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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Tuesday, January 28, 2003

1535

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

Chief Dwight Dorey (National Chief, Congress of Aboriginal Peoples)

1540

1545

1550

The Chair

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

Chief Dwight Dorey

Mr. Brian Pallister

1555

Chief Dwight Dorey

Mr. Brian Pallister

Chief Dwight Dorey

Mr. Brian Pallister

Chief Dwight Dorey

1600

Mr. Brian Pallister

The Chair

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

Chief Dwight Dorey

1605

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

1610

Chief Dwight Dorey

Mr. Pat Martin

Chief Dwight Dorey

Mr. Pat Martin

Chief Dwight Dorey

Mr. Pat Martin

Chief Dwight Dorey

Mr. Pat Martin

Chief Dwight Dorey

Mr. Pat Martin

Chief Dwight Dorey

Mr. Pat Martin

1615

The Chair

Chief Dwight Dorey

Mr. Pat Martin

The Chair

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

Chief Dwight Dorey

Mr. John Godfrey

Chief Dwight Dorey

Mr. Patrick Brazeau (Coordinator, Governance Legislative Initiative Secretariat, Congress of Aboriginal Peoples)

1620

Mr. John Godfrey

Mr. Patrick Brazeau

Mr. John Godfrey

Mr. Patrick Brazeau

Chief Dwight Dorey

Mr. John Godfrey

The Chair

Mr. Brian Pallister

Chief Dwight Dorey

Mr. Brian Pallister

Chief Dwight Dorey

Mr. Brian Pallister

Chief Dwight Dorey

1625

Mr. Brian Pallister

The Chair

Mr. Rick Laliberte (Churchill River, Lib.)

The Chair

Chief Dwight Dorey

1630

The Chair

Mr. Pat Martin

Chief Dwight Dorey

Mr. Pat Martin

Chief Dwight Dorey

1635

Mr. Pat Martin

The Chair

Mr. Brent St. Denis (Algoma—Manitoulin, Lib.)

Chief Dwight Dorey

Mr. Patrick Brazeau

1640

Chief Dwight Dorey

The Chair

Mr. Brian Pallister

The Chair

Mr. Brian Pallister

Chief Dwight Dorey

Mr. Brian Pallister

Chief Dwight Dorey

The Chair

Mr. Brian Pallister

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

1645

Chief Dwight Dorey

Mr. Charles Hubbard

Chief Dwight Dorey

Mr. Charles Hubbard

Chief Dwight Dorey

Mr. Charles Hubbard

Chief Dwight Dorey

Mr. Charles Hubbard

Chief Dwight Dorey

The Chair

Mr. John Godfrey

1650

Chief Dwight Dorey

Mr. John Godfrey

Chief Dwight Dorey

Mr. John Godfrey

The Chair

Mr. David Chatters (Athabasca, Canadian Alliance)

Chief Dwight Dorey

The Chair

Chief Dwight Dorey

The Chair

Chief Dwight Dorey

1655

The Chair

Chief Dwight Dorey

The Chair

1700

The Chair

Mr. Jean-Pierre Kingsley (Chief Electoral Officer, Elections Canada)

1705

1710

The Chair

Mr. Brian Pallister

The Chair

Mr. Brian Pallister

Mr. Jean-Pierre Kingsley

1715

Mr. Brian Pallister

Mr. Jean-Pierre Kingsley

Mr. Brian Pallister

The Chair

Mr. Yvan Loubier

Mr. Jean-Pierre Kingsley

1720

Mr. Yvan Loubier

Mr. Jean-Pierre Kingsley

Mr. Yvan Loubier

The Chair

Mr. John Godfrey

Mr. Jean-Pierre Kingsley

Mr. John Godfrey

1725

Mr. Jean-Pierre Kingsley

Mr. John Godfrey

Mr. Jean-Pierre Kingsley

The Chair

Mr. David Chatters

Mr. Jean-Pierre Kingsley

Mr. David Chatters

Mr. Jean-Pierre Kingsley

1730

Mr. David Chatters

The Chair

Mr. Brent St. Denis

Mr. Jean-Pierre Kingsley

Mr. Brent St. Denis

Mr. Jean-Pierre Kingsley

1735

The Chair

Mr. Brian Pallister

Mr. Jean-Pierre Kingsley

Mr. Brian Pallister

Mr. Jean-Pierre Kingsley

Mr. Brian Pallister

Mr. Jean-Pierre Kingsley

Mr. Brian Pallister

The Chair

Mr. John Godfrey

1740

Mr. Jean-Pierre Kingsley

Mr. John Godfrey

The Chair

Mr. Jean-Pierre Kingsley

The Chair

1745

The Chair

Ms. Mary Gusella (Chief Commissioner, Canadian Human Rights Commission)

1750

Mr. Kelly Russ (Commissioner, Canadian Human Rights Commission)

1755

Ms. Mary Gusella

The Chair

Mr. Brian Pallister

Ms. Mary Gusella

1800

Mr. Brian Pallister

Ms. Mary Gusella

The Chair

Mr. John Godfrey

1805

Ms. Mary Gusella

Mr. John Godfrey

Ms. Mary Gusella

The Chair

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

1810

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

The Chair

Mr. John Godfrey

Ms. Mary Gusella

1815

Mr. John Godfrey

Ms. Mary Gusella

Mr. Kelly Russ

Mr. John Godfrey

Mr. Kelly Russ

Ms. Mary Gusella

Mr. John Godfrey

The Chair

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Mr. Robert Ward (Acting Secretary General, Canadian Human Rights Commission)

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Robert Ward

Mr. Brian Pallister

1820

Mr. Robert Ward

Mr. Brian Pallister

Mr. Robert Ward

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

Mr. Brian Pallister

Ms. Mary Gusella

The Chair

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

1825

Ms. Mary Gusella

The Chair

Ms. Mary Gusella

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 016

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, January 28, 2003

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

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

We are resuming our public hearings on Bill C-7, an act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other acts.

We welcome today from the Congress of Aboriginal Peoples, the national chief, Chief Dwight Dorey; the vice-chief, Chief Frank Palmater; and the coordinator, Governance Legislative Initiative Secretariat, Congress of Aboriginal Peoples, Patrick Brazeau.

We will invite you to make a presentation, after which there will be a series of questions. Depending on the time we have, if we determine it's a four-minute round, that means four minutes for the question and for the answer. Sometimes some of our colleagues consume most of the time and you end up being the loser. A good trick is to bootleg the remainder of your response in the next question no matter who it comes from. You will have an opportunity for closing remarks.

So, Chief Dorey, I welcome you to our committee and I await with anticipation the sharing of your expertise. I invite you now to make your presentation.

Chief Dwight Dorey (National Chief, Congress of Aboriginal Peoples): Thank you, Mr. Chairman and members of the standing committee. I thank you for the opportunity to speak to you on the proposed First Nations Governance Act.

With me is Mr. Palmater, vice-chief of the congress, and Patrick Brazeau, who coordinates the work on the first nations governance file that is undertaken by us and our affiliate organizations across Canada.

The Congress of Aboriginal Peoples is a national organization made up of provincial and territorial organizations. Membership is open to persons of aboriginal ancestry who are Métis and Indians living away from reserves in cities, towns, and rural areas across Canada.

A common view of Indian peoples is that they are all registered under the Indian Act, live on reserves, and enjoy the benefits of the Indian Act. The reality is that of a total of now 1,300,000 or so persons in Canada of aboriginal ancestry, only 29% live on reserves. Of those, in the total number who are registered Indians, over half live away from reserves. These are among the conditions we are mandated to address, that is, to represent the interests of the forgotten people.

CAP's mandate is twofold: to advance the social, cultural, and economic well-being of the off-reserve Indian and Métis segments of the aboriginal population, and secondly, to advocate a just recognition of their aboriginal rights.

I am firmly of the view that in order to fulfil our mandate we must develop a new political power sharing arrangement with government, an arrangement that includes us as equals in the making of decisions that impact our lives; an arrangement that is not based on assimilation and control but on accommodation and consociation; an arrangement, in a nutshell, that emphasizes mutual rather than unilateral dependence, sharing rather than taking and controlling.

Our participation in the governance initiative is very much influenced by these thoughts. We see the inclusion of off-reserve status Indians in the band governance process as a small but necessary and important step toward achieving a new approach to aboriginal affairs in Canada based on political power sharing.

Copies of our information kits have been distributed to you. They contain useful information about the Congress of Aboriginal Peoples, programs and projects in which we are involved, data on off-reserve constituents, and milestones of our 30-year history.

Following phase one consultations, Minister Nault established the Joint Ministerial Advisory Committee in November 2001 to provide a report including recommendations for the minister to consider for proposing amendments. The JMAC completed its work in March 2002 and tabled its final report to the minister. The Congress of Aboriginal Peoples appeared before the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources on March 19, 2002, giving a brief history of our organization, the individuals we represent, the programs and initiatives we are working toward, the partnerships we were establishing with various government departments, and statistics on the aboriginal reality in Canada, as well as an in-depth overview of our participation in the first nations governance initiative consultative consultations.

All of this information can be found in your kits.

On June 14, 2002, Bill C-61 was introduced in the House of Commons and referred to this committee prior to second reading. Now we stand before you today to discuss our remaining issues with the proposed bill, which has been reinstated as Bill C-7.

Taking what we learned in phase one consultations and having participated in the Joint Ministerial Advisory Committee, let us now focus on the recommendations we offer this committee for your consideration.

Number one, there is a clear lack of a non-derogation clause in the proposed bill. Minister Nault instructed the JMAC members that this legislation was not to infringe upon aboriginal and treaty rights. The advice that JMAC offered the minister in this regard was to include a non-derogation clause and that this would be the only way to achieve the objectives sought by the minister, with which we concur.

We recommend that a non-derogation clause, specifically, the non-derogation option 6 recommended by JMAC, be included in the bill. This option can be found in your kits in appendix 1.

Recommendation 2 deals with the differential treatment of bands in the First Nations Governance Act in terms of their having access to custom as a means of selecting their leaders. The FNGA allows only those bands currently operating under customary selection to continue this practice. The current INAC policy allows section 74 election bands to convert or revert to customary methods of leadership selection. Election regimes were historically used to promote assimilation and to replace the customary methods.

We therefore recommend that the window of opportunity for section 74 election bands remain, to convert to customary methods of selecting their leaders with the approval of both on- and off-reserve members.

Recommendation 3 deals with the balancing issue of on- and off-reserve members, which has not been resolved in the proposed act. In the Corbiere decision, the court stated that bands may balance the different interests of on- and off-reserve members when it comes to voting. The First Nations Governance Act does not indicate how to balance these rights, nor does it lay out any criteria.

The Corbiere decision was not very enlightening in this regard, but it did state the following:

What is necessary is a system that recognizes non-residents' important place in the band community.... However, without violating s. 15(1), the voting regime cannot, as it presently does, completely deny non-resident band members participation in the electoral system of representation. Nor can that participation be minimal, insignificant or merely token.

We recommend that more direction be given to bands in allowing or disallowing the off-reserve members' right to vote. A system is needed where both on- and off-reserve members will decide upon how to effectively balance these rights to limit future charter challenges.

Recommendation 4 deals with the wide powers of the minister in intervening in band affairs with respect to potential financial difficulties of a band. Another fundamental principle on which the minister instructed the JMAC was that he wanted his role and that of the governor in council diminished. Subclause 10(3) of the First Nations Governance Act gives the minister great discretionary powers to intervene in band affairs if he considers it necessary when carrying out an assessment of the band's financial position.

Currently, INAC's policy requires: one, the preparation of a remedial management plan; two, an appointment of co-managers; and three, an appointment of third-party managers. The courts may very well conclude that the wide power of the minister, without definable limits, is inconsistent with section 35 of the Constitution.

CAP therefore recommends that the discretionary powers of the minister in the First Nations Governance Act be clearly defined, and that money subject to interference not include treaty entitlements, which are protected by section 35 of the Constitution.

Recommendation 5 deals with how the First Nations Governance Act confers broad search and seizure powers. Under this act a band enforcement officer can enter anyplace, anytime, carry out any inspection, and copy and remove any document. There is no requirement of a probable suspicion.

Section 8 of the charter states that searches must be reasonable and reasonable searches must be warranted.

In these circumstances, the officer's powers arise for the purpose of verifying compliance with a band law. There is no requirement that the band officer have any suspicion that a band law is being violated, let alone have a reasonable or probable suspicion.

It is our view that the search and seizure powers are far too broad and could be subject to abuse. CAP therefore recommends that further consultations take place with respect to amending the bylaw-making powers, including the search and seizure powers, because of the potential charter challenges they may entail.

¹ (1540)

Recommendation number 6. There is a clear lack of an independent institution to perform various tasks previously held by the minister and governor in council.

The notion of an independent institution carrying out various tasks facilitating governance practices has been one that aboriginal peoples have been striving for but with no success. It is a notion that aboriginal peoples see as a vehicle promoting good governance and limiting interference from INAC in their internal affairs.

JMAC recommended that the minister establish an independent institution to carry out the activities the minister held under the Indian Act in order to diminish his role as much as possible given the current mandate.

The Royal Commission on Aboriginal Peoples recommended that the federal government, in cooperation with national aboriginal organizations, establish an aboriginal institution.

If the intent of the department and the minister is to implement this legislation as an interim step leading towards self-government, then it is imperative that an independent institution be created to achieve these goals.

Furthermore, an office of an ombudsperson is also needed to perform the duties of hearing complaints from band members against band councils. This is especially needed for the off-reserve members who have too often been treated differently and in discriminatory ways by their band councils. The ombudsperson would offer band members an effective and inexpensive recourse against unfair decisions or discriminatory actions by band councils.

To this day the only recourse against these types of actions is to appear before the courts, and the clear downfall to this process for aboriginal people is that it is time consuming, expensive, and has proved to be ineffective because of the lack of knowledge of many courts of aboriginal law and aboriginal issues.

CAP recommends the creation of an independent institution with an office of an ombudsperson, as recommended by the JMAC, RCAP, and other aboriginal organizations in the past, to perform the duties of facilitating, implementing, and effectively achieving good governance practices.

These are the recommendations we offer this committee for your review and consideration to effect positive changes.

How does the Congress of Aboriginal Peoples view this bill?

It is certainly not our preferred approach to the many issues brought upon us by the Indian Act, but the reality is that this piece of legislation is the only option on the table at the moment, and when given the opportunity to participate in such reform, we must address the needs of our constituents and fully participate. Otherwise we wouldn't be doing ourselves any justice, which we have been organized to do over the past 30 years.

The political and social reality affecting aboriginal people in this country is based by and large on the Indian Act and the reserve system. Programs and services are aimed at the reserve communities. Aboriginal rights do not stem from reserve communities, and this bill affects on-reserve members of bands as well as those off reserve.

Aboriginal peoples in this country are the only citizens who do not have mobility rights. This means that once an aboriginal person leaves the reserve community, this person basically loses most rights of being an aboriginal person.

A question we often ask ourselves is why we are continuously being exposed to outdated colonial ways of thinking and oppressed by federal legislation in the twenty-first century. But this broader issue is not part of the minister's mandate at this time, and we as an organization and as peoples understand that.

However, we believe it's worth mentioning, and important to note, that issues such as membership and citizenship, nation recognition, potential models of self-government in urban settings, and new band creation, amongst others, should become the government's priorities in the coming years for reform in order to give tangible meaning to section 35 of the Constitution. After all, it is simply a question of fairness.

We have offered this committee recommendations for your review and consideration in the hope that you will make some positive changes to the proposed bill.

We have outlined problems and shortcomings within certain sections of the proposed bill with respect to future potential charter challenges that can be avoided by the power this committee has in effecting change.

¹ (1545)

As the Chief Justice of the Supreme Court of Canada once stated, “let us face it, we are all here to stay”. It is precisely those words that our organization believes in.

The only way to effect positive change in this country, for all aboriginal peoples, is to work in partnership with government departments and other Canadians. In order for our people to benefit, we at the Congress of Aboriginal Peoples must participate and contribute. We will continue doing so in the years to come to work toward our common purpose.

Before closing, I want to briefly refer to a book that is in the package that has been handed out. In fact, this is the graduate research essay I wrote about ten years ago for my master's at Carleton. It is a book. I'm a Mi'kmaq first nations person from Nova Scotia, and this is about self-government. I only want to point to the fact that when you have time to look at it, near the back of the book is a proposed constitution for the Mi'kmaq first nations that I wrote at that time.

Of significance is section 3 on citizenship. It's about the fifth page in, at the last part of the book. I want to point out that this was ten years ago. What I was talking about then was that the criteria for Mi'kmaq citizenship should include parentage, location of birth, length of residence, self-identification, adoption, affiliation, and community acceptance.

I was also proposing at the time that the human rights statutes of Canada should apply to the aboriginal or Indian population. Furthermore, there should be an office of an ombudsperson to deal with citizenship or related issues.

What we are proposing should really be taken into serious consideration in these things is not something new. We have been focusing on these kinds of issues for quite some time.

With that, I would like to thank you for your time and also invite you to ask any questions in the hope that we will be able to respond.

¹ (1550)

The Chair: Thank you very much for an excellent presentation through the information provided both verbally and in documents. We can see that you take a keen interest in the betterment of lives of our first nations. We appreciate your help in doing the same thing for them.

The first round will be a seven-minute round. Therefore, the official opposition will have nine minutes.

Mr. Pallister.

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

Thank you very much, National Chief, for an excellent presentation. I am pleased to tell you that many of the positions you're speaking toward in your presentation are shared very strongly. Many of the concerns you've expressed are also shared by the official opposition.

I'm particularly pleased to finally hear someone reference the very broad powers that are proposed to be given to enforcement officers under this legislation. It's a concern that many first nations people, whether on reserve or off reserve, have expressed to members, my colleagues, or to myself, in meetings that we've had across the country.

We also have concerns about things like the training requirements, the standards that may or may not be applied and so on, and the consistency with which rules might be enforced. I'm wondering what options you would propose or what alternative mechanism for delivering the enforcement provisions you might propose. You've already expressed concerns about the broad nature of the powers that the act proposes to give.

Chief Dwight Dorey: We were looking at a number of options. Of course, it goes with my comment regarding our involvement in the process. If we see change happening and we need to address the kinds of points you're bringing out, then obviously we have to be part of the process. It is the reason we involved ourselves in the governance process that we're discussing here.

There are certain options that we perceive to be open to us. The regulations are going to be one area. Whatever comes out of this legislation, there's obviously going to be a process for establishing new regulations. We would expect and anticipate being part of the process that is going to be dealing with the regulations.

In addition to that, of course, as we propose here, assuming that not all of our concerns are going to be addressed and inevitably there will be issues raised, then there are going to be things like the institution that we're talking about or the ombudsperson that will play a key role in responding to individuals' needs in the future when concerns arise.

Mr. Brian Pallister: Fair enough. The difficulty, of course, for all of us is we don't know what the default mechanisms are now. We're working in the dark in that respect. We don't know what those regulations will be. We're trying to address the bill as it's proposed to us here, and that bill does extend very broad powers of search and seizure, very broad powers in terms of warrantless search and so on. These are our concerns. Again, I would repeat, I am pleased to see that you're sharing in those concerns. I would encourage further dialogue between us on this issue. I know we don't have that time today.

I want to move, though, to a second concern you've expressed. I'd like to say we share this concern about the nature of this ombudsman. The bill proposes a redress office. Essentially, a chief-appointed redress officer, we think, has some fundamental flaws to it, just in the nature of that proposal.

Chief Dwight Dorey: So do we.

Mr. Brian Pallister: The Canadian Alliance has proposed for a long time the idea of a national ombudsman, similar to what you and others have advanced, RCAP as well, and we believe there is greater potential to protect the rights of individual aboriginal people and families through that mechanism than through what is proposed here.

In fact, when I spoke about this proposal to some of the chiefs who were sharing information with the minister the other day, they laughed at it. They don't believe they should be put in the position of having to appoint their own “mini-me” ombudsman.

So what other mechanism would you propose that might better serve the interests of aboriginal people and their redress requirements?

¹ (1555)

Chief Dwight Dorey: Through our consultations the focus was really on the ombudsperson. There was fairly strong support for that independent person to respond.

Mr. Brian Pallister: Truly arm's length, in other words.

Chief Dwight Dorey: That's right.

Mr. Brian Pallister: In your thesis document that you referred to you called on the government to restore full protection to all aboriginal Canadians...the Canadian Human Rights Act, and so on. We share the concern that this is not the proposal in this bill now. We see this as a really important oversight that the proposal has unfortunately missed.

Would you like to elaborate, National Chief, on your concerns about the importance of human rights for aboriginal Canadians?

Chief Dwight Dorey: Certainly. For the 30 years the congress has been in operation--it was previously called the Native Council of Canada--it has been primarily addressing the discriminatory issues relative to aboriginal people: off reserve, status, non-status, and Métis.

I could use myself as an example. I introduced myself as being a Mi'kmaq, and I am, but I'm of mixed blood. I was 45 years old before I was formally recognized as being an Indian person in this country. It was only through the changes in the act, under Bill C-31 back in 1985, that this came about. My mother was in her early seventies, and the same applied to her.

It's basically these kinds of issues. As a result of just that one piece of legislation, we were denied so many services and benefits that we would have been entitled to. In addition to that, we suffered discrimination from both sides. The non-aboriginal community considered us Indians and we were discriminated against. The registered Indian community considered us to be non-Indian, because we were, we were not registered, and we suffered from those discriminations.

These are the kinds of things that are really fundamental in this kind of change in legislation. It's important that the people who are on the outside, the off-reserve band members, have due process and a say in the affairs that are going to impact upon them.

As I said at the outset, this is not a perfect solution--it's not even close to it--but it's the best thing we have right now. I'm suggesting that there's room for some fine tuning of it, that there should be some more changes. And I will jump back to that ombudsperson as an example of where we are looking for greater certainty that the interests of these forgotten people I talked about are going to be protected.

º (1600)

Mr. Brian Pallister: Those were very good comments, sir. Thank you for making them.

I think you're right when you say there's room for fine tuning. There's a lot of room for fine tuning, and I think your proposals and comments here are very worthwhile. I thank you for bringing them forward.

I share your concern. In my consultations with aboriginal people across Canada I found a great sort of dichotomy, because off-reserve aboriginal people have love and respect for the reserve communities, but at the same time want the protections of human rights that other Canadians take for granted. It is not in a disrespectful sense that they ask for those protections, and yet too often it is taken as an either/or situation when such is not really justifiably the case.

Thank you again for your presentation, sir.

[Translation]

The Chair: Mr. Loubier, you have seven minutes.

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

I just have a comment and a question for our guests. First of all, I understand that you represent the native population living off reserve. I understand this distinction very well but when I heard you make your presentation and your recommendations, there's something else that struck me, as compared to the Assembly of First Nations, for example. You accept to take Bill C-7, to determine that it's a basis that's all right in your opinion, a basis for new legislation on government and you're suggesting amendments to improve it. That is really a huge difference from what we heard this morning from Mr. Coon Come from the Assembly of First Nations.

After our tour, which is going to last about a month, in other words four weeks travel plus meetings with groups like yours, we'll have to make recommendations to the government.

How can we find a constant line between the Assembly of First Nations and a position from the Congress of Aboriginals? One says it's not a good basis for negotiation, that we should take this bill, tear it up and throw into the wastebasket and start all over on bases that are more respectful of aboriginals, while you're saying that it is a reasonable basis and that you can propose amendments. We have some problems deciding when we hear such diametrically opposed views.

[English]

Chief Dwight Dorey: I would like to first clarify one thing. My organization's number one option is to dismantle the Indian Act, just do away with the whole thing. The royal commission recommended that. It was tried before and it was predominantly the Indian Act chiefs who adamantly rejected it.

The second option is to fix it, if you can. I see this as a first attempt at fixing it. In my opinion, we would not be here even discussing this had Mr. Corbiere not gone to the Supreme Court on the issue of the off-reserve Indians' right and entitlement to have a say in the band affairs. That's the first step.

I don't support the position the Assembly of First Nations or their chiefs are taking in that respect. Whether or not we believe in our inherent right to self-government as a sovereign type of government--I spoke to that in my thesis, and as a Mi'kmaq person I firmly believe in our inherent right to self-government--the reality is we are under the authority of Parliament with the Indian Act.

Our own people brought this issue to our court system. It went to the highest court, which said there was a problem with this act, struck out seven words, and said to Parliament and the people, “Now you have two years to deal with this”. I'm saying that's what we have to do. That's the first issue.

I've had many discussions with Minister Nault on this. My representative on the JMAC reported constantly to me on the debate and discussion that was going on. If you have to change one aspect of it, such as for the first time allowing off-reserve band members a say in the daily operation of their band and the decisions that will impact upon them, which could be disposing of band lands, trust funds, or whatever, it is going to have an impact on them. It's not like amending a dog bylaw, putting in place a dog bylaw, or changing the speed zone on the reserve. We're talking about things that can impact upon their lives, and they have a right to have a say in that.

At the same time there have been clear attempts, and successful attempts in the past--I hear it constantly from our people across the country--to deny those people the basic benefits and rights they hold as first nations persons. Not only should these people have a say in the affairs of the band, they also have a right to be informed of these decisions and other things.

I believe this self-governance legislation goes to that extent. That's where some of the issues of accountability come in. That's the main area of difference between my group and the chiefs, the Assembly of First Nations. They don't want to change it. They believe in their so-called right of governance, and they don't have to account to anybody if they don't want to. That's their authority, that's their jurisdiction, however you want to put it.

On the other hand, we say you have to be accountable to your own people, and if you haven't been in the past, then we want to make sure you are going to be forced to in the future. It's just a matter of putting it in law. We don't necessarily want to be involved in this kind of process. As I said at the outset, we'd much prefer the Indian Act.... It's just too old, archaic, and still discriminatory.

º (1605)

My children are entitled to be registered as Indians, but my brothers and sisters can't. It's the kind of discrimination that still goes on.

The reality is that we have this legislation. We have to fix some of the serious problems with it. I believe, and the people who belong to my organization believe, that we are suddenly being given an opportunity. They have been denied their entitlements for so many years to not only access benefits and services, but also to even have a say about these things. We're saying let's go ahead and fix it.

The Chair: Thank you very much.

Mr. Martin.

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

I have heard from a number of aboriginal leaders across the country, including my home province of Manitoba, who make the very serious allegation that Minister Nault has used a very heavy-handed approach in trying to garner support for Bill C-7 by rewarding some groups to take part in the consultation and to play along, if you will, and actually financially punishing other groups if they won't cooperate.

Your group received approximately $2 million to conduct consultations across the country, with one trip to Europe. Is that correct? Did it come out of that. No?

Chief Dwight Dorey: Where did I go?

Mr. Pat Martin: I don't know. My information is that you were travelling across Canada and went, at least once, to Europe to promote the bill. If you say you didn't go to Europe, that's fine.

How do you answer criticism when the legitimate, elected leadership of first nations boycotts the process?

Today we heard from your national chief, Grand Chief Matthew Coon Come, that they don't want to even talk about Bill C-7. It doesn't need to be amended, it needs to be scrapped.

What do you say to the allegations that CAP represents very few actual status people and wouldn't even fit into the same standards that Bill C-7 seeks to impose on first nations? Isn't your own political structure far looser than that and doesn't fit into the same formula?

How do you answer that you're being used as a puppet for Nault to give legitimacy to Bill C-7?

º (1610)

Chief Dwight Dorey: That's a very good question. First of all, if you look at the latest census data that came out, the aboriginal population in Canada is growing and is fairly large. It also clearly shows that 51% of the registered Indian population in this country live away from reserves.

Mr. Pat Martin: Are they members of your organization? Are they actually about to join and giving you the mandate to speak for them?

Corbiere says the people who speak for them are the first nations they belong to.

Chief Dwight Dorey: Every citizen of the country is not a supporter of the Prime Minister, but he is the Prime Minister of the country.

Mr. Pat Martin: It's like when the Canadian Taxpayers Federation says I'm a member of the Canadian Taxpayers Federation because I pay taxes. I don't belong to it actually.

Chief Dwight Dorey: If as the leader of an organization that for 30 years has been representing, speaking for, and advocating on behalf of the Indian people off-reserve in this country, such as we did, I was instrumental in getting--

Mr. Pat Martin: You missed the Métis in your membership as well.

Chief Dwight Dorey: Do you mind if I answer your question? It might take a little bit of time.

For 30 years we have been advocating on behalf of the interests of the off-reserve people, whether they're status, non-status, or Métis. We were successful in our role by participating in the changes in legislation, i.e. Bill C-31 and others.

I'm saying that the interests of the off-reserve person are clearly addressed in this legislation. I reiterate my earlier point. This process was brought about by a Supreme Court decision in Corbiere. It clearly had an impact on the off-reserve registered Indians.

I talked about my personal situation. A large percentage of the people who belong to or associate with the Congress of Aboriginal Peoples and our provincial affiliates are people who lost their status and regained it, or never had it and got it back. They've never had the opportunity, even if they wanted, to move back to the reserve community. In many cases they didn't want to. They spent their lives living away from there and had no reason to go back.

I argue that the Assembly of First Nations does not provide any services to those people, nor do they in effect represent them in terms of any position they might take. It is this organization, the Congress of Aboriginal Peoples--it was the Native Council of Canada previously--that has been advocating for these people for 30 years and continues to do so. It is the voice of our people that was involved in the extensive consultations on this bill and the legislation we're discussing here now.

That's my message here. That's all it is. I have a constituency.

Mr. Pat Martin: Okay, I think you've made your point. I understand you and I accept your point.

Let me ask you specifically about the non-derogation clause. It's been my concern that recent pieces of legislation have had diminished non-derogation clauses. They've played with the language in the Land Management Act, etc., recently.

Were you aware that the Senate aboriginal affairs committee is now putting together an omnibus bill to eliminate all non-derogation clauses from all pieces of legislation dealing with aboriginal issues? It is seeking to eliminate them all by the passage of one Senate bill.

Chief Dwight Dorey: No, I'm not aware of that. I'm in fact quite surprised to learn of it.

Mr. Pat Martin: I think it's adding fuel to the fear or the apprehension that there is a deliberate, systematic approach here to try to diminish aboriginal or treaty rights.

Chief Dwight Dorey: I suspect that's going to lead to a further backlog in the court system, right up to the Supreme Court. I mean, the whole object is for greater certainty--we need that.

Mr. Pat Martin: As far as the minister's powers, authority, it's our reading of Bill C-7 that it actually enhances the minister's authority and powers. This would be in contrast to the JMAC recommendation.

Are you satisfied that Bill C-7 actually does reduce and diminish the minister's authority, or are you of the view, as some other critics are, that Bill C-7 will actually augment the minister's unilateral authority?

º (1615)

The Chair: Very briefly.

Chief Dwight Dorey: Yes. My view is that, generally speaking, it diminishes his authority. But there are a couple of areas, as I've pointed out, where there may be a question, and we even raised this as well.

If I might just jump back, my adviser here tells me that apparently a part of the Senate committee work that you've talked about was the eventual removing of the non-derogation clause. I guess what my advisers stated was that if it is to be removed in the future, that it be replaced with equivalent measures, such as inclusion, in the interpretation acts. So it's one or the other. We need clarity on these kinds of things, and that's the reason.

Mr. Pat Martin: The deemed clause rather than....

The Chair: Mr. Godfrey.

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

We've had pre-study and now we're into this bill, and the committee has two challenges. One is trying to understand how we can advance the process in a respectful way that enhances the legitimacy of our work. The other, if we can solve that problem, is to figure out what to do about this particular piece of legislation. By participating in JMAC you have made your case that you think it's best to take what you've got in hand and try to improve it.

I guess my question would be, having taken part in JMAC, which was a group appointed by the minister himself, so it was not elected in any way, but that's fine, there were people of quality there.... You list six particular points. Do you consider any of them a deal breaker, that is to say, if we don't do a minimum number of them--and I'd like to know which ones they are--that you would withdraw your support for Bill C-7? Or would you still allow us to go ahead with Bill C-7 even if we don't get a single one because it may be better than nothing?

Chief Dwight Dorey: Might I suggest that I would cross that bridge when I came to it? In my position I would be obligated to consult with some of my people before giving a definitive answer on that.

Mr. John Godfrey: In terms of the importance to the organization and to yourselves, is the hierarchy you present them in--that is, one through six--a reflection of the most important to the least important? Would you like to tell us which are the absolutely most important, the ones you'd personally or collectively have the greatest issues with? Could you tell us your top three or your top two?

Chief Dwight Dorey: I might refer to Patrick here because he's been coordinating the process of consultations and preparing the report, and he would have the information on priority listings.

Mr. Patrick Brazeau (Coordinator, Governance Legislative Initiative Secretariat, Congress of Aboriginal Peoples): Thank you for your question.

Actually, the way these recommendations are outlined is in no particular order. If we want to stress some importance on any one of these, for sure, it's the lack of a non-derogation clause, just to put some emphasis on the whole process of the bill. Some organizations out there are saying the process is flawed. If there was an inclusion of a non-derogation clause, it would make the process a whole lot better, in hindsight.

Of course, as an organization, the whole issue of balancing the on-reserve and off-reserve members is of primordial importance to us. As the First Nations Governance Act now stands, they don't lay out any criteria for bands to strike that balance, and that might interfere with the constitutionally protected rights of the off-reserve members.

Lastly, the whole accountability is of course, as Chief Dorey mentioned a while ago, of primordial importance.

º (1620)

Mr. John Godfrey: Which specific point are you referring to as your last point?

Mr. Patrick Brazeau: The accountability measures, which are imposed in the First Nations Governance Act, are important, especially to the off-reserve members.

Historically, and even the current practice now is, if an off-reserve member requests a copy of a band budget or copies of bylaws, they are often turned down and they do not have access to that kind of information.

Mr. John Godfrey: So the third one is actually something that is in the bill, and if it were taken out you'd be upset, rather than it being a change that you wish to have made. Is that what you're saying, for the third point, on the accountability measure? It's not one of your six points. It's one of the things that does exist in the current draft, and if we touched it that would be a problem.

Mr. Patrick Brazeau: That would be fair to say, yes.

Chief Dwight Dorey: I think he was relating to the balancing power, though.

Mr. John Godfrey: Well, he mentioned that specifically as his second point.

I just want to make sure it's not one of your six points, but in fact it's something that is there and if it were touched it would be problematic.

Do I have you correctly, Mr. Brazeau?

Mr. Patrick Brazeau: Right, yes.

Mr. John Godfrey: Okay, thank you.

The Chair: The second round will be a five-minute round.

Mr. Pallister.

Mr. Brian Pallister: Thanks, Mr. Chairman.

I'll go back to the idea of an independent institution. Are you proposing, for clarification, that there would be a double layer of address mechanisms in terms of redress officers? Each band would have their own and then there'd also be an ombudsman office. Or are you proposing, as is our position, that there be a national ombudsman office established?

Chief Dwight Dorey: We're proposing a national quasi-independent ombudsman. If every band wants to have their own in addition, that's fine.

Mr. Brian Pallister: Right. We're very concerned that the resources that might go into such an attempt to create the appearance of real redress would be better used in creating a meaningful ombudsman function.

Chief Dwight Dorey: And consistency as well.

Mr. Brian Pallister: That's good to hear.

Obviously, independence of that officer is so critical, and it's so difficult for the leaders of many small bands to potentially have an ombudsman who would be distant from them in any real way.

I have a band in my community where there are about 80 to 90 adults, all from the same extended family. It would be almost impossible to achieve that model there.

If the government proceeds the way they're proposing to do, our concern is that once these bureaucratic structures are established, whether it be 600 separate codes, 600 separate enforcement mechanisms, and 600 separate redress officers...I asked the minister this yesterday. He said, well, bands can cooperate if they want to. Well, yes, there are many instances where bands cooperate, but the problem is the complexity of the role that chiefs and councils have to play. One of their chief roles in many parts of this country is to create jobs for the people in their bands. Economic development is a big thing, and much of what passes for economic development is really the creation of bureaucratic positions on the reserves.

So the reality here is that once we accept this model, we believe it may create two or three positions on each reserve, but it'll be very difficult to then go back and set up a meaningful cooperative model that might really achieve the goal of protecting aboriginal people.

Would you like to comment on that? How do you feel about that concern?

Chief Dwight Dorey: It's a legitimate concern, and I feel it should be addressed.

I can go to a personal example. I was talking about gaining status, as I have lived most of my life as a non-status Indian. I actually served as a band councillor for a couple of years. It really bothered me to see how a lot of the affairs of the band were run. I happened to be on the band council at a time when third-party managers had to come in and take over the financial affairs of the band.

In particular, there were clear situations of unfair treatment of band members in the awarding of housing units. It was an all-out effort, even when being on the council, to try to get this addressed. Eventually, it did get addressed. But I shudder to think about the people who can't even get in the door to have their say on these kinds of issues. With these kinds of independent authorities, this is what the focus is on, to address these kinds of concerns.

º (1625)

Mr. Brian Pallister: Yes. I think you're quite aware this concern is shared by a number of aboriginal women's organizations and by smaller provincial groups, who we've talked to. It's a very common concern. Thank you for the observation.

The Chair: Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, Lib.): Thank you, Mr. Chair.

Chief Dorey, I wanted to reflect on the bill that's before us and also the statement you made that it's the only option on the table at the moment. The reason I want to bring that up is because I think the Congress of Aboriginal Peoples had a good recommendation on the table with the royal commission. The recommendation CAP made, if I recall, and if I can jog your memory, was recognizing a proper relationship with the aboriginal people, the aboriginal nations, and the crown. The recommendation was to create an aboriginal parliament representing the nations, as a first step, and as a second step it was to create an aboriginal house of this parliament, a third house of parliament. In your dialogues through this consultation, have you pushed that kind of relationship at all? Is this the appropriate place?

The reason I bring this up now is because in 1995, the world, the United Nations, declared a decade for indigenous peoples, and this decade will come to a close in 2004. So let's take ourselves to 2004, just a year and a half from now. When people look back, if this bill is passed, people of the world will look at Canada and say, here's a first nations governance act. But if you look at the definition of “first nations”, it means “band council”, it means “reserve”. The Indian Act created the reserves and the band councils. Where is the definition of “first nations”, Egwawa Nehiyawuk? When I say Nehiyawuk in Cree, I know who I am. The government and anybody can define me as Métis, but I'm not. In my heart, there's aboriginal and indigenous blood flowing. Nehiyawatsowin, I'm connected to the nation of Nehiyawuk. Nehiyawuk does not come into any definition here because we've been defined as Cree. Cree is a French word defining Nehiyawuk. The Mi'kmaq, the Dene, the Mohawk, the Blackfoot, the Haida, the Ojibway, the Onondaga, all these nations, are slowly disappearing, by definition. We are in an identity crisis as aboriginal, indigenous people of this country. This bill does not rectify or clarify that definition, that perspective, that vision, and that relationship.

Is there a need to redefine what first nations means in this act? I would say lower case the “f” on first nations and focus on the nations that are here, because you also have tribal councils. You, as CAP, have no relationship with tribal councils of this country, but tribal councils are also formerly Indian Affairs district offices.

I bring you to the Office of the Auditor General. They recently talked about streamlining information from band councils to the minister, which is an Indian agent structure--that's how she defines it. That's 650 band councils reporting to one Indian Act, one Indian agent, one minister. There are needs, and that information needs to be there for planning and for the greater certainty of our people. This information must be shared by nations, or by treaty regions. Treaty regions are water basin regions, and this act does not define anything or even acknowledge treaties.

I also ask you why, from your perspective, when the Congress of Aboriginal Peoples made that recommendation to the Royal Commission on Aboriginal Peoples, you specifically looked at nations of the country, yet that is missing in here. You have not recommended anything here. Is there a reason for not recommending it, or is there a bigger picture that you'd like to see unfold?

The Chair: You have 30 seconds. I apologize.

Chief Dwight Dorey: Those are good points. It's in this book. I just don't believe in the “nation” concept. There are over 50 Mi'kmaq bands in eastern Canada. They are not nations. They are only part of one nation. So I believe in that.

On the question about the RCAP recommendation, I still strongly believe in a third house of aboriginal representatives, and I have never shied away from that. The fact is what we're dealing with here is a specific piece of legislation that, as I was saying, addresses the whole issue of the right and the opportunity for off-reserve band members to participate in decisions that affect them. So that is where my focus is on this particular issue.

º (1630)

The Chair: Thank you.

Mr. Martin.

Mr. Pat Martin: One thing I noticed listening to the Auditor General and to you is that you both seem to feel that even if Bill C-7 goes through, never mind its relative merits, two years might be an unreasonable implementation time. I think I understood you to caution that, especially for smaller communities to implement some of the administrative changes. It's also been brought to our attention that the $110 million budget for implementation is grossly inadequate. In fact, we've heard people say that this is Canada's next gun registry fiasco because the prediction is at least $1 billion to implement the changes of Bill C-7 into each first nations community. They have already spent $2 million of the money that was given by Parliament by spending warrant to DIAND to use to benefit aboriginal people. They've given that to you to conduct these consultations around the country.

Do you have any views on whether Bill C-7 is that important, in your estimation, that it is going to be worth $1 billion--its cost given all these court cases and given that it's coming from the A-base of DIAND's budget? It's coming from its pool of capital that is supposed to go to aboriginal people. Is it really that important, now that your $2 million is already shot, to spend another $1 billion implementing Bill C-7?

Chief Dwight Dorey: I am, quite honestly, not privy to parliamentary budgets, or costs, or evaluations of processes of Parliament such as this.

We undertook to consult people. It does cost money, and in fact the Congress of Aboriginal Peoples, I believe, effectively utilized the just over $1 million we received. It was not $2 million, although we have a commitment from the minister that we will be part of the second phase of the process. I haven't been able to determine yet what that budget will be, but when it comes to the impact on the constituency of the Congress of Aboriginal Peoples, I believe the amount of money the congress is receiving to consult with them and to inform them is well worth the expenditure. It really isn't that much.

Mr. Pat Martin: One of the aspects of Bill C-7 that has been brought to our attention is the municipalization of first nations; if they do incorporate as a municipality, or something very similar to that, the upside that is put to them is they can now borrow money on the open market. So if they want to build a sewage treatment bank, they go to the bank; they are incorporated legal entities and can borrow the money privately. The experience in the United States is if they fail to make the payments on that loan the bank seizes the equity. In other words, you could lose your land base to bondholders in New York City.

Have you dealt with that recommendation of municipalization and incorporation of communities?

Chief Dwight Dorey: No, and the reason I haven't is I prefer to focus on those kinds of issues in discussions or debates.

My argument is that it is the off-reserve member of any band who gets into those kinds of debates or discussions, whether it's implementing a form of self-government agreement that makes the kinds of decisions that can put band land up for surrender or whatever. It's the principle that every band member has a right to have a say in those things, and that's what the focus is on in this legislation: getting our people, who have been locked out of the decision-making process, into it so that they can help decide these things. We have many situations in this country where band residents are the minority. If you consider the total band membership, the majority of members live off reserve, but they are being denied their right to have a say in the affairs of the band and in the management of it. That's what the focus is here, to me, and that's what the fundamental issue is. There are these probabilities--

º (1635)

Mr. Pat Martin: You're the only aboriginal group that the minister could find to even take part in Bill C-7. You're really single issue here. You don't have strong views on the many things that Bill C-7 will do, other than the Corbiere issue of off-reserve people having a say.

The Chair: Thank you.

Mr. St. Denis.

Mr. Brent St. Denis (Algoma—Manitoulin, Lib.): Thank you, Mr. Chairman, and thank you all for being here.

In fact, let me just start by disagreeing with my friend along the way. You have come with some good ideas, and I think the minister underlined in his testimony to us that the bill has been referred to this committee after first reading for the very purpose of this committee giving full consideration to a wide range of amendments.

In my couple of minutes I'd like to focus on two of your amendments for greater clarification. On page 4, suggested amendment 2 is something I wasn't aware of, in noting that the bill could make bands lose their ability to revert back to a customary election format. I think this suggestion merits consideration. Could you expand a little bit on this? I won't ask another question on this; I'll just go right to my second one.

Your amendment 3, on balancing the issues of on- versus off-reserve members...John Corbiere is a constituent of mine and a very bright fellow. This case came out of the Batchewana First Nation, I believe, so I think it deserves attention. Could you give a broader explanation of your amendments two and three?

Thank you.

Chief Dwight Dorey: I would ask Patrick to respond on recommendation 2 and I'll address recommendation 3.

Mr. Patrick Brazeau: Thank you for your question.

With respect to the different treatment of bands with the First Nations Governance Act, you could currently say there are three types of bands. You have section 74 election bands, which elect their leaders by way of election; custom bands, which may or may not include elections; and custom bands that select their leaders by way of hereditary chiefs or clan system and so on.

What clause five of the First Nations Governance Act does is to establish three categories of bands. Section 74 bands, and those who chose their leaders by way of elections, can only continue to select their leaders by way of elections. Therefore, they cannot convert back to a system of custom if they wish to do so.

You have custom bands who chose their leaders by way of election. What the First Nations Governance Act does is to say they must now select their leaders by way of elections—but not necessarily with the criteria outlined for current section 74 bands.

The third category is the traditional ways of selecting leaders, which don't involve elections. What the First Nations Governance Act does for them is they could now continue their customary ways as long as they hold a referendum and their members vote to adopt their continuing custom codes, so to speak.

Currently bands who select their leaders by way of custom are not required to offer or extend the vote to their off-reserve members. This is what we at CAP have a problem with. If a band chooses to select its leaders by way of custom, it should follow the model of Corbiere and extend the vote to the off-reserve members as well, although they are not required to do so now.

º (1640)

Chief Dwight Dorey: On the second question about the balancing issue, what we're basically suggesting here is that where the court has addressed this, off-reserve band members should have a say where there are clearly legitimate decision-making powers of the band or decisions being made by the band that will impact the off-reserve band members.

For example, if it was a band resolution disposing of band assets, these people have a right and should have a say in it. But if it was just a band resolution or band bylaw on the speed limit or dog licensing, or something like that, they probably wouldn't be interested. So a balance has to be taken into consideration with respect to these decisions.

What we're suggesting is that even when it comes to deciding how the balancing formula might take effect, or what it might be, the off-reserve people should have a say in this. In other words, it shouldn't be decided for them how they're going to be weighted into decisions of the band. They should be part of the initial decision as to how it's going to be done.

The Chair: Thank you.

Mr. Pallister.

Mr. Brian Pallister: Gentlemen, I am somewhat amused as I listen to the member from the NDP try to discredit your organization. It parallels the minister's attempt to discredit the AFN and their comments. It's amazing how correlative the criticism and attempt to discredit one's organization is with the points of disagreement. When we disagree we tend to want to attack the organization.

I would propose that we try to deal with some of the ideas you raise, and that's what I'll try to do in my deliberation with you and throughout this process.

Privacy and access to information concerns me. In this proposal it is a “may”, that the codes may include privacy regulations; access to information regulations may be there. Wouldn't you feel those are imperative? Don't you think there should be very strong provisions enacted in each code across Canada so that citizens will be assured they get access to information, that they will be assured of privacy when personal information is provided?

The Chair: Can I make an alteration? I'm told it's not “may”, it's “must”. So perhaps we can verify that if you wish.

Mr. Brian Pallister: Okay, I'll clarify my question.

It says “must”, but it doesn't have stipulations on what the codes may entail or what their nature may be. In other words, you must have a code about privacy, but the code can say things aren't that private. The nature of the severity of the codes is not at all addressed.

Chief Dwight Dorey: I understand what you're saying. We just haven't taken it to that point on all these kinds of issues, because we'd have a substantial paper....

What we're really looking at is a continued participation in the process, as I mentioned earlier, at getting involved in the regulatory aspect of it that will be dealing with those points A to Z.

Mr. Brian Pallister: I'm glad you're looking forward to that process, but I'm in this process, so my problem is I want to know what those codes are now. I'm not sure to what degree the government is going. It says “must” have codes for privacy and “must” have codes for access, but the codes themselves could provide very restrictive rules around access. They would still have codes, but the codes would not be empowering codes. That's what I'm trying to get at.

Until we get the structure of these default codes here before us, we're not able to adjudicate in any effective way and question in any effective way the nature of this legislation. We need to have the default codes here before us. I hope you would share the concern I'm expressing to you. Your being involved in this process later may well be valuable to you, and it may be very valuable to government, but the fact of the matter is for our process to work effectively we have to have this information here before us.

Chief Dwight Dorey: I understand your point, yes.

The Chair: Are there any other questions?

Mr. Brian Pallister: No, that suffices.

Thank you very much.

The Chair: Mr. Hubbard, I thought you asked for the floor.

Mr. Charles Hubbard (Miramichi, Lib.): Thank you, Mr. Chair.

Chief Dorey, we're dealing with a lot of different designations of indigenous peoples. For example, in your own case you were not a band member, and now I assume you are a band member. There are other people who are status Indians who are not band members. Then we have, of course, the different groups you represent. The fact of the matter is that this bill deals mainly with our so-called people on reserve, and certainly the mandate is there to give people off reserve who are band members....

In your opinion, in terms of band membership, what are the problems? You spoke with your brother's children, and I would assume they are the same blood as you are. Could you explain to the committee what has happened in terms of this, and how as a committee we have to better understand the many problems the people in your organization have?

º (1645)

Chief Dwight Dorey: Okay. Very quickly and briefly, I'm of mixed blood, as I was saying. My mother was from the Mi'kmaq First Nation. She was arbitrarily left off the Indian register when registration took place in the early 1950s. There was no recourse for her to argue to get back on. There was a period of appeal for 60 days or whatever it was. I don't know. I don't remember exactly. She missed it. It happened to a lot of people.

When Bill C-31 came into effect, it wasn't only people, particularly women, who had had their status removed by marrying outside the Indian community. Of the people who were arbitrarily left off, some were men who served in the military and went to war, and so on. They lost their status. It was an opportunity, for the first time, for them to get status back.

Then the legislation created new classes of Indians, 6(1) and 6(2). My mother was deemed to be a 6(1). She was entitled to be registered and could get back on. Her children, my brothers and sisters and I, who were the offspring of her and a non-native father, were deemed to be 6(2) Indians.

I happened to marry another Indian woman, so our children were deemed to be 6(1)s and entitled to be back on. All of my nine brothers and sisters married non-native people. Their children were not deemed to be entitled to be registered. That's how it happened.

I still stick to getting rid of the whole act.

Mr. Charles Hubbard: Are we really addressing some of the problems of many people who are outside the present on-reserve and off-reserve people who have band memberships?

This is a major concern. The BNA Act, in my opinion, doesn't merely refer to people on reserve; it says Indians and reserves.

Chief Dwight Dorey: It says the lands reserved for Indians.

Mr. Charles Hubbard: You didn't mention a concern that your group might have about people who are outside the system now and should have a recourse to get back in.

Chief Dwight Dorey: Yes. I guess the point is that I don't really see it as part of this piece of legislation. It's a long-standing issue and an argument we have.

As I stated earlier, my preference was to see the Indian Act dismantled and go with the RCAP recommendation Mr. Laliberte was referring to. Maybe that is a third house of representatives of aboriginal people who come from all aboriginal peoples, on reserve, off reserve, the Inuit, and the Métis. Bring them together and then everyone is treated equally.

Mr. Charles Hubbard: Mr. Chair, for information, Mr. Martin referred to visits to other countries. For example, the Sámi people, in northern Finland mainly, have a different component in how they receive status. It's much weaker than the “6” business we talk about here in Canada.

Mr. Dorey, I imagine your people have looked at that.

Chief Dwight Dorey: Yes. In fact, I've had a number of discussions with the Sámi people. There is some downfall, I guess, to that kind of a structure. They have their own parliament, but we're told it doesn't really have any teeth.

It's why a lot of our own people don't push the recommendation. They're afraid of ending up with something similar to what the Sámi people have without any real teeth.

Mr. Charles Hubbard: Thank you, sir.

Chief Dwight Dorey: There are pros and cons, I guess, to every point.

The Chair: Mr. Godfrey.

Mr. John Godfrey: Coming back to balancing, it is interesting because of Corbiere. This is a question asked out of pure ignorance.

Have any of the 650-odd first nations communities produced a code that actually does the job of balancing fairly, in your view, the questions you've raised about on-reserve and off-reserve? When do we have to go back to the larger membership for selling assets versus traffic fines? Has anyone done it? Has anyone come close?

º (1650)

Chief Dwight Dorey: We don't have a count, but there are some, yes. There are some that are very progressive in their structure of governance and administration.

Mr. John Godfrey: Are you happy with those?

Chief Dwight Dorey: I think there are some pretty good examples in the country that could be used.

Mr. John Godfrey: Thank you.

That's it, thanks.

The Chair: Thank you very much for an excellent presentation.

Do you have a question, Mr. Chatters?

Mr. David Chatters (Athabasca, Canadian Alliance): Not a question, really. I just wondered if we could have you produce some of those examples, so that we could have that information, of the bands that produced the kind of....

That would be helpful.

Chief Dwight Dorey: We would be happy to do that for you.

The Chair: Would you provide that to the clerk so that it could be shared with all members?

Chief Dwight Dorey: Yes.

The Chair: Thank you very much.

Thank you for an excellent presentation. I certainly learned a lot. We need to learn a lot more, and we will. It was an excellent presentation.

I invite you now to make closing remarks. You can take 10 minutes.

Chief Dwight Dorey: Thank you very much.

Again, I really appreciate the time and the debate here. The questions are certainly indicative of the task you have undertaken and that you're facing.

I would just like to reiterate some of my earlier points.

The Congress of Aboriginal Peoples has been involved in aboriginal business issues for 30 years, and we have been historically the voice for the off-reserve, non-status Métis and Indian people, with certain definitive timeframes.

We really started speaking for the off-reserve Indians when Bill C-31 came into effect in 1985. As I spoke about, a lot of our people who regained their status or got it for the first time still live away from reserves. They had been involved in our organization from day one, and remain so.

Then there are Métis people outside the area that the Métis National Council represents, which are predominantly the descendants of the Red River Métis in western Canada and touching into a bit of Ontario and the north, the Northwest Territories. There are many, many thousands of Métis people outside of that area who the congress has been representing since day one. So we have a lot of history in terms of representing the aboriginal people in this country. It is these kinds of areas of change that are going to impact upon not all the constituents of the Congress of Aboriginal Peoples but a significant part of them--that is, those off-reserve band members.

I always have great difficulty with the approach that other groups, like the Assembly of First Nations, have taken, at least in the past, by referring to every band across the 652, or whatever they are, as being first nations. They are not.

I concur with the Royal Commission on Aboriginal Peoples report, and that has always been my thesis. As my paper points out, I believe in the Mi'kmaq nation, the Cree, the Haida, the Ojibway, whatever they are, these people, in my view, as nations of people, if they believe in their nationhood, have to start taking responsibility and be accountable to all their citizens. That's what this issue is about, that the Indian Act bands, those communities that were structured and created under the Indian Act, on the one hand argue their inherent right of self-government, but on the other hand hide under the Indian Act and refuse or deny their own people a say in the affairs that will impact upon them. That's what I see this legislation addressing. It is the way to get those people back in, to at least be heard, to have a say in the affairs that are going to impact upon them.

I agree that it is not perfect. It is not what our first option or our ideal position would be, but that's what we're dealing with. I don't hear anybody having any serious discussion or debate about dismantling the Indian Act. It was done a few years ago and it didn't go very far. I don't hear any serious debate or discussions going on about the royal commission's recommendation of creating an aboriginal Parliament of some sort.

So what do we have to deal with as the aboriginal people who have been forgotten for so many years? This is what we have; we have this proposed legislation that's on the table. That's where my focus is. It is addressing these kinds of concerns. I can't predict or don't have the resources to go into what the anticipated regulations might be dealing with or what limitations they might have. I just can't do that at this time. I have to respond to and address what's before me. It is this legislation, and I understand the parliamentary system well enough to know that you as a committee have the role and responsibility and the right to make amendments and put them before Parliament. That's what I'm here, and have been here, to address.

I hope you can see that there are some shortcomings. It is not a perfect paper in terms of draft legislation, nor will it at the same time address everybody's concerns and respond to them all.

º (1655)

I'm going to be in a pretty tight and tough situation if I go back after you've deliberated and Parliament has decided on this and changes haven't been made. Some people will consider it a reflection of my ability and capacity as a national leader to have our concerns and issues addressed.

The Congress of Aboriginal Peoples, which we represent, were active participants, in the hope of making positive change to the Indian Act, by consulting and having workshops right across this country on this issue. We hope it is not all lost.

At the same time, all those people I know have told me they don't see this as the answer. They would much prefer to see broader changes or a dismantling of the Indian Act. Their only hope is that when decisions are going to be made that will impact on their lives and their children's lives down the road, they will be listened to.

I just want to thank you for giving me the opportunity to be listened to here today.

The Chair: I would like to thank you very much. You are correct, because at the end of this nine-week exercise we will be going to clause-by-clause. That is what we have been mandated to do by the Speaker of the House. Your presentation addressed individual clauses, and I could see members taking notes. I'm certain you've already caused some amendments, which is good; we invite them all. So your contribution was valuable. We thank you very much.

We will suspend for three minutes.

Chief Dwight Dorey: There's no question you will be hearing from our provincial constituents as you travel around the country. They'll be speaking to some of these same concerns and maybe some new ones I didn't bring up.

The Chair: We'll look forward to it. Thank you.

» (1700)

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

At this point we are pleased to welcome, from Elections Canada, Monsieur Jean-Pierre Kingsley, Chief Electoral Officer; and Deputy Chief Electoral Officer and Chief Legal Counsel, Diane Davidson.

We thank you for responding to our invitation to appear. We invite you to make a presentation, which will be followed by questions from members. At that time I will decide, depending on the length of your presentation, the length of the interventions. I just wish to note that when we say four minutes, that includes the question and answer. So if my colleagues abuse the four minutes, you lose. The trick is to bootleg your answer in the next answer. You will have an opportunity to give remarks.

I invite you to proceed.

Mr. Jean-Pierre Kingsley (Chief Electoral Officer, Elections Canada): I'll be careful about bootlegging, Mr. Chair. It may be grounds for dismissal.

Mr. Chair, members of the committee, I wish to thank you for this invitation to appear before you during your study of Bill C-7 on first nations governance. As you noted, Mr. Chair, I'm accompanied by Mrs. Diane Davidson, who is Deputy Chief Electoral Officer and Chief Legal Counsel at Elections Canada.

I have tabled a longer version of my remarks, in accordance with a discussion I had with Ms. Kingston earlier today, who thought this would be acceptable to you. I hope it is. This will allow more time for discussion. So I will just give a brief overview of the document you have in front of you. You may wish to read and listen at the same time. I'll leave that to your discretion.

Since my appointment in February 1990 as Chief Electoral Officer of Canada, one of my most important ongoing objectives has been to make Canada's electoral system fully accessible to aboriginal peoples. To achieve this goal, my office has taken several major initiatives in three key areas: an information and advertising campaign in aboriginal communities; special registration and liaison officer programs; and education and outreach programs.

Before providing a brief overview of these programs, it is worth recalling that on average the turnout of aboriginal electors in federal elections is generally lower than that of other Canadians. However, this general finding must be qualified by taking into account the great diversity of aboriginal communities and environments. Moreover, research has demonstrated that aboriginal turnout depends on a number of factors related to the context of each election, such as the presence or absence of debate about issues that are important to aboriginal people and the presence of aboriginal candidates.

I would now like to describe some of the initiatives my office has undertaken to encourage aboriginal communities to participate in federal elections and the assistance provided to help them organize their own elections.

In one instance, for example, a legal adviser from my office provided assistance to the Assembly of First Nations for the last three elections to the position of grand chief of the assembly. Other examples include the organization of information sections on the referendum process for the Cree of Quebec during the 1995 referendum in that province and the review of the bylaws for the referendum on the ratification of Nisga'a Treaty.

A number of challenges must be met to communicate effectively with aboriginal peoples and communities. They include their wide geographic distribution, the cultural diversity, and the number of languages used. Beginning with the 1992 federal referendum, Elections Canada began tackling these challenges directly through a communication strategy specifically designed for various aboriginal groups.

The referendum question for the Charlottetown Accord was made available in a total of 37 aboriginal languages, in brochures and on audio cassettes. That brochure was made available in every polling place in the country, so any aboriginal person could vote in his or her language in any poll in this country.

In addition, our radio, television, and print advertising was produced in more than 30 different linguistic versions. For each subsequent election, significant efforts were also made to reach aboriginal populations in ways that respected their languages and cultures. To do so we consulted aboriginal people in communities. For example, in 1996, members of 50 aboriginal communities and almost 100 aboriginal media were consulted on the messages.

» (1705)

[Translation]

Moreover, we made considerable efforts to register aboriginals during the 1997 and 2000 elections. Mass communications strategies were developed to reach over a million people: radio messages in 23 languages, messages on television and multilingual printed media.

Specific instructions were also given to all returning officers to favour the registration of aboriginal people as much as possible. Another initiative of which I am particularly proud is the aboriginal liaison officer program which is designed to provide aboriginal communities with people who can give voters information on the election process in their own languages and establish links with the community in order to facilitate registration.

We have also developed various tools to increase knowledge of the electoral system, in particular among aboriginal youth.

The aboriginal elders and youth program is an initiative that was of benefit to 91 communities during the year 2000 elections and the goal is mainly to provide interpretation and identification services to electors in the community and reassure aboriginal electors who are not familiar with the election process.

Another educational initiative is the adaptation and translation of the kit “Choosing our mascot—an election simulation kit” for use in aboriginal primary schools across the country; it is also more specifically tied in to our program for young aboriginals as the characters are animals with which aboriginals can easily identify.

Although a considerable amount of work has been done during the past ten years, we are not stopping there—quite the contrary. A number of initiatives are currently envisaged to reinforce various aspects of our activities.

As to the special registration programs, I intend to pursue and intensify our efforts particularly through hiring a larger number of aboriginals as election officers. The liaison officer program will also be broadened.

As for our information and advertising campaigns and our education and outreach programs, we are continuing our efforts to make the electoral system more accessible to aboriginal people. To this end, a new advertising campaign is being prepared.

I want to reiterate that I am fully prepared to develop additional support and cooperation initiatives, at the request of interested communities, and groups, including councils, on the preparation and organization of elections.

I want to close by thanking you once more for this opportunity to speak to you about a subject in which I am passionately interested. I have tried to emphasize the initiatives we took in order to do things together with Canadian aboriginals, while realizing that question period would be a more appropriate forum for an exchange on Bill C-7, Mr. Chairman.

Thank you very much.

» (1710)

The Chair: Thank you, Mr. Kingsley. You are right that the best information usually comes out of the questions and answers. Nevertheless, you will have an opportunity to make some closing remarks. At that time, if you want to add anything that we may have not asked you, you may do so.

We have 45 minutes.

[English]

You have five minutes, or do you need more time? Is five minutes okay?

[Translation]

Mr. Brian Pallister: No problem.

[English]

The Chair: Cinq minutes.

Mr. Pallister.

Mr. Brian Pallister: Always a pleasure, sir.

Although you said in your preamble and note here that you want to confine your remarks, etc., to your responsibilities specific to federal elections, of course I want to get into other issues.

Just in my own circonscription, we've had two occasions in the last year where elections or difficulties surrounding elections have created tremendous internal turmoil in two first nations communities. These problems arise, I suppose, more commonly during the conduct of band elections than would be the case during the federal elections. But I don't have data to support this observation.

My concerns, I guess, are many here. In the resolution of these issues, which is, of course, what we're in pursuit of now that they've already occurred, I wonder how your office would be able to extend services, or what kinds of services you would be able to extend from your office, that would help in the resolution of these types of problems once they occur. In the one instance, election fraud was raised in the conduct of the campaign, and in the other, an issue of buying votes was raised. Both first nations are in a state of disarray at this point in time.

Mr. Jean-Pierre Kingsley: Through you, Mr. Chairman, I personally think it's late in the game for Elections Canada to get involved when we're dealing with fraud and when we're dealing with these other things.

I think where Elections Canada could be making a contribution is really in respect of the development of the codes, including the generic code, or whatever name one wants to give to the code that comes into effect two years after, if a band doesn't opt in. If the Department of Indian and Northern Affairs is interested, we would be quite willing to participate with them in developing a generic code.

At the same time, we know the communities themselves have the option of developing their own code. Elections Canada would be more than happy to respond positively to these requests, if we're invited to by these communities...obviously within reason, in the sense that if they all ask at the same time, it may get to be very hard. If we're asked to develop them entirely on our own without their input, this is not what we would be seeking to do. We would very much favour helping others out in the sense of providing forms of assistance, which is something we can do quite readily.

So it's in these two ways we think we could do something in light of the experience we have across this land and in light of the international experience we have as well.

» (1715)

Mr. Brian Pallister: It strikes me as an excellent opportunity to build in a cooperative institutional environment, as opposed to separately.

The challenges are enormous for small bands to develop these codes on their own, with their own devices. The resources are small for many of the small bands. The time that would be required to develop such codes is likely an issue, given the two-year limit.

So you're saying you haven't been consulted or asked to be part of developing any kind of a pro forma approach or code for election rules at this point in time, but would be available to do this.

Mr. Jean-Pierre Kingsley: No, we have not.

But what I will add, just as a thought off the top of my head, is that if one could develop the quasi-generic code in one year—or whatever name one wants to call it—then there would be another year for the small bands to look at it and decide which pieces would fit them. They'd have a year to do this. When you're a small number of people, it may not be all that hard.

Now this is off the top of my head. I haven't considered this, but it may be a way around a major difficulty for the smaller groups. There are quite a number of those.

Mr. Brian Pallister: Well, I will share with you a concern many first nations community leaders have expressed to me, that the two years is inadequate in any case. But this is especially so when the codes themselves—these default mechanisms—are not available to them. What many community leaders are saying is, “Well, show us the codes. Perhaps we could just adopt them. To a large degree, that would suffice for us. We don't know what the codes are; we haven't got a hot clue.”

So your brainstorming is helpful. It illustrates the concern that I think we should all share, that if these election codes—these default codes—are not available until 18 months, 20 months, 22 months into this two-year deadline, how is it possible for small communities to make their choices? They will have to proceed with their own design, on the assumption that such design codes are not available for elections and various other aspects. This is largely unhelpful, I would say.

The Chair: Thank you very much.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I discovered something listening to the answer to Mr. Pallister's question.

Mr. Kingsley and Ms. Davidson, I was sure that your office had already been called upon to put together a draft generic code so that first nations could use their customary law or traditional practices and strengthen this model, and that they had been aware of this possibility. However, much to my surprise, I realize today—I do not know if my colleagues are as surprised as I am—that they have not been given the model that they will be expected to use if, over the next two years, they are unable to define their own code using their customary practices. That is news to me.

Moreover, I would like to congratulate you, Mr. Kingsley and Ms. Davidson, for all of the excellent initiatives that you outlined earlier. Hearing that kind of thing is wonderful. I was surprised to hear you say in your presentation that in some cases, turn out among aboriginal voters is higher than it is for others. That surprised me. And I reiterate that I am surprised that your office was in no way called upon by the minister in charge.

So you do not have a draft generic code for first nations in case they do not resolve the issue within the two years set aside in the bill?

Mr. Jean-Pierre Kingsley: The answer is no, and I do not intend to undertake anything like that of my own initiative. That would have to be done with the people from the department, who have a better understanding than we do of the way in which the entire system works. We know the electoral system and a national system. We do not have the necessary knowledge to put together something that will reflect the aboriginal reality in this country without the agreement of the people who are familiar with that.

» (1720)

Mr. Yvan Loubier: That is nevertheless quite astonishing. I apologize, and I am not criticizing either you Mr. Kingsley or Ms. Davidson, but I thought that if the government were introducing a bill and outlining alternatives in the event that the first nations did not arrive at a decision within the two-year period, the government would also be providing first nations with a scenario of what may happen. I realize that initially, the work was not completed as we perceived it had been. I am not levelling criticism at you, but I am happy you are here. I know that the work can be done quickly, but I am nevertheless surprised.

That is the comment I wanted to make, Mr. Chairman.

Mr. Jean-Pierre Kingsley: All I am doing is answering your questions. I am not criticizing anyone, but I am telling you the truth.

Mr. Yvan Loubier: As you always do. We appreciate your presence here, and that of Ms. Davidson.

The Chair: Mr. Godfrey.

[English]

Mr. John Godfrey: While the flowers are being thrown in both directions....

So we've established that the minister didn't ask for your help, but may we? That is to say, you offer advice when people ask you for it--when you function in foreign countries, or you've helped aboriginal organizations in various stages. So I would like to ask for your help. That help would be to get your opinion of the draft bill, Bill C-7, in terms of your technical expertise and to say whether in its current form it is designed to give us the flexibility and the firmness that would allow us to establish later the codes that we would need, either as a generic type or because a local band council chose to develop its own.

Have you reviewed Bill C-7 as a text, and have you some comments or concerns on it--just in terms of generally asking your advice?

Mr. Jean-Pierre Kingsley: A number of people in my office did get familiar with Bill C-7. They did brief me on the bill. I read portions of Bill C-7, especially clause 5, which deals with the topics that would have to be governed by an electoral code.

Indeed, I think it is written in such a way that it is flexible, because it needs to be fleshed out. One could not run an election with what exists there. So there is that flexibility, which is indicative of the requirement to do something to flesh it out.

In other words, there are topics on which one needs to act, on which one needs to develop much more stringent requirements so that everyone is in agreement about what will transpire.

There are also areas that are not quite clearly indicated as requiring action. One of those would be--and here this is a bias; you'll understand this--that there's no mention of the need for an independent authority to run the election. This goes a long way toward eliminating a lot of the problems that have been mentioned earlier in one of the questions.

It's not always clear what the enforcement mechanism is for any transgression to the statute, if there is fraud, if there are other things. There doesn't seem to be any rule or any indication that there would need to be rules on money in the process. Can candidates spend anything they want? Can they get it from anywhere? These are questions we ask ourselves all the time in Canada. And what would be publicly reported to the membership and to Canadians at large about those expenditures?

With those added ingredients, there's enough in clause 5 that is highlighted as areas, and it's flexible enough to develop an electoral code around that. So it's a positive answer to your question.

Mr. John Godfrey: It's a positive answer with some reservations and some specific references to things that you'd like to have seen in a less ambiguous...I don't want to put words in your mouth.

Would it be possible--I don't want to presume on you, but you do help when people ask--for you to list those concerns? We've got the transcript of what you've just said, but would it be possible to list those concerns--so we're not forcing you to improvise on the spot--and also to propose certain obvious remedies? In other words, this problem would be solved if one simply had a reference to this, that, or the other, and normally, looking at this bill, it would go in there, in clause 5 or whatever else. Would that be asking too much?

» (1725)

Mr. Jean-Pierre Kingsley: I can take a crack at it, sir.

Mr. John Godfrey: Thank you. I think that would be helpful for the committee.

Do I speak on behalf of the committee?

Mr. Jean-Pierre Kingsley: And I'll write about my crack to the committee chair.

The Chair: Address it to myself or to the clerk. It will be shared with all members.

Mr. Chatters.

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

My concern is not so much in the development of the codes--and I, too, am a little surprised that you haven't been posted to be part of that process already--but my concern is more in the enforcement of the codes once they're developed.

One of the major things Indian people come to my office with concerns about is the way band elections are conducted on the reserves and, in their opinions at least, breaches of the rules that now exist for those elections.

As you know, in two separate elections where aboriginal people ran against me in federal elections, I pointed out to your office what I thought were breaches of our election code, and it doesn't seem that those issues can easily be resolved. Once you develop the codes and they're in place, how in the world do you enforce the codes so that they're followed properly and so that the problems of breaches of those codes are addressed and solved?

Mr. Jean-Pierre Kingsley: As you say, the whole issue of enforcement.... Even when one has what is recognized to be the world's best enforcement mechanism--which is what Elections Canada has, by the way; this is recognized by all the authorities in the world who study these things--even with that, there are problems that are very hard to settle or to come to grips with.

It would seem to me, again off the top of my head, that this would tend to indicate a need for a central authority that would be recognized and accepted by the aboriginal people and the aboriginal community as having the authority to go in and do the necessary investigations and take whatever corrective actions the code requires. If it be inability to sit, whatever, if there needs to be a court process associated with this, all of that would have to be looked at very carefully.

I think the gist of what I'm saying is that it would indicate to me that one cannot have a separate redress mechanism or redress person in 621 locations. Where there are 300 electors in one place and 20,000 in another, this becomes an almost impossible regime. But if there were one, and the necessary knowledge and practices were developed with a knowledge of the culture and everything else, then I think this is a model one could look at. But it's a model that effectively would have to be in the hands of the aboriginal peoples themselves to be acceptable.

Mr. David Chatters: But I think we could take a lesson, for example, from the RCMP in their policing structure. An officer is removed from his community to enforce the law.

The problem that arose in my experience was, for example, in a band election, the chief returning officer for that election of that particular band is most likely related to one of the candidates running for chief. So you get these things arising, whereas if you bring in from a central agency, or at least from an outside agency, an aboriginal person who is not connected to anybody in the band, so they're independent, the chances of having a fair election according to the code seem to be much greater than maintaining it within a small community.

Mr. Jean-Pierre Kingsley: Part of the answer is to define what qualities would be required for such a person to be independent. Of course, if there's a native who's running for office--it may be that it's to the detriment of that native, by the way, knowing how humanity works in all spheres of activity--still, it only substantiates and sustains the point. But if it were then established that one cannot find such a person in the local community, then the mechanism would be established so the person would come from outside and would be viewed by the community as being fair and independent-minded. I think those are essential criteria. Then one is back into an election that is run freely and fairly.

» (1730)

One starts at the local community. If one cannot get it there, one moves up, but it has to be an independent person.

Mr. David Chatters: Yes. Thank you. I agree with you.

The Chair: Thank you.

Mr. St. Denis.

Mr. Brent St. Denis: Thank you both for being here.

Having had a chance to be not only a candidate, like most around the table, but also a returning officer at the municipal level many years ago, in another life, I know how important it is to have good management of elections.

In your introduction you talked about participation. Do you have statistics that can compare the participation rate of voters in band elections and in the same communities with their participation in federal elections? In other words, if we're getting a 40% turnout in federal elections, are we seeing 40%, or more or less, in band council elections.

Mr. Jean-Pierre Kingsley: I do not have such statistics. I know nothing of the participation rates of aboriginals concerning elections for aboriginal purposes.

Presumably we would have to obtain that from the Department of Indian Affairs and do a comparison. We could certainly provide you with statistics based on geographical configurations of where we think those particular people whom you're talking about, depending upon how they're organized, are situated.

Mr. Brent St. Denis: Certainly in the context of this legislation, and generally, the higher the degree of participation, presumably the better one can say that democracy is working within our society.

You indicated that your office has worked with a number of first nations. A second, unrelated question has to do with the issue of off-reserve voting. Are there different models that are equally acceptable? For example, one community might choose a ballot box in a couple of large cities where many of their off-reserve members may live, or another community might choose mail-in ballots. So pursuant to Corbiere, these are issues that many of our communities have had to face.

Are you aware of whether there are different models, and are they all equally acceptable from your point of view in terms of engaging in the democratic process off-reserve members?

Mr. Jean-Pierre Kingsley: They're not all equal. Personally I think the registration for mail-in applications and mail-out ballots is more universal in scope and in potentialities, as opposed to the establishment of polling places outside the community into places where a large number of members live off reserve, because you can miss out on a goodly number. What is an acceptable percentage? If you reach 75%, is that okay? How do you gauge that? And what if you're amongst the 25%? You always feel that this 25% is being ignored and the way to go around that is to have an option where they can all register.

There's also something else that's looming large, and it's becoming easier to do this in a smaller group, and that would be a form of electronic voting. When it's people off reserve or off site you need to have a process under either a mail-in/mail-out regime or under any regime so you know who you're dealing with. And then you have to have a control mechanism if you're going to be doing it by computer, because it's from a remote location.

This is the problem we've not solved at the national level. We don't have the technology economically available that allows us to know who's at the other end. When you do it with a restricted number of people and you have an idea of their identity, then you can introduce certain elements that allow you to be fairly sure about who's voting.

So that's another way, but I prefer the mail-in/mail-out regime because we've worked with it for a number of years and we know it can work very well. And because it would be probably and practically within Canada we know that the turnaround rate by Canada Post is very good on these matters.

Mr. Brent St. Denis: Thank you very much.

» (1735)

The Chair: Mr. Pallister.

Mr. Brian Pallister: I'll give you the opportunity to clarify the comments you've made. You said the model needs people, and for resolution of disputes, the only model that would be accepted--I'm paraphrasing now--is one where aboriginal people would make that decision.

In my experience with aboriginal people in resolving disputes, the key word would be “independent” not “aboriginal”. I don't think the race of the person making the judgment is as important as the independence. Certainly in the communities I represent where these disputes are ongoing, resolution of the dispute is the key thing they have in mind. Having someone independent to do the resolution and assist them with the resolution is far more important than whether that person is aboriginal or non-aboriginal.

I raise this point because I am somewhat concerned that in this age of political correctness, we're preoccupied with establishing separate institutions for aboriginal people at every opportunity, when in fact the working nature of these institutions should be our first concern. I'm concerned that we will lose the benefit of the corporate knowledge we have paid for and invested in, for example, in your shop. We might lose the capability and the ability to enhance the capability of a new electoral structure for aboriginal people because we were concerned that aboriginal people had to administer or implement this process. That would be a disservice to the ability of aboriginal people to understand the issues and their desire to see these issues resolved.

I make that statement, and I recognize there are great difficulties here.

I want you to clarify for me--

Mr. Jean-Pierre Kingsley: Can I just respond to that?

Mr. Brian Pallister: Yes, certainly.

Mr. Jean-Pierre Kingsley: I have no problem saying what I'm going to say, and this is not a change of mind. I meant that the person must be acceptable to the aboriginal community, just like the people who fill the ranks of Elections Canada must be acceptable to the members of Parliament. If I said they had to be aboriginal, that was going beyond that thought, but it was a way of expressing the thought that they must be acceptable to that community; otherwise they won't have the credibility to fulfil their responsibilities.

Mr. Brian Pallister: Exactly so. That is precisely our concern with the proposals as they are, in terms of redress, enforcement, and so on. They work on the assumption that the local person is best able to remedy the situation. Race shouldn't enter into it. The ability to do the job is what we would like to see as the first concern. I think aboriginal people would agree, generally.

We must recognize the highly mobile nature of many of the aboriginal people, and this is certainly not unique to my area. Many of my constituents reside part of the year in one jurisdiction and part of the year in another. This poses some great difficulties in conducting band elections and federal elections--but I'm thinking here in terms of band elections.

It's hardly an insurmountable problem to deal with, but it does mean considerably more costs, communications costs and so on, for the conduct of that type of election, doesn't it?

Mr. Jean-Pierre Kingsley: I think it's fair to say it would probably be a little costlier if people were not as sedentary as others. If you're dealing with a mobile population, you need to have a system that follows them, depending on when the election is held and when the electioneering must take place. That would tend to move up the cost for the management of the process.

Mr. Brian Pallister: As a consequence, it would be highly important to be able to mail in a ballot, or that type of thing. I suppose those things would exist as well.

The Chair: Mr. Godfrey.

Mr. John Godfrey: This is a question that tends to link the legislation we're dealing with and aboriginal people as voters in federal elections.

Is there any connection between people who are recognized officially by the department as status aboriginals and where they live, and residency requirements for federal elections? In other words, if somebody lives off reserve but has the right to vote in a first nation election because they're officially deemed to be part of that community, does that in any way have an impact on his or her defined place of residency for purposes of federal elections? Is there any connection between the two?

» (1740)

Mr. Jean-Pierre Kingsley: During a federal election, where you are residing six days before polling day determines the riding in which you vote. So if you're living in Winnipeg but your band is in northern Manitoba, you vote in band elections for up there, but if your ordinary place of residence is downtown Winnipeg, that's where you vote for federal elections.

Mr. John Godfrey: Thank you.

The Chair: Are there other questions?

Thank you very much,

[Translation]

Mr. Kingsley. As always, you provide us with abundant information. Like Mr. Loubier, we are impressed with the services you provide, as well as with your availability and your desire to be helpful. We thank you, and we thank you for having answered our call. Thank you very much and have a good evening.

Mr. Jean-Pierre Kingsley: Thank you.

I am going to try and answer Mr. Godfrey's question, Mr. Chairman. I want to thank all committee members for their warm welcome and for having given me the opportunity to discuss this very important topic with them.

The Chair: Thank you very much.

[English]

We will suspend for three minutes.

» (1745)

The Chair: Welcome, all, as we resume our study of Bill C-7, an act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other acts.

We now welcome, from the Canadian Human Rights Commission, the chief commissioner, Mary Gusella, accompanied by a commissioner, Kelly Russ, and the acting secretary general, Robert Ward. We have 45 minutes together.

We invite you to make your presentation, followed by questions. When you hear me say this will be a four-minute round, that's four minutes for the question and answer. If my colleagues get carried away, sometimes there's no time for the answer, so the trick is to bootleg the answer in the next answer, because we are strict on time.

We invite you to make your presentation.

Ms. Mary Gusella (Chief Commissioner, Canadian Human Rights Commission): Thank you very much, Mr. Chair.

[Translation]

Mr. Chairman, honourable members, thank you for the opportunity to appear before you today on behalf of the Canadian Human Rights Commission as you begin your consultations on the First Nations Governance Act.

With me today is my fellow Commissioner, Kelly Russ, and Acting Secretary General of the Commission, Mr. Robert Ward.

» (1750)

[English]

I'm particularly pleased that Mr. Russ, who has been a valued member of the commission since 1998, is with us today. Mr. Russ is a lawyer whose work centres on aboriginal rights, the Indian Act, and other legislation affecting aboriginal peoples. He is a member of the Haida First Nation.

[Translation]

As you know, the commission has prepared a written submission, which has been given to the clerk. I would like to make a few introductory remarks. This is my first appearance before a parliamentary committee since my appointment as Chief Commissioner last August. I believe a strong and open relationship between the commission and parliamentarians is key to the commission fulfilling its statutory mandate.

[English]

That mandate of the Canadian Human Rights Commission is of course to protect and promote the human rights of all Canadians. I emphasize the word “all” Canadians, because although that is our mandate, that is not at present our reality.

Since Parliament passed the Canadian Human Rights Act in 1977, some Canadians, namely first nations people living on reserves, have not had full access to the human rights complaint mechanism. That is because section 67 of the act provides that:

Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.

Clause 42 of Bill C-7 that you're reviewing today proposes the repeal of section 67. This would allow first nations people for the first time to have full access to the commission complaint system, while still taking into account the special circumstances and rights of first nations.

The commission welcomes this change. I have had the opportunity to meet with National Chief Coon Come of the Assembly of First Nations, Chief Dorey of the Congress of Aboriginal Peoples, and Terri Brown, president of the Native Women's Association of Canada. I believe there is support in the aboriginal community for repeal of section 67 of the Canadian Human Rights Act despite significant concerns in other areas of this proposed legislation.

That being said, the proposed amendments could be improved. There are two areas that we would like to mention this afternoon: the interpretive clause, and the implications of the repeal of section 67 with regard to the Bill C-31 issue. I will make a few comments before I ask my fellow commissioner, Mr. Russ, to provide more details about these two issues.

The interpretive provision is in clause 41 of the bill, which reads as follows:

In relation to a complaint made under this Act against an aboriginal governmental organization, the needs and aspirations of the aboriginal community affected by the complaint, to the extent consistent with principles of gender equality, shall be taken into account in interpreting and applying the provisions of this Act.

In the commission's analysis of the interpretive clause, we bore in mind the specific historic and constitutional status of first nations, including the inherent right to self-government and the interest of first nations in the preservation of their communities, culture, languages, and traditions.

Mr. Russ.

Mr. Kelly Russ (Commissioner, Canadian Human Rights Commission): Thank you, Madam Chair.

This interpretive clause means that when the commissioner of the tribunal considers claims of discrimination against a first nation, they must balance the needs of the community with those of the individual. If there is a conflict, individual claims do not trump collective claims nor do collective claims trump individual claims. The objective is to find a middle path that will serve both interests. It should also be noted that the clause specifically provides for gender equality.

Although the commission supports the inclusion of an interpretive clause, we could advise Parliament that there needs to be clarity about what the term “needs and aspirations” of the community will mean in practice. Any lack of clarity could lead to lengthy and unnecessary litigation in the future.

There are a number of ways of giving more clarity to the interpretive clause. One option might be the development of government regulations to flush out its meaning. Other options include the development of interpretive guidelines or policy statements by the Canadian Human Rights Commission to clarify the scope of the interpretive clause. Whichever means are chosen, effective consultations with the first nations and other concerned parties will be important.

One way of ensuring that human rights complaints are dealt with in a way that balances individual rights with broader collective needs is to ensure that, whenever possible, human rights issues are resolved within the community where they occur. Clause 11 of Bill C-7 requires first nations to establish complaints and redress mechanisms to deal with certain types of complaints against band councils and their officers. This is a positive development.

However, the commission is concerned that, in many cases, the power of the redress bodies would be limited to ordering the council or the employee to reconsider their decisions rather than ordering remedial issues or measures. When a human rights complaint cannot be resolved at the community level, complainants should still have the right to file a complaint with the Canadian Human Rights Commission.

The impact of Bill C-31 on first nations human rights is a matter that requires special mention. The 1985 amendments to the Indian Act, Bill C-31, eliminated direct discrimination against Indian women. This was a positive change. However, the commission and many others have noted that Bill C-31 may not have resolved the problem of discrimination in the Indian Act itself.

This issue arises from the provisions of the Indian Act that limit the ability of the descendants of Bill C-31 women to pass Indian status on to their children. If section 67 is repealed, the commission will, for the first time, be able to receive complaints with regard to Bill C-31 without restriction.

However, the complaint system that is currently under the Canadian Human Rights Commission may not be the best means of resolving a problem that is essentially legislative in nature. Therefore, the commission urges the government to review the impact of Bill C-31 and take appropriate legislative measures to ensure that the Indian Act does not discriminate.

I'll ask the chief commissioner to conclude our remarks.

» (1755)

[Translation]

Ms. Mary Gusella: Finally, I would like to talk about the impact of the proposed repeal of section 67 on both the commission and first nations.

The commission is committed to ensuring that all complainants and respondents that have cases before the commission have their cases resolved fairly, expeditiously and efficiently. This is part of our commitment to ensuring a high level of services to Canadians.

Repealing section 67 will create new service challenges for the commission. Complaints investigations will be more complicated, more travel will be required, special training will be needed to ensure that our process is sensitive to the special circumstances of first nations.

All these are good things which the commission is committed to doing. But they will require resources that we do not currently have.

[English]

The repeal of section 67 will also impose new demands, just as it will do so on the Canadian Human Rights Commission. It will also impose new demands on first nations governments that will now be required to respond to human rights claims from their citizens. It is essential that they too have the capacity to deal with the claims effectively and fairly. We hope the government will be addressing this need.

Thank you, Mr. Chair. I would be pleased to answer your questions.

The Chair: Thank you very much. It was a very informative presentation.

We will proceed to questions. We can do five minutes. Therefore, the official opposition gets a bonus of seven minutes.

Mr. Brian Pallister: Thanks for your presentation, by the way. I'll invite you to do an “introduction to human rights 101” explanation of why it is that aboriginal Canadians couldn't be afforded exactly the same protections as all Canadians.

Ms. Mary Gusella: As I noted, the history is such that, until section 67 of our act is repealed, aboriginal Canadians who live on reserve are barred by statute from putting complaints into the Human Rights Commission. With this repeal we will see the complaints, and I would underline that we don't have at present a sense of the numbers of complaints, for a variety of different reasons that we can go into in a moment.

The way the bill is currently phrased we will be asked to use this interpretive clause to balance collective rights versus individual rights in such a way that one will not prevail over the other, as I mentioned, that one will not trump the other. This is because in certain instances individual rights could have the effect of being at variance with customs and culture in such a way that, as you can see, the government is putting it forward in order to protect both. It's really a question of looking to not have collective rights be a bar to an individual complaint, but by the same token, recognizing that there are issues that refer to the collective rights and that we must look for a way of balancing these two things.

In human rights law this is not unusual. In human rights law we frequently balance individual and collective rights. As I say, it's not a foreign concept. We do it at present even in the course of our normal work with respect to individual complaints.

¼ (1800)

Mr. Brian Pallister: But as you point out in your material here, of course, the absence of a clear explanation as to what the consequences of this interpretive clause are is a virtual guarantee of litigation, of ongoing frustration for aboriginal people, who, I expect, for the most part don't bother to use the services of the Canadian Human Rights Act right now because they simply feel they're not protected by it.

If this results in a perpetual confusion to aboriginal people, two things could happen. Either they'll continue to ignore the possibilities that may be available to them, although they are severely limited in accessing these services, as you well know, or you'll be deluged with concerns and complaints as a consequence of the false perception that aboriginal Canadians are actually protected by this.

I understand your arguments about balancing and so on in a way, but in another way it sounds like we're being asked to accept the fact that there should be a two-tier human rights environment perpetually existing in this country where aboriginal Canadians aren't afforded the same protections as non-aboriginal Canadians. So I'd ask you to go back to human rights 101 and just educate me further on why aboriginal Canadians can't be afforded the same human rights protections as non-aboriginal Canadians.

Ms. Mary Gusella: I'd like to comment on a couple of things you said. It is certainly the case at present that we don't know whether we will be flooded with complaints or receive few complaints. This is something that I think is going to have to be the subject of further consultations with organizations who could help us understand the pent-up demand, and also we will have to do some public education relative to the fact that these complaints are now receivable.

On the question of the interpretive clause, I think it is important, as we pointed out, to have a better sense of what this phrase “needs and aspirations” means. And that is in part the message that we're bringing to you today; we think further clarification, in consultation with aboriginal people on this phrase “needs and aspirations”, would help us and would prevent future litigation, which nobody wants to see, I believe.

The Chair: Mr. Godfrey.

Mr. John Godfrey: Thank you very much, and welcome. I think this is your debut performance before a parliamentary committee in your new capacity, and I want to welcome you.

When we had the Chief Electoral Officer in we asked his advice. We said in order that we might do the best job we could, if he had any thoughts that we could incorporate in a legal manner, through amendment or whatever else, we would very much appreciate getting those in a written form. As I listened carefully to what you had to say, for example, on the interpretive clause you said, well, we might be able to sort it out through regulation; you would be well-advised to sort out some of this through further consultation.

We're of course in the process of consulting people. Do you have thoughts in terms of the legal drafting, where you can see that we would be able to forestall some of these problems by amending the language as it pertains to the human rights provisions, as it pertains to lifting section 67, and so on? Because I think if you do, we would like to see that. I don't know whether we could ask you to do that, whether it would be appropriate.

You've expressed your concerns very well. To the extent that it's possible to clean up the language, understanding that this doesn't exclude regulations or further consultation, if there are things that you see that we can do--and I'm not asking to reduce it right now--might you be able to submit some sort of textual criticism here, with suggested amendments, just to make your lives easier?

¼ (1805)

Ms. Mary Gusella: One of the reasons that we in fact didn't come forward at this time was simply because we thought it was premature. We thought you would probably be hearing representations on this subject. To the extent that you do so, and we will be watching your hearings carefully, which I believe are going to be across the country, we will determine if we can be helpful to you in this respect.

Mr. John Godfrey: Then perhaps we may have the record read this. If I have the agreement of my colleagues, at the appropriate moment and well enough before we get into clause-by-clause so we have some time to think about it, can we actively ask you to do that if you think it's appropriate?

Ms. Mary Gusella: All right, we can undertake to do that.

Mr. John Godfrey: Thank you.

The Chair: I will also forward you a copy of our calendar for the next few months so you'll have an idea of where we are at what time. And it could change, but not drastically.

Mr. Pallister.

Mr. Brian Pallister: I think I sort of get your answer to my first question there. We have to show respect for other cultural differences even when they're at odds with our own values. That's what we're getting at here, isn't it?

So if human rights aren't afforded protection in aboriginal communities the way we would like to see them as a Canadian society, we have to have a special clause in our interpretive clause here to make sure we show our tolerance towards a lack of respect for human rights by respecting those in another community who may not respect human rights in the same way we would. Is that, in essence, what this is about?

Ms. Mary Gusella: The aim is to achieve an appropriate balance between individual rights and aboriginal community interests in terms of the deliberations we undertake.

Mr. Brian Pallister: The respect for human rights might somehow be a damaging thing to communities. So we then have to be careful not to hurt the community's best interests by respecting the equality of human beings to be afforded certain rights. Is that what we're after here?

Let's go on to redress mechanisms. This is where theory runs into practice a little.

I tend to agree with you when you say that the best redress mechanisms are those that are closest to the communities they serve. That's good in theory. The problem with a lot of bands is there are 100 people on those bands. So a chief-appointed redress officer...when the majority of complaints are directed at actions and decisions taken by the chiefs and councils...because chiefs and councils have an inordinately large amount of centralized power in bands.... Most of the reserves in this country are dominated by the chiefs' and councils' decisions and the residents are severely and profoundly impacted by each decision they make.

So to suggest that a chief and council are the best people to appoint a redress officer is, I think, sharply at odds with the reality of these communities, despite the theoretical advantages it may have. Isn't it one of the major important attributes of any redress mechanism that it be impartial, arm's-length, independent? How is it possible that we can balance those things in reality on reserves that are predominately very small and that have very small numbers of people inhabiting them?

Ms. Mary Gusella: Situations in each band vary. I will share with you the fact that over the past number of years, thanks to decisions of the courts, we have in fact received complaints from native people. They haven't been totally excluded. Thanks to the interpretation of the courts, we have been receiving and examining cases that relate to matters that are not within the Indian Act purview.

We do know that, in some situations, we mediate matters, at the present time, in an attempt to achieve a resolution. As a principle, we do believe that things need to be looked at, first and foremost, as closely to the situation as possible.

Having said that, not all situations are the same and not all cases are able to be resolved in that way. It's why it is so important that a complainant should be able to pursue a complaint with the Canadian Human Rights Commission.

¼ (1810)

Mr. Brian Pallister: I share your hope. I don't want to be blinded by my hope, though, that this model might work. It might work excellently. It might work very well in 350 or 450 communities. I have to concern myself with where it's not going to work worth a darn. We have to make our minds up on how we're going to develop the codes so they work effectively to protect the best interests of people.

Bear with me. I have a reserve southwest of Portage la Prairie that has been going through extreme conflict for months with violence, stabbings, and people in peril. Can you imagine? It's largely over abuse of power by the previous chief who the minister replaced. He won't be able to replace the chief under this law, under this proposed bill, because there's nothing financial here.

Can you imagine if the chief had chosen to appoint someone as a redress officer and the people directed their complaints to the redress officer, who reports directly to the chief? Can you imagine how it would ever possibly work?

Then imagine the frustration of those people taking their complaints to the redress officer, who goes to the chief saying that what he has done is wrong and that he'd like him to reconsider. Is that your maximum power? What a hammer to carry into the chief's office. They'd like you to reconsider your decisions.

This is much ado about nothing. This isn't going to protect the interests or rights of aboriginal people. If we have this mechanism as our best hope for protecting aboriginal people on reserves, I don't see how they're going to feel any more protected than they do now from the abuses of a very few--and I want to make that point--community leaders who, I would say, would be in this category of threatening the rights of individual people and their bands.

It's those people and those abuses that we have to bear in mind when we're considering this.

Ms. Mary Gusella: I think it is important to note that from the kinds of issues of which you speak, at the present time those people have nowhere to go. Under this legislation, with the repeal of section 67, they will for the first time have somewhere to go, even if a redress mechanism is established at the local level.

Mr. Brian Pallister: They have the minister to count on. I beg to differ. The minister is abdicating his ability to take over and appoint a third-party manager under this bill. They have the minister to count on.

What they will now have is a chief in council who will be empowered by the ability to make new codes, with enforcement officers who have broad powers of search and seizure. Chiefs and councils will have tremendous additional power at the local level. The marginalized people will not have such powers and will be endangered further by the presence of greater power in the hands of those chiefs and councils.

They are the predominant reason, I expect, for the complaints you receive right now. They certainly are in my office.

Again, I express my concern here that the model you appear to applaud in your comments, by saying “best at the local level”, is not a practical model or an achievable way to protect the rights of individual aboriginal people on reserves.

Ms. Mary Gusella: It is not an exclusive solution, though. The fact is that in the event that an individual does not want to use that redress mechanism, they can still come to the Canadian Human Rights Commission. That's something they cannot do now.

Mr. Brian Pallister: In the interpretive clause, yes.

The Chair: Mr. Godfrey.

Mr. John Godfrey: I'm interested in the second point in terms of both Bill C-31 and section 67. I need help here because what we're amending is a part of the Indian Act that deals with governance.

By removing section 67, have we in effect said that there is now no part of the Indian Act that is immune, as it were, from the operation of human rights?

Even though we're amending a part, taking away section 67 means that no one can ever say that it's in the Indian Act and you can't make an appeal to the Human Rights Commission. Is that it?

Ms. Mary Gusella: Yes, in fact the repeal of section 67 will mean this. Aboriginal persons living on reserves who feel that their rights have been breached, that they have been discriminated against on any of the 11 grounds in the Canadian Human Rights Act, will now, for the first time, be able to seek redress by laying a complaint with the Canadian Human Rights Commission.

¼ (1815)

Mr. John Godfrey: What you're urging us to do, I guess, is to say that since this covers the entire Indian Act, no one can ever say, “Can't talk to you because of the Indian Act”. Perhaps we haven't thought through the full implications for Bill C-31, for example. There will be repercussions, there will be consequences, that are not fully anticipated in this bill because there will be a spillover effect. Is that basically what you're arguing?

Ms. Mary Gusella: Perhaps I could ask Commissioner Russ to speak about Bill C-31, because we do expect there are potentially large numbers of complaints that could be out there relative to Bill C-31.

Mr. Kelly Russ: There's always an inherent difficulty with Bill C-31 in that some views are that it's basically a termination bill. It will end the right of certain individuals in Canada to qualify as status Indians. By way of example, there are some parents who have children who are status Indians, but if they don't marry another status Indian the status will not pass on. That's the difficulty with Bill C-31. It has the effect of terminating the provision for granting status to certain individuals who qualify under the Indian Act.

With regard to the number of complaints that may come forward with the repeal of section 67, I think we would have to agree that this is an unknown. We also have to agree there will be complaints with the repeal of section 67.

Mr. John Godfrey: Did section 67 shield Bill C-31 from those criticisms? Quite apart from the governance issue, people may mount a challenge and say, well, why is it if you happen to be a male you continue to have these rights and if you're a female they expire after two generations?

We had the Congress of Aboriginal Peoples at the table making the same point some hours ago. So one of the unintended consequences may be the impact on Bill C-31 and a much wider definition of who qualifies for status.

Mr. Kelly Russ: That's a fair statement.

Ms. Mary Gusella: It's huge.

Mr. Kelly Russ: It will reopen potentially the class of persons who qualify as status Indians. I think that is a possible outcome. And the number of individuals who would possibly qualify as a class, i.e., within status Indian, could be quite large, or it could be quite small. We don't know.

Ms. Mary Gusella: We won't want to prejudge that issue, because we don't have a case in front of us to look at. I think that's why in our submission we make the point that this is a legislative issue and we would wish that it would be solved through legislative means and not under the complaints system of the Canadian Human Rights Act.

Mr. John Godfrey: You mean the Bill C-31 issue?

Ms. Mary Gusella: Yes.

Mr. John Godfrey: Wow! Well, thank you very much.

The Chair: Mr. Pallister.

Mr. Brian Pallister: How many complaints are there a year to your office?

Ms. Mary Gusella: I'll ask the secretary general to address those issues.

Mr. Brian Pallister: Thank you.

All I need is a ballpark figure. I want to lead to another issue, but I am curious.

Mr. Robert Ward (Acting Secretary General, Canadian Human Rights Commission): I interpret your question, sir, as in relation to the aboriginal community?

Mr. Brian Pallister: No, total.

Ms. Mary Gusella: In general.

Mr. Robert Ward: It's about 1,400 or 1,500.

Mr. Brian Pallister: And total aboriginal?

¼ (1820)

Mr. Robert Ward: In terms of total aboriginal at the present time it's up to 50. It varies. It's quite small, because of course the clause--

Mr. Brian Pallister: That's what you proceed with, but what do you get? It says in your notes here that you proceed with about 50 claims, but surely you don't proceed with every claim you get.

Mr. Robert Ward: No, indeed, it's about half that. It's about 35, depending on the year.

Mr. Brian Pallister: That you proceed to investigate....

Ms. Mary Gusella: Let me add that your point that it is as a result of section 67, and I think it is clearly the case...the commission is not well known nor well understood among first nations people. We will have to do extensive outreach in the communities to ensure that people know how to access their rights. I think that's the key point.

Mr. Brian Pallister: I understand that. You make the point in your information to us that many aboriginal people may not avail themselves because they believe they're totally excluded. This proposal with this caveat will allow you to communicate to them that they may sometimes, in certain situations, be able to be protected under the Canadian Human Rights Act, depending on what may be the interpretation at a later date. Correct?

Ms. Mary Gusella: We will be saying to them that they now have a right to lodge a complaint with the Canadian Human Rights Commission.

Mr. Brian Pallister: Which they had before.

Ms. Mary Gusella: No, because under section 67 any--

Mr. Brian Pallister: No, but you dealt with thirty, forty, fifty--

Ms. Mary Gusella: The courts over the years have allowed us to have jurisdiction over cases that were not seen to be derived from the authority of the Indian Act.

Mr. Brian Pallister: Now, I want to get into how practical is this, really, for my friend, who's a single mom with four kids on a reserve, to go to the Canadian Human Rights Commission to get her rights defended. I want you to tell me how practical you think that really is. I don't know the figures off the top of my head for Canada, but I know many communities are isolated and rural or remote communities. What's involved?

Ms. Mary Gusella: The first thing that's involved, as I mentioned, is an education program to allow people to be aware of their new right to lodge complaints and how to do it. There will be, clearly, more of a requirement for continuous outreach on our part in order to maintain the awareness level.

Mr. Brian Pallister: No, I'm not talking macro now. I'm just saying she wants to make a complaint and she files a complaint with you by phone or whatever. Then what happens? What does she have to do? What's her obligation to you to fulfil her part of this process? To see this claim go forward, what does she have to do?

Ms. Mary Gusella: She provides us with all of the details--

Mr. Brian Pallister: She can stay at home, though, right?

Ms. Mary Gusella: Yes. In fact, what it will demand on our part is that we will have more travel and in-person investigation, because I think it's conceivable, and quite likely, that we will have investigators going to very remote locations we previously would never have gone to unless we had a particular claim from that area.

Mr. Brian Pallister: So just in terms of cost containment, I suppose it would be awfully important to understand exactly what is entailed by these rights so that you don't have to waste a lot of your time, and energy, and resources trying to protect people's rights when they actually aren't protected at all.

Ms. Mary Gusella: I don't understand the latter part of your question because--

Mr. Brian Pallister: You have this interpretive clause. You alluded to it and the need for it to be clear. I'm simply reinforcing the point you've made in your presentation. If it's not clear, you're going to end up having to devote a lot of resources to trying to support contentions that won't be upheld.

Ms. Mary Gusella: They may or may not be, but the balancing of collective and individual rights is something that in fact doesn't go one way or the other. Oftentimes there is a way of balancing both sets of rights. There won't be any way for the collective rights to negate the individual rights, but we will have a right to examine whether those collective rights are in fact bona fide and whether they are truly implicated in terms of the individual right.

I'm certainly not prepared to say that the balancing of rights is a negative thing. I think it's going to be complex; it's going to be a big challenge. We do wish there were more clarity in that phase “needs and aspirations”, and we're hopeful that in the course of the next few months more clarity will be brought to that. But we clearly see this is an important step from the point of view of providing equal access and, potentially, equal treatment to persons who didn't have it before.

The Chair: Thank you.

Thank you, Mr. Pallister.

Ms. Karetak-Lindell, please.

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

I want to go back to the numbers you have. You had very low numbers for aboriginal.... I'm wondering if it would be safe to say that, in general, people don't launch complaints partly because of their ignorance of their human rights and of the fact that there is a procedure for people in this country. When you look at the numbers from the Congress of Aboriginal Peoples, the majority of aboriginal people live off reserve and therefore would not necessarily be subject to the Indian Act anyway.

I come from a part of the country that is not subject to the Indian Act either, but I don't see very many people launching complaints to the Human Rights Commission, partly out of lack of knowledge of the system and because of the distance involved in going through the process.

So I think, in general, we can say that in the future if the numbers of people putting in complaints increases it will not necessarily be because of this particular amendment, but maybe more that people are aware of their rights and trying to exercise them. That will be a testament to the education of Canadians about their ability to participate in these rights they all enjoy, and while every Canadian has these rights, not all were fully knowledgeable about what they were and how to exercise them. Would that be correct?

¼ (1825)

Ms. Mary Gusella: Absolutely. I think the question of awareness is a key one in terms of people exercising their rights under the act.

The Chair: Thank you all very much for an excellent, very helpful presentation. It probably identified a few problems that we will have to work on.

I invite you to make closing remarks, if you have any.

Ms. Mary Gusella: By way of closing remarks, maybe I could just reiterate several points.

The first is that as the Canadian Human Rights Commission we do support the repeal of section 67 of our act. It's a measure that we have long advocated, and we do welcome the proposed extension of human rights protection under the act to members of Canada's first nations. We believe they have the right to full human rights protection under the law, as do other citizens, and this will mean they will have it. This will apply to both services and employment.

We've talked a lot about the interpretive clause, so I won't reiterate that point.

Finally, we do want to commit to ensuring a high level of services, and this is going to have some important resource implications beyond what we are operating with at the moment. We are committed to working with parliamentarians, with the Department of Indian and Northern Affairs, and of course with first nations organizations in order to give full access to complainants to the process for first nations peoples.

The Chair: Thank you very much.

Colleagues, this completes today's sessions on Bill C-7. We will regroup tomorrow afternoon at 3:30 to continue. Thank you all.

The meeting is adjourned.