: Mr. Chairman, my work on this committee is being impaired by one of the persons in the gallery, and I just wanted to serve notice that it was. I'm not asking the chair to take any steps right now; I'm just letting the chair know. If there's a recurrence, I'll bring it to the attention of the chair.
The Chair: Thank you.
A voice: Mr. Chairman, can I just please say something?
The Chair: No, no. No participation--
A voice: Mr. Chair, I find it disrespectful--
The Chair: No.
A voice: --that this man is doing his income tax return while you're talking--
The Chair: Call in security.
A voice: --about my people.
Voices: Hear, hear!
A voice:If you want to kick me out, kick me out, but this time you're going to drag me out.
The Chair: We're going to ask that she be quiet or she be asked to leave. We don't want to handle--
A voice: You can't just start dragging people out. These are the lives of our people you're messing with.
A voice: Our grandchildren.
A voice: You're sitting there deciding the life of our people.
The Chair: Security.
A voice: You're talking about my people's future here while this man is doing his income tax return!
The Chair: I have a directive to give.
Security, we will not remove this lady; we will continue.
Voices: Hear, hear!
The Chair: Mr. Epp, on a point of order.
Mr. Ken Epp: Mr. Chairman, I'd like to read this into the record as a point of order. It's a note that has been passed to me.
It says “The 50 traditional chiefs of the Haudenosaunee always held their meetings in the light of day. This way they were always fresh, alert, in order to make decisions”--
The Chair: That is not a point of order.
Mr. Ken Epp: It will be--“that government should do”--
The Chair: Cut the mike.
Where were we?
Okay. There's a motion that we adjourn.
(Motion negatived)
The Chair: Does anyone else wish to speak on amendment BQ-26?
Mr. Pat Martin: Mr. Chair, I think I was in the middle of my speech, and there was an interruption.
The Chair: You're correct.
Mr. Martin, you have the floor.
Mr. Pat Martin: Thank you, Mr. Chair.
I was taking this opportunity to talk about BQ-26, the 26th amendment the Bloc Québécois has already moved to try to improve this bill, and we're only at clause 10. It's my intention to try to give a voice to some of the concerns that are shared by the people who are observing today. Some have made the observation that they don't have permission to sit around this table as we believe they should have. Some of the observations are relevant, and I will include them in my arguments on clause 10.
Essentially, have the officials conducted any kind of analysis of how this section affects the government's fiduciary obligations? Are there documents that assess the matter, and can they be made available to the committee? I'll ask that as a question to the witnesses. Have the officials conducted an analysis of how clause 10 affects the government's fiduciary responsibilities or obligations, are there documents that might speak to the assessment of this matter, and can they be made available to the committee? Is that something we can look forward to?
Mr. Warren Johnson: I don't think clause 10 was viewed from a fiduciary obligation perspective in that, and my colleagues may be able to comment further. The fiduciary obligations relate to decision-making made on behalf of first nations with respect to issues in the areas of lands, resources, trust moneys, etc., that are not included in the FNGA--or in clause 10. Whether there's a nuance with respect to subclause 10(3)...because subclauses 10(1) and 10(2) do not relate to federal or ministerial intervention or management but rather to first nations management. As to whether there is an exception with respect to subclause 10(3) with respect to ministerial intervention, my colleague may wish to comment on that.
But I would note that the grounds for intervention in paragraphs 10(3)(a), (b), and (c) are in fact narrower than what currently exists. This is narrowing that scope of intervention because areas currently dealt with in terms of potential intervention under policy will be dealt with by the band itself under subclause 10(1) rather than by the minister.
Mr. Pat Martin: I'll ask Andrew if he wants to respond. Have you conducted an assessment or review of how any part of clause 10 affects the government's fiduciary obligation, is what this question is, and are there documents to that affect?
Mr. Andrew Beynon: I think Mr. Johnson's answer is the fulsome one. No, it doesn't relate to those issues.
Mr. Pat Martin: Do you anticipate court challenges or court cases on this issue? I'm speculating, I suppose, but do you anticipate this to be one of the controversial clauses that may in fact generate challenges, subclause 10(3) in particular?
Mr. Andrew Beynon: I think it is a matter of speculation. I don't know how people are going to formulate cases. The only comment I could make about court cases is that from what we've seen so far, they seem to be more generally related to the bill, dealing with the bill as a whole and not so much on any particular clauses. Whether that will change in the future, I don't know.
Mr. Pat Martin:
The points I was making or the observations that have been made by many witnesses who have come before the committee...I think it's worth entering into the record, especially language from Kairos, the Canadian Ecumenical Justice Initiatives:
| The Canadian churches and religious organizations that form Kairos are deeply concerned about Bill C-7 in and of ourselves and through the partnerships we have with aboriginal peoples across Canada. We believe that Bill C-7, the First Nations Governance Act, perpetuates an historically discriminatory and paternalistic federal policy that has impeded aboriginal efforts to promote and protect their inherent and treaty rights |
That's a fairly profound comment that was made to the committee.
The Keeseekoowenin Ojibway First Nation, the Riding Mountain Band, Treaty 2 people, says:
| It is simultaneously obscene, ridiculous, and totally unacceptable that at the dawn of the 21st century we would have to be here as supplicants, defending ourselves from colonialism. It is obscene that our children would have to witness us having to protect ourselves in this way, that they will have to live their lives as we have, knowing that they must constantly have to be on the defensive, alert for impositions, and that our elders would be subject to this indignity. |
That's a fairly profound observation that was made.
I think that really, Mr. Chairman, this speaks to what has been viewed as a lost opportunity. There are people who have said the missed opportunity is that it's only once in a generation a government finds the political will to open up the Indian Act and try to remedy some of the historical injustices. Rather than it deal with issues of substance or embark on that bilateral process of working towards an end to the Indian Act, we're seeing the imposing of a template model of governance local communities neither want nor support. It's been viewed as simply modernizing colonialism.
The comment that was made, and that I'd like to leave on the record, is if the federal government wants to retain or even enhance its own direction and control over the lives of aboriginal people as contemplated by Bill C-7, then it must continue to bear the primary responsibility for what can only be described as 130 years of social tragedy under the Indian Act.
Mr. Chairman, it's comments like this that disturb any thinking person, I would think, around this committee table. It really makes us question why we're working through the night on a bill nobody wants, a bill the overwhelming majority of first nations people have spoken loud and clear on, saying they neither support nor approve of it and that in fact they strenuously object to it.
By what convoluted pretzel logic does the government think it's to anybody's advantage to be sitting here in the middle of the night eating cold pizza--
· (0100)
The Chair: Thank you, Mr. Martin. That completes your time.
Mr. Vellacott was on the list. I don't see him.
Monsieur Loubier, could we have your closing remarks?
[Translation]
Mr. Yvan Loubier: In conclusion, Mr. Chairman, I wanted to introduce this amendment, but, in fact, this is a cosmetic amendment which in no way closes the open wound that Bill C-7 can cause. I see it precisely like that, like in a kind of open wound, a gaping wound that will do absolutely nothing to improve the conditions of the First Nations.
All the problems we can currently encounter in the rebuilding of nations, all the problems we can counter in redefining and searching for institutions specific to the Aboriginal nations, everything we may need in the way of economic development, employment development and the development of communities, welfare and quality of life in those communities, all these concerns find no response in this bill, which provides absolutely nothing to improve living conditions in the First Nation communities. It's a useless bill. It is a bill that will harm relations between the federal government and the First Nations. It is a bill that, instead of attenuating the legal disputes the government may have with the First Nations, will exacerbate them.
The Canadian Bar Association, the Barreau du Québec and all the experts who intervened to analyze this bill said it. There are a number of clauses, including clauses 10, 9, 5 and 4, that even contradict federal statutes.
So imagine the cacophony in which we will pursue our relations with the First Nations. Instead of reducing the resources allocated to legal remedies, court actions, pointless disputes, we're going to increase them. All the legal resources that will be added because of this unspeakable bill will not be available to develop the First Nations or to provide better economic and social prospects, in particular for the young people of the First Nations.
I'm astounded to see references in the bill to sound management, financial recovery plans and significant breaches of rules respecting debt and deficit, whereas everyone, including the Auditor General, including what is stated in the analysis of the Erasmus-Dussault report, has said that the fundamental problem in a minority of First Nations communities is not poor financial management, but a lack of financial resources to finance the basic needs of every human being. That's the problem.
It's easy not to have breaches of financial management when you have money, but when you don't have money, but have vital housing needs, even needs for drinking water in those communities... I thought it was only in developing countries that there were problems of access to drinking water. It was an extraordinary discovery to learn that a number of Aboriginal communities do not even have access to drinking water.
As for the problems that may be found in the area of schools management, the lack of financial resources means that there are definitely significant breaches: there is a lack of resources for the purpose of giving young people the education they need.
I've never seen that. When we did the tour, we were given the example of an inspector from the Department of Indian Affairs who conducted a surprise visit of a school one day and, because there were eight fewer students at school that day, the budget was cut proportionately. You can't manage schools like that. No school in our communities is managed that way. Annual budgets are allocated, and, if students are missing one day and present the next, you don't cut on the basis of the number of students who are absent one day. This lack of resources has been caused by us.
When the Europeans arrived, Aboriginal people had lands. On those lands, we have built cities, pipelines, logging concessions, major logging companies which have clear-cut hunting, fishing and trapping grounds.
· (0105)
The First Nations have been deprived of resources they could have developed because they were their resources, because we parked them on reserves. We deprived them of their land, we deprived them of the wealth of their land and what is underneath it.
Do you know where the significant breach is? It's precisely in the way of the federal government has treated the First Nations. When you have no more money, when you have no more resources, it's easy to have breaches.
I recently saw the example of the representatives of the Lubicon First Nation, which is part of the Cree nation. It's a genuine scandal, it's utterly sickening what was done to them. In the early 1980s, only 10 percent of the population was on welfare. Today, do you know how many people are on welfare? Between 90 and 95 percent. Do you why they are on welfare? Because their lands, which they claimed, were given to logging companies, which clear-cut them. Their lands, which they claimed, were also given to oil companies, which are refining oil on site and causing health problems among the members of that community. Then we wonder why there might be significant breaches in the management of financial resources, deficits and debts.
How can you deprive the First Nations and think that there are significant breaches, when the problem is a lack of financial resources in order to meet basic needs? Bill C-7 doesn't address that, not at all. It doesn't offer solutions to that.
Once again, the defect in clause 10 is the same as in clauses 9, 8, 7, 6, 5, 4, 3, 2 and 1, except the preamble. The preamble is beautiful, but it means nothing in fact; it has no power or force of law. The problem is a defect of form and presentation.
Just citing the fact that there are obligations and that the First Nations are obliged to be transparent and to meet very short, utterly unrealistic deadlines because of breaches, that means that there is an insinuation that, in general practice, there are significant breaches in the management of funds allocated to the small communities and to the Aboriginal nations in general, whereas that's not the reality at all. Moreover, everyone said that it is a very small minority that has problems. It's often in the small communities lacking resources, period. And they aren't breaches in management, they aren't breaches in accounting; there's simply a flagrant lack of funds, and it's in a minority of the communities that there are problems.
That's not said, for example. The bill is introduced, and if someone from the outside read it, he would say to himself that the members of the First Nations are not transparent, don't know how to manage, have deficits, contract debts and are not good. It's sickening to propose things of this kind in this manner, particularly since we are in no position to give anyone lessons on the management of public funds. Deficits and debt are not really a good thing.
With regard to what comes out of this bill, clause 10 and the others, I'm convinced that we will try in vain, through cosmetic amendments presented to you, which are opportunities to explain the common sense viewpoint, but we will be unable to improve anything that is not improvable. You can't make a blooming flower out of a piece of wood; things don't work that way in life. If nature doesn't work that way, the bill will not bear fruit, or if it does, it will be rotten.
In any case, I don't know what my colleagues think, but I think we'll to fight to the end to prevent this bill from taking on legislative life because it's really a poor start in our relations. We'll have to fight. When a bill finds no unanimous support on the left...
· (0110)
The Chair: Thank you, Mr. Loubier.
[English]
We will go to the vote. We have a request for a recorded vote on BQ-26.
(Amendment negatived: yeas 4; nays 7)
The Chair: Now on to NDP-25 on page 90. Mr. Martin.
Mr. Pat Martin: Well, we will continue to seek to amend clause 10 with amendment NDP-25. That means this is the 25th attempt we've made already to try to improve this bill.
We are seeking to amend clause 10 by deleting lines 25 to 39 on page 8. In effect, this deletes all of subclause (3), which is the minister's authority to take punitive measures if, in the minister's opinion, it is necessary to require that remedial measures be taken in any of the following circumstances: the deterioration of a band's financial health that compromises the delivery of essential services and programs; the failure to make financial statements publicly available within the period specified under subclause 9(3)--in other words, if a band fails to make their financial statements available to anyone who asks for them, or even charges more than what may be considered a reasonable fee for a copy of those forms, the minister would be justified by this clause to then take “remedial measures”; or due to the denial of an opinion, or an adverse opinion, by the band's auditor on the band's financial statements--in other words, if the auditor came forward with a negative opinion of the state of the band's financial statements, the minister could then exercise his very extensive authorities and take “remedial measures”. And we all know what that means: “remedial measures” means taking over the financial affairs of a first nations community.
We object to this entire clause. We object to the fact that it was even deemed to be necessary to include and to list these circumstances under which the minister can intervene, especially paragraph 3(b), the introduction of this concept that a band's financial statements must be made publicly available and that a copy should be provided to any person. We find this to be offensive and in violation of the collective privacy rights of a first nation. We've advised before that we think it's also detrimental to the ability of a first nation to even effectively operate a business or a private enterprise that may be in operation on first nations land or under the direction and control of a first nation.
Then, even though we object to that on principle, what's even more offensive is what's tied into it: that upon a band's failure to comply with the full disclosure of these financial statements to anybody who asks, the minister then bestows upon himself by the enactment of this bill the right to impose remedial measures. Now, we've tried to address what the predictable consequences of these remedial measures are. It means, ultimately... The absolute remedial measure is the imposition of third-party management. Co-management is the intermediate step and then third-party management.
We've tried to make known to this committee and to others who may be interested in these proceedings that these third-party managers have turned into a mini-industry. The language included in this bill is only going to accentuate and augment this problem and make it even worse.
Next to the Groupaction sponsorship scandal, the next big scandal that's going to break around here is the scandal of these third-party managers ripping off first nations when they get their hands on their finances. Believe me, Mr. Chairman, there's a story to be told here that will knock your socks off when we get... We're getting very close to being able to divulge and release the information we're gathering about this scandal that's brewing. We're in the process now of checking these accounting firms to see what connection they have to the Liberal Party, because there seem to be a few very lucky accounting firms who seem to wind up with a disproportionate number of these “licences to print money”.
· (0115)
The connection sometimes goes directly to the minister himself, in terms of some of these outfits from Kenora who seek to impose their will and to gain access to the financial assets of communities in the Treaty 3 region.
We've had information that should be exposed and should be talked about and should be common knowledge to members of Parliament, because misrepresenting the value of something constitutes fraud just as much as not delivering a product constitutes fraud.
For instance, a recent fraud case in the city of Winnipeg dealt with a contractor who charged an elderly woman $9,000 to paint the interior rooms of her house--a six-room house. Now, the contractor claimed that, well, it's buyer beware: if somebody is dumb enough to pay me $1,000 a room to paint the inside of a house, it's my good fortune. Well, the court ruled differently, that this contractor misrepresented the value of the product being sold and therefore took advantage of a person in a way that was fraud.
Well, the same type of accusation of fraud we believe could be made when a third-party manager misrepresents the value of the service they're selling to the federal government in terms of managing the very modest requirements associated with the financial activity of a first nations community. So when we hear of billing to a small community that runs in the neighbourhood of $30,000, $40,000, and $50,000 per month for a chartered accountant for a very limited number of financial transactions, something that could be accomplished perhaps in one day a week, we know people are being cheated. The unfortunate thing is that these fees are subtracted from the operating budget of the community. So if the operating budget of a community is $1 million or $1.5 million per year, $300,000 or $400,000 will be getting paid to this auditor, at $30,000 a month. It's an absolute scandal, and it needs to be exposed.
Now that we've made government aware of this, I think it would be irresponsible of government--and even the parliamentary secretary might want to take this to the minister's attention... We've alerted people in this room to the fact that there's a very serious scandal associated with third-party management. We believe that subclause 10(3) as it stands will lend itself to even more first nations finding themselves under third-party management, because the minister now can carry out an assessment of a band's financial position, and then if the minister considers it necessary, he or she can require that remedial measures be taken when any of the following circumstances become known to the minister: the deterioration of a band's financial health--the term is rather vague, and a lot could be read into what the interpretation would be of the “deterioration of a band's financial health”; failure to make financial statements publicly available, as per subclause 9(3); and the denial of opinion as per the auditor.
Well, we've commented on what we think should be tightened up in terms of what an auditor should be able to do in providing service to a first nation, but any of these three measures, I believe, constitutes a further enhancement of the discretionary authority of the minister, which contradicts, 100%, the commitment made when we undertook the beginning of this exercise of dealing with first nations governance. The commitment was that government would be getting out of first nations' business and that it would be recognized that first nations have the inherent right to self-government. In this example, if anything, we're going in absolutely the opposite direction.
· (0120)
I've been trying to read into the record some comments made by people who made presentations to the standing committee in our travels, comments and representations that we believe were undervalued and underutilized in terms of crafting this legislation. For instance, we didn't listen to Professor Kent McNeil from the faculty of law at York University. If we listened to him, it certainly didn't resonate or register in the final bill, because he said that to the extent that the First Nations Governance Act impacts on the legal capacity—
The Chair: Thank you, Mr. Martin.
Monsieur Loubier.
[Translation]
Mr. Yvan Loubier: Mr. Chairman, I think Mr. Martin's idea of getting rid of lines 25 to 39 of clause 10, on page 8, is a very good one because, like my venerable NDP colleague, I also think that the government has far too many powers and that the minister should not have powers. In fact, if we rely on logic and even on what was proposed by the Royal Commission on Aboriginal Peoples, the only true and serious revolutionary approach to starting anew in our relations with the Aboriginal peoples, the minister had no business being in the picture at all. We were talking about an independent commission that would be accountable to Parliament, precisely outside government, outside all partisan politics.
You have to be honest in life too. You can't take the person who is responsible for granting funds to the First Nations, the person who is also responsible for the delays in the many specific First Nations claims that must be addressed, as a result of which a number of First Nations are currently deprived of funds, you can't take the author of another upcoming bill, Bill C-6, which will set a $7 million ceiling on specific claims, even if a specific claim may represent much more than that; you can't take the minister who is introducing this bill and raising obstacles in the finances of the First Nations communities, the minister who isn't moving fast enough in settling specific claims and who, with Bill C-7 and all the other upcoming bills, is even going so far as to provoke legal challenges which will drain the resources of the First Nations, and give this irresponsible person responsibility for evaluating the financial situation of a community when he is responsible for the deterioration of its funds.
It's quite illogical to put this disproportionate power in the hands of the minister, who is not at all in his place, when that minister, as we have seen by his reactions in the past week or so, is a cynical, arrogant minister who doesn't even take seriously the democratic expression of 15,000 First Nations representatives who conducted a demonstration on Parliament Hill, and who cavalierly, and impolitely invited them to go home. I wonder whether anyone in that party is polite.
There are currently some 550 outstanding specific claims. Nothing is being done about those specific claims. Probably another 1,000 are coming as well, because, as the First Nations study the Aboriginal treaties at greater length and call upon experts as well to relate certain resource assessments to those Aboriginal treaties, they find themselves with rights which are increasingly clear and rights which will ultimately represent several hundreds of millions of dollars, if not billions of dollars.
So we entrust responsibility for assessing the band's financial situation to this minister, who leaves 550 current specific claims outstanding, whereas we could soon reach the magic 1,000 figure, who puts a $7 million ceiling on specific claims, who is impeding negotiations, genuine self-government negotiations, which should be conducted between every First Nation and the federal government and who is responsible for the deteriorating relations between the federal government and the First Nations. And if he thinks it necessary, after all the odious actions he has taken, we've given him the responsibility to require that corrective measures be taken. It's quite incredible.
· (0125)
Do I tend to be too exasperated? It seems to me that, from the start of the consideration of this bill, we have faced aberrations of this kind, which should not occur before a committee of the House of Commons, particularly not in a Parliament we esteem and respect. We should not be presented with disgraceful terms of this kind which are forced down our throats as modern terms for the building of a new partnership between the federal government and the Aboriginal nations, considered on a basis of equality. Come on! You shouldn't take people for imbeciles.
So I understand why my colleague has suggested this amendment. Moreover, when I saw it, I was very pleased because I would have liked to introduce it myself. Unfortunately, it was written; so I withdrew mine. As it was my friend, Mr. Martin, I said to myself that it was a good thing that he had introduced it. It would have been the same with Mr. Vellacott, quite obviously. Let's say that I'm pleased with it because the minister already has too much absolute power over many things. He has already caused too much damage in relations between the federal government and the First Nations to be left as well with the power to decide what is good and not good, to require corrective measures, which is the most odious thing in this wording of subclause 10(3).
It states:
| (3) The Minister may carry out an assessment of a band's financial position... |
which he himself has undermined by his decisions or lack of action on his part,
| ...and, if the Minister considers it necessary, require that remedial measures be taken when any of the following circumstances becomes known to the Minister: |
Require remedial measures! How can a minister responsible for the deteriorating situation require remedial measures, except to remedy himself and solve the problem, to settle specific claims and expedite self-government negotiations? That's the only way.
It may seem like semantics, but the French language and the English language are languages in which words have meaning. If the drafters of this bill did not reflect on each of the words and on each of the laughable situations presented to us, we are correct in denouncing it vehemently because it makes no sense.
You can't be both judge and party. The Erasmus-Dussault Commission understood that. When the Royal Commission on Aboriginal Peoples made its recommendations, it said that a veritable construction site would have to be set up that would take 20 years. But to establish that veritable work site, it will take an independent commission, not the government, not the Minister of Indian Affairs, especially not the Department of Indian Affairs, and that commission must be accountable to Parliament. It's not for nothing that the wise Erasmus, Dussault and the other five commissioners made this major recommendation. It's one of the keys to the success of our future relations with the First Nations.
Otherwise, if you put in a bill the judge, executioner and minister, three characters united in the person of Robert Nault, and he acts as executioner, judge and Minister of Indian Affairs, it won't work. Either he is the judge or the executioner or the minister. He can be the three in the case that concerns us, but in the case that concerns you as the First Nations, we must not accept a situation such as that. So I readily support the amendment introduced by Mr. Martin, and I hope that my colleagues around the table have understood its importance.
If we want to talk about the credibility of a legislative approach such as that contained in Bill C-7, it will be necessary to delete those lines which confer extraordinary powers on the minister, who has no place in this bill.
· (0130)
[English]
The Chair: Thank you, Mr. Loubier.
Mr. Epp.
Mr. Ken Epp: Thank you, Mr. Chairman.
I would like to begin my short intervention by saying that if there were a prison with prisoners in it, and if the guards prevented the prisoners from sleeping at night, it would be judged in court to be cruel and unusual punishment. Because of that, there would be a reversal of who would be sitting in jail afterwards.
I think we err, honourable members, by forcing our witnesses. Have pity on our interpreters, who are not being replaced. I think it is very, very cruel and unusual, and we are not working effectively. It really is pointless.
Mr. Chairman, before I begin my speech on this clause, I would again like to move that this committee now adjourn.
· (0135)
The Chair: I will put the question now.
(Motion negatived)
Mr. Ken Epp: I tried.
The Chair: Mr. Hubbard.
An hon. member: We're not sleeping yet.
The Chair: The floor goes to Mr. Hubbard, because you cannot interrupt a speaker to put in a motion. To put in the motion that you did, you have to terminate your speech.
Mr. Ken Epp: Not that I know of, Mr. Chair.
The Chair: Are you challenging the chair?
Mr. Ken Epp: I'll challenge the chair on that, for sure. I have nine and a half minutes for--
The Chair: If you had spoken for ten minutes, terminate, and then put in your motion—
Mr. Ken Epp: I thought I could bring peace and some tranquility to the people in this room who are being punished. So we do it ten minutes earlier.
The Chair: My ruling is that you terminated your participation. As I've said before, you can challenge my decision; I have no problem with that.
I'm going to Mr. Hubbard.
Mr. Charles Hubbard: Thank you, Mr. Chair.
Just for the record, I would like to remind the members opposite, some of whom were not here last night, that we have had this bill before us for some period of time. In fact, we spent the best part of a week trying to debate how we were going to get to the bill. We spent a lot of long nights and days here. And last night, Mr. Martin proposed that there were three or four main parts to the bill that he and the opposition wanted to address.
In good faith, Mr. Chair, we decided to give time to the opposition to get together, and apparently they did meet last night at length. In addition, this morning I came back to this very room and met with the opposition in an attempt to look at their major concerns with the bill and to try to address them in a meaningful way. We had no success in trying to reach an agreement, even though the proposal was put before us last evening.
So I know it has been a long time tonight, but we have to recognize that we wasted a lot of time last evening and this morning. And with that, it certainly is no better that we sit here all night, but that is the situation we're left with. We have to do our best to make sure this bill is brought back to the House in a meaningful way, and one that is acceptable at report stage when it comes back after first reading. Of course, as a reminder to people around the room, it is going back to report stage after first reading, and there will be opportunities to make changes in the House at that stage. Members do have another opportunity to come back to discuss this bill with the full House.
Thank you, Mr. Chair.
The Chair: Thank you, Mr. Hubbard.
I have a point of order from Mr. Epp.
Mr. Ken Epp: I would like to ask the clerk if the ruling was correct.
The Chair: Is that a point of information?
Mr. Ken Epp: No, it's a point of order.
The Chair: You want to find out what the ruling is, on a point of information?
On the matter I ruled on, you'll find that Marleau and Montpetit gives an interpretation for the House, and it doesn't speak to it for a committee. When it does not speak to it in committee, you apply the rules of the House—unless the committee made a decision to alter, with a motion or a vote.
An hon. member: Could you read that?
The Chair: If you don't believe me, I'll ask the clerk to read it.
An hon. member: No, I'd like to learn.
The Chair: You'd like to learn that at two o'clock in the morning schools are closed.
Voices: Boooo!
The Chair: Would you read it, please?
· (0140)
The Clerk of the Committee: Thank you, Mr. Chairman.
This is from page 462 of House of Commons Procedure and Practice, which says that “A motion to adjourn the House is in order when moved by a Member who has been recognized by the Speaker to take part in debate on a motion before the House...”.
Having been recognized by the chair to take part in debate on amendment NDP-25, Mr. Epp moved a motion that was dealt with by the committee. Having done that, he could not again be recognized to take part in debate on the amendment.
The Chair: Thank you.
Mr. Martin, you have closing remarks.
[Translation]
Mr. Yvan Loubier: Excuse me, Mr. Chairman, I have a point of order.
[English]
The Chair: Is it a point of order?
[Translation]
Mr. Yvan Loubier: It seems to me that it is the right of each of the members here, Liberal members, members of the Canadian Alliance, the Bloc québécois, NDP and Conservative Party, when they request clarification of an interpretation, to consider that it is utterly normal that the clerk be able to answer each one. Moreover, if you read the Standing Orders correctly, the clerk is at the service of all members, regardless of party.
Mr. Epp asked you a question, and you cavalierly gave Mr. Martin the floor, without answering Mr. Epp's question. You often do that with us around the table here.
[English]
The Chair: Monsieur Loubier, do you have another point of order?
[Translation]
Mr. Yvan Loubier: No, no. Look, Mr. Epp is very nice. He is nicer than I am. I'm not insisting because he sees this makes no sense.
[English]
The Chair: Mr. Martin, you have the floor.
Mr. Pat Martin: We think clause 10 should be deleted. We think it has no merit. Everyone who has spoken to clause 10, especially subclause 10(3), has felt strongly that this expansion of the discretionary authority of the minister is offensive.
I'll start with Professor Larry Chartrand, a professor in the faculty of law at the University of Ottawa. He says: “The intrusive and non-descript powers of the minister under s. 10(3) is likely a violation of Aboriginal rights to manage the financial affairs of the First Nation.” That's the opinion of a well-respected professor of law at the University of Ottawa.
I don't make this stuff up. I don't just pull these amendments out of my hat to try to keep us here longer into the night. These are the legitimate legal opinions of learned people about what they believe is the impact of this bill.
We've asked for the legal opinions of the government, and they won't table them; they won't produce them. They claim they have legal opinions to the contrary, that it's not an infringement on constitutionally recognized aboriginal and treaty rights, but they won't produce them.
Other committees walk out. Other committees have suspended their study of a bill because the government wouldn't produce all the key and pertinent documents. The government operations committee, dealing with Bill C-25, suspended operations. There were Liberal government-side members who demanded the production of papers from the government officials at that committee, and they had the guts to insist on it.
Guess what? After three weeks the government capitulated. They produced them as of yesterday, and that committee is starting to meet again, armed with the full information that everybody should have to do justice to the issues we're dealing with.
I argue that it trivializes the important issues of aboriginal and constitutional rights to have this one-sided debate. We keep producing legal opinions that Bill C-7 infringes upon constitutionally recognized rights, and therefore it's a constitutional issue. The government says it doesn't, but they won't allow their officials to even answer the question of whether they have produced a legal opinion to the contrary. Has the minister requested a legal opinion about whether or not it really does infringe? They can't answer. So what is any thinking person left to believe? We have these compounding legal opinions.
Bradford Morse, a very well-respected professor in the faculty of law at the University of Ottawa, said:
| The definition of band funds in section 2(1) also encompasses moneys derived from non-federal sources. That then means the Minister can impose remedial measures under section 10(3) in relation to funds derived from other governments, private sources, or the First Nation's own source revenue. The justification for this extent of ministerial interference is not readily apparent. |
Bradford Morse was cautioning us or commenting on the fact that there's no readily apparent justification for the minister being able to impose remedial measures for the treatment of funds that weren't even derived from government. It may have been the first nation's own entrepreneurial economic development business enterprise that generated these funds. But if they don't treat these funds in the way dictated in clause 10, the minister will apply remedial measures, up to and including trusteeship, taking away their right to manage their own affairs.
That's a legitimate concern. I don't make this stuff up. This is law professors at the University of Ottawa, people who are arguably authorities on this subject.
What they are referring to is there is a duty for the band to disclose to anybody who asks confidential financial statements of any activity that takes place in their community. Then, under subclause 10(3), failure to disclose those financial statements to anyone, even to your competitors in business, can result in the minister taking remedial measures. This is what Professor Morse is drawing attention to.
· (0145)
The Kwakiutl District Council in British Columbia said:
| There still is a tremendous amount of discretionary power with the minister for intervention...and when you look at that power, it's very ill-defined. It talks about “a significant breach”. Well, there's complete discretion with the minister to decide when that occurs. |
There's also talk that when that happens, the minister can impose remedial measures, all the way from something agreed, to co-management, to third-party management and intervention. There's again complete discretion as to what remedial measures are taken. So when a first nation looks at this package, in many cases they're worse off than under existing funding agreements or health transfer agreements where these are better defined.
It's very difficult to challenge a ministerial exercise of discretion. So a minister determines when there's a breach and then determines the type of measure that can be taken, and there's very little a first nation can do, because the power of the minister is absolute.
This is a trend. This is a motif that we've seen develop through every piece of legislation I've ever dealt with in the five years that I've been a member of Parliament. Since I've been here, virtually every bill that gets tabled expands and enhances the discretionary authority of the minister. It seems to be on one of the “things to do” list of the Liberal Party, to enhance and expand the discretionary authority of the minister. It's a disturbing trend, Mr. Chair. It's a trend we've been cautioned about.
Again, the legal counsel for the Assembly of First Nations, their B.C. regional vice-chief, made a presentation saying:
| Section 10 raises issues regarding the appropriate degree of intervention by the federal government in the affairs of aboriginal governments. If Bill C-7 is to assist First Nations in achieving self-government, the role of the Minister in band affairs should be reduced. If there is to be a “watchdog”, it should not be the Minister or his officials. |
It's recommended that subclause 10(3) be deleted, or in the alternative, that the role of the minister under the existing subclause be assigned to an independent first nations institution, an independent role, because we've pointed out the conflict of interest that exists. When the minister has a fiduciary obligation to act in the best interests of first nations but then also is dancing to the tune of a secondary master, which is the Government of Canada and the Prime Minister...you can't do both. I think Mr. Loubier in his presentation was trying to allude to this as well. It's like putting a fox in the hen house. You can't serve those two masters and do justice to either. So if we're looking after the best interests of first nations, then the minister should really be stepping back, not expanding.
The Algonquins of Pikwakanagan suggested in their brief to this same committee that there needs to be more first nations autonomy and less ministerial interference in the areas of financial affairs.
Even the Congress of Aboriginal Peoples, who were bought and paid for to support this bill--the only Indians you can find in the country who like this bill are the ones who were paid to like it--even the Congress of Aboriginal Peoples, the boosters, the champions of this bill, dealt with “the wide powers of the minister in intervening in band affairs with respect to potential financial difficulties of a band”. They said:
| CAP therefore recommends that the discretionary powers of the minister in the First Nations Governance Act be clearly defined, and that money subject to interference not include treaty entitlements, which are protected by section 35 of the Constitution. |
So even they're cautionary, if not openly critical of this.
Again, Professor Bradford Morse, a respected authority on these subjects, says:
| It should be noted that section 10(3) arguably runs counter to this purpose by providingexpress statutory authority for the Minister to intrude upon the financial management scheme of aFirst Nation when this is a matter currently dealt with by contribution agreement. |
That's where we should have been listening to National Chief Matthew Coon Come when he made his presentation to this committee. He pointed out very clearly that all of this is contained in the contribution agreements, which are legally binding contracts, and very rigid and specific contracts.
Professor Brad Morse agrees as well. He suggests:
| Using the existing method enables the possibility ofstandards for such intervention to be negotiated such as notice requirements and the obligation toexercise the power reasonably. Although it is likely that the courts will impose similarrequirements through judicial review actions, this section should be rephrased to be more inkeeping with the purpose identified. |
· (0150)
The Chair: Thank you, Mr. Martin.
We'll now go to a recorded vote on amendment NDP-25, page 90.
(Amendment negatived: nays 9; yeas 2)
The Chair: We'll now go to amendment NDP-26, on page 91.
Mr. Martin.
Mr. Pat Martin: Amendment NDP-26: this is our 26th attempt to try to amend this bill
[Applause]
Mr. Pat Martin: I appreciate the indication of support, because we all have to admit we're getting exhausted here, and again we're doing a disservice to how serious these issues are by trying to force it through just out of spite or out of some kind of mean-spiritedness.
[Applause]
Mr. Pat Martin: I challenge the government to explain to anybody what is the national emergency about this bill. Just what is it about this bill that justifies this level of animosity, first of all, the choleric venom that's being expressed? This committee has collapsed into vulgarity, vulgar words of language and insults, threats of violence, and over what?
I really have to beg the question. I honestly can't figure out what I'm doing here at two o'clock in the morning when you can barely see the page. Certainly we're not doing justice to a piece of legislation that's going to have a profound effect on the lives of the very people who are sitting in the crowd.
[Applause]
Mr. Pat Martin: Having said that, we're going to seek some consensus on changing subclause 10(3) again. The current language in subclause 10(3) reads that the minister may carry out an assessment of the band's financial position and may then order remedial measures. We suggest instead....
[Members of the audience approach Mr. Martin and present him with an eagle feather]
[Sustained applause and chanting]
A voice: I'm proud to call this man “Brother”.
A voice: On behalf of the youth, I thank you greatly.
A voice: Thank you, my brother. You mean a lot to my people.
[Sustained applause and chanting)]
· (0155)
Mr. Pat Martin: I am absolutely overwhelmed and flattered and touched by this gesture. I don't know what to say, really. I know this is a very powerful gesture on your part. I recognize that, and I'll try to do it justice. We have a lot of support and a lot of help from the Bloc Québécois too. My colleague and I are doing our best to represent your views.
[Applause]
Mr. Pat Martin: The advice many of you gave me as you came up and graciously extended your best wishes was to speak from the heart and not from the head. Frankly, I think that is excellent advice, because what we're missing here are the values. By trying to concentrate on the rigidity of the legislation, we're bypassing the values that are important. It's an oversight, it's an omission. Plus it's just generally easier to talk from the heart than it is from the head on the complex aspects, the legal aspects of this legislation.
We've maintained all along that this is not the route, that we're missing an opportunity here in terms of developing a cooperative approach to achieving the goals of good governance in first nations communities. Again, as the national chief said in his presentation to the committee... he wanted to set the record straight. I can almost quote him verbatim, because I've read his statement enough times. He said, “I wanted to set the record straight that first nations have no objection to transparency and accountability and all of those issues this bill professes to be about”.
The fact is, many observers believe that the bill has very little to do with transparency and accountability and has more to do with some other objective. That's not the main goal, that's not the main function of the bill. It's a Trojan Horse type of legislation. That's why objective observers, people from various communities and walks of life who have made a detailed analysis of the bill, have found it to be lacking and have found it to be disrespectful of what is currently going on in first nations communities.
Even more important, they have found it to be unnecessary and even counterproductive. If the intention is to enhance good governance and to augment good governance practices among first nations communities, this is not the way to go about it. That's been made abundantly clear. If that is the legitimate concern and the legitimate goal of the government, then a bilateral approach, a nation-to-nation approach, is the structure that would be agreeable, instead of one side with a clear bias using its overwhelming advantage to impose circumstances on the other party. It's an abuse of power and a lack of respect.
¸ (0200)
With what moments I have left, Mr. Chair, I would simply like to make it clear that in the opinion of the Indigenous Bar Association, who made a detailed analysis and contribution, if the interest is in accountability issues as they pertain to the administration of band governments, the criteria that must be dealt with are independence, fairness, respect, efficiency, and accountability, and you'll notice the order—
The Chair: Mr. Martin, thank you.
Monsieur Loubier.
[Translation]
Mr. Yvan Loubier: Thank you, Mr. Chairman.
I'm still very moved by what I've seen. I'm still very moved because, for those who know what it means to receive an eagle feather such as that, it's the ultimate tribute that the Aboriginal nations usually pay to their own. The symbol of the eagle is that, since it can fly over the world, it can have an overall vision of reality, in addition to being able to see what is good in the past, present and future and to give force to that vision. I believe, Mr. Martin, that you've just been paid an extraordinary tribute. That's because you saw matters clearly when you defended the First Nations with your amendments to Bill C-7 and elsewhere as well. So it's a great honour, and I am proud to work with you, because there you have the symbol of the strength given by the eagle. It's an honour that I one day hope to deserve.
A voice: You do.
¸ (0205)
Mr. Yvan Loubier: So we are all brothers and sisters, if I have understood correctly, and it is for our Aboriginal brothers and sisters that we are fighting today and that we will continue to fight to the end so that this bill is burned before Parliament.
I find the amendment by Mr. Martin, who has inspired this broad vision that the eagle can give us, is a wise amendment, to the extent that it removes the minister from the place where he has no business being and replaces the minister's prerogatives with prerogatives of the band council. It is the band council that must make the decisions for its members. It's not the minister who must make decisions for the band council. That's not how we contemplated the future of our relations with the Aboriginal peoples.
The future of our relations with the Aboriginal peoples lies in an equal, nation-to-nation relationship of mutual respect and restored dignity for the First Nations, and with different economic, social and even cultural prospects from what we have seen. That was a disaster over 130 years. So the fact that the council can assess the situation... The council is the only entity capable of assessing the situation because the council is made up of expert members of the First Nations. It is they who experienced the reality of the First Nations. The minister, in his ivory tower here in Ottawa, and with his arrogant and cynical approach to the Aboriginal peoples, has no business making decisions for them. He has no business assessing the situation to which he contributes, a situation which deteriorates year after year with regard to the financial resources of the First Nations.
I believe your amendment constitutes an accurate vision of what the mandates given to the right persons should be, that is to say to the persons who are there to defend, to manage, to make decisions on behalf of the First Nations because they themselves are members of the First Nations. It is not up to us to tell them anything; it's up to them to decide what they must do and what is good for them.
I can't understand how this type of amendment can be introduced from a simple reading of this bill because recognizing the inherent right of self-government and Aboriginal treaty rights comes naturally. We have that so much in our minds because we are so convinced, from the bottom of our hearts, that the only possible future is the one in which there are, in our relations, a mutual respect and support that we can give to the First Nations to achieve their societal choices, to achieve their economic objectives, their social objectives, their objectives of developing the resources which we will one day return to them after having stolen them. After having stolen their resources and lands, we will one day begin to restore what we have stolen from them and we will do it as soon as possible so that the First Nations can truly have their resources to develop them themselves and so that no minister of Foreign Affairs, in 10, 20 or 30 years, will have anything to say about their future, about the way they should do things, about what is good or what is bad for the representatives of the Aboriginal peoples.
It seems to me that it is time this apartheid system ended, as it has ended in South Africa. We can denounce apartheid in South Africa and the liberation of the South African peoples as much as we want, but when we look at matters here, it's still a situation in which the First Nations are subjugated. There are very pretty words in this. There are words written in an utterly modern manner, which, at first glance, seem inoffensive.
¸ (0210)
This is a statutory instrument which states that the First Nations have rights, that the First Nations are nations, etc., but, in actual fact, we are still placing the Aboriginal peoples under trusteeship, perhaps for another 100 years, as was done with the Indian Act. It's quite incredible.
But we, as evolved human beings, must not let a bill such as this pass. We must denounce it in all forums. We must fight so that the bill falls, and I believe we have many arguments to convince our Liberal colleagues. They need only be a little more open-minded, a simple expression which makes it possible to understand many things.
To date, there has been closed-mindedness, but it seems to me that the demonstration we have seen for a number of months, on our tours and here in Ottawa in the past two days, is enough to convince the government that it must back away from this bill. It must not pursue the measures it has taken in the past few weeks or even months regarding this bill because it is not a good bill. It is not a good basis on which to begin with the First Nations new relations which are valid, which will produce results and which will ensure that we can develop in a partnership in mutual respect, with a return of the dignity lost among the First Nations. It's not a bill such as this one that we need. The clauses it contains are rubbish from A to Z.
[English]
The Chair: Mr. Epp.
Mr. Ken Epp: I appreciate what the honourable member from the NDP is trying to do here to reduce the power of the minister over the bands' financial dealings. That's a good thing; that's legitimate. However, I will take this opportunity to explain why I will not be supporting this particular amendment, and that is because it says “A Council may carry out an assessment of a band's financial position”. Well, it's the council, in my view, that's managing the thing, so really this is a supreme case of the coyote being put in charge of chicken coop security--unless I'm mistaken here, but this is how I interpret it.
I would like to see some mechanism instead that would give the people of the band the ability to trigger this. I think they know better than anyone. They're the ones we hear from in those few odd cases where things go awry. Then we hear from the grassroots people, the ones who are not getting their needs met, that there has been a breakdown in the financial management of the band.
If they had the ability to trigger the assessment and so on by whatever means, that would be legitimate. But to ask the council itself, in the event the council is mismanaging the money, to suddenly wake up and say, well, we'd better investigate ourselves, I don't think is too likely. I see this as a flawed amendment with good motivation and a good purpose, but it just isn't the way to do it, and I won't be able to support this for that reason, Mr. Chair.
The Chair: Thank you, Mr. Epp.
Could we have your closing remarks, Mr. Martin?
Mr. Pat Martin: Thank you, Mr. Chair.
The point to this whole exercise and our seeking to amend this clause is simply to get the minister out of people's lives. That's as plain and simple as we can put it. We're disturbed by a trend that we see in so many pieces of legislation in recent years, where not just this minister but whatever minister is in charge of that portfolio seeks to bypass process and augment or expand the discretionary authority of the minister. That's got to stop. It's unfair to parliamentarians. It's undesirable from a basic democracy point of view, and in this case it's completely unfair to the people over whose lives he has supreme control, especially when you consider that it runs contrary to the promise made that the FNGA would be a step toward recognition of the independent and inherent right to self-governance and self-determination and to get out from under the oppressive control of the minister and the Indian Act.
In this particular bill, the council may carry out an assessment, just like a city council strikes, frankly, and a corporate boardroom strikes an audit committee. It's not unusual for certain members of a corporate board of directors to be charged with the responsibility. Sometimes they're called financial oversight committees. These kinds of internal review are not unusual, and in our view it would be preferable to having the minister or the minister's delegate intervene in that behalf.
I would like to clarify a quote that I made earlier from National Chief Matthew Coon Come. I was looking for a specific quote, and I want to be accurate to enter into the record the comments he made regarding accountability measures. He said:
| I want to dispel this notion that first nations are against accountability, or not accountable for the funds that are allocated to us. I want to show you an example of a contribution agreement. |
With that, he held one up. I have copies of them, too, photostatic copies of contribution agreements. With all the funds that have been allocated to the first nations and any organization, we always have a contribution agreement, and that contribution agreement outlines the areas we're going to have to live up to. It's actually called an accountability framework. This is a legal contract and it talks about transparency.
And the national chief went on to read segments of the document requiring the maintenance of financial records, the preparing of financial statements, the audits, the budgets, and the requirements of the council to develop, implement, and maintain conflict of interest guidelines. And the end of his comments were “What more do they want from us?” It seems clear to me that a lot of work has been done in this regard, and people are operating to a certain level of proficiency already without expanding the role of the minister in the way that it interferes.
Again in a similar vein, trying to explain their opposition to this clause and others, the chiefs of the Ontario organization represented by Charles Fox made the point that “Bill C-7 is inconsistent with the inherent rights of self-government as recognized by section 35(1) of the Constitution Act” and therefore the bill is unconstitutional. And he points out, by way of explaining this, that the inherent right to self-government is a full box, not an empty one. That is to say, first nation governments have jurisdiction and authority independent of the federal and provincial governments, and that jurisdiction must include the basic internal elements of government, such as leadership selection, government organization, financial administration, and local law-making.
¸ (0215)
It is precisely through these most intimate aspects of local government that Bill C-7 runs amok. It tells first nations how to select leaders, how to run a local government, how to report financially, how to pass local laws. The bill treats first nations as near federal municipalities, and this has been a recurrent theme in many of the objections that it reduces the status or it implies that the inherent right to self-government is an empty box until such rights are vested upon them by virtue of being devolved from the federal government. And that's a mistake. That's a fundamental error. Those rights are there and they exist currently. They need to be recognized, is the only fundamental difference.
Voices: Hear, hear!
Mr. Pat Martin: So when we hear the government even misusing this terminology, by saying that we intend to transfer jurisdictional authority to first nations over time, that in itself is an arrogance, because it misrepresents. This is not something to be given. This is not like the devolution of authority from a federal government to a provincial government over labour market training. That's a devolution of power from one jurisdiction to another. No one can accord first nations inherent rights they already have. We just need to recognize them and to behave accordingly.
Charles Fox tried to make this point clear, and I think he did quite clearly. I'm simply not sure it resonated with the people around this table. That's why, if I tend to be repetitious, I'm trying to restate these things until we see a glimmer.
When you buy advertising in an advertising campaign, they sell it by virtue of rating points. That means that a person has to hear something ten or eleven times before they truly remember it, whether they're radio spots or TV ads. Maybe we need to keep repeating these facts, these truisms, enough times before the Liberal side starts to at least acknowledge some of these basic truths.
The mechanism of the default codes is of great concern. Perhaps I'll save that for the next amendment we'll be talking about.
But let me say in closing on clause 10, because I think this will be our final opportunity to address clause 10, that having a council be the one to carry out an assessment of a band's financial position is the appropriate organization to make that assessment. In fact, it is the only organization that's entitled to make that assessment other than auditors that are hired by the council or agents of the council or perhaps professional people who are chosen by it.
Our amendment argues that if the council considers it necessary, then the council may require that remedial measures be taken, and those remedial measures may include outside intervention or a self-imposed trusteeship, or an interruption in the ordinary management of financial affairs until such time as things are brought into compliance with the financial management codes.
My proposal doesn't disregard the importance of remedial measures when necessary, but it stresses that it's the council and not the minister who deems that remedial measures need to be taken. That's the fundamental difference. And I would argue with Mr. Epp that it's an important change. It's a fundamental philosophical shift that is larger, even, than the simple change to this simple clause.
This task, we agreed, could also be assigned to an independent first nations institution. That might be something that would be of interest if these new financial institutions are to be created. It may be that such would be the body that a council would look to for support and assistance in the administration of funds, if it came to pass.
All of this, of course, is hinged upon the possibility that an oversight or a significant breach to a rule respecting a deficit or a debt occurred. The significant breach would be determined by the council. These are elected officials who are accountable to the people in the community who elected them. We believe that this is the chain of accountability that must exist in a community if it's to be a healthy relationship and not one that resents the intrusion, the outside interference of the heavy hand of the minister.
¸ (0220)
I feel comfortable that we're on the right path with an amendment like this. It may even be one of those gestures of goodwill that perhaps turns the corner on our treatment of this bill, the entire bill. It's not only clause 10 into which we seek to introduce similar measures. There are going to be many other amendments put forward down the road. We should follow through on the commitment made by the minister that the goal and the objective here is to foster the independence of first nations communities in the conduct of their own financial affairs and to get the minister out of the faces of first nations as they're trying to conduct their affairs. We should minimize the role of the minister, who has other duties than to butt his nose into first nations—
¸ (0225)
The Chair: Thank you, Mr. Martin.
(Amendment negatived)
The Chair: On amendment BQ-27, the committee is not authorized to accept it because it is a financial matter. So I will rule it out of order.
[Translation]
Mr. Yvan Loubier: Mr. Chairman, I have a point of order.
May I have the exact reasons why my amendment was negatived? We're talking about creating a position of First Nations Auditor General, who would be selected by the First Nations. Instead of the minister sticking his nose into their affairs, an Aboriginal auditor general would be appointed.
The Chair: All right, I have your question. We're going to find the answer.
Ms. Joann Garbig: I refer to page 665 of Marleau and Montpetit:
| An amendment shall not encroach on the Crown prerogative in financial matters. |
[English]
The Chair: I was about to say that had I wanted to play games, I would have accepted that one, but it would probably have been voted down and Mr. Loubier would have lost. Because I didn't accept it, Mr. Loubier is now able to present it in the House, so that opportunity still remains.
Mr. Vellacott, do you have a question?
[Translation]
Mr. Yvan Loubier: Wait just a second. I have a question on what you just said.
Le président: That's all right, we'll come back to you.
[English]
Mr. Vellacott.
Mr. Maurice Vellacott: I hear what you're saying and I appreciate the remark, Mr. Chair.
If this is under the present Auditor General, is it expenditure of new money? Is this a buried assumption here?
The Chair: You can't set this up without money; it can't be done without money.
Mr. Maurice Vellacott: If it's under the present Auditor General, would a new expenditure of money be necessary?
The Chair: The office of the first nations auditor general would be your answer. There is no first nations auditor in existence now, so it has to be a new....
Monsieur Loubier, do you have a question?
[Translation]
Mr. Yvan Loubier: Yes, I have a question. Does that mean I can table an amendment like that in the House without violating the Standing Orders, even if it has financial impact? I don't understand why it has financial impact here and I can't introduce it, whereas, in the House, it always has financial impact and I can introduce it.
Ms. Joann Garbig: Yes, but the amendment as such is inadmissible for the committee because it lacks the Royal Recommendation.
Mr. Yvan Loubier: But I could table it in the House and that wouldn't cause a problem?
Ms. Joann Garbig: Yes, but you will always await the Royal Recommendation in the House, and, if it is not forthcoming, the amendment cannot be accepted. But it is always possible to introduce it.
Mr. Yvan Loubier: All right, I'm going to table it in the House. That's good.
[English]
The Chair: Mr. Hubbard, on amendment G-2.
Mr. Charles Hubbard: Amendment G-2 is brought forward by the department. We're attempting to further define this bill in terms of another bill that is before the House, Bill C-19.
In subclause 10(3), the change will read:
| The Minister, or person or body designated by the Minister, may at any time carry out an assessment of a band's financial position, and if the Minister considers it necessary, the Minister may require that |
Perhaps one of our legal staff could explain it further.
Just very briefly, it means that the minister himself may not be directly involved with a first nation that has financial difficulties, but under Bill C-19 a mechanism will be set up, by which members of first nations communities who will be looking at possible financial difficulties that first nations would encounter.
So maybe Andrew or Warren could speak further on this.
¸ (0230)
The Chair: Mr. Beynon.
Mr. Andrew Beynon: Thank you.
As subclause 10(3) is currently drafted in Bill C-7, it provides for an authority of the minister to “carry out an assessment”. So the first aspect of this proposed amendment is to provide the minister, or a person or body designated by the minister, a specific authorization by statute to provide for a delegate, or somebody other than the minister. Mr. Hubbard spoke to the intention regarding institutions that may be established under Bill C-19. The language is flexible enough to be slightly broader than that.
There's a second feature of the proposed amendment, saying that the minister may, at any time, “carry out an assessment”, etc. It really isn't an amendment that changes the substance of subclause 10(3). It is merely a clarification of the existing wording, and hopefully a clarification that just makes the drafting clearer.
As it is right now, the issue is that subclause 10(3) provides that “The minister may carry out an assessment...and, if the Minister considers it necessary”, he may require that steps “be taken when any of the following circumstances becomes known”. There are a few too many “ifs” and “whens” in the current drafting.
So the amendment just makes it clearer. Again, it's just a clarification and it doesn't change the substance of what the opening words of subclause 10(3) are right now.
The Chair: Monsieur Loubier.
[Translation]
Mr. Yvan Loubier: I don't agree at all with this amendment. Moreover, I did not agree with the initial wording in which powers were given to the minister, who is both judge and executioner in the case concerning us. And here we're giving the minister the power to appoint a person or an organization to assess the band's financial situation and require remedial measures.
As Pat Martin remembers, we were on tour at one point and we realized that there were what are called third-party managers, people who are paid $60,000 to manage reserves on a part-time basis. This amendment would merely make official, reinforce the minister's power to appoint people who probably earn—that investigation will have to be taken further—a fortune as third-party managers, with incredible salaries and pay of $60,000, working part time; very few people do that. And in the meantime, what you find in the First Nations communities is a flagrant lack of resources. So when you talk about strengthening this subclause by giving the minister, who is already causing enough damage to the Aboriginal communities, the power to appoint other persons who will continue causing more damage, I don't accept that.
Furthermore, I still bear in mind that, when you have provisions such as that, this concern is present in all bills, when we have specific clauses, it's because we're dealing with specific problems. In this case, the situation has purportedly been assessed and the situation calls for the minister to have an incredible power because there are problems in funds management by the First Nations. There is purportedly a problem of reporting, transparency in management, etc. All the bills I've seen in the past 10 years, as a member, all contained in their clauses justifications, analyses and studies explaining that the situation was widespread, that remedial action had to be taken, and presented that remedial action.
In the case of funds management by the First Nations, I find it odious to place the emphasis on clauses such as these and to give the minister the power to assess the situation and to require remedial measures, when the First Nations generally manage the funds allocated to them admirably. In addition, 93 percent of First Nations submit annual audit reports, which means that only seven percent do not submit them. So it's only a minority that have problems.
To correct the situation of a minority, we're introducing a general bill with a description that suggests that the problem is widespread. That's what I find unacceptable, among other things--there are many other things--in this bill.
When we heard witnesses, the very few witnesses who were in favour of Bill C-7 always read the statistics backwards; they said that things were going poorly because 25 percent of the First Nations had problems managing public utilities. But, in statistics, you're taught that, if there are problems in 25 percent of cases, that means that things are going well in 75 percent of cases. So why don't you use the statistics regarding the 75 percent of cases in which things are going well? Is it because it justifies taking measures such as this, which violate the will of the First Nations, because you have specific statistics that are negatived by that represent the minority of cases. Are we being presented with these negative aspects in order to sell a bill that no one wants? Could it be that?
¸ (0235)
Very few people in the general public know that 93 percent of Aboriginal communities file audit reports. Very few people read, for example, the reports of the Auditor General of Canada, which contain information of this kind, or the Erasmus-Dussault report. That report should have been promoted and defended and it should have been explained to the public what the current situation of Aboriginal peoples is and how we should act in the coming years in order to improve things.
The general public does not have this type of information. And this bill does not help inform the public properly about the situation of the First Nations or about solutions to their problems. Nor does it help increase awareness of the fact that they have rights, rights that Bill C-7 abuses and runs roughshod over.
Very few people know that, and a number of persons have an opinion based on certain prejudices that have been conveyed over years and years. Sometimes you hear them. People will also rely on certain impressions because they may not have all the necessary information to understand the situation correctly.
This bill, and statements of the kind the minister has made in recent weeks, reinforce the impression among the public that, if things are going poorly among the First Nations communities, it's because they have problems with fund management, transparency, democracy, that there are problems in the conduct of their meetings and there is corruption.
The public's perception of the situation is based, to the extent of 95 percent, on such impressions. The federal government fuels prejudices by introducing a bill such as this one and showing cynicism and arrogance, as its Minister of Indian and Northern Affairs has done in recent weeks. Fueling prejudices serves the government well because it enables it to pass a bill such as this one.
I'm completely opposed to the government's amendment. It would be adding insult to injury. Not only would it grant the minister discretionary authority, but it would enable him to appoint people who would have discretionary power enabling them to act against the will of the First Nations.
I'm going to vote against this bill. I'm convinced you're wrong in introducing this amendment. I'm speaking from the bottom of my heart because I'm deeply convinced of this. I don't think it is normal, in 2003, for the Minister of Indian Affairs to be still exercising this kind of control and to have this power of trusteeship.
This amendment provides not only that the Minister of Indian and Northern Affairs has such a power of trusteeship, but it could make it possible to extend that power to other persons. Remember the situation that very much struck me and that is taking place in Manitoba, I believe. We were told of the case of a reserve where a third-party manager was paid $60,000 to manage funds on a part-time basis. We were also told that, regardless of the band council's decisions, it was the third-party manager who decided on the allocation of funds. Those funds could even be distributed and spent on items that were not considered priorities by the band council or by the Aboriginal population of that community.
I refuse to support the government and its desire to make such a role official and to grant the minister this incredible power of life and death, to all intents and purposes, over a community, and this power of appointing people to do the dirty work in his stead.
I believe that today, in 2003, we have gone beyond that and that we should display respect and a civic sense. We must help Aboriginal peoples achieve their aspirations and not impose anything on them based on our values or on the scheme or vision we may have of economic, social and cultural development. We should impose nothing on them. We must work with them, offer them compensation for the harm we have caused them and negotiate their self-government.
¸ (0240)
Those are the real things. Those are the real issues.
[English]
The Chair: Thank you, Mr. Loubier.
Mr. Epp.
Mr. Ken Epp: I find this a curious amendment, because over the years when I've been here in Ottawa, I have noticed a lot of bills that say the minister may make regulations or the minister may do something, yet it's recognized that the minister doesn't do it personally.
Then I look ahead in this same bill, on page 22, clause 47. It says:
| The Minister may make expenditures out of the capital moneys of a band in accordance with band laws made pursuant to paragraph...for the purpose of making payments to any person whose name was deleted from the Band List of the band in an amount not exceeding one per capita share of the capital moneys. |
The government did not put in a similar amendment--the minister or his designate. So this means we are now expecting, in the case of clause 47, that we will physically have the minister getting out of his chair, getting on an airplane, going in a car down to a band. He's going to take the capital money out of the band, then he's going to make that money payable, and he's going to have to go to the city, or wherever that person who was deleted from the band list is, find that person, and deliver the cheque to him.
I think if we approve this amendment, which specifically says it can be a person designated by the minister, then it implies that in that same bill, when the wording isn't the same, the minister now must indeed do it personally, whereas in the past it has always been sort of accepted that when it says “the Minister may do...”, it means the minister or his designate. That's always been accepted. But if you say it specifically here in clause 10 and you don't say it in clause 47, then I think the argument could be made that he would now have to do this one personally.
Please explain.
¸ (0245)
Mr. Andrew Beynon: In a bill where there's a reference to a minister, a standard principle of law, as you're suggesting, is what's typically called the Carltona doctrine, referring to an old English case. Basically it's that a reference to a minister in a statute doesn't normally mean it is the minister himself who has to--using your example--get on a plane and do something in his personal capacity. There is usually an understanding that there are typical agents for doing that. It's understood that ministers carry out a variety of their functions through officials of a department--sometimes deputy ministers, sometimes a lower delegation within a department. That would likely operate for clause 47.
The amendment here.... Let me back up. Subclause 10(3), even if it stays as it's in the bill right now, “The Minister may carry out an assessment...”, could be typically done by departmental officials or pursuant to authority and delegation by the minister, along those normal lines.
What this amendment does is say “the Minister, or a person or body designated by the Minister”. This allows a broader-than-usual delegation of that minister's authority outside of the department to a first nations institution, such as the one Mr. Hubbard mentioned.
So with both of the provisions in place, even if you have this amendment, subclause 10(3) will be read so as to provide for a broad capacity to delegate. Clause 47, in referring to the minister, would be the typical delegation within the department.
Mr. Ken Epp: Then I would ask either Mr. Hubbard or some other Liberal member, or one of the officials here, if they're still awake--keep those eyeballs hanging up over the cheekbones there--for an explanation. When you look at it here, the task is that of carrying out an assessment of a band's financial position. Now, who do we anticipate is going to go to the reserve, to the band council offices, and carry out that assessment? Who is anticipated to do that?
Mr. Warren Johnson: If I could, the minister already referenced in the House at first reading that this bill paves the way for the establishment of first nations institutions to support those functions. There are some specific institutional proposals being put forward as amendments here, some of which--as the chair has ruled--may have to be deferred to second reading in the House.
As well, there is Bill C-19, which this committee, as I understand, will be looking at subsequent to its review of Bill C-7, which will establish a set of first nations institutions on that first-nations-led initiative. One of those is a financial management board.
So once this legislative process has unwound a bit and there is clarity on both the authorities and institutions being established, there is--as I think a number of the members have referenced--the opportunity to look at taking these authorities through the mechanism proposed by this amendment.
The Chair: Mr. Lee.
Mr. Derek Lee: I have a point of order.
I have a member of the public here, Mr. Chairman, directly opposite, lining up his camera and taking a photograph of me. I raised this once before. I'm going to raise it again. It's a gentleman wearing a red shirt. I would appreciate not being harassed by cameras.
Could I ask you to take care of that, Mr. Chairman, right now?
The Chair: I want all the cameras removed from the room.
Mr. Derek Lee: Mr. Chairman, either the camera goes or the man goes, or both, but I'd like you to deal with that now.
A voice: Oh, my God.
A voice: The party can go.
The Chair: We will suspend until we solve that problem.
¸ (0249)
¸ (0255)
The Chair: Mr. Epp.
Mr. Ken Epp: Thank you, Mr. Chairman. I'd like to carry on, if I could.
This amendment specifically says that the minister, or a person or body designated by the minister, may do this. I'm going to be voting against it because I honestly believe the accountability should be coming not from the minister in this case, but from the grassroots of the natives. That's how this should have been written. So this whole section, instead of saying “the minister this, the minister that”, I think should have said, for this kind of accountability, it should come from the grassroots natives themselves. There should have been built into the bill a mechanism whereby that could have happened. I think that would have been much better. Therefore, I'm not going to be able to support this amendment for that reason.
With that, Mr. Chairman, I'd like to reiterate again that I know all the members of the committee have been working very hard and long hours. I have been here as a substitute today; this is not my normal committee. I have been up now for 21 hours. My eyes are literally painful, and I realize that one of our friends there did take a picture of me when my eyes were closed. I was wide awake, alert, listening to the statement. I really was, folks, but my eyes hurt, physically, and I had them closed at that time.
I'm going to be very sorry if that shows up in the media, because it's an unfair representation. It's no different from when somebody has a broken leg and they put their leg up. My eyes are literally burning right now, and I want to quit.
Therefore, I'm once again going to appeal to my fellow members. We are all very, very tired. I don't think we can do good work. We cannot do this work justice. And I would like to appeal to members, please, to vote in favour of my motion that this committee now adjourn.
The Chair: We have a motion to adjourn.
(Motion negatived)
The Chair: Mr. Vellacott.
Mr. Maurice Vellacott: We just finished amendment G-2. Don't you move to NDP...?
The Chair: Pardon? We are on amendment G-2. You asked to speak on it.
Mr. Maurice Vellacott: Oh, okay. I'm taking a pass on it now, actually.
Mr. Pat Martin: I asked to speak on it.
The Chair: You're passing?
Mr. Maurice Vellacott: I'm taking a pass.
The Chair: Then Mr. Martin.
Mr. Pat Martin: Mr. Chairman, this is an indication of the trend of the government in its treatment of this bill. We complained and numerous presenters complained that clause 10 already enhances and expands the role of the minister in a way people are critical of. We tried to take steps to change that, and they voted down the amendments we proposed, amendments that would minimize the impact of the minister, and instead put the onus and the burden of accountability onto the band council, where it's currently vested.
Unbelievably, the government side wasn't even satisfied with subclause 10(3) as it stands, and they want to extend the minister's prerogative even further by now suggesting adding language with not only the minister but “a person or body designated by the Minister”. This is not surprising, because a lot of us recognize that when you see the minister referred to, it's really the designate of the minister who'll be applying the work. But then the person “may at any time carry out an assessment of a band's financial position and, if the Minister considers it necessary, the Minister may require”, etc., that remedial steps be taken.
What we have here is that by clause 10 the Minister of Indian Affairs acquires a new statute-based power to audit without cause at any time throughout the year or repeatedly throughout the year, often infrequently, and to impose remedies that are undefined—remedies that are limitless, essentially, because they're undefined—without any due process, any avenue of recourse, or any appeal mechanism. There's virtually nothing a first nation can do in a situation where the minister or his designate may arbitrarily and unilaterally decide at any time to waltz in the door, demand to see the books, and conduct an audit.
That's not just absolute power, that borders on fascism. You can almost hear the jackboots slapping together as the storm troopers kick your door in and demand to see your books. This is indefensible. I challenge the parliamentary secretary to defend why the minister needs these additional powers.
Where is the crisis? Where is the urgency? Show us the examples. If we were allowed to see the government's own internal documents supporting this bill, I suppose we would at least be able to argue those points, but they're unwilling to divulge even the justification and the rationale.
Now, I understand that Liberal-side members have workbooks developed on their behalf that have not only the clauses but the rationale and justification, with printed material to explain and to defend or justify why they thought this clause was necessary. We're not given those documents. We're at a complete disadvantage here. I've sat on other committees on other subjects and other bills where those working documents were available to all members on the principle that we're more likely to develop quality legislation if at least we're all starting from the same base level of information. Then the merits of the case will be self-evident and people can argue them and agree or disagree. But what are they trying to do here, and what are they trying to sneak by? It's not paranoid for people to assume there's some Trojan Horse, secondary objective going on with this bill when they won't even share the basic brief notes associated with each clause with members of the opposition. I don't understand that.
I think it's cause for celebration that there's coffee arriving, though. I think somebody cleaned out Tim Hortons.
I think that now, instead of as an aspect of a contribution agreement or instead of as an aspect of policy or even as a practice of the department as it stands, the minister has now acquired a new statute-based power to audit without cause and to impose undefined remedies without due process. It's this kind of odious provision that was removed from the Indian Act in 1951. We're going back to the future here.
It's only once every 50 years we amend the Indian Act; in 1951 they removed these very provisions and in 2003 we're putting them back in. In the year 1951 some attempt was made; it became indefensible to have some of the most odious aspects of the Indian Act in a modern society. Well, now for some reason, because of some imaginary need or urgent situation that has never been explained to us or to the people it affects, we have this brand-new, heavy-handed authority to intervene.
Maybe if I had that book... maybe there are a thousand cases of abuse listed in the pages of the parliamentary secretary's book that justify why this kind of jackboot, fascist approach to compulsory audits is justifiable, but nobody shares that information with us.
Now, if we were a committee with any intestinal fortitude, we would refuse to continue in the clause-by-clause analysis and study of this bill until we had all the information that is necessary, just like the Standing Committee on Government Operations, led by Liberal-side members—albeit Martinites, I presume. They insisted on halting, saying cease and desist in the study of the bill until the government divulged all the research documents and papers they had concerning the government operations bill.
I would argue that as much as I think the public service act is an important piece of legislation, it pales in comparison to this bill. This bill is dealing with weighty constitutional issues and with potential constitutional challenges. This bill deals with the infringement of human rights and international conventions on human rights and the right to self-determination, covenants Canada is signatory to.
These are serious issues, yet we're being denied... I think it's a breach of my privilege as a member of Parliament, frankly, to be denied access to documents the other side has access to. I'm not able to do my job properly unless I know and can see the legal opinions that form the basis of the government's position. If this were a court of law, you'd have the first stage of a courtroom hearing, the discovery stage, where both sides have to table what evidence they have and exchange it with the other party.
In the interests of getting to the truth, in the interests of crafting something meaningful here, we should hold ourselves to the same standard. I suppose that if we were smart, we would find a couple of Martinites on the other side who were willing to stick their neck out to insist on dealing with the democratic deficit that exists in the House of Commons today, because this is surely an example of a democratic deficit. I know of no better example I've been exposed to since I've been sitting as a member of Parliament.
Now, not the least of the problems associated with this is that this will be challenged too. We will be burdening... I would say that by November 15 we'll have a new cabinet lineup. If we have a new prime minister by November 1, we'll have a new cabinet lineup by November 15. There'll be a shakeup here, and by that time Bob Nault will be such a hot commodity, he'll be such hot goods, that any newly elected prime minister will be in a big hurry to get out from under that kind of mess. Nobody would want to be associated with it.
We can pretty much predict there's only a few months left we have to deal with this minister. But what we're doing is, we're saddling the new minister with an unworkable piece of legislation, one that's going to be nothing but headaches, nothing but problems, with a population out there, 700,000 people, who are so angry that... If it's not civil disobedience, it's certainly going to be civil unrest in Indian country, because that's what we've been advised. There hasn't been such hostility since the Oka crisis is the way it's been expressed to us. We're tempting fate.
Now, this amendment, if anything—
¹ (0305)
The Chair: Thank you, Mr. Martin.
Mr. Hubbard, could we have your closing remarks.
Mr. Charles Hubbard: Mr. Chair, we've spent a lot of time on a very short issue. I think we're ready for the vote.
The Chair: Recorded vote on G-2, page 93.
(Amendment agreed to: yeas 7; nays 4)
(Clause 10 as amended agreed to: yeas 7; nays 4)
(On clause 11--Designation of authority to hear complaints)
The Chair: On clause 11, NDP-27, Mr. Martin.
¹ (0310)
Mr. Pat Martin: It's my turn again.
Mr. Chair, clause 11 in its form as we find it in Bill C-7 deals with the designation of authority to hear complaints and grievances. It says:
| The council of a band shall, by band law, authorize an impartial person, or an impartial body established under section 18, to consider fairly and expeditiously any complaint by a member of the band or a resident of the reserve. |
The language we seek to amend in clause 11, on requests from a number of people who made representation to this committee—again our amendments are faithful and accurate reflections of what we were told and what we heard in our cross-country tours, Mr. Chairman—would be to remove the reference that “a band shall, by band law, authorize an impartial person”. We suggest language that says “The council of a band may” authorize an impartial person or body to serve in this position of considering complaints, being the authority to hear and consider complaints.
Again, we don't make this stuff up. We listen to what people tell us on the tour. If we see merit in what they tell us, we try to faithfully reflect that here at the committee.
The Assemblyof First Nations, Office of the B.C. Regional Vice-Chief, in their presentation suggested that it may be very difficult for small communities to comply with the provisions regarding conflict of interest. In some cases it may be impossible to appoint an ombudsperson who has no familial or other links to the dispute, yet who has knowledge of the community and its values. Seeking an arbitrator from outside of the community may not be consistent with the principles of self-government. This provision might also prove to be costly.
Bradford Morse, who we've referred to earlier and who is a professor of the faculty of law at the University of Ottawa, says that the provision is compulsory, which is unfortunate and unnecessary. In the opinion of Professor Morse, the FNGA can readily confirm the right to inherent authority of first nations to establish partial entities to hear and decide complaints of this nature without imposing it as a mandatory obligation on all first nations.
Again I refer to this cookie-cutter template approach of one size fits all. It's not appropriate and it doesn't recognize the diversity of first nations across the country. It shows a wilful blindness to the fact that there's a vast spectrum of first nations communities across the country that may be bound and obligated by this particular clause in clause 11.
The obligatory, prescriptive nature of this particular clause is in direct contrast with a commitment made by the minister when this bill was introduced. It became an issue of good faith. The commitment made to us, as fellow parliamentarians, and to first nations, as the object of all of this activity, was that this legislation would not be prescriptive; it would be anything but prescriptive. In fact, that was one of the arguments for sending it to the committee at first reading.
We have to remind the committee that reviewing this bill before second reading is for the specific purpose of addressing the principles of the bill, not the prescriptive details of the bill. The principles have not been locked in place. That's the advantage of getting this bill at first reading: the principles are still being discussed and established, and language should be crafted in keeping with the principles and values of the bill.
When you compare the clause language of the bill to the preamble and the purpose clauses of the bill, there's a glaring contrast. For all the flowery language associated with introducing this bill, we now find restrictive, rigid, prescriptive language that's completely in contrast with the commitment made.
¹ (0315)
A government amendment that we'll be dealing with tinkers with minor issues. We're dealing with.... No, I'm sorry. It's a separate matter we'll be dealing with next time.
What I'd like to point out, again following through on Professor Morse's comments in more general terms that “Bill C-7 falls far short of the ideas generated by the predecessor to this committee in 1983, with the Penner report”, we're fortunate to have with us today one of the co-authors of the Penner report. It's really the Penner-Jamieson report. Chief Roberta Jamieson is in the audience tonight, patiently waiting to see if any of the wisdom from the Penner-Jamieson report finds its way into these amendments to the Indian Act.
More recently, “Bill C-7 falls short of ideas developed and generated by the final report of the Royal Commission on Aboriginal Peoples”, Professor Morse outlines. He goes on to say that the bill does not attempt to do all of those elements of the royal commission recommendations. “Furthermore, Bill C-7 obviously does not reflect a consensus among first nations as to how they see federal law evolve, if at all”.
It would be argued, no doubt, by some before this committee that Bill C-7 does intrude upon section 35 rights, such as the duty to consult that has been evolving through the courts, and that this has been violated. That should raise a concern and an alarm, because the justification requirements in recent Supreme Court rulings that deal with the infringement on section 35 recognized rights require consultation and accommodation to take place as a prerequisite for any infringement on those rights. We know that didn't take place.
I'm learning a great deal, frankly, about Supreme Court rulings as they pertain to aboriginal issues from some of the presentations made by experts in the field. I think one of the reasons this bill is so fundamentally flawed and is meeting such opposition is that the government deliberately bypassed the very authorities on these issues, which is the leadership in first nations communities who have dedicated much of their life to getting their minds around the intricacies of the Constitution as it pertains to aboriginal people, who fought through the repatriation of the Constitution to ensure that aboriginal rights were specifically cited in the Constitution.
There are people in this room today who were part of that debate. There are people observing here today who fought that fight to have these rights enshrined in the Constitution Act of 1982. It must be galling to them to see us now, twenty years later, instead of moving forward with meaningful amendments to give meaning and definition to the rights recognized in the Constitution, taking steps that actually diminish or derogate or infringe or violate those very rights.
The Native Nations Institute for Leadership, Management and Policy is an organization at the University of Arizona. In their comments regarding Bill C-7, they pointed out that only one approach has worked in the United States with any sustained record of success, and that was “broad governmental jurisdiction in the hands of indigenous nations backed up by capable culturally appropriate governing institutions that those nations support and believe in”.
I think the operative words are “culturally appropriate governing institutions”, not a cookie-cutter approach of some corporate board-room rules of financial accountability and management. It's like putting a round peg into a square hole. If you're trying to impose rules of governance from a corporate board room onto a first nation that is functioning under a completely different set of guidelines, a guidelines and values-based code of conduct, you're going to run into an absolute barrier. You're going to run into an obstacle.
Even the $550 million that the minister intends to spend on putting these amendments through won't be sufficient, because no amount of money will be sufficient. You could quadruple that amount of money, you could multiply that tenfold, and it still wouldn't be enough.
¹ (0320)
Ironically, they can find $550 million for this urgent priority, but if anybody suggested that they raise the overall budget of DIAND by 10%, which is what that would constitute, there would be hell to pay. There'd be people howling and shrieking.
[Applause]
The Chair: Thank you, Mr. Martin.
Mr. Loubier.
[Translation]
Mr. Yvan Loubier: Mr. Chairman, I see that my colleague Mr. Martin is inspired by the eagle feather he has received, since he is an extraordinary visionary. Even at 3:20 in the morning, he is capable of providing a quite incredible summary of his vision and of the real vision we should have of this new partnership. I also realize that he constantly holds his eagle feather; he is very proud of it, rightly so.
I find that this amendment and the other amendments that we have introduced--it may become a little irritating to talk about it, but that's the case--are generally cosmetic in some respects, technical in others, and are ultimately protection amendments. Because we know perfectly well that, since the start of the analysis of this bill, the Liberal majority has not felt like amending anything. They feel they have a thorough knowledge of what must be done to restore relations between the federal government and the Aboriginal nations. Earlier we were able to see, by the reactions, that relations are now harmonious between the Liberal majority and the First Nations. So they don't need advice from us or the First Nations because they know what's good for the First Nations.
So when you believe that you know the truth and that you have the key to harmonious, cordial relations of partnership and mutual respect, you don't accept the advice of a friend. We have seen throughout the evening, we saw it yesterday, we saw it three weeks ago as well, relations are very cordial between the First Nations and the Liberal majority. There is no aggressiveness in the air. You have the magic recipe and you should give us advice more often because I find you have brilliant ideas for ensuring that we can live in peace in our communities, that we can develop harmonious relations, partnership relations, relations on a basis of equality, relations of mutual respect as well. We saw that in the reaction of one Liberal party member earlier. I won't name him because I don't want to launch a direct, personal attack, but we saw how his remarks to the worthy representatives of the First Nations were guided by courtesy.
So, even if the amendment introduced by Mr. Martin is an amendment which, in technical terms, would make it possible to restore a little power to the actual recipients of this bill, that is to say to the First Nations, even if we remove the predominance of the department and Minister of Indian and Northern Affairs, even if this proposal is valid and, like all those we have made since the start of the analysis of this bill, it could have allayed the feelings of aggression that we may see flare up from time to time and which, I'm convinced, are increasing, despite all that, I know that they will vote against this motion. They will vote with cynicism and arrogance. They will say no with great pride, pride in helping to establish the basis of new relations with the Aboriginal nations for the next 130 years.
I think there's reason to be ashamed. If I were in your position, I would open my ears wide, and, when the Grand Chief of the Assembly of First Nations, Mr. Coon Come, gave his initial reaction to the bill on June 14, it seems to me that you should have opened your ears twice. We wouldn't have had to spend all the money, energy and resources analyzing a rag such as this. We could immediately have had the assessment of all the First Nations communities in Canada.
¹ (0325)
On June 14, Mr. Coon Come said, and it's worth mentioning this because it's so clear, that this bill had nothing to do with governance, that it nowhere recognized their governments and their right of self-government, that it did not recognize their nation-to-nation agreements with Canada, which are called treaties.
Look, it's time to listen and to change your mind.
He said it doesn't provide the First Nations with tools for sound governance, since those tools take the form of skills, learning ability and resources, and that this bill makes no mention of that. He said that the minister instead had merely schemed for two years, despite the fact that their communities are in distress, and that he had wasted more than $10 million of taxpayers' money and that that was what had resulted.
Mr. Coon Come, in his great wisdom and after consulting all his members, and probably enlightened as well by the eagle, said that this bill is a direct attack on their rights and treaties, that it violates the Constitution Act, 1982.
He said, and this is sad, I remember this statement, that today doesn't mark a new start, that it is not even a good start, that we are walking backwards into a dead-end.
That is exactly where we're being led. It's exactly where the irresponsibility of the federal government and government members here is leading us when they systematically reject all the amendments we introduce, even though those amendments, as my colleague Mr. Martin said, are consistent with what we heard during hearings and what we read in the many briefs that were submitted by the many First Nations, who did an admirable job of informing us, of telling us what the situation was, of telling us what they wanted, and not telling us that they were pleased to be subjugated by the federal government.
Mr. Chairman, I didn't think I would be as... not discouraged, because I'm not easily discouraged. And you will see, in the coming hours, days, weeks and months, that I'm not easily discouraged.
There have been bigger things than that in the past, and we've learned one thing in Quebec, and that is that you have to keep standing, whatever the cost. I realized that this pride and dignity are found among the members of the First Nations, and that's why I am comfortable and that I consider them my brothers and sisters.
You must never be discouraged.
[English]
The Chair: We'll suspend proceedings until we have order.
¹ (0329)
¹ (0334)
¹ (0335)
The Chair: Could we get back to order, please.
Mr. Loubier will have the floor.
[Translation]
Mr. Yvan Loubier: How much time do I have left, Mr. Chairman.
Le président: You have a minute.
Mr. Yvan Loubier: Mr. Chairman, what emotion! I've never seen this in my life as a member. It's quite moving.
Mr. Chairman, I believe it is not really too late. In view of all the witnesses we have heard, all the impressions and analyses we have assembled, which are beginning to resemble a kind of building in front of us, the best thing that could happen would be for the government to back down from Bill C-7, take it, destroy it, throw it into the waste basket and stop wasting our time with it, when there are incredible problems to be solved in the communities of the First Nations. This has cost $6 million. It's incredible!
[English]
The Chair: Are we ready for the question?
I want everybody to pay attention. I won't be criticized after.
Are we ready for the question?
Mr. Pat Martin: I have some remarks to make.
The Chair: I'm asking you if you want to speak. You are entitled, but you have to indicate to the chair that you wish to speak.
Mr. Martin, closing remarks.
Mr. Pat Martin: Thank you, Mr. Chair.
I'm glad to have an opportunity to conclude my thoughts regarding our amendment to clause 11, where we sought to delete the prescriptive, mandatory tone of this clause. If this bill is supposed to be crafted as a useful enabling tool for first nations, then the language should reflect that. I don't believe any of the language in this bill is accidental. And when we use language such as to dictate--“The council of a band shall, by band law, authorize an impartial person”, etc.--the content is almost irrelevant in this clause. The very tone of that language stands in direct contrast to the commitment made by the government when they undertook this exercise of Bill C-7.
My language softens that a great deal by saying “The council of a band may authorize an impartial person”. It's like an arbitrator, a binding third-party arbitration process, where should a band and council choose to resolve an impasse or a dispute using this methodology, then the council may select an impartial person to do so. But there should be no reference--
The Chair: I would like to ask the employees of the House not to cause a ruckus with the general public, please.
Mr. Martin, I apologize. Resume.
Mr. Pat Martin: Thank you, Mr. Chairman. There's no apology necessary.
It's my opinion that the language I'm presenting around clause 11 is more in keeping with the commitment made, it's more in keeping with the preamble of this bill, it's more in keeping with the clause entitled “purpose” of this bill, and it would give some comfort and relief to the people who are offended by the prescriptive and heavy language associated with virtually every clause in this bill.
Frankly, Mr. Chairman, what we heard around the country, what witnesses told us, I think is best typified by this statement from the Northwest Tribal Treaty Nations, when we were in Prince Rupert, British Columbia. The question they asked us was: Are we to be a true governing body, or are we supposed to be a service delivery agent for Indian Affairs? That's the question of identity that first nations are finding themselves asking themselves. Because the pattern that seems to be developing is not in keeping with the commitment made towards recognition of sovereignty as an independent nation-state.
If the stated objective of this government is to recognize a third level of government--and I heard the Minister of Indian Affairs use that language as recently as a couple of weeks ago, that it is the goal of this government to recognize a third level of government that is first nations government--if that's the goal and the objective, then why are we going 180 degrees in the opposite direction with the first piece of legislation under that new rubric?
¹ (0340)
The Chair: I have a point of order.
Mr. Maurice Vellacott: As a courtesy to the witness at the table, there's a different witness at the table, and I think it would be fair to have the name.
The Chair: That's not a point of order.
Mr. Maurice Vellacott: It is.
The Chair: It's not a point of order.
Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair. I'll continue.
Mr. Maurice Vellacott: If we have to address her, Ray--
Mr. Pat Martin: It would be more meaningful if we could have this dialogue, frankly, with our guests who are in the visitors gallery of this chamber, because that's where the expertise lies. If you compare the collective experience of the visitors here to the people around this table, there is no comparison. That's where the expertise lies.
The Chair: We'll suspend.
¹ (0342)
¹ (0345)
The Chair: Mr. Martin.
Mr. Pat Martin: Thank you, Mr. Chair.
I'm glad I have a moment left to conclude my remarks on this particular clause, clause 11. What we are seeking to achieve by the simple amendment I am proposing here is to soften the language in a way to take away some of the irritants in the language that's been chosen in the bill and to use language that's more in keeping with the tone that was expressed and the commitment made when this was opened up.
There was a great deal of apprehension associated with even delving into this matter of revisiting the Indian Act and aspects of it. As much as people loathe the Indian Act, as much as people view it as an evil instrument of oppression, they were abundantly cautious when the government announced an interest in opening it up because they were fearful of what might come out the other end. Commitments were made that the government would listen to the input from first nations before the act was amended. That promise has been broken.
It was off to a bad start because there was no meaningful input or consultation before this bill was crafted. This bill was presented to people in exactly the form we have now, and they asked, what do you think? The approach was to ask, how do you like it, how do you like us so far?
And all the suggestions made have been ignored. We have tried. Mr. Loubier, Mr. Vellacott, and I in cooperation have tried to pick out some of the key comments made in the many briefs and presentations that were made to us and present them as amendments. We were hoping that if the government didn't hear the first time around, maybe they'd hear the second time around.
We even hoped to have more time to be able to present these clauses and to argue the merits of these clauses, but the government moved time allocation that even restricted the amount of time we can spend in trying to develop arguments to garner support for what we view as legitimate improvements to the bill. We're doubly offended by the fact that they've not only ignored the presentations from the very people whose lives are affected by this bill, they've undermined my ability to effectively represent their views by restricting and pushing time allocation.
A further infringement on my ability to represent these views is the fact that we're forced to deal with these things in the middle of the night. It's not even the middle of the night any more, it's almost tomorrow. We've worked virtually around the clock. I got up at six o'clock this morning. It's now ten to four the following day, and we've been at this straight.
I'm heartened and encouraged by the support I felt from the guests in the room today. Without that it would be very, very difficult to continue; I am drawing strength from them both figuratively and literally, and I appreciate that very much.
Let me say in closing that we ignore the cautionary note of the many presentations at our peril, because we're going to end up wearing this. This is going to be the committee that failed to address the urgent problems of the Indian Act.
With the limited time I have left, the last thing I'll say is to cite the Quebec Native Women, who presented to the committee with a very passionate presentation. I only have time for isolated clips of these comments, but they suggested that Bill C-7 does not fundamentally meet human needs. What use is there in having a smoothly operating administration and balanced books to someone who has no place to live?
The tragic omission of this bill is that it doesn't speak to any of the top-of-mind priority issues first nations tell us are their main concerns. When I said a “missed opportunity” earlier, I referred to the fact that here we're opening up the Indian Act for the first time in fifty years, and instead of dealing with the issues people tell us are their key concerns, we're dealing with administrative details and the threat of punishment if people don't comply in lockstep with these new administrative details.
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The Quebec Native Women said that pushing forward this legislation would further deny the human rights of indigenous people and their children. How many times have we heard people express in presentations that they're not even here to argue for themselves so much as they're here to argue on behalf of their children, their grandchildren, and the generations that follow? That's their concern.
The Chair: Thank you, Mr. Martin.
We have a recorded vote on amendment NDP-27.
(Amendment negatived: nays 7; yeas 2)
The Chair: We will skip amendment CA-28 because there is no member from the Alliance here, but I was not going to accept it because it's a money motion and I'm not authorized to accept it at committee level.
Now we're on amendment G-3.
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Mr. Charles Hubbard: Mr. Chair, this amendment to clause 11 makes changes to lines 41 and 42 on page 8. It will now read “The council of a band shall, by band law, authorize an impartial person or body”. In other words, it's cutting out “or an impartial body” in lines 41 to 42 and also the words “established under section 18”.
This would provide us an opportunity to enable in this legislation several first nations to group together to seek a body or an impartial person to seek redress for those who would be laying complaints under the governance act or under the working relationships of first nations.
I so move, Mr. Chair, that amendment.
The Chair: Mr. Hubbard, you had the floor, you started the debate, and now are you moving something?
Mr. Charles Hubbard: Okay, I take out the words “I so move”.
The Chair: That's why I got confused there.
Mr. Martin.
Mr. Pat Martin: It seeks to amend clause 11 by replacing lines 41 and 42 with the following: “authorize an impartial person or body”. It seems to be designed to consolidate the term “authorize an impartial person, or an impartial body” and simply say “authorize an impartial person or body”. I don't view this as an amendment of any substance.
My main objection to clause 11, which I've made clear, is that I don't appreciate the heavy, prescriptive language that says “The council of a band shall, by band law” do anything. It doesn't matter what the reference is. I object to the strength of the language used in the first line of clause 11. I think you'll find that by using that kind of heavy-handed intervention, we're further compounding the objections and the protests associated with what we hear across the country.
The designation of the authority to hear complaints should be a voluntary means of redress and avenue of recourse available to the council of a band should they arrive at an impasse where they want to seek a third party and to subject themselves to the rulings of the third party.
It's much like where a third-party arbitration mechanism has to be a voluntary choice, especially if you expect the parties to adhere to and to have respect for the rulings of the arbitrator. It's not going to be a satisfactory resolution to any kind of dispute or impasse if one party can impose who the impartial body shall be who will have the binding resolution authority to deal with any kind of impasse.
It concerns me that we didn't listen to groups such as the Red Earth Cree Nation, which said that what is happening is not acceptable to first nations that have spoken against Bill C-7.
Mr. Chair, I believe we've lost quorum again.
The Chair: Suspend for quorum call.
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Ms. Marlene Catterall (Ottawa West—Nepean): It appears the opposition has abandoned the meeting, and we've been without a quorum because of their absence for seven minutes now. I would suggest we wait the required eight minutes more, and if we've been without a quorum for 15 minutes, the meeting's over.
The Chair: Is that the wish of those members who are here, that we wait the 15 minutes and then adjourn? We can't operate if we don't have a quorum, and we don't expect to find one at four o'clock in the morning, so that's what we'll do.
Ms. Marlene Catterall: Well, we don't have a quorum without a member of the opposition present, and obviously they've abandoned the meeting, decided it's not important.
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The Chair: The meeting is adjourned.