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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Wednesday, April 30, 2003

1540

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

Mr. Pat Martin (Winnipeg Centre, NDP)

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Julian Reed (Halton, Lib.)

The Chair

Mr. Julian Reed

The Chair

Mr. Julian Reed

The Chair

Mr. Pat Martin

1545

The Chair

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

1550

1555

The Chair

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

1600

1605

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

The Chair

Mr. Yvan Loubier

1610

Mr. Lawrence O'Brien (Labrador, Lib.)

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

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

1615

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1620

1625

The Chair

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

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1630

1635

The Chair

Mr. Maurice Vellacott

1640

The Chair

Mr. Maurice Vellacott

1645

The Chair

Mr. Charles Hubbard

1650

The Chair

Mr. Pat Martin

The Chair

Mr. Jeffrey LeBlanc (Procedural Clerk)

The Chair

Mr. Pat Martin

The Chair

Mr. Maurice Vellacott

1655

The Chair

Mr. Yvan Loubier

1700

1705

The Chair

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

The Chair

Mr. Pat Martin

1710

1715

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

1720

The Chair

Mr. Charles Hubbard

Mr. Paul Salembier

1725

Mr. Charles Hubbard

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

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1730

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1735

The Chair

Mr. Pat Martin

1740

1745

The Chair

Mr. Pat Martin

The Chair

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

1750

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

1755

1800

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

1805

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1810

1815

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

1845

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

1850

1855

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

1900

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

1905

1910

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

1915

1920

The Chair

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.)

The Chair

Mr. Maurice Vellacott

1925

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

1930

Mr. John Bryden

Mr. Pat Martin

Mr. John Bryden

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1935

The Chair

Mr. Yvan Loubier

1940

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1950

1955

The Chair

Mr. Pat Martin

2000

2005

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

2020

The Chair

Mr. Charles Hubbard

Mr. Warren Johnson

2025

Mr. Charles Hubbard

Mr. Paul Salembier

Mr. Charles Hubbard

Mr. Paul Salembier

Mr. Charles Hubbard

Mr. Warren Johnson

Mr. Charles Hubbard

Mr. Warren Johnson

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

2030

Mr. Warren Johnson

Mr. Yvan Loubier

2035

Mr. Warren Johnson

The Chair

Mr. Warren Johnson

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

Mr. Paul Salembier

Mr. Yvan Loubier

2040

The Chair

Mr. Warren Johnson

The Chair

Mr. Pat Martin

2045

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

2050

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Warren Johnson

Mr. Pat Martin

Mr. Paul Salembier

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

2055

2100

The Chair

Mr. Charles Hubbard

2105

The Chair

2125

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

2130

2135

The Chair

Mr. Yvan Loubier

2140

2145

The Chair

Mr. Pat Martin

2150

The Chair

Mr. Yvan Loubier

2155

The Chair

Mr. Pat Martin

2200

The Chair

Mr. Pat Martin

The Chair

2205

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

2210

The Chair

Mr. Pat Martin

Ms. Paddy Torsney (Burlington, Lib.)

Mr. Pat Martin

Mr. Yvan Loubier

Mr. Pat Martin

2215

2220

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

2225

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

2230

The Chair

Mr. Joe Comartin (Windsor—St. Clair, NDP)

2235

2240

The Chair

Mr. Yvan Loubier

The Chair

2245

The Chair

Mr. Charles Hubbard

The Chair

Mr. Joe Comartin

The Chair

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Warren Johnson

The Chair

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

2250

The Chair

Mr. Yvan Loubier

2255

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

The Chair

Mr. Maurice Vellacott

2300

The Chair

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Warren Johnson

Mr. Paul Salembier

Mr. Joe Comartin

2305

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

The Chair

Mr. Paul Salembier

The Chair

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

2310

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 066

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, April 30, 2003

[Recorded by Electronic Apparatus]

¹ (1540)

[English]

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

We will resume our clause-by-clause consideration 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 on amendment G-3, and Mr. Hubbard has spoken. Mr. Martin has spoken for three minutes and six seconds, and the floor is yours, Mr. Martin.

(On clause 11—Designation of authority to hear complaints)

Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Chairman, having left at 4:30 in the morning last night, I'm a little unclear as to what my train of thought was when we departed.

Now that we're resuming debate on government amendments, I think it's only reasonable we should discuss as well in the same context the logic or the rationale or the wisdom of trying to have sensible dialogue or debate at 4:30 in the morning. It begs the question, I guess, Mr. Chairman, as we debate government amendment G-3, what is the rush about this bill that compels the government to want us to sit here until four o'clock in the morning, until everyone is exhausted and bleary-eyed, and, if I can use some of the members of the government side as an example, grumpy and irritable?

I don't blame them for being irritable because it's an unreasonable thing to do, to ask people to come to work at nine o'clock in the morning and to begin intense debate on very complex and sometimes emotional issues and continue that debate from 9 a.m. until 9 p.m. and then to carry on even further without a break until midnight, 2 a.m., 4 a.m, and 4:30. Ultimately, we should note for the record that the meeting wasn't even adjourned at 4:30. In fact, what happened was the Liberals couldn't keep enough people in the room to keep quorum and quorum was lost.

If this has turned into some kind of a game of chicken as to who can take it and who's tough enough to sit here the longest, then why don't we just say so right here and now? Maybe we should resolve it by arm-wrestling each other or something instead of pretending this is a dialogue about a debate, because it makes a mockery of the serious issues we're debating here, when what it's really all about is who can sit here the longest without dropping from exhaustion. It's not a healthy thing to do. Some of us aren't young. Some of us are in the prime middle-aged years of heart attack, frankly.

The Chair: Mr. Martin, the amendment speaks of the phrase “law, authorize an impartial person or body”. That's it. Would you speak to the amendment, please?

And I have a correction. The Liberals, when we collapsed at 4:30 this morning, had eight members here. We needed nine members in total and we couldn't find another person from any side. But there were eight Liberals here.

Mr. Pat Martin: So you couldn't find enough Liberals to keep quorum. Well, nobody wants to get up at 4:30 in the morning.

The Chair: There was no opposition.

Mr. Pat Martin: Nobody wants to get up at 4:30 in the morning and come down here, especially seeing as half of the people who came here knew nothing about the issue.

The Chair: Mr. Martin, I have a point of order.

Mr. Julian Reed (Halton, Lib.): Just to correct the record, is it not the case that the nine members must include one opposition member?

The Chair: No, Mr. Reed, it has to be nine members, any members. It could be nine Liberals to operate.

Mr. Julian Reed: So if nine Liberals were here, then the opposition would not need to be present?

The Chair: That's right.

Mr. Julian Reed: Thank you.

The Chair: Mr. Martin, you have the floor.

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

I will limit my remarks to speaking in the context of amendment G-3. As amendments go, you have to talk about the clause that is being amended. While you're talking about the clause that is being amended, sometimes you can't take that clause out of context or in isolation and you have to talk about the bill that's being amended. As we're talking about the bill that's being amended, we have to talk about the process of amending the bill.

One of the things that is irritating about the process is the very fact that was raised by Mr. Reed that the quorum in this particular committee can be nine Liberals and no opposition members. We're not going to let that happen. We will never leave nine of you alone in this room; I serve you notice of that right now. There will never come a time when you will find nine Liberal members in this room alone because we don't trust what you will do to this bill. We think you will ram this bill through and all of the amendments will suddenly disappear while you're left alone without any watchdog to represent the interests of the people affected.

So we find ourselves, again, having to grieve the fact that it's unreasonable to ask any members of Parliament to sit here for 15 or 16 hours straight and debate issues. Again, it's doubly offensive that there's no aboriginal representation around this table. But the fact that it's a bunch of white men in suits--with the exclusion of the one female member of Parliament who is here today...that's one thing.

But asking those same non-aboriginal people dealing with this bill to make reasonable debate or reasonable judgments when they're about to drop from exhaustion is not a recipe for good legislation. I don't think anybody here could argue that there's any defendable reason why this bill has to be rammed through in such short order and with such short notice. I defy anybody here to tell me what is so urgent about this bill that we're sitting up all through the night to make sure it's back into the House by Friday--I believe that's the goal of the government.

I don't think the government's problems will end there. I think the government's problems will only begin when it gets in the House. We're actually doing the government a favour by prolonging this process at the committee stage. I'll tell you why. It's not to help the government, necessarily. It's because we were told that at the committee stage there would be meaningful amendments made and flexibility shown by the government side, some receptivity on the government's part or the ruling party's part to allow meaningful amendments. That's why this bill was given to this committee after first reading.

Frankly, we are still optimistic--and maybe it's blind faith, but we take what people tell us seriously and in good faith--that amendments made at this committee stage are easier to achieve than in the House of Commons, in that process, and that there is still some hope that we can garner support from the eight or nine Liberals on this committee. Again, this is just by simple mathematics a more practical approach than trying to garner support from 301 MPs in the House of Commons, who may know nothing about this bill and would only be taking direction from their party whips as to how to vote. At least the people sitting around this table have been engaged in this bill for the last couple of months.

I wouldn't call any of us authorities on this bill. The authorities on this bill are guests who are sitting in chairs here but who, unfortunately, can't give any input or participate.

Mr. Chairman, earlier today Mr. Loubier and I attended a very moving ceremony that I should--

¹ (1545)

The Chair: Thank you, Mr. Martin. Your time is up.

Before we move on to Mr. Loubier, I will explain to people why I, as chair, am allowing members to speak off the amendment on the table. Usually members have to speak to the amendment. Every member has a maximum of ten minutes, and it's very difficult to bring members to speak about the amendments--we talk about everything but--and this is the tenth week it's been like this. But I have chosen this way because it's more efficient to allow the ten minutes than to argue for three hours about whether it's relevant to the amendment or not. So for those who wonder why the chair would allow members to speak off the issue this much, that is the reason.

Mr. Loubier, you have ten minutes.

[Translation]

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): I would like to clarify one point before we begin, Mr. Chairman.

You say that you gave us ten minutes to talk about the amendments. I'm sorry, but it was the Liberal majority on the committee that set this ten-minute time limit for debating the amendments. We wanted no such restriction. The majority of Liberal members voted for this rule. The chair made no decision in this regard. The vote was taken here, and it amounted to a gag order on us. We complied with your gag order. Now, you think your ten-minute time limit is too long. There's a problem here. You should have thought of that earlier.

Let us come back now to the government amendment. It is a cosmetic amendment that in no way improves the bill. We are told that it removes the reference to clause 18 in the bill. That is all very well, but, even if the reference to clause 18 of the bill is removed, nothing is done to deal with the many problems raised by this bill, such as the fact that it is not in keeping with the new agreements that the first nations people want and the new start that they would like to have in the relations between the federal government and their communities.

This is not what they asked for. They never asked to have agreements of this type imposed on them. They never asked to be taken by the hand, as though they were children. Nor did they ever ask that their rights be delegated to other bodies. Rather, they have always fought against this, as we saw during our travels. They spoke against the fact that agents from the Department of Indian Affairs or the co-managers were making their decisions for them and dealing with issues on their behalf. Often, the Department of Indian Affairs threatened them when they did not conform to the model.

They never asked to be told through any piece of legislation how they should operate. Rather, they asked that we respect their ways, their culture, their identity, their history and the institutions that they are in the process of rebuilding. Over the last 130 years, and actually since the arrival of the Europeans, we have been demolishing their institutions and destroying what these communities are. They did not ask us to rebuild them on the basis of our values and what we think is right for them. They want to rebuild in keeping with their own desires as members of sovereign nations.

Over the last 30 years, many court judgments have said the aboriginal communities were right. Not only are they entitled to self-government, but this is an inherent right, a natural right given them by the Creator. You say that you are giving aboriginal people certain rights. You are giving the aboriginal peoples nothing!They have an inherent right to self-government. They have treaty and aboriginal rights that have never been respected over the 130 years during which the Indian Act has been in force.

You are showing no generosity and no justice. What you are demonstrating is a feudal attitude. That is what you find in this bill. It is a feudal attitude. The way in which clauses 1 to 11 are worded, for example, is so Rhodesian, as under the former apartheid regime in South Africa, before the people were emancipated, that it is shameful.

I think it is shameful that we are forced to study a bill of this type, which does not do justice to the work done by the Royal Commission on Aboriginal Peoples, and which does not take into account what should be done in the 21st century to get the partnership between the federal government and the first nations peoples off to a new start, based on a more solid foundation. This bill also does not do justice to the many court judgments. It does not do justice to organizations such as the United Nations, which recognized the inherent aboriginal right to self government and which called on the federal government to stop violating certain provisions of the Universal Declaration of Human Rights in its treatment of first nations in this country.

You cannot remain insensitive forever to all this criticism and to the many court judgments which have found in favour of the aboriginal nations. You cannot pass a bill that disregards completely all the developments that have occurred in recent decades.

¹ (1550)

You cannot deny the six years of work conducted by the Royal Commission on Aboriginal Peoples, made up of four aboriginal representatives and three non-aboriginal representatives, which produced incredible analysis and sensational recommendations that provided us with a kind of foundation on which to rebuild our relationship with aboriginal peoples over the next 20 years. You cannot simply discount all of that.

Moreover, one of the first questions that the first nations asked of Mr. Erasmus and Mr. Dussault was if they intended to take the report of the Royal Commission on Aboriginal Peoples, which seemed to be going in the right direction and which raised hopes and represented a dream for first nations, and shelve it. That is the first question that first nations leaders asked, in their great wisdom. I think they were visionary, because five years after the publication of the Royal Commission on Aboriginal Peoples report, the process that had been proposed by the commission is being trampled. All of the steps suggested by the Erasmus-Dussault Commission are being ignored. We have been given this rag that isn't worth the paper it is printed on.

We must stop mocking people. If I were a member of a first nation and if I were presented with this bill which is feudalistic in nature, I would protest rather aggressively and I would tell you that I am rather fed up with your scorn for all of our claims, with the flouting of my rights as a member of a first nation, with your having thrown me off my land and your refusal to resolve the land claims that I have been making for years.

There are 500 specific claims that have been set aside because the federal government has not deemed it a priority to resolve them, and there are another 500 that may well be added to that over the next two years. One thousand specific claims have been left hanging, and first nations are being accused of having problems with financial management. They do not have problems with financial management. They have financial problems linked to the fact that the federal government is not taking up its responsibilities and quickly settling disputes, preferring to drag the disputes into court with the result that resources in first nations communities that are required for housing, water infrastructure and education remain chronically inadequate year after year. Then the government says these communities are having trouble with management. Try to manage situations when you do not have a cent in your pocket. You will see that it is difficult.

The Minister of Indian Affairs has caused a fundamental flaw. The Minister of Indian Affairs, who has caused financial disasters in first nations communities, is acting as judge and defendant in the case of this bill. He is giving himself substantial power, namely to determine if a first nation is doing a good job or not of managing the funds allocated to it, while the minister is responsible for the fact that these first nations are short of funds.

As you can see, it is a chicken-and-egg situation. We are going around in circles like a dog chasing its tail. I could quote a number of other proverbs of this nature, but the fact remains that the bill is such that the main person responsible for the financial problems and underdevelopment facing first nations communities is acting as judge, executioner and defendant when it comes to the future of first nations.

How can you expect members of first nations not to be outraged? I would be if I had to live with what the Canadian Minister of Indian and Northern Affairs is imposing on representatives of first nations communities and their families, and especially on children in first nations communities.

Government amendment G-3 is a cosmetic amendment that is worthless. In our opinion, this bill should be burnt, set aside, torn up: do whatever you want with it. We must get rid of it, not by adopting it, but by destroying it. It is worthless. It does not correspond to what first nations want in terms of their future relationship with the federal government.

¹ (1555)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Vellacott.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Thank you, Mr. Chair.

I think this is an important area to be addressing, this whole issue of an ombudsman, particularly the major flaw or problem that is in the bill. You really are imposing upon first nations some major additional costs, and I don't think it provides the kinds of protections for them....

I know if I were a chief or council member with this kind of scenario--set-up is more the word I would use here.... What I think is far preferable...and I know there is support for that in a pretty big way out in first nations country across our nation of Canada. I also believe there are those within the department, hopefully, and members across the way and on this side as well....

Our support for a national ombudsman has come from our consultations with aboriginal Canadians, first nations Canadians. From grassroots members to chiefs, there's widespread support for a national ombudsman office.

In a survey to all band councils that Brian Pallister's office conducted, over 90% of decided respondents supported the creation of a national ombudsman. Mr. Chairman, it is absolutely breathtaking, when we have so much conflict and tension in respect to this particular bill before us, that we would have that considerable...almost consensus. That 90% range is really quite remarkable when you get that kind of response from band council offices across the country in respect to a national ombudsman.

I would also suggest that these same chiefs, these same leaders or members of the Assembly of First Nations, given their attitude toward the creation of an ombudsman's office.... I would think the AFN would be highly motivated to be a part of that selection process to ensure a qualified first nations candidate is chosen. So we think this could be done up in a way that is really a win-win, something that would be attractive to a lot of people in terms of redress in situations that come up in first nations communities across Canada.

We did have some amendments to try to mitigate, rectify, and improve some things in the current bill. For the record--it has been stated possibly before--I want to make clear that these have been unfortunately ruled inadmissible because of the “royal prerogative” or spending power in having to create an office of this sort. But we think it far preferable for the protection of leadership, for the good of ordinary grassroots native people across our country, that it be a single national ombudsman office, rather than the many offices established by each band.

This bill envisions 600-plus ombudsmen, and the cost to do that as well as the perception of it being not impartial would be a major problem or concern.

We've heard from many witnesses that the ability of a local ombudsman to remain independent and impartial is pretty severely restricted, almost impossible, you might add, in some communities with as few as 200 members. Imagine the dilemma of this individual appointed within that community. It's just not a fair position to be putting anyone in.

The authority of an ombudsman office derives from the very perception of impartiality, and that can be achieved only--a good many folk believe--by way of a regional or national office, subdivided on a regional basis.

So as I said, it has come directly from first nations people, this support for a national ombudsman, so we feel we're on very solid ground with this. I know there will be different ones among us in the House of Commons continuing to push this until it finally sees the light of day to the good of first nations people.

I know our Canadian Alliance Party has been on this for some time, and there have been contributions, additions. I confess that the members of the government side have indicated there's tentative support of this, and different members, without mentioning names, on this side as well. So I'm grateful for that.

Many individuals feel there's really no check and power, the appropriate kind of impartial check and power that I think, in any responsible government situation, is owed to chiefs and council. For that reason, they'd like to see this independent, impartial body available for complaints of a local nature.

º (1600)

As my colleague, Mr. Epp, mentioned last night, in that small percentage of cases across the country, the 4% where people are going to use or abuse the power of their office or their position, an ombudsman office would actually help in a magnificent way to deter some of those abuses of power, since leaders would know members could appeal to the ombudsman for a ruling.

We think such a thing as a five-year term for a maximum of two terms during good behaviour...a five-year term offers the ombudsman some protection, because it's spreading it beyond one election term; therefore, he retains impartiality in that particular office.

The possibility of removal by Parliament following a recommendation of removal from the standing committee is how we entertain he would be removed, if in fact that were required.

You'd have to have a provision for selecting an acting ombudsman, if the ombudsman were to be absent or incapacitated or suspended in some way. The ombudsman would be part of the public service, and his or her remuneration would be set by the government in council. He would have authority to hire staff--good, capable, competent people surrounding him to put some real investigative powers into this particular role--and to follow through with sanctions, strictures, and so on.

The ombudsman would attempt, initially, to mediate a settlement. If unsuccessful, the ombudsman would report the matter, along with an opinion and a recommendation, to the minister. The minister would attempt some kind of resolution. The ombudsman would be able to report matters unresolved by the minister to this very standing committee--that's real accountability as well, especially if there is an open-mindedness and a reasonable approach to the responsibilities or duties we have as members of this committee.

The ombudsman, after investigating complaints, would give notice to the particular first nation of changes it should make to its policies or practices. I suggest to you I don't believe this would be seen as intrusion or imposition. It would have so much to do with the selection of that individual. If the AFN is involved in a very considerable, significant, genuine way in terms of selecting that person, a first nations individual who has the regard and the respect of his peers, then I think we're setting ourselves up for a real win in terms of redress and addressing some of the concerns that come up from time to time.

This particular individual, then, in addition to his ability as a first nations ombudsman to go to the first nations and suggest this particular change of policy or practice so that it doesn't recur.... The first nation then would have 90 days to advise the ombudsman, a fellow first nations person, of the changes it will make. The ombudsman then would make a report to the minister--non-compliance if they're resisting it and refusing to go with the common-sense, reasonable approach he suggests to them--and then that would be referred to the standing committee, which reports to the House.

This kind of provision, dealing with the root causes, if you will, would prevent that same problem, whatever it was--a band member being denied housing, or health or post-secondary education, as may be the case--or head it off from happening again and again. Then there would be a yearly report to Parliament, with first nations communities cooperating with the ombudsman, providing the information, the assistance, the facilities as required.

When investigating matters related to, for example, the matter of leadership selection, the ombudsman might request advice or assistance from another impartial body in our country, the Chief Electoral Officer, which has a lot of wisdom residing there, a lot of expertise developed over the course of the years, and is seen to be a neutral, impartial body.

My heart beats strong and pumps hard when I think of what a wonderful thing this could be for first nations members all across Canada. We know there's a very high level of support indicated or signalled to us by first nations band councils across Canada, and we have the hope that if this one thing is taken up, seized upon, really got a hold of and followed through, it could be a very valuable thing. I think we would look back with pride as a committee, as individuals, with respect to it.

º (1605)

The Chair: Thank you, Mr. Vellacott.

Mr. Hubbard, for closing remarks.

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

I noticed in our debate on this again that the Canadian Alliance Party has certainly stuck to the topic and tried to address a very significant part of the bill dealing with complaints and redress. But I'm afraid that with some members it's like the old 45 rpm records--the needle is caught in the groove and we hear the same thing for ten minutes over and over and over. I hope, Mr. Chair, you could bring us back to discussing a very significant, as Mr. Vellacott said, part of an improved way that our government deals with first nations peoples.

Under the present system of the Indian Act, people living on reserve among first nations can only complain generally to the minister. Whether it be a complaint with how the chief and council operate or do certain things on reserve, or whether it be in terms of an election process, all of that arrives on the minister's desk for him to in some way adjudicate to see what is best for the people involved.

This clause 11 provides an opportunity for first nations peoples to look at their own systems of redressing complaints and grievances. So I think it is very significant, and I won't spend much time on it because we're moving next to G-4, which further explains the type of system that I hope first nations could establish in order to enable all their people to feel that they're justly treated and that they operate under a significant system of government operations whereby they have the basic human rights of being able to deal with complaints against leadership, complaints against employees of the band, or complaints in general in terms of what process the band might have.

Thank you, Mr. Chair.

The Chair: We're moving to the vote. Are we ready for the question? A recorded vote on G-3, page 97.

(Amendment agreed to: yeas 7, nays 3)

Mr. Yvan Loubier: Do we know why he said no?

º (1610)

Mr. Lawrence O'Brien (Labrador, Lib.): I know why I said yes.

The Chair: Order, please. Mr. O'Brien, we have the practice of not starting the discussions because we're probably going to be going all night. Some of you will be leaving and will be replaced, but a lot of us are staying, so please have consideration for those of us who are staying.

Now we'll go to G-4, Mr. Hubbard. Before I give you the floor or turn on the clock, Mr. Hubbard, you made a request that the chair bring the speakers back to the issue. I explained why I'm allowing all that flexibility. If you wish for me to bring every member to speak to the amendment on the table, I can do that, but you will live with the consequences.

Mr. Hubbard.

Mr. Charles Hubbard: I take your advice at present, Mr. Chair, but I would say that the amendments and the return of this bill to the House are generally right now in the hands of the opposition, in fact, two members of the minor opposition parties. With that, I would like to have some direction from the chair because G-4, dealing with page 9, is quite a lengthy amendment. Do you wish, Mr. Chair, that I read all of it?

The Chair: You have ten minutes, Mr. Hubbard, and you'll have another ten minutes for closing remarks.

Mr. Charles Hubbard: With that, I assume that most members are quite good readers. I'm sorry, in terms of our audience, that I can't read through all of it, and give my remarks in a matter of ten minutes.

But I would like to point out that the changes that are outlined here in lines 1 to 5 on page 9, and lines 9 to 15 on the same page, and continuing with the complaint against the member of council, might be explained as follows. It clarifies the redress person or body's jurisdiction to consider complaints in respect of individual band councillors, as well as employees and councillors as a whole. It further clarifies the redress persons or body of jurisdiction to hear complaints in respect of the unfair or improper application of the act, the regulations made under clause 32, or a band law made under clause 18, as we originally intended. Furthermore, under paragraphs 11(2)(a) and (b), it's consistent with the orders that accord with changes made to paragraphs 11(1)(a) and (b). And a new subclause ( 2.1) near the bottom of the page gives the band council discretion to authorize the redress person or body, to hear election appeals and removals from office. It furthermore gives the redress person or body the power to set aside the election of a person where a complaint has been upheld.

With that, Mr. Chair, I would probably move on to--

The Chair: We'll suspend until the video camera is turned off.

º (1613)

º (1614)

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, I'm going to move on to our experts here, our witnesses. Perhaps they could further explain this in terms of the few minutes I have available.

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

As clause 11 reads now, the jurisdiction of a redress body that's established by the council of the band is limited to breaches of codes by the council or an employee, and so the effect of this amendment would be to extend that not only to a breach of a code but to its unfair or improper application, and also it extends it to breaches of the act or regulations made under clause 32, or band laws made under clause 18. It is essentially clarifying that the redress body has jurisdiction over all areas in which the council might make laws or decisions, take action.

The second aspect of the amendment provides, as Mr. Hubbard said, that the redress body can, if the council so provides in a band law, hear appeals of leadership elections of the band. Right now, under clause 32 of the bill, those appeals would be heard by the minister, but this gives first nations an option to set up their own mechanism to hear election appeals.

º (1615)

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

The Chair: Monsieur Loubier.

[Translation]

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

This is a lengthy amendment. It is very long and very technical. I have the impression that this bill was slapped together so fast that a number of issues were omitted. There are a number of government amendments, but they are all technical amendments that provide clarification. They made a mistake; they strike a reference to a clause in the bill and come back with another one.

The government member who spoke before me said that it would be too long to explain and he invited his colleagues to read the amendment. I am reading the amendment and I am trying to understand what is being proposed in lines 1 to 5 on page 9 in clause 11, but I cannot understand the need for such an amendment or a clause like that. I have asked the question of the officials 20 times and I have still not got an answer. If you are proposing redress measures like the ones outlined in clause 11 and in amendment G-4 in such bureaucratic gibberish, it's probably because you have realized scientifically, through a survey or a very serious study, that there are generalized problems with the management of public funds among first nations. If you are talking about a plan for redress and requirements for budgets as well as limits for a redress plan, it is probably because you had incredible difficulty obtaining information, transparency and accountability from first nations. When you prepare a bill like C-7, where there is a complete section, in clauses 10 and 11, that deals with potential offences and redress plans in the event that objectives are not met in terms of financial management, deficits and debt, it is probably because a disastrous situation among first nations has been identified.

However, I am seeing more and more that the cosmetic amendments you are proposing in clauses 10 and 11, which are incomprehensible because they are too bureaucratic, are not warranted at all. Several statistics have been provided by the Auditor General, who told us that the problems with financial management did not lie with the first nations, but with the Department of Indian Affairs. And that is the major problem.

The Auditor General also stated, as regards accountability and the transparency of the process, in the chapter containing data on financial management and accountability, that 93% of first nations produced audit reports. That means that during the investigation, a very small minority of communities, 7%—perhaps you are not accustomed to that type of calculation, but it is simple: 100 minus 93 equals 7—had not produced the audit reports. I think that is a good average. The cosmetic amendment to clause 11, which is incomprehensible because it is too bureaucratic, gives us the impression that there are huge problems.

Managing paperwork is another topic that was addressed in the Auditor General of Canada's most recent report. She stated that requirements imposed on first nations were such that they had to fill out all kinds of weekly reports which, at the end of the year, totalled dozens if not hundreds of pages, and that when these reports were received at the Department of Indian Affairs, the department was so busy paying part-time co-managers $60,000 a year that they simply threw these reports out. Where is the management problem?

º (1620)

The Department of Indian Affairs is proposing ways of ensuring good management. All the serious criticism that we have heard up to now has been directed at the Department of Indian Affairs, and they are the ones now telling the first nations about management, recovery plans and deadlines. A 45-day deadline is established, and that deadline is used later as well.

You are giving them only 45 days to prepare a recovery plan, whereas the Department of Indian Affairs has been asked for several years to get one together and it still has not been done. Year after year, the Auditor General has asked you to develop a recovery plan. Where is this recovery plan? For several years, one has been asked for, and here you are giving the first nations just 45 days to come up with one.

Under this legislation, the department is both judge and jury and, moreover, this particular judge is incompetent when it comes to managing public money and paperwork. I find that really galling.

I am trying to understand the purpose of your amendment. Perhaps you need to go through this provision line by line and explain the aim of this amendment, as well as the aim of clause 11 as a whole, in view of what I have just said. What are you trying to correct that does not already depend on the competence of the managers and the first nations? What else do you want in here? Is the Department of Indian Affairs trying to justify its existence? In its conclusions, the Erasmus-Dussault Commission said repeatedly that the Department of Indian Affairs would one day be ancient history. I would have liked to see that happen more quickly, but the minister has decided not to undertake the huge change that the commission had proposed.

Up to this point, all that I have seen is a desire to complicate matters to guarantee that you will still have jobs in 20 or 30 years. The lawyers at the Department of Justice will also get an enormous amount of work. Bill C-7 is actually about job creation. The Canadian Bar Association, the Quebec Bar and the Indigenous Bar Association have all come to the same conclusion: the provisions in this bill often override the rights and provisions found in the Canadian Constitution and even in certain federal statutes. Federal labour legislation is one example. These provisions contravene those statutes. So there is the potential for legal challenges, and there will be further court cases, which will feather the nests of lawyers, the Department of Justice and probably the Department of Indian Affairs, which will be called on for its expertise in aboriginal issues and asked to provide documentation to the lawyers arguing against the first nations, who will have decided to assert their rights rather than having them trampled by a law that makes no sense in the 21^st century.

I would really like some explanation of this. I heard earlier what Mr. Johnson had to say and I am still not satisfied. I am not satisfied with the answers that I have been getting since the beginning because they are not real answers. If the chairman asks me to withdraw my comments on the grounds that they amount to personal criticism of the officials, I will tell him that this is not a personal criticism, but that we are here to get answers and that up to now the answers that I have been given are totally unsatisfactory.

I have never received the studies that I asked for. I have never been given the consultation documents that I asked for. I have never been given the investigation documents proving that things were going so badly that specific corrective measures were needed, along with a recovery plan that would have to be ready within 45 days. As a parliamentarian, I am not satisfied. If I were satisfied with this lack of answers, I would be irresponsible and I would be neglecting my duty to ensure that we have full information before adopting a clause or an amendment to a clause.

º (1625)

How many clauses are left? Are there about 40, Mr. Martin?

If the process of analysis must be...

[English]

The Chair: Thank you, Monsieur Loubier.

Ms. Neville.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you, Mr. Chair, I'll be very brief.

Let me speak first of all in support of the amendment. I think it's an important amendment. I must say I'm a little bewildered and surprised by the comments of my colleague across the way. We've heard much in the last days about the potential legal spinoffs from the legislation. Yet when there's an effort to clarify words and bring some clarity to an amendment, we're criticized, or the government is criticized. We hear from him that it's very difficult to read this amendment, and I find some problem in that.

What I'm most concerned about is the lack of understanding. We've heard much over the last many weeks from the communities. We've heard our colleagues across the way speak to the many recommendations they've been given by the communities to incorporate. Yet when the government responds to what it hears in its travels and in its hearings, such as the University of Victoria, or the AFN in British Columbia, or from my own province, the Opaskwayak First Nation, who have asked for just this kind of change and amendment, they're criticized.

You can't have it both ways. Either you want legal clarity, either you can read and understand, either you listen to the community and respond...but you can't have it both ways.

I think this is an important amendment. It ensures that individual band councillors can be held accountable, not just the councils. I think this is the kind of accountability that many have told me they're looking for. So I certainly will support this motion.

The Chair: Thank you, Ms. Neville.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, let me begin by saying that the parliamentary secretary to the Minister of Indian Affairs, Mr. Hubbard, should know that when he heckles and goads us, it only gives us energy, to tell you the truth. When he says he thinks our criticisms sound like a broken record, he's adding fuel--

The Chair: Mr. Martin, when Mr. Hubbard heckles or does whatever you say, he doesn't name you. I would appreciate the same courtesy from your side. Please continue.

Mr. Pat Martin: Fair enough.

When anyone at this table accuses us of sounding like a broken record when we remind the government of the shortcomings of this bill, the irony is that it's this bill, and the proposals in this bill, that is a broken record, because it's a continuation of the Indian Act approach to defining what first nations should and should not do. That's what's repetitious here. It's the same old stuff year after year after year.

I condemn this committee and this government for failing to think outside the box and to address the Indian Act with a new approach, and to address the relationship between first nations and the federal government with a new approach, and with new eyes, and with new vision. That's what's lacking here, Mr. Hubbard, speaking to the government. There's a lack of vision and an unwillingness to think outside the box.

In that context, I think this government and some members of this committee are way behind the actual general population of Canada. I sense, in my experience, there is a willingness to revisit the entire dismal mess of a relationship that we currently have with first nations people. So the willingness is there in the general public, and I believe if the government tested it, they would find that is true. But, yes, there's no reflection of that in what the government is attempting to do with this package of legislation. So the broken-record analogy is right back at you, I'm afraid, to the Liberals--right back at you is the broken record.

The complaint system we're contemplating in clause 11--and I'm happy to speak to it, and I'll limit my remarks as much as I can to dealing with the very clause we're supposed to be amending--should provide for a means for first nations to get redress for the unjust actions of the government and the Department of Indian Affairs. That's the type of redress mechanism we heard called for in testimony around the country.

So I appreciate that the previous speaker, in her intervention, actually cited examples of what we heard, because I think this is important, that we harken back to the actual witnesses we heard. But many of the witnesses who I heard were frustrated by the lack of a redress mechanism in terms of bringing grievances about the treatment by the government of first nations, not about members of the band to complain to the council.

About clause 11, another objection I have, and that this amendment fails to address, is that it still seeks to create a one-size-fits-all template, a cookie-cutter approach, of imposing some type of a redress mechanism, an ombudsman-type concept, and applying it to 633 diverse, sovereign, individual first nation communities. I don't know why people can't see what's wrong with that picture. It fails to recognize the incredible diversity among first nations. It fails to recognize the traditional and customary methodology that already exists to give satisfaction or redress to grievances brought forward, and it seeks to impose, again, a Eurocentric model, or our vision, perhaps a western European vision, of what some kind of a redress mechanism must look like. And it micromanages that right down to the detail of how the selection, the choice, the process, the application, the remedy, is applied.

It fails of course to give any kind idea of how that remedy might be enforced, what the sanctions might be if a remedy was ordered by a third-party arbitrator, or an ombudsman, or whoever it is. How in the hell do they enforce that if there's not...? If somebody doesn't buy into the process...if the two parties who are having a dispute and an impasse don't stipulate themselves to, and agree to, a third-party arbitrator, then how do you get the unwilling party to comply with the order, or the assignment, of benefits to one party or they other? They'd simply shrug their shoulders and walk away. There has to be a cooperative approach or this kind of a dispute resolution mechanism simply won't work.

I'm not impressed with the efforts made in dealing with clause 11 to improve the clause, and I don't think we did listen to witnesses, or give deference to the testimony given to the committee, adequately. I heard Chief Gilles O'Bomsawin of the Opaskwayak First Nation, when he told us that we have a policy, des politiques, on education, health.

º (1630)

They can appeal if they have doubt that they haven't been justified by their council. There are three persons, independent from the council, who come out to answer that appeal. It does not interfere with the council at all. It does its own work. So in that example, that chief was telling us they have a dispute resolution mechanism with an impartial...they chose to choose a three-person panel, independent from council. But I argue it's their choice. It's not up to this group. We don't have, and we shouldn't have, the legitimacy to impose our vision of how that process should work on 633 communities across the country.

[Applause]

Mr. Pat Martin: It's not our job.

When Grand Chief Stan Beardy was asked how the people in Treaty 9 dealt with these matters, he told the committee that at the present time, as much as possible, they try to use their own values and traditions in how they deal with disputes. They use what they call circles and elders for that purpose. Without going into the details of his testimony, essentially he was saying traditions and customs have been satisfactory in their community, and that's how they resolve things.

So to imply that because we haven't imposed a system on these communities no system exists is to embrace this vision that first nations exist as an empty box and that box stays empty until we fill it up. That's a crock, frankly. The box is full of long-functioning, historically relevant systems of governance.

It's ironic, of course, that we in the Parliament of Canada are insisting, in fact imposing, legislation that first nations have an ombudsman to investigate complaints against the government of the first nations, yet Parliament itself has not seen fit to give the people of Canada an ombudsman to deal with complaints against the federal government. They are trying to hold first nations to a higher standard than we ourselves are willing to impose. Every member of Parliament knows how valuable it would be to have such an officer to investigate powers--a truly impartial officer--so why is it the Minister of Indian Affairs has not created an ombudsman to which a first nation could bring complaints about the errors and omissions of his own department before he insists that chiefs and council provide this very same thing to their people?

Perhaps leading by example would be valuable here. If we're so anxious to embrace the concept of an ombudsman, perhaps the Minister of Indian Affairs should have an ombudsman so grievances could come forward instead of ending up in the courts all the time.

Also, it worries me that there seems to be a fundamental misunderstanding about what an ombudsman is and what authorities and powers are afforded to an ombudsman. In a labour relations context, the powers of an arbitrator are clearly itemized and listed in legislation. We don't see where the powers of the ombudsman or the power of law for an ombudsman to act and operate are going to be contemplated here. It's a grey area. Ultimately, when there's ambiguity, the authority falls to the minister again. It seems to be the default position of this entire proposed act that in the case of any dispute or ambiguity, the power will reside with the minister.

We had one witness tell the committee--if we're talking about testimony again--that an ombudsman in Bill C-7 was somewhat illusory to the extent that once a decision is made, there is no mechanism to make it enforceable. If the band council does not act on an order from the person in question, a state of limbo arises--not a state of satisfaction, but a state of confusion. It was recommended to this committee, and maybe some of you will remember--although I know testimony from witnesses has never found its way into the bill--that the bill should provide a provision that, as in criminal law, would ensure the effect of the measure and the entire mechanism does not become null and void and an illusory remedy, giving false hope to people that they in fact will have satisfaction.

But the fact is, Mr. Chairman, by the witnesses we observed and by the record we kept of them, their opinion is that no ombudsman--

º (1635)

The Chair: Thank you, Mr. Martin.

Mr. Vellacott, before you start, we'll stop the clock.

I'd like to make a comment about the applause. The committees of the House of Commons are an extension of the House. Applause is not allowed; it is not permitted in the House. We would urge you, please, to cooperate with the practice of committee work on Parliament Hill and not applaud with respect to the members. They're entitled to speak and to be heard.

[Applause]

The Chair: I suspect I am being tested again today. You may continue to do that, I suppose. I will not ask security to clear the room, but I urge you to respect the dignity of this room and the dignity of the committee, which is an extension of the House of Commons. We would appreciate that very much.

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

I want to get right to the comments here, but with due respect to what you say, it's often remarked as well that committees are masters of their own destiny. So I'm using my remarks at this point to comment that we do not exactly parallel the House in all respects, as you know. That's fine. I hear what you're saying. We don't want disruption; we don't want noise and distraction here.

With respect to calls of meetings on the same day, when in the House, after having concluded at 4:35 in the morning, we would in fact have had to go to the next day if this were the House of Commons.

There are a number of things in terms of the House that we do not follow. I concede that if we want to go with those practices, and we concur as a committee that this is the case...but I would not be of the view that we in all manner and all method mirror and totally reflect what goes on in the House.

º (1640)

The Chair: Mr. Vellacott, if you disagree with the comments I made, you can explain it to Marleau and Montpetit, who are the experts who wrote the rule books we depend on.

Mr. Maurice Vellacott: I understand, and there's obviously wider latitude for a chair in a committee than for the Speaker of the House of Commons, and I think we're both well aware of that.

With respect to this particular amendment with regard to the ombudsman, for me, there's almost an overwhelming sense of sadness, which would probably be the most tangible way to put it. It's almost as if this mechanism we have in Bill C-7--and people may already see it and know it--is almost designed to fail. It's as if there was something deliberately set into the bill that we know will not work, that is designed to fail.

We talked with the leadership of a first nations community in B.C., for example. They are small, struggling communities of a couple of dozen people, under 100 in many cases. How are you possibly going to have an ombudsman? In fact, by their own admission in some cases, these are not even entire first nations. These are first nations communities. They have been chunked together in a somewhat artificial manner.

I would ask this question. Where else in Canada do we have a community that is having the office of an ombudsman to address all of the kinds of things that are considered and contemplated, in particular, in this amendment G-4? I would suggest that nowhere, to my knowledge, do we have such a thing. So now we're contemplating putting an ombudsman in place--with what resources, with what budget?--to provide the redress mechanism for 36 people, for 24, for under 100 people, for under 200. So I have this great sense that this is absolutely designed to fail. It is almost the impression of being set up to fail.

I think our departmental officials have intelligent minds, at least in terms of the technical aspects that they have related and conveyed to us so far. So I'd have to grant that the department officials have worked in this area for many years, and some have spent much of their lifetime working in this particular area. I believe a number of them would in fact have a heart for trying to improve things and they would have frustrations as they attempt different things, but they don't get the success or the process happening as they choose.

And here we have a particular thing inserted in the bill designed to fail. It leaves me wondering, Mr. Chair, at that point, whether in fact we have set into this bill a whole lot of other things. I would suggest that in view of this, perhaps we have a lot of other things in the bill with a deliberate intent to fail, and to what end, I don't know. Perhaps it's designed to embarrass the first nations people, and so the department can wag their finger and say, “No, they blew it, they failed”.

This is a prima facie case of inserting something into a bill that is designed to fail.

I don't know why we don't get at this in a fairly straightforward manner and get the royal consent so you can set up an office of a national ombudsman, where you have that significant input in terms of the selection of that person from first nations communities all across Canada, from my own province, from the FSIN, from the AFN, from the various regional bodies and so on. This individual will have the regard of his peers. He will be culturally sensitive to the customs and traditions and so on and he will be able to address the various grievances that would come forward.

I don't know why we don't get right at that. As I cited here, our Canadian Alliance members, and Brian Pallister's office in particular, conducted a poll, a survey, on a national ombudsman's office with all band council offices. And 90% of decided respondents supported that creation of a national ombudsman's office.

Here we persist in this obstinacy of trying to do something cosmetic and patting ourselves on the back, or perhaps putting the knife in the back of someone else. I mean, God forbid, it appears like it's set up to fail. For the life of me, I cannot understand why people with a heart, wanting to do something for first nations, to work with them, to cooperate, to collaborate with them...why we would not do something far better than the disastrous attempt that we find embodied in this particular part of Bill C-7.

º (1645)

I think I've made my objection to this very plain and very clear. In fact, we need an impartial, independent one selected by AFN so that these things can be addressed--the grievances, the concerns, the issues you hear come up from time to time by good people across our country, first nations individuals.

Once again I express my utter dismay at this particular part of the bill. I'm glad I'm able to get this on the record. I would be able to sleep much better at night if there were some movement to have a national ombudsman as a result of these comments here today. I will leave it at that.

I ask for a recorded vote on the absolute folly we have in this part of the bill with respect to an ombudsman.

The Chair: Thank you, Mr. Vellacott. I urge you to ask again for a recorded vote when I ask if we are ready for the question.

Mr. Hubbard is next for closing remarks.

Mr. Charles Hubbard: In their debate on this amendment, I'm a little concerned because I haven't yet found in any of the writing to date the word “ombudsman”. Apparently it is in people's minds and there will be amendments coming that may discuss that, but going through our booklet up to amendment G-4, which we are presently considering, there's no mention of the word “ombudsman”. There is mention of a redress mechanism, which is the highlight in terms of complaints under clause 11.

On our amendment G-3, the member just finished speaking about smaller bands, smaller first nations. Our amendment would authorize an impartial person or body, which would enable a first nation to work with other first nations to make a collective system to which various people of different bands or first nations could apply for redress. I'd like to point out that nearly all of this legislation is enabling legislation. It's not legislation that attempts to state what method a first nation has to use; it enables them.

We talk about amendments. For the record, as Ms. Neville has indicated, this bill came to the House last June. It was brought back again in October. Our own committee travelled the country. We spent four weeks going from coast to coast attempting to see people's reaction to the legislation and get their input on it. The government put in nearly 40 amendments after they listened to people across Canada. The opposition parties have put in more than 150 amendments. The process we're going through today is to look at these amendments one by one. It's a long process.

But I am disturbed by the severe thoughts that the member of the Canadian Alliance has about the intent. When this goes back after first reading to Parliament at report stage, I hope that not one of the more than 300 legislators we have in the House will see this as something that's trying to do nothing else. The main objective is to improve the old Indian Act of 1876.

People have lived under that act for a long time. There have been a few amendments. We would like to have discussion on how we can improve Bill C-7. The blues will indicate what we talked about on each amendment. History will define whether or not we were constructive in our approach to bringing back to the House a better system, a better bill that we can lay at the Speaker's table. Then it will go forward to debate in the great House of Commons and eventually in the Senate, where the bill can be brought to as great perfection as possible.

With that, Mr. Chair, I'll rest my case. Hopefully we can move forward with amendment G-4.

º (1650)

The Chair: Now we will go to a recorded vote.

(Amendment agreed to: yeas 7; nays 3)

The Chair: Since amendment G-4 has carried, NDP-28 on page 102 cannot be put.

Mr. Pat Martin: Can I have an explanation on that, Mr. Chairman?

The Chair: Yes, Mr. Martin. Our legislative clerk will explain that to you.

Mr. Jeffrey LeBlanc (Procedural Clerk): NDP-28 proposes to change subclause 11(2), which has already been amended by G-4, the amendment that just carried. Since you can't amend the same lines twice, NDP-28 can't be put.

The Chair: Is that acceptable, Mr. Martin?

Mr. Pat Martin: Yes. I don't like it, but I understand.

The Chair: We are at CA-29, which is ruled out of order without CA-28, which did not pass. As a matter of fact, it was not introduced.

Now we will go to CA-30 on page 103.

Mr. Vellacott.

Mr. Maurice Vellacott: I'll speak to this with some reluctance, because we're trying to patch up a pretty leaky ship with this one. But I guess one gives it their best and goes for what they can get on occasion here.

On this part, I think I made it very plain that I think 600-plus individual ombudsmen across the band is a problem. In fact, some would suggest, stronger than that, it might be a disaster in the making. But there's one way we think we can, in very small measure, mitigate something here.

So we're amending Bill C-7 in clause 11 by replacing line 17 on page 9 to say:

shall, within 45 days after it is made, be provided in writing to the complainant.

This tries to bring some closure and time limitation so it doesn't drag out indefinitely, with no end. Hopefully there will be support in some small way, maybe even in an infinitesimal way, to mitigate and make a bit of a corrective action on something here. So a determination made under this section, this redress area, shall, within 45 days after it's made, be provided in writing to the complainant. So this amendment has a time limit for the resolution of the complaints process so it doesn't drag on indefinitely.

I'm on the record very plainly stating that I have a problem with this section in the act in its present form. I think anybody who is an advocate of justice and fairness and so on would have to say--hopefully even Mr. Martin and Mr. Loubier--that if you're going to have something, you have to have it so that finally and eventually there is some resolution of the complaint process. It should not drag on indefinitely. Justice denied is also just by way of the indefinite dragging on of things too.

A time limit is especially needed in cases where the harm is experienced by an individual and increases with the passage of time. So we must not let that go on. If a first nations individual has been unjustly treated and their life possibly even hangs in the balance, the process should not be allowed to just kind of drag on indefinitely.

Sometimes the passage of time can make redress very difficult, even impossible. The longer time has elapsed...then there are people who may be giving witness or testimony on the situation. They're fast off life or they've moved on, or whatever, and you can't collect this altogether again. So even for reasons of getting a fair hearing, so that there's an adequate address by way of the testimony that's brought to bear, you obviously need these people to still be around. So a 45-day time period is what we feel might be adequate, or at least a proposal on that.

I'm not going to use up my 10 minutes. I just want to make plain the intent of this. Hopefully, in this very infinitesimal way, we will be able to mitigate something in this bill.

Thank you.

º (1655)

The Chair: Thank you, Mr. Vellacott.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, despite the fact that Mr. Vellacott may deserve praise for presenting this amendment, which clarifies clause 11, we are still back at square one. We may clarify things and set a deadline in this clause 11, but the problem remains the same, regardless of the time limit that is set. This bill has the wrong basis, one not in keeping with what the aboriginal nations want and what their representatives have told us and written to us in the many briefs they presented on Bill C-7.

I am sure that Mr. Vellacott did not do this on purpose. I know that he is a proponent of clarity, and that we must set the timelines clearly. More often than not, this is a quality, but in this case, imposing anything at all on the first nations is a process that is fundamentally flawed. This is not how we should be proceeding. We should not be imposing time limits and rules on the first nations people, when they themselves have specific rules in keeping with their identity, their ways, which are often traditional, and with the desire of people in their communities to function in their own way. It is difficult for us to allege that what we are proposing, which could be totally different from their practice, is better than what they are doing. That is not the right way to proceed.

Mr. Vellacott, your amendment may be good in terms of clarity, because there are a number of ambiguous points in this bill, but I must disagree with you about the principle of imposing rules on the first nations. You have put forward amendments to other clauses to provide for a sort of insurance policy to avoid all the problems that would result from this bill. That is very much to your credit, and we supported those amendments of yours. I do have a problem with this one, however, because it imposes a deadline on the first nations that they probably do not want.

The government member who spoke before you, Mr. Vellacott, and who is seated opposite me, was saying that Bill C-7 was going to become enabling legislation, and that no one was being forced to do anything at all and that the clauses in the bill were there to help the first nations. I will not name this individual so as not to cause any trouble. We are not supposed to make any personal attacks, but I must say that I doubt the truthfulness of what you said, sir.

I was leafing through the bill and looking at some of its clauses while I was listening to you speak. For example, there is the word “requiring” in subclause 6(2). This word does not mean that the first nations may do something, but rather that they are forced to do something. It means that someone is being forced to conform in a certain way. Subclause 6(2) of the bill talks about requiring the first nations to do something. So, contrary to what you were saying, sir, we are forcing the first nations to fit into a certain mould.

The word “requiring” appears again in subclause 6(3). The first nations are required to... The first nations must...

» (1700)

You dare to say that we are not forcing anyone to do anything, and yet we need only read—unless we do not read in the same way—to see all the obligations and constraints that we are imposing on the aboriginal nations.

It is the same thing again in clause 7: the word “must” is used again. In clause 10, the bill provides that first nations must prepare a recovery plan and do so within 45 days. But no, we're not forcing anyone to do anything at all. We are going to help the aboriginal nations. We should not take people for fools. We know how to read in French and in English, and we can see that this is not enabling legislation that will be helpful to the first nations.

First of all, it will not help them, because they do not want help. Have you ever seen someone who does not want help? There is a limit. The aboriginal nations do not want this bill, and it makes all sorts of requirements of them. You should stop trying to pull the wool over people's eyes here.

Let us come back to clause 11 and the amendment put forward by Mr. Vellacott. I have a great deal of regard for you, Mr. Vellacott. The fact that I do not support your amendment takes nothing away from my esteem and respect for you, but my deep convictions tell me that we should not be adding any additional constraints regarding deadlines and technical matters to this bill which already places so many restrictions on the first nations.

I remember that we had a debate to determine whether we should require—there is that word again—the aboriginal nations to hold a public meeting of the band council once or twice a year. Someone even suggested that such meetings be held four times a year. We would need only take a hat and put in pieces of paper numbered 1 to 10 and draw one of them. By chance, the number 7 or 8 might come up.

There is nothing that justifies this, and there is nothing that justifies the fact that we are dictating to the first nations how to conduct their affairs even though it is acknowledged in the preamble, which, unfortunately, does not have the force of law, that we are in the process of establishing a third order of government. Establishing this third order of government means allowing it to govern. You cannot establish a government and then make all the decisions for it. We cannot establish a third order of government and govern for it, otherwise, at some point it becomes a sham, a decoy, and we will be no further ahead than we are today. We will actually be behind where we are today.

Superficially this bill may seem attractive in some regards, and superficially, it seems to offer self-government and the inherent right to self-government, but beneath this exterior, we are forcing the first nations to fit into a mould of our choosing.

Yesterday an aboriginal chief was telling me that a parallel could be drawn with the Gradual Civilization Act, which was passed around 1860, and Bill C-7, which the government is trying to impose in 2003. He was telling me that C-7 was an act for the gradual civilization of the British colonial system. He has a point. We are replacing one system of domination with a different, more modern one, but it remains a model of domination. If you replace one black dog with a different black dog, it is still a black dog, even though it is not the same dog. He has a point. Consider the fact that the act was passed around 1860, put it in front of a mirror, give the mirror a somewhat more modern look, and what you see, quite simply, is Bill C-7.

This is really quite a brilliant analogy that was drawn by this aboriginal chief yesterday. In fact, I would like to thank him for it, because it opened my eyes to what Bill C-7 means to the government and to Robert Nault, the Minister of Indian Affairs and Northern Development. I think that progressive people in Canada were disappointed when they analyzed this bill. The champions of rights and liberties and of the international Charter of Human Rights are very disappointed that the government is seeking to continue to mete out the same treatment to members of the first nations. For even slightly progressive individuals—and that is true of most people in this country—this bill is the great disappointment of these early years of the century.

» (1705)

At the end of the last century, with the Erasmus-Dussault report, it appeared that a new era was upon us, an era full of hope and a promising future for young aboriginal people.

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Dromisky.

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

I have to make some general comments regarding this amendment. I think it is a beneficial amendment, there's no doubt about it. It's extremely important that the number of days be provided to the person who has complained. Once a person complains, which takes a tremendous amount of courage, there must be a point of termination. That point could be when that written response is presented.

If we do not have a time clause, that might never happen. It's quite possible even here in Parliament. I tell my constituents, “Yes, you told me this and this, but I want it in writing”, because once it's in writing it becomes a very important weapon. We find once it's in writing you get a response. Sometimes the response comes within a matter of days, sometimes weeks, sometimes months, sometimes never. I think it's extremely important that something of this nature be placed as an amendment to the clause we are dealing with.

I definitely will support it.

The Chair: Thank you, Mr. Dromisky.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I will try to address my remarks directly to amendment CA-30, the Canadian Alliance amendment to clause 11. In its context, we have to ask ourselves if we truly embrace the notion of self-governance. If we truly acknowledge the constitutionally recognized right to self-government, and if we truly recognize that Canada is stipulated by the United Nations convention on the right to self-determination of indigenous people, and if we respect the concept of the sovereignty of an independent nation, then where does one government get the right to dictate to another government the specific details of a code of practice, whether it is a financial administration code or, in this case, the minute details of a dispute resolution mechanism? It simply defies logic. It contradicts logic that this group of non-aboriginal, middle class, and largely white men in suits is going to decide not only that this cookie-cutter template approach to a dispute resolutions mechanism will be applied to 633 independent first nations, but also that we will even micromanage their lives, to the point that we will even say that if such an appeal is made in a dispute, a letter must follow within 45 days, etc. It's none of our business. It's not our role, and it shouldn't be our role to micromanage other people's lives to that degree.

We should have taken guidance from the witnesses who came before the committee, especially as the promise was made that because we were getting this bill at first reading there would be greater than usual flexibility in the crafting of the bill, that we would take it at first reading as a work in progress, and that we would then go and canvass the countryside and ask people, “What do you think we should do to amend the Indian Act?” Then we would take what they told us and put it into the bill, which would become the context of Bill C-7. Consultation must include accommodation of what we've heard, or no consultation has really taken place. That's the concept we failed to embrace and recognize.

When we do hear specific reference to clause 11 of the bill.... For instance, Grand Chief Charles Fox, the head of the Chiefs of Ontario, said that clause 7 of the bill requires a first nation to pass a local law establishing an appeals or redress process. There's no argument about the value of a reasonable dispute resolution mechanism at the first nations level, but the problem is the way Canada is proceeding. A government with constitutionally recognized inherent authority cannot be told by another government to pass a certain kind of law. That should have put the brakes on it right then and there; we should have realized that the way to put a dispute resolution mechanism in place is not for one government to impose it on another government. The way to do it is through bilateral, nation-to-nation negotiations, and then to come to agreement perhaps on what a standardized dispute resolution mechanism would look like, which would become the national standard across the country. But this approach flies in the face of that kind of collaborative or cooperative approach.

We keep hearing members on the government side state for the record over and over again that this is supposed to be enabling legislation, but it's actually anything but enabling legislation. It is prescriptive legislation, defining and requiring specific details to be put in place under threat of punishment. There is nothing enabling about it. Enabling legislation would be to put in place a set of standards that people could opt into if they felt or recognized a need, or if they desired some assistance in developing their administrative capacity. This is the inverse of enabling legislation.

If it's supposed to be enabling legislation, why doesn't it enable the key governance recommendations of the Royal Commission on Aboriginal Peoples? Why didn't it flip open the chapter regarding dispute resolution mechanisms in the RCAP report and simply implement that?

» (1710)

We should need to look no further than the Royal Commission on Aboriginal Peoples for inspiration regarding the structure of a satisfactory dispute resolutions mechanism, because the research was done. A true consultation took place there--$57 million worth of true consultation took place, now enshrined in volumes gathering dust on MPs' bookshelves. If this were enabling legislation, perhaps we should be dealing with an aboriginal nations recognition act, and with core aboriginal jurisdictions, including an aboriginal justice system. These are all natural extensions of the consultations that took place and have been brought to my attention as desirable things that we should be dealing with in the context of dispute resolution.

Again, the creation of a complaints system sounds like something that one might want in an office or a corporate environment. Putting a corporate structure onto a traditional culture is a recipe for failure. In any kind of a dispute resolution mechanism, there has to be buy-in; there has to be a cultural match, to use the terminology of Stephen Cornell, the author of the Harvard study who presented before the committee. The cultural match is so critical because if you don't have that match with traditions and cultures and customs, you're not going to have buy-in and legitimacy of the structure. You can't have a dispute resolution mechanism without the cooperation of the two parties involved who have reached an impasse.

In the absence of any enforcement mechanism or the power of law to enforce, you simply have created a state of limbo or frustration. That's the point we made earlier. In other environments, the powers of an arbitrator, for instance, are clearly itemized. Those powers of the arbitrator might include the rule of courts to enforce a ruling of an arbitrator, but no such thing is contemplated in the dispute resolution mechanism we're dealing with today.

But putting in a mandatory time guideline, or having a rigid timeframe within which the written response must be made, is as prescriptive as it gets. If we allowed this amendment, it would say that within 45 days after the complaint is made, written response shall be made to the complainant. What happens if it goes to 46 days? What happens if it goes to the ridiculous extreme? What kind of sweeping, broad, punitive measures will come into play and be triggered by exceeding the 45 days and going to 46 days? I don't know, and I really don't understand. But I'm concerned that any time we draw a line in the sand, somebody's going to be so close to it that it would be completely unfair to use the issue of timeliness to invoke punitive measures. That's why timeliness is forgiven in a lot of legislation, or why an arbitrator can relieve timeliness as an excuse. So if you fail to do something within this rigid 45-day timeframe, you don't automatically trigger some type of punitive damage. So this is my complaint and my general grievance with this idea.

We heard from Roger Obonsawin, who made a presentation to this standing committee. He made very thoughtful remarks regarding this particular situation in clause 11. For one thing, he recommended that accountability issues be addressed through a standard of practice to be established by first nations governance, and he also called for a parliamentary ombudsman. If there is going to be talk of redress and dispute resolution mechanisms, there should be a parliamentary ombudsman to receive complaints against Indian Affairs and other agencies for their dealings with first nations, which is one of the things recommended by the report of the Special Committee on Indian Self-Government, the Penner-Jamieson report. Chief Roberta Jamieson was in the audience until 4:30 last night, and she would recognize this particular recommendation. We saw her again today at a gathering at the Marriott Hotel.

» (1715)

This is an idea that has legs. If in fact we were interested in implementing the recommendations we garnered or from the submissions made to this committee, this is the kind of direction we'd be going in, instead of the $110 million a year that we'll be spending.

The Chair: Thank you, Mr. Martin.

Mr. Vellacott.

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

Just in the interest of making some progress on this issue, I'm not going to use my time. I'll just ask if we could please go directly to a recorded vote on this issue.

The Chair: Thank you, Mr. Vellacott.

A recorded vote on amendment CA-30, on page 103.

(Amendment agreed to: yeas 9; nays 2)

The Chair: We now go to amendment CA-31, on page 104.

Mr. Vellacott.

Mr. Maurice Vellacott: Mr. Chair, I just want to read a quick synopsis and rationale for this particular amendment. Again, my dismay and concern with having 600-plus ombudsmen across the country is on the record. I would expect that a national ombudsman--who would probably be a first nations person selected with major input from AFN and the other regional bodies across our country--would choose to do justice to the kind of role that I know we as a party, and others on the opposition and the government side, have talked about. Of the individuals from the leadership of bands across the country who responded, 90% indicated that they want a national ombudsman in the way that we have described it as well. But in trying to mitigate the problem I mentioned in clause 11, it would be amended by replacing lines 26 and 27 on page 9 with the following:

applies in respect of any decision referred to in paragraph 1(b), including a decision from which a code provides a right of appeal, in which case the band law applies after the day on which the appeal process is concluded or after the day that is 45 days after the appeal process is initiated, whichever is earlier.

The use of 45 days mirrors the fact that there are other points in the bill where that particular number is also used, which I assume is for good and logical reasons, as well as being a reasonable time period.

The problem with subclause 11(5) in the current bill is that the appeal process provided for in the code written by the council may not be impartial. The council against which the complaint is made may have set up its own internal appeal process in which the adjudication may not be truly independent. So this amendment ensures that 45 days after the launching of an appeal, the ombudsman may then be approached under the particular council-defined process. They have recourse to make an approach to him.

So this is my explanation. I think it stands on its merits, and I will leave the floor to others to respond to or address it as they choose. I will then not use my last ten minutes, but I'll just ask that we have a recorded vote as well.

» (1720)

The Chair: No one has indicated that they wish to speak.

(Amendment negatived: nays 9, yeas 1)

The Chair: We now go to amendment G-5, on page 105.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, again looking at clause 11 on page 9, we're dealing with line 27. We're suggesting making a change to that line so that it would read as follows:

which right of appeal is provided by a code, regulations made under section 32, a land code adopted under the First Nations Land Management Act or a first nations law enacted under that Act.

Perhaps I'll ask our experts to briefly mention this in terms of the Land Management Act and how it should fall under section 11.

Mr. Paul Salembier: Certainly.

The intention of subclause 11(5) is to avoid having a surplus of redress mechanisms. So, for example, if an election code were to set up its own specific procedure for election appeals, then we would want that appeal to govern. That's how subclause 11(5) reads at the moment. The amendment also expands the exception in subclause 11(5), to take into account, for example, election appeals under leadership selection regulations that would be made under section 32. And it would provide that if there were an appeal procedure under a land code adopted under the First Nations Land Management Act, that appeal procedure would apply--and not the redress procedure set out in section 11 of this act.

» (1725)

Mr. Charles Hubbard: Mr. Chair, as the First Nations Land Management Act has been growing, maybe our witnesses could indicate how many first nations are working under that system at present.

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): In addition to the original 14 first nations who put that legislative proposal forward, roughly nine of whom are now in or close to operating under it--having developed their codes and the rest of it--an additional number has been added. So we now have a full 30 first nations moving through that process, which is normally a joint two-year process of code development and support between the department and the First Nations Lands Advisory Board. The government's standing commitment is now to have 30 in that process at any point in time, until we have an opportunity to deal with a large number of first nations who are interested in getting in.

Mr. Charles Hubbard: With that, Mr. Chair, it's rewarding to see that first nations are gradually--and probably not as quickly as some people would like to see--working towards a direct land management act, where they look after the land directly by themselves and work with the minister to improve their first nations communities.

So with that, I'd rest our case for proposed amendment G-5.

The Chair: Mr. Loubier.

[Translation]

Mr. Yvan Loubier: I'd like to come back to the problem of the answers given by witnesses, Mr. Chairman. The process in amendment G-5 was explained and we were told that 14 first nations already have this system and submitted this legislation wording to satisfy their own requirements. Therefore, 14 first nations already have this type of code.

You also said, Mr. Johnson, that 30 first nations were moving towards adopting a similar process or code. Therefore, there are a total of 44 first nations: 14 already have this process and 30 others are in the process of doing so and will soon be adopting something similar to the provisions in clause 11 and amendment G-5.

You might say that 44 first nations out of more than 600 in Canada do not represent a large percentage. If this code and this process are acceptable to 44 first nations out of 600, that does not necessarily mean that all of the others will find it acceptable. That is one of the problems with this bill. It is assumed that if a small minority agrees or feels that it is a good idea, then the rest will have to simply go along with it.

However, it may well be that the 560 first nations that have not yet adopted this way of doing things or who are not about to begin a process that would lead to its implementation might not want any part of it. Could that be the case? I think so. Why? Because each first nation operates in a different way. Each has a different approach, different customs, different ways of seeing things, of managing and devising some type of democratic code.

I can't understand how you could conclude that, since 44 first nations seemed to be moving towards what is described in clause 11 and in amendment G-5, the 560 others will do the same thing. That is indeed your conclusion. If you adopt the provisions of clause 11 of Bill C-7 with the so-called improvements in amendment G-5, you will be imposing this procedure on all first nations that do not yet have the code. This will be imposed on 560 first nations without asking them whether or not they share your point of view.

That is the result of the consultation that was undertaken by you in order to come up with Bill C-7. You might think that you are entitled to impose these measures because it is for their own good. That is how my Liberal colleague put it. We only want what is good for the first nations, he said. In French, the word “good” can have two meanings. You might be looking out for someone's well-being or their welfare, as you say in English, or you want someone's goods, meaning that you would like to take possession of their buildings, their land, their wealth, etc. That is wanting someone's goods.

Over the past 130 years, we have demonstrated that we wanted the first nations' goods. They were moved, their land was taken, as well as what was under the land and their wealth. We were after their resources. I think this will continue with this bill. It was felt that since some first nations operated in this way, it must be a good thing, and those who have not yet devised such a procedure would be made to do so.

As my colleague Mr. Martin and myself have been stating over and over again for a number of days, as comprehensive and as binding as your bill may appear to be, the great majority of first nations communities will simply not implement it. They will put it on a shelf, just as you have shelved the Erasmus-Dussault report when you should have done something with it.

» (1730)

If most of the first nations do not implement the provisions of Bill C-7, you will be stuck with the bill and you will lose your credibility. The federal government will lose all credibility.

The Chair: Mr. Loubier, when you say that they shelved it, are you referring to our employees who are here to help us?

Mr. Yvan Loubier: No, I mean Liberals.

The Chair: It is because you were looking in their direction.

Mr. Yvan Loubier: I am not looking at you because I do not feel like looking at you. I feel like looking at the audience.

The Chair: I appreciate that.

Mr. Yvan Loubier: It is not my fault if the witness is in front of the audience.

The Chair: I would not want our witness to be subject to...

Mr. Yvan Loubier: I am not even paying attention to that, Mr. Chairman. I am looking at the people who are the hardest hit by this bill, and they are the representatives of the first nations who are there. I'm speaking to them, Mr. Chairman. I am speaking about you and your Liberal colleagues, about what you are trying to do. I am looking right through the witness, as if he were transparent. In any case, I did not get any answer.

Thus, you want to impose things through Bill C-7, but when you want to impose too much... For 130 years a law has been imposed on us, a law we did not want and which led to the worst, or almost the worst, human catastrophe in North America. This time, given that there is no constraint on not applying the provisions of Bill C-7, you will have to deal with this bill. Yes, this bill might be passed. You are irresponsible to the point of adopting anything at all so long as your minister tells you that it is good and your Prime Minister tells you that this is the legacy he wants to leave behind. In 1969, as Minister of Aboriginal Affairs, he decided to go ahead with his White Paper. You are marching in step like good soldiers without asking any questions. By doing that, you are not showing any responsibility. The first nations will not apply this bill in their communities.

What are you going to do? Seven hundred thousand persons are affected by this right now. Do you want to jail them? You will be creating jobs because prisons will have to be built to lock up 700,000 persons just like that.

Moreover, the Canadian Bar Association, the Quebec Bar Association and the Indigenous Bar Association are wondering about this. What will happen if people do not want this bill and do not apply it? There is no provision to oblige them to do so, unless, unless, unless...

Mr. Chairman, we have witnessed many other horror stories in the Department of Indian Affairs. Could the Department of Indian Affairs, eventually, through its representatives, go to a community and threaten its members, for instance by telling them that if they do not comply and apply the provisions of Bill C-7, their subsidies will be cut or allocated for other purposes than those that community members want? Maybe the department could do that. Perhaps its representatives will make surprise visits in schools as they usually do. They will open the door and say that they are cutting the budget proportionally to the number of absent students. Maybe they will resort to such measures. They might even hire more co-managers and pay them $60,000 a year to work part-time, managing funds which should normally be allocated to the first nations. Perhaps they will do that. Or else, they might expend a great deal of energy in compiling an unbelievable legal file to fight the first nations. This is, perhaps, what they might do. Or would they then hire more police officers to surround aboriginal territories and oblige community members and band councils, one by one, to submit to Bill C-7. Perhaps that is what it will come to.

When we consider what we need in the 21^st century and the open-mindedness we are called upon to display, when we look at the large number of court decisions, which were all in favour of the rights of first nations, including their inherent right to self-government, and then we see the futile nature of this bill for the first nations, we may well ask how far you can go to shove this bill down the throat of the first nations and to prove that you are right. There are sad stories to tell in human history. People thought they were right and imposed so many things to prove their point that it finally resulted in human catastrophes.

» (1735)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

Mr. Pat Martin: Mr. Chair, as much as I regret even entering into the debate on amendments to a bill that is overwhelmingly rejected by first nations right across the country, I find myself, in a qualified way, with no option but to continue to speak against the bill and to continue to try to seek amendments to minimize some of what we see to be the destructive elements of the bill, or the most irritating elements of the bill as it pertains to the lives of the first nations.

On dealing with clause 11, we now have an amendment that the government itself moved, and it is not based, I should add, on input from witnesses or on consultation with first nations communities, but it is seemingly unilaterally addressing it. The way I read this bill is this. No sooner is the concept of a dispute resolution or a complaints and redress system put in place in clause 11--whether or not you call it an ombudsman or a structure of that type--than we start to outline places where that dispute mechanism doesn't apply and can't go. It's natural to wonder why and to question what the logic is here, and where the reference to land code comes in, or why the officials feel it is necessary to include land code or to delete references to this land code adopted under the First Nations Land Management Act.

We've had no witnesses mentioning this or raising it as a problem. And when we've asked for legal opinions in the past on any of the government-side initiatives we've been told that we're not entitled to legal opinions, that they don't owe us those legal opinions. In fact, their customer is the minister, and there's a confidentiality in the advice given between the legal experts who work for the department and the minister.

I could start by saying that I object to the fact that information is being withheld from me as a committee member, and I find it difficult to even do my job properly, in fact, when I'm not given the same base level of information the government side is given.

We note that in other standing committees of the House of Commons recently the Liberal members of the committee insisted that they be given all the documentation and all the legal opinions that the department officials had regarding the proposed Public Service Modernization Act, Bill C-25. In fact, on the government side, the Liberal members of that committee refused to continue meeting and refused to continue their study of that bill until full disclosure was made to all members of the committee regarding the details around legal opinions and the underlying motives of the government, as expressed in these opinions, and until perhaps a risk analysis, which should be an elementary part of any government initiative in terms of the impact of said legislation....

The chair of that committee sat in this committee last night for a little while, because their committee is not meeting because the members won't proceed without sharing that information. That's a committee that's doing something about the democratic deficit in this country. That's a committee to which we should pay tribute and toast because they're going to do something about parliamentary reform. The Liberal members of the committee led the charge to stall the sweeping reform bill as a show of protest. They argued that the government was taking the notion of cabinet secrecy too far and was denying the committee the information needed to assess the bill.

I'm reading from an Ottawa Citizen newspaper article, and I quote:

Liberal MP Reg Alcock, who chairs the committee, said that the Privy Council Office's position was “completely unsustainable” and had to be tested.

And do you know what? They won their argument, because two weeks later the government did release all the pertinent information.

Well, we've been asking for that information of the officials, and I understand they're not allowed to do such things. They can't exceed what they're allowed to do. We've asked them if they think Bill C-7 has an impact on the 200 outstanding court cases that the Department of Indian Affairs and Northern Development is currently fighting. We believe it does. We believe that part of the Trojan Horse aspect of Bill C-7 is that the government is trying to relieve itself of some of the burden associated with these court challenges.

And we asked if they had legal opinions regarding whether or not the bill would have an impact or would trigger future court cases and to what extent and at what cost.

» (1740)

We know that those assessments are made because there are cabinet documents presented to cabinet by the minister to justify these massive, sweeping, comprehensive changes to the Indian Act. But they won't share those opinions with us, the very members of Parliament who are charged with the responsibility of crafting this bill.

There's a precedent recently in this context actually, and I've been given an access to information release regarding the Samson Indian Nation and Band v. Canada. It says that the Crown was required to

produce any document in the nature of...legal advice...that concerns the administration of, or the discharge of, responsibilities of the Crown as trustee for the benefit of the [plaintiff] Bands and peoples arising from the...1946 [surrenders] of...rights in oil and gas mineral resources....

This was an example where the Crown was looking out for their own interests.

In conflict of interest we believe in the fiduciary responsibility to look after or show primacy to the interests of aboriginal people. The Crown was looking after their own interests, and in this well-known court case it was refusing to disclose pertinent information. A glaring conflict of interest and a direct parallel exist here. The minister is in conflict of interest because he's duty-bound to show a primary responsibility to look after the fiduciary obligations and the best interests of first nations people, yet he's putting in place legislation for which we have legal opinions that say it is not in their best interest. And then, in secrecy, he's acting by refusing to disclose any information or legal documents they might have. So it's a glaring example of what's fundamentally wrong with this process.

Even as I am seeking to speak to clause 11 and to be on topic, you can't deal with clause 11 in isolation. Clause 11 is an aspect of Bill C-7 and we have to look at the whole context that we're negotiating here, Mr. Chairman.

There are two valuable precedents regarding the disclosure of information.

One was a House of Commons standing committee, in this case on government operations, that suspended the clause-by-clause study of a bill because the officials in that case were ordered, I suppose, by the minister to not disclose information. And our own example, our own parallel, was where not only members of this committee have filed formal requests for this information, but the Indigenous Bar Association have also filed an access to information request for this information. They waited 18 months and then they were told it would be against the best interests of the Crown to disclose this information about whether or not this bill infringes on the constitutionally recognized inherent rights of aboriginal people.

We say it does; we have legal opinion after legal opinion that says it does. The government says it doesn't, but they won't show us their legal opinions. What kind of a fair fight is that?

Voices: Hear, hear!

Mr. Pat Martin: So that's just an indication. People wonder. There's been this campaign of misinformation about this bill, and even the media has adopted the government's spin on this bill that it's all about accountability and transparency and self-governance.

In actual fact, there is a very sinister side to this bill. It's not paranoid to assume that there is underlying serious secondary objectives to this bill. We've heard witnesses call it a Trojan Horse. It's stuffed full of consequences or other objectives that the government is seeking to achieve.

So referring to this case, excluding the land codes, etc., from the auspices of this dispute resolution mechanism, from the complaints and redress section of this bill, I have an example where this could be a problem. I note that the Nipissing First Nation is having its final vote on its land code on May 9, on the anniversary of the Westray disaster in fact. Apparently the land code is a basic land law of the Nipissing First Nation and it will replace the land management provisions of the Indian Act. Yet there's going to be no appeal under the act because under this new bill that we're going to pass, where's the redress mechanism for situations like that?

» (1745)

I can tell you why it can become a problem because we have done some research on this. We find that members in the Nipissing situation are each assigned a lot--

The Chair: Thank you, Mr. Martin.

Mr. Hubbard.

Mr. Pat Martin: Mr. Chair, can I have unanimous consent to finish this one point I'm making?

The Chair: Do I have unanimous consent?

Some hon. members: No.

The Chair: I asked for unanimous consent and I don't have it.

Mr. Hubbard.

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

Probably some of this was a situation I might have clarified when I mentioned it, but there's already a redress mechanism under the First Nations Land Management Act. There would not be need for two redress mechanisms dealing with the same topic or same subject. With that, Mr. Chair, we'll ask for the vote on amendment G-5.

(Amendment agreed to: yeas 8; nays 2)

The Chair: We're on amendment CA-32. Mr. Vellacott.

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

This particular one is in respect to clause 11, that it be amended by adding after line 27 on page 9 the following:

For greater certainty, where appropriate, a member of a band or resident of a reserve who has a complaint referred to in subsection (1) may initiate a claim in a court of competent jurisdiction.

Also, I would be interested in knowing from members around the table and on the government side if it would make a difference if I removed “or resident of a reserve”. I'm going to in fact query the department officials in respect of that as well, whether there would possibly be more favour in respect of this particular proposal such that it might be able to carry if that were a stickler there, a bit of an issue in terms of “or resident of a reserve”.

The point of this particular amendment is simply that the provision ensures that using the complaints process available through the ombudsman's office--or redress office--will not constitute a waiving of one's right to seek redress through the court system. We don't need to restrict opportunities already available for seeking redress; in fact, we need to add to those already available without removal of them.

Other Canadians right across our country do not have to waive the right to seek redress in the courts in order to use an ombudsman's help, at least that I'm aware of. I don't believe it's fair that first nations Canadians should have to give up or waive their right to seek redress in the courts--if they can afford to do such a thing. A frank admission here would be that many are not. They're beaten down by the circumstances of life; they're not financially in a position to seek redress through the courts, so the ombudsman would be one hope for them. I don't believe we should be waiving or removing their right to seek redress in the courts if they appeal for an ombudsman's help.

I would like the departmental officials' response to a couple of things here, that being one. Are there other situations in Canada where if an individual goes to an ombudsman he waives his right to seek redress in the courts? I'd ask Paul or Warren that.

» (1750)

Mr. Warren Johnson: In answer to the question, I have to change the question in order to answer it because this does not do what the member indicated it does. It does not remove an individual's right to go to the courts. The individual always has that right; this just gives them an alternative to that process, which can be cumbersome.

Mr. Maurice Vellacott: That's encouraging, that's reassuring, Warren, to hear that. I don't want there to be any doubt about that, so we preface this by saying “For greater certainty”. If what you say is true, and I have no reason to believe otherwise, then this is just kind of putting it in cement, if you will, firming it up. In the spirit of what you say there, then I would think there should be no problem with the insertion of this.

If, as you indicated to me, they never waive their right, is there a problem with “For greater certainty” just as a restatement here? I know we don't often do that and that people have problems with stating redundant things in acts and so on, but is there really a problem otherwise, other than the redundancy? Is that all it is, then, that it would be a redundancy if we were to state it here?

Mr. Warren Johnson: Yes, there is no greater certainty to be achieved.

Mr. Maurice Vellacott: There is no greater certainty to be achieved, and economy of language is what really....

With that, I'm not one who thinks it's going to bankrupt the Government of Canada to include a paragraph with a few more words in it, a little more ink spilt on a piece of paper, so I would appeal in fact for greater certainty.

The other question I would have for either Paul or Warren is, is there anything problematic in the term “or resident of a reserve”? Would that be problematic? If that were removed, would that be helpful in any sense?

Mr. Warren Johnson: No, that would probably create a conflict because that would put it in conflict with the section it's amending, which is a redress mechanism available to members of the band or residents there.

Mr. Maurice Vellacott: I'll just leave it at that, then; I don't want to belabour the point. I want to protect first nations peoples' right to seek redress to the courts, and I don't want there to be any impression with anyone that this particular clause would do anything to remove that right.

I am one who has through the course of these hearings pressed hard for equality of aboriginal first nations people. I think they should be under some form of Canadian human rights act, one of their own derivation, however they want to put it together. Again, I want to reiterate that my heart and my sense are that I want to make every provision for first nations people, whose lives are every bit as valuable and of the same essence as those of any one of the rest of us, so they have the same opportunities, so they can seek redress in the courts, and so there's no impression they're waiving that right by way of the ombudsman or the redress mechanism. That's what's in the amendment here.

I'll leave it at that and allow others to respond in respect to this.

The Chair: Thank you, Mr. Vellacott.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, we're still amending clause 11, and the Canadian Alliance is seeking to add this subclause, where for greater certainty a band member can still seek satisfaction by initiating a claim in court. I don't see anything in the clause or the alternative dispute resolution mechanism that would preclude anybody's right to do that. By the same token, I don't know why there'd be strong objection to including it either, except that it may be unnecessary; it may be redundant. But that being said, the Canadian Alliance in their own research must have had reason to believe that perhaps introducing this redress system may in some way compromise a person's ability to seek other avenues of redress.

That's the very point I was trying to raise regarding the land code exclusion, because our research indicates that under this particular example, the Nipissing First Nation, which is having its final vote on its land code on May 9.... In situations like this, we find that each member is assigned a lot, a piece of property, a piece of real estate, and with the approval of council that lot can be transferred to anyone who is not a member. That would seem to be an important transaction; it would be a precedent, if you will. This is an unusual set of circumstances, going from collective property rights to individual property rights with all the complex values associated with real property.

We find that in the land agreement the natural resources, for instance, trees, minerals, petroleum, and gravel, are to be considered part of the lot. This is an innovation, a new development that is rarely contemplated. Certainly, under the Indian Act it wasn't possible until they voted in their own land provisions or code. These natural resources are no longer collectively owned but are individually owned, yet this matter is not to be covered or provided for by the dispute resolution instrument under the governance act. It may already have its own instrument, but it flies in the face of the idea of a standardized dispute resolution instrument. It seems contradictory.

The aspect of expropriation in the example I have cited, the Nipissing First Nation land code, is that the code, which is going to be exempted from the governance act, allows the expropriation of individual interests for community purposes. This is fraught with problems and complex situations. We've seen examples where expropriation to build a freeway or whatever leads to a great deal of unrest. Now all that is needed for this expropriation to take place is community approval, and your land can be taken by the chief and council.

Now, I'm not objecting to the right of the Nipissing First Nation to establish their own land code. I simply raise this as a caution, that under the exclusions we've just allowed in the previous amendment...and we're still debating clause 11, so I think it's appropriate we raise this as a caution.

It makes me wonder just how thorough the thought process has been in amending this code. Again, it's the haste with which these issues are being dealt with that concerns me. We're limited to 10 minutes per amendment on amendments that have a substantial effect on the lives of the people who are impacted by this bill, and nobody around this table is an authority on these subjects. The experts in the field are in fact sitting where the guests are sitting and not around this table.

I'm concerned that clause 11 is going to open a lot more problems than it seeks to close. We don't have the full disclosure of legal opinions that would give us any comfort or satisfaction. We've been told that as members of the Standing Committee on Aboriginal Affairs we don't even have a right to see what the government's motivation or rationale is behind these things.

I would officially put in a request again that we have full disclosure of all these research documents. The motion I put forward, which was defeated, called for the release of any legal opinions developed by or commissioned by the government as pertaining to the impact of Bill C-7 on constitutionally recognized aboriginal or treaty rights or the impact Bill C-7 may have on current, pending, or future court cases.

» (1755)

It seems like a legitimate request, but we're told it's against the interests of the Crown to share this information. Speaking to the Crown's obligation to disclose legal opinions to aboriginal people, the fiduciary obligation of the Crown affects the scope of that privilege. That's the point I was trying to make--the fiduciary obligation of the Crown to look after the best interests. The primary concern must be the best interests of aboriginal people. It flies in direct contrast to deny aboriginal people the full information.

So in the court case I'm citing, a precedent-setting court case, I would argue--the Samson Cree Nation versus Canada--the Federal Court of Appeal held that certain legal opinions in the context of litigation were disclosable and should be disclosed. Samson argued that because the Crown refused to turn over documents, just as they have here, including legal opinions to them, that “where the beneficiary...seeks information from the trustee, no privilege can be invoked for communications between the trustee and its solicitors respecting the subject matter of the trust”.

That's the key point here. The Crown is the trustee of the band's legal interests, so legal opinions given to the Crown by its lawyers are not subject to solicitor-client privilege.

I think the case is made, Mr. Chair, that there's no defendable reason for solicitor-client privilege to be invoked by the lawyers working for the department and the minister. This is not privileged information; in fact, if anything, we have a right to this information.

(Applause)

Mr. Pat Martin: I think my point is understood by the guests here. I don't know if it's understood by my colleagues around the table, but I would request again that they entertain the idea that it's wrong. I wish the senior counsel, Mr. Beynon, were here, because we would be very interested in hearing how the senior legal counsel defends invoking privilege, when in fact no such privilege exists in the case of Samson. This is a recent court ruling that the Crown in Samson was required to produce any document in the nature of legal advice that concerns the administration of or the discharge of responsibilities of the Crown as trustee for the benefit of the plaintiff band and peoples. In the Samson case, this was in regard to oil and gas surrenders and moneys held by the Crown.

It's relevant, it's to the point, it's pertinent, and I object in the strongest possible terms to these opinions being withheld from me and my colleagues as members of Parliament, of all people. Why we're not given access to this information is frustrating and just confirms what we believe to be true--that there are infringements associated with Bill C-7 as it affects the Constitution Act 1982.

Mr. Chair, another standing committee of this House had the courage.... I don't know whether it was along leadership lines that they found that courage, if it had something to do with the race for the new prime minister, but for some reason, some Liberal members on that committee found the courage to stand up and break this pattern of secrecy associated with the Privy Council and the Prime Minister's Office. It can't be sustained, in the interests of this committee doing proper work.

Mr. Chair, as I'm nearing an end to my time.... How much time do I have left?

¼ (1800)

The Chair: You have 40 seconds.

Mr. Pat Martin: I'd like to move that this standing committee adjourn at 7 p.m.

The Chair: That's the end of your time. We'll call the question immediately.

Mr. Pat Martin: Mr. Chairman, I made a motion that we.... Are you calling the question on the motion?

The Chair: Yes, on your motion. When you move a motion, you put an end to your time.

Mr. Pat Martin: Thank you.

The Chair: The question is, do we adjourn at 7 p.m.?

(Motion negatived)

¼ (1805)

The Chair: I have a point of order.

Mr. Vellacott.

Mr. Maurice Vellacott: In deference to what Mr. Johnson said before, I take him at his word; I believe he's an honourable man. He states the truth to me when he says first nations people do not remove or in any way waive their right by way of this redress mechanism in the bill. I would want first nations people to have that opportunity in a continued fashion.

So I would like to withdraw the motion.

The Chair: Are you seeking unanimous consent?

Mr. Maurice Vellacott: Do I ask for unanimous consent, or a vote?

I ask for unanimous consent to withdraw this motion.

The Chair: Do we have unanimous consent that amendment CA-32 be withdrawn?

Mr. Yvan Loubier: No.

The Chair: We do not.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: No, I do not agree with withdrawing an amendment three quarters of the way through the debate, after having worked on it. I was not convinced by what I heard; and I will therefore vote against this amendment. I think it is useless, but for reasons other than those brought up by Mr. Johnson.

The statements made by my colleague Mr. Martin lead me to believe that he is well-deserving of the spiritual name that first nations representatives have given him, namely Soong-we-we-itong, which means "the powerful eagle's talking spirit". He gave a really good description, and clear explanations of the problems that might be engendered by clause 11 of Bill C-7 as well as Mr. Vellacott's amendment, which only makes the problem worse.

From the outset of this clause-by-clause consideration, we have heard such demonstrations and we are repeating them relentlessly. Clause by clause, we are revealing the formal and substantial flaws in Bill C-7; in fact, the content and the text of the clauses, including clause 11 with which we are now dealing, are fundamentally flawed because they do not in the least resemble the kind of formulation we would expect if we wanted relations between the federal government and the first nations to move ahead.

Further, the more we study this file—and we are not progressing very fast because we are only at the beginning of section 11 out of 59 sections, if my memory serves me well, and there are nearly 200 more amendments to consider— the more we see that the initial reactions of the official first nations representatives were perfectly pertinent. Their analysis and their intuition regarding Bill C-7 were perfectly accurate.

Further, let me quote for you the statements by the National Chief of the Assembly of First Nations, Mr. Matthew Coon Come, who, since the bill on first nations governance was tabled on June 14, 2002, expressed quite a lofty vision. For our part, we made our rounds; we read the briefs and got acquainted with the opinions of various experts, and we drew the same conclusions as he did. On the other hand, he drew these conclusions on June 14, 2002, nearly a year ago. Thus, when he appeared before us, he said the following:

First, let me tell you that this bill has nothing to do with governance. Nowhere does it recognize our governments and our right to self-governance. It does not recognize the agreements concluded between our nations and Canada, called treaties.

In my opinion, he was right, given that all the experts are saying more or less the same thing, except, of course, those experts who were hired and paid by the government to sell this bill which nobody wants. Let me go on with the visionary statements made by Matthew Coon Come. He said the following, with reference to Bill C-7:

It does not provide first nations with tools for proper governance because such tools include skills, aptitudes, learning and resources. And this bill makes no mention of any of this.

And he is right. When you go to page 9 of the bill, where we see a part of the draft of clause 11, you can see that there is nothing mentioned about skills, aptitude for learning and resources, although these things should normally be the tools for proper governance. The first nations had already applied most of these tools and could do as much for the remainder in the near future.

Mr. Matthew Coon Come had a vision that was ahead of his time and ahead of the analyses that have cost millions since then.

¼ (1810)

He said:

Rather, the minister just did some plotting and planning for two years, even though our communities were in a crisis, and he wasted over $10 million of taxpayers' money, and what was the result?

We had to wait a year for people to realize that what Mr. Coon Come said on behalf of all first nations of this country was true, irrefutable and worthy of a visionary. And why is it worthy of a visionary? Because Mr. Coon Come consulted people who have a vision, and those people with a vision are members of the first nations communities. They are the only ones capable of knowing what is good and what is bad for them. Let us not be surprised. Mr. Matthew Coon Come did not do any magic tricks and did not have a crystal ball. He is a member of a first nations community and Grand Chief of the Assembly of First Nations, so he just knows what his community wants and what he is expected to do as representative of all first nations in Canada. So let us not be surprised that he so accurately identified the problems with Bill C-7.

He went on and even preempted the studies done by the Canadian Bar Association and the Quebec Bar by saying the following:

This bill is a direct attack on our rights and treaties and it violates Canada's 1982 Constitution Act.

Mr. Coon Come said that nearly a year ago on behalf of the first nations members he represents, that he represented and will always represent. We went on a trip and met with representatives of the Canadian Bar Association and the Quebec Bar, legal experts who told us exactly the same thing. Mr. Coon Come just relied on his experience and knowledge of his community, and we should do the same.

When the idea was put forward to have first nations representatives appear before the committee to discuss the key issues in the Erasmus-Dussault report, that proposal was rejected out of hand, but the real experts are people like Mr. Coon Come and those who are here today, they are the only ones who know what is good for them, the only ones who can determine what to do so that everyone, but especially Canada's aboriginal youth, can have great hope in the future, rather than the gloomy outlook which has been the case for the past 130 years.

Mr. Coon Come also said:

Today is not a new beginning. It is not even a good beginning. We are going backwards, we are heading towards a dead end.

The minister's bill reneges on promises his own government made in the throne speech. It goes against the Gathering Strength policy whereby the government commits to working in partnership with the first nations. It contravenes the public statements made by the Prime Minister, who said he wanted to deal with our urgent needs.

Those words hold true again today and I would even consider them historic, because given the study that we are doing of Bill C-7 and of each of its 11 first clauses, it is clear that the bill does not meet the needs of first nations, nor does it resolve the numerous problems they are dealing with, nor does it help them reach their goals. It amounts to saying that the millions spent on producing this useless rag were a scandalous waste of funds, time and intellectual resources that could have been used to help the first nations.

¼ (1815)

[English]

The Chair: Merci, Monsieur Loubier.

Mr. Vellacott, for closing remarks.

Mr. Maurice Vellacott: I have no closing remarks.

The Chair: We'll go to the vote.

(Amendment negatived)

The Chair: Amendment CA-33 cannot go forward because we don't have the effect of amendment CA-28. Therefore we are now ready for the question.

(Clause 11 as amended agreed to)

Mr. Charles Hubbard: Mr. Chair, lunch is here. If members agree, I will make a motion that we suspend for 20 minutes.

The Chair: I have a motion to suspend for 20 minutes.

(Motion agreed to)

¼ (1817)

¼ (1844)

The Chair: Order.

Welcome back, everyone.

(Clause 12 agreed to on division)

(On Clause 13--Withholding of funds)

¼ (1845)

The Chair: We're on clause 13, amendment CA-34.

Mr. Vellacott.

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

We're amending clause 13 by replacing line 38 on page 9 of Bill C-7 with the following:

to the band by the member, provided that the band makes available to the particular member the evidence of such debt accrued and the terms of repayment, excluding any fine.

We're proposing to limit the number of circumstances in which band councils can use this power in clause 13, by stating that the band must provide evidence of the debt accrued. The amendment, in providing that the band make available to the particular member the evidence of such debt accrued and the terms of repayment, attempts to impose a burden of proof on the band to establish that the band member does indeed owe money and that the money is owed under a contract of some sort. The money cannot be withheld, therefore, because of some personal indebtedness between friends or family members that is not evidenced by written proof, a promissory note, an IOU, etc.

I think this makes a lot of very obvious sense, if the administrator of a band is going to withhold money from a band employee and say “Well, I'm not giving you your full cheque this month because you owe x dollars”. The instance most clear in my mind was recounted to me by a good first nations person when we were on the committee tour here, travelling around the country. This person indicated to me that in a particular band the administrator had withheld from them the social service cheque because she said “You owe my brother x dollars”. It was a personal debt kind of thing. So the administrator went way beyond exercising her role in a proper way and said “I'm withholding your welfare cheque because you didn't pay my brother.”

I think that's quite wrong. These people were then in the position of not being able to pay for the basics of life. So my heart went out in this situation, and that's what prompted this amendment. It comes directly from the mouth, so to speak, of a first nations person we met as we toured the country in the months just previous.

So I think it's evident why this is needed in this clause. I turn the floor over to others. Then hopefully we'll move with dispatch to get it voted through.

The Chair: Thank you, Mr. Vellacott.

Mr. Martin.

Mr. Pat Martin: Mr. Chair, now that we've reached clause 13, as we race along, I'm going to concede we're maybe making some improvement with this particular amendment, but I still have to cite a problem that arises.

The way this reads is that the minister would delegate some of his absolute powers to the first nation councils, essentially. I wonder about the due process in the course of this action in the questions I directed toward the mover. I would hope he would be able to respond in the ten-minute wrap-up time he has.

Where is the due process as an aspect of natural justice? For instance, is there notice, or is there a right of appeal contemplated in this proposed amendment? Does this mean a council could take away welfare money if a debt were demonstrated, if evidence of a debt were made apparent? Is that the kind of authority and power contemplated here?

Could they take away a family's food money for the month once they establish the debt was real and legitimate? What are the terms and conditions for repayment, and what right does the individual owing the debt have to dictate or at least negotiate those terms of repayment?

We haven't any real evidence the minister has a real concept about this natural justice issue, or we wouldn't be proceeding with Bill C-7 at all. But now that these authorities are going to be delegated by the minister, we're talking about financial affairs, the council having these expanded roles, and we want to know what sort of safeguards are built in.

So I'm interested in hearing, if there's time, what the departmental officials have to say about the legality of this. If the council took away someone's welfare money and that family took the council to court to complain about the lack of due process, what do we think the courts would rule? I'd like to know about that.

The provisions for due process were not really stated plainly, unless it's one of those provisions that is implied or deemed to be there if not expressly stated. But I'm not comfortable about that yet. If we were to compare clause 13 to the preamble, I think it would be useful, because we've reviewed the preamble of the bill. We should be able to relate clause 13 to the express intent found in the preamble. The preamble sort of set the tone.

In fact, as we have this bill at first reading instead of second reading, we're still establishing the principles associated with this bill. That's the luxury that was afforded to us when the bill was given to the committee at first reading. We're supposed to have some direction and input on what the overriding principles associated with it would be.

I guess I'm concerned again that while we know first nations may have special rights, it doesn't seem this kind of withholding of a person's money would fall into the category of tradition or custom. Why does this bill give powers to a council that are not available, nor should they be, to municipalities or even provinces? They don't have that kind of absolute right to make some hold in regard to going after that kind of debt. Soon we'll be hearing complaints from certain sectors about how the councils are using the very power given to them by Parliament. That's one of the concerns brought to our attention.

I didn't notice anyone commenting on this during the consultation process. I didn't hear any of the presenters, the witnesses who came before the committee, asking for these provisions to be added here. It seems these ideas are coming--

Mr. Maurice Vellacott: It was a personal conversation I had.

Mr. Pat Martin: I see. Well, that's helpful actually. The mover of the motion tells me it's based on personal input or a sidebar conversation that took place outside the actual witnesses' testimony, the recommendation that this might be a good idea. I've never heard anybody say this is necessary for the minister's style of self-government to work, or that it's an aspect of anyone's vision of self-government.

¼ (1850)

The question that's been put to us is if no one asked for it, why was it put in? Mr. Vellacott answers that there were people who specifically asked for it.

In addressing the Canadian Alliance motion, I'd like to put it in the broader context of reminding every member of the standing committee that we have an equal responsibility to hold up the honour of the Crown. That's one of the obligations we have as members of the standing committee.

I hearken back to--pertaining to this clause and others--the fact that if some members of the committee are not given all the information pertinent to this clause and others, then it's impossible to uphold the honour of the Crown on this bill. It puts us at a disadvantage, and I'm unable to fulfill my extended fiduciary obligations as a member of Parliament and as a member of a parliamentary committee.

I'm interested in asking for a ruling of the chair on whether the chair believes it has an effect on my fiduciary responsibilities by extension as a member of the Standing Committee on Aboriginal Affairs and the minister's--the Crown's--fiduciary responsibility. Is it a question of privilege, or would the chair see it to be a question of privilege in the sense that I'm unable to fulfill my obligations and duties to uphold the honour of the Crown in the context of the fiduciary responsibility?

I'm going to ask that question of the chair in a moment, but I believe it's worth giving some background on the context I'm going to be raising this in. I ask the chair, in contemplating this, to consider R. v. Adams, where the Supreme Court of Canada dealt with the very issue of the importance of members of Parliament to be fully familiar with their fiduciary responsibility in dealing with matters of aboriginal issues.

I think it's useful to read this one paragraph from this recent Supreme Court decision:

...Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion, which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfill their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test.

So without determining whether the act risks infringing aboriginal rights often enough to render the lack of guidance itself an infringement, it would appear to be good policy to provide decision-makers with additional education and guidance to enable them to exercise their discretion in a manner that takes into account and respects aboriginal entitlements.

My point, then, and the question I would ask the chair to rule on, is whether denying my motion to have access to the documentation we've asked of the officials--which was denied us on the grounds it was client privilege and they couldn't divulge it because of privileged information between the officials and the minister--would have the effect of denying me the information I need to fulfill my fiduciary responsibilities and uphold the honour of the Crown.

I've cited a recent case in Samson, where it was found in the context of aboriginal issues that privilege does not exist; they can't claim privilege in the context of a trusteeship and the legal counsel for the trustee.

¼ (1855)

So my question to the chair, and I ask this in all good faith--

The Chair: You had better ask it quick.

Well, you've asked it. I heard that.

Mr. Pat Martin: Do you understand the question?

The Chair: Yes, I do.

If you're asking the chair, Mr. Martin, if losing a motion is a breach of privilege, the answer is no. Okay?

Mr. Pat Martin: That's not the question.

The Chair: Now, if you ask the chair, on distribution of documents in this committee, if you have a point of privilege, I say “no”, and I'll explain why. Because I make sure that no document leaves the front table and goes to only part of the members of the committee. I know that all documents that we distribute go to all members. So my position is that there is no point of privilege.

Now, if you think that there are documents that were distributed from other than this table to part of the members of the committee--probably that would access the documents that you wished to obtain in the motion at this committee that you lost--that point of privilege should be brought to the Speaker of the House. Okay?

That's the end of your time.

½ (1900)

Mr. Pat Martin: Well, can I ask you to answer the question regarding upholding the honour of the Crown, and the reference to the Adam case, and perhaps--

The Chair: I'm in no position to judge on the honour of the Crown. The Speaker of the House will do that for you.

Mr. Pat Martin: We do have the technical advisers here--

The Chair: It's not their position.

Mr. Pat Martin: --who are familiar with the case.

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

Anyone else? Mr. Loubier.

[Translation]

Mr. Yvan Loubier: My colleague Pat Martin is right. We can expect that all documents pertaining to the analysis of various clauses of the bill be tabled here, including all legal opinions we have requested since the beginning of this review. We are now on clause 13, and the legal opinions we requested thus far must surely exist. If they do not, someone is being irresponsible, but I do think they exist. Since the beginning of the study of this bill, the Justice Department and the Department of Indian Affairs have been asked to give the committee the documents pertaining to a thorough assessment of the impact of these clauses of the bill, but so far, we have only gotten vague answers that lead us to believe that such studies do not exist despite the fact that during our consultation, the lawyers from the Canadian Bar Association, the Quebec Bar and the Indigenous Bar clearly told us that the implementation of certain clauses of Bill C-7 could be in conflict with the Constitution, especially the section of the bill on the role of the federal government as trustee, as well as the commitments made by the Crown, as my colleague Pat Martin pointed out.

I think we are entitled to wonder how we can do a proper job here when every time we ask for the tabling of studies that are relevant to a thorough review of the effects and impact each of the clauses of the bill could have, including clause 13 and perhaps even a motion like Mr. Vellacott's, our request is not met. As far as I am concerned, I do not feel I can do my work effectively and fulfil my responsibilities in this matter.

This is not the first committee I have sat on. The finance committee, of which I was a member for nearly nine years, operated completely differently. Every time a member asked for pertinent documents to be tabled so that committee members could review the matter as responsible parliamentarians, the documents were tabled, and often very quickly. Sometimes documents were tabled with words crossed out or blank spaces because there were confidential figures, but generally speaking, the documents were tabled in committee.

Here there's a climate of mistrust, defiance, but especially mistrust. Nothing is tabled, perhaps because people are too scared to table too much. If too many documents are produced, we might discover some real gems that will fuel our debate, in that there will be proof that the bill is indeed what we think it is, namely a worthless bill that might create more problems than it solves.

I am somewhat disappointed with the general attitude of committee members, the chair and the officials. When I say I am unsatisfied with the answers I am getting and the attitude I see here, it is not just to fill in time. It's because I am frustrated in my role as legislator. This is the first time I have been so frustrated in my role as legislator. I have been frustrated by the behaviour of some Liberals, but in my role as legislator, this is the first time I have felt so deprived of any means to study a situation in a responsible manner.

I can understand that my Liberal colleagues lend little importance to the information they might find in the documents, if indeed they were tabled. In fact, they seem to disregard everything. They are given a guideline and they must follow it; they vote and that is all. In fact, the day before yesterday was a blatant example thereof.

½ (1905)

When a decision had to be made on the best way to handle the proposed amendments, and we keep repeating this, and it also says so in the rules, standing House committees are independent from the executive, and the day before yesterday I heard a Liberal colleague say one had to talk to the minister before making a decision as to committee management. Well! We are no longer talking about the same thing. Although a standing House committee and its members are supposed to be sovereign when it comes to their mode of operation, now we have to ask Minister Robert Nault whether it is a good idea to proceed in that manner. In fact, his parliamentary secretary had to consult him. He was the one doing the negotiation on committee proceedings, when it should have been the chairman.

That is cause for concern. I have often suspected collusion between the Liberal majority and the executive. I often raised the matter in the finance committee, but I never had any undeniable proof. But here, the day before yesterday, I noticed that the majority of the Liberal members do not understand their role as legislators and parliamentarians and that they let the minister respond in their stead when it comes to their vote on some clauses of the bill and on the amendments.

That is unfortunate. I studied the federal parliamentary process and I know that in other times, the committees were truly sovereign. When they went on trips and met witnesses, committee members took note of what was being said, just as Mr. Martin, Mr. Vellacott and I did. We took note of what they said, we analyzed everything and we made a summary or a synopsis of the topics that were discussed the most, of the direction taken, etc. Each parliamentarian, as a free legislator, decided which recommendations he or she would make to the executive and to Parliament.

We now see how our Liberal colleagues are proceeding with so much pomp and ceremony!

We now find ourselves in a situation where there is no longer that independence which is so necessary and which existed just 10 years ago in committees. One no longer finds that independence. Now, the minister is the one who pulls the parliamentary secretary's strings; he also pulls the Liberal committee members' strings, which, in turn, are also being pulled by the committee chairman, who sometimes pulls those strings fairly hard.

That is worrisome. I do not see how we can be free and do our work objectively with full knowledge of the facts when we do not get the studies we request, studies that may be compromising for the executive, in other words for Minister Robert Nault. In other words, you cannot act as a counterweight to the executive, namely the government, and at the same time side with the government by accepting the fact that the executive pulls the strings of a parliamentary committee such as this one. The committee then becomes a total farce. Every time a valid amendment is tabled and corresponds to what we heard from most of the first nations, the Liberal soldiers vote massively against that amendment because they all received the order from the minister to pass the bill at any cost and to ensure that no amendment that is unsatisfactory to the minister is passed here.

I can see why the public and the first nations are having increasing doubts about the role of parliamentarians. We will come back to that point later.

½ (1910)

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Vellacott, can we have your closing remarks?

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

I have no additional remarks. I want to test this one, and hopefully the common sense and the very basic approach that's taken here will prevail and we can get this through for the betterment of first nations all across our great country.

The Chair: Thank you, Mr. Vellacott.

We have a request for a recorded vote on amendment CA-34 on page 111.

(Amendment agreed to: yeas 9; nays 0 )

The Chair: We are at amendment BQ-28. Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, what a visionary I am! I think that the first nations are having a good influence on me. I think that the magnificent eagle feather I was given yesterday to enlighten me is helping me see beyond decisions made by members of the Liberal majority who systematically reject the amendments that we put forward.

Look at this amendment. It is similar to the one moved by Mr. Vellacott, though it is more specific and somewhat more to the centre than Mr. Vellacott's amendment. Mr. Vellacott is a little more right-wing than I am.

We move that Bill C-7, in clause 13, be amended by replacing line 39 on page 9 with the following:

imposed for the contravention of a band law, taking into account the member's financial position and ability to pay.

All too often, even in issues we are required to deal with, this is something we fail to take into account. We demand certain amounts without taking people's ability to pay into account, and end up with a situation where a member of the first nations—or a non-aboriginal—does not have the ability to pay a fine for an offence committed. So instead of helping people overcome the difficulty, we push them even further into the hole.

Personally, I am a great believer in rehabilitation and behaviour modification. I do not believe that people should be crushed even more because they have committed an error in life and broken some rules.

The purpose of my amendment is to set up a goalkeeper, as it were, and to some extent mitigate the injuries that will be caused by this bill. Its purpose is to make things less serious than they are right now. We suggest that technical amendments like the one I have moved today could mitigate the savagery of Robert Nault's bill, which has been accepted by Liberal members, who do no more than rubber-stamp the directives of the Minister of Indian Affairs and Northern Development and his officials.

The wording of this bill is very cold, and I would like to add a measure of humanity to it. I want to ensure that members of aboriginal communities are not completely crushed. They are already besieged by financial difficulties, and this would remove any hope they had of recovering from some error they may make.

This amendment mitigates the provisions of Bill C-7. However the entire bill, particularly in clauses 1 to 13, is completely unacceptable to the first nations and to any half-way balanced person who looks into the future and tries to see the forest, not just the trees. The bill is unacceptable to anyone who looks further than the end of his nose and tries to project 10, 20, 30, 40 or 50 years into the future. Where do we stand now with our relations to the first nations, and where do we want to be in 30 or 40 years? Do we want things to remain as they are? No, nobody wants that. Everyone has rejected the status quo, including those who took part in genuine consultations and contributed to genuine studies, those conducted by the Royal Commission on Aboriginal Peoples. We do not want the status quo, which is simply intolerable for the first nations and is becoming a source of shame for us.

½ (1915)

Is a bill like this going to improve anything? Where will we be in 30 or 40 years with this bill? We will be no further ahead, because things will not have improved. In the opinion of many people other than our so-called experts, the parliamentary secretary and Minister Nault, we will exacerbate current problems with a failure to comply with sections of C-7. In other words, the first nations—including small communities—will have to exhaust their technical, human and financial resources to implement Bill C-7, only to see at the end that even after exhausting those resources they will not be better off socioe-conomically than they are today.

So, if the status quo is unacceptable, if we exacerbate problems instead of improving things and mobilize significant resources to implement this piece of garbage and put in place the bureaucratic objectives of a minister who has no vision, no more than his government does, then resources that could have been used to build housing and water systems, resources that could have been put towards economic growth, will be lost. That is a serious problem. If in 30 or 40 years we find the situation is worse than it is today... We already know this bill will not produce any results, we know it because we have an extremely solid foundation of knowledge, gleaned from the many reports, studies and inquiries carried out by the commission which was headed jointly by Erasmus and Dussault. We know what the situation is, and we know what we have to do. But instead of setting out on a real path of change over the next 20 years, as the Erasmus-Dussault Commission invited us to do, we end up with a half-baked, useless bill, which improves absolutely nothing, and the Liberal members of this Parliament do not have enough judgment to put it in the garbage can where it belongs.

Things are even stranger right now, because we are between two governments. I am not talking about the governance of the first nations, but the federal government. We have a Prime Minister who will be retiring in a few months, and a new prime minister who will take his place. What if the new prime minister did not have the same approach? If that were the case, would all those who have supported this bill and created havoc in the relationship between the federal government and the first nations be forced to end their political careers? I would hope so, because anyone who has as little judgment as to vote unquestioningly for clauses in a bill that is unacceptable to everyone is exacerbating the situation in a very real manner. If the new prime minister took a different view from that of the current Prime Minister, who wants to implement the 1969 White Paper, there would be a serious problem. So if you are hoping for a cabinet position, forget it. You're going to be out of a job, and you won't even want to watch federal politics on T.V.

I find it really difficult to believe that today, at 7:20 p.m., we are still examining this bill, which was decried by everyone from the very start. First of all it was decried by the principal group it will affect, the first nations. I find it difficult to believe that yesterday we sat here until 4:30 a.m. discussing completely insignificant clauses in a completely insignificant bill. With our technical amendments, Mr. Martin, Mr. Vellacott and myself are trying to parry the blow and repair the damage caused by these clauses.

We have talked about a number of problems, but we know full well that, even though these are valuable amendments that could improve things, the Liberal majority will systematically vote against them.

½ (1920)

I know that members of the first nations who are here today and following our proceedings must find it very difficult to encounter double dealing as objectionable as this.

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Bryden.

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): Thank you, Mr. Chairman.

I couldn't sit here silent, Mr. Chairman, because the amendment that's proposed by the member opposite would, I think, do tremendous damage to the interests of the aboriginal people who would be affected by it. The clause we're discussing deals with the ability of the band to withhold the salary that would be owed to a member of the band who has a debt to the band. The member proposes adding a condition that this withholding of money could not be undertaken by the band council unless it took into account the member's financial position and ability to pay.

I suggest to you, Mr. Chairman, that this is totally in contravention of the provisions of the Privacy Act, because we understand that all Canadians have the right to safeguard their personal privacy. What this would do is enable the band, through some mechanism that is unknown, to demand that the member of the band in question who has the debt disclose his financial situation.

Mr. Chairman, this is totally unacceptable, and I would suggest to you that not only does it denigrate the people in the band who may be affected by this type of situation, but I would have serious doubts it would actually pass the charter, Mr. Chairman. So it's not only in contravention of the Privacy Act; I think it would be a charter violation.

I would suggest to you, Mr. Chairman, if this is the kind of amendment we're dealing with tonight, that it may indeed be a very long evening.

The Chair: Thank you, Mr. Bryden.

Mr. Vellacott.

Mr. Maurice Vellacott: I have a lot of regard for what my esteemed colleague across the way says on matters of privacy and so on, but on this one I think he has it dead wrong.

I will just very briefly comment that in all kinds of areas of life--and you as a member of Parliament and all of us deal with constituents who owe money on student debts or for repayment of employment insurance or whatever--there is generally some provision if there are some good-faith efforts made to pay down and repay that debt. I'm aware that in most circumstances that's quite in order.

There have been lots of times in my parliamentary career, which only spans some six years now, when we have arranged something with a federal government department on behalf of somebody so they're not taken though the wringer. They are allowed, in a small, incremental way, to make good on that debt or whatever it is. It's not an uncommon thing. So I'm a little taken aback at the member's intervention here earlier.

Unless there's something hidden here where it's beyond my ability to comprehend it on the face of it, I am in support of the amendment here of the Bloc member, Mr. Loubier. I think it's a good one. To put a person in a position where a band council or any level of government can take back from them an amount such that they can't even buy groceries, pay utility bills, and do those basics, those essentials, I think is unconscionable. I think this is a good step in respect to the protection of some basic rights and the provision of those things for a Canadian first nations member here.

I will ask our department officials here if there's something that presents a problem in this particular amendment, something I'm not seeing. I would think this would be something negotiated, where an individual would volunteer to do it on their own. I don't know if it's a matter of an intrusion into their lives to any great extent to find out what their financial status is, but I think the spirit of it is pretty clear here.

To the department officials, then, to maybe even expand this a little bit, is there not some way such that when that repayment has to be made, it's not taking every last cent and wringing blood from a rock, so to speak, so that person can't even buy groceries and keep a roof over his head and so on? Is there some way to get at that particular aspect here I think the member has in mind? Is there another way to do it?

½ (1925)

Mr. Warren Johnson: The alternative may be that contemplated under government amendment G-12, which expands the definition of the regulatory authority to provide some clarification and comfort that this is a specific issue that would be dealt with in that area. The member may want to look at that amendment when it comes up. That would allow a process in consultation with first nations as well in the next stage, which the government is committed to developing, to make sure the intricacies of this question--and a number have come up already--are given not only the time but the input from first nations to make sure they are adequately dealt with.

Mr. Maurice Vellacott: I'm curious to get to that part, but do you have a specific comment to make in regard to this kind of incremental repayment of a debt, such that the person still has enough food money, and so on, or are you just talking about a broad parameter whereby they could insert something of this nature?

What page is it?

Mr. Warren Johnson: It's on page 202.

Mr. Paul Salembier: It refers to paragraph 33(d) set out in amendment G-12.

Mr. Maurice Vellacott: Just to get to the heart of it real quickly, is there a particular part of it, such as paragraphs 33(a), (b), (c), or (d)?

Mr. Paul Salembier: Paragraph 33(d).

Mr. Warren Johnson: The one with the words “circumstances”, “maximum”, and “procedure” in it.

Mr. Maurice Vellacott: That's reassuring.

I don't know what the member will say, whether he will still want to proceed with this amendment. This may not be adequate or he may not be satisfied.

I think I would probably still be inclined to support his amendment, but I understand that this may well be a backstop covering it off too. But I guess our concern here is that a first nations individual should not be in such dire straits or distress because of this repayment requirement, with all of the payment being taken from him in a lump sum and him not even being able to feed and clothe himself. I respect the spirit of the member's amendment, so I will be supporting it.

I concede my time from here.

The Chair: Thank you, Mr. Vellacott.

Can we go to final comments?

Mr. Martin.

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

I'm interested in this amendment as well, and I think Mr. Vellacott is right to recommend essentially....

I hope I'm on the right amendment. We're on BQ-28, are we not?

½ (1930)

Mr. John Bryden: [Inaudible—Editor]

Mr. Pat Martin: Well, you're not being funny. I know that you often think that you're being funny, but in this case you're not. We've been here a long time, and you've just arrived—

Mr. John Bryden: Pay attention to what we're debating and then you won't be....

Mr. Pat Martin: There is great fanfare but not much substance.

The Chair: Please go through the chair, and I'll make sure that it's not funny.

Mr. Pat Martin: Okay. We'll screen any humour through the chair to see if he laughs, and then we'll know if it's funny or not. That's how we'll do things, then.

The Chair: That's right.

Mr. Pat Martin: Mr. Loubier's motion in introducing the ability to pay and in taking into account the financial position I think is reasonable, and I don't accept that there's any privacy issue associated with that. Once it's deemed and demonstrated and proven, as per the clause, that this money is owing, for whatever reason, if the person owing that money has difficulty in paying, they would volunteer that information. For certain reasons, they would be looking for relief in terms of the timeframe of the repayment and they would volunteer that information in order to get some flexibility, etc. I think that's a fairly innocent and innocuous sort of proposal to soften the language.

It's been our objective throughout much of this debate to try to minimize the prescriptive nature of many of these clauses and to soften the impact, as it has practical effects on the people who are going to be affected by this legislation. We're opposed to the whole concept of micromanaging the lives of first nations by outlining these prescriptive details or governance codes, financial accountability codes, etc., and not acknowledging the legitimate right for first nations to design these codes and checks and balances on their own.

In other words, whenever we see rigid and prescriptive language, you'll notice a pattern. If Mr. Bryden spent more time with this committee, he would notice a trend and a pattern that we're trying to achieve through certain things with certain amendments. And it's perfectly in keeping with the consistency of what we're demonstrating here.

We're also concerned that as we deal with clause 13 we're at a distinct handicap, in that we're not being provided with the information that we've been requesting in terms of documentation. And we note the parallel to the government operations committee that recently suspended their study of the Public Service Act. We were critical of the fact that we had asked for this similar disclosure.

I am thinking about how completely unfair this is for the government to use the excuse of client privilege in order not to divulge legal opinions that we know to exist to members of the committee. It's interfering with my ability, my obligation as a member of Parliament to uphold the honour of the Crown. It's a serious matter, in that we have a fiduciary obligation as an extension of Parliament. The Crown has a fiduciary obligation to put as paramount the best interests of aboriginal people. Our primary obligation is the fiduciary obligation.

I, as an extension of Parliament and in this parliamentary committee, have that obligation. And I'm unable to effectively carry out my duties if I'm not armed with the same information that the government is using to justify a bill that we say infringes upon constitutionally recognized aboriginal and treaty rights. So, by extension, our argument is and we have legal opinions to the effect that this bill infringes upon constitutionally recognized rights. And we have legal opinions that this bill will have an impact on outstanding court cases. The government says that it does not, but they refuse to produce any documentation to that effect, under the excuse that there's privilege between a client and a solicitor, between the lawyers working for the department and the minister.

Well, we've been trying to cite examples where that's not the case. In actual fact, under Samson Indian Nation and Band v. Canada, a recent court case, the bands argued that because the Crown refused to turn over documents, including legal opinions to them, that where the beneficiary sought information from the trustee--and that's the case here, that the minister is essentially the trustee--“no privilege can be invoked for communications between the trustee and its solicitors respecting the subject matter of the trust...”.

That's the very information that we're seeking as it pertains to the fiduciary responsibilities of the minister and the solicitors working on behalf of the minister.

And I cite further why it's an infringement on my ability to fulfil my obligations and my duties and why it's a fiduciary responsibility. The obligation cited under R. v. Adams in the Supreme Court is that, and I quote:

Without determining whether the Act risks infringing aboriginal rights often enough to render the lack of guidance itself an infringement, it would appear to be good policy to provide decision-makers with additional education and guidance to enable them to exercise their discretion in a manner that takes into account and respects aboriginal entitlements.

½ (1935)

Now, this is considered to mean that, and I continue:

In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfill their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test.

We've been speaking about the Sparrow test in terms of consultation requirements. If there is going to be an infringement, if the government does intend to infringe on aboriginal rights, which from time to time it may, it has to provide justification. It has to demonstrate why the benefit will outweigh the injury, and we have been claiming that the injury is to aboriginal people.

Where is the benefit? Where is the opinion of the government that this is justified? If they are claiming that it is justifiable, then what follows from there is the duty to consult, the consultation obligation. Consultation means accommodation of the information that's brought forward during consultation.

I'm trying to explain this in as simple terms as possible within the ten minutes we're allowed. I make the point that we as members of Parliament are failing to live up to our fiduciary responsibilities as an extension of Parliament by the very reason of the lack of information, the lack of education, and the lack of an informed position of members of this table--and I'm one of them.

We're being kept in the dark about the true impact of this legislation, so how can we even argue on the amendments, about the merits of any particular clause, if we're even uncertain if the bill itself, in its entirety, does in fact infringe or doesn't infringe?

This is the uncomfortable situation I find myself in, Mr. Chair. I feel I'm unable to perform my duties to the Crown and to first nation peoples. I'm unable to perform my obligation as part of the fiduciary responsibility without having all the information that other members of the committee I'm sure are privy to.

I strongly suspect that other members of the committee, especially the parliamentary secretary as the right hand of the minister, probably do know what the counsel has told the minister. And we believe that there are probably internal cabinet documents, where the minister has told the cabinet what is the true impact and what is the liability and the predicted risk analysis.

All of these questions we've asked, and we've asked for the documentation to be tabled, and nothing has been forthcoming. None of these questions are answered. In fact, the lawyers, the representatives here, won't even answer if they've been asked to answer those questions by the minister.

So we're operating in a void here, in a vacuum, and we can't do our job properly. And we're doing a disservice to the people whose best interests we're at obligation to serve. I strongly feel that this committee should cease its study of Bill C-7 and the clause-by-clause amendments until such time as all information is made available, either generated by the officials of the department or commissioned by any outside source.

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Already? Good heavens, there are no other Liberals interested in discussing such an important amendment? It is a social-democratic kind of amendment, one I would even describe as liberal, because it does seem quite liberal. Compassion is a liberal invention. It seems to me that giving some consideration to the financial capacity of individuals rather than crushing them even more because they're not able to reimburse immediately would be of interest to the Liberals, since sharing and compassion are the very foundation of liberal philosophy.

Obviously these values must have been jettisoned like all the rest. It's very disturbing for me to see that there aren't more Liberals interested in discussing this amendment.

½ (1940)

The Chair: Mr. Loubier, please, let's have no personal attacks or attacks against a party. We've been together for 10 weeks and that has been our accepted practice. Please cooperate.

Mr. Yvan Loubier: You talk about personal attacks, attacks against a party. Are you telling me that as a member of the Bloc Québécois I cannot attack the Liberal Party and the Liberal government? There is a bit of a problem. It's not a personal attack, it's an attack against a government that is a Liberal one, unless you've forgotten that you are Liberal, but you are and I have no other way of describing you. If you equate this with personal attacks, I can't quite follow your logic or the basis for this remark.

I can only repeat that Liberals should normally be more sensitive to such liberal values as compassion. A while ago, I was listening to a Liberal colleague, whom I will not name because I don't want to make any personal attacks, making fun of my NDP colleague, Mr. Martin, and wondering if we had really got as far as amendment BQ-28.

I don't think he was in a good position to make fun of anyone because his interpretation of my amendment was completely twisted, if not ridiculous. Unless you live on another planet, how can you maintain that displaying some compassion and taking an individual's financial situation into account to avoid crushing him completely and worsening his situation could go against the Canadian Charter of Rights and Freedoms?

Every day, in my constituency office for example—and this is probably true for most members here except for a few of them— we see people experiencing financial difficulties who are being dunned by hydro companies and unable to pay their hydro bills because they don't have any money. The interest on the previous bills are added to the interest on the future bills. There comes a time when we have to make some type of financial arrangement with the hydro company. The person requiring assistance provides us with personal information that we do of course keep confidential, and we conduct a sort of assessment of this person's ability to pay. It doesn't go against the Canadian Charter of Rights and Freedoms. On the contrary, it increases the individual's freedom to benefit from the good things in life.

[English]

The Chair: Excuse me, Mr. Loubier.

We'll suspend proceedings until someone asks this young lady to either leave or send the camera outside the room.

½ (1943)

½ (1949)

The Chair: I would like to thank the lady for accepting not to take pictures. We appreciate that.

Monsieur Loubier, did you have a point of order when I suspended?

[Translation]

Mr. Yvan Loubier: Yes, I'd like to raise a point of order to remind you of a few facts. When you received people from your riding during the hearings of the committee, you gave them permission to take pictures but when it is a representative of...

[English]

The Chair: That is not a point of order.

Cut the microphone.

[Translation]

Mr. Yvan Loubier: It's incredible!

[English]

The Chair: That is not a point of order.

Monsieur Loubier, the floors is yours.

[Translation]

Mr. Yvan Loubier: It's incredible! It's an outright dictatorship! I've never seen anything like it. It's incredible and reprehensible and I will make a point of bringing this to the attention of the Speaker of the House; I will be reporting on your dictatorial, arrogant, and cynical behaviour towards the members of this committee and the representatives of the first nations. This kind of behaviour is incredible!

To top it all, he calls for order when in fact he is creating disorder in this committee by provoking the first nations representatives present in this room, with the collaboration of Mr. Bryden. What a fine example of provocation!

Let me now conclude with my amendment. I won't even refer to you, Mr. Chairman, because you make me wild with rage. Mr. Vellacott is right; as a matter of fact, his previous amendment, in which he referred to the conditions for reimbursement, did in fact provide for consideration of the person's ability to pay, and this is exactly the purpose of my amendment.

Mr. Johnson, you refer us to amendment G-12, on page 204, dealing with clause 33. I think that in clause 13, it would be preferable to talk about people's ability to pay since we are dealing with a principle. Whenever a claim is made on an individual, then his ability to pay must be taken into account, that is the principle. In your proposed amendment to paragraph 33(d), reference is made to the way in which this principle is to be applied. In clause 13, it should be immediately stated that when an individual is expected to repay a debt, it will be based upon his ability to pay. Once we deal with amendment G-12, paragraph 33(d), we will concern ourselves with the way in which the principle set out in clause 13 is to be applied.

Earlier on, before the chairman started disrupting this committee, when his role, according to Marleau and Montpetit, is to maintain order, I was saying that it was a common practice to take into account people's ability to pay when coming to arrangements for payment. People come to see us in our riding office to ask us to help them sort out their finances and convince the hydro company, for example, to allow them to make a minimum monthly payment so that they can pay off their debt which would otherwise end up spiralling out of control month after month, with interest on top of interest.

It isn't against the Canadian Charter of Rights and Freedoms. On the contrary, it's perfectly admissible to help people. I don't think the Canadian Charter of Rights and Freedoms prohibits us from helping people who are going through a hard time. So I urge you to revise your position which, earlier on, led to a confrontation with people at the meeting, with the first nations representatives, and take into account the situation of the most disadvantaged, who need some help and understanding; it may not be easy for you to do so but the fact is that this approach is necessary when we are dealing with situations where people are unable to pay and they need some arrangement to pay off their debt, on a monthly basis.

I hope that the members of this committee will show some sense of judgment at least once today and they will adopt the amendment that I am moving to clause 13. I'd like to thank my colleagues Vellacott and Martin for supporting this amendment and I hope that the examination of this bill will continue in a spirit of calm, serenity and respect.

It's certainly not with the kind of attitude displayed by the chairman of the committee, so uncaring and cynical since the beginning of our study of Bill C-7, that we can expect to achieve a positive result. There is something that I find very disturbing in his attitude. Instead of encouraging harmony between our two communities, starting off with the people at this table and in this room, with the representatives of the first nations, he has done everything he can to increase the confrontation and to give free rein to his unbridled thirst for authority motivated by who knows what political objective.

½ (1950)

Before studying this bill, I had never seen, in my 10 years in the House of Commons, a committee chairman so cynical, arrogant, cavalier and nasty with people. He is so nasty that at every possible opportunity, he wants to kick people out for taking pictures, but he lets people from his riding take pictures without any problem. When the mikes are off, he calls us all kinds of names. He even calls our mothers and fathers all kinds of names. Those are the worst insults. I find it unacceptable that this goes completely unpunished. I hope that in its great wisdom, the government, since it is pulling the committee's strings, will decide to replace this chairman, because he is ruining relations between the first nations and the federal government. It's disgraceful.

½ (1955)

[English]

The Chair: Merci.

Before I go to the vote I will just say, for the benefit of my colleagues, I take a lot of abuse from this member and I'm willing to do that so we can proceed and eventually finish the work we have to do. I'm accepting the abuse--

Voices: Oh, oh!

The Chair: --and I have been for ten weeks, but I'm doing it for the dignity of other people on the committee.

Are we ready for a recorded vote on amendment BQ-28?

Voices: Oh, oh!

The Chair: I will wait until we can have a dignified vote.

(Amendment negatived: nays 8; yeas 3)

(Clause 13 as amended agreed to: yeas 8; nays 3)

(Clause 14 agreed to on division)

(On clause 15--Capacity, rights, powers and privileges)

The Chair: Next is amendment NDP-29. Mr. Martin.

Mr. Pat Martin: Mr. Chair, clause 15 is one that drew a great number of comments from witnesses who came before the committee in our task force, and I'd like to concentrate on their remarks about this bill more than anything else.

On behalf of the witnesses, I move an amendment to clause 15, which in its simplest terms removes the language from the bill pertaining to the legal capacity, rights, powers, and privileges of a natural person and replaces the term “natural person” with “self-governing entity”.

I think it's an important amendment of substance, even though it only represents a few words. It speaks to one of the most fundamental issues that was brought to our attention by witnesses as they presented across the country. For the record, of those witnesses who made presentations to the committee during the tour of this committee, 191 were opposed--I think it's safe to say vehemently opposed--to the bill in its entirety, and only ten were interested in any aspects of the bill. Of those ten who were in favour, one was the minister himself and one was a technical adviser who was brought in as a witness early on in the presentations. Of those remaining eight, most had serious reservations about aspects of the bill and only spoke in favour of one clause or another, as it pertained to a particular interest they had.

No one could make the claim that what was found in the bill accurately reflected anything they wanted to see amended about the Indian Act. There's no correlation between what we were told were the priorities of first nations people and what we find in this bill. We can't find those people. The government tells us they are out there in sufficient numbers to justify and warrant a very rigid and prescriptive piece of legislation, which we say infringes on aboriginal rights. Yet when offered an opportunity to come before the committee and tell us why this bill is good, they're nowhere to be found. We canvassed the countryside in a laborious and agonizing four-week cross-country national tour. If they exist in such great numbers, where are they? We don't see them.

We found that most people were surprised at the depth and breadth of this bill. Even though it was featured as being about accountability and transparency, it has very little to do with accountability and transparency. We believe, and witnesses testified, that it has more to do with minimizing and reducing the fiduciary responsibility of the government and offloading that responsibility onto communities.

I don't know why Mr. Bryden feels it's useful at all to heckle to me. It's just ridiculous to keep this running diatribe going to throw me off my stride. It's neither here nor there for me. If it makes him happy, he can carry on.

This is a serious amendment. Mr. Bryden is smirking and isn't willing to entertain the serious argument we're going to have about this clause. But this is not a frivolous amendment, and I challenge anyone to suggest otherwise. It speaks to the very issue of our inability or reluctance as a government to embrace the concept of sovereignty among first nations. That's the substance of the issue here. We seem unwilling to have manifest in the bill the stated objectives of the minister, when he says it's about a stepping stone to self-governance. There's very little associated with self-governance in this bill. It's more about undermining or possibly derogating from and diminishing inherent and constitutionally recognized aboriginal and treaty rights.

¾ (2000)

This clause was brought to our attention, and I'm pleased to see that the person who raised this issue first in the presentations we heard is with us in the room today. That's Chief Roberta Jamieson, presenting on behalf of the Six Nations Council. She brought to our attention that under clause 15,

The legislation proposes unilaterally to change the legal status of Six Nations and all First Nations. We will be characterized not as a nation, not as a government, but we will be reduced to having the legal capacity, rights, powers and privileges of a natural person. With this change, Six Nations--your sovereign allies--become even less than a municipality.

This is one of the concerns that has been brought to our attention, that the entire suite of legislation developed in Bill C-6, Bill C-7, and Bill C-19 has the effect of corporatizing or incorporating our independent and sovereign first nations, rendering them as the incorporation of a municipality—or in the view of some, even less.

The language that I seek to introduce here does not change the recognition of the fact that first nations and bands have the right to enter into contracts and agreements; or that they have the right to acquire, hold and dispose of rights in property; or that they have a right to raise, expend, invest, and borrow money; or even the right to sue or be sued; or to do anything ancillary to the exercise of its legal capacity, rights, powers and privileges. That type of language would remain in the bill. What would change is the basic or fundamental recognition that clause 15 recognizes that a band has the legal capacity, rights, powers and privileges of a self-governing entity. This would be in keeping with the purpose of the bill in clause 3, with the spirit in which this whole exercise was undertaken, and with the tacit promise—at least on the part of the minister—that this is what this exercise is seeking to achieve, namely, independence and recognition of the sovereignty of first nations to govern themselves, as per section 35 of the Constitution Act, 1982.

We have had other presenters who made reference to this particular clause. The vice-chief of the Assembly of First Nations in British Columbia cited specifically that these changes should be made to the language in the first lines of clause 15. We feel strongly that it would be in keeping with the stated principles and that it would in fact be a gesture of goodwill if language identifying bands and first nations as self-governing entities were incorporated at this stage of the bill, before we started to outline what the powers, privileges, and rights of a band are, as stated in this act.

We've been critical of the prescriptive nature of the bill in its entirety, but it's the tone as much as the content in many cases.... And we are also acutely aware that the term “natural persons” has a very real legal meaning.

¾ (2005)

The Chair: Excuse me, Mr. Martin, I apologize.

The camera is up again after word was given to us that it wouldn't be used. We will resume when that person is removed, or is asked to leave this room.

¾ (2008)

¾ (2019)

The Chair: Mr. Martin, please resume proceedings.

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

On the questions that have been raised, I wish that I could give my time to Chief Roberta Jamieson, who is here and who should rightfully be the one presenting this issue, because she's the authority on this subject. It would make sense to ask one of the leading authorities on this issue to actually make the presentation.

I'd ask for unanimous consent to forfeit the five minutes that I have left to allow Chief Jamieson to make the presentation.

The Chair: I'm a member also.

Mr. Pat Martin: Mr. Chair, it's frustrating that a bunch of non-aboriginal people are sitting around this table making decisions affecting the lives of aboriginal people right here in this room.

(Applause)

Mr. Pat Martin: If anyone fails to see what's fundamentally wrong with this picture, there's something wrong with them.

Sticking to the issue of natural persons in this very important clause, the idea or legal definition of natural persons is, in and of itself, a Eurocentric construct. Frankly, it's not in keeping with the way that first nations self-identify; in fact, it could be in conflict with that.

Also, we are concerned about the legal status now of natural persons. One example that was brought to my attention is that the right to sue and be sued is one thing, but does this have the effect of off-loading the fiduciary responsibilities of the minister onto this newly established legal entity? In other words, if a member of a community were frustrated that they couldn't get their toilet repaired by the band council in a legitimate amount of time, could they sue for damages, instead of going to the minister or through the natural route for that type of satisfaction? This is a very real concern.

We're uncertain about what the full impact of this new legal entity will be, including on a band. Again, a band is a construct of the Indian Act, not a traditional construction. The whole idea of band and council is something that was imposed on the first nations, with the first introduction of the Indian Act in its original format.

We're apprehensive about the consequences of this. We have legal opinions, including the Nahwegahbow opinion that was commissioned when it was still called--

¾ (2020)

The Chair: Thank you, Mr. Martin. This completes your time.

Mr. Hubbard.

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

I do want to call upon our witnesses. I would like to point out that last evening we had a good number of people visiting us, as we do tonight. Following our meeting, I had discussions with some of them early this morning. They expressed concerns about first nations land; in other words, reserve lands.

I would like our witnesses or legal experts to maybe just explain subclause 15(4) to everyone, and following that, to provide probably a brief explanation of the privileges of a natural person, and what these allow chiefs and councils, or first nations peoples, to do.

Mr. Warren Johnson: First of all, to be clear, because there appears to be some confusion on this issue, we don't understand, nor have we seen any specific analysis, that this creates a new legal entity. What this does is talk about capacity. And specifically in subclause 15(3), although you didn't reference that one, it clearly indicates that this is not to be interpreted to mean to have changed the legal status of the band.

While we must admit that the legal drafters don't like redundancies, and we've talked about this in a number of areas here in the discussions of the committee thus far, this is in areas where these issues were of great sensitivity in the consultations and were raised. There's an extensive discussion, a variety of legal opinions, all publicly available in the joint ministerial advisory committee on this report.

As a result of that, great care was taken--and that's in the sections you reference--to provide language for absolute clarity and clarification that could be read by the layperson to be crystal clear. And that's why specifically it references the point you raised, that nothing in this section affects the interest in reserve lands or Indian moneys, etc.

So while in a legal sense that would be redundant, because you couldn't do that through the legal capacity statement, for greater assurance, for greater public confidence, because this is an area of great sensitivity to the people consulted, we have a number of sections added to provide.... And you note they start “for greater certainty”. Care was taken in them to be talking about capacity, as opposed to status, and the distinction here is this language in subclause 15(1) defining the capacities under (a), (b), (c), (d), and (e) is what is commonly found in all self-government documents, negotiations, all the first-nations-led legislation, the First Nations Land Management Act. All those activities of first nations deal with this kind of language and these kinds of concepts in quite similar manner.

The common debate is only whether it's helpful or not to include the natural person reference at the beginning of one, which I think is the other part of your question. That gets to be a discussion my colleague may be able to help me on. But the point is, if you don't put that there and you've forgotten something important in (a), (b), (c), (d), and (e), you don't have any opportunity to do anything about it. But since “natural person” is a common legal description, then if you haven't put a specific power or privilege in (a), (b), (c), (d), (e), it would be captured by the definition of natural person. And that's the way, as I mentioned, these other documents and agreements approach it as well.

¾ (2025)

Mr. Charles Hubbard: The point, Mr. Chair, I'm trying to make, and I'd like to draw it out even clearer, is that in terms of reserve lands we talk about in paragraph 15(1)(b) of the first point, they can acquire, hold, and dispose of rights and interests in property, but in terms of reserve lands, a chief and council cannot mortgage those lands and lose those lands to another party. Is that correct?

Mr. Paul Salembier: That's right. The Indian Act continues to apply to dispositions of reserve land.

Mr. Charles Hubbard: And under property, paragraph (b), I would assume, and perhaps you can clarify this, we're talking about movable property mainly or property off reserve that is held by a first nation.

Mr. Paul Salembier: It could include real property off reserve held by the first nation as well, that's quite common.

Mr. Charles Hubbard: So with that, Mr. Chair, I would like to make sure that people are not worried about this bill, which might become an act, and that we have a strong assurance that in no way can reserve lands be disposed of unless it is through work with the Crown or with the Government of Canada, and even then it never happens. Is that correct, basically?

Mr. Warren Johnson: That is correct. There are two principles here: the concerns I articulated at the beginning on this whole discussion on legal capacity, not interfering with status, and the other concern was a commitment throughout the process on this bill that it did not affect the fiduciary obligations, which include all of those issues with respect to the management of reserve land and the disposition of reserve assets and Indian moneys. That's why it's specifically referenced here that they are not to be affected, and as well there is the fact that all of those subject matters are excluded from the whole of the act.

Mr. Charles Hubbard: And in terms of the purpose of clause 15, could you explain the intent of that maybe a little but further?

Mr. Warren Johnson: The difficulty is that the Indian Act does not define the legal capacity of first nations. Courts have held in cases that in fact this is the legal capacity of first nations. But it continues to be subject to legal debate. It does cause difficulties for some first nations in entering into major commercial undertakings and joint ventures on and off reserve. This was a very strong interest in all the consultations. You can see it in all the reports. You can see it in the JMAC discussions. It's whether something can be done here but with the guarantees we've just been talking about to facilitate those kinds of transactions and to avoid the situation where.... One of the members was interested in the impact on court cases. This is an area that is in the courts a lot because of contractual disputes, etc., and claims that the authorities to enter into the contract in the first place didn't exist. So this is an area that will clear all of that up.

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

The Chair: Thank you, Mr. Hubbard.

Does anyone else wish to comment?

Monsieur Loubier.

[Translation]

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

I am going to support the amendment put forward by Mr. Martin, which is in keeping with the spirit that should be behind this bill. Given that the preamble refers to the inherent right to self-government, it seems to me that the best way to define a band's capacity would be to refer to a self-governing entity, as proposed by Mr. Martin. You can't start off talking about self-government and then say that the band has the capacity of a natural person. It is either about self-government and creating an independent level of government, i.e., a self-governing body as Mr. Martin put it, or about maintaining the status quo. Mr. Johnson says that is the normal wording, but that is what Bill C-7 should change.

The minister says Bill C-7 is supposed to change the way the first nations are treated, and that they should constitute a third level of government and form self-governing entities. A government is a self-governing entity. That is what the legislation should say, in section 15 in particular, but also in the other sections, using a concept like the one proposed by Mr. Martin of the NDP, who refers to a self-governing entity. You can't pretend on the one hand that you are making changes and maintain the status quo on the other by saying that this is the most common and customary wording.

Before I go on, I would like to ask Mr. Johnson a question that relates to the answer he gave Mr. Hubbard when Mr. Hubbard said that if a band had the capacity of a natural person, it would be out of the question, for example, for the band to mortgage reserve lands. In other words, reserve lands cannot be used as collateral when, for example, a band council takes out a loan. I would like him to clarify that and tell me how to reconcile clause 15 of Bill C-7, where it says that the capacity of a band is that of a natural person, with Bill C-19, where it says that it is possible to mortgage reserve lands. In your answer to Mr. Hubbard, you said that if Bill C-7 is passed, because of the expression "has the legal capacity, rights, powers and privileges of a natural person", the land won't be mortgageable. But according to our analysis, Bill C-19 makes those lands mortgageable. How can the two bills be reconciled? I have some trouble with that.

¾ (2030)

[English]

Mr. Warren Johnson: I haven't taken a look at that specific clause in quite some time. There may be a difference in Bill C-7 and Bill C-19 whether the term “natural person“ is included in this clause. What I said earlier in terms of the normal treatment is that what you see in subclause 15(1) is very similar to what you see in all of the self-government agreements being negotiated and in place and in all of the first-nations-led initiatives, Bill C-19 being an example coming forward to this committee and the First Nations Land Management Act, etc.

The only debate that occurs with those developing the legislative proposals around that from time to time, since this is a common concept, is whether or not it's useful to include “natural person” in that introduction. The addition of “natural person” to that list would ensure that if there were any other powers and privileges that should be there and that you have forgotten or weren't aware of at the time of writing that, you wouldn't lose them forever and require a legislative amendment to capture them. So sometimes you see it with “natural person”, and sometimes you see it without. That becomes, quite frankly, a fairly esoteric legal discussion.

My colleague may want to comment on that, if that would be helpful to the member.

[Translation]

Mr. Yvan Loubier: No, it is not all that esoteric. You have a bill that may just get passed because the Liberal majority wants it passed. In one of these bills, in subsection 15(1), it says: "A band has the legal capacity, rights, powers and privileges of a natural person."

According to Mr. Hubbard's interpretation of what you have said, that would protect the first nations against unfortunate situations such as borrowing money for basic needs like the waterworks, using lands as collateral and losing those lands to the banks. That is how Mr. Hubbard interpreted it.

If Bill C-7 is passed, according to that interpretation, we would have the assurance that those lands would not be used as collateral and that the first nations would not be dispossessed of them. But Bill C-19 says that in order to finance critically needed infrastructure, the first nations will be able to use their land as collateral. It is Bill C-19 that worries the first nations most. Self-government is a good thing, but at the same time, if the first nations mortgage land and are dispossessed of it, that is no better. That is another problem. I have some concerns about how these two bills fit together.

¾ (2035)

[English]

Mr. Warren Johnson: I think there are two issues here. We're talking about a different dimension, and my colleague may want to comment on that. In one case we're talking about an institution, the legal definitions in Bill C-19, or where they are to define the legal capacity of the institution. We're dealing with a different subject matter here. This is of the first nation. That would raise different questions in the committee. I'm sure I will want to look at that in the context of Bill C-19. Secondly, I think there must be a misunderstanding, because we were pointing out that this provided extra certainty that the lands would not be affected in the way you referenced, and as I understand it, that's also the case in Bill C-19. So in neither case are reserve lands used as collateral in the case of being able to be lost.

The Chair: Did you say that lands should not be used?

A voice: Reserve lands.

Mr. Warren Johnson: They cannot be used in either case. The lease on it could be if there were a leasehold interest. But Bill C-19 is about a borrowing pool and self-financing within a borrowing pool, not about security on the individual reserve. It's excluded here in the clause I cited. I don't understand that it occurs in either case.

[Translation]

Mr. Yvan Loubier: Mr. Johnson, could I make what I consider a serious request of you? If you have time by tomorrow perhaps, could you check again whether there is consistency or contradiction between the provisions of clause 15 dealing with a natural person and the provisions of Bill C-19? I would like you to satisfy me tomorrow that there is no contradiction between the two provisions. I am not saying that we won't be able to vote on this, but it would be nice to have some clarification, because I was under the understanding there was a major problem because of Bill C-19, and you say there isn't. But if Bill C-19 goes through, there is a contradiction between the two. I would really like that all cleared up.

The Chair: Are you finished, Mr. Loubier?

Mr. Yvan Loubier: Yes.

[English]

Mr. Paul Salembier: Perhaps I could help.

Bill C-19 doesn't have any provision regarding legal status or legal capacity of a band. As Mr. Johnson indicated, the sections relating to legal capacity are those relating to legal capacity and status of the institutions created under Bill C-19.

The primary purpose of the first nations finance authority that would be sought to be established under Bill C-19 would in fact be to use tax revenues from first nations from taxation of first nations lands as collateral for borrowing on the bond market. It would be the tax revenues that would be the collateral, not the underlying land.

[Translation]

Mr. Yvan Loubier: Mr. Salembier, if you use expected future land use revenue for 30 years as collateral, for example, you jeopardize the value of that land. So you give the first nations back the land that belongs to them and use the land use revenue from that land for the next 30 years to finance the waterworks, for example. That would create a situation in which, because the revenue the land is capable of generating is mortgaged for the 30-year lifespan of the waterworks system, the first nations, after being dispossessed of their land, would see their land values drop because the land use revenue for the next 30 years is already mortgaged by the infrastructure investments.

Even if it is not used as direct collateral, or mortgaged, the land you give back to the first nations will suffer a drop in value. At any rate, there is some doubt about that.

Mr. Salembier, what do you have to say about that?

¾ (2040)

[English]

The Chair: The time is up. Is this information that could be beneficial to all members?

Mr. Warren Johnson: Yes. The question for the committee is whether it's beneficial in the context of this discussion or in the context of Bill C-19 when it's before the committee.

The Chair: We're not doing Bill C-19 right now. The time is up, anyway.

We'll go back to Mr. Martin for closing remarks.

Mr. Pat Martin: Mr. Chair, I would point out that our reason for suggesting this amendment came from legitimate concerns brought forward by people whose opinions I have a great deal of respect for. I wish, if I had more time to deal with these amendments, I could access the opinion put forward by Mr. Bradford Morse of the faculty of law at the University of Ottawa. Unfortunately, the only quote I have I can lay my hands on here is:

A simpler and far more appropriate alternative would be to confirm that First Nations have full legal capacity as governments, not as natural persons, including the capacity to carry out all the activities specified in subsection (1).

Bradford Morse is a noted authority. I think a number of people here are familiar with his work, and it's his opinion that this change should be made, a far more appropriate alternative.

We also, as I said, cited Chief Roberta Jamieson's presentation to the committee. In her submission she strongly recommended this very language change. Whether she'd been in collaboration with Professor Morse or not, I don't know.

But we were concerned and are still concerned about an issue that's been brought to my attention just now as well. What's wrong with this picture is that not only do those of us around this table not have a vested interest other than as members of Parliament as to the effects this has on people's lives, but we're also going to employees of INAC for their comments on it. It's clearly a conflict of interest situation, which I pointed out before.

I quote Grand Chief Carol McBride from when she made her presentation to us, saying that the royal commission concluded that the Department of Indian Affairs should have no role in reforming Indian policy because the department was too tainted by conflict of interest and because its whole culture was based on the control and manipulation of first nations. The sham consultations and the process that have led to the creation of this bill are good evidence of what the royal commission was talking about.

As I mentioned at the outset, she says “We are fully in support of accountability, democracy, and transparency. We are actively applying these principles, and if we are given the respect we deserve, we will succeed.” What I would like to know is, why isn't the Government of Canada prepared to live by similar principles? I suppose she went a little beyond the topic I was after, but it's that type of input that has been repeatedly raised with us.

A glaring contradiction exists because of the Minister of Indian Affairs serving two masters. His first duty and obligation as the Minister of Indian Affairs is the fiduciary responsibility of looking after and putting first the best interests of aboriginal people. Only then does he serve the interests of the government, I suppose, whose interest is to get out from under the fiduciary obligations and responsibilities they find themselves in. In all these issues we can't help but point to that glaring contradiction.

In dealing with the language change we're suggesting here, moving from a reference to “a natural person” and the legal definition or meaning that deliberate language has to a reference to “a self-governing entity”, I would ask the officials, what other options can they consider? If you could, in answering that, explain why other options were put aside and this particular option chosen. Can you explain the rationale in choosing “a natural person”?

¾ (2045)

Mr. Warren Johnson: That may have been implied in my earlier comment. The options that were considered were all the options put forward in the consultation and in the advisory process. You have the full discussion. I think there are five or six options referenced in the JMAC report that were looked at. They all revolved around the same question.

The most substantive question in the end was the question I outlined earlier: Was it more or less helpful to have the natural person reference? I think that was one of the questions specifically put before the committee in the information provided in the briefing provided to the committee at the outset, because there is some debate about that.

This was put forward because in this case if there is a specific legal ruling that comes up in the future defining “natural person” to include some other capacity that's of use to first nations, which may not be clear in (a), (b), (c), (d), (e), as presently listed, then that would be automatically available to them. If you didn't have that there, then without a change in the legislation, it would always be restricted to the exact meaning of (a), (b), (c), (d), (e), as here.

In case that created an uncertainty, while we did not think it did, there were some concerns that definition of natural person could stray into an area that you didn't want to get into in relation to the fiduciary and reserve interests we were talking about earlier--people worried about municipalization, taxation, there was a whole variety of issues they were concerned about--so the clauses in 2 were all added to provide legal certainty that couldn't happen. So it was this compromise that was thought to be the best kind of model to put forward for this committee's discussion.

Mr. Pat Martin: The Nahwegahbow legal opinion that was commissioned when we were still looking at Bill C-61, in its former name, raised more questions than it did answers in terms of the use of the term “natural persons”. Some of these questions perhaps I could put to you, too. I'll simply read this. It says:

First of all, what will be the effect of saying that a band has the legal capacity of a 'natural person'? Does this mean a person other than an Indian? What does it mean to say that the 'legal status' of a band will not be affected? Does this refer to 'tax exempt status' under the Indian Act? Does it include historic legal status as units of self-government? Does it include legal status as holders of Aboriginal title, or Aboriginal and treaty rights? In this regard, subsection (4) says the section does not affect the interest in 'reserve lands' or 'Indian moneys', but what about Aboriginal title, and Aboriginal and treaty rights? The section does not say those rights are not affected.

Can you speak to any of those?

Mr. Warren Johnson: Yes, I think it can be done quite easily, although that was an extensive list, and my colleague may be able to help me if I miss something here.

All of the references, but for the first and last two, use the term “status”. This does not affect status, that's clear in subclause 15(3). So it does not affect legal status. So that deals with all but the first and the last two.

I think the last two talked about treaty and aboriginal rights, although I don't know the exact terminology. As constitutionally protected rights, they cannot be altered by this, in any event.

You might have to repeat the first one, because I'm not clear on what it was, but my colleague may be able to help on that one, on any reference you may have on what I just said.

¾ (2050)

Mr. Pat Martin: Before you do, when you say “cannot” infringe on aboriginal treaty rights, we know it can, and in some cases it does, if it's deemed to be desirable by the government, or if they can justify that the benefits somehow outweigh the injury. That's the whole point here, that some people are saying that aspects of the bill do in fact infringe on aboriginal or treaty rights.

Mr. Warren Johnson: Sir, I may be wrong, but I didn't hear the word “infringe” when you read that. But I may have misheard you.

Mr. Pat Martin: I see. What did you think I meant, extinguish?

Mr. Warren Johnson: Extinguish or materially alter, or something.

Mr. Pat Martin: Derogate from, diminish, infringe upon.

Mr. Warren Johnson: In that case, the committee for its own assurance has put a non-derogation clause in.

Mr. Pat Martin: It was only after great effort that we managed to get a non-derogation clause in. It was deliberately left out at first. Whether it survives the next stages remains to be seen.

I'm sorry, Paul, did you have anything you wanted to add?

Mr. Paul Salembier: No, I don't have anything to add to that.

Mr. Pat Martin: It's the idea of a non-derogation clause. It leapt right off the page for everybody who read this bill that there was no non-derogation clause, even though in the memorandums to cabinet, specifically as an assurance to members of cabinet, it says:

To give further assurance to first nations, the proposed legislation contains a declaratory, non-derogation provision, as previously used in federal statutes, stating that 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.

The Chair: Thank you, Mr. Martin. Your time is up.

Mr. Pat Martin: I haven't finished.

The Chair: I gave you 20 seconds more--

Mr. Pat Martin: I can't deal with any issues of substance in ten minutes. That's what's wrong with this picture; now this clause is going to proceed without having been--

The Chair: Are we ready for the question? A recorded vote on NDP-29, page 113.

(Amendment negatived: nays 8; yeas 2)

The Chair: NDP-30, page 114. Mr. Martin.

Mr. Pat Martin: This amendment seeks to make changes to clause 15 as well. We suggest alternative language. If people don't like the first proposal then we have a second option for them that they may wish to consider. This was moved by the Norway House Cree Nation, who presented to the committee when we toured in Winnipeg. I have great respect for the Norway House Cree Nation and the developments they've undertaken in their community to build a healthy, vibrant, and viable self-governing first nation within the limitations and confines of the act as they find it.

But they too found fault with the idea that when talking about legal capacity, the reference found in clause 15 was to natural persons. They believe it should refer to the powers and privileges of an indigenous nation, therefore embracing and reaffirming the concept of nationhood, of self-governance, of independence, of sovereignty.

These are the very principles that we should be establishing at this stage of the debate of this bill, because one of the advantages of having the bill come before the committee at this stage is that the principles of the bill are not fully gelled or established; they're still in a state of flux and may be influenced, formed, and crafted by the process we're going through here today.

If we're still crafting the tone of this bill, even in language, so that we're careful that the language is consistent with the preamble and the purpose of the bill and the stated intentions of the bill, then we should be consistent. At every opportunity we should be referring to first nations as nations. And whatever entity we want to use to describe that grouping of people that exists as a sovereign entity, the term “nation” is the one that first nations wish to use. We should be receptive to the inputs we received in our tour; otherwise the tour is, frankly, meaningless and the consultation process is even less meeting the requirements of or any meaningful definition of true consultation.

Consultation has not occurred unless there's accommodation of some of the input that's been given and the incorporation of what we've heard. When the minister tabled this bill and introduced this bill, the commitment was made that this bill would be crafted with the participation of first nations. That didn't happen in the original consultation process, or so we're told by those who participated in the consultation. They felt they had very little or no actual input into the final outcome of the bill or what the bill would ultimately end up looking like.

Now we can see there was no consultation, in any meaningful sense, in the second round of consultation, which was the tour of this standing committee. We heard a great deal of information. We heard very thoughtful and well-crafted submissions.

I should mention there was no funding or resources made available to anybody who presented to this committee. They were left up to their own resources to research and develop this bill, in stark contrast to the legitimate outreach that was associated with the Royal Commission on Aboriginal Peoples, where those who wished to make a submission could make application for financial support so that they could do justice to the complexity of the issues we're dealing with here. But the only funding that was made available to any group who wanted to present to the committee was, I believe, airfare and hotel for them to physically come to present.

I was very impressed with the detail and the thoughtfulness that went into many of the briefs and presentations, and it leads me to believe that's where the expertise lies: in the many people who made representations to the committee. These are authorities on these subjects. These are the very experts in the field. These are people in many cases who have dedicated their life to this struggle. We've had people who were involved as long ago as the 1969 white paper, a document that so offended aboriginal people that it spawned a whole generation of militancy and activism in its assimilation objectives.

¾ (2055)

Now, many people have followed that struggle through many incarnations of efforts and attempts to amend the Indian Act and have become expert in this very detailed language. I don't do justice to these arguments, and I don't apologize for it. First of all, I'm exhausted. Secondly, I'm not an authority on these subjects; I'll be the first to admit it. I'm trying to accurately represent and reflect points that have been brought to my attention, but not being a lawyer....

We're dealing with very weighty constitutional issues in many senses--and I see I'm being mocked and mimicked again by my learned friend because he has more university degrees than I do. Well, so be it. If it makes him feel good to make fun of a carpenter who's trying to find his way through constitutional issues, more power to him. He can sleep better tonight, I suppose.

The fact is many of the submissions we heard.... The irony is, where this bill got off to a bad start right from the get-go was that the minister didn't like what he heard from the experts in the field, the legitimately elected leadership of aboriginal communities. They told him he was on the wrong track. Well, he didn't like that message, so he circumvented those people and found some people he could co-opt or talk to...at least an excuse to say he did consult with somebody. But he didn't listen to the authorities, the experts. These people are elected leaders in their communities because they have expertise in these issues.

So we had these thoughtful, well thought out, well-presented briefs and presentations, none of which found their way into this document. The document we have before us today has been unchanged from when we started the consultation process to where we find ourselves today.

The only place any of the commentary we've heard has found its way into this debate is through the amendments put forward by opposition members, because we heard them. We tried to understand them and accurately present the points of view that were made to us. The really cruel thing about this is that the whole process has ignored the very real, legitimate concerns that were brought forward when people said, in no uncertain terms, they don't want this bill. They said if this is our one shot in this generation to amend the Indian Act, these are not the things we want addressed. Other priorities are our top-of-mind issues, not these.

The fear is it will be another 50 years before the Indian Act is opened up in any extensive way again, because it's rare that a government finds the political will to want to do that. So it's being sold as a stepping stone, and it might be a stepping stone that people are stuck with for many, many years--in fact, for generations to come.

We've heard comments from numerous...I've tried to inject some of the comments we heard from around the country. For instance, the Confederacy of Mainland Mi'kmaq said here you have a wonderful new car and you're not provided the gas or the keys to it. So even though the foundation or the form is there, there's nowhere to go with it. It's like setting up communities to fail, to fall back, because the funding is not provided. It wasn't even provided for the initial input. If you don't have the gas to go anywhere and the keys are not there, the control is taken away from the leadership, and overall, the mode of going forward is not there.

This was in the context, Mr. Chairman, of trying to describe successful models of economic development. We heard from authorities in the field, and the Harvard project specifically, that successful models of economic development are inexorably linked to true practical sovereignty, true independence, true self-governance. In other words, you can't have one without the other. That's been the empirical evidence everywhere this research and study has taken place.

So this gave no hope or optimism to the Confederacy of Mainland Mi'kmaq, and they suggested the bureaucratic tinkering to the Indian Act would not have the result of moving people forward.

The chiefs of Ontario, when Grand Chief Charles Fox presented, said that Bill C-7 in its entirety is unacceptable. He said tinkering amendments were not possible, and the Chiefs of Ontario would not discuss them. If the bill were to be passed, he said, there would be permanent, long-term damage to the bilateral relationship between first nations and Canada. The next federal government would have to deal with the negative consequences, so the bill should be scrapped immediately.

¿ (2100)

Those are the kinds of comments and input we heard on our tour. That should have been all we needed to hear as members of Parliament. It's a failed effort. It's not acceptable. We don't need to hear any more. Go back to the drawing board. If you're trying to achieve specific objectives, this is not the vehicle to use.

The Chair: Thank you, Mr. Martin.

Mr. Hubbard.

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

One can't help but notice Mr. Martin's opinions aren't too much influenced by the facts.

For example, in clause 3, which we've already passed, we see the bill, the proposed act, is on an interim basis. We have heard witnesses across the country. We've come back and made a significant...in fact, there are almost 200 amendments that have been proposed in the last couple of weeks, and we're working diligently on them. Certainly, it indicates there will be changes.

I'm concerned with his opinion of the witnesses. They are expert witnesses, and he seems to accuse them of having some ulterior motive. For the record, Mr. Chair--and I believe I'm correct--both our expert witnesses are not from the Department of Indian Affairs and Northern Development; we've had expert witnesses from the justice department. And I'm surprised members would berate the people we bring to the table to give us expert legal opinions on what the bill is about.

I find it also rather disturbing when we try to bring out a concept about leasing and taxation. It's my opinion that we have never asked our first nations people to pay taxes to the Government of Canada, but our first nations people, in terms of this bill, will be enabled to tax people and residents who may be on their reserves.

A voice: We've already paid our taxes, you idiot!

Mr. Charles Hubbard: That is the opinion of the chief and council on what they do. But in no way is our government asking or demanding or insisting that chiefs and councils be involved with taxation.

A voice: We've paid our taxes with our ancestors lives.

Mr. Charles Hubbard: We talked about the idea of the corporate body--

A voice: Our ancestors paid your salaries.

¿ (2105)

The Chair: Thank you, Mr. Hubbard.

We will suspend.

¿ (2106)

¿ (2122)

¿ (2125)

The Chair: I call the meeting to order.

We will resume proceedings on NDP-30, with Mr. Martin at three minutes and twenty-three seconds. The floor is yours.

Mr. Pat Martin: Excuse me, Mr. Chair, did you say that I have three minutes and twenty-three seconds?

The Chair: That's all you have used up.

Mr. Pat Martin: Oh, that's all I've used up. Very good. Thank you.

Mr. Chair, we were in the process of making a number of points outlining some of the objections we heard across the country. I was about to raise some of the concerns until I was distracted. The comment of those representing the National Aboriginal Law Section of the Canadian Bar Association is, I think, worth noting, especially for those who may have just joined the committee as a substitute:

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

For those who weren't satisfied when they heard that 191 aboriginal organizations had insisted that the bill be withdrawn, even the Canadian Bar Association is of the opinion that we're on the wrong track, we're not going to achieve what we set out to achieve, and in fact we may be creating more problems than those the bill sought to address.

It's interesting for me to try to predict the consequences of this bill as it follows through its progression up to and including November. November is a pivotal date in our political history because that's when we're going to change prime ministers. As we change prime ministers, in all likelihood we'll change the Minister of Indian Affairs. So the architects of this bill, which nobody wants, will be gone. But the problem is that we will be saddling the new Prime Minister and the new Minister of Indian Affairs with an unmanageable nightmare.

In conversations I've had during this recent brief break, what has come up is, how does the government intend to implement these fundamental changes to the way first nations govern themselves if there's a lack of cooperation on the other end? How does it see this happening in any kind of smooth transition?

The government has budgeted $110 million a year, $550 million, to try to force these amendments down the throats of people who neither want them nor need them. But it raises an even larger issue. If there is what I call bureaucratic sabotage by the dragging of feet or a lack of cooperation, that figure could quadruple. It could go wildly out of control. So we're looking at an open cheque book here. We have no idea what it's really going to cost. We've asked the minister through the officials if a risk assessment has been done as to what the anticipated cost could be if the flurry of court challenges that we predict do in fact come about and whether that is contemplated in the existing $110 million per year to implement Bill C-7. I don't believe it is. I think that's another cost that doesn't show up in the calculations.

I do have a brief outline here of where they expect anticipated costs to occur. I notice they have another $1.3 million budgeted for the public relations strategy in trying to sell this bill. That amount will be required to cover INAC communication initiatives mentioned here for the fiscal year 2002-03 alone. They predicted they'd spend $10 million on the original consultation, which went nowhere. That turned into $15 million. Maybe unforeseen costs came about when they had to buy support from the Congress of Aboriginal Peoples and the Native Women's Association. When they ran into resistance from the Native Women's Association of Canada, the established legitimate representative of aboriginal women, they simply cut their funding and created a brand-new native women's association that would play ball and cooperate. It's the height of cynicism the way this was conducted.

¿ (2130)

I note that this is an additional cost factor to try to market and promote this bill. The selling of this bill has been enormously expensive; now that has turned into $15 million. I predict that the $1.3 million to promote the bill and sell it, the public relations campaign, is going to be a low figure too because I don't think they had anticipated the organized resistance they've run into across the country.

We note again in the internal documents that they suggest there are random flare-ups of opposition across the country. Just months ago that's how it was, and they didn't anticipate it being a problem because the opposition was not organized. Well, the opposition is organized now, Mr. Chairman. The opposition is very well organized and cohesive and united in their voice. A lot of leaders have gone down underestimating the power of the people when they get organized, and in this case we're seeing a classic example of a grassroots movement right across the country standing in opposition even still.

On behalf of those people, I can say it's a very powerful thing to experience. I was honoured today to attend the AFN confederacy at the Marriott Hotel and see the level of organization and the strategy and the plan. I should point out that a resolution has been passed empowering the grassroots to escalate this activity across the country. It's empowering grassroots to organize at the local and regional levels against this suite of legislation.

I think it's important to serve notice of what's happening. This is the document that came out of the Special Confederacy of Nations of April 29 and 30 in Ottawa:

Whereas first nations have consistently experienced various forms of genocide historically and contemporary through the Government of Canada's legislation, regulations and political rhetoric; whereas the aboriginal and treaty rights of all first nations which are confirmed by section 35 of the Constitution Act are being threatened by Canada's proposed suite of legislation; whereas the chiefs have acknowledged the grassroots appeal for direct involvement, direct action and other approaches; and whereas the empowerment of our people on the direct involvement and action by first nations at the local and regional levels is urgent and critical to protect our inherent and treaty rights; therefore, be it resolved the chiefs and assembly endorse the direct involvement and/or direct action by first nations people to address and demonstrate against the Government of Canada's political agenda to eliminate the first nations inherent and treaty rights by legislation, regulation and policies, and be it further resolved that the chiefs continue to implement the Assembly of First Nations Action Plan, the December 11, 2002, document regarding opposition to the INAC suite of legislation collectively, progressively and strategically.

This document authorizes escalating the activity to its next natural level. This document, given serious consideration when going through many drafts and amendments, is an enabling document that will be the preview of an escalated series of action plans across the country.

So I think the selling package, the budget for the marketing of this bill, will exceed the $1.3 million they've anticipated.

¿ (2135)

The Chair: Thank you, Mr. Martin.

Now we'll go to the vote on amendment NDP-30.

(Amendment negatived)

The Chair: We're on BQ-29. Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, things seem to be moving quickly all of a sudden. Maybe we are getting our second wind after so many virtually sleepless hours and will be able to properly analyze the bill and do our job as lawmakers, but I seem to be getting my second wind when I see an amendment that defines the first nations as a third level of government, a real government. You can't talk, in the preamble to a bill, about the inherent right of self-government and the fact that the first nations are true nations within the meaning given by the United Nations, or about a desire to negotiate self-government, without using the term "government" in the body of the bill itself. Either the first nations constitute true governments with which we will negotiate self-government, or we keep dealing with the first nations using convoluted terms like "corporations" or "natural persons".

It seems to me that where self-government negotiations have been successful, defining the status of first nations didn't take forever and didn't bog down in hair-splitting detail. They have the status of governments, and nothing less. So why not talk about governments instead of natural persons? In their speeches, ministers refer to self-government and the inherent right of self-government. It looks good. The Prime Minister of Canada talks about self-government and aboriginal and treaty rights in his speeches. It sounds good. In their speeches, Robert Nault and Jean Chrétien talk about a partnership between equals and nation-to-nation discussions. It sounds good. But when push comes to shove, they don't deliver the goods promised in their lovely political speeches.

You can see the same thing when you read the throne speeches. I have been a member of Parliament and have read all of the throne speeches since 1993. In every Speech from the Throne, they talk about the first nations because it looks good in a Speech from the Throne. They talk about the goal of self-government and the negotiation of specific claims because it looks good in government literature. It also looks good on the government agenda. But in actual fact, there are currently over 500 specific claims on hold. No discussions are being held with respect to these 500 claims, and there could be hundreds more in the next few years.

Meanwhile, they are pressing ahead with a bill that does nothing to solve the socio-economic problems of the first nations, and furthermore, uses such wishy-washy language that self-government and the inherent right of first nations to self-determination do not even appear in this bill.

I find it quite strange that Minister Robert Nault appeared before us, the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, when we began studying Bill C-7, to announce with great fanfare that this was the discovery of the century, that Bill C-7 would set in motion the first phase of the process. He is currently on phase 1, and phases 2 and 3 will come next. At this rate, we will get up to phase 200 without solving anything. But he presented this to us and said that it was the first phase, that it was an excellent starting point, that democratic and management tools had to be put in place and that the real problem could then be solved. But it may take two, three or four years to implement what this bill requires, especially if those requirements are to be imposed on unwilling first nations, who will resist them. Personally, if somebody tried to impose something I didn't want on me, I would resist too.

¿ (2140)

That means that we will have wasted two to four years trying to implement something that is fundamentally odious, when we could have spent these two to four years dealing with problems linked to specific claims, for example, compensation for the harm sustained by the aboriginal nations over the 130 years during which the Indian Act has been in effect.

We could have spent these years speeding up negotiations on projects that are already well advanced. Moreover, a number of the first nations who appeared before the committee and presented briefs have already developed some extraordinary, well-documented projects on aboriginal self-government, based on their own culture, based on what they are and what they expect of their members.

When we went to Northern Alberta and Manitoba, we saw some remarkable projects. The self-government project for the James Bay Cree of Quebec is also remarkable. The agreement with the four Innu First Nations, which is about a real government, talks about self-government and about self-determination in a particular region, about developing the land and allowing the members of the nations to benefit from this. That is what it means to be a nation. That is what self-government means.

The first nations people are ready, but the government is not. The government has a different plan, which is to gain acceptance for something that is unacceptable.

I think the best approach, and the Erasmus-Dussault Commission paved the way for this very well, is to begin immediately with the first nations that are ready and to speed things up with an open and positive approach. When we start by thinking positively, then we can devote energy and resources to developing nations or setting them back on their feet. If we want to finalize agreements, the negotiations will be speeded up. Good will is required on both sides, and I know that there is good will on the part of the first nations. They want to free themselves of the straitjacket they have been in for the 130 years that the Indian Act has been in effect. They want to have their own land and their own resources and they want to develop them and reap the profits that come from developing these resources.

I think that if we were to start with a positive approach of this type, if we started with the consensus that was expressed so well by the Royal Commission on Aboriginal Peoples, but that was abandoned, if we adopted that immediately and if we forgot about this unfortunate chapter, the unfortunate adventure of Bill C-7, I am sure that the leaders of the first nations would be ready to sit down and start talking to the government tomorrow morning. They would work very hard to establish a government structure immediately, but it would be a real structure, and would apply on lands they are claiming and that we would give back to them. They would also work very hard to conclude agreements on resources and compensation for damages. That could be done in no time at all. Even the Erasmus-Dussault Commission said it was possible to do that in 20 years.

Twenty years is a short time in the history of a people, but we have to get down to work so that at the end of the 20 years, we will have rebuilt these nations and reconfigured the institutions along the lines of what these nations were before the Europeans arrived. I think that such a thing is easy to understand. There are a number of individuals around this table who have been studying the aboriginal issue for a number of years. I have only been involved in it for a few months, and I think it is obvious that this is what must be done. I have read the Erasmus-Dussault report, and everything on development in recent years, the many reports and court judgments, all of which point in the same direction. I think it is obvious that the solution is none other than the one set out in the report of the Royal Commission on Aboriginal Peoples. The solution does not consist in measures designed by bureaucrats, which are causing us to waste our time. We should not be redefining what has already been defined by most first nations communities, which have their own ways of doing things.

In our study of Bill C-7, we have seen some examples of small communities that had certain problems. In order to solve these problems, the provisions of this bill were drafted, which apply to all first nations communities, even though the vast majority had already solved the problems of management, accountability and democracy through public operations for band councils.

¿ (2145)

[English]

The Chair: Merci, Monsieur Loubier.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I'm interested in following Mr. Loubier's train of thought. I would say he deserves the honour that was given him today, the name “Strong Eagle's Flying Spirit”. I think it's very appropriate and well crafted.

I envy Mr. Loubier's easy grasp of these complex issues and concepts we're dealing with. I think it must be that being a member of the Bloc Québécois and a resident of Quebec, he's given full attention to these concepts of sovereignty and language, issues that are abstract concepts many Canadians have not been seized with.

The ease with which he deals with these complex matters tells me that he relates exactly to the very issues that are being brought to our attention today. First nations are demanding that we get our minds around the concept of a new level of government and the recognition of true sovereignty, true independence, and true self-governance. It's a pleasure to hear a capable speaker project and represent those points of view.

In keeping with Mr. Loubier's theme, I want to support his amendment, which seeks to replace the phrase “natural person” with “governments”. We need to set the tone for this legislation, a tone that should be compatible with the preamble of the bill, clause 3, which is the purpose of the bill, and with what we were told at the outset of this entire exercise. That was that we would be advancing and elevating the status of first nations communities as it related to issues of self-governance.

This bill was sold to us as a stepping stone towards self-governance. I remember when the minister stood up in the House of Commons and said that it was his intention to deal with some of the worst irritants of the Indian Act while maintaining a parallel stream of negotiations to assist those first nations that have not achieved self-government agreements with those agreements.

Instead of consulting in a genuine way and deciding what those worst irritants were, the government has unilaterally decided what those issues will be. Coincidentally, those issues they decided on are not in keeping with the priorities that have been expressed to us. In fact, the things the government sought to achieve are more matters of convenience, matters such as taking policy and putting it into legislation, accounting practices, bureaucratic tinkering, bookkeeping practices, and prescribing the most minute details of how a first nation shall from now on--I say “shall” because it's in very prescriptive language--conduct themselves.

Inasmuch as Mr. Loubier's effort to incorporate the word “governments” instead of “natural person” is noble and honourable and in keeping with what good faith would dictate it should be for the tone of this bill, I'm concerned that what we're going to wind up with is language like the title of this paper that's been handed to me, “Warmed-over Colonial Stew”. That's how this whole process has been described by one presenter who approached me.

I've reviewed some of the opinions that have been brought to our attention regarding clause 15. I've listened to Mr. Loubier's recommendation. I've seen my own amendment on clause 15 go down in flames with not enough support to succeed. But I'm still convinced that the exercise is worthwhile and that ultimately we will prevail in garnering enough support from Liberal members, that they will see the sense in addressing issues of substance in this bill, and that if they don't withdraw the bill, they will allow substantial amendments.

I sense in fact, even looking at the members opposite now, and Mr. Loubier would agree, that there is a softening in the approach towards the amendments that are being brought before them.

¿ (2150)

As we explain, explain, and explain again the shortcomings of the bill, I even see and predict and anticipate a coming around, or a growing willingness on the part of many of the Liberal members to actually strip out some of the more offensive qualities of this bill, and maybe even to try to address the rift that's been created in the relationship between first nations and the federal government. If I can quote the Anglican bishop of Moosonee when he presented before the committee, he said that it would be viewed as such a “gracious gesture of goodwill” if the government would simply back off Bill C-7 and go back to the drawing table in a respectful way, using nation-to-nation or bilateral negotiations to achieve similar objectives. People have made it clear that they have no real objection to dealing with matters of accountability and transparency, but want to achieve those objectives in a way that doesn't do permanent or ongoing damage to the relationship between the federal government and first nations.

So, Mr. Chair, having said that, I would hope that we can count on broad support from all parties and support Mr. Loubier's amendment, BQ-29.

Thank you.

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: There is an old proverb that says that passivity and silence are not the same thing as neutrality. Rather, they are in favour of the status quo. I have come to the realization that, on the Liberal side, the silence says a great deal about the government's intentions.

Moreover, when you examine Bill C-7, you can see that this is really about maintaining the status quo. What has changed when the provisions designed to remedy a small number of cases contribute nothing to the required rebuilding of new relationships, relationships between equals, between nations, between governments, between the federal government and the aboriginal nations?

I hope that my colleagues sitting around the table share my passion for laying some new groundwork in the discussions between first nations. I hope that, like me, they will discover an entire world, an exhilarating world, a world where we can build sustainable things and where we can repair or almost repair all of the damage that has been done in the past 130 years that the Indian Act has been enforced. I hope that we can thus contribute to the history of this country a period of great building, a period where we completely overhaul the relations between peoples, relations that have been marked by incredible defiance because of the colonial mentality that prevailed in the relationships between the federal government and the first nations for so many years.

It seems to me that it would be great to record in the history of this country that a Parliament decided, one day, that it was time to build a desirable type of relationship between the federal government and the first nations. As of today, the basis of this relationship would be so different and so attractive that everybody would feel like getting involved in building this new relationship.

As I mentioned earlier, we are not starting from scratch. The Royal Commission on Aboriginal Peoples has already laid all of the groundwork. Moreover, it is surprising to see how well the aboriginal communities are able to define their government structures, drawing from their culture, ancestral practices, and even some ancestral practices that they were able to find despite the fact that they had been forced to discard them when the Europeans arrived. Today the aboriginal communities are rediscovering their grassroots, before the Europeans told them that they were the ones who had the best way of governing, the best way of making decisions, the best way of believing in God, the best way of raising children, the best way of speaking.

It seems to me that this would be such an attractive project for everybody, in all the communities, one where we would be building on a good foundation, and not on one where there is absolutely no consensus, except to denounce Bill C-7. Everyone would buy into this groundwork, as was done with the general guidelines of the report of the Royal Commission on Aboriginal Peoples. Instead of stoking the fires of confrontation, we should be preparing an incredible type of construction site where we could devote all of our energy to building new relationships rather than hitting ourselves over the head and rebuilding, in the case of the first nations, their own nations.

I would invite my colleagues to show some good will by supporting my amendment. That in itself would, I feel, give some new life to the hope that in the 21st century we will be able to develop a new type of relationship with the aboriginal nations. I would like to thank you in advance for the support that you will give to my draft amendment.

¿ (2155)

[English]

The Chair: We will have a recorded vote on BQ-29, on page 115.

(Amendment negatived: nays 9; yeas 2)

The Chair: Next is amendment NDP-31 on page 116.

Mr. Martin.

Mr. Pat Martin: This amendment represents the 31st effort that the NDP has made to try to amend Bill C-7. We seek again to amend clause 15 further down in the clause. It intends to replace lines 24 to 26 on page 10 with the following:

subsection (1) do not have the effect of incorporating the band or abrogate or derogate from existing treaty or aboriginal rights.

Then the full paragraph would read:

For greater certainty, the legal capacity, rights, powers, and privileges referred in subsection (1) do not have the effect of incorporating the band or abrogate or derogate from existing treaty or aboriginal rights.

This language stems from the fact that when this bill was presented to us there was no non-derogation clause. We were concerned, and everybody who read the bill was immediately concerned, that in the absence of language that says that nothing in this bill is intended to abrogate, derogate, or diminish existing treaty rights, and armed with legal opinions that it does in fact diminish or infringe upon aboriginal rights, obviously it was in everyone's interest to try to get language into the bill wherever possible, sometimes in three or four different places, to introduce the protection of the language of a non-derogation clause and the comfort that would come from having a non-derogation clause in the bill.

We were surprised--I was surprised personally--that there was no non-derogation clause originally in the bill. I have a list of the number of presenters who made reference to this. I can't think of any, offhand, who didn't call for and demand this. Even the joint ministerial advisory committee, the team appointed by the minister who met for the 18 months leading up to the introduction of this bill to craft this bill, recommended that it must have a non-derogation clause.

Even the minister's presentation to his own cabinet, as I've pointed out before, assured the cabinet--I think by way of defusing the opposition and resistance they anticipated--that to give further assurance, the proposed legislation does contain a declaratory non-derogation provision. That was the pitch he made to his own fellow cabinet ministers. Then when we saw the bill it didn't have one.

That was one of the few NDP amendments that actually passed. We had the satisfaction of introducing a non-derogation clause for the protection of the people and to address the legitimate concerns that were brought forward. That was one item that we can be very proud of that we achieved. We convinced the members on the other side to support that introduction.

The amendment I'm proposing now doesn't change clause 15 in a substantial way, except to include reference to the fact that this clause should not have the effect of abrogating or derogating from existing aboriginal or treaty rights, and it does not have the effect of incorporating a band. That reference was already in the clause.

But I'm still particularly concerned with the broader issue as it affects this amendment to this clause and this bill, that I'm put in a position now about the fiduciary obligations of all members of this committee. I raise this again and ask you as committee chair to make a ruling on whether committee members who do not have access to all the information we feel is necessary can make informed decisions, to the degree that we can properly exercise our fiduciary obligations as an extension of Parliament, and by extension uphold the honour of the Crown.

À (2200)

We've made repeated requests and attempts to try to get access to documents that we believe are important--opinions that the minister has asked his own resource people to supply. Those have been denied, and the excuse used has been client-counsel privilege. We've shown examples where that privilege does not exist in situations where it's a trusteeship over aboriginal rights, or where there are fiduciary obligations associated with aboriginal circumstances.

So I ask again, given what we now know, Mr. Chair, will you rule on whether or not members of this committee can in fact exercise, undertake, or be true to their fiduciary obligations as they pertain to dealing with this bill?

The Chair: The opinion of the chair does not constitute a ruling. I do not rule on opinions; I rule on procedures. Therefore I will not respond.

Mr. Pat Martin: I would like to ask for unanimous consent to revisit the motion I submitted earlier in these hearings, which asked for the release of any documents or legal opinions dealing with whether or not this bill infringed upon constitutional rights or had any impact on outstanding court cases.

The Chair: Do we have unanimous consent to reconsider that motion? No.

Your time is up. By putting in a motion you ended your participation.

A voice: Why can't you provide this document?

The Chair: Monsieur Loubier.

À (2205)

[Translation]

Mr. Yvan Loubier: I believe that, once again, my colleague Martin...

A voice: And you call yourselves a democracy. You're a farce.

The Chair: I thought that you had a commitment from this woman.

Mr. Yvan Loubier: Yes, but listen...

A voice: He's not my god. If I decide to argue, I will argue. When you don't supply the documents that our members here need—

[English]

The Chair: You are interrupting Mr. Loubier's time. The clock is running.

Monsieur Loubier, s'il vous plait.

[Translation]

Mr. Yvan Loubier: Thank you very much.

Mr. Chairman, in the context of this amendment, my colleague Pat Martin feels that it would be important, in order to close any loopholes and reassure the aboriginal communities, to make reference to the fact that incorporating band councils does not infringe on aboriginal or treaty rights that already exist.

I believe it is important to give that assurance to the first nations communities. By proposing this amendment, which is a kind of protection in case Bill C-7 is passed by the House of Commons because of the Liberal majority, Mr. Martin is showing that he is worthy of his spiritual name: Strong Eagle Speaking Spirit.

Once again, it is obvious that he has analyzed these issues and discussed and met with the real experts on aboriginal issues, that is first nations representatives, and therefore is a credible spokesperson for first nations members.

Unfortunately—and this is what I explained to all the first nations representatives that I had the chance to meet with—the opposition is sitting here defending the views of first nations, whereas they should be the ones sitting at the table. First nations people are intelligent, educated adults and they know what they want. So it should be their representatives, and not us, sitting around this table.

We are playing the role of spokesmen or loudspeaker. Personally, I am not comfortable with this loudspeaker role, despite the trust that the aboriginal communities may have placed in me. Speaking on behalf of nations that are recognized by the United Nations and by all these court rulings, including those of the Supreme Court of Canada, makes me uncomfortable.

We are here in the Parliament of Canada, and we find ourselves unable, within this institution, to reflect the fact that the Supreme Court has recognized that First Nations—with a capital F and a capital N—are mature, adult nations and that they should be at the table to negotiate on an equal footing what compensation is appropriate for the harm suffered in past decades and the occupation of their land and resources.

I'm very honoured by the trust that has been placed in my colleague Mr. Martin and myself by first nations representatives and leaders, but I am still not comfortable. I know that in the long run, and in the context of how nations evolve, it is not the role of one nation to defend the aspirations or societal aims of other nations that are trying to assert their claims as true nations. That is not my role; it is up to you to do that.

I am extremely uncomfortable playing this role, but I am able to find the necessary energy to do so because it is coming from you. It is your support that is giving my colleague Mr. Martin and me the energy to go on. In reality, this is very much a thankless task that we are doing.

À (2210)

When speaking on your behalf in a Parliament that refuses to give you a seat at the table, we have to be very careful. We cannot make a mistake when we say that the first nations want this or that, since we are not experts on first nations matters. You are the experts. So we are walking a very fine line, we are always on a tightrope.

Can your inner thoughts be expressed by a francophone Quebecker? Can your inner thoughts be expressed by a non-aboriginal Canadian from Winnipeg?

It is difficult for us to put ourselves in your place, as first nations people, and to know exactly what your thoughts are about rebuilding your nations. I may have my own points of reference and Mr. Martin has his as a Canadian nationalist. How can we represent your views fairly and accurately? For that to happen, you need to be at the table. I am ashamed that you are not there, whereas unelected senators, representing only themselves and appointed by the Prime Minister, are given the right to sit around the table and discuss the future of Canadian society. That makes me uncomfortable.

That is why I am supporting the amendment proposed by Mr. Martin, who has become a sort of brother with your approval. I am supporting it because it is fair and inspired by a desire for justice. We both hope that it reflects what you really think. I believe that this amendment does reflect your views. You need guarantees concerning your aboriginal rights and the inherent right to self-government that was given to you by the Creator.

On your behalf, therefore, I am supporting Mr. Martin's amendment.

[English]

The Chair: Merci, Monsieur Loubier.

Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chair, and thank you, Mr. Loubier, for those insights.

Ms. Paddy Torsney (Burlington, Lib.): Little brother.

Mr. Pat Martin: Oh, thank you. We are brothers. We've been made brothers--solidarity.

Mr. Yvan Loubier: You forget what spirituality does.

Mr. Pat Martin: I'm honoured to have the opportunity to try to explain further why it's desirable to include this language, and I'll do it briefly.

The Canadian Bar Association's National Aboriginal Law Section said simply in their brief to us:

The provisions concerning legal capacity of bands should indicate that the effect of such provisions will not limit or abrogate the First Nation’s right to self-government, or its Treaty or aboriginal rights.

It's as simple as that. We can't say it any more cleanly or more succinctly than the witnesses who came before this committee. We had a quality of presentations that was second to none. There was a wealth of wisdom and knowledge that came before us in the briefs and presentations we heard.

But we also heard the frustrations of the Indigenous Bar Association when they explained to us the difficulty they were having in even representing the interests of their clients pertaining to Bill C-7. They filed an access to information request on January 4, 2002. The information request was made to the Department of Indian Affairs access to information and privacy office for the list of cases referred to by the minister. I refer to the minister's speeches saying there were 200 outstanding court cases and that one of the reasons this bill was desirable was that it would somehow have an effect on those court cases or reduce the number of future court cases.

So the minister made reference to this huge body of court cases. Interested in that subject, the Indigenous Bar Association lawyers made on behalf of their clients a request to the access to information office asking for what these court cases were and an indication of how the proposed legislation would address the matters subject to this litigation.

Now, the access to information and privacy office within the department was unable to help, so a formal complaint was subsequently filed with the Office of the Information Commissioner. The initial request was made well over a year ago and this report is a few months old, and we still did not receive any of the requested information until the third week of February 2003. This was after the INAC consultation process was concluded. In other words, in the interests of their clients to make representation in the consultation process, they needed this information. They needed to know what the minister was talking about when he said this bill would have an impact on these 200 outstanding court cases, but they wouldn't give him the information, the very legal counsel of the clients.

Now, they put it mildly that this failure of INAC to provide information in a timely manner was “troublesome”. Well, I think that was an understatement. It went on to say that on August 14, 2002, they sent a letter to the access to information and privacy office asking for any information in either the Department of Indian Affairs or the Department of Justice that either supported or contradicted the assumptions made in other legal opinions--I'll paraphrase--that this bill in fact infringed on constitutionally recognized aboriginal treaty rights.

By the time this presentation was made, they had received absolutely no information from the department related to these assumptions. Notwithstanding the efforts of membership and the efforts of the Office of the Information Commissioner, DIAND is a closed door, a brick wall, when it comes to sharing this vital information.

I should point out that the Indigenous Law Association is representing clients who are first nations. The very people who are affected by this bill hired their legal counsel to go and get this information so they could make informed decisions.

Compounding that problem is the fact that not only are first nations denied access to that information, but we as parliamentarians around this table can't even get that information. You'd think that of all people, even if there were a qualifier on it that it's confidential and not to be made public, we around this table, who are charged with the responsibility of crafting this legislation, should have that information.

We know the information exists, but we can't have access to it. In a letter from the privacy office within INAC dated October 16, six months after the initial application was made, we were advised that the information requested would not be released because of requirements of confidence of the Queen's Privy Council for Canada.

À (2215)

In other words, in their view it's not in the interests of the Queen to share this information with the people. That's a long way from the relationship first nations people thought they had with the Queen. We should remember that first nations don't have their treaty relationship with the federal government of Canada; they have a relationship with the Crown. This is the treaty.

What I've come to realize is how treasured and valued that relationship has been, even though, frankly, it's been disastrous from a social policy point of view; the experience has generally been 130 years of social tragedy. Yet that relationship is still treasured. In fact, it's taken on a life of its own beyond that of any kind of contract or piece of paper. I hear a reference to people talking about making treaty as a living, breathing thing. It's a relationship more than a document, and it's respected and valued by that half of the treaty-making process while consistently undermined and broken by this half of the treaty-making process. That's the one thing I've learned from observation.

The argument that's been put forward is, instead of wasting $550 million and unknown years of acrimony and choler associated with ramming through this bill, we could be spending our time and energies in two ways: first, in giving meaning and definition to section 35 of the Constitution to describe what those rights really translate into; and second, in implementing the treaty process in meaningful nation-to-nation negotiations to move out of the cycle of poverty in a permanent way.

Whether it's about discussions on lands and resources, if we're talking about economic development as the objective or the ultimate goal of this bill...because that's what the minister told us, that he was tired of dealing with rights and redress issues and that he wanted to talk about economic development issues. Well, if we're serious about economic development issues, how can we have that discussion without talking about access to lands and resources? It's an omission that makes the rest of the exercise futile and doomed to failure.

So in summary, Mr. Chair, in what limited time I have left, I'd like to make a motion to adjourn because I'm exhausted.

(Motion negatived)

À (2220)

The Chair: We'll go directly to a recorded vote on amendment NDP-31, page 116.

(Amendment negatived: nays 9; yeas 2)

The Chair: Amendment NDP-32 is not acceptable by the chair and it is not being tabled.

(Clause 15 agreed to on division)

(On clause 16--Laws for local purposes)

The Chair: We're on amendment BQ-30. Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, the wording in amendment BQ-30 is the same as in NDP-11. I had withdrawn amendment BQ-30 when we considered NDP-11, because it was exactly the same.

The Chair: You are not tabling this amendment? You prefer not to table it? That is the best way of proceeding.

Mr. Yvan Loubier: I am not tabling it because it is the same as NDP-11.

The Chair: It is easier than withdrawing it once you have tabled it.

Mr. Yvan Loubier: Well, I will table it then.

The Chair: No, it is the other way around. If you do not table it...

Mr. Yvan Loubier: I am not tabling it.

[English]

The Chair: It has not been tabled.

Then we're on amendment BQ-31, page 120. Monsieur Loubier.

À (2225)

[Translation]

Mr. Yvan Loubier: Mr. Chairman, the purpose of this amendment is to come to the basic ideas that should guide us in drafting legislation that would normally serve as a sort of springboard for our relations with the first nations over the coming decade. In order for this springboard to have a solid basis and be complete, clause 16, which we are considering now, needs to include a reference to the inherent right to self-government. Why the need for an explicit reference to the inherent right to self-government in the heart of the bill? Because even though the inherent right to self-government is set out in lines 19 to 21 of the preamble, which reads as follows:

whereas the Government of Canada has adopted a policy recognizing the inherent right of self-government as an aboriginal right...

This statement is found only in the preamble. It is not mentioned in the body of the legislation, where this inherent right of self-government needs to be specified.

[English]

The Chair: Could I have a bit of quiet in the room? Monsieur Loubier is trying to make a presentation.

[Translation]

Mr. Yvan Loubier: No. There is no problem. You can continue. It does not bother me.

[English]

The Chair: You may continue while Monsieur Loubier is speaking.

[Translation]

Mr. Yvan Loubier: So I was saying...

[English]

I am very curious to know, what is her spiritual name?

[Translation]

The reference to the inherent right to self-government must be the cornerstone of clause 16 in the amended form we would like to see. Why does the inherent right need to appear in the body of the bill? It is because that right is the first building block of the recognition for aboriginal nations. When we talk about nation-to-nation negotiations, it must be recognized from the outset that first nations have the inherent right to self-government, that is, the right to control their destiny that was given them by the Creator. That is the basis of what aboriginal nations are.

If this inherent right is mentioned only in the preamble, we are missing the first and most important element of what constitutes an aboriginal nation and we are missing the basis that they will need to build their own future over the coming decade if they are just given some support and assistance in that endeavour. If we force them into a process that is based on our own conception of a political system, economic development, cultural development and education, it will not work.

The federal government, because of its fiduciary responsibilities, must recognize the fundamental principle of the inherent right of self-determination and self-government and everything that this entails, and support many of the aboriginal nations in their desire to rebuild their communities.

A number of witnesses sent us briefs, including a professor from the University of Arizona, who told us that the initiatives that had worked in the United States over the past 100 years were the ones where the authorities did not take the place of first nations members, where people did not decide on their behalf what was good for them and what was bad for them. The initiatives that worked in helping aboriginal people revitalize their nations were those where the aboriginal nations were simply offered technical and financial support. But the main thing that was given or given back to the aboriginal nations was the dignity of being what they are. That is the very basis of success. As long as the inherent right of first nations to govern themselves is not taken to heart by us, the legislators, and as long as this natural right given by the Creator is not taken into account by us... That inherent right exists. It was given by the Creator to the first nations, and we have no say in that matter. Unless we acknowledge that fact and view the situation in that way, any legislation that comes from the deep, almost mystical thinking processes of federal bureaucrats will be destined to fail.

The University of Arizona professor also told us that the successes happened because people did not try to reproduce European-based institutions in aboriginal communities but rather took into account the institutions that aboriginal nations had before the Europeans arrived and demolished everything, saying that they were the ones who were right and that they had the best institutions, the best religion, the best language and the best haircuts.

À (2230)

The initiatives that were successful were those in which aboriginal nations were first given the respect owed to them because they are nations and because they deserve to be full partners not only in Canada but in the world at large. The United Nations recognizes that aboriginal nations around the world must be seen as partners, must be given respect, must be compensated for the harm done to them, must be given back the resources and land that they lost when the Europeans first came and must rebuild their nations so that they can find themselves again.

This is not difficult to understand at all. Once it is understood, it is very obvious. We need to take this bill, use it to light our fireplaces at home and not talk about it anymore. Then we will be dealing with the real problem.

My amendment is very simple: it recognizes the inherent right of self-government. It is easy to understand, it seems to me. In just one sentence, it summarizes what aboriginal nations are, what they aspire to be and what we need to give them so that they can redefine themselves and finally live as they see fit. That is all.

I hope that you will support my amendment.

The Chair : Thank you, Mr. Loubier.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Mr. Chairman.

Mr. Loubier, I want to tell you that we are going to support your amendment. I want to add an idea that is not in the amendment, and not in any of the other amendments or the bill.

[English]

It's interesting, Mr. Chair. Last year when this bill was initiated was the same year we commemorated or celebrated the 20th anniversary of the Charter of Rights and Freedoms.

When I look at this bill, particularly clause 16--although I support Mr. Loubier's amendment--it jumps out that if clause 16 were applied, if the bill were passed into law, it would be a continuation of the attitude of this government to not be willing to deal with the first nations on a nation-to-nation basis. It's a continuation of European-dominated legislation and all of the prejudices and biases that come with that when one culture tries to impose their system of government on another.

If clause 16 is to have the effect that government at least says it is, which is to try to provide some power sharing to the first nations, the Charter of Rights would of course raise its head. Subclause 16(1) would probably include a reference to the charter and it would beg this question.

If you look at paragraph 16(1)(c), for instance, if a first nation band were to attempt to apply that, let's say one of the things they wanted to do was give preference to their native spiritual practices and at the same time, in order to affirm those practices, exclude a European religion. They would say the town hall and other public buildings would be available for spiritual practices that were restricted to that particular band. Then, if one member of the band wanted to challenge that, as our legal system stands now, they would be able to do so by bringing a challenge under the Charter of Rights and Freedoms in that there was discrimination based on religious practice.

You could continue to do that throughout clause 16. In fact, you could go back into clause 15 and make the same types of arguments.

Mr. Chair, if this legislation were to treat first nations on a nation-to-nation basis, they would be granted the same rights--it would be acknowledged that they had the same rights--as the provinces were acknowledged to have, and they would be granted the right, as the provinces were and as the federal government has, to deviate from the provisions of the charter when they believed it in the interest of their society and the preservation of their religion--and in this case, their culture, their language...and the list goes on.

So there would be an amendment being proposed by this government to the charter that would extend the notwithstanding clause to the first nations. As I said earlier, there is no reference whatsoever in this legislation to the charter. But it sits there. In spite of Mr. Loubier's amendment, which I would support, the reality is clauses 15 and 16, in terms of passing real power, acknowledging the inherent rights--as Mr. Loubier has so eloquently pointed out repeatedly--first nations have would do nothing to enhance that, to acknowledge it, recognize it, and accept it as a reality, because the charter would still apply.

If the government were really being honest, if this bill weren't in fact the sham we all believe it is--at least those of us sitting in the audience and at this side of the table--that provision would be in here. At the same time, there would be a provision elsewhere, either in this bill or--probably--in a separate bill, that would be a constitutional amendment.

À (2235)

We would be saying to the first nations that we are going to negotiate with them on a nation-to-nation basis. We're going to recognize they have all of the inherent rights that we pretend in some of the demagoguery that comes across from the minister. We're going to accept it. And if the Government of Canada is going to be honest and take that approach, then there has to be a recognition like the provinces have in protecting their rights and maintaining the societies they want, within the confines and limitations of the constitutional framework--that they would still have the provisions of the notwithstanding clause.

We don't see that here. I'm sure we're never going to see it, certainly from this minister and this government.

Unless we do that, in spite of the fact that I believe the suggestion in the amendment from Mr. Loubier and the Bloc is an improvement from what we have from the government, the reality is it will not go far enough. The government would have to come onside with a constitutional amendment granting...it's not granting, it's giving...recognizing the inherent power that should lie with any nation in terms of determining that.

I could go on with all the other provisions in here. There isn't one in paragraphs 16(1)(a) through 16(1)(p) that could not, at some point...and I won't claim to be much of a creative lawyer, but even I could figure out that if the band council were to pass laws under any one of those paragraphs, there would be laws passed that were designed to protect their culture, their language, and their religion, which could then be subject to probably successful challenges under the charter. The same can be said of clause 15 and other provisions of the bill.

If we're going to be serious, if this government really is serious--and I don't think there are many people sitting on this side of the table or elsewhere in the room who believe it is--about wanting to deal with the first nations on a nation-to-nation basis, wanting to recognize what are in fact inherent rights, then we would have to do that.

Thank you, Mr. Chair.

À (2240)

The Chair: Thank you, Mr. Comartin.

Monsieur Loubier.

[Translation]

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

I am very pleased that Mr. Comartin raised that important aspect. I should have been very sensitive to that analysis relating to the Charter of Rights and Freedoms and the notwithstanding clause. We have been talking for years about his whole notion of collective choices that a society can make in order to protect its language and culture. You added religion, since spirituality is very important to first nations peoples. I acknowledge the merits of your analysis.

It is sad that I cannot propose a sub-amendment. I could not do that, because in order to amend the Charter you have to amend the Constitution. But I believe that this would be a good step. Given the reactions, I think that using the notwithstanding clause could be a good way for aboriginal nations to protect and even promote their language, culture and religion in their own communities.

Mr. Chairman, I am pleased that Mr. Comartin and the NDP are supporting my amendment. I acknowledge Mr. Comartin's analysis, and I am going to add it to what we have already developed regarding the needs of first nations. However, I will discuss this point with first nations representatives to be sure that they agree.

Thank you, Mr. Chairman. I would invite my colleagues to vote in favour of my amendment and to recognize the merit of the excellent analysis presented by Mr. Comartin.

The Chair: Thank you, Mr. Loubier.

[English]

Let's vote on the amendment then.

(Amendment negatived)

À (2245)

The Chair: Now, on amendment G-5.1, Mr. Hubbard.

Mr. Charles Hubbard: It's not a great point of debate.

In one of our earliest hearings on the bill, in fact I think it was in this very room, it was suggested that certain words should be deleted in terms of lines 33 and 34 under clause 16. It was Mr. Jim Aldridge who made this recommendation.

We would cross out lines 33 and 34 and it would read as follows:

The council of a band may make laws, applicable on the

That would be deleting the words “for local purposes” which would be synonymous, I think, in terms of “on the band's reserve”.

That's all I have to say on that, Mr. Chair. I imagine most people would accept that very quickly.

The Chair: Mr. Comartin.

Mr. Joe Comartin: I'm not quite sure why we're doing this. Can we have some explanation from I'm not sure who?

The Chair: Mr. Johnson.

Mr. Warren Johnson: This is part of a series of technical amendments that I think the committee has already looked at once but did not vote on.

In this specific case, an intervener before the committee, Mr. Jim Aldridge, noted that some of the specific law-making powers in clause 16 might not be considered local. In a sense, that word might also be considered redundant, because you have “applicable on the band's reserve”, which implies the same thing. For a technical correction he offered up that this should be deleted.

If you notice in clause 16, clause 17, and clause 18, he chose an adjective...in one case it's “local” and in the other case it's “band purposes”....

In fact, a series of those comments were made.

Mr. Joe Comartin: Are clause 17 and clause 18 going to have the same amendments, as we get to those?

Mr. Warren Johnson: The same kind of technical amendment...I think it reappears.

The Chair: I should mention that those have been perused by the committee and a verbal agreement has been reached, subject to ratification in this process.

Mr. Joe Comartin: Has there been any provision made at all with regard to the charter applying to clause 16?

Mr. Warren Johnson: The charter applies to the whole bill.

Mr. Joe Comartin: So that's a given.

Mr. Warren Johnson: That's a given and it's clarified in the preamble.

Mr. Joe Comartin: I want it on the record that in fact it's been acknowledged that the charter would apply. And so it becomes clear, Mr. Chair, that again clause 16 has extreme limitations. It's a sham, because we've heard no expression from the government at all that the notwithstanding clause is going to be recognized as part of the inherent authority of the first nations bands. Unless there is a provision given elsewhere, we can pass all of these laws that we want, but they are going to be of little or no significance if in fact any attempt is made with regard to affirmative action or protection of their culture, their religion, their language, and other inherent individual rights.

So, Mr. Chair, it's obvious this doesn't go far enough. I assume Mr. Loubier is probably of the same mind, that we would be opposing it, simply for that reason. It would be an expression, on our part, that clause 16, on the surface, is attempting to do something, if we accept the government in good faith, but in reality, because of the charter....

And, again, you can go down to each one of those paragraphs, paragraph 16(1)(a), paragraph 16(1)(b), right on through to paragraph 16(1)(p). There isn't one of those where you can't imagine where at some point a charter argument could be made against them, which of course then completely undermines....

It does two things. It exposes the band to lengthy legal battles. And given the authority the charter has in this country now after the 20 years and all of its interpretations and how strongly the Supreme Court of Canada has applied it, an amendment such as we see here, in an attempt to clean up the legislation to leave us saying perhaps we're trying to correct some problem here, in reality simply does nothing toward the major problem over this clause of the bill. And it is not passing any realistic authority, and in fact it may be passing some major problems to the bands if this bill ultimately becomes law.

Mr. Chair, I know this wasn't shared entirely by la province de Québec, since they didn't sign on, but the rest of the country was proud last year of what the charter had done. I have no reason to believe, quite frankly, that any number of the first nations wouldn't share in that.

Part of that pride was that we recognized that under extreme circumstances it was appropriate for the governing body to be able to back away from those inherent rights.

When you heard of a province like Alberta suggesting they were going to use the notwithstanding clause to prohibit same-sex benefits...we heard a big clamour for the use of it over the Sharpe case last year and the whole issue of child pornography to override the court's decisions.

So there have been times when we've acknowledged that. It was acknowledged in 1982 by Prime Minister Trudeau at the time and the premiers that it was appropriate in this country that we have that type of provision. If it's appropriate for the federal government and for the provinces, then it's also appropriate that it be granted to the first nations. I'm sorry that I keep using that term. It's appropriate that it be “recognized” that the first nations also have the right to control their legislative body, and how they're going to draft their laws, how they're going to implement their laws. And they have the right to say that, although they generally support the charter--and certainly on a number of occasions they've used the charter to their benefit--there are extreme cases, like the provinces or the federal government may have an extreme case, where in fact they don't want the charter to apply.

À (2250)

Again, coming back to the specific amendment, we passed this with the suggestion that, yes, somehow it finally cleans up a technical or administrative point. But by the same token, to suggest that somehow this is going to advance the independence of first nations or their power to control their own societies, that's not happening, Mr. Chair. That's just not what clause 16, and in fact clause 15, is about. It's not going to happen.

Voices: Hear, hear!

Mr. Joe Comartin: Those are all of my comments on that, Mr. Chair.

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Well, that's a good sign: the chair does not even remember my name anymore! Isn't that nice.

I also share Mr. Comartin's concerns and I would like to take this opportunity to state that, clearly, Quebec never accepted the unilateral repatriation of the Constitution, especially since it also came with a Charter of Rights and Freedoms. It was a package deal. We don't feel bound by the fact that the repatriated Constitution was signed and that it came with a Charter.

However, we gave ourselves our own Charter of Rights and Freedoms, which is fairly similar to the Canadian Charter. Moreover, as far as first nations are concerned, Mr. Lévesque, who was premier of Quebec at the time, said as early as 1980 in the National Assembly, after he returned from the constitutional conference, that he would respect sections 25 and 35 of the Charter of Rights and Freedoms to enable the Government of Quebec to negotiate with the federal government and first nations.

There were two constitutional conferences after the one held in 1981 and each time, Mr. Lévesque, who was premier of Quebec at the time, repeated Quebec's stand: we do not recognize the unilateral repatriation of the Constitution and the Charter of Rights and Freedoms, but, in the interest of enabling negotiations with first nations, we will nevertheless respect sections 25 and 35 of the Charter.

In so doing, we were able to continue our negotiations with the Innu and Cree nations, to name but those two. With regard to the latter, it was the second part of negotiations with the James Bay Cree.

Like Mr. Comartin, I remain concerned, because even with the amendment to clause 16 which would give powers to first nations, any decision taken by a first nation with regard any of the sectors outlined in the bill may be appealed before the courts. I share Mr. Comartin's concerns and think it would be good for the government to listen.

In fact, this is what several legal witnesses said, including the Canadian Bar Association, the Barreau du Québec, and the Indigenous Bar Association, in the course of our deliberations on Bill C-7. In their opinion, several sections of the bill may be in violation not only of the Charter of Rights and Freedoms, but also of several federal statutes, including labour laws.

The bill does not address the possibility of the notwithstanding clause being invoked, which is a very legitimate concern, since it would only provoke more legal action on top of the legal challenges we have already identified.

I will not support this amendment. However, I would invite the government to specifically consider the Charter of Rights issue, the notwithstanding clause, the collective rights of first nations and their right to legislate in their areas of jurisdiction as provided for in Bill C-7.

I will vote against this amendment, but I am pleased that Mr. Comartin has made us aware of this situation.

À (2255)

[English]

The Chair: Merci.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I did not hear you say "on division". You said "carried", but...

The Chair: You did not ask for it. Do you want the record to show "on division"?

Mr. Yvan Loubier: Yes, since we did not support the amendment.

The Chair: Fine.

(The amendment carries on division)

The Chair: Do you want the record to show "on division" whenever that is the case?

Mr. Yvan Loubier: That's probably what will happen.

The Chair: I will watch out for that.

Mr. Hubbard: G-6.

[English]

Mr. Charles Hubbard: This is another technical amendment. It amends clause 16. On line 2 of page 11 we have “of the band”. This amendment will add to that “and the charging of fees for those services”. This would clarify that the band council law-making authority in respect of the provision of services by or on behalf of the band includes the authority to make laws in respect of the charging of fees for the provision of services.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Hubbard.

Does anyone wish to comment?

Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I just want to point out that this is becoming ridiculous.

Since the beginning of our study of this bill and up to clause 16, no government amendment has been a substantial amendment; there have been technical amendments, but that's a side issue which is not very useful.

So, rather than debating commas and other such things, I would rather forget about the whole thing; I won't support the amendment. In any case, it won't change the fact that this is a weak bill which nobody likes.

[English]

The Chair: Are you ready for the question on G-6?

(Amendment agreed to on division)

The Chair: Next is Canadian Alliance 35 on page 125. Mr. Vellacott.

Mr. Maurice Vellacott: We're amending paragraph 16(1)(i) on page 11 by adding “grounds for and”. We think it's quite critical that the grounds for eviction should be linked with the powers of eviction. If one is going to be evicted, one should know what the particular grounds are. I think it makes obvious sense to have that in there. I wouldn't want people anywhere in this country to be in a position where they're evicted from their home but do not understand why. The reason for them being thrown out could be very arbitrary.

This has been mentioned here as well as in conversations I have had when we were travelling. A couple of first nations persons at one of the events came to me and said they wanted to talk. This took place away from the table. Their issue was that they had been summarily thrown out of their home. They weren't exactly sure why, but obviously they were in the bad books of somebody on the council and as a result they were thrown out on their ear.

I would hope that doesn't happen frequently. We want to prevent that from happening and to ensure that first nations people from one end of the country to the other have the kind of recourse that any other citizen in our country has. That is to also have listed there the grounds for their being evicted so that they would know and it couldn't be arbitrary. I think when you list the grounds, it removes the possibility of it being just frivolous, arbitrary, vindictive, or whatever. If a band council makes laws stating the grounds of eviction and those laws are made known to all, it will serve, I believe, to protect tenants on reserves from an arbitrary eviction from their home. If there were an inconsistent application of such laws, that could trigger an investigation by the proper authority in that first nation under clause 16 of Bill C-7.

Without further ado, unless others wish to speak on that, we're going to ask for a recorded vote on behalf of first nations in respect of that.

Á (2300)

The Chair: You can't ask for a recorded vote yet; we're not at the vote.

Mr. Comartin.

Mr. Joe Comartin: Thank you, Mr. Chair. I have a question to the staff. If there are existing bylaws in the band, after this legislation comes into effect--let me use this as a specific example. Say there's a provision that the existing bylaw does not set out, as is set out here in amendment CA-35, any grounds for evicting a tenant. Assuming this amendment goes through, would this take priority then over the existing bylaws of the council?

Mr. Paul Salembier: The existing bylaws of the council are carried forward under clause 37 of the bill, so those bylaws would continue in force.

Mr. Joe Comartin: Unless it's a conflict.

Mr. Paul Salembier: Yes, but in fact--

Mr. Warren Johnson: Excuse me, but I think there may be a false premise there. In the interest of clarity, I'd note that this is a “may” authority, so even with this amendment there's no “must” on the first nation, there's no obligation on the first nation to do that, so I don't think they would be in conflict.

Mr. Paul Salembier: That's right. That's where I was going, actually.

Mr. Joe Comartin: This amendment would have the effect of saying if they make laws in relation to residential tenancies, it has to, by this amendment, include grounds. That's what this amendment is doing.

Á (2305)

Mr. Paul Salembier: That may have been the intent, but with respect, I think the wording--

Mr. Joe Comartin: It's not the intent; that's what it does.

Mr. Paul Salembier: That would be one interpretation, I suppose.

Mr. Joe Comartin: He's not a lawyer, Mr. Chair.

The Chair: We'll listen to what he's going to say and then you can judge his answer.

Mr. Paul Salembier: I don't know. I am, for the record, but--

The Chair: Mr. Salembier.

Mr. Paul Salembier: I work for the Department of Justice, and I am a lawyer, just for the record. It doesn't mean everything I say is correct, of course, but for the record, the effect of the amendment is simply to clarify that the jurisdiction in residential tenancies includes a jurisdiction relating to eviction and grounds for eviction, but at least one interpretation would be that it doesn't actually require the grounds for eviction to be stated in the law.

Mr. Joe Comartin: How are you reading this amendment that says, specifically, “including grounds for”? If they're going to pass any regulations with regard to residential tenancies, they're going to have to include grounds on the basis of which they can conduct evictions. That's what that clause says, as I read it. I don't know how else you could interpret it.

Mr. Paul Salembier: Certainly, that would be one interpretation of it. If that interpretation is correct, then your conclusion would be correct.

Mr. Joe Comartin: To follow up on the assumption, if the existing bylaw does not provide for grounds, then this would override it?

Mr. Paul Salembier: If we were to assume that a bylaw were made under the Indian Act that would be inconsistent with a power in this act, then clause 37 says the bylaw is carried forward to the extent that the bylaw does not conflict with this act. So on the assumption that an existing bylaw was inconsistent with the act, then clause 37 suggests that this part of the bylaw, or the bylaw itself, would not be carried forward under clause 37.

Mr. Joe Comartin: Let's pick up on that point, because, Mr. Chair, we're back again to the charter under this provision. Let's say the decision by council members is that they have a particular need for housing for youth or seniors, and as a priority they say we're going to provide housing as a priority to that group. I suppose, based on this amendment, they wouldn't be allowed to do that anyway, but in addition to that they would be at least faced with the potential of a charter challenge based on discrimination, on age, and you can think of other situations where they would be challenged once again.

It's just another example of why this clause is so meaningless. We have to recognize the reality of what we've done and the position we've placed the first nations in, and the reality that on any number of occasions and under any number of circumstances, they're going to want to, rightfully so, take affirmative action to restore themselves, to restore their members as full active participants in society and to overcome the discrimination and racism they've been faced with over the last couple of hundred years.

Again, you go back and you look at that particular section, so I understand what Mr. Vellacott is trying to do, but you can see, with or without the amendment, where the charter is going to get invoked. It's just inevitable it's going to happen.

So when we pretend, as clause 16 does, that somehow we're magnanimously recognizing the inherent rights of the first nations, every time--and again, with any one of these clauses--in fact we're not doing that at all because we know inevitably that in order for them to re-establish themselves in the position of equality they're seeking, in order to make their decisions unencumbered by European standards, they're going to need to have that exemption from the charter, and there is just no way they're going to get it, certainly from this government. That's obvious, and it's certainly not in this legislation here.

I have no further comments, other than that I understand where the Alliance is coming from on this amendment, but I just can't imagine that like so many others we're going to provide any support to this legislation. So the NDP will certainly be voting against this amendment.

Á (2310)

The Chair: Can we go to Mr. Vellacott for closing remarks?

Mr. Maurice Vellacott: We can. I don't have lengthy remarks, but until the first nations have together their own charter of rights, I can't exactly conceive of why, as they are bona fide citizens of their own first nation and the greater Canada as well, we wouldn't want to have first nations have the full protection that anybody else just assumes and takes for granted in our country.

So I would think that this would be a good thing. For too long first nations people have been a people apart where they have not had the protections that other people growing up around me, who I've gone to school with, just assume. They take it for granted that they can seek the recourse and the redress and have these basic fundamental kinds of protections.

There may come a day, and it's been discussed and it was suggested at testimony around the country here, that maybe the first nations will come together--and some in fact already have some very good suggestions in terms of how to proceed on that, and I anticipate there may be some fruit borne from it--and have their own charter that would be in sync or consonant with the international kinds of norms. But I think surely we would want, and I would think the member on this side of the table would also want, for every first nations person to be afforded the full kinds of protections that everyone else around this table, every person across this country, expects and assumes, those very basic protections.

That is also the intent of this, to provide that kind of security, that kind of basis, for every first nation, and that's our desire for first nations by way of this particular amendment.

The Chair: Thank you, Mr. Vellacott.

We'll go to the question.

(Amendment agreed to on division)

The Chair: NDP-33, page 126, Mr. Comartin.

Mr. Joe Comartin: Mr. Chair, I'm going to withdraw both NDP-33 and NDP-34. We don't want to be seen in any way as contributing to the--

The Chair: Mr. Comartin, you have a choice of not moving it.

Mr. Joe Comartin: I will not move it.

The Chair: Thank you.

Mr. Joe Comartin: With the explanation being that we do not in any way want to contribute to clause 16.

Mr. Maurice Vellacott: On a point of order, Mr. Chair.

The Chair: One moment, please.

I have a point of order.

Mr. Maurice Vellacott: I would like to move at this point that we adjourn. We've done a good long day's work, and I think it would be appropriate if we came back refreshed tomorrow morning and get a good start at this. I would move that we adjourn at this point till tomorrow. Help me out in terms of 8 o'clock, 9 o'clock.

The Chair: Eight o'clock. Who knows how much work we'll get done, and if we leave early, there are people who travel.

Mr. Maurice Vellacott: Right.

The Chair: If we go all day, it doesn't change a thing. I don't know when it ends.

Mr. Maurice Vellacott: I move that we adjourn till tomorrow at 8 o'clock in the morning.

(Motion agreed to)

The Chair: Thank you very much. The meeting is adjourned.