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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Monday, March 17, 2003

1235

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

Chief Earl Commanda (Chairman, Serpent River First Nation, North Shore Tribal Council)

1240

1245

1250

1255

1300

The Chair

Mr. Reed Elley (Nanaimo—Cowichan, Canadian Alliance)

Chief Earl Commanda

1305

Mr. Reed Elley

Chief Earl Commanda

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

1310

The Chair

Mr. Pat Martin

Chief Earl Commanda

The Chair

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

1315

Chief Earl Commanda

The Chair

1320

Chief Earl Commanda

The Chair

Mr. André Émond (Associate Professor, Laurentian University)

1325

The Chair

Mr. André Émond

1330

1340

1345

The Chair

Mr. André Émond

The Chair

Mr. Reed Elley

The Chair

Mr. Reed Elley

The Chair

Mr. André Émond

Mr. Pat Martin

1350

Mr. André Émond

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

Mr. André Émond

The Chair

Mr. André Émond

The Chair

Mr. André Émond

The Chair

1400

Chief Patrick Madahbee (Aundeck Omni Kaning, United Chiefs and Councils of Manitoulin)

Chief Franklin Paibomsai (Whitefish River First Nation; United Chiefs and Councils of Manitoulin)

1405

1410

Chief Patrick Madahbee

1415

1420

Mr. Terry Debassige (Member, M'Chigeeng First Nation; United Chiefs and Councils of Manitoulin)

Chief Franklin Paibomsai

1425

The Chair

Chief Franklin Paibomsai

The Chair

Chief Franklin Paibomsai

The Chair

Chief Franklin Paibomsai

The Chair

Mr. Reed Elley

Chief Franklin Paibomsai

Mr. Reed Elley

Chief Franklin Paibomsai

Mr. Reed Elley

The Chair

Mr. Pat Martin

1430

The Chair

Mr. Stan Dromisky

1435

The Chair

Chief Patrick Madahbee

Chief Franklin Paibomsai

1440

The Chair

The Right Reverend Caleb Lawrence (Bishop of Moosonee, Anglican Church of Canada)

1445

1450

The Chair

Mr. John M. Corbière (As Individual)

1455

1500

The Chair

Mr. John M. Corbière

The Chair

Mr. John M. Corbière

The Chair

Mr. John M. Corbière

The Chair

Mr. John M. Corbière

The Chair

Mr. John M. Corbière

The Chair

Mr. John M. Corbière

The Chair

Ms. Connie A. Couchie (As Individual)

The Chair

Ms. Connie A. Couchie

1505

1510

The Chair

Mr. Reed Elley

Ms. Connie A. Couchie

The Chair

Mr. Pat Martin

Ms. Connie A. Couchie

The Chair

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

1515

Ms. Connie A. Couchie

The Chair

Ms. Connie A. Couchie

The Chair

Ms. Anna McLeod (As Individual)

The Chair

Ms. Eva Pitt (As Individual)

1520

The Chair

Ms. Eva Pitt

The Chair

Ms. Esther Osche (As Individual)

1525

The Chair

Ms. Esther Osche

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 042

2nd SESSION

37th PARLIAMENT

EVIDENCE

Monday, March 17, 2003

[Recorded by Electronic Apparatus]

Â (1235)

[English]

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

We welcome, from the North Shore Tribal Council, Chief Earl Commanda, chairman of Serpent River First Nation, and Harvey Trudeau.

On behalf of everyone, I would like to thank you very much for agreeing to present early. This will assist the committee enormously as we move on to Thompson, Manitoba. Thank you very much.

We have 45 minutes together. We invite you to make a presentation and we'll follow with questions. Please proceed.

Chief Earl Commanda (Chairman, Serpent River First Nation, North Shore Tribal Council): Meegwetch. Bonjour.

My Cree brothers, wah chei yay. I want to welcome the members of the Standing Committee on Aboriginal Affairs to Anishinabek territory. I say meegwetch to Chief Gail and our Whitefish Lake First Nation brothers and sisters for the use of their traditional territories for this gathering.

My name is Chief Earl Commanda. Minighii Zhatdo Nini is my Ojibway name. I'm of the Bird Clan, the hummingbird, from the Serpent River First Nation, chairman of Mamaweswen, the North Shore Tribal Council. With me is a councillor from the Sagamok Anishinabek First Nation, Harvey Trudeau, of the North Shore Tribal Council.

To allow more questioning, I'd like to try to be as brief as possible, because you have the full presentation. I'll just focus on the highlighted presentation that I have here this morning.

North Shore Tribal Council is a first nations organization comprised of seven first nations situated between Sudbury and Sault Ste. Marie.

Regarding our role as tribal council, in the early 1980s, one of the policy priorities of the Department of Indian Affairs was to develop a tribal council and to encourage first nations to organize tribal councils amongst themselves. The motivation back then was downsizing and devolution. In other words, the Department of Indian Affairs was downsizing and closing district offices, which meant less personnel and less access for first nations to Department of Indian Affairs services. Indian Affairs determined that tribal councils should be established and equipped with basic resources to provide some basic advisory services, financial management, band governance, community planning, technical services, and economic development.

One of the activities of the department right now is to review tribal council policies for purposes of renewal. Every activity the department does is up for renewal, whether it be education or other aspects.

Naturally, the First Nations Governance Act will figure prominently in the renewal and modernization of tribal council policy. Such is clearly established in Department of Indian Affairs documentation, which reads: “Implementation of the central functions of FNGA: leadership selection, governance, financial management and accountability codes, by-law establishment and enforcement and appeal and redress mechanisms may create new roles for TCs.”

In addition to the First Nations Governance Act, the documentation also suggests that the tribal councils will also have roles in connection with the proposed Fiscal and Statistical Management Act with the development of what has been termed second-level services for education and social programs.

According to the departmental documentation, the tribal council average for advisory service is about 5.14 person-years. But 40 of the 78 existing tribal councils have fewer than five person-years to deliver all of these five advisory services.

Tribal councils also enter into agreements with other federal departments—Health Canada and HRDC—to deliver programs and services. The departmental documentation also discloses that, “In view of the obligation to offer the five statutory services, it is difficult for TCs to specialize in a field and become centres of excellence for the delivery of certain services.”. The documentation also states that “More aggregation (i.e. fewer TC's councils representing more FNs) would create more efficient distribution of advisory services resources.”

As we review where and what role the tribal council would play in a model implementing the First Nations Governance Act, this kind of reality is disturbing.

Â (1240)

We note that paragraph 3(b) of the bill states that one of the purposes of this act is “to enable bands to respond more effectively to their particular needs and aspirations, including the ability to collaborate for certain purposes”.

The formulation of our tribal council and others was driven by the departmental policy, in large part. Clearly we have benefited from this working together, but we would have evolved more appropriately and satisfactorily had we come together completely of our own volition.

I say this because certainly you've heard some of the discussions around treaty relationships. The tribal council concept is a good one, but it does produce its own challenges because of the shortages of services. No doubt first nations suffered a decline in services as a result of changes twenty years ago, and we do not want to see a repeat of that development with this new First Nations Governance Act.

The tribal council encourages the committee to inform itself about such matters and ask questions of the Department of Indian Affairs, the minister specifically, and his officials on what extent the First Nations Governance Act--and as you heard from M'Chigeeng recently, department bullying and financial blackmail--will impose tribal-council-level governance on first nation communities, and how much larger a tribal council will have to become to be more efficient, in terms of the distribution of those advisory service resources.

Collectively, we are not afraid of more responsibility. However, Indian Affairs planning, which likely does not include ensuring that first nations want the same results in terms of tribal council policy and receive adequate resources, will create more problems than solutions.

I want to speak briefly about the bureaucracy of first nations. We've heard from some representatives here that the availability and affordability of skilled people to perform governance roles and carry out governance responsibilities is a critical factor in delivering good government.

In the minister's appearance before this committee the minister stated: “The finest institutions of governance--the most sophisticated fiscal tools--mean little to people without clean water, or adequate housing, or an education.” It is also a reality that the finest institutions of governance, which the First Nations Governance Act will not necessarily establish, mean little if the people are not available to make the institutions and governance work.

In our estimation, the First Nations Governance Act initiative has been and continues to be negligent in not properly addressing capacity issues. Indeed, we are aware that the Auditor General of Canada urged this committee to seriously investigate the issue of capacity and cost associated with implementing a regime such as the First Nations Governance Act.

It is easy to understand the Auditor General's concerns, in view of the negligence of the government underestimating the cost of establishing, for example, a national gun registry by at least a billion dollars. The gun registry fiasco contemplated the establishment of a national gun registry. The First Nations Governance Act contemplates the reformulation of 600 community-based first nations administrative regimes that will have functions beyond a simple gun registry.

The minister is on record as estimating that the additional cost will be in the neighbourhood of only $110 million. We are well aware that the minister advised his cabinet colleagues, in order to get approval, we assume, that there will not be a requirement for new moneys.

In our view, $110 million is grossly inadequate and not likely connected to any meaningful process of assessment and costing. Rather, it is likely that the $110 million figure represents a quick and dirty process and estimate of identifying moneys in the DIAND budget that can be easily reallocated without anybody noticing.

Â (1245)

A serious attempt at addressing good governance would recognize that it is a capacity development exercise focused on equipping individuals and the governance organization in which they work with the skills and tools necessary to perform functions effectively, efficiently, and sustainably.

The capacity development approach requires capacity assessment as a first step. If the committee is going to do anything in terms of its recommendations back to Parliament, clearly we see there needs to be a recommendation for capacity development. The initiative that began in 2000 has not taken this step, which is a serious omission that constitutes negligence. It is another example of the federal government not fulfilling their fiduciary obligation to act in the best interest of the beneficiary, the first nations.

Our first nation communities are seriously lacking in adequate personal and financial resources to handle their current functions. The fact that our governmental operations are coping with overwhelming need and expectation is evidence of the fact that our people are committed to survival and advancement.

All of our communities have clear governmental organizations supported by governance personnel, who usually have a multitude of functions related to management, policy development, reporting, service delivery, committee work, etc., and perform these functions usually without assistants. We are dedicated but stressed.

We work to maintain a basic level of governance that probably does not measure up to standards of effectiveness and quality, but we are not at fault. There is no fat in our governmental operations.

The First Nations Governance Act will present more challenges, and it seems no one has determined the level of the new challenge and the additional training and staff required, never mind how existing resources can be used more effectively to achieve effective governance.

The First Nations Governance Act approach has been to arbitrarily determine accountability and transparency requirements, package them as good governance, and arbitrarily establish a low-cost estimate so as to lower expectations. The federal government is setting up another boondoggle. Worse, the federal government is going to produce more harm in our communities by this proposed act.

We have experienced the federal government's lack of consideration of the challenges related to implementation. Examples such as Bill C-31 and, more recently, the implementation of the new election regulations post-Corbiere have resulted in first nation governments being downloaded with additional responsibilities and obligations without the requisite transfer of financial resources to equip us with the tools to properly administer, manage, and comply with new policies and rules.

On treaty relationships and principles, it should come as no surprise to this committee that the members of the North Shore First Nations believe that the solutions in addressing inadequacies in the Indian Act for first nations governance lie in restoring and revisiting the treaty relationship that currently exists between the first nations, your government, and the people you represent.

The treaty relationship is a government-to-government relationship. The fact that we, as first nation leaders, have to appear before a parliamentary committee is inconsistent with that original relationship. No offence to you, but we should be dealing with the executive arm of government, not the legislative arm.

The Royal Commission on Aboriginal Peoples observed that

Treaty making can enable the deepest differences to be set aside in favour of a consensual and peaceful relationship. The parties to a treaty need not surrender their fundamental cultural precepts in order to make an agreement to coexist. They need only communicate their joint desire to live together in peace, to embody their own laws and institutions, respect for each other, and fulfill their mutual promises.

Â (1250)

The members of the North Shore Tribal Council are signatories to the Robinson-Huron Treaty of 1850. The chiefs and headmen of the first nations that attended the trading negotiations in Sault Ste. Marie went there as the recognized leaders of their communities, pursuant to their own customs of leadership selection. They did not attend there as Indian Act elected leaders, nor was the Crown interested in verifying their leadership credentials.

In our view, any legislative measure on the part of the federal government should be directed at implementing RCAP's recommendation 2.2.8, to the effect that the federal government introduced companion treaty legislation to support recommendation 2.2.11 that states:

“The following matters be open for discussion in treaty implementation and renewal and treaty-making processes:governance, including justice systems, long-term financial arrangements, including fiscal transfers, and other intergovernmental arrangements;lands and resources;economic rights, including treaty annuities and hunting, fishing and trapping rights;issues included in specific treaties (for example, education, health and taxation); andother issues relevant to treaty relationships identified by either treaty party.”

I want to speak a little bit about social cohesion and societal integrity. First nations are always questioned about what we want. We want healthy, stable, and productive communities that will continue to exist in the shape and form that will evolve to serve and reflect our future generations. However, in order to achieve such health and stability in our communities, we need effective governments.

Recent studies such as the Royal Commission on Aboriginal Peoples, the Harvard study on nation-building, and the work of the United Nations economic development program established that community cohesion is what supports and promotes the long-term integrity of a society.

North Shore first nations firmly believe that such studies are correct. We need only look at the history of our communities to understand and appreciate that the principles of sharing, caring, and respect for one another in a community context went a long way toward ensuring that our communities were harmonious and self-sufficient. Clan or family systems and concepts governed our communities. The systems ensured inclusiveness in terms of consultations, deliberations, and decision-making.

The systems also ensured that the community members knew their responsibilities and the roles of certain members of the community in the maintenance of harmony and accountability. Community-based forms of social safety nets meant that everyone's needs and interests were looked after. These systems were held together by adherence to the customs and traditions that were known to be fundamental and essential to community and individual well-being.

It is our community cohesion that has been so severely disrupted by the federal governmental laws and policies over the past centuries. They have rendered our communities into various states of social and political dysfunction and economic dependence. The Indian Act system promoted individual political rights, compartmentalized governance, and imposed dependence on external authority for approvals on essentially every aspect of community life.

The First Nations Governance Act continues that legacy. It does nothing to promote community harmony. Quite to the contrary, the First Nations Governance Act promotes the notion that community leaders and officials are not to be trusted, hence the need for all of the measures contained in the bill that are directed at accountability and transparency. Therefore the First Nations Governance Act builds on negativity.

Â (1255)

On existing accountability requirements, clearly accountability is the cornerstone of the First Nations Governance Act. Therefore all of the talk about empowerment is spin. First nations governments are accountable. First nations governments work within the framework of legal, political, and administrative accountability. The federal Financial Administration Act is what keeps the federal government house in order. It is also legislation that has a significant and direct impact on first nations government.

Much of the Financial Administration Act's impact on first nations government is reflected in Treasury Board of Canada Secretariat policy on transfer of payments with states. There must be a written agreement between the department and the recipient of a contribution that identifies the condition of the contribution, the expected results to be achieved, the obligations of the party involved, and the conditions for payment.

Again, not to go any further, the full impact of the Financial Administration Act and the transfer policy is set out in comprehensive funding arrangements between Her Majesty and the individual first nations, tribal councils, or other first nations organizations that receive federal funding.

In all of our first nations communities along the north shore, elections are held pursuant to the Indian Act, and the elections are held every two or three years. These regular elections are conducted by secret ballot, which entitles every member of a band, whether on or off reserve, the right to a vote, so long as they are 18 or older and are not excluded otherwise because of mental incompetence.

In all of our first nations along the north shore, governments have administrative structures and organization that have developed despite the Indian Act. The level of organization is quite remarkable given that it is only in the past 30 years that most of our first nations governments have developed and evolved.

The First Nations Governance Act does not offer jurisdiction and full institutional capacity; rather, the First Nations Governance Act seeks to appropriate and control the development in our communities and confine it into a modern version of the Indian Act regime. Ultimately, the First Nations Governance Act merely legislates existing accountability and transparency requirements and stifles first nations governmental evolution by imposing twenty-first century colonialism.

Turning to departmental and federal government problems, in October of 1996, after five years of consultation, research, analysis, and deliberations, the Royal Commission on Aboriginal Peoples determined that

An essential condition for change is the establishment of effective agencies through which the federal government can fulfill the commitments called for in our recommendations. If the last several decades have revealed anything about federal administration in aboriginal affairs, it is that no real change will occur without agencies structured in such a way as to facilitate change, staffed by committed people who can work unencumbered by conflicting policy instructions.

I have added the emphasis here.

Therefore, as the means to achieve change, the commission recommended that

...the Government of Canada present legislation to abolish the Department of Indian and Northern Affairs and replace it by two new departments: a department of aboriginal relations and a department of Indian and Inuit services.

This is taken from recommendation 2.3.45.

No one will argue that change is required and desired on matters concerning first nations governance. But there is a right way and a wrong way. The right way is to address and change relations, laws, policies, and attitudes that insist on the control of first nations lives and communities by external forces.

The First Nations Governance Act does not represent change. Rather, it is about maintaining the status quo.

· (1300)

In conclusion, we see Bill C-7 is contrary in many ways to human rights, independent and quality research, international experience and best practices, legitimate consultations, and finally common sense. The position of the first nations of the North Shore Tribal Council is that we oppose the First Nations Governance Act, because we feel it does nothing to further advance the notion of governance, government in first nations, self-government, nationhood building. We see that in no way would this act assist us in advancing that goal of first nations and our tribal council.

Yah w^ko. Meegwetch.

The Chair: Thank you very much.

We have twenty minutes left. We'll do a first round of five minutes. That should allow four or five minutes for closing remarks.

Mr. Elley.

Mr. Reed Elley (Nanaimo—Cowichan, Canadian Alliance): Thank you very much, Mr. Chairman.

Thank you for coming and sharing with us today a very eloquent presentation on how you feel and how your people feel. One of the questions I'd like to ask is, if indeed the present First Nations Governance Act does not meet the standards within native communities for what it purports to do in terms of financial accountability and elections and the governance issues it addresses, what do you think, then, we should be doing at the present time to bring, as you suggest very eloquently in your submission, some of the changes that need to take place within your communities? What do you think we should do?

Chief Earl Commanda: When we look at the whole notion of what's been happening with the Indian Act overall—very much the “Great White Mother” in the beginning, and now the Minister of Indian Affairs presently—we say we have moved away from the government-to-government relationship. If this act suggests we do something, certainly complementary legislation is what's needed.

When we look at first nations negotiations on first nations governance across the country—certainly when we take a look at the more recent examples of it—clearly the Cree-Naskapi Act is an example of that. The other example is in B.C. When we talk about the resources necessary, yes, we know the fiduciary responsibility is only there to provide the basic necessity. When are we going to go beyond the basic necessity to look at what communities need if they are to aspire to being self-sustainable? I think this speaks not just to our relationship with the federal government, but more to our need to have a greater relationship with the province as well, in terms of things like resource-revenue sharing.

The treaty relationship doesn't just speak about an ability to sustain ourselves for our livelihood—food or clothing or whatever. It really spoke to the issue of our livelihood in terms of its entrepreneurial, commercial aspect. We need to then become more involved in the forest sector, the commercial fishing sector, and mining if necessary. In terms of this particular act—certainly right now you've heard an example—just to develop an industrial park on an Indian reserve you must have a referendum to surrender your land.

I think much of that work has been contemplated in terms of some of these self-government approaches. We are within the Anishinabek territory. We have tried to take a look at where the inherent right of self-government could be in terms of restoring the jurisdiction of first nations people. I think elections are one of the areas of responsibility that should be outside the premise of a new Indian Act.

When you look at standards, yes, we recognize the Indian Act needs to be changed, needs to be updated, needs to be modernized. We've been in a process for some years of recommending various changes to the act. This one only speaks to the accountability for, the administration of, and the management of resources. We're prepared to work with government in looking at changes that are going to be compatible with where first nations want to be in terms of their nationhood or their first nation communities.

· (1305)

Mr. Reed Elley: I come from British Columbia, and in our treaty-making, we have moved from that one fell swoop thing to doing incremental treaty-making, where you take the really tough things...not the really tough things, but the things that can be done first, and work at them and get them done.

Do you think this means we should be going back across the country and reopening treaties so there's individual consultation going on between first nations and government, so it works for them all across the country, rather than this one fell swoop thing that this seems to do?

Chief Earl Commanda: What works for B.C. might not necessarily work for Ontario, and what works for Ontario might not necessarily work for Saskatchewan.

I think when we take a look at our concept of treaty, we never surrendered the land that was set aside for us, and we retain in treaty our traditional right of hunting, fishing, trapping, and gathering. When we translate that right, we say that is the basis on which we should be negotiating self-government, on a government-to-government basis within Canada. In terms of taking a look at that basis, we say it's more than the $4 a year we are getting now in terms of treaty payment. It's resource revenue sharing.

The Chair: Thank you.

Mr. Martin, for five minutes.

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

Thank you, Chief Earl Commanda, for an excellent brief. It was very thorough. I don't have enough time to do it justice.

You cited the Harvard review as one of the policy documents the government could have drawn from. We've had a brief to the committee from the author of that review, who states clearly that this legislation undermines the very idea of self-governance--the author of the seminal, most authoritative document on aboriginal self-governance and the experience. I'd ask you to expand on that, but I'll ask all my questions and then ask you to answer.

In your closing remarks you said you think it could even be a human rights violation issue. There are two clauses in the proposed legislation I'd ask you to comment on. Clause 24 allows for a band enforcement officer to enter any place on the band's reserve at any time, without notice, to carry out any inspection the officer deems necessary. The search and seizure aspect of that surely violates rights.

On the privacy rights, when you talk about economic development and resource management as the way of the future, were you aware that subclause 9(3) mandates that all the financial statements of the band be made public to anyone, not just to your band members, but even to the competition, perhaps, to the business you've established in your community?

Do you view those clauses as invasions of your privacy rights, and ultimately, human rights?

· (1310)

The Chair: Before you respond, I'd like to make one clarification. It says may enter anywhere “other than living quarters”. I think that should be noted.

Mr. Pat Martin: Okay. You're not allowed to kick down the door of living quarters. You can kick down the door of anything else.

Chief Earl Commanda: We have a hard time with the collective rights of a nation--or in our case, treaty-based communities--versus the rights of the individual. Clearly, the Canadian human rights code begins to infringe on what we call our aboriginal and treaty rights.

When will there ever be a process where we begin to reconcile what we certainly want to maintain and retain in terms of our collective rights as communities and first nations--treaty-based communities--versus what would be an acceptable standard for the human rights of the individuals in our communities?

Certainly your own government would not put up with the impact on the privacy rights as they relate to this kind of data. We're at a place now where we're being asked to consent that Health Canada share our medical histories with insurers and other third-party interests. We're saying this goes beyond what you as a government and you as a Canadian citizen would be asked to do. Why do we have different standards for aboriginal people when you yourselves are not subject to the same thing?

In terms of human rights, yes, the intent originally, when they made changes to the Indian Act, was to correct some of those human rights violations. But they realize that the impact down the road of Bill C-31 means there'll be fewer Indians statistically, because of the attempt to cut off the bloodline of the children or the grandchildren of those women at one-quarter blood.

So where do their human rights come into play when the community might recognize them as citizens, they might be adopted as members of the community, but the Indian Act will not grant them Indian status or recognition as being citizens of that? So again, membership, citizenship, has a definite impact when we say implementing this has an impact on our communities.

I agree with your assessment on the Harvard study in terms of undermining the essence. At the community level, this creates division in the community. We're saying the Indian Act says you're no longer an Indian, Joe, therefore we're not allowed to provide services for you, we don't give you any money, and you can't have a house here any more. That creates division and conflict in a community.

The Chair: Thank you very much.

Mr. Dromisky, for five minutes.

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.): Thank you very much.

Let's develop an identical situation, a hypothetical situation where we have a hypothetical chief who has hypothetical dictatorial powers. The human rights we talk about are completely ignored when it comes to the individuals of this hypothetical community, where all kinds of injustices, immoral behaviour, and corruption take place.

You know, Bill C-7 is trying in some way to get these hypothetical situations rectified--in these hypothetical reserves where these hypothetical situations exist.

I would like you to respond by giving me some examples of how, hypothetically, you would recommend a rectification for some of these abuses that are taking place by dictatorial chiefs, which, of course, as many of the people who have come before this committee say, hardly exist. There's just the odd one.

I have for many years experienced many stories--and they're only stories; I don't live them--regarding these kinds of situations that are totally injust and immoral. I would like some guidance from a chief on how to help these people who are being abused economically and socially, from a justice viewpoint and so forth, in a hypothetical situation.

How would you help them? What should governments do? What should the first nations people of this country do? They sit back claiming they're helping each other, when chief after chief knows that other chiefs are doing certain things that are really unjust, but they're not doing anything to help the people on that reserve or in that community. They keep silent, and they fight for the status quo.

· (1315)

Chief Earl Commanda: That's a pretty strong accusation to make--even though it is hypothetical--that there are dictatorial chiefs in this day and age, in a democracy called Canada, that this would even be allowed. Primarily, the human rights of individuals would not allow it.

In the old days, I can see this being the case, and I can cite an example. If someone did not like a band member in the community and was just not happy with the behaviour of that band member, the chief could go to the band member and say, “You're banished. You're off this reserve. You no longer have rights in this community. You're not acceptable to this community.”

So we should have that certain power of banishment instituted at some point, where the need to banish becomes a reality. There are some cases where people should be put in their place in terms of this kind of authority.

Now, where there's abuse of this power, then so should the community.... Again, many band custom elections have tried to build this in. A chief is evaluated every two years on how well he performs. If people are serious about the right of these individuals to exercise their governing power, it is expressed in that vote they get every two years when they elect their chiefs. If they are not happy with that person, he should be voted out. He shouldn't be allowed to run again.

Now, if you're saying that this system does not take away from the dictatorial ability within the community, because the chief has a large family or whatever, then I think in terms of taking a look at that.... What I'm recommending in this, and what's been recommended by tribal council policy review, is that there be a second level of redress at a higher level. In our case, this would be at the tribal council level.

We often have situations where we are in a quasi-judicial framework, where we would like an unbiased council of elders or group of chiefs to take a look at a situation, so we can say “Here are both sides of the case. Make a decision and make a recommendation.” I think when we take a look at our own versions of this, we would implement something like that.

The other thing you've forgotten about is that we've had these situations before in our tradition. And you've also forgotten about who we are in terms of our clan system. Clan mothers are very strong in a community. It is the women who know and often are the final authority in many of these things, even though we men think we have final say in everything.

I think in terms of taking a look at this clan system, the role that comes through the clan system is certainly very much alive. I think this traditional process even takes care of that dictatorial chief you speak about.

The Chair: Thank you very much. Time is up, and we have two minutes for closing remarks.

· (1320)

Chief Earl Commanda: I want to congratulate the standing committee for its efforts to hear amendments to the bill. Certainly our position of opposition is consistent with many first nations across the country. From our perspective, this bill does not do what we want it to do, and we take this opportunity to reassert our opposition to the bill in light of our feeling that it certainly does not advance our vision, our concept, our notion of a First Nations Governance Act, or first nations governments for our people.

Meegwetch.

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

I now welcome, from Laurentian University, Professor André Émond.

[Translation]

Professor, we have 30 minutes together. You can make your presentation, after which I hope there will be time enough for members' questions.

You have the floor.

[English]

Mr. André Émond (Associate Professor, Laurentian University): Thank you, Mr. Bonin.

As you know, I am a French-speaking person and I would like to speak all in French, but I want to be understood by people around me. So, contrary to my own principles, I may explain what I want to say in English. A few things may surprise the people gathered around.

Canadian aboriginal rights are my specialty. That's what I have studied. It was the subject of my doctoral thesis--the trust relationship, the fiduciary relationship, between the Crown and the aboriginal people.

Another thing: as you've all heard that English is not my first language, here I'm going to improvise in English, so be lenient, please. When I read from the text I'm boring, so I'm going to improvise, even if it is in English.

The paper I submitted to the committee is somewhat peripheral to your interest, in the sense that it's not mainly about the self-governance act. But there is a section in the self-governance act that is intended to change the wording of section 88 of the Indian Act. It's article 56 of the governance act that is changing section 88.

Section 88 of the Indian Act--that's what I'm going to speak about right now--is very important. More than important, it is the main section that governs the relationship between the federal Parliament and provincial legislatures. This section 88 of the Indian Act goes back to 1951. In 1951 it was section 87, but it's the same wording.

To help you understand why it is important, I'm going to make a little history lesson here. The basis of the fiduciary relationship between the Crown and the aboriginal peoples goes back more or less to 1754, the date when the Crown met with the aboriginal people, mainly the Six Nations, at Albany. It was just before the war that concluded with the conquest of Canada by the British.

At that time, the British decided to put aside the colonies in the management of Indian affairs because they were very bad managers and the British needed the Indians as allies in their war against the French. So basically what they pledged to do was to protect their collective rights, their aboriginal rights and treaty rights, against fraud and against encroachment committed by non-Indians. In the past there had been fraud on the part of the colonies in the sale of aboriginal lands and also encroachment on their lands by non-Indians.

So this was the basic commitment they had at that time. It was done on behalf of the Imperial Crown, the Crown of Great Britain. Since that time, the management of Indian affairs has been by only one government to the exclusion of all others. The British government only took it on to be sure that it had control over it.

There was also another war, in 1812 against the Americans. That was our first war; the last one was not so long ago, but whatever. After 1812, the Indians became less important to the government. But whatever the political situation at that time, the British Parliament continued to protect their rights and considered it important to do so as a moral pledge, even though at that time the British government found that it was very heavy on its budget to take care of the aboriginal people.

· (1325)

The British government said to the colony of Canada, before we were even a federation, that when Indians cede their land, it accrues to the colony and benefits it, so the colony has to pay the money that needs to be paid to the Indians. It transferred jurisdiction between 1850 and 1860. By 1860 it was completed. Now the government of the colony of Canada was responsible for Indian affairs, and this passed on to the federal government in 1867. The federal government had exclusive jurisdiction over Indians and Indian lands. And along with this came the pledge to protect the collective rights of the aboriginal people against encroachment and fraud, as the imperial government had done before that.

So power and responsibility go hand in hand. The federal government cannot be held responsible for the protection of the lands and the rights of the aboriginal people against encroachments and frauds if it doesn't have exclusive jurisdiction over Indian affairs. It excludes provincial governments.

Provincial governments and legislatures cannot affect, cannot encroach, or whatever, on the rights of the aboriginal people if they adopt a law or a bylaw or whatever. They cannot manage Indian affairs. They cannot manage their rights. In order not to porter atteinte--comment on pourrait dire ça--to...

The Chair: Encroach on or infringe on.

Mr. André Émond: Okay, “infringe”. That was the word I was looking for.

A provincial legislature cannot adopt a law that infringes on the rights of aboriginal people. In order to do so, you have to transform provincial legislation into a federal law.

That is the main goal of section 88 of the Indian Act. Section 88 says, more or less, all provincial laws of general application, in order to apply to aboriginal people and their rights, have to be incorporated into federal law. The federal Parliament has the power to do so.

That doesn't transform a provincial law that would be unconstitutional because it is about aboriginal people; that would not transform an unconstitutional law into a constitutional law.

Those are the laws of general application, adopted by the province in their own fields, in their own jurisdictions, about, I don't know, the management of forests, the management of wildlife, and so on. Those are laws that are of most interest to aboriginal people.

So those laws cannot apply to aboriginal rights, cannot apply to treaty rights, cannot apply if they remain provincial laws. They apply only if they are incorporated into federal law. That is the main purpose of section 88 of the Indian Act.

If there were no section 88 of the Indian Act, those laws could not apply, because of the sharing of power, because of the federal fiduciary responsibility that is encapsulated in section 91, paragraph 24, of the Constitution Act of 1867, our old BNA Act.

And why did the federal Parliament of Canada adopted section 88? It's very simple. If they didn't do that, then the federal Parliament would have to adopt on its own the equivalent of all the provincial laws, every one of them, for each province, because in each province those laws are different, because it's normally provincial jurisdiction. They will have to readopt all those laws and change those as often as they do in the provinces, in order to harmonize them, and then apply them to Indians, because the Indians also must be governed by the laws regarding ecology, the environment, protection of the species, and so on.

So for basic, practical reasons, the federal Parliament had to adopt this law. As I told you, I think it was adopted for the first time in 1951, and it has remained since. The writing has remained the same. It hasn't changed at all, even though our understanding of the law since has evolved considerably, to say the least, because when you go into the statistics, there has been a decision of the Supreme Court of Canada about aboriginal rights maybe once every five years, and it goes on exponentially. Since 1960, it has almost doubled every year.

So our understanding of the law has evolved, and has evolved incredibly, and the writing of section 88 doesn't take that into account. That's why I propose certain changes, to take that into consideration.

First, section 88 of the Indian Act doesn't apply to the Métis people, it doesn't apply to the Inuit, and it doesn't apply to non-status Indians--all people who have rights under section 35 of the Constitution Act, 1982, constitutionally protected rights. So there is a void there. When these people have protected rights according to section 35 of the Constitution Act, 1982, provincial laws cannot apply to them.

· (1335)

So you have a different standard according to whether you are a treaty Indian who is not an Inuit, who is not a Métis, and non-status Indians. The provincial laws apply differently, according to whether you are a treaty or non-treaty Indian, or if you are an Inuit or a Métis.

God knows, today the Supreme Court of Canada is hearing the case about the Métis people, and you can be sure of one thing: that section 35 of the Constitution Act, 1982, means something. It's not meaningless. So at the least the Supreme Court of Canada will recognize to them a right to fish and hunt for sustenance, at the minimum. If not, it means nothing, and the Supreme Court in the past has interpreted the Constitution to say that the Constitution has some meaning. If you have the choice between two interpretations, one where the Constitution has no meaning and one where the Constitution has some meaning, it would choose the interpretation where the Constitution has some meaning.

So you have those provincial laws, like the general laws adopted by the provincial legislatures of Ontario, Quebec, and so on, that will not apply to the Métis people, that will not apply to the Inuit of Labrador, of northern Quebec.

It doesn't matter very much when there was an agreement, a treaty, a modern treaty concluded, because then, in the modern treaty, in almost everything that is studied, it is already understood what we'll do in that case, and so on. But for all those people who are still not covered by modern treaties, section 88 of the Indian Act remains very important.

That's the first thing. Another thing that is important about section 88 of the Indian Act is that how it's written leads us to understand that it may not apply to Indian land. It applied to Indians, but not to Indian land. It was not tested in front of the courts; it was only subject to an “arbiter”, a Latin expression to say, a comment by the Supreme Court.

Maybe it doesn't apply to Indian land. So what does “Indian land” mean? We don't know for sure--certainly reserve lands, those reserves in the sense of the Indian Act.

Maybe it doesn't apply then to Indian titles, where the Indians have an exclusive right of occupation over land. You will follow in law an aboriginal title with individual aboriginal rights, like the right to fish or the right to hunt, and so on. When you have an exclusive right of possession to the exclusion of others, then you call it an aboriginal title. So I'm not sure if section 88 of the Indian Act will apply in such a case.

That's the second thing about section 88 that is a problem, at least according to the courts. In my paper I quoted a few decisions of courts, from the B.C. Court of Appeal to the Supreme Court of Canada, that underline these problems.

Another problem identified by the Supreme Court of Canada is that section 88 of the Indian Act begins with the words.... I do not remember how it was written, but it said that notwithstanding any treaty.... It is more or less written like that, saying that section 88 is a protection of treaty rights.

The Supreme Court of Canada said that it did not know exactly if this protection was absolute against provincial laws. Maybe there will be a kind of criterion or justification for governments to go against treaty rights—albeit subject to a test of justification according to section 88 of the Indian Act. But the Supreme Court of Canada suggested to the federal Parliament that it should reduce that section. Why? Because today we have section 35 of the Constitution Act, 1982, which protects aboriginal and treaty rights. So it's less important to have this in the law, the Indian Act, today.

So the Supreme Court almost suggested to the Parliament of Canada that it revise section 88 to remove that protection, because there is no reason why an aboriginal right and a treaty right should have a different kind of protection. There is no logical reason for this.

In section 35 we already have a test of justification. If government wants to infringe on aboriginal or treaty rights, it has to go through a very severe test of justification. You are all acquainted with this, because you are all interested in Indian rights because of the positions you hold. This test of justification is very close to a justification under section 1 of the Charter of Rights and Freedoms, which says that no right is absolute, and that if you want to infringe upon it you have to justify that such limitations or infringements are justified in a free and democratic society. So it's not the same for section 35, which requires the government to prove that it is in accordance with the trust relationship it has with aboriginal people.

There is no longer a need in section 88 to have different protection of treaty rights. So removing this is another suggestion I put to you.

I have more or less three suggestions. To say the least, you don't change the Indian Act very often, because it's very dangerous and politically difficult. What I'm proposing to you won't put you on the front page tomorrow morning. It's very technical, wishy-washy, and does not deal with big principles.

I can assure you that if you don't do this, you will sooner or later have a problem in the courts with a Métis coming in and saying, “Section 88 doesn't apply to me. It applies to my fellow Indian who is a treaty Indian, but it doesn't apply to me.” I can say to you that it may be against section 15 of the Charter of Rights and Freedoms. According to section 91(24) of the Constitution Act, 1867, as the collective body of the Parliament of Canada, you have jurisdiction over Indians. So you can legislate about Indians because it's a type of jurisdiction that is according to a race. You cannot say, “Okay, I favoured the Indians there”...you cannot be attacked because it's against section 15 of the Charter of Rights and Freedoms. But you are not supposed to discriminate between two kinds of Indians, let's put it that way. So I would put it to you that maybe even section 88 is against the Constitution.

Another thing we need is protection of treaties. Since 1982, there has been no reason to have section 88 written as it is right now, because you made a difference between aboriginal and treaty rights. Why did we make such a difference? The Supreme Court of Canada said, “Well, there may be a test of justification, but we don't know what that test is”. It's good stuff for lawyers. I am one, but I very often speak against lawyers. If you can do something outside the purview of the courts, so far so good. You would save a lot of money for the people of Canada and the Indian people.

· (1340)

So these are the problems that have been identified. I suggest to you that it may be a good time. You're changing section 88 of the Indian Act with the governance act. It may be a good thing to improve section 88, by the way, in order to avoid all those problems that will pop up in front of the courts sooner or later. You can be sure of that.

I didn't study your bill much more than that. I read the governance act, and I was very interested in it. Why I didn't study it was because I thought it was within the purview of Parliament to decide what to do. I think it's in your power to adopt such a law. I don't think it is against the fiduciary relationship that the Crown has with the aboriginal people, and I don't think it's against the constitutionally protected right of self-government.

People around here may not be aware of this, but there are no--I hope nobody has tomatoes around here--protected constitutional rights of self-government that will encompass almost everything. It's like the powers of the federal Parliament or of the provincial legislature. To say that you have a right to self-government is one thing. It's another thing to say, what is this government about? The federal Parliament has such and such powers under section 91 of the Constitution Act, 1867. Even more than that, you have all the powers that were previously given to the provinces.

In a case called Pamajewon, in 1993 or 1994, I'm not sure--I have the paper here, but I don't have a very good memory--the Supreme Court of Canada said that there is no such general right. If there is a right to self-government, and there is, the jurisdiction of the aboriginal people will be to manage those rights that are recognized by section 35. For those aboriginal rights, such as the right to fish and to hunt and maybe the right to fish and to hunt commercially, you have to prove the right, and after that we will recognize that you have the right to manage that right. The right of self-government is about those other rights the aboriginal people can prove.

It says in the bill:

“ band funds” means money and financial assets belonging to a band, including (a) revenues of the band...but not including Indian moneys within the meaning of the Indian Act or money received by the band on behalf of an individual.

What I understood from that, although it's not perfectly clear, is that if you do not want to impose a way to manage the moneys that the Indians receive as treaty rights, then it is outside the purview of self-government as it is protected by the Constitution. So it's within the power of the federal Parliament to adopt such a law if that is what it means. If it means that you can interfere with treaty moneys, then you may have a problem. But if it means that you don't intend to interfere with the management of treaty moneys, then it means that you interfere with money that you are going to give to Indians.

There's something that I didn't say. When I teach my course, I say to my students that there are three kinds of collective rights that belong to the Indians: aboriginal rights, which belong to them because their ancestors had them before the arrival of the Europeans; treaty rights, which were given most of the time in exchange for their aboriginal rights; and the rights that were given to them, as they say in Latin, ex gratia, without previous legal obligation.

· (1345)

Those rights that you give, that were not forced, that is not part of the trust relationship between the Crown and the aboriginal peoples, which is about aboriginal and treaty rights, not those rights that are given independently of any legal trial or legal obligation.

So about those rights that you give to the aboriginal people without prior legal obligation, you can impose whatever you wish because of section 91(24) of the Constitution Act 1867, and because those rights that you are giving to the aboriginal communities are not protected by section 35.

If it is outside the purview of aboriginal and treaty rights, you can do whatever you wish. When I read band funds as meaning that, that, and that, that's what I understood, and I saw that in your law you respect the traditional band governments. If the native people want to continue that way, then they can do so.

So it's part also of the aboriginal and treaty rights.

Let's say I'm done.

The Chair: You have three minutes. We don't have time for a round, so continue.

Mr. André Émond: If you have questions, I'm okay. My objective here was to attract your attention to and point out to you the fact of the right in section 88 of the Indian Act. It's not up to date, to say the least. You have to take into account what has been happening in front of the courts in the last fifty years.

The Chair: Then we will allow a 45-second comment for each party, not a question. A question will be viewed as being a comment.

Mr. Reed Elley: Thank you very much.

I'm not a lawyer, and I don't purport to understand all that you've said, but I think this is of importance. I'm wondering if we could ask our research people and our legal people to take this presentation and give us an opinion of it so that we might have a second point of view on this before we talk about including this in legislation or amendment to legislation.

The Chair: Between our researchers and the legal counsel who we have traveling from the Department of Justice, we'll get a paper done.

Mr. Reed Elley: Thank you.

The Chair: Mr. Martin.

Mr. André Émond: I quoted some decisions of the courts. You can refer to that, and I put some arguments of my own, like saying you can't treat different kinds of Indians differently, for obvious reasons.

Mr. Pat Martin: Thank you. This is really interesting. I've made some notes, and I'll ask this quickly and maybe you will get a chance to answer it.

In your third category of rights, those rights afforded without obligation, you say you could change them at will. Wouldn't you be stopped from doing that by the doctrine of estoppel if you've allowed something to proceed for x period of time? Would the concept of estoppel apply?

· (1350)

Mr. André Émond: No.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard (Miramichi, Lib.): The BNA Act of course stipulates, Professor, that the Indians are the responsibility of their federal government. But in terms of our administration and the work of DIAND over the past hundred or more years, they have concentrated their efforts on Indians living on reservations.

It's never been challenged in court, to my knowledge, but I think as Canadians we have to look at that issue quite strongly, where today so many live away from their homelands.

Mr. André Émond: And the courts' decisions.

The Chair: Thank you.

Now we'll go two extra minutes, and they're yours. Go ahead.

Mr. André Émond: The rule you spoke about is a common law rule. It can be overridden by a law of Parliament. It's simple: in law you have the Constitution on top, the legislation, the bylaws, the common law rules.

Since 1689 in Great Britain, with the Glorious Revolution, we decided that Parliament has sovereignty. Here in Canada we added something on top of the cake, a super-legislative constitution, which they don't have in Great Britain. But that being said.... Sorry, I lost you.

The Chair: Where should the efforts be concentrated in terms of our relationships?

Mr. André Émond: I think you have no choice. You have no choice because you have some obligations over Indian affairs, and, as the Supreme Court decided some time ago, we cannot make a distinction between Indians on reserves and Indians outside reserves. Both are under federal jurisdiction, not only those who are on reserves.

In a sense, a kind of problem that we've had going back even to 1850, when we began legislating about Indians, is that the federal Parliament, since 1867, has never legislated to encompass all its jurisdiction. It put aside the Inuit, it put aside the Métis. For what reason I don't know, but they never legislated about those persons, who are part now of the Constitution since 1982, because section 35 speaks about these people. And you, as Parliament, didn't legislate about them before because you concentrated your efforts on the Indians living on reserves. But recent court decisions decided that even in regard to the election of band councils, you have to be very careful not to discriminate against those Indians who are living outside reserves.

The Chair: Thank you very much for an excellent presentation. In a few short years I'll be a senior citizen, and although I'm a graduate of Laurentian I may register in one of your courses. It's very interesting.

Mr. André Émond: I'm not sure, but I think your son is my family doctor.

The Chair: I have a conflict.

Thank you very much.

One thing about sons in medicine is they don't treat families, so I can't say the same thing.

I'd like to welcome, from the United Chiefs and Councils of Manitoulin, Chief Franklin Paibomsai, from the Whitefish River First Nation; Chief Patrick Madahbee, from Aundeck Omni Kaning; and Terry Debassige, member of M'Chigeeng First Nation.

We have 45 minutes. We welcome you, and we invite you to make a presentation, which we hope will be followed with appropriate time for questions.

¸ (1400)

Mr. Gordon Waindubence (Elder, United Chiefs and Councils of Manitoulin):

[Witness speaks in his native language]

Chief Patrick Madahbee (Aundeck Omni Kaning, United Chiefs and Councils of Manitoulin): I'm not going to translate word for word what our elder said, but basically he was thanking you for asking us to come here to make a presentation. But it's not our way to work by the clock, as you have proposed here. We have been limited by time. If you really wanted to hear from us, we should be doing this properly.

We brought some of our traditional symbols here, while you brought paper again, like your ancestors did. You're asking us to agree with what you're proposing, but he is saying he's going to ask us here at the table to speak on behalf of the UCCM. He wanted to point out that things need to be done properly. You should have had an Anishnabek person on your committee to really listen and hear what we have to say, particularly as these hearings on first nations issues are in a foreign language. You really should have had an Anishnabek person working with you to really clearly hear what Anishnabek people have to say.

Will you again interpret things as you see fit, to hurry up and use this clock? This is not our way.

He wants to point out that we brought some of the wampum belts that talked about our relationships with the government, or Crown, to remind you that this process is not the proper way of consulting and talking to our people. We should be going to proper counsels, without a clock governing such important issues as this. This is why he brought this staff and our wampum belts, to remind you that we come here to speak the truth to you, but do you really want to hear, or do you just want to hear what you want to hear?

This is just some paraphrasing of some of the elder's remarks.

I will turn to Chief Paibomsai to read our statement.

Chief Franklin Paibomsai (Whitefish River First Nation; United Chiefs and Councils of Manitoulin): Thank you, Pat.

A clause in the preamble states:

Whereas representative democracy, including regular elections by secret ballot, and transparency and accountability are broadly held Canadian values;

This is the length to which native people are being judged. It is quite obvious that Canadian values do not accommodate Anishnabek societies and clan systems.

Clause 3 states that the purpose of the act is:

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

I guess the suggestion is that we haven't an inkling about how to manage ourselves.

No doubt you're concerned about Stan's comments concerning the hypothetical chiefs and councils running amok on Manitoulin Island and the north shore. The fact is we are highly regarded by our neighbouring municipalities and business communities. This is in large part because we have on our own instituted policies and regulations to ensure stability and prosperity. For the most part, these policies go beyond codes in Bill C-7, and as far as management goes, the act is redundant. Considering the questionable motives of Indian Affairs in the past, we are concerned that Bill C-7 has another intent. After all, most of Bill C-7 deals with administrative policies not really requiring special legislation.

Also, if we have inherent right to self-government guaranteed in the Constitution and reaffirmed in the recent Campbell decision in British Columbia, it is simply wrong for Indian Affairs to dictate the terms of that self-government. Similarly, in the preamble, it says neither the Indian Act nor this act is intended to define the nature and scope of any right of self-government negotiation. This act still sets the tone for what's acceptable.

Subclause 4(2) states:

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

Unless we have access to government databases, compiling current addresses and delivering information packages to off-reserve voters will be a highly costly and time-consuming endeavour. With 50% of our membership residing off reserve, it will be difficult to meet these conditions, at least initially.

Similarly, paragraph 6(3)(a) will be burdensome. It states a requirement for reasonable public notice for a proposed law in order to enable members of the band and residents of the reserve to comment on it before it is made. The cost of this has to be borne by Indian Affairs, because there are no budgets for these increases in administrative responsibilities at the local level.

We're also concerned with the words, “residents of the reserve”. Will non-natives have a say in the business of the band? Other related legislation seems to suggest that non-band members referred to as third parties will have a say in our governance.

We are all well aware of the many who are vehemently opposed to aboriginal and treaty rights. You just have to listen to the pronouncements of the Alliance Party. This is an opportunity for like-minded individuals to undermine the societies and institutions of Anishnabek governments.

Subclause 5(3) states:

A code consisting of custom rules may be adopted only during the period of two years beginning on the coming into force of this section.

First of all, custom government is a continuation of thousands of years of usage by the Anishnabek people. It is wrong to deal with custom bands as anomalies and treat section 74 bands as natural arrangements. If anything, the act should be phrased to give the option to first nations to become bands under section 74 of the Indian Act or under Bill C-7. This length of broadly held Canadian values does not show you that most bands came under the Indian Act because the governments of the 1800s simply ignored the traditional leadership and acknowledged those that would do their bidding.

Trade with native people around Manitoulin Island was outlawed in order to break the traditional leadership through economic means. Considering the funding cuts to the AFN, Treaty 3, and M'Chigeeng First Nation, you can see that Indian Affairs is still using the same strategies that worked for them in the past.

Secondly, the door is left open to only non-native options. After two years there is no chance to restore traditional governance systems. We wonder sometimes why it is that Quebec's culture, language, religion, and autonomy and mode of government are respected. They were defeated in battle. We, on the other hand, became your most important ally.

¸ (1405)

Clause 52 of the bill repeals sections 74 to 80 of the Indian Act, sections that relate to band elections. Subsections 74(1) and 74(2), paragraph 74(3)(a), subparagraph 74(3)(a)(ii), subsections 77(1), 78(1), 78(2), and 78(4), and section 79 all make specific reference to the position of chief. Curiously, Bill C-7 does not make any mention of this title unless you figure paragraph 5(1)(a) of the bill makes allowance for this. Paragraph 5(1)(a) states “providing for the size and composition of the council of the band”.

We believe that funding support for the position of chief will be compromised. The position of the chief is one of great political responsibility, as the chief is usually the point man in our fights with Indian Affairs, and this is their way of blunting our opposition. This omission of the position is also an attempt to eliminate some of the political focus of the councils.

The overriding objection to Bill C-7 is that it does not treat band councils in the context of having extralegal duties and obligations to their members. Aboriginal treaty rights encompass territories, and we believe our leadership has an inherent duty to act in a capacity that protects our interest in the lands and resources as well as maintains our traditional and spiritual values connected to those territories. Nothing in this act empowers us to do so.

We are also responsible for our band members from the time they are born till the day they pass on. What other leaders in Ontario in the provincial or federal governments have this responsibility? What other leaders go to the funerals of these people?

In fact, part 2 of Bill C-7, “Powers of Band Councils”, defines those powers as being confined to the reserve itself. Subclause 5(5) requires that we must balance the “different interests, including the different interests of members residing on and off the reserve”. While we are prohibited from exercising jurisdiction outside our reserve boundaries and from deriving our economies from the resources of these small territories, we are legally obligated to provide services to all members, in some cases membership from around the world.

Bill C-7 is touted as giving first nations tools of governance by outlining what is required in the leadership selection code, clause 5, and the administrative code, clause 6, and the financial management and accountability code, clause 7. Yet the governor in council still retains absolute control under subclause 32(1):

The Governor in Council may make regulations providing for the matters with respect to which a code may be adopted under section 5, 6 or 7, other than paragraph 5(2)(b).

The way it stands, these regulations are open-ended and ominously unknown. I say “ominously” because the department has always acted with a heavy hand.

Open-ended regulatory powers are also conferred on the governor in council in clauses 31 and 33. Doesn't this sound like a colonial mentality? Also, subclause 10(3) and paragraph 10(3)(a) say:

The Minister may carry out an assessment of a band's financial position and, if the Minister considers it necessary, require that remedial measures be taken when any of the following circumstances becomes known to the Minister: (a) a deterioration of the band's financial health that compromises the delivery of essential programs and services;

While this is not to defend poor management, the minister has not hesitated to misuse this kind of unrestricted power to stifle political opposition. Is he aware of the Pikangikum situation, where he misuses power?

Subclause 16(1) and paragraph 16(1)(l) say:

The council of a band may make laws for local purposes, applicable on the band's reserve, in relation to (l) the keeping of wild and domestic animals, except fish, and related activities.

In the interpretation section, subclause 2(1) states that “fish” has the same meaning as in the Fisheries Act. Why are we invoking the Fisheries Act in an act defined as a tool of governance? The application of the federal Fisheries Act is in doubt and the doubt is removed under subclause 16(2):

In the event of a conflict between a law made under this section and an Act of Parliament...the Act or the regulations prevail to the extent of the conflict.

However far-reaching the connection, we see this bill as suddenly opening the door to regulating our fishing rights before they are completely defined.

In closing, I'd like to quote Dr. Jeffrey Reading, who gave testimony to the House subcommittee hearings on aboriginal youth:

...this is not a problem that was created by aboriginal people.... It's an historic problem and a political problem and it's embedded in the political economy of how Canada became a nation state.

The RCAP report explained that more fully. It is towards this report that our energies should be directed and not this bill, which does not measure up as far as consultation goes.

¸ (1410)

This bill uses cosmetic policy changes to hide the real effect of sweeping changes in aboriginal affairs. Let us not have the RCAP report Gathering Strength sitting idle and gathering dust like many other INAC documents that deal with our Anishnabek people.

Meegwetch.

Chief Patrick Madahbee: In terms of some of the components of this governance act, this is again a situation where INAC seems to think they know what's best for our communities. A lot of us have been involved with implementing governance processes now for many years, and this new act will perhaps tamper with those communities that have implemented a number of policies.

I'll just give you a quick rundown on some of the things that are in the majority of our communities in our area. We have employment and personnel policies in place; casual employment policies; housing policies; renovation policies; forestry management policies; alcohol management policies; band custom election policies and procedures; dog control; residency bylaws; council development guidelines; medical transportation policies; emergency response plans, policies, and guidelines; marital property bylaws; membership committees, policies, and procedures; membership codes; powwow procedures and policies; commercial fishing memoranda of understanding; mischief and vandalism policies; education policies that encompass day care and elementary, secondary, and post-secondary education; recreation committee policies and procedures; fundraising policies; and even policies on smoking. Those are just samples of things that have been implemented in our communities over many years.

My community, as an example, has gone through, I think, five elections now without any problem in terms of the custom process we developed years ago. Now this Bill C-7 will try to change something that has been a community-driven process, something that was developed through very comprehensive community consultation, implemented by our community membership, and adopted by 86% of the membership.

There are a lot of things in here that are not really going to do one thing to help advance the community development of our communities. You can use all the fancy buzzwords such as “self-determination” and “self-government” you want, but when all is said and done, what we are really trying to promote here is community development.

When we talk about the development of our communities, we talk about the political development that's taking place. I have to say, contrary to the hypothetical scenarios and the horror stories you hear around the country, those are very few and far between. You don't hear enough about the good things that are going on in our first nations communities and the political advances that have been made even in the last couple of decades with the implementation or inclusion of section 35 of the Constitution on aboriginal and treaty rights. There are a number of Supreme Court cases that support our aboriginal and treaty rights in this country.

Don't try to paint everyone across Canada with the same brush just because there are maybe certain areas where there are some problems; go to those areas and deal with those problems. The rest of us here operate very efficient communities. In fact, we get praised for our fiscal management. We get letters from the federal government commenting on how well we are doing in our communities.

We need access to resources. We need to develop our communities. This is what it's all about. We're a lot like anyone else; we just want to develop our people, develop our communities. When we talk about the money that has gone into this process, the money that has gone into the Royal Commission on Aboriginal Peoples, the money that was spent on the Penner report, the money that was spent on the Nielsen task force report....

This is what you call a hearing, but are you listening? Were you listening when the RCAP report came out? I said to the chairman here...he and our MP, Brent St. Denis, attended a Robinson-Huron chiefs meeting recently. They were there to hear us, but they didn't listen. They turned around and, against the direction we gave them to the effect that we were opposing this act, voted for this act on its first reading. We're constituents as well, yet they don't listen to the people who are most affected by this thing.

We are imploring you people to hear what aboriginal people have said not only in this process but in such a comprehensive manner in the RCAP report. When Mr. Bonin asked me about the RCAP report, he said the cost factor made it unrealistic to implement RCAP, and I told him, we're under no illusion that this is going to happen overnight.

¸ (1415)

In terms of the evolution of our communities, it could take perhaps 20 years to implement RCAP recommendations, because communities have different levels of development and communities are very diverse across this country.

In our area, we recommended that we get back to finishing the constitutional talks that were begun in the 1980s. There is still one outstanding constitutional conference where we got bounced off the agenda when Quebec separation came on the scene. There are a number of other issues that have bounced the aboriginal issue off the agenda. These outstanding constitutional talks are supposed to talk about jurisdiction, what is federal jurisdiction, what's provincial jurisdiction, what's first nations jurisdiction, and areas for shared jurisdiction.

Those are very real issues of jurisdiction. We are living those now. I'll give you a quick example. At one time policing was all done by the Royal Canadian Mounted Police. It was a federal jurisdiction. Then the provincial OPP took over policing our communities. Then it became an OPP-first nations constable program. Now we have stand-alone policing in our communities.

That's just an example of the evolution of jurisdiction on policing matters. The same thing is happening in child care, in education, in a whole number of sectoral areas.

The Minister of Indian Affairs and Northern Development and the federal government don't know how first nations communities operate. We know how first nations communities operate; we live it every day. I think members of Parliament have been sold a bill of goods here and think this thing is going to resolve our problems.

I've been in Ottawa recently lobbying members of Parliament, and they're saying maybe we can do something to amend this thing; let's change it. That's not the answer. Let's get rid of this thing and go back to what we started with the constitutional talks and with the RCAP recommendations and go to something that is real and true.

You've heard from first nations people right across the country, but you're not listening. Now you're going back through a process that.... Again, we're allowed to come here and present a few minutes of a presentation. A few minutes of presentation across the country just doesn't cut it when you're affecting our lives.

I'm personally not here by choice, necessarily. I don't believe this is the proper forum to be dealing with our lives. We need to be at the constitutional table as first nations in this country, and that's the only rightful place. That's where the government should be listening to us.

I wanted to add those comments to our presentation. I guess we're open for some questions at this time.

Terry, did you want to make some remarks?

¸ (1420)

Mr. Terry Debassige (Member, M'Chigeeng First Nation; United Chiefs and Councils of Manitoulin): I want to make a comment. I noticed one gentleman there kept bringing it back to.... You want this to centre on these mismanaged bands, the few that are out there, and the horrible things they're doing to their own people.

I find it odd, because Indian Affairs created those bands. Indian Affairs created these hypothetical chiefs, because anytime they wanted our resources and lands.... There are petitions; you can find them in the archives. There were numerous petitions complaining about these people coming, making chiefs sign. That's how they lost Manitoulin Island. They completely overstepped our elected recognized chiefs and put in.... You know, one person signed his name “I am drunk” on the treaty. Tell me how viable that thing is.

So they created this precedent, they rewarded these people, these incompetents, and now you complain about them. Well, we didn't create them.

Another thing, you tried to portray this act as being centred around the government, simply as administrative policy. In the same notes, in Nault's presentation here, he said “This legislation fits within our overall policy approach”. It has broader extensions. It doesn't simply deal specifically with that, so by the same token, we see it as impacting on a broad range also. It's not as innocuous as you seem to portray it as being.

The other thing I got a kick out of in most of the speeches was I couldn't believe we were talking about the same bill. Now I know where all those ad men went when K-Tel products went out of business.

That's all I have to say.

Chief Franklin Paibomsai: I have more comments. Have the MPs and members of this group visited first nations communities to fully understand the potential impact of this act on the Anishnabek people in our territory? You really should come out to communities and see first-hand what's going on. You want to forever change the Anishnabek people and change my community, so you'd better darn well come to our community. Come and spend some time with us.

I'm not talking about spending an hour or making a presentation. Come down and spend some time with us. You're sitting here as a group of--I don't know what phrase to use--adults. You're all educated. I'm an engineer. Why don't you come down to our communities and spend some time with us? You'll see the impact. You'll see the steps the Anishnabek communities have made.

In our community, the Whitefish River First Nation was awarded a $10,000 bonus by the Department of Indian Affairs for being the first band to submit an annual audit, as required by the Department of Indian Affairs, last year.

¸ (1425)

The Chair: Could we move on to questions?

Chief Franklin Paibomsai: I'm coming. Relax.

The Chair: You have 30 or 45 minutes for a presentation.

Chief Franklin Paibomsai: I heard you, and now--

The Chair: Excuse me. I am the chair here, please.

When I speak, cut the mike.

If you choose not to allow time for questions, that will be your choice, but it would be appreciated if you would allow at least three minutes per party for questions because that's about all the time left, or close to it.

Carry on.

Chief Franklin Paibomsai: This has come about as a result of strong administrative and financial controls and accountability by our local membership. Like all of the communities, Whitefish River has developed the same governance, election, financial, personnel, and administrative policies. They're all in place. Patrick mentioned all of those.

I'd like to know if this group will also start to investigate the processes and procedures of Indian Affairs, as they, along with the Minister of Indian Affairs, will ultimately administer the implementation of the First Nations Governance Act.

Items such as financial management, reporting, and transparency in government have been contained in documents on the annual funding contributions we are asked to sign on behalf of our communities for some time now. So we've been reporting in a prudent manner to Indian Affairs on resources we have signed for.

Please review these contribution arrangements. Get hold of them. One document I'm signing on behalf of our community is 28 pages in length and it lays out all the things in your governance act--and it's for $10,000. So the accountability regime is all there. If we don't sign those arrangements, there's a default mechanism and ultimately we don't get it. So those arrangements are already there.

Thank you.

The Chair: Thank you. We will go to three-minute rounds.

Mr. Elley.

Mr. Reed Elley: I don't have a question. I would, however, like to talk with Franklin for a minute.

I've heard you say pretty passionately and eloquently here today that you believe there has not been proper consultation. If you and I were to sit down in a restaurant some place and have a coffee, we might have some meaningful consultation. If you could hear my story and I could hear yours, and if you could walk in my shoes and I could try to walk in yours, we would find out some things about each other that might temper our feelings about each other.

I've been in the business of reconciliation for probably the last 35 years. If you want to check my curriculum vitae, you'll understand why.

Chief Franklin Paibomsai: Our ancestors have been doing that for thousands of years.

Mr. Reed Elley: Yes, but we all do it individually, we do it incrementally, and we do what we can.

I have four aboriginal children in my home right now. I have lived with aboriginal children for the last 25 years and I have worked with aboriginal communities. I understand why you talk about the pain. I understand why you talk about the need for change. I understand why this First Nations Governance Act does not cut it for you.

But I guess my plea is that if we are going to have solutions at the end of the day for the things that matter most to you, and I think matter to me too, for our children and our grandchildren, you and I need to sit down. You need to come to my house and I need to go to yours.

Chief Franklin Paibomsai: Well, you are welcome to my house this evening.

Mr. Reed Elley: I'd be very glad to, and I'd be glad to welcome you in mine.

That's the plea I make. That's how we have understanding.

The Chair: Mr. Martin.

Mr. Pat Martin: Thank you.

We don't have much time to go into much detail, but I certainly understand when you say the whole consultation process was a sham and a mockery, for such a comprehensive package of amendments, complex amendments.

You've done a good job to plough through all this detail. There are a lot of smaller first nations across the country that maybe wouldn't have had the resources or the skilled people to make such a comprehensive brief.

As far as representation on this standing committee goes, I would agree that if we were serious, we would have expanded the membership of this committee, like they did in the Penner inquiry, and had people.... In fact, I put a motion to that effect to this committee a couple of months ago. Only one person voted with me on it--it was one of the Liberals--and we lost by one vote. We would have had a representative of the Assembly of First Nations, with full voice and no vote, a representative from the Native Women's Association of Canada, and a representative from the CAP. At least they would have been able to take part in the whole consultation.

I went to Pic just a couple of months ago and spent the day there. I also went to Pauingassi, Poplar River, Little Grand, and a bunch of other communities, and I brought the leader of our party to show them what we're talking about here and why the NDP is so vehemently opposed to the first nations governance agreement. I wanted our leader, our newly elected leader, to see first-hand some of the communities in my home province of Manitoba and northwestern Ontario.

So I agree with you, in short, with the little time I have.

I attended the aboriginal Charlottetown round in 1992. The commitment there was that we would embark on and undertake a comprehensive review of the distribution of jurisdictional authorities, and the first nations would be at the table and we would decide once and for all. That got put off the rails by the 1995 scare in Quebec, maybe--I don't know--or the public just got sick of everything constitutional.

But this, where we are going now, is completely antithetical to the spirit and the intent in which I thought the country was going. It's the 1969 white paper revisited. I can say that categorically, because we have not only heard it from every first nation that we have heard from, right across this country, but we hear it in Ottawa, in the corridors and behind the closed doors, where people are saying Jean Chrétien failed to diminish treaty rights in 1969 with a white paper. He spawned a whole generation of militancy at the time, people were so outraged, and now, just before he goes, he will use Bob Nault to complete what he set out to achieve in 1969.

So you are absolutely right to be militantly and vehemently opposing this initiative with every instrument you have.

If there is any time left, I'd like to hear--

¸ (1430)

The Chair: Thank you. There is no time left.

I think Mr. Dromisky asked first.

Mr. Stan Dromisky: Yes. Thank you very much. I'll be brief.

First of all, I'd like to admit that we don't hear everything. I believe in selective hearing; and you hear only what you want to hear, just as well as I hear what I want to hear. That is the nature of the human being; there's no doubt about it.

So I can't go on the defensive and say, hey, I'm just going to reject everything. I don't. I've been listening to native peoples for many, many years, since 1961 and 1962. So I know what some of these stories are, and I've been to many reserves.

I do not agree for one moment that just because you have been so successful in implementing and developing so many wonderful strategies with your people and your community to solve many of your problems, the same thing should be done, can be done, and will be done in every single first nation community across the country. That's not possible.

If we leave it alone, as you have indicated, just leave it be and then time will tell, and the people will decide what is best for themselves and their own communities.... I have met many people who have told me what is best for their communities but that it will be impossible to implement and bring about that which is the best simply because the control on that reserve, in that chief and council, will never allow the good things to happen, because they're afraid of losing control.

There are a lot of factors that come into the picture besides that fear of losing control over the personnel and people in their community. There are other factors involved too. So I don't know what the answer is.

Someplace, somewhere, somehow, the wonderful things that you people are doing have to be shared. I know that takes money. We have to get these communities across the country, from coast to coast, sharing the wonderful and zestful experiences that are emerging on each and every one of the first nations communities, not just sitting back and going on the defensive and ignoring the rest of your brothers and sisters across the country from coast to coast, those who are being victimized--and they are. It's not just one or two reserves; there are many.

I feel very passionate about that. I don't know whether the federal government will ever be able to bring about a process that will bring about the kinds of changes in these native communities from coast to coast. I don't really know. If the desire isn't there among the leaders to bring about effective change that is democratically based, that is just and fair, it's not going to happen.

¸ (1435)

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

We have four minutes for closing remarks, and you may use them as you wish.

Chief Patrick Madahbee: The solution has already been voiced to you in the Royal Commission on Aboriginal Peoples report and in the very comprehensive dialogue that took place during the constitutional talks. Implementing the Royal Commission on Aboriginal People report is the answer for you about how to deal with these communities that are not as advanced as other communities. It talks about all these processes, and we feel its hearings were a true listening to the voices of aboriginal people right across the country. The type of process that's going on here reminds me a lot of the amalgamation process the area towns here have been forced into. It's not working for them; they don't like it. They don't like anything being rammed down their throat.

So how the hell do you expect us to like something that's being rammed down our throat? You know, you have to have buy-in; you have to have ownership of something if it's going to work. We don't have any buy-in in this process; we don't have any ownership in it. So this thing is ultimately going to fail.

I'm already training my daughter, and we as leaders are already training our peoples, for the next round of fights with the federal government on issues such as this. You come around and you think, “Well, we can tinker with this act; it's not perfect. We'll make a little amendment here, a little amendment there. Yeah, that should keep them quiet.” It isn't going to happen. This is not something we desire; it is something we are going to continue to oppose. It is something our children will oppose and our grandchildren will oppose. We've had prime ministers and ministers of Indian Affairs come and go. We're still here; we're not going anywhere. The process for addressing justice in this country is still here. I think we will be continuing to seek other redresses for the development of our communities.

We don't believe this legislation is strong enough. That's why we're recommending re-implementing the constitutional talks. Legislation can be changed by any government that comes in. The Liberal government is in power right now. Who else is going to be in power? We don't have a crystal ball to say who's going to be in power. We've had members of the Alliance Party who don't recognize aboriginal treaty rights. If they should ever get into power, they could, by legislation, throw this legislation out the window. It does not have the protection the constitutional process has.

We're saying here very strongly that you can consult all you want. All these documents, as the chief said here, are gathering dust. You have the answers already. Implement the Royal Commission on Aboriginal Peoples report. It's not going to happen overnight. Get back to the constitutional table and start dealing with first nations leadership.

Don't punish the leadership that doesn't agree with everything you say. We saw examples here this morning. We've encountered financial tactics where, if you don't agree with the government, they punish you by eliminating the dollars that come to your community. We've all experienced it.

Our Assembly of First Nations has had its legs chopped out from under it because they oppose this governance act. This is where the golden rule shouldn't be applied: “He who has the gold makes the rules”. You're using financial coercion to get us to toe the line. That's not the way this country called Canada that we share with everyone here should be run.

I don't know if any of my colleagues have anything to add. I'll leave it at that.

Chief Franklin Paibomsai: Yes, I have just a couple of closing remarks.

What part of this legislation will improve the conditions for economic development? What part of this legislation will put first nations in a better position to reach agreements for municipal services and housing?

Only with the implementation of the RCAP report findings—gathering strength, not gathering dust—through capacity building, through access to lands and resources in our territories, can these needs be met for our Anishnabek people. That's what we need to do.

¸ (1440)

The Chair: Thank you very much. That concludes our time. Thank you for your presentation.

We now invite to the table, from the Anglican Church of Canada, the Right Reverend Caleb J. Lawrence, Bishop of Moosonee.

Colleagues, we have not suspended proceedings. We have a guest at the table.

I would ask the members of Parliament to return to the table, please. Mr. Elley, may I ask that you return to the table, please. We have not suspended proceedings.

Reverend Lawrence, I must apologize. This being an individual presentation, we have ten minutes. We invite you to make your presentation.

The Right Reverend Caleb Lawrence (Bishop of Moosonee, Anglican Church of Canada): Thank you very much.

Honourable members of Parliament, members of the Standing Committee on Aboriginal Affairs, when I entered the room a few moments ago, Elder Gordon was speaking and he was making reference to the fact that from his culture it's very difficult to work confined by a clock and a timetable. I, of course, come from your culture, although Anglican bishops are notorious for having difficulty with their facility to terminate. For that reason, I have my text written out and I'm going to present it to you read from the text. I believe you have that in front of you.

Thank you for this opportunity to make this brief presentation on the matter of the First Nations Governance Act, classified as Bill C-7. My name is Caleb Lawrence and I am the Anglican bishop of the diocese of Moosonee. The area encompasses a large part of the territory included in the Treaty 9 area of northeastern Ontario and almost the entire region of the James Bay Treaty area of Quebec under the jurisdiction of the regional government of Eeyou Astchee within that area.

This month I mark 40 years of ordained ministry as deacon, priest, and bishop within the Anglican church. Almost all of that time since early 1965 has been spent in ministry among first nations people in this area of northern Canada. Through that period I have been part of a communion that has seen a steady transition from a stance of offering ministry to people to one in which first nations people have been welcomed as full partners in the development and leadership of the church.

The gifts, experience, and insights they bring have enriched and transformed the diocese of Moosonee and the Anglican church nationally in ways far beyond anything that could have been anticipated when this journey began in the late 1960s.

It has been accomplished through a growing respect for first nations people based on the teachings of the Christian faith as grounded in fundamental principles enshrined in Holy Scripture. In many instances it was the very indigenous peoples with whom these teachings were shared who reminded us of these basic principles and challenged us to live and act in response to them.

It was this commitment, based on the teachings of our faith to recognize and accept first nations Christians as equal partners with us on this life journey, that has given us the motivation, the courage, and the strength to change. It has at times been a painful journey as we acknowledge the mistaken attitudes and actions of the past and struggle to find a new way forward in ways that we recognize as right and true to universal principles of justice and mutual interdependence within the human family.

Two of the unfortunate and wrongful assumptions from the past, which we have tried to define even as we struggle to reject them, are enshrined in a doctrine of discovery that has shaped the attitude of European exploration of the new world since the end of the 15th century and a policy of assimilation with regard to the treatment of the original inhabitants of the territories thus discovered.

My relationship with first nations peoples throughout my working life as part of the Anglican Church of Canada has been one of growing appreciation and respect as partners together in a church community, which was one described by Archbishop William Temple, the Archbishop of Canterbury, in the early part of World War II as the only institution on earth that exists primarily for those outside its membership.

¸ (1445)

It is out of that background that I urge you who seek to amend the deficiencies of the Indian Act to examine the provisions of Bill C-7 through an active collaboration with the recognized and chosen leaders and members of the first nations constituency within Canada, based firmly on the principle of nation-to-nation recognition.

The perception many of us have, both within and beyond the church and among peoples of both native and non-native perspectives, is that this proposed First Nations Governance Act has been developed without adequate consultation and negotiation with those who will be most directly affected by the proposed legislation. The critical voices of representative bodies such as the Assembly of First Nations and other first nations aboriginal governance bodies have been ignored, and this proposal is being rushed through the legislative process with undue haste.

It appears to be a further attempt to achieve assimilation, which flies in the face of the principles of nation-to-nation agreements that are enshrined in numerous historic guarantees, such as the Royal Proclamation of 1763, the British North America Act of 1867, the Indian Act of 1876, various historic treaties, the 1982 Constitution Act, and the royal commission report of 1996.

My representation to you is to urge that Bill C-7 be examined carefully with regard to the various historic agreements defining the relationships and obligations between first nations peoples and those of us whose ancestors came to this land from other places, which have been interpreted and upheld by numerous court decisions.

Moreover, I would further urge that such examination take place in close collaboration with the recognized leadership of the indigenous people of Canada who will be directly affected by this legislation, on a nation-to-nation basis.

In this process, despite the clear majority of government party members, which would assure easy passage of any piece of legislation, I would ask for the courage of voting members to respond and act in a way that honours the input of such open participation in the hearing and consultation process. In this way, trust can be built and strengthened, and the rights and possibilities of first nations people affirmed, providing a rich heritage for generations yet to come.

Finally, may I assure you of my support for you in these hearings that are being conducted in relation to Bill C-7 and in all the work that is being done with regard to this proposed legislation. This has always been a feature of our church's ministry in this country. The first bishop of Moosonee, John Horden, carried on an extensive and wide correspondence with the Government of Canada on behalf of those who inhabited the vast area of his diocese. George Holmes, the third bishop of Moosonee, accompanied the treaty party and used his influences to persuade first nations people to sign Treaty No. 9.

We worked in close collaboration with the Government of Canada in the operation of three residential schools in the diocese of Moosonee area. While hundreds of children were educated through those schools, some have alleged terrible damage inflicted on them, and we have just concluded with your government a settlement agreement set up to provide redress and assistance to those whose claims are validated.

We have made mistakes, yes, but we have also challenged one another to act in justice and integrity with regard to all our activities. You continue to be upheld both publicly and privately by the prayers of our people, and mine are included.

Thank you again for the privilege of speaking to you today.

¸ (1450)

The Chair: Thank you very much. And thank you for all that you do in your life for first nations people.

You used up your full 10 minutes.

I now invite, as an individual, John Corbière. Welcome, Mr. Corbière. You have 10 minutes, so I won't use up your time. Please proceed.

Mr. John M. Corbière (As Individual): Gentlemen of the standing committee, I have three packages here. I am on package number one, my introduction.

My name is John Corbière. I am from the Obadjiwon Indian Band in Sault Ste. Marie, Ontario. My wife and I married in 1957. We moved to Rankin Reserve in 1958 against my wife's wishes and against her better judgment. She was not at all prepared to relocate there because it was a barren community with no plans for the future.

When we moved to this reserve and built our own home without government assistance, the reserve was without any form of development or organization. There were six substandard buildings on the reserve and no facilities, such as roads, water, or electricity, and the land was swampy and totally undeveloped. This was the position of the reserve even though it was located adjacent to the city of Sault Ste. Marie, Ontario.

I was elected to the position of chief in 1966, inheriting a band in a bankrupt position with absolutely no future planning—a hopeless future—and a yearly band budget of $1,000 per year. I was elected for 14 consecutive years. This was done while my wife and I were both steadily employed at Algoma Steel.

Our work was accomplished by establishing a good working relationship with DIAND and the fact that we provided good management and dedicated hard work. From 1966 to the early seventies, my wife and I paid our own financial expenses to do native community and economic development work. We accomplished a large-scale development with a very limited budget.

My education consisted of completion of grade school, which I attended in the Garden River Reserve and the Shingwauk residential school in Sault Ste. Marie, Ontario.

During my elected term I had taken economic and industrial development training at the University of Waterloo. I had taken two years of a three-year course. I took additional training for economic development from a private teacher, who was a member of the Industrial Development Association of the University of Waterloo. I took marine management and operations at the University of Guelph and at Laurentian University in Sudbury, Ontario. I have taken various university courses and studied political science and aboriginal law.

On the fundamental principles of Indian law, the law of first nations, two of these issues were written about by Robert A. Reiter, who has a law practice in Edmonton, Alberta. I have picked up anything available written on North American Indian people, including Bury My Heart at Wounded Knee.

From 1960 to 1980, the Batchewana Indian Band's membership was scattered throughout the area, and its land was swampy and undeveloped, but we created the largest migration to band lands in the band's history through our community development accomplishments.

Number one, we established a full-service housing subdivision in the reserve boundaries; a steady water supply and sewers, with the band having its own water system; and street lighting.

Number two, we built band administration offices.

Number three, we created a day care centre, which was the first integrated on-reserve day care in Canada. And the first major CMHC on-reserve housing development was created by my wife and our staff, a program that has now been used on many reserves in Canada.

Number four, eight apartment buildings were built.

We had a working staff of seven people, including myself.

¸ (1455)

Rankin Arena, number five. A major ice-skating arena with community hall facilities. This facility also had a liquor bar and a community hall to accommodate 300 people. This facility is for wedding receptions, bingos, and other recreational facilities.

A canteen brought good financial revenue while being a good employer. At the time, Rankin Arena was the second-largest indoor sports facility in Sault Sainte Marie, Ontario. We settled a first land claim in the Batchewana Band and initiated another that was recently settled.

Number seven, we created the first band newsletter. This was created to make members aware of band council business. There were eight during my elected term of office.

A fully serviced housing subdivision was planned and constructed. Development included city water and sewer services, paved streets, street lighting, natural gas lines installed, and housing units consisting of Department of Indian Affairs subsidized housing--47 units at $10,000 per unit from 1966 to 1978, for a total of $470,000. The first phase of a CMHC housing project had 48 units, including four four-unit apartment buildings.

Infrastructure costs: extension of Sault Ste. Marie water and sewer services, $250,000; community water and sewer services and pumpouts, $100,000.

Road construction: paving and a road grader, $220,000; street lights, $4,000.

Land claim: $65,000.

Administrative and recreational facilities: industrial park planning and development, $250,000; office building in 1975, $600,000; day care, a steel garage, $5,000; arena hall, $100,000; industrial park services, $382,000; school bus and vans, $20,000; recreation equipment, $100,000.

Total tangible assets: $4,901,000.

The developments we have created have provided numerous employment opportunities, and they originated from a limited annual band budget of $1,000 per year in 1966 and an accumulated and vastly improved band budget through the mid-1970s and 1980s.

The extensive training I've taken in economic and industrial development and in-depth training from 1973 to 1978 was supported and approved by Mr. Peter Lesaux, who was then assistant deputy minister of Indian Affairs.

Mr. Ron Cooksley, director of the industrial commissioners association of Ontario, was an active member and retained by the Department of Indian Affairs to provide further on-the-job economic and industrial training for myself at the reserve. This training included on-site involvement with the industrial commissioners of the cities of Oshawa, Belleville, Toronto, Mississauga, Burlington, St. Catharines, Niagara Falls, and Guelph, Ontario. This training also involved on-site activities with major banking supervisors, CN Rail, CP Rail, and their respective economic developers in the Toronto area.

In 1975 I was accepted as a member of the industrial developers association of Canada.

From 1980 to 1988, my wife and I formed a corporation for private enterprise. We were its only two directors. The corporation allowed us to lease our land to our corporation. This was done under subsection 58(3) of the Indian Act.

¹ (1500)

The Chair: I'll have to ask you to conclude. We've exhausted the ten minutes. We'll give you an extra one minute to conclude. Is that okay?

Mr. John M. Corbière: I just can't.

The Chair: Well, we'll have to cut it off in one minute. I'm sorry.

Mr. John M. Corbière: The corporation allowed us to borrow from the bank.

Okay, I'll go over to my third package.

The Chair: You will not have time to go through the package, so you may as well--

Mr. John M. Corbière: I just want to go through about three pages.

The Chair: No, we won't have time for that. We've exhausted the ten minutes. We haven't spoken on Bill C-7. So I have to--

Mr. John M. Corbière: I'm coming to that.

The Chair: You ran out of time, sir. I'm sorry. Time is up now. I thank you for your presentation.

I now invite John Corbière for a ten-minute presentation--I'm sorry, I almost gave you another ten minutes here. It's Connie Couchie.

Mr. John M. Corbière: Another ten?

The Chair: No. Time is up, sir.

Colleagues, we've been through this. We've been travelling three weeks, and once in a while--

Mr. John Corbière: Could I table my documents?

The Chair: Sir, if you leave your documents with us, we will make sure they're translated and given to every member of the committee, even those who couldn't be here today--all three of them. Is that okay?

Mr. John M. Corbière: Yes.

The Chair: Thank you. And I apologize. It's no fun cutting people off, but the rules were set by the committee before we left Ottawa.

Connie Couchie, please. Welcome.

Ms. Connie A. Couchie (As Individual): Hi.

The Chair: Welcome. We invite you to make your presentation. We have ten minutes together.

Ms. Connie A. Couchie: All right. My name is Connie Couchie. I'm from Nipissing No. 10 Reserve in North Bay. By speaking out here today I will attempt to impart feedback to your committee in regard to Bill C-7.

With this governance bill in place, it is my hope that this will curtail the regime-type tactics used by chief, council, and administration. Our legal civil rights as band members must be protected to allow for accountability of band hierarchy with regard to funding and voting, but also with regard to our rights code on reserve. This should be upheld by the legal system.

One measure could be to utilize advocates on reserve to safeguard that democratic process. Our reserve, as are many more like it, is under a quasi-political structure that operates without even the most basic civil democratic rights in mind. There is no fairness and justice for all on this reserve.

I cannot stress enough that we are controlled by a regime. Each new chief and council follows suit. Power and control. If self-government gives further consensus to this type of failed government, these regime tactics will only increase, to the detriment of the aboriginal population, and we will certainly contribute to the depletion of taxpayer dollars.

Rampant misuse of funding is the order of the day. If we attempt to stand up to these people, we endure the consequences, whether that be blacklisting or whether applications for housing, commercial land, house repairs, education, etc., are “lost” or disregarded. And our family members may get the same treatment.

A good example of this is Anna and Tom McLeod and family, who were targeted and banned for life by order of the chief. This vendetta has gone to the extreme with Tom, a very mild-mannered man who was maliciously incarcerated for seven days.

The political anarchy we've had for the past 35 to 40 years must stop. New band membership, estate, and adoption dealings have to be revamped. A lot of questionable activity goes on in those three spheres, to say nothing of the voting process.

Election improprieties go unchallenged because we know we are fighting a losing battle when each settlement of this reserve goes unrepresented before the votes are tallied. The main goal with regard to the upper echelon of band politics is not good government; it is to acquire as much money, assets, and travel for as long as possible, and even spread some of those perks over to their large family group and friends. This ruthless greed involves every band office, including chief and council, education, administration, social services, land, etc.

If everything is so above board on reserve, why do I hear these despairing utterances from band members? I've head these band members say: “I'm afraid of them; I'm devastated by what they did to me and my family; I'm enraged at them; I was pushed out of my job; they took my house; they threatened to cut off my water supply.” And perhaps the most telling comment of all was “I can't do anything about this at all.”

I would like to mention here also that our non-native residents, which include spouses and common-law partners of band members, lease landholders, house renters, and businesses, have been recipients of injustice on reserve. One glaring example is the Rainbow Concrete company fiasco. There is no real protection for this group or population either.

I would also point out that the off-reserve membership, whose head count contributes to band funding, receive next to nil in revenue sharing.

If everything is so on the up-and-up as far as funding goes, why do some of the band hierarchy families have combined incomes of $80,000-plus and have homes in good condition, yet take the housing loan partial grant of $65,000 to acquire yet another home? There are five housing loans per year, and the names of the most needy sit on a list that is 300 years long.

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With so much funding being squandered, why do the land bosses ignore the need to clean up the radiation contamination that has spread now to all the inhabited areas of Nipissing No. 10 Reserve? This area poses health risks because of this environmental disaster.

The head count on reserve has diminished not only because our band area is a dead zone, as far as employment goes, but also because of the chaotic political atmosphere.

In reading a National Post article dated February 24, 2003, entitled “Empower Canada's native rank and file”, the author hit the nail on the head with his commentary that 1.3 million aboriginals receive $7 billion per annum, which amounts to $70,000 per family.

If this is so, why is it that people like Mr. and Mrs. Eva Pitt, who are seniors and disabled and have requested a water line hookup and a septic system for several years now--she's in the audience--still don't have it there? It's a basic amenity and they've been refused it time and time again. Why are our roads in poor condition? Where the band bosses live and work, roads are in very good shape.

With Bill C-7, the Canadian government, in honouring the Crown's treaties, can go a long way to reverse the direction of this regime and many more like it.

In order to have self-government that is effective, each band must develop industry out of its own profits, rather than continually dipping into the taxpayers' pockets. Chief and council as a governing body should be eliminated and replaced by a board of directors to oversee band business. Their main goal should be to hire a highly educated and professional business-minded staff.

The federal government is needed to act as a watchdog over environmental concerns and taxpayer dollars in order for bands to operate in an effective manner, but also to cut down on corruption and to protect our civil rights.

I have a letter to band members from Perry McLeod to show the direction the regime tactics are going in on my reserve. I also have a copy of the National Post article if anyone has a desire to peruse those in the question period.

Thank you for your efforts with regard to Bill C-7. I appreciate being allowed to speak here today. Thank you.

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The Chair: Thank you very much.

We don't have time for a round, unless we can hold ourselves to one minute per party, question and answer. So it will be brief question, brief answer.

Mr. Elley, one minute.

Mr. Reed Elley: Thank you very much for coming and sharing with us, Mrs. Couchie.

I want you to know that I have sat in on many aboriginal accountability sessions across the country and I have heard horror stories like this. I know that they are not representative of all native people across Canada. It's a small proportion of bands that have these problems, but they are out there and they need to be addressed.

I've had an opportunity to bring some of these concerns to the House of Commons and to speak to the minister directly about some of these things.

Do you think the First Nations Governance Act, as you know it, would really address these concerns at a band level?

Ms. Connie A. Couchie: It's hard to say. I don't know if it will have any effect. I'm hoping that somewhere along the line it will do something to put more of a restraint on what's happening to us. For our band, we're really badly abused there. We're blacklisted all the time. There are people like Eva. She's 76 years old. She has to carry her water and stuff. That's ridiculous in this day and age.

The Chair: Thank you.

Mr. Martin.

Mr. Pat Martin: Thank you. You certainly have cited many grievances here. I would echo Mr. Elley's comment that the sweeping changes to the Indian Act as contemplated by Bill C-7 go far beyond the mismanagement that you allege in your own area. They seek to impose whole new changes to the way accounting is done, etc., to every first nation, 633 of them.

I think you probably have legitimate grievances here that I would hope would be addressed within the existing parameters, but I don't see the connection to Bill C-7, other than that you're outraged by what's going on in your riding, and somebody's opening up the Indian Act and therefore you're saying it's a good thing.

Have you really done an analysis of all the things in Bill C-7?

Ms. Connie A. Couchie: Not all, because I'm actually a layperson. I'm not a legal expert, and I'm not into the historical.... The historical means nothing to me. It's the present day and beyond. If that gets us a better lifestyle while we're here in the next 100 years, I'd sure appreciate it.

It's not what happened then and what's going to happen in 100 years, because who knows? It's the here and now and the next 50 years, because these things will be revamped and the Indian Act changed.

The Chair: Thank you very much.

Ms. Neville, one minute.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you for your presentation. It was very powerful.

Although you haven't done an analysis of Bill C-7, what I'm hearing from you is that you have some hope that something will change.

I'm also intrigued by the fact that you came forward with information on the retribution against people for speaking out. What will happen to you for having spoken out like this today?

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Ms. Connie A. Couchie: Because this is closed, which I sure appreciate, I don't expect too much. I built my own house out there. I run my own small business. My son is a police sergeant, so that helps, and then my other son is with me. I'm not trying to get money, a job, or anything else from them. They haven't liked me since I wrote about the regime seven or eight years ago. But it doesn't matter. I told them I was coming here so that it wouldn't appear as if I'm hiding something. I expect a problem, but it won't be major. I'm old. Who cares?

The Chair: Thank you very much. Without taking sides, it takes a lot of courage to do what you did, and I commend you for it.

Ms. Connie A. Couchie: Thank you.

The Chair: I now invite spontaneous presentations of two minutes.

Anna Mcleod. Judging by the phone number, you're from Sturgeon Falls. You have two minutes.

Ms. Anna McLeod (As Individual): Without repeating everything Connie has already said, I'm from the same reserve as Connie. My name is Anna Mcleod. I also have been targeted by our Nipissing First Nation for coming forward about our regime.

One of the band members stated earlier that nobody from the government had come to the reserves. I beg to differ because a member from the Canadian Alliance, which at that time was called the Reform Party, Mr. Myron Thompson, came to our reserve and witnessed what is going on.

In my family alone, seven of us are voting members, but three of us are not given an opportunity to vote on our reserve because of a prohibition ordered by the chief. This was done without an appeal process. I'm hoping that Bill C-7 will help correct what's going on, on our reserve, because there is definitely an abuse of power and the mismanagement of funds. My own children have been denied education for four years in a row, and that cripples them from being able to go ahead and to strive to go forward.

Connie mentioned Rainbow Concrete. That started with 10 employees. It was a non-native industry that came on to our reserve. They stayed there for approximately 25 years. They ended up having in the neighbourhood of 60 employees, 23 of them band members. They were literally ejected off the reserve with one week's notice. It was hard for us because my husband had worked there for 23 years. Half a million dollars annually were coming into our reserve. It bothered a lot of the band members. It made us feel helpless because there was no way to stop it. When we went to band meetings, police officers were there so that we would guard what we were saying. If anybody said something that the chief and council didn't want to hear, we were kicked out or were literally told to shut up.

The Chair: Thank you very much for an excellent presentation in two minutes. I know how difficult it is to make a two-minute presentation. This is something we have added. It's not normal for committees to do this. We decided to open it up and give two minutes to anyone who wishes to use it. We thank you very much. We commend you for your courage.

Ms. Anna Mcleod: Thank you.

The Chair: Eva Pitt. Judging by the phone number, you're from North Bay.

Ms. Eva Pitt (As Individual): I'm Eva Pitt. I'll be 76 next month, April. I've been away from the reserve since I was 17. I married in 1948 and I came back in 1990 thinking I'd make my home where I came from. I lived in the valley for 42 years. I didn't have any education because I went to the residential school. I went there in the year 1936, came out and had my holidays at home, and then went back in 1937.

I have problems with my eyes. I'm blind in my left eye and can barely see with the right eye.

I didn't have much education; I only had grade 2.

I really don't know where to go. I'm a Bill C-31. But I came home thinking, well, we'll settle down. I needed help, so I went to the reserve. They said they'd help me, but they never showed up. Then I went to the Métis, and they were going to help me, but they had to sign a paper releasing me—you know, having nothing to do with me on the band—and they wouldn't sign it, so I'm still out of water.

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The Chair: Thank you very much for—

Ms. Eva Pitt: I don't really know where to turn. While I was in school I really had a hard time. That one winter I didn't go to school at all because I have what you call ulcers in the cornea. That's why I have so many scars in my eyes.

I don't know where to turn today. I'm very ashamed to come here and tell my troubles. Excuse me.

The Chair: Well, we thank you very much for your presentation. You should not be ashamed. It takes a lot of courage to do what you did, and we admire you for it. We have received your paper, so we will translate it and have it distributed to everyone.

I now invite Esther Osche. I may have mispronounced your name. I'd ask you to correct me, please.

Ms. Esther Osche (As Individual): I'm Esther Osche from Whitefish River. I have not come to speak and say my words to offend anyone, but I have come to bring a voice.

“Consultation” by whose ways? You did not come to our community to obtain consent on the terms of this talking taking place here today. Your Bill C-7 robs our young of their birthright to self-determination based upon the teachings, customs, and traditions of their people.

The government in its so-called wisdom comes to take from us, like a thief, the ability to act and function independent of government regimes; to determine our own future on our own terms.

How long will you shame us? How long will you dishonour our existence by stating in your many pronouncements that a law is needed because we are not capable of caring for ourselves? How long will you insist your ways are better? Your ways have not healed the paralysis socially, economically, or politically that your blanket—the Indian Act—has given to us, our children, and our grandchildren.

We are an oppressed people, and it is not because our chiefs and council and our administrations keep us this way. It is because of how we have had to live, by a way designed by a fiduciary who now wishes to rid themselves of the burdens and problems they have created in our communities, by designing yet another new law.

This will not resolve anything. It is a quick fix. It was not designed by the people who will have to live it. So instead of working, it will only add to the problems we have had to endure by living someone else's ways and not our own.

You cannot tell me of a new life for our people while in the same breath you cut our chiefs short of what they have to say to you. You send our young people from the room as you find their expression to you offensive. Where is the forum here for elders, our wise ones, to speak of the gentle, good, and true ways of our forefathers?

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The Chair: I must interrupt at this point because we're at three minutes already.

We thank you very much for your presentation.

Ms. Esther Osche: Thank you.

The Chair: This concludes our public hearings in Sudbury. We will suspend and resume in Thompson, Manitoba.