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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Thursday, February 6, 2003

1035

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

Dr. Stephen Cornell (Professor of Sociology and of Public Administration and Policy, Director of the Udall Center for Studies in Public Policy, University of Arizona)

The Chair

Dr. Stephen Cornell

The Chair

Dr. Stephen Cornell

1040

1045

1050

The Chair

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

Dr. Stephen Cornell

Mr. Maurice Vellacott

Dr. Stephen Cornell

Mr. Maurice Vellacott

1055

Dr. Stephen Cornell

Mr. Maurice Vellacott

Dr. Stephen Cornell

The Chair

Dr. Stephen Cornell

The Chair

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ)

1100

Dr. Stephen Cornell

1105

The Chair

Mr. John Godfrey (Don Valley West, Lib.)

Dr. Stephen Cornell

1110

The Chair

Mr. Maurice Vellacott

Dr. Stephen Cornell

1115

Mr. Maurice Vellacott

Dr. Stephen Cornell

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

Dr. Stephen Cornell

The Chair

Mr. Yvan Loubier

1120

Dr. Stephen Cornell

The Chair

Mr. John Godfrey

Dr. Stephen Cornell

1125

The Chair

Dr. Stephen Cornell

1130

The Chair

Dr. Stephen Cornell

The Chair

Grand Chief Ed Schultz (Council of Yukon First Nations)

1140

1145

1150

1155

1200

1205

1210

1215

The Chair

Vice-Chief Mary Jane Jim (Yukon Region, Assembly of First Nations)

1220

1225

1230

The Chair

Chief Robert Dickson (Kluane First Nation, Council of Yukon First Nations)

1235

The Chair

Mr. Maurice Vellacott

Grand Chief Ed Schultz

Mr. Maurice Vellacott

Vice-Chief Mary Jane Jim

Mr. Daryn Leas (Chief Legal Counsel, Council of Yukon First Nations)

1240

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

Vice-Chief Mary Jane Jim

Grand Chief Ed Schultz

Mr. Yvan Loubier

Grand Chief Ed Schultz

1245

Vice-Chief Mary Jane Jim

The Chair

Mr. Gérard Binet (Frontenac—Mégantic, Lib.)

The Chair

Vice-Chief Mary Jane Jim

1250

The Chair

Mr. Yvan Loubier

The Chair

Mr. John Godfrey

The Chair

Mr. Daryn Leas

Mr. John Godfrey

Grand Chief Ed Schultz

1255

Mr. John Godfrey

Vice-Chief Mary Jane Jim

1300

Mr. John Godfrey

The Chair

Mr. Charles Hubbard

Mr. John Godfrey

The Chair

Vice-Chief Mary Jane Jim

The Chair

Mr. John Godfrey

1305

Mr. Daryn Leas

Mr. John Godfrey

Mr. Daryn Leas

Mr. John Godfrey

The Chair

Grand Chief Ed Schultz

1310

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 023

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, February 6, 2003

[Recorded by Electronic Apparatus]

À (1035)

[English]

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): Welcome, everyone. We will resume public hearings on Bill C-7, An Act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other Acts.

We're pleased to be in contact, by videoconference, with Dr. Stephen Cornell, from the University of Arizona. Dr. Cornell is a professor of sociology and of public administration and policy, and director of the Udall Center for Studies in Public Policy.

Good day, Dr. Cornell.

Dr. Stephen Cornell (Professor of Sociology and of Public Administration and Policy, Director of the Udall Center for Studies in Public Policy, University of Arizona): Good morning.

The Chair: We'll ask you to make a presentation, which will be followed by questions from the members. The way we proceed is via rounds of questions. If I say it's a five-minute round, that means five minutes for the question and the answer. Unfortunately, that system means that the person who gets cut off is our guest. But you will have an opportunity to make closing remarks, so just jot down what you might not have time to tell us.

Please proceed.

Dr. Stephen Cornell: Thank you very much for having me join you this morning. I appreciate this opportunity to speak with you and to answer your questions—or try to answer them.

As was said in the introduction, I'm a professor of sociology and of public administration and policy at the University of Arizona, in Tucson, where I direct the Udall Center for Studies in Public Policy. I also serve as the senior scholar at the Native Nations Institute for Leadership, Management, and Policy here. Additionally, I co-founded the Harvard Project on American Indian Economic Development, which has carried out a great deal of research—

[Technical difficulty--Editor]

The Chair: Our apologies. We were disconnected. Please carry on.

Dr. Stephen Cornell: That's all right.

What we were asked to do by the British Columbia regional vice-chief of the Assembly of First Nations was to look at the proposed legislation, the First Nations Governance Act, as it is called in the proposed version, and evaluate it against the findings of the Harvard Project on American Indian Economic Development, which I co-direct. We delivered our analysis—written by Professor Joseph Kalt, Dr. Miriam Jorgensen, and me—to the British Columbia regional vice-chief this past July.

I should say very briefly that we were asked to evaluate the FNGA against our research results. The Harvard Project on American Indian Economic Development began with a very simple question: Why is it that some American Indian nations in the United States are more successful economically than others? The results of that research indicated that the keys to sustainable development on indigenous lands have to do with genuine decision-making power that is backed up by capable governing institutions that match indigenous notions of how authorities should be organized and exercised.

Those were the key findings that we were asked to have in mind as we looked at the First Nations Governance Act. We were not asked to make a legal analysis of the act. We were not asked to address what the implications of this act were for technical relations between first nations and the Canadian government. We were asked simply to see what the act looked like to us, given our research results. What I'd therefore like to do in the few remaining minutes is touch on several key points about the proposed legislation.

As I understand it, the primary goal of the legislation is to provide those first nations that are organized under the Indian Act with the kinds of governance tools that are missing from the Indian Act. It is not intended to preclude those nations from entering into self-governance agreements with the Canadian government—agreements that presumably and ultimately might lead to very different governing structures from those proposed in the FNGA.

We believe the goal of assisting the first nations in developing and adopting effective tools of governance is surely a worthy one. Expanding the institutional capacity of first nations is an important step toward both self-determination and sustainable economic development. Indeed, our research in the United States argues strongly that having in place effective tools of self-governance—what we call capable governing institutions—is a critical part of building sustainable first nations economies.

We also recognize that the issues addressed in the act are not only issues of considerable importance, they're also issues of great difficulty. We think it is to the government's great credit that it is trying to address these issues. Facilitating, encouraging, and supporting genuine self-rule among indigenous nations is a critical task, but also a complex one. It's obvious to us that a great deal of thought and energy has gone into the First Nations Governance Act.

Some media reports seem to portray us as dismissive of the FNGA, or even as describing it as a failure. We've said no such thing. However, several aspects of the proposed legislation strike as us problematic from the point of view of the research we have carried out. I want to touch on four of those aspects.

The first is imposed governance templates. As we understand it, the proposed legislation encourages first nations organized under the Indian Act to adopt certain governing institutions, codes, and practices in the areas of leadership selection, administration, and financial management. It specifies to varying degrees what these institutions, codes, and practices must include, and for those first nations that choose not to design these for themselves, it specifies structures developed by the Government of Canada.

À (1040)

We have some concerns about this approach. While it allows bands to design their own ways of governing, it does so only under very specific constraints requiring certain details on the organization of leadership selection, administration, and financial management. The message appears to be for them to either design these requirements into their own governments or accept them in the governments designed for them.

Our concern is this. Our own research and other research from around the world suggests that governmental success depends not only on the details of governmental design, it also depends on the degree to which those being governed support the institutions that govern them and the degree to which they view these institutions as fitting their own conceptions of how authority should be organized and exercised.

Imposed institutions typically have great difficulty winning the support of those on whom they are imposed. By imposing these requirements, the FNGA appeals to broadly held Canadian values—those are its words—such as representative democracy, transparency, and accountability. We believe the search for a value justification for governmental design is a worthy one, but what about more narrowly held first nations values? Should not they also be part of the calculus here? Should not legitimacy with those being governed and the ability of the institutions in question to govern effectively also be central design criteria? And should not the FNGA take into account the fact that legitimacy and effectiveness typically are linked, that institutions that lack community support tend to function poorly?

We believe the danger of this approach is that it will lead, in at least some cases, to governing institutions that are thoughtfully designed by the federal government, but incapable of effective first nations governance. The alternative is to work with aboriginal nations to develop governing institutions that reflect the values, preferences, and concerns not only of the federal government, but of those nations. This would still allow the Canadian government to specify certain governance challenges or goals that must be met, but it would then allow first nations to bring their own heritages, practices, and resourcefulness to bear on the overall project.

The second concern is a one-size-fits-all approach. The proposed legislation adopts a one-size-fits-all approach to first nations governance, appearing to assume that there is a best way to govern, and requiring first nations to adopt or approximate that model. The question we would raise is why all first nations governments should look the same. It might be convenient if they did, and satisfying to some belief that we are all the same, but are convenience and uniformity more important than effectiveness? If it were discovered that uniform structures produced uneven outcomes while diverse structures produced more positive ones, would that be sufficient to drop the criterion of uniformity in governmental design?

We base this concern partly on what we have discovered in the United States, where good governance across Indian nations includes substantial design variation. That variation is driven by differences in the size, circumstances, preferences, and political cultures of native nations, and despite the assumption often made by central governments—including the Government of the United States—that there's one best model for local government. The evidence, in fact, points the other way, particularly in situations of considerable cultural diversity.

Admittedly, there is a common set of challenges that governments face that must be dealt with. Accountability, transparency, and legitimacy are among them, but successful solutions to those challenges tend to vary richly. Why shouldn't they vary among first nations, which themselves are richly diverse?

The third concern is the demanding timetable. In effect, the legislation asks a first nation to produce or reorganize the government in approximately two years. That's a complex task for any society, but an even more challenging one for societies that have long been denied much of the substance of self-governance. And it's one that involves not only designing institutions, but engaging in extended internal dialogue in resolving internal disputes. We wonder what impact this timetable will have on the quality and effectiveness of the institutions that result, and on the degree of support they win from indigenous communities. We also wonder what effect the timetable will have on examining successful alternative models already in use by native nations in Canada or even by indigenous peoples outside Canada.

Our fourth and final point asks what the proposed legislation is intended to do. To us, this is perhaps the ultimate question, but first let me be clear about the roots of our own perspective on the First Nations Governance Act. We were asked simply to measure the legislation against what we have learned about governance and development among native nations in the United States. Our perspective is profoundly affected, therefore, by the results of our own research.

À (1045)

The key finding of that research might be summarized as follows. The Government of the United States has spent the better part of a century, since approximately the mid-1920s, trying to find solutions to poverty in American Indian communities. In all of that time, only one approach has established any sustained record of success. That approach has been placing broad governmental jurisdiction in the hands of indigenous nations and assisting those nations in backing up that jurisdiction with capable, culturally appropriate governing institutions that those nations assist in designing and that they support and believe in.

In addressing the First Nations Governance Act, we made the assumption that the Canadian government's ultimate purpose is to find ways of improving the welfare of aboriginal peoples. We're convinced that is indeed the government's purpose. Given our research findings, we then asked two questions. Does the legislation increase the substantive jurisdiction of first nations? Does the legislation assist them in developing capable governing institutions of their own design?

We think the answer to the first of these questions is a maybe. We suspect the answer to the second is a no. In its preamble, the FNGA denies that it “is intended to define the nature and scope of any right of self-government”, yet it spends considerable time specifying the jurisdiction of first nations organized under it. This seems to us to be a specification of scope, but we're not knowledgeable enough to determine whether it constitutes an expansion of aboriginal jurisdiction or not. Hence, the maybe.

On the other hand, the act certainly seems intended to determine, to a significant degree, the form and process of self-government. In so doing, it appears to maintain much of the denial of aboriginal choice that characterizes the Indian Act itself. Hence, our suspected no. This seems to us to reduce the likelihood that the act will enhance indigenous welfare.

Having said that, we realize we may expect too much of the act. After all, its primary purpose apparently is simply to fix some of the problems with the Indian Act. But even here we sense a reluctance to fully engage first nations in that effort and to fully consider their views not of the Canadian government's position and proposals but of the Indian Act itself. Our impression is that a number of first nations very much want to see the Indian Act changed, but they have their own concerns about what form those changes should take. We think the ways in which they wish to see the Indian Act changed belong as much at the centre of the debate as the federal government's legitimate concerns do. Such a dialogue would offer the possibility of more fully engaging first nations in the search for and development of institutional solutions to longstanding and otherwise intractable problems.

That's the end of my opening statement, sir, and I thank you.

À (1050)

The Chair: Thank you very much. We will now proceed to questions.

Mr. Vellacott, for seven minutes.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Thank you very much for being with us this morning, Dr. Cornell.

I have some questions here in terms of the comparisons with some of the situations that have been successful down in the United States. For one, right off the top, you make the point that it's not so much about resources, education, location, and those things. I would think there would be some bearing there. And you also make the point about politically independent court systems and a variety of other kinds of jurisdictions of which they are able to take control. What is the range in the sizes of some of the reservations you have been studying and looking at in the United States, in terms of numbers of people on a reservation or in a band?

Dr. Stephen Cornell: First of all, just in response to your opening remark, let me say that it's not so much that we think these things that you mentioned—such as resources and location—have no bearing. We think they have an enormous bearing on outcomes, but their effect on outcomes tends to be conditioned on some of the political factors that have emerged from our research. For example, Indian nations that do not have capable governing institutions or that are not exercising substantial jurisdiction over their own affairs tend to squander some of those resources rather than putting them to effective use.

In terms of the nations that we've looked at, there are some significant differences here. Many of the nations that we've worked with and looked at in the United States have significantly greater numbers than a lot of first nations in Canada. That is, many of them may have populations of a thousand people or more, and some have substantially more. The Navajo Nation, which we've worked with a good deal, has 250,000 people or more. I would say, though, that the majority of the nations we worked with are in between 1,000 and 10,000 people, although we've worked with some nations that are considerably smaller than that, with populations of 300 to 700 or 800 persons.

Let me say a couple of things about the ways in which size has been dealt with here. A number of very small indigenous nations in the United States have engaged in successful institution-building by joining forces with other indigenous nations that share some significant characteristic, typically either cultural background, meaning they are a part of the same cultural group and background; perhaps ecology, meaning they're experiencing the same kinds of physical and geographical circumstances; or historical commonalties, meaning they've been through similar kinds of historical experiences and have built up a common understanding of the past and the present. In southern California, for example, this has not actually taken shape yet, but there have been discussions among a number of very small indigenous nations in southern California about creating an inter-tribal court among the—

Mr. Maurice Vellacott: What would be the size of each one of those different ones making up the inter-tribal court?

Dr. Stephen Cornell: I believe the range is from approximately fifty citizens to several hundred. They are all nations that realize that when it comes to creating effective institutions, the challenge with that size of human capital pool is a very difficult one. What they've looked at is where there are people who look at the world the same way they do and who share their cultural background and assumptions. They've then asked themselves if they can join together to solve at least some of these institutional problems. In essence, what they're doing is saying that, for certain governmental functions, they will organize at levels above the nation itself, and for certain governmental functions they may organize at the national boundary.

Mr. Maurice Vellacott: I'm curious, too, Stephen, to know what the proximity of these bands would be to one another. Are they spread hundreds of miles apart?

À (1055)

Dr. Stephen Cornell: In the southern California case, I would say most of those groups are within two to three hours' driving time. We've seen similar kinds of institutional experiments going on in Alaska, though, where some groups are not connected by road at all but are dependent on air travel or perhaps boat travel along the Yukon River. For example, the Council of Athabascan Tribal Governments connects ten Athabascan villages in the Yukon Flats for certain governmental purposes. Those villages are spread over an enormous geographical area that straddles multiple hundreds of miles.

Mr. Maurice Vellacott: That's interesting. I appreciate that. So there are some smaller ones. As you're probably aware, the vast majority in Canada, far and away...we have lots that are 200 and less, so they're not even in the range. I'm sure your studies have indicated that, or that you personally know that from having been in the country and having seen some of these situations. The exception would be those in the range up to, I think you talked about 10,000 or whatever. We don't have that many in our country that are actually in around the 10,000 range. They're few and far between, so it's economies of scale.

I wonder if you'd have a comment on the viability or the feasibility of infrastructure, education, health, and so on. We don't even expect small municipalities to be able to have the capacity to develop their own education, health, and so on. Is it fair? In terms of the whole gamut of a health care and education system and so on, is it reasonable for a very small band of a couple of hundred people?

Dr. Stephen Cornell: I think it's important to distinguish between two things here. One is the level at which governmental decisions are made, and a different question is the level at which services are delivered. For example, in Alaska, a number of aboriginal nations have retained substantial governmental decision-making power at the local level, but are organizing such things as health care in a very large consortium of nations. There may be a central administration of the health care operation or the law enforcement operation or the educational operation, but it is the governmental decision by the first nation to participate in that, to contribute to it, and to invest in it, that constitutes self-governing power.

We would make that distinction between self-governance and the administration of services. Genuinely self-governing peoples can choose to organize service delivery in any one of a number of ways while respecting exactly the sorts of issues you raise. Where are the economies of scale? How can we best address local problems with local knowledge? How do we balance those kinds of things? Those strike us as governmental decisions that may yield to administrative organizations that are established according to very different boundaries.

The Chair: Thank you.

Professor, the member who has just spoken to you was Mr. Maurice Vellacott, from the Canadian Alliance. I should have said that before, seeing that you're so far away.

The next person to address you will be Monsieur Yvan Loubier, from the Bloc Québécois. He will be addressing his question in French, but you should be hearing the translator in English.

Dr. Stephen Cornell: Thank you.

[Translation]

The Chair: Mr. Loubier, you have five minutes.

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Thank you, Mr. Chairman.

Professor Cornell, I found your presentation both very enlightening and interesting. We could draw parallels between the history of the past 100 years in the United States and what we could experience here during the coming decades. If it can help us, your analysis will be most welcome and appreciated.

I gather, as I listen to you, that the bill before us is, in your opinion, the worst possible way to find a long-term solution to the issue of aboriginal self-government, which should allow aboriginal people to develop both their economy and their national identity.

Earlier you said that since 1920, all the experiences that you have considered as success stories were those that consisted in granting as many powers as possible to the aboriginal nations and in accompanying them as they exercise and experience this new authority.

I found your way of presenting this issue very interesting and I would like you to illustrate how you proceeded by giving us an example of a success story. I would like to know what successful aboriginal self-government means today in terms of the powers that are exercised and the relations that must be maintained with the other levels of government.

Á (1100)

[English]

Dr. Stephen Cornell: What really drew us into this research in the beginning was the discovery that there were indigenous nations in the United States that had broken away from a very long-term pattern of persistent, deeply entrenched poverty. We set out to try to understand what they were doing differently. One of the crucial pieces that we discovered was that, in most cases, these first nations were asserting very substantial governing powers.

In the United States, American Indian nations enjoy a higher degree of self-governing power than first nations do in Canada, I believe. The United States government professes to maintain a government-to-government relationship with the indigenous nations in the United States, but that relationship varies. Some indigenous nations in the U.S. have been more assertive in their attempts to control their own affairs than others have been.

What struck us was that those nations that had moved federal agencies from a decision-making role into a resource and partnership role appeared to be doing better than those that had not. In many of these cases, these nations were designing their own governing institutions; were building their own relationships with local non-native communities and with the other American states, as well as with the United States government; and were working in partnership with federal agencies to establish what were, in some cases, very creative and innovative kinds of partnerships to accomplish service delivery and the like.

It turned out that for these relationships to be successful, however, those indigenous nations had to be exercising those powers effectively themselves. We found some indigenous nations that were being very assertive but had governing institutions that invited abuse of power, corruption, or problems in fiduciary areas and accountability.

So the combination of governing power with governing capability turned out to be crucial, but it was not helpful for the United States government simply to say, “You must govern this way or that way.” What turned out to be most useful was when the federal government of the United States invested in indigenous institutional capacity-building. The result is a very richly diverse set of governing institutions out there.

Cochití Pueblo, an extremely traditional people in New Mexico, govern themselves in ways that have very strong resemblances to the ways they were governed when the Spanish first entered the southwest. They are essentially a theocracy. The centre of power in the community lies in its spiritual leaders, who appoint governors. This is a community that does a very good job of governing. And there are other Pueblos that operate similarly. They appear to govern well in part because the indigenous culture itself holds people, including politicians, to a very high standard of behaviour.

On the other hand, we see other nations—for example, the Confederated Salish and Kootenai tribes of the Flathead Reservation and others—governing with classic parliamentary democracies and operating in ways that would feel perfectly comfortable to me as a U.S. citizen.

So the range is enormous, but in every case, what the successful nations seem to have done is solve a set of core governance problems, problems that we think every human society faces in how it governs: How do you engage the citizens of the nation in solving the problems of the nation? How do you prevent those with governing power from taking advantage of their positions to enrich themselves? How do you maintain governance in the collective interest?

Nations that solve those problems do better than those that don't. We see that in Indian country and we see it around the world.

Á (1105)

The Chair: Thank you very much.

The next member will be Mr. John Godfrey, from the Liberals, for five minutes.

Mr. John Godfrey (Don Valley West, Lib.): Greetings, Professor Cornell. I must say that your presentation was profound and fascinating.

You and our minister are agreed on the positive connection between good governance and economic development. You and many of our witnesses, however, are agreed that process issues are as important to outcome as the legislative product is, and you indeed agree on the importance of reciprocity and respect, which was a theme our own Auditor General played out. Grand Chief Gary Merasty, from the Prince Albert Grand Council, has been amply supported by what you say.

I want to follow on from the question Mr. Loubier asked. You indicated that you've discovered that these three systemic conditions of practical sovereignty, capable governing, and cultural match worked best in terms of spreading that knowledge and practice when the U.S. federal government put money into indigenous institutional capacity-building.

What advice would you give us if we wished to take advantage of that experience, recognizing the difference between the two countries and the difference in the sizes of our first nations? How can we leapfrog best? Is it through a law such as this one, which might provide an opt-in clause, thereby allowing people to choose? Or would it be actually some other route that we might learn about from the United States, in terms of establishing some kind of an institution in which first nations could apply on a voluntary basis—as they do with the Auditor General in this country—to improve their methods of governance? What should we learn from you after bitter experience?

Dr. Stephen Cornell: I should say that I don't want to overstate what the United States government has done. A number of indigenous nations in the U.S. have engaged in successful institution-building without any support from the United States government, and at times in the face of hostility from that government. It's a mixed record here, as I'm sure it is in Canada.

In answer to your question, though, our sense is that what a central government wants to do is assist these smaller governments in developing capable governing institutions—and by “capable”, I mean they're capable of exercising substantial power, and not simply running a program that, in the United States, was designed in Washington, with the indigenous nations told, “Here's a program. We'll give you the money, and you run the program.” To me, that's being an administration, it's not being a government.

We're talking about substantive governmental power, about things having to do with constitutional authority. What are the rules by which we're organized as a society? How do we engage with each other in trying to accomplish our purposes? What are our policies for our own citizens? What kinds of economic relationships do we wish to engage in? How do we wish to manage our affairs, our natural resources, our future? Those are substantive governing decisions. We think the role of a central government ideally is to recognize that those powers are necessary; and secondly, to invest, as you say, in institutional capacity-building, which to us would take perhaps the following, very broadly laid out form.

If they're going to be successful, governing institutions have to solve a certain set of problems. Let's identify what those problems are. I think the First Nations Governance Act does identify some of those problems in its attention to things like transparency and accountability. Every government should be concerned about those things. I think there are others as well.

Second, let's figure out what models seem to be working out there. Let's not assume that we in Washington, D.C., for example, know what the best model is. Let's actually go out there and see what's working. When we began this research, we weren't aware there were Pueblos in the southwest that were solving those governmental problems with very unusual, radically different governing institutions. We were delighted when we found them, because what it said to us was that there are multiple ways of doing this. That opens the door to engaging the resources indigenous nations themselves have in their own cultures.

So part of the job is to make available those models. The next step is to work with indigenous nations in asking if one of these models or some other model that they invent themselves works for them. What would it take to put that model together?

Obviously, there are constraints—both financial constraints and others—that limit the sort of freedom of action that people have in institution-building. In the present situation, if there are going to be first nations organized under the Indian Act for a substantial period of time, then the lack of governance tools in the Indian Act is indeed a problem that ought properly to be addressed. I think it's the approach by which that problem is addressed, that one-size-fits-all approach, that is problematic here, not the effort to change the act. That strikes me as probably a worthy enterprise.

I would think what you would want to do is figure out how the resources within the Canadian government could be put to work in partnership with first nations in solving institutional problems. How can we assist those nations not only in developing institutions, but while considering the first issue raised this morning, that of the proper scale? Should we be thinking about shared institutions in some cases? Should we be working with first nations to discover who the “self” is in “self-governance” in a particular setting?

How exactly you do that in legislation, sir, I'm afraid I don't really know. It has not been done in legislation in the United States. The United States has a piece of legislation called the Indian Self-Determination and Education Assistance Act that in essence opened the door to indigenous assertions of self-governance here, but much of the real work has been done by first nations themselves.

Á (1110)

The Chair: Thank you very much, Professor.

Next up will be Mr. Vellacott, from the Canadian Alliance.

Mr. Vellacott, you have three minutes for the question and the answer.

Mr. Maurice Vellacott: I have two questions, Professor, and I'll just recite them both very quickly.

First, would you agree that it's important to keep the political and administrative separate for good governance? How is that possible when you have some situations with fairly small bands, maybe composed of just a couple of or a few families?

The second question is on the whole issue.... When you're talking about amalgamation of services and so on, there's generally resistance in the non-aboriginal community. People fight it, there's turf protection, and so on. I would assume that in aboriginal communities, that possibly would be no less of an issue. In the States, have people been driven there? Have they just gladly and willingly gone to that, or has it been out of desperation that they realize they can't have this separate-turf stuff going on?

Dr. Stephen Cornell: It has been a long educational process, with some of it being a self-educational process by indigenous nations. Separating governance and administration is not easy, in part because for a very long time, the federal government in the United States basically assumed that they were the same thing. In essence, then, we've taught a lot of aboriginal nations that government is administration.

Part of the educational task is to begin to get people to think in terms of legislative powers, executive powers, judicial powers, and the advantage of the separation of those. The fact is that while an executive may lose power by having an independent judiciary, the nation as a whole is empowered by having an independent judiciary.

Part of the work that we do is what we call executive education. It's about exactly these issues. We discovered that many indigenous nations in the United States are fed up with decades of operating the way they have. They are eager to change, and what they really are looking for are the key sets of principles that we should keep in mind as we start to develop new ways of actually governing.

The issue you raise of very small communities is indeed an extremely difficult issue. In some cases, it may be that the issue cannot be solved at that level of organization. If everyone is related closely to everyone else, these things will not be separated.

Á (1115)

Mr. Maurice Vellacott: And the second question was whether or not people gladly move to amalgamation, or whether there is a lot of resistance to that. Or is it just absolute desperation that drives people to understand that they need to operate together by way of a tribal council or something bigger and beyond the band or the reservation level if that's too small in the given situation?

Dr. Stephen Cornell: As some people begin to see the advantages of genuine self-government, they begin to open their minds to new ways of organizing government. There are some examples in Canada. For example, in British Columbia, the Ktunaxa Kinbasket Tribal Council combines five first nations.

These are not easy decisions for people to make, but when they realize the advantages and the possible strengthening of their ability to govern themselves and their ability to shape their own futures, then they become increasingly open to the idea of innovative ways of organizing.

The Chair: Thank you very much.

Mr. Charles Hubbard, from the Liberals, for three minutes.

Mr. Charles Hubbard (Miramichi, Lib.): Welcome to our committee meeting, Professor. It's certainly good to hear from a sociologist.

I'm taken up a little bit with the idea that we have contentment, we have happiness, we have a feeling of self-worth, we have so many different values. Being of European backgrounds, we have certain ambitions and goals and values that we think are successful, and we have the idea that it will make our people happy to have all of these.

I'm interested in how you put those values on what you regard as being a successful first nation, as opposed to one that is not successful. Whose eyes are seeing these values, and who is judging what is successful and what isn't? We only have a minute or two, but I'd like to just clarify what success is, and success in whose eyes. Is it in the eyes of the whites or the eyes of the peoples of the first nations?

Dr. Stephen Cornell: When we began our research, we were interested in success. We defined it, and we tried to get indigenous nations to define it for us. We thought having a couple of pointy-headed intellectuals defining “success” was not particularly helpful. What we wanted was to hear from indigenous nations on what they were trying to achieve.

Our sense is that what we're trying to do and what they are trying to do is build societies that work. What does that mean? It means societies that are capable of providing their citizens with opportunities for productive and satisfying lives; societies that are able to resolve internal disputes without tearing themselves apart; societies that are able to pursue effectively their own economic, political, cultural, and social goals, meaning that they're able to identify goals and to organize to pursue them; societies that are able to build mutually respectful relationships with other sovereigns, with other governments. Those kinds of things strike us as characteristics of successful societies.

The differences tend to lie in what the ways of getting there look like. In one society, it may be that they get there through collective economic enterprises that are run by tribal governments. In another indigenous society, it may be that they get there through a private-enterprise economy that is run according to rules put in place by the tribal government. In another society, it may be that they get to that point through various kinds of cooperative enterprises organized at community levels.

They may do it in all kinds of ways, but when we look at many indigenous societies in the United States, at least, what is very clear is that they are unsuccessful societies. The century of domination by the federal government has not produced the kinds of things I'm talking about, and we begin to see societies here that, operating under their own governing impulses, are beginning to create some of those dimensions of success. However, I listen to what first nations themselves say they would like to achieve.

The Chair: Thank you very much.

[Translation]

Mr. Loubier, from the Bloc Québécois, you have three minutes.

Mr. Yvan Loubier: The voice we are about to hear might be a little more similar to mine.

Professor Cornell, you just made an interesting statement. According to you, the biggest problem is not due to the bill as such, but rather to the unique approach that defines it. And I clearly understood what you meant by that, based on the examples drawn from the Pueblos in the United States.

But let us come back to the bill. You are accustomed to working with communities in British Columbia. In your opinion, what should we include or change in this bill to make it a bit more accessible to the aboriginal communities? Would it be the spirit or the letter? Should we break out of the single model imposed by the federal government and basically do our homework all over again?

Á (1120)

[English]

Dr. Stephen Cornell: That's a very difficult question. My sense is that the one-size-fits-all is certainly one of our concerns about the bill. My inclination would be to back off from the details. From our point of view, what's troubling in the legislation is the fact that there is so much detail in it. It seems to me that the principles identified in the First Nations Governance Act are worthy principles. We all should be concerned with accountability. We should all be concerned with transparency. But I think there should be more concern about legitimacy with those being governed. Are they going to support the institutions?

To me, the focus of the effort ought to be on the principles that you are trying to produce in first nations governance, and on the methods by which you will work with first nations to achieve those principles. That allows first nations to pursue the changes that they see as being needed for them to begin to create governments that they believe will best serve their interests within the country of Canada.

So my advice would be, in part, to step back from the details while keeping an eye on the principles. Consider what other principles are necessary, and then think about how best to do institution-building through partnership relationships.

I'm not sure if that's specific enough to be helpful, sir, but that's the best I can do in response to your question at the moment.

The Chair: Excellent. Thank you very much.

Mr. Godfrey.

Mr. John Godfrey: I want to follow up with the American experience. You've said the U.S. federal government has passed no law that has any resemblance to this. My question would be whether or not the U.S. federal government created either a successful federal institution or successful federal programs to facilitate the creation or the building of indigenous institutional capacity. Can you tell us about any such thing, or can you advise us what they should have done if they had done it right?

Dr. Stephen Cornell: The federal government did pass a law that specified indigenous governance. It was a long time ago, in the 1930s. What I meant was that the success stories that we've seen emerging since the 1960s have been dependent, really, on the shift in decision-making power into indigenous hands, but not on any specification of details of governance by the U.S. government.

In the 1930s, they did pass a law that did not force upon first nations, but very strongly encouraged first nations to adopt a particular boilerplate governing template. That template is not a very good piece of government for most first nations. It doesn't address most of the issues that you're trying to address, for example.

Today, most of the creative institution-building that indigenous nations in the U.S. are involved in is happening not so much through any federal program, but simply through the initiatives of those nations. They are getting support for some of that from some agencies in the federal government that make money available to Indian nations that might want to engage in constitution writing, for example, among other things. It's not a constitution-writing program, but you can do constitution writing with the funds available in some of these kinds of programs.

So I would say the U.S. government has moved at least some resources into a place where they're available to first nations that are saying to themselves that they need to rethink how they govern themselves, that they need to do some of the hard work that institution-building involves, and that they're going to need financial support to do it. Some money is available from the federal government to do that through a number of different agencies, but there is not one comprehensive piece of legislation. These tend to be department-specific programs that are trying to address some of these issues.

Some of these first nations are also doing it through working with organizations like my own, the Native Nations Institute, or through Harvard University or various other institutions in the U.S. that are devoting considerable energy to providing intellectual or other kinds of resources to first nations that wish to use them. So it is not entirely a government-centred effort at all.

Á (1125)

The Chair: Thank you, Professor.

We have five minutes left. We would appreciate hearing closing remarks from you, because everything you're telling us is very helpful and we want to hear more. Please use up the next five minutes for that purpose.

Dr. Stephen Cornell: I would touch on just a couple of points, sir.

It is very understandable and very tempting for central governments to seize on an ideal solution and to try to impose it when faced with the kinds of problems indigenous nations themselves are facing, when faced with the challenge of trying to improve the situations of first nations. Our experience in the United States has been that this is seldom successful. Imposing rules does not typically lead to better performance out there.

I want to underline something I said earlier. Does that mean the Canadian government should not be concerned with accountability issues, with administrative issues, with leadership selection, and with all of those kinds of aspects of government? It doesn't mean that at all. I think it's obviously something you and first nations have to be concerned with. The issue here is the approach.

To me, part of the question is how to take advantage of the resources of first nations themselves. Our experience in the United States is that indigenous nations have, in many cases, very rich and very instructive histories of governing themselves. To some degree, we need to take advantage of that.

They also have the burden of having spent a century or more under someone else's governing power—often very detailed governing power and very intrusive governing power. Part of the objective here is to figure out ways to engage the citizens of first nations themselves in the process of creating governments that they believe in and support, and that are actually capable of getting the job done. Doing that requires partnerships.

Will such partnerships, such investments in institutional capacity-building, avoid all the mistakes of the past? No. Placing self-governing power in the hands of any society yields mistakes. We are all human beings. We don't know of a society that doesn't screw up in how it governs itself. We have to expect that this will happen. But when you put self-governing power in the hands of indigenous nations, I think you do two critical things.

The first thing is that their agendas move to the forefront of governing activity, and that's important. After all, it's their futures that are being created. The second and perhaps more important thing is that you link decisions and their consequences. As long as the federal government in the United States was making governing decisions for Indian nations, if that government made mistakes in those decisions, it seldom paid the price. The indigenous nations paid the price, so decisions and their consequences were separated. The shift to indigenous governing power in the United States has linked decisions and their consequences. Indigenous nations now pay the price for their mistakes, but they reap the benefits of good decisions.

In our experience, the result has been that the quality of the decisions improves over time. There are mistakes and things get screwed up, but over time indigenous nations quickly become better decision-makers about their future and their affairs than any outsider could be, because they're the ones who are going to be experiencing the consequences of their decisions. Reducing the number of mistakes and improving the chance that self-governance will yield the positive results more quickly requires the kinds of investments in institutional capacity-building that we've been talking about. But there again, it's not imposing institutions. What we think is important is working with indigenous nations to develop institutions.

Perhaps one of the best things the Government of Canada could do is to look across first nations throughout Canada in search of indigenous solutions that are working. Assemble those models and take a look at them. What are they doing that's useful? In the work we're doing in Canada, we come across some first nations and we find ourselves commenting on what a terrific thing they're doing, on what they've done in a certain area. We'll look at an innovative new solution, take it back to the States, and talk to people there about what's happening among first nations in Canada, where they're doing interesting, productive, innovative things.

One of the things the Canadian government could do is assemble those models and tell first nations about some of the things that are happening out there that are addressing critical principles of governance. Let them know you think some of these models may work for them and that these models may suggest to the first nations ways of inventing their own models. You can then work together to replicate success.

Á (1130)

So there are successes out there and they can be replicated. It's going to take work and there will be mistakes, but we think it's the only productive way to go.

Thank you very much, sir.

The Chair: Professor, you have been very helpful, and I'm sure your document will be referred to many times when we go to clause-by-clause.

Thank you very much, and have a nice day.

Dr. Stephen Cornell: Thank you, sir.

The Chair: We will suspend for five minutes.

Á (1131)

Á (1137)

The Chair: Welcome back. We will resume our public hearings on Bill C-7, An Act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other Acts.

I'm pleased to welcome Vice-Chief Mary Jane Jim, Yukon regional vice-chief for the Assembly of First Nations; Brian McDonald and Daryn Leas, legal counsellors; Grand Chief Ed Schultz, from the Council of Yukon First Nations; and Chief Robert Dickson, from the Kluane First Nation.

I think you have decided to make your presentations in the following order: Grand Chief Schultz, followed by Vice-Chief Mary Jane Jim, followed by Chief Robert Dickson. Is that correct? Of course, we're very flexible. Whatever you decide to do, we'll follow it.

Please proceed.

Grand Chief Ed Schultz (Council of Yukon First Nations): I thank you for this opportunity to once again stand before this committee on this bill, on different subject matter, of course.

Respectfully, Mr. Chair, I'd like to request that the submission appear as part of the record. I would also like to take this opportunity to maybe articulate who is with me, and their functions here.

With me is the regional vice-chief from the Assembly of First Nations, Mary Jane Jim. She represents our first nations regionally—not just solely the council, but other nations within the Yukon DIAND region—at the Assembly of First Nations, and has been elected through a very democratic process, that of our assembly.

I also have with me Chief Bob Dickson, who represents one of our region's first nations communities, of which there are seventeen.

And just for clarification purposes, Daryn Leas, from Kluane First Nation, is chief legal counsel for the Council of Yukon First Nations. Within our organization, he provides some guidance to the leadership, which consists of all the chiefs from the eleven member communities of our council. Brian McDonald is legal counsel for the regional office of the AFN.

It was very intriguing to listen to the presentation—or at least the parts I just heard—by the gentleman from the Harvard Project. I've been very much aware of that for many years. Although it is intriguing and there are some fundamental components that would be useful for the Canadian experience, I think what we have to offer you today is really a practical Canadian example already in the works.

In our region, eight first nations out of the seventeen have concluded land claims and self-government agreements. These self-government agreements have been derived from thirty years of extensive and exhaustive negotiations with Canada and the territorial government. The principles of these self-government agreements are founded in the real values and belief systems of our people.

To maybe give you a bit of background for clarity's sake, the Council of Yukon First Nations was an amalgamation of many aboriginal organizations in 1973. Its representatives came to Ottawa at that time, met with Pierre Trudeau, and tabled a document called Together Today for Our Children Tomorrow. It was also tabled with the then Minister of Indian Affairs, Jean Chrétien. That document outlined a whole range of grievances our people had at that point in time about the social conditions of our people in relation to other Canadians who were living in our region, and how there was not an equitable distribution of wealth or opportunity.

There was also an outline of grievances related to the severe or extreme lack of participation of our citizens and our peoples in relation to the decisions being made on our lands in regard to a lot of natural resource extraction, particularly in the mining sector, as well as in forestry. Those decisions were being made predominantly in Ottawa, as well as by appointed officers from Ottawa in our region, with very little consultation with either us or other local, non-native citizens. The results of such decisions in many circumstances resulted in very negative effects for our peoples.

Without getting into too much detail in that regard, I want to say that we began a process of negotiations because Canada appreciated—and this was articulated by Mr. Trudeau at the time—the fact that there was an indigenous group coming forward with a proposition for mutual reconciliation on a number of issues, as well as with an outline or framework for the sharing of responsibility for decision-making within a region of Canada where we respect each other. We honestly believe the foundations of good governance are grounded in respect.

Á (1140)

Also, at that time, we weren't very confrontational in our approach as a people. We were actually looking for a process of negotiations. Quite frankly, in the history of our claims, it was dialogue that dominated the agenda. There were no major protests in our region and no major incidents that might have been witnessed or experienced in other parts of the country. We were in a very long process of dialogue that originated from that document.

If I can just give you a quick overview, what that document outlined was a decentralization of some authority out of Ottawa, with it being put within the Yukon Territory. In particular, for our purposes, we were looking at putting more say or more participation, on behalf of our people, into the systems of governance in the territory, both at a community level and on regional levels, on a number of subject matters, including education, health, the environment, and land and resource management.

We also wanted to ensure that we had a new design or system of governance that was more reflective of our real values and belief systems historically and traditionally. At that point in time, we were all operating under the Indian Act, and the Indian Act was not fitting very properly in our system.

We have been negotiating based on that general outline. As I indicated, we now have eight nations that have completed negotiations and are steadfastly working on the implementation of those agreements. We have three more nations within the Council of Yukon First Nations that have already signed, just this last year, a memorandum of understanding indicating that most of the substantive matters in their negotiations are concluded. They are now preparing themselves for the processes related to the ratification of those agreements. Hopefully very soon here in the new calendar year, they will be working into the implementation phases.

In its original conception as the Council of Yukon Indians, the Council of Yukon First Nations was an entity created by all those nations as an advocacy and negotiating entity on their behalf, to try to bring agreements into place. As the agreements evolved, it really became evident....

I'll skip a whole bunch of history here, because time is of the essence.

By 1995, the members decided to renew the constitution of the Council of Yukon Indians. Based on the fact that we were now getting to some substantial closure on a lot of these negotiations, we didn't necessarily need a central organization to negotiate on our behalf anymore. What we were able to successfully do in the CYI was derive an umbrella final agreement.

As a quick overview of what that is, the umbrella final agreement is just what it suggests. It's an overall agreement that provides a general framework on a whole myriad of subject matters for all the first nations in the region, but not to a level of detail that says to a member nation, such as Kluane First Nation, that they will set up a system of governance like this, X, Y, and Z. It would outline their ability to exercise authority over this list of subject matters. They could be education, health matters, administration of justice, land and resource management, etc. A whole list was outlined, but it didn't say that a first nation “has to”. It says that, depending on the desires and aspirations of a community, its people, and their priorities, they will define what those subject matters are with Canada and the territorial government. But the enabling part was the umbrella, and that's what the CYI was able to achieve.

Those nations that have moved forward since that point in time have been able to identify and negotiate specific clauses in what we call the Yukon First Nation Final Agreements and Yukon First Nation Final and Self-Government Agreements, which flow from the umbrella agreement. That umbrella agreement was an interesting model for us, and it was no easy task to get there. I don't want to fool you any by saying it was an easy exercise. It took a great deal of negotiation and discussions between our own communities, as well as between the other orders of government, to finally get to an umbrella agreement that everyone was willing to move forward on, because it was fairly experimental. Up to that point in time in this country, all the agreements that we were aware of, all comprehensive modern agreements, were very comprehensive as “one agreement fits all”.

Á (1145)

This new exercise was something we all took a risk on. I might say today that we are very pleased that we did, because what it provided for was the unique diversity that we have within our region. Of the seventeen communities we have in the Yukon DIAND region, we have eight primary linguistic groups, with eight distinctive languages, eight distinctive cultural identities, and traditional governance practices that aren't necessarily the same.

What was interesting were the shortcomings of the Indian Act already in trying to deal with these differences. We recognized early on that we couldn't develop a self-government agreement that mirrored the Indian Act. We had to have something that was better suited to the diverse needs of our people. In particular, if we were looking at revitalizing our traditional practices and our belief systems, then we had to have a system of governance that could be not only accepted by, but conceived by the people it's going to serve.

And that's another unique feature. Our historic relationship under the Indian Act, in terms of accountability and reporting and so forth, directed everything to the Minister of Indian Affairs, not to our people. The chief at the time could virtually do what he wanted or she wanted as long as it was sanctioned by the Minister of Indian Affairs. It didn't matter what the people necessarily said. Certainly the ability to do that was there, and from time to time we did see some bad practices.

In this process of self-government, however, it is the people who come up with a community constitution that they have created through a process of community meetings and a series of community consultations. They drive the process for community development and they ultimately make the decision to adopt that constitution and declare that this is the governance system that they choose to govern themselves.

The accountability measures of the executive wing now vary under self-government, because some communities have taken up some more modern contemporary systems, with an electoral process for a chief, councillors with portfolios, and all that, while others have moved completely to a very traditional method, with traditional clan heads that have been identified. Those leaders of the clans, for example, are chosen by traditional practices that go way back in time. And some, like my own community, have a merging of the two. We have a chief who is elected by the community as a whole, but we have clan representatives who are appointed by their clans and who, as a council, work with the elected chief. It's a mixture.

Aside from the mechanics of how these executive officers are identified, they have interesting accountabilities. Unlike the Indian Act, which is through the minister, their accountability is directly to the people. Their job is to report, on an ongoing basis and under constitutional articles, to the people at annual general assemblies, annual general meetings. They have annual reporting requirements not only for the their activities in a written way, but also via financial audits that are certified financial audits. They must report on where they use their funds, for what purposes, and so forth.

What's also interesting about the process of self-government is that it provides the citizens with the opportunity to give direction to the executive wing on where the spending priorities are. That's because one of the other things that we've noticed, even though we come from a region that's relatively small in Canada, is that there were different priorities from one different part of the region to the next. For example, in southeastern Yukon today, you would see forestry and forest management practices as being a very high priority for aboriginal communities in our region. That is not necessarily so for our friends on the North Slope, because, quite frankly, their trees are rather small and there is not very much commercial value to them. However, there's a lot of poignant discussion on natural gas development right now.

Á (1150)

So this system provides for the unique diversity that exists in our region, and these self-government agreements provide that the citizens can derive what the priorities are. It can identify the priorities and mandate and direct the executive officers on where to put their focus. When it comes to accountability, if we're not fulfilling those mandates, then we will pay the consequences. Measures built into these constitutions allow for the removal of officers. They're very much likened to most modern contemporary methods, like petitions or whatever else.

It's very difficult. I can tell you that from a personal experience. I've been very fortunate to have worked in the Indian Act system, as well as in this new system, at an administrative level. When I was providing reporting, for example, on funds that we utilized for whatever program, A, B, or C, that reporting procedure meant going directly to the minister's office, as represented by the regional director general's office. I would just hand the report in, and then we'd either hear something or we wouldn't. In most cases, because I was a really good administrator, it was that we wouldn't hear anything.

In my first exercise reporting under self-government, however, what was interesting was the level of scrutiny afforded to my report. Even a $100 expenditure as a line item in the report was challenged by the citizens in assembly, and I had to justify that expenditure. It was a very interesting enlightenment for me, and I was very pleased and encouraged by the experience.

I know I'm not necessarily following what's written here, because I'll leave it for you. What I want to lend to you is that, in the end, I'm a politician as well, and I like to encapsulate a message as opposed to going with the verbatim word.

The other interesting part of the processes related to self-government in the territory is the ability to enable our people to become the legal holders of all the financial resources of the community, the legal holders of all the title and land and resources that derived under our self-government system. Our self-government system isn't one of tenure of, say, the land. In our agreements, all our nations retain 16,000 square miles, for example.

If you look at the American experience of our Alaskan cousins across the border, they have developed some corporations that now have legal title in fee simple of the lands they retain under agreement. In the Yukon, of course, we have a totally different experience. We have our first nations systems of government that holds the land in trust for the citizens, who actually own the title to the land. Even executive officers such as us do not have the discretion on our own to release interest into settlement lands. We have to get it sanctioned by the citizens by way of general assembly processes outlined within community constitutions, and some of them are very stringent.

Under the old Indian Act system, with lands set aside in reserve designation, it was a relatively easy exercise to have interest in settlement lands or lands set aside released. In some circumstances, that could occur without the full understanding or comprehension of the community as to why it was happening. That's why we find a lot of specific claims before Canada today.

This system makes for accountability directly in the community. Everybody has a clear understanding of why any interest in lands is being released, because they sanctioned it, they authorized it. They're the ones who said, yes, we agree with XYZ Company having some interest in this land to do this thing at this time, and we agree with it in this manner.

There are some points I really would like to make sure I don't lose sight of. My legal people went through painstaking exercises to isolate them, so I don't want to be negligent on this part. The self-government agreements also outline a citizenship code that flows from a constitution. Citizenship is a very interesting issue for us, and has been for a very long time. Under the Indian Act, there were status and non-status designations. Those were really inconsistent with the traditional practices of our people. As an example, let's take a really fundamental difference between ourselves and western society.

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In our society, we're very matriarchal in our designation of identity. In other words, my identity flows from my mother, my children's identity flows from their mother, and so forth. In western society, of course, we see that the converse is true. When a child is born, generally that child will be identified by who the father is and will carry the father's name and the father's legacy. That's a very fundamental difference in approach in identification.

This difference goes all the way back to the original contact between our peoples. There was this immediate difference between us. It was fundamental, but it was an oversight by everyone. I'm certain that, as we were developing laws to interact or were developing relationships through treaties and/or through legislation like the Indian Act, we weren't paying attention to these very fundamental, basic differences. Under our constitutional development in self-government, we've been able to go back to reflect that identification process that has been historically and remains our process.

The constitutional codes that flow from the constitutions of our communities are developed by our citizens and are sanctioned by them. The identification of a citizen has nothing to do with identification as being a status or non-status person designated under the Indian Act. It has all to do with their lineage descent, and that is sanctioned by our people. That's very important, because when we tabled Together Today for Our Children Tomorrow in 1973, one of the fundamental approaches we took to self-government and land claims settlements in the Yukon at the very outset was to say we would not accept that designation.

As an example, I was identified as a status Indian—and I'll use myself as an example, because I don't like pointing out other individuals but feel free to use myself. My sister, who was born right after me, was not. This is an example that goes on all across the country. It causes a measure of division in aboriginal communities, and not just in communities, but in families. It's absolutely wrong. We would never undertake that type of exercise with any other Canadian in this country. We do everything in our power, as good orders of governance, to try to keep people and particularly families healthy and unified so that they can move forward.

On the governing bodies and their powers, I've covered some of the points, but I do want to touch on one point that keeps on coming up, and that's the issue related to the recognition and protection of the rights and freedoms of our citizens. They are clearly identified and recognized, and where they are not explicitly replaced under a first nation equivalent, the Canadian Charter of Rights and Freedoms does apply, in its fundamental framework, to all of our citizens under self-government. The rights afforded to any other Canadian are also afforded to me, for example. In turn, I can depend on those as fundamental rights that I should be afforded. However, there is an ability for nations to create laws and identify the rights or more definitive rights of their citizens in relation to their traditional practices and customs.

The other thing about the law-making authority of the self-governing systems is the fact that first nations under the self-governing systems have the ability to enact laws in relation to their citizens, their lands, and their resources, and laws that are equivalent in authority to those of the federal Crown. For example, when we were negotiating this, one of the first things we had to agree to before this was acceptable or palatable to Canada and others, was that...Canada wanted all laws of general application to apply to us, to our lands, and so on. We said to hold on a minute, because, quite frankly, we think some of your laws are pretty weak on, for example, environmental protection. We don't think we want to have those laws strictly applied to our lands, because there may be circumstances in which we want to have more stringent laws when dealing with our own lands.

Through a long process of negotiation, we finally agreed to this principle with Canada: All laws of general application shall apply to our citizens, lands, and resources, insofar as they are consistent with what the provisions already say in our final agreements and self-government agreements. Beyond that, they will be replaced at the point in time when our nations, under these constitutions, adopt their own laws. We will do so in relation to laws at no less a standard or calibre than those existing under the general law. A prime example would be the transportation of hazardous waste. We have already agreed that we would not create a piece of law that would allow someone less stringent standards than what Canada or the territorial government already superimposes on that type of activity.

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The other thing I want to emphasize is the process back to the executive. The people choose by a myriad of processes, but one of the things I do want to say is that there is no hardline process identified in the framework of the umbrella agreement, and particularly the self-government agreement in that umbrella.

Each nation is afforded an ability to integrate either an elected, wholly traditional, or mixed executive—and I gave examples earlier. It's whatever the people desire. One of the reasons why that's beneficial is that it is difficult enough—and I think I heard this in part of the discussion in the last presentation—for small communities to move forward with limited capacity as it is, in the best of circumstances. But the whole process of moving forward is much more challenging when you have a very divisive process of elections in such a small jurisdiction.

We need to be able to find a method that makes sure that people first of all put some legitimacy into, for example, the offices that we represent this morning. The people need to have some ownership over our offices and, to the greatest extent possible, facilitate the process of consensus-building. I want to touch on that quickly, too.

Our historical method of making decisions was not by majority vote. Traditionally, our decision-making process was by consensus. There were some very sound reasons for that if you look at things historically. We come from a very remote region of North America, and one with particularly very high extremes in seasonal variations. In those extreme variations, being a subsistence and nomadic society, we had to very much be at the right place, at the right time, and doing the right thing. Otherwise, a lot of people were going to die. That was the practical reality.

The people were not dependent on one person—or the dän zhi, as it says in my language; that means “head man”—to make the decision for the whole. If that one person was wrong, many people could die. So people would come together as small groups—today they refer to it as “make council”—and they would make the decision together. Although the dän zhi might initiate it by saying he thought they should now move to their summer camp or move to create a new summer camp for whatever reasons, it wasn't his sole discretion to make that decision. He would make that proposition, he would state all the reasons why, and eventually the whole group would have to agree with him. They would then do it together. That way, there was ownership to the decision. If there were any repercussions from the decision, no one person wore it.

We still operate like that under this modern system that we have adopted today. We operate by consensus. We do every bit of exercise that we can to make sure there is full community agreement. The Indian Act, however, was really built on majority vote, a very western-European, parliamentary system of decision-making. We're not suggesting by any stretch that it is the wrong way to go. What we're saying is that it is not in sync with the traditions and practices of our peoples. What we need to ensure, particularly by the instructions of our elders, is that we maintain systems that provide the greatest opportunity for success on building consensus for our decisions.

Here's another fundamental reason, in the modern context, for why that is necessary. Under this agreement, we retain 16,000 square miles of land and there's a whole lot of responsibility for that. We have also received, in financial compensation, some $232 million in 1989 aggregate value, as well as some natural-resource ownership over the timber and mining and mineral rights over 10,000 square miles of land. Although that seems significant, it's finite. In other words, the rest of the lands within the territory we co-manage...[Editor's Note: Inaudible]...but there's a finite value to that. If we do not have the right processes in place, we can go the way of many examples in the United States and elsewhere, where reserve land, land holdings, and interests in lands or moneys were eroded away by bad decisions over time or self-interest decisions over time.

Â (1205)

What we want to be able to ensure is that there's a consensus when we release interest in land, that there's a consensus when we make major investments with what limited capital we have available to us, and that there's a consensus when we grant third-party interests into any of the natural resources related to our 16,000 square miles. Although we may have 16,000 square miles of land on paper, we don't want to wake up fifty years from now with only, in essence, 1% of it under our absolute control. That's why this is very important.

I think I'm almost done with my part. There are just a few points I'd like to make in reference to the bill itself, and a few general points that I'd like to characterize before turning it over to the next presenters, if I may.

The first thing—and I'll say this solely as grand chief at this point—is that I commend the effort by Canada to try to find a better method for allowing first nations and indigenous peoples in this country to have better control. But the flaw in the process is that Canada is not going with a model that we think would best serve our purposes. We think the model that we have just outlined, with a framework that doesn't give a whole lot of detail but provides for a venue of development by region-specific need, is the best approach to pursue. We look at this question in our region as a micro version of the development of Canada.

In essence, when we accept these agreements, we agree to become part of the Confederation, no matter how flawed it may be. I wear this maple leaf pin wherever I go, internationally and nationally, and I wear it proudly as a Northern Tutchone Canadian. I recognize some of the challenges that we have in this country with constitutional development. Even knowing that, I still am a willing participant, and so are my citizens.

We wrestle with this problem on a national level. If there's anything we can do through this exercise, it's to recognize that this is not a uniquely aboriginal question when we're talking about a system of governance that has to fit across the board. We all recognize that we have federal and provincial jurisdictions that have been having that debate since Confederation started. That continues to this day. Although it's on the back burner a bit, it's still there, and one day it's going to come back again.

The reality is that we need to be able to find methods, not only nationally but also internally, to recognize the diversity of this country. In this country, we have some 633 identified first nations. Those are the ones identified under the Indian Act. Quite frankly, though, that doesn't reflect the real number of peoples who are in this country, because some peoples aren't actually officially recognized under the Indian Act.

We need to find a way to allow for diversity and regional growth without hamstringing each other. We really think we've found a model in our process regionally that provides that. It's built on the foundations and principles of respect. Our people have said to Canada, yes, we recognize you as an order of government in our homelands, and you're going to recognize us, and yes, territorial government, we're going to recognize you as an order of government. We are willing, as respected partners, to jointly do what we can to manage this territory in a very productive manner that provides for very healthy citizens all around, and provides collective decisions that benefit everybody but still provide for the uniqueness.

Quite frankly, this whole arrangement between Canada, the territorial government, and ourselves, is so comprehensive that when Chief Robert Johnson gets his final agreements all in place, he's going to get a very big stack of papers thrown in front of him, in 28 chapters dealing with everything you can conceivably think of. After 30 years of negotiations, you can imagine how lengthy those agreements will be.

Â (1210)

But nothing in those documents has hamstrung Canada or tied it to any new processes the are not traditional to Canada's development, nor has anything hamstrung the territorial government to something that wasn't traditional to them or to us. It was mutual respect for the pre-existing systems that already were there, and an ability is allowed for the evolution of all three orders of government to bring to fruition this harmonized system of governance in the territory.

That's what I'd like to share with you as our overall view of things. I don't know if you want to have questions now, or if you want to just go on to the next presenter.

Â (1215)

The Chair: No, we'll listen to all the presentations, and then we'll have the question period. Therefore, we'll turn to Yukon regional vice-chief Mary Jane Jim.

Vice-Chief Mary Jane Jim (Yukon Region, Assembly of First Nations): Thank you, Mr. Chair. Respectfully, I would also like to have my submission appear as part of the record.

[Editor's Note: Witness speaks in her native language]

I would like to thank you for the opportunity to appear before this committee to present a submission on Bill C-7.

I introduced myself with my traditional name, the name I was given at birth, which is Nn echeden chea, which I'm told literally translates as “a surprise”. That's a Southern Tutchone name given to me by my grandmother. My other name is Dak wa' äl. Representing my Tlingit connection, it was given again to me by my grandmother, and it belonged to her grandmother who was of Tlingit ancestry and who was a member of the Ishkî tàn clan that came inland from the coast of Alaska, which at some point was not considered Alaska, when there were no boundaries between Alaska and Yukon.

As pointed out by the grand chief, our system is a matriarchal system. Our names and our clans are handed down by a matrilineal process. In our family, we choose to acknowledge and honour that tradition to this day, hence my introduction.

I also honoured my parents, my mother Tlestîn, Stella Jim, and my father Paddy Jim, Kàkhnokh. I also honoured my grandmother, Ichî tlâ, Annie Ned, and my grandfather Kàkhnokh. Both my grandmother and my mother are Kajìt, which is the Crow Clan, Southern Tutchone, as well as Ishkî tàn, which is Tlingit. Both my father and grandfathers are of the Wolf Clan. These are the predominant clans.

My history goes back not two generations, not four generations, not six generations, my history goes back many, many generations. My name Dak wa' äl, as far back as I can feasibly trace it, goes back ten generations. This is our form, our system, of governance. It is our traditional governance that guides the process of governance in the Yukon for myself and my family and my community.

Officially, I am here as Mary Jane Jim. I am the vice-chief for the Assembly of First Nations, which is to say I'm a representative to the Assembly of First Nations. I've been elected by fourteen Yukon first nation leaders to represent them at that executive council.

The purpose of my submission today is to address a number of issues related to Bill C-7 that are specific to some of the issues and concerns that may arise and that are unique to Yukon first nations. Given that we haven't had the opportunity to participate in the development of this bill by way of the Constitution or even by way of being able to legally analyze the bill itself with respect to our self-government agreements or with respect to those first nations that are non-self-governing at this point—we haven't been afforded that opportunity—we want to address some of the issues that may arise. I say “may” because we haven't had that opportunity to fully analyze the document in a sense that we feel should be afforded to us.

As has been highlighted by the national chief of the Assembly of First Nations, participation by first nations in Yukon has been minimal. As such, we recognize that the Minister of Indian Affairs has minimized that because he states that those first nations with self-government agreements will not be affected by this bill. It's fair to state that. However, we have six first nations that are non-self-governing first nations at this point, and we haven't been able to analyze whether or not they will be affected should they not sign an agreement.

Â (1220)

When we talk about meaningful consultation, we talk about the intention of Yukon first nations to successfully conclude and implement their respective land claims and self-government agreements. This means they should carry on with their negotiations, as we have done, but it should not preclude us from sitting down with Canada to discuss the parameters of the bill, which may or may not affect us.

As well, there is the implementation of the bill. As we look at the bill and, again, as we haven't been able to analyze it, we know there will be policies attached to the implementation of it. We haven't been able to analyze those policies. Further, the minister must recognize that the negotiations can't be delayed. If they are delayed or are unsuccessful in any way, then this bill will apply to those first nations in the Yukon.

On the issue of reserve lands, in order to have effective governance, Yukon first nations need a clearly defined land base, as the grand chief has pointed out. This is a principle that's at the forefront of our agreements and at the forefront of our negotiations. As you may realize, there are very few reserves in the Yukon, and prior to land claims, most lands reserved for Indians or first nations—and when I say “for Indians”, it's because I'm using the term in the Indian Act—were deemed as lands set aside. According to the Supreme Court of Canada as set out in the recent decision in the Ross River Dena Council Band v. Canada, “lands set aside” are not, in and of themselves, reserve lands as identified in the Indian Act. As such, lands set aside do not get afforded the same status as those with the benefits of reserve lands. Again, we haven't been able to analyze the impact of this bill with respect to the Ross River Dena Council Band situation, which may arise or may not arise should they not sign an agreement. I think these issues may be further addressed by the Kaska Dena Council, which will be presenting on February 11. I won't go into detail on that particular issue, but I raise the point here that it is of concern.

With respect to transboundary lands, in my opening remarks I introduced myself as a Southern Tutchone–Tlingit woman. In the Yukon Territory, we knew no boundaries. We flowed from what is now known as Alaska and into the Northwest Territories and what is now known as northern B.C. However, today the reality is before us that we do have boundaries. We have international boundaries and we have provincial–territorial boundaries. Issues are arising with respect to transboundary lands that may be affected by this bill.

Many of the first nations have traditional territories in either the Northwest Territories or in B.C. Alaska is a different issue. Those Yukon first nations that have traditional territories in B.C. or the Northwest Territories will be affected by this bill. We're not sure how, and we're not sure how these first nations will deal with the different governing structures. As the grand chief said, we're very quickly approaching finalization of our agreements. If we're self-governing in the Yukon and somebody has a transboundary agreement and lands that border in B.C. or in the Northwest Territories, how do we govern those lands according to this bill? Is it according to this bill or is it according to our self-government agreements?

Â (1225)

These questions need to be answered and discussed. This issue includes the Kaska Dena Council, the Teslin Tlingit Council, some Northern Tutchone groups, and the Ross River Dena Council, as well as a number of other groups not included in the CYFN umbrella but are in the AFN umbrella. The current legislative framework, including the proposed bill, may require Yukon first nations to develop two distinct models to address this—and I say “may” in a broad context, because we haven't analyzed this and haven't had the opportunity to do so.

In terms of non-derogation, while it is acknowledged that the Minister of Indian Affairs and Northern Development has repeatedly stated that this bill is not intended to affect aboriginal and treaty rights, a legislative initiative of this scope needs to have specific acknowledgement that it is not intended to abrogate or derogate from the rights of aboriginal peoples as recognized under section 35 of the Constitution Act, 1982. That's very straightforward.

Finally, it needs to be highlighted that the principles of accountability for decision-making and financial management are principles that Yukon first nations already arduously apply within their current governing structures, as attested to by the grand chief. Not one first nation in the Yukon in probably the last five to ten years hasn't had its audits questioned. So on the issue of accountability, it's there, it's in the structure, and they practise it. Whether the first nation is self-governing or under a land claim agreement, this principle applies. The issue of accountability has been addressed.

In closing, I would like to take this opportunity to urge the government to support the continuation of a land claim and self-government negotiation in the Yukon. In the Yukon, the ability for first nations to govern themselves has demonstrated a vast array of benefits in terms of good governance and benefits to our citizens. As a matter of fact, we're seeing an increase in those people graduating from post-secondary schools, an increase in better health, and an increase in addressing poverty issues. We definitely need to do a study to substantiate that statement, but we are definitely seeing that good governance and a good economic base is actually addressing some of the more basic issues.

That good governance is good governance based on our vision, good governance based on our practices and an incorporation of our practices and our vision. It provides certainty to the first nations and it provides certainty to other governments, as the grand chief has said. It's one of the most unique processes that we have embarked on in Canada. It was a tripartite agreement. We invited the Yukon territorial government to the table to negotiate with us. That, in itself, is a unique process.

I would urge the committee and the Canadian government to consider the success of our negotiations in the Yukon and what they have brought to us in the Yukon as a measure of measurable successes, especially in light of the overwhelming criticism that has been raised by first nations across Canada with respect to this bill and the process in which it was created.

Finally, I want to state that, over a hundred years ago, Ta'an Chief Jim Boss tried to engage Canada in right of the Crown to address the rights of his people. Thirty years later, Elijah Smith and a group of leaders from the Yukon managed to engage Canada. They embarked on a negotiated process for settlement in the Yukon. And Elijah Smith, by the way, is my maternal uncle.

The Prime Minister of the day was the Minister of Indian Affairs at that time, and I probably was in my very junior years of seeing this vision come to fruition. It wasn't a vision that was just created. I heard of this vision when I was a very young person, probably at about the age of eight years old. With the guidance of my grandmother, my parents, and Elijah Smith, I'm here before you today as one of the leaders of the Yukon first nations, and also as one of the leaders of a national organization in Canada. It's not because of my own personal vision, but because of the personal visions of our elders, our leaders, and our communities in bringing together a collective vision to see the leadership address rights issues for first nations people across the country.

Â (1230)

In recognizing that we have been successful in the Yukon and are still seeing success, we have eight self-governing first nations and six pending final agreements today. Those agreements are again based on our vision. And when I say “our vision”, I'm talking of the incorporation of first nations' vision as well as Canada's vision, and our ideas of good governance, which go far beyond administrative issues.

We need to honour the existing treaties, we need to honour historic treaties, and we need to honour the rights of first nations individuals.

[Editor's Note: Witness speaks in her native language]

The Chair: Thank you very much.

Chief Dickson.

Chief Robert Dickson (Kluane First Nation, Council of Yukon First Nations): Good afternoon, everyone. My name is Robert Dickson. I'm Chief of Kluane First Nation, and I would like my submission to appear as part of the record.

My first nation has been negotiating the issue of aboriginal title and rights for the last thirty years, since Prime Minister Trudeau accepted our invitation to resolve the land question in the Yukon by negotiation as opposed to litigation. I can confirm that our substantive negotiations are complete, and all of the relevant agreements, plans, and other treaty documents will be in a form to be presented to our citizens by April 2003.

The only substantive issue outstanding is the issue of overlap or a shared territory agreement with White River First Nation. In the early 1950s, for administrative purposes, our first nations were joined together, and we've had difficulty trying to separate our traditional territories.

The proposed Kluane First Nation Self-Government Agreement is not a constitutionally entrenched component of the Kluane First Nation Final Agreement, which will be a treaty under subsection 35(3) of the Constitution Act, 1982. The Kluane First Nation Self-Government Agreement would be given legal effect by the Yukon First Nations Self-Government Act, a federal statute.

The Kluane First Nation Self-Government Agreement has a non-derogation provision to ensure that the inherent self-government rights of Kluane First Nation would not be derogated or taken away from by the Kluane First Nation final or self-government agreements. This means our aboriginal right to self-government remains intact.

The federal legislation giving effect to self-government agreements has a provision ensuring that the Yukon First Nations Self-Government Act is paramount over other territorial or federal legislation. Both enabling legislation and our proposed self-government agreements have a provision ensuring that our first nation is to be consulted. This clause reads as follows:

“Consult” or “Consultation” means to provide:

^ç	a. to the party to be consulted, notice of a matter to be decided in sufficient form and detail to allow that party to prepare its view on the matter;

^ç	b. a reasonable period of time in which the party to be consulted may prepare its view on the matter, and an opportunity to present such views to the party obliged to consult;

^ç	c. and full and fair consideration by the party obliged to consult of any views presented.

This consultation on potential impacts of Bill C-7 has not occurred within the foregoing definition, and that is inconsistent with the honour of the Crown. The current common law on “consultation” from the Taku River and Haida cases requires the Crown and third parties to recognize their legally enforceable duty to consult and to seek a workable accommodation with the affected first nation.

Our reading of Bill C-7 under clause 35 seems to suggest that a Yukon first nation without a self-government agreement is exempted from the application of Bill C-7, as it is expected that the financial provisions and election practices addressed in these agreements will be the applicable standards, just as they are applicable everywhere else in the Yukon. This reading makes sense. Otherwise, my first nation would be faced with implementing three separate accountability and legislation regimes in the next three years: existing DIAND requirements, the Bill C-7 requirements, and finally, the Yukon First Nations Self-Government Act requirements. This means KFN would adopt the existing Yukon procedures and practices of those first nations with self-government agreements or would revert to the old DIAND method of accounting.

The first approach makes more sense. The point is that KFN should have been consulted to ensure that this technique makes sense if the old DIAND or new DIAND practices are to be retained and if this requires a DIAND presence in the Yukon. Bill C-7 anticipates the successful completion and ratification of all our self-government agreements and final agreements.

The ratification process of Kluane First Nation ensures the participation of all KFN citizens. There are no guarantees other than the fact that democracy is its own judge.

Â (1235)

Thank you for this opportunity to present my views on this matter. My views are the views of a non-self-governing first nation of the Yukon, and we're still in our negotiations.

The Chair: Thank you very much.

Well, this committee won't be accused of not consulting, because we had limited your time to five minutes each but we're now over one hour. However, your information is very interesting. We appreciate it, because it is valuable.

We will proceed now to question-and-answer. You will note that, in question-and-answer, I am very strict with time. If I say seven minutes, that's for the question and the answer. Unfortunately, the people who get cut off are the guests we invite, but you will have an opportunity for closing remarks. We have a lot of time, so we'll be able to go through everything.

Mr. Vellacott, for nine minutes.

Mr. Maurice Vellacott: I may not use it all, as I have to get to a media interview.

My question off the top would be whether or not it would have helped in the negotiations and in the implementation of some of these particular agreements or treaties, if Bill C-7 had been in place.

Grand Chief Ed Schultz: I'm not certain it would have been beneficial if this bill had been in place. It might have had some usefulness, but as far as drawing a correlation or comparison to the two is concerned, ours far exceeds the measures being afforded under Bill C-7. Therefore, it would be certainly speculative on my part. I would suggest that it may have been slightly useful, but it would not have satisfied the desired result. Quite frankly, what we ended up with was a compromise from the starting point that we had and that far exceeded what we ultimately ended up with, as is the case with the end result of most negotiations.

Mr. Maurice Vellacott: Thank you very much. That's my question.

Vice-Chief Mary Jane Jim: We have one more response to that question.

Mr. Daryn Leas (Chief Legal Counsel, Council of Yukon First Nations): I just wanted to make the point that the process of land claim negotiations is a very concentrated process, sometimes over several years. To take that focus away in order to focus on developing membership codes, accountability codes, or codes required under Bill C-7, may in fact be a distraction from that focus, particularly when those codes are developed in accordance with Bill C-7, which may not be consistent with the cultural values or institutions of the first nations. In other words, it may just be a waste of effort, time, and resources, when those things can be better spent on focusing on a self-government process, as the grand chief said, to build something that is constructive and consistent and that has legitimacy in the eyes of the community.

Â (1240)

[Translation]

The Chair: Mr. Loubier.

Mr. Yvan Loubier: You arrived on time, Mr. Chairman.

The Chair: We are in the kitchen.

Mr. Yvan Loubier: Thank you ever so much for your presentations; they were most interesting. Besides, it made us aware of the conflicts that can arise among bills, negotiations and the obligations that derive from Bill C-7.

Ms. Jim emphasized a fact that no other witness mentioned up to now: to negotiate self-government and to finalize the codes, we must have a land base. Without a land base, we might be left wondering, when it comes to defining codes and some sort of self-government, where this self-government and these codes will be applied.

How are the land claims negotiations progressing in the Yukon, and how can Bill C-7 harm these negotiations and make things more difficult for you than they would be if we carried on with the negotiations that are already off to such a good start?

[English]

Vice-Chief Mary Jane Jim: I don't want to speak for Chief Dickson, but Chief Dickson made the statement that, hypothetically, if his negotiated agreement isn't ratified by his citizens, then three levels of this process will apply to him, those being the Indian Act, Bill C-7, and the requirements of the Yukon First Nations Self-Government Actor umbrella final agreement. What we haven't been able to address is how it would affect us, and we haven't been consulted in that process because we have been very specifically focused on negotiations and on finalizing and concluding those negotiations.

I don't know if that answers your question.

Grand Chief Ed Schultz: If I may, in reference to how the self-government authority is exercised in relation to land in particular, under the agreements, the first nations have an ability over and above the 16,000 square miles, which was the original quantum. They can retain up to another 70 square miles of land set aside for reserves in their original tenure under the act as either/or. Some nations have chosen to do that, so what that would suggest—certainly we need to have some further analysis on this—is that a first nation—and there are a number in the Yukon that do have settlement lands—can also retain lands under their original designation as reserve lands under the Indian Act.

If this bill is passed, then those nations that have retained those reserves may then be required to have not only their system of governance under the self-government system, they may have to have measures that are outlined within the governance act as well. I'm not certain, but that's certainly in response to your initial question.

The exercise of this authority, which I was touching on earlier, is uniquely within the community. Whereas the decision-making over those lands formerly rested with the minister and the minister's representatives, those types of management decisions for lands now are in the community itself under the community constitutions.

I don't know if that helps you.

[Translation]

Mr. Yvan Loubier: If I understand correctly, Grand Chief, Bill C-7, if it were adopted, could be harmful to what you have already agreed upon with regard to the land that you yourself reserved and that will be used for certain purposes, with the approval of your populations. The Indian Act and Bill C-7 would be harmful to the decisions that you have made with regard to the use of that land, but not to what you agreed on before, namely a process that would allow your populations to decide how this reserved land should be used. This sums up your position.

[English]

Grand Chief Ed Schultz: Certainly, we don't want to see Bill C-7 interfere with the already agreed-upon processes that were hard negotiated over thirty years. A great deal of human and financial capital and effort has been expended by all three orders of government to get to where we are. There is a significant measure of agreement for these processes both among the aboriginal and non-native communities in the territory, and I might add that achieving agreement was a very laborious exercise.

To have any fundamental changes to the systems that are really in their elementary stages of development at this point in time would not be very prudent. As a matter of fact, changes could be very problematic for us in the territory, as we are now entering a process of devolution from the federal Crown and from Indian and Northern Affairs to the territorial government. So we would certainly want to make certain that this bill does not interfere with those already agreed-upon processes.

Â (1245)

Vice-Chief Mary Jane Jim: I'm going to just add, too, that in the process of negotiating a land base in the Yukon, we have what is called interim protection of that land base under negotiation. In the case of some of the first nations, it's for five years upon conclusion of the negotiation of a self-government agreement. If you're not successful in negotiating, finalizing, and ratifying that agreement, the interim protection is then null and void. That then brings us to the questions of how Bill C-7 will impact, of how we will apply the Indian Act there again, and of what is protected as a land base for first nations in Yukon.

I stated at the outset of my presentation that there are very few reserves in the Yukon. Thus, we have land set aside. I don't know and haven't been able to analyze what “lands set aside” is in Bill C-7, and how those bands would be impacted.

[Translation]

The Chair: Thank you.

Mr. Binet.

Mr. Gérard Binet (Frontenac—Mégantic, Lib.): Thank you, Mr. Chairman.

Good afternoon, dear guests. This will be more of a comment than a question.

I had the opportunity to sit in the House with a member from the Yukon, Larry Bagnell, who sat next to me, and we often talked about the Yukon. I also attended several meetings with the participation of political representatives from the Yukon, including the premier and others. The Yukon has a population of about 25,000, if I remember correctly. But I am impressed by the quality of Yukon politicians. I can tell you that things are currently going very well on the aboriginal side.

I appreciated your presentation, Ms. Jim, especially when you mentioned a vision. I have faith. We need a vision and we must believe in something. In my opinion, in what was said 30 years ago with your uncle who is the current premier, there was a vision, and today you have the results.

In the rest of Canada, in every community and with the other grand chiefs we have met up to now, I have not felt the same thing that I feel today. I saw more obstacles than visions. I want to congratulate you, because when we continuously hear negative things about aboriginals, it spreads throughout the entire population. It is pleasant to know that some of them are doing well. I hope that you will be taken as a reference. Thank you.

[English]

The Chair: There is no question in those statements, but if you wish to respond....

Vice-Chief Mary Jane Jim: Thank you kindly for those words. I think I just want to take it one step further, in hoping that you hear the words, too, that we are an example of what can be achieved and what Canada should really look at in terms of that achievement. If this bill is going to impede on other visions, then we need to seriously reconsider the bill.

Â (1250)

The Chair: Thank you.

[Translation]

Mr. Loubier, do you have a question?

Mr. Yvan Loubier: I am finished, Mr. Chairman. Thank you.

[English]

The Chair: Mr. Godfrey.

Mr. John Godfrey: Like my colleague Mr. Binet, I want to echo my thanks to you for coming, and also for the very positive message about what patience and hard work and vision can bring at the end of the day.

It would seem to me, Mr. Chair, that at a very minimum, the problem that has been identified, particularly by Chief Dickson, is that there are first nations that are still firmly under DIAND but are in the process of getting out from under DIAND. They somehow have to be recognized. I just don't know how far out or how....

Chief Dickson seems to be so very close to an agreement or so close to getting an approval from his people, as I understand it, it would be a perverse outcome of this bill to slow that down. We would never want that to happen.

I direct this question to the researcher. It would be useful to know how many other first nations are on the runway, so to speak, toward self-governance, how many are close enough that, perversely and in an unintended way, we would be slowing down that process. That surely is not what we're on about. I just want to flag that as an important research issue. It's something we may wish to ask of witnesses in other parts of the country, because if we were to put an amendment in that said this does not apply to this... I see Mr. Leas wants to say something.

The Chair: I will make a comment first, Mr. Godfrey.

Yes, we will do that immediately. We will direct the researchers to get that information for us.

Mr. Leas, now the word is yours.

Mr. Daryn Leas: Thank you, Mr. Chair.

I just wanted to point out that clause 34 of Bill C-7 does contemplate a delay in implementation for those first nations for which there are pending self-governing agreements. Whether or not the given time period is satisfactory is debatable, but since we raise the issue, I think it's prudent on our part to also raise that, to some extent, it is being addressed in the statute.

Mr. John Godfrey: If you could come up with a form of words that would handle without ambiguity the situation you described, it might be helpful if you could pass some words along. The form of the words may have to mention people, but I don't know. Clause 35 does actually refer to the Cree-Naskapi, the Nisga'a, and so on.

My second point is really directed toward the grand chief, if I have any time left.

In the “Purposes” section of the bill, it's very clearly stated that this act is “on an interim basis pending the negotiation and implementation of the inherent right of self-government”. You're the textbook case, as you've described. You're there. You've come through that process.

You were very delicate in your answer to Mr. Vellacott about whether or not it would have been helpful to have Bill C-7 in place back in 1972. The question I would put to you is this: If you were offering advice, then knowing what you know, and with the experience and diversity of the various first nations of the Yukon, given the fact that the theory is that all first nations are moving toward where you have arrived—where eight of you are and where the other six are going—what sorts of institutions or what sorts of devices would have been helpful, during the interim period, to speed up the good governance process while not forcing a single model of one-size-fits-all? With 20-20 hindsight, if it wasn't a Bill C-7-type bill, what would have been helpful?

Grand Chief Ed Schultz: It would be presumptuous on my part to suggest anything that would fit for any other region of the country, but you're asking a more poignant question on our own reflective experience. Therefore, I feel more comfortable to answer. I do tend to polish things as much as I can, because I'm a politician and that's what we do.

I can say that, for our purposes, we created the Council of Yukon First Nations in 1973. It was to be a central point for all the diverse nations in the region in order to do the necessary advocacy, and they sent the delegation here to Centre Block in 1973. They laid out a framework, a system of governance, that conceptualized a division of the program and service delivery that was in communities while it was also being done collectively and in relation to the other orders of government.

As I articulated, that was a process that was derived through a process of consensus-building and dialogue that was historically our method. But that does not necessarily mean it's the same type of method that is employed by other aboriginal groups in other parts of the country. There may be other processes that I'm not all that familiar with that use a different system of decision-making, but for our purposes in the north, that certainly is how we derive our decisions.

What was useful for us was that the Council for Yukon Indians, as it was originally called, was the one focal point where Canada could engage all the nations at one time, and where we could come to a measure of consensus on subject matter and put something concrete on the table in order for us to have some dialogue on it. It wasn't an exercise of tracking down eleven, twelve, or fourteen separate positions on a given subject. That was useful for us, but we have to recognize that the CYI, the Council for Yukon Indians, was a negotiating entity.

In 1995, we underwent a constitutional change in which the citizens or the nations particularly had said that now that they were becoming self-governing, they didn't need CYI to negotiate anymore. They were now going to recreate CYI into what was to be called the Council of Yukon First Nations, which would be a central government on their behalf. It would be a central government that would still continue with advocacy and promotion and the fostering of good development and capacity. Under their direction, however, it would also be the receiver of certain responsibilities from time to time, because there is a delegation authority under the self-government agreements. The first nations don't have to undertake everything themselves. They can delegate to another entity some of the responsibilities they may assume under their constitutions. That entity could be either Canada, the territorial government, another institution, or a created institution like the Council of Yukon First Nations.

In my mind, one of the best things we ever did was to fight for and successfully achieve the delegation authority for the first nations, so that they have the ability to delegate responsibility. Ultimately, it's their responsibility, but they are able to delegate it to somebody. In some circumstances, we are looking at that very issue in a lot of program and service areas. For example—and I'm not suggesting this is indeed the case—we're looking at issues like policing. Is that something we really want to undertake? We assume the authority for our communities and our people, but is it something we practically want to do? We're examining that question, and there is a myriad of options. One of the options, of course, is to create our own police force. The second option is to maybe assign it to somebody else, or maybe we'll just leave it where it is.

I don't know if that answers your question.

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Mr. John Godfrey: It does. In a sense, it's a bit unfair to burden the representative of the Assembly of First Nations, but that's an interesting story in terms of the initial organization that was created both as an advocacy group, but also as some way to kick-start the process of thinking about governance. It then evolved.

Again, it's unfair to burden somebody who is really here to represent the Yukon region, but I'm just wondering if that model is extendable to other regions of the country? Recognizing the huge diversity and the very special nature of the Yukon and the fact that no two parts of the country are alike, are there some general lessons that we can learn from that?

Vice-Chief Mary Jane Jim: Just to add to what the grand chief elaborated on with respect to building that model, as we built that model, we also had to create capacity, number one. We needed the capacity not only to create that model, but to implement that model. We also needed a mandate. Those are the two things that need to be looked at with respect to accountability and administration and all those sorts of things.

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Mr. John Godfrey: Thank you, Mr. Chair.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: I'd like to thank the witnesses for some very good information and success stories.

Like Mr. Leas did, I would like to point out that clauses 34 and 35 of the proposed legislation do give some leeway in terms of dealing with these types of specific situations. We do have some leeway there, and if that could be improved, we certainly would look for amendments.

Secondly, Mr. Chair, we have had people use the phrase “one size fits all”, as my colleague did.

John, I'm not sure about that. I look at this legislation more in terms of our need for shoes. Not all of us wear the same size of shoes or the same style of shoes. Within the legislation as it's proposed, John, I think there is enough opportunity to deal with customs and to deal with codes that will be developed by each first nation or by groups of first nations peoples.

I don't want to get off the topic here by trying to come back with some idea that one size has to fit all. It's my understanding that the CYFN is a type of federation of first nations working together, groups coming together through various legal processes. Again, John, we have within the proposed legislation the idea that groups can work together. We don't have to have 600 different arrangements or 600 different codes. Various groups or federations could accept a code that would be acceptable to everyone within that group.

In closing, congratulations on your good work. Hopefully we'll have more good reports—maybe not when I'm here or when John is here or when Ray is here—and hopefully it won't take thirty years to come up with further arrangements of cooperation and work for the best interests of everyone.

Thank you, Mr. Chair.

Mr. John Godfrey: Despite the temptation, but because I'm actually not one of the witnesses, I was wondering if we could get a reaction.

The Chair: We want to have a reaction, please.

Vice-Chief Mary Jane Jim: With respect to clause 34, to clarify it in more specific terms, the bill states clearly that it will not affect those first nations that are negotiating. When we talked about the consultation process, both in my presentation and that of Chief Dickson, we said that in the event that we do not ratify our agreements.... There are six first nations with pending finalization. Should any one of those six not ratify, then this bill applies. We're saying we have not had the ability to be consulted on this bill, nor to be able to analyze how it will affect us and how we're going to implement it in that sense, because we're focused on negotiation.

The Chair: Just to clarify our position, Bill C-7 is the unique responsibility that we have as a committee at this time, so everyone invited in the last hour and a half has been in consultation with the committee on the specifics of the bill. I'm very generous with time. People can talk about anything at this committee, really. I don't like to bring people back to order and say they are not talking about Bill C-7, because all the information that comes out is beneficial to us. But this committee put three months of work last spring just into getting educated, and now we're putting nine weeks, almost full-time, into consulting. One thing we don't want to be accused of is not having consulted. I can say that maybe 10% of the testimony we get is on the bill and 90% is not, but it's valuable information anyway.

Mr. Godfrey.

Mr. John Godfrey: I just want to get back to the bill if I could. After that instruction, I pretty much have to, don't I?

Again it's perhaps a rephrasing of previous questions, but as you read the bill and look at it, there is this question that my friend Mr. Hubbard and I have been debating backwards and forwards. We heard a comment from Professor Cornell of the Harvard Project. In his reading of it, he found it restrictive. He said there are default positions that are quite presumptuous in a way. I don't know who would care to comment on this, but let me try to put it in the context of the Yukon.

Had Bill C-7 been passed and in operation in the Yukon before the self-government arrangements were arrived at, before the final agreements, would there have been enough flexibility to cover the variety of governance structures that are your reality, or would it have been constrictive?

That's sort of a restatement of Mr. Vellacott's question, but....

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Mr. Daryn Leas: I'll just make a few comments.

I think the fundamental issue with the First Nations Governance Act, Bill C-7, is the fact that it prescribes or identifies what the priorities of the individual first nation should be when it comes to governance. It identifies what codes should be enacted and what happens if they're not enacted. If they're not your priority, things will just simply fall back to the defaults that you made reference to. Furthermore, the bill very specifically details the various issues that have to be addressed in those codes.

I think my earlier comment on an earlier question is also relevant to this question. If Bill C-7 had been in effect prior to our self-governance agreements being ratified and brought into legal effect, it would have been a distraction. When you lay Bill C-7 next to our self-government agreements, you can see that we address the accountability issues in a very different way, and we address in a different way the manner in which our governments are structured and appointed or elected.

When you look at Bill C-7 and the provisions dealing with the leadership selection process, it says something along the lines that a majority of people on the council should be elected unless there's a band custom provision. In some of our communities, we find that our governments are effective, fair, and accountable, even though they may not be elected, for the reasons that were set out earlier by the grand chief.

For several years, I've been involved in negotiating and implementing several agreements in the Yukon. Given my experience in this, I think the focus has to be on developing something unique and specific to a community according to its priorities and in accordance with its institutions and values. I just don't see that latitude of flexibility within Bill C-7, which prescribes that you develop this, in this timeframe, dealing with these specific issues.

Mr. John Godfrey: That's distressing to hear, because the purpose of the bill is, one, interim, and two, designed to expedite and presumably make the road to self-government easier, not more difficult. Applying it against your reality—we can't talk about other peoples' reality—it not only would not have been helpful and would not have been neutral, it would have been a distraction that would not have helped the process. Is that a fair summary?

Mr. Daryn Leas: That would be my comment.

Mr. John Godfrey: Thank you.

The Chair: We want to thank you very much for a mountain of valuable information. It was very helpful, and it will continue to be very helpful. And we also thank you very much for having accepted our invitation.

If you have closing remarks, we would ask you to present them now.

Grand Chief Ed Schultz: Thank you, Mr. Chair. Once again, I'd like to thank the members of the committee for this opportunity.

It is, of course, my constitutional obligation to advocate on behalf of my people, and I do that with a great deal of pride. Although we have provided you with a very good overview and with a lot of positive aspects on what we believe is the spirit and intent of our agreement—and it is certainly something that I think is a useful model for Canada to examine in greater detail—I don't want it to be construed as being that everything is all rosy in the territory. There are problems associated with something like that, and as was stipulated by the professor prior to our presentation, we are human beings and we do make mistakes.

One of the consistent problems when we're dealing with aboriginal questions in this country, as I've seen it, is the generic broad-brushing when it comes to our peoples. If there's a bad experience, a bad practitioner, or something to that effect, then it seems to be a generic view held by all that we're all in that boat.

I'm really pleased that my delegation here has been able to share with you an experience in Canada that is relatively unique, but it's not the only experience. Other regions are having similar successes or continue to work toward those successes. But I think what you find in most of those successes are some of the fundamental features you heard in the Harvard study and in what we have outlined in our agreement: an ability to empower communities, decentralize authority, and put some real authority into the communities over their land, over their resources, and over some ability to generate wealth.

The reality is that one of the essences of having the First Nations Governance Act and the Indian Act was that Canada felt it had an obligation—not only a legal one, but a moral one—to help to improve the social conditions of first nations people in this country. We are plagued with problems throughout this country in terms of negative social conditions. Everyone seems to look at instruments such as legislation and programs and services. Those are a must, I agree, but one of the primary things we need to really strive for is communities that can generate some financial wealth. The sooner we can generate some financial wealth for communities and those individuals in them, the sooner we will start having a progression away from the negative social conditions of our people. That's one of the principles of this agreement that we have.

So I thank you very much for your time.

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The Chair: And we thank you very much.

Colleagues, see you next Tuesday. We have no hearings on Monday.

The meeting is adjourned.