AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, December 3, 1998.

• 0917

[Translation]

The Chairman (Mr. Guy St-Julien (Abitibi—James Bay—Nunavik, Lib.)): Today, Thursday, December 3, 1998, our committee is considering Bill C-49, an Act providing for the ratification and the bringing into effect of the Framework Agreement on First Nation Land Management.

The order of reference, from the Journals of the House of Commons for Tuesday, December 1, 1998, is as follows:

Ordered,—That Bill C-49, an Act providing for the ratification and the bringing into effect of the Framework Agreement on First Nation Land Management, be now read a second time and referred to the Standing Committee on Aboriginal Affairs and Northern Development.

Pursuant to Standing Order 75(1), the preamble and clause 1 stand.

I would first like to thank our witnesses who have come from the West to express their views on Bill C-49. Welcome to the committee.

Our first witness is Mr. Kerry Kipping, Acting Director General, Lands and Environment Branch, Department of Indian and Northern Affairs. He is accompanied by Ms. Geneviève Thériault, Legal Counsel, Lands Trust and Departmental Services, and by Mr. Leroy Paul, Policy Advisor, Land Management Policy—Planning.

Mr. David Iftody, you have a point of order?

[English]

Mr. David Iftody (Provencher, Lib.): I have a point of order, Mr. Chairman. May I ask that the statements presented by the witnesses for the department be read into the record?

Mr. Peter Adams (Peterborough, Lib.): If it's necessary, I'll be glad to second that.

[Translation]

The Chairman: Do you agree? Yes, thank you.

[English]

First is a letter from the Snake Island Cottagers' Association, 45 Bowden Street, Toronto, Ontario, dated December 2, 1998:

Dear Sir:

As president of the Snake Island Cottagers' Association (SICA), I urge you on behalf of our members to expedite the second reading of Bill C-49. This, as you know, will eventually result in self-government for several Indian Bands, especially the Chippewas of Georgina, from whom we lease cottage lots on Snake Island. Our current 25-year leases expire as of April 1999. We (SICA) strongly support the Chippewa Bands' quest for self-government and feel that the passage of Bill C-49 will facilitate a new leasing arrangement between our members and the Band. More importantly, it will recognize the sovereignty of the Band over their lives and lands.

Thank you for your consideration,

Mike Sanderson, President.

Next is a letter from The Kirkland Partnership Inc., dated December 1, 1998:

Dear Mr. St. Julien:

I am writing in support of Bill C-49 and the formal assumption of Snake Island Administration by the Chippewas of Georgina Island. I believe our cottage association has previously written on our behalf.

Aside from the historical restitution that Bill C-49 connotes, the Bill, in the case of Snake Island, ends a period of perhaps overly paternal management by the federal government of the island. All evidence is that the Band is fully capable of fair and competent administration of Snake Island, given my observation over the 9 years I have been there, and particularly during the last 3 years as a run-up to formal transference of responsibility.

I urge support of Bill C-49 and look forward to an ongoing relationship with the Chippewas.

Yours sincerely,

J. Michael Kirkland

Architect and Professor of Architecture.

[Translation]

Mr. Kipping.

Mr. Kerry Kipping (Acting Director General, Lands and Environment Branch, Department of Indian Affairs and Northern Development): Thank you, sir.

[English]

I would like to thank the committee for the opportunity to be here today to provide a few remarks with regard to Bill C-49, the First Nations Land Management Act.

As the chairman has indicated, I have three of my colleagues with me. They are Diana Parson, from our legislative branch, who will be helping us with some of the presentation this morning; Geneviève Thériault, a legal adviser on the process; and Mr. Leroy Paul.

This morning we would like to give just a very brief presentation to the committee on the overall terms and conditions of the First Nations Land Management Act. We would like to highlight some of the key points by way of an overhead presentation. I will be very brief in my comments, and I will leave a maximum amount of time for comments and questions afterwards. So if you wish, I will start immediately with that.

• 0920

The overall purpose of the bill is to provide an alternative land management regime for the 14 first nations that signed the framework agreement on February 12, 1996. The framework agreement and this legislation remove those 14 first nations from the land management sections of the Indian Act, and as a result reduces the day-to-day management and involvement of the department and the minister in their affairs and maximizes the amount of first nations' involvement in the management of their lands and resources.

By way of a few key points, this is very much a first nations' initiative. This process was started by them, it has been moved forward by them, and it is supported by them. In partnership with the federal government, it has reached the point where today we are in committee looking at the First Nations Land Management Act and hopefully moving forward to the enactment of this bill and to allowing the first nations to get on with implementing the management provisions of the act.

This act and the framework agreement are not a treaty and do not receive constitutional protection. It is considered a delegated model of self-government, which transfers the jurisdiction from under the Indian Act to the first nations on the aspects of land management. In brief, the title to the land remains in Canada. There is no transfer of title. There is no simple transfer of land to the first nations under this process. The land remains within the legislative framework of Canada. In general, the framework agreement and the legislation apply to existing reserve lands or to those lands that the parties may agree will become reserve lands in the future.

The bill itself, as I indicated earlier on, was started by the 14 first nations. In consultation with the first nations and with their cooperation and partnership, we have agreed that at some point in the future the act would be opened up to additional first nations. That would happen following a review of the bill by our Department of Justice in order to incorporate any bijuralism conditions that had to be done to the bill to make it applicable in both civil and common law. Following that, the minister will approach the Governor in Council for an order to allow additional first nations to come in.

The bill itself is very much an accountability bill. This bill provides these first nations with the ability and the powers and authorities to be extremely accountable to their membership. Under the bill and the framework agreement, a land code is established. The land code sets out, among other things, the accountability of the first nations councils to their members and the enactment and publication of laws to ensure that there's a transparency of actions going on in the communities. It addresses aspects of conflict of interest and also establishes a forum for dispute resolution. As I say, this is an extremely accountable and open process within those communities. The land codes themselves must be ratified by all eligible voters of the community, both those who live on reserve and those who live off reserve.

For those members of the committee who are not familiar with the Indian Act, outside of a land claim, this is a first in terms of a piece of legislation and a framework agreement for the first nations providing for on- and off-reserve voting by members on any decisions of the chief and council. As I say, this is a very open and transparent process.

A majority of the voters must participate in any vote regarding the land code, and a very high threshold has been established by these communities in terms of a level of support. They have established the level of 25% of all eligible voters who must approve of the land code. By way of example, I would indicate that if there were 1,000 eligible voters in the community, a minimum of 250 of those members must vote to approve the land code.

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The vote itself is supervised by an independent verifier who is appointed both by the minister and by the first nations themselves and who is responsible for reporting back to both the minister and the individual first nations on any irregularities regarding that vote. So again, this is a very open and transparent process.

I would now like to turn over the discussion to my colleague, Ms. Thériault, who will continue the presentation en français.

[Translation]

Ms. Geneviève Thériault (Legal Counsel, Land, Trust and Departmental Services, Department of Justice): I can see that some members are trying to figure out where we are in our brief. The brief that we handed out is more complete than our presentation, which we decided to shorten so that there would be more time for questions.

Federal and provincial legislation and First Nations statutes will have to adhere to certain principles under this new regime: federal legislation, section 88 of the Indian Act and provincial legislation will all continue to apply.

Clause 37 of the bill sets out the basic rules for this bill and other federal legislation. The clause should not be read alone, but in conjunction with the other clauses of the bill that deal specifically with how the various pieces of legislation relate to each other. For example, in the area of the environment, the aspects of expropriation and resource administration are governed by specific rules found in various places throughout the bill.

With respect to trusteeship, the special relationship that exists at present between the Crown and the First Nations will continue, except that the trust obligations that may arise out of this relationship will diminish because the First nation will henceforth administer the lands, resources and funds.

The bill specifically describes the responsibility of the Crown and the First Nations before and after adoption of the land code.

The issue of division of matrimonial assets is complex because of the constitutional jurisdictions of the federal and provincial governments. The issue is complicated further by the fact that the intention behind reserves is that they are set aside for the use and benefit of the members of the bands for which they are intended.

The subject had to be considered by the Supreme Court in 1986, in Derrickson vs Derrickson. At present, according to the principles used on reserves, provincial legislation on the division of matrimonial assets is applicable, except with respect to the division of interests directly tied to reserve lands. However, the courts have found ways of offering compensation when the assets cannot be divided. The final result is that the spouses end up with a fair division of assets, but they do not use a court order to transfer the family home or any other interest related to reserve land. The First Nations intend to examine this issue of matrimonial assets under the new regime. The framework agreement and the bill call for a community process to be put in place to develop the rules for division of matrimonial assets. If the rules are not established by the deadline indicated in the bill, the government and the First Nations could submit the issue to arbitration. The rules as such can be tested using the alternate dispute resolution mechanisms that will be put in place by the First Nations or directly in a competent court.

Where the Indian Act is concerned, the Minister of Indian Affairs announced in June that a process to examine that issue was being set up. Discussions with certain Aboriginal organizations are underway.

That is the end of our presentation.

The Chairman: Mr. Kipping.

[English]

Mr. Kerry Kipping: Mr. Chairman, that is the end of our very brief presentation. We are now prepared to answer any questions the committee may have or provide any clarification that you require.

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[Translation]

The Chairman: Thank you.

Before we go to questions, I would like to mention that at about 10:05, the bell will ring and we will be called to the House to vote on Bill C-43, an Act to establish the Canada Customs and Revenue Agency and to amend and reappeal others Acts as a consequence. The vote is scheduled for 10:35 and we will adjourn at 10:20 precisely. It is also possible that we may be called to the House to vote this afternoon.

Mr. Konrad.

[English]

Mr. Derrek Konrad (Prince Albert, Ref.): I want to thank you for your presentation and ask the question quickly, because our time is very limited.

Is there a requirement for the bands to consult with local municipalities, or is it just in their best interests when developing a land code to speak to them, particularly when it comes to leases or joint ventures? For instance, if you have a road passing through, or something like that, are the reserve's costs of construction and maintenance, these types of things, included in the agreement on a consultation-type basis, or are these things set by the band with no consultation with surrounding municipalities?

Mr. Kerry Kipping: In response to your question, the bill itself and the framework agreement do not mandate any consultation. However, the first nations themselves have been very proactive in consulting with their surrounding municipalities—with the Union of British Columbia Municipalities, for example. We have had a number of meetings with provincial governments, both Canada and the first nations, to bring the provinces and their utility companies, such as Saskatchewan Telephone, B.C. Tel, B.C. Rail, etc., up to speed on where we are.

The first nations themselves have individually met with surrounding municipalities. I can use Westbank as an example, if I might, who have a very good working relationship with the surrounding municipality, with the Okanagan district. It's a business relationship and an intergovernmental relationship that the first nations and their surrounding municipalities or interests would develop through this process. There is nothing mandatory in the bill.

That's a long answer to a short question. Sorry.

Mr. Derrek Konrad: I have one other question. It was pointed out that the threshold is extraordinarily high, at 25% approval, which means you have to have at least 50% of the people participating in the vote. Is that really considered a very high threshold?

Mr. Kerry Kipping: I would argue that based on electoral results, both in Canada provincially and municipally, and in other first nations' elections, that is a very high threshold. Generally, you get somewhere between 25% and 30% of the membership out voting. I believe this raises the threshold quite considerably over the normal electoral processes that go on.

Mr. Derrek Konrad: Is there a provision at all for raising that bar in the future as people become more accustomed to exercising their democratic right?

Mr. Kerry Kipping: That would be open to the first nations to do, along with Canada, if they so wished, yes. There is nothing in the bill or the framework agreement to do that at this time, no.

Mr. Derrek Konrad: Do I have any time left?

[Translation]

The Chairman: Yes, Mr. Konrad.

[English]

Mr. Derrek Konrad: May my colleague ask a question?

[Translation]

The Chairman: Yes.

[English]

Mr. Derrek Konrad: He represents an area of Canada that has some difficulties.

Mr. Ted White (North Vancouver, Ref.): Mr. Kipping, you've indicated that the bands have had discussions with the municipalities, but that's not the message I've received from municipalities in my area. In fact they were even unaware of the bill until November 11 in the district of North Vancouver. In addition, I'm only aware of one meeting with the Union of British Columbia Municipalities. That took place on November 13, and all that was decided upon was to have a framework for discussion for setting up some principles for consultation. So there really isn't anything in place at all to guarantee there's going to be any consultation with surrounding municipalities whatsoever.

Mr. Kerry Kipping: I agree there's nothing to guarantee. However, as you say, on November 13 there was a meeting of the first nations land management team, Canada, and the Union of British Columbia Municipalities. But I believe we've met with the Union of British Columbia Municipalities on four other occasions. We have met with the Province of British Columbia at least six times in the last year and a half to two years.

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I believe there have been some discussions— I can't speak on behalf of the first nations, because I'm not aware of any discussions they had, but I am aware that there are ongoing negotiations with the Union of British Columbia Municipalities to secure a protocol or an arrangement between the first nations and those municipalities to talk and open the lines of communication and to put into place in a more formal way a consultation process on day-to-day activities.

Mr. Ted White: I see. Would you have thought, in retrospect, that it might have been better to build into the bills a provision that there be some sort of consultation and approval of the land code before a band got added to the schedule?

Mr. Kerry Kipping: The short answer is no. I believe those kinds of relationships are up to the first nations to make between themselves and the municipalities. As a personal interest, I don't feel that it's necessary to legislate those kinds of relationships.

Mr. Ted White: Thank you.

[Translation]

The Chairman: Thank you. Mr. Finlay.

[English]

Mr. John Finlay (Oxford, Lib.): Thank you, Mr. Chairman.

I want to be brief. I don't want to be picky, but I picked up on something. The question I was going to ask had to do with voting, partly because we've had lots of talk about voting in the last year and half. I've got to understand this. My handout says that a majority of voters must participate in the vote. So if there are 400 members in a small first nation—I may be low but say this is so just for an example—then 201 have to vote. Am I right?

Mr. Kerry Kipping: No, that would be the majority of the eligible voters in the community. If you have a membership of 400, a smaller percentage of those people would be considered eligible voters. It means those persons over the age of 18 who are members of the band. It spells out the voter rights and privileges in the bill.

Ms. Geneviève Thériault: Maybe I can jump in here.

What the bill is asking for, as well as the framework agreement, is that a majority of those who vote must vote in favour. Underneath that, there's a threshold of 25% of all the eligible voters who must vote. So you've got two things to take into account.

Mr. John Finlay: There are some voters who vote but who aren't eligible. Is that what you're telling me?

Ms. Geneviève Thériault: No.

Mr. John Finlay: A majority of eligible voters must participate in the vote.

Mr. Kerry Kipping: That's correct.

Mr. John Finlay: If there are 400 eligible voters, then 201 must vote.

Mr. Kerry Kipping: That's correct.

Mr. John Finlay: Yet you say that 25% of eligible voters must approve the land code. So 25% would be 100.

Mr. Kerry Kipping: That's correct.

Mr. John Finlay: But 201 must vote.

Mr. Kerry Kipping: That's correct.

Mr. John Finlay: Then 25% plus one of the eligible voters must approve the land code.

Mr. Kerry Kipping: Yes.

Mr. John Finlay: I'm sorry, but you know—

Mr. Kerry Kipping: I understand your point.

Mr. John Finlay: We're not dealing with thousands and thousands of people sometimes here.

Mr. Kerry Kipping: No, we're not. We're dealing with very small—

Mr. John Finlay: So we should understand what we've done. We already made a mistake, we think, with respect to another act we're going to deal with on this business of voting. So I want to have it very clear.

So I'm right that if there are 400 eligible voters, 201 must vote, and 101 must vote for it.

Mr. Kerry Kipping: What we're saying, sir, is that a minimum of 25% of all eligible voters must approve the bill. Now that could be more than 25%, but it would have to be a minimum of 25%. It can be no less than that in favour of the land code.

Mr. John Finlay: I quite agree, but if only 200 voted, that wouldn't be a majority. Therefore, it would be 25% if 100 voted for it and 100 voted against it. So how do you break that?

Mr. Kerry Kipping: It says it should be a majority of the voters. I would assume that means that more than 25% would have to vote in favour to break any tie that would be there.

Mr. John Finlay: I agree.

Mr. Kerry Kipping: Yes.

[Translation]

The Chairman: Thank you.

Before giving the floor to Mr. Bachand, I would like you to indicate how many residents and non-residents there are.

Ms Geneviève Thériault: For each of the 14 First Nations?

The Chairman: An approximate total or percentage.

[English]

Mr. Kerry Kipping: I don't have those figures at hand. We could get them at some point in time during the day, but I would think that the first nations themselves could probably better answer that question in terms of their on-reserve and off-reserve membership.

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[Translation]

The Chairman: Thank you. Your department will be able to provide those figures later.

Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): If I understand correctly, members living on reserves and off-reserve will all have the right to vote.

[English]

Mr. Kerry Kipping: The bill and the framework agreement stipulate that both on- and off-reserve members may vote.

[Translation]

Mr. Claude Bachand: All right. My next question deals with the powers transferred to the First Nations in the area of property. Am I right in thinking that fishing, migratory birds, oil and gas, uranium and radioactive minerals are not included in property title?

Ms Geneviève Thériault: Yes.

Mr. Claude Bachand: Why have they been excluded?

[English]

Mr. Kerry Kipping: Yes, they have been excluded.

[Translation]

Mr. Claude Bachand: Why?

[English]

Mr. Kerry Kipping: In the case of the bill, it relates entirely to the management of land. It does not deal with waters. In the case of uranium, we have indicated that the Atomic Energy Control Act must prevail when they're dealing with nuclear substances, including uranium.

In terms of migratory birds, we've excluded that issue. It's an international covenant. We are not going to get involved in moving that process forward.

[Translation]

Mr. Claude Bachand: I can understand why migratory birds and endangered species were excluded. But if a First Nation in British Columbia or Alberta drills and finds oil, does that oil belong to it?

Ms Geneviève Thériault: That will continue to come under the Indian Oil and Gas Act.

Mr. Claude Bachand: If I have property, and I drill in my garden and find oil, does that oil belong to me?

[English]

Mr. Kerry Kipping: The bill called for the continuation of the Oil and Gas Act to the first nations. All oil and gas is excluded from this bill. That is done for a couple of reasons. One is because of the fiduciary responsibility for managing the moneys that are generated from the oil and gas. This was excluded until some future time when we can decide how that might be better managed or fit into the first nations regime. In the other instance, the first nations themselves agreed to exclude oil and gas because of the complexity of the issue itself.

[Translation]

Mr. Claude Bachand: In the Framework Agreement on First Nation Land Management, Questions and Answers, you say that the Canadian Charter of Rights and Freedoms applies to the Lands and Statutes of First Nations. That seems strange to me since Michelle Falardeau-Ramsay, chairperson of the Canadian Human Rights Commission, seemed to be saying that under section 67 of the Canadian Human Rights Act, the provisions of the Charter do not apply to Aboriginal reserves. Moreover, that is one of the claims made by Aboriginal women going back many years. In your document, you say that reserve land still belongs to the federal government, even though management has been transferred. Why do you say, in contrast to the provisions of section 67 of the Canadian Human Rights Act, that the Charter applies on reserve land?

Ms Geneviève Thériault: Are you talking about the Canadian Charter of Rights and Freedoms or the Canadian Act?

Mr. Claude Bachand: The Canadian Act, which I believe is based on the Canadian Charter of Rights and Freedoms.

Ms Geneviève Thériault: The Canadian Charter of Rights and Freedoms officially applies.

Mr. Claude Bachand: You are saying that the Charter applies on reserves?

Ms Geneviève Thériault: Yes, it applies across Canada; it is the supreme law of the land.

Mr. Claude Bachand: Very well. Thank you.

The Chairman: Thank you, Mr. Bachand.

Ms. Hardy.

[English]

Ms. Louise Hardy (Yukon, NDP): I'm just curious about the voting. Whenever I vote it seems that whoever comes out to vote determines how the decision works, as far as I know. If you come out and vote, you cast your ballot, and whichever way it goes— So are we holding the first nations to a higher standard by demanding a certain number of people come out and vote?

Mr. Kerry Kipping: The standard was set by the first nations themselves, in agreement with Canada. That's something they saw. As a result of the significant shift in responsibility and authority, they felt they had to have the largest and the highest percentage of support they could get. They set that standard themselves; it wasn't something imposed by Canada.

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Ms. Louise Hardy: Thank you.

[Translation]

The Chairman: Do you have any other questions?

Mr. Konrad.

[English]

Mr. Derrek Konrad: Thank you. I have another question.

In your opening remarks you talked about a fact-finding process on the division of marital assets on the breakdown of a marriage. In this fact-finding process, do you see this moving to legislation at the end of it, or are we simply going to have a collection of facts that were pointless to collect, or are we holding out some hope that legislation will result from this fact-finding process?

Mr. Kerry Kipping: I'm not in a position to determine what the fact-finding process will produce as an end result. However, the fact-finding process is intended to provide the minister, government, and first nations themselves with a series of options in terms of how this will be dealt with. I don't, at this point in time, have any idea what that end product will look like.

Mr. Derrek Konrad: What's your view of the checkerboard effect of rights whereby each first nation writes its own land code so that when a woman marries into a reserve, she checks tab 12 in a binder in the band office to find out what her rights are when she moves to that reserve, as opposed to a national standard that can be known and adhered to by all first nations?

Mr. Kerry Kipping: My immediate reaction to this is that the first nations are working in concert with each other to establish a framework around how that will work. Each community may have some differences based on culture, tradition, or where they are in Canada. But my confidence in the communities in putting forward rules and procedures that will provide a standard across first nations and across Canada that will meet a minimum standard without actually stating that minimum standard is high. I don't think I have any hesitation in saying that the process the communities will put forward will meet a test.

Mr. Derrek Konrad: The 14 nations that are signatories here are obviously going to have some basis to work from. What is that basis?

Mr. Kerry Kipping: Again, in the bill and in the framework agreement we agreed to leave that to the communities to decide among themselves how that will work. Those rules and procedures will be approved within the communities themselves. They will set the standards and the processes.

I can't judge at this point in time what those standards will be, although again, as my colleague indicated earlier on, if there are any disputes resulting from those rules or procedures, then there is an arbitration clause built in by which the minister and the first nations can resolve that dispute.

Mr. Derrek Konrad: Thank you.

The Chairman: Thank you, Mr. Konrad.

Madam Longfield.

Mrs. Judi Longfield (Whitby—Ajax, Lib.): I would just like to pick up on this division of matrimonial property. The Indian Act is silent on that now. How is it determined in various areas at the moment?

Ms. Geneviève Thériault: The courts compensate when they cannot divide the asset that's linked to the reserve. So the assets are balanced at the end of the day between the two spouses.

Mrs. Judi Longfield: As a result of the agreement before us, how would things change? Are women on reserve going to have a better chance to have their views put forward or will they be hampered?

Mr. Kerry Kipping: Our reaction to that would be that the women on the first nations under this process will have a much higher standard and an opportunity to have an equal division of assets compared with those who are currently under the Indian Act, where there is a vacuum at this point in time, as you say.

Mrs. Judi Longfield: Mr. Finlay had asked about the number of voters. When you're looking at the number of voters, can you break it down as males and females, and perhaps by age? I think I'd feel more comfortable if I knew that it wasn't an overwhelming majority of men and a small number of women.

• 0950

My understanding is that there are large numbers of women living on reserves and that they certainly would hold more than the balance of voting power in this. But if you could get those figures, that would be very helpful.

Mr. Kerry Kipping: We'd be happy to provide those figures.

Mrs. Judi Longfield: Thank you.

[Translation]

The Chairman: Thank you, Ms. Longfield.

Mr. Bachand.

Mr. Claude Bachand: These is a legislative gap where the division of matrimonial properties is concerned. In June 1998, the Minister announced that she was setting up a committee to undertake an independent investigation. According to the latest news, there does not seem to be much progress on that front. You yourself touched on this issue in your presentation and said that the process was still underway.

Could you tell us where things are at? Are you concerned that at the end of the process launched by the Minister, the committee may come to conclusions that are at odds with the provisions that the 14 First Nations intend to put in their land code to try to fill this gap in the present legislation?

[English]

Mr. Kerry Kipping: I believe at this point in time that discussions are ongoing with the Assembly of First Nations, Congress of Aboriginal Peoples, and Native Women's Association of Canada to determine the terms of reference, find a fact-finder, and move that process forward.

Again, I'm not in the position to determine what the outcome of that fact-finding process may be in the end, so if I may say so, it may be a little premature to determine exactly what the differences will be between what the process may find and what the rules of the first nations would be. I think that's something we would have to take a look at once that process is completed.

[Translation]

The Chairman: Thank you, Mr. Bachand. Do you have another question?

Mr. Claude Bachand: We know that the B.C. Native Women's Society has gone to court and is saying that the federal government has not carried out its fiduciary duties. What is the position of the Crown prosecutors in this case?

Ms Geneviève Thériault: Since the case is before the courts, we are not in a position to discuss it.

Mr. Claude Bachand: Are the proceedings public? Are the people in attendance able to know the prosecutors' exact position?

Ms Geneviève Thériault: Documents have been submitted to the court.

Mr. Claude Bachand: Are the documents public?

Ms Geneviève Thériault: Yes.

Mr. Claude Bachand: But you have not read them? If they are public and you have read them, you should tell us.

Ms Geneviève Thériault: The Crown maintains that the government has not neglected its fiduciary responsibilities in any way.

Mr. Claude Bachand: Thank you.

The Chairman: Any other questions?

Mr. Kipping, will your officials be available all day to our witnesses, the Chiefs of various First Nations and women representing their associations as well as to the members of Parliament?

[English]

Mr. Kerry Kipping: Yes, I will.

[Translation]

The Chairman: Thank you very much.

We will now go to the second part of our meeting. We will hear from Mr. Robert Louie, president of the Interim Lands' Advisory Board. We will then hear from Chief Austin Bear, Chief William McCue, Chief Margaret Penasse-Mayer and Debra Campbell, a member of the Musqueam First Nation.

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• 0956

The Chairman: Mr. Louie, do you have an opening statement?

[English]

Mr. Robert Louie (Chairman, Interim Lands Advisory Board): Yes, I do, Mr. Chairman.

The Chairman: Thank you. Proceed.

Mr. Robert Louie: Firstly, I wish to wish you, Mr. Chairman, and—

Mr. David Iftody: I have a point of order, Mr. Chairman.

I would also ask that Mr. Louie's statement and accompanying documents be read into the official record, please.

[Translation]

The Chairman: Do you all agree? Thank you. Mr. Louie.

[English]

Mr. David Iftody: Thank you.

Mr. Robert Louie: Thank you, Mr. Chairman. Good morning, panel members.

I first wish to thank you for receiving us and hearing our presentation. It's certainly been a long time coming to be here, a lot of hard work, a lot of dedication by all 14 first nations and all of our communities. Since time is short, I will be as brief as I possibly can.

I wish to take a moment, however, to make some introductions, if I may, of chiefs, councillors, land managers and assistants, and some members of our technical team who are with us. If I may be allowed the brief moment to do that, I'd like to introduce, from Muskoday First Nation, Chief Austin Bear and Councillor Ava Bear; from Georgina Island First Nation, Chief William McCue, lands manager Pat Big Canoe, and assistant lands manager Sylvia McCue. From the Nipissing First Nation, I would like to introduce Chief Margaret Penasse-Mayer and lands manager Joan McCloud. From the Squamish First Nation I would like to introduce Chief Bill Williams, lands manager Ruth Nahanee, councillor Harold Calla, and Harold's son, Jason Calla. From the Siksika First Nation, Chief Darlene Yellow Old Woman-Munro, accompanied by lands manager Jack Royal. From the N'Quatqua First Nation, Chief Harry O'Donaghey. From the St. Mary's First Nation, Chief Arthur Bear and Councillor Steve Meuse. From the Scugog Island First Nation, Chief Rennie Goose. From the Cowessess First Nation, councillors Dave Redwood and William Tanner. From the Musqueam First Nation, Debra Campbell, member. From the Opaskwayak Cree First Nation, land manager Judy Head. And legal advisers Mr. Patrick Orr and Bill Henderson are with us, who will be making some presentations and accompanying as we go into the question period. Not present today is Chief Barry Seymour from the Lheidli T'enneh First Nation. He is not here today.

Here is how we propose to proceed, Mr. Chairman. First I'd like to be brief in giving some opening background comments about the importance of this bill. I would also like to briefly review the table of contents of the blue package, or the package of information that we had previously circulated to you. Then we would like to proceed with presentations from our chiefs, firstly with Chief Austin Bear and his councillor Ava Bear from the Muskoday First Nation. They will briefly comment on their first nation vote and the economic development opportunities there. They will table a petition from the women of Muskoday, and they will also talk about the accountability examples in their land code.

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Second up is Chief Bill McCue, from the Chippewas of Georgina Island, accompanied by Pat Big Canoe and Sylvia McCue. They will talk briefly about the Georgina Island vote and the economic developments that are happening there. They will mention the Snake Island leases and the revenue there, and they will also table a petition from the women of their community of Georgina Island.

Next is Chief Margaret Penasse-Mayer, from the Nipissing First Nation. With her is Joan MacLeod. They will briefly talk about the economic development in their community and about the third-party interests and their cottages, and they will address the issues at hand there.

Debra Campbell is here from the Musqueam First Nation. She will table and talk about matrimony issues, and will table a statutory declaration from Rosie Derrickson. Rosie Derrickson was the party in the Supreme Court of Canada case that opened up the whole issue of the matrimonial vacuum on reserve lands. Ms. Campbell will be accompanied by Mr. Patrick Orr, who will talk about the spousal issue. We understand that it's a major issue, and we wish to address it in its entirety.

Then, Mr. Chairman, the balance of the time is left for questions for the morning session. That's how we propose to proceed. Perhaps I may carry forward then.

Firstly, I'll speak on the importance of the First Nation Land Management Act, the framework agreement, and this whole process to our first nation communities. In the package that has been circulated, I believe you have a copy of my November 27 letter to Mr. St-Julien. I won't repeat the contents of that letter, but it does cover the very basic issues and points that need to be addressed here today. What I want to do is draw your attention to some very simple, very basic propositions: why we are here, and what's driving this process. These principles are very fundamental to the background here.

Firstly, first nations are looking for control of our lands and resources. That's what this is about. We want to manage our lands and those resources. We want it very clearly recognized that it is a recognized right that we have that decision-making responsibility and that we fully accept that responsibility.

We also want to end the paternalistic and archaic attitudes of the Indian Act. We want to end the government administration that's currently embodied in the Indian Act over our lands and resources. That must be put to an end.

We also wish for a very important point to be understood very clearly. This is a first nation community decision making process, and we're looking at involving all of our first nation community members in that process, both on and off reserve.

These are very fundamental principles, Mr. Chairman. We wish those principles to be very clearly understood in terms of where we're coming from. We submit that what we are proposing and advocating here is something very consistent with the principles proposed by the Royal Commission on Aboriginal Peoples with respect to self-reliance and economic self-sufficiency. We also submit that it's consistent with the Canadian Charter of Rights and Freedoms and the exercise of self-government—and I know that question was raised earlier this morning by panel members.

What we are talking about here is a sectoral component of self-government. It's a bottom, base level. The management of lands and resources is very fundamental to that hierarchy. This is an incremental step for first nations to move towards implementation of self-government. These fourteen first nations are leading the way. This process wasn't started yesterday. It has taken many, many years of hard work, dedication, community consultation, third-party consultation, local government and provincial government consultation. All of these have taken place in this process.

Panel members, these fourteen first nations are not waiting for government or someone else to hand them something to deal with. They are taking the initiative on their own and are saying that this is how they wish to deal with this very fundamental aspect of management of lands and resources. They're doing it themselves, piece by piece, with full community involvement. This is what this process is all about.

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We have other first nations supporting what we're doing. In fact, we have received VCRs and letters of support from those who have expressed an interest to join the process, those who've expressed an interest to support what is happening in this process. We have VCRs and letters from Peter Ballantyne, of the Cree Nation of Saskatchewan, as an example; and from the Burrard Indian Band, which is otherwise known as the Tsleil-Waututh Nation in British Columbia. We have band council resolutions from the Songhees First Nation in British Columbia, from the Beecher Bay Band in B.C., and from the Malahat First Nation in British Columbia. Recently we received a resolution from the Saskatoon Tribal Council, representing seven bands who are supporting this process and wish to be involved in it. And, Mr. Chairman and panel members, there are several other first nations across this country that have expressed an interest in supporting this.

With your indulgence, I now wish to take you very briefly through the table of contents of the package that was submitted to you. We believe we have addressed the questions and issues in the best way we possibly can, and we're prepared to answer to those issues as best we can here today.

Firstly, tab 1 includes the framework agreement, the chart, and the executive summary of the framework agreement. We've been as comprehensive, as precise, and as to-the-point as possible in that executive summary and in that chart.

Tab 2 deals with Bill C-49. It includes and executive summary that we have prepared on Bill C-49. It adds to what the departmental officials had previously indicated to you and to what is in their binder package.

Tab 3 includes the questions and answers. We've spent a lot of time in preparation, and we have heard a lot of presentations from our first nation community members, from third-party interests groups, from financial institutions, from government and others. We've prepared this list of questions and answers that we hope will be beneficial to the understanding of what this is about.

Tab 4 includes a Muskoday land code. There's an executive summary of what the land code looks like. It also includes the land code itself in order to give you an example of what a land code what might look like for first nations in this process. The Muskoday First Nation is one of the three communities that has passed, with overwhelming support, its land code. Chief Austin Bear and Coucillor Ava Bear will address this in more detail.

Tab 5 is the Muskoday ratification document. Again, this is what must be done by a community in ratifying its land code. It's very comprehensive. Again, Chief Austin Bear and councillor Ava Bear will address this issue.

Tab 6 is the Muskoday transfer agreement. It will give you some indication of what a transfer agreement might look like for first nations, Muskoday being one of them. Muskoday has already passed the transfer agreement.

Tab 7 deals with self-government—what it is, how we define it, how we look at self-government, the basic principles to that self-government, and how self-government relates to Bill C-49.

Tab 8 deals with matrimonial property. As I indicated earlier, it's quite extensive. We've covered the subject in as much detail as we possibly can. We've made reference to what the standards are and how they're protected. As you may use a notion of minimum standards, we've referred to minimum standards and what those standards are, and how we've incorporated those into our presentation, in Bill C-49, and in the framework agreement. We've done a lot of work on an options discussion paper. Our communities have spent a great deal of time in this area, and we wish to address it in detail.

Tab 9 covers accountability. It's a very important issue. We recognize that, we fully accept the responsibility there, and we wish to be very comprehensive in that review. Chief Austin Bear will also refer to this topic in his comments.

Tab 10 deals with taxation. We want to make sure it is very clearly understood here by panel members that this is not a taxation process, nor does it affect any aspect of taxation that currently exists under the Indian Act. We have left taxation as a separate process outside of what we're talking about here.

Tab 11 deals with the environment. Environment being a very important area, it talks about the existing environmental vacuum that exists today and how we plan and propose to correct it in this bill and in the framework agreement.

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On tab 12, the issue was raised here this morning in questions about the municipal consultation. We have, in fact, done much consultation in this area. We have some proposals on a process that we believe may well work as a model, and we wish to have that reference that is in tab 12.

Tab 13 deals with development on reserves. In that aspect, it deals with financial matters, financing developments on reserves, promoting economic development, and how development happens on reserve and how it relates to Bill C-49 and the framework agreement.

Tab 14 deals with the Constitution. We have provided a chart. We've compared this legislation to other federal legislation, and we go in depth to explain that this does not change the Constitution. There is no amendment to the Constitution. It's working within the framework of the Constitution that exists in this country today.

Finally, panel members, tab 15 deals with the third-party interests, and there are some specific examples in that regard that we wish to cover today.

Without further ado, Mr. Chairman and panel members, if I may, I would like to turn it over to our chiefs for their comments. First I'll turn to Chief Austin Bear and Councillor Ava Bear for their brief review.

[Translation]

The Chairman: Thank you, Mr. Robert Louie. I would like to thank you and your team for having submitted such a well-prepared brief. It is one of the most complete documents we have seen to date.

Mr. Robert Louie: Thank you.

[English]

The Chairman: Chief, you have a statement.

Chief Austin Bear (Muskoday First Nation): Good morning to the respected members of this panel and to Chairperson Mr. St-Julien. Good morning to my chiefs and colleagues and to those witnesses present.

As mentioned, my name is Austin Bear. I'm the chief of the Muskoday First Nation, which is in the province of Saskatchewan. With me is a council member and obviously a member of the Muskoday First Nation.

As mentioned previously, it's been a long road. It has taken many years of work by committed, dedicated people who have worked together in concert, in harmony in most instances, to bring us to this day. We truly appreciate the opportunity to speak with this panel. On behalf of the people of Muskoday, greetings.

To just give a brief history perhaps of the Muskoday First Nation, as I mentioned, our location is in the province of Saskatchewan. We are a signatory to Treaty No. 6 in the Saskatchewan region. Our community is located approximately 13 kilometres southeast of the city of Prince Albert. Highway 3, a major provincial highway, travels through our community. We are also dissected by the beautiful South Saskatchewan River, which brings not only beauty but recreation and other essential needs to our community. Finally, the total membership of the Muskoday First Nation is 1,214, of whom 450 reside in the community or on the reserve.

With respect to land management, the Muskoday First Nation has had delegated authority under the Indian Act—specifically, section 60—to manage our lands, to the extent that we can under delegated authority, since 1978. However, that didn't come about easily. The process was somewhat as lengthy as this process here, after many requests that began in the early sixties—1963, in fact. It took that many years, from 1963 to 1978, to get this delegated authority as a provision of the Indian Act.

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On the Muskoday First Nation ratification vote on the framework agreement and on the individual agreement with Canada, leading up to the ratification vote the community had numerous meetings, both with our members who live on the reserve and in fact with members who live off the reserve.

We had a good gathering of members living in the city of Saskatoon and in the city of Prince Albert, and we had a good gathering of members near The Pas, Manitoba. At numerous times we did meet with the off-reserve members of our first nation in the city of Saskatoon. I can count at least four well-attended meetings with our members to explain and to share the information on the framework agreement and indeed on the development of our code. Our members had an opportunity to have input, to suggest and to comment on what they would like in their code. Having done that, for those we couldn't reach in numbers together, we set up an office and staffed it with six people to make certain that the information got to our members who perhaps lived in Vancouver, Montreal, or other areas of Canada. They also had the opportunity to be informed.

There was dialogue. Information was given and received during this process in the lead-up to the vote. The community was asked to vote on January 21, 1998, on whether or not they wished to adopt the land code and the framework agreement. Of the number of eligible registered voters, approximately 750, both on and off reserve—I have the exact numbers here, but I'm not going to go into them—349 actually voted. Those are not the ones who registered, but the number who voted. Of the 349 people who voted, 309 voted in favour and 40 voted against. In terms of participation in the vote, we were able to determine that 54% were women and 46% were male.

Under the paternalistic, restrictive, limited Indian Act, we, like many first nations across this country, have lost opportunities for economic development, opportunities for employment, and opportunities for our people. In this country, surrounded by wealth, I think each and every person has the right to opportunities for employment and to raise their families with security.

Because of the limitations that I mentioned and because of the Indian Act, we lost an opportunity in the Muskoday First Nation for what, for our community—and perhaps any community—would be a major economic development. In fact it was a farm implement manufacturer relocating from the United States. The manufacturer wished to move into our community, to relocate a plant into our community in a joint venture with our people. When we indicated what the procedure would be, and that we indeed had to seek approval from the Department of Indian Affairs, they simply said they didn't have the time for the bureaucratic red tape that would be involved; if they were going to move, they had to move quickly. Unfortunately, Muskoday couldn't accommodate.

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Our community lost 30 full-time jobs, and others that could be related. At that time, and indeed today, if 30 of our families had found meaningful, gainful employment, that would have virtually wiped out the need for social assistance in our community, except for those who absolutely need it, perhaps the disabled or those who have more challenges than we folks who are more fortunate.

We also have future endeavours, seeking new opportunities for our people. We are in fact involved right now in a major tourism development, along with other partners. We certainly don't want to see that opportunity missed because the Indian Act and its limitations and restrictions once again deny our people opportunity and advancement.

I'm going to stop at this time and allow, if I may, Mr. Chairperson, counsellor Ava Bear to speak on an issue that is very confrontational with this bill and the framework agreement. It deals particularly with the rights of women.

[Translation]

The Chairman: Thank you, Chief.

[English]

Mr. Derrek Konrad: I'd like to say something, If I may.

The Chairman: You have two minutes.

A voice: Thank you very much.

[Translation]

The Chairman: No, not right away. I will first give Mr. Konrad the floor.

[English]

Mr. Derrek Konrad: We could hear her after, then she would have a full hearing, rather than being interrupted.

Chief Austin Bear: You're the chairperson; we will of course accommodate—

[Translation]

The Chairman: Go ahead. We have not yet been called for the vote.

Mr. Claude Bachand: Mr. Chairman, I believe that we should give our colleague a little more than two minutes because the topic she raised is important and directly relates to the provisions in the bill.

The Chairman: Yes, I am sorry. We will give you more than two minutes.

[English]

Okay, go ahead.

Ms. Ava Bear (Councillor, Muskoday First Nation): Thank you very much.

My name is Ava Bear. I'm a band councillor for the Muskoday First Nation, and I have approximately ten years experience on our band council.

This morning I have with me a petition the women of our community have signed, and I would like to read that petition to you. I have copies available for those who wish to see it.

We, the undersigned women of the Muskoday First Nation, agree that the Native Women's Association of Canada and the B.C. Native Women's Society do not represent the women of the Muskoday First Nation in any way, shape or form;

AND FURTHER that we protest against the B.C. Native Women's Society for attempting an injunction against the First Nations Land Management Act legislation introduced in parliament as Bill C-49;

AND FURTHER that we support the Framework Agreement on First Nation Land Management signed with Canada in February 1996, and by secret ballot, supported the Muskoday First Nation Land Code and the individual Agreement January 21, 1998;

AND FURTHER that the issue of possession of matrimonial lands and property have been addressed in our Land Code and through an amendment to the Framework Agreement on First Nation Land Management.

I have 101 names on this petition. I would like to point out not one female person we approached declined to sign this petition. Everyone was in favour of it. The women of Muskoday First Nation feel very slighted. We have voted in favour of this agreement. We have worked very hard to bring this agreement to where it is today. To have someone who does not represent us speak against it is definitely not to our liking.

We are asking for support that this be passed, and we feel we are very properly respected and looked after by our own community. We have in the past, as chief in council, dealt with matrimonial property rights, and we will continue to deal with matrimonial property rights for the protection of our children and our women. We have dealt fairly, and we have never, never seen—and never plan to see—any of our women and children homeless. There are none in Muskoday, nor will there be.

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We feel we can deal with this issue very fairly and properly, as we have in the past. We have many examples we can site if need be, but we feel that's not necessary. We can deal with this as we see fit far better under this code than under the Indian Act.

Thank you.

[Translation]

The Chairman: Thank you, Madam, for your leadership. We appreciate your statement. Thank you very much.

Anything else, Chief?

[English]

Chief Austin Bear: If I'm allowed, and time permitting, I will briefly end my comments.

Thank you, Councillor Ava Bear.

I will mention at this time the Muskoday First Nation is a member in good standing with the Saskatoon District Tribal Council, which is a structured organization with a membership of seven first nations.

I have here, for the record, a tribal council resolution stating their support of Bill C-49 and the framework agreement. Indeed, the Muskoday First Nation asks, with all due respect, that this bill be given the proper consideration and support to be passed and put into law. I do have a copy for those who wish one.

I will end on this note. In the section under tab 9 in the binder that was provided to you, there is—and should be—concern about accountability of all forms of government that serve and represent the people who have elected them: they must be accountable to their people. We also realize the need to be—and have been and will continue to be—accountable to the Government of Canada for funds received on behalf of our people with respect to treaty, and funds received for the implementation of treaty and other areas of funding.

As in the past, we, the chief and council and administration of the Muskoday First Nation, have been accountable to our people and we will continue to be accountable. The framework agreement provides even greater mechanisms for accountability to our people with respect to their lands and revenues earned from their land. We already have accountability mechanisms for other funds received on behalf of our people.

As I already mentioned, you can turn to tab 9— The first nations have imposed these provisions and requirements upon themselves; they were not imposed by someone else. These guidelines and requirements for accountability are indeed instilled by the first nations in the development of the framework agreement, and in fact our codes. I'm speaking about the Muskoday First Nation's land code.

Eligible voting members can introduce first nations land laws for consideration. So it's not chief and council who will be introducing and passing laws. The community members can introduce laws for consideration.

Conflict of interest rules require that persons in conflict may not participate in making decisions on the matter. It's clearly stated.

Eligible voting members must approve certain types of leases and licenses of first nations land—not just at the whim of chief and council, but by the eligible voting members of the community, of the first nation.

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Council must adopt a budget, explain it to a meeting of members, and make it available for inspection by the members. Books of accounts and records must be kept in accordance with generally accepted accounting principles. An auditor must have complete access to financial records. It is an offence to restrict access to financial records. Annual meetings of first nation members are required to discuss land matters and receive the auditor's report.

I didn't read each and every clause in this accountability section, but those are the key ones. So In our opinion and in the opinion of the Muskoday First Nation who have voted and ratified this code, this satisfies the accountability we must display in transparency, openness and partnership with our people.

Mr. Chairman, thank you for this opportunity. I hope my words and the words of Councillor Ava Bear shed some light and clarify the position of the Muskoday First Nation and indeed on what Bill C-49 and the land management framework agreement mean and their importance to our first nation.

[Witness speaks in his native language].

[Translation]

The Chairman: Thank you, Chief Austin Bear. It is always impressive to hear a Chief from a community who knows his issue so well and expresses the demands of the members of his community so well. We really appreciate your contribution. Thank you.

Do you have anything else to add, Miss Bear?

[English]

Ms. Ava Bear: No, I would just to thank you for listening to us today. I sincerely hope we will hear positive results from this soon.

[Translation]

The Chairman: Thank you, Madam. Mr. Konrad.

[English]

Mr. Derrek Konrad: I think at this time I'm going to pass. Thank you.

[Translation]

The Chairman: Thank you. Mr. Louie.

[English]

Mr. Robert Louie: If it is possible, we'd like to have at least three more sets of speakers address the issues before we go to questions. In that way we could get all of the issues out, hopefully get them better covered, and maybe answer some of your questions before they're asked. Would that be agreeable?

[Translation]

The Chairman: I agree. Do the members of the committee agree?

Some Honourable Members: Yes.

The Chairman: I will therefore give the floor to the representative from the Georgina Island First Nation, Chief William McCue.

[English]

Chief William McCue (Georgina Island First Nation): Good morning, ladies and gentlemen and distinguished members of the committee. I understand in the expediency of time, I'll make my presentation as brief as possible.

My community is located in Lake Simcoe, which is 60 miles north of Toronto, Ontario. It consists of three islands. Our main source of revenue comes from approximately 500 cottage leases we have in our community. Our community is one of three communities that have passed our land code. We successfully ratified our lands management code in 1996 with a vote of 88% in favour.

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The majority of the population in our community are women. I will be deferring to my lands people to speak. They have a similar petition, which was made available at a band meeting concerning representation.

When we passed our lands management code 18 months ago, it was in anticipation of our community moving ahead in terms of self-government and negotiating our rights with the 250 leases that expire March 31, 1999, on one of our islands.

We anticipated that we would have our code and agreement in place, which would help us negotiate new agreements with our cottage members. Unfortunately, due to circumstances beyond our control, the bill has not gone through as fast as we anticipated. This leaves us in a very great predicament because we have these 250 cottage agreements that will expire on March 31, 1999.

This represents around $1 million of revenue that comes to our first nation. This money is used to offset shortfalls we have in departmental funding. We use this to subsidize various programs, such as social programs, housing, maintenance and infrastructure in our community.

I would like to introduce a letter—I will not read it—from our Snake Island Cottagers' Association. I think it was addressed to you, Mr. Chairman. In it they wholeheartedly support Bill C-49 and wish for the opportunity to have this pass so they can begin negotiations with our community. They feel it's a great step forward in the first nations' quest for self-government.

Mr. David Iftody: A point of order, Mr. Chairman, please.

The Chairman: Monsieur Iftody.

Mr. David Iftody: Thank you. Excuse me, Chief McCue.

I have received a copy of two letters, one from the Snake Island Cottagers' Association. I would ask, also in the interest of time, since we won't read these out verbatim, that they be read into the record. They are very significant contributions to this debate about private property owners. With the permission of my colleagues, I would like this read formally into the record, please.

[Translation]

The Chairman: You agree? Yes, we will distribute a copy to all members of the committee.

[English]

Chief William McCue: Would you like me to read?

The Chairman: Yes.

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Chief William McCue: Our community has a large land base and for the land base we have certificates of possession. They are held by community members for properties. The majority of those with certificates of possession, or landowners, are women. So in essence, the majority of lands are held by women in our community. The majority of the electorate are women in the community.

I will turn it over to Pat and Sylvia to address a similar petition we have that unfortunately we do not have copies of. It was just addressed at our general council meeting on Tuesday night and was signed by every woman in attendance.

Ms. Pat Big Canoe (Georgina Island First Nation): When we had the original vote to ratify our code for the land management, approximately 315 were eligible to vote; 171 actually did vote, and 88% were in favour. You might note that 51% of those who were eligible to vote and did vote were women and 49% were men. As our chief has said, on Georgina Island Reserve the number of certificate holders—we don't have deeds, but certificates—are held by women, and the women are very much in favour of the land management.

Land management isn't just a male thing or a female thing; it's a community concern for everybody. In our community the women are very much in favour of this. The question that was given to us was “Why are people in other reserves having any say on our vote when our vote was successful and the women were the majority there? Why are they having anything to do with saying this isn't right?” We said we didn't think they should have any say. That was our opinion.

Ms. Sylvia McCue (Georgina Island First Nation): The petition should prove that as well.

Chief William McCue: In closing, I would again like to stress that our first nation is moving along in different areas of self government, and one of those areas is lands. The land base from which we derive a large portion of our revenue is one of the reasons why we decided to develop our own lands management code.

For far too many years we left our leasing in the hands of the department of Indian affairs and sat in the background as observers while other people decided our fate. We had no opportunity to exercise our authority in areas of the environment, such as enforcing cottage leaseholders to clean up different environmental concerns our people had.

The department has a limited environmental capacity. We addressed these concerns, and we feel it's in our best interest now to control our lands and our revenues a lot better than has been done in the past. We've had cases where there have been several years before arrears were collected on some of our lease properties, as well as a number of other issues that we felt we could deal with more appropriately.

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As I said, my main concern is that I have no other avenue to deal with these 250 cottage holders. I have a moral obligation to these people.

I thank you for your time and consideration.

[Translation]

The Chairman: Thank you, Chief, and ladies. We have just been called for a vote. The bell will ring for thirty minutes. Shall we suspend our meeting now and resume at noon?

[English]

Mrs. Judi Longfield: We can go for another 15 minutes.

Mr. John Bryden (Wentworth—Burlington, Lib.): We've got another 15 minutes, Mr. Chairman.

The Chairman: We'll go for 15 minutes.

[Translation]

It is your decision; I will be governed by your wishes.

[English]

Mr. Peter Adams: Mr. Chair, it's a 30-minute bell.

Mr. Robert Louie: Mr. Chairman, with your permission, just for clarification, could the petition from the Georgina Island First Nation be tabled to you and read into the record as well? Would that be appropriate?

Mr. David Iftody: I have a point of order, Mr. Chairman. Could I ask that one of the presenters actually read the contents of the petition? If it's not too long, say not more than a page, could I ask one of the former presenters, such as Ms. Big Canoe, who introduced the petition, to please verbally read that into the record, if we could?

The Chairman: It's the same one.

Ms. Pat Big Canoe: Yes, it's the same petition.

Mr. David Iftody: It's the same petition? Okay, thank you very much.

[Translation]

The Chairman: Thank you, David.

[English]

Mr. Ted White: I have a point of order.

[Translation]

The Chairman: Yes, Mr. White.

[English]

Mr. Ted White: I'm just wondering something. If we wait until the end to ask questions, will that not require people to be bobbing up and down from each group? Is that what you would intend? Or is it easier to ask the individual groups individual questions as they come up? Will we keep it going?

[Translation]

The Chairman: I suggested the same thing earlier, but it did not meet with agreement.

I will now invite the representative from the Nipissing First Nation to give her presentation.

[English]

Is your name Chief Margaret Penasse-Mayer?

Chief Margaret Penasse-Mayer (Nipissing First Nation): Yes, it is.

Good morning, Mr. Chairperson. I'd like to take this opportunity to say thank you very much for letting us make our presentation here today.

I'd like to just talk a little bit about our community, Nipissing First Nation. First of all, Nipissing First Nation is located about 45 minutes northwest of North Bay. I think people know where that is. It's also the home of Ontario's premier.

Our membership on reserve and off reserve totals 1,350, of which 470 reside on our reserve. Approximately 52% are women and 48% are men.

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I'd like to just comment about our community and our council. Our council is made up of seven councillors and one chief. In the last two years our council has implemented consultation with the elders on many issues. We have made processes for discussing many community issues with them. We have also done this with youth. As you know, the youth in all our communities are the upcoming leaders of our nation. We have done some consultation with them to help them deal with the issues that will be attended to when they are the leaders of our community.

I would like to talk a little about our community as a presence in the area we are in and in the economy we are part of. For instance, our first nation pays school boards millions of dollars to educate our children. That's only one part of being part of both the area in which we live and the economy in which we participate. I just wanted to address this, because I think sometimes members of communities feel we are not participating fully in Canada. We are. I wanted to say that.

I would also like to talk a little bit about relationships with municipalities. Our community of Nipissing First Nation is located between two other non-native communities. One is Sturgeon Falls, Ontario, and the other is the city of North Bay. For instance, we have had an agreement with Sturgeon Falls for many years now. I share responsibility for a road that leads from Sturgeon Falls to Nipissing First Nation. We have also donated money to Sturgeon Falls for a complex they have erected. This complex includes a swimming pool and recreation area for children. Our community has contributed $5,000 to that community for this purpose.

We are working on an agreement with the city of North Bay regarding the new legislation that's coming down from the province to deal with ticketing under the provincial ticket act. We also work with other municipalities, such as Field and Cache Bay, to do fundraising and other things to improve the area as a whole.

I just wanted to comment on this. I think I would now like to hand over the technical part of lands management in our community to our lands manager, Joan McLeod, if I may.

Thank you.

Ms. Joan McLeod (Lands Manager, Nipissing First Nation): Good morning. Bonjour. I'm taking French lessons, but I don't speak well enough to follow the presentation today.

I have been a lands manager with Nipissing First Nation since 1982. We have gone through many regimes. One of them was the sections 53 and 60 process with the Government of Canada, which was very lengthy for us. We asked for our lands management in 1980. We finally got our delegation authorities in 1989. These are very lengthy processes. Anything with Indian lands involves very lengthy processes.

The band got involved in this process of trying to gain better control of our own land because of all the land problems we've had under the Indian Act. I'm here today to talk to you specifically about a third party interest. In our community we have something that I'll say is seasonal-permanent. There are more permanent lessees in Jocko Point. They number about 249 lessees. In Beaucage subdivision, we have 48 lessees. A number of commercial and industrial clients are also lessees. We also have some permits with Ontario Hydro and Bell Canada. We have agreements with Canada for small parcels of land for navigational aids and stuff like that.

• 1055

What I'm specifically going to talk to you about and show you the problems under the Indian Act is with our residential subdivisions. In your packages you have information on the issue of third-party interests. It's the last tab. It lists for you the problems associated with leasing. I could go through each one, but one of things I wanted to bring to light for you is our lessees' participation with the first nation in negotiating rentals or lease agreements.

As you know, the federal government writes the leases. They set the guidelines, rules, and policies for how those leases are governed and how they're addressed under sections 53 and 60, at Nipissing as well as the other first nations here. Much of the time, those processes tie the band into not being able to recognize the problems the lessees are having.

One of the large problems was the rent reviews. These processes are covered in an 18-page lease document. Rent review takes up one or two clauses in this document. When you're talking about any business venture, whether it's residential, commercial or easement-related, you know rent review is going to become a large issue. It concerns money and money affects everybody.

Under their lease arrangements, our lessees' only process is this. If they don't agree with us on the rental, they go directly to suing Canada to settle the rental. This is major problem. Under the Indian Act and under those leases there is no process for negotiation. For our first nation, because of our problems with our residential leasing subdivision, it always ended up in court. There's no process for dispute resolution. That is one of the major reasons why the Nipissing First Nation is in this process. We want to be able to develop this dispute resolution process with our lessees.

Jocko Point, which went into a rent review with the Nipissing nation in 1994, felt the vacuum under their lease and ended up in a court action with Canada. Once they approach or go to court, the band can no longer talk to them, because under sections 53 and 60 we might be infringing on Her Majesty's rights under a court action. So we're sort of left off on the side. We go in and we say this is the lease arrangement they have. This is about all our participation consists of at that point.

Notwithstanding the costly court action that happens with the leases Canada has, in 1994 Jocko Point went into rent review. We are penned in for our day in court in the spring of 1999. On April 1, 1999, we're going into our next rent review. So it's lengthy, costly, and time-consuming. There's really no redress under those leases. The Nipissing Nation is asking to be given the chance to be able to at least negotiate with our lessees, or come to some understanding on a different lease arrangement.

Under the third-party interest in our new proposed act, if the lessee feels comfortable with the leases with the Government of Canada, they are allowed to proceed under those leases. The Nipissing First Nation, or any of the other nations here, will not be forcing these lessees to take on new leases. What we are asking for and providing to our lessees is a lease arrangement. We will deal with them and negotiate with them. This does not happen under these federal leases because the Department of Justice just draws up the lease and says this is it, whether a band or a first nation likes it.

• 1100

So you have all these problems with the present lease with the Government of Canada. What we're looking for is a new regime where we could develop lease arrangements with our lessees. This is what we're asking for.

I can't talk for too long because time is pennies, so I'm trying to put 20 years into a few minutes.

This lease problem is one of the major problems we have at Nipissing. Another challenge is to be able to develop a better economic base. In our community, we've tried different venues and different avenues for developing businesses and business opportunities for our band members and our clients. Our clients are not band members; they're our lessees. Our relationships have been very good. We've got into one major snafu with one of our commercial industrial lessees and it all honed in on the lease arrangement. We lost this lessee because the lease was very old. It was very open to interpretation. Nobody really knew what it said. The department couldn't give us an explanation on what the clauses really meant after 20 years. So we lost this large employer on our reserve. We had had a good relationship until the lease came into bed with us.

We are still looking for economic opportunities. What we're hoping, what we're planning, and what we're striving for is that this legislation would assist us in attracting new clients to our reserve to be our lessees in the commercial industrial sector. We're trying to develop areas and resources that would have us owning such endeavours as a cement and block plant. We have a large rock resource on our reserve. We don't have oil, but we have hard granite that's good for crushing.

We're looking at the possibilities of a golf course and a marina. There is no marina now on Lake Nipissing, which is a very large 42-kilometre lake. We're looking to expand into public services. We're looking at fish hatcheries. We are looking at historical and anthropological sites, and in becoming more a part of the tourist trade in our area. We're looking at an RV tent-trailer facility to complement our Beaucage subdivision.

All these areas are very important for us to look at. We need to look at avenues for getting businesses, people with the money outside, and banks to come in and mortgage and do whatever. It is important right now because of our unemployment rate in comparison with the surrounding communities at Nipissing. Labour force statistics for the North Bay management area for the months of January to July 1998 showed the unemployment averages for northeastern Ontario were at 12.5%. Ontario had 7.6% and Canada 8.8%. The unemployment rate for on-reserve—we're only talking about our on-reserve band members here at Nipissing—is 35%. Nipissing unemployment rate is 22.5% greater—

[Translation]

The Chairman: Ms Penasse-Mayer, I am sorry, but I must ask you to interrupt your statement.

[English]

Is it possible to stop this morning for the vote?

Chief Margaret Penasse-Mayer: Yes.

The Chairman: The MPs will go to the House for a vote, and then we will be back at 11.45.

[Translation]

We will come back as quickly as possible. I am really sorry. We will adjourn until 11:45 a.m.

• 1104

• 1153

The Chairman: We are resuming the meeting that we started earlier this morning. We will continue with Mr. Robert Louie.

By the way, I would like to thank the Department of Indian Affairs for providing us with maps. It is important that we know where the Aboriginal communities are located in Canada.

Mr. Louie, go ahead.

[English]

Mr. Robert Louie: Thank you, Mr. Chairman.

What we propose to do, with the committee's indulgence, for the balance of this morning is to turn it over to Debra Campbell, who is a member of the Musqueam First Nation, to discuss briefly the spousal issue and to deal with the Rose Derrickson statutory declaration. Once that's completed, we will turn it over to Patrick Orr, who will review tab 8. As has been raised here this morning, tab 8, the matrimonial property and division of properties and how this Bill C-49 deals with that in the framework agreement, is very important. We want to make sure this is carefully covered. That's why Mr. Orr would like to go through that in some detail for the committee's understanding. So if we might, we will proceed in that fashion.

Also, if it would be helpful to the committee—and we appreciate the question raised by Mr. White earlier this morning—and if there is room at the table, a suggestion is that we could bring the chiefs who spoke earlier this morning up to the table, and if there are any specific questions to their community they'd be available.

The Chairman: That's okay.

Mr. Robert Louie: Thank you.

The Chairman: Ms. Campbell.

• 1155

Ms. Debra Campbell (Member, Musqueam First Nation): Thank you.

As Robert said, I'm a member of the Musqueam First Nation. It's located in southwest Vancouver. I've lived most of my life on the reserve. I've been involved in Indian government working on a first nation's side for approximately eighteen years; thirteen of those years have been specific to land management.

I would now like to read in the statutory declaration of Rose Derrickson of the Westbank First Nation.

I, Rosie Derrickson, of the Westbank Indian Reserve, solemnly declare that:

I am a member of the Westbank First Nation, and I was the appellant in the Supreme Court of Canada case, Derrickson v. Derrickson, reported at 1986 1 S.C.R. 285.

I was originally a member of the Okanagan Band of Indians and I changed my membership to Westbank after my marriage to the late William Joseph Derrickson, who was a member of the Westbank First Nation.

After our marriage, we acquired a certificate of possession to a lot on the Westbank Reserve and built our home on that lot. This was our matrimonial home and the certificate of possession was issued in my name. My former husband and I acquired other parcels during our marriage and these were registered in his name. It was my interest in those other parcels acquired during the marriage that was the subject of the dispute that reached the Supreme Court of Canada.

The Court ruled that the provincial law governing the division of real property assets on matrimonial breakdown could not apply to the possession of Indian reserve land, a matter governed solely by the federal Indian Act to the exclusion of the provincial law. The Court further held that I was entitled to compensation for my matrimonial interest in those other parcels of land since the provincial law providing for such compensation was not inconsistent with the Indian Act.

I believe now, as I did then, that the matrimonial property of two band members on a reserve should be divided fairly between them if their marriage breaks down. I also believe that the Westbank First Nation should be the authority to make such provision in its land laws.

I understand that the Westbank First Nation is a party to the Framework Agreement on First Nation Land Management, and that a federal bill to give effect to that Agreement is currently before Parliament. I am familiar with that Agreement and I understand that the Westbank Land Code, if and when it is enacted, will make provision for the division of matrimonial property in Westbank First Nation lands. I support that agreement and I support Westbank jurisdiction to make such laws.

I further understand that a standing committee of the House of Commons may soon be receiving submissions in relation to the federal legislation intended to ratify and implement the federal aspects of the Framework Agreement. If my health permitted me to do so, I would travel to Ottawa to speak in support of the Agreement and the proposed legislation. Unfortunately, my health is not good and I am currently in hospital in Kelowna. As an alternative to personal appearance before the Committee, I make this statutory declaration pursuant to the Canada Evidence Act to state my position and to advise the Committee of that position.

I am also aware that a group known as the British Columbia Native Women's Society is attempting to block this legislation and, through court action, to prevent the First Nations from proceeding under the Framework Agreement. In the fall of 1997, approximately six months after their court action was commenced, I was approached by an individual claiming to represent that Society and she asked me to support their action. I refused to do that.

I do not know who the British Columbia Native Women's Society is, but it does certainly not represent me. I do not know why that Society thinks that it is in a better position to say what laws should govern the people of the Westbank First Nation than the people of Westbank themselves. I disagree strongly with the idea that these strangers should be in any position to force their concepts of what Westbank law ought to be upon people of the Westbank First Nation.

• 1200

I do know better than most people what a serious issue matrimonial property on reserves is. I also know that the best way to address it at Westbank is for the people of that community to determine for themselves what their law will be. That is what the Framework Agreement says and that is why I support it.

I wish that there had been a Westbank Land Code in place 15 years ago. There would have been no need for me to go to the British Columbia courts in 1984 or later to the Supreme Court of Canada. I am well aware that the legal situation is no different now than it was found to be then, but I am comforted by the fact that the Westbank First Nation has the means at hand to provide its own solution and that it has given its assurance that it will provide a solution. I look forward to that happening as soon as possible.

I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.

Declared at the City of Kelowna, Province of British Columbia

Rosie Derrickson

[Translation]

The Chairman: Thank you, Ms Campbell. On behalf of the members of the committee, our staff and myself, please convey our best wishes for a speedy recovery to Ms Derrickson. We appreciate her statement, which you have given us.

Mr. Louie.

[English]

Mr. Robert Louie: Mr. Chairman, if we may turn this over to Mr. Patrick Orr, we can proceed through tab 8 and carefully go through its contents. As indicated earlier, it's very significant, and we wish to make sure there's complete understanding by committee members on the spousal issue.

[Translation]

The Chairman: Thank you, Mr. Louie.

Mr. Orr, you seem to be in fine form. I have the impression that you might be related to Bobby Orr.

[English]

Mr. Patrick Orr (Legal Counsel, Interim Lands Advisory Board): If I weren't sitting at the table, I would say yes. If I were looking for hockey tickets, it would make it easier. But no, unfortunately, I'm not that person.

[Translation]

Good morning, Mr. Chairman.

[English]

and other members of the committee. I'm delighted to be here today in order to give assistance to this committee in understanding the legislation before it, particularly in relation to the issue of spousal separation and matrimonial property.

To introduce myself, I'm a legislative lawyer. I've been in practice since 1982 in that field. I was hired by the chiefs back in the early 1990s to work on this legislation. I've also done other legislation for other governments, including the federal government.

I'd like you to turn to tab 8, if you have not done so already. I'll point out that it contains basically three documents. The first is a one-page chart that we prepared in an attempt to outline what we consider to be the issues involved in this area as graphically as possible. The second document is a more extensive set of notes on the issue. The third one is an even more comprehensive document that you should have before you that was prepared to allow the communities dealing with spousal separation to understand the issues facing them and to have some options before them.

This is a working document, but we wanted to provide it to the committee so you can have an idea of what these first nations are in fact doing. We wanted to make it clear that the first nations have been busy in this area. By sharing with you some of the working documents, you can understand how far the first nations are on this issue.

That document should be available in French, monsieur le président. For those francophone members of the committee, if they don't have it, please let us know.

If we can turn to the chart itself, I can explain it by going through it. Most of the issues will be at least put into a kind of context that will facilitate debate.

We have five vertical columns. On the left is a list of those rights that are common under family law. These are the kinds of rights that provincial family law and federal law deal with. The next column is the source of that right. Then as you go farther to the right, there's the current application of that right to reserve lands and to members, the effect of the bill on the framework agreement, and the result if the bill and the framework agreement are enacted.

• 1205

We can go down that column. Starting at the top, we have the first issue, which is possession of the matrimonial home. This is a right given to both spouses equally under provincial law.

The next point is division of family land. In other words, there may be a right to stay in a house, for example, but who owns family land? Under common law, of course, whoever was on title as owning the land in fact owned it. What family law has been doing since 1996, at least in Ontario, is to provide that notwithstanding who's on title as ownership of land, family law will divide land on a different basis, according to whether or not there's a spouse involved. That, again, is a source under provincial statute.

There are, of course, other family assets, such as the car, the jewellery, the books, the pet, and RRSPs. Those are divided under provincial statute. A compensation order is possible to equalize assets between spouses. For example, if one spouse has all the assets in his or her name, the court can order that spouse to pay compensation to the other. In fact that is what the Derrickson v. Derrickson case is all about. I'll get to that in a moment.

I'll just continue down. The next issue is sexual equality, that the rights of spouses are equal, male and female. There is no distinction between male and female spouses. Under common law, of course, there were rights of courtesy and rights of dower, which have been abolished. Those rights are guaranteed under section 15 of the charter, and they are guaranteed under section 28 of the Constitution, dealing with aboriginal rights equally to male and female people. Also, that is specifically addressed in section 35(4) of the Constitution.

There was a comment, I think from Mr. Bachand, early this morning about section 67. I think there was a misunderstanding. That is section 67, I believe, of the Canadian Human Rights Act, which of course is something outside of this particular issue.

There is the issue of spousal support, which is also dealt with in provincial statute and in the Divorce Act; custody of the children; who is the primary caregiver—if the new recommendations coming down from the other place are set, there may be some changes there; and divorce itself, terminating a marriage.

Now, all of these issues are dealt with. They do apply on reserve. They do apply to first nation members but for two, and those two are the top two on the list, possession of the matrimonial home and division of land. The reason for that, of course, is that where these rights exist, a provincial statute cannot apply to land that is in the name of Her Majesty in Right of Canada, federal crown land, or, in particular, reserve land that is for the benefit of a first nation. This is the situation we've been in for a long time.

This was specifically addressed in the Derrickson and Derrickson case, in which the court made it quite clear that provincial law cannot apply to federal reserve land. It came up with a partial solution in allowing the spouse who did not have ownership—in that case, a certificate of possession—to get compensation from the spouse equal to the value of that interest. But the situation we have at the moment is that a spouse on reserve cannot get an order from a court for possession of a matrimonial home or for division of family land. They cannot get it from the Minister of Indian Affairs or the band council.

This is a situation the chiefs have been aware of since at least 1995, when we were in the middle of developing our model land code. At that time, in one of our early consultation documents, we made it clear that this was an issue that had to be addressed as a landholding issue. There was no intention, of course, to rewrite family law or to address all of the other issues that are in the provincial family statute.

• 1210

What has to be addressed are the two areas the current law does not address. In other words, you have a married couple, and only one of them has a right to stay in a house, whether by a certificate of possession or some other form of landholding. If they break up, is there any way to divide the interests other than by whoever is registered as the owner of it gets it?

These first nations have undertaken to address this issue. This was, of course, their intention from the beginning, but they made it very clear by an amendment to the framework agreement earlier this year. I would like to direct your attention to a few pages further along where you'll see a page with an excerpt from the framework agreement, clause 5.4. Most of this clause is repeated in the bill. This contains all the elements that the first nations have obliged themselves to do—that is, to establish a community process to develop rules and procedures to deal with the issues of use, occupancy, and possession of first nation land and the division of interests in land, and that these rules will not discriminate on the basis of sex and these rules will be enacted. They will no longer be policy, but the first nation will make them law. There's recognition that this will take some time. There's a 12-month period within which the first nation will convene community meetings, consult with its membership, and come up with the rules.

If there's any dispute between the minister and the first nation in respect of this clause—because this agreement is between the minister, as Her Majesty's representative, and the first nations—if there's some problem with the implementation of this, this can be arbitrated. For greater certainty, this applies to those first nations that have already enacted land codes.

If we can turn to the briefing note that starts with Bill C-49, I wish to make one comment on the first page of that, rather than going through all of this in detail. This is the page that has Bill C-49 at the top of it. It's the second bullet above “Federal Law”. This is to make it clear that existing provincial family law was never designed to address the special problems that occur on reserve.

We don't have a case on reserve of fee simple ownership of land. We have very complicated situations. Some first nations have certificates of possession, which are similar to ownership. Other first nations have other traditional ways of landholding. A range of special situations exists. There's the fact that the reserve itself is constitutionally reserved for the use and benefit of that particular first nation. This is a constitutional principle. So we have to make it clear that this should not be a kind of back door through which the reserve becomes alienated from non-members of the first nation.

There are issues particular to first nations with regard to custom marriages, whether or not they would want to recognize those and other informal relationships. Just to make it clear, under provincial family law, common law marriages, those not formalized by marriage, do not justify the two rights we're talking about. They do not justify possession of the matrimonial home or division of family assets. They will justify spousal support, however. But of course that's an area outside of land management and is not one we're addressing.

When we talk about provincial family law and these two rights, we're only dealing with married couples. Of course it would be open to a first nation to say that if a couple who has been living together for a period of time splits up, the community may recognize that as some form of marriage, but only for the purpose of deciding who gets to stay in the house.

If we can turn to the next page of the briefing note, I'd like to repeat that what these first nations are confronted with is the fact that there are four basic rights under family law, and these are listed under the second bullet, “Important Points”: the right to possession of the matrimonial home, the right to division of family property, equality of treatment between the spouses, and the right to compensation for espousal interest. These, in effect, are what we consider to be the minimum standards to be dealt with.

• 1215

At the moment, the minimum standards are protected in the framework agreement and Bill C-49. It is mandatory. These first nations have obliged themselves, have committed themselves, in the agreement and by legislation that would be passed by the House to establish rights and rules on possession of matrimonial home and division of family property. They would also be obliged to respect equality of treatment between spouses. Now that's something we do not consider to be a problem, but for greater certainty it's been made very clear in the agreement.

The last right—right to compensation for espousal interest—is dealt with currently under the law with the case of Derrikson v. Derrikson. And of course the Canadian Charter of Rights and Freedoms, which does apply to first nation land and its laws, would guarantee that any law or rules a first nation came up with would of course respect the spouses equally.

I wish to make it clear that spousal separation and land holding in such a case is not a gender issue. As you've heard from some of the chiefs already, there are first nations in our group where women outnumber men, where women hold more land than men. So we want to make it very clear to the committee, at least with respect to our group, that we consider this to be a non-gender issue. This is a question of how to deal with the rights of spouses when they separate.

Finally, I'd just like to make one reference in closing to the litigation that was mentioned earlier. There was litigation brought about a year and a half ago seeking an order from the Federal Court that the framework agreement provide a process to address the vacuum on spousal separation. That has been done, and the framework agreement was amended to make that very clear.

I don't want to take too much more of the committee's time, but I'll just point out the last document, the options paper, is a document in process. We welcome any comments on it. It's a reflection of our thinking at the moment. It's going to be discussed in the communities at community meetings if people have comments. I'm sure first nations would appreciate any comments on this paper. It's been prepared at the request of the chiefs of these 14 first nations for options and discussion of how to address the important question of spousal separation. And it's split up— If I could, I'll just skim quickly over the table of contents with an introduction to the issues involved.

There are three options presented in this paper. That's not to say there aren't more options possible in the future, but what is seen at the moment is three possible options. In the first case, the first nation enacts its own rules on exactly how possession of property and division of assets should be addressed in a marriage breakdown. The second option is they allow spouses to make marriage contracts on this issue, which is something that is done under provincial law. Of course, if you don't like the regime of the province or territory you live in at the moment, you can opt out of it by contract. The third is to incorporate by reference the provincial legislation that deals with this, with some provisos, for example that non-member spouses might not receive a permanent interest, but might receive a life interest or an interest for the time during which that person is in custody of children.

That brings me to a point I think I'd like to emphasize, which is that the understanding of the first nations so far is that their primary objective is to find a way to accommodate the children, if there are any, in a family that separates. First priority goes to providing housing to that parent who has custody of the children, whether that parent is a member or a non-member. Ways will be found to provide accommodation for such a spouse. I'm sure the chiefs can give you specific examples, if the committee would like that.

• 1220

Finally, in closing, there has been some suggestion made to us about why don't we just say that the first nations' rules and procedures will meet or beat provincial standards. That's a concept that, as a legislative lawyer, I have serious concern with, because no one has ever explained to me what that means, in fact, other than what I brought before this committee in terms of those four rights on the chart. This goes to the extent that the phraseology used would create what I consider to be a serious loophole in this solution. Any disgruntled spouse who did not like what rules were enacted by a first nation would have the right to argue in court that the law did not meet the provincial standards. There would be litigation forever on that issue.

So I consider this to be something that I would not recommend. Instead, leave the two main issues that have been addressed in the framework agreement to be dealt with in that way.

Thank you, Mr. Chair.

[Translation]

The Chairman: Thank you, Mr. Orr, for your excellent presentation. Mr. Louie.

[English]

Mr. Robert Louie: Thank you, Mr. Chairman. As suggested earlier, if it would accommodate the questions by the committee, we are prepared to bring up the chiefs who spoke earlier this morning in case there was a question directed to one of the communities.

[Translation]

The Chairman: Thank you, Mr. Louie.

[English]

Mr. Derrek Konrad: I have a point of order. Why don't we start with the witness who is in place right now, to avoid shuffling?

[Translation]

The Chairman: Allright. Go ahead, Mr. Konrad.

[English]

Mr. Derrek Konrad: Thank you for clearing up a number of questions. I do have one question, though, that comes out of it. Clause 17 and clause 5.4 talk about land, but there's no mention of the family home. Would you clarify for me again why that's not included in the actual legislation. Why does it only talk about land and not the home?

Mr. Patrick Orr: I'd be delighted to answer. To the extent that a home is a fixture and is considered from a legal point of view to be land, then it's covered by the term “land”.

The difficulty is that we're dealing with a land management regime. So we can only deal with assets that are considered to be land. So to the extent that a matrimonial home is land, there's no problem. If a matrimonial home, for example, were an RV on wheels, then that could be dealt with by provincial law, in that it deals with all assets generally. But to the extent that a home is not land per se, then these first nations can do nothing with it.

Mr. Derrek Konrad: That would be the only question I have for you. Perhaps my colleague has a question.

Mr. Ted White: Mr. Orr, you made a comment in there about the leases. I got the impression that some bands may use the land code to actually end the leases of occupants on the land. Was it your intention to indicate that? In some cases, people who have valid leases at the moment may actually be moved off the land. As the leases expire, the bands may refuse to renew them. Is that a long-term intention of some bands?

Mr. Patrick Orr: Mr. Chairman, I'm not aware of making that statement, but if the question is whether first nations have the intention of removing leaseholders from their land, then I would say I'm not aware of that intention. I would think that they, as any reasonable landlord, would welcome the continuation of tenants who abide by the terms of their leases and pay their rent.

Mr. Ted White: Okay, then I'm going to extend this question a little bit now. Maybe Ms. Campbell can help me with this.

• 1225

I have here a lengthy letter from people who are living on leases on the Musqueam Reserve in Vancouver, who quote that for example their leases have gone from $400 per year to $10,000 per year and the band has applied to the court for them to go to $36,000 per year. I live in the Vancouver area, and this is totally ludicrous. They also mention that one home in the area originally worth $500,000 dropped in value to $132,000 because of this process of the lease renegotiations. It was just sold for $132,000, a home that was valued at $500,000 just a short time ago.

They're claiming in this letter that the band is actively trying to remove people from the reserve through financial means under their land management. I think this is a reasonable concern. Obviously in the longer term perhaps it may be that individual bands may wish to have all of the lands just occupied by the band. I accept that. Certainly looking at this sort of case for third-party interest, this does not look reasonable. I wondered if perhaps Ms. Campbell can comment on whatever knowledge she has on that.

Mr. Robert Louie: I would like to offer some comments, Mr. White, on that. I think it's very significant. It's an issue that's been discussed in the Musqueam community. It has been an issue in the past dealing with a Supreme Court of Canada case, the Musqueam case, the Guerin case. In that Musqueam case there as an issue brought forth with regard to the adequacy of rents that were levied to the Musqueam non-member residents in the Musqueam subdivision. What the court held was that it was very unreasonable because the rents that were originally set were ludicrous. They were improper. In fact the Department of Indian Affairs was held responsible and was ordered by the Supreme Court of Canada to compensate the band in the order of about $10 million because it was such a ridiculously low amount of rent and it was wrongly done.

So what has happened from that time is there has been a serious look at what is the true value of Musqueam lands. Musqueam lands right now rest within the municipality of Vancouver, very close in vicinity to the University of British Columbia. As such, it represents some of the highest land values in Canada in that particular area. So is a property value of $10,000 per lot, or whatever that figure might be, reasonable? That's a very significant issue, because the response has been no, it is not reasonable. Any appraisal that has been conducted very clearly shows that the values are not adequate. So what must be addressed is what is the true value of the lands, and when these rent reviews come up that issue is always at the forefront. So how do you get to the standard that should be set that was not originally set, and what should be set?

These are issues that are pertinent to what Ms. Joan McLeod had earlier referred to about setting lease rental reviews. It's an issue that's ongoing. It must be fair. It must be reasonable. It's my understanding in my discussions with the Musqueam chiefs and councils, and with being familiar with the issue, that it's something they wish to address. I know the issue has been raised at various taxation assessment challenges because the Musqueam First Nation has bylaws in place. There have been challenges on that issue, but it's my understanding it's an issue that rests fully within the auspices of what is the true value, and there's been no intention, at least from my understanding, that Musqueam people intend to oust the non-band member residents as a result of that.

Mr. Ted White: It would seem though that if houses are dropping in value from $500,000 to $132,000 because of claims of $36,000 a year for leases, then it's actually going to work against the band in the longer run, because they'll devalue the relative value of the land by claiming so much in leases. I think $36,000 is not a reasonable land lease in the Vancouver area, even in that area.

Mr. Robert Louie: That may well be so. I think the concern there, and it's been expressed in these discussions we've had around the community tables where we put all of the proposals together, is how do we properly set the value? One of the points that always comes out is the market will dictate whether or not the values are fair or not, and it's backed up by appraisals and so forth. The issue that first nations are going to try to oust the non-band-members is really non-existent, because the result would be to cut your nose off to spite your face. Business would tumble and it would create chaos, and I don't think that's the wish of any of the communities, at least communities that represent these 14 first nations and as the issue has been discussed around the table.

• 1230

Mr. Ted White: Thank you for that very detailed explanation. I appreciate that.

Mr. Derrek Konrad: I have a question for Ms. Campbell. What was the Westbank Band's position at the time of the original court case for Rosie Derrickson and during the appeal to the Supreme Court?

Mr. Patrick Orr: Mr. Chairman, I don't think Ms. Campbell heard the first part of the question.

Mr. Derrek Konrad: Sorry. When Rosie Derrickson took her husband to court for division of assets and then it was appealed all the way to the Supreme Court, what was the position of the Westbank Band throughout the court case?

Mr. Robert Louie: If I may answer, I'm probably more familiar with that instance because I am also a member of the Westbank First Nation and in fact was chief in my community for a ten-year period and I'm well familiar with the law regarding that area.

The position of the Westbank First Nation was non-participating because the laws were vacant at that time. The vacuum did exist. There were no laws, no guidelines for the Westbank First Nation to be involved. That was my understanding.

I've had many conversations with Rosie Derrickson as well with her late husband, William Derrickson, on that issue, and both of them had agreed and both parties did not want to take it to court. They did not. It was forced upon them because there were no other remedies and there were remedies being sought. There was a disagreement as to which lot should go where.

Rosie Derrickson, in this particular case, wanted access to lots owned by the late William Joseph Derrickson and there wasn't a course for that. Westbank's involvement was sought, but there was no room for Westbank to be involved. That's at least my understanding after detailed discussions with both the participants in that court case.

Mr. Derrek Konrad: Thank you.

[Translation]

The Chairman: Thank you, Mr. Louie.

Mr. Bachand.

Mr. Claude Bachand: According to the notes I have here, 3 communities out of 14 have signed or ratified the land code. If I understand correctly, the land code does not include any provision at present on matrimonial rights. You have up to 12 months to add such a provision to the land code.

I would like to know which band was the first to ratify it. The 12-month period has already started, hasn't it?

[English]

Mr. Patrick Orr: To start with the last element of your question, Mr. Bachand, the land codes have not yet come into force. They cannot do so until the act, Bill C-49, is passed, because the Indian Act still currently applies. These land codes have been adopted by the communities but are hanging there waiting for the coming into force of Bill C-49. Once they do, the 12-month period would start to run.

In the meantime, these communities have had meetings and have gone over the discussion paper you have in your binder. This is an area the community wants consensus on. They want to take the time, the 12 months, to talk to their members and come up with a solution everyone will be happy with. It is an emotional issue in some communities, and this is a better way than something being put in right at the moment.

Other first nations, which have not yet developed land codes, are thinking about wording to put in their land code. But it may require some sophistication in legislative drafting, which would require part of it in the land code and part of it in a separate law.

[Translation]

Mr. Claude Bachand: If I am not mistaken, people are still discussing how they want to ratify the code in 11 of the 14 nations. One of the controversial points is that of matrimonial rights. You have initiated discussion with all the communities using the document you presented to us earlier, with the three options.

• 1235

You mentioned in your presentation that option 3, that is adapting provincial legislation to bring it more into line with your land code, could be difficult because that legislation is based on realities of the province and not those of reserves. Could you explain to me why you have still put forward option 3 in your document? Why did you not simply reject that option and say that the provincial situation did not apply to reserves?

[English]

Mr. Patrick Orr: Yes, that's a good question. The short answer, Monsieur Bachand, is that with some customization, it is possible to work for those communities that have land held in the form of a certificated possession. In those communities that have a more suburban way of holding land, if I can use that expression—they have certificates of possession that are a permanent interest for a first nation member—it's more possible to adapt provincial law, subject to a few exceptions.

For example, some accommodation has to be made in the case of a non-member spouse, because the non-member spouse is constitutionally unable to own a permanent interest in first nation land in perpetuity. An accommodation for that would have to be developed. For example, the person would get a life interest. Or if he or she gets possession of the house as primary caregiver for children, that might continue until the children are no longer dependent.

[Translation]

Mr. Claude Bachand: There are 3 communities out of the 14 which have already ratified their code, but the code does not yet contain rules on matrimonial rights. You are claiming that the 12-month period will start to run only when the bill has been passed in both the House and the Senate. Where the other 11 First Nations are concerned, if they have not signed and ratified the code before the bill is passed, will the 12-month period begin at the time of ratification or when the bill is enacted into law?

[English]

Mr. Patrick Orr: My expectation is that no other first nation is going to go through a vote until the bill is enacted. At the moment we have three, but others will feel free to proceed once the bill is enacted. Now, as a matter of law, the 12-month period will begin to run from the time their land codes take effect. That could be the date of the ratification, assuming there's a period after which it can be contested, or they might have a specific date on which their land code would come into effect, like January 1.

But I would just remind the committee that work has already been done. We have a paper, the one you have before you, which is the third draft of a working document. We've had meetings on this issue with all fourteen, so it's not just the three that are working on it, they're all working on it.

So the 12 months is a maximum period, but it's quite possible that some first nations would do it immediately because they've already worked it out.

[Translation]

Mr. Claude Bachand: Thank you.

The Chairman: Thank you, Mr. Bachand. Thank you, Mr. Orr.

Mr. Louie.

[English]

Mr. Robert Louie: Thank you, Mr. Chairman.

I believe Debra Campbell just had something to add. I believe it might assist one of the previous questions that was raised regarding the Musqueam issue.

Ms. Debra Campbell: Just to give you a little detail on that particular lease, Mr. White, that lease was a Department of Indian Affairs lease that was entered into in the late 1950s or early 1960s or somewhere around there. For the properties in that particular subdivision—there are 76 lots there—those lots, in comparison to most city-sized lots, are about one and a half times the average size. The homes that are on those lots are in excess of 3,500 square feet, complete with swimming pools. That's the type of residential subdivision we're talking about.

• 1240

In this particular case, those lots had annual rents from $188 to $450 per year. In that particular Department of Indian Affairs lease, the rent review periods were based at 15-year intervals. The first two rent reviews were fixed rent increases in that lease. Nothing was based on value. Of course at the time the Department of Indian Affairs negotiated that lease, they didn't anticipate what land values would be.

Consequently, in 1995, when the rent review period was up on that 15-year period, the lease said the land would be assessed at 6% of market value as undeveloped land, as though it was raw land, as if it was the day they built the house, but at 1995 values. Of course keep in mind that when you are appraising reserve land it is discounted because you are leasing it, you're not buying it, to be simple. So those values that came in as appraised values were discounted rates—usually residentials discounted around 5% for lease values—for 1995 values. In this case, though, these people were used to paying $188 a year to $450 a year.

So that gives you a little bit of background on why there is such a large difference in the values of those properties.

The Chairman: Thank you very much.

Madame Hardy.

Ms. Louise Hardy: The option that you described on the individual marriage contracts, option two, is a little unclear to me. If a community decides that everybody is going to have contracts, it seems that would be an unfair situation, especially if there's physical abuse in a relationship. Could you explain that a little better so that I can understand it?

Mr. Patrick Orr: This is not a recommended option. There are some communities that are very small. If there are only twenty—I forget what Scugog is, but it is a very small community—it might be possible to work something out. It might be easier to actually do it by contract than to work it out, particularly if much of the land is being held jointly.

It is possible under provincial law to have contracts. We put it in as an option just to let people know that this is something that's there if the community really wants to do it, but it's not something we would recommend, at least not by itself. It would probably be in conjunction with one of the other options, but you're right in saying it's not the optimal one.

Ms. Louise Hardy: Okay, thank you.

[Translation]

The Chairman: Thank you. No other questions?

Mr. Louie, should we go to the other group, that is, Chief Austin Bear and Ava Bear? Do you have any questions for the other groups?

[English]

Do you have a question for the other group, Monsieur Konrad?

Mr. Derrek Konrad: It's just one question. I believe it was mentioned that council had managed the division of assets on the breakup of marriages until now. I'm just wondering if you will be incorporating some of the rules and procedures that you've used until now—which seem to have been successful enough in your new land code—under the provincial powers.

Chief Austin Bear: Yes, sir. We have, with success, managed the division of property and the protection of children at the time of espousal separation. However, through the framework agreement under the land code, which would become law, the powers would be mandated to manage these concerns.

• 1245

We will follow the guidelines set out in the draft working copy that you have with you, but we will also take this issue to the community. Hopefully, through consultations with the community we will have direction on how they wish to manage these concerns. In the absence of any law or policy that applies, we have managed to the extent that we can. That will continue, and I suspect it will become incorporated as part of the community's mechanism for dealing with these issues.

Mr. Derrek Konrad: Just to follow that up, you're looking for some codified direction so that people on reserve are not subject to the goodwill of chief and council in dealing with these issues. I'd just like your opinion on extending those rights outside of a land code, and to more of a marriage-type code that was mentioned earlier and possibly could arise as a result of the fact-finding process that was initiated by the minister in June and is under way now. Would you be in favour of that kind of process? I guess I'm asking you if you'd prefer to go beyond an individual code, Chief.

Chief Austin Bear: I'm sorry, I missed that last part.

Mr. Derrek Konrad: Would you prefer to go beyond having it in an individual code, having instead something more universal, so that other bands aren't in the position that you are in, having to deal with issues on a case-by-case basis?

Chief Austin Bear: First, I don't know what the outcome of the fact-finding mission will be. I don't know what recommendations will come from it, and I don't know what effect it will have on any amendments or changes to the Indian Act and/or application of provincial law as a result. However, to answer on whether it would become a universal or generic application to other first nations, I can't answer for other first nations.

Mr. Derrek Konrad: I was looking for your opinion, I guess—not a legal opinion, just your personal opinion on something to rescue chiefs and councils from what I think is a rather untenable position of having to make decisions without guidelines, which is where you were previously.

Chief Austin Bear: If you're asking for my personal opinion, I think it's in the best interests of all first nations to have a mechanism in place that is inherent and appropriate for the specific first nation, in order to deal with the issue in a way that is fair and equal, and in a way that offers protection to both spouses, but particularly to children. If that's the opinion you're asking about, then that's what I offer.

Mr. Derrek Konrad: Thank you very much.

[Translation]

The Chairman: Thank you, Mr. Konrad.

Mr. Bachand.

Mr. Claude Bachand: Is Mr. McCue going to come back to the table?

The Chairman: Yes.

Are there any other questions? Mr. White.

[English]

Mr. Ted White: Chief Bear, I'm not familiar with the area where you live. Maybe you could describe for me what sorts of meetings you had with the local municipalities. What process of involvement was there when you were developing your land code? You've obviously done a lot of work in preparing the land code and getting ready for the passage of Bill C-49. Was your municipality—or the surrounding municipalities, if there's more than one—involved somewhat in the development of that land code, or did you develop the code and then present it to them?

Chief Austin Bear: The process was run with the province. Together, our technical people and I met with the province of Saskatchewan and the rural municipalities that were represented by their specific representatives of the province of Saskatchewan. As a result of our discussions, we did seek and did receive support from the province of Saskatchewan. We answered the concerns the municipalities had, and seemingly we satisfied their concerns.

With regard to the municipalities directly affecting or related to Muskoday, there are two or three rural municipalities that neighbour our community. We have had discussions with, for example, the mayor and certain council members of the City of Prince Albert. I've had a discussion with the Town of Birch Hills, and I have support in principle, at least verbally, from both the town and the neighbouring Rural Municipality of Birch Hills. In fact, the rural municipalities of Birch Hills, Garden River, and those in that area in particular are very keen and are awaiting the outcome of Bill C-49.

• 1250

We have some issues to come to terms with, particularly with regard to provincial grid road systems and how the grid road system affects travel through our lands. We have an issue there that we wish to address and come to terms with in our relations with the rural municipalities.

Mr. Ted White: So with confidence, you could tell me that I could phone any one of the mayors in that surrounding area and they would all say they're very satisfied with what you've done.

Chief Austin Bear: They're satisfied to the extent that they have a relationship with Muskoday. Now, whether or not they would say to you that they definitely support this— I know the Rural Municipality of Birch Hills, and perhaps the RM of Garden River— The grid road system I speak of, Crossley Road—I'm sure the member from Prince Albert would know that—is a concern, and we're working together with the RMs and hopefully the province to deal with this issue.

As I mentioned, the RMs await the outcome of this bill so that they can deal with the Muskoday First Nation to resolve this particular issue without having to deal with Indian Affairs. Indian Affairs will not involve themselves in the discussion because it's up to the first nation to manage and come to terms with that issue.

Mr. Ted White: I'll just to follow on that with my last piece here, and it's addressed to Mr. Louie. In relation to this issue of relationships with municipalities, we're now almost three years downstream from the signing of the original agreement. Within the last couple of weeks, the Union of B.C. Municipalities met with you—November 13, I think it was. The outcome of that meeting was an agreement to look at a discussion paper on the principles of how to discuss things with the municipalities. That's kind of up in the air, really. I know your letter indicated that you would be sending that out to the chiefs for consideration of whether or not that was the right approach. Can you give me an update, please, on how that's proceeding? Have the chiefs given you any indication that they're prepared to go with the suggestion that came out of that meeting? If so, how long do you think it will be before there's some sort of framework of principles for negotiating with the municipalities?

Mr. Robert Louie: Thank you, Mr. White. I think you have several questions in there, and I'll see if I can answer them. Maybe I can give you just a brief, up-to-date outcome.

The last outcome was a letter that we received dated November 26. It was faxed to us from Director Jim Abraham, who is the chair of the aboriginal affairs committee of the Union of B.C. Municipalities. In that letter, he refers to the minutes, the discussion paper and the outcome of what took place at an earlier meeting that month. For the record, I could read this letter off to you, because I think it's significant. It's one of support. He says:

Thank you for your letter of November 16, 1998 and for the attached draft meeting minutes and discussion paper. I too felt that our meeting earlier this month was very productive and mutually beneficial.

With respect to the preliminary comments on the discussion paper, we have no fundamental disagreement with the document and feel it is an excellent start. We will be reviewing the content in the coming weeks and in doing so we will be seeking feedback from our affected members.

I look forward to getting back in touch with you on this important issue early in the new year.

And to bring you up to speed as to what took place on November 13, I have the minutes of that meeting. We had members of the B.C. region there from the Department of Indian Affairs. We had our technical team, myself included, in there. We also had representatives from the Union of British Columbia Municipalities there, including their policy analysts and advisers.

Two basic issues were decided at that meeting. The outcomes were as follows. In the interests of both municipalities and first nations, we would work together in the spirit of cooperation. We put a two-phase process in place. The two phases included the following the creation of a discussion paper among the parties to set out the general principles on the reciprocal consultation regarding land-use planning and related issues, as well as the negotiation of separate side agreements between individual municipalities and neighbouring first nations on specific topics of mutual concern within the area of land use planning.

• 1255

One step further, on the reciprocal consultation, this is the contents, the guts of that draft discussion paper we put together, which is being circulated now to all of our chiefs. Firstly, the UBCM deals with British Columbia, so the immediate concern that UBCM, the Union of B.C. Municipalities, has is to British Columbia, and to those affecting municipalities. It could serve as a model, however, for other municipalities throughout the country. But these are some of the issues we talked about in this reciprocal consultation.

First nation parties to the framework agreement and the municipalities within British Columbia adjacent to those first nations who are part of this process would agree to this three-point outcome.

Firstly, that they will consult with one another on a regular basis regarding the following issues of mutual concern— And there are five issues of mutual concern—very important issues. First is that land use plans in existence at the time of this agreement and in the future be discussed. Second is the environmental impact from development on their lands. Third is the provision of local infrastructure and services to their residences. The fourth regards cross-boundary land use issues. The fifth concerns other matters of general concern regarding land development and its effect upon respective adjoining lands.

The second basic principle we agreed on was that consultations and discussions would occur further down the road in a roundtable format, to which all parties would be invited. That process has yet to take place.

The third is that individual agreements between neighbouring B.C. first nations and municipalities would be encouraged in order to manage the specific details of these issues. So the net result is one of mutual relationship. Both parties, first nations and the municipalities, agreed that there must be reciprocal consultation. We discussed the laws pertaining to that.

One of the things that doesn't exist right now for municipalities, for example, is that there is no requirement in municipal legislation that they must deal with first nation peoples, and that is respected. So if you turn the tables on the other side, from our perspective the same would apply. So how do you deal with the issue? You deal with the issue by mutual cooperation and agreement to work on the issues that affect lands, and related matters that both parties could mutually benefit from.

That's the extent of where we are right now. We're anticipating some meetings that will take place later on, in the new year. We've agreed to meet, and we're waiting now for feedback from the first nations and municipalities in British Columbia to deal further with the issue. So it's well under way.

Mr. Ted White: Thank you very much. That was again a very detailed answer.

[Translation]

The Chairman: Thank you, sir.

Mr. Finlay.

[English]

Mr. John Finlay: Mr. Chairman, thank you. I don't have any questions, but I have a brief comment I want to get off my chest, because I have to go to the House for something at two o'clock, and we have to hear the ladies, and we look forward to that.

I want to thank everyone who was here this morning, Mr. Louie, Chief Austin Bear, and the other chiefs. I've been on this committee for three years, and this is a day I've been waiting for for three years. I think the highlight for me today, ladies and gentlemen, is that I heard Chief Bear say we worked “in concert and harmony”. And I've just heard Chief Louie say it was a matter of mutual benefit and cooperation between the municipalities of B.C. and the Muskoday Nation. These are the kinds of things we've been expecting.

Also, from what you told me, Chief Austin Bear, you started in 1963, and it took 15 years to modify the Indian Act in 1978. And here we are at 1998—that's 20 years. It's taken 38 years. You don't look quite old enough to have been involved all that time.

• 1300

Sir, I'm looking forward, as is my colleague Nancy, and all of us, to the declaration of Nunavut on April 1, 1999. But let me tell you, this is the day I'm going to— I may have two beers tonight on the strength of this day, because it has been a long time coming. I know you've worked hard and diligently, and I think your handling of it has been superb. I congratulate you. What you have done others can do, and I look forward to that.

Thank you, Mr. Chairman.

[Translation]

The Chairman: Thank you. That was authentic John Finlay. Thank you, Chief Louie. Perhaps we should give the floor to Chief William McCue, Pat Big Canoe and Sylvia McCue.

Mr. Konrad.

[English]

Mr. Derrek Konrad: Thank you.

I have just a general question on your overall perspective of the Indian Act and whether or not there are other sections of the Indian Act that are unworkable and in need of reform. It doesn't pertain so much to this legislation as to the Indian Act itself, which, by the sounds of it, has caused you a lot of grief over the years.

Chief William McCue: Basically, my community is working under several initiatives to enhance our governmental control within the Indian Act. Presently, we have a self-government initiative we are negotiating with the crown concerning education, governance, social services, and other areas we wish to deal with. The Indian Act, I feel, is outdated, and this is why we are choosing to look at various forms of creating our own destiny within this country as members of this country.

Mr. Derrek Konrad: Thank you very much.

The Chairman: Mr. White.

Mr. Ted White: I have one question. It may end up going back to Mr. Louie, but perhaps you would be able to answer this.

Under clause 19 of the bill, when a land code comes into effect, revenue moneys stop being Indian moneys, and they can be transferred directly to the first nation. Section 69 of the Indian Act allows the governor in council to permit a band to manage in whole or in part its revenue moneys. Are any of the participating nations to this agreement already managing their revenue moneys pursuant to section 69, or will some of them start getting moneys they haven't been used to managing? Can anyone at the table answer that question?

Mr. Robert Louie: If I may answer that, yes, there are some first nations that do that. My own community of Westbank has been dealing with revenue moneys for some time. However, what we're looking at is something that goes a little further—that is, to deal with not only revenue moneys but also capital moneys and all revenues that might result from lands and resources and to have complete authority to deal with that as the community wishes.

All first nations actually do that in some form or another, or at least for all of the 14 first nations that are represented by the group here that's the case. I can give you an example just to illustrate some of the difficulties we've had. I'll refer to the capital money and revenue money issue. In my community almost 12 years ago an issue was raised with regard to money that was in Northland Bank.

• 1305

Northland Bank, as you may be aware, collapsed quite some time ago, and with it went the Westbank First Nation moneys that it had there, some of which represented revenue and capital moneys. When we went back to deal with that issue, we had a lot of difficulty deciding how the moneys would be dealt with. We eventually settled that particular issue and, in fact, were a benefactor of a settlement in that Northland Bank issue.

One of the issues that arose later was that our community wanted to build certain community infrastructure and things of that nature, and we had to go back to the Department of Indian Affairs for their blessing. I think that illustrates the problems that are inherent right now with capital moneys and dealing with the Department of Indian Affairs on how moneys are actually administered. First nations, in essence, need to go to the department on bended knee in order to receive the right to deal with the moneys as that community chooses. It's not right, and that's one of the things that needs to be changed, and that's one of the reasons we're here.

[Translation]

The Chairman: Thank you. Madam, you have the floor.

[English]

Ms. Pat Big Canoe: I thought of another example concerning our revenue moneys that come in for leasing. Because only a certain amount of money goes to education and there's a cap on that right now, we have a real shortfall for the people who are going to school. According to the Indian Act, our revenue moneys cannot go towards education. So when you're requesting money in a band council resolution, you can't request money for education even though it would benefit all of our students on reserve and off if we could use that money for that purpose. That's just an example that came to mind that we would rectify if we had the opportunity to use the moneys as we wish.

The Chairman: Thank you.

Mr. Bachand.

[Translation]

Mr. Claude Bachand: My questions deal with the rights of third parties. As I understand it, the provisions in the bill and the framework agreement mean that you must honour leases signed before the legislation comes into force. You will therefore have to comply with the terms of these leases until they expire, even if the bill comes into force before then. Is this not correct?

[English]

Chief William McCue: Yes.

[Translation]

Mr. Claude Bachand: Of course, the terms of leases that will expire after the bill is passed may change because you will be taking responsibility for managing those leases in compliance with your land code.

[English]

Chief William McCue: Yes, certainly.

[Translation]

Mr. Claude Bachand: I hope that the framework agreement or the bill contains a provision such that third parties will not be tempted to renegotiate their leases with the Crown before the agreement is completed or the bill enacted. If I had excellent terms up to the year 2010, I might be tempted to ask the Crown to renegotiate my lease immediately, even if I had to pay a little more, and to extend it for 50 years. I hope that there are provisions in the bill or in the framework agreement that prohibit third parties from acting in this way.

[English]

Mr. Patrick Orr: May I answer that, Mr. Bachand? As the lawyer who worked on the agreement itself, I wish we'd had you on our negotiating team. That was something we hadn't anticipated. We had assumed that the existing procedure would run its course until a first nation went under its land code, and we had faith that the department would act in the best interests of the first nation. That wasn't something we had thought was a problem, so we hadn't anticipated that issue.

[Translation]

Mr. Claude Bachand: Do you think that a Bloc Québécois amendment to the bill could be helpful in making this watertight?

[English]

Mr. Patrick Orr: I don't think that's necessary. In most cases the relationship with tenants has been quite cordial, and we don't see this as a real problem. Thank you for your offer.

[Translation]

Mr. Claude Bachand: Mr. McCue, I am especially concerned for your First Nation. I would not like to be a prophet of doom, but I am afraid that if the bill is not passed, you may find yourself in March with expired leases. Could you explain to us what procedure would be put in place for renewing those leases, which would still be governed by the old system? Could you briefly describe for us how you are going to handle these situations in March or April if the House does not pass this bill by then?

• 1310

[English]

Chief William McCue: That's certainly a very good question. I can honestly say I'm at a loss for an answer on how we are going to deal with our cottagers, because under the present system the land was only surrendered for leasing until March 31, 1999. We have technically no right to re-lease these properties unless we go through a specific surrender again, which would take roughly a year to complete because it has to go under a referendum. On our liability in trying to renegotiate something, we can't guarantee the person's legal authority to go on crown land unless we have some sort of land code in effect that gives us the authority to negotiate.

We would have prepared for a surrender because it takes a year to actually complete and designate, but we passed our code 18 months ago and we were in legislation previously and thought there was no need for a designation for leasing these properties. We thought we would be able to control our own destiny. Unfortunately I cannot say how we are going to deal with it on March 31. I'm open for suggestions.

[Translation]

The Chairman: Mr. Orr.

[English]

Mr. Patrick Orr: If I can just add to that, this is something that's been of great concern to all of us watching the situation on Georgina Island. It has been one of the main motives behind our feeling of urgency that this bill get through before Christmas. So there is no other solution than the coming into force of the Georgina Island land code to deal with the question of leases. There is no other practical possibility.

The Chairman: Thank you.

[Translation]

We can direct questions to our other witnesses, perhaps to Mr. Robert Louie or to Ms Margaret Penasse-Mayer.

Ms Penasse-Mayer, I want to tell you that I know your beautiful region of Sturgeon Falls and Nipissing well. When I was young, I went there to play broomball and hockey.

Mr. Finlay.

[English]

Mr. John Finlay: For my first question, I think a yes or no answer would be fine. The next one might take a little more.

Our minister has described this initiative you're involved with here as a key sectoral component of self-government. Do you share this view? To what degree would the bill provide for or contribute to self-government by the 14 first nations? That may be very obvious; you don't need to tell me everything you've told me already. Do you see this initiative as a step toward assuming greater authority over matters?

• 1315

Chief Margaret Penasse-Mayer: Yes, it will give us more authority over all areas of governance within our community. As you may not know, half of the population in our community is young people. So we realize and understand that we have to move with the times. We have to move soon to be able to provide meaningful employment for them within their own community and in all types of areas regarding the lands, including creating their own businesses within the community, which I'm sure they will be getting into.

We need laws under this land code to legislate all that so we won't be living in disarray in our community where people can just go and plop a business here or there. Our long-term goal is to be fully organized within our community.

Mr. John Finlay: According to the material we got from the Department of Indian Affairs and Northern Development, certain of the crown's fiduciary obligations will diminish as the first nations exercise their new authority and take on their responsibilities under this new regime.

How might the government's fiduciary relationship to the signatory first nations be affected by this framework or agreement? Do you have any concerns about that?

Mr. Patrick Orr: I can speak to the legal aspect. I cannot speak to whether they have concerns, but from the point of view of the fiduciary relationship, the fact that the Minister of Indian Affairs and Northern Development currently does the day-to-day management of every single transaction on a first nations' property means there's potential for problems in managing that for the benefit of the first nation.

If the first nation takes over the day-to-day management and administration, there are just fewer things for the minister to be involved with. It's axiomatic, therefore the scope of the fiduciary obligation is less. The first nations will give their own point of view, but my understanding of it is that's considered to be a good thing because being on the spot will allow timely response and more democratic management.

Mr. John Finlay: Thank you very much. Thank you, Mr. Chairman.

[Translation]

The Chairman: Thank you.

[English]

Mr. John Finlay: Point of order, Mr. Chairman.

The Chairman: One moment.

Monsieur Louie.

Mr. Robert Louie: Thank you, Mr. Chairman. I just wish to add it's been very clear that one of the very important principles in this legislation and in the framework agreement is that any past wrongs that have taken place until now are not going to be eradicated. So the federal crown's continued responsibility would carry forward until those issues are eventually settled.

As Mr. Orr indicated, the first nations here fully understand that once the decision-making capacity turns over to first nations and that capacity rests in the hands of those communities, the fiduciary obligation stops.

Mr. John Finlay: Thank you very much.

Mr. David Iftody: Mr. Chairman, just a point of order for consideration of time. We will have to go to question period in roughly 45 to 50 minutes. I know my colleague said he wanted to go for two beers tonight; he was really excited. If he doesn't stop asking questions, that beer's going to be warm and stale.

Mr. John Finlay: That's my first question since nine o'clock, sir.

Mr. David Iftody: We have a couple of other witnesses from the Native Women's Association and another group that's also travelled a long way.

We've had a very exhaustive and remarkable few hours here. It's been just absolutely tremendous. I think we're doing an excellent job, but for the purposes of time, so other witnesses aren't cut off and we have minimal disruptions, perhaps we could proceed to the next group, with everyone's permission.

• 1320

[Translation]

The Chairman: Before our witnesses leave, I would like to thank them for their clarifications. You have represented your population very well and are certainly up to ensuring the future of your young people. Your elders and your young people will be proud of the leadership you have shown in this matter and will be happy with the results. Chief Bear's efforts have impressed me. He has been waiting for results for years and years. Rest assured that we will work hard to try and keep you abreast of the latest developments. Thank you for appearing before us today. Have a nice trip back.

I shall now give the floor to the representative of the B.C. Native Women's Society, Ms Teressa Nahanee, Executive Member, and the Native Women's Association of Canada, Ms Marilyn Buffalo, President.

Ms Buffalo, I would ask you to please make your opening statement after which I shall ask Ms Nahanee to make hers. We will then go to questions.

[English]

Ms. Marilyn Buffalo (President, Native Women's Association of Canada): I apologize for not having the ability to speak French, but I am bilingual—Cree and English.

[Translation]

The Chairman: That's already very good.

[English]

Ms. Marilyn Buffalo: Thank you.

I would like to say that as the official spokesperson for native women in Canada, it gives me great pleasure to be here today. We would have liked to have been given some further notice, but we got word yesterday that we had to be here today, so I'm going to ask the committee to please overlook that we haven't had the time to prepare.

I would like to ask Teressa Nahanee, who is the representative from the B.C. Native Women's Association, which is an affiliate member of Native Women of Canada, to present first and then I will follow.

Thank you.

Ms. Teressa Nahanee (Executive Member, B.C. Native Women's Society): Good morning. My name is Teressa Nahanee and I'm very pleased to be here today. I would like to thank the committee clerk for assisting in bringing a representative from the B.C. Native Women's Society.

I'm a member of the Squamish Indian Band, which is on the list in this legislation to be a signer to a land management agreement. I currently practise law in Merritt, British Columbia. I have my bachelor of law degree from the University of Ottawa and a master of law from Queen's University. I was a legislative assistant to a Minister of Indian Affairs for two years, to the Secretary of State, Mr. Crombie, and for Lucien Bouchard for about six months.

I see that the lawyer for the bands, including Squamish, is here with us today. I want you to know we are in court with the bands on December 15 and December 22, where they are seeking to intervene in a case in which I am a plaintiff along with the B.C. Native Women's Society and Jane Gottfriedson. So I would hope my remarks can be made without prejudice.

The subject of our lawsuit is this land management agreement that is before you, as well as the Indian Act that fails to protect people married to Indian landholders living on Indian reserves.

• 1325

The B.C. Native Women's Society is opposed to this legislation for three reasons. First, it breaches the fiduciary duty of the minister to women and men married to Indian property holders. Second, it breaches the section 15 and section 28 charter rights of women and men married to Indian property holders, in that persons married to Indian property holders are treated unequally before and under the law compared to other married persons in Canada. Finally, the legislation amounts to the delegation of land management under the Constitution Act, 1867, wherein the federal government is made responsible for Indians and lands reserved for Indians.

We have reviewed the legislation before you, and we have a number of amendments to propose that would alleviate our concerns. I have to say that I'm pleased with parts of the presentation that I have heard before my presentation, particularly the land management code proposed by the Westbank Band.

I wanted to go through the legislation. There are only six parts I would like to talk about in the legislation. I think that if you could make some amendments to this legislation, it would alleviate our concerns with respect to the land management act. If it's okay, I'd like to mention those six clauses in the legislation. The first one is on page five. I was going to mention an amendment on page 4, but the government did insert paragraph 6(1)(f) to alleviate some of our concerns.

We would also like an amendment to subclause 6(3). What we would like you to do there is include the application of provincial matrimonial property rights on an interim basis until a land code is put in place by the community to govern the disposition of matrimonial property upon divorce. From the legislation, you can see that there's a 12-month period when there may or may not be a law in place by the first nations because of the process they have to go through. Within that 12-month period when there is no law—there's nothing in the Indian Act, so nothing will be carried over—we would like to see something in place.

We did tell that to the minister's representative when we were consulted on this legislation. The minister, however, consulted the bands, so I understand, who refused to insert anything to cover that 12-month period. So that would be in subclause 6(3).

Under subclause 12(2), we have concerns about an approval process that requires only 25% of the eligible voters. We would like to see that increased to 51%, or we would like it to be the same as the surrender sections of the Indian Act. In fact, it amounts to a surrender. It's a surrender from the government to the band.

With respect to clause 17, we would like you to add a minimum standard. You can refer to subclause 21(2) for possible wording to add a minimum standard. You're adding minimum standards for the environment, but nothing for matrimonial property rights.

We would also like you to add another section on that dealing with incorporation by reference. This was referred to by the Westbank presentation. They mentioned the possibility of incorporating provincial law by reference if they did not develop their own land management code. The wording for that can also be found in subclause 22(2), which is incorporation by reference.

In clause 20, we would like to see something added in there that deals with the use, occupation, and position of first nations land and the division of interest in first nations land in cases of marital breakdown.

• 1330

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): What was the clause number of the last one?

Ms. Teressa Nahanee: This is clause 20, on page 11.

Mrs. Nancy Karetak-Lindell: The whole clause?

Ms. Teressa Nahanee: Subclause 20(2).

Mrs. Nancy Karetak-Lindell: Could you could just repeat that?

Ms. Teressa Nahanee: Okay. What it basically says is that the first nations may write laws that include the following. To that list of five—(a), (b), (c), (d), and (e)—we would like to add (f). It would would deal with the use, occupation and possession of first nations land and the division of interests in first nations land in cases of marital breakdown.

I have a question related to clause 34 on page 19. You might want to ask the minister who will enforce this law. The minister wants to be relieved of all liability with respect to whether the first nations carry out what they say they're going to carry out. Who will be the enforcer if the minister does not want to be liable?

This is my last comment. On page 21, in clause 40, there's a lot of interest in this bill dealing with the environment laws and nothing to do with matrimonial property. I guess on matrimonial property, what we would like to see is the addition of a clause that deals with the inconsistency of provincial laws with general application. When the first nations develop a code dealing with matrimonial property, we would like something in this legislation to deal with minimum standards or inconsistency of provincial standards.

Our position is that B.C. laws with respect to matrimonial property are very good laws. It sets a very good standards for rights of people married to each other when they have a breakdown. The law dealing with the division of property in B.C. is a good standard to be followed. We would like some such standard put in this legislation.

These concerns were raised with the minister's representatives and with the department's representatives. They did add a couple of clauses dealing with matrimonial property. In our view, they fall short of what we had required. These are the changes we would like to see to this legislation before we can consider getting out of our court case.

With respect to our court case, we are in court twice in December dealing with intervenors in the case. We're bringing an injunction that will not be heard until February. This would be to stop the minister from implementing this legislation if and when it passes. In the meantime, if amendments can be brought, as I have mentioned, that probably would be acceptable to the B.C. Native Women's Society and the plaintiffs in the case.

Those are my remarks. I think Marilyn is going to make a statement and then we'll answer questions.

[Translation]

The Chairman: Thank you, madam.

Ms Buffalo.

[English]

Ms. Marilyn Buffalo: Thank you, Mr. Chairman.

I would like to say that with all due respect, I'm a grandmother and I'm a first nations representative. I was born and raised on a reserve. I come from a family that was raised on the prairies. Treaty No. 6 is my treaty, and one that I honour and uphold in my work.

• 1335

The Native Women's Association of Canada was founded back in 1974 because of the difficulties our women were facing on reserve. It was founded to address the social justice issues of women and children by legislation in Canada, because as you know, the Indian Act is alien to our societies, alien to our cultures and our languages. More importantly, I want to point out for the record that it's patrilineal and was brought by Europeans; it's not ours. So this law, this Indian Act, has created havoc in our communities.

I can say first-hand, as one who has been active in this area for my entire life—my grandfather, John Tootoosis, was the founder of the Assembly of First Nations and the Federation of Saskatchewan Indian Nations—that we know our rights, and it's often not respected and implemented at the grassroots level.

I say this because we're entering into an age when we're celebrating one year of the Delgamuukw decision at the Supreme Court. And the reason why the Delgamuukw case is so powerful is because it's based on respecting matrilineal law. The traditional hereditary rights of native women are paramount to all decisions made by that traditional hereditary governance system.

I also want to remind everyone that it's not that long ago, 13 years ago, that the government amended the Indian Act and Bill C-31 was passed. At that time, the first nations were given two years to implement membership codes. And since 13 years have passed, many first nations did not decide to opt in because they didn't like the bill entirely—it was a bad bill. And for that we have the Walter Twinn case that's still hovering over many of our people's heads in Canada. Many first nations tried to file membership codes that were discriminatory and did not acknowledge the acquired rights of native women and children.

I want to mention also that there are no unilateral protections in those membership codes. In other words, the band can amend those at their whim and there is no protection for women.

I also want to remind everyone that at the time, and it still is the case in many of the first nations, there were no guarantees. Yes, we have a charter, but no one enforces the protections. And many first nations women, particularly those from oil resource bands, still are not receiving any of the benefits and per capita distributions that is their right, their inherent right. As we understand it, our treaty and fiduciary responsibilities lie with the minister and there are no means for the minister to enforce the recognition of those rights.

We have, ladies and gentlemen, before the Canadian Human Rights Commission literally hundreds of women whose rights have not been acknowledged, and Canada and other countries in the world are celebrating the 50th anniversary of the Universal Declaration of Human Rights. Native women and children, who are the poorest of the poor in this country, do not celebrate, do not join in that, because we have very little to honour.

I also want to mention that since my election June 21, 1997, my main preoccupation has been to get the minister and the present government to treat the Native Women's Association with some dignity and respect and to start giving us some moneys so that we also can be involved in this democracy, in what you call democracy. What I see is that sometimes democracy can just be another mountain for you to hide behind.

The reason I say this is that in September 1997—I go on record—I requested funding for the Native Women's Associaton of Canada to investigate and get some legal services for us because I have before me in my office, with all due respect to the 14 first nations that have filed these petitions, cases that have to be addressed, both individually and collectively. And that is the reality. I did not come with a petition, but I came with the support of the many women I meet on a daily basis throughout this country whose rights are not being recognized.

• 1340

Also, through no fault of theirs, the minister in June 1998 made an announcement—again we were not consulted and we read about it in the papers—that she was going to be doing a fact-finder. Again, I want to report that we have no means to participate in these processes, and the fact-finder is one example. If you have the hearings in the communities or in the off-reserve communities, many of our women are afraid to come forward and testify because of the implications for them at the grassroots levels. They are afraid.

What I've asked for from the minister, and from the staff at Indian Affairs, is that we have a forum where women could come and testify in confidence and there would be no negative implications on them in their communities. When women come forward at the first nations community level, they become tagged and get blacklisted, and their chances and their children's chances are very poor.

To date, ladies and gentlemen, we have not received any funding. I have received many calls from the 14 first nations who were present here today, and I don't have the means, the legal advice and the money to get the legal advice, to get help so that I could, with all dignity, sit with these first nations chiefs and converse with them and be well informed.

So the issue of consultation here is paramount, not only on this issue but others as well.

I want to mention that we have a national resolution. We have the support of our elders. And, yes, I understand that even in 1985 there were first nations women who came forward who lived on reserve, who were born and raised on the reserve, who were married to Indians, and some of them were not Indians, who actively campaigned against the amendment of the bill. It's by no means perfect, but here we have politics again. I can say that not every first nation in Canada is represented by the Assembly of First Nations either. And Delgamuukw himself—remember there's a human face to this Supreme Court decision—is not represented by the Assembly of First Nations either.

I respect the petitions. I respect the positions. But in actual fact, ladies and gentlemen, this is the reality on the reserve, in the reserve community.

Thank you very much. I wish there were something else I could present. We have 13 member organizations with the Native Women's Association of Canada. The B.C. Native Women's Society is only one of those, and we support their their position today, that if those amendments can be met, if we can talk and give native women the tools to work with, then we can avoid a lot of painful agony for our women and also the chiefs present here today. Thank you.

[Translation]

The Chairman: Thank you, Ms Buffalo, for your heartfelt presentation. It's really important. Thank you, Ms Nahanee.

We will now go to questions. Mr. Konrad.

• 1345

[English]

Mr. Derrek Konrad: Thank you very much for your suggestions. I presume you filed those with someone in writing so we can have a look at them more formally than having them run by us very, very quickly.

If I have a question, it would be on the grounds of your injunction. We have heard that Georgina Island lease arrangements are all going to be up in the air if this legislation doesn't pass. Can you, based on your legal experience, tell us what the situation will be for the Georgina Island lessees if your injunction is granted?

Ms. Teressa Nahanee: I'm sorry that lawyer could not be here today. She's Barbara Findlay of Vancouver. You would actually have to address your question to her, as she is our legal adviser and the person who will be in court on December 15 and 22.

Mr. Derrek Konrad: I have one or two other questions that might be a little easier to answer.

Number one is I wonder what the membership of the national organization is, and I also wonder if you have any members on the 14, I think I heard you say, reserves that were signatory to the agreement, who don't support the agreement.

Ms. Marilyn Buffalo: The Native Women's Association of Canada represents first nations Métis and Inuit women; that's just how our constitution is written.

The reason for that is we have 13 member groups. The reason we include Inuit—and I want to explain this to you, because you have limited knowledge of our organization—is we have Inuit from the western Arctic communities who come to our assemblies. Now, we have Métis and we have first nations, and each of these organizations has locals in the communities.

In the case of Ontario, we have I would probably say 75 locals in a lot of the first nations communities. So to answer that specifically, I'd have to go back and question them.

Is it Georgina Island specifically you were asking about having a member organization?

Mr. Derrek Konrad: Any of the reserves, if you have memberships on the reserves. I don't know whether your memberships are individual, or as you said, group memberships in a sense, if you have local chapters that are part of the larger organization. I meant individuals—as in this person, this person, and this person—having a membership card. Do you have that type of membership?

Ms. Marilyn Buffalo: Yes, we do.

Mr. Derrek Konrad: You don't know the numbers you have though.

Ms. Marilyn Buffalo: I do have it, but sometimes I release it and sometimes I don't. It's the same as asking which party you represent, and how many members you have.

The Native Women's Association of Canada has been long recognized as one of the five national organizations. Of the five national organizations, the Native Women's Association of Canada is a solvent organization, and we're the only one that owns real estate in the city of Ottawa and is not in deficit. We're mortgage free. And we do a good job of representing women's rights, in all dignity and due respect, sir.

[Translation]

The Chairman: Thank you very much, madam.

Mr. Bachand.

Mr. Claude Bachand: I would first like to thank Ms Buffalo who upholds her causes so well. I've had the pleasure to work with her because we've upheld many native cases together. I would like to assure her that as to the deficiency on the monetary side, I will commit to giving her a hand so that these women can get the work done.

However, there is a major problem in your presentation, to my mind. Some groups, whether the AFN, Inuit Tapirisat of Canada or Metis, don't only engage in lobbying. They defend very important general ideas, but there is a limit one should not go beyond and it is that of the decision-making groups. In other words, in any given context, who must make the decision?

• 1350

I have problems with your presentations because there are people who must make a decision. There are many ways of electing a band council. There's the traditional way which is by simple majority. There's the non-traditional way which is written into the Indian Act, but there is also the hereditary traditional way. Some communities can do that and it is recognized by the department.

However, those groups have the last word on their future. The AFN or Inuit Tapirisat cannot tell any community in Canada: You must go by what we say. That's the problem we're dealing with today. We have 14 nations representing the whole of their membership where band councils were elected in good and proper form, according to democratic rules. These people are telling us that they're completely satisfied with this.

On the other hand, the B.C. women are saying: We're pursuing other interests and we want to stop this undertaking. You may find me a hard man, but you're taking democracy hostage. Here's what I mean. In any society, there are people who are there to make decisions. They were elected to do that. We also are in contact with many groups in society who try to influence us. At the end of the day, the elected officials are those who decide. That is not what you represent. You represent a group of women doing excellent work. However, when the time comes to implement the legislation concerning these people, it's up to them to make the final decision. I think you're acting rather harshly when you prevent them from making this decision.

Your role is to make a general recommendation. When you try to prevent people making their final decision, quite legally, you're blocking democracy.

Marilyn, I'd like to hear what you think about this. I'm always open, but for the time being that's how I see things. I'd like you to convince me of the opposite.

[English]

Ms. Marilyn Buffalo: Claude, you know I can be very persuasive.

Mr. Claude Bachand: I'm also very stubborn.

Ms. Marilyn Buffalo: That's one of the reasons why we get along so well, as long as we keep talking.

Mr. Claude Bachand: Yes.

Ms. Marilyn Buffalo: I think it's very important to note that native women have not been given the opportunity to talk. I've travelled many places. I've gone to the State of the World forum. I've talked with international leaders. Let's talk about, for instance, the reserve systems in Canada. These, by the way, were exported to South Africa, and over there they call it the homelands system. We celebrate the Universal Declaration of Human Rights, but apartheid is alive and well in Canada.

You heard our chiefs today make mention of the restrictions on economic development—restricting tourism and all of these things that the rest of Canada appreciates, but we do not, because of the restrictions of the Indian Act. I respect this and I know it. I come from a family business background myself. Native women's issues sometimes do not fit in the confines of four umbrella organizations. We have the issue of the on reserve and off reserve. We have the political legislative realities of provincial laws and federal laws.

• 1355

Native women are leaving the reserves in record numbers across this country. Well over 60% of our population lives in those urban poor communities, because women have been forced to leave the home. There are no protections. Is a woman to go to the RCMP or the tribal police? There is nobody there. Who do you go to, the chief in council? They say go home, go back to that abusive situation.

Perhaps it is because there are no services on the reserve. There are no protections because of the family violence situation. Perhaps the family just falls out of love and decides not to live together any more. Whatever it is, it's always the woman and the children who leave.

When a woman leaves the community and she moves to a city, she's marginalized. She has no means of obtaining income. She has no marketable skills. There are very few programs under provincial auspices to support her. In many of the first nations communities, once you leave you can't access many of the benefits to education and so forth. There are definitely no housing programs.

The reason I mention all of these issues, Claude, is because they are related. This is the plight of the native women in Canada. It's not to be a stick-in-the-mud, or to disturb, or just for the sake of being foolish. It's not. This is the reality. I could take you to homes in this country that will just break your heart. I have to remind you of what what was said—who is going to enforce these laws? How is it going to be done? How will it be implemented, if the man says no. I respect that it's not only gender. I understand this. I have eight brothers. They've also had separations and so on.

At the end of the day, there is nobody there to manage that relationship. We don't have family counselling services in our communities. Who enforces alimony? How do you protect that woman and child? Who is going to enforce the alimony, and who is going to make sure the family gets possession of the home.

Traditionally, I might also remind you, it was woman who had veto power. In many of our communities they still have the veto power. They looked after the land and decided how the food would be distributed. In many of our communities they decided who was going to be a lawyer or the chief. If you ostracize the women, you won't be chief for very long under the Indian Act. Under the hereditary traditional systems, there are checks and balances. In communities, a woman will only tell you once, maybe three times, and then you're out.

This is the reality of hereditary systems, and they still work. In our hereditary systems, women and children are not neglected. If they are, there are consequences. There are consequences if you break any law. It doesn't matter. That to me is democracy.

Thank you very much.

[Translation]

The Chairman: Thank you, Ms Buffalo.

Nancy.

[English]

Mrs. Nancy Karetak-Lindell: You say women were not a part of this consultation. Yet we had some woman chiefs representing their communities. I don't think you can make a blanket statement saying women were not involved when we had, I believe, four chiefs here representing their communities. We also heard from some members, even if they were not chiefs. So I'm a little puzzled that you can make a blanket statement of that case.

• 1400

When I look through this I try to compare it to my own Nunavut beneficiary agreement. Any time we get an agreement where we get to govern ourselves and make decisions at the community level, which is what we have been asking for, I thought we were usually taking into account the best interests of the community as a whole, and there were more avenues for a community to work out community solutions.

When I saw some of the criteria in the framework agreement that these issues are to be covered within the 12-month period, don't you think that gives you enough opportunity to work with the community to achieve what you're trying to achieve today?

Also, Judy and I have been sitting on the child custody and access committee and one thing I learned in that committee is the Divorce Act is the area that works with marital break-ups and it's a federal statute. I'm trying to understand how we're dealing with land here and a community's effort to govern themselves versus something that might be covered under another act. I'm a little confused.

Ms. Teressa Nahanee: First, the Divorce Act deals with certain aspects of marital breakdown and the rest of it is dealt with by provincial law. So it's either the federal Divorce Act or provincial law, and where they overlap the courts will normally deal with them together.

If it were possible to amend the Divorce Act with respect to matrimonial property rights on reserve that would be the subject of a different kind of amendment. But it's not covered in the Divorce Act right now and it's not covered in the Indian Act. We would ideally like the minister to amend the Indian Act or give us a new piece of legislation that deals with matrimonial property rights, because the government has been in possession of court cases for 12 years and has done nothing to fill the vacuum in the law.

The vacuum in the law is that there is a matrimonial property rights law for every married Canadian, but there's no law for anyone married to an Indian property holder on reserve. There's no law for these people but there's a law for every other Canadian. That is discrimination on the basis of race for one thing, and a breach of the charter. The minister has been in breach of the charter since 1985 on this very point. That was part of my issue. At the beginning of my presentation I said the minister is breaching the sections 15 and 28 of the charter by not putting in place a law to deal with this issue. We are the only Canadians with no law in this area.

With respect to the Divorce Act, there's nothing in there that protects us. The provincial laws have been found not to apply when they deal with Indian land. We have a vacuum in the law and a breach of the charter.

With respect to the 12-month period, we are just asking you to put something in place if the bands do not do it immediately. I understand from the Westbank presentation they've actually developed a code with respect to matrimonial property. If they're going to continue with that development and have it passed by their community, we have no problem with what they're doing in Westbank.

But if the other bands that are involved here do not put something in place for that 12 months, then asking you to put something in there on an interim basis; namely, the provincial law in the province in which the band is located. I think it's mainly B.C., Saskatchewan and Ontario. For the 12 months, we're just saying the vacuum in the law will continue if you don't put something in place.

Finally, I think we are being characterized as the ones putting up the roadblocks, but we're not the ones putting up the roadblocks. We have a government that's in breach of the Charter of Rights and Freedoms with respect to people married on reserves. So they do not have any benefit of the law at all, because there is no law.

• 1405

I think you have a responsibility, as parliamentarians, to uphold the Charter of Rights and Freedoms. And when you're looking at this legislation, I hope you will look at your responsibility under the charter to see whether or not you are passing a law that will continue a breach of the Charter of Rights and Freedoms.

The other two points we're making are that the minister has a fiduciary responsibility to all Indians and in this case, to women married to Indians on reserves. The minister also has a responsibility under the Constitution Act of 1867 for Indians and lands reserved for Indians. And the minister has known for 13 years that there is no law in place, since the Derrickson case that was mentioned earlier. The minister has known there is a vacuum in the law and has refused to fill in that vacuum.

Marilyn Buffalo met with the minister to talk about basically doing a dog and pony show of going across the country and consulting everybody on amendments to the Indian Act. That discussion she had with the minister didn't amount to anything. The minister did not commit to a process that would look at amendments to the Indian Act on matrimonial property rights.

Finally, the only other thing we're saying is the minister did not go far enough in this legislation to satisfy our concerns. Obviously you will make your own decision on what to do with this legislation. We're just here to tell you we're opposed to the legislation the way it is written right now.

The Chairman: Madam Karetak-Lindell.

Mrs. Nancy Karetak-Lindell: Could I maybe get another clarification that you're only talking about this section on marital breakdown—in cases of marital breakdown?

Ms. Teressa Nahanee: The only concern in our court case and our presentation is for matrimonial breakdown.

Mrs. Nancy Karetak-Lindell: Okay. Again, I'm trying to understand why we would not be seeking an amendment, or why you would not be seeking an amendment to the Divorce Act instead of through this Bill C-49, if you're dealing with a marital breakdown. I think we're trying, in a way, in my understanding, to deal with apples while we're dealing with oranges. If we're talking strictly about marital breakdown, I'm trying to understand why you haven't gone the route of seeking an amendment to the Divorce Act instead.

Ms. Teressa Nahanee: I may have to get my lawyer to write you on that matter, but my understanding is the Divorce Act is not amendable with respect to Indian lands. We would actually have to go after an amendment to the Indian Act, which we have done. We actually drafted amendments to the Indian Act, and we gave them to the former minister, Ron Irwin. We asked him to make these amendments to the Indian Act to take care of matrimonial property rights. He understood the problem very well, but he said the Assembly of First Nations might not agree to those amendments, and therefore he refused to move on any amendments to the Indian Act until he had some assurance the Assembly of First Nations would be on side.

So amending the Divorce Act would not be— It's probably not possible, and not likely to solve any conflict with respect to Indian lands, which are governed by the Indian Act.

The Chairman: Madam Buffalo.

Ms. Marilyn Buffalo: You asked a very important question regarding representation. It's unfortunate the Nunavut sex equality clause was defeated in the Nunavut region. I think that would have been the best case example, and it's probably as close as we could get in modern-day traditional representation for women.

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But I also want to say that we mustn't assume that because a woman is a chief she has the powers to make legislative changes unilaterally. A chief, regardless of gender, has a lot— Let me give you an example. My chief is a woman. She's female. Her name is Chief Florence Buffalo, for the record, of the Samson Cree Nation. But I'm a Bill C-31 woman. To this day, since 1985, which is when Bill C-31 came into effect, neither I nor my children have received any rights or benefits to the per capita distribution of oil royalties.

I give this as an example because 14 first nations have stated that the majority of their women are landholders. That's great, but that's not the case for all of them. It's certainly not the case for all first nations of Canada. Say other first nations should decide to opt in. In most of the communities in Canada, women are not the landholders.

Regardless, it's a very difficult job to be a chief. It's also a very difficult job being a national female leader too, because of the inherent laws that are there that don't protect women and children. In many cases this doesn't protect the spouses of the women concerned as well. So it affects the men as well as the women. But it's difficult.

[Translation]

The Chairman: Thank you, Ms Buffalo.

Ms Longfield.

[English]

Mrs. Judi Longfield: I'll be very brief. I apologize for not being here at the beginning of your brief, but I had a briefing from my staff on some of the issues.

I don't negotiate very well with a gun pointed at my head. I guess when I hear that if we don't make the amendments you want you're going to issue an injunction, that doesn't sit very well with me. But I'll leave that for another matter.

We have before us 14 first nations who want legislation that will affect them directly. I don't dispute much of what you're saying about women and their rights throughout the country. Indeed, Nancy alluded to the fact that she and I have been intimately involved with all aspects of divorce, separation, custody, and access. I know it to be a very difficult position for both men and women. Marital breakdown is difficult whether you're in a first nation or in a large urban community.

We need to address that. Indeed, I think you'll find when we table our report that we indicated there needs to be much more study in the area to deal with aboriginal communities on this. So we're very sensitive to that.

But what we have before us is something that affects the 14 first nations. As you pointed out, democracy says that when the majority of people have considered this and feel that this what they want to do, then as legislators, we should not take third-party concerns and apply them when they're not intimately involved. We're dealing with 14 first nations who want this and who say that they feel their rights will be looked after.

How do you respond to that? How do I take your position over the 14 nations who are at the table as parties to this agreement?

Ms. Teressa Nahanee: My name is Teressa Nahanee. I'm a member of the Squamish Indian Band. The Squamish Indian Band is part of this legislation. I'm not a third-party interest. We do have members in our society who are members of that band.

Mrs. Judi Longfield: Again, doesn't democracy say— You're always going to be dissenting. We have the official opposition. They don't agree. There's a position for opposition, but at the end of the day, isn't it the case that the majority rules?

Ms. Teressa Nahanee: That would be nice. That's the way we run this country. But we also have a Canadian Charter of Rights and Freedoms, which applies to you and me. I have a right, as a first nations person, to benefit from the Charter of Rights and Freedoms just as much as you do.

• 1415

Fortunately, you're not married to an Indian property holder, so you don't have to worry about whether or not you're going to have any rights in this country. You don't have that problem at all. I don't know if you can even identify with the problems we have, because we are the ones who have been discriminated against for 13 years.

The Supreme Court of Canada made a decision in two cases. It said that provincial laws do not apply, and the government did nothing. When the Supreme Court of Canada makes a decision with regard to other Canadians' rights that says that the federal government is clearly in breach of rights of its citizens, Parliament and ministers rush to fill that void, and they create a law that will meet the Charter of Rights and Freedoms. But they didn't do that for us. We're obviously not considered to be full citizens, and we're not considered to be full human beings because we're out there on the reserves. So 13 years is a long time to have a vacuum in the law.

So we brought our court case, and as a result there have been amendments made to this legislation dealing with matrimonial property rights. If we didn't bring our court case, you wouldn't even be talking about matrimonial property rights today. We have a right. We have a right to say that our rights are violated. As I said, I'm not a third party interest. I have a right to speak for those whose rights are violated. You have a responsibility, as a member of Parliament, to uphold the Charter of Rights and Freedoms, and I'm just saying that I hope you will do that.

The minister has fiduciary responsibilities and responsibilities for lands reserved for Indians, and I wish the minister would live up to her responsibilities, which she clearly is not doing.

This is not a bill about democracy. This is a bill about our rights as Canadian citizens. Just because we live on reserves doesn't mean that we don't have those rights. We have every right that you do. It's just that you don't give us the benefit of that right. That's what we're saying.

Mrs. Judi Longfield: That's where you and I will disagree. I don't for a minute think everyone is going to be happy. I've been on the opposite side. There has been legislation passed where I have dissented, where I have not agreed. But the fact of the matter is that at the end of the day, democracy says that with 50% plus one we can do it.

We certainly have adequate evidence that where these 14 nations are concerned, they have the majority and they have the moral and legal right to ask that we put something in place that addresses their concern.

Now, I will also say to you that I think you're right in that there needs to be much more done, particularly in the areas of matrimonial homes and the division of land, because as you point out, you're not subject to provincial legislation. Perhaps when the 14 nations are forming their final papers, they themselves will in fact decide that at the very minimum they want to look at provincial statutes. But they may want to be far more aggressive and have even higher standards. There comes a point when individuals themselves have a right to make those determinations.

I think we could go on and agree and disagree, but I don't want to protract this. I'm clearly saying to you that nothing that has been said or presented to me today makes me feel that I would not support the legislation as it is. I would also encourage them to get those agreements in place long before the first year is up. It's probably appropriate, as you suggested, that in the interim they may want to look at provincial statutes, but I don't think we need to put it in the bill.

The Chairman: Madam Buffalo.

Ms. Marilyn Buffalo: With all due respect, Madam Longfield, it's obvious that you've already made up your mind. All we can tell you is what we know, and we know that our rights are not being protected. I know that first-hand myself.

It's quite obvious that no matter what legislation we talk about, whether it's the Divorce Act or to do with social housing, the Indian Act is not the only act that affects native women in this country. We are the poorest of the poor. But remember, along with all of these laws, there are international laws, and we have treaty rights.

• 1420

There's not one territory—except maybe a few little places—where treaties have not been negotiated wherein native women haven't got the full recognition in law under treaties. Our treaties were negotiated on a nation-to-nation basis. The native women in this country do not have the same standard of living as the non-aboriginal women in this country. The native women, because of being so poor, don't even have time to get over one death and another one happens in the community. They don't even have money to buy sandwiches or to make sandwiches for people who come to grieve at these wakes and funerals.

In my community, and in any first nations community in this country—pick any one—if you count the number of deaths we've had in the last two or three months I venture to say it won't be less than 20. So who do you think is left holding the bag at the end of the day? It's the woman. It's the woman with no means of support, and her children are committing suicide and there's no education and there's no means. There's no home. There's no roof, so where do you go? You go on social assistance in the cities and the children have even less chance of survival because the woman is suffering.

If you want to help native women in this country, you want to rescue a family, train and educate a native woman and never mind the rest of it. I hate it when I have to be in a position where I have to beg for another Canadian woman to listen to me, to hear me outside the confines of this House of Commons—with all due respect.

I have spoken. Thank you very much.

[Translation]

The Chairman: Thank you, Ms Buffalo.

Nancy.

[English]

Mrs. Nancy Karetak-Lindell: I don't think that is what we're saying. I think we have a bill in front of us that we're dealing with. I deal with those issues in my own riding, and they're the same conditions in a lot of aboriginal communities. So I don't think we're really dealing with what's before us in Bill C-49.

Before I was on this committee I had not very much experience dealing with first nations issues because I was busy dealing with my Nunavut issues. So to clarify the situation, can you explain a little? I see this as really only for 14 communities. What about after this act goes through and another 14 communities want to do this sort of agreement? Then you have to go through it all over again, trying to get those rights put in. Would it be easier to try an amendment with the Indian Act?

Ms. Teressa Nahanee: Yes, I guess that's what we're after with the Minister of Indian Affairs. She said, I think to the Assembly of First Nations, that she would hold some hearings on amendments to the Indian Act to deal with matrimonial property. Marilyn Buffalo met with the minister on that topic, but it didn't result in anything concrete. In other words, there are no plans, no money to go and do these hearings. There's no schedule.

Why this bill is so important is because it isn't only because of these 14 nations. I think my assumption is—and I may be wrong—that other first nations can opt into this legislation, and once they do I'm not sure if they can opt back out of it. I don't even know if these 14 can opt out of this bill once they're in it. But if you were to take this bill and any of the 600 bands could opt into it, then obviously we want some protections in this bill so that everybody else who opts into it, the next 20, are also governed by this law. We hope this law will protect matrimonial property rights of men and women who marry Indian property holders on the reserves. In that case, anybody who can opt into this bill hopefully would benefit by whatever happens in this bill.

• 1425

We are seeking amendments to the Indian Act as well, but the minister has not moved very far with respect to establishing a process for those amendments.

The Chairman: Madam Buffalo.

Ms. Marilyn Buffalo: For the record, I want to say that in September 1997 I filed a proposal before the minister. I have not received any response. I have approached the Status of Women Canada, who I'm assuming is responsible for looking after the status of women in this country, with no response. In fact I had submitted a proposal to look at the issue of gender equality. It was turned down, if you can believe it.

In May of this year I sent a proposal. I met with the minister many times prior to that, and have not met with her since they lost my proposal. I just resubmitted a new, updated version of my original proposals last Monday. Every effort has been made on our part, but the discrimination continues.

Now I'm informed that the Assembly of First Nations is going to be setting up a gender equality secretariat and they're going to be setting up another women's whatever. They've passed a resolution. That's not going to solve the problem. Maybe native women of Canada should pass a gender equality resolution and have a token advisory man at our council meetings too, but that's not going to solve the problem.

In reality, we have to come to a forum where we are treated with some dignity and where our women don't have to hitch-hike to the meetings. We have to start looking at traditional governance outside of the Indian Act system and laying some groundwork for some hope. Unless this government starts recognizing the official voice of native women of Canada, there will be no movement; there will be no changes taking place.

I have been an active member of the Liberal Party of Canada all of my life since 1965, when I was 15 years old. I left the party because I didn't think the women in the organization were supportive of our plight as native women. I want that put on the record. I have made every effort to work with this process and with the government.

Under Gathering Strength there's a big section there on defining the role of native women in governance, but we have no means to get to that table. We have no means to travel to the fact-finder. While the male-dominant organizations are getting millions of dollars, we get nothing. That's the reality.

[Translation]

The Chairman: Thank you, Ms Buffalo.

Any further questions?

Ms Buffalo, you have shown much courage and pride when defending native women. I know that your battle is not yet over. You often speak up for the silent majority. You have all my respect.

Thank you very much.

We will meet again at 3:30 this afternoon, in this room.

The meeting stands adjourned.