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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Tuesday, May 6, 2003

0930

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

Mr. Charles Hubbard (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development)

0935

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve)

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

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

Mr. Réal Ménard

Mr. Paul Salembier

Mr. Réal Ménard

Mr. Paul Salembier

Mr. Réal Ménard

Mr. Paul Salembier

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

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

0940

Mr. Réal Ménard

Mr. Paul Salembier

Mr. Réal Ménard

Mr. Paul Salembier

Mr. Réal Ménard

Mr. Paul Salembier

Mr. Réal Ménard

Mr. Paul Salembier

Mr. Warren Johnson

Mr. Réal Ménard

Mr. Warren Johnson

0945

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

The Chair

Mr. Pat Martin

The Chair

0950

Mr. Pat Martin

0955

The Chair

Mr. Charles Hubbard

1000

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

1005

1010

The Chair

Mr. Pat Martin

1015

1020

Mr. Réal Ménard

Mr. Pat Martin

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

Mr. Pat Martin

The Chair

Mr. Pat Martin

1025

Mr. Réal Ménard

The Chair

Mr. Pat Martin

1100

The Chair

Mr. Réal Ménard

Mr. Pat Martin

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

1105

1110

The Chair

Mr. Réal Ménard

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ)

1115

1120

The Chair

Mr. Pat Martin

1125

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1130

The Chair

Mr. Pat Martin

The Chair

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

1135

The Chair

Mr. Mario Laframboise

1140

The Chair

Mr. Mario Laframboise

The Chair

Mr. Mario Laframboise

1145

The Chair

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

The Chair

Mr. Mario Laframboise

1215

The Chair

Mr. Mario Laframboise

The Chair

Mr. Mario Laframboise

The Chair

Le président

Mr. Mario Laframboise

The Chair

Mr. Mario Laframboise

1225

The Chair

Mr. Pat Martin

1230

1235

The Chair

Mr. Pat Martin

1240

1245

The Chair

Mr. Julian Reed (Halton, Lib.)

1250

1255

The Chair

Mr. Mario Laframboise

1300

The Chair

Mr. Mario Laframboise

1305

The Chair

Mr. Myron Thompson (Wild Rose, Canadian Alliance)

1310

1315

The Chair

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

The Chair

Mr. Yvan Loubier

1320

1325

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1330

1335

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

1340

1345

The Chair

Mr. Charles Hubbard

Mr. Warren Johnson

1350

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

The Chair

1355

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

1540

The Chair

Mr. Pat Martin

1545

1550

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

1605

1610

The Chair

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

Mr. Warren Johnson

1615

Mr. John Godfrey

Mr. Paul Salembier

The Chair

Mr. John Godfrey

The Chair

Mr. Paul Salembier

1620

Mr. John Godfrey

The Chair

Mr. Maurice Vellacott

Mr. Paul Salembier

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

Mr. Maurice Vellacott

Ms. Lucie Angers

Mr. Maurice Vellacott

Ms. Lucie Angers

Mr. Maurice Vellacott

1625

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1630

1635

The Chair

1640

Mr. Yvan Loubier

1645

1650

The Chair

Mr. Yvan Loubier

The Chair

Mr. John Godfrey

The Chair

Mr. Yvan Loubier

1655

1700

The Chair

Mr. Pat Martin

1705

1710

The Chair

Mr. Yvan Loubier

1715

1720

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

Mr. Yvan Loubier

Mr. Charles Hubbard

The Chair

1725

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

The Chair

Mr. Maurice Vellacott

1730

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

1735

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

The Chair

Mr. Pat Martin

1740

1745

The Chair

Mr. Yvan Loubier

1750

1755

Le président

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1800

1805

The Chair

Mr. Charles Hubbard

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 069

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, May 6, 2003

[Recorded by Electronic Apparatus]

¿ (0930)

[English]

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

(On clause 19--Contravention of band laws)

The Chair: We are at amendment BQ-37, page 160. Mr. Crête was making his closing remarks. He is not here, so we will go directly to the vote.

Are you ready for the vote on amendment BQ-37, a recorded vote?

[Translation]

We are requesting a recorded vote.

[English]

(Amendment negatived: nays 7; yeas 2)

The Chair: We are now on amendment G-11, page 161.

Mr. Hubbard.

Mr. Charles Hubbard (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development): Thank you, Mr. Chair.

It's a very brief amendment again. In terms of clause 19, on page 14, we're looking at lines 15 and 16. It's the introduction of a brief few words under line 15, which will delete the words “that is intended to prevent adverse effects on the environment”.

I want to clarify what I just said, because I wasn't clear.

In lines 15 and 16, it will read, “of a band law made under paragraph 16(1)(e) or 17(1)(a) or (b) may be made punishable by a fine not exceeding”.

So it's a very brief amendment. I'm sorry not to have been clear on it. I guess it's early in the morning. But that will be the amendment, and I think it should be acceptable to everyone here, because we've just completed a paragraph dealing with that, paragraphs 16(1)(e), 17(1)(a), and 17(1)(b).

Thank you, Mr. Chair.

¿ (0935)

The Chair: Thank you, Mr. Hubbard.

Monsieur Ménard.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve): Mr. Chairman, could I please ask the parliamentary secretary for some clarification? The changes are not clear.

The Chair: Mr. Ménard, say what you have to say and ask your questions. The parliamentary secretary will be called upon to answer all questions at the end.

Mr. Réal Ménard: I appreciate your spirit of consensus, Mr. Chairman.

The proposed amendment to the bill is not clear and I would like to put a question to him: how does that change the substance?

The Chair: You have 10 minutes.

Mr. Réal Ménard: Can I ask my question?

The Chair: There is no back and forth. You can ask your questions as you speak. That is how we proceed.

Mr. Réal Ménard: Thank you.

My questions are to the officials. Mr. Salembier: how does that change the substance? I do not understand in what way the government's amendment adds anything to the text.

[English]

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): I'll attempt to give some explanation there.

Right now, the provision talks about setting a fine of up to $300,000 for a band law that is “intended to prevent adverse effects on the environment”. It was pointed out that this wording was somewhat vague and it makes it unclear as to which band laws might attract these very large penalties. Therefore, the effect of this amendment is to make it clear exactly which band laws may have a penalty of up to $300,000.

[Translation]

Mr. Réal Ménard: So this is clearly in the area of criminal law.

[English]

Mr. Paul Salembier: I wouldn't say criminal law. I think this is more regulatory law, like many environmental statutes. These are more regulatory penalties--for example, waste management, unauthorized dumping of waste on a reserve. If someone came and dumped 25 truckloads of waste on reserve land, something like that might very well warrant a fine in this kind of range of several hundred thousand dollars.

[Translation]

Mr. Réal Ménard: I'll tell you why it is my impression that we're dealing with criminal law. If a fine were not paid by an individual, could a court of justice not punish that offender by putting him in prison? What would happen if the individual did not pay the fine?

[English]

Mr. Paul Salembier: Well, in that sense, it's certainly not a civil action. This doesn't simply provide that the band can bring a lawsuit against the person and try to sue for $300,000. This is a regulatory offence under the statute. It's a summary conviction offence. Therefore you go to court, and if you're found guilty of having contravened the law in question, the court will fine you, say, $300,000, or they can assess a term of imprisonment of up to six months.

Probably what a court will do normally is set a fine and say, in lieu of this fine, imprisonment. So even if you or I are caught speeding 10 miles over the limit and we get a fine of $200, they will say if we don't pay the fine...the fine will be $200 or a week or a weekend in jail.

So that's how these sorts of things are enforced.

[Translation]

Mr. Réal Ménard: Are you a lawyer?

[English]

Mr. Paul Salembier: Yes, I am. I'm counsel for the Department of Justice.

[Translation]

Mr. Réal Ménard: Did you study at the University of Ottawa?

[English]

The Chair: That's irrelevant.

[Translation]

Mr. Réal Ménard: Mr. Chairman, I just wanted to say that I also studied at the University of Ottawa. I thought we might be able to discuss these types of issues together.

Why is the amount $300,000? When our colleague, Yvan Loubier, told us in the Bloc Québécois about this fine, it seemed that it was not based on any legal grounds, that it was a rather discretionary amount. Can you tell us why the amount was set at $300,000?

[English]

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): I could answer that question.

That was recommended by Environment Canada. That is identical to the terms and fine levels imposed under the Canadian Environmental Protection Act for similar offences.

¿ (0940)

[Translation]

Mr. Réal Ménard: Fine. Then my analysis regarding the criminal implications is not entirely groundless. If an individual refuses to pay the fine and legal action is taken by the band council or its spokesperson, then it could go as far as criminal court and that individual could go to prison. The amount of $300,000 is similar to fines found in similar legislation.

For the purposes of our own personal and legal enlightenment, could you tell us whether or not band councils are subject to the Canadian Environmental Assessment Act?

[English]

Mr. Paul Salembier: CEPA is applicable on all federal property. Indian reserves being within section 91 of the Constitution Act, CEPA would apply.

[Translation]

Mr. Réal Ménard: As you know, this legislation is currently under review in the House of Commons. Can an investigation, whether it is a preliminary or more in-depth investigation, be requested by the band council or by the federal government?

[English]

Mr. Paul Salembier: I'm sorry, are you asking whether the band requested a review of CEPA legislation?

[Translation]

Mr. Réal Ménard: The Canadian Environmental Assessment Act applies to aboriginal nations. Under the Canadian Environmental Assessment Act, for an investigation to take place, or for an impact assessment through preliminary or in-depth studies, someone has to trigger the process. Is it the band council or the federal government that does that?

[English]

Mr. Paul Salembier: I think if you're talking environmental assessment, it would be the Canadian Environmental Assessment Act, as opposed to CEPA.

My understanding of that act, although I don't profess to be an expert on it, is that the types of decisions to which that act must be applied are set out by regulation. Therefore, to the extent that the project in question or the decision in question to undertake a project is covered by the regulations, then that act would apply.

[Translation]

Mr. Réal Ménard: I don't understand your reference to the regulations. This is legislation that was passed by Parliament. There is an authority that must trigger the investigation. What is the relevance of the regulations?

[English]

Mr. Paul Salembier: Yes, go ahead.

Mr. Warren Johnson: My understanding is that the trigger for the requirement for environmental assessment is the responsibility of the project proponent. So it depends who is the proponent of the project, who is the decision-maker.

As an example, if the band is using its own funds to develop an infrastructure project or an economic project, then it would have the responsibility for doing the environmental assessment.

If the project, for example, was funded from economic development incentives available through the Department of Indian Affairs, then as the decision-maker, even if the band was doing its own funding, there would also be a responsibility for the department to do an assessment of that. The decision-maker on the project, whoever is funding, or the proponent of the project, has the responsibility to do the assessment.

[Translation]

Mr. Réal Ménard: So if the band council is the proponent, it is possible that an environmental assessment will take place on their initiative and would follow its normal course.

To your knowledge, have band councils ever triggered environmental assessments in the past under the Canadian Environmental Assessment Act?

[English]

Mr. Warren Johnson: Yes, there are. As referenced, all projects follow the regulations in terms of scale of project and requirements for assessments, or for larger projects, the requirement for hearings or more detailed assessments. Those are all laid out in the regulations. Yes, there's a variety that have been undertaken according to those regulations.

In fact, the assessments done by the department are required to be submitted, and I think they are part of a report that may very well be tabled before Parliament. Further detail on the activity's operations, either CEAA or CEPA, might require us to have colleagues from Environment Canada come to make sure we're giving the committee the appropriate technical details here.

¿ (0945)

The Chair: Thank you, Mr. Johnson.

Merci, Monsieur Ménard.

To Mr. Salembier and Mr. Johnson, we're allowing members to deviate from the issues on the table. As you have noticed, we don't often talk about the real amendments. If there are questions put to you that don't refer to this bill, I would appreciate it if you didn't respond, to save time.

We are here to do a job. We're spending a lot of time, and we'd like to stick to the issue, although it's impossible to keep the members to that.

Anyone else?

Monsieur Ménard.

[Translation]

Mr. Réal Ménard: Point of order.

Mr. Chairman, with all due respect, you are my friend and I appreciate your leadership, however we are all lawmakers.

The Chair: What is your point of order, Mr. Ménard?

Mr. Réal Ménard: Mr. Chairman, when we are in committee, you must allow a certain amount of leeway in our discussions.

The Chair: That is not a point of order.

Mr. Réal Ménard: Yes, it is a point of order. Allow us to discuss what we wish.

[English]

The Chair: Mr. Martin.

[Translation]

Mr. Réal Ménard: When we speak to our witnesses, we have a right to obtain answers. I feel hurt.

[English]

The Chair: Mr. Martin, the clock is running.

Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Chair, we have an obligation to do our best to explore every aspect of this bill to ensure that it meets the standards and meets our fiduciary obligations as members of Parliament towards first nations people. Part of that fiduciary duty, an extension of that duty, is to be fully informed as to what the impact might be of any clause or any aspect of this bill prior to it going any further or prior to it becoming introduced as legislation.

I think Mr. Ménard is perfectly within his rights to explore this clause, as it's the only opportunity we will have to explore this clause and to ask questions as to the application of this clause. All of us not only have a keen interest in these issues, but we have a duty and an obligation to do our best to find out everything we can about the pros and cons of every clause. Whether there is a specific amendment on that very point is really secondary, because what other opportunity will this committee have to explore these things?

The Chair: Mr. Martin, you tend to be more reasonable when I explain things, so I'll explain it to you. I didn't say I would prevent Monsieur Ménard or anyone else from deviating. We've been doing it for 12 weeks; I'm not going to stop it now.

What I'm saying is that our expert counsel are here to assist us with this bill, and if we are wasting their time and if we are asking questions that don't relate to the bill, I would appreciate it if they identify it and that we proceed. That's all. The members can do what they want, as you have noticed.

Mr. Pat Martin: I understand the points you're making. I don't agree necessarily because I think that with these witnesses here as a resource to the committee--and I thank them for their patience in staying with us long into the night and being here again first thing in the morning--if they have wisdom to impart to this committee, or points that we may have missed because of the haste with which this bill is being dealt with, we do a disservice to the issue, and we do a disservice to aboriginal people and to first nations, if we don't exhaustively explore each clause at this one opportunity, this one brief opportunity, that we have.

We're going to have 10 minutes on section 19. Section 19 is the very meat and potatoes of this bill, because if we are going to confer self-government--we cannot confer the right to self-governance, we only recognize and acknowledge the existing inherent right to self-governance--surely an integral aspect of acknowledging that right to self-government is the right for first nations to enforce those laws.

When you make a law there must be sanctions for breaking the law. Section 19 is the clause that deals with what those sanctions shall be, and it opens a whole Pandora's box of questions that we need to explore. Given that the Liberals moved time allocation on this committee, they've taken away our ability to explore these aspects in the fullness they deserve.

The Chair: Mr. Martin, we wouldn't want to leave the impression, because this is on camera, that members are getting 10 minutes on section 19. When you say section, you mean clause. There are six amendments to clause 19. Each member is entitled to 60 minutes. So it's 60 times 16, 15 because I don't participate. Let's not give the impression that there is 10 minutes for clause 19.

¿ (0950)

Mr. Pat Martin: Mr. Chairman, I don't mind you intervening as long as it doesn't take any of my limited amount of time. But even when you put it in that context, we're going to spend one hour then, each member may have as much as an hour to speak on this issue, how much work needs to be done on this issue before we're fully conversant on the Environmental Protection Act or the application of that act, or on serious questions like will this law have any effect on the Crown or on employees of the Crown?

In other words, if it's a government employee who may be dumping waste into land on a reserve, will this clause still apply to be able to fine essentially the federal government for dumping waste then? In the federal interpretation law, where we look for qualification or to flesh these matters out, it says you have to specifically state that this law will apply to the Crown. In provincial interpretation laws the inverse is true, that unless otherwise stated, the application is to the Crown and to all federal or provincial government employees.

We don't know these things. It points to the hollowness of this whole exercise and this whole process. If we're going to be saying on the one hand that this bill is about first nations self-governance and on the other hand not giving effective tools to enforce or to apply sanctions, then it's meaningless. Then it is strictly a piece of paper that has no weight or no authority.

We had questions, Mr. Chairman, about why it was necessary to take the word “environment” out altogether, because we're concerned that even if there are other aspects that now will be subject to this type of penalty, why did they specifically remove “offences to the environment”, or “prevent adverse effects on the environment”? Frankly we were comfortable with that language. That language could have stayed and we could still have the $300,000 fine limit apply to paragraphs 16(1)(e), 17(1)(a), or 17(1)(b).

We believe there was a very conscious, deliberate choice the government has made here to exclude specific reference to “effects on the environment”, possibly because the traditional, spiritual, and customary view of damage to the environment that first nations may hold may differ from what western culture may hold as to what is an effect on the environment that should be subject to fines.

In my opinion, the eradication of a species, for instance, is something that we do in a very cavalier way. That may be considered a paramount offence if there may be a traditional attachment to a wildlife resource maybe viewed in a different light.

That begs the question, who is going to prosecute this $300,000 ability to fine? Where will the money come from? Where will the trial be held? What will be the rules of evidence produced at this type of tribunal?

We haven't listed justice systems as one of the areas of jurisdiction that the band and council has control over. In other words, nowhere is it stated in this document that a band and council may make laws in relation to justice issues. Therefore, there is no mechanism by which to prosecute a $300,000 fine. Believe me, a corporation or a business that is charged by the band bylaws is going to put up an aggressive defence. We don't know what the mechanism will be, or the ability of the first nation to even carry through or follow through with this type of thing.

Have the provinces agreed to any of this?

We are so severely limited by time that these questions will never be answered, and the Liberal members of the committee will rubber stamp these clauses without even having full knowledge of what's going on here. We're affecting the lives of people who we say are sovereign, independent, free nations, with a bunch of people who just attend here because they're told to attend so that they don't lose quorum, and don't even ask pertinent questions about the details of what we're doing to 700,000 people in first nations communities around the country, and we won't have time to explore the impact of these issues.

¿ (0955)

So it's an absolute contradiction to say we support and endorse aboriginal self-governance and then not take meaningful steps toward that or to undertake an exercise like this for which we don't even know what the outcome will be.

Our recommendation is...seeing as nobody in the country who wants this bill and that every first nation in the country has vigorously opposed this bill, and even the future Prime Minister of Canada has said he will not implement this bill...then I suggest that we should withdraw, we should cease this mockery of a study of clause-by-clause analysis of this bill, and try to stop the damage we're doing across the country to the relationship between the federal government and first nations.

If there was anybody there on that side with any vision in the sense of trying to address the historic injustices of the Indian Act, they would say that this is a failed attempt. You would even have the cooperation of the opposition parties that we wouldn't rub anybody's nose in this. We would simply say, nice try, but it failed. We're doing more harm than good now. If there is a benefit versus injury analysis to take place here, the injury has far outweighed any possibility of a benefit. Even, as I say, the future Prime Minister has said very openly that he disagrees with this particular package, so it should be stopped.

The Chair: Thank you, Mr. Martin.

Mr. Hubbard, closing remarks.

Mr. Charles Hubbard: Mr. Chair, I'm not sure how all this talk we have had applies to what we're trying to do. Yesterday, one of our members from the Bloc seemed to indicate that Mr. Martin, who sits at our table, is going to be a future Prime Minister. We might have a long wait for that.

I want to get back to what we're trying to do here with this. First, we want to ensure that everyone who's voting in this realizes that this is enabling legislation. A band law may--in other words, first nations under this legislation may be able to make laws that deal with offences, and it's certainly pointed out here in terms of what the convictions will be and what the offences are.

When we look at this amendment we're dealing with paragraph 16(1)(e), and with that we're looking at offences under local works, public utilities, and waste management. Again, under paragraph 17(1)(a) we're talking about the protection and conservation of natural resources within the band's reserve, and in 17(1)(b) we're talking about the protection, conservation, and management of wildlife and fish on the band's reserve. I'm not sure how anyone can really misconstrue this to the point where somebody is going to think somebody else other than band members and council and chiefs are going to make these offences part of their band laws.

Mr. Chair, we have to stick to what the amendments are, and it's certainly not encouraging to hear the honourable member talking around the issue and past the issue and by the issue, but not wanting to deal with the amendment. He talks about time allocation. I'm not sure, Mr. Chair, how we could have time allocation when yesterday, as an example, we spent 15 hours dealing with a few clauses. We have probably in excess of 60 hours already. He thinks that someone is going to believe that time allocation will be one day for all this legislation.

We have, I believe, something like 65 more amendments after this, and we've been very patient. As you pointed out a few minutes ago, many of these are taking an hour, and members who present an amendment have up to 10 minutes. In fact, it's always 10 minutes in terms of the group opposite. They have a further 10 minutes when they conclude their remarks and are able to answer the questions that members on this side may put to their arguments.

So I think we've been very fair with this. They've consulted extensively as members of Parliament with people who've come to the Hill to talk with members. I believe we have a very good process not only of amendments but also of consultation.

So with that, I'd urge, Mr. Chair, that we get on with it and that we take the vote on our amendment G-11.

À (1000)

The Chair: Are you ready for the vote?

(Amendment agreed to: yeas 8; nays 2)

[Translation]

The Chair: Mr. Ménard, please proceed with amendment BQ-38.

Mr. Réal Ménard: Mr. Chairman, what a beautiful amendment! I am more than proud to present it, and to continue in the manner of the member for Saint-Hyacinthe—Bagot.

This is an extremely important amendment because it deals with respect for our environmental values. When the member for Saint-Hyacinthe—Bagot decided to propose this amendment, the purpose he had in mind was to deter to the greatest extent possible any individuals who could harm the environment that aboriginal communities live in.

Mr. Chairman, it was in all seriousness that I asked our counsel why the fine had been set at $300,000. We feel that that is a very small amount given the nature of the situation. Obviously this is not the first time that the government has been rather spineless in its defence of the environment. That is why the member for Saint-Hyacinthe—Bagot has suggested increasing the amount to $500,000.

Mr. Chairman, as we all know, a variety of resources will be available on aboriginal land, and it is not unlikely that companies—that is the example I was given—will be guilty of abuse or will not want to respect the polluter-pays principle. That is why we thought it would be appropriate to increase the fine from a weak, modest and emasculated amount of $300,000 to something much more dissuasive, like this $500,000.

I remember when the former parliamentary secretary to the Minister of the Environment, Karen Redman, gave a highly eloquent speech on the importance...

The Chair: Mr. Ménard, our practice in this committee is to refrain from naming members.

Mr. Réal Ménard: I'm sorry, Mr. Chairman. Would you like me to start over?

I apologize. The former parliamentary secretary is my friend but I would not want to act too familiar. I know her as being very distinguished and having great presence and I would not want to show any disrespect because she is a colleague I greatly admire. In fact I don't have any known enemies amongst the Liberals. There was Roseanne Skoke who in the early 1990s hurt my feelings somewhat but on the whole I don't have any Liberal enemies. I would even count you as one of my friends, Mr. Chairman, but I would not want to claim—let's not go too far—your friendship if it was unfounded to do so.

I will continue, Mr. Chairman, in saying that we felt it was important to give teeth, substance, strength, flesh and depth to a section of this bill that was lacking that. Mr. Chairman, are you aware of one value more broadly shared by our fellow citizens than that of respect for the environment? In our vision of economic development for aboriginal communities, we are saying that it is not enough to simply undertake a transfer—we want to generate real development. True development happens with the real appropriation of resources on those territories. If by chance there were people who did not want to respect the polluter-pays principle, if there were offenders sitting on a band council, if there were people mistreating resources and not being respectful of our environmental heritage, what would happen? A lowly, insipid $300,000 fine, Mr. Chairman. We feel that $500,000 is the absolute minimum that future offenders should have to pay.

I repeat that the issue of the environment is at the heart of our concerns. Earlier I had the opportunity of speaking about the Canadian Environmental Assessment Act. It is true that the Canadian Environmental Assessment Act, that was passed in the early 1990s, also lacks some teeth. I offered my support to the government in the House to make this legislation stronger. This is an act that is not perfect and it has a big problem. In fact, Robert Bourassa's government, in the National Assembly in 1992 or 1993, proposed an amendment to ensure that in Quebec only one environmental assessment act would apply. There was consensus on this within the National Assembly. We know how strong the National Assembly can be when it speaks with one voice. Members of both the Parti Québécois and the Liberal Party spoke with one voice at the National Assembly on the issue of environmental assessment.

Dealing with offenders in a community is not a simple affair. I will give you an example. Canadian Pacific is a very bad corporate citizen. In Hochelaga—Maisonneuve, near Moreau Street, in the western part of my riding, there is a railway line. Six trains use it every day. Hochelaga—Maisonneuve has many assets: their pools, the subway, it is near the Olympic Stadium and various communications lines, and Canadian Pacific runs six trains through it every day. There are very few tools available to legislators. I wrote the minister and I made suggestions for bringing Canadian Pacific into line. If Canadian Pacific were fined for doing nothing to decrease the noise generated when two locomotives scrape against each other, preventing people from sleeping at night, do you not think its relationship with people would change?

The purpose of the member for Saint-Hyacinthe—Bagot's amendment is to ensure that if there are offenders, if there are people who do not respect our environmental heritage on reserves and in that environment, there will be effective ways of intervening. It is not a simple affair for lawmakers. I would so far as to say that it is humiliating to adopt legislation and then to realize that we have no recourse.

The member for Saint-Hyacinthe—Bagot is a responsible man. In fact, I think that if, in the course of our work, there was to be a show of hands on the appreciation that prevails for the member for Saint-Hyacinthe—Bagot, there would not be very many who would vote against him. People know him as a serious, professional, thorough man, a man who expresses joie de vivre and warmth, which make him a much appreciated member of this committee.

À (1005)

To summarize, Mr. Chairman, one can never be too careful about the environment and we, as legislators, can never be too determined to ensure that we have effective tools at our disposal. We must remember that we are dealing with criminal law, because if ever those fines were not paid, the complaining party could file a request before a court of law for the offender to appear and to be imprisoned. If that individual did not appear, he could be found guilty of contempt of court. I hope that nobody in this room thinks that contempt of court is not a serious matter. It is a most serious offence.

I can't thank the member for Saint-Hyacinthe—Bagot enough for having suggested increasing the $300,000 fine to $500,000. Correct me if I am wrong, Mr. Chairman, but we in the Bloc Québécois believe that the government is preparing to support the amendment. I am convinced that your doing so would be appreciated by aboriginal communities, by those who believe in the preservation of the environment and probably by UNESCO, because there are aboriginal lands that are part of our world heritage.

All those who support the motion of the Bloc Québécois will be doing something in support of aboriginal communities, something to protect natural resources, and we would like to express our gratitude. I would like all of our colleagues to support this, the member for Frontenac, our colleague and parliamentary secretary friend who is friends with the member, Suzanne Tremblay—who is recovering well— the former parliamentary secretary whom I hold in high regard, her colleague who I am not too familiar with, our colleague, a member from Ontario, and Dr. Dromisky. I would say that this amendment is the most important amendment for the Bloc Québécois.

Of course, we will all vote freely. I believe Paul Martin has some very specific ideas on how committees should operate and how members of Parliament should be recognized. Clearly, free votes are an instrument...

À (1010)

The Chair: Thank you, Mr. Ménard.

Mr. Martin, you have the floor.

[English]

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

Thank you, Mr. Ménard, for a very useful amendment.

I thank the member for Saint-Hyacinthe--Bagot for undertaking to try to do what he can, even under severe limitations and under severe duress, to improve this bill and to give voice and representation to the many people who have made submissions to this committee whose views have been ignored: the first nations people who in good faith developed comprehensive analysis briefings that they presented to this committee, with a sense of hope and optimism that their views would be acknowledged and entertained, and even accommodated, only to be disappointed once again.

I think I know one of the motivations for Mr. Loubier when he sought to increase the maximum amount of fine and penalty under clause 19. That is that Mr. Loubier is aware, as I am aware, that these fines are tax deductible. Surely Parliament never intended that breaking the law should be tax deductible; unfortunately, that is the state of the situation under Canada's revenue laws: any fine, any penalty, any levy suffered by anybody can be written off as a tax deduction. We have to revisit the whole idea of fines and penalties. Surely it undermines the deterrent value of a fine if the fine can be mitigated or reduced by being a tax deduction.

One of the most glaring examples of this that we have brought the government's attention to is that Canada Steamship Lines was given the largest single environmental penalty ever in the history of Canada for flushing out their oil tanks in the Halifax harbour. Unfortunately, that fine is minimized and reduced, and the deterrent value of the fine is undermined, because it is 100% tax deductible as a legitimate business expense. As long as you incur the fine in the course of your business and in the course of trying to earn an income, it becomes a business expense.

So I think Mr. Loubier is well within his rights to acknowledge and recognize that if it is the intention to fine somebody $300,000, you want it to hurt that much. You want that person to suffer that amount, so that they will think twice about ever doing this again, whether it's polluting the environment or whatever offence they may have committed.

If you will remember, in the previous amendment by the government they've changed the category under which this type of fine can be levied. Now, under their newly crafted bill, any law or bylaw created by the band dealing with paragraph (e) of subclause 16(1), which is local works, public utilities, or waste management, or any offence of a bylaw under paragraphs (a) or (b) of subclause 17(1), which involve “the protection and conservation of natural resources within the band's reserve and the disposition”--this is amended --“for personal or commercial use of those resources”, or “the protection, conservation and management of wildlife and fish on the band's reserve”.... In any of those categories, if it's the intention of the band's justice system to penalize somebody to the effect of a $300,000 penalty, knowing now what we know--that the person can run down to their chartered accountant and say, “Write this off on my 2003 income tax”--that fine can be reduced by 25%, 50%, 100%, based on the tax status of that company and that fiscal year. It's an absurd situation.

In the evaluation of cases that we've been able to study, even though it's very difficult to get access to the personal, financial taxation status of various companies, of those companies who were penalized for health and safety violations--for instance, killing somebody on the job due to gross negligence, for penalties associated with what we call “corporate murder” in killing people in the workplace--usually the company can only gain about 50% back when they write it off as a tax deduction.

À (1015)

Going on the basis that a $300,000 fine might be reduced by 50% when you write it off as a tax deduction, Mr. Loubier was trying to anticipate that by increasing the fine to $500,000, so that when it's reduced by a tax deduction to $250,000 it still hurts. It's supposed to hurt. It's one of those things that is designed to hurt and inconvenience those who would pollute our environment for their own personal gain or for whatever reason.

I think Mr. Loubier has given more thought to this clause than possibly anybody here, in that he's seen fit to try to mitigate this absurd, outrageous situation: that breaking the law in this country is tax deductible.

It's funny, in the United States there's language specifically in their Revenue Act that says no fine, penalty, or levy--even a levy due to violating an egg marketing quota--is to be considered tax deductible. It specifically states that; it's been that way for 30 years. In Australia and the United Kingdom it's the same. Canada is lagging far behind.

When I introduced a private member's bill to have this absurd situation rectified, Don Boudria, the House leader for the Liberal Party, jumped up and blocked my introducing that bill because, he said, this would have the effect of raising taxes. Stopping a company from writing off a fine somehow has the effect of raising that company's taxes!

Well, it's bad public policy to reward bad behaviour. Rewarding bad behaviour means.... There should never be a situation where anyone should ever gain from criminal activity. This is what the courts have ruled when a criminal, a mass murderer, goes to prison and tries to write a book and sell the rights to a movie company and profits from their malfeasance. That should never happen; it should never be allowed to happen.

We know in this country it does happen. We know it's allowed under the Income Tax Act in this country. We know the Minister of Revenue is unwilling to change it, because we've asked her questions a half a dozen times in the House about it. We know the Minister of Finance won't change it, because we've asked him questions half a dozen times in the House. They've had three years of our consistently asking this question to address it.

Knowing what we now know--that the government refuses to correct this absurd situation--we have to revisit the fines and penalty provisions in every piece of legislation and bump them up accordingly. If we want a deterrent value, the fine has to be an amount that will get their attention.

But it still doesn't answer the question--even though I support Mr. Loubier's amendment and I thank him for bringing it in--and it still doesn't address the issue of interpretation. Do these provisions even apply to the organization and the group that is actually most likely to be in violation, which in fact is the federal government? It is the most active on reserves in terms of interfering. Can the band and council--a sovereign, independent, free nation, if you believe the preamble to this bill--fine the federal government for dumping stuff they don't want on their reserve?

That really does beg the question, Mr. Chairman, and we don't seem to have time to address those issues, given that they've choked off the debate on this subject and choked off the debate on every one of the amendments. In the interests of going forward with the logic I've outlined in Mr. Loubier's amendment, I would like to move a subamendment that reads that the Bloc Québécois amendment number 38 be amended by replacing “$500,000” with “$1 million”. I'd like to table that subamendment with the clerk, if I could.

À (1020)

[Translation]

Mr. Réal Ménard: Could he please repeat that, Mr. Chairman?

[English]

Would you like to repeat, please?

Mr. Pat Martin: I'd be happy to repeat it.

The subamendment I propose, to alter the effect of the Bloc Québécois motion 38--and I hope it's accepted as a friendly amendment--will read that BQ-38 be amended by replacing “$500,000” with “$1 million”.

[Translation]

Mr. Réal Ménard: A point of order, Mr. Chairman.

The Chair: Yes, Mr. Ménard.

Mr. Réal Ménard: I'm wondering if, in a spirit of true collaboration, given that the author of the amendment appears to have raised some extremely relevant points, and given that our colleague...

The Chair: Please make your point.

Mr. Réal Ménard: I'm getting there, Mr. Chairman. Don't rush me. You're a little tiring.

Mr. Chairman, could we stand that amendment so that I can consult my colleague?

The Chair: That is not a point of order. If you would like to propose a motion to stand consideration of the sub-amendment, do so.

Mr. Réal Ménard: No. I'm asking for some direction from the chairman. Could we stand the amendment to give me time to consult the member for Saint-Hyacinthe—Bagot? That has happened in the committee's deliberations.

[English]

The Chair: Mr. Martin, speak to your subamendment.

[Translation]

Mr. Réal Ménard: You are not familiar with the procedure, Mr. Chairman.

[English]

Mr. Pat Martin: Mr. Chairman, do I have the floor?

The Chair: You have the floor on your subamendment.

Mr. Pat Martin: Mr. Chairman, speaking to the subamendment, as is my practice, I'm trying to refer as often as possible to submissions made by first nations and others who came before the committee in the spirit of cooperation to try to get the government's ear on what their concerns are as they pertain to self-governance and to the effect and impact of this bill.

I've pointed out that I admire and respect the work done by so many of the presenters, because they did so without resources. They did so without funding, with what you could say was very short notice and very little consultation. And many, in spite of those barriers and obstacles, put together very credible briefs on very intricate and complicated aspects, in some cases on constitutional law, in some cases on the division of powers as it pertains to the Constitution--issues that most Canadians would have difficulty even getting their minds around. The reason they were able to make such substantial contributions to the work of this committee is that these are the authorities on this subject. These are the very experts in this field, because many of the leadership of the first nations communities who came and presented here have dedicated their lives to this issue. They eat and breath and sleep these issues, because these are the issues that govern their very lives and their very existence.

So when they do come before this committee and make heartfelt, passionate submissions, it's arrogant on our part to not take these into serious consideration. Given the fact that we have this bill at first reading, where we're still trying to define...by definition, it's our job to define the principles of this bill when it's a study at first reading. For us to not incorporate what we heard in the submissions means we're not doing our job, not fulfilling our obligation.

So as often as possible I seek to refer to specific submissions made regarding various clauses in the bill, in the overall context that we reject this bill in its entirety. We object to it and we oppose it, and the overwhelming majority of presenters before the committee opposed it.

When the Canadian Bar Association comes before this committee and says the CBA's “primary objectives are improvement in the law and improvement in the administration of justice. It is for these reasons that we ask that this bill be withdrawn.” For us to fail to listen to even non-aboriginal members of civil society who have appealed to this committee to withdraw this bill and to stop this madness means we're not only not doing our job, but we're walking into serious problems, and it's faulty.

Speaking to this amendment I'm seeking to achieve today, let's listen to Chief Judith Sayers, the chief of the Hupacasath first nation and co-author of the seminal document regarding the administration of the Indian Act as it pertains to women. Chief Sayers is a noted authority on the historic injustices of the Indian Act and has written very credible documents, briefs, and papers on behalf of and in cooperation with the government on first nations issues. I quote her comment:

As for the enforcement sections, we appreciate the fact that someone has finally recognized that the small fines and imprisonment weren't working--finally. There are teeth to those laws, but it has to be recognized that there is no parallel system for us to enforce them. Where is the right to have our own justice system? Where is the money going to come from? Where do we find the money to hire an enforcement officer? The RCMP will only enforce those laws that have criminal intent. I know my community can't afford to hire enforcement law, so what good is it? What good is it, really?

À (1025)

She goes on to say:

Who gets the fines from the tickets? While we can enter into contracts with local provincial courts, who is going to pay them for the administration of justice? I'm sure the fines we're going to generate aren't going to give us enough money to even pay those courts. So you can see that while the minister has proposed a greater increase in fines, that makes it.... How do we implement it? How do we change it, without that whole issue--

[Translation]

Mr. Réal Ménard: On a point of order. Excuse me, dear colleague.

Could you make sure that there is a quorum? I do not believe there is a quorum.

The Chair: Given the lack of a quorum, I will suspend the sitting.

À (1026)

À (1055)

[English]

The Chair: Mr. Martin, you are at 5 minutes, 16 seconds. The floor is yours.

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

I'll resume my remarks regarding amendment BQ-38. The subamendment I proposed to amendment BQ-38 seeks to change the dollar figure of the maximum fine that can be assigned by laws made by a band or council in the event of a contravention of any of the provisions itemized in paragraphs 16(1)(e) or 17(1)(a) or (b).

Mr. Chairman, it was our view, or the view of the opposition parties, that the fine as contemplated in the original Bill C-7 was woefully inadequate when you factored in the reality of the Canadian tax law. The reality of Canadian tax law is that a fine, a penalty, or a levy can be deducted as a legitimate business expense if that fine or levy was incurred in the course of earning income. It's the way the courts rule this.

It's an absurd situation. It's fundamentally wrong. The most glaring recent example is, of course, the former Minister of Finance's--the future Prime Minister's--own company, Canada Steamship Lines. Canada Steamship Lines has been fined the largest single fine in Canadian history recently for dumping their waste from ships into the waters. But that fine will be diminished, and the deterrent value of that fine will be undermined when the current managers of Canada Steamship Lines write that off, surely, in their income tax.

We don't know they have written it off, but we know they are allowed to write it off. It's an absurd situation. It causes all of us who are engaged in any kind of legislative capacity looking at fines as they pertain to offences...if we're looking at the fines and the effect we want them to have, then we have to take into serious consideration the fact that the fine will automatically be cut in half. Based on the tax status of the company, the fine could be reduced even further to where it wouldn't have negative or deterrent effect at all.

We should be coming from the basic public policy point of view that breaking the law should never be tax deductible, that we never want to reward bad behaviour or even contemplate undermining our own judicial system with such a contradiction within our revenue system.

We brought attention to this issue. I thank the Bloc for bringing attention to this issue, first, for trying to increase the amount of the fine contemplated under clause 19 from $300,000 to $500,000. In the spirit of cooperation, I offered a friendly amendment to expand that thought, take that thought one step further, to make the fine $1 million.

I suppose it's hard to visualize in what context a fine of that size would be applied. I note in many provincial jurisdictions, and even in federal jurisdictions, it's rare to see a fine of that size. Even the largest fine ever given for polluting, given recently to Paul Martin's former company, Canada Steamship Lines, was only $250,000. That's the largest in Canadian history for a fine of that nature--for dumping sludge out of the holds of ships into waters.

When we contemplate that a band law may provide for fines due to a contravention up to $1 million, that is giving some serious weight, some serious clout, in terms of providing a deterrent. The questions that need to be answered, and probably will not be answered in the context of this study of the clause-by-clause analysis of this bill, are on the application of this law, the interpretation of this law, who it will apply to. We need to know, because it's not an infrequent thing for the federal government's agents or officers themselves to be active on reserve land.

Á (1100)

Now, if you're fined for trespassing, for instance.... Would the minister himself have to get permission to come on to reserve land or be subject to a fine for trespassing, or would these laws not apply to the Crown or agents of the Crown?

The application of a law is critically important.

The Chair: Thank you, Mr. Martin.

Monsieur Ménard.

[Translation]

Mr. Réal Ménard: Thank you, Mr. Chairman.

Mr. Chairman, I have rather good news for you. I know that these are not always easy times, and we are going to try and give you good news at times.

I have consulted, and in the spirit of cooperation, we are going to agree to the amendment. We are going to support it and we are going to cooperate so that it is passed. We expect the same on your part because this is a friendly amendment, as they say in English.

Yes, I have consulted and I wish to tell the committee that we will be supporting it.

Mr. Chairman, we are dealing with the essentials. There is no question of...

[English]

Mr. Pat Martin: Set a new tone of cooperation in the room.

[Translation]

Mr. Réal Ménard: Yes, we do have limited alliances.

What did you say, Mr. Chairman?

The Chair: I have to give you a feather too.

Mr. Réal Ménard: I deserve that, Mr. Chairman. I quite like feathers. I am not unfamiliar with feather boas, you know. Mr. Chairman, I would be delighted. If I were given one, I would be very honoured, because that is a very important symbol. My colleague, the member for Saint-Hyacinthe—Bagot was very honoured by this mark of confidence.

I am basically saying we support the amendment. I hope the Bloc's support for the NDP amendment will be contagious among government members. Mr. Chairman, to get back to the point: nothing is more highly valued by our fellow Canadians than the environment.

I have to tell you that in the past, the government has at times been rather soft on environmental issues. It did not always have the teeth required for the job. Remember the battle the member for Rosemont—Petite-Patrie had to wage in order for the government to ratify the Kyoto Protocol fast enough. If it were not for the Bloc Québécois, that would still not be done. But we are what we are, and our sense of responsibility and our vigilance as members of the opposition made it possible, under the constant fire of questions and with the vigilance of the member for Rosemont—Petite-Patrie and of all of the members of the Bloc, for us to achieve what we have.

I would like to ask our viewers not to adjust their sets when they hear the Member for LaSalle—Émard saying he does not support the government bill. We are not having technical difficulties; that is what he actually said on the Saturday evening news. It was clear the Member for LaSalle—Émard did not intend to enact the legislation as it stands, with its current provisions. We will obviously support him in that endeavour.

Mr. Chairman, the amendment of our colleague from the NDP, in a spirit of neo-Bolshevism, proposes to increase the amount from $500,000 to $1 million. Any law student who has attended lectures on sentencing knows that the fine has to be high enough to deter people who attempt to commit offences. Any threat to the environment of aboriginal communities has to be taken seriously, and the Bloc Québécois has said so from the start of the committee's deliberations. I think all parliamentarians have to take very seriously the possibility that there will be some lawbreakers who need to be dealt with. That is the purpose of fines. Fines are not set for the fun of it; they are for dealing with offences.

Mr. Chairman, I would like to take advantage of the fact that the former parliamentary secretary to the Minister of the Environment, my very kind, lovely and dear friend, is here. I cannot remember the name of her riding, but perhaps someone could whisper it to me. So the former parliamentary secretary to the Minister of the Environment, who represented the hardliners in the Liberal caucus on this issue, would be betraying her past and her legacy if she did not support this amendment. I am full of hope that in a spirit of consistency and reconciliation, she will be the conscience of the Liberal government on this issue and support our amendment.

Mr. Chairman, the amendment of our colleague Pat Martin is an economic development amendment. We have gone beyond thinking of the future of first nations simply of terms of transfer payments. The time has come to tell aboriginal communities that when it comes to economic development, they can do it, they are the developers, they can have megaprojects, and they can take care of their communities. In order to do that, they have to deal with the whole issue of human resources development and training, but they also need access to resources. That is why the Bloc Québécois and our NDP colleague have put forward an amendment to send a clear message: where there is deliberate squandering of resources, where there is disregard for the environmental heritage of the aboriginal communities, Parliament is going to bare its teeth. We are not talking about a small, insignificant, meaningless, spineless, light fine. Parliament is going to impose a fine of $1 million. I am grateful to our colleague from the NDP.

Mr. Chairman, we must not forget that the Member for LaSalle—Émard, who is a candidate for the leadership of the Liberal Party, was unfortunately the head of a company that was environmentally deficient, uncooperative and delinquent.

Á (1105)

So I think I can say that if the Member for Saint-Hyacinthe—Bagot—I always get quite emotional when I say his name—were here today, he would support this amendment. All of the members of the Bloc Québécois support this amendment. We do so, Mr. Chairman, with the conviction that there is one value around which there is a huge consensus in Canadian society, and that is environmental protection. At the same time, Mr. Chairman, we no longer think of economic development as being at odds with protection of our environmental heritage.

In the amendment put forward by the Bloc Québécois and enhanced by our colleague from the NDP, there is a nod to the polluter-pays principle. Am I to understand that our colleague from the NDP, like the Bloc Québécois, has given the nod to the polluter-pays principle? We hope that when there are offences, meaningful action will be taken.

Mr. Chairman, I hope everyone realizes that what we are dealing with here is criminal law. I hope no one thinks a mere fine is going to solve everything. There are provisions. It is interesting that we are talking about criminal law, because all members received in their offices material from the Law Reform Commission of Canada about what a criminal offence is. Do you know when the last white paper on criminal law was published? It was when the former Minister of Justice, Jean Chrétien, had the Department of Justice release a white paper on the issue of the role of criminal law in society.

What should be criminalized? In 2003, what is an offence? How should we re-examine our whole approach to certain taboos, like prostitution or legalizing marijuana? What do we want to keep in the Criminal Code?

Of course, fines will always have their place. When fines are not respected, a process can be engaged and the person may wind up in court. And we know that in court, the rules of natural justice apply. The person is entitled to be represented. You have the plaintiff, the defendant, and a judge who is hopefully impartial and who can impose fines.

That is important, and that is the idea behind the Bloc Québécois' amendment. The better we do our job as lawmakers and set out clear guidelines for the courts in case there are any challenges, the less judicial discretion there will be. That is what the scales of justice stand for, Mr. Chairman. Rights on one side and obligations on the other; Parliament on one side, and the courts, which have to make the rulings, on the other.

By the way, Mr. Chairman, I was very pleased to hear that one of our witnesses was a professor at the University of Ottawa. I hope he has a great career. I myself am taking some courses at the University of Ottawa. I am going to be taking my 15th and 16th courses. I have taken compulsory courses in law of obligations 1, law of obligations 2, and constitutional law. I got an A+ in constitutional law. So you will not be able to pull the wool over my eyes. I know full well what comes under Quebec's jurisdiction and what comes under federal jurisdiction. And I know, Mr. Chairman, because I took the course, who my constitutional law professor was: he is the current Minister for Canadian Intergovernmental Affairs, the MNA for Chapleau.

By the way, Mr. Chairman, since we are talking about constitutional law, is there anyone who really thinks the bill before us is based on section 35 of the Constitution Act of 1982? No. There is nothing in the bill, Mr. Chairman, about government to government talks, in keeping with section 35. This is a colonialist bill. This is a paternalistic bill. This is a bill that subjugates aboriginal communities. I am sure that one of the first things the new Quebec Minister for Intergovernmental Affairs, who is also responsible...

Á (1110)

The Chair: Mr. Laframboise.

Mr. Réal Ménard: Can I have more time? No?

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): Thank you very much, Mr. Chairman.

First of all, like my colleague, I would like to point out that the Bloc Québécois firmly supports the sub-amendment put forward by the New Democratic Party.

The amount of the fine is often proportional to the amount of deterrence, deterrence in terms of the offences that might be committed on the territories in question, and deterrence for anyone who might have designs on those territories.

Why am I telling you this, and why am I here today? In my riding, Argenteuil—Papineau—Mirabel, we are fortunate to have the Oka reserve. This territory could go through a difficult situation. A company has acquired mining rights on the edge of the aboriginal reserve, not very far from it. The company wants to mine an ore called niobium in a place where environmental studies have already been done and high levels of radon have been detected. The entire community neighbouring the land involved in this mining interest is therefore very concerned about the environmental issues.

So far, the Quebec government still hasn't given an environmental authorization, and the aboriginal community is very concerned about what could happen on the territory of the neighbouring community, which runs alongside its territory. Why? It is underground mining. Could it go on beneath aboriginal territory? So, as I was saying, the amount of the fine equals the amount of corporate deterrence. In the example I am giving you, it is a non-aboriginal company that wants to operate a mine near the reserve and that could mine beneath aboriginal land. In that case, I hope the company would be subject to an environmental fine.

So on-reserve activities can be monitored, but so can activities near reserves to make absolutely sure, Mr. Chairman, that no company ever mines beneath aboriginal territory, or else it will be fined. These fines will deter, and that is why I wanted to say to my colleague from Hochelaga—Maisonneuve that the Bloc Québécois should support the amendment put forward by the New Democratic Party.

Because even though we now have very strict laws, it is difficult to contain economic development, given the profits companies can make. In the example I gave, only one company is currently mining niobium in Quebec. It is a highly sought after, very valuable ore. The profits are therefore staggering, and so are the needs, desires and ambitions of entrepreneurs. So we have to be able to protect ourselves and to protect aboriginal people—it is inevitable in this case—from the potential actions of capitalistic companies that have only one desire, to make a profit at any cost, without regard for the environmental integrity of neighbouring communities and, in the case of the Oka reserve, the aboriginal community.

We have to understand that the size of the fine in the bill, Mr. Chairman, acts as a deterrent not only on those who would run companies on aboriginal territory, but also on those who might operate companies near aboriginal land and who might, particularly in the mining industry, extract ore under aboriginal land.

Á (1115)

You will see that we will be taking this into consideration and presenting amendments in due course to ensure that no one can go under that territory and disregard the regulations in force. The amount of the fine corresponds to the amount of deterrence.

The Bloc Québécois had improved this section by proposing an amendment that would increase the amount from $300,000 to $500,000, and the NDP improved on it further by saying that $1 million would not be too much. My colleague from Hochelaga—Maisonneuve clearly conveyed the message of the Bloc Québécois: yes, we have consulted, and no, a million dollars is not excessive. When the niobium mine is up and running, they will be making a profit of around $1 million per week, Mr. Chairman. So we have to be careful. Society has to try to keep pace with the amount of corporate profits. A million dollars, in my opinion, in the opinion of the Bloc Québécois, is not out of line. The amount has to be proportional, and we will surely make the necessary changes throughout the legislation so that the size of the fines is proportional to what we wish to accomplish today.

Mr. Chairman, you will understand that for the aboriginal community and for us too, it is important that such legislation contain a deterrent. Because we live in a capitalist society, the level of deterrence depends on the size of the fines imposed. Fines of $1 million are not ill-considered in the cases we are discussing.

I would add, more generally, that the statements of the member for LaSalle—Émard with respect to this bill are not insignificant. It is not insignificant. It is a very major sign of division on the government side, and it is to the full credit of members seriously opposed to this bill, including our dear colleague from Saint-Hyacinthe—Bagot and all of the other colleagues from the other opposition parties, who have clearly demonstrated their opposition to this bill, which, by the way, was not well received by the aboriginal community. The statement of the member for LaSalle—Émard is not insignificant, and it is not insignificant that we are still here at your committee, Mr. Chairman, discussing a bill that should obviously never have seen the light of day.

I am happy to take part in a debate today on what the penalty should be, Mr. Chairman, and to say that there should be a $1 million fine and to defend all that. The problem is that this is probably not the right bill and probably not the right time. When the party in power, the Liberal Party, tables a bill, it should at least make sure that the affected communities take part and that there is unity within the party, which is clearly not the case. It makes it all the easier for opposition members to tear the bill apart, which we are doing valiantly, but the fact remains that this is a waste of precious time for all of the members of Parliament on your committee, Mr. Chairman, when it is not even a sure thing that the Liberal Party will back this bill. Excuse me for putting it so bluntly.

Á (1120)

[English]

The Chair: Merci, Monsieur Laframbroise.

Mr. Martin, you may give your closing remarks on your subamendment.

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

And thank you for the interventions by both the members for the Bloc Québécois and what they've added to the debate surrounding this particular clause. Many of the points they've made I've made detailed notes about and have entered into the volume of the record we're keeping regarding the horrendous situation of this bill and the permanent record we'll be keeping regarding the failure of the government to recognize and accurately reflect the many submissions made in this regard by first nations people.

I would like to begin where my colleague from the Bloc left off in his comment that a fine must be in keeping with the seriousness of the offence. How do we as members of Parliament around this table, without the participation or input from first nations even, arrive at any dollar figure that might be suitable for the seriousness of the offence? I'd pose the philosophical question: is it not a contradiction of the very idea of self-government for us to predetermine and dictate what shall be the outcome of such an offence that may or may not take place down the road?

Even my dollar figure of $1 million, which I put forward and others have very generously accepted as a logical and acceptable figure, I'm beginning to question. A company, a business in free enterprise, will do a risk analysis or assessment knowing, as they will on the public record, that the maximum fine you can receive for the environmental degradation of a first nation reserve will be $1 million.

What if in fact they could save $3 million in trucking charges by dumping this debris in the first nation rather than driving it another 100 kilometres to a legitimate dumping site and paying a fee at that dumping site--just as an example? If it's a $3 million saving and $1 million fine, people will be motivated in the same way that Mr. Cowpland was motivated by the insider trading fine when he gained $7 million by insider trading and paid a $1 million fine because of insider trading--he was penalized by the Ontario Securities Commission--for a net profit of $6 million and a little bit of public humiliation.

I'm really staring to consider that maybe sometimes as we get caught up in the minutiae of this bill we forget the bigger picture: that first nations have sovereignty. It says so right in the Constitution, it says so right in the preamble to this bill, and it says so in the purpose of this bill: that we accept the sovereignty and independence of first nations to act with self-governance and self-determination.

Then where do we get off dictating what the maximum fine will be that they can impose under their laws and in the areas of their jurisdiction and on their reserve lands? What business is it of members of this committee, and where do we get the right to dictate those things?

We should be thinking in the larger context. Sometimes we get caught up, frankly, Mr. Chairman, in the attitude demonstrated by the Prime Minister yesterday, which is a terrible thing to witness, when, in answer to a question by the member from Winnipeg--Transcona.... This is the answer the Prime Minister gave. He said:

Mr. Speaker, the problem concerning the management of native reserves and native affairs is an extremely important problem that has been debated for a long time. The renewal of the Indian Act is something that has been discussed. I was discussing it when I was Minister of Indian and Northern Affairs. The problem is that a lot of people do not want to change things, like the NDP.

--an absolute falsehood--

Those members are always for the status quo while we in the Liberal Party want to find new ways to manage the problems of the nation, including the native problem.

Until I heard that statement I wasn't aware that Liberal members of the committee were addressing something called “the native problem”. A lot of first nations people would resent, I think, having themselves referred to as “a problem”. We on this side of the table are trying to address the question of first nations governance. We don't view first nations governance as “a problem”. The Liberal side seems to be dealing with this whole issue as managing a problem they have. Well, they're creating a problem. There could in fact well be a native problem, as my colleague here who represents the area from Oka....

Á (1125)

I don't ever want to see this government put first nations in a position where they believe they have no avenue of recourse other than civil disobedience to the point where it exceeds peaceful protests and becomes a violent outburst, as we saw in the tragic incident of Oka. Yet we are provoking that sort of confrontation with the arrogance and the paternalism found in this bill.

Ipperwash. Those of us around this table should be acutely aware of the tragic death of Dudley George. The first time we took up arms against our own people, in effect, the first casualty in the Indian wars, if you will, in this country in recent history was at Ipperwash where Dudley George and the people of Stoney Point occupied land that was the subject of a specific land claim, an area of a park, after the park had closed for the season, the gates were closed, there were no tourists, but as a demonstration the people of that area pitched their tents on that property--

The Chair: We're allowing you to get off the issue. We've been doing that for 13 weeks. But please don't go there. Ipperwash is another thing.

Mr. Pat Martin: Mr. Chair, I think it is relevant in that if we don't allow these amendments--

The Chair: It is definitely not relevant. Stay off the subject if you want, but let's not go to issues as contentious as that, please.

Mr. Pat Martin: I will yield to your concerns just out of respect for the chair.

Á (1130)

The Chair: Thank you very much.

Mr. Pat Martin: Having made the point, I believe there are abstract issues and broader philosophical issues that we're failing to address as we deal with the minutiae of this bill.

Let me say, Mr. Chairman, that we had a presentation--I'm fond of making reference to the many submissions that were made to the committee and were ignored--by Professor John Whyte, who is a Senior Policy Fellow at the Saskatchewan Institute of Public Policy at the University of Regina. He told the committee that in his reading of the general public there's an increased willingness for such things as justice and correctional systems.

Some of the questions that were raised regarding these particular clauses are, how do we enforce them, how do first nations enforce them no matter what the level of fine is to be? Where does the funding come from for the enforcement officers? What do you do with people who you convict who won't pay the fine and who have to be subjected then to prison sentences? What institution do you send these people to and under what authority? Then what billing process will take place if you're going to purchase space in an institution, or do first nations want to have their own correctional facilities or prison institutions?

Our instinct is to say yes, as in the submission made by Professor Whyte. Do they wish to have tribal courts and tribal laws? He says:

I would be exaggerating to say our instinct was to say yes, but our instinct is not to say no and to begin to explore what that would mean and how that coordination could take place.

Do first nations want to have courts with a far better fit with the Cree population in northern Saskatchewan in the context of his presentation? The answer is yes, and to fund it and to implement it.

Do first nations wish to take over the problem of children at risk? The instinct is to say yes. I'm proud to say that in Manitoba we've just handed over the jurisdiction for child and family services, finally, in an official transfer, to the child and family services for first nations in that province. The Peter Ballantyne first nations child and family services agency was created in northern Saskatchewan as well to have the cultural fit for institutions as it pertains to child and family services, and by extension to other matters of justice.

The last point I will make with what time I have left, Mr. Chair, is that our fear is now in the conflict section of clauses 16 and 17, that in the event of a conflict between a law made under this clause and an act of Parliament, the act of Parliament or its regulations will always have primacy, will always override the laws made by the band and council.

Even though there is no such conflict of laws provision in clause 19, the first government amendment pertaining to clause 19 drew back to clauses 16 and 17. Therefore, clause 19 and the offences--

The Chair: Thank you, Mr. Martin.

Now for the vote on the subamendment. We'll have a recorded vote, BQ-38, page 163.

(Motion negatived: nays 8; yeas 3)

The Chair: There are 18 minutes left before the vote.

Ms. Neville, on the amendment.

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

I'm really quite puzzled by this amendment put forward by the Bloc, and in saying that, I very much have to say I appreciated Mr. Ménard's, my colleague's, intervention because it was lively and it was well thought out.

But as I'm listening to the discussion across the way, I've been thinking, as my colleague who is sitting beside me said, the whole discussion defies logic. We have seen two amendments coming forward from this party that have been increasingly punitive. I think it was BQ-37 that increased the sentencing from three months to six months. We now have one that's increasing the dollar fine even further from $300,000. My understanding is that the current ceiling of $300,000 is consistent with all other legislation, both at the provincial and federal level, and was recommended by Environment Canada. Why, in this situation, one would impose a heavier fine, again, defies logic.

We've heard much about the relief of fines under the tax system. I can't speak to that issue, but if that is in fact the case, why would one increase the benefit that one received under the tax system by increasing the amount of money one could claim? One assumes that the fine, or the prison sentence, or whatever would simply apply to those who are off reserve, not members of the reserve. Why would one increase the punishment? Why would one increase the dollar fine to those who one is trying to encourage to get into business, who one assumes are not paying tax in that situation if they are on-reserve members? So again, for me, it defies logic.

My understanding is that there's a review of the CEPA Act, and if this fine is to be increased it strikes me that that's the appropriate area where representation should be made. But to single out either those doing business on reserve, members of the reserve who are indeed conducting business, with a different level of punishment strikes me as somewhat unusual.

We heard from my colleague opposite quoting the Prime Minister using the words “native problem”. I don't think there are any of us sitting around this table, Mr. Chair, who would not agree that there are many problems that native people have to encounter, whether they're the problems of poverty or the problems of lack of educational opportunity. We've heard much about them, and I think our real task is to get this legislation through to enable those who are governing first nations to address in a more fulsome manner the real issues that are facing aboriginal people.

Those are my comments.

Á (1135)

The Chair: Thank you, Ms. Neville.

Mr. Ménard, not being here for closing remarks, can we go to the question?

Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Mr. Chairman, in conclusion, I would like to respond to what Ms. Neville has just mentioned. She said that fines were a tax deduction for companies, and that the higher the fine, the higher the tax deduction would be. Well, I hope that the party in power will look into this. That makes no sense, Mr. Chairman. The government is defending companies by saying that it will impose lower fines so that the companies' tax deductions will not be too high. I hope that the Liberal Party will look into this, Mr. Chairman. It makes no sense. Fines are supposed to discourage people from breaking the law, Mr. Chairman.

The Bloc Québécois is sticking to its position. We propose that the fine be raised from $300,000 to $500,000 as a disincentive to breaking the law.

Second, Mr. Chairman, aboriginal people have always shown respect for their land. In my opinion, the aboriginal people are not the ones who will be affected by the fines, but rather companies whose owners do not represent aboriginal nations and who are using aboriginal land. I gave you the example of the Oka reserve. The community is worried that a capitalist business will be running the niobium mine and that there will be an impact on aboriginal land.

So the purpose of fines is to discourage non-aboriginal businesses, Mr. Chairman. Of course, aboriginal people are covered by this legislation, but I know that they show a great deal of respect for their land. We need to discourage capitalists from using aboriginal land. I am sorry, Mr. Chairman, but the only language that capitalists understand is fines. There is a reason that the Bloc Québécois is proposing this amendment. I think that it is perfectly logical to increase the fines in order to discourage all businesses. We supported the NDP sub-amendment because, all things considered, a fine of $1 million is not excessive.

You will understand that our amendment proposing a fine of $500,000 is reasonable. I repeat, and I can never repeat it enough, Mr. Chairman, that I hope that the Liberal government will look into this and if businesses that are now polluting are in the habit of simply writing off fines as part of their expenses, Canada has a serious problem. I hope that you will do this, since Quebec will not tolerate for very long a situation where businesses cause pollution, whether on aboriginal land or elsewhere, and write off the fines as business expenses.

We have a serious problem, Mr. Chairman, and I hope that it will be dealt with. I also hope that Ms. Neville's remarks will be the last time I hear about this subject at this committee. We have to stop saying that we will not increase fines because, in any case, businesses can deduct the amount on their income tax return. That's all there is to it, Mr. Chairman.

The Bloc Québécois is of the view that the fine in clause 19 of the bill must be increased so that any capitalist business guilty of environmental violations on aboriginal territory will be subject to a very hefty fine whose main purpose will be to act as a deterrent. I would challenge the government to amend all the tax laws to prevent companies from being able to deduct fines for tax purposes. The government's responsibility is to ensure that if what Ms. Neville is telling us is true, that is, that there are businesses in Canada that no longer worry about breaking the law simply because any fines imposed on them are now tax deductible as expenses, then steps will be taken to correct the situation.

Á (1140)

Right now, when businesses do up their budget, they set aside a small amount for fines and losses. These things are part of a budget item and are tax deductible. I find that incredible.

The aboriginal communities are being told today that the fines will not be increased for the simple reason that businesses can write them off as tax deductions. It would only increase the tax deductions available to these free-market enterprises, we are being told. I have a problem with that.

Mr. Chairman, our amendment deals with the fine, but there are other laws that have been passed by Parliament that could be amended. In view of the speech last weekend by the member for LaSalle--Émard, and given the remarks by opposition members concerning Bill C-7, who did everything possible to try to make the government understand that this was not the time to table legislation that was not supported by the communities concerned, I hope that the government will make it a priority to table legislation quickly to amend the Income Tax Act so that companies can no longer use fines as tax deductions. That is what is happening, Mr. Chairman. When Ms. Neville tells us that the fines are not being increased because businesses can deduct them in any case, she is confirming the fact that every year, when businesses prepare their budget forecasts, or sometimes even their five-year forecasts, they include fines as a budget item. They are not concerned about fines, which they calculate into their income and expenditures. That is why many people say that businesses no longer worry about environmental laws in Canada, and that was confirmed for us by Ms. Neville. They are not worried simply because...

The Chair: Members cannot be named in this committee.

Mr. Mario Laframboise: But she named Mr. Ménard earlier. That is why I did that, Mr. Chairman.

The Chair: You are going to have to stop.

Mr. Mario Laframboise: All right. From now on, I will no longer use names. Thank you, Mr. Chairman.

So it is important that the Liberals table legislation quickly to amend the Income Tax Act so that companies can no longer deduct environmental fines as expenses. In that way, these fines will actually have an impact on businesses. Right now, they can consider these fines as expenses and take them into account in their budgets. Moreover, the government allows tax deductions for these fines. Businesses do not even pay tax on the amount of the fine.

Mr. Chairman, the Bloc Québécois is sticking with its amendment to increase the fine from $300,000 to $500,000, with the aim of discouraging those who might break the law. I repeat that this is not an attack on aboriginal autonomy. I am sure that aboriginal businesses would not commit environmental violations on their territory.

For example, I am a lot more concerned that, in the case of the Oka reserve, a free-market capitalist business might buy the niobium mine and operate it under aboriginal territory, releasing radon and endangering the aboriginal population.

Mr. Chairman, you will understand that the Bloc Québécois' idea is basically to discourage capitalist businesses, which are often located outside aboriginal territory, belong to non-aboriginal people and contaminate the land used by aboriginal people. We have a duty to impose adequate fines to discourage these businesses. Moreover, Mr. Chairman, other tax legislation in force in Canada needs to be amended so that we no longer hear what the Liberal member has told us, that is, that the fines should not be increased because they are tax deductible in any case.

Mr. Chairman, this is not the first time that I have heard the Liberal Party talk about such absurdities in this Parliament, but we need nonetheless to—

Á (1145)

The Chair: Mr. Laframboise, thank you.

[English]

We'll have a recorded vote on BQ-38, page 163.

(Amendment negatived: nays 8; yeas 3)

The Chair: Now you move that we suspend for the vote?

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): I'm moving that we suspend for the vote, and once we get back, when we have quorum, we resume.

The Chair: Thank you, Mr. Vellacott.

All in favour?

(Motion agreed to)

The Chair: The meeting is suspended.

Á (1147)

Â (1212)

[Translation]

The Chair: Mr. Laframboise, please present amendment BQ-39.

Mr. Mario Laframboise: Thank you, Mr. Chairman.

This Bloc Québécois amendment, which was prepared by my colleague, the member for Saint-Hyacinthe--Bagot, would amend Bill C-7 in clause 19 by replacing line 19 on page 14 with the following:

exceeding one year, or by both

The bill provides for "a term of imprisonment not exceeding six months," and the Bloc Québécois is asking for it to be a maximum of one year. So as you can see, we are seeking to increase the term of imprisonment from six months to one year.

Mr. Chairman, I would like to refer back to the discussion that took place before we went to vote in the House of Commons. A Liberal member told us earlier that the fines could not be increased because businesses merely use them as deductions on their income tax return. Our proposed amendment to increase the term of imprisonment from six months to a year is an important one. I hope that the Liberal members will support the Bloc Québécois in bringing about in this change.

There seems to be a particular approach used by businesses that cause environmental damage. They consider that they do not need to take these things seriously because the fines are tax deductible. That is what our Liberal colleague was telling us. Obviously, we need to change that situation. If businesses, when they are doing their five-year budget forecasts, add in the fines as part of their losses and put the cost of future fines in their budgets, a prison sentence is needed in order to discourage them from doing this.

If the directors and executives of companies that break the law are able to live with the financial consequences of the fines, they will find it much more difficult to live with the possibility of going to prison. So in order to discourage them, we need to provide for a much longer prison term.

Mr. Chairman, this bill deals with aboriginal territory. I know that aboriginal people show great respect for their environment and their territory. Why do we need punitive measures? They are aimed mainly at businesses and other users of aboriginal territory who are non-aboriginal and who cause pollution on aboriginal territory or use it in a way that does not respect the environment. In many cases, these businesses do not belong to aboriginal people and they must be penalized through these provisions.

Of course, we need to try to be consistent. We need to ensure that the fines or imprisonment imposed on these businesses are proportional to the damage caused.

Before continuing, Mr. Chairman, I would like us to check whether or not there is quorum.

Â (1215)

The Chair: We will suspend the meeting because we do not have quorum.

Â (1216)

Â (1222)

The Chair: Mr. Laframboise, you have used four minutes up to now.

Mr. Mario Laframboise: Thank you, Mr. Chairman. Are all our colleagues accredited by their whip, Mr. Chairman?

The Chair: Would you like us to suspend until that is done?

Mr. Mario Laframboise: Yes, please.

[English]

The Chair: We'll suspend until we have the right forms in place.

Â (1220)

Â (1222)

[Translation]

Le président: Mr. Laframboise.

Mr. Mario Laframboise: Mr. Chairman, we are still on amendment BQ-39, which proposes to increase the term of imprisonment. Under the bill, the term of imprisonment cannot exceed six months, and the Bloc Québécois is asking for that maximum to be increased to one year.

The Chair: One moment, Mr. Laframboise. Do you have the interpretation now? You do? Good.

Mr. Laframboise, please go on.

Mr. Mario Laframboise: So in order to be consistent, we need to increase the term of imprisonment. The purpose of these penalties is to act as a disincentive. That is their purpose. Just before we went to vote in the House, the Liberal member was telling us that we should not increase the fines because businesses use them as tax deductions. Businesses are used to getting fines now. In their five-year plans and their yearly budgets, they forecast expenses, including fines, and they are no longer affected by them.

That is dangerous, Mr. Chairman. However, subclause 19(2) provides for a term of imprisonment. If we want to discourage businesses from doing bad things, we need to impose much more stringent penalties on those responsible for the companies. A one-year prison term would be much more appropriate than the six months provided for in the bill, Mr. Chairman. The aim is to deter.

Let us take the example of the Oka or Kanesatake reserve, which is threatened by companies just outside the Kanesatake reserve at Oka. Why? Because there is a capitalist company that wants to operate a niobium mine, which could affect or pollute the territory of the Kanesatake reserve. Of course, the aboriginal community made it very clear to the potential operators that there was a danger, since a large area not very far from the reserve has already been contaminated by radon. Environmental studies have not yet been completed and the Quebec government has not yet given its approval, but that is an example of a situation which could create pollution.

As I was saying, Mr. Chairman, I have confidence in aboriginal communities when it comes to protecting their territory and their environment. People from the aboriginal community are not the ones who are going to contaminate the territory. The problem lies with businesses that have no aboriginal connection and that are going to cause pollution on aboriginal territory.

The purpose of the prison terms is to discourage anyone who might contaminate aboriginal territory. We need to stop thinking that these penalties will hurt the community. I have confidence in aboriginal people, because I know that they protect their territory and have great deal of respect for the environment. However, we need to discourage free-market capitalist businesses from contaminating aboriginal territory. That is why it is important for the level of fines to be appropriate.

Members on the Liberal side told us that businesses include these fines as part of their losses, that these fines do not bother companies, and that increasing the amounts would have no effect. I hope that they will support this amendment because it deals with prison terms, which will discourage companies from polluting. The prison terms are meant as a disincentive. Why is a term of imprisonment provided for? The purpose is not to make money, but rather to discourage environmental contamination.

The amendment being proposed by the Bloc Québécois, which would increase the maximum term of imprisonment to one year, is well justified, in my opinion, especially because the Liberal member has told us that businesses routinely treat the fines as expenses.

Mr. Chairman, the problem is especially serious because all during the remarks...

Â (1225)

[English]

The Chair: Merci.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I'm happy to enter into the debate on Bloc amendment BQ-39. It's worth noting that the Bloc Québecois, and frankly all the opposition parties, have consistently filed thoughtful amendments in the interests of improving this bill.

We're putting these amendments forward in the spirit of cooperation, in a spirit of goodwill, and in an optimism that the government will see fit to heed the remarks and the submissions made by the many first nations who made presentations to the committee. That hasn't borne out to be true yet, although that's the perception the Liberal government would like to extend, or to have the general public think, at least, that the government is in fact making an earnest effort to improve this bill or to address the urgent needs brought to our attention by first nations.

In fact it's anything but the truth. The government is simply rubber stamping this bill in its original form. It's an original form that was not drafted in consultation or participation with first nations people. There was no legitimate consultation that took place with first nations people, and that alone invalidates and makes it a less than legitimate process and a less than legitimate bill.

Even as recently as yesterday, the Prime Minister and the minister were both bragging in the House of Commons that the reason this bill was presented to the committee after first reading is that when it comes to the committee after first reading there's still flexibility. We're still really negotiating or fleshing out the principles of the bill and giving direction essentially to government to take into account the issues raised at first reading.

Well, everything raised at this first reading, clause-by-clause analysis of the bill has been disregarded summarily out of hand by the government. We have legal opinions that this bill infringes on constitutionally recognized aboriginal and treaty rights. The government claims to have claims to the contrary, but they won't table those opinions. They won't show them to us. They won't give us the documentation. They won't even give us a briefing note that has the same details and information that the government-side members have. This conspiracy to misrepresent this bill as being about transparency and accountability.... Well, how transparent and accountable are they being when they won't even share the legal opinions developed by their government as to the impact of this bill on court cases or on the Constitution?

Other committees, committees with courage, stood up and refused to proceed with the clause-by-clause analysis of the bill they were debating until such time as the government was forthright and fully shared all of the documentation and legal opinions pertaining to the impact of that bill. I'm talking about the government operations committee and Bill C-25. Interestingly enough, it was Liberal members of that committee who insisted on putting an end to this cult of secrecy around the PCO and the Prime Minister's office in terms of hoarding information and keeping it away from the very people who deserve to have that information.

We shouldn't even be carrying on with this exercise, Mr. Chairman. First we have virtually every first nation in the country clearly articulating that they do not support this bill--that it falls short and it's not the changes to the Indian Act they wish to proceed with. That's all we should need to know. We shouldn't have to hear anything more. Our partners in this exercise don't like this particular model that the government has proposed without consultation.

Yes, there are issues about accountability and transparency that must and should be dealt with. This package isn't it. Yes, there are issues about self-governance that need to be negotiated. But they need to be negotiated, not superimposed by the all-powerful federal government in this case. It's an extension of paternalistic colonialism to assume that the government can impose codes of conduct and regulations on first nations.

Â (1230)

If we are to acknowledge that first nations have the right to self-determination, then it's in complete contrast and contradiction to behave in this way.

The other thing I object to is the unreasonable schedule and the false sense of urgency associated with this bill. We're scheduled now to meet until 4:30 a.m. tomorrow when we have to give up this room, so that it can be reconfigured for the caucus meeting to be held in this room later that morning. Where is the urgency about tinkering bureaucratic amendments to the Indian Act that would justify keeping a bunch of middle-aged, heart-attack-prone men up all through the night, risking their health and well-being? Not the least of which is that this is my twenty-fifth wedding anniversary. I'm dead when I get home to Winnipeg because I can't be in the loving arms of my good wife on my own twenty-fifth wedding anniversary because of the intransigence of this government in trying to ram through a bill that nobody wants.

The third thing that's wrong with this scenario is the price tag. The honourable member from Wild Rose will be shocked to learn that the proposed price tag by the cabinet minister's own internal document, memorandum to cabinet, is $550 million to force these amendments down the throats of 633 first nations that have said they neither want nor need them in terms of their own wishes. That estimate, we figure, is low because that contemplates cooperation from the first nations in making these sweeping changes to the rules of governance under which they will conduct themselves or are bound to conduct themselves.

If they run into any resistance or even lack of cooperation on the part of those first nations that have already informed us they do not intend to go gently into this new arrangement--this new regime as envisioned by the government--then that figure of $550 million could turn into a billion over night and could compound exponentially from there, because under what force does the minister intend to be able to change these rules of practice among first nations if the willingness isn't there?

The amendment moved forward by my honourable friend here at least contemplates, or at least gets this committee to be seized of the issue, that first nations have the right to apply fines, and in the same extension of that right they have a right to impose prison sentences.

I would like to know more detail, but what I am critical of is that we shouldn't be predetermining what fines and what prison sentences these convictions will be punished with.

In the interests of not tying the hands of first nations, I propose a subamendment to BQ-39, and the subamendment would be that BQ-39 be amended by replacing “one year” with “two years”. In other words, deleting the word “one” and substituting the word “two” in the interests of continuing this debate.

Â (1235)

The Chair: Mr. Martin, on your subamendment.

Mr. Pat Martin: Thank you.

Mr. Chairman, the inherent right to self-government and self-determination is recognized in our Constitution, in the preamble of this particular bill, in the purpose section of this bill, in international codes and covenants to which Canada is a signatory, and throughout the entire opening remarks of every speech the minister gives on these issues. The cruel irony is that the First Nations Governance Act is not about self-governance. If it were, we would welcome the opportunity to willingly take part in this exercise.

Ironically, if you were a student studying this issue and you went to the government's own website about the First Nations Governance Act, you would find my name listed as those in support of this bill. That's the dishonesty associated with this bill. Whether it was as a practical joke or just as mischief, some employee of the Department of Indian Affairs took a single-line quote from a statement I made in May 2000, three years ago, and put it up on the departmental website as evidence that an NDP member of Parliament, the aboriginal affairs critic, supports the First Nations Governance Act. Well, it's a bald-faced lie. It's mischief, and whoever did it should be fired. But it's an example of the misrepresentation that's been associated with this whole bill. The irony is a bill that's supposed to be about accountability and transparency is anything but. It's about falsehoods, fraud, and misrepresentation, as far as we can see, Mr. Chairman.

I was going through the number of things that are wrong with us even dealing with this bill. First of all, there are no representatives of the first nations around this table. The only opportunity they get to have any participation at all in this process is when they can ask one of the members of Parliament to voice a concern on their behalf. We've been happy to do that. The three opposition parties that have been attending have been doing their best to represent those views.

You really have to wonder, Mr. Chair, when we're being asked to stay up again till 4:30 in the morning at the risk of our own health and well-being, at the risk of my marriage, and in light of the fact that the soon-to-be Prime Minister of Canada has said categorically that he doesn't intend to implement this piece of legislation anyway because he sees what's wrong with it. Obviously people have reached him and explained the difference between the government's propaganda and what's really in this bill. To his credit, he said things publicly, such as he will not implement this bill; the government should not proceed to vote on this bill as is; this will simply lead to a decade of court cases.

Well, we cautioned them. We were not the only ones to caution them. The Canadian Bar Association cautioned them. University professors, law professors cautioned them. Representatives from every mainstream church presented before the committee and cautioned the federal government that they were making a terrible mistake. Members of civil society--non-aboriginal members of civil society--came forward and said you may be absolutely bang on to want to achieve some standardization of transparency and accountability across first nations, but this bill is not it. You're making a terrible mistake, and you're damaging the relationship between first nations and the federal government in a way that may be irreparable. You're doing chronic damage here.

Well, Mr. Martin, the soon-to-be Prime Minister, doesn't want to be saddled with that mess, I suppose, as he begins his new tenure as Prime Minister. Presumably, he'll have a new Minister of Indian Affairs. The Minister of Indian Affairs doesn't want to inherit what the future Prime Minister calls a quagmire. Who would want to inherit this rats' nest of ill will and bad feelings and court challenges and lack of cooperation? If anything, we've poisoned the well. We've sewered the relationship and set back the relationship by 50 years. Now meaningful change, which will lead to the negotiation of self-government agreements being entered into in a spirit of hostility and distrust and anything but cooperation and collaboration....

Â (1240)

With the former Minister of Finance's own words, I caution this government, when he says:

“We’ve got to have a fresh look at how this partnership is developing. This is a tremendous opportunity if we get it right from both sides,” he said.

But he also said--there is a three-year implementation phase to this bill--“I will not implement this bill as it is.” Well, “as it is” is the only way he's going to get it, because the government has categorically refused to seriously entertain any of the worthwhile amendments that have been brought forward to their attention, and the government has refused to listen to members of civil society and leaders of aboriginal first nations who have serious concerns and who reject this bill.

In contrast to the false statements the federal government lists on their website, let's listen to some of the real statements made to this committee.

The Chiefs of Ontario said:

...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.

Let's hear Frank Cassidy, the professor at the University of Victoria school of public administration:

This bill as it's put forward doesn't reflect Canadian values. This bill is full of distrust and disrespect.

The Canadian Bar Association said:

...the CBA's primary objectives are improvements to the law and in the administration of justice. It is for these reasons that we ask that this bill be withdrawn.

I don't know how you could make it much more clear. Those of us who toured the country for four weeks hearing these submissions heard presentation after presentation of people who are vehemently opposed to this bill and nobody who supported it. There were 191 presentations against and 10 in favour, and of those 10, the minister was one of them. Another of those 10 was from the minister's staff people, the technical advisers.

You can't find anybody who likes this bill, except for the parliamentary secretary. I don't think even his own colleagues really have any feelings one way or the other about the bill. They're just here to rubber stamp the changes and do as they're told and put a bum on the seats over there--that's really the only goal here--so they don't break quorum. There's no real, burning interest on that side to even deal with these issues, to tell you the truth, never mind being attached in any emotional way to the clauses found in Bill C-7.

Why, then, I have to ask ourselves again, are we wasting the energy and resources and the goodwill of this committee and jeopardizing the possibility and missing the opportunity of doing meaningful work along the lines of taking steps towards the true emancipation of aboriginal people and helping them get out from under the Indian Act altogether?

That same amount of energy and resources--financial resources especially--applied to giving meaning and definition to section 35 of the Constitution would be money well spent, to undertake that exercise, as the commitment was made in the Charlottetown accord in 1992, that we would now.... In 1982 we acknowledged the inherent right to self-government of the aboriginal people of Canada. In 1992 we promised we would give meaning and definition to what that promise really means. Now in 2003, another 10 years later, instead of taking steps in that direction, we're tinkering with colonialism. We're modernizing colonialism. We're taking offensive, paternalistic clauses and updating them instead of eradicating them. So there's no comfort to be taken in the work being done by this committee.

The false statement of my support that the government chose to use on the website, quoting me.... I can't deny I said those words--they're in Hansard--but it was soft support to begin with and it was in response to the minister standing up in the House of Commons three years ago saying he intended to amend the Indian Act to reduce the role of the minister and to accentuate the legislative authority of first nations.

Â (1245)

I stood up in the House and said, “Great! That's an exercise I want to be a part of. I support the idea of diminishing the role of the minister as it affects the lives of first nations people.” But instead, the bill that came forward a year and a half later and was tabled--in its final form, I should comment, with no possibility of amendment, or no willingness to make reasonable amendments to the bill--had nothing to do with diminishing the role of the minister. It had everything to do with expanding the role of the minister. It had very little to do with transparency and accountability, and it had everything to do with reducing the government's fiduciary obligations.

The Chair: Thank you, Mr. Martin.

Mr. Reed.

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

I think my honourable friend across the way in the NDP must come from a long line of fruit farmers. He cherry-picks par excellence. His cherry-picking with the gentleman who's running for the leadership of the Liberal Party is very evident. He used some of Mr. Martin's statement, but he didn't include the words “as it is”. And he didn't include:

We are going to bring in accountability, transparency and good governance, and I will ask the First Nations to work with me to make sure that within the shortest time period possible, perhaps within the implementation period, by building up the capacity to deal with accountability, that, in fact, we do bring in the principles without further delay.

I just want to put that on the record, Mr. Chairman.

Now yesterday I was accused of reading a newspaper. I apologize to those who were offended by it, but I have to point out there's a reason. I did not close my ears, but I had heard the same words recycled in this committee so many times I knew what the opposition was going to say. Some words jump out that keep being restated and restated. They have nothing to do with the amendments, nothing to do with the bill. Words like “apartheid”, “white men in suits”, “rubber stamp”, “nobody wants the bill”, “mockery”, “no consultation”, “paternal colonialism”. I hear those recycled comments over and over that do not apply to any attempt made to improve the bill. It is the height, Mr. Chairman, of irresponsibility.

The government so far, and this is only after first reading, remember, is introducing approximately 20 amendments. We have not even approached second reading, at which time more amendments will be able to be presented right on through that period. My friend has said there have been no consultations. I think he qualified it today saying no meaningful consultations--another cherry-picking exercise. Well, I did do a little research, and I did get the report on the consultations that had taken place. Whether the consultations were considered satisfactory or not is for somebody else to judge. But indeed there were consultations, and the impression should never be left that there were no consultations. There certainly were, over a period of, it seems to me, a couple of years.

Now yesterday I had the privilege and honour to read the story of the creation of the five nations, which is now of course the six nations. It is a story that is based partly in fact and partly in legend, I suppose much the same the way the bible was written. And it centres around an individual whose name, and I'm not sure I can pronounce it correctly, was Deganawidah. His work produced a period of peace among the first nations that lasted for 500 years.

I'd like to read a little commentary about that period:

Freedom of Speech was a right so deeply imbedded in the Iroquois way of life as to need no attention in the constitution. Fires burning all over the Five Nations territory symbolized the right of public discussion. Besides the Great Council at Onondaga (the Fire That Never Dies), there were local fires in each nation, each clan, each family; and the women had their fires as well as the men.

Â (1250)

There was one freedom that the Five Nations denied themselves. “Freedom, free to slay herself,” the liberty to destroy their own liberties. They knew that great freedom demands, for its preservation, great self restraint. Being aware how unscrupulous agitators used the right of free speech to spread diversive propaganda, they surrounded public debate with safeguards against that danger.

Well, Mr. Chairman, we are facing the same thing now, and I think we would do well to heed what took place so many years ago.

Being aware how unscrupulous agitators used the right of free speech to spread diversive propaganda....

This is what we have been dealing with.

I want this committee to know that we are only on the beginning of a journey. We have had consultations. We are moving into a new era. We will have second reading and we will bring in more amendments as the need arises and as the consultation proceeds.

So far, and maybe this is not entirely satisfactory, there have been public community meetings, questionnaires, correspondence, even a toll-free phone line and interactive websites. Over 10,000 individuals have expressed their views on the proposed legislation. The website has now reached 18,200 communications and is growing.

That may not be the most satisfactory way to consult, and maybe there is a better way to consult, but, Mr. Chairman, we have time to consult. We have time to get through our first reading with these amendments and hopefully they will improve the bill itself. As we move on, we can improve it still further.

I will hearken back to this publication called The White Roots of Peace, which established that the first nations valued these things that are so precious to us and would not countenance the kind of irresponsibility we've had in this committee.

Thank you very much.

Â (1255)

The Chair: Thank you very much, Mr. Reed.

Anyone else on the subamendment?

Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Mr. Chairman, the Liberal member is comparing religion to legends. You know that religion is a very personal matter. He is entitled to his own opinion, but you must understand that this would not be the first time a government withdrew a bill in an attempt to improve it.

The member seems to think that just by doing some reading, the bill will be improved. Judging by the reception it got from aboriginal people, I think the government could certainly withdraw it and rework it or table a new one.

Let's take the example of the bill on public safety, the famous Bill C-17, that stemmed from two bills that were withdrawn from Parliament after September 11^th, 2001. I think the government was right to withdraw them because they were unacceptable for the targeted communities, the people of Quebec and Canada. In this case, it is the aboriginal peoples who are affected by this bill. If it is unacceptable to them, the government would be well advised to withdraw its bill and to rework it. I do not think anyone would hold that against the government.

The member repeated statements made by the member for LaSalle--Émard. Perhaps the Liberal caucus should make the right the decision. We, from the opposition, would be willing to support a motion from the Liberal members to suspend the discussions until such time as the Liberal caucus has discussed the matter. There are probably over 80 per cent of Liberal members who will support the member for LaSalle-Émard in the leadership race and who have their own interpretation of the statements made. The members of the opposition repeat what was said by the media, but they could support a resolution from the Liberal members to suspend discussions on the bill until such time as the Liberal caucus has met and has had a thorough discussion with the member for LaSalle--Émard. The members of the opposition, or at least those from the Bloc Québécois, would be willing to support such a motion to suspend our work until such time as there has been a discussion between the Liberal caucus and the future Liberal leader to see whether his objective is indeed to suspend the bill, as we think would be the case. That would avoid a lot of useless discussions. If, as we believe, the member for LaSalle--Émard wants to withdraw this bill or not enforce it, which would be even worse, once he is leader of the Liberal Party, why not support the aboriginal peoples and just withdraw the bill, rework it and table it again in the next Parliament or at a later date that the Liberal government deems more appropriate? That would be a much better approach and would show much greater respect for the matter at hand. I want to remind you that the purpose of this bill is to meet the needs of aboriginal peoples.

The purpose of Bill C-17 on safety, which will be returned to the House, is to meet the needs of Quebecers and Canadians, and that bill was amended twice. It stemmed from two bills that were withdrawn after September 11^th and then changed and retabled in Parliament.

Today we are dealing with a very important bill that must first be approved by the aboriginal peoples. That is a fact.

So I will not accept the explanations given by the Liberal member who tried to tell us that everything was a question of religion and that religions were legends.

I would now like to deal with the sub-amendment tabled by my colleague from the New Democratic Party, which deals with clause 19.

· (1300)

Of course, the maximum prison sentence, in clause 19...

Do I hear the Liberal members saying they want to table a motion? I hear them discussing something. Do they like my suggestion of postponing the debate until after the next Liberal caucus? Does anyone want to do that? I will give you the floor if your intention is to have a proper discussion, at your caucus next Wednesday, of the statements made by the member for LaSalle-Émard. If you want to table the motion, I am willing to give you the floor and to support you. No one from the Liberal side has put up his hand.

The Chair: As chairman, I try to be impartial, but I think I can speak on behalf of the Liberals to tell you that we do not need your help.

Mr. Mario Laframboise: That's fine, but I would have been pleased to help you, Mr. Chairman.

So the sub-amendment tabled by my colleague from the NDP would bring the maximum prison sentence to two years. We had suggested one year. This morning, a representative of the Liberal Party told us that the fines could not be increased because they were now part of corporate expenditures. Everyone knows that companies budget for them and are not bothered by them because they are tax deductible.

So the only way to encourage people to comply with environmental standards is to impose prison sentences if they don't. The bill stipulates a maximum prison sentence of six months, the Bloc Québécois had suggested one year, and the New Democratic Party, in a sub-amendment, suggests two years.

Mr. Chairman, I think it is fully justified, because the only real way to discourage businesses from polluting is a prison sentence. The Liberal Party told us in no uncertain terms that financial penalties were now very much accepted by businesses and that those who commit environmental crimes no longer have any problem because they budget for the fines and include them in their planned expenditures.

A two-year sentence would be reasonable. My colleague's suggestion to increase the prison sentence to two years is fully justified, since we are talking about violations committed on aboriginal territory. Mr. Chairman, I know that aboriginals people are very respectful of their environment and of their territories. Who might commit environmental violations? Capitalist companies, which are non-aboriginal and often neo-liberal, pollute the aboriginal territories.

Mr. Chairman, it is even worse than that. We must be able to discourage those who might commit environmental crimes on aboriginal territories. A two-year prison sentence would be fully justified so that we can punish the heads of companies who commit environmental crimes on aboriginal territories. As the Liberal members said, financial penalties no longer work because the companies now budget for fines. The only real punishment is imprisonment. A two-year sentence would not be excessive, Mr. Chairman.

This afternoon, I am using the example of Kanesatake, which is in my riding of Argenteuil--Papineau--Mirabel, because it is a territory that feels a lot of pressure these days because capitalist investors, neo-liberals, might purchase a company that could work a niobium mine. In this area, there is a danger of radon contamination. The Parti Québecois did not give any government authorization, but there is a new government in Quebec. Will they get the required permits? Will the Quebec Liberals give them to them? I hope not. However, there is a potential danger. Niobium mining is done in underground tunnels. Could that affect the reserve's underground territory or simply release the radon, which would then contaminate the Kanesatake territory?

It is a danger, Mr. Chairman, and I hope this bill will at least discourage all companies from polluting. Of course there is no aboriginal investment in the company seeking to purchase the niobium mine.

Thank you.

· (1305)

[English]

The Chair: Before I go to Mr. Thompson, I think I should mention for the benefit of the audience and those watching these proceedings on TV, on CPAC, that the officials are at the table with us but they are not members of the committee. I'm not looking at anyone around the table, but there are many things said here that are totally wrong. There are things said that are so obviously wrong that it has to be done with intent. To proceed with our work we're allowing things that are out of order to proceed, but I want to protect the professionals at the table who are here to assist us when we request their assistance. They cannot intervene, jump in, and say, “That's not true”. They speak when they're spoken to. Their silence doesn't support the truth or the correctness of what is said; their silence is because they're there only to respond when asked.

I would hope members would ask their assistance more often so that they could put the facts on the table, because we are quite often very far from the facts.

Mr. Thompson.

Mr. Myron Thompson (Wild Rose, Canadian Alliance): Thank you, Mr. Chairman.

It's been a while since I've had an opportunity to come back to this committee, where I have spent quite a bit of time in the past. I have to say I'm rather amazed that some of the activities I was involved in earlier--those changes that were sought from the mid-nineties on to before 2000--are still the very things we're looking for.

I remember travelling across the country, across Canada, visiting grassroots natives on many, many reserves. It was not the chiefs and councils I was visiting with; it was the people who actually live on the reserve. I must say that in some cases I had never seen living conditions as poor as they were. I found it hard to believe I was even in Canada on the many occasions when I would sit in so-called homes that were actually made up of broken-down buses that didn't even have windows in them. I could give you hundreds of examples.

Many of the grassroots natives from these reserves would come and meet with me and the group that was representing them, which they called Natives for Accountability. At each one of these meetings members of the Liberal government were invited to attend, including the minister's office and most especially the members who lived in that area or in the proximity. Not once in the two years' time during which we held these meetings with ordinary grassroots people did any one of the government members of Parliament take the time to come to listen to the voice of the average person who was living in some terrible conditions.

I was pleased to see there were a number of members of the provincial legislatures in some of the provinces who did attend. And some of the opposition members did attend in Manitoba, Saskatchewan, and in Alberta. I was pleased to see that.

I really find it disturbing, when you have a government that is supposedly running the country and looking after the needs of all Canadians, that government members couldn't even take the time to meet with these grassroots individuals and listen to their voice and hear their words of consultation.

Many of the things they're asking for today are still the very things that were asked for back in those years and many years before.

Looking at some of the reports that have come from various bodies such as the United Nations that have investigated Canada--where they named Canada as the best country in the world in which to live and which we're all proud of--they made statements to the effect that in order to do so they had to exclude some reserves because of the poor living conditions there. Had they included those conditions, then Canada could not be classified in that regard.

I really do believe it's a shame that when you meet with these individual people and you go into their homes--and they would come from other places, not just the reserve you were visiting. Mostly out of fear they would not want to meet on their own reserve. They would rather go to another place to meet with you because they felt there would be reprisals and things of that nature.

I'm looking for a bill that would address this entire picture. When the minister comes out with Bill C-7, you get the impression when you listen to them that this is the answer to many of the problems these people on the reserves have been facing over the years and that we should be in support of it. Yet when I finally come to a committee and get out of the portfolio I'm working on at the present time, I look at the bill and I look at the stacks and stacks of amendments to a bill that's not even had second reading and I ask, what kind of a bill do you have before you people? Good grief, it's no wonder the NDP member is worried about sitting up until 4:30. It looks like that's going to be an everyday occurrence if you're even going to get through all this.

· (1310)

If a bill requires this kind of work to amend, then do you not think this bill should be sent back to the department in its entirety to let them go through all the amendments to see if they can't produce a document that makes more sense, rather than to take up the valuable time of people who are trying to represent their ridings from all across the country by sitting in meetings until 4:30 in the morning?

You may come up with some wonderful recommendations, but Lord help us, it might be like many of the recommendations that have come from other committees. When they hit the House of Commons, they mean nothing. All your work is for naught. I can't believe for a moment, Mr. Chairman, that you're going to put in the amount of time addressing all these amendments before this committee today and have any successful ending, other than more confusion.

One day you're going to have a new prime minister, after the leadership election of the Liberals, and he may come in, whoever that will be--and I think we all know who it might be--and decide this whole idea is a bad one and we need to start all over again.

I really think it's time to ask the people from the first nations to come together with the minister and his department and say let's thrash out our ideas on what should be presented to the people of Canada as a good plan and let's trust them to be able to do that. If you guys are going to sit around this table until 4:30 in the morning, I can only thank God I'm not a member of this committee any longer and I'm only temporarily here, and in about two minutes I will probably be leaving.

But for Pete's sake, will you not review, and will you not listen to what has been going on in the past? Will you not listen to the voice of the native people who are on the reserves--the chiefs and councils and in particular those grassroots people who've been crying and pleading for days and days?

One of the most interesting meetings I ever had was when there was no one there except for about 42 elders. The wisdom of these elders who came from various reserves amazed me. I thought, what a great thing it would be if we were able to work with that kind of wisdom in committee in the House of Commons. We have to start listening to the voice of the people of this land. I'm not talking about any individual groups. I'm talking about all the voices who are very familiar with what the problems are, as many of us are not. And coming forward with books and books and pages and pages of amendments that are even thicker than the document itself is asking for real problems.

I would just say to this committee that I could support this subamendment or not support it, but I don't think it's going to make one bit of difference. Is it going to get those families who are suffering on these reserves, who have 90% unemployment, heavy addictions, the tragedies of suicide...? Are all these petty things going to solve those problems? Get away from the pettiness of this and get down to the heart of the problem. Listen to the voice of the people across the land and get it resolved.

I think the member from the Bloc had a very good idea of suspending this whole idea until we get this thing organized in a better fashion. I would support that kind of a motion in a flash. If this is what's it's like before second reading, Mr. Chairman, I can only imagine, as the honourable member from the Liberal Party said, there'll be more amendments after the second reading. You're going to have a lot of amendments. You're not going to have anything useful at all. I'd encourage this committee to rethink what they're doing.

Thank you.

· (1315)

The Chair: Thank you, Mr. Thompson.

What the committee is doing is doing the work that was assigned to it by the Speaker of the House. We're not doing this work for the minister or for the Prime Minister or for cabinet. This is a committee of the House of Commons. We are doing the work assigned to us by the Speaker and we have to go through the motions. We will go through the motions and send it back to the Speaker.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Mr. Chairman, I'm quite amused by what you just said. I can remember that several times here we have had to negotiate in an attempt to speed up our work. The parliamentary secretary had to discuss with the minister. So don't try claiming that the mandate was set by the House of Commons. The proceedings of this committee are being remote-controlled by the minister's office and his emissary, parliamentary secretary Hubbard. Don't take us for fools.

The Chair: Mr. Loubier, that is not correct. I am the one who is chairing and the minister has no influence over me, nor does the government.

Mr. Yvan Loubier: I am very happy to see this amendment presented by Mr. Martin. I sometimes wonder whether we are hard enough on those who think that they can destroy the environment and deplete non-renewable resources and who, so far, in many cases, have managed to escape justice after causing terrible damage to our natural heritage. Often this natural heritage was to be found on the territory of first nations, quite often land whose return had not yet been negotiated. Over the past decades we have seen, among other things, oil companies and gas processing companies come barging onto this land, with the consent of the federal and provincial governments, to take over the territory, and shamelessly exploit all the underground resources with no consideration for the fact that the land containing these great natural resources was claimed by first nations.

We saw this, for example, in the case of the Lubicon first nation. In spite of the fact that for decades now, the federal government has been promising this nation to return the land it claims, in spite of the commitment made during the 1993 election campaign... I can remember very well hearing the present Prime Minister and former Minister of Indian Affairs say that the question of the Cree Lubicon would be settled in a few days and that their territory would be returned to them, that they would be compensated for the harm and injustice done to them over the years. Not only did the oil companies take over their land, not only are we exploiting this territory, but, to make matters worse, processing plants were built next to where the members of the community live, giving rise to terrible health problems with the result that several pregnant women in recent years have lost their baby because of the extremely polluted environment next to their reserve.

The same is true for the forestry companies that have acted without any sense of restraint. Their directors should be sent to prison, for their decision to set up on land claimed by first nations, and the incredible tensions that this has provoked over the past 20 years, and for clear-cutting the traditional hunting, fishing and trapping territory of these first nations, thereby devastating the resources necessary for their survival. This savage attitude towards the environment and the failure to respect elementary forestry practices, such as reforestation, should have been severely punished because we cannot allow the environment to be demolished in such a way with impunity nor can hunting, fishing and trapping territories be destroyed like that without any sanction. In spite of the fact that these companies demolished the environment of the first nations, the people responsible got off scot-free, with no sanction, and often with the blessing of the federal government and certain provincial governments. It is time to put a stop to this.

The effect of this shameless exploitation by forestry companies and their clelalr-cutting was that first nations that had been prosperous up until 15 years ago, with practically no under employment in their community, suddenly found themselves with no resources and a terrible unemployment rate. The members of the Lubicon first nations, whom we already mentioned, were treated in this manner and at the present time 95 per cent of their population is unemployed and living on welfare; 95 per cent! Twenty years ago, about 10 per cent of the members of this nation were either unemployed or on welfare, but because of this savage, odious and contemptible attitude of the big forestry companies with their clear-cutting on the lands where this first nation traditionally hunted, fished and trapped, that is the situation today.

· (1320)

It is surprising, to say the least, that on the one hand the federal government claims it wants to improve the welfare of first nations and implement projects such as Bill C-7 to accelerate self-government when, at the same time, it allows these big companies to act with impunity and destroy whole swathes of territory claimed by the first nations before any settlement is reached with the federal government. This kind of hypocrisy and calculation is unworthy of any contemporary government in the year 2003, that is, claiming it is looking out for the welfare of first nations when it allows the environment to be devastated in such a way.

When we had a first look at this bill, it seemed to us that maximum penalties of six months were certainly not proportionate to the kind of damage that these big companies may have caused on first nations land. I thought that one year might be appropriate but I think that Mr. Martin's sub-amendment takes the right approach and that we should perhaps have gone even further and considered five years. In some cases, the entire future of the community has been jeopardized because of the unacceptable behaviour of certain large corporations, motivated solely by profit considerations with no concern for the long-term viability of the resources. Their behaviour was completely unacceptable by present international standards, particularly with respect to forestry, because a forestry company that still engages in clear-cutting is to be condemned and its directors should be prosecuted, directors who always managed to get away with it claiming that they hadn't foreseen the consequences of their decisions.

Providing for a one-year prison sentence could at least have a moderating effect on such devastating behaviour on the part of large corporations. Nonetheless, the problem remains unsolved. Even with a maximum sentence of one year, and perhaps two years if you accept Mr. Martin's sub-amendment, the fact remains that there are umpteen negotiations on self-government and on the territories to be occupied by the first nations for their development that have been placed in abeyance by the federal government. Instead of tackling these negotiations with the first nations, they prefer to devote their energy, intelligence and time to studying a bill that the first nations want nothing to do with.

We now find ourselves in a situation where the next Prime Minister does not want this bill. He himself said that once he takes office, all the provisions of this bill will become moot because he will scrap it and start off on a new footing.

I hope that the aspiring Prime Minister was not just talking through his hat. I think that he said what he intends to do. In any case, he can't back down from the kind of determination he has shown. So why are we still here debating and asking questions about a bill that will end up in the wastepaper basket? It's ridiculous.

· (1325)

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

[English]

Mr. Pat Martin: Thank you, Mr. Chair, for the opportunity to give closing thoughts regarding the subamendment we made.

Thank you as well for the input from other members from other parties who seem to be in support of the idea and willing to entertain the thought or the background or the basis of my amendment, which puts forth a position that the jail time associated with a contravention of any of the provisions of the band laws under this section could be up to two years in prison.

You'll notice I was careful not to put “over two years”, because if you go over two years plus a day, you get into penitentiary time. There'll be compounding problems associated with that, because some of the concerns that were brought forward regarding enforcement of codes and bylaws and the penalty provisions associated with the offences under codes and bylaws were the very points associated with the enforcement officers.

Who's going to pay for the enforcement of these new codes, even under the limited areas of jurisdiction outlined in clauses 16 to 18? Who's going to pay for the enforcement? Who's going to pay for the trial process and the whole justice system associated with these?

If it's going to be under any kind of a contracting out to the provinces to provide the courtrooms and the legal support in terms of providing counsel to people charged with an offence, there's a great cost factor associated with all of those things.

As it was pointed out, we made an effort to raise the fine provisions in previous amendments, going up from $300,000 to.... I believe the Bloc felt it should be as much as $500,000. We went further than that, even suggesting it should be $1 million, but all this with the full knowledge that it was unclear how that money generated from the collection of these fines might be allocated and spent. Would it go into establishing a justice system and a court hearings system, and ultimately would it go into a penal system?

If that's the case, where are the resources going to come from for that? Because even fines up to and including $1 million are not going to go very far when it comes to prosecuting major offences and prosecuting possibly companies that might have deeper pockets than the band itself. These are circumstances that should have been fleshed out in far more detail before we even get into the idea....

Mr. Chairman, I'm going to call a quorum.

The Chair: Quorum call.

Okay, we'll resume.

Mr. Pat Martin: I thought Dominic was a staff person. He was over there doing so much work and he wasn't acting like a member of Parliament. He was actually working. Of course, I assumed he was staff.

Mr. Chairman, we had people come before the committee making presentations regarding this very thing. As I say, I don't make this stuff up. I don't invent these amendments we're bringing forward. I bring these amendments forward on behalf of the people who brought presentations to the committee and asked us to see if they could get their issues addressed, with the hope and the optimism that we would be their voice at this committee. In the absence of being allowed to actually take part in any meaningful way and in the absence of any meaningful consultation process, the only avenue of recourse available to them is through this amendment process.

I'm happy to make reference to one of the submissions made, which was by a Renée Dupuis, a lawyer for the Barreau du Québec, who was talking about the precedents of these codes over other statutory instruments. This is a point I want to get to, as it pertains to clause 19 as well. Her quote is:

As for the precedence of codes over other statutory instruments, be they regulations or by-laws under the Indian Act, or other federal acts or regulations, the governance bill provides that the instruments adopted by the band councils, what are called “laws” here, will be called either laws or codes. Thus, they will always meet the definition of federal regulations within the meaning of the federal Interpretation Act, which are part of the exercise of a power conferred under a federal statute, disregarding the inherent right.

Well, it's the inherent right we need to deal with here.

However, case law has established that, in case of conflict, federal statutes currently prevail over the by-laws adopted by bands under the Indian Act and that a federal statute therefore always takes precedence over regulation made under an act.

Well, this is part of the problem, Mr. Chairman, in saying that we're recognizing the inherent right to self-governance on the one hand and then saying that's subject to the fact that in the event of a conflict the band is always wrong and the federal government is always right. They've predetermined that.

It concerns me that the first amendment the government moved under clause 19 was to eliminate the language regarding a contravention of what provision under a band law is punishable by $300,000 and substituting the things found in subclause 16(1) and paragraph 17(1)(a). Those clauses do have the qualifying conflict law provisions at the end. We would point out that subclause 18(3) of the bill continues this rule of precedence. It's a rule that's been recognized in case law, particularly in labour relations, which provides an example of what we call the limited content of the legislative powers recognized by government statutes. Well, it's a limited recognition in this case too, Mr. Chairman. It falls far short of the ability of the first nations to implement these meaningful codes of governance and to adopt enforcement bylaws, etc.

Another point I would raise is I'm still not satisfied that we know enough about the application of these provisions. Under the Interpretation Act—I made this point last night—do we know that the band law will apply to agents of the Crown or to the minister himself if he sets foot on reserve land?

Let's say the violation in question was trespassing and one of the staff persons of Indian Affairs wanted to come onto the land, onto the reserve property, to conduct business. Being there without permission, would he be in violation of trespass laws? If in violation of trespass laws, would the band law enforcement officer then be able to issue a fine? Obviously it wouldn't be the $300,000, nor the two years in prison, but any fine—a $25 fine, a $50 fine. Or if he was speeding on reserve property as an officer of the Crown conducting business of the Crown, would these laws apply to that person? What is the application?

· (1330)

I should note that in the absence of anything that specifically says these laws will apply to the Crown.... It's the opposite in provincial legislation. The provincial interpretation laws actually state this applies to everybody unless specifically excluded. The reverse is true with the federal interpretation laws. This only applies to those specifically cited and listed. It raises a legitimate question, I think, regarding the application of this bill to individuals, and we're confused.

We do cite the reason we wanted the limit of the penality for imprisonment increased, going from one year to two years. It is simply that the deterrent value of the fine is undermined....

I beg your pardon?

Mr. Chair, I'm begin heckled by the parliamentary secretary, and he's making it difficult for me to continue my thoughts--

· (1335)

The Chair: It works both ways.

Mr. Pat Martin: --with this merciless heckling going on.

Now that we know that our revenue tax laws in Canada allow a business to write off a fine as a tax deduction, as a business expense, perhaps the only true deterrent—

The Chair: Thank you, Mr. Martin.

We now go to the vote on the subamendment, a recorded vote on BQ-39 subamendment, page 164.

(Subamendment negatived: nays 7; yeas 2)

The Chair: Now we're on the amendment Monsieur Laframboise introduced, but Monsieur Loubier still has an opportunity to speak.

Monsieur Loubier.

[Translation]

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

I'm extremely disappointed that Mr. Martin's amendment was defeated. I very much regret that I did not think of moving an amendment for a two-year prison term. As Mr. Martin said, it would have been better not to refer to a maximum sentence, but rather to a two-year prison sentence. Mr. Hubbard has some completely inappropriate remarks, as usual.

The amendment refers to a term of imprisonment not exceeding one year, which is better than what clause 19 of the bill provides for at the moment, namely a prison term not exceeding six months. Moreover, I have always thought that prison terms for damaging the environment were too light. For example, a number of corporations, in the course of their operations, do not pay attention to the resources, which are often non-renewable.

At the time of the world conference in Rio on greenhouse gases and other environmental issues, I thought it might be a good idea to amend the Criminal Code with respect to environmental offences.

In light of what we have seen in Bill C-7, in clause 19—the initial clause—which refers to a maximum prison term of six months, we can conclude that this sentence is really too light. Our position should reflect a desire to protect the environment and to make possible resource regeneration. This is known as sustainable development, and that is the idea behind his amendment.

However, once again, I should have been a little more stringent, because I am extremely concerned about environmental protection and resource regeneration. I have always been a defender of the environment, particularly when it comes to dealing with companies. It is easy to see how they behave when there are no rules. And this is not true just of land reserves for the first nations people, but of all parts of Canada.

The federal government should be very sensitive to this issue. At the moment, there are some contaminated sites in Canada that the federal government is trying, in vain, to decontaminate. It is not succeeding because there are too many of these sites. In this respect, the government is not living up to its responsibilities, and in many cases, the sites were contaminated by large corporations.

In addition, the government sets a bad example itself. For example, in the Quebec City region, the Department of National Defence polluted the main waterway and took a number of years before it acknowledged that it was guilty of committing this environmental offence. I was therefore not surprised to see the violations with respect to environmental protection and non-renewable resources were subject to such a light sentence—a maximum prison term of six months. My amendment would increase this sentence to one year.

Despite the merits of this amendment and the one put forward by Mr. Martin, which, unfortunately, was rejected by the Liberal majority, and even though we are attempting to improve this bill, as we have been from clause 1 to clause 19—and there are a lot of clauses left—and in spite of the fact that we are putting forward amendments on each clause to try to improve the bill, which in our view was botched at the outset, the problem remains the same.

This is bill is flawed in its form and in its approach. It is also flawed in that, according to all the specialists, including the Canadian Bar, the Quebec Bar and the Aboriginal Bar, it may run counter to a number of provisions of the Constitution, the Charter, and several pieces of federal legislation.

When we held our hearings in Montreal recently, the Quebec Bar made the point that a number of provisions of Bill C-7 could fly in the face of federal laws on labour and other matters.

· (1340)

This is just one case among many, but it shows the total disregard for what was suggested and the possible violations to those sections of federal acts. However, what is even worse is the spirit of this bill. It is totally convoluted right from the start. In my view, its preamble is excellent because it provides an overview of the issue and prepares the reader for an extraordinary bill. There is reference to recognizing the inherent right of aboriginal nations and respect for their ancestral treaties. When you read the first page and the preamble, you get the impression it is an extraordinary bill.

However, when you read the clauses—so far, we have dealt with clauses 1 to 19—, you start to wonder how the preamble can indicate one thing and the legal wording express the exact opposite. In the preamble everything is wonderful, but in the bill itself, everything goes against the aspirations and the desires of the first nations, their rights that are linked to their inherent right to self-government and the existence of ancestral treaties as well as all the work accomplished since the beginning of the 1980s to try to modernize and improve our relations with first nations.

The 1983 report by the special joint committee is very telling. A wonderful job was done by a committee made up of first nations representatives as well as non-aboriginal representatives who clearly wanted to establish new ties through an agreement that would pave the way toward better relations with the first nations for decades to come. Also worth mentioning is the Erasmus-Dussault Royal Commission's report on aboriginal peoples.

It is as though someone had stripped away the substance of the work done in the 1980s and 1990s that led to the Royal Commission's report, tabled in 1997. All the work that was done seems to have been thrown out the window along with all the agreements that had been reached by working in harmony, hand in hand, with the first nations representatives. At the time, there was no question of behaving like colonizers, in other words, like people who think they are still in the XVII^th century, who think they rule over other people and who arrogantly and cynically dismiss the first nations representatives, who should be at this table discussing their future with us rather than being mere observers.

They are watching us and are fed up with people still thinking they know the truth on what is good or bad for the first nations, people recognized as such by the United Nations who, on many occasions, have had courts of law, including the Supreme Court of Canada, recognize their rights. We are still here, and some Liberal members are amused by what I am saying. Look how low they have stooped. It is disconcerting. That type of behaviour is embarrassing.

As I was saying, this bill should be trashed. We should definitely not start over. Robert Nault says there are no alternatives, but that is wrong: there are. It is so easy to have alternatives to something that is rotten.

Let's stop insulting our intelligence by saying there are no alternatives. We have had clearly defined alternatives since 1983, which have even been agreed to by the first nations. Why not just grab the special joint committee's report entitled Indian Self-Government in Canada? That's what I call real work to establish closer ties between our communities; it doesn't refer to rotten things like this bill does.

· (1345)

There is also the Royal Commission's report. Does the...

[English]

The Chair: Thank you, Monsieur Loubier.

Recorded vote on BQ-39, page 164.

(Amendment negatived: yeas 3; nays 7)

(Clauses 19 to 22 inclusive agreed to on division)

(On clause 23—Designation of band enforcement officers)

The Chair: We are at government amendment 11.1.

Mr. Hubbard.

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

This is quite a significant amendment. It comes from the fact that when various groups looked at clause 23, they had concerns with how it was proposed. We have, for example, the Congress of Aboriginal Peoples, the National Aboriginal Women’s Association, Jim Aldridge, and several others who suggested a change to the text as it was written on page 15.

Under the title of “designation of band enforcement officers”, the new clause as amended would read as follows:

23(1) The council of a band may employ

--and that's very important, the question of “employ” rather than “designate”--

any person as a band enforcement officer for the purpose of conducting inspections and searches on reserve lands of the band, and shall furnish each officer with a certificate specifying the provisions of band laws in respect of which the officer may conduct them.

And with the production of a certificate, subclause (2) says,

When conducting an inspection or search of a place, a band enforcement officer shall, on request, produce the certificate to the person appearing to be in charge of the place.

Mr. Chair, with that, probably our witness, Mr. Johnson, may want to say more, and we'd ask for a further explanation other than what I have given.

Mr. Warren Johnson: This amendment is an important aspect of the first amendment, which in fact was G-9.1, dealing with the response to interventions before this committee on enforcement. The committee will also see that in reference to proposed amendments G-11.1 to G-11.8 inclusive these issues were all raised by a number of speakers who were interveners before the committee—the Congress of Aboriginal Peoples, the National Aboriginal Women’s Association, Jim Aldridge, and others. Their issues were ranging on the following areas: the band enforcement officers' powers, as currently written, were too broad; it was unclear whether band enforcement officers would be considered to be employees of the band and subject to oversight by the local redress mechanism set out under clause 11 in Bill C-7; the grounds for conducting warrantless searches pursuant to clause 27 needed to be clarified.

This is one in a series of amendments I referenced that would, as a package, attempt to address these concerns, specifically, so that in the end the band enforcement officers might have more confidence that individual rights would be better safeguarded and so that they wouldn't improperly infringe on those rights and risk, for example, charter challenges. They would minimize the risks of unreasonable searches. They would be clearly subject to oversight by the local redress mechanism and the rules for the handling of seized property would be made much clearer.

In this case the key point here is the clarification that these band enforcement officers would be band employees, and therefore accomplishes one in that series of four or five objectives of these series of amendments relating to the enforcement provisions, specifically, that as band employees their decisions would clearly be subject to oversight by the local redress body.

· (1350)

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

The Chair: Thank you, Mr. Hubbard.

Mr. Vellacott.

Mr. Maurice Vellacott: Mr. Chair, I would like to suggest with respect to this amendment that I think it's pretty crucial we have individuals who have some basic training and qualification in this role. It's a pretty crucial role. It can be a powerful role. It can be an appropriate role, but it can also be one that's abused if people either don't know what they're doing or they want to go outside the bounds of what professionally ought to be in this particular role.

I would just want to insert, and I think the government would certainly find this a friendly amendment, that the council of a band may employ any “qualified” person as a band enforcement officer. This suggests they do it through some first nations institution or send him off to a police college for a basic few months of training or whatever, but there has to be some basic standard of training.

It's a little frightening, the council of a band may employ any--

The Chair: Mr. Vellacott, before you debate that, are you seeking unanimous consent to insert that word?

Mr. Maurice Vellacott: Well, I'd do it as a subamendment, I guess, depending on.... What are my options here?

The Chair: You have an opportunity to seek unanimous consent. If you don't get it, I will recommend it as a subamendment.

Mr. Maurice Vellacott: Then I'd go for a subamendment, okay.

The Chair: Before you debate it--

Mr. Maurice Vellacott: Then let's go for a consensus and see if that in particular answers--

The Chair: Do I have the unanimous consent to add the word “qualified”?

Some hon. members: Agreed.

The Chair: Thank you.

That is part of the government amendment now.

Mr. Maurice Vellacott: It's part of the government amendment. That being said, that's my basic comment.

In all of this too we obviously want these individuals to have training. We want them to be properly instructed so that they go about their job. They don't just walk in. They do have this certificate they have to provide indicating the parameters within which they may conduct themselves. But I think it's very clear, and it would be on the Hansard record now, that some basic professional training is what I would understand or assume to be part of the term—a qualification or a basic kind of training for the person.

With that, then, I think we'll just leave it there and let it pass on to others to make comment with respect to this particular government amendment.

The Chair: Thank you, Mr. Vellacott.

Is there anyone else?

Mr. Martin.

[Translation]

Mr. Yvan Loubier: Before continuing, I would like to ask you a question.

The Chair: Is that a point of order?

· (1355)

Mr. Yvan Loubier: Yes. I would like to know whether we are going to question period, because it is crucial.

The Chair: We have been functioning in the same way for 13 weeks. If you want us to adjourn, all you'll need to do is to say that you are making a point of order and move that we adjourn.

Mr. Yvan Loubier: Then I am making a point of order and I move that we adjourn, because question period will begin in five minutes and it is a crucial part of our work.

[English]

The Chair: We'll go directly to the vote.

(Motion agreed to)

· (1355)

¹ (1535)

The Chair: Order.

Mr. Martin, on amendment G.11.1.

Mr. Pat Martin: Mr. Chairman, an overwhelming number of presenters who came before the committee had comments to make on the search and seizure provisions, as contemplated under clauses 23, 24, etc., of Bill C-7, not the least of which was the Blood Tribe of Red Deer, Alberta. When we heard presentations, they said that the FNGA must include a provision that requires the Government of Canada to provide sufficient funding for the initial and ongoing training of band enforcement officers, as well as sufficient funds to hire band enforcement officers and the related administration costs.

This issue has come up time and again that if you are going to afford people these kinds of powers, these people had better be well trained and there had better be adequate resources available to deal with not just the actual actions that are contemplated by the clauses in the bill, but the fallout and the consequences of the use of this power, and the complications that stem from enforcement of these powers.

Many larger communities already have, frankly, fully functioning police forces that are trained, for instance, with and in parallel with the OPP. These are police officers in the truest sense of the word.

That may not always be the case, as we envision smaller communities that are struggling to implement this new concept of a band enforcement officer and the new powers that come with this. The Kitsumkalum First Nation said in its brief:

The power to search and seize is far reaching. It is not to be taken lightly. We are concerned that insufficient training and inadequate resources may result in litigation related to both the Charter provisions as well as exposure to civil liability suits. Searches without a warrant may be particularly troublesome, and, it is not always predictable when force will be used. The rights of individuals may be at risk if the officers conducting the search are not fully trained in search and seizure procedures. The exercise of enforcement powers, including searches without a warrant, no provisions for training, and no resources to support training could well be recipe for disaster.

This is a cautionary note, Mr. Chair, from one of the many briefs given before the committee that found fault with this particular clause.

Mr. Chairman, perhaps more than on any other clause, we heard people cautioning about the potential problem stemming from the inspection and search provisions. We had university professors and law professors advise that these have to be changed. I notice the only people cited by the minister and by the assistants, who are working from the same book, I should add, which we don't have access to.... This is the briefing book regarding the clause-by-clause information that the government has, which is not shared with the opposition parties. There is no effort made to allow us to share that same body of information.

In a very selective way, the parliamentary secretary only chose to quote the Congress of Aboriginal Peoples, an organization that accepted $1 million to be the boosters of and to promote this legislation that nobody else wants, and the National Aboriginal Women's Association, which is the new incarnation of the Native Women's Association of Canada. The Native Women's Association of Canada is the legitimate and long-standing representative of first nations women in this country. Their funding was slashed because they refused to cooperate with this farce of a process, and a new organization was formed and was well funded in order for it to be the booster and champion of the bill.

I notice how selectively the parliamentary secretary chose comments in his remarks, whereas actually there were plenty of organizations and other people who came forward who made very worthwhile comments on these particular aspects of the bill.

Mr. Chairman, we see the amendments made. I think the government had no choice but to amend the search and seizure provisions of the bill.

¹ (1540)

In this particular aspect we're still concerned that there's no warrant as such. If you're used to watching cop shows, although someone comes to your door demanding entrance, they can flash a badge but that doesn't automatically allow people to enter premises and to have access to computer files and all the things contemplated in this bill, Mr. Chairman. There is still no talk of a warrant or justification or even an explanation as to what contravention may be taking place or what violation the officer has reason to believe might be going on in that dwelling—well, it's not a dwelling, it's “other than living quarters” —in any building, other than living quarters, on the reserve.

We're still not satisfied that the amendments put forward in government amendment 11.1 address the many concerns dealing with search and seizure and search and inspection that were raised by the many people who commented on this particular clause during the consultation process.

I hope we get an opportunity actually to move a subamendment to this clause that would give satisfaction regarding, or at least would address, some of the concerns that were brought to our attention. Perhaps before my time to comment is concluded, I'll have an opportunity to do that.

Mr. Chairman, when Doug Dokis made a presentation before the committee, he said that band enforcement officers' powers far exceed law enforcement officers' powers anywhere else in Canada. As it stands, they have the right to enter without reasonable grounds, and they might also have the power of eviction. This remains to be tested. That was the one submission made that should be cause for great concern. He also said he would like the government officials to enlighten the committee for the rationale for giving the enforcement officers such unbridled authority.

We know that under Bill C-7 the minister would have broad powers to step in at any time without giving notice or reason and simply take over a first nation lock, stock, and barrel, if he doesn't like the way the first nation complies with some of the new governance codes that the minister has deemed shall be the way first nations are run from now on.

But we would like this committee to consider the potential liability of an agent appointed by the minister, who in turn appointed an enforcement officer and ordered him to do certain searches. There could be physical resistance. There could be damage to property. Violence could ensue. How does all that shake down and translate into people's rights to privacy and the genuine concern of the band and council to enforce the bylaws associated with what jurisdiction has been recognized by the federal government?

I would like to move a subamendment to G-11.1. In subclause 23(2), after the second use of the word “place”, add the words “and clearly explain to the person the purpose of the inspection and the nature of the violation that the officer suspects may be taking place”.

I'm glad that the idea is already garnering support, it would seem, among my colleagues. I appreciate that.

I'll wait until this digests.

The Chair: Mr. Martin, on the subamendment.

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

When it's convenient, I wonder if we might have a copy of the subamendment made available to us and to others.

Our concern is that even though the government was advised.... I know Larry Chartrand, the professor of law at the University of Ottawa, was one of those who advised that this provision must be changed. It simply must, because it just has to be.

The government seems to have taken steps to try to amend clause 23, in regard to inspection and search, but in our view has done very little to improve the draconian measures.

First, on the qualifications aspect, any person may be an enforcement officer. We added the term “qualified”, by unanimous consent earlier today, but we don't know what that means and in whose judgment. It's such an arbitrary term. We really don't know what that means. We do know what the standards are in police forces across the country and the RCMP, but an enforcement officer is dealing with a different range of issues, so we're not satisfied that people with the appropriate qualifications will be the people selected ultimately to do this job.

Any person can be an enforcement officer and go around conducting searches without a search warrant. Surely that alarms, or should alarm, the people in this room. First nations members are given no protection against these legalized invasions. It's fascist. You can almost hear the jackboots slapping together as they march to your door in the dead of night and kick your door down, and not only inspect things, but there's an extensive list of things they may carry out, as we'll get into in clause 24. I think people here will be shocked and appalled at the broad extent of things.

So here's a bill that the minister claims to be for the purpose of the little guy on the reserve, and here's the minister proposing that an enforcement officer with a piece of paper saying he is an enforcement officer and saying he's here to enforce certain bylaws can conduct searches and without any real specific obligation to inform the person what they're being accused of.

When someone says “J'accuse”, you have a right to know who your accuser is, and you have a right to know what they're accusing you of. That's pretty basic.

I don't see anywhere in here where they have to explain to you, “Sir, we have reason to believe there's illegal activity taking place in your house, and we have reason to believe this activity is in violation of bylaw XYZ; therefore I'm using my authority as an enforcement officer to enter your premises or enter the building in question.”

That would at least meet some of the principles of natural justice that you have a right to know what you are being accused of. Otherwise, you can envision the downside of this as being a Kafkaesque nightmare.

So although it does mention search of a place, we're a slim step away from personal searches, and all this with absolutely no checks and balances.

Again, what is the fallback position? What are the sanctions associated with somebody who's not being cooperative? These are new provisions. People don't accept this kind of change lightly, especially when they feel that it might be infringing on their personal right to privacy.

What if a person says no, go away; I don't acknowledge the process by which these enforcement officers were granted this authority, therefore I refuse to cooperate? What then? What power of law does this enforcement officer have to proceed anyway? I suppose the use of force, the use of reasonable force is what a police officer in any other setting would exercise, but again, this is a special category of police officers.

So on this one I can join my colleague from the Canadian Alliance who expressed his worries about the most marginalized people in all of Canada becoming even more marginalized, with no protections, checks, or balances to this seemingly open-ended authority being bestowed upon these new enforcement officers.

¹ (1545)

We know under Bill C-7 the minister would have broad powers to step in at any time, as I said, without giving notice or reason and simply take over a first nation, lock, stock, and barrel. I would like this committee to consider the potential liability if an agent appointed by the minister, as I said, in turn appointed an enforcement officer and ordered him to do certain searches where there could be physical resistance, damage to property, for example, and who knows what.

Chief Chris Shade said the following to the committee:

In regard to powers and authorities of band enforcement officers, the FNGA must include a provision that requires the Government of Canada to provide sufficient funding for the initial and ongoing training of band enforcement officers, the hiring of band enforcement officers, and the related administration costs.

I wonder how much money has been set aside specifically for this particular aspect. We've heard it is $110 million a year over five years for the introduction and implementation of the bill. I wonder how much is specifically earmarked, or if this aspect was even considered. I doubt it, because that would be looking at new money, and we know the minister only intends to spend old money out of the A base of the DIAND budget, not new money earmarked for the creation of an essentially new police force.

On the absence of a judicial system under Bill C-7, justice is not one of the categories of jurisdiction that the bill acknowledges and recognizes as a right to self-governance under the details of jurisdiction. The absence of a judicial system under Bill C-7 is very obvious here when we see the enforcement officer has no relationship to a judicial system. There is no independence from the community's political structure.

If we're to have an enforcement officer, why is this package so bare? Why is it devoid of the very checks and balances that control police forces anywhere else in the country? Would it be possible, for instance, for an enforcement officer to conduct a search of a vehicle of a tourist passing through the reserve, and on what grounds? We need to ask the government officials if they could inform the committee why Bill C-7 has opened the door to such a low quality of justice and a type of justice so clearly open for abuse.

Professor Anna Hunter was misquoted as expressing support for this bill on the website of DIAND, when she is not. She was horrified to learn she had been misquoted, as horrified as I was to learn that I was on the list of supporters. Some DIAND official slapped her name on the website and selectively took a quote of hers and listed her as supporting the bill. She does not support it.

But she did comment on this particular issue. She warned the committee against parachuting principles and practices of municipal government into the administration of first nations communities and expecting them to work with any degree of success. She asked, where is the cultural fit? Where is the cultural match that Professor Cornell talked about in the Harvard study? How is it going to work, in a tight-knit extended family situation, when Parliament gives someone these extraordinary powers with no training?

Has anybody thought this through? It may look acceptable on paper, but how does it translate into the reality of first nations communities?

Connie Dieter, another presenter, asked about this enforcement officer in a presentation made to the committee. There is also a duty to have someone assist the enforcement officers to help them....

Mr. Chair, I'm going to ask for a quorum call, please.

¹ (1550)

The Chair: We have a quorum call.

¹ (1553)

º (1600)

The Chair: You have one minute left, Mr. Martin.

Mr. Pat Martin: In her presentation to the committee, Connie Dieter said there's also a duty to have anyone assist the enforcement officer to help him or her carry out their duties. Does that mean that my kookum, who's babysitting my kids that day, has to take away my personal computer? What happened to unreasonable search and seizure under the charter?

Can you imagine? The enforcement officer has a right to appoint a deputy even in his or her own place and to order that person to help carry out the personal computer he or she owns, and all of this without explaining to the person what the charges are or getting any permission other than having a willingness, I suppose, in their own mind or an interest in entering that particular building and searching and seizing the property therein.

Mr. Chair, we have a long way to go to making this particular clause right. Supporting my amendment would at least add the language that there's an obligation to clearly explain to the person the purpose of the inspection and the nature of the violation that the officer suspects--

The Chair: Thank you, Mr. Martin.

Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I am very glad to see that my colleague from the NDP, Mr. Martin, is tabling such nice sub-amendments, and I am especially happy to see that the amendments he tabled before were intended, just like those moved by the Bloc Québécois, to improve the bill and to try to fill the gaps that were detected during the clause-by-clause consideration of the bill.

Let me remind those who were present during the committee hearings that several witnesses—and I heard the witnesses that Mr. Martin referred to just now—told us that this kind of clause in Bill C-7, and especially clause 23, could raise problems when it comes to implementation and court challenges, especially under the Canadian Charter of Rights and Freedoms.

I also heard what Mr. Martin mentioned, namely that the officers were given extraordinary powers. Several witnesses raised this issue concerning Bill C-7. They said that these officers were given extraordinary powers such as are rarely found anywhere in the enforcement laws and regulations or in the punishment of offenders who commit offences.

I find that Mr. Martin's sub-amendment makes perfect sense here, because it ensures that, right from the outset, someone suspected of having committed an offence and who is apprehended by an officer like the one provided for by clause 23 of Bill C-7, someone who is subject to a search or to a warrant, would get a clear explanation of the nature of the offence. He would be told, right from the outset, why he is being accused and why he is being apprehended by an officer in charge of implementing the measures provided for by Bill C-7.

When I look at what is in clause 23, in Bill C-7 in general and in the government's amendment which was further amended by my colleague, I find that the government is very generous in defining specific instances such as search, and the role of the officer in charge of applying the measures and carrying out the search.

The government seems to take an interest in details wherever repression is involved, but it is not as interested in details when dealing with rights, including the inherent right of first nations to self-government, rights that stem from traditional treaties and all the other rights that were recognized by the highest court in the land, namely the Supreme Court of Canada, as well as by international organizations.

There is a malformation in this bill, which gives so many details about things related to repression, whereas for other matters, when we put questions because we found that things were vague, we were simply told that this is the way it is and that there is no way of making the text of the clauses more specific without creating a bias. Nonetheless, in clause 23, the government not only specifies the officer's powers, it tables an amendment that strengthens this definition of inspection and search and that gives more power to officers.

º (1605)

The sub-amendment tabled by my colleague Mr. Martin is extremely interesting because it bridges some of the gaps, as we could have been trying to do for the past 70 hours or so of debate on Bill C-7, in clause-by-clause study. But basically, try as we might to correct the shortcomings of this bill and stop the ship from sinking, the bill despite these improvements, is basically unacceptable and reprehensible to those most affected, namely the members of Canada's first nations.

No one wants this bill, no one, and the visceral hatred towards this bill is so contagious that even Paul Martin, who will become your leader in a few months, will tear up the bill. He will not implement it, he will throw it in the trash bin. He doesn't want it either. He finds that it does not provide a solid foundation on which to base the discussion and allow us to live in harmony over the coming decades.

But what stubbornness! How stubborn can you be to defend the indefensible, to want to defend a bill that nobody wants, not even experts from outside the political arena; this is unacceptable. You may well accuse us of petty politics, but we could accuse you of even worse. University professors appeared before us. Even a notable Liberal, who was Minister of Indian and Northern Affairs, Mr. Warren Allmand, appeared in Montreal and said that this bill would not sell because it does not suit the first nations, that there is vehement opposition and that it does not resolve any of the fundamental problems of the first nations.

This is getting serious. We should not be accused of partisan politics when your own people don't even follow you. Even the aspiring first minister is not in agreement. Even a former Minister of Indian and Northern Affairs, Mr. Allmand, is not with you. Mr. Allmand is not just some unknown. He was here in 1983 when the special joint committee worked on the real issues pertaining to first nations self-government, which led to this wonderful study we are supposed to base our work on because it is still current, just like the report from the Royal Commission on Aboriginal Peoples.

We now need to vote but I am convinced that there are not many members around the table who have read the report by the Royal Commission on Aboriginal Peoples, because if you had read all of the recommendations in that study, you would review Bill C-7 taking the real problems into account. You would plan for a sound foundation for the next 20 years so that we can rebuild the first nations and ensure that the institutions that were eliminated during the 130 years of enforcement of the Indian Act can be rebuilt. We would support the first nations' choice of their own destiny, because it is they, and they alone, who can determine what it should be.

We have no right to tell them what to do. What is happening here is absolutely dreadful. In fact, yesterday, when a member of the first nations rose and stuck his visitor's identification badge over his mouth, like this, he was saying that as a member of a first nation, he was not entitled to speak, and he did not understand what we were doing and could not face what we were doing because he was so distraught. He feels he is being treated as a completely ignorant being. That is the message he wanted to give yesterday. That is quite clear.

But in fact, that is exactly what is being done here. We are acting as though the first nations didn't exist. We are acting as though they did not have any intelligent members to defend their own destiny and to handle their own affairs. People say they are offended because the integrity of parliamentary institutions must be protected. That is fine, but the integrity of parliamentary institutions cannot be protected by excluding the major clients of this bill, by pretending they are not capable of defending themselves, by pretending they do not have plans, when in fact they have very clear ones, as indicated in the report by the 1983 special joint committee and that of the Erasmus-Dussault Royal Commission.

We are given a junk bill that nobody wants. Even on your side, half of the people do not want it, and the aspiring Prime Minister doesn't want it either. I hope he wasn't just playing petty politics the day before yesterday, but I do not believe so, because you don't need to be very intelligent to see that if the people most affected are increasingly aggressive toward a bill that is being forced down their throats, it is because they do not want it.

º (1610)

A basic principle in politics is that when the people affected by a measure do not wish...

[English]

The Chair: Merci, Monsieur Loubier.

Mr. Godfrey.

Mr. John Godfrey (Don Valley West, Lib.): This is a question addressed to the officials. I think it covers both the interventions by Mr. Martin on the amendment and on the subamendment. Mr. Martin raised a number of concerns about due process, about jackboots and other things. Can the officials tell us whether we have reason to be concerned, or can we find some comfort on these matters in the legislation, if not in this clause, somewhere else?

Mr. Warren Johnson: To begin that answer, and in case their support is needed on this item, I don't think we introduced Lucie Angers, the senior counsel from the criminal law policy sector, and Catherine MacLean, a counsel from INAC legal services who had a hand in helping out in this area.

As the members have noticed, this was one of the more significant areas of concern after the tabling with the committee in the information sessions we held all through last summer and in the interventions before the committee.

We think there is a substantive response in terms of the amendments being proposed here and in others, specifically with respect to upcoming government amendments G-11.1 to G-11.8. We'll find parts of that here. That has safeguarded the potential, specifically, for the charter challenges, and it deals with many of those issues.

Since you reference it to clarify some of the specific questions or concerns that were raised by some of the members, first of all, it is not correct that the minister can intervene at any time. There are three precise areas for intervention of the minister in clause 10, and nowhere else, and he can't intervene at all on codes, as you reference. He is not involved in their approval, only the community is.

Secondly, the band enforcement officer can neither use force nor is he or she appointed by the minister or his agent. It would be an employee of the band.

While the issue of qualification would have been a significant topic for us, in any event, and it will be in the consultations on the implementation, that has been reinforced, I think, in dealing with that concern in the amendment to that same motion that was unanimously accepted by the committee a few minutes ago.

So those are on some of the specific references.

The amendments are unfortunately scattered in different sections throughout the package of amendments here, so you don't have them all together with you all at once. The committee may want to bear in mind, in looking at this amendment and the subsequent amendments in dealing with the same topics, to ensure that the band enforcement officers are protected from any undue interference, on one hand, but they are also held to account by the community, on the other hand. An earlier amendment clarified that they would be clearly an employee of the band and subject to redress procedures set out in the bill.

That's one key point. The second key point, part of which we're dealing with here, is to clearly separate and make a distinction between inspections for regulatory purposes, the requirements for which would be required to be set out in the law--passing the regulation in the first place--so that the community itself has an opportunity to comment and have input on those kinds of conditions. Then the requirement for those inspections would clearly be known to that person or body requesting a permit or whatever to conduct an activity that is subject to the regulation.

Having made that distinction, that then allowed our colleagues at the justice department to recommend a variety of changes, part of which, again, is embodied here to deal specifically with the search aspect. Search can now be specifically defined to real searches, as opposed to regulatory inspections, and the appropriate bounds put around those that you will see including, as I referenced earlier, the inability to use force, which would now be clear, the requirements for a warrant, which would be clarified, etc. We think, as a package, that should deal with those concerns.

On the specific amendment, the issue is that on its reading, it should be clear that an inspection does not relate to a violation in the normal use, I think, of those two words. An inspection, as it's being set up and as it's being discussed, relates to a normal regulatory inspection required once a month, once every six months, once a year, whatever the conditions are in a permit or other licencing authority passed under first nations law.

The subamendment seems to relate, in my reading of it, to an inspection to a violation. An inspection isn't done because of a violation; it's done because if it's a routine function of a regulation, a certain degree of inspection will take place.

Secondly, the certificate referenced earlier in the same clause is the certificate indicating the requirement for the inspection, as set out in the band law, which has to be produced. So that part of the request in the subamendment is already dealt with in the main motion that's on the table.

º (1615)

And thirdly, the nature of a violation when you were in fact doing a search, which would be the normal relationship between a violation and a search, as opposed to an inspection, would be dealt with in terms of the person who would be subject to that, knowing what it was about, because the warrant involved would have to be produced for the search to be undertaken. I think that is the normal legal procedure, and my colleagues may be able to comment on it.

So that tries to deal with a number of the questions and the overall concept of the enforcement package that's being proposed in a series of amendments and with the specific questions on the subamendment here.

Mr. John Godfrey: Given the distinction between the inspection and the search, would it then be appropriate to say that the reference to the violation means that, in a sense, this subamendment is out of order because that is not the correct term in what we're dealing with here?

Mr. Paul Salembier: I think it would be up to the clerk to decide whether the amendment is out of order for that reason.

The Chair: It has been accepted.

Mr. John Godfrey: If we, in the course of this discussion, discover that the amendment is out of order, can it now be ruled out of order?

The Chair: It's in order.

Mr. Paul Salembier: I suppose what you could conclude from it, though, is that the proposed subamendment is unnecessary because, again, as Mr. Johnson noted, the purpose of an inspection is really to confirm compliance with a band law that regulates a particular activity. For example, if you are running a bakery and there's a requirement for an inspection once a month, the inspector or band enforcement officer would go in probably with the expectation that everything would be in order so that you wouldn't be expecting there's a violation, and certainly you wouldn't know about it before you enter.

Secondly, in terms of stating the purpose of entering, amendment G-11.3 proposes that a band enforcement officer making an inspection must advise of the purpose of the inspection prior to conducting the inspection. So that information is there.

Again, as Mr. Johnson mentioned, if it wasn't a true search, it would require a warrant. And the warrant would set out what contravention was suspected and what contravention formed the grounds for obtaining the warrant.

If you have further questions on warrants, Ms. Angers or Ms. MacLean could address those as well.

º (1620)

Mr. John Godfrey: Thank you very much.

The Chair: Thank you, Mr. Godfrey.

Mr. Vellacott.

Mr. Maurice Vellacott: My first question would be in respect to what was printed in our book originally, before the amendment. I notice that in subclause 23.(2) it says: “produce the certificate of designation to the individual appearing to be in charge of the place or the goods”. Now, in this amendment, you only have “in charge of the place”. Why was it felt unnecessary to have “or the goods”? If that's what the inspection is about--and this may be under the open sky, I guess, elsewhere, not in a fixed facility--why is that removal taking place?

Mr. Paul Salembier: Ms. Angers can address that.

Ms. Lucie Angers (Senior Counsel, Criminal Law Policy Section, Department of Justice Canada): Thank you very much.

The reason for which the word “goods” was removed in amendment G-11.1 was to reflect the situation in terms of inspections or searches. Inspections or searches can only be carried out in a place, and when you're in a place, then you look for the goods you are inspecting.

So the purpose of this is to demonstrate that if you are using a power such as an inspection or a search, the first step is to go in the place, and it's only after that you have the goods. Therefore, that's why the person who is aimed at in the government motion on subclause 23.(2) is the person who's in charge of the place. And if the person is in charge of the place, the person is also in charge of the goods. So it is felt to be unnecessary and not reflecting the reality in terms of where the inspection or search was being conducted.

I don't know if that helps.

Mr. Maurice Vellacott: What if this is like a road ban, if it's a highway weight on the axles of a truck or whatever--is that regarded to be the place, then, in that case?

Ms. Lucie Angers: You always have to go into a place. Even if you are doing an inspection of an outside premises or whatever, it still is in a specific place that is regulated by the band law. All inspections take place in regulated areas for the purpose of public security, public health, or whatever. It's only in the context of compliance or verification of business practices that inspections are conducted, and in that context it's always in a place.

For instance, if you have a snowmobile industry that's doing snowmobiles but they're outside the industry you would still be referring to the place where the snowmobiles are produced--

Mr. Maurice Vellacott: Let me interject with this one, then. If somebody is hauling grain in a half-ton truck or whatever, and it's a matter of inspecting it--certain times of the year you can only have so much weight, so there are road bans in place--the person in charge of the particular place and the person in possession of that truck and the goods in that truck are two entirely different people. Do you know what I'm saying?

It may be on somebody else's property. It may be public or first nations land. So who do you go to? You can't go to the person driving the truck. He's not in charge of that place; he's in charge of the vehicle at the place.

Ms. Lucie Angers: In order to circumvent any concerns in relation to what was a “place”, the government will be presenting motion G-0.2, which amends subclause 23(2) of Bill C-7 by describing what a “place” is. And in relation to an inspection or a search, a “place” includes a vehicle or a vessel. In that context, the “place” you would be inspecting or searching would be the truck.

It was only to make things clear. “Place” is a word used already in the Criminal Code provisions in relation to searches and has been interpreted as including a vehicle also. So it was only done for greater certainty.

Mr. Maurice Vellacott: I have another question in respect to subclause 23(1), and 23(2) for that matter. Is this deemed to be in respect to purposes of enforcement of band laws made under clauses 16 and 17? I ask this particularly because I have an amendment coming up on it. Is that only what we're talking about here?

º (1625)

Mr. Paul Salembier: Yes, the intention of this provision was to address band laws made under clauses 16 and 17.

Mr. Maurice Vellacott: In your view, clause 18 doesn't really need to be covered off.

Mr. Paul Salembier: Clause 18 normally governs the internal workings of the band. It's questionable whether an enforcement officer would really have any role to play in enforcing the band laws that might be developed under clause 18.

Mr. Maurice Vellacott: Maybe it's not spelled out specifically, but the intent behind subclause 23(1) is that it be clearly in reference to laws made under clauses 16 and 17, not to just any and all laws.

Mr. Paul Salembier: Yes, I would think so.

Mr. Maurice Vellacott: Clause 18 is to do with band governance and the terms.

Mr. Warren Johnson: Those are the only law-making clauses, though.

Mr. Maurice Vellacott: There could never be a misunderstanding in respect of some law made outside of this act. All of a sudden you have a band enforcement officer enforcing laws made outside of the provisions of this particular act. Are there not other laws made by some bands that are outside of Bill C-7?

Mr. Paul Salembier: I am not sure exactly where a misunderstanding might arise.

Mr. Maurice Vellacott: Before Bill C-7 kicks into place, are there any laws currently made by bands where there might later somehow be a mistaken impression that this enforcement officer is to act in respect to any of those laws as well?

Mr. Paul Salembier: Clause 23 at the moment refers to inspections on reserve lands of the band; the proposed clause 25 talks about inspecting a place on reserve lands. I think throughout the amendments you see the intention to limit the powers of band enforcement officers to reserve lands, as opposed to areas outside of the reserve.

Mr. Maurice Vellacott: I thank you for that. It's helpful. I think it is reassuring, and it probably speaks in support of my amendment, coming up shortly hereafter. I'll turn the floor over to others at this point.

The Chair: Thank you, Mr. Vellacott.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, very briefly, I think our witnesses brought the point out I was going to make quite strongly.

First of all, as Paul has mentioned, the concept of a violation wouldn't be a supposition to an inspector going in to check on regulations.

Second, Mr. Chair, when we go further, I think this has been referred to in G-11.3. We cover almost the same point the NDP subamendment is making, except it leaves out the concept of violation.

I know the principle that the honourable member has brought in is certainly good, the idea of the purpose of the inspection. I'm not sure “suspects” is a good word, but I think the overall impression the member's trying to convey is good. I think if he looks at our G-11.3, it will cover the same intent he has brought forward in terms of his subamendment.

Thank you, Mr. Chair.

The Chair: Thank you.

Now we go to Mr. Martin for his closing remarks on the subamendment.

Mr. Pat Martin: Mr. Chairman, I've listened to the questions put to our technical advisers, and so on, and I'm still not satisfied, in that clause 23 is the first introduction of the concept of the right to inspection and search.

We had Mr. Salembier suggest there's no need to qualify the way these searches take place or to explain to the person involved the purpose of the inspection or the nature of any violation; there is no need because this clause only pertains to regularly scheduled inspection. I believe the example used was that it was like the inspection of a bakery once a year, where you walk through to make sure there are no mice in the flour bins or something, for health reasons.

In reading that, in all fairness, I don't get that, because the government's amendment, amendment G-11.1, deals specifically with “When conducting an inspection or search of a place”.

I can see that when you're talking about conducting an inspection, that might be the regularly scheduled routine inspection, but then “or search of a place” to me implies that it would be random or a search that's not regularly scheduled. It would be for the purposes of finding out if any violations of band bylaws are taking place. That's how I read it. I'm not an authority, but I think any objective person reading the amendment....

I don't think the same is true if you read clause 23 in Bill C-7. I think it's actually clearer in the way Mr. Salembier explained it, or it more accurately complies with what your interpretation of it is, in its old format, but in the proposed amendment, amendment G-11.1, to me it's clear that the language I suggested is justified and warranted to make it clear that there's an obligation there.

When someone knocks on your door.... I understand it's not about residences, but when someone comes to your location and says they are an enforcement officer, we're obliging them to identify themselves as such and to show their badge, if you will, or their certificate of qualification. They should also explain what they're doing there, by what authority they're there, and why they are exercising their right to enter that place and to search and go through all the other rights they have, what we believe are very heavy-handed rights and privileges that they can conduct a search and ultimately seizure.

The use of force is not allowed, but it's unavoidable sometimes, frankly. People don't often take kindly to this kind of intrusion, especially if they don't support the whole concept of Bill C-7 and all the changes therein. You can anticipate some problems. So in the event of a problem arising, it begs the question, what's the exposure and the potential liability associated with the band and council if they get sued?

If it's an independent business operating on the reserve, and the council of the band has a right to inspect and it interferes with the operation of the business and there is lost opportunity associated with the length of time it takes to conduct the search of a business--for instance, the person can't practise their craft for those few days--there's liability there. If it proves that the search was without basis, that there were no violations of any bylaws found, what if that operator decides to sue the band and council for the unnecessary or unwarranted invasion into their privacy and the interruption of their ability to make a living or to generate income?

That's the kind of thing that happens with municipal police. What if they break into the wrong premises accidentally, if there is more than one business there and they have reason to believe there is a law being broken in one or the other and mistakenly enter the wrong one? These things all do happen. It's unclear to me, in the exercise of these extraordinary powers, where is the protection? Where are the safeguards? Where is the fallback position?

º (1630)

So it's not unreasonable to me that in every clause we're going to be going through, from clauses 23 through 29, dealing with enforcement officers, we should err on the side of caution and include language to limit the activities of these officers, to protect the interests of the individuals, and to protect the rights of those practising or operating under the umbrella of the new band laws and administration of those laws.

Just to make it clear why I believe this subamendment is justified, when you read subclause 23(1) in the current form, in the form presented to us in Bill C-7, it reads:

The council of a band may, for purposes of the enforcement of band laws, designate any person as a band enforcement officer and shall furnish each person so designated with a certificate of designation specifying the provisions of band laws for which the officer is designated.

That has been clarified. I'm glad to see changes were made to subclause 23(1) in the proposed amendment G-11.1, such that:

The council of a band may employ any qualified person as a band enforcement officer for the purpose of conducting inspections and searches on reserve lands of the band, and shall furnish each officer with a certificate specifying the provisions of band laws in respect of which the officer may conduct them.

It's certainly not clear, and it's a convoluted way of saying what a person wants to say, in my mind, but I'm not a lawyer, so it's language that maybe I don't understand as well.

But I am concerned, as are others who presented before the committee, that this clause may not survive a charter challenge, even with the amendments put forward in amendments G-11.1 or G-11.3, or anything that the parliamentary secretary said. It begs the question, in a bill about individual rights and accountability, why are we giving an enforcement officer extraordinary powers found nowhere else in Canada? Not even a trained RCMP officer has those powers. So it begs the question, are we walking into a charter challenge--with our eyes open, deliberately walking into a charter challenge?

It's almost as if there's a death wish associated with this bill, a suicide wish that is anchored to this bill, where maybe that's the government's way of getting out from under a bill that nobody in the country wants, without having to lose face, simply withdrawing the bill, as has been recommended by so many of the presenters. To do the honourable thing would be just to table the bill and withdraw it and not waste any more taxpayers' time or the energy and resources of this committee.

It's again almost a poison pill aspect. If we leave clauses in that we know full well will be overturned in a charter challenge, or if we know full well that the Senate will not accommodate this and will send this bill back to the House of Commons to deal with some of these issues, that has the same poison pill effect of killing this bill, because we know that by fall the government won't be as interested in pushing controversial legislation around. They'll be more interested in electing a new leader of their party and a new Prime Minister. The new Prime Minister of course has already indicated that he doesn't support this bill and wouldn't implement it even in its current form anyway.

So as we go through clauses 23 to 29, which will probably take us the next couple of days--I would think by the end of this week we will have dealt with clauses 23 through 29--we should listen to Janice Maloney, who gave advice to the committee on this subject when she came before the committee and said:

This section has the potential of increasing violations of constitutional rights of individuals, one's rights against unlawful searches and seizures. The bands themselves would have to train these officers on the Evidence Act to be at the same level as peace officers, the RCMP, or any municipal officers, so they would understand and go forward with all the rules with respect to search and seizures.

She goes on to say:

These clauses themselves don't necessarily meet the problems that have existed with respect to bylaw enforcement.

º (1635)

A big problem in the past, as you've already heard, is how do we enforce these bylaws. Who has jurisdiction? How do we pay for it? When something does go forward, who is going to prosecute? At present it's the band, and again, the band acts as defence, and the community members are in the middle.

The Chair: Thank you, Mr. Martin.

We will now vote on the subamendment, a recorded vote on amendment G-11.1, page 165.

(Subamendment negatived: nays 8; yeas 3)

The Chair: We'll now go to the amendment, as amended by unanimous consent. Remember we added one word, “qualified”.

Monsieur Loubier.

º (1640)

[Translation]

Mr. Yvan Loubier: Thank you, Mr. Chairman. I am pleased to speak on this amendment.

I find it very unfortunate that my colleague Martin's amendment was not supported by my colleagues around the table. I view this as an important amendment, particularly with respect to a clause such as clause 23 that may have such an impact on rights and freedoms.

Pat Martin and I are not the only ones to say this. Those who appeared before the committee expressed doubts and a great deal of reticence relating to clause 23 and the powers conferred upon the officers responsible for inspection and search. Some, like Professor Chartrand from the University of Ottawa, had no hesitation in saying that this could give rise to action under the Canadian Charter of Rights and Freedoms since the power of the officers is extraordinary. According to the minister, this bill will improve relations between aboriginal nations and the government. Not only will such relations not be improved but we could find ourselves facing further court action because of the lack of precision in the officer's mandate and the lack of precaution taken in the wording of clause 23 and the amendment before us, so that there are certain grey areas that may lead us to situations which we certainly do not want to see.

I still wonder about the rather extraordinary concern shown in Bill C-7 for details of this nature. In the previous clauses, dealing with the powers of the band council and sectors where the band council could intervene, we saw that a great deal of emphasis was put on powers that are not devolved on a nation as recognized by the United Nations Organization and the 1982 Constitution. The first nations were given recognition as a people by the UN as well as by the highest court of justice in Canada, the Supreme Court, which recognized on many occasions the inherent right of the aboriginal people to self-government and all the rights linked to ancestral treaties.

Yesterday and the day before yesterday, I had the opportunity to explain the significance of the two-row wampum and its strong symbolic value representing an agreement between nations. For example, a two-row wampum symbolizing an ancestral treaty will show a birchbark canoe and a boat floating on the same river, side-to-side. The meaning of this two-row wampum is that an agreement was reached between two nations both entitled to be treated with dignity and equality but at the same time remaining sovereign in their attributions. In the case of the aboriginal people, this is the inherent right to self-government, a right given to them by the Creator.

In the two-row wampum there are three beads symbolizing peace, friendship and respect. These are strong images in relation to the right of aboriginal peoples to self-determination and their rights under their ancestral treaties. I do not think that the ancestral treaties and this inherent right to self-government constitute the basis of Bill C-7.

º (1645)

We cannot treat the first nations as if they were municipal entities, providing very precise details about the powers that they may have to adopt regulations, for example, in matters of health inspection, highways, etc. I don't think that this is a reflection of the aspirations of the peoples of the world. I have nothing against municipal administrators, far be it from me, but when we begin to define with the first nations the way in which the inherent to self-government is to be expressed, I do not think, to paraphrase my colleague Martin, that we should be dealing with mouse traps in eating establishments. I hope that, on this side, we have a higher concept of the inherent right to self-government and we recognize the nobility of these people who aspire to self-determination, who wish to take responsibility for themselves and rebuild their institutions, relearn their language in several cases and renew with the spirituality that was taken away from them at the time when we imposed our religion on them as being the best.

There is no real difference between the attitude we see here around this table and that displayed by the first Europeans when they arrived here. Just like you around this table, they thought that they had been given a sublime mission by the Creator, to tell aboriginal people what to do, to guide them in their definitions, to tell them what is good for the good aboriginal people. This is a totally outmoded and contemptuous attitude. I do not think that the aboriginal people are interested in enacting laws for their nations as if they were municipalities. That is not the future they had in mind. Yet this is what is being offered to them. We show an extreme concern for detail in telling them what they should do when it comes to managing their municipal affairs.

I do not think that there's any justification for this bill and it would be very irresponsible on our part to continue to analyze it and to imagine that it will allow for a greater harmony between the federal government and the first nations.

As a matter of fact, the Confederation of Nations of the Assembly of First Nations is currently holding its meeting in Vancouver where they must certainly be discussing Bill C-7 and the appropriate attitude to take towards a government which is so irresponsible and to MPs showing such arrogance and cynicism towards them. The demonstration that we have seen over the last several days unequivocally proves, it could not be clearer, that the government does not intend to improve its relations with the aboriginal nations.

Mr. Chairman, I'm disappointed to see that after 71 hours, 49 minutes and a few seconds, we are still debating a bill that no one wants.

I'd like to present a sub-amendment to the government's amendment. I move that the following words be added to the end of subclause (2):

and confirms his identity

I'd like to see this debated and adopted by committee members.

º (1650)

[English]

The Chair: Subamendment 2 is that after the phrase “in charge of the place” the words “confirms his identity” would be added. In French, the wording of the subamendment would be

[Translation]

“...et s'assure de son identité.”

[English]

Everyone understands.

Monsieur Loubier.

[Translation]

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

The Chair: Excuse me, Mr. Loubier, but someone wishes to raise a point of order.

[English]

Mr. John Godfrey: I just want to make sure that, from the point of view of the legislative clerk, this subamendment is in order.

The Chair: Yes, it is.

Monsieur Loubier.

[Translation]

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

Once again, like my colleague Mr. Martin, I thought that it would be a good idea, in the light of what we have seen—in the case of clause 23 and the sub-amendment—to try to improve things. As soon as we began our analysis of this bill, we noted that it contained an extraordinary number of imprecisions. In nine and a half years as a parliamentarian serious about his role as a legislator, I have rarely seen such vagueness as in this bill.

University professors, the Canadian Bar, the Quebec Bar and the Aboriginal Bar Association warned us that the lack of precision in this clause along with several others could lead to absolutely sterile squabbling between the first nations and the federal government. It was clear to them that this could lead to misunderstandings and that in certain communities people would not necessarily know how to proceed.

During the debate on my colleague Martin's amendment, I noted that sub-clause (2) says:

(2) In carrying out duties and functions under this Act in any case or in respect of any goods,...

We are talking about searches, that is someone entering your premises, in other words, something quite serious.

A band enforcement officer shall, on request, produce the certificate of designation to the individual appearing to be in charge of the place...

We are not talking about a person who is clearly identified as being in charge of the place concerned but rather someone who is “apparently in charge”. This is serious lack of precision. This implies that an officer could arrive at the place, assume that the person before him is in charge of the place, present him the certificate, provide him with all the information relating to the court action and, assuming that the job was properly done, realize later on that the person who received the certificate and agreed to the search being conducted was not in charge of the place.

Imagine adding this kind of evidence to the lack of precision in a section of the Act. It could easily be produced court in an action based on the Charter of Rights and Freedoms, for example. It could be a challenge based on a search that was never agreed to by the person in charge of the place and where the certificate was produced for someone who is not in charge of the place, in the assumption that it was the owner, when it was determined later on that this person was in no way in charge of the place and had no ownership link with this particular place.

I find this to be extremely dangerous and the concerns we have about it were expressed by several jurists who, as a matter of fact, made recommendations for amendments to Bill C-7.

Once again I have serious questions, and I put these questions to my colleagues, about the need for us to continue our work on this bill. We were clearly told that it would not be implemented even if it were to pass before the summer adjournment, even if we were to conclude our clause-by-clause study.

Even if it goes through second and third readings, we should not forget the fact that the aspiring Prime Minister, who controls about 95 per cent of the Liberal riding associations in Canada and enjoys the support of more than 50 per cent of the Liberal MPs, said that he did not intend to follow up on this bill and that he would ensure, I do not know quite how, that the first nations would not have to worry about meeting its aims, even those dealing with trapping mice and cockroaches in restaurants. That is quite something.

º (1655)

We might also wonder why the government wishes to proceed so quickly, with quite an extraordinary degree of haste. Yesterday in the House, I asked the Prime Minister why we are continuing our work when everyone is against the bill. He told me that because no one wanted to keep the Indian Act, we would be getting rid of it and replace it with Bill C-7.

What a grasp of this issue! We are talking about a former Minister of Indian Affairs. He knows full well that Bill C-7 does not replace the notorious Indian Act, that revolting remedy that has been applied to the first nations for 130 years.

If he had merely read the preamble, he would have realized that this bill does not replace the Indian Act nor does it accelerate in any way negotiations on self-government. The important thing he would have realized is that it does not make any contribution to settling the many social economic problems, including the health problem affecting aboriginal populations.

The present Prime Minister, who is certainly putting pressure on his Liberal colleagues, seems to want to leave this kind of legacy. His present legacy is so unsubstantial that, with the exception of the Millennium Scholarships that he imposed over the past three years, he seems to be making his final sprint to leave something behind worthy of a Prime Minister. He is ready to go all out so that he can say that he accomplished something when he was Prime Minister. He is ready to go ahead with an obnoxious bill like this that no one wants so he can say he has left his mark.

That is the only motive that I can imagine for the Prime Minister and his associate, the Minister of Indian Affairs. He is so anxious to get this through that he will tell the House anything, going so far as to claim that this means the disappearance of the Indian Act, which is quite untrue. It's my impression that he wants to make the first nations toe the line, no matter what the cost. After all, that may be what he will be able to boast about once he has left politics. He would probably like to be able to say: “I, Jean Chrétien, Prime Minister and former Minister of Indian Affairs, presented in 1969 a white paper that was refused by all the aboriginal nations. Nonetheless, in 2003, I did it over again and I was able to impose on them my white paper, I rammed it down their throats. That is my legacy. I made the aboriginal people fall back into line, in spite of what the courts had to say, including the Supreme Court, and in spite of the position of the UN. I made them swallow this agreement that they had refused in 1969.”

He doesn't so much want to leave a legacy as take his revenge on the events in 1969. That was the year when his attempt to implement the famous white paper was trampled upon. This white paper contained exactly the same kind of provisions leading to the municipalization the first nations.

Their fundamental rights were taken away from them, through the absence of a notwithstanding clause, and they were not allowed to give voice to their ancestral rights and the claims resulting from them. This time he was determined that he would not meet with the same fate. So he prepared Bills C-7, C-6 and C-19 which, taken together, were able to demolish the claims of the first nations. That is the kind of legacy the Prime Minister wants to leave.

In view of the extent and the ferociousness of the opposition, I personally can find no other explanation for the Prime Minister's persistence in maintaining this bill, in spite of the fact that his successor, and there is no doubt he will be his successor, says that this is not the kind of new relationship with the aboriginal peoples that he aspires to.

What I do have trouble explaining is how this folly of one man has been transmitted to the Liberal members present here. We have to stop the implementation of this odious bill that no one wants. It is inflammatory and if we insist on continuing our analysis, then there will be a point where we will have to pay the consequences.

As we've seen over the past several days, the obvious fact that we are not bringing the aboriginal nations closer to the federal government should make us realize that this bill is absolutely not the answer. It is a bill that is unworthy of our experiences over the past 25 years when it comes to frank, honest and open discussions between the federal government and the first nations.

The 1983 report of the joint committee as well as that of the Erasmus-Dussault Commission do constitute what we consider to be a true foundation, contrary to this bill that attempts to municipalize first nations and to make them believe that their right to self-determination or self-government is about conducting health inspections in restaurants.

» (1700)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

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

And thank you, Mr. Loubier, for putting forward another amendment to qualify, add to, and clarify the amendment put forward by the government. I, too, find it difficult to read and difficult to follow. I don't know if it's a deliberate obfuscation of the ideas being put forward, or if it's just an unfortunate choice of turns of phrase, but you can read and reread these clauses and still be uncertain. It's almost like a moving target, what is really trying to be accomplished and achieved here.

When reading legislation that is established and crafted already, I often refer back to the purpose clause, whenever there's ambiguity or when I'm uncertain about what the drafters were really trying to tell me when they chose this particular language. I think it's helpful to refer back to both the preamble and the purpose clause for guidance to help get it clear in your own mind, in the case of ambiguity, what the real intentions of the people who drafted this bill were. I would hope every clause can be checked by such a test, that the reference back can be made. It would be easy to see then what the stated objective of the bill was and how this clause is in keeping with that stated objective.

I don't know if we can say that about where we are in clauses 23 through 29. I know we're only dealing with clause 23 for starters, but the clause dealing with the enforcement of inspections and searches is worrisome. It indicates to me that the thought process in this whole bill hasn't matured. When the original draft caused such an uproar across the country, with authorities from one end of the country to the other saying in loud and very clear terms that this will never fly, the search and seizure and inspection clauses in this bill will never pass the muster and cannot be allowed to proceed, we should have really put the brakes on it right then, and maybe gone around the country and consulted with first nations at that point. It would have been helpful to consult in an in-depth, comprehensive way with first nations to get their input as to how they might see this unfolding in their communities.

Unfortunately, no such consultation took place. The unfortunate thing was that the government felt they could craft legislation affecting the lives of first nations people without consulting them and without allowing them to participate in the drafting of this bill. And there's no participation of first nations in the drafting of these amendments, or even the debate surrounding the crafting of these amendments.

Contrary to what members on the Liberal side said earlier today, the consultation process associated with Bill C-7 was a fraud, a sham, and a mockery. It in no way met any legal definition of what consultation really is. So for the record, we should clarify that. I thought we had established that to the point where there was acceptance among all parties that no such genuine consultation ever took place around Bill C-7, in spite of obligations on the part of the government to do so, especially when they're dealing with subject matter that may infringe upon constitutionally recognized aboriginal and treaty rights.

The government being fully aware of the obligation to consult and failing to do so has led to the predictable consequences of a piece of legislation nobody will accept, because there was no buy-in at the beginning. We're dealing with matters on the developing of laws, and now the enforcement of said laws, with no buy-in from the very people to whom those laws are supposed to apply.

» (1705)

It's a recipe for failure. It's a recipe for disaster that we've been cautioned about by many presentations. It's absolute folly unless you want to back up this sort of governance, imposed governance, with a police force of some kind to enforce laws. Bylaws and rules and codes of conduct that may be imposed by default, or even the conditions set forward in these provisions that were not developed with the participation of first nations people, may be rejected by first nations people.

There are many forms of not cooperating with something. And frankly, marginalized people or oppressed people are used to this. There are a lot of techniques. It goes from passive involvement--bureaucratic sabotage, I call it--to out and out industrial sabotage. When people are objecting to and protesting something, there's a variety of steps and a variety of measures of different severity that they can take. But all it would take in these cases is to simply not cooperate with the new rules, the new world order as envisioned by the minister and by the people who wrote this bill, which was not first nations people. Otherwise, if you are trying to force people to do things they don't want to do, then you have to act like Pinochet or somebody and enforce it by force. Surely nobody wants to go to that extreme to change the bureaucratic administrative ways in which first nations have to conduct themselves.

In terms of this whole issue about inspections and searches, I don't think we've thought this through. Because had we thought this through, we would have dealt with the matter of how do these new rules relate to the sacred longhouse, the longhouses where sacred items are stored, like false faces, or wampum, which we spoke of a number of times? What if a ten-day ceremony was being held in that building at the same time this enforcement officer with seemingly absolute powers sought to attend that place and conduct a search because they felt that perhaps some bylaw had been violated or it was just time for their regular inspection? Whose rules would then have primacy, the traditional rules associated with a religious ceremony, or the new expansive and extraordinary rules of this enforcement officer to possibly interrupt these activities?

I can see the parliamentary secretary smirking again as if this is a ridiculous idea. This is not a ridiculous idea. In fact, it's been suggested by some of the first nations people who are witnesses to this event, who give up their personal time to attend these things so that they can feel they're at least participating somewhat in this process, when in actual fact they're shut out of the process. They attend on their own time, and at great expense and trouble, to sit here all through the evening and all through the night. And now and then when they interject issues they want dealt with, all we get are smirks from the parliamentary secretary. I think it's offensive.

I'm raising a legitimate point here, a legitimate concern. If we're talking about the forced entry into a building other than a dwelling, what about buildings other than a dwelling, which may be a longhouse in this example, where sacred items are stored and where ceremonies may be taking place? And the enforcement officer has the right to figuratively, if not literally, kick the door in and interrupt the proceedings.

So that's the kind of thing that would have been addressed if we were dealing with this in a culturally sensitive way. If we were concerned about the cultural match to any of the activities we're proposing here, there would have been a forum wherein people, like people who are sitting in the audience here today, would be sitting around this table and raising these concerns before pen ever hit paper to draft this bill.

That's the flaw here, that's why it's doomed to failure, because no one's allowed to participate. So we feel very strongly, Mr. Chairman, as you may be able to gather, that we're going down the wrong road here. Every clause that we enter is more and more detailed, and more complex, and the offensive aspects of it get expanded.

» (1710)

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I hope that my colleagues around the table, like Mr. Martin, will support my amendment. A serious examination will show that it could provide a way out for the government. Lack of precision such as this in a legal text, particularly in provisions dealing with inspection and even more so search, are extremely serious. We are here to be helpful. As a matter of fact, our role is one of public service, it is well-known.

Instead of systematically rejecting everything we proposed, you should do a proper job and consider for once the possibility of supporting an amendment from the opposition since in this particular case it is by no means superfluous. It is important to ensure that the person to whom the officer hands over the certificate of offence does not only appear to be the person in charge of the place but is in fact the actual person in charge or the owner of the place. If not, this can lead to serious cases of mistaken legal identity. They could show up at a place, present the certificate and realize later on that authorization was given by someone other than the person in charge of the place or the owner.

In addition to the service I wish to do the government, the government is responsible for providing services to the aboriginal people at the present time. It is the government duty as trustee and it should continue the excellent exercise it began in 1983 with the report of the special committee. We were able to discurs to great length the development of this report with Chief Jamieson, one of the co-authors. Later on there was the report of the Erasmus-Dussault Commission. We must build upon the work done by these two groups and prepare another project that will last 20 years, as was explained in the Erasmus-Dussault report. We must establish with the aboriginal people conditions for the concrete expression of the inherent right to self-government.

I spoke a little bit about the agreement with the James Bay Cree. It's worth coming back to this subject and explaining to you what happened following the signing of the Peace of the Braves. In this particular instance, the government, namely the Government of Quebec, came to an agreement with the James Bay Cree First Nation and entered into a treaty. This treaty contains provisions relating to a real Cree government, that is a true power structure, a legislative structure, as well as areas of jurisdiction that are devolved upon these authentic nations constituted by the aboriginal nations.

This agreement first of all recognizes the Cree nation. Second, it recognizes a Cree Constitution, rather than a Quebec or Canadian Constitution that we have attempted to impose upon the Cree. The agreement recognizes a third order of government, that is the James Bay Cree government, with jurisdictions and territory that belong to it. This agreement, lays out in detail the powers of the third order of government, the aboriginal government, constituted by the Cree government of James Bay. The Cree are given jurisdiction in matters of justice, environment, economic development, culture, family policy, transport, taxation, human resources development, plus land and social development.

The Cree have availed themselves of their right to make international representations. They have not hesitated to make use of this right, they made representations to the UN and to the Council of Europe when the federal government tried to usurp their rights on several occasions in the past. These are real powers established for this third order of government. They are not municipal powers but real powers for a nation recognized as such by everyone, except by the federal government.

» (1715)

The same holds true for the Innu. There are four Innu First Nations in Quebec that are still working on finalizing an agreement with the Government of Quebec. The federal government is part of this agreement as well but it is mainly the Government of Quebec that is involved. It is quite surprising to see the difference between what they are trying to impose on the first nations in Bill C-7 and the particular agreements that can be reached with the first nations when a decision is made to do a proper job.

The agreement with the Innu is based on the same principles as the agreement with the James Bay Cree. There is a determination of an Innu territory, known as Innu Assi. This is the land that belongs outright to the Innu communities in the four first nations that are co-signataries to this agreement. There is also what is known as Nitassinan, that is the largest territory, the ancestral territory where the Innu nation engaged in its hunting, fishing, trapping, etc. On its own territory, that is the Innu Assi territory, the matters that I mentioned to you are under the control of the first nation, not the Government of Quebec, not the federal government, but the first nation which has government status.

This government of the Innu first nations can legislate in almost all areas and must harmonize its systems with the other systems. That is what was agreed upon. It was not imposed but together an agreement was reached that certain things had to be harmonized, such as the tax system, for example. There will be tax harmonization agreements such as exist between the federal government and the United States or Europe, for example, in order to implement what are known as tax conventions. This means that an Innu representative who works in Quebec and is taxed once will not be taxed a second time when he returns home to the Innu Assi territory. That is how it works for all the tax conventions established with sovereign countries.

So we have a duly signed agreement with the James Bay Cree and an agreement with the Innu First Nations that will soon be signed because it is unanimously accepted in the Quebec National Assembly.

There is however, one thing I noted. When Mr. Ted Moses came here, about two months ago, to meet the federal representatives and he asked them to give him the equivalent of the powers guaranteed by the Government of Quebec in the Peace of the Braves agreement, the federal government said it would not do so because that was not the direction it was heading in.

The James Bay Cree First Nation was refused the right to have the federal equivalent of the powers it established in its negotiations with the Government of Quebec, probably because the government already had in mind that it wanted the first nations to apply Bill C-7, that and nothing else.

That is not the way we go about entering into what I refer to in the modern language of international agreements as good neighbour agreements. That isn't how it works. You cannot tell you neighbour what colour he must paint his house. You cannot tell him what kind of house to build. Nor can you tell him what kind of furniture he should buy. So by what right would Canadians be able to tell the members of the first nations the colour to paint their house, how it should be built and what they should put inside it?

It is obviously perfectly incongruous. We cannot impose this kind of thing on the first nations and imagine that this is how we will be able to develop relations as good neighbours and allow them to take control over their lives and assume full responsibility for their destiny. It is not up to us to decide for them. Our only role is to make up for the harm that we have done them and to support them in the rebuilding of their nation. That and nothing more.

We should assume no arrogant claim relating to the acculturation of the first nations. It is not the trustee role of the federal government, nor is it the way that was traced over the past 25 years by the various aboriginal and non-aboriginal stakeholders who decided to work together from the beginning of the 80s.

» (1720)

Let us come back now to my sub-amendment. I have been trying to present things since the very beginning of the 80 hours that we have spent considering...

The Chair: Thank you, Mr. Loubier.

[English]

Now for the vote on what I call a subamendment to Monsieur Loubier's subamendment. We'll have a recorded vote.

(Subamendment negatived: nays 7; yeas 3)

The Chair: Now we go to the amendment and closing remarks.

You have a point of order, Mr. Vellacott.

Mr. Maurice Vellacott: Yes, on a point of order, Mr. Chair.

I would ask unanimous consent on the amendment coming up, so that we don't need to spend time on it. It may well be ruled out of order. I move that we simply insert here new wording.... The clerk has the wording, and I've passed it on to the parliamentary secretary. I believe he indicated to me he was favourable to this.

So under subclause 23(1), it shall read in the latter half of subclause 23(1):

shall furnish each officer with a certificate specifying the provisions of band laws made under sections 16 and 17, in respect of which the officer may conduct them.

The Chair: Thank you.

Do I have unanimous consent that we insert this in the amendment?

Some hon. members: Agreed.

The Chair: Okay, it now forms part of the amendment.

Without debate, we go to closing remarks.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, I'm not sure if we should take the full ten minutes, but the two members opposite have done their best, and we've spent darn near two hours dealing with these two amendments to clause 23.

I was saying to one of my colleagues a minute ago that if a tree falls in a forest and no one is there, is a sound created?

Mr. Yvan Loubier: What does that mean?

Mr. Charles Hubbard: The opposite of that, Mr. Chair, for the members opposite, is if a sound is so repetitive and has such little new information, I'm not sure that this sound is heard. So we've had a long debate. I know that we don't like to speak in parables, but when they get home tonight, they can understand what I said.

I hope the two hours we've spent on this was productive, that it has brought forward a good amendment. We're ready now for the question on the amendment.

The Chair: It should be noted there were 14 interventions. There were two amendments put in by unanimous consent, which shows goodwill, and two subamendments, which were defeated. That's an awful lot of work on one amendment. I will never accept that we be accused of rushing this bill through. It wouldn't be fair to do that.

Now for the recorded vote on G-11.1, page 165, as amended by unanimous consent.

(Amendment agreed to: yeas 8; nays 2)

The Chair: Now CA-37 is not being moved and CA-38 is not being moved.

» (1725)

Mr. Maurice Vellacott: With unanimous consent, I would suggest, Mr. Chair, the purpose of the amendment is because of a motion not being adopted back in clause 11. It's the “ombudsman” wording there, if that was changed to “the behaviour of a band enforcement officer to the person or body appointed under section 11”, which is the government wording back in that clause. It would say under subclause 23(1.2) , “may file a complaint regarding the conduct and behaviour of a band enforcement officer to that person or body appointed under section 11”, which is the government's wording back in that previous section.

The Chair: Do we have unanimous consent?

Some hon. members: No.

The Chair: We don't have unanimous consent. Amendment CA-38 is not accepted.

Mr. Yvan Loubier: I want a recorded vote.

The Chair: Relax, give me a chance to think here. A recorded vote. Relax, take a Valium. Toujours prêt à se battre--always ready to fight.

We'll have a recorded vote on clause 23 as amended.

(Clause 23 as amended agreed to: yeas 7; nays 3)

The Chair: That's carried, and it's on the record, so you can complain to the Speaker of the House.

We'll take our composure and try to get back to work.

(On clause 24--Powers of band enforcement officers)

The Chair: Clause 24, amendment CA-39. Mr. Vellacott.

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

This is simply amending by replacing lines 39 to 45 on page 15 and lines 1 to 4 on page 16 with the following: “A band enforcement officer to whom a warrant has been issued under subsection 26(3)” --that's in the future--“may, at any reasonable time, carry out an inspection if the officer believes on reasonable grounds that there is non-compliance with a band law.”

This is keeping it in the hands of the first nations leadership and individuals there and this band enforcement officer. But I think it's pretty necessary, because lots of concerns were expressed to us about maybe broad search and seizure powers, the possible powers of abuse even, in fact, unless we had the proper curbs here, as would be assumed or expected elsewhere. So a band enforcement officer may, for the purpose of verifying compliance with a band law, undertake a search, but he does need a search warrant. So that's the operative here: “to whom a warrant has been issued”. He must have a search warrant issued by a justice of the peace in order to carry out any search.

I'm going to be fairly to the point here: this amendment ensures that the basic rights enjoyed by all Canadians will also be protected for individual aboriginal Canadians. It has that protective step or stage in there of the issuing of a warrant by a justice of the peace. A search warrant needs to be obtained before, not at some point in the midst of or thereafter, the band enforcement officer can enter the premises. So it's a protection to that first nations person. Limiting the search and inspection powers of the band enforcement officers will ensure that individual rights are protected, so that warrant will be written up in such a way that curbs or curtails or provides the proper parameters.

There is really no definition, at least in anything I've seen yet, or we've seen yet, unless we get that in report stage, of the authority band enforcement officers must report to, nor on their training or compensation. Regrettably, one of mine that was ruled inadmissible just moments ago would actually have beefed it up in terms of some training required, some basic level of instruction, whether at a police college or even some kind of weekend course or whatever, but there's nothing of that as things stand.

I hope I am really wrong on this one and I don't have to rue the day, but as the bill currently stands there's potential for abuse and for intimidation. It's just an empty basket here. Many witnesses have testified that this section of the bill is scary. I've had first nations persons individually and to my face tell me that. I think all members of the government side and the opposition members here had that reported to us as we were in hearings around the country as well. So we need to ensure that Canadians enjoy the same levels of rights and freedoms and protections under and before the law, regardless of residence.

Warren's gone, so I'd ask Paul or one of our witnesses here, what is the department assuming, in the absence of a warrant, that would justify or put a middle step in there that would prevent abuse, intimidation, and so on?

» (1730)

Mr. Paul Salembier: I'll take a stab at that question and invite my colleagues to add any other comments to it.

The suite of government amendments that is put forward relating to inspections and searches provide that an inspection would, partly by definition, only occur if, first, a band law provides for it, and secondly, if it's something that is done either on a regular basis, on a basis that's set out in the band law, or with prior advance notice.

The idea there is that inspections only apply where there's a regulated activity. So it's not simply, for example, where there's a suspicion that someone has contravened a prohibition in a band law, but it's where there's an activity being regulated. Perhaps we can use our earlier example of a bakery. So you would get a licence for your bakery and part of the band law would provide that bakeries would be inspected, say, once a month.

In a case of an inspection showing a significant contravention of the band law, something to do with health or safety, the example of mice in the bakery, one would assume that there would be an opportunity given to rectify it, and if the situation wasn't corrected, then the licence would be revoked. That's the kind of regulatory regime that the government amendments to these provisions contemplate.

Where there is a search, on the other hand, they contemplate the requirement that there must be a warrant in order to execute a search, subject to a very narrow exception, which is the same exception that's provided for in the Criminal Code.

Mr. Maurice Vellacott: So what clause are you making reference to there?

Mr. Paul Salembier: That would be government amendment G-11.4 on clause 26, which says a search to enforce a band law may be conducted only in accordance with a warrant. And the grounds for getting the warrant are the standard types of grounds that one finds in other federal statutes, and they're set out in subclause 26.(2).

Mr. Maurice Vellacott: Why then do we use exactly the same language in reference to a band enforcement officer? Would there not be some wisdom to actually refer to this as a health inspector, a building inspector, some kind of an inspector, to use the one term, which then raises the spectre of possible unwarranted intrusions and so on? Why would we not use a different term here in clause 24, as opposed to the clause 26?

Mr. Paul Salembier: That's a good point. The situation in most reserves is that most first nations are fairly small communities and unlike, say, the City of Ottawa, they're not going to have specialized persons, for example, doing parking tickets, doing restaurant inspections, doing bakery inspections, etc. It's likely to be either a single person or a very small group of persons who would be basically enforcing or inspecting for the purposes of all band laws. Therefore there was a search made for a common term that would encompass all of these activities, and the expression that was decided on was “band enforcement officer”.

The idea is that this is an officer who enforces band laws. Again, the same sort of terminology is in the existing provisions of Bill C-7.

» (1735)

Mr. Maurice Vellacott: Okay, so that's as creative as we could come up with. We couldn't come up with something like an inspection officer, as opposed to enforcement. “Enforcement” certainly has a more heavy-handed sound to it, and I think most people would shrink back and they're thinking the constabulary, police officers, that type of thing. Would you not agree that that's perhaps more the picture that comes to mind with “band enforcement officer”?

Mr. Paul Salembier: That would certainly be one interpretation. I think care was taken in government amendment G-0.2, which provides a definition of “inspection” to clearly delineate the difference between inspection and search. One would hope that the definition of “inspection” might alleviate some of the concerns that you have regarding the terminology used.

Mr. Maurice Vellacott: So you're assuring me, then, Mr. Salembier, that under subclause 24.(1) this has in no way anything to do with walking into homes, into private dwellings. Can you guarantee me that this is not an “enforcement” officer walking into the private homes of band members, this is about health inspections, this is about those other types of things you make reference to here?

Mr. Paul Salembier: On that point, I'll direct you to government amendment G-11.5 on subclause 27.(2), which provides that under no conditions shall there be a search of a dwelling without a warrant. So there's a protection there for dwellings.

Now, regarding an inspection, if you did have someone who was going to carry on a regulated activity in a dwelling--suppose, for example, you were going to bake cakes to sell to a restaurant--the band might choose, for example, to regulate that activity and to have certain health and safety concerns regarding that. If that was the case, and if someone chose to carry on, for example, a licensed activity in their home, then they would be doing that in cognizance of the fact that the band law might provide for a monthly inspection of their kitchen. Again, that inspection would be done on a timetable that was known in advance, because it's set out in the band law or it would be done with reasonable notice--for example, 24 hours' notice.

The Chair: Thank you. Time is up for Mr. Vellacott.

Mr. Martin.

Mr. Pat Martin: Thank you.

I'm happy to speak to the Canadian Alliance amendment CA-39.

The one noticeable absence I note in amendment CA-39 is a clause that deals with specifying “other than living quarters”. If it is a concern of the member that they want to ensure that it never happens that there's an undue exercise of authority in terms of invading the privacy of a person's home, the current clause in Bill C-7 does specify in clause 24, at least, that the band enforcement officer may “enter any place on the band's reserve, other than living quarters”.

I suppose there are other issues the honourable member is trying to address with this amendment.

I think it's important that we all recognize that enforcement officers have a very heavy responsibility under Bill C-7 and that from time to time they may have to make rulings or a decision at a moment's notice on what reasonable grounds would be. They may have to make these snap decisions on a number of different levels, because, as pointed out, it might be one individual who's charged with the responsibility of being the enforcement officer for every detail and aspect itemized in clause 16, clause 17, and even clause 18, which deals with the election of officers.

There may be laws and bylaws set out to deal with the election of officers and surrounding the election process or the posting of posters at polling stations, etc. All of these things may be the duty of the one enforcement officer to ensure the compliance with all these various details. And they'll be called upon to make judgment calls, at various times, that even the courts wrestle with in terms of making a determination on what's reasonable and what isn't.

When an enforcement officer decides he or she has reasonable grounds to exercise the extraordinary authority that they've been afforded by these clauses is precisely a matter that should be open to debate, and it should be open to debate here before it becomes law.

I appreciate the member bringing forward this amendment and giving us the opportunity to have a more fulsome debate surrounding these what we see as unusual powers of inspection and search, and ultimately seizure as well, afforded to the enforcement officer.

An enforcement officer seeking to apply the reasonable grounds is not held to the strict exactitude of a lawyer in the same way that a police officer is not. If anything, they've dumbed down some of the obligations to more manageable codes of conduct that enforcement officers.... Even though they're thought out very thoroughly, it's not with the same degree.... You can't have every police officer having a law degree. Nonetheless, although the law does expect the same inquiry of an enforcement officer that it demands of a judge, the law does require some meaningful inquiry by the enforcement officer to be able to ascertain if the actions they're going to undertake are in fact reasonable.

By using the word “reasonable” anywhere throughout here.... These sorts of words have legal weight and legal meaning. What is reasonable and what is not? It may be said that it's not up to us to craft that, it's up to a first nation to decide those tests, but we're the ones being charged with the responsibility, without any participation or input from first nations to craft this what's supposed to be called “enabling legislation”.

So it is our duty and our obligation, and I take that seriously. I welcome, frankly, that we have been given this opportunity to assess these matters. I regret and lament that we're assessing them in isolation, without the full participation or even input from the very people who will be affected by this bill.

» (1740)

But a point that has been brought to my attention is that an assessment of an enforcement officer's conduct is based on the reasonableness of what occurred up to and until the point of the core transaction--that is, the moment of the search, or the arrest, or the use of force, in the case of a police officer. A fact that arose or came to light subsequent to the formation of the belief is not relevant in determining whether the enforcement officer had reasonable grounds. This is subject matter we have to be familiar with as members of this committee, as legislators.

I think I should repeat that, because it may generate input and participation from others on this issue, who may want to participate in this debate: Any fact that arose or came to light subsequent to the formation of the belief that the officer holds is not relevant in determining whether the enforcement officer had reasonable grounds. In other words, you can't prove after the fact that reasonable grounds existed. The officers have to have foreknowledge that reasonable grounds exist before they can exercise their authority.

It's a fine point, but it's a very important point. It's the kind of point that winds up before a judge when somebody complains about an unlawful search or seizure. It's a very important point. An after-the-fact analysis is not appropriate to determine whether the action of an enforcement officer was lawful.

I might be boring people here--I sense that I am--but it's an important distinction. Well, I am boring some, and there are some that agree, but I think it's a fascinating debate that we should visit. When are there reasonable grounds to enter someone's...not residence, because living quarters are specifically excluded, but otherwise, any other building on the reserve?

The enforcement officer has the right to enter, search, and seize equipment, materials, computers and databases, and a variety of things. So we have to be pretty abundantly clear in our minds what that power really means.

To afford these authorities with reasonable grounds is too easy to say. It's too easy to say the enforcement officer will make a judgment call, will make an informed decision. That person had better be a fairly well-informed person to make that informed decision, because the liability that has been brought to our attention is profound.

It's the last thing needed by a struggling first nations community that's dealing with the challenges of trying to meet the basic needs of people with inadequate resources. The last thing they need is compounding lawsuits associated with the actions of their enforcement officers.

We're crafting and outlining the powers of the enforcement officer. I think it's our duty to be well informed. In fact, had I access to all the documents that the government side has, I wouldn't even need to enter into this debate, because I believe the government side has all these legal opinions. We have to garner them and stay up all night and try to scour through law books to try to find these opinions. I believe these legal opinions do exist on the government side; they just refuse to divulge them.

I asked specifically, by way of a motion on this committee, for the government to release any legal opinions they have either undertaken or commissioned as to the impact of Bill C-7 on two things, whether it infringes on the constitutionally recognized aboriginal treaty rights, or the impact it might have on current or future court cases--in other words, the legal liability.

Whenever I ask those questions, the lawyers--and I don't blame them--have to say they're not allowed to answer the question. They're not even allowed to tell me if such documents exist, even though we know full well or very strongly suspect they do.

So I'm being denied the opportunity to do my job in the best way that I know how, because they're refusing to share pertinent information. If we had any guts as a committee, we would refuse to continue in the clause-by-clause analysis of this bill until such time as the government or the parliamentary secretary--I look at him as the minister's agent on this committee--releases all that material and information to all members of the committee so that we can all start from an informed base level of information.

There's a substantial number of people who agree with me. In fact, more people agree with me than disagree with me on that point around the table. So I think we owe it--

» (1745)

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

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

Life requires courage and honesty, and I would ask the chairman, when he wants to insult me or others, to not wait until the microphones are off to do so. It might be a way of improving how this committee functions.

That said, I would like to speak to Mr. Vellacott's amendment. I feel that this is an important amendment because we need to provide a context for the work of these officers. During our consideration of the bill, a number of us have already pointed out that it will be difficult to enforce these clauses, such as clause 29. By limiting these potential visits by officers for the purpose of inspection or search and seizure to reasonable hours and on reasonable grounds, Mr. Vellacott is making a small improvement, such as we have been trying to do since the beginning of the committee's work, but without success, since the government feels so strongly that it has truth on its side that even the most valuable amendments, like this one from Mr. Vellacott, get no support from the other side.

Even the participation, or rather the lack of participation, by the Liberals in the debate over these amendments has surprised me since the beginning. It is now exactly 80 hours and 52 minutes since we started clause-by-clause consideration of this bill and our study of the proposed amendments.

I would remind you of what the Prime Minister said yesterday and again today in response to a question by my leader, Gilles Duceppe, about the contradiction between the Prime Minister's vision and that of his successor. The Prime Minister rose and said that the Indian Act must be abolished and replaced.

To begin with, that is not true. To say such a thing is a lie, since Bill C-7 does not abolish the Indian Act. Second, he said that members of Parliament had an opportunity to improve the bill and propose changes. Yes, the possibility is there, but between the possibility and necessary open-mindedness on the part of the Liberal majority around the table, there is a gap that no one on the other side has closed in nearly 81 hours of debate.

Only a few of our amendments have been accepted—we should count them—and those amendments did not fundamentally change the thrust of the bill. We worked very hard under very tight deadlines, given that you imposed a bruising pace and a very strict schedule from the outset. Moreover, the parliamentary secretary and one of his colleagues brought in a time-allocation motion, which means that we are now under allocation. So if some people are finding that the process is long and that our consideration here is taking time, well I would say that there is not enough time and money being invested in democratic expression.

Then you impose a gag on us, with the result that no member can speak for more than 10 minutes to explain the nature of amendments, debate the issues, etc. Up to this point, we have used all the time that we have had. I hope that you will not hold a grudge against us for that, since the Liberal members around the table are not participating in the debate. It is as if we were debating these things in a vacuum. There are 9 Liberal members, and you have 10 minutes each, which makes 90 minutes. If we could take your 90 minutes, which you do not deign to use because you do not want to debate this fundamental piece of legislation and each of its clauses, if it were possible to transfer those 90 minutes to Mr. Martin, myself and Mr. Vellacott, we would certainly taken them. Mr. Vellacott may be a little less keen, but we would definitely accept.

» (1750)

So you impose a 10-minute time limit on us, and you do not take part in the debate. If you do not debate the clauses of the bill and the amendments, does that mean that you are no longer interested in your work as parliamentarians? Do you not feel a fiduciary responsibility toward first nations people? Do you not think it is important to speak out against certain things? One of your colleagues, Mr. Martin, did speak out the day before yesterday. He is an ordinary member of Parliament and he was bold enough to say that he did not agree with this legislation.

My friend Paul, who is here and is a great friend of mine, will understand my views on this. At some point, we need to act courageously as parliamentarians. The outgoing Prime Minister is absolutely determined to get this bill passed, but I understand a lot of things because of my independence and my intelligence as a parliamentarian. We are parliamentarians first and foremost and we are independent members with a mission, which is to meet the needs of people. If members take that role seriously, they need to participate in the debate. It is wrong to systematically take the position that everything that comes from the opposition is bad. The inspiration for our amendments, sub-amendments, etc., comes from the briefs that we analyzed, all the briefs that were submitted to the committee or sent to us, and even e-mails that we have received on this issue. We are also inspired by the desires of the people, and the primary people concerned are those of the first nations. We have played by the rules. If it were just up to us, we would have taken this bill and burned it in effigy in front of Parliament, but we followed the rules. We decided that if ever the Liberal majority did push this legislation through and it was passed, at least we would have helped to smooth some of the rough edges and soften some of the most brutal and even violent aspects being imposed on the first nations.

But we were expecting some cooperation from our Liberal colleagues. That cooperation, however, has not been forthcoming, and all we have had are insults, offensive comments and cryptic analogies, which no one understands, about trees falling in the forest and so on. I just hope that no Liberals are going by when those trees are falling in the forest. That is one thing for sure; you need to stay away from falling trees.

Returning now to the bill, I am disgusted. I have been a member of Parliament for 10 years and have sat on the Finance Committee for nearly 9 years, and this is the first time that I have seen this situation. It is the first time that I have seen a process like this. Many amendments have been presented. Look at the list of amendments: it is huge. Mr. Martin, Mr. Vellacott and I have worked hard to present these amendments and try to improve things, but we have had no success up to now.

Not only are you presenting token amendments on the government's side, but when we present substantial amendments, you reject them out of hand. You even rejected those we tabled a little earlier aimed at providing a framework for inspectors' work.

I would like to propose a sub-amendment to the amendment before us, by adding the words “other than living quarters,” because he forgot to provide for the exception that is set out in the legislation, which states “other than living quarters.” So I would put those words back in. That is my sub-amendment.

» (1755)

Le président: Where would you insert those words, Mr. Loubier?

Mr. Yvan Loubier: The amendment would be as follows:

A band enforcement officer to whom a warrant has been issued under subsection 26(3) may, at any reasonable time, carry out an inspection, other than of living quarters, if the officer believes on reasonable grounds that there is non-compliance with a band law.

[English]

The Chair: Does anyone see a hope of getting this done through unanimous consent?

[Translation]

Would it be possible to obtain unanimous consent to do this, if that is what Mr. Loubier wants?

Mr. Yvan Loubier: No, Mr. Chairman, that is not what I want.

[English]

The Chair: No, we don't have it that way.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I do not want this because you have already limited our time by a motion supported by the vast majority of Liberal members. We already feel that our valuable time, which is needed to explain to people what you are doing with this bill, is very limited.

I will take my 10 minutes to explain the sub-amendment that I am tabling to improve Mr. Vellacott's amendment. We need to be extremely careful with this type of wording. Everyone has told us to be careful with the wording of clauses 23 and 24 with respect to the whole role of officers, particularly where inspection and search and seizure are concerned. It is a very tricky area, and the officer's work needs to be clearly defined.

There is also the fact that clauses 23 and 24 have still not been dealt with adequately, and these two clauses have been roundly criticized by people knowledgeable about law, constitutional law in particular, that is, representatives of the Canadian Bar Association, the Quebec Bar and the Aboriginal Bar Association, who told us to be extremely careful with this type of wording in Bill C-7, especially in the context of the Canadian Charter of Rights and Freedoms.

Mr. Vellacott presented an amendment earlier. I was very surprised to see that the words "other than living quarters" had been dropped completely! The new version of clause 24 was even more problematic than the initial wording. That said, I must acknowledge that Mr. Vellacott, with his amendment, has made an improvement by talking about doing these activities at a reasonable time. But the exception for living quarters needed to be added back in, so that they are exempt from these inspections and searches of band reserve premises.

Once again, I am presenting this sub-amendment in good faith. I am doing so, and I think we need to keep repeating this, to try to improve the bill at least in a small way by preventing very costly situations from a social standpoint as a result of this unclear wording. This wording could probably lead to the courts, which would be expensive and surely not something that the members here would like to see.

It might be a good idea to accept my sub-amendment and also vote in favour of Mr. Vellacott's amendment, since he was surely acting in good faith when he presented it, just like Mr. Martin has been for nearly 82 hours of debate now. I have also been acting in good faith in putting forward my amendments, since I saw when I read the bill that there were problems in all areas with respect to enforcement and interpretation.

If we had not consulted and if we had not read the briefs provided to us, I could understand. Someone at this table who had not read the briefs or listened to the presentations made to the committee might forget or ignore the cautionary words of the major experts that were consulted on this bill.

But the reason consultations are done is so that people will pay full and careful attention to what is said and attach importance to it. When we ask people to submit briefs, it is with a view to improving the bill. Since the beginning, however, the government has been presenting cosmetic amendments, or amendments that serve the needs of some small group that is supporting the government. Those small groups are so tiny that as soon as they make a recommendation, the government is very quick to accept it and introduce it in an amendment to satisfy the very small minority of aboriginal people who might support Bill C-7.

Otherwise, the government's amendments have consistently dealt with the form, without enhancing the objectives or content of the bill.

¼ (1800)

We are still in the process of analyzing this bill. I see here beside me now Mr. Brian Masse, who has also decided to help improve this legislation. But it is impossible to improve something that is totally unacceptable and is only good for lighting a fire in the fireplace. There is no way of improving something that is basically worthless.

We are working on something that is worthless by proposing amendments and sub-amendments. For 82 hours and 4 minutes now, we have been discussing a bill that nobody wants and that will end up being shelved or completely forgotten because the next Prime Minister has decided not to implement it.

So even if the bill is fully passed, if it goes through all the legislative steps, there is nothing in this bill that would require first nations to implement the content of it. That was one of the points made by the Bar. If the first nations do not want it and do not want to implement this bill, what are you going to do? I have not yet had an answer to that question. Are you going to take the 700,000 aboriginal people in Canada and put them in prison? If so, you are going to have to build more prisons.

Personally, I am convinced that the first nations will not implement this legislation and that we are here discussing a useless bill that will not be implemented and that will be impossible to implement. Unless you want to put 700,000 aboriginal people in jail, you are not going to get anywhere at all.

What are we doing here? What are we doing here, when we look at all the socioeconomic and health statistics about aboriginal nations in Canada? There are incredible problems that have to be turned into challenges. We need to take up challenges to improve the socioeconomic and health status of first nations people to a substantial and significant degree, and here we are discussing this stupid bill that nobody wants and nobody will implement. In any case, the Prime Minister's successor will not be implementing it.

Think about what we have just done. We have just created the necessary conditions to be able to stop wasting our time here considering this bill. It is worthless now, from a practical standpoint because the first nations do not want it, from a legal standpoint because there is nothing that forces them to implement it, and from a political standpoint because the person who will be replacing the outgoing Prime Minister in eight months—and we will be happy to see him leave and stop creating havoc—will not implement this legislation.

We are still discussing amendments and sub-amendments, even though we now have all the necessary conditions for this bill to be shelved. Over the past 10 years, less odious bills have been left to die on the Order Paper. All the conditions are now in place to have this bill dropped. Anyone who wished to oppose a bill like this could not find better conditions than those that have evolved over the past few months. To begin with, there is huge opposition on the part of those it primarily applies to. Second, our consultations and analysis have proven that this bill is not worth the paper it is written on. Third, we see now that it is totally pointless from a political standpoint. All the conditions are there.

I hope that my colleagues will vote in favour of my sub-amendment and Mr. Vellacott's amendment.

¼ (1805)

[English]

The Chair: Mr. Hubbard.

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

The bells are ringing, so I move that we adjourn until 3:15 tomorrow afternoon.

The Chair: I have a motion for adjournment until 3:15 tomorrow afternoon.

(Motion agreed to)

The Chair: We're adjourned.