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]

Tuesday, March 23, 1999

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[Translation]

The Chairman (Mr. Guy St-Julien (Abitibi—Baie-James—Nunavik, Lib.)): Good morning everyone. Before we begin our order of the day, I have two points I want to raise: a letter that we've received from Ms. Desjarlais and correspondence from Mr. Konrad.

Ms. Desjarlais.

[English]

Ms. Bev Desjarlais (Churchill, NDP): Actually, as the letter states, it was just my wish to ensure that the department officials were here to answer some questions that came up as a result of meetings with previous witnesses. As I said, it was to ensure that we did hear from them again and got the opportunity to get some questions answered.

[Translation]

The Chairman: Mr. Nault.

[English]

Mr. Robert D. Nault (Kenora—Rainy River, Lib.): Mr. Chairman, as I understand the natural process of things, the officials will be sitting right there when we go into clause-by-clause considerations, and we'll ask them a whole lot of questions for clarification. I'm assuming that we'll ask them these questions that Madame Desjarlais has earmarked. That's our intent, I hope.

Ms. Bev Desjarlais: It was an assurance.

Mr. Robert Nault: Okay.

[Translation]

The Chairman: Thank you, Mr. Nault.

Mr. Konrad.

[English]

Mr. Derrek Konrad (Prince Albert, Ref.): I just request that this clause-by-clause process be set aside until we've had some time to review the evidence. Some of you may have gone through it more than once. I've found that we had two referenda in one community and no referenda in any other communities. I don't know whether there's one plan for the next community. I see a divided community, conflicting evidence, including a geodetic elevation that seems to be in question. The arguments about the treaty status of the Northern Flood Agreement also remain unaddressed at this time. I think it would be fair if we took some time to look this over, since we've just finished hearing evidence. I think consideration of evidence, most times, should be a little longer than a couple of days.

[Translation]

The Chairman: Thank you, Mr. Konrad.

Mr. Nault.

[English]

Mr. Robert Nault: Just for clarification, Derrek, how long are you talking about?

Mr. Derrek Konrad: I hadn't set a time.

Mr. Robert Nault: Five years? Twelve years?

Mr. Derrek Konrad: No, no.

Mr. Robert Nault: Two days? Next week? I'm just trying to get a sense of it. You can't make that kind of request and then not give us a timeline for what you're suggesting.

Mr. Derrek Konrad: That's fair. I'd suggest that it should go at least until after the break, so that we have time to consider the written and the oral evidence.

[Translation]

The Chairman: Thank you, Mr. Nault.

Mr. Finlay.

[English]

Mr. John Finlay (Oxford, Lib.): Mr. Chairman, I have read the letter from my colleague. I would point out that, as I understand it, this is the fourth first nation under the Northern Flood Agreement and the MIA to make this sort of agreement with Manitoba Hydro, Manitoba, and Canada. The other three agreements have been passed. The majority of people in Norway House have said they want this agreement. I know Mr. Konrad is speaking from the heart, and I know he hasn't heard these stories quite as often as some of us, but delay is not acceptable to me. People expect people on the positive side of this, if you like... Other communities expect us to get on with this matter.

I characterize the discrepancies that we've heard and the referendum problem quite differently. The people who wanted it otherwise lost, and lost in Federal Court, and they're coming to us to again put forward the same position. It has already been dealt with quite adequately, in my view, Mr. Chairman, so I suggest that we get on with clause-by-clause consideration.

[Translation]

The Chairman: Thank you. Do we want to discuss this any further?

[English]

Mr. Derrek Konrad: Yes, just one quick remark.

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The issue of the base for the elevation to which the lake can fluctuate has been brought into question. I would therefore suggest that we should possibly have the surveyor general give us an opinion on the benchmark used, at least for the portion of it that was brought to my attention last week when one of the groups came to speak to me. It makes a difference if there was a difference in the data used. A higher elevation floods more land.

Mr. Robert Nault: Which part of the legislation is the Reform Party talking about, Mr. Chairman? I didn't read that.

Mr. Derrek Konrad: That's not in the legislation, but it certainly—

Mr. Robert Nault: Well, that's what this debate is about.

Mr. Derrek Konrad: —was in the agreements that the legislation is supposed to implement.

The Chairman: Mr. Iftody.

Mr. David Iftody (Provencher, Lib.): If I understand the gentleman correctly, Mr. Chairman, what he's suggesting is that long after both Hydro... I think there are many independent consultants' reports. If the member wishes, he could spend his summer holidays reviewing those, since he'd like to pour over some information. I would help him get those surveys and the technical data that would be available to him for review. Having a background in these matters himself, if he could find those kinds of discrepancies and show that they were indeed valid, then perhaps we could undertake to have him show them to us. But outside of conjecture by a few people, without any specific data to confirm those suggestions at all, I don't know how the hon. member would ask the committee to undertake such a study that is beyond the purview of this committee.

He's talking about the evaluation of damages by the flood waters, and he's disputing the technical evidence that was tabled and I think largely understood by the Government of Canada, Manitoba, and independent audits going back some 25 years.

So I would suggest to Mr. Konrad that if he would like to review that data professionally himself, he's free to do so, but I think it's entirely inappropriate to undertake that kind of work in this committee at this moment, Mr. Chairman.

[Translation]

The Chairman: Thank you.

Mr. Nault.

[English]

Mr. Robert Nault: Mr. Chairman, I don't want to cut off debate, but unless there's a motion presented by the opposition, I would suggest that we get on with going to clause-by-clause.

[Translation]

The Chairman: Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): We may want to accelerate the debate. I agree that we should proceed with clause-by-clause consideration, but I do remain sensitive to what Mr. Konrad has raised.

I also have a problem regarding the kind of referendum that was held. It is true that this is not necessarily in the bill. Therefore, I wonder whether we shouldn't proceed with the clause- by-clause consideration. From my part, I must admit that I would have liked to have had more time. The House procedure will give us more time because during third reading, we can debate this again.

For my part, I'm in a bit of a tight spot because of the speed with which we have proceeded. As a matter of fact, I said so often. I'm willing first to start voting, but personally, I would like us to examine the procedural provisions about votes on division in order to accelerate the discussion. Personally, I will certainly express my dissent on each of the clauses of the bill because I'm opposed to this bill. I would have liked to have had more time to examine the scope of the referendum, more time to examine the environmental effects and more time to examine the effect of the bill on ancestral treaties. It's just that none of this is in the bill.

So, with your permission, I would propose a dissent procedure.

The Chairman: Thank you, Mr. Bachand.

Mr. Keddy.

[English]

Mr. Gerald Keddy (South Shore, PC): Mr. Chairman, I think the issue under discussion here is the allegation that under the original Northern Flood Agreement, in 1977, there was a benchmark established for the replacement of that land by the provincial government because Manitoba Hydro flooded certain reserve lands. If that benchmark is indeed 100 feet higher than it was originally, there's a big difference in the amount of land that is owed to the northern Cree if you're replacing land at a rate of 4:1. That's what Mr. Konrad has referred to.

My question is whether or not we know if that allegation is correct or not. Is there any expertise in the room? Does anyone here know if it's correct or not? If not, then I would make a motion that we find out whether it is or not, because that's the whole basis of settlement.

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[Translation]

The Chairman: Thank you, Mr. Keddy.

Mr. Nault.

[English]

Mr. Robert Nault: Mr. Chairman, if we get the officials in front of us and get on with clause-by-clause, we can ask those kinds of questions as we go.

Mr. Gerald Keddy: That's not in the part—

Mr. Robert Nault: No, but you can ask any question you like. We'll give you the leniency to do that. The whole point is that without having the officials here, we can't get into that kind of discussion. I don't think you need a motion to ask that. There will be a debate here about certain clauses and the meanings of them. I understand Claude is going to bring up the referendum as part of the discussion. That's not in here either, but that's okay. Let's get the officials in front of us and get on with it. That doesn't stop the opposition from bringing in a motion any time they like, on any issue, as we go along. Let's move on. Let's get started and get the officials in front of us.

[Translation]

The Chairman: Thank you, Mr. Nault.

Since there are no other speakers, we will proceed with our order of the day. We're dealing with Bill C-56, an Act respecting an agreement with the Norway House Cree Nation for the settlement of matters arising from the flooding of lands, and respecting the establishment of certain reserves in the province of Manitoba.

We have with us, from the Department of Indian Affairs and Northern Development, Terry Anderson, Director General of the Claims Implementation Branch, Claims and Indian Government Sector; Sandy Jackson, Acting Director, Intergovernmental Affairs, Manitoba Region; Gord Kitchen, Director, Land Entitlement and Claims Implementation, Manitoba Region.

Mr. Henderson, would you please introduce the two people who have not been mentioned?

[English]

Mr. Terry Henderson (Director General, Claims Implementation Branch, Claims and Indian Government Sector, Department of Indian Affairs and Northern Development): Good morning, Mr. Chairman and members. With me today are some witnesses in support of the federal government's position on this bill. With respect to part 1 of the bill, Ms. Sandy Jackson and Mr. Ken Marchant are here. For part 2 of the bill, we have Mr. Gord Kitchen. Also, to provide the legal perspective on part 2 of the bill, Mr. Trevor Heney is here from the Department of Justice.

[Translation]

The Chairman: Thank you. Pursuant to Standing Order 75(1), consideration of clause 1 is postponed.

Ms. Desjarlais.

[English]

Ms. Bev Desjarlais: I just had a question as to Mr. Marchant's position.

Mr. Ken Marchant (Agent of the Attorney General of Canada): I'm a lawyer in private practice. I'm here as an agent of the Attorney General of Canada, which is the form in which lawyers are retained to advise the Government of Canada.

Mr. David Iftody: In other words, you're just another one of a long list of lawyers we've talked to with regard to the Northern Flood Agreement. Welcome.

Mr. Ken Marchant: I wasn't the lawyer for Canada on these negotiations.

[Translation]

The Chairman: Thank you very much.

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(Clauses 2 to 10 inclusively are carried on division)

Mr. Nault.

[English]

Mr. Robert Nault: Mr. Chairman, I want to suggest to the opposition that now is the time to ask questions, because we will be done here shortly.

[Translation]

(Clause 11—Setting lands apart)

[English]

Ms. Bev Desjarlais: We were on clause 11 when Mr. Nault interrupted, and I would like to question the amount of land in conjunction with the agreement.

Mr. David Iftody: A point of order.

[Translation]

The Chairman: Go ahead, sir.

[English]

Mr. David Iftody: I'm not sure about the process. Can we vote on the other clauses of the bill and return to clause 11 for discussion?

A voice: We can if we want to.

Mr. Gerald Keddy: I understand that. That was in the agreement.

Mr. David Iftody: That's fine. I have no problem with that.

[Translation]

The Chairman: The clerk will answer you.

[English]

The Clerk of the Committee: You can stand the clause and then go back to it after you've gone through the whole bill, if you like.

Mr. David Iftody: I don't think we have consent from the other...

Ms. Bev Desjarlais: That's fine with me.

Mr. David Iftody: Just ask your question. We have two questions.

Ms. Bev Desjarlais: If there's agreement that it will be left to the end and all the questions can take place, I have no problem with that, except I know Mr. Konrad has something coming.

Mr. David Iftody: We can deal with Mr. Konrad after that, can't we?

The Clerk: Yes, if you agree to stand it.

Mr. David Iftody: Let's go through the formal process of that. We'll agree to stand clause 11 and return to it momentarily. We will proceed, as agreed, to clause 12. Is that agreed?

Some hon. members: Agreed.

[Translation]

(Clause 11 is allowed to stand)

The Chairman: Mr. Bryden.

[English]

Mr. John Bryden (Wentworth—Burlington, Lib.): On a point of order, when we have already gone through all the clauses and accepted them, will I still have an opportunity to question the witnesses with respect to broad implications of the legislation?

[Translation]

The Chairman: Yes, yes.

[English]

Mr. John Bryden: Thank you.

[Translation]

The Chairman: Thank you, Mr. Bryden.

(Clauses 12 and 13 are carried on division)

The Chairman: Mr. Keddy.

[English]

Mr. Gerald Keddy: On clause 14, if we carry clause 13—

[Translation]

The Chairman: Mr. Konrad.

[English]

Mr. Derrek Konrad: I have a new clause 13.1 that I would like to introduce.

I propose that Bill C-56 be amended by adding after line 36 on page 5 the following new clause:

13.1 The council of a first nation, at the request of a member of that first nation, shall adopt a resolution that the entitlement of that member under an agreement be exercised in a manner other than having lands set apart as reserves, including, in particular,

(a) holding the lands in fee simple; or

(b) receiving an amount of money instead of lands.

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[Translation]

The Chairman: Here's the chair's decision on the proposed amendment.

Part 2 provides for measures to facilitate claim settlements through reserve establishments in Manitoba or the addition of lands to existing reserves.

The amendment proposed by the member seems to be in contradiction with the agreement. Given that the amendment proposes that rights be exercised in a manner other than reserve establishment, it is beyond the scope of the bill and is contrary to citation 698 1) of Beauchesne's Parliamentary Rules and Forms, 6th Edition, which reads as follows:

698. An amendment which is out of order on any of the following grounds cannot be put from the Chair:

1) An amendment is out of order if it is irrelevant to the bill, beyond its scope, or governed or dependent upon amendments already negatived.

Therefore, I declare the amendment out of order.

Mr. Claude Bachand: You have a good research service, Mr. Chairman.

The Chairman: Yes, Mr. Bachand.

Mr. Nault.

[English]

Mr. Robert Nault: I understand you've already done that before we've had an opportunity to ask Mr. Konrad what the intention of this amendment is. I'm under the impression that the intention of this is not to allow new reserves to be created, but to allow land to be transferred as holdings in fee simple, which is a very different issue. Is that correct?

Mr. Derrek Konrad: It's not to deny the creation of reserves at all; it's simply to give recognition to the fact that lands or moneys are determined on a per capita basis but transferred on a collective basis. If it were allowed to go ahead, it would create an option for band members to attain personal wealth through the acquisition of personal and real property.

It would also be a step toward ending discrimination toward natives who don't reside on reserves. I believe it addresses the misconception that reserves are part of the traditional lifestyle. I would contend that throughout their history, aboriginal people went where the good hunting was. They were not confined to one piece of land. They went to where the best economic activity was in those days. If the buffalo, caribou, or whatever went to one place, the aboriginal would follow.

In today's terms, we're talking about money, job opportunities, facilities, and those types of things. I believe people should have that option. I'm not denying that reserves are an option; I'm simply saying they shouldn't be the only option.

Mr. Robert Nault: The reason why I ask—

[Translation]

The Chairman: I'm sorry...

[English]

Mr. Robert Nault: Well, I'm not finished asking my question. He can go next, but I'd like to finish.

[Translation]

The Chairman: You may finish, Mr. Nault. After you, Mr. Bachand will have the floor.

[English]

Mr. Robert Nault: Mr. Chairman, the only reason I ask is because that's not what the amendment for the new clause 13.1 says. It says:

13.1 The council of a first nation, at the request of a member of that first nation, shall adopt a resolution that the entitlement of that member under an agreement be exercised in a manner other than having land set apart as reserves

That means you cannot create a reserve.

Mr. Gerald Keddy: This comes after line 36. It doesn't take anything away from the beginning.

Mr. Robert Nault: No, clause 13.1 is at the very beginning, and then it goes on to paragraphs (a) and (b).

Mr. Gerald Keddy: From what I see, it's being added after line 36—

Mr. Robert Nault: On page 5.

Mr. Gerald Keddy: —on page 5. So everything else in clause 13 would be there. This would be an additional new clause 13.1, as I understand it. Maybe you're correct, but that is my understanding.

[Translation]

The Chairman: It's a new clause.

[English]

Mr. Robert Nault: But we have a subclause 13(1) now, so this should be subclause 13(2) then.

A voice: It's clause 13.1.

Mr. Gerald Keddy: Yes.

[Translation]

The Chairman: It would be under clause 13.1.

[English]

Mr. Robert Nault: All right. So this is an option. They can have the option of going to reserves, fee simple, or cash. Thank you.

[Translation]

The Chairman: Thank you, Mr. Nault.

Mr. Bachand.

Mr. Claude Bachand: Mr. Chairman, I think that your research service forgot a line in your document earlier. When the chair declares an amendment out of order, how can we continue discussing it for several minutes or even hours?

I think that Mr. Konrad has recourse at his disposal in this case, namely to appeal the Chair's decision, if he disagrees with it. I don't see why we should discuss this at length when the chair has said that it's out of order.

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However, I admit that I would like to have a copy of your decision because I like to keep track of precedents so that I'm not caught unaware in some committee meeting. So I'd like to have the wording of your decision; you've said that it was out of order.

The Chairman: I will give you a copy.

Mr. Claude Bachand: If it is out of order, we should stop discussing it or appeal your decision. I want to read your written decision now that you have expressed it verbally, but I am not appealing your decision.

The Chairman: Fine. I had intended to distribute copies of it to each of you. A copy will be sent to all of you.

I let people talk because that's the sign of a sound democracy. All parties have always got along here. Things have been fine up until now.

Mr. Finlay, you're the last speaker.

[English]

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

My colleague has made all the points. I was going to make a little speech about communal living and the aboriginal nation's form of government, which doesn't happen to be quite the same as ours, etc. I would point out to my colleagues, if you pass this you will effectively—if half a dozen people want to—destroy the reserve system completely and make it quite unmanageable for anybody to do anything, if little chunks of the reserve are suddenly privately owned and paid for. It's just out of... but anyway, we're out of order, so thank you.

[Translation]

The Chairman: Thank you, Mr. Finlay. I'd forgotten that Mr. Iftody was on my list. I apologize. Go ahead, sir.

[English]

Mr. David Iftody: Mr. Bachand has spoken very well on this and I think he's correct. I would like to point out, if I may, with your indulgence, Mr. Bachand, just for the record, with respect to Mr. Konrad's proposal, his suggestion of holding lands in fee simple, which is a very good and novel idea, that it was contained in Bill C-49, which his party just recently opposed. Perhaps it can be put on the record that his motion is entirely inconsistent with his expressed views and those of his colleague on Bill C-49.

Thank you.

[Translation]

The Chairman: Thank you very much. Thank you ladies and gentlemen.

(Clause 14 is carried on division)

(Schedule 1 is carried on division)

(Clause 1 is carried on division)

(The title is carried on division)

The Chairman: Shall the bill carry?

[English]

Some hon. members: Agreed.

[Editor's Note: Inaudible]

Ms. Bev Desjarlais: —

An hon. member: You had to change that right away.

Ms. Bev Desjarlais: No, we didn't.

An hon. member: Yes, you did. It went through on division.

Ms. Bev Desjarlais: We were to go back to clause 11—

An hon. member: You can ask questions, but you can't change it.

Ms. Bev Desjarlais: Was it not the understanding that clause 11 was...

An hon. member: Yes.

Ms. Bev Desjarlais: So how can we carry the bill when we have to go back to clause 11?

Mr. Robert Nault: Before we carry the bill, you should now ask the questions you'd like to ask in a general sense, which is what we agreed to.

Mr. Chairman, before we vote on the bill, a couple of members have questions to ask.

[Translation]

The Chairman: Fine. Before voting on the bill, we will get back to clause 11.

Ms. Desjarlais.

[English]

Ms. Bev Desjarlais: Although the question doesn't totally relate to clause 11, during the discussions with the witnesses who appeared there was some suggestion—actually, there was an outright statement that the money that was supposedly set out within the guidelines of the agreement to be paid at certain times was not paid at those times. In your testimony, Mr. Jackson, you stated everyone was to receive the $1,000 and that everyone had received it. From witnesses after the fact, it was indicated that this was not the case.

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So I once again would like to know, if the referendum process was up front, as we were led to believe, how is it that you were not aware the money was not paid out and that there was some suggestion that people who opposed the bill would not receive the money?

Ms. Sandy Jackson (Acting Director, Intergovernmental Affairs, Manitoba Region, Department of Indian Affairs and Northern Development): First of all, it has nothing to do with clause 11.

Ms. Bev Desjarlais: I realize that.

Ms. Sandy Jackson: But the fact is that, as set out in the agreement, the payments were made in accordance with the agreement. There were some variations on the dates because of the fact that the ratification vote hadn't passed the first time around. But as far as the allegation that not everybody received their payments, it is open; everybody is entitled to receive payments. I understand from discussions with chief and council that everybody is entitled to it. There is a clause in the agreement that speaks to the fact that if they don't pick up their payments on the dates specified, on the dates that have been put into the agreement, they still have four years to claim.

Ms. Bev Desjarlais: Ms. Jackson, the question that was given to you at this table was—and it was from Mr. Konrad—“And everybody has received the thousand dollars, then? The thousand dollars has all been paid out. That's all finished?” Your answer was, “Yes, it is.” I then questioned you—and I can find the specifics—as to whether anything would negate the possibility of that thousand dollars being paid out. Your response was “No, but if someone had a claim or filed suit later, this amount of money would be deducted from what they receive.”

The witnesses who appeared before us have stated outrightly that they were told they would not receive the money, that it came over the radio in Norway House that if they voted against or opposed the referendum, they would not receive their money. That was stated at this table.

Ms. Sandy Jackson: But there is no way to know whether or not these people opposed the referendum. There's no way of tracking who voted in favour and who voted against. The process that was put in place by chief and council was in fact that every member on and off reserve was entitled to payments.

Ms. Bev Desjarlais: Ms. Jackson, I can tell you exactly who voted for me in some of those communities just by the nature of who was in town on a certain day. I want to verify that there was no doubt in these communities as to who was opposing. People were very vocal, very outright, and they are listed as people who would not receive the money.

Ms. Sandy Jackson: No, I don't know that they are listed as people who would not receive the money. I'm not sure where that information comes from. I know there have been a lot of allegations. I have not seen a list of people who are not entitled to receive the money.

Ms. Bev Desjarlais: Is it not strange that the people who were on that affidavit were all the people who didn't receive the money, who were told they couldn't have it?

Ms. Sandy Jackson: I don't know that they were told they couldn't have it. And it's a question that perhaps should have been posed to the chief and council.

Ms. Bev Desjarlais: Actually, I posed it to Fred Muskego because he happened to be here after the statement was made, and Mr. Muskego told me they were advised by their lawyer not to pay out the thousand dollars.

Ms. Sandy Jackson: No, they were advised by their lawyer that it would be a breach of the agreement if they didn't pay out the thousand dollars.

Ms. Bev Desjarlais: It would be a breach of the agreement if they did not pay out the thousand dollars—

Ms. Sandy Jackson: If they did not pay out the thousand dollars.

Ms. Bev Desjarlais: —and they did not pay out the thousand dollars to some people.

The Chairman: Those members due can claim the full amount—

Ms. Bev Desjarlais: After the fact, after the referendum has already taken place. This process has been tainted and there was no reason for it to be tainted.

The Chairman: Mr. Henderson.

Mr. Terry Henderson: Mr. Chairman, I'm going to try to respond to this question from a broader perspective and maybe recount the nature of the whole process for the individual compensation payments, if I might. Would that be helpful?

The master implementation agreement, which was effectively finalized and initialled in April 1997 by the negotiators, set out the schedule of payments. It set out a schedule of payments in two parts. There was a 10.7.2 clause, which spoke to two prior payments, so it acknowledged two prior payments that had been made in 1994 and 1995. It also spoke to another payment that would be made in the future at a time to be decided by chief and council. That payment was later made in November.

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The scheduled 10.7.3 payments were to be made, there were two of them, and the amount of those is set out in the agreement. It depended upon whether the individual members were under 55 years of age or 55 and older, the seniors. Those amounts were set out and they were to have been paid on August 4, I believe it is, and December 15, but subject to a community approval process. So that was set out in April 1997.

The chief and council were responsible for informing the community and preparing a master implementation guidebook, and that guidebook went out to all households, all members, in June. That guidebook laid out what was necessary for those payments to be made and it spoke to the community approval process by way of a band meeting to take place before the August and December payments could be made. That approval was necessary through that band meeting. It also indicated that it was subject to approval of the MIA, the master implementation agreement, itself. So that was communicated in June via the guidebook.

The band meeting, which represented the community approval process, was held on July 9, 1997, and a majority of the community members present at that meeting approved the payments on August 4 and December 15, subject to, again, the ratification of the agreement.

The agreement was not, as we know, ratified or approved in the July referendum, the first referendum, and so the chief and council were unable, based upon those kinds of provisions, to make those payments. They waited until the completion of the second referendum in September, at which they began to make those payments. The August payment, which should have been made in August, was now made beginning October 2 and thereafter. The December 15 payment was made on December 17 and thereafter. They were making those payments available to the community members. We have received from the community the lists of recipients of those. They were maintaining a record of all of those, and we have seen nothing in anything we have received that has suggested that payments were being withheld from particular members.

This went before the Federal Court, I think as you know, and Justice Muldoon ruled in November that the referendum process had been followed appropriately.

Ms. Bev Desjarlais: In terms of your statement, we know all the background about all the payments, and everybody accepts that as being right because it is what was set out. But what I heard when witnesses came before us is that it wasn't the case, that there was a radio broadcast that said those people who oppose it will not get they money. They have a list, and I find it hard to believe that their list of people who haven't received it just happens to be the people who opposed it.

In regard to Justice Muldoon's decision, which we don't have sitting right in front of us, did Justice Muldoon rule that the process that took place in Norway House was okay? Or did he rule that a referendum process as set out and what he's seen within the guidelines was right? Did he rule specifically on every instance that happened in Norway House or just on the process of the referendum?

I think that needs to be made very clear here, because I think we need to see Justice Muldoon's decision to see exactly what it ruled, and I would expect a degree of absolute regard for Justice Muldoon's decision here.

Mr. Terry Henderson: Justice Muldoon's decision did not deal with all of the specifics of the allegations, but the allegations were before Justice Muldoon within an affidavit that had been submitted. So there were detailed allegations made, and in the face of those, Justice Muldoon—

Ms. Bev Desjarlais: He ruled on the process, not on the allegations, and that's—

An hon. member: No, he ruled on the allegations.

Ms. Bev Desjarlais: No, David. Get Muldoon's decision then. Let's have it here in front of us.

[Translation]

The Chairman: I do apologize, but there are other speakers.

Are you finished, Ms. Desjarlais?

Mr. Konrad.

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[English]

Mr. Derrek Konrad: Thank you for coming back to the committee. I have a couple of questions. One is fairly short and the other could be a little longer.

Ms. Jackson, you gave me an unqualified answer to the question on whether everyone had received all of the payments to which they were entitled. I know we've had the methodology explained to us a number of times, but I would like to know if the record shows that all of the cheques were written at the proper time. Were they required to be picked up at the band office or something, were they mailed out, was it registered mail, is a record kept of that, and were all of the cheques cashed to date? That's the first question I have.

The second question is, why was a referendum called in the first place when other communities weren't required to have one, and when it was lost why was the voters' list changed again?

Ms. Sandy Jackson: With respect to your first question on whether all the cheques were cashed and whether they were mailed out, I have no way of verifying that.

Mr. Derrek Konrad: You can't verify if the cheques were even written?

Ms. Sandy Jackson: No, I can't because the whole process for the payments was done by the chief and council. They are the ones who can verify it. Mr. Henderson has said he has been provided with a list of the people who picked up their payments. That list came from the chief and council. It was not a process that the department was involved in. The payment of the compensation was undertaken by chief and council. It was written into the agreement that chief and council agreed they would make provisions for these payments to be made.

You're asking me if I can tell you unequivocally whether or not the cheques were cashed. No, I can't.

Mr. Derrek Konrad: I asked whether they were written. You gave me an unequivocal answer before.

Ms. Sandy Jackson: That the payments had been made?

Mr. Derrek Konrad: Yes.

Ms. Sandy Jackson: Yes. The payments have been made, to my knowledge. What I can't answer is which individuals picked them up and which didn't. I don't have that evidence. Mr. Henderson, I think, has it now, and that was through chief and council.

Mr. Derrek Konrad: Is there anything further anybody else is going to add to that?

Mr. Ken Marchant: I'd like to just add that under the master implementation agreement, each member is entitled to those payments. If they don't receive them, there's a procedure for them to file a claim to make sure they do. There could be a dispute as to whether somebody was a member, or it could be a dispute... There are 4,000-odd members there, you know. It's not surprising in any human affairs that there might be some situations like that. But they have a right to the payments. They have a right to file a claim, and when their claim is adjudicated, the trust has the obligation to pay. And the trust indenture says the trustees shall promptly pay the amount of any compensation on receiving a copy of any written decision by a claims officer or a claims panel. So there is a mechanism of redress if someone who's entitled has not yet received his or her payment.

Mr. Derrek Konrad: The second question I haven't had an answer to yet.

Ms. Sandy Jackson: Regarding the second question, this is the fourth of five agreements under the Northern Flood Agreement. There were ratification votes held in each of the other communities. There were ratification votes in Split Lake, which was the first one. There were two in Nelson House, for technical reasons, and there was one in York Factory. Now we're down to Norway House, and there were two ratification votes held in Norway House as well.

Mr. Derrek Konrad: Just to follow that up then, you obviously used a voters' list for the previous votes. Were they the same as were used in the first vote in Norway House or the same as the second vote in Norway House?

Ms. Sandy Jackson: We had a voters' list that was prepared by the membership clerk in Norway House for the first vote.

Mr. Derrek Konrad: I'm talking about the other communities.

Ms. Sandy Jackson: The other communities?

Mr. Derrek Konrad: They had votes, you said.

Ms. Sandy Jackson: Yes, they had votes.

Mr. Derrek Konrad: If they had ratification votes, what list was used? How was it constructed? Was it similar to the first vote in Norway House or the second vote?

Ms. Sandy Jackson: The voters' list in Norway House was constructed in the same manner as for the previous three ratifications.

• 1205

Mr. Derrek Konrad: Which vote, the first or the second?

Ms. Sandy Jackson: Both votes.

What you're getting at, I think, is that there was some mention of some problems with the voters' list. I think it was in the identification of the on-reserve and off-reserve members. There were no discrepancies about the numbers of people. As a matter of fact, in the second vote, when the enumeration was done by the membership clerk, there were more people added to the voters' list.

[Translation]

The Chairman: Mr. Keddy.

[English]

Mr. Gerald Keddy: Thank you, Mr. Chairman. Mr. Chairman, I have three questions and a statement on process.

My first question refers to the question we raised earlier—actually a question Mr. Konrad had raised—on the benchmark. There's been some discussion on the original survey benchmark taken at the existing high water mark previous to the 1977 dam being built and the land being flooded. There's some question over elevation, and an allegation was made that the elevation had changed on the second benchmark that was recorded. Can anyone clear that up? There was the original 1977 Northern Flood Agreement, the original benchmark. The second benchmark, I believe, was in 1997, when this bill was started.

The Chairman: Mr. Marchant.

Mr. Ken Marchant: I believe I understand the issue you're raising, but the specifics I understand differently. Let me review them and see whether we're on the same track.

The Northern Flood Agreement of 1997 sets out elevations for the easements to be granted to Hydro—to what elevation they are entitled to flood or affect the lands. Those are set out for each of the five communities affected by the project. It says, and I'm going to quote from article 3.9.1 of the Northern Flood Agreement: “All levels refer to Canadian geodetic datum established at the date of this agreement.”

I'm not a surveyor myself, but I believe Mr. Konrad is. My understanding of this is the following, and others can correct me. You have to know how high you are above sea levels—you have to have some reference or benchmark, to put it colloquially. So the Geodetic Survey Division establishes different locations where they give a precise elevation to that particular point, and others can then calculate elevations from that.

The date of this agreement was 1977, and the most recent revision, which is what they call it, was revision number 2, 1975, if my memory serves me correctly. However, Manitoba Hydro prepared all their engineering calculations, which are obviously very extensive for a project of that scale, based on the 1970 revision—in other words, not the most recent revision at the date the Northern Flood Agreement was signed, but the one before that.

In the Norway House negotiations leading to this master implementation agreement, and indeed in the other three sets of negotiations, this was a matter specifically addressed by all parties. The first nation had its own technical advisers on this and all other surveying issues.

I'm sorry, I don't remember the precise discrepancy between the 1970 and 1975 one for Norway House, or for the others. It was certainly a small number of feet, at most. I think the greatest number was about six feet. In any case, it was agreed by all the parties, with technical advice, that they would work from the 1970 revision, the one on which Manitoba Hydro had done its original calculations. It was entirely satisfactory to the first nation, because it doesn't matter where you pick your benchmark, you then ask how big these need to be, how much land you're entitled to, and it was all worked out. It would have worked out the same if they'd picked some other; it just would have meant many more calculations.

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This is expressly addressed in the agreement. Above sea level is defined by reference to the 1970 revision, and so on. So it was explicitly addressed, and my understanding is it's not a problem for any party.

Mr. Gerald Keddy: Thank you.

The second question is in regard to clause 14. I'm asking a legal question, and maybe Mr. Bachand would have a comment on this as well. When we look at clause 14, it says:

14. If Bill C-50, introduced in the first session of the thirty-sixth Parliament and entitled A First Act to harmonize federal law with the civil law of the Province of Quebec... is assented to, then, on the later of the coming into force of section 10 of that Act and the coming into force of section 11 of this Act, paragraph 11(2)(b) of this Act is replaced by the following:

This is not usual. Usually, when a bill is brought into being... I'm not pretending to be the legal expert; I'm questioning this. Why are we including it in the bill? Can we get a legal opinion on that?

When any bill comes into being, it automatically replaces all the legislation prior to that. There's usually just a clause that accepts that. I don't know why that's there. I need some help there, gang.

[Translation]

The Chairman: Just a moment, Mr. Keddy.

[English]

Ms. Mary Hurley (Committee Researcher): Mr. Keddy, it's not at all an unusual legislative device. That simply takes into account the fact that the legislative calendar might not... that it's unknown which bill is going to—

Mr. Gerald Keddy: Which bill will be passed first.

Ms. Mary Hurley: It's entirely consequential, but it takes into account the timing factor. It's not an usual legislative device at all.

The Chairman: Thank you.

[Translation]

Thank you, madam. She's our expert.

[English]

Mr. Gerald Keddy: The only other point I have, Mr. Chairman, is on process. If we're going to come to this table and everything is going to be run through on division, with respect to my opposition colleagues and the other colleagues in the room, if we don't have an opportunity to discuss the clause-by-clause while we're going through the clause-by-clause... I mean, there are other ways to deal with that too. We can ask for a vote on each clause, and you guys may use your majority to overrule that, but it would really not be good for ongoing friendly relations, especially on bills that many of us will be supporting.

But if we do the clause-by-clause and we don't have an opportunity to discuss clause-by-clause as we're going through it... even if it gets voted down. It's just a question on process. I'd just like to make that point, with respect.

Thank you, Mr. Chairman.

The Chairman: Merci, monsieur Keddy.

Mr. Robert Nault: Mr. Chairman, on that point, we couldn't have done this without unanimous consent. We were under the impression that everybody agreed. All it takes is one person to say, “We'd like a recorded vote”, and that's the way it works here. But you agreed to doing it on division; otherwise we wouldn't have done it. We could have voted on every clause, which is the right of members on the other side. We can't do this by the majority jamming it on division. It doesn't work that way, and I'm surprised the member would suggest that.

Having said that, Mr. Chairman, I think we should vote on clause... or, on division, get through clause 11, which has been stood, and then go to voting on the bill itself. I think we've had enough debate for today.

[Translation]

(Clause 11 is carried on division)

The Chairman: Shall the bill carry?

Some hon. members: Yes.

An Hon. Member: On division.

The Chairman: Shall I report the bill to the House?

[English]

Mr. Robert Nault: I'd like to have a recorded vote on the last item. I'd like to know where the opposition stands on this bill—

[Translation]

The Chairman: Fine. You want to know who's in favour.

[English]

Mr. Robert Nault: Well, the clerk will ask...

[Translation]

Mr. Claude Bachand: Mr. Chairman, when we vote, can we justify our option?

The Chairman: Yes, you have one minute.

Mr. Claude Bachand: First of all, is it my turn to vote? Bachand is the first name in alphabetical order.

The Chairman: No.

• 1215

[English]

Mr. Robert Nault: Claude, once we get going, you can't stop and start talking about why you're voting. Now is the time to speak, before we get—

[Translation]

Mr. Claude Bachand: Therefore, I will speak now.

[English]

Mr. David Iftody: It's whether or not they support the legislation.

[Translation]

The Chairman: Mr. Bachand.

Mr. Claude Bachand: First of all, a few minutes ago, you asked whether the bill shall carry, and you did record that it did carry on division. Is that the case?

The Chairman: I asked the question: Shall the bill carry?

Mr. Claude Bachand: And we answered yes, on division.

The Chairman: Yes, you answered.

Mr. Claude Bachand: Therefore, the current vote is on the question: Shall I report the bill to the House? It's on that point that we are voting now.

The Chairman: Shall I report the bill to the House?

Mr. Claude Bachand: I would like to point out to my colleagues that the bill has just been carried on division.

With regard to reporting the bill to the House, I would like to be consistent with the notion that I stated at the outset, when I suggested that we adopt a dissent procedure in order to accelerate the process. I think it's too early to report the bill to the House for the reasons that I listed earlier.

I've not yet made up my mind specifically, amongst other things on the referendum and on how the bill will affect ancestral rights. The same is true for the studies and the effects on the environment resulting from the raising or lowering of the level of the lake.

Therefore, quite obviously when you ask us to vote on the question, "Shall I report the bill to the House?", I must answer no, because I would like us to have more time to examine it.

I wanted my colleagues to be able to follow my reasoning here.

[English]

Mr. Robert Nault: Mr. Chairman, I have a point of order. I'm under the understanding that I had asked before that we have a recorded vote on whether or not this bill shall be adopted, not shall be reported to the House. That's the last one.

I had asked for the one before that. That's the one we're talking about.

[Translation]

The Chairman: No, no, no. We said... Just a minute.

Mr. Claude Bachand: Mr. Chairman, you asked a question about the bill.

The Chairman: First of all, I asked whether the bill shall carry. The answer was, "carried on division."

[English]

Mr. Robert Nault: And I said no, not on division, I'd like a recorded vote. That's what I said, and then you just carried on. You can check the record. That's the—

[Translation]

The Chairman: I was—

Mr. Claude Bachand: I suggest that we check the transcript.

The Chairman: No, no, I would like to finish right now.

I said: Shall the bill carry? Then, there was a discussion. Several people talked at the same time and then we said: "on division". I proceeded quickly and I asked: "Shall I report the bill to the House?"

Mr. Claude Bachand: And then Mr. Nault intervened.

The Chairman: Mr. Nault intervened and asked for a recorded division. I proceeded faster...

[English]

Mr. Robert Nault: Mr. Chairman, my only point is that if the opposition is afraid to tell us what they think because they haven't figured it out yet, that's okay by me. I'm not worried about that. I just wanted to put them on the record as to where they were.

An hon. member: They're afraid of a vote.

[Editor's Note: Inaudible]

An hon. member: —

Mr. Robert Nault: No, I'm allowed. I don't have any difficulty with that. We're supporting the bill, so we'll vote for it.

Mr. Derrek Konrad: I have a point of order, Mr. Chairman.

[Translation]

The Chairman: Mr. Konrad.

[English]

Mr. Derrek Konrad: Could we have some order to the meeting? People are speaking in two languages. I understand one, and I have trouble understanding that one when three people are talking simultaneously.

An hon. member: Hear, hear.

[Translation]

The Chairman: This is all becoming Chinese to me.

Mr. Nault.

[English]

Mr. Robert Nault: Mr. Chairman, if you've ruled that in fact we went past the portion I was asking for a recorded vote on, then that's fine. I accept that. Let's get on with it and finish the meeting.

Mr. John Finlay: We could have a recorded vote, Mr. Chairman, on “Shall I report the bill to the House?” Then it will say that perhaps in one case somebody voted to carry the bill but doesn't want it reported. If that sounds logical to everybody, fine and dandy. It's not logical to me. But let's get on with it. I want a recorded vote on “Shall I report the bill to the House?”

• 1220

[Translation]

The Chairman: Mr. Finlay, you are asking for a vote on the last question I asked: Shall I report the bill to the House? Is that what you're asking?

[English]

Mr. John Finlay: That's right.

[Translation]

The Chairman: Since I had not adjourned the meeting, we are proceeding with the vote.

I repeat. Shall I report the bill to the House?

Mr. Claude Bachand: Are you asking for a recorded division?

[English]

It's a recorded vote where each person says yes or no.

An hon. member: That's right.

[Translation]

Mr. Claude Bachand: Therefore, I can express my opinion on the subject before the vote, according to what was explained to me earlier. That's what John doesn't seem to understand.

The Chairman: We will start with the clerk's list.

(The motion is carried, 8 to 2)

The Chairman: Before closing, Mr. Bryden, I will give you two minutes. Do you want to have the floor in conclusion?

[English]

You have two minutes.

Mr. John Bryden: Mr. Chairman, I just wanted to put on the record the fact that on this side there was a very spirited debate with regard to a motion presented by the representatives of the northern Quebec Cree. It was a proposal for a non-derogation clause, which they described as proposed section 7.1:

7.1 Nothing in this Act or in the Agreement shall be interpreted as abrograting or derogating from the existing aboriginal rights or the treaty rights of the first nation or any member of the first nation.

There was great interest on this side in supporting this, because it was felt that this might be a way of reassuring the people of Norway House and any others that indeed this bill did not detract from whatever rights they might have under the Northern Flood Agreement.

The reason we didn't put it forward as a motion is because we on this side did not have time to examine the full legal implications of that particular non-derogation clause, even though we were very interested in it. As you know, Mr. Chairman, if you put a motion before this committee and it fails, it cannot be introduced at report stage.

But we remain interested. I would like to ask just a couple of questions of the witnesses. I don't expect an elaborate answer because I realize they have to consider this issue in greater depth as well. But I point out, Mr. Chairman, that there is an opportunity from this side to introduce this clause at report stage should there genuinely be a reasonable opportunity to do so and if it does not adversely affect other treaties or other legislation that exists with other bands.

I'd like to ask two questions of the witnesses. The first question is that in Bill C-56, is there implied some protection with regard to the non-derogation of rights? It's not actually expressed, but is it implied in some way that we don't know?

Mr. Terry Henderson: As you're saying, Mr. Bryden, it's not expressed at all within the bill itself, but in fact there is a contractual non-derogation clause within the master implementation agreement. Section 13.13.3 does in fact provide non-derogation. Could I read that out perchance?

Mr. John Bryden: We've actually heard it in testimony.

• 1225

Mr. Terry Henderson: We have looked at this following the other testimony that's been provided and we've reviewed it with the Department of Justice and so on. There's one view that it is clearly unnecessary because there's already a contractual non-derogation clause.

The second view is that it could also well set a precedent. We have a number of other agreements out there that have non-derogation clauses in them that would not have a legislated non-derogation clause, only a contractual one. So we would somehow be setting a double standard on that front, including, I might add, on the other Northern Flood Agreement implementation agreements that we have for which we already have bills that do not include a legislated non-derogation clause.

Beyond that, and less well studied, there is even a fear that we might be adding something unintended by including it in this particular bill. By doing so there may be some question in the courts on whether Parliament intended something above and beyond the standard non-derogation and protection of treaty rights that even goes beyond the Sparrow arguments and so on. So there are clearly some dangers, and it was clearly felt that it was unnecessary, that it could be precedent-setting, and it could cause difficulties.

Mr. John Bryden: Mr. Chairman, the witnesses, however, expressed concern about the clause that you're referring to in the master implementation agreement because it used the verb “intended”, that nothing in the bill was intended... The lawyer speaking on that occasion correctly pointed out that in legislation when you use the word “intend” rather than an active verb, that nothing in this bill “will”, you are in fact opening opportunities of doubt on the part of the courts. So is this not an argument that we may entertain on behalf of the Norway House Band, that perhaps this does warrant a more assertive clause in Bill C-56 itself that says there would be no derogation of rights?

Mr. Terry Henderson: Mr. Bryden, we do not believe so. We could also go back and refer to Justice Muldoon's decision that looked at that whole question of treaty rights, because that concern was put before the justice who looked at section 13.13.3. In fact, it was concluded that the above provision satisfies the court that section 35 is not going to be breached and that is sufficient in these circumstances. So in Justice Muldoon's eyes, he's quite categorical with respect to the protections provided by the contractual non-derogation in the MIA.

Mr. John Bryden: Finally, Mr. Chairman, I would appreciate a written explanation for our Liberal side and for the others, if they're interested. I would just inform my colleagues opposite or in the opposition that if there's any way, in our further analysis of this, we can make this work, then they can expect a report stage amendment from this side and they will get an explanation of how we are making it work.

We're very concerned on this side about trying to do the right thing, about trying to give a reassurance to the people who are going to be affected by this treaty, to those who dissent. So it's partly a reassurance. If we can introduce a clause that will not harm the legislation and will not have profound and adverse ramifications, we'll certainly try to do so. We need more time to examine it, Mr. Chairman, and to get a written explanation from the witnesses.

I do thank you for your indulgence, Mr. Chairman.

[Translation]

The Chairman: Thank you, Mr. Bryden.

To close off, Mr. Bachand would like to speak.

Mr. Claude Bachand: I find that Mr. Bryden has just raised an extremely important problem. I think that we would indeed need a bit more clarification to determine whether we should table an amendment at the report stage. It would be wonderful if Mr. Bryden could table this amendment with the support of a Bloc Québécois member. I think that that would send a very clear signal to the government and to the Cree, in Quebec amongst others, who have made these representations.

If Mr. Bryden hesitated somewhat after having familiarized himself with the study provided to us, I could table the amendment and ask Mr. Bryden to second it. I think that we could thus seal our "marriage" on a possible amendment at the report stage.

The Chairman: Thank you, Mr. Bachand. We are familiar with the experience of the James Bay Cree. Last week, Mr. Matthew Coon Come told me that he had greatly appreciated appearing before the committee.

Mr. Bryden, please finish.

• 1230

[English]

Mr. John Bryden: My opposition colleagues had lots of opportunity to act on this proposal and it is this side that is showing a genuine and immediate concern. If an amendment goes forward, it will be an amendment, if you don't mind, that will come from this side. I will invite you at that time to support it or not to support it, depending on the further evidence we receive from the experts in the field.

[Translation]

The Chairman: I have two more speakers. I think it's Mr. Keddy and Ms. Desjarlais.

[English]

Mr. Gerald Keddy: Thank you, Mr. Chairman.

Mr. Chairman, I have no interest in debating this bill after we've done the clause-by-clause. There's a question of procedure. I understand where Mr. Bryden is coming from.

Since you've raised that question, I have a question while our expert witnesses are here. Do we get back into the argument and the discussion we've already gone through?

I recognize the point, Mr. Bryden, that all of the opposition wasn't here and a number of us had to leave early from the meeting the other day. I read the blues and I am certainly aware of the debate, but there wasn't enough of a quorum on the Liberal side either to make any motions. So I will just make that point.

Anyway, let's get to the point. The point is quite simple. We have looked at this thing. There's been a lot of discussion about whether the Northern Flood Agreement is a treaty or not a treaty.

From the experts, please, if we include Mr. Bryden's motion in there, are we then going back and looking at that reference to the Northern Flood Agreement?

Mr. Terry Henderson: With respect to whether the Northern Flood Agreement is or is not a treaty, the parties in negotiating this, and this is true for all of the master implementation agreements, chose to set aside that whole question, recognizing that it was a debate they could not have and still, ultimately, negotiate an agreement of this nature. So there is no answer to that question. There are opposing views about it. The fact is if it were deemed, at some point in time, by the courts to be a treaty under section 35 of the Constitution, then it would clearly be protected under this non-derogation clause that exists in the master implementation agreement.

[Translation]

The Chairman: Thank you. This will now be the last intervention because I know that members have other meetings to go to.

Ms. Desjarlais.

[English]

Ms. Bev Desjarlais: Just for Mr. Bryden's information, I only once made a mistake; at one point I brought a motion before a committee and it was ousted by the Liberals on the other side. This is something very important to me and I wasn't going to allow that to happen today. There certainly is every intent of supporting any kind of an amendment that will ensure that all treaty rights are maintained. And if it doesn't come from you, you can rest assured it will come from the other side.

You have the wool pulled over your eyes only once. I was fresh. It was my first committee round. I won't make the same mistake twice. It is extremely crucial that we ensure that treaty rights are not negated in any way, shape, or form. We'll all be experiencing interesting debates at report stage.

[Translation]

The Chairman: In closing, I'd like to thank all members who've done a good job here, as well as our witnesses. I also want to thank our clerk, our research staff, Ms. Nadeau, our interpreter, and the entire team.

This meeting is adjourned.