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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Thursday, April 10, 2003

0940

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

Mr. Pat Martin (Winnipeg Centre, NDP)

The Chair

Mr. Pat Martin

The Chair

Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development)

0945

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

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

The Chair

Mr. Yvan Loubier

0950

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

Le président

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

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

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

Mr. John Godfrey

The Chair

Mr. Pat Martin

0955

Mr. Paul Salembier

Mr. Pat Martin

1000

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1005

The Chair

Mr. Yvan Loubier

1010

1015

The Chair

Mr. Pat Martin

1020

1025

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

The Chair

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

1030

The Chair

Mr. John Godfrey

1035

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Paul Salembier

1040

Mr. John Godfrey

Mr. Paul Salembier

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

Mr. John Godfrey

The Chair

Mr. John Godfrey

The Chair

Mr. David Chatters (Athabasca, Canadian Alliance)

The Chair

Mr. Warren Johnson

Mr. David Chatters

Mr. Warren Johnson

Mr. David Chatters

The Chair

1045

Mr. David Chatters

The Chair

Mr. David Chatters

The Chair

Mr. David Chatters

The Chair

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

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

1050

1055

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

1100

1105

The Chair

Mr. Charles Hubbard

1110

Mr. Warren Johnson

Mr. Charles Hubbard

The Chair

Mr. John Godfrey

1115

The Chair

Mr. Warren Johnson

Mr. John Godfrey

Mr. Warren Johnson

1120

Mr. John Godfrey

Mr. Warren Johnson

Mr. John Godfrey

Mr. Warren Johnson

The Chair

Mr. Pat Martin

1125

1130

Mr. Warren Johnson

Mr. Pat Martin

The Chair

1135

Mr. Yvan Loubier

1140

Mr. Warren Johnson

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

1145

The Chair

Mr. Yvan Loubier

Le président

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1150

The Chair

Mr. Pat Martin

1155

1200

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. John Godfrey

1205

Mr. Warren Johnson

Mr. John Godfrey

Mr. Warren Johnson

1210

Mr. John Godfrey

Mr. Warren Johnson

Mr. John Godfrey

Mr. Warren Johnson

Mr. John Godfrey

Mr. Warren Johnson

Mr. John Godfrey

Mr. Warren Johnson

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Andrew Beynon

1215

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

1220

The Chair

1225

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

Le président

Mr. Yvan Loubier

1320

1325

The Chair

Mr. Pat Martin

1330

1335

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1340

Mr. Warren Johnson

1345

Mr. Yvan Loubier

Mr. Andrew Beynon

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Andrew Beynon

The Chair

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

1350

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 063

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, April 10, 2003

[Recorded by Electronic Apparatus]

¿ (0940)

[English]

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

We are now on amendment NDP-15, page 33.

(On clause 5--Leadership selection code)

The Chair: Mr. Martin.

Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Chair, in speaking to our recommended amendment NDP-15 regarding the leadership selection code and what a leadership selection code must contain, I would like to begin by saying that we don't have all the information we need at this stage to be able to do justice to this clause.

As you know, even in the process of crafting these clauses, some of us felt that it was necessary for us to know what the government's mindset or opinion was as to the impact of some of these clauses. We had reason to believe--in fact, we know--there are legal opinions and opinions drafted by government, and possibly commissioned from outside sources by government, to give them direction as to what the impact of these clauses will be and what possible implications they might have on section 35 of the Constitution.

So we now know that there are documents to that effect out there, and we know this because the Indigenous Bar Association has been trying to get access to them for a year and a half. The government did not deny that they exist; the government simply said, you're not allowed to have them or see them.

Last night, in a similar standing committee, the Standing Committee on Government Operations and Estimates, in the clause-by-clause process on Bill C-25, the members of the committee found themselves in a similar situation, where they felt that to go further with clauses in a clause-by-clause analysis, it was vital to them that they have at their disposal the information the government had, the internal cabinet document, in fact, that the government had that led to the crafting of Bill C-25, amendments to the civil service.

I don't like to compare the merits or the relative importance of legislation. Amending the civil service is vitally important to Canada, as well as amending the Indian Act is important to Canada, but I would argue that our work is more important because it directly affects the daily lives of a million first nations citizens. Certainly in my mind it's more important than the intake and the merit principles of the Public Service Commission.

The Chair: Mr. Martin, you're not speaking to your amendment. Could you speak to your amendment?

Mr. Pat Martin: I am trying to introduce the amendment. The reason I'm using this argument as a preface, Mr. Chairman, is because we're getting into the meat and potatoes of the very codes, the leadership codes, the election processes, the financial administration codes, the very points on which first nations are fearful that imposing these codes may be infringing upon constitutionally recognized rights.

So the reason I preface the remark with reference to what happened last night is because there's a direct parallel and a direct correlation here, that the members of the Standing Committee on Government Operations and Estimates last night felt strongly that they couldn't do their work without knowing what was in the government's mind leading up to that, what the opinions were that government had to deal with in the process of crafting that bill.

I believe we find ourselves in the same position here today. We're being asked to make serious choices and decisions about clauses in this bill, and we can only guess as to what the intention of the government was, based on what opinions they had. So I think it's reasonable that we do the same thing that the government operations committee did last night and we suspend the clause-by-clause analysis of this bill.

We should suspend that until such time as at least either those documents and legal opinions are made available to the committee, or such time as we can call as a witness the people who drafted the bill, so that we can question them directly, if the government for reasons of confidentiality is not willing to share the actual documents.

I would ask our technical advisers, even before I speak to the clause-by-clause, were there opinions drawn up regarding the codes, the governance codes in Bill C-7, that were shared with the minister and with the cabinet that we have not seen as a committee? Do such internal documents exist?

I suppose I'll start by asking Mr. Johnson, who is at the senior level, or whoever would like to answer.

The Chair: I must admit that I don't know clearly in my mind the legality of confidentiality of cabinet documents and all that stuff. You're lawyers and experts in your field. If you feel you should respond to that, go for it, but if you don't, we will understand.

Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development): Well, maybe I'll just respond, Mr. Chair, to say I understand that the committee has already considered the question of disclosure of legal opinions and voted against that. I have no authority whatsoever to disclose whether there have been legal opinions on any particular issue on Bill C-7, nor to provide the contents of the same, nor to provide any legal advice to the committee.

I am certainly able to provide technical observations on proposed amendments, but that's the limit of my authority.

¿ (0945)

The Chair: We did pass a motion last week saying that we wouldn't request them.

Mr. Martin.

Mr. Pat Martin: Well, the reason I asked that question, I suppose...we did vote down a motion to release any such documents in the middle of the night at the end of a 12-hour filibuster when I'm not sure everyone was in the best mindset to give serious consideration to such a motion.

I think it's not unreasonable that we should have all that information now.

The Chair: I will rule that out of order. We've dealt with it. Whether it's reasonable or not, whether we were tired or not, those are the consequences of filibusters and we're going to live with it. But I will rule that out of order. We've voted on it.

Mr. Pat Martin: I don't know what you're ruling out of order because I haven't made any kind of motion yet.

The Chair: But you make reference to those legal documents that you're after. We're not going to go after those documents if they exist.

Mr. Pat Martin: If they exist. Well, I guess that's the question I have of our technical people. Do such documents exist, and were such documents prepared for the minister and for cabinet to give a legal opinion as to the impact of this bill on either outstanding court cases that are currently--

The Chair: And they have responded and you can move on with another issue. You have three minutes left.

Mr. Pat Martin: Responded by saying that they don't exist or responded by saying they won't tell us if they exist.

The Chair: You can move on with another issue.

Mr. Pat Martin: Well, I would like clarification.

The Chair: If you don't, I will give the floor to the next speaker.

Mr. Pat Martin: Well, I object, Mr. Chair.

The Chair: I know you object.

Mr. Pat Martin: I think it's reasonable. I object to the fact that I think it's reasonable that we ask for whatever information the government had in crafting this bill, which should be made available to the committee. We're not lawyers. Some of us don't have the resources or the time, given this timeframe, to consult lawyers about the impact of these things. But we do have outside legal opinions, other people who have done this analysis, that say clauses and aspects of Bill C-7 do infringe on constitutionally recognized rights and will have an effect on outstanding court cases, to limit the liability of the government regarding outstanding court cases and future court cases. I ask the technical people if they were even asked those questions.

The Chair: What questions?

Mr. Pat Martin: Were they asked the questions: does Bill C-7 have an effect on the constitutional issues of section 35 and does Bill C-7 have any impact on outstanding court cases?

The Chair: I don't accept that you asked them if they were asked a question.

Mr. Pat Martin: Yes, that's right.

The Chair: If you want to ask that question, go ahead, but we're not here to do a history of what they've done in the last five years.

Mr. Pat Martin: It's important for us to know--

The Chair: It's important for you, but it's not important for us, and I speak for the committee.

Mr. Pat Martin: I think it's important for the committee to know if those very subjects were broached in the development of this bill. I ask, were you asked your opinion?

The Chair: I don't accept that question. They're here to provide information that will help us with the clause. We're not here to check the work they've done in the last five years.

You have 45 seconds left.

Mr. Pat Martin: Well, I'd like to protest again in the strongest possible terms that this is not an unreasonable request. If we needed a precedent, a precedent was last night when it was the Liberal members of the committee, by the way, who insisted that they have an internal, private cabinet document and evidence of it before they were willing to proceed with the clause-by-clause. Now they're meeting right now to figure out how they're going to go about this.

The Chair: Mr. Martin, I don't know what you're talking about. I don't know if others do.

Am I the only one who's missing the issue here?

Mr. Pat Martin: Well, Reg Alcock came up here and told you about it last night at 8:30.

The Chair: Mr. Alcock is not a member of this committee.

Mr. Pat Martin: He told you about what was happening in his committee.

The Chair: Your time's up, Mr. Martin.

Anybody else on NDP-15?

Monsieur Loubier, ten minutes.

[Translation]

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Mr. Chairman, before I continue on the amendment to clause 5, I would like to be told what's on the day's agenda. What work is scheduled for the day? We've begun, but we don't know when we're going to finish. What are your intentions?

[English]

The Chair: We will proceed until someone moves adjournment.

[Translation]

Mr. Yvan Loubier: Pardon? Excuse me.

¿ (0950)

[English]

The Chair: We will proceed until someone moves adjournment.

Mr. Pat Martin: I move we adjourn.

The Chair: I have a motion to adjourn.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, on a point of order, please. Given the schedule we set...

[English]

The Chair: One moment.

Mr. Martin cannot move a motion because he doesn't have the floor. He doesn't have the permission of the speaker. Therefore the floor belongs to Monsieur Loubier on NDP-15--not on procedures and on our schedule, but on amendment NDP-15.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I would like to ask a brief question.

Can we know the day's agenda, in view of the fact that we've set a deadline for the study of Bill C-7 of midnight this evening? What will happen between now and midnight, and what will happen after midnight? It seems to me that, for the committee to operate properly, it is elementary that we know where we're headed.

[English]

The Chair: The meetings have a starting time and no longer have an ending time. I let the committee decide when they've had enough. They put in a motion to adjourn, as they have done in the last three meetings. There's no surprise here.

[Translation]

Mr. Yvan Loubier: Yes, but since we've set a specific schedule, Mr. Chairman...

[English]

The Chair: Don't discuss that any more. I wish you to speak on the amendment.

[Translation]

Mr. Yvan Loubier: But since we've set a very tight deadline, that is to say tonight at midnight...

[English]

The Chair: Use up your time the way you want. I will not respond.

[Translation]

Mr. Yvan Loubier: At midnight, it will be April 11, and you set the date of April 11 to table a report in the House. Perhaps it would be a good idea to know the day's agenda, unless you don't know at all where you're headed. That could happen. I believe all the committee members would like to know your intentions, in view of the fact that there are some 150 amendments.

[English]

The Chair: Mr. Loubier, you can insult me like you insulted the employees of the Crown yesterday--

[Translation]

Mr. Yvan Loubier: I'm not insulting you. I leave that...

[English]

The Chair: --and I will....

Cut the mike.

You can insult me like you insulted the employees of the Crown yesterday. I allowed it to go on because the clock is ticking. And I will take it like they took it. It's unfair, it's uncivilized, and we're going to put up with it for the sake of getting this job done. The clock is still running.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, on a point of order.

Le président: I'm listening.

Mr. Yvan Loubier: I'm insulting no one, neither you nor the employees of... You insulted me and you insulted my mother by calling her a bitch the other day. If you want to talk about insults, we can do that. Moreover, you never apologized. You apologized generally before the House, but you did not apologize to me; you didn't apologize to my mother and you haven't apologized to a people that you're humiliating once again.

I'm asking you a rational and intelligent question, and I expect an intelligent and rational answer. What is today's work schedule? Since we've set a tight schedule and you have to present a report to the House tomorrow, how are we going to go about discussing the 150 amendments here?

[English]

The Chair: Are you finished, Mr. Loubier?

The clock is at 3:43.

[Translation]

Mr. Yvan Loubier: You're not answering my question.

[English]

The Chair: Are you finished, Monsieur Loubier?

I will move on.

[Translation]

Mr. Yvan Loubier: If the hands on the clock are still turning, I'm waiting for your answer. I still have time.

[English]

The Chair: Mr. Godfrey.

Mr. Godfrey has the floor.

Mr. John Godfrey (Don Valley West, Lib.): Mr. Chair, I have a question for the witnesses. I'm trying to think about this amendment and my question goes like this. Just on the plain meaning of the amendment, the practical implication of this amendment is that it seems to be a bit free-floating. Can you explain the difference between what the government text is and what the effect of this amendment would be? I'd take it from anybody, but whoever feels most comfortable in answering the question....

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): I can address that if you'd like.

First of all, it deletes subclause 5(2), which provides for a special regime for bands who are now under custom election regimes.

In paragraph 5(1)(b) it removes the requirement that a majority of councillors be elected. In paragraph 5(1)(c) it removes the requirement for a limit on terms for councillors. And in paragraph 5(1)(d) it removes the requirement for a secret ballot.

Mr. John Godfrey: That's interesting. That's what I wanted to know. Thank you.

The Chair: Anyone else on the amendment?

Mr. Martin, you'll have closing remarks, 10 minutes.

Mr. Pat Martin: Mr. Chairman, it would be easier for us to deal with this amendment and any others if we knew what the government was thinking, what their opinions were, and what their motivation or intentions were in putting forward subclause 5(1) as we see it.

The first thing I would say is I don't understand why, in amending clause 5 by changing subclause (1), it would automatically delete subclause (2). And if that was the intention, I don't believe that was the original intention of the people who crafted this amendment.

We're dealing with subclause 5(1), we've proposed a substantially different subclause 5(1), and we didn't make any comment about subclause 5(2).

¿ (0955)

Mr. Paul Salembier: Would you like me to address that?

The amendment in NDP-15 removes lines 1 to 13 on page 5, which includes subclause 5(2).

Mr. Pat Martin: Right you are.

The other aspects, the changes that are proposed, simply make the selection of leadership code less prescriptive and leave it up to the bands and councils to decide their own details regarding the leadership selection code.

I don't think it's unreasonable that the code should provide for the size and composition of the band council. I don't think that infringes in any way on anybody's freedom to choose their own band council structure.

So you'll find that in paragraph 5(1)(a) we didn't see fit to make any changes.

There was a change in the introduction of the actual language of subclause 5(1). It was felt by the drafters of this amendment that it wasn't necessary to outline as much language as you have in the original Bill C-7, where it says:

Where a band was subject to an order under section 74 of the Indian Act immediately before the coming into force of this section, a leadership selection code adopted by the band must include rules

In our analysis we have subclause 5(1) simply read: “a leadership selection code must” and then it goes on to outline those things.

The logic behind this, as put forward by the people who drafted it, is that Bill C-7 in its current form discriminates between so-called custom bands that have elected to opt out of section 74 of the Indian Act and those that have not. We find the language of paragraphs 5(1)(a) through (j) in Bill C-7 to be overly prescriptive and therefore inconsistent with the recognition of aboriginal self-government.

In other words, if you're saying this bill is all about self-governance, why are we dictating in very prescriptive forms exactly what the leadership selection code should look like down to the narrowest minute details of what it should entail and be structured by?

In paragraph 5(1)(d), I don't think it's a matter of whether we particularly personally approve of a secret ballot vote over a show of hands or any other manner of indicating your selection. That's not really for us to decide. I personally might support that it should always be a secret ballot, but again, it's none of my business, and neither is it any of our business.

There are traditional and cultural methods of going around the circle x number of times until you reach consensus over an unlimited period of time, and that might be the selection of indicating support they choose. There may never be an X marked on a sealed ballot put into a secret ballot box.

It's limiting in its very nature. It describes our view of how their elections should be, and this is some of the tone of this whole bill that even on first glance people objected to.

This is one of the very first presentations we heard right across the country, what I'm reading from today. Again, for everyone's information, I didn't draft these resolutions. We neither have the time nor the expertise. We took direction from the many presentations we heard across the country. When one was introduced and repeated over and over again across the country, it satisfied us that there was fairly good consensus from exchanges across the country amongst first nations and that this is the way they wanted it. The language developed from there.

It's our belief the language of clause 5 needs to be changed to provide non-custom bands with the same choice as custom bands to opt out of paragraphs 5(1)(a) through (j) and to delete the unnecessarily prescriptive portions of the bill, and that's what we seek to do.

Again, it would be incredibly useful to know whether in the opinion of these experts, these authorities on the subject, there is anything in Bill C-7, subclause 5(1), that has any bearing on outstanding court cases--the 200 of them--or has any implications for the constitutionally recognized existing rights--whether there's any possibility of infringement.

À (1000)

Those are the legal opinions we need. We have ours, which says, yes, it does. We need to hear the government side. It's frustrating to me that they're not allowed to tell us. I know they're capable. I know it's in their minds. But we can't ask them this question because they won't answer and I'll be ruled out of order if I keep trying.

So I put it on the record that it is fundamentally wrong to proceed any further until we have all the information necessary to make a reasoned decision here.

I would ask support in many of these changes we're recommending in subclause 5(1), simply because it is what first nations leaders asked us to do after their own careful consideration and that of the lawyers they hired, some of whom are well-known and prominent legal minds in this country.

When it was necessary for some of these first nations to seek outside help, they went out and hired the best, as in the case of this particular presentation. I'm referring to the Assembly of First Nations of B.C. regional vice-chiefs' brief. This was the first place we heard this particular language, because our tour started in B.C., I suppose. But it was repeated over and over again and garnered support across the country until it was pretty much the consensus of what they could live with in terms of prescribing what the leadership selection code must involve.

There are substantial differences from what you have in Bill C-7. Again, I would move that we suspend these committee hearings until such time as we either get the documentation from the government regarding its opinions of the impacts of these clauses or are allowed to interview as witnesses the people who drafted those documents.

The Chair: That is out of order. Continue with your time.

Mr. Pat Martin: It's frustrating when the very things we need to do are out of order. I don't understand the process then.

I would be interested in knowing more about what happened last night when actually the Liberal side of this government's operations committee decided it couldn't proceed with a clause-by-clause unless an internal cabinet document was released, which even goes beyond what we're asking for here, Mr. Chairman.

The Chair: That is incorrect.

Mr. Pat Martin: We're simply asking for documents that should be made public. If we're charged with the responsibility of changing the Indian Act, changing the lives and operations of first nations, we should have both sides of the argument.

I might be willing to withdraw this amendment if I could see a darned good argument to the contrary. All I've seen are legal opinions saying that we're right in our apprehensions about clause 5. The minister and the government are unwilling to even give us the arguments to the contrary. We believe they know full well that it does infringe and that they haven't provided justification, consultation, or negotiation that would give them licence to infringe on these constitutionally recognized rights.

They had clear direction in recent Supreme Court rulings that if the government finds it necessary to infringe on these rights, there must be justification, there must be consultation, and those infringements must be negotiated so as to mitigate or minimize the impact.

We have reason to believe and have been--

The Chair: Mr. Martin, we'll now proceed directly to the vote. I will say to Mr. Martin that you will have another opportunity in the House to debate this. You can ask the Speaker of the House to produce those documents. He might have more power than I do.

We go directly to the vote. Are we ready for the question?

Mr. Pat Martin: I ask for a recorded vote, Mr. Chairman.

À (1005)

The Chair: A recorded vote on NDP-15.

(Amendment negatived: nays 8; yeas 2 [See Minutes of Proceedings])

The Chair: We now move to BQ-11.

Mr. Loubier.

[Translation]

Mr. Yvan Loubier: The purpose of the amendment I'm proposing in article 5 is to remove any sort of limitation for the Aboriginal nations, everything that compels them to take one path rather than another that they would prefer to choose. This is consistent with what my colleague Mr. Martin said earlier.

We can't have an agreement with the First Nations and say that we consider them as nations and that we're in favour of self-government... Moreover, even if we aren't in favour of self-government, the inherent right of self-government is nevertheless a natural right recognized by the courts, including the Supreme Court and the international courts. So if we consider this fact as a given and not as something over which we can have some influence, it is normal to see clauses in the bill that do not contain limitations of this kind, which go against what we should consider a pact between the federal government and the Aboriginal nations.

Compare the wording of the bill and the amendment I'm proposing. My amendment states:

(a) providing for the size and composition of the band Council;

There's no real change relative to the initial wording because there's no limitation in that paragraph.

(b) establishing a mode of selection of members of the Council;

In this paragraph (b), I completely delete the direct limitation, which states:

(b) establishing the mode of selection of the members of the council, as long as a majority of them at least are elected;

It is not for us to prescribe for the First Nations how their elections will be held. My new wording for paragraph (b) eliminates that limitation.

The paragraph (c) I'm proposing states:

Here again, the First Nations must be allowed the freedom to decide on the length of term on their own, and we must not prescribe something for them as in the present wording of paragraph (c), which reads:

By what right can we limit their terms, when it is they who must choose how to preside over the election of the elected members of the council and the length of the terms?

My wording for paragraph (d) is as follows:

(d) prescribing procedures for selecting the members of Council;

That stops there. Once again, the present wording contains inflexible limitations, which take no account of the fact that the First Nations are nations which, we recognize, have an inherent right of self-government. For 20 years now, the courts and international law have never acknowledged that the federal government has a right to tell them what to do. On the contrary, the court judgments, in particular those of the Supreme Court, as well as the prescriptions and international rules of law, state that the Aboriginal nations have a right to self-determination and an inherent right of self-government. An inherent right is a natural right given by God. We will not stop repeating that fact. It is a given, not something we can play on or not play on. It belongs to the Aboriginal nations. The bill states, for example:

(d) prescribing procedures for the selection of members of the council, and requiring that voting for the elected members be conducted by secret ballot;

This is a limitation that we should not see in a bill such as this, which claims to be giving self-government to the Aboriginal nations.

À (1010)

Why say, on the one hand, that we're promoting the self-government and independence of the First Nations, while, on the other, we continue to prescribe, as we have done in all the legislation passed in the past 130 years, since the adoption of the Indian Act? We continue to tell them what's good for them, what they should do, how they should operate, whereas they're killing themselves telling you that they have rules, a culture, institutions and cultural characteristics that lead them to do things differently from us.

Why not admit this difference, and why not also admit that our role is not to prescribe limitations such as that appearing in paragraph 5(1)(d)?

In paragraph (e), the wording I suggest is as follows:

(e) prescribing the qualifications of persons entitled to be selected as members of Council;

Once again, I'm deleting the limitations found in the present paragraph (e), for the reasons I gave a moment ago.

In paragraph (f), I leave it for the bands to choose to elect their council in the way they wish:

(f) if a band chooses to elect its Council, prescribing the qualifications of those persons who may vote at elections of the Council and the process for carrying on the voting;

Once again, in view of their sovereignty, the First Nations will be able to choose voting mechanisms and prescribe procedures to establish the required voting qualifications.

Paragraph (g) talks about filling vacancies on the council. Once again, we must delete the limitations.

I also propose the following paragraphs:

(h) specifying the grounds and providing a process for appealing from the selection of members of Council;

(i) specifying the grounds and process for removal from office of members of Council, including elected members;

(j) identifying corrupt electoral policies;

(k) establishing a procedure for amending the code.

Mr. Chairman, I repeat that all that is part of the responsibilities of the elected representatives of the First Nations. It is up to them to choose their mode of operation. It is up to them to define their institutions, their rules, their election structure and other more specific procedures, since we even talk about vacant positions. It's up to them to define that. We have nothing to do with it.

If, for example, you were going to interfere in American affairs to tell the Americans that their way of voting is not the right way and prescribe another way of voting for them, don't you think the Americans would send you packing? We should have the same reflex when we address the Aboriginal nations. They are nations, and they must be respected for what they are, and we must consider that they have the independence they need to choose their own future and the procedures they want to institute.

My amendment also adds a new subsection, subsection 6:

(6) The office of the First Nations Elections Officer shall be established in consultation with the Assembly of First Nations and the Minister. The First Nations Elections Officer shall supervise the entire election process.

This additional subsection that I'm proposing was suggested by a number of witnesses knowledgeable in the law who wanted to offer their legal opinions on the bill, among others the National Aboriginal Law Section of the Canadian Bar Association. There was also the Chief Electoral Officer, Mr. Kingsley, who appeared before us and suggested that the office of First Nations Elections Officer be instituted. In his great wisdom, Mr. Kingsley suggested that the government negotiate with the First Nations to see how they view the introduction of a position of First Nations Elections Officer of this kind.

À (1015)

A First Nations Elections Officer would necessarily be a member of the First Nations because a nation cannot be asked to oversee the election process of another nation, unless a delegation is sent to the UN to monitor elections in countries where democracy does not necessarily play in favour of the citizens.

All these amendments are designed to enable us to keep the promises...

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

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

Thank you, Mr. Loubier, for adding your very useful and thoughtful contribution to the amendments to this particular clause. I can see the merit in many of the arguments you make.

Even further, I'm appreciative, as I think all members here probably are, of your adding subclause 5(6), which says:

The office of the First Nations Elections Officer shall be established in consultation with the Assembly of First Nations and the Minister. The First Nations Elections Officer shall supervise the entire election process.

I think this answers in a more sensible way many of the concerns that have been raised by the Canadian Alliance.

Even the government made reference to the fact that they weren't satisfied with the election process in some instances. I think the intention of the government in putting forward this leadership selection code process is to clean up what could be described as messiness in some elections across the country, which were isolated incidents, where people, perhaps those who didn't win, filed complaints and grievances. The only avenue of recourse is filing a complaint that things weren't done fairly to the minister via Indian Affairs.

I think it's a reasonable thing to look at. It would be a separate, parallel elections officer process. Instead of Elections Canada, it would be done exclusively for and by first nations in consultation with the Assembly of First Nations and the minister. The elections officer would supervise the election process. It is a very reasonable thing, and I appreciate that.

Many of the arguments you made regarding subclause 5(1) are similar to what I had put forward. People asked me why we recommended the deletion of subclause 5(2). I think you've answered that in the way you've outlined your recommendations here. Our argument is that notwithstanding the advantages provided to custom bands under Bill C-7, under subclause 5(2) restrictions would be placed on custom bands that very likely infringe on their aboriginal governance rights.

Subclause 5(2) in its current form would require that custom bands reduce their particular customary rules to a written form, and then they must adopt these rules within a two-year timeframe. These rules must be in accordance with the regulations made pursuant to clause 31. In other words, you're taking the right to be a custom band and have a process that's crafted by and suitable to your own customs and traditions and rendering that into a written form, so that it's no longer traditional and customary, and that written form then must be in accordance with the new regulations drawn up by the Crown without input from first nations. So you've crafted or morphed these customs and traditions into a form dictated by the minister again.

Even the Congress of Aboriginal Peoples, which is the one aboriginal group across the country that seems to be in favour of Bill C-7, was quoted as saying in its brief that “The restriction of s.74 Indian Bands to adopt customary leadership selection after the enactment is likely a violation of s.15 of the Charter.”

This is a concern. We're not making this stuff up. That's why we chose to delete subclause 5(2). I think it was addressed and answered somewhat if you adopt the Bloc's very reasonable interpretation. Maybe it's more acceptable coming from them than it is from me. I don't know.

I'm not asking you to take my word for it. You could ask the professor of law at the University of Ottawa, Larry Chartrand, to confirm this. You could ask the regional vice-chief of the Assembly of First Nations and their legal counsel, whose business card I have but whose name escapes me at the moment.

À (1020)

The bill is saying, on the one hand, that custom bands are excluded from this process, because we have respect for their customary traditions of leadership selection codes, but it's also saying that if you do have a custom selection code, you have to (a) render it into writing and then have it adopted within a two-year timeframe by the election process, which we failed to amend last night, and that this customary code must be in accordance with the regulations that nobody has seen yet--and haven't been written yet, but that's another point--and it all has to be pursuant to clause 31 of Bill C-7. So where is the freedom to have a unique custom leadership selection code?

After all that, all selection codes must include a process for appealing the selection of the leadership and must also provide for a procedure to amend these rules. These infringements, this lawyer argues, must be addressed through changes in the language to Bill C-7 and must be either eliminated or minimized. That's what we're seeking to do.

So, again, I don't make this stuff up. I'm not smart enough to make this stuff up. I'm not a lawyer, and I'm simply going by the guidance we're getting from a consensus that's developing across the country.

Clause 5 in the current Bill C-7 makes the distinction between bands that have conducted Indian Act elections and those that have developed their own customary election procedures. So that recognizes the significance of custom and tradition in the election process. But we fear that evidence of the possibility of significant infringements exist if we pass 5(1) as it stands. In the first place, where a band was subject to Indian Act election regulations immediately before the coming into force of the act, it has no choice but to adopt a leadership selection code that includes the rules specified under paragraphs 5(1)(a) through (j) of the proposed bill.

Accordingly, if a band that formerly conducted elections under the Indian Act wishes to adopt a membership code consistent with its traditional customary practices, but inconsistent with the provisions of paragraphs 5(a) through (j), it could not do so according to the current language of Bill C-7. That's the legal opinion we have, unless changes are made. So this, essentially, discriminates between the so-called custom bands that have elected to opt out of section 74 of the Indian Act and those that have not.

Specifically, while Bill C-7 allows custom bands that have not conducted their elections pursuant to the Indian Act regulations to establish whatever election or non-election procedures and rules they wish, according to their traditional custom, those bands that have conducted their elections pursuant to the Indian Act regulations do not have this choice and must follow the criteria set out in paragraphs 5(1)(a) through (j).

So we recommend, and they recommend, and, again, people more skilled than I recommend, that the language of Bill C-7 be changed to provide non-custom bands the same choice as custom bands to opt out of paragraphs 5(1)(a) through (j). And we say that the language of paragraphs 5(1)(a) through (j) infringes on customary leadership selection procedures.

This can be ameliorated by changing the language to read as pretty much outlined by myself in the previous NDP-15 and now the Bloc under BQ-11. We have very similar suggestions. We have similar sources in crafting these two amendments, so we concur with the Bloc's recommended subclause 5(1) and the language they propose, I believe, without comment. I don't believe there's any contradiction that I would have to object to at all in the proposed language of 5(1). It matches the recommendation of the legal opinions we have.

If there's any time left, I'd ask that--

À (1025)

The Chair: Five seconds.

Mr. Pat Martin: How much?

The Chair: Five seconds, now three seconds, two seconds....

Mr. Pat Martin: I think I'm finished.

The Chair: Time's up.

Mr. Hubbard.

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

First of all, a few years back when we had hundreds of amendments dealing with bills, the House established, decided, that similar amendments were to be grouped together and not dealt with individually, one after another, after another, after another, forever.

I don't know why the committee didn't proceed in that way, Mr. Chair. I'm not criticizing your work as chair, but I would think that in order to have this progress, it would be in the best interests of the committee to have your legal people look at this and see the precedents in the House and attempt to put some of these amendments, which are very similar....

When we get one party making seven amendments to one clause, after they've already made an amendment to completely change the clause, we wonder what the purpose of that position is.

Mr. Loubier lives, I understand, in the province of Quebec. They're having an election in the very near future, and I think there are rules in Quebec by which people gain leadership, and by which people are elected, and by which their government operates. I think it's important for this legislation to be compared to the present legislation under which Indian bands have worked. And I think our drafters have made significant improvements in the opportunities that first nations would have in addressing the matter of leadership and the operation of their council.

Many bands, of course, right now operate in terms of a two-year framework. The option is there in terms of the legislation as presented under paragraph (c). It is quite imperative to understand that enabling legislation, which this is, is merely guidelines in terms of developing those procedures that first nations would develop in terms of governance.

I would disagree with some of the members opposite. In fact, I spoke to a long-term retired chief, you may call him, only this morning. He is very interested in this system of governance and he is hoping his people will be offered an opportunity to look at governance and to see how they might improve written methods by which their people will look for their future.

Mr. Pat Martin: [Editor's Note: Inaudible]

Mr. Charles Hubbard: I know that's your intention. You've indicated right from the beginning, Mr. Martin, that you have little faith. But, Mr. Chair, we do have faith on this side. We do hope we're doing something better than what's already there.

I would suggest, Mr. Chair--again, not being critical--that if there is an opportunity for your legal people to look at this, we might attempt to group some of these amendments and not go one after another, after another. But we are prepared to do so if such be the case.

Thank you, Mr. Chair.

The Chair: In the same way that I didn't engage in business of the committee with Mr. Loubier, I will not engage with Mr. Hubbard. I did rule on that very issue this morning.

Ms. Karetak-Lindell.

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

I have a couple of questions.

I listened to Mr. Loubier talking about how we wanted to leave everything in the hands of the band to be able to make its own decisions, but by adding (b), he's already prescribing who they should deal with. If they choose to deal with Elections Canada, they can't.

If we put (b) in, we're telling them who they can work with as far as forming their own elections officers and that process is concerned. Let's say 10 years from now they decide they will have their own election process with their own group, as they have with their own financial administration group, which spoke before us, and that is establishing very credible policies for the bands to follow. We're limiting who they can choose to work with them by prescribing one organization.

Over the years I've observed in my own area that we've had different names and different groups coming up, and as we've progressed, we've given different names to different organizations, depending on what our needs have been. By putting in specific names we're limiting the groups' choices of who they want to be with. For all we know, the Assembly of First Nations might change its name five years from now and this will become redundant. I find a bit of contradiction in giving bands the full opportunity to do their own thing and in the same breath telling them who their elections officer should be.

The other question I had was on 5(1)(j). English is my second language, but if I read this it says they must achieve the following objectives, “identifying corrupt electoral policies”. That, to me, says the only policies I can have as a band are corrupt electoral policies. I look at the one in the bill, 5(1)(i), and it says, “identifying what constitute corrupt electoral practices”. I don't know if that was a mistake, but it seems that the only objective I want to achieve as a band is having only corrupt electoral policies.

Thank you.

À (1030)

The Chair: Thank you.

Mr. Godfrey.

Mr. John Godfrey: Thank you, Mr. Chair.

First of all, I take Mr. Hubbard's point that it would be useful to group things that are really truly alike, but I think he's chosen the wrong example, because if one were to compare the previous amendment, which proposed, for example, dropping subclause 5(2), with this amendment, which doesn't, and adding subclause 5(6), I think they would be substantially different enough that we would have to treat them separately.

I regret--but I'm not going to make a subamendment--that the drafter of this amendment didn't make two amendments, because I actually do think there is some merit in further discussion of subclause 5(6). I was interested to hear what the previous member had to say on it.

[Translation]

As Mr. Loubier said, other witnesses have made this kind of proposal. It's interesting, but since it's related to the other proposal, I don't want to add another hour to our proceedings.

[English]

I have two questions. These are really for the officials.

Mr. Martin had a legal opinion, and I want to make sure I've captured the thought here. This has to do with what we're asking of those bands under current custom rules.

I look at the bill, and it says there have to be rules and there has to be a process for appealing the selection and a procedure for amending the codes. So my first question is, where does it say explicitly that this or any other part of the custom rules has to be written down? So I need to know about the writing down part, because that was very much part of Mr. Martin's presentation.

Secondly, when I look at part (a) of Mr. Loubier's amendment, it would seem that because it makes specific reference to a process for appealing a selection and for amending the code, this particular description could well do for those who already have custom rule elections, because it at least has those two elements that are stipulated in paragraph 5(2)(b). I just want to make sure there's nothing there that would offend a custom election, if I understand it--once you've dealt with the written question.

Thirdly, I'd make the observation that we've made over the months, that unless I'm missing something in the text of the bill, unlike what Mr. Martin has suggested, one could envisage down the road, if the bill went through in its current form, essentially two different regimes: regime (a), which would be the custom rules written down or not--you're going to tell me--with these two elements in it; and regime (b), everybody else, which would have to conform to what's currently in subclause 5(1), that little checklist down to paragraph 5(1)(j).

So we have two different systems, which try to deal with current reality, but still, one might well ask, if that checklist is good enough for custom bands, why wouldn't it be good enough for everybody else? It's the persistence of an inconsistency, I suppose. That's my third question.

À (1035)

Mr. Andrew Beynon: Perhaps I could speak to the first point.

Amendment BQ-11, unlike the previous one, actually does not propose any change to subclause 5(2). So if it were to be adopted, there would be changes to subclause 5(1) describing the contents of codes, but the bill would still go on to provide for subclause 5(2) and have particular rules in respect of custom.

You have noted quite correctly under paragraph 5(2)(b) that if a community wishes to keep its custom rules, it is specified that there has to be a process for appealing this selection and a procedure for amending the code.

You asked the question, does it specify that it has to be in writing?

Mr. John Godfrey: Everything. I mean that or any other part of it.

Mr. Andrew Beynon: Understood.

That's not in paragraph 5(2)(b), but I would refer you back to subclause 4(2) of the bill, which is dealing with ratification but starts out by saying, “A proposed code is adopted if it is in writing and is approved,” and so on. That generally applies for all codes.

Mr. John Godfrey: Sorry. Therefore a band that had custom rules, in order to continue under that regime, would have to have an election to reaffirm that? That's also written in there--right?--and is approved in a vote conducted by the council in accordance.

Mr. Andrew Beynon: Yes, subclause 4(2) specifies that you have to have this procedure for ratification of a proposed code, but I'd also refer you to subclause 5(3) of the existing bill, which refers to a requirement in respect of adoption of custom rules. So there's a timeframe for that. It says:

5.(3) 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.

Mr. John Godfrey: That goes back to subclause 4(2), which says the custom rules have to be in writing and have to be in a subsequent vote during the two-year period, etc.

So the way in which the custom one is reconfirmed is outlined in subclause 4(2). Is that correct?

Mr. Andrew Beynon: That's right. The net effect, as you read these provisions together, is that this bill provides an opportunity for the community as a whole to choose whether they are going to go with a code in accordance with subclause 5(1), whether in some cases they are going to reaffirm their custom rules within the time provided, or the third option, whether they will just choose to operate under the fall-back regulations.

Mr. John Godfrey: I'm just asking, what if the custom rules don't specify anything that would happen under subclause 4(2), that is to say, they do it by consensus, for example. They don't have a vote conducted by the council in accordance with the regulations. That could be part of custom, couldn't it? And then the very way in which you adopted the custom rules would be in violation of the custom rules. Possible?

Mr. Paul Salembier: Perhaps I could clarify. The rules in subclause 4(2) are for ratification of the code. They're not for the way they actually conduct the election or the selection of their leaders. The selection of their leaders would continue to be done according to custom. The procedure in subclause 4(2) simply provides a mechanism by which that custom can be crystallized and confirmed.

À (1040)

Mr. John Godfrey: In a non-customary way, possibly.

Mr. Paul Salembier: Possibly. They may not have a custom relating to ratification of laws, but we're talking about a custom related to selection of leadership, which is what the provisions of the Indian Act right now speak to. They speak to methods for selection of leadership, not for other things such as ratification of codes or ratification of land claims--all the sorts of things Mr. Johnson spoke about yesterday.

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): If I could, you were referencing that this provides two parallel systems of characterizing them, right? That's reflective of trying to carry forward and adapt what's currently in the Indian Act.

The current provision to move from Indian Act to custom requires some vote, election, referendum of the band to give their support to doing that, so in a sense the requirement in clause 4 to have a ratification that you wish to remain under custom is embodied in the current rules. As my colleague pointed out, it doesn't affect what your custom procedures are or--

Mr. John Godfrey: Well, if it allows you to get to custom.... I think we've had this discussion before. I just want to confirm.

Supposing everybody who currently is operating under non-custom says, I'd like to operate under custom because that's less onerous. That would only require them to make sure they had it in writing and appealing the selection.... Why wouldn't they opt, en masse, to say, well, we're not going to go for custom because it's less onerous? We don't have to do the checklist bit; we'll just do subclauses 4(2) and 5(2) and Bob's your uncle. See what I'm getting at? It's going the other way.

The Chair: You have time to see it, but you don't have time to respond.

Mr. John Godfrey: Well, if you get a chance I'd like to hear about it.

The Chair: Colleagues, the other night I offered that whenever I'm astute enough to see that there's one minute left on 10 minutes, I would turn on my light as a signal. It was turned down. As a matter of fact, I was ridiculed for offering it. For those members who turned it down, I will not do it. For others, when I turn it on, there's one minute left. It might help you close your issues.

Mr. Chatters.

Mr. David Chatters (Athabasca, Canadian Alliance): Thank you, Mr. Chairman.

I guess what I am asking concerns part (b) of the amendment advocating the establishment of a first nations elections officer--and I assume that's a national first nations elections officer. I don't know why we would want to establish that office when we have Elections Canada with all the expertise in the world on elections now that we could refer to for oversight or for review of the election process.

But my question I guess to the legal people would be whether this amendment is in order advocating the establishment of the first nations elections officer. Is that within the scope of the authority of this committee to amend the act establishing that office? I understand there's a problem with a similar amendment of ours later on, and I'd just like an opinion there.

The Chair: Mr. Johnson.

Mr. Warren Johnson: That may be at the call of the chair. To the extent that this is an institution with spending on other issues, this could require a royal recommendation, which I think is the issue you referred to earlier. While the committee might, as I understand it, comment on that issue, it may not be able to include an amendment to the act in its report and it might have to be dealt with it in that fashion in the House.

Mr. David Chatters: That's at the discretion of the chair of the committee.

Mr. Warren Johnson: I'm saying the call is. We don't have a formal opinion on that one.

Mr. David Chatters: I guess then I ask you, Mr. Chair.

The Chair: I was doing something else. Are you talking about the legitimacy of the amendment because of the cost?

À (1045)

Mr. David Chatters: Yes.

The Chair: My position, unless I'm overruled by the committee, will be to accept any motion, and the House can then do it. As far as I'm concerned, if we put in an amendment, send it to the House, creating the office of an ombudsman--

Mr. David Chatters: Or a national elections officer.

The Chair: --or a national...or anything that is a money issue...after first reading, I personally would like to see us deal with the issue, send it to the House, and in the House they can undo it. I don't think it's up to us to decide what the intent of the government is on supporting expenses. Because they may come along--and I don't know this--and say we'll give our support to the expenditure. I don't know.

But after first reading I think it's premature for us to cut it. It's putting too much pressure on the committee to do all the dirty work for the government and for the House. Is that acceptable? I think that's reasonable.

Mr. David Chatters: Yes.

The Chair: Mr. Vellacott.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Yes, in a similar vein, it would be a preferable point of view from my vantage point. I've actually talked with some first nations people back in Saskatchewan and some first nations people within the department on this one. Where you already have a body with all the expertise of Elections Canada, if you have consultation with AFN and various of the first nations bodies and you actually have a special division within Elections Canada--these are people who have supervised elections all across the country, on a federal level albeit--I think it would be something doable to have people there of first nations ancestry who know the traditions and the culture and so on.

I think it does create a bit of a difficult situation sometimes when you're calling in an RCMP officer to be the one, or you have somebody right from within that situation, a very small situation. Maybe they handle it well and handle it fairly, but we know too often there's a perception that maybe they had too close a relationship with somebody who was on the ballot for chief or council members. There's that perception of bias. Maybe it's not too true at all, but sometimes it's the issue of perception too.

I understand and appreciate the spirit of Mr. Loubier's amendment. I think there'd be another way to maybe get at something of that same thing by way of an existing body with the expertise in our country.

On that note, I'd also want to wish Mr. Loubier a happy birthday. Apparently it's his birthday today. I must remark that he reminds me of the Energizer bunny. He just keeps going and going, and certainly on his birthday he has lots of vim and vinegar, as they say.

The Chair: The only difference here is I can't change the channel when the bunny's on the screen.

Mr. Maurice Vellacott: So to Mr. Loubier, bonne fête from committee members here.

The Chair: Thank you.

Mr. Loubier, 10 minutes.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, a number of questions have been asked on the nature of the amendment and even on the wording of the amendment. I would like to take a few minutes allotted to me to answer Ms. Karetak-Lindell first.

You're right in saying that paragraph (j) is poorly drafted. The wording should have been exactly the same as in paragraph (i) of the bill, which reads:

(i) identifying what constitutes corrupt electoral practices;

That's exactly correct, and you are right. I should have seen it, but it escaped me.

Mr. Hubbard asked the question on the electoral process. Of course, there are currently elections in Quebec and there are rules that are followed. They are the rules that are enforced by the Chief Electoral Officer of Quebec, but you should know that it was the National Assembly of Quebec that passed the Election Act that applies to all Quebeckers.

Here we have a limitation of the federal government, and thus a limitation by Canadians of the manner in which the First Nations must operate. That's where the distinction lies, Mr. Hubbard, and you have given me the opportunity to respond to that question directly.

For example, I don't see how an Ontario citizen could impose election rules on Quebeckers. It would be unacceptable. I find it hard to see how someone from Prince Edward Island could prescribe to the National Assembly of Quebec how it could conceive or amend the Quebec Election Act. We are doing just that right now. We are dictating to the First Nations how they must proceed for the election of their members, terms and so on. That's what can be deplored in this bill, and that's what I'm trying to correct with the first part of my amendment. My purpose is to delete those prescriptions so that we can talk nation to nation. I want it not to be just a matter of words, but this to be translated into the very wording of the bill.

The last part of my proposal is this:

Mr. Vellacott, you referred to the Chief Electoral Officer of Canada, Mr. Kingsley. It is precisely Mr. Kingsley who came to make this suggestion to the committee. Mr. Vellacott is probably not listening to my answer, but he'll be able to read it in the “blues”.

À (1050)

[English]

Monsieur Kingsley proposed to make this proposition to the committee.

[Translation]

He proposed that a position of First Nations Elections Officer be instituted, independent of the Chief Electoral Officer of Canada. But that doesn't mean--I note what you suggested, and I think it's a path that can be taken--that we can't benefit from the experience of the Chief Electoral Officer and his staff. On the contrary, they should be called on quite intensively.

I know Mr. Kingsley's team and Mr. Kingsley himself quite well. He is an extremely competent man, motivated by an uncommon democratic sense. We must therefore take advantage of the full wealth of what the Chief Electoral Officer could teach us and the Aboriginal nations. But the Aboriginal nations must be able to make choices. They must be able to take that knowledge, take what is good and set aside what is not as good. They must also be able to make choices regarding their own way of designing elections, an electoral process and democracy. They must be able to use appropriately, in accordance with their wishes, all the modern instruments that currently exist for ensuring that there is a proper democratic process.

David General, who is a counsellor on the Six Nations Council, told me that Ontario already has an elections officer who oversees the entire election process for the Six Nations Council. That elections officer also monitors other elections that may be conducted in the First Nations communities across Ontario.

We are proposing here that this practice be generalized and that it become an institution independent of the Canadian institution. I think that would be a good idea and that it would be consistent with the spirit that must guide us, that is to consider that all the aspects of the democratic process among the Aboriginal nations must be in the hands of those First Nations. It is the First Nations that must decide on how they conduct their affairs. They must put in place their own First Nations Elections Officer, who can oversee those elections.

During the committee's sittings, we have discussed corrupt electoral practices. That suggests to us that this situation is widespread. When we look in our own court, we see that there have been dubious electoral practices in certain constituencies, in Quebec and in the rest of Canada. The Chief Electoral Officer of Canada and even the Chief Electoral Officer of Quebec have put their finger on practices that were not entirely proper, which were not corrupt practices with regard to voting, but... That will always exist. But since I've been aware of the world, I have seen that that has always been marginal. I believe the same is true of the Aboriginal nations.

We must therefore stop talking about the need to have limitations and to supervise the Aboriginal nations and say that there's more corruption among the Aboriginal nations than here. That's not true. It follows the normal law. Since there can be corruption among us, there's probably corruption among them as well. But it's up to them to see about it. It's not up to us to dictate what they must do.

I don't think the vast majority of members of the First Nations want to run roughshod over the electoral process. I believe they all want it to work well, in a transparent and honest manner. However, it must be they who choose the terms and conditions and procedures in order to establish codes, but also ways of conducting their affairs and their democratic process.

It was also pointed out to me that elected leaders and traditional leaders have equal importance in the Aboriginal nations.

À (1055)

In a number of Aboriginal communities, one can refer to the band chief or to the elders. That's part of the representation structure of the Aboriginal nations, and it must be respected.

Things may differ from one First Nation to another. Why do we always try to establish a normative framework and to generize our ways of doing things? Why prescribe, across Canada, five-year terms, the way for electing members and so on, whereas this often is really not consistent with the realities of the Aboriginal peoples?

In a number of communities of the First Nations, the elected leader and the traditional leader take part in the proper conduct of the community's affairs, a fact that must be taken into consideration. In this bill, we have a framework that is too limiting to provide for the types of differences there may be from one community to the next.

Throughout the bill, it has been forgotten that the main recommendation of the report of the Royal Commission on Aboriginal Peoples concerned the recognition of this difference. The Commission said that what we descendants of Europeans had done, and what the Aboriginal nations do and are were entirely different. Until we recognize that, the Royal Commission on Aboriginal Peoples concluded in its report, we will be unable to recast the basis of a partnership with the Aboriginal nations in a context of mutual respect. Considering...

[English]

The Chair: Thank you, Mr. Loubier. That completes your time.

We now go to the question on amendment BQ-11.

Mr. Pat Martin: Could we have a recorded vote, please?

(Amendment negatived: nays 8; yeas 3 [See Minutes of Proceedings])

The Chair: Thank you.

We're on to amendment BQ-12. Mr. Loubier.

[Translation]

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

Once again, this is an amendment I am proposing to clause 5. I believe that clause 5 is just as important as clause 3, which we previously discussed. Mr. Hubbard noted that we had seven amendments to one clause. That's simply because the clause was poorly drafted. This is a sign that we're doing our work and that we see this doesn't work.

The proposal you have before you has the same objectives as those we previously saw, but focuses on an aspect of clause 5, that is lines 20 and 21 of page 4. We should, and this is what I'm suggesting, stop the wording of paragraph (b) after the words “the council”. In other words, paragraph (b) would read:

(b) establishing the mode of selection of the members of the council;

The part of the wording I propose to delete is a limitation. We can't place limitations on the First Nations, saying “as long as the majority of them at least are elected”. That is not in the interests of the Aboriginal communities of Canada or of the First Nations. It is not at all consistent with their method of governing by custom, by what they represent and based on their culture. By deleting this part, we would be much more respectful of the new relations that we want to put in place between the Aboriginal nations and our nations. I think it would be entirely laudable if the committee members managed to understand that we cannot, on the one hand, talk about the inherent right of self-government and respect for the First Nations and, on the other hand, prescribe things for them. By what right would we tell them that they must ensure that a majority of council members are elected? Why should we think that the structures of governance linked to the customs of the First Nations may not differ from what we consider to be the most effective and praiseworthy expression of democracy?

This comes back to what we wanted to do earlier. We wanted to remove all the references to limitations, but I thought this one was particularly important. The preamble states that we want to recognize the inherent right of self-government. We clearly see that there is a difference between the preamble and the content of the bill. The preamble also states that the federal government will ensure that the First Nations take responsibility for themselves and their own development. When we compare these good intentions of the preamble with paragraph 5(1)(b), we see that there is an incredible divergence between the two. One even wonders whether the person who drafted the preamble didn't work independently of the person who prepared the clauses themselves. The spirit of the preamble and that of the body of the bill do not appear to be the same. The purpose of my amendment is to ensure that there is consistency between what we say and what we do.

When the minister appeared before us, he said that he wanted to start out on a new footing with the Aboriginal nations and to ensure that the bill was the extension of the main recommendations of the Erasmus-Dussault Report. We don't see that occurring in the wording of the provisions of the bill, particularly paragraph 5(1)(b). We do not see this as a translation of what the minister told us he wanted to do with the bill.

Á (1100)

Perhaps something was lost along the way. Perhaps some of the amendments I'm introducing and that I'm going to introduce during the day will be agreed to by the Liberal majority. I didn't have the time to look at the wording of each of the government's proposed amendments because we are incredibly rushed here, but if it happened that you government members proposed similar amendments to stop introducing limitations such as those placed on the voting procedure and the required majority for band council members, I believe I would support them from the outset.

I hope you have some, but, if you haven't thought of that, it's not too late to do so. I did a little work for you. I propose that we delete the first limitation on the majority to be obtained for council members, and I am convinced that, in your great wisdom, you will agree to this amendment and the others that follow, which are all in the same spirit, that to consider the Aboriginal nations as nations with an inherent right of self-government, the right to choose for themselves what they want to become and what they want to do, and also the right to choose modes of leadership selection.

We are not the only ones to make these proposals. We had occasion during our proceedings to gather the analyses of various stakeholders who spoke to us precisely of the fact that the limitations were not welcomed in this type of bill. Some even cast doubt on the legality of introducing these limitations for Aboriginal peoples. We're talking, among others, about the National Aboriginal Law Section of the Canadian Bar Association, which expressed reservations about many clauses, including clause 5, during those proceedings.

Similarly to what my colleague Mr. Martin requested a little earlier, I wonder why it is impossible for us to have access to legal opinions on the risks and effects of the various clauses, including paragraph 5(1)(b). Why is it impossible for us to have access to those analyses, since, by considering those analyses and the inherent risk of such proposals, we would be in a much better position to conduct an exhaustive and effective assessment of the bill and perhaps to make amendments to it?

I still wonder why most committee members here refuse to learn more. That's quite strange. I'm extremely curious, and we should all be curious as legislators. I would like, for example, for someone to tell me whether it is right to have a limitation such as that in paragraph 5(1)(b) on the manner of proceeding with the selection of band council members. If this requirement becomes a sticking point at some time in the community and is challenged because it is inconsistent with the custom of the First Nations, if there is a legal challenge, what risks will the government or the First Nation run under such wording or such a limitation?

It seems to me that trying to ascertain the actual situation in this regard is the least we can do. I repeat the request made earlier, that those legal opinions be submitted to the committee so that we can ascertain the scope of each of the clauses and also their concordance with section 35 of the Constitution Act, 1982. That's quite important.

Á (1105)

It seems to me that would be a minimum.

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard.

Mr. Charles Hubbard: I'll comment very briefly. It seems the intent of the amendment is to indicate that members of the council don't necessarily have to be elected, and I'm not sure on what grounds. I know the honourable member spends a lot of time talking. I'm not so sure it's that convincing, but maybe our experts here could give the significance of that.

In our own government we have some who are elected, such as us around the table, and we have those in the Senate, the upper house, who have long-term appointments. If you're 45 years of age, you will probably be there for 30 years.

Mr. Chair, there seems to be some suggestion on the other side of the table that they did not have time to prepare these amendments. I'd just like to remind them that this bill was introduced in the House last June, and it was before us as members for a matter of 10 months. That seems like quite a significant time for most people, and on this side we're quite comfortable with 10 months for looking at the legislation and thinking about amendments. I don't think people would start thinking about amendments last Thursday afternoon to get them ready for Friday. I would assume that most amendments are, hopefully, quite carefully written in concert with their people.

Could our experts just give us a little background in terms of why they feel paragraph 5(1)(b) would have a majority on council who would be elected by either custom or secret ballot?

Á (1110)

Mr. Warren Johnson: This section replaces the current Indian Act election rules. The current Indian Act election rules call for all members of council to be elected. To provide for the purposes, as the committee talked about last night, of providing more room for custom and tradition of the first nations, this qualifies that to maintain that at least a majority of them would be elected, so you could have unelected participants on the council.

For clarity, since these are just the components of a code a community can deal with, the community can do anything else it wants here, for example--and a number of communities are doing this and are considering that in the context of these kinds of provisions--establishing a senate--to use that terminology--of elders. They would have complete flexibility to do that.

That flexibility in terms of mixing elected and non-elected people in the council and having other bodies that may not be elected is totally at the discretion of the first nation. The minimum requirement here is, for those who are now under electoral procedures of the Indian Act, that there be a minimum number of members of the council elected.

There's a link here that the committee would want to be aware of, for example, with clause 5 at the end. We are dealing here with that part of the changes to the Indian Act that responds to the Corbiere ruling. The Corbiere ruling only struck down one section of the Indian Act, that which defined voters as only including on-reserve members. The principle of the ruling goes well beyond that, because right now under the Indian Act, for example, a member of a band who does not live on-reserve cannot nominate according to the Indian Act.

We know there are a variety of provisions in the Indian Act--and this responds to the question about court cases that are currently before the court--that will challenge and strike other provisions of the Indian Act if changes aren't made. Those changes, to the best of our knowledge, are made in this clause. The issue of having an election and its impact on the rights issue was effectively already referenced in the Supreme Court decision because the Supreme Court called for legislative change in these areas to deal with this kind of issue. Presumably, it wouldn't have done that if there were a rights issue involved.

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

The Chair: Mr. Godfrey.

Mr. John Godfrey: I want to use the amendment as a way of returning to a question I asked, because I think it's important before we vote on the overall clause that I understand it.

I was trying to understand the distinction between the two regimes, between custom rules and the rest. I've been revisiting the JMAC report and the testimony of Mr. Aldridge before this committee on January 30 in which he made the categorical statement on the importance of treating all bands equally in respect of leadership selection.

I would like simply to get your response to the line of argument. I'll just read out this section:

The power of bands to establish their own leadership selection rules through custom is not a power granted by the Indian Act, rather [as the Federal Court of Canada has put it] “it is an inherent power of the Band; it is a power the Band has always had, which the Indian Act only interferes with in limited circumstances, as provided for under section 74 of the Act.”

JMAC said at page 18 of that chapter of our report that:

The ability of bands to establish their own leadership selection regimes is likely an aboriginal right, a treaty right, or both. Imposing a regime on a band that prefers to select its leaders using some other regime would therefore be an infringement of those rights.

Further, it said:

We do not understand why bands that are currently under section 74 should be required to have rules about all these matters, while bands that are not under section 74, but have adopted electoral processes should not be required to have them. Either all bands that design their own election codes should be required to address all these matters or none of them should.

He goes on in his testimony to suggest that if we insist on maintaining this distinction, we might well violate the equality provisions of the Charter of Rights and Freedoms. He then reiterates the argument that this may well be an infringement of the inherent rights already recognized by the courts to select leaders according to custom and to have the customs evolve in accordance with the broad consensus of the community.

I guess my point in asking the question is simply to know from you whether, if we pass the clause unamended--without this amendment or any other amendment--we will not be subject to the kind of legal challenge that is suggested rather strongly by Mr. Aldridge and the JMAC.

Á (1115)

The Chair: Mr. Johnson.

Mr. Warren Johnson: Well, clearly we can't guarantee that one or another piece of wording won't be subject to legal challenge. This is probably the area, as Mr. Aldridge correctly pointed out, that is most sensitive, because of the fact that 50% to 60% of first nations are under custom now.

So given the intention not to interfere with rights, the reason subclause 5(2) is there and is kept separate in dealing with custom is to keep any potential interference or infringement to a minimum. Since we don't have defined rights--the Constitution protects the right but doesn't define them--we're all asking ourselves questions here.

So the judgment was made that a minimum condition could be put forward in Bill C-7, consistent with the experience that the disputes in custom election situations have often occurred around or been exacerbated by the fact that the custom procedure itself was not written down and there were disputes over what the custom procedure was, as well as with the interventions we had during the consultations from individuals in that regard.

So we have what was put forward as a minimum set of...that they should be written down. The community can agree on them and decide they want to stay there and include their own appeal and procedures for amending it. After that point, these provisions wouldn't apply to it.

I don't know whether that answers your question.

Mr. John Godfrey: I guess the follow-up question would be this. Supposing all bands met the minimum standard you lay out for custom, that is to say having appeal of selection, amendment, written down...that's the minimal standard, right? Why wouldn't everybody who was going to be subject to the longer list simply invoke the equality provisions under the charter? Why would they be wrong to do so, for treating equals unequally?

Mr. Warren Johnson: My colleagues may have an opinion on this, but distinction already exists; it isn't created by this act. The distinction already exists between custom first nations and those first nations who have chosen not to be under custom, but are under the Indian Act election provisions. For those first nations under the Indian Act election provisions, we have directions from the Supreme Court in the Corbiere decision, which has fairly extensive implications for the election provisions in the Indian Act. Those are all dealt with here. If there is an argument in terms of equality provisions, it exists already with respect to the current Indian Act, because there are distinctions. So this doesn't create a distinction but just deals with the existing situation.

On the one hand, it tries to deal in an enabling and much less prescriptive fashion than the current Indian Act does for those who are under Indian Act elections, and, on the other hand, it tries to deal with the substantive questions raised by the Supreme Court decision on Corbiere for those first nations under section 74.

There are a variety of opinions on this, in terms of the impact of the Corbiere decision on custom. But we don't have clear direction from the courts on this issue. And because of its sensitivity, which I think is going to be pointed to in this discussion...Mr. Aldridge correctly points out that this is one area that might be more sensitive in terms of infringement because of the fact that there are a number of first nations who are already practising custom. In drafting this, the government did not think it would be wise to go into much detail on custom. Issues are going to be worked out, whether it's in self-government or the court. But as a minimum operational procedure, this minimum condition was put in to deal with the complexities or difficulties facing some first nations out there who are now dealing under custom. Because the codes aren't written down, they are giving rise to a variety of disputes and cases in the courts, where the courts have very little to deal with because there is no documentation for the code they're being asked to rule on.

So this minimum condition was included in the hope that it would not create the infringement that's of concern to the committee and to the people who are drafting this. But it will at least deal with the short-term operational issue.

Á (1120)

Mr. John Godfrey: In trying to reconcile the equality concern with the Corbiere concern, would the minimum standards that you lay out for custom elections satisfy the Corbiere decision as we understand it? Would they continue to be challenged because they don't answer the issues raised by Corbiere?

We're trying to meet a number of challenges here, right? We're trying to craft something that goes between. So if the minimal requirements for custom elections satisfy Corbiere, would they also by definition satisfy any other challenges on the other side of the fence, if you apply the same minimum distinctions? Therefore, you would have equality while also satisfying Corbiere.

Mr. Warren Johnson: I think the answer to both questions is no. It's not that the minimum conditions in subclause 5(2) satisfy Corbiere, but that the elements of subclause 5(1), in combination with 5(5), satisfy Corbiere.

Mr. John Godfrey: Meaning all the elements of subclause 5(1)? In other words, you can't take away one of them and satisfy Corbiere.

Mr. Warren Johnson: It depends on what you do. If you're affecting the rights of on- and off-reserve band members, which is what Corbiere dealt with, then you may create a problem in the context of the Supreme Court ruling on Corbiere. So we have been conscious in crafting this of those areas where an Indian Act election—which is what subclause 5(1) deals with—is not Corbiere-compliant.

My point was that the Supreme Court did not rule on the same issue with respect to custom. As we were talking about, custom will involve a trade-off, so we don't know—

The Chair: Thank you, Mr. Godfrey.

Mr. Martin.

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

I'm very interested in the back and forth Mr. Godfrey was having. I'm going to be giving some time to the technical people to continue on this line of thinking too.

I'm interested in hearing the quote of Mr. Aldridge of the JMAC committee. He implied that this clause could possibly be an infringement of aboriginal rights, treaty rights, or both. Add to this the comments from Larry Chartrand, the professor of law from the University of Ottawa, who said the enactment of clause 5 was likely a violation of section 15 of the Charter of Rights, a charter challenge.

I notice that Mr. Godfrey is chairing an upcoming conference on self-governance. He is the moderator of a panel that in fact will have Mr. Larry Chartrand as one of the panellists. I wish I could afford to attend that conference. It's $800, so I don't think I'll be there, but maybe we can borrow your notes when we're done.

This is to the heart of the very issue we've been trying to raise, not as well as it's been raised by others. But in our crude way we've been saying this over and over again. Now, if there's a risk of infringement, or even the perception of infringement.... This point was made, as I say, by the Congress of Aboriginal People, the Assembly of First Nations, the professor of law at the University of Ottawa, the Kainaiwa Blood Indian women, the voice of the Indians of the Blood Tribe, as well as, now you say, Mr. Aldridge at the JMAC and others. We have a substantial number of knowledgeable people saying infringement, if the clause carries as it is, is likely.

So I have to fall back to the point I've been trying to make. If there is to be infringement, sometimes governments will deem it justifiable to infringe on rights, but if that's the case, if a conscious decision has been made to do so--and I heard Mr. Johnson say that the judgment was made to keep the infringement to a minimum, so I assume some legal...I'll let you clarify that. I thought I understood. I'll stay away from that comment until you're allowed to clarify it then. We want to keep interference and infringement to a minimum. We, as a committee, certainly do want to keep interference and infringement to a minimum.

Then, in R. v. Sparrow, according to the tests laid out to determine if there is an unjustifiable infringement of aboriginal or treaty rights, three things fall into play. The court says first you have to provide some proof that the right exists--and I don't think that's in question here; then you have to determine whether there has been an infringement; and then you have to determine whether that infringement is justifiable or, in the case of the government, if it's desirable, I suppose.

So without belabouring the point, I don't think there's any doubt around this table of the historical fact that indigenous people were here first, exercising the rights of self-government and nationhood, and those rights have been identified in section 35 of our Constitution.

But equally as important to trigger constitutional obligations around meaningful consultation and accommodation, first nations are not required to prove the existence of section 35 rights in court. Instead, the courts only require a claimant to demonstrate a prima facie case of the existence of section 35 rights. So as a starting point, you can see how this challenge on clause 5 will be developed.

If passed in its present form, clause 5 will be an imposition over a right that's existed and has been exercised. This is what we're afraid of.

I quote the Minister of Indian Affairs from an interview with Le Devoir that appeared on January 5, 2001. He stated that the Indian Act does not stand up to the tests of the Charter of Rights and Freedoms, at least.

Á (1125)

Even though the Indian Act in itself is an infringement on many aspects of the inherent right to self-government, that alone is not sufficient justification to infringe further with subsequent legislation like Bill C-7, especially when there's strong opposition to it, and especially through a process that doesn't meet the legal requirements, because if there is to be infringement, that's when there has to be consultation, meaningful consultation, that includes accommodation of the points of view that were raised, and that hasn't happened here. That includes accommodation, and it includes negotiation to minimize or reduce as far as possible the effect and impact of that infringement.

Where can anybody around this table say there was meaningful accommodation of the issues that were raised with the development of clause 5, and where can anybody around this table say there's meaningful negotiation going on in trying to minimize or mitigate the impact of clause 5?

We're not even giving serious consideration to the amendments brought forward by the member from the Bloc and myself to try to address this concern. So I'm really more concerned than ever--and I say this in all seriousness--that clause 5, as it stands, is an infringement.

I thought we were clear, at least the people around this table, that this was not our wish, because we succeeded last night in putting a non-derogation clause into the bill and there was a fair amount of goodwill expressed in the adoption of that clause, but that clause makes a statement that nobody here, at least the crafters of this bill, has any intention or any desire, or is even willing to participate in the infringement of inherent or existing aboriginal rights.

So I'm really abundantly concerned about this, and if anything, the place we are right now is what justifies the release of any documentation--internal cabinet documents, I don't care what they are--that talks about what the government's intentions are.

Did they seriously recognize that what they're doing is an infringement? Did they contemplate how they would keep it to a minimum or satisfy the tests of Sparrow? The lawyer who presented to our committee--I wish I remembered his name--on behalf of the Indigenous Bar Association argued that it's possible this is the reason the federal government initiated its fairly costly but ineffective consultation process around this bill, thinking they could satisfy the requirements under Sparrow.

So we have Mr. Aldridge, I guess, of the JMAC committee cautioning about a possible infringement of section 5 of the aboriginal rights and treaty rights, and we have others, Mr. Larry Chartrand, cautioning that it's likely a violation of section 15 of the charter. The Congress of Aboriginal Peoples agree, and so on, all the people we cited and others, because we don't have time to plow through all of the documents we heard.

So here we are, faced with the first real meat and potatoes after finishing with the clause about the purposes of the act, and this particular clause offends, or we think it offends.

If I have a moment left, I would ask Mr. Johnson.... I made note as he spoke, and he said--and you can correct me if I'm wrong--that a judgment was made to keep the infringement to a minimum. What did you mean by that?

Á (1130)

Mr. Warren Johnson: I did not think I had said that. If I said that, I would apologize because I misled you.

What I think I was commenting on there was that since, as most if not all observers point out with respect to custom, this is the area of most sensitivity with respect to a potential infringement, any changes to the current custom situation should be kept to a minimum--not that there was an infringement and it should be kept to the minimum.

But that's the clause we're talking about. So when you said this clause--

Mr. Pat Martin: We're talking about clause 5. I was trying to continue with the questioning that Mr. Godfrey had and--

The Chair: Thank you, Mr. Martin. You're out of time.

Monsieur Loubier.

Á (1135)

[Translation]

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

I've heard all my colleagues' comments on the amendment I'm introducing. I've taken note of them and, over the next few minutes, I would like to respond to those comments and perhaps to put a question to Mr. Johnson. Earlier, in answering Mr. Godfrey, he failed to give part of the answer. I find that very interesting.

Mr. Hubbard said that we had had the bill before us since last June, for 10 months. We should have had enough time to consider it and prepare an analysis. I remind him that we completed consultations on Bill C-7 10 days ago and that, when we analyze a bill we normally analyze it ourselves, which is very good. We can show some intelligence and read and understand like anyone else. However, if we conduct a consultation, it's so that it will serve some purpose. A remark such as that leads me to say that consultation is not important for some members of the committee. We could have formed an idea. Some of us already formed an idea 10 months ago and have not changed their minds despite the consultations. It seems to me that a public consultation such as the one we conducted of the various groups is more important than that. Judging by the volume of briefs submitted to us on clause 5 and on the other clauses of Bill C-7 and from the interest shown by all those who took part in our work and who submitted briefs to us, they were absolutely insistent in giving their views and on having their views taken into consideration.

If anyone feels that the consultations were bogus and that the government had already made up its mind, that's another matter. I believe that the consultations and briefs showed us that this entirely imperfect bill required a great deal of improvement.

Coming back to the remarks we heard a moment ago, seven amendments to one clause is significant. It's not that the amendments were not worth the trouble of analyzing or adopting, but there were seven amendments because that clause was poorly drafted. That means that the government did its job poorly.

The same is true in the case before us. I find it hard to be satisfied with Mr. Johnson's answers, despite all my interest in his analysis and all the respect I have for him. However, contrary to what the Chairman said, I never insulted the officials before us. On the contrary, I find it interesting but incomplete when you say, for example, Mr. Johnson, that we hope the wording concerning, in particular, the limitation that a majority of council members be elected will not encroach on any right. Pat Martin mentioned Larry Chartrand earlier. When Prof. Chartrand appeared before us, he said:

The imposition of a system of government based on the band council to replace traditional forms of government with an electoral system modelled on municipal institutions goes against the Crown's fiduciary obligation to protect the interests of the Aboriginal peoples.

So a certain number of provisions violates section 35 of the Constitution. Thus, the provision concerning leadership selection, in subclauses 5(1) and 5(2), probably violate the right of Aboriginal peoples to control this aspect.

Further on in the brief that he presented to us at meeting 21, Mr. Chartrand said that there was another possible offence in the wording concerning leadership selection and custom. With respect to section 125 of the Canadian Charter of Rights and Freedoms, he told us:

Restricting the powers conferred by section 74 on the Indian bands to adopt customary methods of selecting their leaders probably violates section 15 of the Charter.

So those provisions should be amended. He referred to subclause 5(1). When an eminent constitutional expert such as Larry Chartrand of the University of Ottawa gives us this kind of warning, we must not spare the resources in order to correct the aspects of the bill, such as paragraph 5(1)(b), which could violate section 35 of the Constitution or section 15 of the Charter.

You have to go into a kind of shell in order to prevent the implementation of Bill C-7, since it could become law, from being the subject of legal disputes which could last for a long time, even years and years. We know that every time there are challenges, particularly regarding constitutional rights, speed is not of the essence. These are extremely serious questions. The judges of the Supreme Court must take a very serious look at these likely violations of section 35 of the Constitution Act, 1982. And where section 15 of the Canadian Charter of Rights and Freedoms is concerned, that requires meticulous work calling for a rigour equal to the effects that clause could have on the constitutional rights of the Aboriginal nations. It could take years for the Supreme Court to be able to rule on this.

While people are working to make out the legal case that will surely not fail to be made in the Supreme Court one day or another, all this energy and all these human resources, particularly on the side of the Aboriginal nations, whose resources are very limited because they do not have the means at the government's disposal, will not be made available for the advancement of the Aboriginal nations of Canada.

I believe care should be taken when anyone says that this will not encroach on rights. I would have liked to hear Mr. Johnson tell us that we had all the assurances and legal opinions we needed, that there was a second opinion contrary to Mr. Chartrand's and that other constitutional experts were of the contrary view and thought there was no violation of section 35 of the Constitution or section 15 of the Canadian Charter of Rights and Freedoms. But when the assistant deputy minister tells me that they hope there will be no challenges, whereas Professor Chartrand says, on the contrary, that there could be challenges, I have fears.

Á (1140)

This is like the discussion we had yesterday on the legal vacuum as a result of the non-derogation clause. Fortunately, as a result of the amendment introduced by Mr. Martin of the NDP, we have an express reference to section 35 of the Constitution Act, 1982. Otherwise, we would have had a permanent vacuum, a void, until an outside committee independent of our work had decided on wording for a non-derogation clause. We would have agreed to a bill of this kind without a non-derogation clause being introduced.

I would like to ask Mr. Johnson a question. Are we certain that paragraph 5(1)(b) does not violate section 35 of the Constitution Act, 1982, and could we produce the analysis of other constitutional experts on this point?

[English]

Mr. Warren Johnson: I think the committee can take comfort in subclause 5(1), because the Supreme Court has already ruled there. The question is a matter of risk analysis as opposed to black and white. No matter how many opinions were tabled for the committee, I think there would not be a consensus. There is clearly in custom a more sensitive area.

Having said that, this is the area where the court cases the member was referencing are going forward. There are a variety of cases going forward before the courts challenging custom codes on the same basis as Corbiere, and we will be informed by those decisions. So we have less legal jurisprudence, less legal certainty, in subclause 5(2) than we do in subclause 5(1), and that is one if not the key rationale taken, to do an absolute minimalist approach in subclause 5(2) in drafting Bill C-7.

[Translation]

Mr. Yvan Loubier: Mr. Johnson, you say that, according to the risk analysis, there would be more risk in subclause 5(1) than in subclause 5(2)?

[English]

The Chair: Merci. Thank you, Mr. Loubier.

Now for the vote. Are you ready for the question on amendment BQ-12?

[Translation]

Mr. Yvan Loubier: I request a recorded vote, please.

[English]

The Chair: It will be a recorded vote.

(Amendment negatived: nays 9; yeas 2)

Á (1145)

The Chair: We'll now go to amendment G-1. I understand this is one that we've dealt with already. Is that correct? It's one of the technical ones, with no changes, unless there's new....

So we're ready for the question.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, are you saying we've already done G-1?

Le président: You weren't here yet.

Mr. Yvan Loubier: Will you stop provoking me in this manner, Mr. Chairman? You're a real provoker!

[English]

The Chair: The question was, have we dealt with it? I said, yes, you weren't here, yet again.

Are we ready for the vote?

(Amendment agreed to [See Minutes of Proceedings])

The Chair: We are now at amendment BQ-13.

Mr. Loubier, ten minutes.

[Translation]

Mr. Yvan Loubier: I would remind the Chairman that speaking of the absence of certain members around the table is not permitted under the Standing Orders. Once again, he's violating the Standing Orders of the House, but I believe he's used to doing that, and he's ill-mannered to boot.

[English]

The Chair: You asked a question; you got an answer.

[Translation]

Mr. Yvan Loubier: I asked a question and I got a silly and stupid answer. You'll note that it's the answer that was stupid. I didn't insult you. It's not my style to insult you.

The Chair: We can take insults. They're common.

Mr. Yvan Loubier: It's not my style to insult people, not at all.

The Chair: I don't agree.

Mr. Yvan Loubier: You don't agree because you insult everyone.

My amendment, BQ 13, is precisely designed to achieve the objective of equal treatment among nations. We've been talking about this from the start of our analysis of this bill. We must consider the Aboriginal nations as nations with an inherent right of self-government. They have the right to choose what they want, and we aren't here to set limits or objectives or terms and conditions when it comes to electing their leaders or the length of terms.

That comes back to what we noted earlier on the previous amendment, to paragraph 5(1)(b). We must stop to establish the obligations relating to Bill C-7, but we must not prescribe the manner in which the members of the First Nations should achieve those objectives. A moment ago, I named Professor Larry Chartrand, who was very convincing, and perhaps that shook Mr. Johnson. He said that there was a very great risk and that the risk was not in subclause 5(2) rather than subclause 5(1), but that it was generalized, from clause 5 to clause 7. That's moreover what he claims in his brief. He claims that there is a risk of legal challenges and that, contrary to what one might have expected of a bill of this kind, that is to say complete compliance with the Constitution Act, 1982 and the recognized rights of the Aboriginal nations, particularly under section 35, there was a risk with this bill of facing endless legal challenges because limitations were set. Paragraph 5(1)(c), for example, which is the subject of my amendment, places a limitation on the length of the terms of council members.

The amendment would strike out this time limitation, where it states that the term must not exceed five years, because we simply don't have a right to do that. In the opinion of recognized constitutional experts, we don't have the right to prescribe what the Aboriginal nations must do with regard, for example, to the length of the terms of their elected representatives. Furthermore, in our discussions in Red Deer, which I attended, the Kainaikiiks Women's Secretariat, the organization representing the women of the Blood tribe, came to exactly the same conclusion as we did. The Aboriginal nations must not have things imposed on them, and it was necessary for the members to have the opportunity to choose a chief selection process that is traditional, arising out of new customs or the Indian Act.

So we must not supervise them, but rather give them the opportunity to make the necessary choices.

One community could choose to have a term of less than or more than five years for its elected representatives; this is none of our business. That's the real issue. It's none of our business. We should stick to our own business, or perhaps learn to stick to our own business. Perhaps we've forgotten over 130 years, because we were used to having relations with the Aboriginal nations in which they were subordinate. But now, with everything we have known, with all the developments in the law and also with the documentation we have today on treaty rights and the inherent right of self-government, as well as with the many court judgments which have informed us and which have helped us to change our attitudes, at least some of us, we should keep in mind that the limitations we place on the First Nations are utterly obsolete. We might have seen that 50, 60 or 130 years ago perhaps.

Á (1150)

But I can't believe that, with all the judgments and analyses we have, and especially after six years of work on the Royal Commission on Aboriginal Peoples, we are still making limitations of this kind.

So, as for BQ 12, I hope that my colleagues realize that a limitation on the length of the terms of elected council members is not a good limitation. Furthermore, there is no good limitation in the case of the Aboriginal nations because we must not prescribe action for them. We must advise, support and assist the Aboriginal nations, but we must not impose on them systems they do not want, supervisory frameworks such as those concerning the length of terms or voting procedures.

Mr. Chairman, I would like at least some of the Liberals to be able to vote with Mr. Martin and me in favour of this amendment. Otherwise we're going to think that division of those who do not accept the fact that we must not set limitations derives from the attitude of 50 years ago, not that of 2003.

So I invite my colleagues to vote in favour of this amendment. I hope that, for the other amendments of this kind, because there are a lot of similar irritants in the bill, we will come back to better provisions and to the true spirit that must characterize a new departure in relations between the Aboriginal nations and us.

I invite my colleagues to vote in favour of this amendment.

[English]

The Chair: Mr. Martin.

Mr. Pat Martin: Mr. Chair, I appreciate Mr. Loubier bringing this particular change to clause 5 forward because, again, this is one example of the concern raised about clause 5 being a possible infringement. I think we almost got Mr. Johnson to admit that this has been considered and contemplated by government.

In fact, we have good reason to believe here, very good reason, that it may be possible that this legislation will be found to infringe on aboriginal rights of self-government for some groups, especially with respect to the right to determine the method of selecting its leaders. This is if groups can prove that this right exists for them and that the Crown is considered by the courts not to be justified in its infringement of such right.

Now, let me just start from the beginning on this, Mr. Chair, because it speaks directly to clause 5. The nature, scope, and content of aboriginal treaty rights is fact- and site-specific. There is no uniform right, according to the government's opinion--or my interpretation of the government's opinion--applying to all aboriginal groups across the country; that is what I understood them to say in previous comments.

In addition, they've directed us that the courts have established that section 35 rights are not absolute--that's what we've heard governments say--and the Crown can justify regulating, infringing on, and even extinguishing such rights. Then we hear that the justification stage, if you intend to go forward, requires the Crown to demonstrate two things. It must show, first, that it was acting pursuant to a compelling and substantial valid legislative objective, and that second, the manner in which the legislative objective is attained upholds the honour of the Crown or is consistent with the special fiduciary relationship between the Crown and aboriginal people, depending on the nature of the right in question. The Crown has to demonstrate, first, that there has been as little infringement as possible; that second, the consultation with first nations was undertaken or consent was reached; and that third, compensation was offered to a first nation.

This particular information I have of the government's advice to cabinet or part of recommendations they may have had in the original planning stages of this bill is worrisome. They've even contemplated that they felt the Crown is well placed to argue in court if need be that they met “consolation requirements”--I think they mean “consultation requirements”, but “consolation” might be a Freudian slip--regarding their obligations if they intend on...or if they are fully aware they're infringing on these rights.

Mr. Loubier has given us the opportunity to have a serious look again at clause 5 in its prescriptive language in lines 22 and 23 on page 4, which is “specifying the term of office”, etc., and the length of time someone shall hold a term of office is one of those intrusions. Even though it may seem like a minor point to us whether a person is elected for two years, five years, or ten years, it's one of those examples of infringement upon what we've all agreed are existing....

Maybe this committee is more generous than even the justice people in their interpretation of things, given what I've gleaned from listening to them. There's a feeling that fiduciary relationships and fiduciary obligations are even two different things. They feel it's used too freely, exchanging those two words. I don't think those of us on the committee have really considered those nuances. But when we deal with fiduciary--there are people in the justice department who would argue, I suppose--it doesn't mean that all dealings between the Crown and first nations will be imbued with fiduciary obligations. It's almost seeking exceptions and contemplating exceptions.

Again, I think they're reminding themselves, from what we've heard from them, that the federal government must justify proposed infringement on such rights. Removing the ministerial disallowance power over band bylaws does not affect the fiduciary obligations of the Crown.

Á (1155)

They're worrisome things we've heard from the very technical advisers who won't give us this information to make it public. But we can read between the lines even when we're questioning. Especially worrisome are the views that if such challenges are filed, the Crown will want to argue in court that the infringement is justified in order to save the constitutionality of the legislation and continue to make it applicable universally. They're specifically talking about clause 5.

It seems the government is going ahead with clause 5 fully aware that it infringes. It is trying to cover off the obligations I've cited, that when you are infringing, there should be as little infringement as possible--fair enough--and that consultation with the first nations is undertaken or consent has been reached.

This is where we have Professor Chartrand saying it's possible that this is the reason the federal government initiated its fairly costly but ineffective consultation process around this bill. And I'll say it again, the consultation undertaken in either the first round or this round of the touring committee did not accommodate the points brought forward, and therefore it didn't constitute true consultation. It only listened to the complaints brought forward.

Third, that compensation was offered to the first nations. Well, that's what I meant by saying negotiations are required if you intend to infringe. If there is justifiable reason for infringement, where is the monetary compensation or at least the compensatory compensation stemming from this change in the recognized rights?

I think it's more appropriate than ever that we deal with clause 5 at length and with sufficient time to address these very worrisome points of view. It's no comfort to me that we achieved a non-derogation clause because I think the minister intended there to be a non-derogation clause all along.

I'm a carpenter by trade. I know the trick of leaving one flaw in a house you build so the building inspector can find it and ignore the other ten omissions. I think we've just been tossed our little bone, because I think there was full intention to give further assurance to first nations that the proposed legislation would contain a declaratory non-derogation provision such as previously used in federal statutes, stating:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

Word for word, what I proposed was contemplated back in advance when they sought approval from cabinet to go ahead with this bill. So certainly it's no comfort that we managed to achieve what the minister promised to cabinet all along in the verbatim quote. So I'm not comfortable. I'm less comfortable than ever that the technical people, the minister, or even this committee refused to share these important documents with us and that we have to try to glean what these documents say by getting bits and pieces of information.

There's such a dramatic difference between the operation of this committee and the operation of the government operations committee, who made the point that they can't do their business, they can't do their job, unless they get full disclosure of the rationale and the documentation behind a bill. They have to know what the intention of the bill is so the committee can have the opportunity to study it. They just had a planning meeting talking about that very thing. It was Liberal members of the committee who said, we can't go any further with the clause-by-clause analysis of Bill C-25 until we have all the information. They refused to continue meeting.

I propose we adjourn this meeting until such time as this documentation is made public and is circulated to all the committee members so they have.... I make a motion that we adjourn the meeting.

Â (1200)

The Chair: We have a motion to adjourn without debate.

Mr. Pat Martin: We don't have the legal opinions the government has.

The Chair: Do you wish to finish your 10 minutes and then put in a motion, or do you wish to interrupt your interjection and put in a motion?

Mr. Pat Martin: I wish to put in a motion that we adjourn this meeting until such time--

The Chair: Without debate?

Mr. Pat Martin: No. Mr. Chair, it's a motion--

The Chair: Until such time? Okay.

Mr. Pat Martin: --that we adjourn until such time as the government makes available to us--

The Chair: That's out of order. We've dealt with that issue. We've voted on it. Are you're talking about the same documents we voted on the other night?

Mr. Pat Martin: I'm talking about any and all documents and opinions pertinent to Bill C-7 that the government has and won't release to us. It's not the same. The motion we dealt with--

The Chair: I'll trust the committee to vote wisely. I'll put your motion on the floor.

(Motion negatived)

The Chair: The vote was two for and seven against.

That concludes the time for Mr. Martin.

Mr. Godfrey.

Mr. John Godfrey: I have one observation to make, through you to Mr. Martin, Chair. In the JMAC report of March 8, 2002, under tab D at page 28 it says:

JMAC recommends that the term of office be four or five years. Some Committee members felt that the term of office should be the same as the maximum duration during which federal and provincial members of Parliament and the Legislative Assemblies can hold office without an election. Other members felt that because band councils will have fixed terms rather than holding office until an election is called under a parliamentary system, four years is preferable to five.

I would like to return to a more general point, which is the issue I was pursuing with Mr. Johnson. I'm not being tossed a bone; I'm the dog with the bone. If I understood you correctly, you said that the thing about Corbiere that is particularly important is that it came out of a section 74 band. That was a decision that applied specifically to that universe of 260 first nations or bands across the country.

You also said that winding their way through the court are a number of cases that are on the other side. They have to do with either, as JMAC would call them, custom election bands or other custom bands. Other custom bands are defined as having reverted to custom since 1988 or had election codes before 1988. That's the bulk of them, I think. Then there's this third category, which he calls other custom bands. He says there are 10 or 11 of them in the country. I'm quoting Mr. Aldridge here. On the custom side how many cases are there and where are they? Are they being appealed on the same grounds? Are these non-resident members of the band appealing broadly on the same grounds as the Corbiere case?

Â (1205)

Mr. Warren Johnson: I'm not sure what the question is.

Mr. John Godfrey: The question is this. Corbiere just applies to section 74 bands, of which there are 260. I thought I heard you say that there are other cases now before the courts for custom code bands, which are making the same point as Corbiere; that is to say, the decision hasn't been rendered, but people are saying, I'm off reserve, I belong to a custom band, it's not fair, I need whatever it is I need, and that we will cross that bridge when you....

The reason we weren't being more specific under subclause (2) was that we don't know the disposition of those cases. But those cases have a similar quality to the Corbiere case. It's the same kind of complaint, except they're not as far along in the legal process because a decision hasn't been rendered. Is that right?

Mr. Warren Johnson: Yes.

Â (1210)

Mr. John Godfrey: So if they are of a like quality, that is to say, the same, presumably they're going to draw on Corbiere. They're going to say, “Hey, what about us? We live in Regina too. We'd like to be on the list. These things aren't written down. They won't let me vote.” That's the same.

No one can guess how the courts will go, but if one thinks that the equality provisions of the charter mean that all categories of Canadians are treated equally, and all categories of people living off reserve.... You can't establish one set of rules and one set of rights for one and not the other. This is a hypothetical question, but I think there is a pretty strong chance that the same point will be reiterated, unless the court goes back on Corbiere. We can't make distinctions between categories of Canadians. These are individual rights, equality rights. Does that mean we'll be back at it, having to amend this bill to meet the same point, when we might have anticipated it before the courts made their decision?

Here we are, we're balancing off two things. We're trying to recognize the differences. But if we think there's a strong chance that this whole play is going to be revisited once those court decisions are out and we're going to be back here, why wouldn't we try to anticipate that and not have to come back here to deal with a Corbiere-like decision applying to the other kinds of bands?

Mr. Warren Johnson: If I could make three quick points, and then I think I'll turn it to one of my colleagues, I don't want to leave the impression that all of the challenges in the courts on custom are specifically on the grounds of Corbiere.

Mr. John Godfrey: Some are.

Mr. Warren Johnson: Some are. Some that we are aware of are.

Secondly, in terms of whether there's a strong chance of success or not, that will depend on the specifics of the case, and that's a question of opinion. But to relate it to the last point--and on both these points I think Mr. Beynon may want to comment--it's not clear that the result would be to come back to change this act. The challenge would be against the first nations own custom procedure. The result was that they would have to change it, not that the act would then have to be changed.

Mr. John Godfrey: But wasn't the point of Corbiere telling us--the federal government--we had to change something in order for that--

Mr. Warren Johnson: Those were our election procedures.

Mr. John Godfrey: Okay. But now we're going to own, aren't we, to some degree, the customs elections procedures?

Mr. Warren Johnson: That's the question I put to my colleague.

Mr. Andrew Beynon: I think you're all engaged in a fascinating legal debate on this particular point. I guess I would say, to try to put it in as straightforward terms as I possibly can, you are right that the Corbiere case turned on the statutory provisions regarding section 74 of the Indian Act. What was at issue was the statutory requirements in how they treated on- and off-reserve voting potential.

When it comes to the issue of custom, at least in some cases, an issue of an aboriginal right, possibly a treaty right, but more so an aboriginal right in terms of leadership selection, will come up. It's very, very hard to speculate as to whether or not the courts would apply the same result, the logic, that applied to the section 74 statutory provisions and say that those very same equality results have to apply in the context of what might be an aboriginal right.

The court will have to look at both issues and say, number one, is there an element of an aboriginal right to custom selection that has a flavour that doesn't include an off-reserve dimension? On the other hand, the court would have to look at the fact that the equality rights are part of the charter and may have to say, well even if there is an element of an aboriginal right, we're going to have to introduce this notion of a requirement for off-reserve voting. The issue is exceedingly complex legally because it'll then also trigger issues with respect to section 25 of the charter, which deal with aboriginal treaty rights as well.

All of that is to say that with regard to the map forward in terms of that type of litigation, I can understand certain arguments, which would say there's a logic to the point that we may well see the same result as in Corbiere opening up to require that off-reserve members participate in votes as well, but it's unclear at this time. It really is a complex legal issue.

If I may, just to conclude the point, I do agree with what Mr. Johnson is saying that in Bill C-7 in subclause 5(5) there is a provision that deals with the balancing of rights of on- and off-reserve members and that is particularly targeted back to the rules under subclause 5(1) for a code to be Corbiere-compliant. It is open. it does not by statute impose that result for an on- and off-reserve balancing in respect of custom, but it could be that ultimately the courts say that's a legal requirement that custom bands will face.

If the courts do that, then that will be the law and this bill doesn't have to hit that issue. It may not necessarily lead to an amendment.

Mr. John Godfrey: Final question, a point I made to Mr. Johnson.

By enacting more stuff about custom band, do we own it more? Do we put ourselves in the position--we've actually laid it out here, but sketchily, because we can give some elements that we think ought to be there--of more likely having to come back to deal with it because we've actually dealt with it in this bill in a way we hadn't previously?

Mr. Andrew Beynon: Again, this is an area in which you are raising fascinating questions. It's hard to speculate as to how the courts might go.

I suppose the short answer, though, would be to say that the legislation would dictate, in respect of custom bands, a process for appealing, a procedure for amending, and the issue of writing. It may be that some groups would say that we would like to challenge what has been imposed in respect of Bill C-7 on custom matters. It'll be up to the courts to look at whether or not that is reasonable, acceptable, etc.

Â (1215)

The Chair: Thank you.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, it's never an easy job chairing, but I thought we were dealing with an amendment here about a term of office not to exceed. We seem to be all over the map now with this.

The Chair: We have been for nine weeks.

Mr. Charles Hubbard: I know my colleague has points. Unless we have some intent to stick to what the amendment is trying to do.... I don't think it's fair for me to talk about how many horses some first nation had back in New Brunswick. It's not part of what we're trying to do.

I'm surprised at Mr. Martin, alluding to the poor work that some people in the carpenters' unions are doing, leaving...is it a confession? I think his union's going to be disappointed in him. A man of stature from the labour movement saying he's going to leave problems. When you buy a building, you think you're going to get a good one, and he says they deliberately leave things that are going to cause problems for the inspectors.

Mr. Loubier summarizes.... We have over 600 first nations, and we probably have over 600,000 people who live in harmony, hopefully, with all their chiefs and leaders. Is he saying--and probably he can elaborate more--there should be no maximum term of office? Does he think all those good people who live under someone's jurisdiction should just hope that somebody, sometime, will call for a little change in management and leadership?

I don't want to be too long, because we've heard too many long things already, but maybe Mr. Loubier, in finishing up, would elaborate on why he sees that all these people should live with no hope of ever making any change.

We saw that, I think it happened yesterday someplace, where they changed leadership. We don't want those kinds of changes, Mr. Chair.

Mr. Maurice Vellacott: Seeing the hour is just after lunchtime, I'm going to move we adjourn without any conditions, and hopefully the members--

The Chair: I cannot accept that motion until we've done some work between the two motions.

Mr. Maurice Vellacott: Between the two motions?

The Chair: Yes. We just dealt with a motion to adjourn. We haven't done any business yet. If we get a vote on this, I'll accept another motion to adjourn. But there has to be some work between the two.

Mr. Maurice Vellacott: Will you allow me the opportunity then at that point?

The Chair: Sure. As soon as we vote on anything, you can move it every time.

Mr. Loubier, closing remarks.

[Translation]

Mr. Yvan Loubier: To answer Mr. Hubbard, I will say that it's not a matter of saying five, four, six or 10 years; there's no place in the bill for a specification such as that. You mentioned the Quebec Election Act earlier, and it seems to me that the example spoke for itself. If, as a citizen of Ontario, you or one of your colleagues came to Quebec to impose a four-year term on the mandate of governments under our Election Act, you can imagine how fast you'd be sent back home.

If it is inconceivable that you could come to Quebec and tell us how the Election Act should work, how can you conceive that, instead of the members of the Aboriginal nations, we here could determine the length of the terms of their elected members or of the chiefs they selected in a different manner? That's the real question. The point is not to wonder about three, four or five years or the fact that we're for or against. You ask that kind of question in bingo halls, but not around the table of a committee such as ours.

We should have learned from the Royal Commission on Aboriginal Peoples, which stated that it was not new for the Crown to want to impose on the Aboriginal nations procedures that were not consistent in the least with their customs for selecting their leaders.

It was said, for example--I find this interesting, and I hope my colleagues have read the report--that, in 1869, an act was passed to implement an election process. In fact, all the Indian affairs legislation conceived between 1868 and 1869--and it was the intendant of Indian affairs of the time who said it--was designed to gradually bring the Indians--that's what they were called at the time--to get involved in the day-to-day activities of whites. That legislation was to permit, for a limited period of time--imagine, this was written in 1869--the election of band members who were to manage local affairs as a council.

There was extremely strong resistance to the proposed selection method and the procedure, and to the choice of band council members, as a result of which, at one point, the federal government had to gild the pill for the Aboriginal nations in order to lead them to accept its own vision of democracy. Since 1868, authorities have always wanted to have the Aboriginal nations adopt systems of elected councils which they did not want.

Furthermore, 25 years after the act of 1869 was passed, the Department of Indian Affairs of the time had to prepare lists of the First Nations because the situation was such that most refused to adopt the system of elected councils. That was not their way of doing things. Their approach was different.

More than 100 years later, we're facing the same problem. As though history has repeated itself, we're still trying to impose highly restrictive selection methods, terms, time limits and procedures on the Aboriginal nations.

It was the same in 1969, when the present prime minister, then acting as Minister of Indian Affairs, tabled the White Paper. Ultimately, the government wanted the First Nations to adopt our way for selecting their leaders, with fixed terms, as is the case in the proposal before us, in paragraph 5(1)(c). There were formidable challenges.

Â (1220)

Today we're repeating the same thing, as though history had thought us nothing. I would have thought, particularly in view of the 1969 challenge and the results of imposing leadership selection and voting procedures starting in 1869, that the current prime minister would not have imposed the conclusions of the White Paper. Everyone was dissatisfied. But even today, in 2003, we find ourselves in the same situation. We're demanding that the Aboriginal nations apply prescribed methods for selecting their representatives, their length of their terms and procedures which belong to them alone.

Why are we still testing the resistance of the Aboriginal nations? It is hard to grasp the reasons why we try so hard, decade after decade, to make the same mistakes.

I invite you to vote in favour of this amendment to show your good will and to consider the Aboriginal nations as true nations. That implicitly means that we will talk with them as among equals and that that can be reflected in words, that is by agreeing to an amendment such as the one I'm proposing to you.

[English]

The Chair: We'll have a recorded vote on amendment BQ-13.

(Amendment negatived: nays 8; yeas 2)

The Chair: I have a written motion by Mr. Vellacott:

I move adjournment until the week after the two-week Easter break and that we then recommence clause-by-clause, and after such time as that is completed, report it to the House.

Does anybody wish questions or clarifications?

Mr. Loubier.

Â (1225)

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I would like to clarify something regarding the motion. I don't know what's happening, but I didn't hear the translation while you were speaking. I'm sorry, but I didn't mean to interrupt you.

If we agree to the proposed adjournment motion, what will happen to the report on Bill C-7 which must be tabled in the House of Commons on April 11?

[English]

The Chair: I will read...du rapport.

[Translation]

You're talking about the notice of motion?

[English]

The notice of motion will be dealt with when we have a meeting on future business, after we deal with Bill C-7. I'd received a notice of motion asking that we report to the House. That notice of motion will have more than 48 hours, I suspect, because the committee will not have a future business meeting until we finish Bill C-7.

We'll vote on the motion of Mr. Vellacott.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, in the minutes of a meeting we held to establish the schedule, it was stated that the report would be tabled in the House on April 11.

[English]

The Chair: That is why this motion...I'll read it again:

I move adjournment until the week after the second week of Easter break and that we then recommence clause-by-clause, and after such time as this is completed, report it to the House.

It's clear we can't report if we haven't finished, and I could not have accepted a motion to adjourn, period, because we have an understanding that we will report this Friday if the work is completed. We know the work is not completed.

So does everyone understand this motion?

Mr. Maurice Vellacott: Mr. Chairman, is that the adjournment motion?

The Chair: Those in favour of Mr. Vellacott's motion to adjourn.

(Motion negatived: nays 7; yeas 2)

The Chair: We'll go to amendment BQ-14.

Mr. Hubbard.

Mr. Charles Hubbard: I move that we recess for 30 minutes for lunch.

(Motion agreed to)

The Chair: We are suspended until one o'clock.

Â (1229)

· (1315)

[Translation]

Mr. Yvan Loubier: Thank you, Mr. Chairman. With the committee's permission, I'm going to withdraw the motion.

[English]

The Chair: Thank you.

Now we are on BQ-15.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: I also withdraw amendment BQ 15, Mr. Chairman. I'm satisfied with the explanations given by the senior officials.

[English]

The Chair: Now I have CA-5, but its sponsor is not here to move it.

The rule is clear. We have to go on, and they will have to do this in the House. That's the directive that your predecessor gave me this morning.

Mr. Pat Martin: Mr. Chairman, I just have a question on procedure.

The Chair: Well, I did too. I asked about it this morning, and the ruling was that if the mover is not here, we should skip the amendment and move on. But I'm willing to do anything.

Mr. Pat Martin: Are we allowed to come back to it when they re-enter the room?

The Chair: When I asked for a ruling the answer was no. So we will skip over it, and if it comes back he will need unanimous consent for us consider it. So if Mr. Vellacott wants his motion back on, it has to be done by unanimous consent. That's the rule; I didn't make it up, but followed the recommendations.

So we will skip CA-5, subject to being recalled by unanimous consent. We will do the same thing for CA-6, CA-7, CA-8, and CA-9.

On page 47, we have BQ-16.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: The official opposition isn't here. Well, now we've seen everything.

[English]

The Chair: I hope somebody will explain this to Mr. Vellacott, so that he doesn't think I pulled a fast one on him.

Monsieur Loubier, pardon.

[Translation]

Mr. Yvan Loubier: I'm going to explain it to him, Mr. Chairman.

Le président: [Editor's Note: Inaudible]... if you represent me.

Mr. Yvan Loubier: It's true that we have to rely on mutual trust. I won't make any more comments.

The purpose of my amendment is to delete lines 14 to 17 on page 5, in clause 5, Mr. Chairman. It's to delete a portion of what is prescribed for the Aboriginal nations with regard to the selection of their leaders, the length of their terms and the way of identifying the desirable democratic result for them of votes in the election of council members.

I'm making another attempt to ensure that we do not dictate to the First Nations how to do things, since that should not be the purpose of a bill such as this. If we consider that the Aboriginal nations are genuine nations in the meaning accepted by the United Nations Organization, we should not dictate to them how to select their leaders or the length of their leaders' terms.

We have made a number of attempts since this morning to alter this approach, which is unacceptable and is quite similar to what appears in the old acts, in the old narrow conceptions of the relations that must exist between our two communities.

In moving that lines 14 to 17 be deleted, we're trying once again to ensure that the true way of considering the Aboriginal nations is reflected in the drafting of the bill.

Mr. Chairman, it would be important that the committee members understand the wording of Bill C-7, in particular clause 5, which does not reflect the speeches of the Prime Minister or the Minister of Indian Affairs, who says he wants to start over on a new basis in his relations with the Aboriginal nations. We find that unfortunate because we thought we had evolved and that that evolution could have been reflected in a bill which would truly have been presented to us as a new vision for the future, a vision of partnership with the Aboriginal nations, but we see that the old conceptions are being served up again and that another attempt is being made to impose ways of doing things that are not those favoured by the First Nations, hoping that, by quickly passing this bill, we will raise fewer questions and provoke less aggressiveness than we have seen since we began considering Bill C-7.

I believe we are wrong in that respect. If we think we are going to force the members of the First Nations to swallow a pill as vile and revolting as the first Indian Act, we're mistaken. I believe we underestimate the organization of the First Nations.

Chief Matthew Coon Come is currently in Europe. He is meeting with European representatives and telling them how the Canadian government treats the Aboriginal nations and how it violates the Universal Declaration of Human Rights.

· (1320)

He's explaining to them that, while appearing to be a great democracy, Canada, by imposing clauses 5 and following of Bill C-7 on the First Nations, has exactly the same reflex as the Europeans when they arrived in America and that, contrary to what one might see in history, Canada is not an example to follow with respect to freedoms and even its own Charter. According to Professor Larry Chartrand, a number of clauses in this bill, including clause 5, could violate the Charter of Rights and Freedoms and even section 35 of the Constitution, which concerns the right of self-government. And yet the Constitution is the first law of the country.

When we make amendments such as the one I'm proposing this afternoon, we have the opportunity to demonstrate the federal government's good will. We can make mistakes in life, but those mistakes shouldn't stigmatize us forever. It's not too late for the government members around the table to revert to better provisions and agree to make a gesture such as supporting the amendment I'm moving. That would be the start of future amendments that we could make to the bill. As a result, we could concern ourselves with respect for the Aboriginal nations in Canada, and that could also tone down the position Mr. Matthew Coon Come, Grand Chief of the First Nations, could present in Europe or elsewhere to the effect that Canada respects nothing, that Canada does not comply with the many court judgments, that Canada even violates certain resolutions of the United Nations Organization with respect to its relations with the members of the First Nations.

I'm asking you to do your duty, to have a slightly broader vision of the bases of a new partnership with the Aboriginal nations and to agree for once to an amendment such as BQ 16, which is designed to amend clause 5 so as to delete the reference to the limitations placed on the Aboriginal nations.

I hope that, this time, members have listened carefully to the presentation of my amendment and that you will support that amendment with honour and enthusiasm.

· (1325)

[English]

The Chair: Mr. Martin.

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

I'm glad we have an opportunity to continue in our review of clause 5, even though it's regrettable the Alliance seems to have lost their opportunity to bring their amendments forward in concert with the others in clause 5.

While we're on this subject, I think we were making some good progress in helping all the members around the table to understand the implications, and I thank my colleague from the Bloc for bringing forward another important amendment regarding changes to clause 5, one that would delete lines 14 to 17 and therefore take away again some of the prescriptive language that is causing such concern in the many presentations we've heard.

We believe--and we have been cautioned, in fact--that this will be challenged in the courts. And I think it's incumbent on us as members of Parliament to try to anticipate and address troublesome language, or troublesome clauses, that clearly will be challenged, and challenged with good reason, that might even fail and force it to be reversed. Clearly it's time well spent for us to be giving careful consideration to these aspects.

I point out that even before this bill has passed, the legal challenges are being contemplated and being developed. I have before me right here the draft of a court case in Federal Court that will be between the Assembly of Manitoba Chiefs and Her Majesty the Queen in Right of Canada, the Prime Minister, and the Minister of Indian Affairs, which will speak specifically to some of these issues, such as the leadership selection codes, and make some very good arguments, that in their opinion and in the opinion of their legal counsel, they are prepared and ready to go forward with this kind of action.

They have no other alternative than to be seeking redress through the courts, which is the real shame and the real tragedy of it all, because all this was so avoidable had we consulted adequately ahead of time and been transparent about what the intentions of the federal government were. It would have given opportunity for first nations to voice their concerns about this clause and hopefully negotiate something that is acceptable to everyone.

If there had to be a reference made to the issues dealt with under clause 5, if the government saw a need for getting this into writing, it could have been done in a cooperative and a consultative manner instead of the way it appears before us, which, as I say, the first nations across the country cannot, or will not, voluntarily accept. And if it's imposed upon them, they intend to file court cases like this one that I have before me here today.

Some of the language in this particular proposed court challenge will have to be modified as it goes, I suppose, but this is one aspect--if they don't get satisfaction on this particular clause--that will be specifically mentioned and cited in the court hearings that do go forward.

One of the best arguments made in here, and we've heard it cited from many people, but this perhaps expresses it better, is in item 42 of this particular brief, where it says that Bill C-7 expands the form of government found in the Indian Act and gives more power to the Minister of Indian Affairs and not the Indian nations, and therefore the defendant, Robert Nault, as a fiduciary of first nations, cannot act against the interests of Indian nations, and in particular cannot operate as a fiduciary to the first nations when he is in a clear conflict of interest situation. It is submitted that the scales of justice are not balanced and the defendant is acting as both judge and jury in relation to the governance of first nations in Canada through the passage of Bill C-7.

It speaks right to the heart of what the objections are, and again I point out that it's not just me saying these things around the table. These are the things that will be heard loudly and clearly as it goes through the courts.

· (1330)

This is sent to us as of today, April 10, 2003, and is ready to be fired off or customized and amended to add to the 200 outstanding court cases that already exist, that huge body of court cases.

What's worrisome to us, Mr. Chair, is that we can't get from the department or the government the rationale, the logic, the reasoning, or even what the plan and the strategy are on the part of the Government of Canada on how to deal with challenges like this. How are they going to respond? Are they ready for them? Have they anticipated them? Are there arguments being prepared to defend this?

We deserve to know this because we're members of Parliament. We're supposed to be in charge here, in a way, if we believe the parliamentary process, not the departmental officials and not the minister even.... Ultimately, we were elected to take care of the best interests of Canada, and Canada is about to change the relationship it has with first nations people. We deserve full participation in that activity.

It worries me when I understand, from what we've heard from our officials so far, who say so themselves, that it may be possible that this legislation will be found to infringe on the aboriginal right of self-government for some groups, especially the right to determine the method of selecting its leaders if groups can prove that this right exists for them, as I've cited in Sparrow, and if the Crown is considered by the courts not to be justified in its infringement of such rights.

However minimal they are, it's the principle of the issue, and I suggest that some of them aren't minimal at all. When we are dealing with it line by line, I suppose it seems like a very fine point. In the final analysis, no one is going to suffer irreparable harm if the term of office is five years instead of three years, and I wouldn't try to argue it was. But add it all together. The many aspects of clause 5 constitute a significant infringement on a principle basis in that the terms and conditions of the leadership selection code, etc., are going to be dictated by someone else.

I understand--or I believe I understand, and I'll ask for some correction there--that when Mr. Johnson was talking about our response to Corbiere.... If I understand Corbiere correctly, the courts said pretty much that the Indian Act exclusion of off-reserve band members from voting privileges made a distinction that denied equal benefit or imposed unequal burden and that a residency requirement for off-reserve band members constitutes a ground of discrimination analogous to enumerated grounds of section 15 of the charter, so it was a charter issue.

If what I understand is right, and if Bill C-7 is supposed to be a response to Corbiere, when the court struck the words “and is ordinarily resident on the reserve” from section 77 of the Indian Act, it suspended that for 18 months, right? I think I understand that it was to give the government an 18-month opportunity to develop an electoral process that would balance the rights of off-reserve and on-reserve members.

Is that correct so far, that the court struck the words “and is ordinarily resident on the reserve”--

· (1335)

Mr. Warren Johnson: Yes.

Mr. Pat Martin: It was back in 1999 that the government agreed to move forward with a two-stage approach in response to the Supreme Court's decision. In the first stage they decided the government would not introduce a bill to amend the Indian Act, but would simply allow the suspension to expire, effectively removing the words “and is ordinarily resident on the reserve”. Does that sound right?

Mr. Warren Johnson: That's not quite correct. In consultations on the impact of Corbiere in the 18 months, it was clear to all concerned that first nations considered 18 months inadequate for legislative reform, so the government adopted a two-stage approach, the first one of which would have been regulatory. The second stage was to be legislative, so it didn't say no to legislation. It said that would be the second stage, and that's effectively why we're here today.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, when all of us went to school, we learned to read by different ways. For some of us it was sight recognition and phonics. We have an expert at the end of the table. I'm not sure what we're into here, Mr. Chair, but some said at one time that it was a filibuster. But then I read the Winnipeg Free Press, and I had to go away from sight recognition to read what the paper really calls the process. They call it a “filibluster”. It says:

Now that Mr. Martin and Mr. Loubier have caught the public's attention with their filibuster, it is high time they showed how the present Indian Act provisions are better than the ones Mr. Nault asks Parliament to enact. If Mr. Nault accepted their advice and withdrew his bill, the effect would be to keep the present provisions of the Indian Act in force.

If my hometown paper said that about me, I would have to think things through and wonder what I was doing.

Mr. Chair, we have another amendment to delete certain lines, and I don't know what it would do. Maybe we could ask our expert witnesses. They want to delete a few lines from clause 5.

I would hope that we could proceed and get this buster or fluster or whatever it is going.

I'll turn it back to you, Mr. Chair, and hopefully Mr. Loubier.

The Chair: I have no doubt that it's a filibuster. The editor thinks it's a “filibluster”. We've been sitting so long that it will soon be a “filiblister”.

Some hon. members: Oh, oh!

The Chair: Final word, Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Hubbard was out of order, and you didn't call him to order, Mr. Chairman. No one can cite a clause like that while we're analyzing an amendment to clause 5. If I had taken the liberty of citing a newspaper article, you would have called me to order, saying that we have to stick to the amendment moved. This is a double standard. This isn't a filibuster, and these aren't the abuses you described. We're trying to understand what is going on in this bill and we're trying to provide an adequate response to what the people who appeared before us asked us to introduce in the bill.

As it seems to be possible to talk about the clause, I'm going to come back to it. You no doubt noted that, in that clause, there is no citation from you, talking about filibusters or anything else. You say we're filibustering, whereas we are moving amendments, one of which was agreed to yesterday. If we had not moved that amendment yesterday--you can laugh to your heart's content, if you want, I don't care--if my NDP colleague, Mr. Martin, and I had not emphasized this reference to the non-derogation clause, to section 35 of the Constitution--even Ms. Neville raised the question with Mr. Beynon--if we ha not had this debate yesterday, we would not have realized until the end that the absence of a non-derogation clause is a result of the fact that work is being done in a committee which is trying to find a new wording for the non-derogation clause.

Most of us rejected that argument, and that led to the adoption of an amendment adding a reference to section 35. You think that's obstruction? I think it's positive. At least it was for one clause, and we would like our other proposals, which are as sensible as the one you agreed to yesterday by a very large majority, to be passed as well. Let the journalists say we're engaged in a kind of filibuster; we don't care. We know we're doing serious work here and that we have things to propose to you. They are things that arose from the extensive consultations we conducted.

I can understand certain committee members who have not changed their way of thinking even though consultations have been held since the bill was introduced 10 months ago. We had phoney consultations. It was a dog's breakfast.

On our end, the consultations we conducted were informative. They informed us so much that we wanted to work. From the start, we made a serious effort to put forward amendments that were no less serious, but that you rejected yesterday, except one. Fortunately, that's at least a kind of pole that the Aboriginal nations can grasp. They can say to themselves that there's less of a chance that their rights will be run roughshod over because we at least introduced a reference to section 35 in the body of the act.

You should take this exercise a little more seriously. I take it seriously. I wouldn't be here discussing the amendments I'm proposing if I didn't believe this was serious and if it was just to annoy the Chair and other persons around the table.

The amendment I've proposed is utterly consistent with what a very large majority, if not all of the representatives of the First Nations told us. They told us they did not want to be limited or to have things prescribed for them.

The part I want to delete, which appears at lines 14 to 17, is this:

(3) 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.

I want to delete the words “only during the period of two years beginning on the coming into force of this section” because we must stop restricting the Aboriginal nations by imposing deadlines on them.

I have a question for Mr. Johnson, Mr. Beynon or Mr. Salembier. Let's suppose that most of the First Nations cannot or do not want to meet your requirements within the two-year period. What are you going to do with those First Nations? Are you going to reject the band's custom rules which they haven't finished developing because of a lack of resources? What are you going to do? You're going to throw all their members in prison? Are you going to take them to court, as the federal government has had the idea to do? What are you going to do? There's no room in the prisons right now. In your recommendations and in your regulations, are you going to propose that new prisons be built specifically for the members of the First Nations who do not comply with the limitations you throw in their face? Are you going to do that to sovereign nations?

· (1340)

What's going to happen? I would like you to describe a kind of scenario for me because I've been asking myself the question from the start. What would happen if the prescriptions were not followed, this one, among others, but the others as well?

[English]

Mr. Warren Johnson: First of all, clearly it's Parliament who would be doing this, not us. There are no criminal penalties in the act. I'm not sure what these requirements mean, but with the one that's in fact being spoken to, clause 3, the effect would be twofold. First of all, the individual citizens of first nations currently under custom would not enjoy the privilege of, within a two-year period, having the opportunity to reflect on whether they wanted to remain under custom. If nothing happened in that two years, they'd automatically end up in the default regulations according to the rest of the provisions of the act, so it's not clear that this adjustment would do what I think you were intending by it.

· (1345)

[Translation]

Mr. Yvan Loubier: But if they don't want to comply with the provisions by default and rebel at the fact you are forcing procedures and codes on them that they don't want, what are you going to do? You say that no penalties are provided for. Penalties have no doubt been considered. What are you going to do with the First Nations that rebel and don't want to implement either the code that's imposed on them or certain provisions of Bill C-7?

[English]

Mr. Andrew Beynon: I think I've actually answered that question before the committee already. On issues such as this, the act will speak to what the systems are for adopting a code, for falling under the fallback regulations, or in this case for adopting custom rules within a time period. If these steps aren't taken, there's no particular provision to point to in the act that creates either a criminal or a civil penalty.

There's no $1,000 fine, nothing like that. The provisions in the bill that set out penalties are for violations of band laws. That's not what this is. There wouldn't be anything, I suppose, that would amount to the government saying, you haven't met the two-year time period; therefore, you have to pay $1,000 or you have to go to jail--no such provision.

[Translation]

Mr. Yvan Loubier: What could compel a First Nation to do what you tell it to do if it doesn't want to do it and if it detests the way you approach it? Are you going to intimidate it? We heard in some places that there had been intimidation by people from the Department of Indian and Northern Affairs. Are you going to cut its subsidies, as was done in the case of the Quebec Native Women's Association? How are you going to operate if there's no penalty?

[English]

The Chair: That's out of order. I'm not accepting that, and you don't have to answer.

[Translation]

Mr. Yvan Loubier: So there are no sanctions?

[English]

The Chair: Mr. Beynon, do you wish to address it?

Mr. Andrew Beynon: I don't want to address specifically that point, but perhaps I'll elaborate.

You've raised the issue of first nations who do not wish to comply with the terms of the act. Mr. Martin has raised an example of certain groups who are likely to file a court challenge in the future. That's what groups can do if they wish to challenge the validity of the act.

If they don't challenge the validity of the act and don't try to suggest that the provisions are constitutionally invalid or violate the charter or whatever it may be, then the law would speak to say what it does under the bill. The subclause that is at issue in this amendment imposes a time period for adoption of custom rules.

Just as a technical observation, subclause 4(3) of the bill specifies that:

While a code adopted by a band is in force, regulations made under section 32 providing for the same matters as the code do not apply to the band.

In the reading of the bill, subclause 4(3) is the provision that makes it clear that if you don't choose to adopt a code within the time limits or in accordance with the rules that are specified in the rest of the act, then regulations made under clause 32 providing for the same matters as the code do not apply to the band.

The Chair: Thank you, and we'll go directly to the vote on BQ-16.

(Amendment negatived)

The Chair: We'll now go to Mr. Dromisky.

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.): I have a motion to be presented to the committee, Mr. Chairman, that the committee adjourn until Monday, April 28, at which time the committee will recommence the clause-by-clause consideration of Bill C-7. After the completion of clause-by-clause consideration, the committee shall report the bill to the House.

· (1350)

The Chair: I accept that.

(Motion agreed to)

The Chair: We'll meet at 9 Monday morning.