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, May 2, 2000

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Pursuant to Standing Order 108(2), the committee proceeds now to a briefing session on the Indian Act.

We have three witnesses with us from the Department of Indian and Northern Affairs Canada: Mr. Bob Watts, the assistant deputy minister, lands and trust services; Mr. Ray Hatfield, the assistant director general, registration, revenues and band governance branch, lands and trust services; and Mr. Al Broughton, senior counsel, lands, trust and corporate services, legal services branch. Welcome.

We'll start with your presentation and you can take us through it. The clerk distributed copies of the office consolidation of the Indian Act. If anybody around the table doesn't have it, we do have extra copies here if you need it. How would you like to commence?

Mr. Watts, go ahead, please.

Mr. Bob Watts (Assistant Deputy Minister, Lands and Trust Services, Department of Indian and Northern Affairs Canada): Thank you, Madam Chair.

On behalf of the deputy minister and the Department of Indian and Northern Affairs Canada, my colleagues and I would like to express our appreciation to all members of the committee for inviting us here today to assist you in exploring the Indian Act's history, legacy, and current realities.

As you've noted, Chair, accompanying me is Mr. Ray Hatfield, director general for registration, revenues and band governance, and Mr. Al Broughton of the Department of Justice Canada. Mr. Broughton heads up the legal services unit assigned to my sector and he will be here to respond where there is clear legal information available.

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Today I will focus on the background, history, and constitutional context of the Indian Act regime. You have asked that we address the scope of first nations authorities under the act in areas such as taxation and land management, as well as to provide information on the application of provincial laws on reserves. Today's session will deal with these broader background points so that we can establish a solid, common grounding. Tomorrow's session will address membership and elections.

With respect to Parliament's jurisdiction, as you will recall, when Minister Nault met with you a month ago, he noted that since 1951, efforts to improve or to modernize the Indian Act regime have challenged a number of ministers. To understand why this is so, we need to explore the nature of the regime involved.

Let me begin by identifying one of the most striking examples of how the Indian Act continues to severely hamper first nations' efforts to become self-sufficient. The Indian Act precludes the use of reserve land as collateral to access capital for economic development projects, including first nation businesses. As you know, this would be unthinkable in any other community in the country.

We know self-sufficiency and good governance are linked, so in effect, the Indian Act's many prohibitions continue to prevent first nations from governing themselves effectively. I will be speaking about some of the act's other restrictions later. For the moment, I would like to put that concept of first nations governance in a constitutional context.

The jurisdictional authority for the Indian Act is to be found at clause 24 of section 91 of the Constitution Act, 1867, which contains two heads of power: Indians and lands reserved for Indians. What is important about these heads of power is that they are exclusive. Parliament has the sole authority to legislate in respect of both Indians and lands reserved for Indians.

The meaning of the term “Indian” can be confusing, since there are three other constitutional references and they all vary somewhat in scope. The earliest is in the Royal Proclamation of 1763, which refers to the “several Nations or Tribes of Indians” connected to the crown. Another is in the 1930 Constitution Act, in which the Indians resident in the prairie provinces are guaranteed certain harvesting rights. The final usage was added in 1982, with the definition of aboriginal peoples in section 35 including “the Indian, Inuit and Métis peoples of Canada”.

The Indian Act itself adopts a much narrower definition of who is an Indian. It defines an Indian for the purposes of the act to be a person connected by descent from specific bodies or bands of Indians for which lands or moneys have been set aside by the crown, or which the Governor in Council declares to be a band for the purposes of the act.

The Indian Act is also restrictive in connection with its geographic application. For some purposes, the provisions of the act dealing with social affairs—for example, schooling, wills and estates—apply only to Indian peoples living on reserves or on crown lands. In short, the core provisions of the act are aimed at legislating the affairs of Indian people living on Indian reserve lands.

An added complication to the existing Indian Act regime is the Constitution Act of 1982 and its section 35, which reads: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The courts have interpreted this provision a number of times over the past 15 years. Even though the act administers many reserves set apart by treaties, the only references in the act to such rights are indirect. There is one clause referring to the financing of treaty annuity payments and another to the maintenance of treaty payments to persons who had lost band membership upon marriage out.

A final reference is in the same clause that refers to the application of provincial laws to Indian people, section 88 of the Indian Act. That section provides that provincial laws of general application apply to Indians resident in a province, subject to any terms of any treaty or act of Parliament except to the extent that such laws are inconsistent with the Indian Act or any order, rule, regulation, or bylaw made under the act and except where the Indian Act makes provision for the same subject matter.

Provincial legislatures do, however, hold jurisdiction in connection with a wide range of matters. Where these jurisdictions do not affect the nature of aboriginal rights or titles, the interests of Indians in a reserve land, or the definition or meaning of “Indianness”, such laws hold force in their own right. The courts have ruled that provincial laws apply of their own force in a number of areas, including child welfare legislation; matrimonial property rights, though only for movable property; labour relations; and provincial taxation laws.

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Also important to an understanding of the contemporary Indian Act regime are the varying obligations of federal and provincial governments in connection with aboriginal and treaty rights. It is commonly thought that the Indian Act sets out the crown's fiduciary obligations to first nations people. This is not an accurate picture. The Indian Act does address many important fiduciary issues, such as the obligation of the crown to take the utmost care in protecting the interests of first nation people in reserve lands when there is a surrender or alienation involved. Yet the scope of federal obligations goes beyond what is dealt with in the Indian Act.

The absence of other statutes in this area sometimes tends to make the Indian Act the only visible lightning rod in a thunderstorm. However, our fiduciary obligations in relation to aboriginal or treaty rights go further than the act and also engage provincial duties. I shall briefly go over the nature of these obligations as I understand them.

The federal government and Parliament have the primary obligation to aboriginal peoples in relation to any restrictions or governance of their aboriginal or treaty rights. The courts will hold the crown, including Parliament and the executive, to a duty to take into account the interests of the aboriginal peoples concerned. Therefore, if the crown wishes to enact laws to restrict an aboriginal or treaty right, then it is obliged to hold consultations, determine the least invasive alternative, justify any infringements in law, and possibly compensate for any infringements that are imposed.

The Indian Act of today has its origins in pre-Confederation obligations and policies, including the Royal Proclamation of 1763. The Royal Proclamation of 1763 requires that Indian tribes and nations be protected in their unceded lands and requires that any cession of lands be done publicly and to the crown, rather than through personal sales to private individuals. This principle reflects a special relationship between first nations and the crown, as well as a recognition that first nation land rights existed before the arrival of Europeans.

After Confederation the Indian Act acquired an expanded application because of the many treaties being entered into in western Canada. In addition, the purely protective orientation of the legislation changed to one promoting assimilation, or what was then called civilization. As a result, a number of quite restrictive sections were added and refined over a 75-year period up to 1951. Some excluded different categories of persons from being identified as Indians and therefore having the benefit of reserve lands, including women who married non-Indians, illegitimate children, anyone with a professional calling or degree, and anyone who took or was allocated what was called half-breed scrip. The general concept that membership in an Indian band required descent from the male side was imposed, despite the matrilineal nature of many first nations.

We see the roots of enfranchisement as far back as 1857 in the Gradual Civilization of the Indian Tribes in Canada Act. By agreeing to give up his first nation heritage, a first nation male with the correct qualifications could become a full citizen. Any first nations male over 21, literate in English or French, with an elementary education, of good character, and free of debt could be declared to be enfranchised or “no longer deemed to be an Indian”.

In 1867 the new Government of Canada reinforced this concept with its Gradual Enfranchisement Act. It will come as no surprise to you that the concept of enfranchisement was also a key provision of the 1876 Indian Act. The government's ultimate aim was the total assimilation of first nations people into mainstream society. As most of you know, until 1924 no Indians were permitted the franchise without formally abandoning their interests in reserve lands and in their community, and it wasn't until 1960 that this precondition was dropped in the Elections Act. However, the so-called enfranchisement sections continued in force until they were repealed in 1985.

I think it is useful to go through the different legislative efforts made at defining who is an Indian, particularly up to 1951, when the definitions and exclusions reached the height of complexity.

In 1850 the first attempt to define Indians included any person of Indian blood reputed to belong to a particular tribe, band, or body of Indians and any person who married an Indian or was adopted by Indians.

In 1868, in the first truly federal legislation dealing with Indians, Indian was defined as all persons of Indian blood reputed to belong to a particular tribe, band, or body of Indians with interests in common in lands or immovable property and all their descendants; all persons residing among such Indians, at least one of whose parents was descended on either side from Indians with an interest in the lands concerned, or their descendants; and all women lawfully married to any Indian, their children, and their descendants.

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In 1869 the first marriage-out rule was introduced, but it otherwise built on the earlier legislation.

In 1876 eligibility for membership in Indian tribes or bands was narrowed to a much greater degree and became bundled with an emphasis on male lineage and the concept of enfranchisement.

Legislation after 1918 appeared almost yearly until the 1930s, and while the definition sections stayed the same, the enfranchisement sections moved back and forth from being voluntary to being involuntary.

Finally, in 1951 the act carried all of the earlier definitions and exclusions, such as the marriage-out rule and male descent requirements, and added a few more, while also introducing the idea of status or registration for the first time. For example, only persons entered on band lists prior to 1951 were added to the national Indian register. Additions or omissions to the register could be protested by the individual or the band, with the registrar's decision being final, subject to an appeal to courts. Illegitimate children of males could be registered and added to the band list, and illegitimate children of females could be registered, but only if the superintendent was satisfied that the other parent was an Indian. The spouse of any male Indian was entitled to be a band member and to be registered. The double-mother exemption was introduced for those born after 1951, by which a person whose mother and paternal grandmother were not entitled to be Indians at birth would lose entitlement to registration and band membership at the age of 21. For the first time entire bands could apply for enfranchisement on a collective basis, and one did so.

Another major theme of the Indian Act regime as it evolved after Confederation and up to 1951 was its focus on the alienation of reserve lands. There are no significant provisions in the act for the acquisition or expansion of reserve lands, but there are dozens of sections and several lengthy subordinate regulations dealing in great detail with the sale, surrender, or expropriation of reserve lands. One consequence that is still with us today is that the current first nation land base under the Indian Act is barely a third of what it was a century ago.

A final aspect of the Indian Act that increasingly emerged up to 1951 was paternalism. While first nation governments were largely autonomous in their governing authorities prior to Confederation, by 1951 they had been reduced to delegated councils with very limited regulatory powers, all subject to override or approval by the minister.

So the Indian Act regime evolved over time from its initial goal of protecting reserve lands from non-Indian squatters to the point where by 1951 it became a cradle-to-grave institution governing most aspects of first nations existence, all of this expressed in a relatively short statute of 122 sections, the majority of which authorize the minister or the Governor in Council to act with considerable discretion and through subordinate regulation.

I'm going to go over some approaches to the reform of the Indian Act.

The past 50 years have witnessed a major shift in objectives. Assimilation has not been a formal government or parliamentary philosophy for many decades, yet the Indian Act regime persists largely unchanged. While the registration and membership provisions of the act that faced charter challenge in the early 1980s were amended, the governance and land management regimes are virtually unaltered. As a result, the core philosophy expressed by the act, the philosophy of assimilation and paternalism, still rules through the statute and its supporting structure of regulations and policies.

A 1988 commission of inquiry under Justice John Hall phrased the core issue faced by first nations and the government as one of a widening gyre or chasm, with a rapidly accelerating increase in distance between the intentions of the present governments on the one hand and the legislative and regulatory regime in place to manage first nations matters on the other.

The Hall commission recommended three options to narrow the distance: one, remedial or patchwork amendments to the Indian Act and related regulations and policies to ameliorate pressing conditions and demands for change; two, more far-reaching legislative change to provide alternatives to the current Indian Act and its accompanying regime; and three, constitutional reform to alter the fundamental relationship of first nations people with the federal and provincial and territorial governments. As with the Penner committee's report of 1983, Commissioner Hall saw the second course as most reasonable.

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Despite such recommendations, efforts at reforming the Indian Act, whether comprehensive or sectoral, joint or unilateral, have seldom succeeded. In part this may be due to contrasting views or philosophies present within government and first nations concerning the relationship between the Indian Act regime and the emerging doctrines and court rulings over aboriginal and treaty rights.

When parliamentarians and first nation leaders could not reconcile their views, a failure to modernize the Indian Act has usually been recorded.

The gyre has continued to widen. The vulnerability of the Indian Act regime to challenge is significant, and this vulnerability is what has led to most legislative change. For example, the 1993 case of Lovelace v. Canada centred on those provisions of the act that discriminated against first nations women who lost their Indian status on marriage to non-Indians. That case, and the lobbying efforts of the group Indian Rights for Indian Women, led to the passage of Bill C-31, which also ended the act's other involuntary enfranchisement provisions. This occurred in 1985, when the coming into force of the charter threatened to overturn core provisions of the act relating to registration and membership entitlements.

Most recently, the Supreme Court's ruling in Corbière v. Canada has resulted in the government and first nations having to work under a deadline to implement the court's decision removing the residence restriction on the franchise in subsection 77(1) of the Indian Act.

The scope of vulnerability is broad, with over 150 legal challenges to specific provisions, ministerial decisions, or first nation bylaws now proceeding through the courts. The courts, however, tend to rule narrowly, and the Indian Act is a highly integrated statute. Without an alternative framework, piecemeal challenges to the act will continue.

As Minister Nault has said, he is concerned about having the courts impose piecemeal amendments to the act and defining the relationship of governments with first nations. He has reached out to first nation leaders to identify significant areas or sectors of first nation governance for modernization.

The committee has asked for some information about first nation law-making powers, particularly in connection with lands and taxation. I wish to close my remarks with a brief highlight of these areas.

First I should note that while the courts have yet to rule clearly on the right of self-government, the government operates on the view that this right is already contained within the rights protected by section 35 of the Constitution Act, 1982. There is no statutory basis for the exercise of such powers, so the alternative has been to negotiate agreements for the exercise of self-government. In some cases these negotiations are occurring at a province-wide level, as in Saskatchewan, while in others they are closely tied to land claims talks.

A second preliminary point needs to be made about first nation lands. The Indian Act is largely restricted in its application to reserve lands. At present, the reserve land base is fairly limited, at 6.4 million acres in 2,471 reserves. On an absolute basis, this is about one-third of the reserve land base of a century ago, and is also about one-quarter, on a per capita basis, of the United States tribal land base. As these figures illustrate, the current land base is a significant barrier to both economic and social development.

Two broad types of decision-making authority are recognized in the act. First, there are a number of decisions that a band as a whole must collectively make. These include surrendering reserve lands, taking control over membership, and requesting control over land management. Band council powers, in contrast, are exercised over a set of narrowly defined topics listed at sections 81, 83, and 85 of the act.

Section 81 has not really changed much since 1951, and lists such matters as local traffic laws, law and order, local works, zoning and licensing of construction, land allocations, the regulation of trespass on reserve, and the power to authorize ministerial expenses out of band funds. Band councils also hold authority over matters such as health, agriculture, residence on reserve, and the control of hunting and fishing.

Of all the powers set aside in the act for bands or band councils, only a handful are not subject to disallowance or ministerial approval. The first is the power to take control over membership, a power that was recognized in this way only in 1985. Another is the power to regulate intoxicants on reserve. As a result, many decisions, particularly those relating to land management, cannot be taken by first nation governments without first obtaining approvals.

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The taxation powers of bands merit special mention. Prior to 1988, first nations did not have explicit powers of direct taxation and had to rely upon licensing and other charges to finance projects, or ask the minister to release capital or revenue moneys for band priorities. In 1988 the Kamloops amendment was passed to amend section 83 of the Indian Act and permit first nations to tax interests in reserve lands, whether held by members or not.

Of importance, taxation powers are still delegated, with the act providing not only that the minister must approve any money bylaw, but that the Governor in Council can pass regulations controlling the exercise of the bylaw as well, and these can have retroactive effect. At present there are 74 first nations with such money bylaws in place. The Indian Taxation Advisory Board was established to advise the minister in the approval process, and operates autonomously from the department.

The committee has also expressed an interest in land management authorities. There have been some successes in relation to lands over the past several years that merit attention. First, the government has begun to make headway in restoring lands to first nations, particularly in the case of treaty land shortfalls. While the typical annual rate for additions to reserves in the 1980s was 19, over the past 12 months the department has implemented 130. Much more needs to be done, of course.

There are over 1,800 requests for additional lands now being reviewed or acted upon. Most are a result of claims settlements, and therefore legal obligations. At this rate, the reserve land base may double in a few years.

Reserve lands are, of course, the main asset of first nations in meeting the needs of their communities for residence, economic development, and employment. The act administers lands more closely than any other topic, with most decision-making powers left in the hands of the minister. The land management provisions of the Indian Act have been a hindrance for first nations that want to proceed with economic development projects. First nation communities, the federal government, and third-party investors have all often been frustrated by the delays resulting from the complex administrative burden the Indian Act provisions impose. A transaction that may take a matter of weeks elsewhere in the country can go on for months when it involves first nations lands, resulting in many lost opportunities.

Based on the work of a chiefs committee on lands, alternative legislation for land management was developed and passed by Parliament in 1999 as the First Nations Land Management Act. The 14 first nations affected by the act worked persistently for seven years to establish the new land management regime. They negotiated a government-to-government framework agreement with the Department of Indian and Northern Affairs Canada on behalf of the Government of Canada. Provincial governments directly impacted by the framework agreement were closely consulted throughout the process.

In essence, the framework agreement puts an end to the controls imposed by the Indian Act on how these first nations manage their lands. It is an empowering agreement that puts the daily management of their own affairs in first nations hands.

The First Nations Land Management Act enables the 14 affected first nations to move out from under the more intrusive provisions of the Indian Act that deal with land management. At the same time, those first nations maintain their unique legal position and special relationship with the federal government, which the Indian Act still enshrines, in spite of all its paternalistic shortcomings.

Under the First Nations Land Management Act, first nations develop a land code that sets out the basic mechanisms for governance: laws that govern land, accountability, and interest in lands and resources. In negotiating the framework agreement for this act, first nations provided for a system of democratic accountability. This ensured that their communities would have a vote before the land codes were implemented.

For the first time ever, the agreement also provides for the implementation of environmental regulations on first nations lands. Once that land code is in effect and the agreement in place, the land management provisions of the Indian Act no longer apply in those communities.

The 14 first nations under the First Nation Land Management Act will see a definitive end to the system where they must seek ministerial approval for transactions as routine as the issuance of licences and permits. They will be able to make effective and accountable land management decisions in all areas that were formerly managed by the minister. This is the only case since Confederation in which an alternative to the Indian Act has been found, and it has been done on a sectoral basis led by first nations.

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As well as powers over land, the Indian Act itself still greatly restricts first nations powers of governance. The scope of bylaw-making powers permitted to first nations is extremely limited, to say the least. Under the Indian Act, they can pass bylaws to prevent the spread of infectious diseases, to regulate traffic, and to protect land against trespass by cattle or other domestic animals.

Yet, as we well know, under self-government agreements like those of the Sechelt Band in British Columbia and the Cree-Naskapi in northern Quebec, many first nations governments have powers that far exceed those set out in the strictures of the Indian Act. They develop arrangements that can meet their own needs in areas as wide-ranging as health care, child care, child welfare, education, housing, and economic development.

First nations objectives for land management and governance thus reveal the Indian Act to be ever more constraining. These antiquated aspects become more apparent day by day.

In closing, I want to add that most of the recommendations for reform that have come from the royal commissions and parliamentary committees have tended to seek to displace the existing Indian Act and avoid building even in its shadow, let alone on its foundations, but to date, a solution has eluded us.

The act is still with us, casting its long shadow from the nineteenth century. It is still there, a burden on both Parliament and first nations, and it must be dealt with. Certainly we could all hope that in a new millennium and acting in a new partnership with first nations, we could get out of this shadow.

Thank you, Madam Chair.

The Chair: Thank you. That's a useful introduction for us.

Now, what I think is even more useful to the members is their opportunity to pursue their thoughts on some of the material you've introduced. We'll start with Mr. Konrad. We'll do the five minutes, but I anticipate that we'll have a number of rounds, because we can go right to 5.30. We'll keep it at that and I'll just ask the clerk to let me know approximately when we're there.

Mr. Derrek Konrad (Prince Albert, Canadian Alliance): Plus, we don't have many members today.

The Chair: We have six.

Mr. Derrek Konrad: I want to thank you for your presentation. One thing I wish you hadn't done is to skip over some of the parts, because we do have a lot of time and I would have been interested to know what they said.

The Chair: I just will interrupt there.

Maybe you're not aware, Mr. Watts, that what was distributed to the committee had a little more material in it than what you read. I presume that yours was a version that was updated or cut back a little bit.

Mr. Bob Watts: Yes, you have the Reader's Digest version, the condensed version. Both are available for distribution.

The Chair: Okay.

Mr. Derrek Konrad: I'll read it while you're answering somebody else's question.

When I was listening, a number of questions came up, one about page 11 of my version of it, which talks about the “decision-making powers left in the hands of the Minister”.

I wonder, if the minister interferes... Because land is held for the benefit of all band members, whether the First Nations Land Management Act is in place or not, can the government really sidestep its responsibility? That is, if the joint resources of everybody, the resources held in common, are mismanaged and lost, is the government then free or is the government still required to provide the same amount of services, say, to first nations persons that they always have? There's a legal responsibility that flows from it.

Of course, I think the minister always having his hand in it may have something to do with an ongoing responsibility that can't be sidestepped regardless of what is delegated to the bands.

Could you respond to that first?

The Chair: Mr. Watts.

Mr. Bob Watts: The answer to your question probably can go several ways.

First of all, I think it's absolutely true that where the minister has legal responsibility he can't sidestep that legal responsibility unless a number of conditions are set in place. First, we know that we are allowed to do delegations with respect, in the case of lands, to sections 53 and 60 of the Indian Act. Also, we know that in terms of the negotiation of self-government agreements or other agreements that the first nations can assume responsibilities where the minister may have otherwise had responsibilities.

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But at the same time, I think we're put to the test to ensure that we work with first nation communities to ensure sufficient capacity exists to be able to take over those responsibilities that would otherwise have been the crown's responsibilities—in this case, the minister's responsibilities.

Mr. Derrek Konrad: Fair enough, but most governments aren't involved in direct economic development. In the case of the federal government, it is not in business for its own sake, although I realize it has a tendency to fund different businesses in different ways.

As I understand it, first nations governments can be directly involved in economic ventures. Any time you're involved in economic ventures, there are about three possible outcomes. One is that there'll be a status quo and you'll hold your own. One is that you'll make a lot of money. Or you're going to lose money. If you make money, everybody is happy. If you hold your own, everybody but the investors are happy enough. But if you lose money, nobody is happy.

What I'm still saying is that if the band takes these resources, uses the funds generated to fund programs that are required by the federal government, and loses their money and the people lose their programs, where are we at? I would like to know right where we're at. That may require a legal answer. Earlier you referred to Mr. Broughton. If there are clear guidelines, then, I'm wondering if there's a clear answer to that question.

Mr. Al Broughton (Senior Counsel, Lands, Trust and Corporate Services, Indian and Northern Affairs, Legal Services Branch, Department of Justice Canada): Maybe I'll just start by noting that as a lawyer with the Department of Justice Canada I'm not really capable of providing legal advice to you, but where there's something clearer that can be said, I'd certainly be happy to provide that information.

Your question probably can be answered in any number of ways, but I think the basic line you're taking is directed to government programs and services and what happens if a first nation takes funds from those—

Mr. Derrek Konrad: Assets.

Mr. Al Broughton: Assets... Well, I was thinking of government-funded programs. What happens if they turn them to use in a business venture? In that case, first of all, there legal agreements with first nations that control how those funds are supposed to be used, so there shouldn't be that degree of flexibility.

Mr. Derrek Konrad: Okay, can I just—

The Chair: No, please let him answer the question, because we're close to six minutes now.

Mr. Derrek Konrad: I'll forgo my next round if I could pursue this, because I want to put it in the right context.

The Chair: Go ahead.

Mr. Derrek Konrad: Thank you.

In essence, what we're studying here is what the act and the agreements are supposed to do and what they do, so I would like you to bear that in mind as you answer the question.

I am giving up my next five-minute round.

The Chair: Go ahead and answer, please.

Mr. Al Broughton: I'm not sure. I'm going to need a little more clarity on that. What I was going to say was that the programs and services funded by the federal government are the subject of another session, I think, coming up a week tomorrow.

The Chair: Yes, that's session three.

Mr. Al Broughton: Just in terms of how the Indian Act operates and whether, for example, a first nation can get into a business venture and lose assets and the degree of federal responsibility, I think one thing we can point to is the federal government policy on self-government, which says, as Mr. Watts indicated, that as first nations take on greater responsibility and authority, the fiduciary duties of the crown will evolve and will diminish over time.

The fiduciary relationship will continue and there will always be a special relationship between the crown and first nations, but it's certainly the position of the federal government that certain specific fiduciary duties may be eliminated or reduced when first nations take on greater statutory or treaty control over their affairs, such as in a self-government agreement.

The Chair: Mr. Konrad, you don't have to give up your round. I'm going to try to be a little flexible here, because this is for our information. You're at seven minutes and fifty, so we'll just let you come back and you can have another five-minute round later.

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[Translation]

Mr. Bachand, go ahead, please.

Mr. Claude Bachand (Saint-Jean, BQ): I am going to risk speaking of a rather delicate issue, namely the definition of an Indian. I would want us to look at this issue in a little more depth, because the federal government and even yourself, in your presentation, seem to renounce the rights which stem from federal obligations regarding Aboriginal people living off reserve. However, in my opinion, there are some 40% of Aboriginal people who live off reserve. It's therefore important to see whether it is a good thing or not for the federal government to renounce its responsibility.

In your document, on page 2, you say:

The Indian Act is equally restrictive as to its geographical application. For certain reasons...

I would like you to explain this to me.

... the provisions dealing with the social aspects of the legislation (for example schooling, wills and estates) do not apply simply to Natives who live on reserve or on Crown land. Basically, the fundamental provisions of the Act wanted to legislate the affairs of Native peoples who lived on reserve land.

After having read the legislation, I agree with you that section 77 describes those who can elect the chiefs: those who elect the chiefs and those who may be councillors must live on reserve. It's very clearly stated in the law.

However, the Corbière decision would strike down this provision of the Act. That would mean that now, as soon as Natives leave the reserve, they are no longer the responsibility of the federal government. Why? Where is it stated in the legislation? Why is it even discussed? For certain reasons, is what you say in the text. What are these reasons?

Where do you find this restrictive definition as to geographic application? Why, one fine day, am I considered as a Native with rights, am I able to send my children to school, have free health care services, etc.? How is it, once I leave the reserve, that I no longer have these rights? Is this a current practice which evolved over the years or, legally, is there something in the legislation that allows for this interpretation?

[English]

Mr. Bob Watts: Thank you for your question. I'll start, and Mr. Hatfield or Mr. Broughton may want to join in.

First of all, when we're talking about section 91.24 of the Constitution, that provides the framework the Indian Act operates within. So it operates within what the Constitution is saying; it operates within the definition of “Indians” and “lands reserved for Indians”.

The Constitution Act also sets out other areas where in particular the provinces will have responsibility with respect to education and child welfare. So that defines, in our view, the geographic reach of the Indian Act. The Indian Act is a reserve-based act.

But to distinguish between the reach of the Indian Act... The Indian Act doesn't say, for example, that if you leave the reserve, you're no longer an Indian. So regardless of where you're living, if you're a status Indian, you're a status Indian, whether you live in Toronto or on a reserve in northern Ontario.

A number of federal programs are made available to status Indian people, regardless of residency. For example, health and welfare programs and non-insured services are made available to Indian people regardless of residency. Post-secondary education is available regardless of residency. So there are some programs that are limited in their application on reserve, but many, many programs are available to Indian people regardless of where they live.

You're quite right about the Corbière decision. The residency restriction is being dropped from the act as of November 20 this year. I would say—and I think we cover it in our paper—provinces have responsibility for provision of programs and services to Indian people off reserve. That's in line with our view of the division of responsibilities in the Constitution Act. Of course in many provinces that's the subject of some negotiation at this time to try to ensure Indian people and aboriginal people in general have full benefit of programs and services regardless of residency.

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Mr. Broughton.

Mr. Al Broughton: Perhaps I can just point to a few provisions in the Indian Act itself that deal specifically with requirements such as residency.

First of all, subsection 4(3) of the Indian Act talks about the application of certain other sections of the act. It talks about the application of sections 114 to 122, dealing with education, and sections 42 to 52, dealing with the estates of deceased Indians. It indicates they do not apply to any Indian who does not ordinarily reside on a reserve or on land belonging to Her Majesty in Right of Canada or a province. So that's one of the elements where there's clearly a limitation in the act itself to persons resident on reserve or on crown land.

A large part of the act deals with Indian reserve land management, so again, by the very nature of the provisions themselves in the act, they deal with the reserve. They are restricted to the reserve boundaries, because they deal with the land and the management of the land. That's a fairly significant segment of the act.

Then there are provisions in the bylaw-making powers in section 81, for example. Not all of them, but most of them, are restricted to application on reserve.

Those are a few examples of the restrictive nature of the act.

The Chair: Ms. Karetak-Lindell, please.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you.

Actually Claude asked some of the questions I was going to ask.

I think a lot of us have trouble understanding exactly what the definition of an Indian is, but I want to take it one step further.

We hear about status, non-status, what rights they have, who pays taxes, who doesn't pay taxes. Even I'm having people assume I don't pay taxes, because they feel all aboriginals don't pay taxes. This is something I've learned over this year especially: how aboriginal people in Canada all get lumped together as one big category.

If we let the public know exactly who is entitled to what, I think a lot of the animosity we noticed, especially when we were travelling on the Nisga'a Treaty... If some of that misunderstanding were cleared up, it would make it a lot easier for any negotiations to continue.

So my question is on status versus non-status and also the rights you talked about for health care and education. You said they're entitled to education whether they're on reserve or off reserve, but I understand status Indians don't pay taxes on the reserve, but if they live in, let's say, Toronto, off reserve, they have to pay taxes. Could you clarify that for me? I'd like to find out exactly what the taxing regulations are.

Thanks.

Mr. Bob Watts: Thank you for that question.

To try to be more precise with respect to education, the Department of Indian and Northern Affairs Canada's post-secondary education program is available to status Indians regardless of whether they live on or off reserve. Elementary education is a different story and is related to where you reside.

The question of who pays taxes and who doesn't is different right across the country. We could try to provide for the committee some more precise information. A number of first nations have taken on the taxation jurisdiction and are applying taxes that might not otherwise have applied on reserve to first nation and non-first nation members on reserve. So the taxation picture in those communities may be different from what it is in other communities.

• 1620

I don't know if there's an easy rule of thumb to give to the committee on this, except to say that status Indians working and living on reserve are generally income-tax-exempt. In many first nation communities in Canada, when you purchase goods on reserve for consumption on reserve it's generally tax-exempt, although that is different in some of the first nation communities that have taken over taxation jurisdiction in that regard. Some first nations have property taxation regimes in place and some don't have property taxation regimes in place. So in some cases it's different province by province and in some cases it's different first nation community by first nation community.

Mrs. Nancy Karetak-Lindell: What if they're living off reserve, like in a city, and still are known as a status Indian?

Mr. Bob Watts: I think again there's probably no pat answer on that. Most first nation people living off reserve pay property taxes like anyone else. Most pay income taxes like anyone else. Most pay provincial and federal goods and services types of taxes like anyone else. Most of the tax exemptions go to when a good or service is being consumed or delivered to an Indian reserve.

Mrs. Nancy Karetak-Lindell: On page two you said that in the definition of the term “Indian”, the final usage was added in 1982, with the definition including Indian, Inuit, and Métis people of Canada. I'm not exactly sure what that covers completely in applying it to the definition in other acts or in other laws besides the Indian Act. I'm not sure where this definition would be taken. Where would you use it?

This is on page two, the first paragraph. I don't think I'm making much sense, but in the definition there to include all aboriginal people, where would you then use that—in let's say the health benefits?

The Chair: Mr. Broughton.

Mr. Al Broughton: Really, that provision, section 35 of the Constitution Act, 1982, recognizes and affirms existing aboriginal and treaty rights of the aboriginal peoples of Canada. So really it's in the interpretation of who has those rights and where those rights exist that the usage will come up. In my view, it doesn't flow over neatly to the Indian Act except to the extent that you're trying to establish an aboriginal or a treaty right under the Constitution and how that may interplay with the Indian Act.

Mrs. Nancy Karetak-Lindell: The reason I'm asking that is because in 1979 I was eligible for certain health benefits, and then in 1982 I wasn't. That got clarified later, but we were all lumped in as one aboriginal people, and I want to make sure it hasn't been carried over and the Indian Act also didn't get carried over into other aboriginal peoples. I think people took that definition very broadly at the time, and I found myself personally not eligible for certain health benefits in 1982. That's the only reason I brought that up. I think it's been cleared up for now.

The Chair: Do you want an answer on that, Ms. Karetak-Lindell?

Do any of our witnesses wish to comment? Mr. Watts?

• 1625

Mr. Bob Watts: We can try to work with you to go a bit more deeply into that. The only answer I can give is that my observation would be that any definitions in the Indian Act of aboriginal people aren't generally carried over to any other legislation. So my sense would be that the definition in the Indian Act probably didn't affect you, in and of itself, post-1982; it's probably something else.

The Chair: Mr. Konrad, go ahead. I just want to let the committee know I'm going to have some questions and it's up to the will of the committee here. I can count myself—

Mr. Derrek Konrad: You're fine with me.

The Chair: Okay. Monsieur Bachand? Okay. Merci.

A number of times I've noticed, especially in northern B.C., that especially post-secondary children have to be transported and boarded separate and apart from their home territory to get their education. I was wondering, who pays for that boarding? Is it the band itself out of its resources, or does the federal government have a special responsibility, a mandatory situation? You see variations. I know in the Nass Valley there were kids coming in for a month at a time or a term at a time. I met earlier today with a group from northern British Columbia where some are away for a week, even though the distance isn't great, but it's the transportation time or just the plain economics. So where is the responsibility, and who bears that cost ultimately?

Mr. Bob Watts: I would only be speculating on exactly who pays what, in that education isn't part of our presentation. What I can do is raise this issue with Mr. Shanks, who will be in here next week, and ask that he be prepared to answer that.

The Chair: I'd appreciate it if that gets incorporated, because I'm looking to this act to tell me where the limitations are and where the holes are, and it seems pretty holey right now. Anyway, I'll pass for now; there are some other questions later on.

Derrek?

Mr. Derrek Konrad: Thank you.

I might have more questions than I can get answered here. Are you accepting written questions after, and are you willing to give written answers to these questions?

Mr. Bob Watts: Yes, we are.

Mr. Derrek Konrad: All right, thanks. I appreciate that. I'm sure I'll have a few.

I want to go back to the issue of fiduciary responsibility and the federal government's responsibility to Indians.

Mr. Broughton, it seemed to me you said—and I'm sure the record will show that one of us understands this correctly—that the fiduciary responsibility can be reduced by the federal government by transferring assets and responsibility for program management to particular bands. Now, that would be a fiduciary responsibility to a band as a collective, but to individual Indians the federal government is actually able to reduce fiduciary responsibility if the band fails to deliver? An individual has no call on the federal government? I would like a definitive answer on that, because it sure would help.

Mr. Al Broughton: I don't think I have a definitive answer on it. What I was speaking of was the federal government policy on self-government, where we're talking about an agreement among the federal government, the first nation, and possibly a provincial government, and where significant powers are transferred to a first nation or taken on by a first nation. In those circumstances, the federal policy indicates that the fiduciary relationship will continue, but the specific fiduciary obligations may be reduced according to the powers that might be taken on.

I think in that context I'm talking about a collective, rather than individuals. I think once you start talking about individuals you're getting into a far more complex discussion.

Mr. Derrek Konrad: But collectives are simply collectives of individuals. So if you have a band where members are not getting particular services because the funding has been mismanaged, which can happen, and which has happened, does the federal government have to go back again and re-establish all of the programs and refund them, or is that the end of the line?

• 1630

From what I see here in your presentation, Mr. Watts, it says “At the same time, those First Nations maintain their unique legal position and special relationship with the federal government”. That's under the First Nations Land Management Act.

I'm really trying to get an in-depth answer here.

Mr. Bob Watts: If I may, I think some of your answer will be covered by Assistant Deputy Minister Shanks' presentation with respect to programs and services. Most of the issues we deal with when we would be talking about a fiduciary obligation to an individual would probably be covered under tomorrow's presentation, which may talk about the management of Indian trust moneys that may be held for Indian individuals—in particular, mentally incompetent Indians. That may be one of the few areas where I would observe that we would have a fiduciary responsibility to a particular individual.

On the programs and services side, which is really Mr. Shanks' side, he will come prepared to talk about the role of the federal government with respect to programs and services for both communities and individuals.

Mr. Derrek Konrad: He's not going to want to hear that.

Mr. Bob Watts: Oh, oh.

Mr. Derrek Konrad: On the question of land held in common, is there any potential, I guess, for fee-simple land being held within reserves? In other words, if a person wants to put their land up as a...and take a mortgage on a house that they have a right to inhabit but don't own in the sense that fee simple is understood elsewhere in Canada, is there a possibility for that? Because I would have real difficulty with a band putting up people's homes rather than individuals.

I was a businessman, so I know what it means to go and ask the bank to lend money against property I own. But I wouldn't want the Town of Nipawin—I live in Nipawin—to go and borrow money from the bank based on the resources of the town.

I just wonder if there's any potential for that. Would it be a good thing if a person could take their property and develop a title for it and then pay the community, on a service agreement basis, the same way reserve land is taken out of municipalities—urban municipalities, say, or rural municipalities—and they develop a service agreement whereby they'll pay for their roads, water, clearing of snow, sewer, garbage disposal? So all those types of things that other people are taxed for, they pay in accordance with a service agreement, which I presume would be renegotiated to approximate the same amount of money paid by anybody who lives within the community.

Is there a possible mirror of that?

Mr. Ray Hatfield (Acting Director General, Registration, Revenues and Band Governance Branch, Lands and Trust Services, Department of Indian and Northern Affairs Canada): In terms of the land itself, reserve land is federal crown land, and no fee-simple interests are issued with that. The closest to that would be what they call “certificates of possession”, which are issued to status Indians.

With respect to non-Indian interests, there are leases that would be entered into with individuals who would like to lease a particular area. Service fees are associated with that for the kinds of services you described.

Mr. Derrek Konrad: But that didn't answer my question. The question was, could it be done?

I know it's not there right now, but at the same time, municipalities don't create Indian reserves either. That's done through an act, I presume, of the parliament, and it's permitted.

Do you know what I mean? The fee simple within the reserve would not be reserve land. It would be a private holding that would pay for the services provided by the reserve if an individual who had a certificate of possession wished to convert it to a certificate of title and pay the band for the land, if that was the question, and take out a mortgage and own it and eventually borrow money against it to develop his own idea for a business.

• 1635

The Chair: Mr. Broughton.

Mr. Al Broughton: That would not be possible under the existing Indian Act. The best approximation I can give you is that under the existing act, the only way you can establish fee-simple land out of reserve is for an absolute surrender to take place by the band membership. The membership would have to vote on that, to surrender it absolutely. It wouldn't be a decision only of the individual who held the land. It would have to be a collective decision, and that would have to be approved by the Governor in Council, as any surrender does.

Mr. Derrek Konrad: I would presume the Governor in Council would in essence do what the band would wish, unless it was completely off the wall.

So there is a possibility that it can be done currently, but it would require setting up some guidelines as to how permission would be obtained and what percentage would be required to allow the surrender to take place. It would be basically a surrender of lot one, block three, to a certain person or corporation.

Mr. Al Broughton: Yes. The surrender provisions are very extensive and clear in the act. The majorities are set out in the Indian Act and the jurisprudence that interprets it.

From what I know of first nations, it seems unlikely that many of them would want to go this direction, just because most of them are interested in preserving as much as possible of their reserve land, as such. They aren't very keen on—

The Chair: Could I verify this? I think there might be something happening here on the information.

I thought bands could only surrender to the crown, not to an individual. I think that has to be clarified in what we're saying here.

Otherwise, you're going to get the wrong impression, Mr. Konrad. Or do you realize that already?

Mr. Derrek Konrad: Yes, I do, but I mean, the crown would obviously not just take it away.

The Chair: Well, I think the point has to be made.

Mr. Derrek Konrad: It's part of the technical step, I guess, but thank you.

I'll pass for now.

The Chair: Mr. Watts, did you want to add something there?

Mr. Bob Watts: Yes, just to note that there is work being done with first nations, with the Canadian Bankers Association, and with DIAND to find models to be able to allow mortgages to happen on reserve. A number of models exist in this country. Actually, several reserve communities have mortgage or mortgage-like instruments that allow for the banks, for corporations, and for first nation individuals to be able to do business in first nation communities.

[Translation]

The Chair: Mr. Bachand, it's your turn.

Mr. Claude Bachand: I would like to deal with the 14 First Nations who do not fall under the Indian Act and now depend on the land regime. I want to open the discussion by reading what you said in your text, at page 11, in the next-to-last paragraph. I will read it in English and then I will ask my question.

[English]

The First Nations Land Management Act enables the 14 affected First Nations to move out from under the more intrusive provisions of the Indian Act that deal with land management. At the same time, those First Nations maintain their unique legal position and special relationship with the federal government—which the Indian Act still enshrines, in spite of all its paternalistic shortcomings.

[Translation]

Of course, I am going to talk to what is happening to the Musqueam Band. However, during Easter break, I also went to Nipissing. These are two communities which are governed by legislation adopted in 1999. There are problems there. I think that these people are impoverished. I don't want to withdraw from First Nations the right for them to manage their own lands. I don't want to take this right away from them.

But I am putting myself in the shoes of someone who has had a house there for 15, 20 or 25 years, who pays 1000 to $2000 in rent per year for a piece of land and who the next year, is told that they will have to pay $50,000 per year. In its great wisdom, the government, or the department, declares that they no longer have anything to do with this aspect.

And yet, you state in the text that the government still has a fiduciary responsibility. I want to know how far this responsibility extends. Did the government, in creating this Act and in allowing Natives to withdraw from the provisions of the Indian Act in one of its aspect, not merely created a new problem? It creates a bad image. The Musqueam Band were projecting a bad image of all this when I met those people against whom the Court had handed down a decision.

• 1640

However, the court handed down a decision favourable to the people in Nipissing. I think that that decision will be appealed. I believe, though I'm not sure, that the case will be heard in Toronto next month.

Therefore, I am wondering whether the government should not try to solve the problem instead of stating that it is no longer interested in one of the aspects of the Act. There is a serious problem there. People have to go to court, the government side as well as Aboriginal people. I find that this could perhaps prevent other First Nations from joining the regime. You will remember that this Act allows other First Nations to resume being covered by this Act a little bit later on, if they so desire.

I'd like to have your opinion on this. How far do the government's fiduciary obligations go? How far does the responsibility of the government go towards people who were paying $2,000 per year to rent their house and who will now have to pay $50,000?

[English]

Mr. Bob Watts: I should note that you may not get as complete an answer on this one as might be possible under other circumstances, because, as you've noted, sir, some of these questions are before the court.

I will say that in our presentation we talked about how the special relationship would continue to exist between the crown and first nations, not fiduciary obligations. So we talked about it in terms of a fiduciary relationship that would continue to exist.

You're quite right that both Musqueam and Nipissing first nations are part of the First Nations Land Management Act. However, neither first nation has enacted a land code, so they are both covered by the Indian Act presently. Although the First Nations Land Management Act is law, the First Nations Land Management Act also brought into force a framework agreement that called for the first nations to develop their own land code that they would put to a vote to their first nation members, which hasn't been done in either case. So both first nations still operate under the land provisions of the Indian Act.

I should note that in both cases—and in cases all across the country where there are tax disputes—there are tax and there are lease disputes with respect to both first nations that weren't brought about as a result of the First Nations Land Management Act, but were brought about because of the termination of a lease and the contract entered into between the tenants and the first nation and the crown, which called upon a renewal of that lease at this time based on current land values. So the lease, which was negotiated originally on land values of 30 years ago, is now being renegotiated, sometimes at a table, sometimes in court, based on land values of today. That has nothing to do with the First Nations Land Management Act, and has everything to do with the fact that there is a contract that exists between the parties that needs to be renewed now based on current land values.

The Chair: Mr. Finlay, did you wish to have a few questions at this time?

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

It was a very interesting presentation, Mr. Watts. Thank you very much.

I was reading along here in page 7, where you talk about “Assimilation has not been a formal government or Parliamentary philosophy for many decades”, yet we're operating under an act, or largely under an act, that is not based on that view at all. And you say the chasm is widening. I'm interested in narrowing that chasm.

Then on page 7 you say the Hall commission recommended three options. I thought you were going to talk about those options on page 8, and you went right over page 8 to page 9. The top of page 9 says “The gyre has continued to widen.” I want some comments, please, about the expansive view, the status quo view, and the activist view. I would hope this committee might agree on a modification of one of those views, or a combination or something entirely new, but it seems to me that if we're going to tackle the problem we have to get together on what our view is and we have to get the skeletons out of the closet.

• 1645

Mr. Bob Watts: Thank you for your question. There are a number of issues to be commented on, and my colleagues may want to jump in on this.

My sense of things is that there have been a number of sincere attempts over the past number of years to deal with the fact that the Indian Act is inadequate in terms of modern government and inadequate in determining the relationship between first nations and the crown.

Some of those attempts have been to try to change little pieces of the act, one piece at a time, into one sort of omnibus piece, if you will, and some attempts have been made, like the First Nations Land Management Act, to say let's take a specific area of good government, like land reform, and develop special legislation with respect to that area. We've seen that this has worked.

One of the problems we're finding right now in the Corbière decision is that even dropping seven words from one subsection of the Indian Act leads to many other sections of the Indian Act, so it's very difficult to deal with one section or one clause of the Indian Act in a discrete way because it's so interrelated to other parts. The section dealing with residency with respect to Corbière defines an elector. Electors are also part of land referendums, so it leads to another part. And “elector ” is mentioned many times in the Indian Act, so in effect we need to look at many parts of the Indian Act and associated regulations in just looking at the effect of those seven words.

My sense of things, and I know there have been many commentators on this, is that we keep thinking that self-government is just around the corner, and when you read reports, even back from the 1950s, people were saying self-government is just around the corner so let's make a few changes. And a number of changes were made in 1951, I think, with the expectation that self-government was just around the corner.

My advice, for what it's worth, is that if you're looking at changes and with the notion that self-government is right around the corner, fifty years from now we may be in a similar sort of place, so whatever sort of bridge we make or transition, modernization, I think needs to be substantive enough because it may need to stand the test of time.

Even though self-government may be just around the corner for a number of first nations, for many others they will be relying upon the Indian Act and the relationship it defines between the crown and first nations. So it's some sort of delicate balance between substantive enough to stand the test of time, but not something that will be such an overhaul that it will take forever to do and likely will not succeed.

Mr. John Finlay: Thank you.

The Chair: Do you have any further questions, Mr. Finlay?

Mr. John Finlay: I think I want to think about it.

I think what you said is very profound, because we may just have to go at it in various ways, and the First Nations Land Management Act, if it works, can then be adapted by other first nations when they're ready.

I'm not one who thinks we can do it all at once, but I think we have to keep moving. We mustn't get sidetracked and we mustn't get slowed down and we mustn't see too many trees and not the forest. We simply have to keep on. But I think it would be worth while if we adopted one position or the other. My own view is that the royal commission pretty well outlined the attitude that was required, and I think members of this committee are quite aware of that and have been trying to work it into our deliberations and our examinations of these things.

I don't think the other views are up to date at all. We have to take the view that the respect and recognition and responsibility and sharing are the way to go, and that means fairness to all the people involved, if we can, and common sense too.

• 1650

I have one other small question at this point. I have a little problem understanding the double-mother exemption. It was introduced for those born after 1951, by which a person whose mother and paternal grandmother were not entitled to be Indians at birth would lose entitlement to registration and band membership at the age of 21. I find that hard to understand. I wonder what it means. It means that the person whose mother was not an Indian but had been married to an Indian and whose paternal grandmother was likewise married to an Indian but not an Indian stopped being an Indian at age 21?

Mr. Ray Hatfield: Yes, that's the correct interpretation. In fact that's the double-mother clause. As you correctly described, if in subsequent two generations the mother was non-Indian but married an Indian, at the age of 21 the person would lose their status.

Mr. John Finlay: Okay. Thank you.

The Chair: Mr. Konrad, do you have some questions now?

Mr. Derrek Konrad: Yes, I do.

When we undertook this study we understood that this is a complex web we are looking into, as you've said, and that it would resist change. And I don't think we have any Alexander the Greats around who can cut Gordian knots.

One of the things I suppose we would agree on is that economic development really will follow good government. I think that good government has to come prior to economic development. Secondly, good government probably should consist of predictability, stability, and consistency.

What we hear so often and read so often is that there are politicized economic decisions, politicized decisions in regard to who can reside on reserves. Many of those types of things get politicized. How do we get away from that? How do we get predictability when it comes to government when we have hereditary chiefs?

When a development is going to happen on a reserve and business owners or investors go to talk to people, do they talk to the hereditary people, and is this something that has to be forever ingrained, or are we going to move it away from that in this society that purports to be democratic in nature? Is that going to happen, or are we going to be stuck with these hereditary governments?

The Chair: Mr. Watts, you can answer the parts of that you feel comfortable with. You're not the minister, and we understand that, but at the same time I think that was a very valid question and we'd like to hear what you have to say.

Mr. Bob Watts: I think, first of all, I would agree that some of the features or characteristics that you've identified as being consistent with good government are some of the features that need to exist in order for good government to be called good government. And my own philosophy, and the one I've been trained in, says that good governance is the foundation to good economic development, or good development of an economy. So I would certainly agree with that.

With respect to hereditary systems, and how long they may exist, and who to talk to, I'm not expert at that. I can't answer that except to say that in some communities a hereditary system of government seems to be operating well and in other communities it operates less effectively.

• 1655

Mr. Derrek Konrad: Do you think we should be trying to move towards elected governments? I mean, it's one thing to recognize a chief as a hereditary chief, but I read something of the history of the Northwest Rebellion and Big Bear's role and the fact was that while he was chief, he was not war chief. Some of those decisions were taken out of his hands because there were special things that happened. While he was the titular head and he was imprisoned for what happened, he was not really in charge.

That was the model prior to the development of a modern society. Could we look at that again, where the hereditary chief is just that, but there are people who are elected who make the decisions? Even the way the British Crown works, it does not make the decisions for Canada although the Queen is our head of state.

Mr. Bob Watts: I think what we've been saying is that the Charter of Rights and principles of good government should guide our discussions in terms of whether it's self-government or looking at other electoral regimes under the Indian Act. There are some guiding principles that need to be there. Those are things that we adopt in our negotiations with first nations.

Mr. Derrek Konrad: I'm going to pass for now because I want to come back later. Thank you.

The Chair: Mr. Bachand,

[Translation]

begin, if you will.

Mr. Claude Bachand: Mr. Watts, you state in your presentation, in the second paragraph, right at the top of the text:

[English]

You have asked that we address the scope of First Nation authorities under the Act in areas such as taxation and land management, as well as to provide information on the application of provincial laws on reserves.

[Translation]

As to the application of provincial legislation, there wasn't much about that in your presentation. You know that section 88 of the Indian Act is as follows:

88. Subject to the provisions of any treaty or any other federal legislation, all laws that generally apply and are in effect in a province apply to Natives...

I have a request to make. I don't know whether it will be very complicated for you to provide us with—perhaps not today but as soon as possible—a list of the applicable provincial legislation. I would imagine, that from one province to another, there may be different ways of applying the section dealing with public safety. I think that's the case for Quebec, among others. In other provinces, such as Manitoba and further west, it is the RCMP who deals with public safety.

Therefore, would it be possible for you to provide us with an overview in written form, province by province, of the legislation which applies to Aboriginal people in each of the provinces, or would this be something akin to the twelve tasks of Hercules? Could you provide us with such an overview?

[English]

Mr. Bob Watts: In talking with the individual who may be charged with doing this, our sense is that what you ask is more than a small task. We could certainly give a general sense and identify in many provinces of the country some of those laws that apply by virtue of the Indian Act. To try to do every one I think would cause us to find out every provincial law in every province and apply certain tests to it. It may be a much larger task than a simple letter back to you on this question.

[Translation]

Mr. Claude Bachand: But you were saying, Mr. Watts, that you would obtain information as to the application of provincial legislation on reserves. Does your document contain this information or does it not?

• 1700

[English]

Mr. Bob Watts: On page 2 of our speech we give some general idea of the applicability of section 88 and how it works with respect to provincial law. We also go into some detail on page 2 of the written text about how one needs to look at provincial law and some of the tests that need to be applied in terms of its consistency or lack of consistency with the Indian Act: “any order, rule, regulation, or by-law made under the Act”. We also note:

That section provides that provincial laws of general application apply to Indians resident in a province, subject to the terms of any treaty or Act of Parliament.

So it identifies, I think in a fairly broad way, how provincial laws would apply and some of the tests that need to be taken into account in consideration of that. As you've noted, we don't go into detail, law by law, of which laws may apply or which laws may not apply. I've offered to try to identify some of those in writing back to you.

[Translation]

Mr. Claude Bachand: Very well. If I understand you correctly, the task is enormous, but not necessarily impossible. You would be willing, in the near future, to identify various provincial laws which apply to Natives on reserves. You would be willing to do so in the near future.

[English]

Mr. Bob Watts: Yes, we are prepared to do that. We'll identify that in particular, hopefully by subject, and give some specific examples of this act or perhaps this part of this act. We'll try to be as precise as possible.

[Translation]

Mr. Claude Bachand: And by province?

Mr. Bob Watts: Yes, by province.

[English]

The Chair: Mr. Watts, the response would come to the clerk and then it would be distributed to every member of the committee. It's not just directed at one member. We would all like to have that same information, in both official languages, s'il vous plaît.

Mr. Finlay, go ahead, please.

Mr. John Finlay: Thank you, Madam Chair.

I'm looking at page 6 and then eventually at the top of page 10. At the bottom of page 6, it says:

Another major theme of the Indian Act regime as it evolved after Confederation and up to 1951 was its focus on the alienation of reserve lands. (...) One consequence that is still with us today is that the current First Nation land base under the Indian Act is barely a third of where it was a century ago.

Are you using “alienation” in the sense of the taking back of reserve lands or driving Indians off reserve lands? Is that what it means? In other words, the lands have been lost by the first nations by some sort of agreement, by some sort of sale, or simply by the government saying they need it or expropriating it. What's the sense of that?

Mr. Bob Watts: There's probably no one example; it's all the things you have identified. Some of it may have been for sale. Some of the land may have been expropriated for public purposes, whether it's highways or other types of rights-of-way. There's a myriad of examples of how land was alienated, many of which you've identified.

• 1705

Mr. John Finlay: And then on page 10, sir, you say—as these figures illustrate—that at present the reserve land base is fairly limited. I don't know what we're comparing it to, but at 6.4 million acres on 2,471 reserves, on an absolute basis this is about one-third—again, what you said before—the reserve land base of a century ago. As Mr. Konrad said, we want economic and social development in the self-government mode, and you say that the current land base is a significant barrier to economic and social development. The only conclusion I come to from that is that there isn't enough, or that the first nations don't have enough to meet the needs. Have there been some studies done on that? Where does that conclusion arise from? Is it simply because it's a third of what it was? Are we saying that originally that was enough? If they had two-thirds more, would that be enough?

Mr. Bob Watts: Without presuming to try to answer what is enough, I think it's safe to say that we know of communities in Canada—for example, with social development—that would have trouble using their housing dollars because there's no more land to build houses or they would be cutting into things that other communities would normally have, like a ball park or some green space in their community.

So in terms of social development, there's a question of overcrowding, of not being able to accommodate their members who may want to return home, and there's certainly no land base for any economic development. That is the case.

I guess what we're saying is that there are links between land base and economic development and social development. The fact that we are at one-third of where we were a century ago is a barrier to both.

Mr. John Finlay: We do have some provisions, do we not, for increasing land on a reserve? I'm thinking of the Caldwell Nation and their efforts at purchasing a reserve and lands for a reserve. They must be contiguous to any existing reserve and be administratively feasible. That is, the band has to be able to look after them; they can't be a hundred miles away. They have to be close enough to be dealt with as part of the reserve, from a law-making, bylaw, and due care point of view.

It suggests to me that something needs to be done here with respect to how we increase the land base for reserves if they are ever going to be viable economically and better off socially than they are now.

Mr. Bob Watts: I think you're right. First of all, I should point out that we don't have regulations with respect to additions to reserves; it's covered by a policy called the “additions to reserve policy”. It's not by regulation; it's by policy. I think what we've seen is that greater efforts are needed to bring many parties to the table to address the issue of insufficient land base. It requires the federal government, the provincial government, municipal governments, and other local stakeholders to be around the same table, and having everyone help to address the issue.

Mr. John Finlay: And the recognition is that the loss of this land occurred because we were going down the wrong path. We've since changed our minds. We're not trying to assimilate first nations any more; we're trying to integrate them, if you like, or make them partners.

Mr. Bob Watts: I think there are many recognitions that go into that. That may be one. There are many reasons that lands were taken, some of which were based on misguided philosophy.

Mr. John Finlay: Thank you.

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The Chair: Okay. I'm just going to do a follow-up question on Mr. Finlay's question and answer.

Could you put into context, where you have the reduction in land mass, how that relates to either the increase or the decrease of the native population on reserve on those land masses over the past century? In other words, are there more people or fewer people on reserves, and on more space or less space?

Mr. Ray Hatfield: In terms of the land mass, what Mr. Watts was referring to earlier is there are some communities that have reached their maximum terms of residence on reserve, and more land is needed for reserve status to allow more residents to be able to move onto reserve land. In the cases I referred to, the reserve space has run out for adding more residents to the reserve. That's the point Mr. Watts was making.

The Chair: I understood that point. My point is a different one.

Mr. Ray Hatfield: Okay.

The Chair: You're saying to me that we're one-third of what we were a century ago. I want to know, in relationship to the population of the natives on reserve, are we one-third fewer people or one-third more people? Are we trying to accommodate more people on less land, or has there been such an exodus that people have left the reserve?

I think of the Nass Valley, for instance. The population was much greater. We've just done a self-government treaty there, and now we have a land mass that is viable for economic and social development through self-government. But that's going to be different in different places.

If you don't have that answer today... What I'm trying to get at is here's your land mass a century ago. We've reduced it by a third. Are we trying to accommodate more or fewer people, and more or less economic and social development on that same land mass?

Mr. Bob Watts: Some of that I think would be better answered in writing in terms of trying to do a direct comparison, but I think it's safe to say that through the advent of Bill C-31, we've added some 150,000 status Indians to our rolls.

We expect the birth rate of status Indians to increase several times the non-first-nation birth rate, at least until 2035. So we have an ever-increasing and increasingly disproportionate number of first nation people both on and off reserve.

We certainly see a demand from people who want to move back on reserve. On the question of the direct relationship between land base and population, some of that would need to be done almost on a first nation by first nation basis. Many first nations have by far the majority of people living on reserve, but still a reduced land base. In other cases there may be a majority of people living off reserve, and that particular community may have stayed at the same land base. So it's almost a first nation by first nation question. But broadly speaking, we see the numbers shooting up and the land base generally moving down.

The Chair: And that was, broadly speaking, what I wanted to put on record. Thank you very much.

Mr. Konrad.

Mr. Derrek Konrad: Thank you.

I understand the treaty land entitlement agreement basically priced out land and provided money so they could buy land.

When you drive through the Muskoday Reserve, which is one of the signatories to the First Nations Land Management Act, you will find, as you will just about anywhere you drive in rural Saskatchewan, nobody living on the bulk of the land. There is a small community down near the river on the east side and a number of small holdings on river lots on the west side of the river running through the reserve. Consequently, whether there's enough land or not might depend on where people want to live. If they want to live in the community, then they have a limited land base. If they're willing to take a farm on every quarter section, that's a whole different matter again. But of course there's the high cost of living outside of the community that isn't there otherwise.

A question I have, relating again to accountable government, concerns the use of funds that are transferred to first nations. I think of the recent uproar on the Eskasoni Reserve over a salary that would be sufficient to build several new houses every year.

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In my own area, infrastructure money is given based on a submitted budget, but there is no requirement for the band to use the money in accordance with the budget that was developed. The band has the freedom to redirect funds once they're paid. One area that comes to mind and is a particular sticking point in my riding concerns a road through the reserve where people get stuck on rainy days, right on the road surface, because it's not built up, it's not maintained, it's not gravelled. Yet on one side of it is a highway and on the other side are what are called super-grids in Saskatchewan, which have been constructed to a certain standard to take the heavy haul that comes off farms and other industries throughout the rural area.

What suggestion can this committee make that would address that? Is that to be left alone, as the minister says? Is that up to the bands to decide, and if the bands decide their chief is worth all kinds of money, and yet people are crying out for more money because services that are supposed to be provided aren't there, is that just too bad, and the people suffer? Or if infrastructure spending isn't being done because the council in its wisdom decides to reassign the money to other priorities, is that just the way it goes when we're talking about self-government, or is there some role for the federal government? Can this committee made recommendations the department would be willing to hear?

Mr. Bob Watts: If I can suggest this, sir, Gordon Shanks is going to be here next week talking about programs and services, and this might be a matter better explored with him.

The one thing I would note is my agreement with some of the things you talked about, in terms of some of the principles or characteristics of good government. That's something we should all be working towards. But in terms of specific things you might want to explore, I think Mr. Shanks is the man you should be talking to.

The Chair: Is that next Tuesday? Okay. Well, I'm glad they're coming, because I'd like to hear those answers too.

Mr. Derrek Konrad: Another question, which you probably won't be able to answer, concerns the Indian register and band membership list. That I see you have set aside for someone else to address, so we won't be able to talk about that today. That's for tomorrow's session as well.

On the one hand you say “Mr. Hatfield will aid me in addressing First Nation membership and leadership selection issues”, and in the second paragraph you say “Tomorrow's session will address membership and elections”. Membership and elections are to be addressed tomorrow?

Mr. Bob Watts: Yes, they are.

Mr. Derrek Konrad: Then I don't have any further questions. Thank you.

The Chair: Thank you.

[Translation]

Mr. Bachand.

Mr. Claude Bachand: I have one last question that I find important since it deals with a very serious concern expressed by Native women regarding the legal vacuum of the Indian Act as to what happens upon marital breakdown.

We know that a decision of the Supreme Court, the Derrickson decision, dealt with the case of a woman who, after having divorced, was turned off the reservation. My fear, Mr. Watts, is that, as we have seen in the case of the 14 First Nations with regard to Native land management and as we have seen in the Nisga'a matter, each time a bill deals with land management or land claims, there is always a big issue regarding all of the Acts having to do with the management of farm lands.

I don't hold it against women that they are trying to defend themselves by taking these bills hostage, since, in fact, there's absolutely nothing in the Act which provides for that. Indeed, since the Derrickson ruling, which goes back to 1986, absolutely nothing has been done, except maybe for Ms. Stewart's overture. At the time, she had asked the committee to study the matter. As far as I know, the committee still hasn't held a single meeting.

Can you tell me how the department intends to deal with this situation, which, in my view, is rather urgent? Do they want to include a new provision in the Act or create a new government policy to clear up this grey area in the Act? The way it stands, many women are trapped, because divorce has also become a reality on reserves.

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What does the department intend to do to solve this problem?

[English]

Mr. Bob Watts: I've been overruled by my lawyer—a sad circumstance.

As you noted, Minister Stewart had talked about a special committee to look at this. What has also been talked about is a special representative to look at women's issues and the Indian Act. I know there are some discussions going on in that regard.

As I noted in my speech, the minister has also offered first nation leadership to look at modernization of parts of the Indian Act. When in fact we did modernize something with the First Nations Land Management Act, we ensured there was a specific provision in that act to deal with the division of property upon marital breakdown.

I should note that the act is gender neutral with respect to division of property, so it protects neither men nor women with respect to property. As you've noted, it is a void. It's something that has been raised by first nations and by native women's associations right across Canada. It's something we're looking at, and I guess that's it. We're waiting for some feedback. We have some ideas on things that can be done, but in terms of whether or not there could be policy change in the interim, it's clear that policy needs to flow from some sort of legislative and regulatory framework. The act itself, because it is gender neutral, probably doesn't provide that framework to be able to create some policy.

Mr. Claude Bachand: It does, or it does not provide that?

Mr. Bob Watts: It does not.

Mr. Claude Bachand: It does not.

[Translation]

The Chair: Is that all?

[English]

Do we have any more questions from over here? Mr. Finlay or Ms. Karetak-Lindell?

We have about five minutes before the bells start to ring.

I might add, to pass on to the people who will be coming, so they could prepare themselves, I did want to pose some questions about those eligible for post-secondary education and what happens when you have more people wanting to go on, because I think all of us agree on post-secondary education for those wishing for it. If there's a financial hardship, how is that managed and how is that going to be alleviated? That's one of my questions that you may wish to pass to your colleagues, because I know you're not prepared for that one today either.

Mr. Konrad or Mr. Bachand, did you want to have a wrap-up question?

Mr. Derrek Konrad: I have one short closing comment. It somewhat follows up on what Mr. Finlay said earlier about the shrinking land base.

At the end of paragraph one on page 10, you state:

As these figures illustrate, the current land base is a significant barrier to economic and social development.

I've been looking over the Harvard study that was recommended for this committee, and quite frankly, I think the actual physical amount of land would be fairly low down the list after governance, education of the people who live on the reserve, and even the location of the reserve. I don't think these figures really illustrate it as a significant barrier. At least you haven't shown it in your comments here by any statistical analysis that I see. Your statement may be one that doesn't stand up to scrutiny depending where the land is, the quality of the land, and that type of thing.

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The Chair: I will make a comment on that.

One of the studies that was referred to here, the Harvard study, may be a subject on which this committee desires to have a special briefing also. We had only these first three approved by our committee for discussion, but hopefully after hearing these three sessions we can choose some other areas and do some follow-up.

So I note your comment, Mr. Konrad, and I know that's not in your preparation for today.

Ms. Karetak-Lindell, go ahead.

Mrs. Nancy Karetak-Lindell: As a point of clarification, when you talked about post-secondary, you also talked about the eligibility or who's eligible.

The Chair: What I was getting at—and this has come to me from another first nations band in Ontario—is that often you may have say 20 people wishing to go on to post-secondary but there isn't sufficient funding to send 20 people. That's what I want to talk about, because it seems to me these types of barriers are very counterproductive to the priorities of what all Canadians want for first nations people, if that's the economic barrier there. I want to have some information on how decisions are made and who funds what and how dire this lack of money is for stalling people's further education.

Mrs. Nancy Karetak-Lindell: I would add, I think that's another one of those areas I talked about earlier where we don't know who's even eligible for those types of grants with post-secondary, versus people who have to apply for student financial assistance like every other student in Canada. So if we added that part, is it again non-status Indians or...

The Chair: So who's in the envelope?

Mrs. Nancy Karetak-Lindell: Yes.

The Chair: Okay, thank you.

Seeing no further questions, I want to thank you for your preparation. I know we wandered a little beyond what you had prepared for today, but I think it's important for these sessions. They are intended to help brief us and develop the line of questioning and maybe some of the areas for future study, because there's a very broad area out there and we're obviously going to have to pick and choose over time. I think this preparation time is well spent if we get the basics down.

Thank you very much. And we'll see most of you tomorrow, right?

Mr. Bob Watts: Yes.

The Chair: Thank you.

The meeting is adjourned until tomorrow.