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We'll begin the meeting.
Good morning, members and guests.
[English]
It's a pleasure to welcome you back this week. In our orders of the day today, we are hearing from the three commissioners of the Cree-Naskapi Commission. Members will know from their briefing materials that this is part of a biannual report to Parliament.
This morning we welcome the chair, Richard Saunders, and the two commissioners, Philip Awashish and Robert Kanatewat.
It's great, gentlemen, to have you before our committee again. You certainly bring you with a history of and experience in coming before standing committees of the House. You'll know that we have approximately 10 minutes for your opening comments. Feel free to take a little extra time, if you need it, and then we'll go to questions from members.
We'll turn it over to Mr. Saunders.
Certainly, Mr. Saunders, if you'd like to add to the welcome of the commissioners who are here with you today, by all means do that.
:
Thank you, Mr. Chairman.
First of all I would like to thank the committee for hearing us again. For new members, I will introduce my colleagues. I have with me today Commissioner Robert Kanatewat from Chisasibi on James Bay; and Philip Awashish from Mistissini in the interior of Eeyou Istchee.
These two guys are pretty modest, so I won't be on their behalf. They're both signatories to the original James Bay Agreement, and are very familiar with the entire history of negotiations leading to the Cree-Naskapi (of Quebec) Act, the agreement itself, and many of the supplementary agreements. If there's something I don't know--which is quite a lot--they certainly deal with more detailed questions around the history of what's taken place there, as well as some of the current issues.
As the chairman said, we have a relatively brief time this morning. We don't want to waste the committee's time with a lot of background that you can read in our written presentation or in the 2008 report itself. We'll be moving over that rather quickly.
There is legislation on the order paper now amending the Cree-Naskapi (of Quebec) Act. I would like to comment on that because all our reports, including the present one, have addressed the need for amendments to the act.
In preparing these reports--I think everybody has seen one, and this is the four-language edition--we hold hearings, and members of the Cree and Naskapi communities come and make presentations. They're generally pretty well thought out and detailed. So our recommendations in this report generally reflect some of what the community has said, some analysis from ourselves, and some input from government officials and others.
We have many times made recommendations for amendments to the act, including all three times that we've been here. In 1998 we were here and recommended some changes. They were contained in the report of that year. In 2007 we again made recommendations for amendments, and today we're continuing that process.
As you know, the amendments that are currently before the House are the ones the government committed to introducing in this agreement last February, which was an out of court settlement resolving some of the outstanding issues about implementation of the James Bay and Northern Quebec Agreement, signed by Minister Strahl and the Cree leadership in February 2008.
That agreement provided that two amendments would be brought forward. One was to incorporate Ouje-Bougoumou as a band under the agreement and the act. It is not listed in the act at the moment, so technically its bylaws and such are not under the authority of the act. That's a little glitch that needed to be fixed. Naturally they need to be fully recognized in every other respect as a band within the meaning of the act.
There's really not much disagreement on the part of anyone about that. It's really both a symbolic and housekeeping amendment, and we're glad to see it.
We would note, without being unduly cynical about processes, that this has been promised for the last 19 years. Finally the amendment is here. Hallelujah!
The other amendment deals essentially with the empowerment of the Cree Regional Authority, which is the regional government of the Cree Nation of Eeyou Istchee. That empowerment again is in line with recommendations from the Cree leadership and the Cree people. We certainly have no issues with that in principle, or with any of the details in the proposed legislation, certainly not in principle.
Let me say where our concerns lie. This also reflects to some extent what the Cree leadership have told us many times. Some recommendations for changes to the act--housekeeping amendments and all sorts of things--have been recommended for 19 years. We certainly recommended them when we came before this committee, and the Cree leadership has been asking for them.
What are some examples? One that Bill Namagoose, the executive director of the Grand Council of the Crees, mentioned to me not long ago was referenda.
The act, quite properly, requires referenda in order to approve such things as land cessions. After all the Crees have been through, if they were going to give up some land, clearly there would have to be a mandate to do it from the people.
So that's appropriate. But sometimes that results in politically impossible situations. You're all public officials who've been through lots of elections and you know a lot about voters. If the Crees want to transfer a piece of land in a community to the Cree school board to build a Cree school on, they have to have a referendum. Think about it. In your communities, how many folks would come out to vote on a referendum for the municipality to transfer a piece of land to the school board? It doesn't exactly have any political sex appeal. So meeting the quorum required for that referendum is just not going to happen. I understand from the Cree leadership that there are a number of illegal schools.
So you have that kind of thing. Examples that we've mentioned at this committee include the example of the procedure for having an election. It requires nomination, and a certain number of days from nomination to election day, and so on, and the election must be held on that day, etc. Well, the kind of scenario that could unfold would be for a community to have a death in the community and postpone the election for one day, as many communities do. Technically, somebody who lost that election could go and complain that the election was unlawful. Fortunately, we haven't had a complaint of that nature just yet, but we've had some pretty close.
There are a lot of those kinds of housekeeping amendments. They're not contentious. They don't require a year of debate. They don't require an enormous amount of preparation on the part of the legislative drafting folks. They need to be done.
Our concern is that it's taken 19 years to get Ouje-Bougoumou in front of you, and we know legislative agendas are very busy. If we, the Crees, and the Naskapi go back to Indian Affairs and say, “Look, we need all these amendments,” the normal instinct of the bureaucracy will be to say, “Come on now; we can't be running to Parliament every five minutes with amendments for you. We've just been there.” So 20 years from now, we'll still be worrying about whether a school has built legally on a piece of Cree land and whether or not somebody can postpone an election for a day.
Our concern is not with what's in front of you. What's in front of you is good stuff. Our concern is that we're going to be back nagging you in a couple of years, and a few more years after that, saying, “Well, where are these other amendments?” The Crees made it known to the department that they would like to have seen some other issues brought as part of this package, and they're not here. That's our fundamental concern.
My ten minutes seem to be up. I'd like to leave some time for questions and some time for my colleagues to respond to them. As I said earlier, they're the experts.
Thank you, Mr. Chairman.
Good morning to each of you, again. It's good to have you with us. I believe I noted in some of the background materials that indeed you felt that coming to the committee was of benefit in terms of moving the yardstick somewhat. We're glad to hear that, because sometimes we ourselves get a little bit frustrated with the committee process and how the legislative process works here in the House of Commons, or in Parliament generally.
You said the Crees would like to have seen other elements included in this particular amendment. Could you outline what some of those other elements could have been?
As well, as I understand it—you can correct me if I'm wrong—in the new relationship agreement signed in 2008 there seems to be two streams. There is an amendment to the Cree-Naskapi (of Quebec) Act, outlining what you've already said, some advancement in terms of governance for the Cree Regional Authority, and the inclusion of the Ouje-Bougoumou Cree as a band. There seems to be, in the new relationship, as well, a more substantive, more involved type of negotiation to a Cree government—sort of a self-government agreement, if you want to call it that.
Is it possible that while we move with these particular amendments, other types of issues will be dealt with in that more supposedly comprehensive agreement? Are there any timelines around a self-government agreement, and when we might actually see one?
The Cree-Naskapi (of Quebec) Act was enacted by Parliament in 1984, so it has been in force for about 25 years. Since the commission began preparing its reports and hearing representations from representatives of the Cree-Naskapi local government, we've always had particular recommendations concerning the implementation of the act itself.
There have been certain problems in the administration of local government. There are problems in the implementation of the act itself. Therefore, since 1986, we have made certain recommendations to amend the Cree-Naskapi (of Quebec) Act to enhance local government, as well as local administration of the Cree-Naskapi communities. As outlined on page 8 of our presentation, over the past 25 years, we've outlined 38 ways the act can be amended to enhance Cree and local government.
As the chairman of our commission mentioned this morning, there is a bill before Parliament amending the act for the purposes of empowering the Cree Regional Authority with additional responsibilities and powers, so that it may be able to assume the responsibilities conferred, or transferred, to it as a result of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee.
We of course commend the government and the Cree for taking the journey together in a new relationship, and we also commend the government for the bill to empower the Cree Regional Authority, so that it can assume its new responsibilities and exercise certain powers.
However, the agreement itself, that is, the 2008 agreement between Canada and the Cree, does not speak about amending the act to enhance local Cree and local Naskapi governments and administration. Therefore, the bill before the House does not speak or deal with amending the act for the purposes of enhancing Cree and local government and administration.
The amendments that we recommend have been in our biannual reports since 1986. Our presentation to you this morning summarizes the findings from our biannual reports, as well as certain representations made to us and reports from certain investigations we conducted under the act.
Our chair has already mentioned the problem concerning the referendum provisions of the act in regard to the transfer of category IA lands, which are like reserve lands. They're not called reserves, but are simply called category IA lands. They're lands under federal jurisdiction, set aside for the exclusive use and benefit of the Cree and Naskapi peoples and communities.
There is one other particular priority for the Cree and the Naskapi governments and administration. It concerns certain impediments in the act. These impediments create problems for the Cree-Naskapi governments' decision-making process.
The act specifies certain quorums in order to approve certain bylaws. These bylaws could be about land zoning or band elections. So there are certain matters that the Cree and Naskapi local governments can enact certain bylaws on. These require a certain quorum by the community to be approved.
I was personally involved in the discussions and negotiations between Canada and the Cree concerning the terms and provisions of the Cree-Naskapi (of Quebec) Act. The James Bay and Northern Quebec Agreement was signed in 1975. It took nine years of discussions between the Cree and Naskapi to finally agree upon the terms and provisions of the Cree-Naskapi (of Quebec) Act.
When we were discussing the terms and provisions of the act itself, the population of the Cree communities as a whole was about 6,000 people. Today we number about 16,000. The quorums that are discussed, that are specified in the act, were adequate for the people back in 1974-75 days. The communities were small. There were small populations of people, so it was easy to achieve the quorums provided for in the act. But now with communities that are somewhere over 3,000 people, it gets very hard to achieve the quorum provisions of the act.
There's one area, in addition to the comments made by our chair, in which we feel the act should be amended. There should be amendments regarding the quorum provisions in the act. We had recommended that these quorum provisions be under the authority of the local government to establish for matters that affect our communities.
Thank you.
:
My colleagues may want to comment also, but I think it's a fact that this agreement, the new relationship agreement, was in fact an out-of-court settlement. It got rid of a lot of litigation that had been hanging around that was annoying to everybody involved. That's a good thing--working together, collaborating and so on, and not letting judges sort it all out. That's the way to go.
It dealt with the two items we mentioned, which is taking care of Ouje-Bougoumou and providing some enhanced powers for the Cree regional government. That's an appropriate thing. But most of these other concerns and recommendations about quorums, and all of those things that have come up over the years, have been issues that have come from individual communities. They may be similar in all the communities, but they've come from the communities. Addressing them is addressing the issues of local government.
A local council has to wrestle with nonsense, like when you can't get a quorum out to vote on the transfer of this piece of land to the school board. Well, you know, that stuff needs fixing.
We're happy this has happened. This is great. And the amendments that flow from this, they're great too. No question about that. We're not complaining about that at all. We're just saying that there's some other stuff to be done. We're concerned that we may be waiting as long for that to get done as we waited for this to get done. We don't want to wait that long. We don't want to have those problems dragging on and on. We don't want to come back here every couple of years on the same old stuff.
Philip, Robert, do you want to add to that?
In order for the land transfer to Ouje-Bougoumou to take effect, certain amendments to the James Bay and Northern Quebec Agreement are required, amendments for lands to be set aside as category I and category II for the benefit of the Ouje-Bougoumou. Some type of amendment is required in the James Bay and Northern Quebec Agreement.
The agreement as a whole has to be amended in order to bring the Ouje-Bougoumou Cree as a party into the James Bay and Northern Quebec Agreement. Back in 1975 they were not a band, so they did not sign the James Bay and Northern Quebec Agreement. Most, if not all, of the Ouje-Bougoumou members were transferred by Indian Affairs to the Mistissini Band before 1975. When the James Bay and Northern Quebec Agreement was signed in 1975, the Ouje-Bougoumou people were members of the Mistissini Band. Their chief signed the James Bay and Northern Quebec Agreement. So technically the Ouje-Bougoumou Cree were not recognized as a separate entity and therefore were not officially a party to the James Bay and Northern Quebec Agreement.
The next step, of course, is to bring them into the agreement. That will require amendments to the agreement so that they can have their category I and II lands.
I think the act itself refers to this particular issue. The act contemplates agreements to be made between Canada, Quebec, and the Cree respecting the lands to be set aside for the use and benefit of the Ouje-Bougoumou Cree.
Commissioner Awashish will comment, but just quickly, I would mention that when we have representations--or complaints, under the act--brought to us by individuals and communities and so on, we whip out a copy of the Cree-Naskapi (of Quebec) Act and say, “Well, it says this and this and this.” One of the comments we get, and we've had it a number of times, is, “That's not the way we do things around here.” And the same is true for bylaws made under the act.
The first reaction of someone from southern Canada.... Let's say I held an act out in front of one of my MPPs, or my MLAs, or one of you guys, and I said, “How come this is not happening?” If you replied, “That's not how we do things”, I'd be pretty mad. I'd say, “But that's how you should be doing them. It's the law.”
But we're in a different context here. We're in a situation where the Cree and the Naskapi have had traditional and customary law for thousands of years. The Cree-Naskapi (of Quebec) Act and the bylaws made under it are supposed to be a way to give legal effect, in the Canadian legal system, to making community decisions that are approved by the community and are within the powers of the community.
If you look at the election sections of the act, most communities have made an election bylaw. When we began to look at them--because a lot of disputes are about elections--we saw that one day, along came the Cree-Naskapi (of Quebec) Act, and it was, “Oh, we have to have an election bylaw.”
It was fairly obvious that some lawyer from southern Canada--with all due respect--opened up the briefcase, said, “Aha! An election bylaw”, changed a few names and a few things in a few places, and there it was, there was the template.
There's nothing wrong with that. It had to be done. But the reality is that things operate a little differently in the community. It's not that there's any moral violation of the law, it's just that the technicalities are more consistent with traditional and customary law, such as postponing an election for a day if an elder dies. That's not permitted in the act. That's an example anybody can follow, but there are a lot of other similar things.
One of the things we've been pushing at for years is the need to make the law accommodate and empower the Cree way of doing things, while still being consistent with the charter and so on, to make it a tool for the communities to use, so that when the community decides to do something, then it's a legitimate decision. There's legislative capacity to give that effect and to protect it from attack from people who want to argue that the election was a day late and therefore invalid.
I think the problem very frequently is that the act doesn't sufficiently empower the communities. With all due respect, it's a great improvement over the Indian Act, but it suffers from some of the same straitjacket effect that the Indian Act has always imposed.
That's inevitable. It was written, yes, with negotiation, but it was ultimately written by people who have written for years such things as the Indian Act. There's a need to break out of that box, to make sure that traditional and customary law, to the extent possible....
We all recognize the charter, the Criminal Code, and the other instruments that we all respect and share. But within those contexts, there's a need to make this act a tool of empowerment for the Cree community so that they can get on with doing things.
I'm sorry I took a little long, Mr. Chair.
On the question of traditional law, being a Cree person myself--we call ourselves Eeyou--we are not, of course, a lawless society. We have our own laws that are enunciated through our traditions, customs, and practices. We do have our laws for elections and for other matters in the Cree community.
These traditional laws, as I like to call them, often conflict with the contemporary law, such as the Cree-Naskapi (of Quebec) Act, so there is obviously a need to amend the act to ensure conformity with traditional law, customs, and practices.
The Cree tend to view a law, at least within our own traditions, as a tool rather than a set of rules. It's a tool to facilitate decision-making processes, as well as facilitate local governments and also the Cree hunters and trappers in the north.
There are ways, of course, to enhance local government. I believe the Royal Commission on Aboriginal Peoples stated that there are three basic elements for effective local governments. One is legitimacy, the other one is resources, and the third one is powers.
On resources, there has been ongoing and still continuing discussions between the Cree and the local government authorities on financial resources, financing or funding of local governments. There are agreements that run every five years that have to be renewed every five years. Recently, this has been acceptable to the Cree. There were initially a lot of problems and issues arising in our reports concerning the funding of local governments. However, there is a new relationship between the Cree and Canada, so there are ongoing discussions to resolve matters concerning local governments, insofar as funding is concerned.
:
You raised a couple of points. First of all, the concern we brought up relates directly to what you're saying. There are a couple of phases. There are the amendments that are before the House now, and then there's a second, as you say, series of discussions established by the agreement to discuss governance and a Cree constitution and things of that sort. A great many issues, hopefully, will be covered there and addressed.
Our concern isn't with those extra things. Our concern is with the housekeeping issues that have been kicking around for twenty-odd years and the fact that they're not dealt with now. They're non-contentious. They're pretty straightforward. Nobody's arguing about them. They could have been included in the package and we could have moved on and looked at future things.
Our concern is that they're going to have to wait until there's a full set of negotiations on governance issues in the broader and long-term sense. They may not be before this committee and the House for some time. We all know how long these negotiations frequently take.
Our concern is that these non-contentious housekeeping things are going to keep on festering until there's broad agreement on much longer-term issues, and that may take some time. We're not upset and angry. We're just a bit disappointed. We really would like to have seen those housekeeping things in front of you now so they could be addressed.
Are other aboriginal groups impacted? I would say no, not directly. The Inuit of Fort George, for example, as they're referred to in the agreement, have their issues addressed. They reside in Robert's community, and the issues that they have are addressed, or will be addressed. We haven't had any representations from anybody else who is raising concerns. I'm sure that we'll hear about it if there are concerns, but we haven't heard any yet.
:
The Cree-Canada liaison committee was established to discuss any outstanding issues resulting from the implementation of the James Bay and Northern Quebec Agreement and from the implementation of the new agreement between the Cree and Canada concerning a new relationship.
This is a form of a dispute resolution mechanism. It was created mainly as a means of preventing further litigation. The parties agreed, to the extent that they possibly could, to try to resolve any disputes at that level.
The agreement is a new one. It's fairly recent. It was signed in 2008. There haven't yet been, to my knowledge, any outstanding issues arising from the new agreement.
But there are outstanding issues arising from the original James Bay and Northern Quebec Agreement. One, of course, is the Ouje-Bougoumou land transfer issue. It's something that will have to be discussed, because it requires, as I said, an amendment to the original James Bay and Northern Quebec Agreement.
:
Yes. A number of them have been in our reports over a number of years. They remain there.
As we've mentioned, they do deal with things such as quorums. The quorum issue is one of the most complicated. There are different quorums required for different types of approval of different decision-making processes of the bands. Some of the quorums are very high, some of them should be. Some of them are moderately high, and you don't need a referendum at all. Some are somewhere in between. Those things need adjustment.
Things like the ability of an individual first nation to make a bylaw dealing with questions around elections are a little broader. The election bylaw process, incidentally, is the only bylaw-making process under the Cree-Naskapi (of Quebec) Act that requires departmental approval. As you know, under the Indian Act, all bylaws are subject to a review by the department and ultimately could be disallowed by the as an administrative decision.
Under the Cree-Naskapi (of Quebec) Act, there's only one kind of bylaw, and that's the election bylaw. That's one in which we have all these little problems.
So there are things around that. There are a number of others here, but the non-contentious issues have been brought up over and over again. They've been raised in our reports. The Cree leadership has raised them on a number of occasions.
We have a publication listing the amendments we've proposed, having pulled them together from all of our reports. We could provide that to you. If you'd like to follow through on that, we'd be pleased to do so.
:
From time to time, there are political issues in communities, as you can imagine. There are questions from time to time about whether someone has acted appropriately in making a decision, whether the process followed was proper. Those frequently come to us.
In looking for guidance on how to resolve those matters and what sort of recommendations to make, we take into account the Cree-Naskapi (of Quebec) Act, obviously. We take into account, if it's relevant, the agreement. We take into account traditional customary law. It isn't always easy to reconcile all of those things.
One of the issues is what is a matter of ethics and what is a matter of political judgment? If a government of any political stripe makes a decision, I can get up and yell about it and say that I don't agree, and it's unethical, and it's wrong, and blah, blah, blah. If there's a code of ethics, it's helpful, because then we can separate things that really are unethical according to what's in front of us, accepted standards, and things that are just not agreed with politically. There's a big difference, as you very well know.
That's the kind of thing I think we need to get at: what are the ethical standards the community expects to see from their leadership and their employees, and so on? It helps if that's written down, because then there are fewer arguments about it later.
:
My colleagues may want to say something about that, so again I'll try to be very quick.
It seems to me that the next steps are fine. It's the parties getting together and agreeing on an agenda, and starting to negotiate the main elements.
There's one thing that the Crees have raised with me that they're concerned about. Frequently, when you get the federal government, the provincial government, and the first nations together, they don't want to move on anything until there's tripartite agreement. They're concerned there may be issues that are within federal jurisdiction, that the feds and the Cree agree upon. They're concerned the feds may not want to move until the province is on board. Conversely, when there's something that's within provincial jurisdiction, generally speaking, that the Cree and the province agree on, if the feds are not nodding, is it going to happen?
They want to be able to assure themselves that some bilateral progress can be made, even when trilateral endorsement isn't there.
:
The commission was created by the Cree-Naskapi (of Quebec) Act itself. The way it works is there's a Governor in Council appointment of commissioners based upon recommendations from the Cree Regional Authority and the Naskapi band. So there's a two-step process: recommendation by the aboriginal leadership and appointment by order in council.
The functions of the commission are spelled out in the act, but basically there are two fundamental functions.
One function is we hear what the act calls “representations”, which means complaints, by anybody that someone is not carrying out their responsibilities under the act, or not doing things they should be doing, or they're doing things they shouldn't be doing, according to the act.
By extension, because the act empowers bands, in paragraph 21(j), to act under their powers that are recognized in the agreements.... There was a debate between Indian Affairs and us about whether we look at issues arising out of the agreements. Indian Affairs is in agreement, now, that we do.
So we hear complaints. We are required, where there's a valid complaint, to investigate it and to report on our findings and recommendations to the individuals, to the band, and to the minister, and we do that. The amendments will also require us to report to the Cree Regional Authority where they're impacted or affected.
So that's one function. The other big function is that we make a report in four languages to Parliament, to the minister, who tables it in Parliament every two years.
Those are the two functions derived from the Cree-Naskapi (of Quebec) Act.
:
You know, we have run into difficulties in terms of recommendations with Liberals and Conservatives. We have had good support at other times from Liberals and Conservatives. I think the constant in all of this is not the political stripe of the government of the day, with all due respect. I think our problem essentially has not been with ministers.
We have had a lot of situations, to be blunt about it, where a minister has said to us that something specific will be done when we've sat down and met with the minister, and it didn't happen. We frequently had that confirmed in writing more than once.
What we found was way back in 1986 the bureaucracy did not frequently fully agree with the minister. We've observed before that in the 20-year period, there were eleven ministers. And if you have a big department like Indian Affairs and Northern Development, it takes a minister a long time to get a good grip on the issues, the programs, all the first nation partners, to fully get into the bureaucracy and make it work.
I've been a bureaucrat. There's an attitude among some public officials that they've been there a long time, they know how to do things, they've heard all this before. It's, “Yes, Minister; yes, Minister”--as the British comedy says--and then the minister goes away.
If you're a public servant and you do not do what you're supposed to do with money, there's hell to pay, and so there should be. There's the Financial Administration Act, there's the public accounts committee, there's the Auditor General. If you fool around with money, you're going to get caught. But if you mess with policy, quite frankly, you're going to get away with it a lot of the time, because there are not appropriate accountability mechanisms for follow-up on decisions that Parliament makes, that cabinet makes, and that ministers make.
If you're a public servant, quite frankly, you're more likely to get away with not following instructions from the government than if you're dealing with money.
:
I think we recognize that inadequate housing--inadequate either in number or in quality--is an issue in most aboriginal communities across Canada. The population increase in aboriginal communities across Canada is much greater than in non-aboriginal communities.
In the case of the Crees, there is a central argument they keep bringing forward. They didn't bring it this year, but they brought it in the previous report, and it's still true. The argument is that their particular population growth is greater than others across the country.
The way the department determines how many housing units you qualify for is based on a regional formula, the region meaning the region of Quebec in this case. In most aboriginal communities, although the population growth is very high, there's an outflow of folks looking for employment and other things in the cities and the towns, and they're leaving in significant numbers. Although the population in most reserves is going up, it's ameliorated somewhat by an outflow of folks leaving the community, mostly for employment reasons. The Crees, however, have a 95% retention rate for their young people--95%--so the very success of those communities, economically and educationally and otherwise, is part of the pressure that has created an increased population growth.
The Crees look at the regional formulas developed for Quebec and say, “That's great, but it isn't adequate to deal with our issues to the extent that it's adequate to deal with others”. Others will say it's not adequate for them, either, and they're right, but it's even less adequate for the Crees for that reason.
:
I just want to ask a couple of questions about process.
First of all, I'm glad you're going to give us a list of the minor amendments in a package.
In following up on Todd's giving notice to the government, I think it would be good that we accede to your request and try to get these on the agenda within the next year. If it came from the government, it would be win-win for everybody, but I'm sure you'll have the support of all the opposition parties to bring these forward quickly to try to deal with them.
Given your experience, I want to talk about generalities and process a bit. You raised a very good point. This department is a huge department. It has thousands of staff and hundreds if not thousands of issues, so it's impossible or very hard to get everything done.
I wonder whether you have any suggestions. Some of the areas that have been problematic, for instance, are implementation of land claims; modification of agreements, obviously, which you're talking about here; making the workload more realistic. I understand what you're saying about the gap between the bureaucracy and the politicians; that's another issue for all departments.
In this particular department, if we, for instance, hived off northern affairs to focus the minister more on aboriginal issues, and if we had a separate organization related to land claim implementation, would that also take some pressure off the minister to give a more realistic workload and move some of these files forward faster, sooner than 19 years?
:
We talked a little bit about that before, some years ago. There have been recommendations from all kinds of sources—the Ipperwash commission and so on—dealing with land claims.
The central problem around the land claims business is that a standard government department is part of the Political Science 101 definition of government. You make decisions. Where there are differences of opinion, somebody has the authority ultimately to make a decision. Governments are elected. They have a mandate to make decisions—within the law, certainly—and if you don't like it, you can vote for the other guy, you can write a letter to the editor, you can protest on Parliament Hill, you can do all kinds of things. But it's a legitimate function of government, in general, to make decisions within the law about contentious matters. We all know that, and that's fine.
Indian Affairs is a government department that does that. They may decide that times are tough and that the housing budget is going down a little, and people may not like it. Fine, there are all those ways to address it--come here and give you guys trouble.
When it comes to a treaty that has a treaty land entitlement, or to an aboriginal and treaty right, or to the implementation of the James Bay and Northern Quebec Agreement, those are not suitable things for making discretionary decisions. The Supreme Court has said that treaties and land claims agreements create enforceable obligations. Carrying out your duties under a contract is a different matter. It requires a different mindset from that used when exercising discretion on behalf of an elected government with a mandate to make discretionary decisions.
It seems to me that dealing with the treaties, dealing with land claims agreements—those kinds of issues—could be handled by a bureaucracy, accountable obviously to elected people but nonetheless separate, whose mindset was not administering discretionary programs but carrying out obligations--carrying them out properly, but carrying them out. It's a different thing.
The land claims are based upon claims of aboriginal title, or treaty land entitlement, or aboriginal rights more generally to use traditional territory. They're not based on thinking that unemployment insurance rates should go up, or that the benefits should be adjusted up or down, or those kinds of tough political decision that are legitimately within the discretion of government to make. They are things you can go to court to fight about and win.
:
What we need here is clarity. We haven't uncovered any terrible goings-on that need to be addressed. What we have discovered, though, is that there isn't clarity. If you have a responsibility, you need to know what it is exactly. You need to have some guidelines.
For example—we've had a representation that led us to consider this—suppose there's a big issue confronting a community and the chief asks how the people feel and says, let's have a referendum; what's your position on this issue? They say they want him to put a stop to that resource development.
So then the chief says, I think I have a mandate to address this. He meets with some other chiefs. Together they hire a public relations firm to oppose the resource development. Then they sign a contract...without names, this is true.
Later, somebody tells them to wait a minute, because they don't have a BCR saying they could do that. Well, the chief says, there isn't a bylaw saying I should have one, and I have a mandate from the people. Surely I can spend a few bucks fighting this development that they oppose.
It's either, no, you can't, or, yes, you can. Let's be clear on it. If you must have a BCR or a bylaw in order to spend band funds, let's say so. If a referendum will do, let's say so. I think we need clarity.
Accountability to the funding agencies is pretty clear. Accountability to the community members may not be so clear. This is not to say we think anybody is doing anything wrong; it's to say we need some clarity.
Do either of you guys want to add to this, or is that okay?
I hope that answers your question.
:
It's a broader justice, including the policing. The issues tend to be things like a need for appropriate drafting of bylaws in the first place, with the necessary expertise to make sure the bylaw is worded in a way that it will stand up in court and can be enforced.
Secondly, there's a need, where there's a bylaw infraction, to actually have a policing ability including jurisdiction, for example, on the access roads just outside the category IA land. So there are some jurisdictional policing issues.
There's a need for appropriate prosecution of offences and the expense that's involved in that. There has been the need, over the years, for the availability and accessibility of a court system that's adequate to the job of working in a remote area. If you're in a remote part of Canada, I think we're all aware that sometimes justice is a little delayed because of accessibility.
Those continue to be issues with the Cree. There has been a lot of comment on that over the years, but the problems continue to be in that area. Also, if you have a small community, the number of police officers you need to do enforcement is a little higher per capita, because of the need for 24-hour coverage and things of that sort, than it would be in a larger community, which on some quota basis would be entitled to a greater number of police officers.
The details of each of these things have been part of our reports for a number of years. But there's a cluster of those justice issues.
I just want to point out to members, since the issue was raised, that in consideration of the rules in respect to amendments that quite possibly could come to a committee before second reading, any such amendments still have to be relevant to the act that's been tabled. That's point one.
Two, when committees consider that type of business prior to second reading debate, committees are afforded much broader scope in terms of what could be. For example, if those considerations came after second reading, amendments could only be considered within the scope of the bill that's already received approval or consent of the House at second reading. I just want to point that out to members so that they understand the distinction.
Finally, on that same point, of course only the House can in fact refer a bill to committee prior to second reading. So that has to be done essentially with the consent of the House.
I say all that just so that this is understood and in context. It's good reading in Marleau and Montpetit, if you want to take a look at it.
Mr. Bélanger.