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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Wednesday, May 14, 2003

1530

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

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

The Chair

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ)

1535

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

1540

1545

The Chair

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

1550

1555

The Chair

Mr. Bernard Bigras

1600

1605

The Chair

1610

The Chair

Mr. Joe Comartin

1615

The Chair

Mr. Joe Comartin

Mr. Jeffrey LeBlanc (Legislative Clerk)

The Chair

Mr. Maurice Vellacott

1620

The Chair

Mr. Joe Comartin

1625

1630

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

1635

1640

The Chair

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

1645

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

1650

1655

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

1720

1725

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

1735

1740

The Chair

Mr. Pierre Paquette (Joliette, BQ)

1745

The Chair

Mr. Joe Comartin

1750

The Chair

1755

Mr. Charles Hubbard

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

1800

Ms. Geneviève Thériault (Senior Counsel, Lands, Trust and Corporate Services, Department of Indian Affairs and Northern Development)

Mr. Charles Hubbard

The Chair

Mr. Pierre Paquette

Mr. Warren Johnson

Mr. Pierre Paquette

1805

Mr. Warren Johnson

Mr. Pierre Paquette

Mr. Warren Johnson

Mr. Pierre Paquette

The Chair

Mr. Pierre Paquette

Mr. Warren Johnson

The Chair

Mr. Charles Hubbard

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Pierre Paquette

The Chair

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

The Chair

Mr. Charles Hubbard

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

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pierre Paquette

Mr. Warren Johnson

Mr. Pierre Paquette

The Chair

Mr. Pierre Paquette

Mr. Charles Hubbard

Mr. Pierre Paquette

Mr. Charles Hubbard

Mr. Pierre Paquette

The Chair

Mr. Joe Comartin

The Chair

Mr. Pierre Paquette

The Chair

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Pierre Paquette

Mr. Jeffrey LeBlanc

Mr. Pierre Paquette

Mr. Jeffrey LeBlanc

Mr. Pierre Paquette

The Chair

Mr. Joe Comartin

The Chair

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Jeffrey LeBlanc

The Chair

Mr. Joe Comartin

The Chair

Ms. Jocelyne Girard-Bujold (Jonquière, BQ)

The Chair

Ms. Jocelyne Girard-Bujold

Mr. Charles Hubbard

The Chair

Ms. Jocelyne Girard-Bujold

The Chair

Mr. Warren Johnson

Ms. Jocelyne Girard-Bujold

Mr. Warren Johnson

Ms. Jocelyne Girard-Bujold

Mr. Warren Johnson

Mr. Andrew Beynon

Ms. Jocelyne Girard-Bujold

The Chair

Ms. Jocelyne Girard-Bujold

Mr. Andrew Beynon

Mr. Warren Johnson

Ms. Jocelyne Girard-Bujold

Mr. Warren Johnson

The Chair

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Andrew Beynon

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Ms. Jocelyne Girard-Bujold

The Chair

Mr. Joe Comartin

The Chair

Mr. Charles Hubbard

Mr. Warren Johnson

The Chair

Ms. Jocelyne Girard-Bujold

Mr. Warren Johnson

Ms. Jocelyne Girard-Bujold

The Chair

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Andrew Beynon

Mr. Joe Comartin

Mr. Charles Hubbard

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Andrew Beynon

Mr. Warren Johnson

The Chair

Mr. Andrew Beynon

Mr. Joe Comartin

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 074

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, May 14, 2003

[Recorded by Electronic Apparatus]

¹ (1530)

[English]

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

The order of the day is Bill C-7, an act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other acts.

(On clause 32—Regulations applicable in absence of code)

The Chair: We are on amendment CA-46 on page 200.

Mr. Vellacott.

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

Some of the amendments we have put forward have carried, though not as many as we would have liked. But you take what you can get.

Anyhow, in amendment CA-46, on line 5 of page 19, we are suggesting adding a subclause 32(3), that reads:

Regulations made under subsection (1) shall be automatically referred to the Standing Committee for recommendations.

As it stands now, the regulations set out the content of default codes and the minimum standards for those bands who have not developed their own codes. So I think it's imperative that those regulations provide adequate safeguards for aboriginal Canadians and that the standing committee should have the opportunity to scrutinize all regulations made under clause 32. In this way you could get input from first nations communities across our country, from leadership, and from ordinary band members. Then we would be the conduit to actually say, “Hey, this has problems; concerns have been raised about it”.

In proposing this amendment, I would think it would allow a little more thorough vetting or scrutiny of those regulations. There is a committee here, the scrutiny of regulations committee, but it is our standing committee that we're seized or in fact obsessed with, which is more concerned about aboriginal affairs and issues and which would make a far more thorough going over of these particular regulations. Many witnesses have also suggested that regulations be made available to the committee and to band councils.

So we're just looking down the road a bit, such that we have some more adequate safeguards on regulations that are imposed, and that there be more input from other folk, including the committee, and by virtue of it, first nations people. Other stakeholders could also weigh in on whatever these particular regulations happen to be.

So this is the rationale or the reasons for proposing this particular amendment.

[Translation]

The Chair: Mr. Bigras.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chairman. First of all, I am extremely pleased to join your Committee today. I know that my colleague, Yvan Loubier, has done a tremendous amount of work on the Bill, a bill that has—I guess that's the least one can say—raised a number of interesting debates, but also given us a chance to define our perceptions and vision of how we should approach the future of First Nations.

With respect to the amendment that has been moved here by my Alliance colleague, CA-46, I want to say that our initial reaction is a favourable one, although we would have liked there to be some clarification as to the role the First Nations would play in developing certain regulations.

It is important to remember that this amendment makes a change to sub-clause 32(1) of the original Bill, which states:

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

To have a clear understanding of the scope of clause 2, we need to refer back to certain other clauses, including clause 5, which establish the codes. We strongly believe that out of respect for the First Nations, it is essential that these regulations not be developed solely on the basis of the Governor in Council's decisions, and that the development of new regulations on these codes should give rise to more debate, and especially more public debate. That is one of the points that is clarified through the amendment moved by my colleague from the Canadian Alliance, which states that the regulations will be automatically referred to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources. This amendment asks that the regulations made under sub-clause 32(1) be automatically referred to the Standing Committee for recommendations.

So, what we want is extensive public debate. As parliamentarians, we have often had an opportunity to consider bills, but often those bills result in regulations that are implemented without parliamentarians having been consulted. What the government often does—and all parliamentarians experience this sort of thing—is spell out the actual provisions in regulations about which parliamentarians are never consulted. As a result, in many cases, the Governor in Council and the government are in a position to define the scope of the bill.

So, like the Canadian Alliance, we believe that these regulations must be subject to public debate. This proposes that the regulations be automatically referred to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, which inevitably means that the setting for this public debate would be the Standing Committee.

But we think this has to go even further. We don't believe that it is enough for parliamentarians alone to be engaged in this public debate. While the government is willing to set the rules without going through the representatives of the people, which is what we are, we believe we have to go even further; we believe that this public debate must be carried out in consultation and collaboration with the First Nations.

So it is in that vein and for that specific reason that I would like to move a sub-amendment which would read as follows:...

¹ (1535)

The Chair: Mr. Bigras, are you going to move it right away?

Mr. Bernard Bigras: Yes, I'm going to move it. I still have about four minutes left.

The Chair: In that case, you don't need to move it immediately.

Mr. Bernard Bigras: No, you're right; I still have about four minutes left.

In that case, I will be moving an amendment later whereby the referred regulations will have to be reviewed by representatives of the First Nations, because too often in the past, we have not thought of involving the First Nations in these kinds of discussions.

Along with my colleague, I reviewed the bill on environmental assessments where, for example, with respect to the James Bay and Northern Quebec Agreement, the government undertook to give special status to the Quebec Crees. While the environmental assessments carried out by the Cree people are recognized in chapter 22 of the Agreement, very often there is a refusal to provide such recognition in laws, agreements and treaties that were signed previously. And Mr. Chairman, we believe that this kind of cooperation would have allowed us to avoid the pitfalls we have encountered in recent weeks, because if the debate these last weeks has been so stormy, it is precisely because the First Nations were not intimately involved in developing this Bill.

So, our view is that there should have been more collaboration on this Bill and that clause 32 that establishes the code and gives complete latitude to the government to make regulations, must provide for cooperation with the First Nations.

Mr. Chairman, I know that I still have about eight minutes left, but I am going to stop here and move that the amendment be amended by adding, after the word “sub-section (1)”, the following :

for review in cooperation with representatives of the First Nation

The Chair: Mr. Bigras, you have the floor on your sub-amendment.

Mr. Bernard Bigras: Thank you, Mr. Chairman.

As I said, we are not rejecting the amendment moved by my colleague from the Canadian Alliance. What we want to do is convince him—and that is what I will be attempting to do over the next 10 minutes—that friendly sub-amendments can sometimes improve a bill. What I'm hoping is that the Members opposite will also hear that message.

In reality, this message is aimed at the government. My Canadian Alliance colleague is saying that regulations that may have been made in the past, using the powers the Governor in Council is conferring upon itself in this Bill, must be open to public debate. That is the purpose of the amendment moved by my colleague and which I support. And he is choosing the Standing Committee as the setting for that debate—a committee composed as equitably as possible of government and opposition Members, so that there can be broad public debate about these issues, just as we would have liked to have in recent months and years.

Are we going further than that? Well, we have decided to go even further and to say to the government that we are giving it a second chance, even though in the past, it has shown its determination not to listen to the First Nations, to ignore their physical and verbal demonstrations and their representations, as relayed to the Committee by various MPs and expressed by the Parliamentary Committee currently reviewing this issue. In recent weeks, the Bloc québécois has in fact been the vehicle for relaying the demands of the First Nations. Today, we extend a hand to the government to ensure that that cooperation is not strictly virtual, and that it can take some concrete form in the months and years to come.

When this Bill has been passed and is in effect, we want to ensure that past errors will not be repeated. If there are any advantages associated with the Federation to which we belong, because we have always been told that there needed to be an asymmetrical federation that focused on cooperation and partnership, then we have to take concrete action now, and the government's words have to be translated into concrete proposals.

Part of our work as parliamentarians is to ensure that Bills and the different provisions of the bills we review translate the government's words into something concrete. We cannot simply rely on empty rhetoric. That cooperation must be founded on mutual respect of the peoples and nations that make up this country, one nation and one federation that must be fair and equitable and respectful of traditions. However, Mr. Chairman, we are not there yet with the Bill we are currently considering. We are still trying to instill that respect, consultation and collaboration. We have not yet achieved mutual understanding. Basically, we are still at a stage where we are trying to provide, with respect to future regulations the government may propose, a means of redeeming ourselves and avoiding the errors of the past.

I sincerely believe that we can achieve that cooperation which, in my view… We are parliamentarians, and if the government believes in the role played by parliamentary committees, it must pay attention to the motion moved by my colleague.

¹ (1540)

Mr. Chairman, it is not in government offices, or between ministers, or even in the Prime Minister's Office, that decisions should be made about the vision we want to develop here in Canada with respect to the First Nations. We have to establish a broad relationship, one of mutual respect. And that relationship of mutual respect requires that we be there to listen and demonstrate brothership and friendship, not only here in committee, but in the context of public debate that will give the First Nations a perfect forum, a public forum in which to present their demands which, we would remind you, are legitimate demands.

Some Members who sit on the other side of the House may not agree with those demands. Some may not want to start a public debate, as my Alliance colleague is suggesting through the Standing Committee, when the Governor in Council develops regulations. Some may not want the First Nations to be involved in the process of considering those regulations. But on this side of the Committee table, on the right, we believe in public debate; on the left, we believe in cooperation with the First Nations.

So, the amendment moved by my colleague and improved by the Bloc québécois has two specific goals : to involve the public in this discussion, and not to be afraid to give the First Nations freedom of choice, freedom of expression, and the freedom to legitimately express what they can offer this country, with a view to improving our relationship, so that we can achieve that essential cooperation that the federal government has always boasted about.

We have heard it repeated that Canadian federalism is founded on cooperation and collaboration, but when you look closely at what has been the result both in Quebec and for the First Nations, it is clear that there is no such collaboration, harmonization or respect for nations. What the First Nations are telling us is that that relationship must be from government to government.

The Minister of Interdepartmental Affairs may already have commented on this, but I would like to hear his views. Does he believe in a nation-to-nation or government-to-government type of relationship? Or does he prefer a bill that will deny those fundamental rights to one that would be transparent, would aim to engage discussion and where regulations would not be decided exclusively by public servants here in Ottawa, with all due respect for the officials with us today?

We have to get out into the communities and listen to what the First Nations are saying. Our experience in recent weeks has shown that if we don't get out there to see them, they will come here to Ottawa to make their views known. That's the reality. The First Nations are not out to demonstrate just for the fun of it, but they do want to express their differences and make their views known as nations.

This is exactly the same debate as with the Bill C-20, when Quebeckers had to leave Quebec and come and march on Parliament Hill to express their right to make decisions about their own future.

The battle we are waging today, that the First Nations are waging and will continue to wage, and that the people of Quebec also waged is one and the same battle : a battle about expressing the right to decide one's own future and the vision that will inform it. And I can tell you that you' re wrong if you think you can bring forward bills such as this and clauses such as clause 32, which lets the Governor in Council set the regulations.

¹ (1545)

So, Mr. Chairman, what I say to my Canadian Alliance colleague is…

[English]

The Chair: Merci, monsieur Bigras.

Mr. Comartin.

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

I'm just speaking to the subamendment.

[Translation]

I want to welcome to this Committee the Bloc québécois Member, who is a friend and colleague from the Environment and Sustainable Development Committee. I believe you will have a lot of work to do here, but also, a great deal of satisfaction, given the issues under review. I also want to say that the sub-amendment you have moved is a good sub-amendment, in my opinion.

[English]

I would like to say that it's in direct keeping with the opposition that has arisen, both from your party and ours, to the overall thrust of this legislation. I'm sure you appreciate that this legislation has, as its basis, a lack of involvement and recognition of the role that first nations must play in their future.

So without any hesitation, I indicate to you that I'm more than happy to say that we would support this subamendment. It's in keeping with the amendment itself, in attempting to expand the role that Parliament would play, or that we as members of Parliament would play, but more specifically, it would allow for very clear and direct involvement by the first nations in these decisions.

It's interesting to look at some of the comments that were made and the extent to which a large number of submissions made by first nations to the committee...they spoke out and insisted that they, as first nations, be involved. They saw themselves as independent. They saw themselves as having full, unfettered rights to be directly in control of how their society would be organized and run. Yet here we're faced with something that would, in effect, be regulating their lifestyle by way of these codes. But for this type of amendment and a whole series of other amendments to the rest of the legislation, it is quite clear that they're not going to be allowed to do that. We're going to be faced with them continuing to be treated very much as second-class citizens, or as not capable of making decisions for themselves without having this type of code imposed upon them by outside forces, as they see them--or the European lifestyle or methodology of governance, which is alien to their history, culture, and sometimes even to their religious practices, in a number of significant ways.

So within a legislative structure, they are very much looking for the ability to control their own affairs, so much of which has been denied to them since the advance of European settlement in Canada, particularly if you go back historically from about the 1850s onward.

It's interesting to read John Ralston Saul on this. In one of his books he has a chapter on the role that first nations played in the history of Canada. This role was very much as nations or as full partners, right up until about the 1850s or 1860s. He goes on in a significant way to detail how they opened their arms and reached out to the European population moving into what had been their traditional territories, and how they assisted them, often saving their lives in many respects. In the balance of the chapter he goes on to talk about how so much of that independence and partnership has been destroyed or just wiped out by legislation prior to Confederation, and certainly from Confederation onwards.

An interesting point he makes is that those nations have survived in spite of their inability to form partnerships with the Government of Canada. They have survived that. It's taken a great toll on them, in terms of the loss of their own population, certainly a great loss of their independence, and a loss of many aspects of their culture--or at least the decline in their ability to fully function within the culture they want to function within.

¹ (1550)

When you look at that history, and at where they are now and at what they are repeatedly saying to the Government of Canada.... You see from the witnesses who testified that they are not begging or pleading, but are simply demanding that they be recognized as having the ability, and the absolute and fundamental right, to continue to function in the way they functioned prior to Confederation--and probably from about 1850 and before. They demand going back to being recognized as full partners by the European civilization that's here now, that they are first nations in all respects, and that they have fundamental rights to govern themselves and to control their societies.

So if this legislation were properly drafted in the way they would draft it, saying, “This is the relationship, and this recognizes our fundamental rights”, the particular subamendment Mr. Bigras proposed would fit very much into that, because they would be sitting in full consultation with this committee and with this government. There would be nothing imposed upon them. Whatever new legislation and new regulations were going through would be done in full consultation with their full consent. Once that were in place, they would be able or willing to provide the infrastructure, meaning the mental attitude, to implement the legislation.

As long as we look at this bill, and some of the other bills before us, in terms of us Europeans imposing it upon them, we're never going to see the legislation fully implemented. It's just not going to happen, because they're not going to be there. They've made it very clear that they've walked away from this legislation and that it's unacceptable. The process has been unacceptable to them.

If we had this type of subamendment going through--which I'm quite sure it's not going to, given the history of the committee up to this point--and we went back through this bill according to their requirements, their desires, and their needs, you would see the same type of attitude reflected by this subamendment permeate throughout the rest of the bill.

I have to say to you, Mr. Bigras, that if we went through that process, the reality would be that the resulting bill would be totally alien from the bill before us at this point, most of which has already been confirmed by the committee to go back to the House. But it would obviously change very dramatically, because fundamental to it would be the recognition that we're dealing nation to nation--not as a dominant power saying to what it considers second-class citizens, “Here's what you have to do; we're telling you that you have to do it this way. You're not going to be involved in the process; we don't really care about what your needs are. We don't see you as being equal partners in this. Yes, we found you like that when we first came here 100-plus years ago, but we just want to forget about that history. We're dominant, and we're telling you what you have to do, so do it.” As long as the legislation attempts to proceed that way, we're going to be stuck here in the House for a lengthy period of time and then have a bill that's not going to be implemented.

I very much support the subamendment. I would hope strenuously that we would see some breakthrough.

¹ (1555)

The Chair: Mr. Comartin, before I go to Monsieur Bigras, I would point out that perhaps Mr. Martin and Mr. Loubier did not inform you that there was somewhat of a religious ceremony at 3 o'clock in the morning in the other room, where they were both made members of communities. They were given names, a feather, and were blessed and received into those communities.

So at least in part, the first nations are at this table, through Mr. Martin and Mr. Loubier.

Monsieur Bigras.

An hon. member: Mr. Chair, I can't let that go by. In fact--

The Chair: You don't have the floor.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I want to pay tribute to my colleague, Yvan Loubier, for the honour paid him in recent weeks. I believe that is very much to his credit, and it is also a demonstration of the tremendous work done by Mr. Loubier and the fact that he has essentially been bringing forward the First Nations ' demands on their behalf in recent weeks. You have given me an opening to pay tribute to my colleague, and I'm sure that my other colleague, Pat Martin, and the NDP will share my opinion in this regard.

Now, let's get back to my sub-amendment. Mr. Chairman, as I indicated, my sub-amendment is intended to make changes to an amendment that we will be supporting, as we've already mentioned. This amendment would launch a public debate on regulations that the Governor in Council would like to set in isolation. Basically clause 32 provides for regulations to be made based on clause 5. And I just want to say, Mr. Chairman, that clause 5 is not a trivial provision; it has to do with the leadership selection code. What the government is telling us here is that it will be fully empowered to determine what the regulations relating to a leadership selection code will look like. That really is a bit much on the part of the government.

I believe the First Nations are worthy of our respect and that we owe it to them to review these regulations in Committee, as my Canadian Alliance colleague is suggesting. In my opinion, that would be a sound and appropriate way of proceeding, because it's worth remembering that in many different bills, as I already mentioned , the government is forever tempted to do the same thing, which is to table bills, but very often leaving the substantive details for the regulations, which are not subject to committee review. That is the real problem. That is what allows the government to use its powers not only to set regulations in secret, without public debate and without going through a parliamentary committee, which is the forum we parliamentarians are involved in, as my Alliance colleague is suggesting, but what is worse, the government is telling the First Nations that the Governor in Council will make regulations dealing with leadership selection, without necessarily asking for the First Nations' cooperation or even advising them

It would be like saying to Quebec that we will decide on the content of regulations regarding the way in which it chooses its leaders, which is already pretty incredible, but to top it off, we won't even do that in collaboration; we'll set the rules on our own. Mr. Chairman, this is starting to look very much like Bill C-20. This is starting to look like a situation where a nation, the Quebec nation, is not allowed to freely determine its own future. That was the implication of Bill C-20.

What the government is telling us today, through its clause 32, it that it will make regulations to establish a leadership selection code. And it will provide for the size and composition of the council of the band. So it is saying to the First Nations that it will decide on the composition of the council and will do so by regulation. In addition to that, it will act without consulting Parliament, and not necessarily in cooperation with the First Nations.

So, if the government wants to demonstrate transparency and respect the First Nations' right to determine their own future, and to determine, on their own, the size and composition of band councils, because clause 5 sets out a fairly comprehensive list of everything the government could set in the way of regulations, it should at least do so in cooperation with the First Nations directly affected, which is the whole purpose of the sub-amendment I have moved to the amendment proposed by the Canadian Alliance.

º (1600)

Mr. Chairman, in the first ten minutes of my intervention I was already convinced, but when, after reading the clause, I realized the impact of sub-clause 32(1) on clauses 5, 6 and 7, with the exception of paragraph 5(2)(b), I was even more convinced of the need for this, because we, as the Quebec nation, would not agree to the federal government making regulations for us on leadership selection. Establishing and imposing a leadership selection code is basically tantamount to deciding how the First Nations will manage their own affairs.

This bears a very close resemblance to what was attempted in Bill C-20 and the Supreme Court reference. There are very strong similarities here, because what this really means is that one nation can impose its will on another nation; and yet this is not the relationship we expected to have with the federal government, if the kind of government and federalism that has been so extensively debated and promoted by the federal government is really aimed at strengthening collaboration and cooperation. It is not up to one nation to say to another nation what codes of practice it should implement with respect to leadership selection. So, Mr. Chairman, as I've already pointed out, there is starting to be a pretty fundamental parallel to be drawn between the legitimate demands of the First Nations and the legitimate demands of the Quebec people, because the right of self-determination and the right to freely determine one's future, including the leadership selection code, cannot remain in a virtual state. They can't just be words thrown out as part of the government's rhetoric; they have to have some concrete manifestation. And we will soon see whether the government is prepared to vote in favour of the Bloc québécois' sub-amendment to clause 32, which reads :

32.(1) The Governor in Council may make regulations providing for the matters with respect to which a code may be adopted under section 5…

And we're going even further : the Governor in Council can make regulations respecting the adoption of a code by a band, in this case, the leadership selection code.

Mr. Chairman, if the federal government is not prepared to cooperate—and that is the object of the Bloc québécois sub-amendment—with the First Nations, then we have a real problem. The idea is not to designate leaders, Mr. Chairman, but to cooperate with the First Nations in terms of determining the size and composition of the councils.

So, that would mean that clause 32, as currently worded, would allow the federal government, via regulation, without previous consultation and without there being any previous consideration of the regulation by the Standing Committee, as my colleague is suggesting, and without any cooperation with the First Nations, to establish a leadership selection code under the powers that rest with the Governor in Council. That is totally unacceptable, Mr. Chairman. If federalism is as flexible as we're told, we should be able to add the words “in cooperation with the First Nations”. That should be a given when we're talking about a leadership selection code.

º (1605)

The Chair: Thank you, Mr. Bigras.

[English]

We will have a recorded vote on the subamendment to CA-46 on page 200.

(Subamendment negatived: nays 7; yeas 3)

º (1610)

The Chair: Mr. Comartin will speak on the amendment

Mr. Joe Comartin: Thank you, Mr. Chair.

I find, as with Mr. Bigras, that I'm quite willing to support the Alliance amendment. It has the impact, I believe, of pursuing, as I think a good number of the members of Parliament want, greater involvement of individual members in the legislative process. In this case, it would allow us, individual members sitting on the standing committee, to involve ourselves in developing the regulations, approving the regulations, that would be made under clauses 5, 6, and 7 of the bill as it is.

This would give us the opportunity to have greater input, as opposed to simply having the internal workings of the minister's office or the public service doing all of the drafting of the regulations and having them passed at the ministerial and cabinet level. It would certainly be a step forward in a functional democracy, which certainly a good number of times I think all members on both sides of the House feel is lacking. I think it's a good proposed amendment, one we can support.

I have to say, Mr. Chair, the difficulty we would then have, assuming this went through, is that we would be faced with developing regulations in line with the codes proposed in clauses 5, 6, and 7, without having meaningful participation from the first nations aboriginal community. Even though this would be a step forward, we have to recognize it as wanting in that regard.

Mr. Chair, going back almost 20 years now, there have been all sorts of proposals around expanding the role of the backbenchers on the government side and the members in the opposition. It would give us the opportunity, as I said earlier, to have some input in that respect.

I suppose there's not much we can do about this given the nature of this amendment, but when I look at some of the work around parliamentary reform done by our colleagues in the House of Commons in the U.K., I can't help but question.... They would be likely to ask, why are you even bothering having to do this? The system there very much allows the members of Parliament not to do it at this stage but to do it even before the legislation gets to be in bill form. They're very much involved at the start of the process. I can't help but think this is the kind of reform our House requires.

New Zealand and Australia have accomplished similar steps, but the English model is certainly several decades advanced over where we are at this point, in spite of the fact that the House has had a whole series of recommendations to allow for these types of reforms, this type of democratization of the House, of the committee process, and a major expansion in the ability of individual members of Parliament to provide all their skills and talents in a much more effective and meaningful way, a much better way of allowing them to represent their constituents.

This is in fact a small part towards that. But one would very much like to think, Mr. Chair, that it would be so much more effective for us as members of Parliament if we had had--and I'm going to take this bill as an example--the opportunity to help draft the bill itself.

º (1615)

I can't help but think that if that had happened, if this hadn't simply come out of Minister Nault's department--one has to guess, mostly off his desk--how much better this would be for Canada, and certainly how much better it would be for first nations right across the country.

If we had those kinds of reforms to the House, to standing committees, to the role that individual members of Parliament could play, we would see an entirely different bill. We would have seen an entirely different process, one that in fact would have very much treated the first nations with the respect they're entitled to, as opposed to the process that has gone on, the end result being, so far, a further major alienation of that community from this government and the Government of Canada. It's really unfortunate when you look at what could have been as opposed to what we now have.

Mr. Chair, if we had gone down that road, that much better process, it wouldn't take away from the fact that the amendment by the Alliance is worthy of support. However, I would say it again lacks that essential additional agreement that I would like to see of having a meaningful participation of the first nations communities, councils, and bands, right across the country, involved in the process.

In that regard, Mr. Chair, I'd like to move a subamendment at this point, which would be that amendment CA-46 be amended by adding the following to the end of the third line: “of which members of the affected communities make up at least 50% of the membership”.

I would move that at this time, Mr. Chair, and obviously I would like to speak to it.

The Chair: The subamendment is not acceptable. If you wish an explanation, I'll ask the legislative clerk to do that.

Mr. Joe Comartin: Please do.

Mr. Jeffrey LeBlanc (Legislative Clerk): The proposed subamendment would mandate that the standing committee would have to have 50% membership of aboriginal communities, and you can't use statute to determine the membership or the makeup of House of Commons committees. It's up to the committee itself to determine... actually, it's up to the House to determine membership of committees.

What the subamendment attempts to do is amend the makeup of House of Commons committees, which is not something you can do by statute. It's something only Parliament can do itself.

The Chair: Thank you.

Mr. Vellacott, for closing remarks on the amendment.

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

I was supportive of the Bloc amendment in that I can see an open, flexible process whereby you could have individuals at this table--as we do today--and seek sincerely to get their input--their yea or nay--in respect of certain regulations coming down and how they would affect them out on the ground, in Indian country, first nations communities across Canada. I thought there was particular merit to that.

Again, the intent here is really, as Mr. Comartin or the NDP member mentioned, that of reforming Parliament, in a sense. It's doing what many members have often commented on, that we should have more direct involvement, opening up of the process, more democratization of this place, instead of so much being done behind the scenes by others. Sometimes the devil is in the details. This way you'd have an elected member, a representative of a constituency in the country, and one to represent more broadly than that...the opportunity to adjust things by way of the regulations.

As I mentioned before, there is, of course, the committee on scrutiny of regulations. They have an incredible task to do because they're covering regulations from A to Z and everything in between, covering all the various critic and portfolio areas from the government's side. Some of these individuals, to their credit, do a diligent job and they take their responsibilities seriously, but they are not the ones who on a day-by-day or a week in, week out basis are involved in that particular committee area, be it aboriginal affairs, natural resources, finance, environment, or whatever.

I think it far more appropriate, then, to have those regulations scrutinized--if you will--and referred to the particular standing committee, in which a good chunk of our life is taken up, certainly these days, in looking over them, and then being able to get the informal input at the table from witnesses. I think that would be a so much better process. I think it's different from a lot of other bills we've passed, because we're involving a significant segment of the population who were here before our ancestors set foot on this Canadian soil.

I think it needs to be handled differently. I think the word from the NDP member was “cooperative”. The other reference he made was to a greater freedom of speech and public involvement and input. I certainly would agree with both of those, actually.

Our intent is to bring a reasonable amendment so that the standing committee would scrutinize the regulations made under clause 32.

Many witnesses who were before us have suggested the regulations be made available to the committee and to band councils. These regulations, as I understand, set out the content of the default codes, the minimum standards for those bands that have not developed their own codes. It's fairly imperative that these regulations provide adequate safeguards for aboriginal Canadians, and having them come before this committee, you could then get the witnesses, the input of people giving testimony, in respect to them.

With that, then, I would ask that we just go to a standing vote on a well-intended, reasonable amendment, CA-46, in respect to Bill C-7, clause 32, amending by adding after line 9 on page 19 the following new subclause 32(3):

Regulations made under subsection (1) shall be automatically referred to the Standing Committee for recommendations.

That is assumed to be this particular standing committee, of which we are a part.

I ask for a recorded vote, Mr. Chair, and we'll proceed from there.

º (1620)

The Chair: Thank you, Mr. Vellacott.

We have a recorded vote on amendment CA-46, page 200.

(Amendment negatived: nays 7; yeas 3)

The Chair: Colleagues, we will now have a recorded vote on clause 32. You will see that amendment NDP-50 creates a new subclause 32(1). We'll deal with that after.

The question on the recorded vote is shall clause 32 as amended carry.

Do you have a point of order?

Mr. Joe Comartin: I just want to speak briefly to clause 32, some of which I will be expanding on when we get to subclause 32(1).

When you look at the way we've treated the making of regulations under clause 32, building those codes under clauses 5, 6 or 7, as opposed to how we're dealing with them under clause 4, which in effect allows the first nations to control their own affairs in those very limited circumstances, we are not willing to allow them to do so under clauses 5, 6, or 7. This is despite the latter arguably being more important codes, issues, policies, or principles that any society would want to control--though I don't want to denigrate in any way what's in clause 4. On the one hand, as a dominant power we're again saying to them, “Look, we'll throw you this bone and let you have some control over this little bit over here”, but in clause 32 we're saying, “You can't have any control over the regulations in clauses 5, 6, and 7 in the same way that you could under clause 4. You're not going to have any particular influence on those, and certainly nowhere near to the degree you will have under clause 4.”

Of course, when any objective person looks at the contrast between those two areas or approaches, what jumps out at you is that, “Okay, we're going to throw you this--under clause 4 you're going to be allowed to have some input or control, but nothing beyond that of anything that's meaningful”.

When you look at the kinds of regulations that are going to be passed under clauses 5, 6, and 7, they go to things like who gets “the mode of selection of the members of the council”, or the actual democratic process. I'm looking at clause 5, which lists some of the other democratic processes. Then you move into clause 6, where you are again into some fairly basic methods that any society would want to be able to control, and not be told by a power over there, which is in many, many respects alienated from them--and has been for a lot longer than 100 years--that “We're going to make regulations on very basic things, and this is the way you have to conduct your lives”.

If we pass clause 32 the way it is, those regulations are going to be totally without any required consultation. If this bill ever gets through the House, maybe some future government would have a broader view of what its responsibilities are in governing all of its people, and may in fact allow for some meaningful consultation. But this is not likely, given the format of this bill and the law that would flow from it.

What is quite clear is that clause 32 would not require consultation. So you're again going to have the minister's office or people within the public service with no responsibility for consultation or for using a democratic process to let those regulations evolve in a meaningful way for these cultures, societies, councils, and bands, etc. They're simply going to be doing it at a distance and then impose it on the first nations.

º (1625)

Mr. Chair, it really begs the question to pass this type of legislation and to impose these kinds of regulations and regulatory process on them, and then to ask, “What do they want?”

What they obviously require in this very fundamental democracy is to be involved. The process up to this point, which clause 32 confirms, and in fact implements in actual legislation by the government of the day, is totally alien to anything resembling democracy from the vantage point of the communities, cultures, or nations who are going to be directly impacted by it.

Mr. Chair, just as we have been opposed to so many other parts of this bill, we as a party are totally opposed to clause 32, with all of its implications for the first nations and their people.

º (1630)

The Chair: Thank you.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Thank you very much, Mr. Chairman.

I'm very pleased to have an opportunity to speak at this stage in the debate, first of all to tell you how disappointed I am. I am really disappointed to see that government Members defeated two Opposition amendments that were aimed at what, Mr. Chairman? Their primary aim was to provide for greater accountability with respect to any regulations developed by the government in council.

The Chair: Mr. Bigras, we are no longer talking about sub-amendments; we are talking about the amendment.

Mr. Bernard Bigras: That's correct, but it does have an impact.

The Chair: We are going to be voting on the clause. The sub-amendments were defeated; they are no longer part of the debate.

Mr. Bernard Bigras: Fine, Mr. Chairman.

Clause 32 does one thing : it reduces the Governor in Council's accountability for any regulations that it would make. That's the first point.

The second point is that there is a glaring lack of transparency here. If, at the very least, the government had provided for greater cooperation with the First Nations in clause 32, and if the government had at least introduced wording that would allow the Committee to be consulted about regulations that will have an impact on codes of practice, particularly when it comes to leadership selection, we would have voted in favour of clause 32. But that is not the case. This is a kind of catch-all clause where the government is refusing to refer any future regulations made by the Governor in Council to parliamentarians for review.

Indeed, this is not the only bill we've seen where the government decides to make regulations, only refers the bill to parliamentarians, and takes care to set those regulations without there being any debate, either in a public or parliamentary forum.

So, if the members of this Committee really want to play an active role and not be told they're just backbench MPs, they have to ensure that any regulations made by the Governor in Council are referred to them for review. If they vote in favour of this resolution, they are in essence admitting, on that side of the House, that all the regulations have to be developed by the Governor in Council. They would be admitting that and clearly stating that they don't want any power whatsoever, when we know for a fact that that is not what backbench MPs often tell us. They want to play a role in this Parliament. They believe that the committees should embody the very essence of democracy, and yet today, they are prepared to vote in favour of clause 32, which lets the Governor in Council make the decisions about regulations. That makes absolutely no sense. It's like telling the voters that we will let the Prime Minister's Office decide on the future of our relations with nations, that we don't want any public debate, that we don't even want recommendations to be made to the Governor in Council with respect to certain codes of practice.

Clause 32 is a paternalistic clause; that is the third point I wanted to make. In addition to denying elected Members of Parliament such as ourselves the ability to be accountable… We are not just supposed to be doormats, Mr. Chairman. Our role as elected Members of Parliament is to work to change the system, contribute to public debate, and ensure that committees fully play their role. More accountability and transparency is what we're asking of committees. And yet here in this paternalistic clause 32, what we are telling the Aboriginal nations today is just exactly how they will go about establishing leadership selection codes. Can there be anything more paternalistic than telling the First Nations how many meetings they should hold, and forcing them to hold at least one per year, as well as how to notify people and announce that a meeting will be held? So, the federal government, departmental officials and the Prime Minister's Office will be submitting regulations, but we parliamentarians will have no opportunity to scrutinize those regulations, and there will be no cooperation with the First Nations in this process.

º (1635)

It's you, departmental officials, who will be determining how the First Nations invite their members to select leaders.

I'm sorry, but I have to make one small correction : this Bill goes even further than Bill C-20. It is more paternalistic than Bill C-20 because even though the federal government refuses to recognize the Quebec Referendum Act, at least it doesn't come along and tell the Quebec government when it should call an election, how it should make that determination, or under what conditions there should be a public debate.

But today, what the federal government is saying is that it will establish the codes of practice. However, Mr. Chairman, that is totally inconsistent with the rhetoric that we've been hearing from the government Members opposite, who have been saying that the governement wants to establish a nation-to-nation relationship. That is what this Bill says. It says the government wants to establish a government-to-government, or nation-to-nation, relationship. But when one nation starts to impose via regulation the procedure for calling meetings to select leaders, that is not only paternalism; it shows a total lack of confidence in these nations to want to impose a form of democracy on them at a time when the government is boasting about Canadian democratic values on the international stage. We boast about the fact that we are a democracy. And yet it raises serious questions when you see how the government is attempting to bias the way nations establish their own democracy.

This gives them the ability to determine via regulation, pursuant to clauses 5 and 6, how the code will be established, how the minutes of meetings are to be kept, and band members' access to that information. Then it goes even further. That was clause 6; so I wasn't that far off. Sub-clause 32(1) then says :

The Governor in Council may make regulations providing for the matters with respect to which a code may be adopted under sections 5, 6…

If you look at paragraph 6(1)(d), you'll see that it talks about :

(d) respecting the keeping of minutes of proceedings at meetings and access to the minutes by members.

So, clause 6 will be regulated by the government. The government can establish codes for access to minutes by band members. That is nothing but paternalism, Mr. Chairman, and it simply doesn't jibe with Canada's rhetoric in the international arena.

If collaboration and cooperation still have some meaning, and if the Members opposite want to be serious, and rather than saying they have no role to play within their political party whenever they feel like it, actually vote in favour or against a bill or clauses of a bill that give them real powers… Since I've been here, and I got here at 3:15, I haven't heard one single comment from a government Member. You may be thinking that I have no right…

Are my 10 minutes up?

º (1640)

The Chair: Yes, they have just ended. Thank you, Mr. Bigras.

[English]

Mr. Hubbard.

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

When I came to the meeting today, I looked with some degree of optimism because I found both the NDP and Bloc had sent some new members who might be wanting to contribute to a worthwhile venture in terms of improving Bill C-7. But I'm deeply disappointed in what I've heard. And, Mr. Chair, I'm trying to think of all the experiences I've had in my lifetime, and this committee is one of its own because there's no place in this nation where anybody trying to improve legislation, or to write good legislation, would have to sit here and listen to people talk about something off the bill and that is not an attempt to create a better Bill C-7. There's no place on earth where people in this room, and especially members of Parliament who have so many good things to do, would have to sit and listen to such diatribes as we heard in the nearly hundred hours from the two parties in question, both the Bloc and the NDP. It's deeply disappointing.

But I would like to point out that the previous speaker just said he'd like to play an active role in improving this legislation. Now I see he's leaving, but maybe his active role would be in leaving. The point of the matter is that we have had a minister and his department who have spent several years bringing this bill before Parliament. He talked about lack of consultation, and I just looked at some of the numbers here in terms of the phase one of activities. One hundred and thirty-five meetings were held across Canada with phase one. With phase two, there were another 488 meetings. In those meetings, more than 12,000 people attended. In Atlantic Canada, where I come from, there were 42 information sessions, 48 consultation meetings, and 82 information sharing sessions.

On top of that, Mr. Chair, the bill was presented in the House last June. It sat before all of us. We had ample opportunity to study the bill, to bring forward what I would have hoped would be good ideas. The committee, after receiving the bill a second time after the throne speech last fall, spent four weeks on the road listening to hundreds of people across this country. I think the message we heard, Mr. Chair, was that chiefs who were offered the opportunity originally to participate in the preparation of this bill declined to do so. But the two parties opposite want to speak for the chiefs now. And we on this side want to speak for the thousands of other first nations peoples who are not elected to that position.

I think we have to define our objectives in terms of what role we might play actively in this.

I've watched the Alliance. I don't agree with all of their amendments, but most of their amendments were placed before this committee in good faith. But when I listen to what the other parties are trying to do, and especially to the frivolous amendments by which they're trying to get time to talk, I can only sympathize with the people who have to sit in this room and listen. I would hope, Mr. Chair, that this does not have to go back to the House due to our saying that we've run out of time or we need to get this legislation brought back in terms of the report stage, but it would appear that the two parties in question have the main objective of you, Mr. Chair, having to report to the House leaders that it's such a disaster they're presenting to the committee that we have to somehow look for direction from the Speaker in the House to deal with it.

I watch the clock every time members speak, and they want a full ten minutes. They don't want to talk on what they're talking about; they want to talk of things all over the map. Mr. Chair, in terms of this talking a further 20 minutes just now on clause 32, again, it's simply a further delaying action.

Mr. Chair, I don't know what avenue you plan to take, but certainly we will endure this if necessary. We have a great objective to bring forward the best possible legislation. I'm sure members on this side of the table persist in seeing that Bill C-7, when it gets back to report stage, is amended as necessary, and it will be the best that we on this side can put back in the House of Commons.

Thank you, Mr. Chair.

º (1645)

The Chair: Thank you, Mr. Hubbard.

Now a recorded vote on clause 32 as amended.

(Clause 32 as amended agreed to: yeas 7; nays 2)

The Chair: Now on NDP-50.

Mr. Comartin.

Mr. Joe Comartin: Thank you, Mr. Chair.

I suppose I have to start by responding to the parliamentary secretary. I think he's heard the response before, but I might as well give it to him again. When he talks about all this consultation, the reality is you had 191 presentations in total, 147 groups and 44 individuals. You had 191 people opposed and 10 in favour.

Mr. Chair, we hear from the government, from the parliamentary secretary in particular, what a great process this is. If it was a great process, where's the response? Democracy doesn't work by having a sham series of hearings across the country where you lead people to believe that you're going to pay attention to their arguments and their positions when you in fact have no intention of doing that. Clause 32, which we've just passed, was clear on that. I think what we're trying to do in proposed clause 32.1 is to put some meaningfulness into the bill.

I want to make one other point, Mr. Chair, and it's in response to comments you made off the cuff with regard to Mr. Loubier and Mr. Martin going through this ceremonial hearing. We've heard again now from the parliamentary secretary to the effect that we're in some way speaking on behalf of the first nations, Monsieur Bigras and myself, and that somehow this ceremony, which I can tell you, Mr. Chair, because I was there for the entire ceremony, was a very moving one, one that I thought Mr. Loubier and Mr. Martin very much deserved in terms of the recognition that the first nations wanted to give to them in the context of what they did....

That context, and it's the point I'm moving towards, Mr. Chair, is this one. We're not here saying we can speak on behalf of the first nations. They're the only ones who can do that. It is the height of arrogance, and it reflects this government, to suggest that anybody can do that. That's the role they've taken on. It's not one we're going to be part of. Our role here is not only to play the traditional role of opposition but specifically in this case to make as clear as possible--and this is the only way we can say we're in any way able to speak on their behalf, and that's because of their very clear message that came through in all the testimony and all of the contacts we've had with them--that this bill is not one they can accept. That's the message. That's the role we're playing. But we are not here able to say, as we've just looked at 32, if we were going to do those regulations, would we in fact be able to? I don't think we can.

In 32.1, what we're trying to do—

The Chair: Mr. Comartin, I know you're probably going to get to this subject, and I don't want to interrupt a new idea, but you'll find in the blues that the comments that have been made are supported by comments made by Mr. Martin and Mr. Loubier. They claim to speak for...and it's in the blues all over the place. So that's what inspired me to mention that.

Mr. Joe Comartin: I think again we have to appreciate the context in which that “speaking on their behalf” is in, and it's a very limited one.

To go specifically to proposed clause 32.1, Mr. Chair, what we're attempting to do here is to simply say we can't speak on their behalf; we can't pass regulations on their behalf. When you look at the sections, it just jumps out. This is the type of determination that can only be made by the individuals and communities being affected by it.

What we are doing here is we are saying recognize that they are the ones who have to make the decision, give them the right by way of vote to determine whether what have been called default codes are going to apply, and they would only be applicable if in fact they were accepted by the first nations they were going to be used by.

I looked at some of the recommendations we had. I want to draw the committee's attention to one from Dr. Frank Cassidy, who's a professor at the University of Victoria, the school of public administration. This was at the Nanaimo, B.C., hearings. He said:

I would see some first nations possibly saying that they would accept a default code. But thatdefault code would have to be designed in a very different way from which this legislation wasdesigned. That default code would have to be designed with full first nations participation andagreement.

That was his analysis of it.

Then you go to the Treaty 7 Tribal Council. They said they were recommending that the draft requirements for the default codes, which will be set in regulations to the FNGA, be provided to first nations as soon as possible so that they can determine their requirements. So again they're asking. They're saying, we have to have full participation here. They went on in their brief to say “and therefore make an informed decision as to whether to develop their own codes or come under the default codes”.

The Opaskwayak Cree Nation--this was in Thompson, Manitoba--indicated, and again I'm quoting from their brief:

We request that this legislation be amended to require bona fide and meaningful consultationwith First Nations for the enactment of regulations.

The Blood Tribe, in the brief that they submitted at Red Deer, said:

First Nations need proper and meaningful input into the drafting of the Regulations. The BloodTribe recommends that it have specific input into the drafting of the Regulations.

What are we hearing from them? They repeatedly, any number of them, are saying--and again it goes back to that partnership--“We have a role to play here in governing ourselves. We want it to be a meaningful one; we want it to be one that allows for full democratic participation.”

When I look at the codes, what jumped out at me as a lawyer is that somebody--I'm not sure whom--somewhere said these are the things that have to be governed and regulations passed under. When I looked at that, I said this is like setting up a corporation.

I know you heard this repeatedly, but there is a great fear within the first nations that they are not being treated on a nation-to-nation basis, that a system is being established that very much treats them, at the very best, more like a municipality, the third tier, the lowest tier of government. My own analysis, when I look at the codes that are being established here, is they aren't even codes that would be imposed on municipalities by the provinces. These are the types of codes that would be imposed on a corporation.

If I was a first nations person, that's the analysis I would bring to bear here. I would be saying, they don't see us as another nation, they don't see us as equals; they're simply seeing us as some little second-class entity over here on which they can pass the regulations. They can tell us the types of elections we have to have, who can run for those elections, how we deal with conflict of interest. The list goes on. In the financial area, this is the one that's probably the closest to what it's like when you set up legislation dealing with corporations.

º (1650)

If you went into the provincial sector and looked at their legislation for establishing corporations, this is exactly what you would find.

It's very clear from the messages we got that they don't see themselves as corporations and they don't see themselves as municipalities. They see themselves as full-blown nations, as they always have been, and they're demanding, they're insisting--again, this is the message we're getting clearly from them--that we as a government treat them that way. We cannot pass these regulations and then impose them on them.

In fact, I suppose the amendment we've proposed, Mr. Chair, is to say, look, if you insist on going through passing these regulations, fine, you go off and do your own thing as the Government of Canada.

º (1655)

The Chair: Thank you, Mr. Comartin.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Thank you very much, Mr. Chairman.

It is again with great pleasure that I comment on this Bill, and particularly on amendment NDP-50. Basically what this amendment does is set certain parameters or establish the procedure for making regulations regarding the codes. Now the federal government and government Members have just decided that that will be done without the assistance of the First Nations, and without an opportunity for the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources to scrutinize those codes or make recommendations in that regard to the Governor in Council.

What the NDP is proposing here is that regulations with respect to codes that, as I was saying earlier, deal not only with leadership selection practices and procedure, but financial management and accountability, band government practices, and members' meetings will, even though the Governor in Council will have developed them unilaterally, have to be submitted for approval to the band council before being implemented. This is in keeping with the First Nations' right to determine on their own what practices will be implemented.

I believe we no longer have a quorum.

[English]

The Chair: We'll resume in 15 minutes.

º (1659)

» (1717)

[Translation]

The Chair: Mr. Bigras.

Mr. Bernard Bigras: We are resuming debate, Mr. Chairman.

As I was saying earlier, the intention of amendment NDP-50 is to ensure that codes respecting First Nations practices and governance that have potentially been developed unilaterally by the Governor in Council, can be accepted or rejected by the bands, based on their choice.

So, what this amendment says is :

32.1 Regulations made under section 32 do not apply to a band unless the band adopts those regulations by a vote of its eligible voters conducted in the same manner as a vote for the adoption of a code under section 4.

So, this gives the First Nations every opportunity and complete latitude to adopt or not adopt, by means of elections, the code developed by the government.

Not only should we be allowing for freedom of expression, as we suggested in previous amendments that talked about cooperation with First Nations, and as my Alliance colleague suggested as well, emphasizing the need to refer these regulations to the Committee, but it is absolutely essential to abide by the fundamental and democratic principle whereby the First Nations choose their own practices. That is the purpose of the amendment moved by my NDP colleague.

It is also important that the codes referred to in clause 32.1, as proposed by my NDP colleague, respect the customs and traditions of the First Nations. It would be illusory, paternalistic and unacceptable to establish those codes here in Ottawa, codes that would not reflect their customs and traditions. Who are we to set codes of practice based on our premises and our way of seeing things, when they have traditions and customs that are totally different from our own?

So, the fact that we here in Ottawa, along with officials and the Governor in Council, would be establishing codes relating to band government on the basis of our premises is tantamount to our wanting to impose our ways on these nations. And this is not a trivial matter. It goes beyond the right of self-determination.

In that respect, since we came here in 1990, we have always believed that Quebec's national government should be the one to approve decisions made by Ottawa. We have never accepted the idea that bills coming out of Ottawa should be able to tell Quebeckers what to do or what practices they should adopt.

Personally, I'm not surprised by Bill C-7. For the First Nations it may be a surprise and a revelation, but we have seen this kind of thing before. We saw Bill C-20. We saw the Endangered Species Act come forward here some 13 years after the Government of Quebec, under Robert Bourassa had passed the first Act respecting threatened or vulnerable species in 1990. So we saw the federal government come barging in on this whole process and, through the different clauses of the bill, give itself complete latitude to push the Quebec law aside in favour of the federal law. That is what is called—and I hope the First Nations will remember this—“nation building” in Canada. It's this determination to centralize everything in Ottawa and decide how nations—be it Aboriginal nations or the Quebec nation—will organize their affairs.

Mr. Chairman, the federal government had better not table a bill like this telling us how to structure our democracy, because I can assure you it just wouldn't work. Quebeckers would never accept that kind of paternalistic approach.

I can understand that the Aboriginal nations are frustrated, because the government doesn't even have the courage to spell things out in the actual clauses of the Bill. It has left the door ajar in terms of the regulations, regulations that will be developed in a vacuum without consulting the Standing Committee or the First Nations, when that is in fact what it could have done, and what we were aiming for with our amendment.

The federal government doesn't even have the courage to do that. It is hiding behind regulations that will tell the Aboriginal nations how to structure their democracy, just as Bill C-20 tried to impose the same thing on Quebec.

I like amendment NDP-50. I think it gives First Nations an opportunity, if they so wish, to implement these codes, if they decide to do so in a democratic manner. However, I would have liked the wording to specify that these codes, which the NDP Member refers to only at the end, have to be developed based on their customs and traditions. I think it would be illusory and even disrespectful for those codes to be developed based on our premises. That's the danger. When it comes times to draft bills and regulations, often that is done based on own idea, which is the problem with Quebec-Canada relations, I might add, because these bills are designed on the basis of the centralizing premises of Canadian nation building. That's the problem.

So, we could specifically state here that the codes have to be developed in accordance with their customs and traditions. Mr. Chairman, I would like to move a sub-amendment to the amendment proposed by my NDP colleague. It would read as follows : That the amendment be amended by adding, at the end of clause 32.1, the following :

based on their customs and traditions.

Thank you.

The Chair: Mr. Bigras, you have the floor on your sub-amendment.

Mr. Bernard Bigras: Thank you, Mr. Chairman.

The Chair: Mr. Bigras, I don't want to impose too many rules on you, but if you wouldn't say “Mr. Chairman” quite so often, I can assure you I would sleep better tonight.

Mr. Bernard Bigras: Mr. Chairman, it seems to me that is proper parliamentary practice. I imagine you prefer being called “Mr. Chairman” to “Mr. Bonin”.

The Chair: Mr. Bigras, I can't force you not to bother me.

Mr. Bernard Bigras: Mr. Chairman, Mr. Bonin, I have too much respect for the office of chairman to call you either by your first or last name. If you like, we can discuss this later on.

So, my sub-amendment is intended to improve the amendment moved by my NDP colleague. He and I have had an opportunity to talk together when examining other bills. I have to admit that I might have hoped to see him defend, accept and promote Quebec's right to decide its own future as passionately as he is now doing for First Nations. I say that respectfully, because we basically share the same values. The more we have an opportunity to talk, the more I am realizing that my colleague is a great democrat. His fundamental desire is to see the First Nations determine their own future freely and that if Ottawa is to establish codes respecting practices and procedures for managing and designating band leaders, it has to be up to the First Nations to decide whether or not to accept those codes. All I can say is that in the past, I would have liked to see the NDP mounting an equally vigorous defence of the legitimate, traditional and historical demands of the people of Quebec in terms of its right to decide its own future, as Robert Bourassa said after the failure of the Meech Lake Accord.

Having said that, the point here is to improve my colleague's amendment by saying that if the federal government—this is not something we wanted to see, but it is conferring that power on itself through the Governor in Council—establishes codes of practice, then it has to respect the practices, values, customs and traditions of the Aboriginal nations which are clearly distinct, and we have to recognize that. Let's recognize the distinctiveness of these nations and the fact that their special status requires that we do things differently. We have to accept peoples' right to be different. We can show solidarity, but at the same time, our own experience is enriched by our diversity.

The purpose of the Bloc's sub-amendment is to recognize that diversity, based on respect for nations and their right to determine their own management approach, according to their way of seeing things. As sovereignists, we do not believe that the federal government should be imposing laws on Quebec based on its own premises. Nor do we believe that the federal government should use Bill C-7 to implement codes of practice by regulation that haven't been debated in Committee and that were not developed with the cooperation of the First Nations. If that had been the will of the government party, it would have voted in favour of our amendments—both the ones moved by the Alliance and our own. So, it's important that these codes of practice respect the system they're proposing, and what they represent in terms of values.

The same applies to the environment. Mr. Chairman, could we accept the idea that lands and natural resources, which are so fundamental to the First Nations and are part and parcel of their values, would not be managed in the same way? And yet in terms of protecting the land, that close relationship to the land and their roots—in Quebec, we call it the “terroir”; I don't know what term the First Nations use—and their bond with the land, there is no doubt that when we adopt rules, they are necessarily different.

I cited the example of the James Bay and Northern Quebec Agreement which the federal government abides by in principle. Chapter 22 of that Agreement grants special status to the Cree people and recognizes the environmental assessment process they have developed.

And yet, in a bill like the Canadian Environmental Assessment Act, Bill C-9, we don't sense that recognition is there. When we, on this side of the House, ask that the federal government abide by the treaties it signed and on which appear its official signature, when we ask for that legislative recognition, the government says no. It replies that it signed an agreement, a treaty, but it refuses to recognize that solemn commitment in legislative terms.

So, that is really the purpose of the sub-amendment I am moving. Its purpose is to say that if the government really respects the approach and values behind the First Nations' democratic practices, because we are really talking about democracy when we talk about band government codes or in another clause—I believe it's clause 5—about leadership selection codes… Here we're talking about something absolutely essential : democracy.

So, what we're saying is that the federal government can come along and establish the First Nations' democratic process. That is what this means. It means that by regulation, without consulting Parliament, without working with the First Nations, people here in Ottawa sitting in offices on Wellington Street can tell the First Nations that they have to adopt such and such a rule or code of practice regarding their procedure for designating their representatives and their way of structuring band government.

Mr. Chairman, people who followed the debate on Bill C-20—and I come back to this once again—know that that was what it was all about; it purported to tell the people of Quebec that they couldn't decide on their future, even though more than 50 per cent of Quebeckers had opted for self-determination. That was the Minister of Intergovernmental Affairs' insurance policy at the time.

There is a dominant trend inside this government. Not only is this an excessively centralist government by its policies, and legislation, but it prevents peoples from deciding freely—and I would emphasize the word “freely”—how to shape their future. That is truly deplorable, because in the international arena, the right of self-determination of all peoples is a recognized right. As far as I know, Canada has always adhered to this fundamental principle. I thought Bill C-20 was just a hiccup. I thought the federal government only took that approach with Quebec. But I'm realizing, Mr. Chairman, that there are tensions not only between Canada and Quebec, but between Canada and Quebec and Canada and the First Nations, and that there is a dominant trend here, which is to make decisions for other peoples about their future. And there is nothing trivial about this, because what we see is that this is a much more serious a problem than I realized with Bill C-7.

When the federal government can come along and interfere via regulation in procedures regarding the calling of meetings and access to the minutes of meetings by members, then there is something very much wrong with that picture. It isn't really that complicated : if the government wants to give half-powers or half-rights, then it should come right out and say so. But, in this case, it shouldn't be saying the First Nations are autonomous and that they have a right of self-determination. It should be saying what it means. If the government is intent on interfering even in such matters as the calling of meetings, then it should stop giving us this double talk, Mr. Chairman. We are not trying to hold up the work of the Committee, even though ultimately that is what is occurring, but the fact is we have a duty to ensure the truth comes out.

[English]

The Chair: Merci, Monsieur Bigras.

Mr. Comartin.

Mr. Joe Comartin: Thank you, Mr. Chair.

I'm not sure, am I under the same request from the chair to not say “Mr. Chair” as often as I do?

The Chair: You've been good.

Mr. Joe Comartin: So I'm within the accepted--

The Chair: I know you do that to aggravate me, but it's not working. I just wanted to bring it to their attention that I'm aware they're doing it to aggravate.

Mr. Joe Comartin: We are doing some other things to aggravate people here, Mr. Chair, but I want to say I don't do that. I'm not doing it any more often than I normally would in any other committee.

The Chair: I know you don't. As a matter of fact, I look forward to hearing you when you speak.

Mr. Joe Comartin: I don't fall into that same category then, Mr. Chair.

With regard to the amendment, it seems to me it very much fits into the pattern of the amendments we've had, both directly and through subamendments, that we take into account recognition that the legislation must accept the need for the first nations to be able to determine their future, determine how they're going to function, in line with their traditions and their long-term customs.

So as a party--I can speak on behalf of the NDP--I say to our colleague from the Bloc that the amendment is one we would welcome. It seems to me it's in complete compliance with what we're attempting to do in making this legislation comply with the needs and desires of these communities.

I couldn't help but think, when I was listening to my colleague from the Bloc, that I come out of two traditions--the one he was addressing, the francophone community in Canada, and the other out of the Irish tradition. As he was speaking about traditions and customs, I couldn't help but think of some of the lawyers in Ireland in the 1800s and the early 1900s who had to fight the same type of attitude that is in this bill. Because they were so much cut out of the rest of the democratic process, they did it in the courtrooms. Some of the great orators of that time were lawyers who came out of that tradition and who challenged the occupying power, in the form of the British government, to impose, oftentimes in the criminal courts, criminal sanctions against their people. Of course, throughout that century and the century before so many of our ancestors were evicted under criminal sanction from Ireland, a good number of whom ended up in Australia, but some of whom ended up here in Canada.

The reason I'm raising this, Mr. Chair, is that the attitude of the British--that imperialistic, arrogant, supreme or superior attitude that so permeated the British governments of that era--is still reflected to such a significant degree in this bill. My friend from the Bloc has indicated how it reflects the attitude of the government toward the right of self-determination of the Québécois, which I fully support, and the attitude of this federal government in particular, in not being prepared to recognize that for that segment of our society. And it permeates the legislation we have before us now. It's the same attitude the Irish were faced with when the British governed them in the 1700s and 1800s. It wasn't until we saw that type of approach by those lawyers that we began to see some cracks in that occupying power and the ultimate freedom the Republic of Ireland now has, which allows them to determine their own history, their own future, and their own fate, which clearly this bill would not allow the first nations to do.

I don't know what one can say to try to convince the government that the subamendment we have here is a microcosm of the problems with the bill, but it does in a very short but eloquent formula speak directly to the problems with the bill. So as an amendment, it makes sense. It would allow for the decisions that they would make on the main amendment to be governed by their customs and traditions.

» (1720)

Again, one has to go back and ask, do we know what those are? I'm quite free in saying I don't. I don't think anybody else can say, nation to nation. Each one of those communities or societies has to make those determinations, again based on factors that we might, within our history, our traditions and customs, not take into account at all. In fact, some first nations say yes, these are our traditions, these are our customs, this is an issue we do have to take into account; and others would say no, that's not our history and tradition.

I'm just reading a comment of one of the first nations leaders, talking about the minister's bill trying to be sort of a cookie cutter that would be applicable to all the first nations as if they were all identical, that their needs and desires are all the same, and therefore we can legislate in that respect with one piece of legislation governing them and controlling them all. His comments, very clearly, were “I'm not the same. I'm from this nation; I'm not the same as the other nation that may be very close to me or one that's way across the country, with which I've had minimal contact and from which our traditions and customs are dramatically different.”

When you see the wording that's in the subamendment, it reflects that same attitude. So what we're in effect trying to do is recognize that they are different, not just from the government that we would run but within their own communities. From community to community they are different.

The point my colleague from the Bloc made about dealing with them nation to nation doesn't mean all those nations out there. It does mean nation to nation, the country of Canada, with each one of them respecting those customs and traditions and that they are different from coast to coast and even within provincial jurisdictions.

They're not all the same. They have a long, rich, colourful history that did not come out of exactly the same patterns and has not resulted in the same pattern of governance, which has allowed them to develop different customs and traditions.

So I'm very much in support of the subamendment. I'd be happy to vote in favour of it.

Thank you, Mr. Chair.

» (1725)

The Chair: Thank you, Mr. Comartin.

[Translation]

Mr. Bigras, do you have any closing comments?

I just want to point out that our interpreters have to wear headsets. If you shout into the microphone, it becomes difficult for them to work. This is not a large room; perhaps I could ask people to speak more softly.

Mr. Bigras.

Mr. Bernard Bigras: I understand, Mr. Chairman, but I can't be expected to adjust my own tone of voice. I think it would probably be possible to turn down the volume of my mike. I know that it is possible to do that. Could the clerk just tell us whether technically, it would be possible to turn the volume down to make it easier…

The Chair: If you wanted to, you could simply not talk so loud. That's all.

Mr. Bernard Bigras: But that's the way I talk. I am small, Mr. Chairman, but I have a rather booming voice…

The Chair: So, you don't want to do that?

Mr. Bernard Bigras: You are a larger man, but you have a soft voice.

The Chair: So, you're not interested in doing that? Fine. Please proceed.

Mr. Bernard Bigras: I'll try, but I can't change my nature, Mr. Chairman. You shouldn't be trying to impose certain practices on me, because that brings me right back to my comments on the Bill. The fact is that fundamentally…

The Chair: I told you I wasn't imposing anything on you.

Mr. Bernard Bigras: There is a fundamental problem here in that the government is attempting, in this clause of the Bill, to impose certain practices and procedures on the First Nations, even though in many respects, that is completely unnatural.

So, the sub-amendment I have moved is intended to ensure that these codes of practice—a little like what we have here, Mr. Chairman—or these management codes defined in the regulations will be developed based on their normal traditions and ways of doing things. That is absolutely fundamental.

This is the first time I have taken part in the work of this Committee, but as my colleague, Réal Ménard, was saying recently, this is a very interesting committee. I have to say—and my colleague, Mr. Comartin, who is with me on the Environment and Sustainable Development Committee can confirm this—it is very rare for me to get so charged up about something. It's a rare occurrence, because I am generally a discreet person. You can even ask Mr. Caccia, the Committee chair.

I see there aren't many people listening to me or many colleagues left here in the room. I would ask for a quorum call.

The Chair: It's a pure coincidence that you requested a quorum call at the very minute—indeed the very second—we completed our 100th hour of clause-by-clause consideration!

» (1728)

» (1733)

The Chairman: Mr. Bigras.

Mr. Bernard Bigras: Mr. Chairman, can you tell me how much time I have left?

The Chair: You have used two minutes and 20 seconds.

Mr. Bernard Bigras: So, I still have about eight minutes left.

So, once again, I'm very pleased to have this chance to speak to my sub-amendment which, as I was saying, is not intended to impose management practices on the First Nations. Since clause 32 clearly states that the Governor in Council can make regulations—unilaterally, in fact, since the Committee rejected our proposals to have those codes developed in cooperation with the First Nations and referred to Committee—would it also be possible for those regulations to be based on the values, traditions and approached favoured by the First Nations and band councils?

Can there be anything more fundamental than democratic practices? What are we to think of this determination to tell the First Nations how to structure their own government? When we start telling them unilaterally—because that is the kind of power the Minister is giving himself—how they should call meetings and who will have access to the minutes, then in my opinion, that goes well beyond what we should expect to see.

This goes further. As I was saying, many parallels can be drawn with Bill C-20, where decisions are being made instead of the people, and the people are not allowed to freely decide on their future. So, we're dealing with a similar situation with the Bill we're considering today. And yet that is what the amendment moved by my NDP colleague, and to which I am moving a sub-amendment, will allow us to avoid.

What does the NDP amendment say? It says that if the federal government decides to develop codes of practice based on its values—because it's important to remember that the Governor in Council is not the First Nations—then it has to be up to the band councils and the First Nations to decide whether or not to accept those codes of practice or whether to reject them.

So, it seems to me that this amendment gives us some flexibility. We're not saying it is a bad thing that the federal government develop codes of practice with respect to the First Nations' management approach or method of structuring leadership election and government. That may be a good thing. Maybe the federal government did consider the First Nations' traditions and customs, but just to ensure that those codes do respect those customs and traditions, we are asking that they be approved by the First Nations, by means of an election.

There can be nothing more democratic than the fundamental right of peoples to decide, not only their own future, but the process for determining that future. And when we talk about practices and codes of practice, we're not talking about major issues, but rather about approaches and ways of doing things.

If we don't consider the fundamental values on which the First Nations rely, then that is an important break with democracy and the recognized right of peoples to set their own rules. That is inconsistent with traditions. We hear two different lines in the international arena. One says that Canada is democratic, and the other says that, in practice, we impose certain ways of doing things on people, because this government doesn't even respect its own parliamentarians, or its own Parliament. The government doesn't even dare refer these codes, and the regulations that define them in clauses 5, 6 and 7 of the Bill, to parliamentarians for scrutiny. It doesn't even respect parliamentarians, and thus is not interested in creating an obligation to have those codes reviewed here in Committee. The message we're getting today is that if it comes from Ottawa, it must be good.

» (1735)

When the codes of practice and approaches come from Ottawa, then they're good, but when it comes time to consult the First Nations, it doesn't work anymore. It's as though the people here in Ottawa had a monopoly on truth. But it's wrong to think that a government can use its powers to impose democracy on a people. That's taking the First Nations for fools, which they certainly aren't. That's taking the First Nations for people incapable of deciding on their own what's good for them. That's forcing the First Nations into a role of subservience, where they do the bidding of the federal government.

When I see the government and the Members opposite saying no to consultation, when I hear Members saying that the codes of practice will be developed by the Governor in Council via regulation, and when Members on the government side say they don't want this to be referred to a Standing Committee, I really have to wonder what's going on.

What seems clear to me is that Liberal Members of Parliament want to stay on the backbench. They say it's time for MPs to take their rightful place in Parliament—that's the official line we get—but when we try and provide for greater latitude or more powers for MPs in terms of scrutinizing regulations, and even making recommendations to the Governor in Council—that's what we were talking about today—then the answer is no. There is something here that just doesn't add up. You can't say you want more power and then say no to the opportunity to give Members of Parliament more power. I'm starting to think that some Members here are not behaving in a manner consistent with their principles.

Why we would not provide for a system whereby codes would be developed in cooperation with the First Nations and then referred to Committee, thereby forcing the government to respect the First Nations' customs?

» (1740)

[English]

The Chair: Merci, Monsieur Bigras.

We'll have a recorded vote on the subamendment to amendment NDP-50, page 201.

(Subamendment negatived: nays 8; yeas 3)

The Chair: On the amendment, Monsieur Paquette.

[Translation]

Mr. Pierre Paquette (Joliette, BQ): I want to come back to the amendment moved by the NDP; we had proposed a sub-amendment which was “based on their customs and traditions”, which has just been defeated.

I believe Bernard Bigras has clearly explained how the Bloc québécois sees things. First of all, it's important to consider that Canada is an extremely unusual country. It is a country made up of a lot of different nations. There are the First Nations; I think everyone would agree with that. Now, what rights do those First Nations enjoy? That is what the debate on Bill C-7 is really all about. And, of course, there is the Quebec nation which, unfortunately, is not recognized by federal government authorities whom we see as representing Canada. There are also the Acadians, who constitute a distinct nation. So, contrary to what many believe, Canada is not one nation; it is several nations which could have come to an agreement if there had been some recognition that they exist—which is the case for the First Nations, but not for Quebec, and to a lesser extent perhaps, the Acadian nation—and if the right of self-determination of these different nations had been respected.

So, the NDP amendment is intended to ensure that the First Nations can decide on their own how to govern themselves. In that sense, I'm sure you will understand that for a party like ours—and I know Bernard made reference to Bill C-20, the Clarity Bill—that has done battle with the federal government with respect to the way the federal government intends to behave if there is a referendum on Quebec sovereignty and its determination to interfere in a process that comes within the exclusive purview of the Quebec nation, in terms of its right to determine its collective future and, as he mentioned, the way it wants to carry out that process, this is certainly a very sensitive issue. So, the fact that the federal government has already demonstrated, by passing Bill C-20, that it doesn't care in the slightest about the right of self-determination of the Quebec people—which in my opinion, will not prevent the Quebec nation from continuing its march towards sovereignty, with highs and lows, as we all know—makes us extremely sensitive to the way in which anything relating to rights, and specifically the First Nations' right of self-determination and right of self-government, are handled in Bill C-7.

I believe that the purpose of the NDP amendment is simply to ensure that bands that decide to get organized and organize their democratic life as they see fit are able to do so, and if some of them decide to leave that job to the federal government, then they, too, should be able to do that, but based on the process set out in the NDP amendment. So, it is extremely important that the Committee pass this amendment so that we can start to correct a certain number of anomalies in Bill C-7.

If we are serious about self-government for the First Nations—and in that respect, I think the Government of Quebec has really been a pioneer, particularly with the “Peace of the Braves” agreement signed with the Cree, and the common approach, which is a negotiating framework currently being used by the Government of Quebec and certain Innu Nation bands—then we should be able to take our inspiration from the Quebec approach in reviewing Bill C-7 as a whole.

We have an opportunity here, with the amendments proposed in clause 32.1, to rectify the current situation by passing the NDP amendment. So, Mr. Chairman, I believe it would be completely consistent with the vision presented both in Canada and elsewhere to go along with this approach, which focuses on respect for self-government and for the right of self-determination of First Nations, just as I hope the Quebec nation's right of self-determination will also be respected. I hope you will see fit to pass this amendment.

» (1745)

[English]

The Chair: Merci, Monsieur Paquette.

Mr. Comartin, closing remarks.

Mr. Joe Comartin: Thank you, Mr. Chair.

I hadn't quite finished the analysis I was trying to make in my opening when I ran out of time because of some of the other points I had made. I just want to finish up in terms of the analysis. And I'm out of Irish stories now, but I'll come back at some point in the future to those, I'm sure.

Mr. Chair, the reality is, when you look at this and ask what it is we are really trying to do, what we're saying is... If you're this government over here and you're going to pass regulations you want to then impose on first nations, what are you really trying to do? What first nations are saying is if we're insisting on being that autocratic about it, at the very least we have to give them the right to be able to say they won't accept them because they don't fit into their traditions and methodology of governance that has evolved over the hundreds, if not thousands, of years they've been on this continent.

When I look at it, it keeps coming back; it just jumps out at me. This is a government saying we don't trust first nations to be able to do simple things, like determining who can vote. We don't trust them to determine how often they have meetings. Paragraph 6(1)(a) of the bill would require them to have meetings with a certain frequency. I think of all the non-profit corporations I've incorporated, and I ran through very similar bylaws. When somebody took a look at this, the first nations were treated with such utter contempt that it was determined they couldn't even decide these things for themselves, that we don't trust them to do that.

We did this for corporations, Mr. Chair, because historically in the English system we created them. We said we were going to be able to regulate them because they were are our creations, and regulate them according to standards that we, as the governing body, set.

That's not the situation we're dealing with with the first nations. It would make sense to say to a corporation, yes, you have to have in your bylaws, which you're required to pass as you first set the corporation up, a paragraph that says you have to have a meeting at least once a year; you have to set up a code as to how the members will conduct themselves within the meeting--do you use Robert's Rules of Order?

I don't have any particular problem with that. It seems to me, Mr. Chair, that this is a good method for dealing with how corporations should function, either business or non-profit, but it is absolutely not a model the first nations are going to accept or implement.

This is not going to work as long as we come at it from the vantage point that somehow we have this group over here, much like a corporation, that has to be dealt with, as opposed to doing it properly. We need to recognize, as we do so often when we're dealing with governments at the international level, that we have to deal with first nations as equals, and recognize that they are going to have processes and laws that are different from ours; that they have the right, absolutely the right, to establish their own legal system and their own method of governance.

As long as we see them as this subservient creation of our governmental process, as opposed to seeing them as partners, we're not going to move ahead. So the legislation will clearly not be something they will accept. I think they sent us a very clear message of their opposition when they came forward to testify, and this section is just so typical of what's wrong with this legislation.

» (1750)

In effect, what they're saying to us in this amendment, when you look at it, would be, “Fine, you want to do that, go ahead; but we're not going to be bound by it unless we accept it. The ultimate decision is going to be ours. We're going to determine if we have one meeting or ten meetings a year, a meeting a week or one every other week. We're going to determine that. We're not going to be in a position where the dominant authority over here, demonstrating what is clearly a paternalistic approach that has underpinned the Indian Act since it was first promulgated--and continues in this legislation, sometimes subtly, most of the time just very overtly--says they know best.”

This bill says that, to the nth degree, to the minutiae, we're going to tell you how you run your government and how your society is going to be organized. We don't care about your customs, your traditions. We don't care how your culture would have approached how governance is supposed to work. We are simply going to bull our way ahead here. We're the dominant power. We have the authority. We have the money. And we're going to impose this upon you.

It is bad enough, Mr. Chair, that the government of the day has seen it proper to take this kind of an approach. But if it's going to, just in terms of basic democracy, why can't it respond when first nations say that the code is fine, do it if you want to, but then you must let us choose whether we're going to follow it? This model legislation you have proposed, we should perhaps consider; but ultimately it will be our decision whether we follow it or not, not yours.

As long as we are not prepared to respond in that kind of democratic fashion to a message that has just been overwhelmingly clear from so many of the first nations, we're stuck with a piece of legislation, if this eventually goes through, that is going to be widely ignored by the first nations community right across this country, from small first nations to the very largest. They're just not going to be prepared to live with this legislation.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

(Amendment negatived: nays 8; yeas 2)

(On clause 33--Other regulations)

The Chair: We are now on clause 33 and amendment G-12. We'll hear from Mr. Hubbard, then we'll suspend a few minutes for food.

Mr. Hubbard.

» (1755)

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

This is a quite an extensive amendment. Under it we're asking that clause 33 on page 19 be amended by replacing lines 6 to 10 under “Other regulations” with the following:

The Governor in Council may make regulations

(a) specifying, for the purposes of subsection 10(3),

(i) powers that may be exercised in carrying out an assessment of the band's financial position, including the power to require that access be given to bank accounts, documents and computer files,

(ii) what constitutes the deterioration of a band's financial health that compromises the delivery of essential programs and services, and

(iii) remedial measures that may be required to be taken, including the imposition of a manager selected by the Minister to manage the financial affairs of the band, and the time limits within which those measures must be taken;

and

(b) providing that the powers conferred by subsection 10(3) do not affect any right exercisable under a funding agreement with a band;

(d) specifying the circumstances under which the council of a band may withhold amounts under section 13, the maximum amounts that may be withheld and the procedure to be followed in doing so;

(e) respecting the disposal, burning or processing of waste or other noxious substances on reserve lands, including regulations

(i) authorizing the Minister to issue a permit to do so, subject to any conditions that may be specified in the permit,

(ii) defining “waste” and “noxious substance”, and

(iii) providing that a contravention of the regulations constitutes an offence punishable on summary conviction by a fine not exceeding $300,000 or a term of imprisonment not exceeding six months, or by both; and

(f) establishing procedures for the submission of codes and band laws to, and for the operation of, the national registry referred to in subsection 30(2).

With that, Mr. Chair, with your permission, we'd like to call upon our experts in terms of this amendment. I'm not sure if Madame Thériault or Mr. Johnson would like to make some comments.

This is one of the most difficult situations that bands sometimes encounter, when they have difficulty with their finances. The minister, of course, is always reluctant to intercede, whether it be by remedial action or by third-party management. But I'm sure all of us recognize the significance of it.

Mr. Johnson may want to comment on it.

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): Yes, the bulk of these amendments in (a) through (d) deal with that issue. The committee, Mr. Chairman, may want to remember that the general character and the scope of the minister's ability to cause an assessment of the financial situation of a band and take remedial measures were referenced in section 10(3). Three clear categories as to when that could occur were defined: where there is a concern with respect to a situation that is compromising the delivery of essential programs and services; where financial statements have not been made available from the first nation; or where there's a denial of opinion or an adverse opinion on those statements by the band's auditor. Only in those three situations can the minister intervene.

Then, in the regulatory section--and we have seen a number of amendments thus far to refine that--this does that with respect to subclause 10(3) by having an ability in regulation to more precisely set out when those situations may be seen to occur, defining the delivery of essential programs and services, etc., as in subparagraph 33(a)(ii) as proposed.

This would allow us, then, in the next stage of the work on Bill C-7, to consult with first nations on those issues and on those characteristics and have a more precisely defined set of procedures in place under the regulations that would guide those interventions. This is largely the intent of that.

With respect to paragraphs 33(e) and (f), my colleague can comment on those quickly. Those are with respect to a different character of issue.

¼ (1800)

Ms. Geneviève Thériault (Senior Counsel, Lands, Trust and Corporate Services, Department of Indian Affairs and Northern Development): In respect of paragraph (e), there are currently waste disposal regulations under the Indian Act. They are made under section 73 of the Indian Act. That section 73 is going to be deleted through one of the further clauses of this bill. By retaining the waste disposal regulation-making power, it allows the regulations to carry on.

There are other sections in the legislation that allow a first nation to make a law in respect of waste disposal but which would displace those regulations while the law is in place. If the community ever repealed its law, the regulations would kick in again. So there would always be a waste disposal system in place in the communities.

The only thing that paragraph (e) allows is the regulation-making powers so we can continue the regulation.

Mr. Charles Hubbard: Mr. Chair, I think we fairly explained that clause, and I know you've planned a break for lunch, but in the discourse the NDP member made, he made great effort to talk about this particular bill as being paternalistic. I know he's a lawyer and has probably studied the history of laws and the various codes going back to some of our earliest civilizations, but I challenge him to put before this committee the names of any laws that are not paternalistic. Whether you talk about the British or the English common law, all laws, in my opinion, are paternalistic. Maybe in his reply to this particular amendment, he can inform our committee about laws that he knows that I don't know that were not paternalistic.

The Chair: Thank you, Mr. Hubbard.

I don't think lunch is ready, so we will go to Mr. Paquette.

Mr. Paquette.

[Translation]

Mr. Pierre Paquette: Thank you, Mr. Chairman. I would like to come back to the amendment. You have talked about a number of things. I would like to know specifically what difference there is between the amendment moved by the government and clause 33, as currently drafted. It refers to two specific clauses : clause 16 and clause 17. Many of the items listed in clause 16, but not 17, can be seen here in the amendment. There are items from clause 16 that seem to be part of the powers given the Minister. I would like to be given a very clear explanation as to the difference between clause 33 and the government amendment.

[English]

Mr. Warren Johnson: To clarify the question, in relation to clause 16, you're asking the difference between the existing clause 33 and the new?

[Translation]

Mr. Pierre Paquette: Yes. My impression is that some of the items in clause 16 are also addressed in this amendment. For example, clause 16 talks about zoning, unsightly property and waste management. In clause 33, as it was originally worded, sections 16 and 17 were exempted, whereas we find certain items from those clauses in the amendment. For example, sub-clause 33(e) of the amendment reads as follows :

33. The Governor in Council may make regulations :

(e) respecting the disposal, burning or possessing of waste or other nauseous substances on reserve lands, including regulations…

In the Bill, sub-paragraph 16(1)(e) reads as follows :

The council of a band may make laws for local purposes, applicable on the band's reserve, in relation to :

(e) local works, public utilities and waste management;

In one case, clause 16 is exempted, but in the other, it's not even referred to. And yet certain items referred to in clause 16 can be found in the amendment. I'm having trouble figuring out the precise implications of the amendment.

¼ (1805)

[English]

Mr. Warren Johnson: Oui, vous avez raison.

Mr. Chairman, I think it's specifically with respect to paragraph 33(e) in the proposed amendment where one finds that overlap. The issue here is that these regulations... This specific paragraph 33(e) being proposed is to ensure there is an ability for waste disposal regulations to be in place only if the first nation hasn't passed its own regulation. You will find that in a number of sections and amendments elsewhere, I think, some of which have already been before the committee.

Their law-making authorities, especially in clauses 16 and 17, have been expanded and modernized. Consistent with the purpose of the act—and you'll see it in later parts of the act and later motions as well—they will largely relieve the requirement for the minister to have to intervene to make regulations in these areas. But in some important situations—for example, in this area of waste, which can be of serious consequences from time to time—the issue is that we do have regulations in place now, and that authority needs to be maintained until the first nation passes its own law. Once the first nation passes its own law, those regulations would no longer apply. That is made clear in various sections of the act later on. It may not be clear precisely at this point.

My colleague may be able to find the other references, but there are a series of regulation-making authorities that now exist within the Indian Act, which are at the minister's discretion and which would no longer be necessary whenever a first nation passes its own laws under clauses 16 and 17 with the new authorities that the first nation has there. That's part of the enabling feature of the legislation. But in certain cases, such as on the waste disposal, there was a concern that we not leave a vacuum by vacating the regulations before the first nations had passed their own laws.

[Translation]

Mr. Pierre Paquette: Your amendment also refers to powers that may be exercised in relation to bank accounts, depending on the band's financial situation. I would like to know whether this is consistent with part 9 of Bill C-28, the Budget Implementation Bill, which provides for the GST to be shared with the First Nations.

Supposing a province, territory, municipality, First Nation or First Nation band were to reach an agreement with the federal government to share GST. That now happens with provincial governments, and it can even happen with the federal government. Some may believe the federal government is not managing the public finances properly. Is this amendment to clause 33 compatible with part 9 of Bill C-28?

[English]

Mr. Warren Johnson: There is--

[Translation]

Mr. Pierre Paquette: Mr. Chairman, if you don't mind, I would ask that we wait until there is a quorum.

The Chair: We will wait until there is quorum.

¼ (1809)

¼ 1810)

The Chairman: Mr. Paquette, you have the floor.

Mr. Pierre Paquette: Mr. Chairman, I will put my question again. What would happen if these kinds of problems arose when a GST sharing agreement between a First Nation, a municipality, a territory or a province and the federal government was in place?

[English]

Mr. Warren Johnson: There is no direct link, as I understand it, between the two, except, I would presume, subject to review of the other legislation referenced, Mr. Chairman, that those receipts to the band, the revenues received by first nations as a result of those tax-sharing agreements, would end up becoming part of the band funds, and as band funds would be managed under the financial provisions of Bill C-7 generally.

The interventions implied in the regulation authorities in paragraphs 33(a), (b), (c), and (d), which the member has referred to, refer specifically to definitions in relation to subclause 10(3). I would refer the member in the committee to subclause 10(3). It's only when the situations in subclause 10(3) arise that the minister would have any authority to intervene. As set out in subclause 10(3), there are three precise conditions where that can occur, as you'll note: where there's an apparent deterioration in the band's financial health that compromises the delivery of essential programs and services; where there's been a failure to make financial statements publicly available; or where there's a denial of opinion or an adverse opinion by the band's auditor on the band's financial statements.

Only in those three precise situations could the minister carry out an assessment and, based on the results of the assessment, potentially require remedial measures. These are the regulations that would define it more precisely. So subparagraph 33(a)(i) refers to what powers you may require or need in terms of access to records, etc., to carry out that assessment. The regulations will define that more clearly. Subparagraph 33(a)(ii) provides a more precise definition of what would constitute a deterioration of a band's financial position compromising the delivery of essential programs and services.

It's a specific regulation-making authority for each of those three areas to allow for a more precise definition and regulation of what those conditions would be. As was indicated earlier, the government--the minister--has committed to a full round of consultations, once the final characteristics of Bill C-7 are known, on all of the regulation-making authorities under Bill C-7. We will be developing those regulations and those definitions in consultations with first nations before they go forward. That's the relationship of paragraphs 33(a), (b), (c), and (d).

Well, I should, I'm sorry, make an exception here. That's 33(a), (b), and (c). There's also an authority under clause 13 that refers to paragraph 33(d). If you look at clause 13, first nations themselves, the council of a band, would have authority to withhold funds from band members for moneys due to the band. This has been a problem raised by a number of first nations in the consultations, for example, in putting housing development programs in place. Someone is receiving a variety of payments from the band but isn't paying their rent or mortgage on their house, and the band has no recourse other than to go to court and look for a garnishee.

The Chair: Thank you, Mr. Johnson.

Mr. Hubbard, closing remarks.

Mr. Charles Hubbard: Thank you, Mr. Chair. I see lunch is nearly ready, and with that I'd ask for the vote.

The Chair: A recorded vote on G-12, page 202.

(Amendment agreed to: yeas 7; nays 2 )

The Chair: Now a recorded vote on clause 33.

Just a moment; Mr. Comartin would like to speak on it.

Mr. Joe Comartin: Mr. Chair, like Mr. Paquette, I was somewhat unclear as to why this change occurred. But what is clear to me is that this is reasonably—

The Chair: Mr. Comartin, in all fairness, I was hoping we would vote. You asked to speak, and that's fine. Would you agree that we suspend to eat and then you'll have the full time at one time? Is that okay?

Mr. Joe Comartin: That's fine.

The Chair: Thank you, Mr. Comartin.

We'll suspend for about twenty minutes for dinner.

Thank you.

¼ (1816)

¼ (1835)

The Chair: Mr. Comartin, on clause 33.

Mr. Joe Comartin: Thank you, Mr. Chair.

I must admit I'm starting this particular part of the meeting with some trepidation. Anticipating the sense of humour that's at the other side of the table, I'm sure we're going to have some comments about my discourse being disruptive to the enjoyment of their meal and causing them indigestion.

I'm getting these lines out, Mr. Chair, so I don't have to listen to them from the other side of the table.

The Chair: Mr. Comartin, being second to Mr. Martin is no insult.

Mr. Joe Comartin: Okay.

Mr. Chair, to go back seriously to the issue at hand, the clause at hand, like Mr. Paquette, I was somewhat unclear as to where the government was going with this. I thank our sources that they were able to explain it.

However, it certainly raises the question that this is a reasonably significant amendment that the first nations have not had an opportunity to consider at all in the course of the testimony they gave as witnesses or in the briefs they presented. That certainly makes it problematic, along with the general tenor of the bill in terms of excluding them so often, or disregarding, perhaps more accurately, their position on so many other provisions of the bill. In this case, they didn't even have the opportunity to do that.

I'm not quite sure why this amendment came in as late as it did, given that it seems to be consistent with other parts of the bill but is certainly much more specific than we had in the original clause 33. That was problematic, because we had a good deal of concern expressed about clause 33 from the first nations in terms of clauses 16 and 17.

As I believe you have heard to some degree, now that's it's mostly applicable to clause 10, and to a lesser degree to clause 13, there was a great deal of concern expressed by the first nations with regard to clause 10 and some very significant demands. I'm looking at some of the notes, a summary of the testimony where the demands are being made with regard to amending clause 10 around the assessments, the remedial measures that could be taken. Then you see that embodied here, so that the Governor in Council will be able to impose it by way of regulation.

It's interesting, Mr. Chair, in terms of what appears now, I think, to the most objective observers, as an almost clear obsession this government has with accountability on the part of first nations when you think of some of the transgressions we've been faced with by this government in terms of financial mismanagement, feeling that they have, shall I say, the moral authority to impose standards on first nations, who should be treated with a great deal more respect than this bill allows for and this amendment, in particular, addresses.

It's back to the comment from the parliamentary secretary about paternalism. It's rather obvious that he and I have a significantly different perspective on what paternalism is. I will say to him, in response to the request he made, that I think that's a problem with this amendment, and it's also the problem embodied in parts of the amendment and a problem with the legislation, because paternalism isn't about the end result. That's not really the important part. The important part—because the end result is almost inevitable if you take a paternalistic approach—is how you start into the process, how you treat people, how you relate to them. Do you deal with them with respect, as this circumstance so much demands, in this case, on a nation-to-nation basis?

I was going to say, through you, Mr. Chair, that perhaps if he recalls the sitcom Father Knows Best in the 1950s and 1960s, that's what paternalism is. If you think about the relationship between the married couple in that case, as opposed to what we would see as a more modern relationship between two independent, free-thinking, consenting adults, that's what we're looking for here.

If you want to know what paternalism is, look at this bill. If you want to know what it's not, you deal with the first nations on a partnership basis and treat them as equals. Don't dictate to them. Don't tell them that this is how their society is going to be organized.

I have to say, Mr. Chair, through you to the parliamentary secretary, that my perception of this legislation is that very little of it is paternalistic if done properly. If you look historically at any democratic government, they do not approach it from a paternalistic standpoint. They do say that they are representing their constituents and are going to treat them with respect.

We recognize that there is a social contract, if you want to use that term. We're going to pass legislation that our society requires, but we're going to do it out of respect for our constituents. We're going to do it on a basis of recognizing their fundamental rights. We're going to do it in their best interest, having taken into account from them what they see as their best interest.

If you go through the list that I went through and apply it to this legislation, you'll see that this bill fails on every single count, because there is no respect in this bill for the first nations. You're not taking into account what is in their best interest. You're not treating them as equal. There is no equity in this legislation.

I want to throw back to the parliamentary secretary this whole idea of the attitude we have from this government and specifically from this minister. When he was before the Senate committee on Bill C-6, he said that he didn't understand sovereignty and he didn't understand colonialism. When you hear that from the minister who is supposed to have some sensitivity to the needs of his constituents—in this case, the first nations—you can well understand how we end up with this type of legislation.

This isn't typical legislation coming from a democratic government. This is very much paternalism and paternalistic legislation. It says that we, the European occupying power, have dominated for over 150 years; we're going to change the existing legislation, but we're going to use exactly the same kinds of principles that governed our forefathers in the last century, now two centuries ago.

The Chair: Thank you, Mr. Comartin.

Monsieur Paquette.

[Translation]

Mr. Pierre Paquette: Mr. Chairman, I agree with the previous speaker. I also can't help but react to what the Parliamentary Secretary said. I may not have quite the same habits as some of you; I know that you have been sitting for quite a few hours. But unfortunately, I have no choice but to conclude that clause 33, as amended, and sub-clause 10(3) as drafted in the Bill, and which we are referring to, as well as the Bill as a whole, denote a clearly paternalistic attitude. The First Nations will have a certain amount of latitude, until the federal government, acting supposedly in their interests, steps in if it feels that things are not moving exactly according to its interests. That poses an extremely significant accountability problem.

In my view, First Nations' representatives have to be accountable, first and foremost, to the First Nations themselves, rather than to the federal government. If you look at the proposed amendment to clause 33, it reads as follows :

33. The Governor in Council may make regulations:

We know that the scope of the regulations can be very broad.

Then in sub-clause (3), it says:

(a) specifying, for the purposes of sub-section 10(3),

And if you go back and read sub-clause 10(3), you'll see that it presents a whole series of parameters that are negatively expressed. There is no attempt to adopt an open approach that would allow the First Nations to take control of their situation and democratically choose the type of development that they prefer. Rather than that, they're already suspected of having deviated from good governance.

It is worth drawing a parallel here, even though it is not a perfectly appropriate one. This is the same sort of attitude taken to airline passengers. When you take a bus, taxi or train, you are a client. You are treated as a client, and the staff are there to serve you. Now, however, passengers on an airline are seen first and foremost as potential terrorists. We now have a Public Safety Act. And yet some seem surprised that people are deserting our airports and airlines. Now air travellers are treated, not as clients, but as potential terrorists.

I'm drawing a parallel here. It is clear that the government doesn't feel it's dealing with members of communities that are responsible for themselves. It obviously believes that these people could at any point deviate from the proper course. So, it is giving itself discretionary powers that will allow it to impose a procedure determined by the Governor in Council.

With the amendment, sub-clause 33(a) would read as follows :

(a) specifying, for the purposes of sub-section 10(3),

As for sub-section 10(3), it talks about an assessment of a band's financial position, particularly in sub-paragraph 10(3)(a) and 10(3)(b):

(a) a deterioration of the band's financial health that compromises the delivery of essential programs and services;

(b) the failure to make financial statements publicly available within the period specified in sub-section 9(3);

They are already providing for this kind of thing. That spirit is present throughout Bill C-7. The First Nations not only are incapable of taking their affairs into their own hands, but in addition to that, they are not to be accountable first and foremost to their own communities. The federal government—and particularly the Minister—are given a great deal of power through this amendment to clause 33. In my opinion, that is completely inconsistent with such principles as accountability and self-government. This is nothing but paternalism, in my view.

Clause 33 may well be only the tip of the iceberg. With the federal government—and particularly a Liberal government—that paternalistic attitude towards the First Nations and the provinces is always in evidence. You can see it again in sub-clause 33(c) of the amendment, which says:

Funds are payable but those funds will be withheld until remedial measures have been taken. If funds are payable, then they're payable. That seems fairly obvious to me, unless, of course, the federal government and the Governor in Council know better than First Nations communities and citizens what they need. Once again, that paternalism comes through.

I have to admit there is something I don't understand. That is actually what is behind my question on clause 16. Why go to the extreme of specifying—I call this micro-management—that the Minister can get involved in such matters as the disposal, burning or processing of waste, that he can issue a permit or even define such things as “waste” and “noxious substances”? It seems to me that this is an extremely narrow vision of the relationship between the federal government and the First Nations.

On top of that, the government takes a negative approach. That is actually one of the criticisms I often used to make with respect to collective agreements; this looks too much like a collective agreement. Rather than setting out a certain number of principles on which to build a sound working relationship, here the government is trying to make provision for everything that could possibly happen, on both the employer and union sides. I believe my colleague is quite familiar with the world of labour. Basically, in not only collective agreements but Bill C-7, what we have is a kind of management right. Everything that isn't written down in black and white automatically falls within the federal government's management rights.

For all these reasons, because this proposal is inconsistent with the principle of self-government, because it gives the Minister extraordinary powers, because this is a paternalistic provision that is contrary to the principle of accountability that should be part and parcel of any form of government the First Nations wish to develop for themselves, I believe this clause, as amended, is no more acceptable than the previous clause.

Furthermore, Mr. Johnson unfortunately did not convince me that Bill C-7 as a whole sets out clear enough parameters that these kinds of interventions would be made only under special circumstances. My impression, having read both sub-clause 10(3) and clause 33 as amended, is that the general spirit of the First Nations Governance Act needs to be reviewed. That why I urge Committee members to vote against this clause, as amended.

[English]

The Chair: Merci, Monsieur Paquette.

Mr. Bryden.

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

Shakespeare said, firstly, don't trust lawyers. He actually used stronger language than that—I hesitate to do that—but his message is clear. He was of the view—and it was reflected in his plays—that lawyers are not to be trusted because they can twist language and the law in any direction to suit the selfish purposes of their clients.

I listened to the comments of the member for Windsor—St. Clair, and I realized I now know where Shakespeare was coming from. Because the member for Windsor—St. Clair, who is a lawyer, made arguments that, when you examine the amendment before us, simply are insupportable by somebody who's speaking from the legal profession. I point out to you that one of the amendments simply says if there is a potential problem of financial difficulty, the higher level of government reserves the right—and this is what's in the amendment—to examine the financial records of the band community, and if it finds there is a problem, it can bring in a manager to attempt to remedy the problem.

I point out to you, Mr. Chair, that is precisely the situation that exists here in Ontario with respect to the provincial government and the school boards of Ottawa—Carleton, Toronto, and my own Hamilton—Wentworth, where the provincial government--the superior government, the higher government--was of the view, having examined the financial records of these three school boards—which are elected in the same way as the band governments we're talking about in Bill C-7—that these school boards were not managing properly. They put in a manager, and they've been taken over.

Now, this is normal. We know this is normal. There has to be some sort of accountability to a higher level of government when that higher level of government in the end is actually paying the way of the lower-level government. That, of course, is the case in Ontario with the school boards.

With regard to the other section of the act, which requires band self-governments to get permits if they're going to dispose of noxious substances, any lawyer would know this is the minimum requirement existing around the world. You have to have regimes whereby no one, whether it's a private property owner or any level of government or ownership up the line, has the opportunity to pollute the environment for their own particular gain. This is a world principle, Mr. Chairman. It is not something being imposed by a paternal government on the Indians who may be affected by this legislation—not at all. It's the minimum we would expect of any community.

I might add I did really take exception to the remarks of the member for Windsor—St. Clair when he talked about an occupying power, that this legislation is the imposition of an occupying power. This is the language of incitement. I remember this language in 1995 during the referendum crisis, when I sat in the House of Commons and heard the separatists hurl this type of language across the House of Commons. This is the type of thing that divides us.

I remind the member for Windsor—St. Clair that we are all Canadians here, every one of us is Canadian, and we have the interests of Canadians at heart. Those interests are expressed fundamentally in our Constitution, in our Charter of Rights and Freedoms.

As a lawyer, the member for Windsor—St. Clair in his earlier remarks suggested there was something unusual about requiring Indian self-government to have a provision whereby they must meet at least once a year. Well, I point out to you that in the Charter of Rights and Freedoms, it says this federal government, this federal Parliament, must meet at least once a year—in every legislature. So why, under the Charter of Rights and Freedoms, would we have something that applies to the federal Parliament in every other legislature and not have it for aboriginal self-government?

The member for Windsor--St. Clair knows that, unless he's a lawyer who's very deficient in his basic knowledge of the law, and I should hope that's not the case.

I do hope the member for Windsor--St. Clair, who has shown such a disregard for the law, including the Constitution, by avoiding mention of this provision of the Charter of Rights and Freedoms, stays in politics indefinitely because I really doubt his future as a lawyer.

The Chair: Thank you, Mr. Bryden.

We'll have a recorded vote on clause 33 as amended. Thank you.

(Clause 33 as amended agreed to: yeas 7; nays 2)

(On clause 34--Pending self-government agreements)

The Chair: Page 206 is not being moved. We are on page 207, amendment G-12.1.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, again looking at clause 34, the amendment is to replace line 11 on page 19 with the following:

Pending self-government agreements

34(1) The Governor in Council may, by order

—and adding after line 18 on page 19 the following:

Application of Indian Act

It states as follows, under (2):

(2) An order exempting a band under subsection (1) shall provide that the provisions of the Indian Act repealed or amended by this Act that are specified in the order continue to apply to the band during the period of exemption, as if those provisions had not been repealed or amended.

Mr. Chair, before we ask our people here to speak further on amendment G-12.1, we'd like to point out that from the very beginning, in terms of the bill, it is an interim bill that will be subject to the fact that our federal government is working with first nations to develop their own methods of self-government. With these interim measures, a good number of first nations already are involved in negotiations with our government to develop their own entire systems of self-government.

The amendments to clause 34 speak to that. We are talking about the eventual repeal of Bill C-7 and a different relationship with our first nations peoples.

Perhaps Mr. Johnson or Mr. Beynon will speak to that.

Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development): Yes. Perhaps I can explain the proposed amendment.

Under clause 34, as it stands in Bill C-7, there is a proposed exemption from the First Nations Governance Act and its regulations for a two-year period “in order to facilitate the negotiation or the ratification of a final agreement on self-government”. If the exemption is provided, then the provisions of the First Nations Governance Act wouldn't apply to that community. They wouldn't yet have reached self-government because it's pending the final agreement. It would suggest that the community is still operating under the terms of the Indian Act.

The difficulty it creates is that in other sections of this First Nations Governance Bill, we repeal those provisions of the Indian Act. You would exempt the community so that it can finish self-government and leave it without the leadership selection provisions, for example, under the Indian Act.

This amendment adds a subsection to make it clear that for any community that has the two-year exemption in order to move to self-government, during the interim time period they operate under the terms of the Indian Act. We do that even if those provisions have been repealed. It's only a transitional measure to make it even more clear in terms of its operation.

The Chair: Mr. Hubbard.

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

I think we're quite clear on that. We'll turn it over to other members now.

The Chair: Thank you, Mr. Hubbard.

Monsieur Paquette.

[Translation]

Mr. Pierre Paquette: I'd like to ask a question. Clause 34 refers to a period of two years. Why was a two-year period chosen, rather one year, three years or six months?

[English]

Mr. Warren Johnson: This talks about a period beginning on the coming into force of clause 4. Throughout the act there is a two-year period when the regulations are available to first nations, when they are deciding how and where they would like to be in developing their own codes, as opposed to using the regulations that can help to inform them. They can replace them in whole or in part for all of clauses 5, 6, and 7, for the election procedures, the financial procedures, and the operations of governments. They can replace them all.

There's a two-year period after the regulations are available when that section will come into force—they can do it anytime after as well—during which the Indian Act continues to apply for those processes. The regulations are available. First nations can look at them and decide whether they want to develop their own codes in any or all of those areas. At the end of the two-year period, the regulations only come into force if they haven't developed their own codes.

The same two-year period is what is applied here. During the two-year period, first nations, generally having participated in development of the regulations, now have the final regulations in front of them and are deciding, with their community members, where and how they want to develop their own codes rather than the regulations.

In that same period, this says that any first nation that is in self-government negotiations, where they may be getting close to a final agreement and therefore don't want to go through the transition period from the Indian Act to either the regulations or the codes, could be exempt from the whole application of this act. They're so close as to make it a not very useful thing for them to have to go through, because they're really close to their self government. They can get a specific exemption from the act for that period.

As Mr. Beynon pointed out, the amendment here is required to make sure there's not a legal vacuum. In theory, the intent was that they would remain in their current situation during that period, which would be the Indian Act.

[Translation]

Mr. Pierre Paquette: Thank you for that clarification.

But, Mr. Chairman, the comments made by the previous speaker clearly show that we're up against a real problem here in terms of some people's understanding. It is quite clear that for some MPs, and particularly Liberal members, Canada is made up only of provinces, and the supreme authority is the federal government, which is in charge of everything. Basically, as far as the federal government is concerned—and this is really the conception that comes through in the social union agreement—the provinces are just large municipalities. I once made that comment at a meeting held in my riding. Because there were a number of mayors present, I changed the terminology a bit; I said the provinces were like large hospitals.

And I really have the feeling that the government is taking exactly that approach in Bill C-7. I guess they really don't understand that there is a certain malaise in Canada, that Canada is not really well understood, because Canada is not just made up of provinces and territories. There are nations within this space we call Canada, which unfortunately are not recognized as such. In terms of the Quebec nation, we have just had more glaring proof of that. Sometimes they are recognized, but are given no rights whatsoever. That's what we see in Bill C-7.

In terms of higher powers, my view is that the government really doesn't understand what should be involved if we are talking about First Nations governance. I would remind you that we do have the Canadian Charter of Rights and Freedoms. It was incorporated in the 1982 Constitution; however, that Constitution was patriated unilaterally by the federal government without Quebec's agreement and, in our view, it has no legitimacy. It is legal—even the Justices of the Supreme Court said so—and it is that attitude, which is probably part of Mr. Trudeau's legacy and is very convincingly conveyed by Liberals here in Canada, which we see in Bill C-7. Rather than building based on recognition of a nation, we adhere to the definition of a higher power.

I would like to move a sub-amendment to this amendment which would involve adding a third paragraph. We already have sub-clauses 34(1) and 34(2). So, sub-clause 34(3) would read as follows:

(3) any decision or policy in this regard shall be subject to meaningful consultations with the First Nations.

The Chair: We have that in writing. Mr. Paquette, you have the floor on your sub-amendment.

Mr. Pierre Paquette: I can keep going then. So, as I was saying, I'm clearly a sovereignist and have been for many years, but I want you to know it's not in reaction to things like the conquest or the Battle of the Plains of Abraham. That has nothing to do with it.

However, just as we had an opportunity to do this a number of times, it seems to me we could have…

[English]

Mr. Charles Hubbard: On a point of order, are we now on the subamendment?

[Translation]

Mr. Pierre Paquette: Yes, yes.

[English]

Mr. Charles Hubbard: Okay. Thank you.

[Translation]

Mr. Pierre Paquette: I was just giving some background. It's important to remember things like that.

So, I was in the process of explaining that I did not become a sovereignist in reaction to old problems, but rather, because of my understanding. And my understanding is that we missed many opportunities to recognize that Canada is a political entity within which several nations co-exist and that we should be able to make the necessary accommodations for those nations to organize their future together, in solidarity. Just because a country is made up of several nations doesn't mean that each of those nations absolutely has to have its own separate political space. If every nation had its own country, there would be an awful lot of countries on this planet.

Having said that, however, when a nation such as Canada does not recognize other nations, then we have a problem. The Canadian crisis is a direct result of that. And Bill C-7 perpetuates that. That's the reason why I'm moving this sub-amendment—so that we can build a new future, in particular with the First Nations, but this also applies to Quebec and the Acadian nation, based on the idea that there are several nations here in Canada. Because we share the same territory we have to work in solidarity, based on mutual recognition, rather—as is currently the case with Bill C-7—than considering that there is a higher power—in essence, the emanation of the Canadian nation—that will decide for others what is best for them, whether we're talking about Quebec, the Acadians or the First Nations.

It's even more glaring in the case of the First Nations since, unlike Quebeckers, they have not at least had the benefit of a provincial government which could support them during the building process. But it's the same logic; the same approach.

So, in order to steer things back onto the right track, at least in a small way—because I believe this is a deviation from what Canada was intended to be originally—it seems to me my sub-amendment would be useful in allowing us to correct that approach, at least as far as the provisions of clause 34 and the spirit of Bill C-7 as a whole are concerned. And finally, this would give the First Nations a chance to really express their views rather than thinking, which is what Bill C-7 is saying, that the higher level of government—the federal government—would have a better idea of what to do than the democratic institutions of the First Nations or other nations here in Canada.

I urge Committee Members to pass this sub-amendment and to start correcting this unhealthy approach—I really do believe it to be unhealthy—that is a consistent feature of Bill C-7. We were talking about paternalism a while ago. I think that if we want to establish a relationship of equality with nations that are currently part of the political landscape in Canada, we now have a good opportunity to do that.

This is a very minor sub-amendment. I realize that everything that has been passed thus far is extremely problematic, but it seems to me that this would give the government party and the House of Commons as a whole an opportunity to show their good will. I therefore urge Committee members to vote in favour of this sub-amendment.

[English]

The Chair: Merci, monsieur Paquette.

Mr. Comartin.

Mr. Joe Comartin: I would support the subamendment, Mr. Chair.

It seems to me it's in direct line with what we've been attempting to do throughout this clause-by-clause process on this legislation—and I suppose even before that, in the run-up trying to convince this government to deal with the legislation in a manner that would be respectful of the fundamental rights of first nations. The subamendment's inclusion of a requirement that the government conduct meaningful consultation with the first nations is in complete accord with the whole thrust of the arguments you've heard from our party and the Bloc Québécois throughout this process.

It's interesting to see the apparent willingness of this government to entertain amendment motions when in fact there aren't any. I suppose I'm saying this as much for my colleague from the Bloc, since this is the first time he's been at the committee dealing with this bill, but the government's unwillingness to entertain any type of amendment clearly reflects that paternalism we've talked about and the lack of willingness to engage in a meaningful democratic process—especially as some of the amendments would have had such a minor impact in involving first nations in the legislative and regulatory process.

If I can put myself in their shoes for a moment, it's interesting, because we the government are saying that we know what's best, and we're doing this as a way of ensuring that you, the first nations, will govern... Accountability always comes up, but underlying it is the arrogance of saying, we want you to govern in a democratic process and a democratic manner, but we're going to make you do it without meaningful consultation or participation from yourselves, while ignoring the widespread opposition across the country from all first nations to the manner in which this bill has been brought forward, to the contents of the bill, and to the process that it's gone through as we've reviewed the bill clause by clause. If any signal could be sent that we are engaging in a meaningful process, these types of amendments would go through. Yet in fact, not one of them has gone through—not one.

Mr. Charles Hubbard: That' not right.

Mr. Joe Comartin: I'll stand corrected if it can be pointed out to me, Mr. Chair.

But certainly I'll stand on my position that overall there has not been any meaningful response from the government to recognize the fundamental right that first nations have to govern themselves and therefore to be treated with respect in a nation-to-nation coming together for resolving how the democratic process is going to work; how legislation is going to be passed; how regulations are going to be passed; how policy is going to be established; and, in effect, how governance is going to go ahead.

When you see this amendment, you say, yes, this is the kind of of wording that needs to be in this bill in all sorts of clauses. It should have been the starting point before the pen was put to paper, as opposed to the opposite in saying, we're going to tell you what to do and we're going to tell you how to do it in infinite detail, either in the bill or in regulation that's going to come. You're not going to have any meaningful participation. We know what's best. Just go ahead. Do what we tell you and life will be rosy.

That's not the way the democratic process works. I think we've gotten that message very clearly. Tomorrow, I hope the minister will get it even more clearly in his home riding with the large demonstration that is to take place there. I can't say I'm holding out a lot of hope, but that's what should be happening.

Again, I'm very much in support of the subamendment the Bloc has brought forward. I'll be quite happy to support it and vote in favour of it.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

[Translation]

Mr. Paquette, do you have any closing comments on your sub-amendment?

Mr. Pierre Paquette: Yes, I believe that was mentioned. In my opinion, passing this sub-amendment, that only talks about consultation, would signal a shift as regards Bill C-7.

So, once again, I urge all Members of Parliament, including Liberal Members, to put things in perspective. As Mr. Comartin was saying, there will be a major demonstration tomorrow by First Nations people in the Minister's riding. It seems to me that when that happens, the Minister will have to admit that the facts are there and that you can't use the pretext of wanting to amend the Indian Act to impose a Bill on the First Nations that they don't want, thinking that you're doing it for their own good or for the common good.

So there will be a demonstration tomorrow. It seems to me that were the Committee to pass this sub-amendment, the Minister would have some good news to announce to these people tomorrow. He could tell them that the government is making adjustments, that they have been heard, and that they will be consulted about the decisions and policy directions to be taken with respect to clause 34. So, I urge all good Liberal members to vote in favour of this sub-amendment.

The Chair: Thank you, Mr. Paquette.

[English]

(Subamendment negatived: nays 7; yeas 2)

The Chair: Mr. Comartin on the amendment.

Mr. Joe Comartin: Thank you, Mr. Chair.

I have a question for the officials. I'm having some difficulty as to whether the amendment is actually necessary. Of course, it wasn't included in the first round or the first draft of the bill. If it weren't passed, if it was abandoned or defeated, what would the effect be? What would we be faced with?

Mr. Andrew Beynon: Perhaps I can answer that by way of an example. Again, this is a provision that exempts bands for a certain time period pending the arrival of their self-government from the operation of the First Nations Governance Act. You might say to yourself, all right, then that means they fall back to the Indian Act provisions.

I'll give you an example. On page 23 of Bill C-7, clause 52 is just one example of a provision that deals with repeal of some of the provisions of the Indian Act.

Mr. Joe Comartin: Which one is that?

Mr. Andrew Beynon: It's clause 52 in the middle of page 23 of Bill C-7 itself.

Mr. Joe Comartin: Yes, go ahead.

Mr. Andrew Beynon: You see clause 52 saying “The heading before section 74 and sections 74 to 80 of the Act”—that's the Indian Act—“are repealed.”

That provision is there because section 74, for example, deals with the Indian Act election provisions. That's repealed because under first nations governance we have leadership selection dealt with in a different way, the point being that for a band that has an exemption from the First Nations Governance Act, they wouldn't fall back to the Indian Act because the Indian Act provisions would be repealed.

So all this clause is trying to do is to make it clear that for anybody who has an exemption, they don't fall back to nothing. As Mr. Johnson said earlier, they don't fall into a legal vacuum. They fall back to the Indian Act provisions that are repealed or amended by this act. Those continue to apply to the band as if the provisions had not been repealed or amended, as if clause 52 hadn't operated. They go back to the Indian Act's statutory election provisions, for example.

Mr. Joe Comartin: Let me be clear that I'm understanding you. Clause 52 is going to repeal those sections. Subclause 34(2), even though repealed, will, in effect, bring them back to life.

Mr. Andrew Beynon: Only for that band and only for the time period pending ratification of the final agreement on self-government. It doesn't bring them back to life for any other band.

Mr. Joe Comartin: So this would be done band by band.

Mr. Andrew Beynon: Yes, it's part of the order itself. In the proposed language of subclause 34(2) you'll see there it says “An order exempting a band under subsection (1) shall provide”—in other words, the very specific order for a particular band. That very same order would provide for the continuation of these repeal provisions. Again, that's why I say it's only about the band that is making the jump to self-government, and as Mr. Johnson said earlier, it provides the bridge so they don't fall into a legal vacuum.

Mr. Joe Comartin: Perhaps I didn't pay close enough attention to Mr. Johnson when he was answering Mr. Paquette's questions. But if they fell into that vacuum, if this wasn't put through, there wouldn't be any legislation applicable to them at all. They'd have to do it on their own. What a novel thought.

Thank you.

Mr. Chair, again the difficulty I have with this is that the decision in this regard is going to be made in every case by, in effect, the cabinet.

Might I ask one more question, Mr. Beynon? I don't think I've seen this. Are there other provisions where the cabinet is going to assign the call on this to the minister?

Mr. Andrew Beynon: No, I don't believe there is anything that pushes this to a ministerial decision. The statutory provision would say it's the Governor in Council that may make the order.

Mr. Joe Comartin: Isn't that rather cumbersome? There could be a large number of these.

Mr. Andrew Beynon: Perhaps. But I can only say that the statute clearly makes it a requirement that it be done by Governor in Council, so it's clear that the mechanism applies in that manner.

Mr. Joe Comartin: And not by the minister.

Mr. Andrew Beynon: And not by the minister, not by himself.

Mr. Joe Comartin: Mr. Chair, perhaps I can continue then. The difficulty I would have with this is it's going to be certainly cumbersome if there are a large number. We all know how government works. If on each occasion that this exemption has to be dealt with it has to go to the cabinet, either granted or denied, one can see some fairly lengthy delays.

I suppose the other concern I have to express with regard to this, as with so much of the rest of the bill, is that it doesn't involve any decision-making or any requirement to consult--if I read it correctly--with the band that's going to be affected, whether the exemption is granted or not, what legislation they will be functioning under for that hiatus period. It takes us back to the subamendment that just failed. It would have been very useful to have that type of meaningful consultation involved.

Mr. Chair, how much more time do I have?

The Chair: You're at seven minutes--six minutes, 49 seconds.

Mr. Joe Comartin: That's how much I've used.

The Chair: You've used.

Mr. Joe Comartin: So one can't help but think that would have been a better approach.

Again, I note that this is late coming to the committee, with no opportunity on the part of the witnesses who either testified or submitted briefs to deal with this. I am not being critical of the officials, but clearly it was something that it seems to me must have been caught late in the day. I'm just saying that in terms of getting a response... that whole issue of getting the involvement of the first nations, either collectively or as individual nations, to respond to this in written briefs. We've not had the opportunity to do that.

I would propose, then, a subamendment to subclause 34(2), which would read as follows: that G-12.1 be amended by replacing in the first line the word “shall” with “may”. It's only the one-word change and then the rest of the subclause would continue as is.

The Chair: Mr. Comartin, on your subamendment.

Mr. Joe Comartin: Thank you, Mr. Chair.

The purpose of the subamendment is to provide some flexibility to the government. I'm not doing this as a favour to them, I have to say, Mr. Chair. If we introduce that change, and I don't think “force” is the right word to use, but it certainly will bring some pressure to bear on the government to exercise that discretion. And in light of not having to automatically do it, but of having to decide whether or not they're going to do it, they would then take into account the desires of the first nation band that's going to be affected by this decision.

So in terms of the intent of it, it is very much to bring pressure to bear that would force the government of the day to bring them in and say, “Yes, we understand we're going to do this. This is the stage the process is at.” Assuming again that this bill becomes law and somehow is implemented, we would get to a stage where the first nations would be in this hiatus period, which you've heard described by the officials, and then it would require the government, on a discretionary basis, to consult with them.

So it would be interesting, Mr. Chairman.

I'd like to go back to Mr. Bryden's comments with regard to the charter. One of the things about the charter that I do know about... and I should perhaps suggest that Mr. Bryden may want to go and read it at some point because he's wrong on the point about the time limit. That is in the Constitution, but it's not in the Charter of Rights. It's a different part of it.

The Chair: Mr. Comartin, I go along with your remarks, but it's not Mr. Bryden; it's the member opposite.

Thank you.

Mr. Joe Comartin: Thank you, Mr. Chair. That's a fair admonition.

The point about the charter that is relevant and meaningful is this. If my proposed subamendment goes through, it would impose a standard on the government under the charter and under the decisions of the Supreme Court, as Mr. Paquette has referred to, in a number of ways, to exercise that discretion in a meaningful fashion. And if they don't, then there would be litigation that could very well force them to take into account the considerations of the first nations band that's being affected by it.

So I think the subamendment is appropriate from that perspective.

There is another thing I want to say about the charter in terms of not only this but also in terms of the clauses we've dealt with. We've heard any number of opinions from the witnesses. I have to say I haven't looked at this clause so much from that perspective, but there are certainly any number of other ones where the charter is going to be invoked and the litigation process is going to be very much a lengthy one.

The reason I'm raising that is we've heard testimony in that regard from a number of the witnesses, including, I think, the Canadian Bar Association and some of the academic experts on constitutional and charter rights in this country, as well as from legal experts on first nations rights before the courts. These rights have been recognized now for several decades, and quite frankly, they continue to be expanded.

The reason I'm raising all that, Mr. Chair, is that this may very well be one of those clauses that is going to be challenged at some point under the charter, and if not under the charter, under that litigation, that body of law that's been developed—

Mr. Charles Hubbard: Lawyers need to work, so why is this—

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Sorry, Mr. Chair.

Mr. Joe Comartin: Thank you, Mr. Chair.

I have to say to the member opposite, Mr. Chair, and I'm saying this on behalf of all the lawyers in this country who do litigation, that if you wanted to develop work for them, you couldn't have drafted a bill, or if this bill becomes law, a law, that would have been more productive in terms of employment for the legal profession.

The Chair: I have to admit, you're more fun than Mr. Martin.

Mr. Joe Comartin: Now, that's really strange for someone to say that about a lawyer. I have to say to you, though, that I come with a bias. I don't tend to fit into that category. A good deal of my career has been spent as a fairly good lawyer, in spite of the comments we heard earlier from the member opposite, and I would be quite prepared to go back to pursue that profession in the same regard, Mr. Chair, which is not—

The Chair: We can arrange that.

Mr. Joe Comartin: Well, you've already tried to do that, Mr. Chair. They've already been in that process, so there is nothing to be concerned about in that regard in terms of the ultimate outcome of the next election.

The point I want to make is, I have consistently, in my professional career, tried to expand access to the courts, but to do that in a way that would provide access to the courts from people who have not traditionally had access. It has not been by drafting legislation, in the way this legislation is drafted, that is going to be a major producer of revenue for a lot of law firms across this country for the next decade or two, if it ends up in its final form as it has been drafted and as we've passed it up to this point at this committee.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

Monsieur Paquette.

[Translation]

Mr. Pierre Paquette: Mr. Chairman, I want to begin by saying that I subscribe to Mr. Comartin's arguments, except that in the French version, I'm having some difficulty determining where the sub-amendment would go. So, if it were possible, I would like the Clerk to tell us how the sub-amendment moved by Mr. Comartin would fit into amendment G-12.1.

Mr. Jeffrey LeBlanc: I have to admit that I am not a legal translator, but I believe it would read as follows in French: “Il peut être précisé dans un décret pris en vertu [...]”.

Mr. Pierre Paquette: So, that would be in sub-clause 34(2) of the amendment.

Mr. Jeffrey LeBlanc: Yes, it would read as follows: “Il peut être précisé dans un décret [...]” rather than “Il est précisé [...]”.

Mr. Pierre Paquette: Thank you. I wanted to be sure we were talking about the same clause, or rather the same part of the amendment. I believe the arguments have already been made, but it is worth emphasizing, once again, the importance of terminology in bills as important and sensitive as this one.

As regards First Nations governance, we all know that there is quite a bit of symbolism attached to certain words. My sub-amendment, which reflected the same spirit, did not pass. Its purpose was to ensure that the First Nations will not be placed before a fait accompli or have decisions forced on them by what some call the higher level of government, the higher authority, if you will.

So, the sub-amendment that has been moved, which changes the word “shall” to the word “may”, provides for some latitude. There is reason to hope—particularly since this talks about a two-year period after clause 4 of the Bill comes into force—that in that period of time, the government will not only realize that there a number of provisions in Bill C-7 that are problematic, but actually come to its senses. You just can't impose this kind of change on the First Nations without their agreement, supposedly for their own good.

There is no doubt in my mind that if, for reasons that may have something to do with dogmatism, since this Bill does not have a monopoly on that… I myself have seen this in the school boards. In Bill C-28, the Finance Minister took action retroactively on a legal matter already decided. That has never been seen before in the history of the Canadian Parliament. An agreement was reached between government Crown attorneys and the Quebec and Ontario school boards in January, and then the Minister of Finance announced, on February 18, that he would go back and make changes retroactively with respect to the res judicata, which included that agreement. What is worse is that agreements were concluded in April—in other words, after this Bill was tabled. Why are government lawyers doing this? It's a complete mystery. In my opinion, the Minister of Finance made a mistake, but rather than admitting that, he forged ahead and signed. Yesterday, I moved an amendment and so did my colleague, the Member for Drummond, Ms. Picard, to eliminate any retroactivity. We are not challenging the fact that the federal government has a right to take action retroactively with respect to legal provisions, but once a matter has been decided, then that's all there is to it. However, for reasons, as I say, connected to this dogmatism on the part of the federal government, particularly with the Liberal Party in power, and its conviction that it never makes a mistake, the government prefers to forge ahead even when it's wrong. I know the Minister of Justice is very uncomfortable with this situation.

I have a feeling it is sort of the same with Bill C-7—that the government is very aware. I know that tomorrow the Minister will be very much aware, given the demonstration that will be happening in his riding, that Bill C-7 does not address the needs and concerns of the First Nations. But the dogmatism of both the Minister and the government are such that they are determined to see this Bill pass.

So, as I say, in that context, if the government provides for some flexibility and leaves itself a way out, then if it realizes in the coming months that the Bill it has just forced through Parliament makes no sense and cannot be enforced, there will still be a couple of options there. And in my view, changing shall” to “may” would open things up somewhat in terms of the period during which this would apply—in this case, a two-year period—and allow the government to make adjustments to Bill C-7 which, unfortunately, is likely to pass one of these days. I don't know when that might happen, but we can surely expect it to pass one day.

So, the Liberal federal government could give itself some room to manoeuver, a small window of opportunity, rather than saying it's completely in favour of everything in this Bill, which is actually totally negative, in terms of its approach. By saying “may”, the government would have some flexibility. It would give it an opportunity, more so than now, to hear what the First Nations have to say and come back to its senses.

That's what I always say: common sense must prevail. And common sense tells us that we shouldn't be passing a bill for the good of certain people, when those people totally disagree with that bill. So, I will be supporting this sub-amendment.

[English]

The Chair: Mr. Comartin.

Mr. Joe Comartin: Thank you, Mr. Chair.

With regard to this subamendment, I suppose the message we're trying to get through is the need for some flexibility in terms of dealing with this hiatus period, although I must say, when I look at this amendment, the main amendment and amendment G-12, it does give me some significant cause for concern that we don't have the opportunity to get input from the first nations.

I'm not sure that would matter, given the reaction we've had from this government throughout to any other input we've had from them. But just speaking in terms of whether even my subamendment is one they would support, I'm having some difficulty as to whether that would be the case. I suppose under a more appropriate process you might even set this aside at this stage, along with amendment G-12, and proceed with other amendments, to deal with this at a future point, with the perspective being whether we could bring in input from the parties this is going to affect and get some response from them as to how best to deal with what the government has now identified, especially with this amendment, as sort of a hole in the initial draft of the bill that left this vacuum, I think was the term Mr. Johnson used, and I think that was an appropriate term to use.

So it's with some trepidation even that I've moved this subamendment, but it seems to me that by using that wording, as opposed to it being absolutely mandatory, the cabinet would have to apply the Indian Act in these circumstances where there was a process going on but not complete. They in fact would have to exercise their discretion. I think if they were required to do that by way of this subamendment, changing the word “shall” to “may”, that would force them to bring in the first nation band that was being affected by it and get their perspective on it, which may be some other alternative.

Maybe letting the vacuum sit would in fact be the best way of dealing with it. It may be to speed it up and bring into play the new legislation. It may be better to fall back under the old. The point is, the decision that is going to be directly impacting on that particular band wouldn't be made in isolation by the cabinet but in consultation with the band it's going to impact.

So do they want to try to continue to function under the archaic Indian Act, or under the new legislation, which one presumably would have hoped would have had some meaningful participation from them in getting it drafted? Or perhaps the best choice would be to sit in that vacuum until this interim, transitional process was completed. But by all means, what we want it to be is not a decision that's coming down from the cabinet, saying to this band, this is the rule of law that's going to apply to you, but rather the cabinet and first nations bands coming together, having discussions, coming to a mutually satisfactory arrangement as to how to deal with these circumstances.

It seems to me it's appropriate that this amendment go through, especially in light, again, of no meaningful participation here or no input from the first nations as to how they want this dealt with. It came in after all the testimony and all the briefs were received. So in those circumstances, it seems to me that we err on the side of caution.

We introduce the permissive rather than the mandatory wording. It gives us the maximum amount of flexibility. Who knows? We may at some point see a change in perspective and in attitude from the government, and they might in fact actually consult with the first nations in a meaningful way that is going to be affected by this section.

The Chair: Thank you, Mr. Comartin.

A recorded vote on subamendment 2 to G-12.1 on page 207.

(Subamendment negatived: nays 8; yeas 3)

The Chair: Mr. Hubbard.

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

I'm amazed at the subamendment we just spent a lot of time on. I was surprised that a lawyer would present it. If it were somebody like myself, without a whole lot of legal experience, I could be forgiven for such an indiscretion.

I'm not sure who wrote the amendment. I have a fairly good idea who the writer was, but it was a long debate to change “shall” to “may”. When you give the Governor in Council the right to “may” something, it quite often could become “shall”, because when you offer someone the opportunity to do whatever, then it's their occasion to do as they want.

I would point out, Mr. Chair, that we're again sitting here listening to frivolous amendments and subamendments that really have no... either in the English language—and I think we have some experts in the English language around the table here, and we have some who know a little bit of a law. When you give someone permission to do something with the word “may”, I'm not sure why you would want to change that in terms of “may” and “shall”.

With that, Mr. Chair, I hope we would have the vote and continue on more profitably in terms of the time we're spending around the table.

The Chair: A recorded vote, on G-12.1, on page 207.

(Amendment agreed to: yeas 8; nays 2)

The Chair: We are now on CA-47, page 209.

Mr. Vellacott.

Mr. Maurice Vellacott: Mr. Chair, right at the outset, I would seek, if there would be a possibility, as this is almost more in the nature of a housecleaning issue... In previous amendments we've changed it to three years to allow a longer period of time, for example, in prior clauses such as clause 5 and so on. For the sake of consistency, I think it would make consummate sense to make that adjustment. I'm proposing we do that by unanimous consent, since we've already made those changes in respect of the other clauses. We've adjusted it to three years, instead of two, to give first nations more time.

I would ask unanimous consent to proceed in that manner.

The Chair: Are you asking for a vote by unanimous consent—

Mr. Maurice Vellacott: I'm asking unanimous consent—

The Chair: —or are you asking for unanimous consent to go directly to the vote?

Mr. Maurice Vellacott: To have this put in by unanimous consent.

The Chair: Unanimous consent to go directly to the vote.

Mr. Maurice Vellacott: It's just basically putting it in order with the others.

The Chair: We don't have it.

Mr. Vellacott.

I will hold everyone to the amendment. This is a simple amendment. On this one I'm not listening to any rhetoric on anything else but that amendment.

Mr. Maurice Vellacott: For my point, Mr. Chair, we heard abundant testimony from many witnesses that if this bill were to go through—and people were qualifying it with “if” it were going to go through, meaning they didn't want it to go through—they said this two-year period is far too fast, far too speedy a pace, and not reasonable for them.

I heard that personally during conversations I had with first nations leaders. We heard it from the table here. This is not to say they were approving the bill—I'm not making that point—but that if in fact this were to proceed, two years was far too quick. There was even some moderate little suggestion of a change to three years.

We've already changed that in other parts of the bill—amended it to three years—so I am attempting to be consistent and faithful to that change from two years to three years in order to be consistent with those other amendments that have been passed thus far.

The Chair: Thank you, Mr. Vellacott.

Is there anyone else?

Mr. Comartin.

Mr. Joe Comartin: The difficulty we have, Mr. Chair, is that, again, it is being imposed. We've heard all the reasons why that is going to be so detrimental to the ongoing relationship between the first nations and the Government of Canada.

It's also so inflexible in terms of a very specified period. Let me use the example of one small first nation that's having some difficulty getting itself within the confines of the legislation. You may have another first nation that's relatively—I hazard to use the term “sophisticated”—better prepared. Let me use that term.

The Chair: Mr. Comartin, I'm interested in how three years will affect that community as opposed to two years. That's what I'm interested in hearing.

Mr. Joe Comartin: That's the point I'm addressing.

The Chair: If it's difficult at two years, it may be less difficult at three. Those are the arguments I'm looking for. This is really a technical amendment, so—

Mr. Joe Comartin: That's what I'm driving at. Mr. Chair, we may very well have first nations that would be ready in one year. We would have others that may take five. The difficulty I have with imposing a specific period, whether, as the proposed bill says now, two years or an increase to three, I would say, is that if the only choice I had was in terms of two or three, then obviously I would say, yes, let's go with three, because it provides a bit more flexibility.

The difficulty I'm having is that it may not be flexible, and my position is that it's not flexible enough to impose a period of time—

The Chair: That's the point I make. You don't have that option. If you vote for this, it goes to three. If you vote against it, it goes to two. There's no question of using pressure or imposing or anything else. It's one of the two on this amendment. We don't have a choice here. We debate two as opposed to three, or three as opposed to two, and why. That's all I will accept.

Mr. Joe Comartin: Then let me go back to the point of the two years. Certainly in some cases that is not going to be enough. The less prepared first nations council or band may need additional time. But I have to then equally say that argument could be made with regard to three years. Neither two nor three are acceptable without some flexibility introduced.

In that regard I would like to move a subamendment that would read as follows, that the amendment we have before us for the three years be amended by adding after the word “beginning”:

with further three-year extensions upon the request of the first nation, accompanied by a statement of efforts made to that time to advance self-government—

The Chair: We'll hold off until we get it in writing, and we'll decide if it's acceptable.

Mr. Comartin, we cannot accept your subamendment. Therefore, we go to Madame Girard-Bujold.

Do you wish an explanation, Mr. Comartin?

Legislative clerk.

Mr. Jeffrey LeBlanc: If you were to adopt the subamendment and then the amendment, the clause would no longer make sense the way it reads.

It would read:

The Governor in Council may, by order made during the period of three years beginning with further three-year extensions upon the request of the first nation, accompanied by a statement of efforts made to that time to advance self-government on the coming into force of section 4, exempt any band.

It would render the clause incoherent.

The Chair: I'm ruling this not acceptable.

An hon. member: I challenge the ruling.

The Chair: There is a challenge to my decision. Shall my ruling be sustained?

Mr. Joe Comartin: Mr. Chair, I think you have to step out of the chair for the vote.

The Chair: I did once and found out that's not the way you do it in Ottawa. Ottawa is different. I agree that a chair who is being challenged should remove himself or herself from the chair, but that's not the way they do it here.

Shall the ruling of the chair be sustained? Those in favour?

An hon. member: Can we have a recorded vote?

The Chair: I have asked the question, I'm sorry.

Those against?

The ruling is sustained.

Now we go to Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Mr. Chairman, I am very pleased to be here tonight to replace my colleague, the Member for Saint-Hyacinthe—Bagot, and have this opportunity to speak as the Committee proceeds with clause-by-clause consideration.

Mr. Chairman, I am pleased to have an opportunity to speak to amendment CA-47 moved by the Member for Portage—Lisgar. With this proposal, the clause provides a window of opportunity. In spite of what the First Nations people said who came to testify, they're all against this Bill. But at least with this sub-amendment, we are looking at a more acceptable window in terms of the timeframe in which to carry out the various measures being imposed on them.

Two years is a very short period of time, because we're talking here about a major piece of legislation that will completely change what the Aboriginal peoples had in place under the current Indian Act. When significant changes are made to people's way of doing things, they must be given the time to adjust, and especially to understand a process that automatically kicks in when a Bill passes.

A number of witnesses talked about the need to give Aboriginal nations more time to complete the tasks being imposed on them. Let's not forget that this Bill forces them to do certain things and that this is legistion being imposed on the First Nations. One of the witnesses that appeared before the Committee was the Quebec Bar Association, as my colleague, the Member for Saint-Hyacinthe—Bagot, was explaining to me, and they said that in terms of interpreting legislation, in order for people to feel directly concerned by a bill, they need time to change their methods and approach, and change the rules that apply in their own bands.

Also, I believe this sub-amendment will improve the Bill. We should be quite open about that. Anyway, it's clear that the Opposition parties are certainly starting to say things that make a lot of sense, in contrast to what government Members are doing, who seem to be totally against anything that might make it possible to engage in healthy dialogue with the First Nations in future, something that will not happen with this Bill and that they could change as a result of this amendment, by recognizing that what is being asked of them is extremely difficult. They totally reject that, but the fact is government members have received their marching orders from the government; they've been told to shove this down their throats. However, they should at least be trying to do that diplomatically, and using some common sense. They should at least give them an opportunity to work in a way…

When people are required to comply with legislation that they don't like, it seems to me they need to be given some time to digest what's happening. That is a normal process for any individual. Also, it's important to remember that this affects bands that have been in place for years. Even just realizing that for them… It doesn't happen every day that Aboriginal nations, band chiefs, bands in general and the invididuals who are members of those bands have to interpret legislation.

So, Mr. Chairman, the Bloc québécois supports this sub-amendment. After this, I would like to move a new sub-amendment. I move that the amendment be amended by replacing the words “three years” with the following:

five years

The Chair: Ms. Girard-Bujold, you have the floor on your sub-amendment.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I am very pleased…

[English]

Mr. Charles Hubbard: Mr. Chair, on a point of order, it's my understanding that in terms of changing the direct point of the amendment by changing the years, it destroys the amendment. It doesn't alter the amendment; it destroys the amendment.

The Chair: It alters the amendment. It's acceptable.

Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: Thank you, Mr. Chairman.

So, just to continue what I was saying earlier, two years is really too short a period of time. Three years certainly gives more of a window to the Aboriginal nations, but five years will really give them a chance to understand what they need to do, put a regular process in place—a process that will allow them to stop thinking about the fact that certain things are being imposed on them, and actually allow them to accept what is asked of them. Acceptance comes gradually, when people are given the time they need.

I would like to put a question to our officials. I haven't had the pleasure of speaking to them so far, but I do have one question. What would happen to the First Nations if they were not able to achieve this in the timeframe set out in Bill C-7? What exactly would happen? Are we going to put a million First Nations people in prison? As you know, 100 per cent of the inmates at the Kingston Penitentiary are Aboriginal women. So, perhaps you could tell me what would happen if the First Nations did not abide by this timeframe. Two years is what the Bill currently provides for, and that is just too short.

[English]

The Chair: Mr. Johnson.

Mr. Warren Johnson: There may be some confusion on the subject at question.

It in fact has nothing to do with a period of development of codes or regulations of the band. Clause 34 deals with the period during which a first nation may be granted an exception from the bill because it's in a self-government negotiation.

The result of the proposed amendment would appear to be self-defeating, because at the end of the three-year period that's being consistently put in place through the amendments everywhere else, clause 4 would come into force; the first nation would fall under the regulations. So if the exemption period was in years four or five, they would have already made the transition to the new act.

So I think there's some difficulty here in interpretation or in fact implementing this motion, despite the ruling of the clerk.

The original question is in fact on a different subject, which we could also answer.

[Translation]

Ms. Jocelyne Girard-Bujold: Yes. I would like to hear your answer.

[English]

Mr. Warren Johnson: The issue will be in what areas a first nation does not comply with the act. Since the whole purpose and basic principle is that this act is to respond to the consultations and the interventions by the 10,000 individuals who were involved in the first round of consultations, that they wanted to be empowered to hold their own governments to account, then the reaction would be in the first nation community.

So if the first nation government didn't offer the community an opportunity to develop an election code and refused to follow the fallback regulations—to take one scenario—the first nation community members might have something to say to that and would have varieties of recourse about it. So that would be one impact.

The other impact would be that if that occurred, you might not then have a legally constituted band council because there wouldn't have been a legal election. That could create certain problems for the community itself, because with no legally constituted council, who would third parties deal with?

So in terms of there being no recourse or enforcement provisions, I think you asked the question, what would the government do? It's not clear what the government would do, but it's also not clear whether the government would in fact have to do anything, because the community members themselves, through the use of the judicial system and the other authorities in Bill C-7, would have the recourse, since the whole basis of the act is for first nations citizens to be able to hold their governments to account. They would be the principal recourse in terms of what they acted to do.

To deal with it as a theoretical question, if the whole community went along with that, if that didn't cause problems for any of the individual members, for example, not to have any elections for chief and council, then the community itself would experience certain results from that, on which we could only speculate. They may not have a legally constituted government, third parties may not have anybody to contract with, and so on, which is exactly the same situation as currently exists under the Indian Act, except without the recourse of the individuals.

The only intervention that's capable now is ministerial. Bill C-7 would rely on first nations citizens, not ministerial oversight.

[Translation]

Ms. Jocelyne Girard-Bujold: So, if I understand correctly, Mr. Johnson, if they don't do what they're supposed to do within the prescribed timeframe, there will be no duly elected band and the community will not be able to call its leadership to account, because there won't be any. Is that what you're saying?

[English]

Mr. Warren Johnson: I think that's getting into a legal nicety, which my colleague may be more capable of commenting on than myself. But I would have thought that the individual rights and recourse would still exist.

Mr. Andrew Beynon: I think my answer would be that if the leadership or the band council isn't properly elected, then if the individual members want to challenge that legally, their challenge would be to the authority of those persons to do anything—to act with respect to the moneys, to pass laws, or whatever it may be. So they would challenge that authority and say that those individuals have no more authority to do it than you or I do.

[Translation]

Ms. Jocelyne Girard-Bujold: I'm sorry, Mr. Chairman, but I have to request further clarification; I find this extremely complex. The more I ask of them, the more important it is, in my view, to give them the time they need.

The Chair: I understand, except that you arrive here at a very awkward moment and, not only that, someone has given you a sub-amendment to move. This puts us in a difficult situation.

Ms. Jocelyne Girard-Bujold: I find it quite amusing.

You say that at the present time, this would fall to the authority; and yet that authority is not duly constituted. If there is no authority, who would it fall to?

[English]

Mr. Andrew Beynon: It wouldn't really fall to anybody else.

Again, I agree with Mr. Johnson. It's a matter for individual community members to either pursue the redress mechanism, which is provided for in Bill C-7, or to go to court to seek an order saying that those individuals are not duly elected and don't have an authority—or perhaps to seek an order from the court requiring that there be a procedure in accordance with Bill C-7. In other words, the individuals would seek an order requiring a review of the action, saying, “We now need to be operating under the fallback regulations”, and then apply those. So the actions to be taken are a matter for the discretion of the community members.

Again, I agree with Mr. Johnson that many of these authorities are with the minister under the Indian Act as currently drafted, particularly, for example, on leadership selection. But Bill C-7 changes that. So it's not the minister who would intervene with respect to whether or not a band council is duly elected, but it's up to the community members under Bill C-7.

Mr. Warren Johnson: As I've said, it might be helpful to note that this is exactly the same situation generally existing under the Indian Act. But more specifically, since we were using the theoretical example of elections, it's exactly the situation that now exists with respect to custom elections, because we don't know what custom election procedures are, as we're not involved with them and we don't monitor them. If custom election procedures aren't followed by the chief and council, or whatever group is considered the leadership according to custom, then the only recourse is for the individuals to go to court.

[Translation]

Ms. Jocelyne Girard-Bujold: What that means, Mr. Chairman, is that if clause 34 of the Bill goes forward in its present form—with the two-year period—the timeframe for implementing all this will be very short. It may not be possible to achieve that in the timeframe set out in this clause.

For that reason, and in light of the clarifications you have provided, my view is that it is extremely important to give them at least five years to carry out everything that is implied in clause 34.

[English]

Mr. Warren Johnson: If I could treat that as a question, because I think we've forgotten the original point, that's not the subject of clause 34. We've had a theoretical discussion, which is in fact the subject of two or three forthcoming amendments, in which I think the same member has again consistently proposed three years.

This is not the period in clause 34 under which first nations develop their procedures, but it is the question of a first nation who is close to having negotiated a self-government agreement during that period and who just wants to maintain the status quo under the Indian Act because it's close to getting the agreement. Therefore, there's an authority for the Governor in Council to exempt them from having to do anything.

The Chair: Thank you.

Merci, Madame Girard-Bujold.

Mr. Comartin.

Mr. Joe Comartin: I have to go to the officials as well, Mr. Chair, because I must admit that explanation has further confused me. I thought I had a clearer picture of what we were dealing with.

We've already had I think three amendments that have moved two years to three. Am I right on that?

Mr. Warren Johnson: I stand to be corrected, but I think there are three keys areas, only one of which has been dealt with.

Mr. Joe Comartin: So this is the second and there's one to come.

Mr. Warren Johnson: The first one was the period of time during which, under subclause 5(3), those first nation bands now under custom have the opportunity to decide whether they want to remain under custom or not. I think the committee has voiced an opinion that there should be a consistent period across the three subjects I will deal with. That was the first one.

The second one is this one, which is the period of time during which a first nation, if it is close to being able to complete and implement a self-government agreement, may want to have an exemption from having to do anything at all. And since nothing comes into force during that same period of time, it seemed to be the right period for that exemption. So the proposed amendment would also move that to three years.

The third one is the principal one that I think was just the subject of the questions we had, and that's the period in time under which first nations decide whether they want to develop their own codes, so they immediately go under those codes, or whether they will work under the fallback regulations and perhaps do their codes later. That also was originally two years, and I think the committee has discussed, when they did the first one, moving all three of those to three years so there's a consistent period in application.

Mr. Joe Comartin: This may be better going to Mr. Beynon, but I must say, wearing my lawyer's hat for a moment, it is not necessary that each one of these sections be consistent. You could have different time periods.

Mr. Andrew Beynon: Legally speaking, technically, yes, you could have different time periods. There is a practical sense to making them line up, though.

Again, as Mr. Johnson is suggesting, the time period is a time period during which communities either face the prospect of developing their own codes, what they choose to implement under first nations governance, or the possibility of going to the fallback regulations. It's during this time period that they're still operating under the Indian Act.

Mr. Joe Comartin: But when you look at clause 5, I think it is, that's already been amended to three years, but that decision as to whether they're going to use the custom elections or not is being made by the first nations bands themselves. In this case, the decision is being made by the Governor in Council, right?

Mr. Warren Johnson: Yes, but the practical implication is that if you have them in different years, you may have other consequential amendments you have to do to the act to make it work.

Using this example, if you extend it to five years, any band after three years, if those other amendments are completed, that hasn't developed its own code would automatically be under the default. So there's no point in having an exemption for years four and five because they'd be already under the default. It wouldn't work. You'd have to make a consequential amendment to make that clear too. I'm not quite sure how that would work.

Mr. Joe Comartin: We may have to make a further consequential amendment.

Mr. Warren Johnson: I think that goes back to the previous...

Mr. Joe Comartin: No, it wouldn't go back to that one, from what I'm seeing in terms of what clause 5 does. And of course if we accept this subamendment, the Governor in Council doesn't have to go to the full five years; they can do it at any period in between. The effect of this amendment would be simply giving them the flexibility to go as long as five years.

Mr. Warren Johnson: It's a ceiling. It's also a ceiling for first nations, because they can adopt the default regulations at any point. If they look at them and say, we want to go right now, this looks good, we'll worry in the longer term about where or when we might want to do custom, they can do that at any time. So this is a sort of ceiling.

Mr. Andrew Beynon: If I could add one additional clarification, the opening words of clause 34, in suggesting either a two-year period or, as proposed, a three-year period, or, as further proposed, a five-year period—all this creates is the window of time during which there is a discretion for the Governor in Council to say don't jump into the First Nations Governance Act; instead, stay out of that because you're about to go into self-government, and instead, because of the recent subamendment, stay under the old Indian Act provisions.

It doesn't speak to what happens after two years or three years, or in this case five years. It would be possible, say, six years down the line that a community at that time has achieved a successful self-government negotiation, and what would happen is that self-government legislation would come forward and that would move them out of the First Nations Governance Act, because they would of course be under self-government.

So the only issue, really, that this time period is raising is, do you make a choice, Governor in Council, to avoid turning on the First Nations Governance Act because there's only going to be a very brief time period to operate under that act because we know you're moving to self-government shortly afterwards? And if the proposed subamendment to go to five years were put in place, it's for the committee to consider, but what you would face is a community that would likely operate under the terms of the Indian Act for three years and then have to make a choice: do we go for a code, or do we go to the default regulations? If they said, we're going to go for one or the other, then the Governor in Council could come along six months later, or a year later, and say, now we're going to put you out of the First Nations Governance Act and back into the Indian Act, because you're just about to go into self-government.

I would only suggest that this time from three years to five years seems like going in one direction and then pulling back in a strange way.

Mr. Joe Comartin: How much more time do I have, Mr. Chair?

The Chair: Three and a half minutes.

Mr. Joe Comartin: The difficulty I'm having is that by extending it to this length of time, it does give... Let me say this. What I'm concerned about is if in exercising their discretion as to whether they're going to give an exemption the cabinet is faced with a whole series of them in that timeframe—if the amendment goes through at three or if it doesn't go through and we're stuck with two—that's not a long period of time to deal with what might be potentially hundreds of applications. I don't know if that's fair, so let's say 50 to 100. The decision as to whether to grant the exemption, I would suggest anyway, should not be made lightly; it's going to require some significant consideration by cabinet. You wonder whether enough consideration can be given, given all the other things cabinet is doing in that two- or even three-year period, in order for a meaningful assessment to be made at that level.

I appreciate the point you're making, Mr. Beynon, about the fact that the decision is made and they may give five or ten years for a particular first nation to finish the negotiations and move on to ratification of the agreement, but the problem is that as constituted, or even if we go to the three years, it's not a lot of time. In fact, I was passed a note a few minutes ago pointing out that when it came to implementation, Treaties 1 and 2 were entered into in August 1871 and still haven't been completed. There are still some parts of them that haven't been completed. So when you look at that kind of history and the complexity involved here of what is some significant restructuring at the least, the flexibility of the extra time, I would think, is important. It is going to be a complicated process for the cabinet to consider each one of these applications, I would think.

Mr. Warren Johnson: Shall I treat that as a question?

Mr. Joe Comartin: Yes. That's what I'm saying.

Mr. Warren Johnson: I appreciate the concern, and both Mr. Beynon and myself have some experience with these negotiations and he may want to comment, but if one is close to a final agreement and ratification, one knows it. You've been at the table for ten years. You have schedules. You have continuous briefings to the community and cabinet. There is a complex process in terms of mandating these and budgeting for them, because they have significant budget increases, so there's a fairly sophisticated tracking process coming from the negotiating table on these.

So being close to ratification of a final agreement within the kinds of time periods we're talking about I don't think requires a huge judgment call or a lot of analysis. The evidence is there before you because of the experience at the table, the timetables the table has, and the experience that people have had working together.

Mr. Joe Comartin: But that's true of the role of the person who's been carrying on that.

The Chair: Time's up, Mr. Comartin.

Mr. Joe Comartin: I'm so disappointed.

The Chair: In fact, I missed you. You got a few extra seconds.

Does anyone else wish to comment on the subamendment?

A recorded vote on subamendment 1 to CA-47, page 209.

(Subamendment negatived: yeas 1; nays 8)

The Chair: Mr. Vellacott is not here. We go directly to the recorded vote on CA-47, page 209.

(Amendment agreed to: yeas 9; nays 0)

The Chair: Are you ready for the question?

Mr. Comartin.

Mr. Joe Comartin: Mr. Chair, I'm still having some real difficulty with the clause and the impact it's going to have on the first nations. With the amendments that have gone through on this, they've had a very short period of time to be able to give any input to us as individual members and to the committee as a whole.

When one looks at it with the two-, three-year move, it still very much begs the question. I didn't get a chance to say this, so I want to raise it again. The process itself is one... if one has been intimately involved in negotiations, if one understands what's gone on, one would then be in a position to make a meaningful decision here. Again, the clause doesn't require any input, so if the bill goes through as is, it will allow the cabinet, in effect, to make this decision of whether to exempt or not, totally in isolation from any input from the band that's going to be affected by it.

That is a major problem with the clause, but I think it's compounded by the complexity of it. Although I heard from Mr. Johnson, who was involved directly himself--he talks about schedules, about preliminary points that may have already been resolved—that the negotiations may be moving along and we are in a position where we could—that is, the official--be able to make an informed decision... But none of that is true about the cabinet member sitting at the cabinet table. He or she is going to be confronted with reams and reams of paper in what could be anywhere—in this short period of time—from 50 to 100 applications for exemptions, for extensions. They not only have to decide whether they're going to grant it, but then they're going to have to decide for how long. It could be a lengthy one, and it may be appropriate that it would be a lengthy one. It may be appropriate that it be a short one. The difficulty is you'll have all these applications, and decisions being made without consultation required—hopefully the government of the day would see it proper to consult meaningfully, but they don't have to.

So you could have a situation where you have all these applications, and you have all the rest of the work you have to do in cabinet. You're getting piles and piles of material of what, for the uninformed... I'm not saying that in any way to denigrate whoever is sitting around the cabinet table at the time; it's simply that they will not be knowledgeable. And then they'll have to make a whole series of decisions.

What inevitably happens? I would suggest inevitably what happens is that mistakes are made. Either the extension is not granted or it's granted, but not for an appropriate period of time.

Under those circumstances, this portion of the bill is really quite wanting for what is going to be—again, opposed as we are, accepting that the bill at some point gets passed and becomes law—a very, very crucial transition period for the first nations. When you look at this clause, you say, has the infrastructure been built in to allow the cabinet, often in isolation, to make a decision that is in the best interest of the first nation band that's going to be affected by it, and first nations as a whole, and the country as a whole?

I would suggest, Mr. Chair, when one looks at it from that perspective—the amount of work, the complexity of the work, the lack of consultation, all of the other responsibilities that any cabinet will have—it does not bode well or give one a good feeling that the process will be an effective one that the country can be proud of. That's not going to be the outcome at all.

In summary, given those circumstances, this section of the bill is really quite wanting, and I will be voting against it.

The Chair: Thank you, Mr. Comartin.

Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, having heard Mr. Johnson say that this is a very sophisticated process, I have come to the conclusion that that it is indeed the case, and that all of this would be extremely difficult. Only legal experts will know what it's all about, and having had this legislation forced on them, once again, the Aboriginal nations will not have self-government.

I agree with my NDP colleague. The time limit imposed for implementing this significant change of mentality and accomplishing all this work is really too short.

I am not a legal expert, but two of you are. You know as well as I do what you're up against with legislation and how many different interpretations there can be, depending on your perspective. There are plenty of legal experts in my family, and they have expertise in different areas of the law. Every time we have a discussion, we are never on the same wavelength; inevitably there are different interpretations.

So, just imagine what the government will be facing with this Bill. Clause 34 in particular treats First Nations people as though they were minors. They are being told what to do and to get it done quickly, otherwise… This is sophisticated, based on what we're told, but we know what has to be done. We are telling them to comply and do exactly what we tell them to do.

As far as I'm concerned, Mr. Chairman, in so doing, we are denying them the fundamental respect that every person deserves, in this case, the individuals that are members of what we call First Nations' communities.

I can see for myself that this is indeed a sophisticated process. Even though ignorance of the law is no excuse, the fact remains that everyone may not be aware of every single detail or of the implications of such and such a clause. Mr. Chairman, we are going to vote on this… Excuse me, but I was given to believe…

The Chair: Ms. Bujold, I would really prefer that you address your comments to everyone. That way, you won't give people the impression you're advocating the position put forward by your experts.

Ms. Girard-Bujold: No, Mr. Chairman; I certainly have no desire to do that.

The Chair: We will now call the question.

[English]

On a recorded vote, shall clause 34 as amended carry?

(Clause 34 as amended agreed to: yeas 7; nays 2)

(On clause 35--For greater certainty)

The Chair: We are now on clause 35, amendment NDP-52.

Mr. Comartin.

Mr. Joe Comartin: Thank you, Mr. Chair.

Paragraphs 35(a) and 35(b) of the proposed amendment are structural. The real amendment is in paragraph 35(c). It deals with the situation of a first nation or band that enters into an agreement not covered by paragraphs 35(a) through 35(d). It would then have the effect of excluding them from the purview of this legislation.

The purpose of this is to recognize that there may very well be agreements reached even before this legislation comes into effect. Some negotiation, we understand, is still going on for some of the agreements around self-government.

It's to deal with the situation of a band or first nation that is in the process of achieving the result of getting an acceptable relationship with the Government of Canada. We would presume that it would be on their terms rather than being dictated, as this legislation provides for.

They would then still be forced to be subject to this legislation since the first four provisions do not, as we've reviewed the bill, provide for that type of circumstance but only the very specific ones that are enumerated there, which are the Cree of Quebec, the Nisga'a, the Sechelt, and the Yukon First Nations. If there are any more reached in what would be the interim period of time, proposed paragraph 35(e) would take care of it and would allow them the same exemptions that are in the legislation for those four bands and first nations.

I suppose, to some extent, it's almost like a housekeeping section. I don't think this is particularly controversial. It deals with what we thought was a gap in the legislation, much as I think we've seen in some of the previous sections.

When you analyze it, it's obvious that this has to be provided for. It's a way of dealing with what simply is a gap in the draft bill that we have before us. It would in fact provide protection to either a band or a first nation that, in all good faith, is negotiating currently to reach an agreement.

I have to say, Mr. Chair, under the circumstances of confronting this bill, that bands or first nations that are still in the process—and a lot of them have walked away from the table because of this legislation—may very well feel that they might take a deal with the federal government that's less than what they really want, because it's not as bad as what they're going to be faced with in having to live under the terms of the proposed bill. We may very well have a number of those situations. If we do, this would provide them with the protection.

I have to add that it gives some incentive to a band or a first nation in the midst of the negotiations to take a look at this bill. They may feel they're not protected now, but if they get this amendment through, they would be in a better position. In fact, it may even encourage both the first nation and the government representatives who are carrying on the negotiations to perhaps speed it up.

In those circumstances, it seems to me, it's appropriate that all parties accept the amendment. As I said earlier, it's almost a housekeeping type of amendment to deal with what we think is clearly a gap in the bill.

I'm not suggesting that this is going to affect a large number of the first nations or bands. It may very well affect a few of them. If that's the case, even for one, it's worthwhile for this to be put into place.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

Colleagues, I will commit to you that as soon as we complete this amendment, I will adjourn the meeting. I'm trying to encourage you to condense a bit.

Mr. Hubbard.

Mr. Charles Hubbard: I'm sorry, Mr. Chair, to hear you're going to adjourn, because we're just getting enthusiastic about the way we're moving through these.

Some hon. members: Oh, oh!

Mr. Charles Hubbard: I have some difficulty, Mr. Chair, with the amendment for a number of reasons. I know all of us use different English language, which would be part of it, but the pronoun “who” was used, which would cause me certain difficulties, because “who” usually refers directly to a person, and probably it should be “that” or “which”. More importantly, Mr. Chair, probably our witnesses could indicate to us the validity of this particular proposed paragraph (e), which says “any band or first nation”—whatever it is—“is a party to”. It seems to be out of the context of clause 35. Probably Mr. Johnson could expand a little bit on this.

Mr. Warren Johnson: Thank you.

Mr. Chairman, we've raised this because of similar amendments and similar discussions previously. I appreciate the concern the member has raised in moving the amendment, but I guess the two points are that it's not clear whether this would really be necessary given the cause that has been expressed, and it may inadvertently cause at least two types of problems.

The reason it may not be necessary is that you will note clause 35 begins, “For greater certainty”. This is really a comfort clause to make sure those first nations named there knew they were exempted in legal terms. Mr. Beynon may be able to comment further. The agreements themselves and the legislation that puts them into place automatically exempt them from this act, and that will be true for any future ones. So they don't, in a sense, need to be named in the act or exempted.

That deals with the interpretation of this clause and that issue.

The potential difficulties with the wording are at least twofold. One is, as you will note, the specific exemptions in paragraphs (a), (b), (c), and (d) of the clause refer to an act, not an agreement; it's not implemented until the act is passed. The term here talks about when they've reached an agreement. Well, the agreement hasn't been implemented, and they'd already be exempted by this. That's one issue.

The more difficult issue, however, and you have a similar discussion around--I assume it's a “treaty... providing for self-government”; if there were any other meaning, it would exempt automatically all treaty first nations, so I would assume this is the meaning. The major point here is that, as we've mentioned in earlier discussions on similar amendments, there are a variety of self-government agreements that don't deal with governance, despite the potential contradiction in terms. There are sectoral self-government agreements—for example, in the Atlantic with the Micmac relating to education. The first nations consider the First Nations Land Management Act a sectoral self-government agreement, and it doesn't deal with governance. So we have self-governance agreements, either named thus or seen to be thus by first nations, that don't in fact deal with the subject matters of Bill C-7 and therefore would not be exempted. Thus there's a definition question with the language here that might be the problem raised.

Coming back to the original point, legally I don't think there's a requirement. This clause isn't really required in the bill itself; it's there for greater certainty and comfort for those first nations. And the agreements and legislation implemented for future self-government agreements dealing with this will automatically exempt them from this act.

The Chair: Thank you, Mr. Hubbard.

Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: Thank you, I want you to know that we are in favour of amendment NDP-52. We support this amendment because it states that any other agreement or negotiations leading to self-government makes Bill C-7 null and void. Since the beginning of this debate, we have been saying that rather than investing our energies in Bill C-7, which no one wants—especially the First Nations who are the subject of this Bill—the government should expedite the process with respect to self-government agreements.

Mr. Chairman, we really should add sub-clause 35(e). Clause 35 presents a list: (a) a band…; (b) the Nisga's Nation…; (c) the band; as defined in sub-section 2(1)…; (d) a First Nation… So here we could add an additional category for a band or First Nation that is a party to a treaty or agreement providing for self-governement.

Mr. Chairman, I don't know whether I'm mistaken in saying this, but I believe that for years now—I don't remember exactly how many—the Aboriginal nations have been sitting down with the government to sign treaties and agreements. They are currently negotiating with that government—indeed, they are forever in negotiations. If we don't specify in the Bill that they will not be subject to this legislation, I think we are really missing the boat; it talks only about one category, and makes no mention of the others.

Mr. Johnson talked about an agreement. I don't know whether I fully understood what you said about this NDP amendment, but I believe you referred to people who are subject to a governance agreement, is that right? Is that what you were saying earlier in answer to a question put to you by my Liberal colleague?

[English]

Mr. Warren Johnson: The point you may be referring to is the reference that there are self-government agreements that do not deal with the subject matters of Bill C-7 and that therefore would not be seen to be exempt from Bill C-7.

The term “self-government agreement” doesn't automatically mean, in its normal usage now in negotiations and with first nations, a comprehensive agreement that includes governance. We have sectoral self-government agreements in land, in education, in a whole variety of areas that may not cover governance and that would not be exempted. It's the question of the term “self-government agreement” in this amendment that may not be operable.

[Translation]

Ms. Jocelyne Girard-Bujold: So, that is how you were interpreting it. You're saying that this doesn't cover governance. I understand, but the fact remains that the Bloc québécois supports this amendment. As I was saying earlier, Mr. Chairman, I believe it's better to say too much than to say too little. In a bill of this nature, it's better to protect the people we should be protecting, despite what the legal experts are saying.

You know, Mr. Chairman, these kinds of clauses will be challenged in front of the courts. I don't think we are at the end of the tunnel yet; we need to lighten up this Bill so that the people who are not affected by it won't think they are.

You know, nowadays, nothing is carved in stone, Mr. Chairman. Everything is in perpetual motion; things change very quickly. In terms of education, health care or illnesses, there is very rapid change. And when we vote on a bill, we don't want to go back to the House the next day, because we all know how much time it takes to get a bill passed by Parliament. We are going to have to go back to the House and start all over again with another Bill C-7 that nobody wants, especially the First Nations. So, Mr. Chairman, the Bloc québécois will be supporting this amendment.

[English]

The Chair: Merci, madame Girard-Bujold.

Mr. Comartin.

Mr. Joe Comartin: I would like to ask Mr. Johnson a question, because I'm still not clear on the explanation he gave Ms. Bujold.

Mr. Johnson, you used a term in response to the question from the parliamentary secretary. There was an automatic provision that would cure the issue I have raised around agreements.

I don't know where that is, and I don't understand that.

Mr. Warren Johnson: It would be found in the agreement or the implementing legislation.

With respect to those agreements, they are constitutionally protected, and they are clear in that regard.

I asked Mr. Beynon that question earlier. That is clear and unambiguous, as I understand it. Mr. Beynon may be able to provide a fuller answer.

Mr. Andrew Beynon: I'll just add to the point that if you take, for example, the Nisga'a Treaty, within the terms of the treaty itself there is an Indian Act transition chapter. There are specific provisions that moved to make the Indian Act inapplicable.

The same thing would happen after this legislation is enforced. Those who are negotiating self-government would specifically address the First Nations Governance Act and make all or some of its provisions inapplicable.

All the self-government arrangements, and particularly modern treaty arrangements, are brought into effect by way of legislation. That legislation itself would specifically deal with the non-application of the First Nations Governance Act, just as these examples all deal with the non-application of the Indian Act.

The point is, clause 35 of this bill doesn't have to be drafted so as to contemplate what is upcoming in terms of self-government agreements and the future legislation, because the future legislation would deal with the non-application of the First Nations Governance Act.

Mr. Joe Comartin: I guess I can accept that, but I just want to be clear on this one point.

Each of the four that are recited here, even though there is existing legislation, has a clause in that existing legislation that exempts it from the Indian Act.

Clause 35 is here on a cautionary basis to say to those first nations, just so there's absolutely no question--

Mr. Charles Hubbard: It's comfort, Joe.

Mr. Joe Comartin: What was the alternative?

I think he used my first name again, Mr. Chair.

I suppose it's a reflection of the lack of trust the first nations have in the government that this is in here for this reason, but that's it. In effect, we're saying to these four first nations, since you probably don't trust us, we're putting into legislation directly that you will be exempt from Bill C-7.

Mr. Andrew Beynon: I agree with Mr. Johnson's suggestion that the opening language of clause 35 is for greater certainty. It is likely the case that lawyers would all say it's not necessary to do this, because the Cree-Naskapi (of Quebec) Act speaks for itself, the Nisga'a Final Agreement Act speaks for itself, and so on. They all make it clear that they trump provisions of federal legislation like this.

Mr. Warren Johnson: Just to extend that, it relates to the other point that there are other kinds of agreements called self-government agreements that wouldn't be exempt.

For example, first nations consider the First Nations Land Management Act a self-government agreement. It only deals with land; it doesn't deal with any of the provisions of this. It exempts them from the land provisions of the Indian Act; it doesn't exempt them from or withdraw the governance sections of the Indian Act.

A future first nation going into the First Nations Land Management Act would exempt itself from the land provisions of the Indian Act. It would not exempt itself from the governance provisions of the First Nations Governance Act because there's nothing in the FNLMA about the areas dealt with in the FNGA.

Mr. Joe Comartin: Were these four as a result of direct request by these first nations?

Let me do a corollary. Have you had any other requests for any other exemptions?

Mr. Andrew Beynon: I'm not sure about specific requests. I'm not sure whether these were specifically requested by representatives or their lawyers.

Mr. Warren Johnson: I'm not sure whether there have been any specific requests or not, or whether this was put in at the request of any one of these first nations. But there have been a number of first nations come forward over the session to....

For example, I think the bill has been before this committee since last June. We've had a large number of information sessions and discussions with first nations on it, just to get the information out. There have been a variety of inquiries for those in negotiations: What would this mean? How can we talk about it in the context of the delegation authorities? How can we use this bill in transition? We're maybe 5 years or 10 years away, but we want to use some of these. Some are closer and saying, how might this work? They're having similar discussions to what we're having now so that they're clear, if they're close by the time this comes through and they want to talk about an exemption.

So we've had a number of inquiries in information sessions, but I'm not sure there have been any formal requests.

The Chair: As a matter of fact, some of those requests came to the committee during our consultation.

Mr. Andrew Beynon: If I might just add one thing, I'm not sure if the member was suggesting, for example, that had the Nisga'a Nation requested that they be exempt...

I guess I would put it this way. If the First Nations Governance Act tried to apply to the Nisga'a Nation despite their treaty, I think it's a fair prediction that the Nisga'a would come forward and say no, this act doesn't apply to them because they have the Nisga'a Treaty. That was the whole point of getting the treaty. Their treaty trumps this kind of federal legislation automatically.

So the point is, it says “For greater certainty, this Act does not apply”. I'm suggesting to you that if we tried to reverse it and say the act does apply, that would likely be a violation of the Nisga'a Treaty itself.

Mr. Joe Comartin: I would still like to have a vote on the amendment.

The Chair: Thank you, Mr. Comartin.

We'll have a recorded vote on amendment NDP-52, page 210.

(Amendment negatived: nays 8; yeas 2)

The Chair: I think tonight would have been a good night to stay here all night, the way we did work today, but I'll keep my commitment.

The meeting is adjourned until tomorrow morning at 9, upstairs.