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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Monday, May 26, 2003

0910

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

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

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

0915

0920

The Chair

Mr. Jeffrey LeBlanc (Legislative Clerk)

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

0925

0930

The Chair

Mr. Charles Hubbard

Mr. Pat Martin

The Chair

0935

Mr. Charles Hubbard

The Chair

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

0940

0945

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

0950

0955

The Chair

Mr. Yvan Loubier

1000

1005

The Chair

Mr. Yvan Loubier

1010

1015

The Chair

Mr. Pat Martin

1020

1025

The Chair

Mr. Yvan Loubier

1030

1035

The Chair

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

The Chair

Mr. Maurice Vellacott

1040

The Chair

Mr. Pat Martin

1045

1050

The Chair

Mr. Yvan Loubier

1055

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

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

Mr. Yvan Loubier

1100

The Chair

Mr. Yvan Loubier

Mr. Jeffrey LeBlanc

Mr. Yvan Loubier

Mr. Jeffrey LeBlanc

Mr. Yvan Loubier

Mr. Jeffrey LeBlanc

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

Mr. Charles Hubbard

The Chair

1105

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

Mr. Warren Johnson

Mr. John Godfrey

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1110

1115

1120

The Chair

Mr. Yvan Loubier

1125

1130

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1135

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1140

The Chair

Mr. Pat Martin

1145

1150

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1200

The Chair

Mr. Yvan Loubier

1205

1210

The Chair

Mr. Pat Martin

1215

1220

The Chair

Mr. John Godfrey

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

Mr. John Godfrey

Mr. Paul Salembier

Mr. Warren Johnson

1225

Mr. John Godfrey

Mr. Warren Johnson

Mr. John Godfrey

Mr. Warren Johnson

The Chair

Mr. Yvan Loubier

1230

1235

1245

The Chair

Mr. Charles Hubbard

1250

Mr. Paul Salembier

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1255

1300

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

Mr. Pat Martin

Mr. Yvan Loubier

1305

1310

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1315

1320

The Chair

Mr. Yvan Loubier

1325

1330

The Chair

Mr. Charles Hubbard

1335

Mr. Paul Salembier

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1340

1345

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

1350

1355

The Chair

Mr. Charles Hubbard

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 076

2nd SESSION

37th PARLIAMENT

EVIDENCE

Monday, May 26, 2003

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

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

We have 32 amendments left, or 33 amendments counting the one we had just started, amendment BQ-42. We did amendment BQ-42, right? So we are on amendment CA-48, on page 212. The Canadian Alliance is not here. He moved it.

I need debate on amendment CA-48. Mr. Martin.

Oh, we had started that one last time. Mr. Vellacott spoke, and we're continuing.

Mr. Martin, you will be next.

Mr. Hubbard.

Mr. Charles Hubbard (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development): I'll pass for now.

The Chair: Mr. Martin.

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

We're here at 9:10 on Monday morning. Our caucus meeting doesn't even start until 9:30 on Monday morning, so I wonder what the haste is that this committee has to be summoned for this meeting, or the urgency. It does beg the question what the urgency is about this particular bill that we're taking extraordinary measures to ram it through as if it were some issue of national emergency, some chronic issue of importance, that the country would grind to a halt if we didn't meet around the clock until midnight and back again at 9 o'clock on Monday morning, when the rest of Parliament is meeting with their caucuses to deal with the many issues facing the country today.

Apparently, ramming this bill down the throats of Indian people is more important than anything else that Parliament does in Ottawa. That's the only conclusion you could come to, the way the government has chosen to deal with this particular bill.

We can think of dozens of things Canadians would like us to deal with in Parliament. Apparently the federal government can think of one, which is ramming these changes down the throats of Indian people in spite of overwhelming opposition from one end of the country to the other, in spite of all the best minds and legal authorities on this subject in the country telling the government to stop, to back off, to slow down, to cease and desist, to just knock it off--that's in laypersons' terms. That's what they're saying: Just knock it off.

The reason I missed a day of these hearings, unfortunately, a week ago Thursday, was because we went to a protest in the minister's own riding, at Kenora, Ontario. We were invited to address a rally there, where 2,000 or 3,000 aboriginal people gathered to voice their opposition to Bill C-7.

It's funny how the government can't find anybody who supports Bill C-7, yet we can find 2,000 people, at a moment's notice, willing to give of their time freely and pay all the expenses of coming down to Kenora, Ontario, to make it abundantly clear that they oppose Bill C-7.

We sat on the stage with the Anglican bishop from the Kenora--Rainy River area. Actually, his jurisdiction goes into northeastern Manitoba and all of northwestern Ontario. We sat on the stage with city councillors from Kenora, non-aboriginal people as well as the bishop, who are all opposed to this bill.

Yes, there were 3,000 people listening to the speeches, but in fact there were over 8,000 people in total in the town of Kenora who came out that day. There were 3,000 people under the tent. We had a tent that was bigger than the Parliament buildings. People sat underneath and listened to these speeches--elders, children, women. There was dancing. There were drums. There were people voicing their concern that the federal government is once again interfering and tinkering with their lives, and they're opposed to it. They resent it, and they in no uncertain terms reject it.

When these hearings were being held, the consultations, and even when this committee toured the country, which was a genuine consultation.... I'm critical of the first consultation. I don't believe it met any definitions of consultation. But when this committee toured the country as the House of Commons standing committee, that was true consultation, and in that consultation, 191 presenters were opposed, and only 10 presenters were in favour. Of those 10, one was the minister himself.

So in spite of overwhelming opposition across the country from law professors, academics, constitutional experts, ministers, the leaders, the national leaders of virtually every mainstream church in the country, in spite of all of them telling the government to stop it, we're meeting through the night; we're meeting at 9 o'clock on Monday morning, which for Parliament Hill is unusual, because usually people are preparing for that day in the House of Commons, not meeting as a standing committee. Surely we're the only committee in the country meeting right now.

Even on the national sex offenders registry, which is an issue of vital, paramount national importance, it is not deemed important enough to meet at 9 o'clock on Monday morning. If there were any sense of priorities in this government, there would be a specially called, urgent meeting of the justice committee to look at the implementation of a national sex offenders registry. That could be justified as an issue of national importance and national concern, and seemingly a consensus across the provinces and the country that this is something that Canadians want. That would justify sitting up all night and hearing debate on amendments. That would justify meeting at 9 o'clock on Monday morning instead of waiting until the normal, conventional time, so you could prepare your remarks, and so on, and get ready for the day in the House of Commons.

¿ (0915)

This in no way meets the standards of national urgency. First of all, it's the height of colonial, paternalistic arrogance to even assume that a bunch of white guys in suits should sit around this table and make changes pertaining to the lives of first nations people without their input, participation, or consent. It is without any of those three. There is no input, no participation, no consent, and yet the government is bound and determined to go ahead.

I spoke with a cabinet minister last night who was asking me what was going on with the committee. He asked me why we are so determined about this. He's a cabinet minister with other interesting things in his department. He's actually waiting to have a bill brought into the House. Things are tied up in a bottleneck because of this nonsense, frankly.

My message to this committee is that we should stand down this committee. We should cease the study of the clause-by-clause analysis of this bill. We should back off this bill. That's really what we should be doing, if for no other reason than for the fact that the government won't release the documents we've asked for, time and again, regarding whether or not this bill infringes upon constitutionally recognized aboriginal and treaty rights. We should all be back in our offices right now getting ready for a day in the House of Commons.

The government has consistently refused to release information, not only to us but to the Indigenous Bar Association. They've asked for it under freedom of information for 18 months.

We know the documents and legal opinions exist, but we also have good reason to believe that they say that this bill does infringe upon constitutionally recognized aboriginal treaty rights. Otherwise, they would show us, because we have legal opinions to the contrary. We have legal opinions that say it does infringe upon those rights. If they have any opinions to the contrary, why won't they table them with this committee, the very people who are charged with the responsibility of drafting legislation about first nations? Why aren't we privy to that information?

Any democratically minded people would simply refuse to go any further, such as the public accounts, or the government operations committee, under the stewardship of a different chairman. There were actually Liberal members in that committee who refused to go any further until the government tabled the documents. They suspended their treatment of Bill C-25, the public service bill, for the exact same reasons that we should be suspending the debate on this particular bill. It's fundamentally wrong.

Even if you don't accept my arguments, even if you don't accept anything I've said, at the very least, we could agree that we should have the information the government has in the development of this bill, as to what the impact of this bill is on current or future court cases, and what the impact of this bill is on the constitutionally recognized section 35 articles of the Constitution, the constitutionally recognized aboriginal and treaty rights. Without that information, we shouldn't even be debating the amendments regarding this Canadian Alliance Access to Information Act.

Speaking to the Canadian Alliance amendment CA-48, it's incomplete, in my opinion, if it doesn't deal with the documentation produced by the council of the band. It's incomplete, frankly, Mr. Chair, if it doesn't apply to documents that may be commissioned by the council of the band.

I would like to move a subamendment that says this Access to Information Act applies in respect to all documents produced by or commissioned by the council of a band. I'd like to table that as a subamendment for consideration.

I haven't referred to my notes yet. If we had any Alliance members here, we could introduce the amendments. The official opposition isn't being an opposition.

¿ (0920)

The Chair: Mr. Martin, your subamendment.

Mr. Jeffrey LeBlanc (Legislative Clerk): The amendment is to add, after the words “produced by”, the words “or commissioned by”. The whole thing would read “in respect of all documents produced by or commissioned by the council of a band”.

The Chair: Mr. Martin.

Mr. Charles Hubbard: I have a point of order, Mr. Chair. It's my opinion that the two words are synonymous, “produced by” and “commissioned by”. Could we have a legal opinion on that?

The Chair: I did seek one. I felt that it may not be acceptable. Can we give the right to access a document that doesn't belong to the band, but is used by the band?

The consensus is that the amendment is acceptable. We'll go through with it.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I think it should be easy to see what I'm seeking to achieve by adding the words “or commissioned by”. It's exactly what I explained that the government has been doing in their withholding of information regarding our applications for information under the Access to Information Act and our demands for information at this committee.

In the way we phrased our requests and demands, we want to see all the documentation produced by the government in terms of legal opinions as to whether this infringes upon the Constitution, or whether it has an impact on current or future court cases, or may have been commissioned by the government to that effect.

In other words, they may have gone to outside sources and hired people to produce those legal opinions, so we want documentation that's either produced internally or commissioned by the government externally. That's why we felt the qualifying language was useful.

But frankly, I'm going to be voting against this particular amendment, even if my subamendment passes. The amendment itself, the CA-48 amendment, offends me in a number of respects. I'm not as offended by it as I am by the fact that the Canadian Alliance, the official opposition, doesn't even bother to show up for important hearings like these.

There are details or aspects regarding first nations and access to information and a history of problems in relation to access to information as it pertains to first nations—the difficulty I cited that the Indigenous Bar Association has been having in getting access to information from the government. Now, remember, this is not an independent organization that's just interested in aboriginal issues. This is the legal counsel that represents first nations, and they're speaking as an association now.

I listened to them at 2 a.m. last night. They replayed the whole self-governance conference that was held at the Chateau Laurier here on April 25 in Ottawa. We couldn't be there because we were working around the clock at this committee, so we couldn't attend perhaps the most important conference on self-governance convened in recent memory. But some of us could view it on CPAC in its replay last night--well, this morning actually; it began at about 11:30 and went on and on through the evening.

The Indigenous Bar Association told the committee when they presented before this committee on January 4, 2002--and they made the same point at their conference they had on April 25, 2002--that they had made requests to the Department of Indian Affairs Access to Information and Privacy Office for the cases referred to by the minister. When the minister was talking about the 200 outstanding court cases in his speeches leading up to the presentation of this bill, they wanted to know the impact this bill would have on the relationship between the court cases and this legislation, and they wanted an indication of how the proposed legislation would address the matters subject to the litigation. They go on to say:

“The Access to Information and Privacy Office within the Department was unable to help. A formal complaint was subsequently filed with the Office of the Information Commissioner. The initial request was made well over a year ago,”--and this was on January 4, 2002, and it was made a year before that--“but we did not receive any of the requested information until the third week of February 2003. This was after the INAC consultation process was concluded, and after Bill C-7 had been introduced. This failure of INAC to provide information in a timely manner is quite troublesome.”

Well, they're being a lot more diplomatic than I would be. They're being very gentle in their language. They say that's troublesome. I say that's ridiculous, that's absurd, and the gall, the unmitigated gall of the government to be imposing access-to-information requirements on first nations when they themselves are the masters of obfuscation. They wrote the book on hiding information and being secretive and being anything but transparent.

“In addition,” they go on to say, “the Indigenous Bar Association sought information from the Department respecting the potential impact of Bill C-7 on both the inherent right to self-government and the Crown-Indian fiduciary relationship.”

A Library of Parliament research paper states that the minister has clearly stated that the amendments must not infringe existing aboriginal treaty rights and must not alter the fiduciary relationship. The minister is quoted on the record as saying that.

¿ (0925)

On August 14, 2002, the IBA sent a letter to the Access of Information and Privacy Office in Indian Affairs for any information in either the Department of Indian Affairs or the Department of Justice that either supports or contradicts these statements to the minister. In other words, if that's the directive of the minister, comfort us and show us and give us some satisfaction that nothing in these bills does in fact, as the minister pointed out, infringe upon existing aboriginal treaty rights or alter the fiduciary relationship.

Well, subsequently, the Department of Indian Affairs and the Department of Justice refused to disclose any legal opinions, citing lawyer-client privilege. Now, we know, and I've cited before in Supreme Court rulings, that privilege doesn't count when there's a trust relationship in place. And this fiduciary relationship is a trust relationship. With the obligation of the minister to take the best interests of Indians into account, as his primary concern has to be--that's the fiduciary obligation--then the client-lawyer privilege argument doesn't hold.

And they go on to say:

To date, we have received absolutely no information from the Department related to these assumptions, notwithstanding the efforts of our membership and the efforts of the Office of the Information Commissioner. The information exists, but we cannot have access to it. In a letter dated October 16, 2002 from the Access to Information and Privacy Office within INAC we were advised that the information requested would not be released because of requirements for “Confidences of the Queen's Privy Council for Canada”.

That's the same answer as when I asked these questions around this table. When I asked the legal counsel, who we know have done legal opinions on the impact of this legislation, they refused to answer me. Sorry, they said, we can't tell you.

I'm a member of Parliament, for crying out loud. I'm a member of Parliament who sits on the Standing Committee of Aboriginal Affairs, Northern Development and Natural Resources, and they won't tell me so that we can work on this bill with our eyes open, knowing the impact of this legislation.

Can you imagine? It's as if we've gone into some bizarre world here. Everything's upside down and topsy-turvy. This is absurd. If the public only knew this is the way Parliament operates.... It isn't the way Parliament operates; it's the way this committee operates, Mr. Chairman, in a cloud of obfuscation, deliberately trying to make sure that nobody knows what the real impact of this legislation's going to be on fiduciary obligations, on current or future court cases, on the constitutionally recognized aboriginal treaty rights.

Well, our legal opinions say that it has a deleterious effect on all of those things, that in fact it's government one, Indians zero in this scenario. And that's why we're doing this.

It's shocking to me that the minister would go forward with this, frankly, without even the consultation of his own senior bureaucrats. I don't think he even has the support of his own senior bureaucrats on this, Mr. Chairman. I think he was assigned this duty directly by the PMO, by the Prime Minister himself, regardless of what INAC actually knew to be the right things to do. Why else would he not meet with his own deputy minister for the first three months of his tenure as the minister? It's absurd.

The IBA goes on to say, and I quote:

As a fiduciary, Canada has an obligation to fully disclose information it has respecting the impact the legislation might have on section 35 rights as well as the impact the legislation will have on the Crown-Indian fiduciary relationship. To date, there has been a failure to disclose, and in our view, the Crown's honour is at risk.

Well, I agree. It's getting to the point where it's an issue of the honour of the Crown being at stake here, because this committee is not acting in an honourable way in refusing to disclose, in acting in secrecy and in privacy, and ironically, in debating aspects about access to information that will now be within the rules and codes of governance, as it pertains to first nations.

¿ (0930)

The Chair: Thank you, Mr. Martin.

Mr. Hubbard.

Mr. Charles Hubbard: Thank you, Mr. Chair. It's quite evident we're continuing with the same process we were involved with previously. I thought a week away from the House might improve some people's attitudes in terms of Bill C-7.

For the record, Mr. Chair, I believe we've spent over 100 hours. It's one of the longest attempts at trying to provide good legislation that any committee has done in recent years.

The honourable member brings up a lot of issues, and I don't have to remind the committee, but just because he has gone on with the same rigmarole as before, I'd like to point out that the bill we're studying was generated more than two years ago. The chiefs of this country, of the first nations, were offered an opportunity to participate in the drafting and the preparation of the bill, which, after due thought, they decided not to become involved with. It was a process of more than a year in terms of consultations across Canada, with hundreds of meetings held in all areas of the country. As a result, Bill C-7 was introduced in the House last June, in fact a year ago.

After the throne speech, it was reintroduced in the same format with the same words. So all members and all parties and all peoples in this country had ample opportunity, a year, to study the details of Bill C-7.

On top of that, as a committee, we've travelled the country. We've heard hundreds of witnesses. We've certainly seen and heard witnesses who were speaking against the bill, but we did see and hear a good number of witnesses who were for the bill, and others who presented concepts and ideas that would improve the bill, which is the process we parliamentarians are trying to do.

Having received the bill after first reading, we have an opportunity to go back at report stage and to the House to consider further the amendments we as a committee will bring back. According to my calculations, we have some 37 amendments we've made already, and we've certainly made good efforts. We are progressing through the various clauses.

The most disappointing fact is that the two members opposite, like some people in this country, talk about all sorts of issues and try to bring to this table matters that really are not of concern to us as parliamentarians. They seem to want to drag on and prevent the return of this bill to the House.

Words were used to criticize our witnesses, who are here as our guests, and I wonder why they stay when they have such people as the two members opposite criticizing their intent and their purpose, trying to read into the record things that have not happened. It certainly is not acceptable in terms of being members of Parliament to--

Mr. Pat Martin: I have a point of order.

Mr. Chairman, the parliamentary secretary.... We don't know what he's talking about, but he seems to be making accusations--

The Chair: That's not a point of order. He did not name anybody. If the hat fits, we wear it.

Mr. Hubbard.

¿ (0935)

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

I didn't mention Winnipeg Centre. I'm not sure Winnipeg Centre is the background for the Fisher-Price organization, but it's almost like one of these toys that you wind up and it goes for ten minutes and shuts off. It's the same whine, the same music, and the same song. It really doesn't speak to the amendment at hand.

We watch this, and it's certainly frustrating, Mr. Chair, to see members who seem to want to represent certain people in this country, but they're not really representing. It's like the old story about the forest and the trees. They're so busy counting a few trees they miss a great forest of first nations peoples--nearly a million first nations peoples across this country who will benefit from the bill. They see a few trees they want to talk about.

With that, Mr. Chair, I hope we can progress with some degree of--

A voice: Thousands upon thousands of them.

A voice: Mr. Hubbard is making a lot of sense. I'm sure the crowd wants to hear him.

Mr. Charles Hubbard: Mr. Chair, we want to progress. We want to return to the House with the best possible bill we are able to produce as a committee. And with it, despite the terrible diatribe we have to listen to, not talking to the amendments in most cases, trying to make subamendments merely to use up time....

The honourable member talked about starting at 9 o'clock on a Monday morning. It's not by my desire that we'd start; it's because of the time the honourable member has taken.

I'm sure the record would indicate that of the 100 hours we've spent on this committee, more than 80 of them were taken up by the two members opposite. We certainly don't want to waste the time of this committee or the time of Parliament. We want to make sure we work on the subject and produce the best possible bill that will be returned at report stage.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Hubbard.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Thank you, Mr. Chairman.

I'm going to stick to the amendment because the Parliamentary Secretary is making a mistake. I thought that, after a week like that, he would have left his moods at home. I expected that at least, but no, we're repeating the same pattern again. The Parliamentary Secretary has a knack for always using the slingshot in reverse and shooting himself.

When he says we're here dealing with questions that interest no one, that's his opinion. It's a fairly considerable and even coarse value judgment, particularly when you look at the concerns addressed in the amendment, which pertain to the Access to Information Act. There's also the Information Review Task Force, which has published a very thorough study, in its Report 21, on the way to handle the Access to Information Act in relation to Aboriginal peoples.

There's something very particular between the various provinces, British Columbia among others, and the governments of the First Nations, those currently in power. There are very well defined arrangements as a result of which authorities are very selective when it comes to disclosing information because some of that information may jeopardize the self-government negotiations between the First Nations and the governments. There is currently no distinction in the federal Access to Information Act respecting Aboriginal peoples, and if that's a question that doesn't interest the Parliamentary Secretary, there are thousands of people across Canada who are interested in everything related to access to information and the proper operation of democracy.

The amendment proposed by Mr. Vellacott enables us to address this important question, and the subamendment introduced by my colleague Pat Martin as well. How will the federal government address the question of the application of the Access to Information Act within this bill, thus to have an amendment such as the one proposed by Mr. Vellacott, whereas we have not resolved this question of the application of the Access to Information Act with respect to confidential information which could be used in the negotiations between the federal government and the First Nations, particularly those on self-government?

I would invite you to read, in your spare time if you still have any, sir, Report 21 of the Information Review Task Force, which addresses the concerns of Aboriginal peoples regarding the Access to Information Act. Paragraph 5.2 contains something that should draw our attention when we consider this amendment, or even Mr. Martin's subamendment. I quote:

Both the British Columbia and Nova Scotia legislation provide a discretionary exemption for information that may be injurious to the conduct of relations between the Province and the Aboriginal government. The British Columbia legislation makes explicit reference to an exemption for information the release of which would harm the conduct of negotiations relating to Aboriginal self-government or treaties.

So this concern not to disclose all the information to anyone, without distinction, is already addressed in the Task Force's recommendation on the Access to Information Act and relations between the federal government and Aboriginal peoples. It also states:

The negotiation of treaties and other agreements with Aboriginal peoples would seem to be as deserving of protection as the conduct of federal-provincial affairs.

There exists such legislation signed between the federal government and the provincial governments protecting certain information which could, for example, interfere in the proper conduct of negotiations on specific matters, taxation or any intergovernmental business conducted between the provinces and the federal government. But, I repeat, there's no distinction in the application of the Access to Information Act as to relations between the federal government and Aboriginal peoples. This is becoming important because, if the proper conduct of federal-provincial business and relations requires that there be such an exemption in disclosure of information, there should be the same exemption for information provided by band councils which could, as it were, undermine the normal process of negotiating self-government.

¿ (0940)

The Task Force was very studious in its Report 21 on this question, and it states that one of the possible options for avoiding this kind of situation would be to amend section 14 of the Access to Information Act so as to protect information that could reasonably be expected to be injurious to federal relations with the Aboriginal governments.

So we could have that amendment outside Bill C-7. But since we must examine Bill C-7, must not deviate from it and cannot make a motion here to amend section 14 of the Access to Information Act, the only way to prevent information from being disclosed upon request by any person, by band councils, information which jeopardizes the process of negotiating self-government with the federal government, would be expedite, in each of the bands, in addition to self-government, passage of legislation on access to information by band councils that wish it and that want a certain restriction on the disclosure of information.

The other possibility that could supplement the first, is to make an exception directly in the heart of the bill. If we must adopt a reference to the Access to Information Act, we could make an exception which could highlight the fact that we must have a certain discretion in the disclosure of that information, so as not to jeopardize either the application of treaties or self-government negotiations.

There is a whole other question as well, which we may perhaps not be able to address in the context of this bill but which requires a debate on access to information, is access to information regarding sacred sites. In Australia, legislation has been passed under which information that could jeopardize the entire spiritual system of the First Nations there are exempted with regard to the disclosure of information.

But to come back to Mr. Martin's subamendment, I agree with him, I agree on his subamendment, but I don't agree on the amendment as such put forward by Mr. Vellacott because it does not draw these fundamental distinctions between information that must be disclosed and information that must not be disclosed because it jeopardizes the implementation of treaties or the proper conduct of negotiations on self-government.

So I'm going to vote in favour of Mr. Martin's subamendment because it's a clarification, and we're not dealing in semantics by saying that, when we talk about producing and commissioning, they aren't synonyms. When we produce, that means that we make our own production, a self-production, and when we commission, we commission from a third party, we commission a study which we subsequently adopt. The distinction is an important one. However, I won't be able to vote in favour of the general amendment of the Canadian Alliance.

¿ (0945)

The Chair: Thank you, Mr. Loubier.

[English]

Mr. Martin, let us have your closing remarks.

Mr. Pat Martin: Mr. Chair, I wonder if some of the others might be interested in speaking to my subamendment. I see Mr. Vellacott has just arrived.

The Chair: You have the floor for your closing remarks, so they're too late.

Mr. Pat Martin: That's a shame. I think this is one of the problems of this meeting starting at 9 a.m., when the rest of the world is in caucus meetings getting ready for the day's work in Parliament. The national urgency associated with this bill requires that we begin at 9 a.m., and even my fellow opposition colleagues have a difficult time attending this meeting at 9 o'clock on a Monday morning, when all the rest of the world is engaged with other serious business.

The reason I moved a subamendment to Mr. Vellacott's original CA-48 was simply to clarify and to help accentuate the point that access to information, while we recognize it is a vitally critical aspect of any good governance, involves not just work produced by the council of a band or any government that may be of interest to a third party; it's access to work “produced by or commissioned by”. For instance, if they went outside to have a study done or information developed, and that information then becomes the property of the government or the band in question, it should form the body of information that others should have access to—others who are eligible to have that information, at least.

I wanted to make that point because it's exactly the argument we're having with the government today regarding their releasing the information pertinent to this bill—and regarding their obstinacy, their stubbornness, their absolute refusal. We know the parliamentary secretary has this information; he knows the impact this bill is having on constitutional rights, on future and present court cases, on the fiduciary obligations. We know he has information, yet he is plowing ahead with this bill, which is a shameful, shameful thing. But he won't share it with other members of the committee so that we can make good laws.

Every day we start the House of Commons with a little prayer that we should make good laws. It's a moment of silence, a moment of meditation we all take: “Give us the tools and the strength we need to make good laws.” Well, this government denies those very tools.

In this case, Mr. Chairman, I'm arguing about this access to information business, and I quote from the Access to Information Review Task Force. I think any time we're dealing with access to information issues, we should look at the most recent authorities on this subject. This was generated recently as an internal document to give guidance to the government regarding requests for access to information. They have a special category called Report 21 of the Access to Information Review Task Force: “Selected Concerns of Aboriginal People”. Under section 5 of that report, they have a category called “Disclosure to Third Parties of Information Received From, or of Special Interest to, Aboriginal Peoples”. What could be more appropriate than to draw some information from that recent study?

This study examines three areas of concern that involve the disclosure of information to third parties:

“First, there is a concern that aboriginal peoples are generally not recognized as governments under the Act. This concern has two aspects. First, there is no exemption from disclosure for information received in confidence from aboriginal peoples. Second, there is no specific protection of information the release of which may harm federal relations with aboriginal peoples, including treaty-making.” So they're certainly concerned with the effect information issues have on that data. The final area of concern they cite by way of introduction is the concern involving “the release of information of cultural significance or which has traditionally been disclosed on only a limited basis”.

I don't think we've really addressed any of those three concerns in this clause put forward by Mr. Vellacott—it's actually signed by Mr. Chatters. We don't even specify in here who may get access to this information. It would be interesting to hear the Alliance's answer to that. Did they contemplate this being available to any third party, or just to band members, or to whom? What about the concern that “release of information of cultural significance or which has been traditionally disclosed only on a limited basis” in the past might be interfering with traditional or cultural mores in the community?

¿ (0950)

This task force goes on to say: “Some type of statutory reform will be necessary if these concerns are to be addressed. As noted above, the Act provides citizens with a right of access subject only to specified exemptions. If aboriginal people have a broader right of access, this may be accommodated through an alternative regime. However, limiting third parties' rights to access can only be done in one of three ways. First, the exemptions listed under the Act can be amended.”

They should include members of Parliament in the exemptions, because it seems that members of Parliament are exempt from receiving information to do with aboriginal people.

“Second, an alternative statutory regime limiting access to information related to aboriginal peoples could be established and included in Schedule II of the Act.” Well, that's an idea in the Access to Information Act.

“Finally, a separate statutory regime could be developed including a provision to ensure that it takes precedent over the scheme set out in the Act”—an alternative, separate statutory regime.

Really, these remedies are dealing with the Access to Information Act as it applies to aboriginal people. The first concern is that the federal government generally doesn't recognize first nations as governments under the act. The thing I raise, and I wish others were here when I raise it, is that there's a further issue here: that you can't use lawyer-client privilege as an excuse not to share information when there's a trustee relationship in place.

In other words, the minister is the trustee or has the fiduciary obligation over Indian people. Indian people are trying to get legal opinions and information from that minister, and the lawyers are citing privilege, that they can't release that information to Indians or their representatives or members of Parliament because that information is privileged. Well, that is a bogus argument. There have been recent court rulings that say privilege doesn't apply when it's a trust relationship you're dealing with. That minister has an obligation to act only in the best interests of Indians, and Indians deserve to know what the legal opinions are surrounding this information.

You can't use privilege to hide behind. Even the parliamentary secretary is hiding behind a big wall of client-lawyer privilege. It's an excuse to not share the information he has. That's what makes him smirk so often--that he has information we don't have. A lot of people think it's gas. It's not gas; it's that he feels lucky enough that he has information we should have, that all of us should have.

I'm glad the member from the Alliance raised the whole access-to-information issue, because if anybody deserves access to the information the government has, it's the members of Parliament who sit around this table. It's bad enough that we're crafting legislation about Indians without any Indians being here or having any access to participation in this process. But it's even more offensive that we're all being denied equal access to the information the government has about what the impact of this bill is on constitutionally protected aboriginal and treaty rights or about the impact it has on current or future court cases.

If the whole purpose of this bill is some Trojan horse—the government says it's all about accountability and transparency, and really it's all about getting out from underneath their fiduciary obligations, or finding some relief for 200-and-some-odd court cases that are outstanding—well, what is that? What are they really trying to achieve, then? We deserve to know that.

That's when the minister kept making references saying “We have to change the law, because we have 200 court cases outstanding.” He said that in three or four public settings. It was logical to ask the question, “What is it about this bill that you're trying to achieve regarding those 200 court cases?”

“That information is privileged,” they say. “We can't tell you that. It would be against the best interests of the Crown if we told you that.” What a bunch of absolute nonsense.

¿ (0955)

Here we are, members of Parliament. You might want to make this an in camera meeting; you might want to close that door and turn off the mikes. But if anybody has a right to that information, it's the members of Parliament around this table and the Indians who this bill affects.

The Chair: Thank you, Mr. Martin.

We'll have a recorded vote on subamendment 1 to CA-48 on page 212.

(Subamendment negatived: nays 9; yeas 3)

The Chair: On the amendment, Monsieur Loubier has the floor.

[Translation]

Mr. Yvan Loubier: Thank you, Mr. Chairman. I'm pleased to speak to this amendment because it raises the entire question of the Access to Information Act and the parameters that must attend that access to information with respect to information disclosed by bands.

First, I'll say that I do not accept the wording as presented, because it is still motivated by the spirit underlying this bill, that is to say to always want to subject the First Nations to federal statutes rather than afford them the opportunity to pass their own laws, as they are permitted by their right of self-government and the many treaties that have been recognized successively by all federal governments since the Charter of Rights and Freedoms was passed and the 1982 Constitution was unilaterally repatriated.

The Supreme Court has also held in their favour, needless to say. All the judgments over the past 20 years have been in favour of the First Nations with regard to the exercise of their right to self-determination, which precisely gives them the opportunity to pass their own laws and their own regulations.

The question of access to information is a very, very delicate question. There is a difference of treatment in Canada, depending whether you are in British Columbia, Ontario or the Maritimes. It's also different where the federal government negotiates treaties or the exercise of the First Nations' right of self-government because the government has slightly ambiguous relations with them. I had the opportunity to explain that succinctly a little earlier.

British Columbia has a statute that governs the disclosure of information on First Nations and the disclosure of information by the provincial government to First Nations where they request it, so as not to undermine talks where they negotiate on land or the establishment of their own government, for example. Nova Scotia also has a statute governing its relations with the First Nations, particularly with regard to the administration of the Access to Information Act. It provides that the First Nations and the provincial government may restrict access to information where negotiations on self-government or compliance with treaties are under way.

There is a similar system of exemptions restricting the disclosure of information which could, for example, jeopardize negotiations between the federal government and the provinces. Whether on taxation or the new power over specific areas of intervention, there are exemptions which provide, in the context of federal-provincial relations, for an exemption to protect the conduct of certain negotiations. It's a very delicate question.

In addition, you also have to consider the question of sacred sites and information respecting sacred sites. Report 21 of the Information Review Task Force was very clear on the subject. We lack respect for those sacred sites if we subject all information on sacred sites to the general Access to Information Act, as Mr. Vellacott proposes. Moreover, they were very sensitive to this issue in Australia. In their 1998 report, the members of the Australian Access to Information Committee proposed an act, which was passed and which provides for a discretionary exemption for information traditionally considered sacred or subject to disclosure requirements.

À (1000)

That act is said to be in keeping with the honour of the Crown. So if we are to be in keeping with the honour of the Crown, we must absolutely provide, in the context of our analysis of Bill C-7 and outside as well when we talk about the Access to Information Act, for a regime of exceptions as may be found in Australia, or in federal-provincial relations or in the legislation of British Columbia and Nova Scotia in their relations with Aboriginal peoples.

So there are two very important aspects: first, take into account the fact that we must not jeopardize, by disclosing information, the finalization of treaties or the negotiation of self-government; second, that the entire question of sacred sites must be considered in the same way as in Australia.

But with respect to our bill as such and to Mr. Vellacott's amendment, that is to say the Canadian Alliance amendment, a great deal of precaution, if you will, is lacking in this amendment. I believe that one of the best ways to prevent, with this kind of proposal, unfortunate situations which could even endanger negotiations between the federal government and the First Nations and which could even compromise the negotiations... I think it would be laudable to say that, in general, the Access to Information Act can apply to documents produced or commissioned by a band council, but there must be an exemption for bands which have quickly adopted an access to information regime, an act, and also to ensure that there are no special cases which jeopardize self-government negotiations.

So I'm going to move a subamendment to Mr. Vellacott's amendment; we would say at the very end:

except where a band has passed its own Access to Information Act or in a special case where that could be injurious to federal-Aboriginal affairs.

That would be my amendment to avoid finding ourselves in an unfortunate situation.

À (1005)

[English]

The Chair: On your subamendment, Monsieur Loubier.

[Translation]

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

This subamendment to the Canadian Alliance amendment is precisely designed to prevent situations in which negotiations between the federal government, the governments of the provinces and Aboriginal governments might be jeopardized as a result of excessive disclosure of information. And this isn't a marginal regime of exemptions in the general regime we are currently familiar with.

As I mentioned to you, in many federal-provincial negotiations, there is this regime of exemptions. Governments of the provinces and the federal government can places themselves under the protection of this regime of exemptions so as not to disclose information which could compromise the proper conduct of negotiations on a number of matters of public interest. It's the same thing, as can be seen in Report 21 of the Information Review Task Force.

There is also this kind of extraordinary legislation, although there is little of it, which presides over the negotiations between provincial governments and Aboriginal governments, which is similar to the federal-provincial regime, but which applies to the First Nations of, for example, British Columbia, where the government has adopted that type of regime of exemptions. That of Nova Scotia has also done the same, since extensive negotiations are under way with the First Nations to determine how the inherent right of self-determination will be exercised.

Mr. Chairman, this subamendment could correct the, may I say, lack of precaution in the amendment introduced by the Alliance, which proposes--no doubt entirely out of good will--in an entirely liberal manner, in the literal sense of the term, that the Access to Information Act be applied without regard to the quite concrete possibility that negotiations may be undermined or that information on sacred sites may be disclosed, which, like what happened in Australia, could lead to utterly unacceptable situations unworthy of a Crown that must stay in keeping with its honour, as is said in legislative jargon.

Once again, this is an amendment, which like the other amendments we have introduced and most of which have been negatived--I would point out to you that over the 110 hours of debate, not a lot of opposition amendments have been agreed to. A moment ago, I heard the Parliamentary Secretary say that out of those 110 hours, probably 80 had been taken up by the opposition. I would simply respond this way in the heat of this discussion: you had the choice of whether or not to use those hours. You yourself made a motion to control, to limit the opposition to 10 minutes in introducing amendments. You had the opportunity and the ideas and a kind of sense of the analysis of our motions which I'm convinced were made to improve the bill and not to impede the proceedings, you would have seen after the fact that you had used part of the 80 hours allocated to you under your own gag. If you didn't do so, that's another problem.

Let's come back to the bill as such. Others have said this before me, but we've had consultations and we especially received briefs that were submitted on the various clauses of this bill. Contrary to what the parliamentary secretary said a moment ago, out of respect for the witnesses who appeared before us and for those who submitted briefs to us, we should take this bill, set it aside and start over because, of the 201 witnesses and briefs, 191 were opposed to this bill. If we remove Minister Robert Nault, there remain nine. And if you take out all the agencies and organizations that had somewhat dubious interests with respect to the federal government, not many were in favour of this bill. So out of respect for the people who denounced this bill, clause by clause or comprehensively, if the members on the other side of the House were doing their work properly, they would have understood a long time ago, as we did, that this bill must be set aside and that we must start the work over. It's not on this basis that people want us to start new relations with the First Nations.

À (1010)

It's all quite curious. Scarcely two weeks ago, before we adjourned, we contacted the minister's political office to request a copy of the report of the Royal Commission on Aboriginal Peoples, the Erasmus-Dussault report. The first member of the office who answered us asked us what the Erasmus-Dussault report was. That's quite odd. The 1997 report of the Royal Commission on Aboriginal Peoples is something major in relations between the federal government and the First Nations. And the second member who answered us told us that he wasn't familiar with it either, but that he would do a search. So they aren't familiar with the Erasmus-Dussault report at the minister's office. And they don't know it by its other name, which is the Royal Commission on Aboriginal Peoples. But what minister, what minister's office are we dealing with?

This is a major matter in federal relations with the Aboriginal people; the 1997 report of the Royal Commission on Aboriginal Peoples which was the subject of a consensus among Aboriginal peoples and among federal representatives at the time, and the inner circle of the Minister of Indian Affairs is still wondering what the Erasmus-Dussault report is, what the report of the Royal Commission on Aboriginal Peoples is. We're not out of the woods yet, if those people who advise Minister Robert Nault on the conduct of affairs in relations between the federal government and Aboriginal peoples are not even aware of the greatest Royal Commission of Inquiry that mobilized representatives of the Aboriginal peoples, federal representatives, which made it possible for us at last to conduct an objective analysis of the current situation and the direction that our relations with the Aboriginal peoples should take. If those top political advisors are not even aware of the existence of the Erasmus-Dussault report, the report of the Royal Commission on Aboriginal Peoples, we're not out of the woods yet.

That means they know even less about the 1983 report of the Special Committee on Indian Self-Government, and that's serious, because, starting in 1982, with the unilateral repatriation of the Constitution, together with the Canadian Charter of Rights and Freedoms which expressly recognizes the rights of the First Nations, an entire movement began, a lot of hopes were set up.

Among other things, an important committee was constituted of equal numbers of Aboriginal and non-Aboriginal representatives which produced this fabulous report on Indian self-government entitled Indian Self-Government in Canada: Report of the Special Committee, which set matters straight so that we could push further and which led to Erasmus-Dussault a few years later, to the Royal Commission on Aboriginal Peoples. The first parties concerned, the first ones concerned in that debate, that is to say the inner circle of the Minister of Indian and Northern Affairs Canada in Ottawa, does not even know of the existence of those reports or of the most recent one, from 1997. The report of the Royal Commission on Aboriginal Peoples wasn't tabled 130 years ago, but five years ago. They don't know of that report's existence. It's incredible!

They say they have ideas to advance relations with the Aboriginal peoples. From the start of the analysis of our amendments, we have constantly referred to Erasmus-Dussault and to the Royal Commission on Aboriginal Peoples, and we sense that no one is familiar with that report among the main political advisors to the Office of the Minister of Indian and Northern Affairs Canada. That's quite something! It's quite surprising.

À (1015)

The fact that the Prime Minister's inner circle is not aware of that Royal Commission report shows a flagrant lack of professionalism. It's also a flagrant lack of respect for Aboriginal peoples and for the work that was done over years by that Royal Commission on Aboriginal Peoples. They're also depriving themselves of an understanding of an incredible analysis.

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, on the subamendment, I can see what Mr. Loubier's point is on why he felt it was necessary to move a subamendment.

If we're going to seriously entertain the idea of an access-to-information aspect of Bill C-7 by adding, as the Canadian Alliance would have us add with proposed section 35.1, language that “the Access to Information Act applies in respect of all documents produced by the council of a band”, then I can see why Mr. Loubier would want to qualify it.

If we are going to make everything “produced by the band”, and I even suggested “or commissioned by”, any government should be subject to access to information. If we are going to include that reference in this particular bill, then language similar to what Mr. Loubier put forward would be absolutely essential.

I can't see us supporting Mr. Vellacott's amendment CA-48 without first accepting the subamendment put forward by the Canadian Alliance. I think there are a number of qualifiers, had we more time to deal with this issue in the fullness it deserves. If we had a reasonable timeframe within which to deal with these things, we would come up with a number of comments about how the Access to Information Act should apply to first nations.

There has been a body of research done on this very subject, Mr. Chairman, because of the unique situation the federal government finds itself in, in relation to first nations. We have to take into account the fact that, frankly, aboriginal peoples are generally not recognized as governments under this particular regime. This particular federal government does not accept aboriginal first nations as governments in a number of contexts.

In fact, the only place that first nations are recognized as nations in this country is in the lacrosse field when they're playing lacrosse. The Iroquois nation plays Canada. The Iroquois nation plays Scotland. In fact, last weekend, the Iroquois nation beat Scotland in a lacrosse tournament. It was kind of cool that this nation beat that nation. Maybe it was a good education for Canadians to see in that context, to get their minds around the subject. Then later the Iroquois played Canada. The Government of Canada played the nation of the Iroquois. They won, in fact. They probably had some ringers flown in, I don't know.

The fact is, Mr. Chairman, that Mr. Loubier raises important issues that would add to the quality.

I understand why Mr. Vellacott's party, the Alliance, is asking for these documents to be subject to the Access to Information Act. It's almost an automatic request that opposition parties make because we do share the frustration of trying to get access to information in a number of contexts from this federal government.

This is the most secretive federal government in the history of Canada. This federal government does not share information in spite of an Access to Information Act that, on first reading, would seem fairly binding. They refuse to share information. They're hiding things. As I said, the directions are really coming from a small group of unelected officials in the Prime Minister's Office who are dictating what is done and when it is done.

I don't even blame Liberal caucus members. I don't even blame Liberal cabinet members, because none of them have any real input into what's going on. This is being dictated by you know who, right from the top. It's the 1969 white paper revisited.

What we have here, Mr. Chairman, is a subamendment to improve amendment CA-48. We have to take into consideration the issues pertaining to access to information raised by the recent review task force as it pertains to aboriginal people.

For instance, what about information that has been received in confidence from other governments? Under section 13 of the Access to Information Act, information received in confidence from governments, including regional and municipal governments, is exempted, recognizing the interests of those governments and that information.

Would we have a similar exemption for first nations? In other words, if they were trying to be shielded from requests for access to information, could they simply park that information with the federal government?

À (1020)

The federal government doesn't have to disclose information they receive from another form of government. So if they're willing to accept the Iroquois nation as a nation as it pertains to lacrosse tournaments.... You can see how we have to think these things through. Frankly, in this context of ten-minute speeches, we can't even introduce the subject with the attention it deserves, never mind debate some of the predictable problems that may stem from it.

Just so people are clear, under section 13 of the current Access to Information Act, information received in confidence from governments, including regional and municipal governments, is exempted. Therefore it recognizes the interests of those governments and that information.

How would that apply to information garnered from first nations that is currently held by INAC? Does section 13 of the Access to Information Act apply then? If that's the case, would it not be a simple way to shield that information by having the first nation in question deposit it for keeping with the federal government, and then they would never have to disclose it because the Access to Information Act wouldn't apply?

Section 13 also provides that “the head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained in confidence from...”, inter alia, an aboriginal government, unless the aboriginal government makes the information public or consents to its disclosure. That's the current law.

However, subsection 13.(3) defines aboriginal government as meaning only the Nisga'a government, as defined by the Nisga'a final treaty. It's the only first nation that's completed a modern-day treaty, and we were proud to participate in the crafting of that treaty. What about all the other first nations? Subsection 13.(3) defines aboriginal government as meaning only the Nisga'a government.

This isn't my information. This has a flag on top of it. This is a Government of Canada information sheet. Believe it or not, we had time to do some research on these things, because we're legitimately and sincerely trying to make this a better bill. We're trying to mitigate the damage caused by this bill; let's put it that way. In every aspect we've exhausted our limited research capacity, the entire body of which is sitting behind us here now. But they've done incredible research, even with the stranglehold of the time limitations put on by the government in an attempt to silence us, in an attempt to silence first nations people, who are trying to use us as a vehicle to get some participation in this bill.

They moved closure and time allocation even on the debate surrounding the development of Bill C-7--an obnoxious thing to do. I predict they will, as well, move closure in the House of Commons, because it's the only way they can get such an unpopular bill rammed through, in spite of the overwhelming opposition right across the country to this bill. They will have to, again, trample all over democracy with their jackboots and ram this bill through.

Late last night, when I was watching the seminar that I couldn't afford to attend, Mr. Godfrey was in the chair when I was channel-surfing at 2 a.m.--CPAC covered the entire conference. He introduced a man named John Whyte from the law commission of Saskatchewan, who has a brilliant legal mind. He was speaking about public opinion, and in his opposition to Bill C-7 he was citing the fact that the government has misread the public. The government has been listening only to a few agitators who are trying to imply that first nations are all corrupt or incompetent.

À (1025)

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I introduce this amendment out of a concern to improve somewhat matters pertaining to this bill. I especially want to express my respect for the analysis conducted by the Information Review Task Force. In that very serious analysis, the Task Force recommended that the Access to Information Act not be broadly applied without first taking certain precautions. It then talked about information in the First Nations that might be used to further negotiations on self-government for the purpose of implementing Aboriginal treaties.

That warning was made by a group of wise people, a group of persons who probably knew much more about this question concerning the Access to Information Act than we do. They're people who have worked on it for years, strictly on the act as such or in a broader perspective involving the Access to Information Act and negotiations on Aboriginal self-government. In that way, they ensure that there is less risk that such situations will arise in the context of the act's implementation.

When an application for access to information is made, information circulates. In such cases, the band would be required to circulate that information. But that would cause injury to the First Nations since information that could be used in the negotiation would be disclosed.

I've introduced this amendment, which advances the idea that, despite the virtues of the Access to Information Act, exceptions could be made. The first exception would concern the case in which band councils would pass an Aboriginal law on access to information. That, moreover, is their right; the inherent right of self-government. That's what it means. The idea is not to present them with as colonial and outmoded an approach as that in Bill C-7.

The second exception would apply in individual cases in which the disclosure of that information could compromise federal-Aboriginal affairs, particularly in the conduct of negotiations on self-government.

At the hearings, the briefs submitted to us merely scratched the surface of the question of access to information. There was not really any extensive analysis of that question. However, the Canadian Alliance presents matters in a fairly crude way in saying that the Access to Information Act must apply to all the documents of the band councils. However, the task force I referred to earlier has presented very specific recommendations concerning the application of the Access to Information Act to Aboriginal peoples. They are consistent with the proposals before us.

Outside Bill C-7, there could be an amendment to the Access to Information Act providing for the non-disclosure of information that might compromise negotiations between the federal government and Aboriginal governments. Before making amendments to the Access to Information Act, it would also be possible to integrate the entire question of exemptions from the disclosure of information in the very heart of Bill C-7, so as to avoid unfortunate situations and in taking note of Mr. Vellacott's amendment.

Those who put that to the committee are not people who don't know the subject since, in most cases, it's a subject they teach. Nor are they people who are unaware of the existence of the report of the Erasmus-Dussault Commission, the Royal Commission on Aboriginal Peoples. In other words, they aren't people from Mr. Robert Nault's office. They are people who know the subject.

Among them, Hamar Foster, a law professor at the University of Victoria, teaches and does research in a number of fields. Among other things, he has published two collections of essays with John McLaren as co-editor, and some 50 articles mainly on Aboriginal law and the history of law and criminal law in that connection. He is currently working on a book on the origins of the Indian land issue in British Columbia. He's very much interested in the Aboriginal question and in land negotiations.

À (1030)

That committee, which made the main recommendations, also included Murray Rankin, who is a partner in the law firm of Arvay Finlay, which has offices in Victoria and Vancouver. He holds law degrees from the University of Toronto and the Harvard Law School. He taught law at the University of Victoria for more than 12 years. His areas of specialization include administrative law, environmental law, information and privacy law and Aboriginal law. He's someone who knows quite a lot more than we do about law, and I know we should take note of his considerations and introduce them into the subamendment, as I proposed to you a few minutes ago.

There was also Catherine Parker, who is a graduate of the Faculty of Law of the University of Victoria. She was called to the Bar of British Columbia in 1998. Her areas of legal practice include civil litigation, administrative law, labour law and Aboriginal law. Lastly, there's Mark Stevenson, who is also someone hooked on the subject since he has extensive experience in treaty negotiation, constitutional negotiations and Aboriginal law. He even worked at the Privy Council--he's one of you--in Ottawa from 1983 to 1987. No, he wasn't exactly one of you. In 1983, that was the end of the Liberal government and the start of the Conservative government. In short, he survived two governments; he must be someone competent. He worked both for the Liberals and then for the Conservatives. He was very much involved in the constitutional process involving the Aboriginal peoples. I believe he knows a lot about detecting the problems in the Canadian Charter of Rights and Freedoms and the many sections on Aboriginal peoples in the Constitution. He gives courses under the title “Aboriginals and Treaty Negotiation” at the Faculty of Law of the University of Victoria and is currently president of the Indigenous Bar Association.

When people like that make suggestions, which we get our hands on and, out of a concern for professionals, bring them back here to prevent the bill from including clauses or amendments that might distort the recent and serious analysis that has been conducted, you should thank us. You shouldn't say, as the parliamentary secretary says, that we're dealing with questions that don't interest us, that interest no one and that are completely pointless, and who accuses us of having taken up 80 hours out of the 110 hours of debate. They had the freedom to take those 80 hours, but, every time we introduced things as substantiated, as studied and supported by sound people like Rankin, Parker, Stevenson and Foster, they rejected them all. Moreover, I wonder sometimes whether they listen to the arguments we advance or whether they simply say that it's always the same thing, same old story, and that these are questions that don't interest them. If Aboriginal questions and questions of fundamental rights and access to information don't interest them, what are they doing here? What is he doing as parliamentary secretary if these questions don't interest him? What do you say in English? Shame on you; that's it.

I hope my colleagues will pay particular attention to this subamendment, which is not trivial. As I mentioned to you, it relates directly to the conclusions of the Information Review Task Force, which really put a lot of time, energy and talent into putting the concerns of Aboriginal peoples on paper in its Report 21.

These aren't Aboriginal peoples' only concerns; this is a concern to start out on a solid basis, on a basis that respects...

À (1035)

[English]

The Chair: Thank you, Monsieur Loubier.

We will have a recorded vote on the second subamendment to amendment CA-48, on page 212.

(Subamendment negatived: nays 7; yeas 3)

The Chair: Mr. Vellacott, before I give you the floor on closing remarks, I will announce that you get the prize for the longest filibuster on one amendment. We've been at this for eleven days.

Mr. Vellacott, closing remarks.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): In respect of this, my remarks are pretty brief here again.

As I said at the outset, when I introduced the amendment, I just think it's a basic premise of democracy and open governance, which is supposedly what this bill is about, in at least some small measure. So I think we need to have that stuff available, make the kinds of curbs and set the proper parameters, as was attempted in some of these amendments, but nevertheless have it there so that, like federal, provincial, and municipal governments, in fact there is that availability for members of bands. They could request the information without having to go through band and council, as well as INAC.

John Reid, the information commissioner, suggested that the Access to Information Act apply to bands. I think transparency and accountability rely upon accessibility to government information. I'm wondering why the government did not include this provision in the first place, but I attempt in a sincere manner to insert that amendment, to the end of improving this particular bill in that respect.

I think we should to go a recorded vote on that, Mr. Chair, and proceed from there.

The Chair: Thank you, Mr. Vellacott.

We will have a recorded vote on amendment CA-48, page 212.

(Amendment negatived: nays 9; yeas 1)

The Chair: New clause 35.1 is therefore not created.

We'll go to amendment CA-49, on page 213. Mr. Vellacott.

(On clause 36--Grace period)

Mr. Maurice Vellacott: This is fairly basic. I won't belabour it. Basically, this would amend Bill C-7, in clause 36, by replacing line 33 on page 19 so that it will read that it will not apply to a band until “three years after”.

So reading the whole of that:

36. Regulations made under section 32 do not apply to a band until three years after the coming into force of section 4, unless the band previously adopts those regulations by a vote of its eligible voters conducted in the same manner as a vote for the adoption of a code under section 4.

We're changing “two years” to “three years”, to give a little more time. We've heard lots of complaints and lots of concerns expressed about that by witnesses across the country. So we're just adding 50% more time there, upping it to three years in order to be consistent with our other amendments--and some of those amendments thus far have passed--trying to bring that into conformity to say it's three years, giving that extension of time.

À (1040)

The Chair: Thank you, Mr. Vellacott.

Does anyone else wish to comment?

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, while I have no particular problem with Mr. Vellacott's idea of extending the time from two years to three years, I'm disappointed that the amendment he chose to make misses the larger picture that the default codes exist at all. This has been the point of a great deal of the presentations made in opposition to this bill.

Numerous witnesses have told the committee that Bill C-7 is a Trojan horse because it seeks to give definition to what self-government is all about. In other words, the default codes, which prescribe in great detail what the codes of governance shall say regarding how the community is run, in and of themselves offend the sensibilities of the people who made presentations.

It's the larger picture, the larger issue, that it will be the federal government, then, that will be prescribing the details about leadership selection, about the administration of governance, about the financial administration on behalf of first nations to first nations, for first nations, without their involvement.

That is where amendments could have been made, and possibly should have been made, to this bill that didn't just tinker with the idea that there will be a default code imposed upon the first nations community. Amendments could have been made that would qualify the whole idea that the regulations made under clause 32 do not apply to a band perhaps unless it files with the minister some legal opinion that the regulations do not define the nature and scope of that band to its right to self-determination or self-government, nor does it fulfil in any way the obligations and commitments of the Government of Canada in relation to the recognition and negotiation of self-government arrangements.

In other words, once the federal government has imposed these codes by default, we don't want anybody to assume that they've somehow met their commitment to self-government arrangements by dictating what those self-government arrangements will be.

Those are some of the fundamental concerns that have been brought forward right from day one, right from the very day we learned that the government wasn't just developing helpful, useful tools for first nations to use; the government was designing the rules by which all first nations would now govern themselves, and those rules were developed without the input or participation of first nations themselves.

There was an opportunity in this particular clause to make a substantial statement about what's wrong with this bill. So by moving it from two years to three years, by saying we won't dictate to you and impose upon you our vision of what your government should look like for three years instead of after just two years, that provides very little satisfaction for those who are opposed to the very idea that a bunch of white men in suits in Ottawa will be dictating the terms and conditions of election codes surrounding leadership, and so on.

In fact, it's funny that even on the leadership selection codes that will be imposed two years or three years after this amendment passes, there's already incredibly detailed, itemized information in the Indian Act regarding the election of chiefs and band councils. There are already established practices right across the country regarding the election of chiefs and band councils--some custom, some tradition, and some by the Indian Act. Those things are already in place, so even though the government or the minister, through the Indian Act, have their fingers in the operations of first nations communities, they want it all.

When clause 36 comes into effect, when the transitional provisions or the default codes come into effect, by forcing our will on first nations communities, the Minister of Indian Affairs will become the biggest Indian agent of all time. He'll become the ultimate Indian agent. He will control virtually every aspect of the day-to-day operation and activity of first nations communities. The chief and council will be rendered as useless as backbench members of Parliament are rendered useless by the dictatorial operation of this--

An hon. member: Only on your side.

Mr. Pat Martin: There's nothing more useless than a Liberal backbencher. I don't think I could come to work in the morning if I were a Liberal backbencher. I wouldn't have the strength to come day by day and be treated that way.

À (1045)

So I find that although Mr. Vellacott again is making tinkering little amendments, the problem is that the Canadian Alliance doesn't really oppose this legislation. Frankly, they generated it by their relentless accusations, and unfounded accusations, that there's such grotesque mismanagement of administration in first nations communities, so they would have us believe, that this legislation is necessary.

And the federal government bought into that line of thinking immediately because it's government by polls. I suppose they conducted a poll and found that most Canadians are inherently racist and willing to believe that first nations communities are corrupt, and bands and councils are being mismanaged to such a degree that the great white father has to take over. We have to put some order into these communities. We have to tell these Indians how to run their affairs. That's essentially what they've done by this bill. So the default codes are the manifestation of that mentality.

The government's frustration, as demonstrated in this, clause 36, is where you really find a manifestation of all the pent-up hostility towards Indians that's been gathering across the country over the last couple of years. They sit at the bargaining table and try to negotiate self-government arrangements, and they bargain in bad faith from year to year to year, but as they realize that Indians aren't going to go away without some control of their lands and resources, the frustration sets in and they find somebody like the current Minister of Indian Affairs who is willing to just put the hammer down. They say, enough of this negotiating, enough of this waste of time and resources trying to come to a fair settlement; we're tired of it. In fact, they even said as much--no more rights and redress issues. They're tired of talking about rights and redress; now let's just talk about economic development. That's code for changing the direction. Instead of dealing with aboriginal treaty rights and redress for historic injustices, which is the history of the Indian Act, they've decided now to go this direction, and the first step of that is to undermine the right to self-governance and self-determination and to essentially implement the 1969 white paper of assimilation policies, which was so soundly rejected in 1969 that it spawned a whole generation of militancy and activism amongst first nations and a whole generation of very well trained and well-educated leadership, Mr. Chairman, I should point out as well.

I'm sure that this is going to be a whole new wave of litigation. But they seem to have that addressed too, because first nations are finding it increasingly difficult to get justice through the courts. Liberal members will recall Pierre Trudeau's argument when he said the high costs of litigation in the absence of a universal system of legal aid makes a farce out of the right out of the equality before the law. Who has the resources to fight every one of these issues to the Supreme Court?

Apparently there are the resources regarding Bill C-7, because I've seen the first wave of court challenges that will be coming forward as soon as this bill gets royal assent. This will open up a decade of acrimony and litigation. We can predict that now.

The extent of the impact on self-government of clause 36 cannot be properly assessed without knowledge of the contents of the proposed regulations under clauses 31 and 32. That's the first step. We're now saying these regulations will either be imposed in two years or they'll be imposed in three years, but they will be imposed. But we don't even know what they look like yet. They haven't even been drafted, and there's no comfort. Nobody thinks they're going to have any more participation in the drafting of the regulations than they had in the drafting of this disastrous bill. You'd have to be a fool to believe them.

À (1050)

The minister is saying, don't worry, you'll be included and there will be a full consultation before we draft these regulations. Just like there was a full consultation when they drafted this bill--my eye. What an absolute farce that was. We've had people alert us of--

[Translation]

The Chair: Mr. Loubier

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

I'm pleased with Mr. Vellacott's amendment too since anything that can extend the implementation periods of Bill C-7 is welcome. A number of witnesses who submitted briefs to us said that the deadlines set for implementation of Bill C-7 were much too short and that consideration should be given to extending those deadlines, particularly when you see the many requirements contained in Bill C-7.

Even the Canadian Bar Association, and the Barreau du Québec in particular in Montreal put their finger on the fact that the deadlines set out in the bill are much too short. So all initiatives, like Mr. Vellacott's, which aim to extend those periods are welcome. Of course, this changes nothing about the bill as such since it is utterly unacceptable.

Moreover--my colleague Mr. Martin referred to this earlier--a week and a half ago, on the Wednesday before we adjourned, we were both in Kenora. Jack Layton, his chief, was there too, and we attended the demonstration. In the opinion of RCMP officers and Kenora municipal police officers, there were 8,000 persons at that demonstration, 8,000 persons who walked in the drum rally to oppose Bill C-7.

So when Robert Nault or the Prime Minister says that only the chiefs of the First Nations are opposed to this bill, we saw with our own eyes that 8,000 persons walked in the streets. There were men, women, children old enough to understand, teenagers who shouted slogans saying down with the FNGA, fight the federal government's neocolonialism. There were other slogans saying that Bill C-7 was exactly like apartheid in South Africa before the emancipation of the blacks. When people go so far as to make accusations as strong as that, it's because there is a problem, and the only ones who don't recognize that there's a problem are the few Liberal members here, the Prime Minister and the Minister of Indian Affairs. But there's currently a very high degree of mobilization.

Kenora is only one example. We were in the heart of the Indian Affairs Minister's electoral district. Then I remember coming back by taxi. Taxi drivers hear a lot of things, and when you ask them questions, they pretty much have their finger on the pulse of the public they serve. The taxi driver told me that Robert Nault hadn't understood a thing, that Robert Nault was sinking himself with Bill C-7, that he couldn't remember having seen such a big demonstration, not even in Winnipeg, which is some 250 kilometers away. He had never seen such a large demonstration. All the generations were there. There were elders, there were young adults, there were spiritual leaders, there were regional chiefs, there were members of the First Nations as such, who were in the very great majority. There were 8,000 of them in the streets. It seems to me we should stop talking nonsense, saying that it's just chiefs of the Assembly of First Nations who oppose this bill; everyone was opposed to it.

What's also quite interesting is that, if you spoke to someone at that demonstration, a young person or an older person, he could tell you why he was opposed to Bill C-7. It wasn't for utterly futile and political reasons, with slogans; they explained to you why we hadn't gone far enough in our relations with the First Nations, why we'd gone much further and with a much nobler scenario than what is offered to us in Bill C-7.

I've constantly put the same question to officials since the start of the analysis. What are we going to do if, in the periods that are provided for under the bill, the First Nations refuse to comply, to tow the line? I don't think Mr. Johnson had his device when I asked the question. I ask him the question again. Is Mr. Johnson listening?

We're talking about the bill's implementation periods. I've often asked you the question as to what reprisals there would be against Aboriginal peoples if ever a number of First Nations did not want to comply with the terms in Bill C-7. What are you going to do to recalcitrant First Nations? Are you going to send in the Canadian army? Are you going to call out the RCMP? Are you going to put them in prison, or what?

À (1055)

The Chair: Mr. Loubier, I won't allow you to ask that question. It is not up to the officials to defend the policies of a government. I won't allow your question.

Mr. Yvan Loubier: I'm asking him what's provided for in the bill.

The Chair: What's provided for in the bill? All right.

Mr. Yvan Loubier: What reprisal measures are provided for in the bill if the First Nations refuse to comply with the terms of this bill which they don't want? I'm asking you the question again. Are we going to put them all in prison? There are a million of them in Canada.

[English]

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): Perhaps the member was absent when we got into this question in detail previously.

There are no reprisals; at least, I think that's the English translation for the word that was used. There are no sections of the legislation that would provide for responses in terms of enforcement. Since the First Nations Governance Act has been put, it has been modelled on the input from the consultations whereby first nations citizens, as opposed to the minister or the federal government, were to hold their governments to account. While this would be speculative to say, I think, to summarize what we said last time, the result of a non-compliance with the act by a first nation would in the first and primary instance be reflected in the actions of the first nation's citizens.

The only non-discretionary and significant area of ministerial discretion left in this whole area subsequent to Bill C-7, as currently drafted, would be if there was a major concern on the financial side with respect to threatening essential programs and services. So there is only that point where the minister, if this non-compliance did occur, might have the authority to intervene. Other than that, the intervention would be that of citizens who, in seeing their government not complying with legislation that empowered those citizens, may then respond in terms of seeking redress through the courts or otherwise to have their rights under Bill C-7 put into place.

In the absence thereof, as is the case now under the Indian Act as well, in lieu of those actions there is no automatic or contemplated intervention, or reprimand, or reprisal, as the member used the term, I think, on behalf of the federal government

[Translation]

Mr. Yvan Loubier: Mr. Johnson, I was here when you gave that answer and I wasn't satisfied with it then.

I would like to introduce a subamendment to that amendment. I move that we add, after the words “dans les trois ans suivant l'entrée en vigueur”, the words “si le conseil en décide ainsi ou dans les”.

I'm going to table my subamendment and I'll discuss it afterward.

Á (1100)

[English]

The Chair: The advice I'm getting is that the subamendment is not acceptable. Do you wish an explanation? Voulez-vous une explication?

[Translation]

Mr. Yvan Loubier: Why isn't the subamendment acceptable?

Mr. Jeffrey LeBlanc: Mr. Jeffrey LeBlanc

What you're proposing to add would come at the end of the amendment “suivant l'entrée en vi”. The line ends with the first syllable of the word “vigueur”. So, since the word “vigueur” is not written out in full, you can't add “si le conseil en décide ainsi” instead of the word “vigueur”.

Mr. Yvan Loubier: No, no, just a second. I propose “si le conseil en décide ainsi, dans les trois années suivant l'entrée en vi...”.

Mr. Jeffrey LeBlanc: At the end of the amendment.

Mr. Yvan Loubier: No, at the start. And I said it: “si le conseil en décide ainsi, dans les trois ans suivant l'entrée en vigueur”.

Mr. Jeffrey LeBlanc: It's written at the end.

The Chair: It's written at the end, so it's not acceptable.

Mr. Yvan Loubier: It was at the start. And I said so.

The Chair: You wrote at the end.

Mr. Yvan Loubier: That's a mistake, because it's at the start.

[English]

The Chair: Mr. Hubbard.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I have a point of order.

The Chair: Mr. Loubier.

Mr. Yvan Loubier: What I said, out loud, was different. I said that it should be put at the start, not at the end. We were drafting in a hurry, so that's probably why I made that mistake.

The Chair: Your mistake is forgiven, but we're moving on to Mr. Hubbard now.

Mr. Yvan Loubier: I don't need you to forgive me.

[English]

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

I referred two weeks ago to the fact that at some time history will look at what is going on here today, and to see a member who has had this subamendment now for over a month but suddenly today, on the spur of the moment, tried to write in a subamendment merely to take time of this committee is unbelievable. It's unbelievable that a member would do that.

I think all of us sitting around the table, certainly...I can't say we're frustrated, we're more than frustrated with this attempt. I'm also concerned with some of the statements that were made recently in terms of the amendment we're looking at.

The honourable member from Winnipeg Centre talked about hostility towards first nations people. I don't find hostility, Mr. Chair, towards first nations people across this country. Maybe he's referring to his own riding or his own neighbourhood, but certainly he's not referring to Canadians when he makes statements like that. Second, he talks about redress. This bill offers redress to first nations peoples in terms of their relationships with their chief and council. He wants to deny them that redress.

We hear the other honourable member talking about numbers. We talk about 1,000 people. He didn't say he watched a demonstration; he said we participated in a demonstration. He probably helped to organize it. He talked about 1,000 people. Another member talked about 2,000 who were there. Then we have 5,000, and 8,000. I've never heard such a.... We talk about someone's world; it must be Pat's world or Yvan's world we're talking about. It certainly isn't the world that is seen on TV, or seen other places, or reported in our news media.

They talked further this morning about 191 organizations and only 10 that favoured the bill. The record will indicate, if we look at the report of the committee, that there were some 280 witnesses who appeared across Canada in terms of our study for a four-week period. Of that number, some 97 witnesses were either supportive of the proposed First Nations Governance Act or provided constructive criticism on how it could be improved. Forty-one further witnesses did not raise any issues related to--

Some hon. members: Oh, oh!

Mr. Charles Hubbard: They don't like hearing the truth, Mr. Chair. The truth really hurts, especially after all the distortions they have tried to present before this committee.

Forty-one witnesses did not raise any issues to the proposed First Nations Governance Act, and 136, which represents less than half of the witnesses, did show opposition.

It's clear that in terms of the 191 organizations that they talk about this morning and try to present before this committee, we must ask, do they exist? Do those numbers exist? They are very loose with the facts.

We also have to remember that in our last meeting, Mr. Chair, I think it was on May 15, a member of the House who has spent over 30 years in the House, a former Prime Minister of this country, came before the committee to give a little lesson on how we deal with legislation. He questioned the witnesses, the expert witnesses who were involved with the drafting of this legislation. He tried to show the honourable members what a good committee does. It was very well done by the honourable member. They haven't learned that lesson. Even though they had a chance to see it, they had a chance to think about it for about 10 days, they come back to the committee this morning with the same attitude, the same misdirections, and the same presentations.

I mentioned Fisher-Price; you wind up a toy and it goes for 10 minutes. That in fact, Mr. Chair, is what we're having. We support this amendment. It's consistent with the two previous amendments that were made. Of course, on this side we want to bring forward consistent legislation, legislation that will improve the lives of first nations peoples. When we come to the House at report stage, we want the return of a good bill.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Hubbard.

Mr. Godfrey.

Á (1105)

Mr. John Godfrey (Don Valley West, Lib.): My question is to the officials. Can they explain how this proposed amendment would interact with the changes that we made previously from two to three years? In other words, there's a certain compound or a knock-on effect. In other words, with the given three years to enact the full provisions of the bill, if we were to pass this amendment, how much further on would the regulations take to kick in from the moment the bill was passed?

Mr. Warren Johnson: The process that the committee is engaged in, in this area, would appear to be seeking consistent treatment of what one might term the transition period that was called for in the bill. Subsequent to having the bill structure finalized in terms of the recommendations from this committee, etc, as we had referenced, there is probably at least a year's worth of work in terms of consulting and then implementing other regulations.

When the regulations are in force...there was a two-year transition period that had originally been put forward in this bill. The committee is moving to three years, I think, in each of the areas where that's relevant. For the major provisions that are now being moved from two to three years, I think this is the last of those.

There would be three years for a first nation to confirm it would wish to remain under custom with respect to its election rules in clause 5.

There would be three years, rather than two years, for it to review the regulations that had been developed and to see whether, in whole or in part, it wished to replace those regulations with its own codes. The three years would be coincident with the previous one in terms of the first nations looking at whether they wanted to remain under custom.

Equivalently, that would be the same three-year period under which a first nation could seek an exemption because it was close to finalization of a self-government agreement. Thereby, it would make it impractical, or not very useful, for it to move under the provisions of Bill C-7 to fairly quickly thereafter move under its own self-government arrangements.

The three initiatives would all be lined up with this amendment into one three-year period subsequent to the coming into force of the regulations.

Mr. John Godfrey: Thank you very much.

The Chair: We'll have a recorded vote on amendment CA-49, page 213.

(Amendment agreed to: yeas 9; nays 0)

The Chair: This negates amendment BQ-43.

We now vote on clause 36 as amended.

Mr. Pat Martin: Mr. Chair, on the debate on clause 36, I am confused. I understood that government amendment G-13 also amended section 36.

The Chair: It amends clause 36.1, Mr. Martin. It would be a different clause.

Mr. Pat Martin: I understand.

Speaking to clause 36 and whether or not it should pass, I'm opposed to clause 36. I don't believe even in its amended form it should carry, because it speaks to the many things that are wrong with this Bill C-7 in general. In fact, if anything, it best represents what we and most aboriginal people across the country find offensive about Bill C-7.

If we listened to the presentations made to the standing committee, if we took into consideration the input from first nations, we wouldn't be having this debate. We'd be having a completely different order of business before this standing committee.

We could be spending our time, for instance, dealing with land and resources issues, or the implementation of treaties, or the negotiation of modern-day treaties. We could be dealing with the emancipation of aboriginal people and the eradication of the Indian Act altogether, instead of tinkering with the Indian Act.

I think people will agree, Mr. Chairman, all we will be doing in passing clause 36 is amending sections of the Indian Act and taking what currently exists in policy and putting it under legislation, so that if a policy is broken, now the minister can punish you. Now the minister can in fact impose third-party management. Now the minister can absolutely have, by the power of law, the ability to enforce those policies that already exist in contribution agreements, that already exist in the huge operations manual of INAC.

I have it here, Mr. Chairman. The administration of funds manual is as thick as a Manhattan telephone book already. Now that will become law. And even further, now, if you don't design rules of governance exactly as agreed or as the minister envisions them, within three years those same rules of governance will be imposed on you. They'll dictate them. They'll impose them upon your community.

How can we go into this so lightly? How can we go into such a heavy-handed, dictatorial, fascist step without proper debate, without even really taking into consideration what the impact is on first nations communities?

We can't dictate any other nation's governance--our trading partners, our United Nations colleagues. We can't dictate how they govern themselves. How then, if we accept first nations as independent sovereign nations, do we dictate the terms of governance under which they operate?

It's funny that we don't express similar concerns to our other League of Nations colleagues as we sit around the United Nations table. We're not in the business of imposing our Eurocentric view of governance on other nations around the world. In fact, we willingly give foreign aid to countries whose accountability and transparency issues are far worse than any we might have found in our own first nations communities. Yet in contrast to that logic, we feel perfectly comfortable and perfectly at ease in dictating the terms and conditions of band council operations in communities now.

So clause 36 should not pass. Clause 36 should be amended in dramatic and substantial ways. We've missed an opportunity to change the whole tone of this bill to make it less offensive in the fact that we didn't alter clause 36 in any meaningful way. We only tinkered; we're going from two years to three years.

We should have declared with clause 36 that all of these codes are optional. Really, that would have been the effect of Mr. Loubier's amendment, had he not been tricked by process here around this table. Had we had the opportunity to really debate Mr. Loubier's amendment, we could have dealt with the issue of whether or not these things should be for guidance or be mandatory.

It's interesting that leading up to the 1997 election, this standing committee was dealing with legislation dealing with aboriginal affairs, putting in place national standards for accountability, national standards for accounting practices, etc., but they were optional. So the first nations, if they needed assistance and if they sought guidance, could take these national standards off the shelf and implement them in their own communities.

Somehow, the attitude toward first nations has soured in the meantime. There's a mean-spiritedness that now prevails in this government's approach and attitude toward first nations in that they have now said, this is no longer optional, kids; this is the way we're doing it. We're tired of talking about it. We're just going to simply do it. This is why it smacks to a lot of us, for all the world to see, that it's the white paper revisited.

Á (1110)

The white paper, presented to Parliament 30 years ago, declared that total assimilation must occur within a short period of time and that all legislation pertaining to Indians was to be repealed, thereby denying any acknowledged rights to Indians, and that all services were to be provided by the provinces, etc. The white paper rejected treaties and land claims as insignificant in the debate on the future of Indians. The white paper policy didn't contain any major positive suggestions regarding the well-being of Indians. The primary concern was not the well-being and the best interests; its essence was in severing all ties between Indians and the federal government.

Well, incrementally, just as when you vote against Meech and you end up getting Meech incrementally, if you vote against the white paper you end up getting the white paper incrementally. It's being introduced bit by bit as the government seeks to get out from under its fiduciary obligations.

It's too bad the former prime minister, who presented to the committee, wasn't given more opportunity to present, because there was a time, in 1992 with the Charlottetown Accord, that there was a wave of optimism, and Mr. Clark was leading it. I remember coming into the Charlottetown Accord meetings, and Mr. Clark was almost invariably in a huddle with Ovide Mercredi and the leaders of the Assembly of First Nations, as they discussed and crafted the constitutional amendments that would give meaning and definition to section 35 of the Constitution as it stood.

There was a time—there was a brief window—exactly a decade ago where we were starting to go in the right direction in revisiting the relationship of the federal government with first nations. That opportunity has been thrown out the window. That well has been poisoned, and in the words of the future prime minister, we can't go there anymore.

In visiting section 36, we could have amended it along the lines of what Mr. Loubier suggested to defuse some of the flash points associated with this bill, by suggesting—as he put forward, I believe—that if the council decided they wished to implement these default codes or the regulations within two years of the coming into force and effect of section 4, then so be it; that would be their choice.

We could have also, in my opinion, deleted reference to a timeframe altogether. That could have been part and parcel of accepting Mr. Loubier's recommendation, that you no longer would need a two- or a three- or a four-year timeframe then, because it would be optional. It would be a useful tool the first nations could avail themselves of. If they felt they were lacking in administrative capacity themselves in developing their own codes, they could reach off the shelf and make use of these tools available to them.

It's interesting to note this was well underway before Bill C-7 landed like a bombshell and destroyed a lot of the relationships here. There were meetings taking place at very high levels. There were round tables taking place on the national level—for instance, between the Assembly of First Nations and the Canadian Institute of Chartered Accountants to develop national standards for accounting practices for first nations—and in the spirit of sharing administrative skills, not in the spirit of imposing “our view” or trying to imply that without the heavy hand of the federal government there's just chaos and pandemonium in the administration of band funds, which is the mean-spiritedness that I say has been part of the campaign of misinformation across this country.

Á (1115)

If the honourable parliamentary secretary thinks for a moment that hasn't been a deliberate and very effective campaign, he must not be paying very close attention. Actually, there has been a very deliberate campaign to try to convince Canadians that the situation is so extreme—

Á (1120)

The Chair: Thank you, Mr. Martin.

Mr. Martin, I must admit I was surprised that out of 191 amendments, no one submitted an amendment to have an opt-in clause. I must admit I was surprised; that's the thing I was looking for when I got all the amendments. But nobody moved it. You addressed that issue.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: I'm sorry, but at the start of the study of Bill C-7, a derogation clause was proposed in the heart of...

At some point, you have to get real too. We've already suggested a number of derogation clauses in the course of consideration of this bill and you have always refused to introduce a formal non-derogation clause, and, well, we won't repeat the same proposal 25 times.

In my opinion too, clause 35, as drafted, even amended to three years, is still unacceptable, because it's entirely a question of legislative drafting too. Let's stop wanting to impose ways of doing things on the First Nations, putting a knife to their throats and telling them that they have to do such and such a thing within a given time period; otherwise we don't really know what will happen. I'll come back to this question later because I was somewhat surprised at Mr. Johnson's answer a moment ago.

But let's come back to clause 35. If you read the comments that have been made before us... Like the parliamentary secretary, we can offer all kinds of limited and distorted visions of reality, but one fact remains: 191 witnesses appeared or filed briefs opposing Bill C-7 for various reasons. More particularly, only nine, if we exclude the minister, agreed on specific clauses such as clause 36. That's the fact of the matter. That's a compilation prepared by the Library of Parliament and by us as well. We checked each of the briefs filed: 191 against compared to nine for and one abstention. I don't count the minister because if he isn't convinced of his own proposal, there's a problem. So that's the fact of the matter.

If we are to consider the consultations that were conducted and the current political reality, there is very strong, virtually unanimous opposition. Everyone agrees that this bill must not be passed. Even Paul Martin says that it shouldn't be passed, that, in any case, even if it is passed, he won't take it into consideration. I believe you've forgotten that.

It's true that, for some who don't work too hard in their ridings, a week's vacation at a point such as this can soften the brain. But that's what the situation was before we adjourned, and it's still the same. Paul Martin rejects Bill C-7 and he's going to be prime minister soon. So there's something not right. It's somewhat vaudevillian to continue consideration of a bill such this, of which no one wants the preamble, or clause 1 or clause 36, even amended to provide for a period of three years rather than two years.

I've constantly been surprised from the start at the answers I've been given when I ask the same question. Contrary to what Mr. Johnson said, I've been here quite often. I was here when he answered the way he answered me earlier concerning the time periods. If ever the First Nations did not comply with the provisions of Bill C-7, which will become law if Parliament every passes it, what will happen? He still repeats the same thing. I was here the first time he said it, and I was here the last time as well, because he said it a few minutes ago. He said it will be up to the citizens of the First Nations to decide what they're going to make of the band council's orientation. But the citizens of the First Nations, more than 8,000 of whom were in Kenora, don't want Bill C-7. So do you know what the citizens of the First Nations are going to say? They're going to tell the band council that it's right not to implement Bill C-7 because they don't want that piece of rubbish. That's all they're going to say.

I also listened to the second part of Mr. Johson's answer and it irritated me a bit. They're waiting until they get 40,000 people on Parliament Hill; this government only operates if it's kicked in the rear end. But I was surprised at the second part of the answer Mr. Johnson gave. He said that, when the First Nations and citizens see that it's doing them financial harm not to implement Bill C-7, things will change. Aren't those barely veiled threats, threats to the First Nations that, if their band councils don't take steps to implement Bill C-7 within a period of two to three years, their subsidies are going to be cut off? Is that what's being said?

You have to remember--and I believe we've said this a number of times here--that there's a kind of culture of intimidation at the Department of Indian and Northern Affairs Canada. We've realized that too: intimidation and barely veiled threats. I believe we're still getting answers of this kind. When citizens of the First Nations see that they've lost money or risk losing money, they're going to snap out of it. Are threats of this kind still being made? Intimidation works for organized crime; I know something about that.

Á (1125)

However, parliamentarians and a department with responsible officials shouldn't operate that way. It annoys me to hear that kind of answer that maybe they'll think twice about it if we cut off their subsidies.

It should be kept in mind--and we talked about this before adjourning--that there are Aboriginal associations in Quebec and Canada which were cut off either by the Department of Canadian Heritage or by the Department of Indian and Northern Affairs Canada from the moment they opposed Bill C-7. That was the case, among others, of the Quebec Native Women's Association, which had most of its budget cut by the federal government as soon as its spokeswoman began expressing doubts about Bill C-7 and saying in public that it was not the right response to improve the fate of native women in the current territories of the First Nations. That association was cut off.

Is that the way to proceed? If the First Nations don't want to comply with this bill, which is more garbage than anything else, are they going to be threatened with having their school subsidies cut off, for example? Are surprise inspections going to be stepped up, for example?

I've never seen a crazy system like this, where an inspector from the Department of Indian Affairs can enter any school, and, if 40 children granting entitlement to subsidies are officially registered and only 37 are in school that day--it can happen that there are three fewer children--the subsidy enabling the education system to operate on the reserve is cut off. Is that how things are going to work? Are we going to continue with a regime of terror if ever, if the bill becomes law, the First Nations don't comply with the terms of Bill C-7? The First Nations should be told, not in a veiled way, that they might be subject to reprisals if they didn't tow the line.

I think they've been treated that way for decades and it's still going on. Moreover, on clause 36 and other clauses, there were critics who said that not only was the wording of the clauses rotten, but the very spirit of the bill ran counter to the evolution of the modern society we currently live in.

I'll give you a few examples of testimony that may perhaps refresh the memory of the parliamentary secretary in particular, who appears to have a very selective memory and a gift of shamelessly stretching the figures on the representation of witnesses who supported the bill. Shame on you, sir, and on the others who believe in that kind of nonsense.

On clause 6, the B.C. Aboriginal Rights Coalition said in its brief:

The First Nations Governance Act lays out procedures for First Nations to follow in developing codes governing elections, financial management [...] First Nations are expected to shoulder the burden for those complicated tasks without any extra funding, even though they are already challenged financially and in personnel.

No First Nation received any guarantee that budgets would be increased in order to comply with the terms of this bill. There has been no firm commitment from the government, even less from Minister Robert Nault, on amounts and additional resources which might be provided in order to comply with Bill C-7, in particular clause 36.

The British Columbia Assembly of First Nations said at Nanaimo:

36. Regulations made under section 32 do not apply to a band, unless the band previously adopts those regulations by a vote of its eligible members conducted in the same manner as a vote for the adoption of a code.

This clause should no longer be part of the transitional measures and should [...]

Á (1130)

[English]

The Chair: Merci.

(Clause 36 as amended agreed to: yeas 7; nays 2)

The Chair: We are now on amendment G-13, new clause 36.1.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, on a point of order, with your permission, I'd like to stand government amendment G-13 until later.

(Amendment allowed to stand)

The Chair: We will come back to this amendment and this new clause later—at the end.

(On clause 37—Continuation of existing by-laws)

The Chair: We are now on clause 37, and amendment G-14.

Mr. Charles Hubbard: Mr. Chair, I wish to stand the amendment until later.

The Chair: First you have to call the point of order.

Mr. Charles Hubbard: On a point of order, I wish to stand the amendment.

(Amendment allowed to stand)

The Chair: We are now on page 219, amendment BQ-44.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, the purpose of this amendment is to extend the time periods provided for in clause 37, in response to the many criticisms that were made. The Auditor General in particular talked about getting more time to develop codes. There was also extensive testimony which I briefly referred to a little earlier.

As regards the implementation period, the London District Chiefs Council, for example, said in its brief presented in Toronto, which I was able to read here, that a process over a generation or two should be considered. There was no talk of a process over limited periods, but they were talking about a generation or two.

I was listening to Mr. Martin earlier. I think it would be an excellent idea ultimately to remove all reference to periods in the bill. It seems to me the stage was set in the early 1980s with the new Charter of Rights and Freedoms. The stage was set for more harmonious relations than those currently being prepared with the First Nations, relations not under the auspices of perpetual threats or knives at the throat, stipulating that they have to accept this within a given time period and that granting them more resources to comply with such and such a treaty or act is out of the question.

We had built our relations on mutual respect and on negotiations between equals, not on the use of the steam roller and on clauses stating that, if the acts passed by the Aboriginal governments are not consistent with what the Minister of Indian Affairs or the Governor in Council might decide, then it's the latter that will win out. The 1983 report of the Special Committee on Indian Self-Government in Canada and, all the more so, the institutional extension of the Royal Commission on Aboriginal Peoples, in which the commissioners spent a number of years examining the situation of Aboriginal peoples, had prepared us for something more respectful of Aboriginal realities.

There's also the fact that a number of negotiations on self-government which are still at a standstill should resume. But instead of resuming negotiations on self-government or the implementation of treaties which often date from time immemorial, we're here haggling over time periods, periods and commas, over the fact as well that the First Nations must comply with requirements we're holding them to by introducing a bill of this kind.

I'm somewhat sorry that the Canadian Alliance isn't here because the question of implementation periods was of particular interest to the people from the Canadian Alliance.

Á (1135)

[English]

Mr. Charles Hubbard: Mr. Chairman, I have a point of order.

The Chair: On a point of order, Mr. Hubbard.

Mr. Charles Hubbard: I think it's very unfair to the Alliance to mention whether or not they're here. I don't think it's parliamentary.

The Chair: It's not a point of order, but I agree. We'll try not to mention those who are not here, please, as in the House.

[Translation]

Mr. Yvan Loubier: You should apply the same reasoning to Mr. Johnson, who said earlier that I was absent when he gave the explanation. By what right did he say I was absent?

The Chair: All right, Mr. Loubier. We're going to ask everyone to stop that practice.

Mr. Yvan Loubier: That's a very good idea, Mr. Chairman.

Criticism was offered wherever we went, and all the briefs that were submitted, contrary to what the parliamentary secretary may claim, told us that the implementation periods made no sense, that there were no resources, that there were no additional human resources at the First Nations' disposal. They're already strangled by their obligations toward the members of the First Nations.

Á (1140)

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

[English]

Mr. Pat Martin: Mr. Chairman, if it's my ten minutes to speak to Mr. Loubier's amendment, it's not going to be sufficient. I'd like to explore a number of ideas related to this whole registering of bylaws with the band registry and the national registry that are to be established. That's what we're dealing with here.

I can understand the logic of Mr. Loubier trying to buy some time to make this a more reasonable concept. The current proposal in Bill C-7 says that “within six months after the coming into force” of this bill, the “band shall deposit each of its by-laws referred to...”, etc., in its band registry and in the national registry established under clause 30.

Mr. Loubier has cited the whole idea of what happens to bands who either cannot or will not comply with these time limitations, and he raised a number of scenarios. In the absence of a direct answer from the government as to what will be the sanctions for bands who cannot or will not comply, he's at least said that if you can't even answer what's going to happen to you if you don't comply, we shouldn't have this rigidity of six months. We should at least have a two-year amendment, which is what he has proposed, Mr. Chairman.

I'm being heckled by the parliamentary secretary, so I'm finding it difficult to keep my train of thought. I want to introduce some fairly complex notions here, Mr. Chairman. This is what the whole Trojan horse aspect of this bill is; that it may look fairly innocuous on the face of it, but in actual fact there are broad, sweeping ramifications associated with, or that could be associated with, failing to comply with this six-month time limitation. Mr. Loubier's proposal to make it at least a two-year time limitation would give us time to consider what the implications will be.

We've asked what the sanctions will be for failing to comply. We've already been told, pretty much, that some first nations aren't interested in having these codes imposed upon them. There'll be a reluctance. I'm not saying there'll be deliberate civil disobedience in refusing to register these things with a national registry that is not of their making, that is not of any interest to them, but I am saying there could be difficulties in complying with the provisions of clause 37 with a six-month limit. So Mr. Loubier's idea of a two-year limit has merit.

I would like to see no limits, frankly, and I'm even concerned about this national registry as it pertains to access to information again. In clause 30, which is the clause that establishes a national registry of the “codes and all the laws made under this Act to which all persons [shall] have reasonable access”, there are issues of confidentiality and access to information that are again being treated in a very frivolous way.

We haven't had time to explore the consequences of the many, many sweeping changes associated with this bill and we won't have time again around this table, because there won't even be time for me to explain, I don't think, the concerns we have associated with the access to information as cited in the review task force—the government's own review task force to do with access to information.

We certainly won't have time to explore what shall be the penalties associated with failing to comply. Every time this question is asked of our officials, they simply have to say, we don't know, the act is silent on that. Well, when the act is silent on what shall be the penalty.... It's unfair to impose any law on people if they don't know what the consequences will be of not complying with that law. That's why in every piece of criminal legislation you have what the punishment associated with failing to comply or with breaking that law would be.

Here we have a directive, and we can only assume—because this bill is all about default positions—that in the absence of any clear language giving us guidance as to what the sanctions will be, the default shall be that the minister shall have all power to decide what to do about a failure to comply within the time limitations.

Á (1145)

We all know the minister is all-powerful. The minister can impose third-party management, which is a gift to his friends really, a gift to those lucky chartered accountant firms, those lucky friends of the minister, I presume, given these incredible goose-that-laid-the-golden-egg contracts called third-party management, $30,000-a-month gifts. This is better than Groupaction. This is better than being part of the Liberal communications scandal. This is better than being part of the Communication Coffin and Groupaction Communications, because this is real money for nothing, this third-party management.

I'm worried that this particular clause will lead to an expansion again of the atrocity, the national scandal that is third-party management of Indian reserves in this country. When we find some guy from downtown Kenora getting $30,000 a month to administer a first nation that he has never been to, that he has never set foot on...for what, for a few financial transactions?

It has been outlined to us that the financial administration associated with a small reserve like Pikangikum in northern Ontario, where the bill was $30,000 a month, is comparable to the financial administration of a small corner business, a mom-and-pop business. That's about how many cheques come in and how many cheques go out per month.

I know an aboriginal lawyer who was the third-party manager for a number of communities in the past. His billing was about $1,500 a month to do all the financial administration of that community. He's a lawyer, a well-known aboriginal lawyer in Manitoba.

So $1,500 to $2,000 a month is about all you can bill, even at lawyers' rates, to do the financial administration of a third-party manager, yet these guys are getting $30,000 a month because...well, we know why, because they're connected. It's like being all mobbed up. It's because you're connected.

This is atrocious. There are scandals here that we are going to get to the bottom of. As soon as we're finished trying to put a stop to this bill, we want a full, detailed investigation into the scandal, the atrocities associated with third-party management, which I believe will be the predictable consequences of failing to comply with this clause. It's absolutely atrocious.

I am moving a subamendment to this clause right now that would change the amendment. Instead of “Within two years after the coming”, it would read “Within ten years after the coming”--10 years.

Á (1150)

The Chair: Mr. Martin, on your subamendment--

Mr. Pat Martin: Mr. Chairman, the reason I'm contemplating a generous amount of time associated with this particular clause....

It's true that 10 years is not long in terms of the 130 years of suffering and persecution that first nations have had to deal with under the Indian Act. I chose this figure actually quite carefully, because 10 years, in my view, is the amount of time it will take to overthrow this government and to replace it with another government that may in fact have a sensitive approach towards first nations issues and will be willing to eradicate the First Nations Governance Act.

So I'm allowing one more term of office for this government, because they'll be difficult to beat in this election--so that's four years. That will allow, then, that at approximately the end of four years a new government will be elected to replace the Liberal government. Within their first term of office, they will eradicate the First Nations Governance Act; therefore this clause will be rendered moot.

Because there's a 10-year implementation period here, that work will be accomplished within those 10 years, and these first nations will never have to comply with this clause.

I think there's logic in this. There's common sense associated with this. It's not as effective as simply abandoning this folly now, but I am hoping that within 10 years the country will have come to its senses. Within 10 years, I'm optimistic that public opinion will force the government of the day to abandon folly such as the First Nations Governance Act.

The biggest mistake this government has made is misreading the opinion of the public in regard to aboriginal issues. They're taking their guidance from the Canadian Alliance, which has been trying to paint a picture that first nations are either corrupt or incompetent. That's the Canadian Alliance view of--

The Chair: Mr. Martin, you know the practice is not to attack political parties represented here. You know the whole thing, sir.

Mr. Pat Martin: That's a good point, Mr. Chairman.

The Chair: I appreciate that. Thank you.

Mr. Pat Martin: I will be more conservative in my criticism of the Conservatives.

I believe some opposition parties have tried to paint a picture of financial mismanagement far beyond what really exists in the communities, and I believe the Liberal government has been influenced by the positions put forward by that opposition party.

I believe they failed to accurately poll and canvass or get a real reading of how most Canadians view the question of our relationship with first nations in this country. Most Canadians hang their head in shame at the socio-economic situation of first nations, and they're ready and willing to accept substantive change, not just tinkering with the Indian Act.

That's where I feel the government has really missed the boat in this particular bill. Maybe I'll regret that we didn't seek to have changed every time limitation in this particular act to 10 years, 20 years, or 30 years to give the government time to catch up with the feelings of the country, with the true attitudes of most Canadians, who are actually quite generous in their attitude towards the settlement, the final resolve of outstanding land claims, treaty negotiations, the implementation of aboriginal and treaty rights.

Canadians are particularly sick of letting the courts do the job that government should be doing. I cite as an example, even in that respect, the Six Nations of the Grand River Band. In 1924, the government at that time declared that the band should have Indian Act elections. The people refused. The people would not participate because since 1793 their relationship was with Governor Simcoe, who provided a patent on the Grand River lands of the Six Nations. So they were operating under the traditional hereditary system. They blocked the council elected under the Indian Act from entering the council house. The government of the day said, enough of these traditional customary elections, you're going to elect your people by the Indian Act, and we're going to set up a band even though you're not structured that way; we believe you should be structured with chief and council and a band as per the Indian Act. So they mandated that. Well, the traditional hereditary people of the first nations refused to allow them in, simply barred them and blocked them.

I certainly believe that the six-month limitation regarding the deposit in the registries is unreasonable. It will probably not be complied with—not, as I say, by virtue of civil disobedience; there may be any number of reasons why a band council cannot or will not comply with these rigid time limitations. I admire Mr. Loubier for being sensitive enough to see the difficulties associated with that narrow timeframe, but I would like to extend that timeframe to 10 years.

Give it 10 years and this whole mess will probably resolve itself. We'll be finished with our amendments by the time 10 years comes around. This government will be finished—the current government of the day and their unreasonable approach to aboriginal issues. There'll be new leadership; there'll be a new prime minister; there'll be a new political party in power. I would think one of the first orders of business that newly elected government of Canada would want to undertake would be to address the 130 years of social tragedy that is Canada's greatest shame and that embarrasses most Canadians, both domestically and on the international stage.

I think some future government may realize that if they don't address aboriginal first nations issues for all the moral and ethical reasons they should address them for, maybe they'll do so for some enlightened self-interest. They may realize eventually that there's no benefit to having a permanent underclass of a million Canadians living in third world conditions instead of participating in the economy and in the prosperity of Canada. There might be a time within 10 years that some government will have an interest in addressing these issues.

This clause again, even though it sounds fairly innocuous, ties us back to clause 30. We're on clause 37, and it says “within six months after the coming into force of section 30”. We have to refer back to what is clause 30, then.

This is all the legalese that would cause a lot of ordinary Canadians to have a difficult time understanding some of our strong objections to seemingly innocuous clauses. Six months versus ten years: until you refer back to what it's making reference to in clause 30, which is the establishment of a national registry “accessible to all people”, and even “during normal business hours”.... We tried to deal with clause 30 two weeks ago now, I believe it was. We tried to have clause 30 amended in substantive ways to take into account privacy issues and access to information laws.

I point out, Mr. Chairman—and this is where I need more time, and I wish I did have more time to deal with this—the exceptions to the Access to Information Act. They saw fit to state that items dealing with intergovernmental affairs are exempt from disclosure. I could cite specifically section 13 of that act, which provides that “the head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained in confidence from... an aboriginal government”unless the aboriginal government makes the information public or consents to its disclosure.

This language seems to be crafted specifically around section 13. Information is protected now under the Access to Information Act, but won't be under this bill. This should have been listed as one of the consequential effects of this particular Bill C-7; if we were being honest about what is the true impact of Bill C-7, we should have been informed about—

Â (1200)

The Chair: Thank you, Mr. Martin.

You say you need more time. You will be getting 10 more minutes—you know that—at closing.

Monsieur Loubier.

[Translation]

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

I'm much less pessimistic than my colleague Mr. Martin, but I'm nevertheless going to support his subamendment to increase that to 10 years. I might have said five years, the time for the trend that was observed in the elections in southwestern Ontario that won another seat for the Conservatives and doubled New Democratic Party membership to be confirmed in a general election. I would have said five years.

In the next election, in Quebec, the Bloc will definitely win more seats than it currently has; that's quite clear. I hope the NDP will do the same in Ontario and in the Maritimes, in particular. I'm going to go with your 10 years, but not based on the same analyses as you. I think that, in five years, even in less than five years, people will be fed up with a government such as this one, which throws oil on the fire and hopes for the best because those people are convinced.

The Liberal government is convinced it will be able to force Bill C-7 down the throats of the First Nations and that they will tow the line, particularly under threats like what we heard this morning with regard to the options that might be available to the government if the First Nations did not agree to comply with the terms of the Governance Act. They could be cut off; that seems quite clear to me. Moreover, that attitude has raised a lot of questions in government, but it's an attitude that we noted from the testimony we heard. We saw the attitude of the Department of Indian and Northern Affairs Canada, which has erected as a kind of institution the possibility of intimidating the First Nations when they don't feel like doing what it wants when it claims to have the right solution.

Pat Martin was right earlier when he talked about third party managers. Moreover, we have begun to do a little research on third party managers. We'll have the opportunity to come back to that at some point, but it's quite interesting to see who the third party managers are, who has quite astounding contracts for the third party management of Indian reserves. It's quite interesting to see who awards those contracts, who receives them and how relations are between those third party managers and the Liberal Party of Canada. We'll have the opportunity to come back to that.

Moreover, Groupaction and all that, sponsorships and third party management contracts, it's all a bit like what we've been able to observe thus far. The awarding of such contracts by the Department of Indian and Northern Affairs Canada somewhat calls the government's ethics into question. But I believe we'll have the opportunity at the appropriate time to speak to the persons most directly involved.

That said, let's come back to Bill C-7. I believe that, as my NDP colleague said earlier, the people of Quebec and Canada have gone much further in their assessment of what our relations should be between governments and the First Nations. In my party alone, scarcely two months ago, the Bloc conference was attended by at least 500 voting party members. All but two voted in favour of continuing the negotiations begun by the governments and the Innu nation in Quebec, negotiations which were presented as negotiations on an equal basis between nations, negotiations in which respect for the dignity and fundamental rights of the First Nations was the very essence of the negotiations and in which, at the outset--and I had the opportunity to meet both the Quebec government negotiator and that of the Aboriginals--the party said they were motivated by the fact that, over the past 20 years, there had been incredible progress in understanding what must preside over our relations between the governments and the First Nations.

The negotiators told me they had taken note of the fact that, first, the First Nations have a right of self-government; it's an inherent, natural and unalienable right. They started off on the basis of this first parameter in continuing the negotiations. Things start off well when you say at the outset what people's rights are. And that one is the inherent right; it will form the basis of all the negotiations and the entire spirit of those negotiations.

Lastly, the question of Aboriginal treaties was examined. Here too there are treaties that must be honoured from generation to generation. We must honour the agreements and treaties that were signed or agreed to on a handshake from the moment the first European boats arrived.

Â (1205)

When you talk about the wampum, it's not nothing. The wampum was precisely what formalized the ordinary agreements between the first Europeans, French or British, and the First Nations. So it was a tentative agreement with the Innu, a tentative agreement between equals, with a genuine Aboriginal government, a proper government, with real powers over a given territory and over a broader territory where Aboriginal activities were carried on, that is to say the Natassinan. To negotiation that draft agreement with the Innu, they were motivated by this new regard we should have in our relations with the First Nations.

The public has gone much further than this colonialist bill before us, Bill C-7. You're right, Mr. Martin, in saying that the public wants matters settled, and settled in a lasting way. It understands that the First Nations are nations which have rights that are recognized by many Supreme Court judgments. They are even recognized in the Canadian Charter of Rights and Freedoms and in the Constitution of Canada. The United Nations has constantly repeated that the first duty of the industrialized countries is to enter into agreements that respect what the First Nations are and what they aspire to as nations.

With respect to Bill C-7, obviously by adding 10 years to his amendment, whereas the initial text read “Within six months after the coming into force of section 30, a band shall deposit each of its by-laws referred to in subsection (1) in its band registry and the national registry established under that section”, could improve matters, but it's only cosmetic; it's only an attempt to at least stretch out the implementation period for clause 37 so that the members of the First Nations don't have to get tangled up in conditions that are completely useless in advancing their cause. Basically, I think we must all agree that, even if we had 10 years, the substance of this bill is so deficient that the only fate we can give it, and I believe the future Prime Minister of Canada, Mr. Paul Martin, understood this--he's not your brother, incidentally, Paul Martin, he's not your brother--is to throw it in the waste basket because it is not a basis, and start over. But it's entirely a matter of starting over. We don't have to start over completely because the work was done in the 1980s and in the 1990s as well, with two reports, the report of the Special Committee and the report of the Royal Commission on Aboriginal Peoples, the Erasmus-Dussault report.

I come back to a situation I referred to earlier on the subject of the Erasmus-Dussault report, which we should draw on heavily. We made some calls to the Office of the Minister of Indian and Northern Affairs Canada. I saw an official earlier who found that funny, but it's not really funny. We called more than once, and they called us back. The first time, we called to request a copy of the Erasmus-Dussault report. That was the minister's political office. They didn't understand what we were requesting. So we requested the report of the Royal Commission on Aboriginal Peoples, and they still didn't understand. It was the supervisor who called back asking exactly what we wanted. We wanted the report of the Royal Commission on Aboriginal Peoples, the report that took five years to write. That report cost millions and millions of dollars.

Â (1210)

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

[English]

Mr. Pat Martin: Mr. Chair, I think my subamendment to change the language in amendment BQ-44 to read “within 10 years after the coming into force of section 30” has merit in that it addresses many of the concerns brought to our attention from the many presentations of the people who invested a great deal of time and energy and resources to review this bill, write their opinions and their views down, and then come to the standing committee and present before the committee. Many of them cited these very things as the major concerns they had about the bill—the very things dealt with within this clause.

We'd be wrong not to listen to them. We'd be wrong not to take into consideration and to accommodate some of the many points of view that were brought to our attention. That was the commitment made to us. I remind the committee members here that the promise—the commitment—made was that we would get this bill at first reading so that we could go out there into the country to find out what people want and what people think, then make substantial changes.

Well, we heard what they think and what they want, yet the government is not listening to those changes. They are still grinding through with the original proposal they drafted themselves without the input and participation of first nations.

We're seeking now to make some of those changes. We're seeking to accurately reflect what we heard out there in the country, and I'm frustrated and even disappointed, frankly, that the government is going back on their word that they would implement what they heard and incorporate it into the bill. That certainly hasn't happened.

Our concern regarding the filing of bylaws and codes, etc., in the band registry and the national registry within six months is that any time you put language in a bill or a contract of any kind, there have to be some repercussions if you fail to comply with the clauses in that bill or law or contract. We don't know what the flip side is going to be. We don't know what the implications are going to be if a band cannot or will not achieve what they're ordered to achieve by this clause within six months.

We have pretty good reason to believe what it's going to be. It's going to be the minister, with the heavy economic hammer he has hanging over the heads of first nations, essentially putting them under trusteeship as a disciplinary measure. We call it third-party management, and it's fundamentally wrong, Mr. Chair.

At least if we extended the timeframes from six months to 10 years, the minister would not be able to use this as an excuse to embark on punitive measures to impose his will on first nations. This seems like a fairly minor thing, a fairly minor violation, but because the penality is not outlined in any detail in the bill—everything else is outlined in minute detail, but it's silent on the issue of penalities—the minister can use the ultimate penalty for a relatively minor offence.

The ultimate penalty is third-party management. If the first nation is acting in a way that irritates the minister on any number of levels and then falls short on this one minor detail, the penalty shall be such that he could accomplish all kinds of secondary goals at the same time, with this blanket punishment that is trusteeship and third-party management. We're trying to address a number of issues with this seemingly innocuous change to this timeframe.

Where we did try to make substantial changes was in clause 30 itself when we moved amendments respecting clause 30 and its idea of the creation of this national registry and the question who shall have access. We didn't succeed in our amendments to clause 30, but we should have, because again it is going to be struck down. This is going to be one of those things that will not survive court challenges.

I refer you again to the government's own Access to Information Review Task Force when it talks about the disclosure limitations regarding sacred sites or traditional subjects. It could be that some of the band bylaws that are created and that will have to be submitted to this national registry, and that will have to be made available to anyone who asks, may be culturally and traditionally sensitive issues regarding sacred sites.

Â (1215)

The government's own directive regarding access to information concerning sacred sites is as follows:

Some access regimes provide specific protection for information the disclosure of which may result in interference with or harm to sites that have heritage value. (29) The 1998 Australian Law Reform Commission report recommends changes to their Archives Act and Freedom of Information Act to protect information which, under indigenous traditions, is confidential or subject to particular disclosure restrictions. The proposed Information Act of the Northern Territory Government also includes exemptions for information about Aboriginal sacred sites or Aboriginal traditions.

No such exemption is contemplated here, Mr. Chairman—even if that bylaw referred to in clause 37 is dealing with sacred sites, history, culture, tradition, art, religion. They all have to be filed with this registry and open and accessible to anyone.

There are secret societies. There are the False Face societies. There are potlatch ceremonies. There are sweat lodge ceremonies that white people are not invited to participate in or have access to.

I see the parliamentary secretary finds that funny. It's not funny to some people. It raises the question, and if there was supposed to be a culture and tradition screen that this bill should have been passed through to test whether it offends religion, culture, heritage, etc., then it should never have passed. This is nowhere in here, in reference to the mandatory requirement that “a band shall deposit each of its by-laws referred to in subsection (1) in its band registry and the national registry established under that section”.

When you go back to what this national registry will look like, it says that “all persons have reasonable access during normal business hours”—not members of the band, not Indians, but all persons. I could walk in and demand to see those things myself. In fact, I could even request a mandate that they photocopy for me a copy that I can carry away with me. We even dictated how much they should charge for that photocopy.

So we've micro-managed every aspect of this registry, except to take into consideration that our own Access to Information Act and other information acts contemplate this dealing with exemptions for aboriginal sacred traditions and information surrounding sacred sites:

A discretionary exemption for information traditionally considered sacred or subject to disclosure requirements would seem to be in keeping with the honour of the Crown.

--again, this is the government's own document, not mine--

The details of such an exemption should be a matter of consultation with aboriginal groups.

Now, there's an idea. What a thought! Some people are taking into consideration the fact that this should have been subject to negotiation with aboriginal groups, not imposed on them by us around this table without their input or participation.

Under “Summary and Conclusions”, the Access to Information Review Task Force of the Canadian federal government said:

A variety of statutory and policy instruments may be utilized to address a number of concerns raised by aboriginal peoples regarding access to information under government control.

Concerns regarding timelines and expenses associated with access under the Act may be addressed by the development or expansion of informal processes.

Concerns regarding the release of information to aboriginal peoples can be dealt with largely through a program of education for those administering the Act, aimed at ensuring an understanding of the special rights of aboriginal peoples and the circumstances where a fiduciary relationship may exist. This education should assist in ensuring that the discretionary exemptions set out in the Act are administered in a manner that respects the special entitlements of aboriginal peoples.

Â (1220)

Good language. This Bill C-7 flies in direct contrast and in direct conflict to that language, because there will be no exemptions contemplated under this national registry. There can't be anything that says we're going to file this information with the national registry, but we don't want it disclosed because it has to do with sacred sites.

The Chair: Thank you, Mr. Martin.

A recorded vote on subamendment 1 to BQ-44 on page 219.

(Amendment negatived: nays 7; yeas 2)

The Chair: On the amendment, Mr. Godfrey.

Mr. John Godfrey: I must say, I'm kind of confused, having heard all that.

I want to know from the officials whether what we're talking about is simply the existing bylaws of any band. Is that what is intended? If they're the existing bylaws, why do we even need six months to photocopy them and have them registered in a national registry?

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): You're right, that does refer to existing bylaws, so it's really strictly an administrative provision requiring that a copy be made and that they be forwarded within that time. I don't think there's any suggestion that there would be anything in a law that would be contrary to the Access to Information Act to disclose, simply because in this country there is no such thing as secret laws. No government in this country can make a secret law and refuse to make that law public.

Mr. John Godfrey: Is there any way in which the bylaws of any aboriginal band government or any other would be the same thing as a sacred site?

Mr. Paul Salembier: No, we don't foresee that.

Go ahead.

Mr. Warren Johnson: We have to be a little careful here. Under Bill C-7 first nations control access to information themselves, access to intervention under their control—that's in paragraph 6(4)(c)—so they have the authority already there. They also have jurisdiction in law-making over culture and language in paragraph 17(1)(c). First nations already have the authority in Bill C-7 to defend and promote culture and language in the implementation of Bill C-7, or other things for protection of sacred sites or whatever. They would have all that authority now.

As my colleague has noted, though, to pass a law, for example, to make a specific sacred site, restrict access to some or all band members, or something like that, it's hard to envision why you would make such a law and then not tell anybody about it. It would be hard to enforce it.

If I could deal with the second part of the question, because this really comes down to the whole question on enforcement, there are no sanctions associated with Bill C-7. The consequences if the first nations did not comply with this provision or any other provision are that they would forgo the benefits of the provision. The committee should be clear that the minister will not have the discretion to intervene except in the very limited circumstances the committee has already dealt with—the conditions outlined in subclause 10(3) of Bill C-7.

A major feature of Bill C-7 then is strengthening the enforcement provisions of band laws. The problem of enforcement of band laws is a universally accepted problem. Bill C-7 does it in three key areas. First of all, the fines and penalties associated with the enforcement of band laws are significantly increased to the level of the norms of other governments, which makes their enforcement more meaningful for the courts and the judicial system.

Secondly, the registration and publication provisions in clause 30 associated with the taking of judicial notice sufficiently strengthen the standing of first nations laws before the court, because that now mirrors the provisions of all other governments. The time between the enactment of a first nation law, however, and its registration should be minimized, because the registration and publication provisions of the bill automatically, once they are registered in public, take care of the taking of judicial notice. But in the intervening period the court would put the onus on the first nation in a trial to prove that it has brought the law to the attention of the individual charged, and that onus is relieved of the first nation as soon as it registers its laws and they're published. This is a major area of benefit to first nations.

You're right, in this case you are not dealing with the new law-making authorities under Bill C-7. What we're dealing with is strengthening the enforcement of the existing Indian Act bylaws. It's just a matter of photostatting them, putting them in a filing cabinet in your band office for your own registry, and sending them in to the national register. That could be done, one would expect, fairly quickly, and the committee may wish to consider whether that period is too short or too long. But the matter of copying the existing bylaw that the first nation wishes to carry into force in order to avail itself of the improved enforcement provisions of Bill C-7 is just a matter of photocopying and sending correspondence to the national registry.

Â (1225)

Mr. John Godfrey: The effect of passing either the amendment or indeed the subamendment for two years or for ten years would in fact have worked against the autonomy of the band, because it would mean they would not be in a position to enforce their own laws until they were actually.... As soon as they are registered, then that's the equivalent of legal notice. Essentially the two amendments have undercut the authority of bands to pass and enforce their own laws, which is one of the purposes of this act.

Mr. Warren Johnson: Just to be clear, they would still have that authority, but they would be missing the benefit for two years of the taking of judicial notice from the national registry in its publication provisions that the committee dealt with in an earlier discussion.

Mr. John Godfrey: So the effect of passing this amendment would be to delay transfer of greater autonomy to Indian bands for two years.

Mr. Warren Johnson: Yes.

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I haven't finished digesting the questions and answers of Mr. Godfrey and Mr. Johnson. I find it quite incredible that they can say such things. We have before us a bill that no one wants. Absolutely no one among the main parties concerned by the implementation of Bill C-7 wants this bill. The government would like the First Nations to meet the timetable set out in the bill, even though they want nothing to do with it and even though the bill fundamentally disgusts them.

The claim is made that, if the time periods were extended, that would deprive the members of the First nations of the bill's benefits, that it would deprive them of the increased powers provided for by the bill. It takes a lot of gall to say such things. Everyone says that there are no benefits to this damned bill. No one wants this damned bill and no one sees any benefits or increased powers in it.

In the opinion of the Canadian Bar Association and the Barreau du Québec, with this bill, you are depriving the First Nations of genuine fundamental rights, and you dare tell us, in a masquerade of successive questions and answers, that, if the measures provided for are not implemented quickly in accordance with the timetable contained in the bill, the First Nations will be deprived of the act's benefit. But what benefits are we talking about? Since the start of the analysis of this bill, we've been asking you what those benefits are, and you have given us damned futile answers or the minister has claimed that the bill will replace the Indian Act. My eye! No one but him is saying that. No serious analyst of this bill claims that that's the case; on the contrary, they say that the two acts will overlap. In addition, this will complicate matters because a number of the clauses of the bill violate the Charter of Rights and Freedoms and even the Constitution of Canada. So who will be deprived of the benefits of the proposed bill? It will take away the benefits of certain jurists and lawyers who will work gathering evidence against the federal government in the various cases that will be added to those already outstanding. The ones who will be deprived of benefits would be the lawyers.

In view of the number of actions that will be brought against the federal government as a result of this bill's passage, one or two classes of people will benefit from the new situation. First there will be the lawyers, who will get rich as a result of the incredible actions that will unfailingly be brought, in the view of the Barreau du Québec and the Canadian Bar Association. Then there may be the third party managers, who will be required to work even more because there will be a monumental mess when this bill is implemented.

I find it very frustrating that matters are presented in that way and especially that there is talk about civil disobedience. For there to be civil disobedience, penalties have to be imposed. There's no civil disobedience when people don't obey the laws because they don't want them and they feel injured. If it were civil disobedience, penalties would be provided for those actions.

But I believe this is more of a trial. An attempt is being made to impose on First Nations a bill they don't want; an attempt is being made to dangle all kinds of benefits which don't exist; the preamble recognizes a number of rights that can't be found in the body of the act, apart from some minor references to the possible implementation of self-government. My eye! This bill does not pave the way to self-government, but rather to a confrontation with the First Nations. The population rises up when it sees people blocking a logging road on the Manouane reserve or the Mercier bridge in Montreal.

I can tell you that the blockade of the Mercier bridge or the Manouane road will seem minor in comparison to what we'll see if this bill is imposed on the First Nations, with all its wording, including clause 37. I heard someone say quite irresponsibly that they wouldn't be able to receive all the benefits or would not receive all the subsidies provided for education, water treatment and other basic needs such as health needs, for example. You have to be careful not to put people off thoughtlessly. People can endure a lot of things, but up to a certain point. The same is true for peoples. They can endure things up to a certain point. The First Nations have been very patient to date. Considering all the hopes that have been dashed on a rock in recent years, I find them very patient and very calm. Many things have been dangled before them, particularly after the extensive work of the Royal Commission on Aboriginal Peoples. That work expanded their horizons in quite an incredible way. The image of a 20-year building period was used in which certain nations could be rebuilt, the First Nations could take their affairs in hand, expedite negotiations on all self-government proposals, redefine a relationship on an equal basis between the Aboriginal peoples and us so that they could regain their dignity and heal the wounds caused by 130 years of the Indian Act.

Â (1230)

But we find ourselves with analytical stupidities such as these. I can't get over it. We've been discussing the bill for 104 or 106 hours. From the start, no one has been able to prove to us that this bill would improve the situation of the First Nations.

If it improved the First Nations' situation so much, don't you think the First Nations would agree to the bill? Are the people of the First Nations deliberately opposing a bill that would improve their situation and promote self-government as if my magic? Think about it for two minutes before saying stupid things like that, saying that the First Nations are fighting a bill that's going to give them incredible benefits and provisions that would deprive the First Nations that want to benefit from greater powers.

Here again, not only the First Nations, but even the representatives we have before us, the jurists who have been working on this question for a long time, have told us that the bill weakens the inherent right of self-government and shamefully biases the negotiations that we should have with the First Nations. We've gotten to the point where we are municipalizing the First Nations, whereas we should be talking about a third order of government, a self-government recognized as such even by the United Nations Organization.

Mr. Chairman, I still believe that this bill is doomed to failure. One of your former colleagues, Mr. Warren Allmand, has repeatedly stated in the past month that this bill is bound to fail because it does not have the consent of the main parties concerned. I'm beginning to believe it, unless we are so blinded and the outgoing prime minister is so arrogant, but so arrogant that he wants to leave a legacy, that he wants to leave his mark. Two years ago, it was with the Millennium Scholarships, and now it's with the new act on Aboriginal peoples.

Unless he's so dense, unless he wants people to know that this new bill, which is supposed to renew relations between the Aboriginal peoples and the federal government, must be passed at all costs because, for him, it's a reproduction of his 1969 White Paper. Unless he's that dense, unless he thinks that it holds the truth, unless he's arrogant, terribly arrogant because he knows perhaps that, in the next election, the Liberal government will still be in place... Please stop being so arrogant with peoples.

At some point, people are fed up with being hit on the head. The same is true for peoples as well. I believe we're overstepping beyond the limits with Bill C-7 and saying all kinds of nonsense, saying that only the chiefs of the Assembly of the First Nations are opposed to this bill.

When we went to Kenora, there weren't 8,000 chiefs of the First Nations, there weren't 8,000 chiefs of the First Nations. Don't go crazy with that! There were ordinary come people there and people who understood why they were opposed to Bill C-7, people who could have given you a number of lessons in democracy, a number of lessons in respect for fundamental rights as well. It wasn't just Matthew Coon Come, who was there; there were ordinary people, there were representatives of the First Nations.

Â (1235)

[English]

Chair: Thank you, Monsieur Loubier.

A recorded vote on amendment BQ-44 page 219.

(Amendment negatived: nays 7; yeas 2)

The Chair: We are now on BQ-45, page 220. Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, by my amendment, I propose to eliminate the reference to the national registry because, on the one hand, we don't see any point in it. If a band council which makes laws or by-laws feels no need to deposit those instruments in the national registry, that doesn't mean it lacks transparency; that means that it's making a decision, as a self-governing band council, as a third order of government, not to deposit those instruments in the national registry. This becomes something fundamental when you take into account the fact that the First Nations are actual nations within the meaning attached to that term by the United Nations Organization and that they have a right to establish governments chosen using traditional or other methods which they can choose to adopt in order to select their governments, that the First Nations may decide on their own on the discussions they may hold, based on their governments, with other governments around the world, that they have a choice--and the question of choice is very important in this respect--to govern themselves as they see fit and to deposit or not to deposit in a national registry the laws or by-laws made by the band which are required to be deposited in a national registry within six months after the coming into force of section 30.

The same problem arose when we discussed the Access to Information Act a little earlier. Mr. Vellacott suggested an amendment to apply the Access to Information Act to all instruments made by a band. That's something that goes beyond our scope, something that would make informed observers say that we're not minding our own business when we require that of band councils, that councils are free to do what they want within the limits of the law, but not within the limits of the administrative framework we're imposing on them in the exercise of powers which do not originate in Bill C-7. That's also true of the spirit of the discussions we've had from the first of the 106 hours of consideration of Bill C-7: either we recognize that the First Nations are genuine nations within the meaning attached to the term by the United Nations Organization, or we don't recognize them. If we recognize them, we can't recognize them one-tenth, one-quarter or half of the way; we must recognize them 100 percent. And if we recognize them 100 percent, that changes the entire dynamic of negotiations and discussions between the federal government and the First Nations, the spirit that should guide us, but of which we find no traces in the wording or context of the presentation of Bill C-7.

After 106 hours--I would like someone to tell me the exact number of hours devoted to consideration of the bill--I can't believe we're still discussing the fact that the Aboriginal nations are nations like any other nation and that they must be respected. The fact of asking them--it seems innocuous enough--to make photocopies and deposit them in a national registry has nothing ordinary or innocuous about it. In a way, it's a reflection of this colonialist spirit in which we ask the First Nations to do this, to do that, to supervise them in this manner, to tell them that, within six months, they have to do this, and that, if they don't do it... It's a kind of punitive approach as one might have adopted with children a few generations ago, when we told them to do something without explaining why and threatening them with a slap on the hand if they didn't do it. That's somewhat how I see the drafting of this bill, the wording such as that of subclause 37(2), which states:

(2) Within six months after the coming into force [...] a band shall deposit [...] in the national registry.

It seems to me that's abrupt, warlike, imposing, colonialist and completely opposed to the approach we should adopt toward the First Nations.

We were prepared for something else. I was surprised when I saw Bill C-7 because I began entering the Aboriginal world last summer at the time of the draft agreement with the four Innu communities of Quebec. I saw how that was done, really on an equal basis and in the context of unpretentious discussions, but discussions which respected the dignity of each of the parties and especially in which there was a concern to recognize the inherent right of self-government.

Seeing what the federal government did with Nisga'a, comparing the path taken with them and the path proposed in Bill C-7, it's as though we were on another planet than the one we're actually on, analyzing the bill for 106 hours now. It's as though there were two worlds: the modern world, reflected by the Nisga'a, and the old world, reflected by Bill C-7, which is a reflection of Mr. Chrétien's 1969 White Paper. It's as though Mr. Chrétien had said: “In 1969, we tried to impose a municipalization of Aboriginal powers on you, to abandon fiduciary authority and to make you swallow whatever we want, and you refused, you even disputed it with me, as Minister of Indian Affairs in 1969, and I didn't accept it. Now, in 2003, I'm going to catch up and, before I retire, I'm going to impose what I wanted to impose on you in 1969.” But a number of years have elapsed between 1969 and 2003. Things have changed, and what we see reflected in the present spirit that should guide us in our relations with the First Nations, what we see in the bill, is really not that. It's completely different, it's another age, another world. It's full of colonialist and utterly backward references. It makes no sense to do things the way we've done them. Moreover, the many witnesses we've consulted, the many briefs that have been filed are clearly on that point.

Let's sum matters up. Most told us that the bill presented problems of legal interpretation, that there could be highly conflicting legal interpretations between Bill C-7, the Indian Act, the Canadian Charter of Rights and Freedoms and even the Constitution. The Barreau du Québec even went further and added certain federal regulatory levels, in particular regulations relating to the Labour Act, first of all.

Second, we were told that, contrary to the spirit of Erasmus-Dussault, we were not in a spirit of mutual respect and thus of nation-to-nation recognition and partnership. That's in the speeches. The political speeches look good, but, in actual fact, with regard to Bill C-7, one doesn't find that spirit, not even in the drafting or the content. One doesn't find a concern for a vast building effort, as the Erasmus-Dussault Commission invited us to make. That's the second observation made by virtually everyone, even those not directly concerned, that is to say those who aren't members of the First Nations. We were warned about those things.

Third, the non-derogation clause is a problem that remains intact. A number of people stated it...

Â (1245)

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard.

[English]

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

I question the motives of some of us as we sit around the table, because in discussing the previous amendment I think it was fairly well explained to all of us the significance of having the band laws registered. I know from my own experience in dealing with chiefs and councils and some of the problems they have that enforcing band laws is a very significant issue for most of them.

In going back to the mover of that subamendment, probably we could ask our expert witnesses to explain a second time the significance of having a band law registered. Maybe, Paul, you could do that again in terms of what we're discussing here today.

We all have to assume, Mr. Chair, that we're going back to the House with the best possible bill, that we're not trying to make situations more difficult for chief and council after legislation has passed, or this simply has to be changed again in the House to make it more significant to meet the approval of our chiefs and councils. I want to go over this again and ask, why are we spending all this time on something that's going to be to the detriment of our first nations peoples?

Maybe, Paul, you could explain the significance of having this national registry, how band laws work, and how chiefs and councils are concerned that the people living in the first nations communities have knowledge of and realize the significance of the band laws that are there.

Â (1250)

Mr. Paul Salembier: Registration in the national registry is meant to assist in the enforceability of bands laws. It's going to be very difficult for a court to take judicial recognition of a band law to which it has no independent access itself, given that the law has not been published. Without the assistance of the national registry and the publication of the laws in it, there would be a danger that first nations would be judicially required to publish all of their own laws in order to have them enforceable in a court.

Keep in mind that when these laws are being enforced they are being enforced in a court of law that is off the reserve. It may be, for example, an Alberta first nation would be enforcing their laws in a court in Calgary. The court would not have ready access to the band law in the band registry and would therefore likely require the band to prove its law before it sought to enforce it. So the purpose of the national registry is in fact to assist bands in the enforcement of their laws in courts of law.

Mr. Charles Hubbard: Mr. Chair, with that I fail to realize why the honourable member has this particular amendment to make matters more difficult for our first nations peoples. It doesn't meet my way of thinking. So perhaps he can explain that when he has his closing remarks.

The Chair: Mr. Martin.

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

I would like an opportunity to speak to Mr. Loubier's amendment. We're not on a subamendment. Mr. Hubbard was calling it a subamendment, but we're on the amendment, are we not? We're on an amendment to this particular clause.

I think what Mr. Hubbard maybe fails to recognize is that there's been resistance and opposition--

The Chair: Mr. Martin, please--the member opposite. Thank you.

Mr. Pat Martin: I'm sorry, we're not naming names here, that's right.

Some members opposite, including the parliamentary secretary, you can only assume from their comments are failing to appreciate the opposition to the whole idea of a national registry, of the mandatory nature of the idea that these things must be deposited in this national registry, and are not realizing there's opposition in regard to even the subject or the details surrounding how that national registry is administered, controlled, and who shall have access to it, etc. There's been a lot of opposition to the whole concept.

So when my colleague from the Bloc seeks to delete any reference to the national registry established under clause 30--and I can't speak for him, but he'll be able to clarify in his own summation remarks--I presume that this is the intention here, that we have no objection to the band depositing each of its bylaws referred to in subclause (1) in its band registry for the access of members of the band to view and peruse and to be familiar with, but there was great opposition to going any further than this across the country. This is not a registry of their making. This is not a registry they asked for, nor was it discussed in any consultation with first nations. It never came up. It's a product of somebody's imagination in Ottawa, to be imposed again upon first nations. They object to it.

Also, frankly, the idea that a law doesn't have real importance until it has this acceptance is failing to recognize the tradition and culture in first nations communities where a great deal of law-making was in fact, until recent times, oral in nature anyway. Just because it's a law that's not registered with the national registry doesn't make it any less or more binding in a first nations community. It's arrogant to assume that it's not meaningful until it's been registered in our Eurocentric view, and catalogued and duly noted in some national registry. This is the same mindset that has plagued negotiations between first nations and Europeans throughout the whole treaty process.

I read an interesting article in the Canadian Bar Review by a Professor Slattery, and he was saying that at times in the treaty process the English parties wrote down some of the treaty terms in a concise written document that the Indian parties would be asked to sign. Such a document has sometimes come to be regarded as the treaty, but this is a mistake. This conclusion is usually unwarranted. In most cases the treaty was the oral agreement, and the written document was just a memorial of that agreement, similar to the status used by belts in the Two Row Wampum, and by belts used by some Indian parties on the prairies as well. Many such documents have proven to be unreliable guides to the oral compacts. So it's a naivety, a misunderstanding and misconception that's plagued us throughout history and continues to plague us now.

The written compacts often record only matters that were of particular interest to the English parties and they omitted certain items of significance to the Indian parties. This has been the argument made by first nations from time immemorial: this document doesn't accurately reflect what we agreed to. They thought they were only signing, in some cases--and I'm not speaking for anyone--a document that was simply a record that an agreement had taken place here, and not the subject of the agreement. So the treaty itself wasn't a finite and absolute list of what was agreed to. It simply took note that on this date, in this place, the two parties made treaty. Even the recorded terms, Professor Slattery goes on to say, may not represent an accurate or balanced account of the true oral bargain.

The written documents were often translated to the Indian parties in a manner allowing ample opportunity for misunderstanding and obfuscation. We certainly see that's the pattern the government continues to enjoy today. In effect, the first nations in many cases did not sell their land. They did not extinguish their title. They did not give up their sovereignty. They did not subjugate themselves to the power and control of the Crown. They didn't do those things. The Crown, Canada, cheated first nations of their title--I'm reading this from the Canadian Bar Association, it isn't my rhetoric here--their rights, their resources, their wealth, their powers, and their sovereignty. The proposed suite of legislation does not even begin to scratch the surface in addressing the continuing injustice.

Â (1255)

The first nations were extremely generous in being willing to share the lands and resources with the white settlers and to live in peace and friendship but under their separate governments. Instead, Canada has committed one of the largest land frauds in history and has stolen the wealth of first nations. Canada unilaterally subjugated free and sovereign first nations to its control.

However, section 91(24) of the Constitution and the Indian Act have no legal standing in international law. What right did Canada have to assert and legislate control over independent and sovereign nations? Where is the logic in this? Again, Professor Slattery of the Canadian Bar Review says:

If first nations were once independent, how did they come to lose this status? To invoke European “discoveries” is to employ ethnocentric criteria that cannot meet neutral standards of justification. Further, to rely simply on conquest or cession ignores the arguments of some Aboriginal groups that they never were conquered by the Crown or voluntarily accepted its authority.

Professor Burrows in the Osgoode Hall Law Journal was even more blunt. He says:

How can lands possessed by Aboriginal peoples for centuriesbe undermined by another nation’s assertion of sovereignty? It does not make sense that one could secure a legal entitlementto land over another merely through raw assertion.

In other words, I say that I own this land. I say I own my family's--

· (1300)

The Chair: Mr. Hubbard, on a point of order.

Mr. Charles Hubbard: Mr. Chairman, should not that document be tabled with our committee when he's reading it at length?

The Chair: It's not a point of order.

Mr. Martin.

Mr. Pat Martin: It's a good point. Actually, I don't mind answering the honourable member's question. The document is tabled with the committee, because it's a presentation by a professor of business at York University who made a presentation to this committee on March 20, 2003. So the honourable member has this document.

In the interests of the merits of Mr. Loubier's amendment, I would like to move a subamendment, in fact, that I believe will be of help. The subamendment is that in subclause 37(2), line 9, we change the word “shall” to “may”.

I'd be happy to speak to the amendment if given the opportunity.

The Chair: The subamendment is not acceptable because the amendment refers to lines 11 and 12 and the subamendment makes reference to a line other than that.

Therefore, Monsieur Loubier, closing remarks.

Mr. Pat Martin: Mr. Chair, if you don't like that subamendment, I have others.

Do I not have one minute left in my speech?

The Chair: As soon as you move your subamendment, you cut your time. You put an end to your time. I've applied that in the past. I think Monsieur Loubier is smiling. It affected him one time too.

Monsieur Loubier, closing remarks.

[Translation]

Mr. Yvan Loubier: Those are things that happen; it happened to me earlier. We're nevertheless going to take the time to explain our views in a more constant manner. I'm really surprised at your testimony. It was Professor Fred Lazar, wasn't it, who...?

[English]

Mr. Pat Martin: Professor Fred Lazar.

[Translation]

Mr. Yvan Loubier: That's it. I'm surprised because I was just thinking of that presentation, for the parliamentary secretary's benefit. That's symptomatic of what happens here around the table. You refer to passages from testimony given here, and the parliamentary secretary asks you to table the document because he finds it interesting, whereas the brief has already been filed here. So that, to a certain degree, shows the lack of responsibility of this government, of the parliamentary secretary in particular, who asks that a brief that has already been presented to us here and which he finds interesting should be refiled. Perhaps if all the briefs that were filed with the committee were refilled before him, we'd have a better chance of being understood. That also says one thing, and that is that, contrary to what we've done, we who have read all the briefs that were presented here, on the government side, the parliamentary secretary himself hasn't read the briefs. He was quite surprised at Professor Lazar's conclusions and analysis, whereas the brief has already been filed. It's quite something.

Should all the briefs that have already been filed be filed with the parliamentary secretary so that he can understand what's been going on here for several months? I'm astounded at that request. He probably made it with goodwill, but it proves one thing, and that is that there's a lack of serious effort in the work of evaluating Bill C-7 around this table. I was surprised from the start of debate on the clauses, but now I'm doubly surprised because, when the parliamentary secretary told us a little earlier that there were some briefs in favour of Bill C-7, he was talking through his hat. He hasn't read a single one, and he's asking us to refile Professor Lazar's. It's a bit disturbing to see someone who has a position like that of the parliamentary secretary surprised at Fred Lazar's testimony, when he should be aware that Professor Lazar has already appeared here before us. His brief is available, so available that everyone refers to it because they find his analysis makes sense.

I have an explanation to give of my amendment. I thought I had mentioned it earlier, but I believe the parliamentary secretary didn't understand it. The argument is this. Either you recognize that the Aboriginal nations are nations in the sense intended by the United Nations Organization, which itself has recognized that the First Nations constitute nations within the UN's meaning, and, in that case, you give the First Nations the leeway to define their own methods of governance, to define their own ways of proceeding and to decide whether or not they're going to deposit their laws and by-laws in a national registry...

To come back to what Mr. Martin was saying a moment ago, a national registry is an idea of men in white suits. What's the point of that national registry? It doesn't mean there'll be a lack of transparency on the First Nations' part. The First Nations would deposit their laws and by-laws in a band registry. That band registry could be accessible to anyone who could consult the laws and by-laws made by the band.

Why this obligation to deposit that in a national registry within six months? Is it out of a concern to preserve records or because they want to scrutinize the by-laws made by the bands and to see, from the national registry, whether there are grounds to counter certain decisions that have been made by them? It may be that. Then what requires a sovereign government to deposit by-laws made by a band in a national registry? By what right would we be empowered to require band councils to deposit by-laws in a national registry within six months, one year or two years?

· (1305)

If such a registry existed, perhaps band councils could decide on a voluntary and independent basis to deposit their by-laws in it. But by what right do we require them to deposit their instruments in a national registry within six months? The question isn't whether or not to deposit. I was listening to the ridiculous comments a moment ago when we were talking about photocopies. Frankly, we're not talking about photocopies; we're debating on a higher level than that. It's not the matter of producing those documents and depositing them in a national registry that poses a problem, but the fact that we are requiring the First Nations to do so.

So, on the one hand, in the preamble, which in the view of the Canadian Bar Association and the Barreau du Québec, does not even carry interpretive weight, it should be noted in passing, the act talks about recognition of the inherent right of self-government. That looks so good. It's like in the Throne speeches. In all the Throne speeches, there is always this reference to the right of self-government. We're talking about Aboriginals here and Aboriginals there, but when it comes to taking real action, there's quite a difference.

The wording of this clause, which talks about an obligation to deposit documents in a national registry, irritates me, and I believe it also irritates the First Nations, which, on the one hand, are being told in the preamble that they have a right of self-government, that we're going to comply with their treaties and that all will be well in the best of all worlds, whereas, on the other hand, we come up with a bill which, from clause 1 to 37, contains exactly the same whiff of colonialism. It's hard for the federal government to get rid of that whiff of colonialism. Even in the drafting of the bills, you find it. So that was the sense of my amendment.

A moment ago, the parliamentary secretary commented on the usefulness of our work and on the fact that he clearly sees where we're headed, on the fact that we're obstructing. Here we're simply the spokesmen of the people, who have told us, on the non-Aboriginal and Aboriginal sides, that no one wanted this bill. We are the loudspeaker of the majority, and when we say majority, we also mean the vast majority of the witnesses who appeared before us. And because the members of the First Nations, because of the Constitution and the way our parliamentary institutions operate, cannot even be around the table to debate the bill with us, whereas it's a bill that concerns them directly--they are the ones concerned by the bill--we're trying modestly to convey their opposition. It's quite modest because no one is in a better position than a member of a First Nation to come and defend the First Nations; that's entirely logical.

So this is a chance for them to count on us because, in the process, first, the Minister of Indian Affairs has told us that he consulted. When we consult the members of the First Nations, we learn that they weren't consulted at all.

You tabled Bill C-7 on first reading and we can then always try to move amendments and even to move that the bill be redrafted; that's impossible. In proceeding that way, the minister and his inner circle know that we wouldn't be able to go backward, that we wouldn't be able to take the bill and amend it from top to bottom, to amend its spirit. They knew that we would only be able to make a few cosmetic amendments, as have been made by the government side from the start of consideration of the bill. They knew perfectly well that the bill would remain fundamentally unchanged. It is a dictatorial method of operation to have tabled it on first reading, saying: “Now have fun.” We've had fun, of course. We've conducted consultations. We've received 191 briefs utterly opposed to this bill, while nine were in favour of it, and now we're passing the bill almost in toto.

· (1310)

[English]

The Chair: Thank you, Mr. Loubier.

We will have a recorded vote on amendment BQ-45, page 220.

(Amendment negatived: nays 7; yeas 2)

The Chair: We are now on amendment G-15, page 221.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, on a point of order, I'd like to stand that amendment until later today.

Some hon. members: Agreed.

The Chair: The amendment is allowed to stand, three votes to two. That is my way of saying if you don't put up your hand I won't count you.

Amendment G-15 stands, therefore clause 37 stands.

(Clause 37 allowed to stand)

(On clause 38—Continuation of Existing Councils)

The Chair:There is no debate when there are no amendments. There are? I'm sorry.

Mr. Martin, on clause 38.

Mr. Pat Martin: Mr. Chairman, I don't believe clause 38 should carry, and I'd like to explain why. And that's why I think it's important that it's allowed we have this opportunity to debate each clause as it goes on.

Subclause 38(1) is the clause that deals with the continuation of existing councils. It reads:

The persons who are the members of the council of a band immediately before the coming into force of its leadership selection code shall be the members of its council from that date until the end of their existing terms of office or until their successors take office pursuant to the code, whichever is later.

The purpose of the NDP opposing clause 38.... There is actually a subclause 38(2), which I'll also read:

The persons who are the members of the council of a band immediately before the day on which the regulations on leadership selection begin to apply to the band shall be the members of its council from that day until the end of their existing terms of office or until their successors take office pursuant to those regulations, whichever is later.

We oppose the idea that this bill seeks to impose leadership selection codes in general, Mr. Chairman. We take strong exception to subclauses 38(1) and (2) because they deal directly and specifically with and they contemplate and grow out of and stem from the idea that leadership selection codes may be imposed by the default mechanisms of this act.

It may be that a band and council has an existing leadership selection code that they will simply have ratified and implemented, or acknowledged and registered, as their leadership selection code. It may be that they do not and it may be that the federal government under this bill shall impose a new leadership selection code on members.

The reason I read to you, Mr. Chairman, what happened in 1924 with the Six Nations of the Grand River is because the language we now have, this very specific, prescriptive language in subclauses 38(1) and (2), is there specifically to preclude this gesture of the independence demonstrated by the Six Nations of the Grand River in 1924. Here we have clearly contemplating and outlining what shall happen from the time the new leadership selection code is imposed until such time as the rules of that new selection code take effect and come into effect.

We're critical of that, and we're critical of many, many aspects of this act that impose the default codes on first nations, because essentially we have no right. We have no more right to dictate the leadership selection codes of first nations than we had a right to assert sovereignty over somebody else's land.

I was explaining Professor Burrows' point from the Osgoode Hall Law Journal in 1999—fairly recently—when he said “How can land possessed by aboriginal peoples for centuries be undermined by another nation's assertion of sovereignty?” If another nation simply says that we're going to assert sovereignty over land in Ireland, it doesn't automatically give us the right to do that. Apparently that's okay here.

Chief Justice Marshall of the United States Supreme Court once observed that

It is an extravagant and absurd idea. It is even less of a morally and politically defensible position when this assertion has not been a neutral and noble statement, but has benefited the Crown to the detriment of the land’s original inhabitants. The contemporary reliance on assertions of sovereignty seems to perpetuate the historical injustice suffered by aboriginal peoples at the hands of the colonizers who failed to respect the distinctive cultures of pre-existing societies.

That's the wording of Chief Justice Marshall of the United States Supreme Court.

When we talk about colonizers we get accused of using unnecessarily romantic language. The minister himself says he doesn't know what “colonizer” means. He doesn't accept the words “sovereignty” and “colonizers” in the context of this debate about aboriginal people. Other people do use that language. Better minds, I would argue, than even those of us around this table use the words “colonizers” and “sovereignty” in their analysis of the history of North American aboriginal people.

· (1315)

To back up a little bit, Mr. Chairman, I have to start by saying that the objective of this legislation we're reviewing today was supposed to facilitate the move toward self-government for first nations and to provide the foundation for economic prosperity for first nations. I've argued all along that the legislation will achieve neither. In fact I suggested the legislation is simply the latest manifestation of the government's real goal of paternalistic assimilation. This is why we object to and reject clause 38, subclauses (1) and (2). In fact we will vote against clause 38 when we have the opportunity. We intend to vote against this clause when the time comes to cast our ballot, and we don't mind a recorded vote for all to see that we oppose it.

I draw some history and background from the Buffalo Law Review, where a Richard Bartlett, writing in the Buffalo Law Review 25 years ago, stated, “The ultimate goal of assimilation received explicit declaration in the Civilization of Indian Tribes Act of 1857.”

It was extended in the 1969 white paper, produced under the auspices of the current Prime Minister. It was very clear on the government’s objectives at the time, and the present suite of legislation, although it does not use the same language as the white paper, has the same goals. There is a very good reason for this, as we shall explain as we go on into the night and into tomorrow, I'm sure. We'll have an opportunity to explain the comparisons here.

The white paper presented to Parliament more than 30 years ago declared that total assimilation must occur within a short, swift period of time. All legislation specifically pertaining to Indians was to be repealed, thereby denying any special rights to aboriginal people in deference to their unique status in Canadian society. In fact it sought to do away with recognition of their uniqueness.

All services were to be provided by the provinces. The white paper rejected treaties and land claims as insignificant in the debate on the future of Indians. The 1969 policy did not contain any major positive suggestions regarding the well-being of Indians, which is in complete contradiction of the fiduciary obligation, of course, that the minister has to act in the best interests of aboriginal people. Its essence was the severing of all ties between Indians and the federal government.

Today Ottawa is attempting to lay the blame for poor economic conditions of first nations on the lack of good governance practices, the absence of real democracy and accountability. As I pointed out before, Ottawa doesn't seem to express similar concerns about many of its colleagues at the United Nations. Democracy and accountability are not high on Ottawa’s agenda in dealing with these colleagues.

You can look at two reasons for this. First, Ottawa cannot control other countries, but it believes it has the right to control all the affairs of first nations. The Indian Act has been the principal means for exerting control and supposedly for legitimizing the right to control. The proposed legislation would only continue the unilateral and unjustified control.

Secondly, Ottawa wants first nations to be accountable for spending Canada’s money. But why should first nations be subject to a higher standard of accountability than the government itself?

· (1320)

The belief that this is Canada’s money is wrong. And this is what I wanted to lead into, Mr. Chairman. Since we've seen you last, we've done some number crunching on what the accountability and transparency issues--

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

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

I agree with my NDP colleague. The wording is as detestable as that of the first 37 clauses in that it does not respect the approach that must preside over our relations with the First Nations in the twenty-first century. Giving instructions such as these attests to the reflex we have developed toward the First Nations over the 130 years during which the Indian Act has been in effect, during which we have subjugated them. We feel we have a divine mission to tell them how to conduct their affairs and how to exercise their self-government or sovereignty.

The report of the Royal Commission on Aboriginal Peoples did not prepare us for this kind of normative framework to be imposed on the First Nations; we were prepared for something truly different. It appears that the Department of Indian Affairs has already forgotten that report, and some are reconsidering the subject. If only to give you an idea of the spirit that should have guided us in developing this bill, I believe it's worth the trouble to cite certain passages from that report:

To see how treaties can be used in the modern context, Canadians need to understand them better. In brief, the historical treaties are:

Promises exchanged between the governments of France, Britain and Canada, and the Aboriginal peoples.

To secure peace or alliance with Aboriginal nations, or gain occupancy and development rights on Aboriginal land, the Crowns of France, Britain and, later, Canada promised Aboriginal peoples protection, benefits and shares of wealth - in perpetuity. Those promises now rest with the governments of Canada.

To date, as regards the wealth in perpetuity, it's more the contrary we've experienced. The wealth that initially belonged to the First Nations on the ground, under the ground and in the sea was taken away.

There is a considerable discrepancy between this report and the wording of this bill, which contains certain prescriptions. Earlier we were talking about nation-to-nation agreements. The reports states: “Treaties are not admissions of defeat or submission.” That's very important. I continue:

Treaties are not admissions of defeat or submission. Parties to a treaty do not give up nationhood or their own ways of living, working and governing themselves.

That's also very important.

Why would the First Nations be subject to Bill C-7, to the goodwill of the Governor in Council and the minister, and why would they accept prescriptions such as those in clause 38, when they have never abandoned their national identity or their ability to govern themselves under any treaties? By what right are we subjugating them today? I continue:

Rather, they acknowledge their shared wish to live in peace and harmony, agree on rules of coexistence, then work to fulfill their commitments to one another.

None of the many treaties entered into between the First Nations and the Europeans stated that the First Nations had abandoned their ability to determine their own destinies or to stand as true nations as that term is used by the United Nations Organization. It was never said anywhere that all the Aboriginal lands would be ceded and that the federal government would one day find itself with a bill like Bill C-7. Nowhere was it stated that, 130 years ago, an act would be used to park the First Nations on reserves and to deprive them of the resources and lands they had governed before the Europeans arrived. That's not written in those treaties or in those agreements. We should be pleased that the Royal Commission on Aboriginal Peoples reviewed the deeper meaning of past relations. Today, in 2003, they should be favourably reflected in what we're doing. I'm not talking about this crazy reflection that is Bill C-7. That isn't the historical rendez-vous to which we're summoned.

What did compliance with commitments made under treaties mean? They were sacred and permanent commitments. At the outset, if the First Nations had had a crystal ball and had been able to look into the future, they could have seen the whole deception that would characterize the decades following the agreements entered into with the Europeans, particularly the Indian Act.

· (1325)

In my opinion, they shouldn't have entered into agreements with the first Europeans. I believe they wouldn't have tried to live in harmony and peace either. But they were promised so many good things: peace, serenity and sharing of the land. So they agreed to share the land in order to take its natural resources.

However, the Europeans and their descendants got into some truly detestable colonialist habits. That wasn't anticipated by the sacred and permanent agreements entered into between the First Nations and the Europeans. Today we should comply with those agreements because time has not erased them.

In fact, all those treaties and the spirit of those treaties were blended into the Constitution Act, 1982, in the Canadian Charter of Rights and Freedoms. That undoubtedly represented something in the country's development. And yet, today, when we consider Bill C-7, and the adoption of clause 38, which I'm going to oppose, one would think that everything's been forgotten or, and this is also a possibility--that people are led by ignorance. That's what my father said, and he unfortunately died years ago; he said one day that people were led by ignorance and, the next day, that people were led by money. One would hope that money and ignorance don't necessarily go together.

We have in a way wiped the slate clean of all that. We've forgotten where our relations with the First Nations began and how they should continue. I believe they should continue in the same spirit that prevailed when the first Europeans arrived, that is to say that there should be a peaceful coexistence, a partnership, a shared and respectful use of the land and a sharing of wealth.

The spirit of the wampums and treaties entered into with the Europeans was one of increasing sharing of wealth as that wealth increased. The idea was not for the Aboriginal peoples to cede wealth and lands or to humiliate themselves by subjecting themselves to a Crown. That must not be the spirit of our relations. I therefore propose that we go back to better provisions.

In my opinion, the smartest idea this government could have would be to let this bill die on the Order Paper. If I were in its position, that's what I would do. I would wait for a new era. I never thought I'd be speaking in favour of Paul Martin in my political life, but I think that, when you can't do the work, you should let others do it.

Mr. Chrétien is working on his second attempt since 1969, and it's not working. I think he should let others take his place. Don't let yourselves get dragged into as frivolous a venture as Bill C-7; set it aside. The cards are being shuffled; Nault needs Martin's support. Nault says that Martin supports his bill. Robert Nault, the Minister of Indian Affairs, told The Gazette that Paul Martin supported Bill C-7. That came after the Kenora demonstration, where 8,000 representatives of the First Nations took to the streets in his own electoral district. He's probably beginning to feel a bit uncomfortable. But you don't have to die politically along with him. Stand up and wait for the next prime minister. You don't have to do that. But what does Robert Nault represent for you? Someone who dares say publicly that Paul Martin is behind his bill and that he supports him?

It's incredible! During the debates, three times rather than one...

· (1330)

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard.

[English]

Mr. Charles Hubbard: Thanks, Mr. Chair.

It's quite evident that we're just involved with mischief in terms of the last two speakers. It's the only thing I can see from this. I would be reluctant to rely upon something that my poor dead father said, but we're even resorting to that type of conclusion in terms of looking at clause 38.

I'm surprised that the two members opposite would not want to have orderly government among our first nations peoples.

Mr. Pat Martin: Orderly government by your design.

Mr. Charles Hubbard: Clause 38 simply says, in terms of this new council being elected under a particular code that the band would create, that the existing council would maintain direction for the band until a new council came to be in place.

Why the honourable members want to create turmoil--I guess you'd have to call it turmoil--I don't know. It's only mischief that I can define that they're actually doing in terms of talking about clause 38.

Perhaps our expert witnesses can again mention for the record what clause 38 states in terms of how orderly government should proceed for all people on first nations.

· (1335)

Mr. Paul Salembier: Clause 38, as you mention, simply provides for an orderly transition of government. Without this and without this bill, the default is not self-government or inherent right to self-government. The default, if this bill doesn't go through, is that first nations will stay under the Indian Act, with all the restrictive powers and all of the rules that are presently in place under the Indian Act.

I think it's something of a fallacy to think there are not rules that already govern leadership selection within first nations and the functioning of band councils. There are very restrictive rules in place now. In fact, what this bill does is give first nations the option to move away from those rules and to create their own processes.

So again, I think that's something we don't want to lose sight of, the fact that the option to this bill is not self-government; the option to this bill is a very restrictive Indian Act government.

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

The Chair: Thank you, Mr. Hubbard.

Now we will vote on clause 38.

(Clause 38 agreed to on division)

(On clause 39--Review mechanism)

The Chair: Amendment CA-50 has been withdrawn.

Is there any debate on clause 39? I'll go to the vote on clause 39.

Mr. Pat Martin: That's not debated.

The Chair: I asked and I waited. You'll have to respond when I do this.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I have something to say on clause 39, and I apologize if I didn't speak up quickly enough. I assumed we were moving on to the next amendment.

If clause 39, Mr. Chairman, passes without comment, we would be wrong to not speak to this “Review mechanism” that says: “The council of a band shall make a law in conformity with section 11 within two years after the coming into force of that section.” So we have to review clause 11 in order to explain our opposition to this.

Under clause 11, “The council of a band shall, by band law,”--there's that prescriptive language, 'shall' again--“authorize an impartial person, or an impartial body established under section 18, to consider fairly and expeditiously any complaint by a member of the band or a resident of the reserve (a) alleging a breach of a code by the council or an employee of the band; or (b) contesting any decision made against that member or resident, by the council or an employee of the band, in the exercise of a discretionary power.”

Subclause 11(2) is:

A band law referred to in subsection (1) shall confer on the authorized person or body the power, after considering a complaint, to

(a) determine whether the alleged breach of a code occurred and, if so, order the council or employee to take any measures necessary to rectify that breach; or

(b) order the council or the employee to reconsider their decision.

Subclause 11(3) says that:

A determination under this section shall be provided in writing to the complainant and to every party whose act or omission is being complained of.

Again, subclause 11(4) under “Conflict of interest” says:

A person or a member of a body authorized under subsection (1) who has a financial, familial or personal conflict of interest in relation to any complaint may not consider the complaint.

Under subclause 11(5):

A band law referred to in subsection (1) does not apply in respect of any decision from which a code provides a right of appeal.

It's the complaints and redress segment of the legislation, Mr. Chairman, which came up a number of times. Various presenters to the committee had their ideas or their visions of what the office of some sort of an independent third party arbitrator might look like. There was a great deal of debate surrounding whether it should be some kind of a national ombudsman, or regional ombudsman, or individual band council ombudsman.

The points made need to be made here, too, because we're contemplating implementing the law in conformity with clause 11. Clause 11 then warrants comment. Clause 39 ties us back to clause 11.

I don't think there was broad consensus. I don't think we heard adequate input or adequate debate surrounding clause 11 to begin with. I think all of the opposition parties sought to introduce measures under clause 11 that more accurately reflected what we heard and what first nations were asking for regarding complaints, and the dealing of complaints and redress under complaints.

It's funny that some of the points that were made pointed out quite accurately that even though the bill is incredibly specific in some senses, it's very vague and general in others. This is one of those practical applications where we don't see concrete language as to what would be the powers of this complaints and redress mechanism, body, person, the impartial person or impartial body established under clause 18.

Tying clause 39 now to clause 11 ties us up to clause 18, as we weave our way through this, the micromanagement of first nations.

In clause 18:

The council of a band may make laws in relation to

(a) the establishment of bodies, their composition, powers and duties and their relationship to the band;

(b) the delegation to any person or body of any of the council's powers under this Act or the Indian Act, other than its powers under this section;

(d) conflicts of interest of members of the council and employees of the band;

So the reference from clause 11 to clause 18 I presume is dealing with the “council of a band may establish bodies”, up to and including a body that may be the impartial body that's established to hear the complaints and redress mechanism.

· (1340)

The authority to hear those complaints is established by clause 11 and confirmed in its reference in clause 39. We don't know the powers of the arbitrator or the arbitration board, if that's what it is to be called. Normally that's made abundantly clear.

In labour legislation, for instance, the powers of the arbitrator are listed and clearly defined. Usually they can't allow for penalties greater than what is asked for in the remedy sought by the grievor. So if the grievor says “I want my job back and $1,000 in back pay”, the arbitrator can't say “Here's your job back and $5,000 in back pay”. You're limited.

There's no such language limiting what the redress officers or the council appointee shall be able to rule in a case like this. That's worrisome. It's worrisome that we wonder just what this body will look like, where it sits geographically, what the practicality is of having individual impartial persons. How do you find an impartial person in a band or a community of 100 people, where people are obviously related to one another, and if not related to one another, certainly have strong connections and strong ties to one another?

The inadequacy of it all is what's glaring, Mr. Chairman. When we have clause 39 looking for a review mechanism in conformity with clause 11, within two years again after the coming in force of that clause, I'm surprised, frankly, there wasn't amendment made to clause 39 regarding the two years. In fact, I would like to move an amendment now, Mr. Chairman, if that's allowed.

· (1345)

The Chair: We cannot move amendments at this point.

Mr. Pat Martin: That's too bad. I would have liked to have been able to amend this, as it's opened now. My understanding was it was open for debate, and it was also open for amendment.

The Chair: Mr. Martin, you don't have to believe me, but I really would like to accommodate you.

Mr. Pat Martin: Really? I believe you. I have no reason not to believe you, Mr. Chairman. It's hard to believe.

I'm not as surprised by that as I am surprised that the minister is throwing his support behind Paul Martin. That's what really surprises me. In the Montreal Gazette of May 24 I learn now that the Minister of Indian Affairs is throwing his support behind Paul Martin in the leadership race, and Mr. Martin is the one who has told us that he won't implement any sections of this bill. That surprises me even more than the goodwill expressed by the chair.

Mr. Chairman, I was explaining some of the things that we've been doing in the week we had off, and we've been doing some pretty careful analysis on number crunching as it pertains to Indian moneys, Mr. Chairman. One of the things that shocked me is the annual shortfall in the payment of annuities.

Mr. Chairman, a $10 billion or $15 billion per year underpayment of annuities under the treaties to first nations is a shocking amount of money, since the total money spent on first nations is approximately $7 billion. There's a shortfall of $10 billion to $15 billion underpayment of annuities under the treaties. The annual shortfall in the payment of these annuities exceeds the total amount generated from property taxes imposed by the first nations during the past 13 years combined. So annually the shortfall exceeds the total accumulated acquisition of revenues or property taxes of all--

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: It's a good idea to come back to clause 11. Clause 39 reads as follows:

39. The council of a band shall make a law in conformity with section 11 within two years after the coming into force of that section.

We very clearly cannot accept clause 39, since we reject clause 11. Moreover, we've tried by every means to force through amendments which could have made clause 11 more acceptable for most of the witnesses who appeared before us or who filed briefs opposing Bill C-7. It would be desirable for each of the committee members around the table to read, if not all the briefs, at least the summary prepared by the research officers of the Library of Parliament. It is quite surprising to see the content of each of the briefs. That way, the parliamentary secretary might gain a better understanding of our arguments and amendments than the one he has displayed from the started of the debate.

In particular, let's consider the testimony of Mr. John Whyte, a professor and researcher at the Saskatchewan Institute of Public Policy of the University of Regina.

[...] the First Nations Governance Act's redress mechanisms and its financial accountability mechanisms seem, in a sense, designed to fail. Those measures do not reflect the independent dispute resolution mechanisms that could ensure greater accountability.

You should have taken note of those comments, as well as those of other witnesses. For example, Mr. Doug Dokis said: “An independent institution and a position of ombudsman should be created, as proposed in the Royal Commission's report.” He, an ordinary citizen, knew of the existence of the report of the Royal Commission on Aboriginal Peoples, unlike Robert Nault's political staff. He also said: “That institution should keep the registry of Aboriginal statutes and provide for appeal mechanisms”, which is a quite intelligent suggestion.

Let's also see what the British Columbia Office of the Assembly of First Nations said about clause 11 when it filed its brief in Nanaimo:

Clause 11 requires the bands to create an “ombudsman” position. In the case of certain First Nations, this structure might not adequately reflect their methods for settling disputes in accordance with their customs. For small communities, it could be very difficult to comply with the provisions on conflict of interest. In some cases, it could be practically impossible to designate an ombudsman who has no family or other tie with the persons involved in the dispute, but who knows the community and its values. To comply with this provision as it is currently worded, it might be necessary for a First Nation to seek an arbitrator outside the community, which would not be consistent with the principle of self-government.

The British Columbia Office of the Assembly of First Nations added that the application of that provision could be very costly. The Confederacy of Mainland Mi'kmaq made the same type of comment when it filed its brief at meeting 51 in Halifax:

The objective of a community redress mechanism is to maintain harmony within the communities through non-antagonistic dispute settlement mechanisms. This essentially involves the principle on which the governance of First Nations has always been based. However, the requirements set out in Bill C-7 give rise to an antagonistic legal dispute settlement system in which the conditions are much stricter than those of all other Canadian government institutions.

They recommended rejecting it and replacing it with a mechanism more respectful of traditions and of what the First Nations are.

Bradford Morse, a professor at the Faculty of Law at the University of Ottawa, also denounced clause 11, in addition to all the other clauses for their legal irregularity, saying:

The bill attempts to innovate, among other things, through the requirement in subclause 11(1) that the First Nations create a method for resolving complaints alleging the contravention of the three codes that will be established.

In my view, however, this provision must be reviewed. It is mandatory, which is deplorable and pointless. The First Nations Governance Bill can easily confirm the inherent authority of the First Nations in order to establish impartial entities to receive complaints of that kind and make decisions without imposing them as an obligation for First Nations.

That comment by Professor Morse is consistent with respect for the First Nations' right of self-government. Consequently, the First Nations have a right to choose what is good for them and what is not. We have a duty to refuse the imposition of things coming from another order of government.

· (1350)

We could have continued, Mr. Chairman. I remember what the Native Council of Alberta told us about clause 11 in Slave Lake. It recommended that clause 11 be deleted along with related parts of clause 18 of Bill C-7. It suggested instead that an independent office be established and headed up by the Aboriginal ombudsman and represented in each of the five regions of Canada. You see that the idea is not to oppose for the sake of opposing. People are proposing something instructive. That office should be modeled on the Office of the Auditor General.

I think that's a good suggestion. It's constructive and it relies on Aboriginal expertise. It relies on an auditor or auditors or ombudsmen who know the culture of the First Nations and can make decisions in cass or conflicts of interest, as stated in clause 11 and again in clause 39.

Mr. Chairman, I'm a bit discouraged. Instead of that, we're still hearing the same old refrain. We say we're respecting Aboriginal rights and, at the same time, we abuse Aboriginal rights. How can we do one thing and its opposite? We need only draft Bill C-7! The bill does one thing and its opposite. We'll probably encounter the same problems in analyzing Bills C-6 and C-19. It's quite odd to see, on the one hand, in the wording, respect for the First Nations right to self-government and, on the other hand, in the same text, sufficiently restrictive requirements and standards to anger any defender of Aboriginal rights and freedoms and self-government. So I'm going to vote against clause 39.

I would like to know whether we are coming to the question period, Mr. Chairman.

· (1355)

[English]

The Chair: Oui.

We'll now vote on clause 39.

(Clause 39 agreed to on division)

(On clause 40--Deficit recovery)

The Chair: Clause 40, amendment G-16.

Mr. Charles Hubbard: Mr. Chair, if I can make a motion, I request to stand that amendment until a later date.

The Chair: We have a motion to stand amendment G-16.

(Amendment allowed to stand)

The Chair: We are now adjourned until 3:15 in Room 237-C. Thank you.