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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Tuesday, May 13, 2003

0910

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

Mr. Charles Hubbard (Miramichi, Lib.)

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development)

Mr. Charles Hubbard

The Chair

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

Mr. Paul Salembier

Mr. Yvan Loubier

0915

Mr. Paul Salembier

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development)

Mr. Yvan Loubier

0920

The Chair

Mr. Jeffrey LeBlanc (Legislative Clerk)

The Chair

Mr. Yvan Loubier

0925

The Chair

Mr. Warren Johnson

0930

Mr. Paul Salembier

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

0935

0940

The Chair

Mr. Yvan Loubier

0945

0950

The Chair

Mr. Pat Martin

0955

1000

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

1005

Mr. Pat Martin

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1010

1015

The Chair

Mr. Yvan Loubier

1020

1025

The Chair

Mr. Pat Martin

1030

1035

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

1040

Mr. Pat Martin

The Chair

Mr. Pat Martin

1045

The Chair

Mr. Yvan Loubier

1050

1055

The Chair

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot)

1100

The Chair

Mr. Pat Martin

1105

1110

The Chair

Mr. Yvan Loubier

1115

1120

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

1125

1130

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Charles Hubbard

1135

Mr. Warren Johnson

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1140

1145

The Chair

Mr. Yvan Loubier

1150

1155

The Chair

Mr. Pat Martin

1200

1205

The Chair

Mr. Yvan Loubier

1210

1215

The Chair

1220

The Chair

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

Mr. Paul Salembier

Mr. John Godfrey

The Chair

Mr. Pat Martin

1225

The Chair

Mr. Pat Martin

1230

The Chair

Mr. Pat Martin

1235

1240

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1245

1250

The Chair

Mr. Pat Martin

1255

1300

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 073

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, May 13, 2003

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): Good morning. We are continuing our work with the clause-by-clause on Bill C-7, an act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other acts.

We are now on amendment G-11.10 on page 194.

(On clause 31--Adoption of codes)

The Chair: Mr. Hubbard.

Mr. Charles Hubbard (Miramichi, Lib.): Thanks, Mr. Chair.

We're dealing with, as you mentioned, clause 31 on page 18, and we're proposing an amendment that would replace lines 39 and 40 with the following:

by a band under section 4, including regulations establishing procedures for the holding of votes and regulations authorizing the council to appoint a person to oversee the conduct of voting.

Mr. Chair, it's a very straightforward amendment. Again, it's enabling legislation, but in terms of the governor in council, of course, there is this type of fallback, and probably Paul could explain it further.

Paul, would you like to perhaps comment on that?

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): Certainly. Again, this is regulation-making powers. It's foreseen that in the context of conducting votes, a band would want to have a certain person, like an electoral officer, oversee the conduct of the vote. It's contemplated that it would likely be a person who would be appointed by the band council. It's foreseen that this would probably be the most efficacious method of naming a person to oversee the conduct of a vote.

At times, questions have been raised as to whether regulations can provide for appointments within the regulation without being specifically authorized by statute. The Standing Joint Committee on the Scrutiny of Regulations has raised the issue from time to time, and in order to avoid any difficulties down the line, the government has proposed this amendment to simply cover off this aspect of a regulation-making power.

Mr. Charles Hubbard: Thank you, Mr. Chair.

The Chair: Monsieur Loubier.

[Translation]

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

I would like to be sure I understand what Mr. Salembier has just explained. He says that having the band council choose the person who would oversee the conduct of the vote would probably be the most effective method. But what other methods are there? I would like some clarification. Could the Governor in Council or the Minister select that person instead of the band council, if we didn't go with this option? What would happen? Please explain the circumstances in which that could occur.

[English]

Mr. Paul Salembier: In fact, it's not contemplated that the governor in council would be doing the choosing. The regulations authorize the governor in council to make regulations, and then in turn the regulations will authorize the council to appoint the person. So it's contemplated in every case that in fact it would be the council that would be appointing someone to oversee the vote.

In terms of what the alternatives would be, I suppose the department, the minister, could provide a departmental officer to oversee ratification votes, but one of the purposes behind this bill is to reduce departmental and ministerial involvement in band affairs.

[Translation]

Mr. Yvan Loubier: There is one thing I don't understand, Mr. Salembier. This Bill is supposed to be a bill on First Nations governance. Yesterday I was listening to the comments made by Mr. Robert Nault. The reporters that contacted me told me he is telling everyone that this Bill will allow the First Nations and band councils to make their own decisions. So, the band councils will be deciding on their procedures and making their laws. But once again, we are in a situation where the government is saying one thing and doing exactly the opposite. Saying the band councils will select the person they want, when in actual fact it's the Governor in Council--in other words, the federal Cabinet--that will control, via regulation, the adoption of the code for selecting a person to oversee the conduct of a vote.

That really is quite something. From clause 1 to clause 30, it says that First Nations will have complete flexibility to define their own rules of operation and their codes. But as we'll see a little further on, in clause 36, the First Nations are being given two years to comply with the requirements of Bill C-7. And yet when it comes time to appoint someone to oversee the conduct of voting, then it's the Governor in Council who decides on the procedures and regulations that will apply when someone needs to be chosen to perform that role. In other words, we're saying that the First Nations' band councils are incapable of determining on their own what procedure should be followed for the selection of persons to oversee the conduct of voting. I am disappointed to see that this clause only reinforces the opinion we've already formed with respect to this Bill. This is not really a bill on self-government or First Nations governance that respects the freedom of the First Nations, the freedom defined in the Constitution, in the Charter of Rights and Freedoms, and many court rulings over the last 20 years, notably Supreme Court rulings. This runs totally counter to the kind of flexibility the First Nations should have. They're not even being allowed to define the procedures for appointing someone to oversee the conduct of a vote. I don't understand the reason for that. I'm asking this question because I'm intrigued by this, Mr. Salembier. If this is a bill on governance, why are the First Nations not being allowed to define the process for appointing a person to oversee the conduct of a vote? I would like to get an answer to that question.

¿ (0915)

[English]

Mr. Paul Salembier: I'll refer the question as to why this proposal has been taken to Mr. Johnson.

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): The simple answer to the question is because this is not a self-government bill. I think that has been made clear from the beginning of the exercise. It was an undertaking that the first nations participating in the consultations requested that the government make at the outset. They wanted the self-government and inherent rights discussions to take place at their negotiating tables. They did not want this bill to interfere with that. Rather they wanted this bill to work as an interim measure, on the one hand, to empower first nations citizens to hold their own governments to account rather than the minister, and, on the other hand, given that, to then enable those governments with more modern authorities and transition to self-government.

This is not a self-government bill, as we've referenced through a variety of sections, and I think most specifically on the law-making section. We would not view and don't know anyone who would view the exercise of the jurisdictions and authorities within this bill by first nations as an exercise in the inherent right. If it was done that way or accomplished that objective, it in fact would be the kind of infringement that some members have been worried about.

It has been very clear in the consultations and in the drafting of the bill throughout that this is not a self-government bill and it is not to accomplish that objective, to avoid the problem of any potential infringement on the inherent right. It's a specific undertaking, and I think it has been tried to be made clear throughout the exercise that it is not what this bill is about. It's not about an exercise of self-government.

It's probably important to point out that--and if there are further questions on this, Mr. Salembier may be able to help out--even if it was, the issue is that the only legislative authority that exists within the Canadian Constitution, whether it's to deal with changes to things like the Indian Act or other existing legislation or to implement a self-government agreement, is in fact federal legislation under the section 91.24 authority. Either way it would take a legislative action by the Parliament of Canada to give effect to a self-government agreement anyway.

In this specific case, this is not dissimilar to what we see under the Indian Act for the holding of elections, where it is clear in there that a first nations nominate their electoral officer. However, under the Indian Act that is a nomination to the minister, and the minister must then approve the person. This would be enabling in the sense of the spirit of the act to just leave it directly with the first nation without any ministerial oversight.

[Translation]

Mr. Yvan Loubier: Yes, but this is six of one and a half dozen of the other, as they say. The First Nations are not being consulted about the appointment process, and now we find ourselves in a situation where the First Nations are still not being consulted about the establishment of a procedure for selecting a person to oversee the conduct of voting. I really don't see the difference between directly appointing someone and defining the process whereby a person will be selected to oversee the conduct of voting.

I think a valuable sub-amendment could be move to enhance that amendment. I would like to move that after the words “section 4”, the following be added:

after consultation with the band council of the First Nation

Contrary to what Mr. Johnson stated, there have been no real consultations, and everyone agrees on that. So, I think it would be a good idea to add, after the words “section 4”, the following wording:

after consultation with the band council of the First Nation

It seems perfectly legitimate to meet and consult the First Nations when establishing a procedure that affects them directly, namely the selection of people who oversee the conduct of voting. I therefore move that sub-amendment.

¿ (0920)

[English]

The Chair: I'll ask the legislative clerk to explain the subamendment, which is acceptable.

[Translation]

Mr. Jeffrey LeBlanc (Legislative Clerk): The sub-amendment is to add, after the words “section 4”, the following:

after consultation with the band council of the First Nation

The Chair: Mr. Loubier.

Mr. Yvan Loubier: Mr. Chairman, I believe this sub-amendment is justified, even after hearing the testimony of experts, whom I want to thank for their answers. The government says this is about paving the way for First Nations governance. Indeed, the title of the Bill is the “First Nations Governance Act”. As far as I'm concerned, that's a very bad title, because the language of this Bill doesn't really allow the First Nations to play a governance role.

We're being told that what this Bill proposes is better than the status quo, because at the present time, the person who oversees the conduct of voting is appointed by the Minister. We are told that this is an improvement because from now on, that person will no longer be appointed by the Minister. The problem, however, is that the regulations that will be passed to establish the parameters for selecting the person to oversee the conduct of voting will be controlled by the Governor in Council.

So, it's the federal Cabinet that will decide how the band council selects the person to oversee the conduct of voting. What a great improvement! That smacks just as much as colonialism as what we've got now. How can the government claim to give the First Nations the tools they need to govern themselves, when in actual fact, the Governor in Council will be responsible for defining the parameters for the process whereby the band council will make its selection? I don't see that as an improvement. Even as we talk about First Nations governance, here we are taking powers away from the band council by not allowing it to decide on its own what process should be followed for selecting someone to oversee the conduct of voting.

I was surprised earlier when I heard Mr. Johnson say, in answer to my question, that the purpose of this clause was to avoid violating Aboriginal rights and the inherent right of self-government. What does it mean by that? I don't understand what that's supposed to mean, when we see here that the Governor in Council is establishing a process and parameters for the selection of someone who will oversee the conduct of voting, and we are told that this is to avoid violating Aboriginal rights and the inherent right of self-government.

How can we prevent someone from violating the right of self-government when that right is directly violated by the establishment of a process for selecting the person who will oversee the conduct of voting? That process, which should be the responsibility of the band council, is in fact decided by the Governor in Council. How can we avoid violating Aboriginal rights and the inherent right of self-government, when clause 31 is a direct violation of the band council's right to choose its own method of operation on behalf of its members?

Sometimes I'm really shaken by what I hear. This isn't the first time this has happened. In other committees as well, sometimes the answers that we're given are like pronouncements of the truth that come out of the blue. I would like Mr. Johnson to tell me what he means by that. Why is he saying that clause 31, as amended here, where the language doesn't even provide for First Nation band councils to be consulted for the purpose of defining the procedure for selecting a person to oversee the conduct of voting, is intended to avoid any infringement of Aboriginal rights and the inherent right of self-government? I would like to hear his arguments in that regard.

¿ (0925)

[English]

The Chair: Mr. Johnson.

Mr. Warren Johnson: First of all, a point of clarification relative to the subamendment. I think, as it has been indicated to the committee earlier, the minister and the government have undertaken--and in fact undertook some two or three years ago at the outset of the first stage of the consultations--that all of these regulatory activities that would be subsequent to Parliament's passage of Bill C-7 would themselves be subject to a consultation exercise. That commitment to consult on these various...and it obviously affects much of the section the committee is dealing with now. The regulations required on this act, along with the issues relating to implementation, costing, and the support that first nations will require in terms of implementing this bill will all be subject to another significant round of consultations once the content of the bill is firmed up by Parliament.

Having said--and I apologize if my remarks perhaps misled you; I did not mean to indicate that this clause was specifically crafted in that way but that the whole bill was. As we pointed out in the technical presentation we provided to the committee at the beginning of the clause-by-clause discussions, this bill was not designed nor intended to be a reflection of the exercise of the inherent right.

In the first stage of consultations prior to drafting the bill, first nations asked for a specific undertaking that this not be the subject matter of this bill; that the bill not be designed to replace their negotiations of self-government under the inherent right but rather to complement them in the interim; that the bill not be designed in any way to intrude or to pre-judge the outcome of those negotiations. We see that wording reflected in the preamble and purpose. The committee has yet to come back to the preamble, but that's why the wording is there, to make it clear that's not the purpose.

Our colleague, Mr. Beynon, when we were looking at the law-making sections under the act, specifically referenced that we did not understand it, nor had we seen any input from other intervenors or witnesses that the exercise of authorities under the act would be seen as an exercise of the inherent right.

This is, as the preamble attempts to make clear, not to pre-judge the outcome of...[Technical difficulty--Editor]...but rather to provide interim measures to replace what I think all observers would understand to be the sparse and totally inadequate governance components currently in the Indian Act. Therefore, the comment was not just with respect to this section, but with respect to the whole of the bill.

My colleague, Mr. Salembier, may want to comment further on that.

¿ (0930)

Mr. Paul Salembier: I think one of the things we want to keep in mind is the fact that this is a regulation-making power and doesn't necessarily lead to the assumption that, for example, there will be conditions on the exercise of an appointment power.

The minister has undertaken to conduct an extensive series of consultations as to what the content of these regulations would be with first nations. It may very well be that first nations could indicate that they don't want to have a power given to them to appoint electoral officers, although it would be difficult to see why they might suggest that, but that's always a possibility. And if so, then I would gather that the regulations would not include such a power.

I think the other thing we have to keep in mind is that the code-making structure in this bill is quasi-constitutional in nature. It would be very much like saying that the Constitution of Canada should not have an amending formula and that the feds and the provinces should, on a case-by-case basis, decide who needs to vote on what in order to amend the Constitution. Because the codes are like constitutions in setting the governmental structure for bands, until you have a code, you don't know how the council is going to exercise its powers, so you need some sort of a standard for the enactment of the code. That standard will be set out in the regulations.

The Chair: Thank you.

Mr. Martin, on the subamendment.

Mr. Pat Martin (Winnipeg Centre, NDP): Thank you, Mr. Chairman.

As I understand Mr. Loubier's subamendment, he is proposing that the words “after consultation with the band council of the first nation” be added to the amendment G-11.10. The clause would then read:

the adoption of a code by a band under section 4, including regulations establishing procedures for the holding of votes and regulations authorizing the council to appoint a person to oversee the conduct of voting after consultation with the band council of the first nation.

I understand what Mr. Loubier is trying to achieve with this subamendment, because it's not clear from the language proposed by the government what council we're talking about. The first line of the clause reads, “The Governor in Council may make regulations”. Then amendment G-11.10 authorizes “the council to appoint a person”. On reading this the first time, a person would assume that you're talking about the Governor in Council, not the band council, or that the Governor in Council shall appoint a person to oversee the conduct of voting. It's an easy mistake to make. I don't think it's the intention of the drafters of this amendment, but a person could certainly argue that if you've made reference to the Governor in Council in line 1 and you're making reference to the council in lines 2 or 3, you're probably talking about the same council--unless you're specifically saying that's not the case.

While I notice that the Governor in Council is capitalized and the council is not capitalized in the amendment to clause 31, this gives me no comfort at all, because nowhere in the government's proposed clause do they talk about band councils at all. They talk about the band and they talk about the Governor in Council. When I first read it, I assumed they meant that the Governor in Council could make regulations and that the Governor in Council--which means the minister--could then also appoint a person to supervise the election and conduct the vote.

I think Mr. Loubier was astute to notice this. I don't know if it's as glaring in the French translation, but it was certainly glaring to me on the English side of it, that it shouldn't be the intention of the legislation to imply that the Governor in Council shall appoint a supervisor, or an electoral officer, or a person to oversee the conduct of the voting. It should be up to the band council. If that's the intent, why don't we say that?

Mr. Loubier provides some relief to that problem by saying that if it is going to be the Governor in Council appointing this thing, it should at least be done after consultation with the band council. So he clearly had the same interpretation I did on first reading this.

When we make reference to the Governor in Council making regulations in association with this bill, another flag goes up or an alarm goes off in the minds of most objective people who are reading this bill, because the fact is that the devil is in the details in a great deal of the legislation we are dealing with. There's been a pattern or a trend on the part of the Liberal government...and in many of the pieces of legislation I've dealt with in other committees on other subject matter, much of the substance of the impact of the legislation is left to the regulations, which are not subject to the scrutiny of this committee. The regulations are put in place by the Governor in Council, or the minister, and without the oversight of Parliament. This is a process and a growing trend that we've been critical of.

There are two general themes that are common throughout virtually every piece of legislation that the Liberal government has put forward since 1993. One is that the power of the minister is expanded in virtually every piece of legislation that I've been exposed to, and, two, more and more detail is left to regulation and less and less detail is put within the body of the actual legislation.

¿ (0935)

Now, this is an anti-democratic trend. It speaks to the democratic deficit. It speaks to the diminishing role of parliamentarians in that it provides no comfort to me or others whatsoever that we are assured there will be consultation before these regulations are put into effect, because I don't believe it. I don't believe it on good grounds, because our recent experience shows us there's not going to be adequate consultation. There never was. There never has been, and there won't be. The government has made up its mind as to what it seeks to achieve. Consultations are a facade, an expensive public relations facade the government reluctantly goes through; it goes through the motions. But in no way, shape, or form do we believe there will be genuine consultation that will include accommodation. And I believe the consultation should go beyond accommodation; it should require the consent of first nations before the regulations are imposed or introduced.

So any reference to regulation, frankly, always makes me nervous in this context, because we have no confidence whatsoever that these regulations will be negotiated with the best interests of first nations at heart. Again, we come back to the fiduciary obligation of the minister to operate in the best interests of first nations. Parliament, as the crown's obligation, should do the same, and members of Parliament, as an extension of Parliament, have an obligation to act and conduct ourselves in the best interests of first nations.

We're falling short of that, I argue, Mr. Chair. As an example I could cite of where the regulations fail to act in the best interests of first nations, we need look no further than negotiating the per capita share of oil and gas royalties. That's a good graphic illustration of where regulations fall short of being in the best interests of first nations communities.

I'll cite the example of the regulations contemplated by clause 31, and the subamendment of Mr. Loubier, which reads, “after consultation with the band council of first nations”. Well, had there been true consultation--meaningful, informed, fair, and balanced consultation--I don't think we would have had examples like the one I will cite, which I will call Reserve X in Alberta because I don't want to use the actual first nation name.

This was a community with a population of 3,000 people, and oil and gas reserves under those properties--13.7 billion barrels of oil and 65.6 trillion cubic feet of potential natural gas. The area of the reserve is 160 square miles. Per square mile, it yields 125,000 barrels of oil, for a total of roughly 20 million barrels of oil and 93 billion cubic feet of natural gas within the 160 square miles of Reserve X. Dividing that by the population, the reserve of oil per capita is 6,400 barrels. The reserve of natural gas is 30 million cubic feet per person.

Now, with the formula designed by the federal government to share this, including what they call the discounted cashflow, assuming equal payments over 31 years of the lifespan of this oil reserve, and applying inflation and escalation formulas, which are very complex and which I won't bore you with today, assuming a royalty of one-third of the gross value of the oil and the natural gas, the one-time cash payment per person was $15,000. Now, that buys approximately one new pick-up truck.

¿ (0940)

For somebody who grew up in abject poverty and found oil...this is not a Jed Clampett situation.

[Translation]

The Chair: Mr. Loubier.

Mr. Yvan Loubier: Is there not one Liberal colleague that wants to comment on my sub-amendment? That's too bad, because it is an excellent sub-amendment. But what can you do? Just because something is right and good doesn't mean that everyone will take advantage of it. I think that's what we're up against here. We move good sub-amendments and good amendments, and there is neither debate nor discussion. Our Liberal colleagues really don't know how to take advantage of things that are good for them.

Having said that, I think it is not only important but perfectly appropriate to move a sub-amendment like the one I'm proposing here. I don't believe any of the First Nations are opposed to the idea of rules being set and of those rules being followed, but they have to be set by First Nations citizens. If we're aiming for a universal way of doing things, that's another matter, but as far as I'm concerned, as long as you are not certain that the First Nations are prepared to get involved in an exercise where the rules of procedure will be determined elsewhere, by the Governor in Council, you won't have any right to demand that they do this and say you will consult them later about the regulations. Come on now! We're not complete fools. I have been a lawmaker for 10 years now, and before that, I was an observer of the legislative process for 10 or 15 years. I know how legislation is developed. The federal government did not even deign to hold proper consultations.

Moreover, all the witnesses that appeared and tabled briefs with the Committee deplored the fact that there had not been meaningful consultations with the people most directly affected. It's easy to table a bill for first reading in the House of Commons and say: now we're going to consult people. Everybody knows that once a bill has already been drafted and tabled in the House of Commons at first reading, only some amendments can be made. It isn't easy to completely rework a bill after it has received first reading, and particularly after it has been referred to a committee.

In fact, from the very beginning of clause-by-clause, we have observed that every time we move an amendment or sub-amendment, they are defeated. And yet these were sub-amendments inspired by the testimony of First Nations people, as well as the Canadian Bar Association, the Quebec Bar, experts from the University of Ottawa, and former ministers. Mr. Allmand told us that we should defeat this Bill.

For my part, I have very rarely heard of consultations being held about regulations. And if the consultations you hold on the regulations are going to be like the ones you had on Bill C-7, just about everyone is going to be unhappy.

In fact, when the Quebec Bar appeared in Montreal, at the 54th sitting, its position on clause 31 was very clear. I think that it's worth re-reading their testimony from the record of proceedings. Unlike the witness that told us earlier that they had been careful in the Bill to avoid infringing on Aboriginal rights and the inherent right of self-government, two representatives from the Quebec Bar made the observations I would like to read to you now. The Library of Parliament has prepared a summary, but I invite you to read the entire brief. I have already read this excellent brief prepared by the Quebec Bar three times, and I always arrive at the same conclusion: there's just no way these people could be mistaken. Listen to some of the fundamental criticisms made by the Quebec Bar with respect to clauses 31, 32 and 33 of the Bill:

Clauses 31, 32 and 33 of the Bill relate to the scope of the regulatory powers of the Governor in Council.

They didn't say “the scope of the First Nation powers”, but the “scope of the powers of the Governor in Council”. This is some strange First Nations Governance Bill! I would like to read some more from the summary of the brief:

However, the application of the First Nations Governance Act will require regulations to be drafted that will have a significant impact on the citizens.

The citizens referred to are First Nations citizens, who are victims of the federal government's colonialist approach.

The Quebec Bar would thus favour the inclusion of a clause providing for pre-publication of such regulations for the purposes of comment and analysis, both by stakeholders and the two Houses of Parliament.

So, we're not talking about phoney consultations, like the ones you had before tabling Bill C-7 in the House of Commons. We're talking about real consultations. This is about the pre-publication process, and they are recommending that the stakeholders--in other words, First Nations members and the two Houses of Parliament, the House of Commons where we're all elected, and the Senate--be given an opportunity for comment and analysis.

¿ (0945)

Now, back to the summary of the brief presented by the Quebec Bar:

That request is even more important in that the Statutory Instruments Act does not provide for a period of pre-publication of regulations, thereby limiting the democratic process.

It's no joke when the Bar tells you that Parliament is not democratic.

Consequently, the Quebec Bar is proposing a legislative amendment requiring that the Minister lay before each House of Parliament, for referral to the appropriate committee…

That probably means the Justice Committee.

…all proposed regulations stemming from the Bill currently under consideration, and adding a pre-publication period.

Now those are real provisions that should be included in the Bill. We're not interested in hearing words that vanish into thin air and truncated words like the ones served up by Mr. Robert Nault ever since we began the clause-by-clause consideration of this Bill. Here we have some really clear proposals. And the clear proposals being made is this:

Consequently, the Quebec Bar is proposing a legislative amendment requiring that the Minister lay before each House of Parliament, for referral to the appropriate committee, all proposed regulations stemming from the Bill currently under consideration, and adding a pre-publication period.

I think we have to acknowledge this recommendation. If we really want there to be meaningful consultations on the regulations, and not phoney consultations consisting of 10 minutes of discussion per First Nation community on everything except their real concerns, like the ones that were held on Bill C-7, then it has to be clearly stated in the legislation that there will be a pre-publication period, and that not only stakeholders interested in taking part in the process will have an opportunity to review them, but both Houses of Parliament and the appropriate committees will as well. That is a real process that would allow us to avoid being had the way we were with Bill C-7.

In fact, the amendments we have brought forward and the reservations we have expressed since the beginning of clause-by-clause consideration of the Bill are based on representations such as those made by the Quebec Bar, which has suggested changes be made to the process for reviewing regulations.

Some First Nations members have taken the time to analyze this Bill, and make recommendations and criticisms with respect to the Bill, because they are the ones most directly affected by it.

As regards clause 31, the Tlowitsis First Nation had this to say, at our 30th sitting held in Nanaimo, as reported by the Library of Parliament:

The law provides in clause 31 that the Governor in Council may make regulations respecting the adoption of codes by a band under section 4, including procedures for the holding of votes. It is not clear what those regulations would do or to what extent they could infringe on our rights.

I think they're right to be wary. They continue saying:

However, the requirement that our customary rules be reduced to written form, in accordance with these regulations, is, at best, paternalistic colonialism and, at worse, an unjustified infringement of our rights of self-determination and protection of our traditions and values.

Those are not minor accusations. I think we should pay attention to them, because they are quite serious. They talk about paternalistic colonialism with respect to the language in clause 31, and many other clauses of this Bill.

In its brief, the Opaskwayak Cree Nation, has this to say about regulations under clauses 31, 32 and 33:

We ask that the Bill be amended to provide for mandatory, meaningful consultations to be conducted in good faith with the First Nations, with respect to the adoption of regulations.

When I move a sub-amendment, I don't get my ideas from the Holy Spirit. They come from the representations made by the people directly affected--in other words, First Nations citizens. If the Opaskwayak Crees placed a lot of emphasis in their brief on the fact that there need to be meaningful, bona fide consultations, it's because the consultations supposedly held on Bill C-7 were not bona fide, meaningful consultations as far as the First Nations are concerned. We should also pays attention to the criticisms made with respect to the consultation process. Indeed, the current state of relations between the federal government and the First Nations is quite telling in that respect. Let's just say those relations are not exactly cordial or filled with harmony and love; the First Nations are angry, and we would be for less--particularly since an attempt is being made to usurp their rights, just as we are trying to do with the language in clause 31.

So I ask you to vote in favour of my sub-amendment. It is a sub-amendment that…

¿ (0950)

[English]

The Chair: Merci, Monsieur Loubier.

We'll have a recorded vote on the subamendment to amendment G-11.10, page 194.

(Subamendment negatived: nays 7; yeas 3)

The Chair: Mr. Martin, on the amendment.

Mr. Pat Martin: Mr. Chair, I thought the arguments Mr. Loubier was making would have satisfied some of the concerns I have regarding clause 31, as it reads and with the government's amendment G-11.10 with respect to what the Governor in Council may or may not do regarding making regulations.

Having made the case, I thought we should be careful in terms of reference to the regulation-making authority of the Governor in Council as it pertains to this bill and others, because of the disturbing trend, the disturbing pattern we've seen developing in virtually every piece of legislation the Liberal government has put forward in recent years in regard to leaving the detail to regulation and leaving the regulation up to the Governor in Council, leaving those details and regulations outside of the purview of Parliament, outside of the critical analysis of members of Parliament, and outside of our ability to have any input to participate in the development of regulations or do our job as members of Parliament.

Once again, our role is being systematically and deliberately diminished, adding to the democratic deficit--that elected officials, the very people who are elected to represent people, are being denied the ability to do their jobs effectively, and that role is being passed on to the Governor in Council, to make orders in council and to make regulations.

The regulations associated with this bill are key. They're paramount, and more important in fact than the enabling legislation we're dealing with here today. We don't know the content of those regulations. This is the one thing--people are being asked to buy a pig in a poke. When they're asked what they think of Bill C-7, well, it's very difficult to answer. They don't know, frankly, what the impact will be until the final regulations are drafted. People have no knowledge of even the default codes that will be drafted. They don't know what they're going to look like; they don't know what they're going to say.

So we find ourselves in the same situation here. The one confusion associated with clause 31 and government amendment G-11.10 is not addressed, because we have voted down Mr. Loubier's subamendment. The ambiguity, the room for misinterpretation and misunderstanding that I pointed out originally in this clause, is still staring us in the face. It could be misunderstood as it reads under the proposed amendment--and I think the average layperson reading this would interpret it this way: the Governor in Council may make regulations respecting the adoption of a code by a band under section 4, “including regulations establishing procedures for the holding of votes and regulations authorizing the council to appoint a person to oversee the conduct of voting”.

Now, I don't think it's imagining things to assume that people will think that when you talk about the Governor in Council in the first line and you talk about the council in the fourth line, you'll be talking about the same council. In the absence of any specific language to the contrary, it's a reasonable assumption to make.

So is it our intention here that the Governor in Council should be able to appoint a person to oversee the conduct of voting? I hope not. It wouldn't surprise me, given the tone of some of the other language, the broad sweeping powers retained by government and the lack of genuine recognition of the authority of first nations to conduct their own affairs in these matters. It wouldn't surprise me very much. But I would hope that's in error.

Had we allowed the previous subamendment, it would have at least introduced the idea that such an appointment won't be made without consultation of the band council of the first nation in question. That would give some satisfaction.

¿ (0955)

But the making of regulations has not served first nations people well. You can look to recent experience for examples. You can understand the apprehension in the communities when they see that the authority to make regulations affecting them will be held by the Governor in Council. Based on recent and real experience, even a verbal promise that there will be consultations is no comfort to them.

This is what has led the Sampson Cree to subpoena the Prime Minister and the Minister of Indian Affairs as of yesterday, requiring both of them to attend the court hearings, because of their experience and the recent experience regarding the treatment of the royalty moneys held in trust on behalf of the Sampson Cree and regarding the Cree's limited involvement in how those moneys are to be used. It's interesting. As we go on today and into the night, I think we'll have time to review some of the arguments made to subpoena the Prime Minister of Canada and the current Minister of Indian Affairs to come before that court hearing and give testimony. Perhaps this will be a breakthrough or a landmark court ruling.

So when we talk about the Governor in Council and the regulatory powers of the Governor in Council, the challenge here is to question subsection 69(1) of the Indian Act, which allows the governor in council to “permit a band to control, manage and expend in whole or in part its revenue moneys”. Some bands believe that the Governor in Council should also have the right to allow the band to control, manage, and spend all or part of its capital moneys. That would permit a band to manage all of its own funds, if it wished. Now, the Governor in Council permits the band to control and manage revenue moneys, but it does not permit the band to manage and control and spend its capital moneys. With the latter, the band would then be able to have its own account and pay all of its own accounts for its own capital and operating expenses.

These are fundamental challenges and arguments that are going on in the courts today. We are wondering why. I notice that in their appeal they cite as a rationale for why it's appropriate for the Prime Minister and the Minister of Indian Affairs to be subpoenaed to this court case...they cite current legislative initiatives as they affect Sampson plaintiffs and their rights, including Bill C-7 and Bill C-19. Well, we have been asking all along what our officials feel the impact of Bill C-7 might be on current or pending court challenges. Here is a graphic illustration, where it's alleged that Bill C-7 will have an effect on this particular challenge by the Sampson Cree to gain management of their own royalty moneys, which are held in trust by the crown and whose usage is dictated by the Governor in Council. But we haven't been able to get that information, as the government has refused to share the information with the people around this table. We believe we can't do our job properly without it, and we're in breach of our fiduciary obligation by being denied.... We're operating in breach of our fiduciary obligation to be informed and knowledgeable and to be fully aware of the impact of what we do on aboriginal people, whether it's on current or outstanding court cases, or future court cases, or anything to that effect.

So we believe that these regulations that will be made by the Governor in Council should not only be made with the consultation of first nations, but they should also be made with the full consent of first nations, or the full input, participation, and consent of first nations.

The subamendment that I will choose to make here will add clarity to the clause.

À (1000)

I'm actually conflicted now, Mr. Chair, because there are two subamendments I would like to make that are different. Perhaps I will try to incorporate them both into one.

Mr. Yvan Loubier: Maybe Mr. Vellacott could do the second one.

The Chair: Are you making a subamendment?

Mr. Pat Martin: I'm proposing to make a subamendment, Mr. Chairman.

The Chair: Mr. Martin, there were three seconds left and you said you “proposed to make”, but I asked you if you're making one. You're putting me in a position to say that you can't make it now, you're out of time. So when I ask you a question, I'm trying to help you. I will accept your subamendment, but I should be ruling that you let the ten minutes run and you didn't put your subamendment in, so we move on. But I will accept your subamendment.

Mr. Pat Martin: Thank you, Mr. Chairman, I appreciate that.

My subamendment is an amendment to G-11.10, to add the words “with the consultation and consent of the band” after the words “section 4”, and include the words, “authorizing the band council to appoint a person from a list of qualified persons who have been pre-approved for this purpose by the band council to oversee the conduct of the voting”.

The Chair: Colleagues, we'll give the floor to Mr. Martin on subamendment 2.

Mr. Pat Martin: Thank you, Mr. Chair.

It may be helpful when people see the printed text of what I have in mind, that adding after the words “section 4”, “with their consultation and consent”--

Mr. Charles Hubbard: I have a point of order.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, I think we have definite rules, and I certainly don't want to object totally to your ruling--

À (1005)

Mr. Pat Martin: You always do.

Mr. Charles Hubbard: --but the rules were that subamendments had to be presented within a ten-minute period of the speech. We've gone almost 12 minutes, and I object to your consent to accept one after the time has expired.

The Chair: It's not the first mistake I have made chairing this committee. The way this committee is functioning, it's a series of mistakes. I've had to make intentional mistakes to see that the work will move forward somewhat, and I'll have to live with that other mistake.

Mr. Martin, you have the floor.

Mr. Pat Martin: Thank you, Mr. Chairman.

I appreciate your consideration of my right to make subamendments within the timeframe allowed. I believe I signalled that I was intending to make a subamendment within the ten-minute timeframe. We're doing our best to stay within the narrow constraints of these timeframes, although we find it very difficult to present and develop arguments sometimes within the narrow timeframes as mandated by the parliamentary secretary. If we had more time we probably wouldn't run into these problems.

What I pointed out, Mr. Chairman, was that in the subamendment I'm proposing I believe the Governor in Council may make regulations respecting the adoption of a code by a band with their consultation and consent under section 4. I'm also adding the language that the person chosen should be a qualified person chosen from a pre-approved list of individuals who may be cited for that purpose.

In other words, it's not unusual to pre-approve a list of qualified people to be the arbitrators in the event of a labour impasse, for instance. In my plan the list of people shall be held within the council offices so that in the event the band feels they need their services, they don't just simply go to the telephone book and try to select someone at that time; they select a person from a list of pre-approved, pre-qualified individuals for that purpose.

I think it would be an improvement in two senses. First of all, I'm adding the word “band” in front of the second use of the word “council”, so that there can be no question that it's the band council who can appoint a person, and then that person shall be from a list of qualified persons who have been pre-approved by the band council. So my amendment then seeks to reduce, or do away with, the ambiguity or lack of clarity in the original proposal by the government to make it abundantly clear that it's the band council that can appoint a person.

It also speaks to the idea that the Governor in Council has an obligation to consult in the development of these regulations, and I believe in this case that obligation goes beyond consultation. It in fact goes to requiring consent, so that these regulations, when they finally come into being, shall be determined with the consent of first nations in direct contrast to the way the original bill was crafted where there is anything but consent. In fact, there is open, defiant opposition to every clause and every aspect of this bill.

If the introduction of the bill itself was an abject failure, the corrective measures that can be taken are that the regulations, which are the manifestation of the principles stated in the bill, should be developed with the full consultation and consent of first nations. And as it specifically applies to the adoption of codes related to procedures and the holding of votes, in that case, these regulations should also be crafted in such a way that the person who is selected to be the objective overseer of the fairness of the election, or the observer of the voting process, should be chosen from a list of pre-qualified individuals that would be held and maintained for just that purpose.

If I had more time, we could have perhaps developed a rotation process in terms of the selection of the individual to be the observer, the oversight person. It's not unusual to have to go through that rotation in order to ensure fairness, so that if a certain individual was used last time and the result was favourable to one party or the other, they might want to ensure that the next time we use a second independent observer, instead of the same person over and over again who may develop a pattern of rulings that is not....

À (1010)

Obviously there are two sides to every issue. One side is going to be disappointed and one side is going to be pleased. The losing party will develop a resentment towards the independent observer if it goes against them a number of times. So we think that in fact there should be a rotation in the order of the persons selected from that pre-qualified list.

But the development of regulations in and of itself is contentious. And I've cited examples where the development of the regulations associated with a per capita sharing of oil and gas royalties has been disastrous. In the example I cited, Mr. Chairman, when you factor in all these mysterious mathematical formulas--which almost seem designed so that nobody can understand them so that they can operate under a cloud of obfuscation--the one-time overall cash payment per person was $15,000. As I say, this is not the Beverly Hillbillies, this is not Jed Clampett; this is discovering oil on the lousy 160-acre patch of dirt that this particular reserve was allocated. When they do strike oil, their share of the oil is a one-time lump payment of 15,000 square feet, whereas the overall recoverable potential oil was 13.7 billion barrels, and the ultimate recoverable potential gas was 65 trillion cubic feet.

But the allocation per person is $15,000, roughly enough to buy a used pick-up truck, which by now is probably worn out and is in a garbage dump somewhere, and the people are back where they started in terms of abject poverty, in spite of the wealth underneath their feet.

So this is an illustration, or an example, of how these regulations are crafted without the best interests of the first nations at heart, because the empirical evidence is such that their best interests have not been served. How could you make a case to the contrary with an example like this? So not only has this process we find ourselves in today not been satisfactory and is not representing the best interests or the wishes of first nations people, but the regulatory process or the regulation-making process is even worse in that it doesn't even have this oversight process of going through the motions to rubber stamp all of the proposals crafted by the minister, and ultimately by the former Minister of Indian Affairs--the Prime Minister--in his near missionary-style zeal to impose these wishes upon first nations.

There have been three Indian bands recently who sued the crown for damages regarding the administration of oil and gas resources. The bands requested the disclosure of certain documents associated with this law case. The crown submitted that the documents were privileged. Even though there is a trust relationship between the crown and first nations, and a fiduciary obligation for the crown to operate in the best interests of first nations, the crown submitted and argued that the documents were privileged. So the bands had to apply for an order of the production of these documents, much like we requested the production of documents associated with this bill and were refused.

But in this case, Mr. Chairman, in fact the ruling has been satisfactory. I think we should be guided by recent rulings, where even though the argument was made that the documentary evidence here in question concerns legal advice related to the performance of public duties on an ongoing basis in accordance with the law--that was the argument--and in the performance of those duties, its actions, the crown is here called upon to defend not the quality or the tone or the tenor of the legal advice provided about the discharge of those duties and not the reference to whether its actions were in accord or not in accord with advice it may have received, the documents when produced are subject to a confidentiality order already issued. This is actually--

À (1015)

The Chair: Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Thank you, Mr. Chairman. I had the same problem earlier, Mr. Martin.

Mr. Chairman, I want you to know that I consider Mr. Martin's sub-amendment to be excellent, since it appeals to the intelligence and power that the First Nations already possess, through their inherent right of self-government, to decide which rules and laws shall apply on lands for which they are responsible. What has too often been sorely lacking as Bill C-7 was drafted, unlike what we may have heard here, were real consultations. There have been no real consultations. Everywhere we went, and in the briefs that were presented, we were told that people only found out about Bill C-7, about its language and objectives, when it was first tabled in the House of Commons at first reading. But we all know that once a bill has been tabled, it happens very rarely that it is changed to the extent to which we would like to see Bill C-7 changed. The fact is the Bill would have to be completely re-drafted.

Some people are not being particularly honest when they say that they really consulted stakeholders, when in actual fact there had been very few real consultations when the Bill was tabled at first reading in the House, and the process was expedited to refer it immediately to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources.

It's nice to talk about the consultation process, but it is especially nice to talk about consent. It is not enough to simply consult people. Given that all the items addressed in Bill C-7 apply to the First Nations, it would be perfectly normal and appropriate for the First Nations to have not only been consulted, but to have consented to a specific method or process for selecting a person to oversee the conduct of voting.

What is also interesting about Mr. Martin's sub-amendment is that he talks about a list of qualified persons who would be proposed by the band council. I consider that to be an excellent idea. In fact, Mr. Martin's sub-amendment could even replace all of clause 31. That might be a better direction to take in clause 31. The consent of the First Nations would be required, so that they, and they alone, would be responsible for developing a list of potential candidates to oversee the conduct of voting.

I think it would be very worthwhile to consider the comments that were made during our hearings or in the briefs that were tabled. As I mentioned earlier, the Quebec Bar had some very serious reservations about clause 31. They said that once the Bill and clause 31 in particular had been passed, as amended, an impressive amount of regulations would be developed by the Governor in Council. But there is no provision in this Bill for meaningful consultations to be held with a view to securing the consent of stakeholders, and particularly, of the two Houses of Parliament that will be reviewing these regulations.

Indeed, it happens only very rarely in the legislative process that we have an opportunity to debate regulations that are developed by the Governor in Council. In fact, I remember having asked very frequently that there be an opportunity to debate regulations stemming from very significant bills--such as the one amending the Bank Act, which defined a certain number of important principles, such as the partial acquisition of Canadian banks by foreign interests. But the regulations were discussed afterwards.

À (1020)

I've often asked, with respect to this kind of provision that requires very substantial regulations, that we have an opportunity to look at those regulations and review them carefully using the process normally followed for passage of a bill. Clause 31, as it would be amended through the government amendment, would read as follows:

31. The Governor in Council may make regulations respecting the adoption of a code by a band under section 4, including regulations establishing procedures for the holding of votes and regulations authorizing the council to appoint a person to oversee the conduct of voting.

It is clear that the regulations will be substantial and will lay out the essence of clause 31. What we have in front of us now does not represent the essence of clause 31. This simply says that the Governor in Council will make regulations respecting the adoption of a code for overseeing the conduct of voting, but no details are provided. We really don't know what this involves. We don't know what will work. There is a promise to consult people, but we don't know what the government's promises with respect to consultation are really worth. We saw what they did with Bill C-7, and Bills C-6 and C-19.

They can't quite manage to adequately consult the First Nations. They are never able to reach them or consult them properly when it comes time to deal with their rights or improve their system of governance. There are major improvements to be made there--something I doubt will happen at this point--and we never manage to satisfy them in the consultation process. There are incredible flaws in that whole process.

When I look at the comments that were made during the work of the Royal Commission on Aboriginal Peoples, I can clearly see that everyone was satisfied. First Nations and their representatives--in other words, the band council chiefs and Assembly of First Nations' representatives--were all satisfied with the process. Why? Because representatives of the Aboriginal peoples were truly involved in the whole process of consultation. When the Erasmus-Dussault Commission had its consultations, which were true consultations, the First Nations acquired a taste for this. They were told they had been heard, that the situation facing the Aboriginal peoples had been carefully analyzed--and accurately as well, in my opinion--that the First Nations were there and had suggested approaches for carrying out a whole series of initiatives over a 20 year period.

In this particular case, the First Nations are being told that this is phase 1 of the governance project. The Minister said the other day that this was the first phase, that there would be other ones, and that the regulations would be… The government hasn't been able to secure the trust and confidence of the First Nations in this process. In fact, I don't think they trust either the Minister or outgoing Prime Minister in the least. Whatever promises you make, the First Nations don't believe you when you say you intend to consult them, because you have already imposed a first Bill on them, Bill C-7, saying that they were consulted and had had an opportunity to comment on the Bill. That is absolutely untrue. You tabled the Bill for first reading in the House of Commons, and then the whirlwind began, yet you said they had been consulted. The fact is that since we began clause-by-clause consideration of the first 31 clauses of the Bill, you haven't even taken into account the results of the consultations we carried out here, which resulted in substantial testimony.

You can hold consultations for two years if you like, but if you don't pay any attention to the representations made by the First Nations, who are the people directly concerned by this Bill, what's the point? And it will be the same thing with the regulations. Of course you'll consult, but the government will just continue to do whatever it likes, just as it did with C-7, C-19 and C-6. Even if there are consultations, when it goes in one ear and out the other, what is the point, really?

The Minister of Finance holds pre-budget consultations, but he only follows the recommendations that suit him.

À (1025)

With the Erasmus-Dussault Commission, the process wasn't the same at all, nor was it with the Special Committee on Indian Self-Government. Not only were there consultations…

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chair. I understand that this will be my last opportunity to make remarks associated with this particular clause, as we're still dealing with amendment G-11.10 and the government's proposal regarding the creating of regulations associated with overseeing the conduct of voting or the vote itself.

Mr. Chairman, the subamendment I was seeking to achieve would have addressed two concerns I identified with the government's amendment to its own clause 31. In the first instance, there's a pervasive sense of distrust amongst first nations--a fear that they will have no participation in the drafting of any regulations establishing procedures associated with the holding of votes. The first language I sought to introduce was that the Governor in Council may have the right to introduce these regulations with the consultation and the consent of first nations.

That was in deference to some of the many comments we had heard across the country when people came to voice their dissatisfaction with this Bill C-7 in general. In specific response to their concerns, I'm seeking to introduce that regulations shall be drafted with consultation and consent of first nations.

The second point I seek to raise and to address is that there's an ambiguity--it may even be a mistake or an error--in the government's original clause and the amendment they put forward, in that there's confusion associated with what council we're making reference to. The second usage of the word “council” in the clause as amended could be understood to mean a reference to Governor in Council and not a band council. It's my proposal that we clarify that by adding the word “band” in front of the second use of the word “council” in order to clarify what I believe the intent is and to make reference to the fact that the person who is selected by the band council should come from a list of qualified persons who have been pre-approved by the band council for that very purpose.

There's precedent for this in other settings, and I think it's a valuable process. It's something that's useful and well understood. There's precedence for it in other legislative arenas. In the labour law study of law you certainly see that quite frequently.

The distrust in the crafting of regulation stems from recent experience. I think my proposed language could in fact have the effect of ameliorating some of that distrust. In the context of one recent example I cited, three Indian bands have sued the Crown for damages regarding the administration of oil and gas. They requested the full disclosure of certain documents. In fact, they won that appeal. This is relevant in the context of my amendment to G-11.10 in that under the government's own access to information review task force, they have now printed a new memorandum and circulated that memorandum regarding the disclosure of information to aboriginal people.

Because of the trust relationship that exists between the Crown and aboriginal people--the fiduciary obligation--privilege is treated differently, because what's in the best interest of the Crown is supposed to be in the best interest of aboriginal people; therefore there's not a distance in the privilege as to who is benefiting from this information. In fact, the two interests merge in the centre. So the courts have ruled and the Government of Canada has accepted that in the matter of information to aboriginal people, privilege cannot be used, or should not be used, as an excuse to not disclose pertinent information.

À (1030)

We've asked these very questions of the officials, and they've said that they're not allowed to disclose these things. It would be interesting for us to see any legal opinions that may have been drafted by or commissioned by the government regarding the impact of Bill C-7 on current or future court cases.

It would also be interesting to see if there are any draft regulations currently in place regarding, specifically, as it pertains to my amendment, the holding of votes or overseeing the conduct of votes or the authorizing of a council to appoint a person to oversee. If those draft regulations exist, shouldn't we have them here at this table so we can see them and can understand the consequences of the language of the bill we're approving or not approving around this table?

We don't have the complete picture, and without the complete picture, we're unable to live up to our fiduciary obligations to act in the best interests of first nations people.

When the access to information review task force published its report on this, they said privilege cannot be used when we're dealing with information regarding aboriginal people. This is a fairly recent edition. It's report 21 of the access to information review task force, published by the Government of Canada.

It gives the history of this particular court case:

The Federal Court of Appeal held that certain legal opinions which would otherwise have been protected were disclosable in the litigation context. The action concerned an allegation of breach of trust or fiduciary obligations resulting from the Crown's management of oil and gas resources in surrendered reserve lands, from the Crown's management of moneys and from the Crown's provision of programs and services to the respondent Bands. The Bands argued that, where the beneficiary of a trust or a fiduciary obligation seeks information from the trustee, no privilege can be invoked for communications between the trustee and its solicitors respecting the subject matter of the trust;

That's exactly the situation that we find ourselves in today, in discussing Bill C-7. It's for those very reasons that we have asked for the full disclosure of pertinent information associated with the impact of Bill C-7.

No privilege can be invoked for communication between the trustee and its solicitors. When we asked the solicitors of the trustee, the minister, if they would disclose pertinent information about legal opinions concerning the impact of this bill, we were refused and turned down. In fact the senior solicitor, Mr. Beynon at the time, I think was present and he said it would be a breach of privilege between him and his client, him and his customer, him and whom he serves, which is the government. Clearly the best interests of aboriginal people were not paramount in his mind.

He considered the research and the work that he had done on behalf of the minister and on behalf of cabinet to be privileged. We argue that it's not privileged and that we can't do our job effectively without access to that information they consider to be privileged.

...that the Crown was in fact acting as a trustee of the Bands' interests; and, therefore, that legal opinions received by the Crown were not subject to the solicitor-client privilege and should be disclosed.The Federal Court of Appeal upheld the trial judge's ruling requiring the Crown to disclose documents which related to the subject matter of the trust. The Crown was required to:produce any document in the nature of legal advice that concerns the administration of, or the discharge of, responsibilities of the Crown as trustee for the benefit of the plaintiff bands and peoples

Mr. Chairman, we're in that same situation here today. We find ourselves operating blind. We don't know what the government is up to, or what their true intentions are with Bill C-7, or what the predictable consequences of Bill C-7 will be, except for our own legal opinions.

À (1035)

Our legal opinions say that Bill C-7 does in fact infringe on constitutionally recognized aboriginal and treaty rights. That's what our legal opinions say, and that it will have, or could have, an effect on the 200 outstanding court cases and subsequent court cases as recently as today.

The Chair: Now we have a recorded vote on subamendment 2 to amendment G-11.10 on page 194.

(Subamendment negatived: nays 8; yeas 2)

The Chair: Mr. Hubbard, on the amendment.

Mr. Charles Hubbard: Mr. Chair, we're ready for the vote.

The Chair: We have a recorded vote on amendment G-11.10, page 194.

(Amendment agreed to: yeas 8; nays 2)

The Chair: Shall clause 31 carry?

Do you wish to debate again, Mr. Martin?

Mr. Pat Martin: I wish to debate the motion, Mr. Chairman.

In our opinion, clause 31 should not carry even in its amended form. I see the government amendment may in fact,carry, but it doesn't clarify some of the issues I raised in terms of the future interpretation of this clause. I would ask you to reconsider that in this form this clause specifically shouldn't carry, because it's open to misinterpretation.

If you pretend you're reading this for the first time, in its amended form it will read:

The Governor in Council may make regulations respecting the adoption of a code by a band under section 4, including regulations establishing procedures for the holding of votes and regulations authorizing the council to appoint a person to oversee the conduct of voting.

Well, it's reasonable to assume the government is talking about the same council in line 4 that they refer to in line 1. It's all within the same clause, and there is no language anywhere to the contrary to say we're talking about a different council now, instead of the Governor in Council, except for the fact that one uses a capital “C” for council and one uses the lower-case “c” for council in the second usage.

It's not unusual, if you see a reference to something in the introductory line.... The line that introduces what this clause is all about talks about the Governor in Council, and two lines later it talks about the council. I don't think it's the intention of the government to say the Governor in Council should be the one who will appoint a person to oversee the conduct of voting. That is not in keeping with what we heard from our people around this table.

Mr. Chairman, it would be a mistake if we proceeded to pass clause 31 with this glaring oversight still not addressed. Had we seen fit to pass either of the subamendments that both the Bloc and I put forward, we would have had some clarity associated with that clause. But because the government is unwilling to accept any amendments put forward by the opposition, no matter how reasonable they are, it seems we're going to be stuck with this ambiguity, this language that, frankly, I think will be open to misinterpretation down the road until it might be corrected by some future...the next time we open the Indian Act, when our children are in Parliament instead of us. I suppose they will be able to address it then.

Why would we knowingly make such a glaring error?

Am I out of time?

The Chair: Mr. Martin, you will find the definition for “council” under the definitions in clause 2. So your argument is cleared up there.

Thank you.

À (1040)

Mr. Pat Martin: Mr. Bryden, you have such an unbecoming cackle. Your cackle is disturbing almost. It's almost hideous, really, the way it resonates in this room. It's a disturbing cackle.

I know you come here not to make a contribution but to antagonize people, and you do a good job of antagonizing people. But it gives me energy, so I actually like it when Mr. Bryden joins us as a tourist and drops in from time to time to antagonize people. It gives me strength and energy to carry on.

Mr. Bryden wasn't here when I was sharing some of the recent rulings. Mr. Bryden is rarely here, except to antagonize witnesses and guests, usually.

The Chair: Mr. Martin, it's “the member opposite”, or whatever.

Mr. Pat Martin: Oh yes, the member opposite--that's right--wasn't here, but perhaps the member opposite would agree with me that we'd be better served with full access to the documentation that we should have regarding the impact of this bill.

Where this clause falls short is that it speaks about the Governor in Council making regulations, but it doesn't reveal to us any of the draft regulations. It doesn't reveal to us, and no one has revealed to us, the impact of this bill on inherent aboriginal and treaty rights or on current or outstanding court cases.

We know that information exists because the Indigenous Bar Association filed an access to information request for all documentation associated with the impact of this bill. They waited 18 months, until they were finally given the answer that it would be against the best interests of the Crown to reveal this information.

Well, a recent court of appeals ruling would in fact speak otherwise--in fact, the government's own internal document, internal memorandum, on the access to information review task force, to keep people abreast of the current status of access to information rulings, such as R. v. Adams,, where the Supreme Court of Canada stated that:

In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfil their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test.

So it seems to me that in the absence of some specific guidance about why it's necessary to infringe--and it may be from time to time necessary to infringe upon aboriginal rights--in that case, the Sparrow test comes into play where you have to provide not only consultation, but justification as to why it's necessary.

We've asked for the opinions of the Crown on this matter and if they've contemplated this and taken it into consideration, and if the access to information coordinators were informed so that when the requests are made, the access to information people would know what the relevant rulings have been or the current authorities are saying about the subject.

That means the Crown is in breach of its fiduciary duty if it does not put forward the legal opinions. As a result, the bill may fail under the Sparrow test, which is another Supreme Court test and one of the reasons we've been saying all along, and now we have the provisional government of Paul Martin also suggesting, that this Bill C-7 is going to get us into ten years of court cases and court challenges.

For that reason alone, had the government cooperated with our legitimate requests for information, they might have been able to avoid some of these challenges by cooperating on the full disclosure of what they intend to do. But I think the legal opinions they've written have found that there is no justification for this infringement, other than political expediency or convenience in the administration of their fiduciary obligations. There is no justification that can be found as to why they should be diminishing aboriginal and treaty rights, and that's why they're afraid to release this information. But I argue they don't have a right not to release the information.

À (1045)

They can't claim privilege. The lawyers who work for the department have an obligation to us too, as we have a fiduciary obligation to do what's in the best interests of first nations people. We can't do that job without all the information being made available to us; otherwise how would we know whether to approve or disapprove of certain clauses of this bill?

If we had the legal opinions made available to us, we'd be able to say we're not going to approve clause 31 because of the rat's nest of legal challenges that will probably begin. So we find ourselves in a conflicted situation, that we can't proceed--

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Thank you, Mr. Chairman.

I agree with Mr. Martin. Here we are looking at clause 31, that was and still is problematical, based on what we heard during these proceedings and what was stated in the briefs filed with the Committee. The changes made by the government have not assuaged peoples' fears. In fact, they don't address any of the criticisms made with respect to clause 31. And what were those criticisms? I'm going to briefly summarize them for you.

We were told there is no provision for consultations with the First Nations, who are directly affected, as regards the process for appointing the person to oversee the conduct of voting. Mr. Martin and myself both tried, with sub-amendments, to introduce the idea of consultation, but those sub-amendments were defeated.

People also say that no attempt is being made here to seek the consent of the First Nations with respect to the procedure for selecting the person who will oversee the conduct of the voting. That has given rise to at least three substantial criticisms of what is proposed during this consultation. We proposed a sub-amendment that included the idea of consent, but unfortunately, we were unable to secure the support of our Liberal colleagues at the table. Yet that suggestion, regarding the need to seek the consent of the First Nations, came forward through the representations of many witnesses we heard here in committee or were reflected in the briefs that were presented or e-mails we received. Our thinking was that by suggesting that a list of qualified persons be drawn up, we at least would not be imposing a process on the First Nations, but even that part of Mr. Martin's sub-amendment was soundly defeated by government members.

And looking at clause 31, it is clear that the substance of the clause is yet to come. In reality, we are commenting on a clause the ins and outs of which are completely unknown to us. And those ins and outs will only become known to us in the regulations, that will be made by the Governor in Council. When our Liberal colleagues said earlier there would be consultation on the regulations, they had trouble repressing a smile, because they know full well, as do I, that it is very rare for a government to consult and seek support for regulations that are developed by the Governor in Council. We haven't seen that happen very often. In any case, in 10 years I have not often seen the government come back, after a bill has been passed, and hold consultations on the regulations stemming from that bill, not to mention instituting a process for review of those regulations by both Houses. You don't need to have a lot of experience in Parliament to know that.

When the government says it's going to consult the First Nations and consult the Members of Parliament and Senators, and refer the regulations drafted by the Governor in Council to our Committee and the Justice Committee so that they can review them, well, I simply don't believe that. That's just idle talk, ridiculous assertions that don't stand up to analysis. In order for people to believe you, that consultation process regarding the regulations would have to be laid out in the Bill. It would have to be clearly stated in the clause that the regulations stemming from the Bill that are drafted by the Governor in Council will be subject to consultation and a democratic process by both Houses of Parliament and the appropriate committees, including the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources.

In fact, I think it is worth reminding people that the Quebec Bar had pointed at Bill C-7 saying that it raised a serious problem because nobody knew what clause 31 was really all about. Nobody knows. Nobody knows what the real provisions of clause 31 are, because most of the substantive work will be carried out by the Governor in Council.

À (1050)

We have omitted all the details and parameters regarding the procedure for appointing the person to oversee the conduct of voting, without making any provision whatsoever for this clause to be reviewed and reconsidered as part of the Committee's work or in the House. In that connection, I want to remind you of what the Quebec Bar said with respect to clause 31 of the Bill which relates to the scope of the Governor in Council's regulatory powers:

However, the application of the First Nations Governance Act will require regulations to be drafted that will have a significant impact on the citizens. The Quebec Bar would thus favour the inclusion of a clause…

So, we really need to have something in writing.

… providing for pre-publication of such regulations…

So, just as bills benefit from a pre-publication period, the same would be done for the regulations.

… for the purposes of comment and analysis, both by stakeholders…

Especially First Nations members.

… and the two Houses of Parliament…

That would be a normal thing to do as part of the democratic process, because clause 31 doesn't tell us anything. We don't know how this will work. How can we be asked to do our homework and make a proper analysis of clause 31, as lawmakers, when the actual provisions are yet to come? So, it would be a good idea to provide for a pre-publication period and for both Houses and the appropriate committees, including ours, to conduct a review. I would be very pleased, and I'm sure Mr. Martin would too, to come back to this Committee to examine the regulatory provisions stemming from clause 31.

In addition to recommending that there be pre-publication of the regulations and review and commentary from the key stakeholders, as well as democratic consideration by both Houses of Parliament--we are elected to be accountable for our decisions--the Bar went on to say:

That request is even more important in that the Statutory Instruments Act does not provide for a period of pre-publication of regulations, thereby limiting the democratic process.

I'm sure that everybody here has no desire to see us limit the democratic process. In any case, this would allow us to do our job more effectively and in a transparent fashion. The First Nations, who are the ones most directly affected by clause 31, would know what to expect in terms of the application of what are at best imprecise provisions in the current clause 31. The government's amendment does not deal with the question of pre-publication of regulations, nor does it give us the option of examining those regulations in Committee.

I repeat: I am prepared to work another 102 or 103 hours, if necessary, to ensure that any regulations adopted by the Governor in Council are good regulations that satisfy the First Nations.

That is what the Quebec Bar suggested, yet its criticisms of clause 31 of Bill C-7 were not acted on. The Quebec Bar said:

That couldn't be clearer. It's also quite clear, given the amendments the government is moving and the fact that it has defeated our amendments, that the government is not the slightest bit interested in providing for these regulations to be reviewed by both Houses of Parliament, the Aboriginal Affairs Committee or the Justice Committee.

I guess my lawmaker colleagues are content with sparse information when it comes to voting on a clause that means absolutely nothing in its current form, because all this says is that, once again, the First Nations would be subject to the regulatory decisions made by the Governor in Council, meaning the Cabinet, behind closed doors.

À (1055)

[English]

The Chair: Mr. Bryden asked for the floor before.

Mr. Bryden.

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot): Thank you, Mr. Chair.

I'll just make a couple of comments on the remarks of the member for Saint-Hyacinthe--Bagot. I think people should be aware that in the Standing Committee on Citizenship and Immigration we sat for many months after the immigration bill was passed examining the potential regulations. Indeed I can say with some pride that the regulations that finally emerged were a product of the members of Parliament working with the bureaucracy, and I would suggest to the member from Saint-Hyacinthe--Bagot that there is nothing stopping this committee from doing exactly the same thing down the road.

I'd also like to point out that there are checks on the government's ability to make regulations, even if the committee does not participate in the process--that is, the Standing Joint Committee on Scrutiny of Regulations, which is a joint committee of the Senate and members of Parliament. That committee sits regularly, all the time, and does examine the efficacy of the regulations that are created as the result of legislation.

Finally, I would like to point out again for the record that the amendment that's proposed by the government and has been rejected by the opposition merely calls on band councils to appoint an independent person to oversee the conduct of their elections. I'd point out that this is the normal procedure that is done worldwide, and members of the Canadian Parliament are solicited by countries all across the world to come to oversee their elections.

I myself was asked to go to Cambodia, and I know various countries in the former Indochina sought and obtained members of Parliament here to go over there to oversee the elections--and again in South Africa. To have an independent overseer of the conduct of an election is a minimum requirement of any emerging democratic process. It's recognized worldwide. It's recognized in the political systems that exist at all levels of government, including municipal government. So I find myself at a total loss as to why the opposition members would deny the band communities, the Indian communities, the minimum privilege of democratic transparency and accountability that is demanded everywhere in the world. I am really puzzled by the fact that they have voted against this amendment, but this is a meeting of public record, and they will certainly exist on the public record as opposing something that's just fundamental to the most basic form of democracy.

Thank you.

Á (1100)

The Chair: Thank you, Mr. Bryden.

We'll now have a recorded vote on clause 31 as amended.

(Clause 31 as amended agreed to: yeas 7; nays 2)

(On clause 32--Regulations applicable in absence of code)

The Chair: I'm told that amendment NDP-48, on page 196, will not be moved.

On amendment NDP-49, page 197, Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chairman.

In all of our amendments and recommendations, even in the interventions we make, we're guided by the input and participation from the many, many first nations witnesses who came before the committee who appealed to members of the committee to hear their voice and take into consideration the problems they have with Bill C-7. Many of those presentations were very thoughtful, well researched, and well presented, and the frustration is that the government has not heard their voice. It has not acted upon the recommendations made by first nations, many of which were very constructive. Contrary to the message from the public relations campaign put on by the government in trying to pitch this particular legislation, a lot of constructive amendments were made to try to amend this bill, I think, in good faith.

I think if the government tested the mood across the country, they would find there always has been a willingness to deal with these issues; there always has been a willingness to sit at a round table setting to address many of the issues Bill C-7 seeks to address. That process was well under way at many tables when it was blindsided by the introduction of this legislation.

Clause 32 deals with the Governor in Council's powers to make regulations providing for matters with respect to which a code may be adopted under sections 5, 6, or 7. We should be reminded of the fact that it's the leadership selection code in section 5. Section 6 is the administration of government codes and section 7 is the financial management and accountability codes.

This is the enabling clause that recognizes the Governor in Council's authority to make these regulations with no reference to participation, consultation, input, or consideration of the wishes of first nations people, the very people who will be affected by the introduction of this bill.

Under the category of election appeals, clause 32 also makes reference to the Governor in Council's ability to make regulations pertaining to the establishment of a process for appealing the results of elections of members of councils, which “must provide that an appeal be heard by the Minister”.

So we're not talking about an impartial third party--a respected jurist, a retired Supreme Court justice, or any independent third-party arbitrator. We're talking about a process for appealing the results of an election that must be heard by the minister. In other words, the minister has all power associated with the appeals of elections.

According to this clause, we're not even going to entertain the idea that perhaps it should be an independent third party, an unbiased individual. You would hope the minister would be unbiased and be acting in the best interests of the first nation, in keeping with his fiduciary obligation to act in the best interests of the first nations in everything he does, but experience has shown us that's not always the case.

So this is one of those examples where, if anything, this bill, instead of reducing the role of the minister in the lives of first nations, actually expands, reinforces, and institutionalizes that right of the minister.

Now, when the Assembly of First Nations Vice-Chief Charles Fox appeared before this committee, he told us about an inconsistency regarding Bill C-7 and used clause 32 as an example in point. He said, and I quote:

Bill C-7 is inconsistent with the inherent right to self-government as recognized by subsection 35(1) of the Constitution Act, 1982. Therefore, the bill is unconstitutional. The inherent right to self-government

Á (1105)

--and I've made this point before--

is a full box, not an empty one. That is to say, first nation governments have jurisdiction and authority independent of the federal and provincial governments. That jurisdiction must include basic internal elements of government, such as leadership selection, government organization, financial administration, and local law-making.

It is precisely through these most intimate aspects of local government that Bill C-7 runs amok.

It tells first nations how to select leaders, run local government, report financially, and pass local laws. The bill treats first nations as mere financial federal municipalities.

There are many examples in the bill of the attack on the inherent right. First, there is the mechanism of the default rules--elections, government administration, and financial administration--under clause 32. The rules will be imposed after two years on first nations that choose not to develop codes.

Secondly, he points out the very nature of the topic areas covered by the codes or rules and other parts of the bill--that is, local government selection, local government administration, local financial administration, and local law-making.

He goes on to say this is the very stuff of local first nations government. He says:

Bill C-7 sends the message that the federal government can unilaterally interfere in this most intimate circle of first nations governments.

Now, the committee was also told by the Windigo First Nations that the bill was fundamentally flawed in the context of clause 32, which we're addressing with my amendment here today. They said:

The entire mechanism of default codes and rules tied to clause 32 of the bill is inconsistent with respect for the traditional governance of the Windigo First Nations. First nations have a two-year option to pass certain rules in relation to elections, local administration, and local finance. If the option is not exercised, generic federal rules, currently unpublished, will be imposed.

We believe any draft regulations should be tabled with this committee now. If there is going to be participation and input of first nations into the development of the regulations, surely we should be aware of what the intention of the government is with those regulations.

The reference to the mandatory participation of the minister in the regulation process for appealing the results of elections and members of council, which must provide that an appeal be heard by the minister, is particularly problematic.

These are the concerns that were raised, for instance, by the Windigo First Nations; by Vice-Chief Charles Fox, Ontario First Nations; and by the Tlowitsis First Nation in British Columbia. They said even more disturbing was the requirement in subclause 32(2) that bands must establish an election appeal process to be heard by the minister, and that's with very strong, absolute language--“must be heard” by the minister. This assertion would surely be objectionable to any other Canadian form of government. They said:

We are unaware of a leadership selection process that is open to this type of ministerial review.

We must ask...why the minister is seeking...power. If the Crown is serious regarding the goals of the bill, especially enabling bands to respond effectively to their particular needs and aspirations while avoiding the defining the nature and the scope of the right of self government, it may be reasonable to ask how any appeal heard by non-aboriginal ministers unfamiliar with the culture and community of values of the nation would provide greater legitimacy than the internal review designed by the community itself.

Well, it does beg the question. It's a disturbing trend in every piece of legislation put forward by the Liberal government that I've been associated with since I've been a member of Parliament. Virtually every piece of legislation leaves more and more to regulation--the details--and less and less to what's found within the parameters of the actual piece of legislation.

Á (1110)

There is a second disturbing trend we make specific reference to in subclause 32(2), that the powers of the minister are expanded. We're critical of that.

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I fully agree with the amendment moved by Mr. Martin, particularly since it reflects a number of the criticisms we heard with respect to clause 32, and particularly sub-clause 32(2).

I really don't see what the Minister is doing interfering in an appeal process dealing with the election of council members. We have repeatedly been told, since we began clause-by-clause consideration of this Bill, that it is intended to eliminate the Minister's involvement in these areas and ensure that he is making fewer decisions than previously in terms of the application--since it's still being applied--of the Indian Act. And yet here we have a clause where it says:

(2) Regulations made under sub-section (1) that establish a process for appealing the results of elections of members of councils must provide that an appeal be heard by the Minister.

Why should the Minister be hearing such appeals? Why should the Minister be interfering in the affairs of band councils? The fact is we had the same problem with clause 31. The assumption is that the band council is not qualified to set its own rules of procedure for appointing persons to oversee the conduct of voting. And on top of that, when the results of elections of members are appealed, the appeal must be heard by the Minister.

A while ago, one of my Liberal colleagues said that he was constantly called upon to oversee elections in other countries, and that he had done this in Cambodia. Of course, we all do this once in a while, but only because the United Nations requests the participation of election observers; that's because the United Nations is working on the assumption that there have been numerous irregularities and even election fraud in previous elections held in that country.

In this case, are we assuming that fraud is involved when elections of band council members are organized across Canada? Is it now a general rule that whatever comes out of the band councils has to be bad? Has the United Nations asked Canada to oversee the election process among First Nations when they appoint members to their band councils? Maybe we should be asking ourselves that question. It's best not to rely on superficial analysis or inappropriate comparisons, because they could easily come back to haunt us.

What I can say, however, is that sub-clause 32(2) was severely criticized by the people who took part in our consultations. That is also what comes through in the briefs we have examined since beginning our consideration of Bill C-7. A good example would be Mr. Frank Cassidy, a professor at the School of Public Administration of the University of Victoria. This is not just some ordinary guy; this is someone who knows what he is talking about. At our 31st sitting, he said, with respect to clause 32:

I believe some First Nations could say they want to accept a default code. But the default code should be designed in a very different manner from what this Bill provides. That default code should be designed with the full participation and concurrence of the First Nations.

This is someone who teaches at the University of Victoria, who is an expert in public administration, and who is telling us we should consult the First Nations about every aspect of clause 32, including the application of default codes.

And the same applies to the remarks made by Mr. Bradford Morse, a professor with the Faculty of Law of the University of Ottawa, who made some very serious criticisms about Bill C-7. Referring to clause 32, he says:

I would suggest that the regulations be tabled as soon as possible, that the two-year period be extended, and that the First Nations be assured adequate financial resources to have a real choice in terms of developing their own model or being limited to federal models that would inevitably be based on a national or single approach.

Á (1115)

And here we are in fact dealing with a federal model for reviewing the results of elections of band council members, when there are deemed to have been certain irregularities in the election process. And this highly respected professor with the Faculty of Law at the University of Ottawa is telling us that the First Nations must be consulted and given the freedom to choose their own procedures, including the procedure for reviewing election results. But here we see that the Minister, with his same odious colonial approach, is in on the act again, when the government keeps saying that the Minister of Indian and Northern Affairs will no longer have a role.

And we could go on and on, because clause 32 have been severely criticized. For example, at our 52nd sitting, the First Nation of Lennox Island and the Abegweit First Nation had this to say in Halifax--and this is taken from the summary prepared by the Library of Parliament:

We recommend that the FNGA include a provision that would force the federal government to hold adequate, meaningful consultations with First Nations groups and organizations with respect to the proposed regulations.

We should be paying attention to this kind of criticism, and yet that hasn't happened, because every time we move an amendment to the Bill to include formal language about consultations to come, our suggestions are rejected. The same comments were made by the Sturgeon Lake First Nation, in Prince Albert:

In sub-clause 32(2), the Minister of Indian and Northern Affairs is allowed to usurp the band's role with respect to its customary law.

There we have, in black and white, a direct, but succinct criticism of sub-clause 32(2) of Bill C-7, the sub-clause we are attempting to change with Mr. Martin's amendment proposing that these provisions be deleted.

The Treaty 7 Tribal Council said exactly the same thing in Red Deer, Alberta, and I quote:

The Treaty 7 Tribal Council recommends that the preliminary version of requirements relating to proposed default codes that will be laid out in the FNGA regulations, be provided to First Nations as soon as possible, so that they have an opportunity to ascertain what will be required of them and determine, based on all available information, whether they should develop their own codes or be subject to the default codes.

The Kainaiwa Blood Tribe said the same thing: “First Nations must participate, in an appropriate and meaningful way, in the drafting of the regulations.” In other words, the Minister or the Governor in Council should not be imposing procedures on them, without their having their say. They go on to day: “The Blood Indian Tribe recommends that they make a specific contribution to the drafting of the regulations.” Where is that specific contribution? As far as the drafting of the regulations is concerned, there isn't any.

It's discouraging to hear the comments made by the Parliamentary Secretary, who seems to want to debate the issue when the mikes are turned off. That's really sad. He should be engaging in debate when the mikes are open. It's sad to see that despite all these representations that I have just laid out, as well as many others that we will have an opportunity to review later on, nothing in this Bill ever changes. Even the amendments made by the government don't restore the First Nations' right to develop their own procedures for elections, reviewing election results or appeals. I think that's really a shame and I almost feel like moving a sub-amendment to Mr. Martin's amendment. Mr. Martin's amendment is to delete lines 1 to 5 on page 19. I would like to move that this paragraph be replaced by the following:

(2) Regulations made under sub-section (1)…

Á (1120)

The Chair: Mr. Loubier, you said you felt like moving a sub-amendment. Are you moving it or not?

Mr. Yvan Loubier: Yes, I'm moving it; sorry. It's true that the French language sometimes plays tricks on us. I move that after deleting lines 1 to 5, as proposed by Mr. Martin, we replace those lines with the following wording:

Provide for regulations containing provisions relating to the appeal procedure that are developed by the First Nations, based on the customs and traditions of the First Nations, or the rules for reviewing the results of elections of band council members they deem appropriate.

So, I am moving a sub-amendment to replace the lines deleted through Mr. Martin's amendment.

[English]

The Chair: The subamendment is not acceptable. We have an amendment here to remove a paragraph, and the subamendment proposes to include another one. It's not acceptable.

Mr. Martin, your closing remarks.

[Translation]

On a point of order?

Mr. Yvan Loubier: Yes, Mr. Chairman. Can I be told where it says that we can't do that? We're deleting lines, and we're not allowed to replace them, you say?

[English]

The Chair: We can debate that after, but I've been advised by the legislative clerk, and I'll let him comment. Research has to find the line where it says you can't do that. It will be done after the meeting. It doesn't relate to the amendment.

Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chair.

I was sharing with the committee why we believe my amendment accurately reflects the wishes of first nations across the country, many of whom were cited by Mr. Loubier in his presentation. The very real concern first nations have about this particular clause is that even though it's very brief and to the point, it's vast and expansive in its effect, because this is where we find reference to the right of the Governor in Council to create the regulations that will apply by default if a first nation either cannot or will not introduce codes of governance that meet the minister's approval within the two-year timeframe.

This is the whole substance of the default system here, that you either accept our cookie-cutter template approach of national standards regarding codes of governance within a two-year timeframe or we will impose those very rules on you. This is what most first nations balked at, as being a clear infringement on their inherent right to self-government.

This is what the Windigo First Nation said:

To recap, we believe that the substance of the bill is fundamentally flawed and unconstitutional because it is inconsistent with the inherent right to self-government. The bill, if it becomes law, will be subject to lengthy and bitter litigation, and will generally poison the bilateral relationship for a long time to come.

This might be the very submission the provisional government of Paul Martin was reading when the former Minister of Finance said that we are poisoning the well. That's the only reference to poison I've found in the 191 submissions that are opposed to this bill. Mr. Martin's research people must have been thinking of what the Windigo First Nation told us in their comments, that they predicted that the introduction and the passage of clauses like clauses 31 and 32, which enable the default mechanism to take place, is what poisons the environment. “Poisons the well” is the term they used.

The Windigo First Nation goes on to say:

In addition to the problem with substance, there is a fundamental problem with process. The constitutional law of Canada provides that when a government measure such as Bill C-7 is likely or certain to prejudice first nation rights, the government is under a very heavy obligation to consult the affected first nations and consider reasonable alternatives. The position of the Windigo First Nations is that the Government of Canada has breached its constitutional duty to consult in the development of the First Nations Governance Act package. In this we support the position of the Assembly of First Nations.

When the Quebec Bar Association appeared before the committee, it noted that “the regulations made by the Governor in Council under clause 32, which would stand instead of codes for members not adopting codes within the prescribed time period, would prevail over all laws made by a council”.

The officials might be able to shed some light on this, but the Quebec Bar Association provided the committee with an option. They suggested that

This different approach, which the Barreau du Québec considers more productive, is the one adopted in the federal government's Kanesatake Interim Land Base Governance Act. Under that act, the legislative authority of the band council over the territory is subject to adoption of a land code. We therefore draw your attention to this different mechanism provided for in the Kanesatake act. In our view, this is something that could be important and could apply to advantage in a situation such as the one contemplated here.

Earlier on, when Mr. Beynon was assisting the committee as our adviser, he said:

Just as a technical observation, subclause 4(3) of the bill specifies that:

While a code adopted by a band is in force, regulations made under section 32 providing for the same matters as the code do not apply to the band.

In the reading of the bill, subclause 4(3) is the provision that makes it clear that if you don't choose to adopt a code within the time limits or in accordance with the rules that are specified in the rest of the act, then regulations made under clause 32 providing for the same matters as the code do not apply to the band.

Á (1125)

Does this mean that there could be a checkerboard arrangement across the country--that part of the governance will be by the code, and where the code doesn't deal with a certain matter then the regulation will apply? Who decides whether the code has dealt with a matter adequately enough to keep the regulations from applying? Again, that falls to the minister, or someone on behalf of the minister, to make that determination.

We can see that this clause is problematic, and my amendment simply says that we should delete subclause 32(2), which makes reference to the fact that

Regulations made under subsection (1) that establish a process for appealing the results of elections of members of councils must provide that an appeal be heard by the Minister.

Again, we're expanding the role of the minister.

There's a danger that the regulations made under clause 32 will be construed as defining the scope or nature of the right to self-government. We don't know what these regulations are, even though we've made a request that the draft regulations be tabled with the committee. I think it's only fair that the draft regulations should be tabled here so that we can have some idea as to what we're doing and what we're passing here.

There's a second danger, though: that clause 32 will be construed as relieving the Government of Canada of its obligations and commitments in relation to the negotiation and recognition of self-government agreements. The official assurance to us that this is not true is of very little comfort, frankly, because we suspect the government is interested in secondary objectives associated with this bill, far beyond what the primary stated objectives are.

The Office of the B.C. Vice-Chief of the Assembly of First Nations told the committee in a presentation he made that the extent of the impact on self-government of clauses 4, 32, and 36 combined cannot be properly assessed without knowledge of the contents of the proposed regulations under clauses 31 and 32. Yet we are not shown the draft regulations. The Office of the B.C. Vice-Chief of the AFN asked this committee to ensure that draft regulations be made available for review prior to the third reading of the bill, should it proceed that far.

Well, that's a reasonable request, Mr. Chairman, that we should see what are to be the default codes—what will the default codes look like before we approve the language that says if you don't comply with the minister's wishes within two years, default codes will apply to you? What are those codes? If we knew the content of those codes, it may be less of an issue. There may be less objection and less protest across the land. But no, that's part of the secrecy. That's part of the cloud, the deliberate obfuscation associated with this bill.

It's ironic that a bill that's supposed to be about accountability and transparency should be treated in such a way that we don't even know what the outcome of the bill will be, because no one will show us what the draft regulations are. I predict that they're drafted and sitting on a shelf somewhere, as we speak, and that the consultation associated with the regulations will be as much of a sham and a mockery and travesty as the consultations associated with the bill have proven to be.

We have to remember that subclause 4(3) of this bill states:

While a code adopted by a band is in force, regulations made under section 32 providing for the same matters as the code do not apply to the band.

That's a good thing. The code replaces the regulations. But we have to remember that the code has to be approved by the minister, so ultimately it's still the minister dictating what the circumstances are surrounding codes of governance, whether it's leadership selection, financial management, or accountability codes. It's still the minister saying “You'll do it my way, or within two years I will impose my way upon you”. This is one of the most graphic and bold illustrations of what the true intentions of this bill are, when it says--and I'm surprised that they would be this crude--that this must provide an appeal to be heard by the minister. Again, it's this absolute language.

I don't want to keep Mr. Dromisky awake at all by this subject matter, but I know it should be of great interest to him.

Á (1130)

The Chair: Mr. Martin, that's unfair. Some of us have limited capacities.

Mr. Pat Martin: We're all exhausted, Mr. Chair.

The Chair: I admire him, at his age, for being able to follow these proceedings. He's been here continuously, so it's very unfair for you to do that.

Mr. Pat Martin: Mr. Chair, the committee should be concerned that although the Minister of Indian Affairs informed the committee that his powers are to be decreased by the proposed act, this clause in fact increases his power to deal with--

The Chair: Thank you, Mr. Martin. Your time is up.

We will have a recorded vote on amendment NDP-49 on page 197.

(Amendment negatived: nays 8; yeas 2)

The Chair: The amendment is defeated.

On amendment G-11.11 on page 198, Mr. Hubbard.

Mr. Charles Hubbard: Thank you, Mr. Chair.

Before we begin, the member for Winnipeg Centre has referred to a number of plural pronouns, and I'm sure that the record should be that they are in the singular when he makes those statements, rather than the plural.

Secondly, he spoke a few minutes ago about people having difficulty paying attention to his song, or his script, but after you hear the same thing, Mr. Chair, time after time after time, the human mind has difficulty trying to deal with that type of talk, that type of discourse. Certainly I'd like to point out to the honourable member that on this side of the table it's been very difficult to try to pay attention to a record that, if not broken, certainly should have the needle taken from the groove.

With that I'd like to draw our attention to government amendment G-11.11, which I'll move. This deals with lines 1 to 5 on page 19. It would change those lines to have under a new subclause (2), on the left-hand side of the column dealing with the election of council members:

Regulations made under subsection (1) in respect of leadership selection may

(a) provide for the appointment of a chief electoral officer and deputy electoral officers;

(b) provide that appeals of elections of members of councils and applications to remove members from office shall be heard by a person designated by the Minister, where jurisdiction to hear such appeals or applications has not been conferred on a person or body by a band law referred to in subsection 11(1); and

(i) require any person to attend for examination under oath,

(ii) compel the production of documents, and

(iii) dismiss an appeal or application without a hearing on grounds set out in the regulations.

Mr. Chair, with this we want to point out that each first nation, first of all, can have its own redress officer appointed by the chief and council and approved by the band.

More significant is the fact that the minister, who has been called upon to make judgments in the past in terms of problems that exist at the band or first nation level, now will not be dealing directly with those submissions, but the minister will designate the person or system that will hear such appeals.

Probably, Mr. Johnson or Mr. Salembier, you may want to comment on that. But it is certainly a step forward. It means that the minister no longer will have this responsibility, but it will be designated by him to redress officers, or the chief electoral officer for the first nations, who will rule on and deal with problems that may occur.

Á (1135)

Mr. Warren Johnson: Thank you.

Mr. Chairman, in the context of this discussion on this clause and the previous statements, there appears to be some confusion in this area that might be worth clearing up for the members, given the comments that have been made thus far and in consideration of the motion before you.

First of all, in regard to Mr. Martin's question, the draft regulations don't exist, so we can't table them. I am sure we've made that point numerous times before, before this committee.

Secondly, for further clarification, those operating under custom are not subject to these provisions. They are exempted under subclause 32(1).

Three, the committee has already extended the two-year period to three years, subject to earlier amendments, and I think informally references tend to consistently apply that through a few other clauses yet to come up in terms of this bill, ones that have yet to be considered by the committee.

Four, dealing with Professor Morris' comments raised by Mr. Loubier, as earlier referenced, the government has already committed to fund and consult.

Five, the requirement for the minister to hear the appeal in (2) that was subject to the previous hour's discussion has already been amended by the committee in dealing with an earlier amendment to provide for first nations to establish their own appeals using the redress mechanism. This clause just completes that sentiment.

Sixth, the Kanesatake land code would appear to follow exactly the same principles as Bill C-7, starting with the community developing its own code and then, consistent with that, developing its own laws and procedures. So they do appear to take the same approach. This is also not dissimilar to the approach under the First Nations Land Management Act.

Finally, because it keeps coming up, and just to be absolutely clear, the community decides on whether they operate under their own codes or the fallback. There is no ministerial approval or oversight of the codes. To be crystal clear, the minister does not approve the codes. There is no ministerial involvement in the codes, despite.... There have been a number of confusing remarks on that, so I mention this to clarify the record.

In that context, this amendment then gives effect to the situation consistent with earlier amendments where the minister would only be hearing election appeals, and be required to use the section cited by the parliamentary secretary, where a first nation did not want to establish its own appeals process. It's so that the minister could have a clear delegation authority to another body if the first nation did not want to do that, and so that independent electoral officers and deputy electoral officers could be established through the band or otherwise, as per the previous amendment, to allow the same thing to happen for the ratification of codes.

I think this section completes that set of themes and substantive amendments in response to the serious concerns raised by a number of witnesses before this committee on clause 32. This completes that series of amendments.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Thank you.

I think it's fairly clear, Mr. Chair. We're ready for the vote on this.

The Chair: Monsieur Loubier, you had raised your hand?

[Translation]

Mr. Yvan Loubier: Thank you, Mr. Chairman.

I have read and re-read the amendment moved by Mr. Hubbard and I don't find that it addresses the many criticisms made with respect to clause 32 of Bill C-7. Mr. Hubbard is moving that clause 32 be amended by replacing lines 1 to 5, on page 19, with the following:

(2) Regulations made under subs-section (1) in respect of leadership selection may:

(a) provide for the appointment of a Chief Electoral Officer and Deputy Electoral Officers;

I have no problem with that.

Here I have a problem. Why is the Minister intervening in the process to remove a band council member, when we are consistently being told that the Minister should no longer be involved in decision-making?

I had in fact begun to tell you about the many expressions of opposition to clause 32 of Bill C-7; there are quite a few that I didn't have a chance to mention, but it's important to take them into account. When we travel across the country, the idea is not just to attend the hearings, hear people present their briefs, and then pay absolutely no attention to what they've said. There is also a duty to ensure that the testimony and analysis presented are truly considered, and that government or opposition amendments are drafted to address the points raised.

I have been re-reading the summaries prepared by the Library of Parliament. The Tlowitsis First Nation in Nanaimo had this to say when it appeared at our 30th sitting:

Sub-clause 32(2) providing for election-related appeals to be “heard by the Minister” is even more worrisome. For any other government in Canada, a provision of this nature would probably be challenged. We are not aware of any leadership selection process that is subject to this kind of ministerial review. We wonder why the Minister is seeking this power. If the government is serious about the objectives of the Act, and particularly allowing bands to meet their specific needs and aspirations effectively, while avoiding defining the nature and scope of the right of self-government, it is reasonable to wonder how an appeal heard by a non-Aboriginal Minister unfamiliar with the nation's culture and community values could lend more legitimacy to an internal review process designed by the community itself.

That's what we have to consider about these criticisms. We have to let First Nations communities develop their own procedures, particularly as regards leadership selection. Of course, where there is a an appeal or an election review because certain irregularities have been identified--something that can happen to all peoples on this earth--then it is even more important that the appeal process be defined by the First Nations, and not by the government.

Mr. Bradford Morse, from the Law Faculty of the University of Ottawa, made similar comments. He expressed a number of reservations, not only about clause 32, but for clauses 32 to 36, because some the provisions there do not respect the First Nations' inherent right of self-government.

At our 31st sitting held in Nanaimo, the British Columbia Regional Vice-Chiefs' Bureau of the Assembly of First Nations was quite acerbic in its criticism of this Bill, and particularly clause 32. In this brief presented by the Assembly of First Nations, it said, and I quote:

In sub-clause 32(2), the requirement that all codes contain a provision whereby the Minister would hear appeals is problematic. An internal review mechanism, consistent with the traditional custom or rule of the Aboriginal community, could be a better, more legitimate alternative, depending on the community.

I believe the British Columbia Regional Vice-Chiefs' Bureau of the Assembly of First Nations has put its finger on an issue that has drawn criticism from many, albeit choosing its words very carefully. They say the customs and traditions of First Nations must be respected, so that their right to govern themselves can also be respected.

Á (1140)

But it is clear that there is no respect here for Aboriginal self-government and their ability to determine their own destiny, and decide for themselves what kind of processes they want to develop, including the appeal process. Again in this brief tabled in Nanaimo, the witnesses say, and I quote:

Appeals heard by the Minister do not necessarily respect the fiduciary duty that rests with the Crown.

That is a serious accusation; the government's fiduciary obligation is something quite fundamental, and now doubt is being expressed that sub-clause 32(2) is consistent with the Crown's fiduciary obligation.

They wisely say that they're having difficulty assessing the scope of these clauses, and especially the scope of the amendments. The brief goes on to say:

It is impossible to assess the impact of this clause without knowing the content of the proposed regulation.

That is exactly what we suggested earlier: we are not just making this up. Of course, we are using our intelligence to carry out our own analysis, but that analysis relies heavily on what we heard in our proceedings and what we read in the briefs tabled with the Committee. So, it says in the brief, and I quote:

It is impossible to assess the impact of this clause without knowing the content of the proposed regulation.

It also refers to clause 34, but we'll come back to that a little later.

So, as soon as the government decides to give the Minister or Governor in Council the power to set procedures or hear appeals regarding leaderships election through elections, we start having have problems, because there is the risk of being subject to legal proceedings that could be quite significant. In fact, so far all First Nations' representatives have said that: if we try to force this Bill on them and propose clauses like clause 32 on the process for appealing the results of an election, for example, with the exceptional powers being conferred on the Minister of Indian Affairs, they will go before the courts. And what will that change in terms of the current situation? Absolutely nothing, because presently the federal government and the First Nations are doing battle. A new case was even heard; they say the federal government, Mr. Chrétien and Mr. Nault are violating the rights of the First Nations. They refer to many rights that are violated by Bill C-11 or have been violated in the past, as a result of federal decisions. If we are seeking to multiply the number of legal proceedings, then we're certainly on the right track with this kind of language.

An hon. Member: Oh, oh!

Mr. Yvan Loubier: If the Parliamentary Secretary has something to say, I would ask that he stop making his comments when the mikes are turned off and start making them when they're on. I won't engage in a debate with you, particularly since I can't even hear you if you don't turn on your mike. Wait until your turn arrives to turn on your mike.

I would like to move a sub-amendment to the government's amendment; I will move it right away. I move that in sub-clause (2), after the words “Regulations made under subs-section (1) in respect of leadership selection may”, we add a paragraph that would read as follows:

That is the first part of my sub-amendment. The second part is to delete paragraph (b). I so move.

Á (1145)

[English]

The Chair: Mr. Loubier, while that's being written you have the floor.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, this is essentially the language I proposed earlier, albeit unsuccessfully, but I have taken some precautions this time; I checked with the Clerk who, being a man of great knowledge and wisdom, told me I am allowed to move such an amendment. I'm very pleased.

If I am moving this amendment, it's because I don't think we're being careful enough here. In this Bill, indeed from the very beginning, from the first clause up until the 32nd clause, clauses the Committee has been considering now for almost 100 hours, we are not paying adequate attention to the prerogatives of the First Nations with respect to self-government or their ability to make laws and determine on their own what procedures should apply in all respects.

We talk about self-government and about giving concrete expression to the inherent right of self-government and treaty rights, but we are not saying that we should be allowing those rights to be realized and taking them away at the same time.

There's something completely incongruous about this Bill, as I saw yesterday in the absence of my colleague, Mr. Bryden. Perhaps I could remind you of what I said yesterday in that regard. At some point, we say we're making progress. In the Bill, we provide for certain powers…

An hon. Member: Oh, oh!

Mr. Yvan Loubier: The Parliamentary Secretary is absolutely incorrigible; he is worse than ever.

We take some steps to make self-government a reality, and then we come along and say that Acts of Parliament will prevail. We give the band council certain powers, and then we take two steps backward and say the band council has powers, but the Minister has even more powers, because he will be deciding whether the band council lives or whether it dies, and determining the appeal process in cases of election irregularities.

An hon. Member: It's like Animal Farm.

An hon. Member: Oh, oh!

Mr. Yvan Loubier: Yes, it's the boomerang theory, of course, but the Parliamentary Secretary doesn't know that you have to watch the boomerang, because at some point, it might hit you in the back of the head and knock you out. That's what has been happening since yesterday. He shoots himself in the foot every time he opens his mouth; he says things that we happen to pick up and that provide additional fodder to criticize his attitude. He's been doing that for a while now. Yesterday I told him that with a slingshot, you have to aim in front of you, not behind you. But it looks like he still doesn't know that, because he is making the same mistakes all over again.

An hon. Member: You have to go in the right direction. Otherwise it's dangerous.

Mr. Yvan Loubier: That's what I meant: you have to aim in front of you, not do it so you get hit in the forehead. The Parliamentary Secretary should wait until his mike is on to engage in debate. We wait until the mikes are on to begin debate; when they're on, we say what we have to say. If the Parliamentary Secretary forgets that he has things to say when it's his turn to take the floor, then he obviously has a problem. Maybe he should take notes when his mike is off. That way, when his mike is on and it's his turn to speak, he can make his comments. But I would really appreciate it if he wouldn't make his comments on the side, but we can hear them. It's a real bore, and they have nothing whatsoever to do with the debate.

So, as I was saying, regarding the amendment I have moved, I am trying to reintroduce into this Bill the concept of respect for the First Nations' prerogative. That is no easy task, because a number of times, Mr. Martin and myself have both tried to secure recognition, in the body of the legislation, of the inherent right of self-government, for example, or to ensure the band councils are truly autonomous in every area and in every respect. That is how we should be dealing with Bill C-7. The idea here is not to replace one form of colonialist domination by another.

I was listening to one of our experts earlier who was saying that it used to be the Minister deciding instead of the band council, and that this is a considerable improvement because now the Governor in Council will be deciding. Give me a break! It's six of one and half a dozen of the other, as they say. We have a Minister making the decisions now, but in future, we'll have a group of ministers making decisions instead of the First Nations. What's the difference? We have a Minister making the decisions now, and in future, it will be a group of ministers making decisions for the First Nations. Wow! Let's celebrate! This is one big legislative accomplishment! What a fantastic improvement!

Á (1150)

Here we still have the Minister interfering with the procedures for appealing election results, in cases where there are irregularities. Give it up! We're not a bunch of bloody fools here! If that's what you think, you have a problem--a serious problem.

During consultations on Bill C-7, we heard from many witnesses whose intelligence cannot be questioned. The representatives of the First Nations, to begin with, have developed a keen sense of how to manage their affairs, through a combination of intelligence, pride and a taste for a good fight, because they want things to work this time around. You have been making their lives hell for so many years with your ridiculous policies that they are really starting to be fed up, and to top it off, you insult their intelligence by behaving like boors.

Would you say the representatives of the Canadian Bar Association and the Quebec Bar are people who know nothing about the law? Are the experts from the Aboriginal Bar Association people who know nothing? I guess only people on the government side, like Mr. Hubbard, know anything about life; he knows all about these things.

At least have the decency to accept rational amendments. They are deemed to be rational, as borne out through the considerable testimony we've heard in that respect, testimony that comes first and foremost from the people experiencing the reality of the First Nations on a daily basis--First Nations people and their leaders.

An hon. Member: Oh, oh!

Mr. Yvan Loubier: Could you please prevent him from bellowing, Mr. Chairman, because he is starting to get on my nerves, and when that happens, I get out my slingshot and let it rip, and believe me, I hit my target.

So, the people most directly concerned have made representations, and we have heard those recommendations. Now we have to translate what they said into something concrete. Some people here should learn to listen, because they seem to be all plugged up, particularly upstairs.

So, I was saying that these people came and provided testimony, and told us that they wanted real parameters that would result in true governance, and particularly the ability to exercise the inherent right of self-government. Yet we end up with a Bill which, once again, smacks of incredible colonialism, and gives the Minister--and now the Governor in Council is getting involved--the power to define regulations that we haven't even seen about things that are the sole concern of the First Nations.

This is none of your business! Mind your own business! That's not so difficult to understand. They're telling you to mind your own business, because it's their problem. They will be the ones to decide what works for their people. They will develop laws that apply to their people, because they were democratically elected, or elected based on the First Nations' traditions or customs. They are speaking for their people and consulting their people. So stop saying the First Nations never consult their people. They are more transparent than you are.

An hon. Member: This is a democratic Bill.

Mr. Yvan Loubier: There comes a point where you just can't keep on treating people like fools and insulting them.

You can insult me, Mr. Bryden. The Parliamentary Secretary and the Chairman can also insult me, but for heaven's sake, stop insulting the Aboriginal peoples. It's sickening! The United Nations considers it reprehensible. And it is reprehensible!

And you've gone even further than that. You are also in violation of the International Charter of Human Rights and the Canadian Charter of Rights and Freedoms, because clause 32 of the Bill is not even consistent with the provisions of the Charter of Rights and Freedoms. What you are doing is totally unacceptable.

The other day, I listed the articles of the International Charter of Human Rights that Bill C-7 is in violation of. You are betraying that Charter with this Bill. Just offhand, I would say there are eight.

But what do we hear you saying? You are telling us that you hold the truth. Oh, yes. You run roughshod over the First Nations' rights, you don't dare put a non-derogation clause in Bill C-7, you have been uttering absolute absurdities since hour 1 of the 100 hours over which we have been considering the Bill clause-by-clause, and you are refusing to properly participate in a debate when the mikes are on and when Liberal colleagues have been given the floor; no, you prefer to make absurd comments when the mikes are off, that everyone hears anyway, because you talk so loud! But there is a limit! This is utterly indecent!

An hon. Member: And the cameras.

Mr. Yvan Loubier: Yes, that's right; to make matters worse, you take away the cameras. These debates are no longer being televised. That's disgraceful!

It is a national disgrace to be here analyzing a Bill that nobody wants. You are lobbying the reporters. But we, too, have reporter friends. You strut around in front of the reporters saying that Bill C-7 has to be passed, because the First Nations don't know how to govern themselves, that they're not transparent, that they're not accountable. All you can do is sully them, sully their reputation with reporters, to try and sell a lousy bill that none of the First Nations wants. What is that if not indecent? It's absolutely sickening!

Á (1155)

At some point, you're going to have to wake up. The next Prime Minister, who will be taking over in eight months, has just woken up himself. Ignore that at your peril.

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I'm glad to participate in the debate on the subamendment moved by Mr. Loubier regarding the government's own amendment, G-11.11, which makes changes to clause 32 but fails to address the fundamental issues that have been raised about clause 32 by numerous presenters who came before the committee expressing their concerns, which were in part about the increased role of the minister and interference of the minister in the conduct of first nations in relation to governance codes.

The subamendment made by Mr. Loubier, which I appreciate is being circulated now, seeks to introduce the idea that there should be more control by band and council over the administration of these codes as pertains to the appointment of an electoral officer, or someone to oversee the electoral process for first nations. That should really be one of the aspects of the right to self-governance that should be considered and accepted by this committee, because surely it undermines the very idea of self-governance to impose codes of governance that the minister sees fit.

Some would say that it's not the minister dictating what those codes of governance shall be in first nations communities, but it's the minister who wrote this bill, and within this bill you find the very specific and prescriptive language as to what these codes must contain, and even the process by which these codes must be ratified.

So it wasn't this committee that wrote this bill or clause 32. It wasn't first nations who wrote this Bill C-7 or clause 32. It was the minister, under direction from the Prime Minister, we assume. We had no participation and no role in the crafting of this bill, even though the bill was brought to us at first reading, which should give reason to believe that there is flexibility associated with what the content of the bill will be in our reading of what that means.

The Library of Parliament did a research paper on my behalf regarding what it means to be given a bill at first reading, as opposed to at second reading. It was made clear that a bill has been adopted in principle after second reading. After it succeeds at second reading, a bill has been adopted in principle. Prior to that it's in a fluid plastic state. Prior to that it's open to amendment in very substantive ways, even up to and including introducing new principles or adopting aspects and principles to it. That's where it also gives us the opportunity, having this bill at first reading, to simply send the bill back, to simply say that we have canvassed the countryside, and the countryside is not willing to accept this bill as it stands, and it needs to be rejigged, redeveloped, and rethought.

So this subamendment seeks to address one aspect, which is maybe one-57th of the objections brought forward about the bill, because there are 57 clauses in the bill, and they are all overwhelmingly rejected and opposed by first nations across the county, individuals and leadership. It was overwhelmingly opposed by many non-aboriginal members of civil society who presented before the committee, including the main Christian churches in the country.

I have before me an ecumenical statement of church leaders on aboriginal rights from this spring, from their round table on self-determination and governance. I think it's useful in the context of clause 32, in accepting this subamendment, to read some of this, Mr. Chair:

On March 19, 2003, Church leaders met with representatives of the Assembly of First Nations, andthe Department of Indian Affairs, to discuss the proposed federal First Nations legislation that iscurrently before the House of Commons, including Bill C-7: the First Nations Governance Act.

Following these discussions, the church leaders in attendance agreed to share this message with the churches.

Â (1200)

These meetings represent only the latest step in a decades long journey that has seen the churches stand in solidarity with First Nations in their struggle to determine their own future. The churches supported the entrenchment of Aboriginal and treaty rights in the Constitution Act, 1982, and have advocated a nation-to-nation approach to reconciling and defining those rights. We believe the recognition and implementation of Aboriginal inherent and treaty rights, including the right to self-determination, is the key to healing the relationship between Aboriginal and non-Aboriginal people in Canada.

They go on to say,

We have serious concerns with the First Nations Governance Act. We believe it threatens First Nations’ inherent and treaty rights, and perpetuates a discriminatory federal policy, which the 1996 Royal Commission on Aboriginal Peoples concluded was responsible for the social and economic problems currently facing First Nations. We are also concerned that the legislation is being unilaterally imposed on First Nations, without their consent.

Let me tell you who's making this statement: Archdeacon Jim Boyles, the General Secretary of the Anglican Church of Canada; the Reverend Mark Lewis, the Moderator of the 128th General Assembly of the Presbyterian Church in Canada; the Reverend Dr. Ismael Noko, the General Secretary of the Lutheran World Federation; Don Peters, the Executive Director of the Mennonite Central Committee Canada; Monsignor Jean-Louis Plouffe, the Bishop of Sault Ste. Marie, Ontario; the Reverend Raymond Schultz, the National Bishop of the Evangelical Lutheran Church in Canada; and Anne Squire, the former Moderator of the United Church of Canada. They are all signatories. In fact, this is a signed copy of this declaration.

They say,

We are also concerned that the legislation is being unilaterally imposed on First Nations, without their consent.

As a result, in a reaffirmation of our solidarity with First Nations, we are calling for:

(a) a moratorium on all related federal legislation until the support of First Nations is secured;

--not just consultation; they're calling for consent and the support of first nations to any related federal legislation.

They continue,

(b) a non-partisan approach by all parties to the issues and concerns of First Nations,which we believe is essential to help bring about a new relationship with Aboriginal peoples;

(c) an approach to realizing genuine First Nations governance and self-determination which builds on the report and recommendations of the 1983 Special ParliamentaryCommittee on Indian Self-Government,

--which is the Penner-Jamieson report--

the 1996 Final Report and Recommendations of the Royal Commission on Aboriginal Peoples, and the 2000 Report of the Standing Senate Committee on Aboriginal Peoples.

They go on to say in the Ecumenical Statement of Church Leaders on Aboriginal Rights:

The rights of Aboriginal peoples are recognized in international law and the historic documents of this country. More importantly, they are also a moral issue that touches the heart and soul of Canada. The Royal Commission on Aboriginal Peoples called for a new relationship with Aboriginal peoples based on mutual recognition, respect, responsibility, and sharing. Bill C-7 takes us further away from this new relationship. It is unacceptable in this stage of the relationship with First Nations to unilaterally impose legislation that will impact on their rights.

Today, we stand beside our Aboriginal brothers and sisters, and call on the federal government to abandon Bill C-7, and to embark instead on a process that recognizes and respects the rights of First Nations.

It is not just the “AFN club of chiefs”, as one editorial stated, and some of the redneck, hillbilly opinions of some of the members opposite that are coming forward now. It is not just first nations leaders who oppose it, but many significant non-aboriginal members of civil society reject and oppose Bill C-7, including the General Secretary of the Anglican Church of Canada; the Moderator of the Presbyterian Church in Canada; the General Secretary of the Lutheran World Federation, who is the senior Lutheran representative in Canada; the Bishop of Sault Ste. Marie, Ontario; the National Bishop of the Evangelical Lutheran Church in Canada; and a former Moderator of the United Church of Canada--all of whom met with the Assembly of First Nations and Department of Indian Affairs officials to come to this conclusion in their opinion on Bill C-7.

Â (1205)

So I think if the Liberal government tested public opinion on--

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, through this sub-amendment to government amendment G-1.11, I have attempted and I'm still attempting to improve this Bill, by considering the premises that should have informed Bill C-7 as it was being drafted. It's important to note what Mr. Martin just said regarding the statement made by Christian Church leaders with respect to Aboriginal rights, because in the Church's statement on Aboriginal self-government, they talk about the need to refer to three reports, three real reports that were written following real consultations. They weren't phoney consultations like the ones we saw on Bill C-7, on which they've been harping on since we began examining this Bill. There were no real consultations on this Bill. So, get that out of your head and stop treating us like a bunch of idiots. There were no consultations.

However, as regards the 1983 report of the Special Parliamentary Committee on Indian Self-Government, the members of the Committee were Aboriginal. They included Chief Roberta Jamieson. There were both Aboriginal and non-Aboriginal members on that special Parliamentary Committee on Indian Self-Government. As early as 1983, they showed the way in terms of the real precepts and premises that should guide us in developing a Bill on First Nations governance.

I see that my colleague, the Member for Hochelaga--Maisonneuve, Réal Ménard, has just joined us. I'm very pleased to see him here, because he is an ardent defender of rights and justice. He offered his friendship a number of times when he appeared before you, but unfortunately, you refused it. He is a good friend, and I'm sorry that you refused him when he extended a hand.

But let's get back to business, as they say. The United Church of Canada says we absolutely must refer to the 1983 report and to the 1997 report of the Royal Commission on Aboriginal Peoples, as well as the report of the Standing Senate Committee on Aboriginal Peoples tabled in 2000. There is a kind of continuum in those reports, that should guide us today in developing any bill and regarding every step of the extensive initiatives we were invited to take several years ago, particularly through the report of the Royal Commission on Aboriginal Peoples.

As regards the amendment I have moved, which is intended to recognize the right of self-determination of the Aboriginal nations and to recognize that they, and they alone, must decide on procedures relating to leadership selection, appeals, and so on, I would just like to quote some excerpts of the report of the Royal Commission that deal with how we should go about redefining our relationship with the First Nations. I think it would be well worth taking a closer look at this, because this provides a guide, a guide that should have served in drafting clause 32, as well as the 31 clauses that precede it. Here is what it says in the report:

We have outlined major steps needed to transform the relationship between Aboriginal people and other Canadians from its present state of tension and failed initiatives to one of cooperation and growing successes. The steps are numerous and may seem daunting. But they are logical, they are progressive, they reinforce each other, and they constitute a workable plan.

And there is no mention in that workable plan of Bill C-7 on governance, which contributes nothing in terms of jointly redefining relations between Aboriginal and non-Aboriginal people in Canada. Then it goes on to say, about this workable plan:

The federal government should begin the cycle of renewal with an act of national intention--a new Royal Proclamation.

They weren't talking about Bill C-7 on governance which isn't worth the paper it's written on. They go on to say:

The Commission is calling for a sharp break with past practices, mired as they are in fallacies about Aboriginal people and their rights, tarnished as they are with failed negotiations and broken promises.

And what have they got now with Bill C-7? We haven't reduced tensions; we've only increased them.

Â (1210)

We are still breaking the promises that stemmed from the Erasmus-Dussault Commission, that called on us to tackle a vast agenda of change, a positive work plan to redefine our relations with the First Nations and allow them to rebuild on a solid footing that should never have disappeared when the Europeans arrived. They're not telling us to impose lousy bills like Bill C-7 on them. The Minister is deciding for the First Nations, and now the Governor in Council is getting in on the act. Now we'll have a group of ministers deciding for the First Nations. It's just unbelievable. Continuing, they say:

We propose a new Royal Proclamation, stating Canada's commitment to principles of mutual recognition, respect, responsibility and sharing in the relationship between Aboriginal peoples and those who came later.

Where, in Bill C-7, do we see that first step called for by the Royal Commission on Aboriginal Peoples, a Commission that carried out its work over several years, cost several million dollars, and called on the intelligence of all community members, both First Nations and non-Aboriginal communities? That first step is an important one. So where, in Bill C-7, do we address that first request?

And here is the second part of the Royal Commission's plan:

Parliament should enact companion legislation to give these intentions form and meaning and provide the legal instruments needed to implement them.

Three major pieces of legislation would be needed:

An Aboriginal Treaties Implementation Act, setting out a process for clarifying and modernizing existing treaties and making new ones, and establishing regional treaty commissions to facilitate and support the negotiation process.

They're not talking here about a process of imposing things on the Aboriginal peoples, but of a process of negotiation between equals, nation to nation, based on the principle of respect for the dignity of the participants.

An Aboriginal Lands and Treaty Tribunal Act, establishing a body to clear the backlog of specific claims and act as ombudsman for the new comprehensive treaty-making processes.

So, we need to expedite the negotiations, and develop modern treaties based on the needs of First Nations, and especially expedite the process for specific claims. They didn't ask us to set a cap of $7 million for specific claims, as is proposed in new provisions under Bill C-6. They didn't ask that it be determined, right from the outset, that specific claims would not exceed an amount of $7 million. Since when does a court of law make its ruling when proceedings begin, before it has even heard the case, or heard the arguments of the parties? Why is the government decreeing that there will be a cap of $7 million? What is this masquerade?

The third piece of legislation needed to implement the work plan proposed by Erasmus-Dussault, and to restore the hope of First Nations which, for once, saw the possibility of realizing their aspirations in the findings of the Commission, is:

An Aboriginal Nations Recognition and Government Act…

So, as you see, it talks about Aboriginal nations recognition and government, not about a municipal style of government for First Nations, which is what we see in Bill C-7, where it talks about inspecting restaurants to be sure they're not crawling with vermin. Come on! This talks about an Aboriginal Nations Recognition and Government Act; it couldn't be clearer, it seems to me.

…setting out the process and criteria for recognizing Aboriginal nations, acknowledging, on an interim basis (until treaty negotiations are complete), their jurisdiction over core issues within their existing territories, and providing financing.

So where is the financing, and where are the negotiations on the jurisdiction of a third order of government, as advocated by Erasmus-Dussault? There's many a slip 'twixt cup and lip. This really isn't what we were expecting.

Consider the spirit that should have informed clause 32, just like all the others:

These steps should be undertaken in close consultation with national Aboriginal organizations and provincial and territorial governments.

They didn't talk about pretend consultations, or tabling Bill C-7 in the House at first reading, knowing full well that it wouldn't change much. Indeed, practically none of our amendments have been agreed to.

The Commission also said:

While consultations are underway, a public education campaign should be launched to promote understanding on the part of all Canadians.

Â (1215)

[English]

The Chair: Merci, Monsieur Loubier.

A recorded vote on subamendment 1 to G-11.11, on page 198.

(Amendment negatived: yeas 3; nays 6)

Â (1220)

The Chair: Mr. Godfrey, on the amendment.

Mr. John Godfrey (Don Valley West, Lib.): I have a simple question on the amendment itself—I hope it's a simple question—for the officials. Under the proposed amendment to paragraph (c), where it authorizes the person designated by the minister to require any person to attend, compel the production of documents, and dismiss an appeal, etc., for those things, what is the penalty for not doing so? Is it spelled out somewhere else in the bill, or is there a general understanding somewhere else in the law? What happens if you choose not to do that?

Mr. Paul Salembier: It's a good question. A person who, for example, refused to attend after having been subpoenaed to do so or refused to produce documents after having had an order compelling their production would be in contempt of the tribunal. This tribunal doesn't have the inherent contempt powers that section 96 courts would have. And I would think, although I don't have experience in this area, that probably the process would be to bring an application to the court for an order compelling them to comply with the subpoena, and then if they didn't comply they would be in contempt of that court.

Mr. John Godfrey: Thank you very much.

The Chair: Thank you, Mr. Godfrey.

Mr. Martin, on the amendment.

Mr. Pat Martin: Thank you, Mr. Chair.

Speaking on amendment G-11.11, I'm concerned that we've failed to address some of the issues brought to our attention by the many presenters who came before this committee in the hope of having their voices heard. We've still failed to give serious attention to the many, many issues that were raised by many presenters to the committee.

For instance, Mr. Chairman, we were cautioned by the B.C. regional vice-chief of the Assembly of First Nations, who said that it was problematic to require that all codes contain a provision that the minister must hear appeals. In addressing that issue, we've only extended the problem; it's a minister, or someone the minister designates, who will hear these appeals. Having an internal review mechanism consistent with the community's traditional custom and rule may be preferred, and be more legitimate in the eyes of the community in question. I think that is the key point here, the legitimacy and the acceptance or non-acceptance by the very first nations that these provisions will affect.

Ministerial appeals do not necessarily meet the fiduciary obligation of the crown either. In other words, the minister, or his designate, is being forced to take sides in this case. It could be argued that the losing side will appeal that the crown was not acting in the best interests of the former, so it also raises a fiduciary question.

When AFN Vice-Chief Satsan appeared before the committee and discussed clauses 31 to 34 on regulations and orders, he said “We feel that the bill should not discriminate between bands, and that all bands should have an equal choice whether or not to adopt the regulatory scheme”. So he recommended that subclause 32(1) be amended and replaced with language such as “The Governor in Council may make regulations providing for the matters with respect to which a code may be adopted under section 5, 6 or 7”, but with no reference to paragraph 5(2)(b), as the current subclause 32(1) makes.

He also recommended that subclause 32(2) be deleted. You'll notice, Mr. Chairman, that was one of the amendments that our party moved, in deference to the recommendation by Vice-Chief Herb George Satsan in British Columbia, when he suggested that subclause 32(2) be amended. He didn't ask for it to be complicated further, or for the complexity of subclause 32(2) to be expanded, which is what we've done here in putting in a whole new set of questions—raised in part by a member opposite—regarding what sanctions to impose if somebody refused to cooperate with the authority vested in the person designated by the minister to “require any person to attend for examination under oath”.

What if a person said “Stuff it. I don't have any respect for your process or for this manufactured tribunal; I'm not going to attend, and I'm not going to give testimony, and I'm not going to produce the documents required here.”? What is the point of having a law without any enforcement of the law? What is the point of having all of this prescriptive, complicated, detailed language, knowing full well that it doesn't have the power of law to enforce? What are you going to do—threaten the person?

Â (1225)

The Chair: Mr. Martin, would you like Mr. Salembier to repeat what he told Mr. Godfrey? I think that would clarify the problem you have with it.

Mr. Pat Martin: No, I'd rather not interrupt my train of thought right now, Mr. Chair, because I have a number of issues I want to raise within the limitations of the ten minutes I have to raise them in.

We've been concerned from the start that dealing with a person designated by the minister is just the same as having the minister himself be the ultimate arbiter.

I recognize that subclause 32(2) does respond in some way to the concerns raised by many people who objected and protested against 32(2), but instead of dealing with the issue in a satisfactory way, which would be to simply withdraw the five lines of 32(2), or to delete 32(2) altogether, we're adding to the complexity and the detail and the prescriptive nature of the whole bill. Now we have paragraphs 32(2)(a), (b), (c), and then subparagraphs 32(2)(c)(i), (ii), and (iii). We're getting into a career of micromanaging first nations in every aspect and detail of how they conduct themselves.

The subamendment that Mr. Loubier proposed at least sought to introduce an element of some recognition to tradition and culture in our dealing with this review of leadership selection processes.

We still haven't fundamentally addressed the regulations applicable in the absence of a code. We've been unable to convince the government that it's fundamentally wrong to impose codes of governance; it's contrary to the very principle of self-government to be entertaining the methodology by which we're going to impose these things.

This is what's so absurd about this process we're going through now, in that we seem to be missing the major points and giving great scrutiny to the lesser points of how to modify, change, and address these issues to make them less offensive. There seems to be a recognition that subclause 32(2) was offensive, but instead of doing the logical thing and simply deleting the clause, we have the government coming forward now, with somebody on behalf of the minister drafting qualifying language such that if it is offensive that the minister is the ultimate arbiter in cases regarding the review of election appeals, then somebody will be designated by the minister to do it. In other words, the minister shall still select the person.

It would have been a logical thing to try to address the concerns raised by the many people who were opposed to the bill. I should point out that I've recently had a communication from the National Aboriginal Veterans Association, which states clearly that aboriginal veterans are not in favour of the impending act of Parliament, better known as the First Nations Governance Act.

I hope to have time to enter this into the record at some point, Mr. Chairman. It's a very compelling letter by a gentleman named Angus Stevens, speaking on behalf of first nations veterans, who challenges the committee to “Light a flame, and let it burn in your heart. We need to be inspired. People of Canada, let us move in a direction where life, liberty and justice is nurtured and protected as a sacred right.” He goes on to say that there is nothing civil about this impending legislation, that we should be obliged to conduct ourselves in a civilized manner, but “...there is nothing civil about this impending legislation”. He is very, very critical of the First Nations Governance Act, which he says will severely limit rights, and “it must not pass through Parliament”. He goes on to say on behalf of first nations veterans that “The government has not even consulted us on this piece of legislation”.

Â (1230)

Mr. Chairman, I propose a subamendment to G-11.11 to answer some of the concerns raised. I suggest that paragraph 32(2)(c) read: “authorize a qualified person who has been pre-approved for this purpose by the First Nations Council of Elders”. That would be the change I would recommend to government amendment 11.11.

The Chair: Mr. Martin, on subamendment 2.

Mr. Pat Martin: I sense there's a growing support for my subamendment, as it resonates, or as people have time to give thought to what I'm trying to propose here. I think it would mitigate some of the offensive nature of this clause if we replaced reference to the minister with reference to a council of elders. This is out of respect to traditions and customs and norms that already exist in the community, where great respect is afforded to the council of elders.

If there is anyone who should be charged with the responsibility of choosing an objective and neutral third party to scrutinize an election or hear appeals associated with the conduct of an election or of the tallying of votes or whatever it may be, whether the problem might be with the polling stations or the practice of the polling booths or whether it's the election ballot boxes, whatever the complaint might be in regard to the election of band chief or council, I think this is a perfectly valid role that might be afforded to a council of elders in terms of the competence or the respect in which elders are held in the communities. It's a logical place to look for this oversight.

There's no real parallel for the actual institutional role that elders have in first nations culture. There's no parallel in western society. We can look to our unelected Senate, I suppose, as the chamber of sober second thought, but the role of elders in the community goes beyond the role that we have for our Senate. It's an integral and fundamental aspect. The wisdom that comes from elders I think we've all been inspired by, if not in our personal lives over the years, certainly just in the context of dealing with this bill. Some have advised us we shouldn't go forward with any piece of legislation as it pertains to first nations until we consider the impact seven generations before and seven generations ahead. That is the rule.

This means anything we do, whether it's trying to assess the impact on the environment or assess the impact on the human resources of the community, no piece of legislation should be entered into until we've seriously considered not only seven generations back to review the history and the wisdom of the people who came before, but also the impact it will have on seven generations in the future.

I envy them that approach to decision-making, because we're making decisions not based on the impact of seven generations ahead. Often we're making decisions based on the political expediency that we can measure in terms of months, not in terms of years, and certainly not in terms of generations and certainly not in terms of seven generations.

Incorporating my subamendment, which seeks to recognize the importance of elders in aboriginal communities, would institutionalize in legislation the practice that already exists in communities. It wouldn't add anything to the authority of elders, certainly, but it would acknowledge the authority and the position they already hold, which is a theme that should be prevalent throughout this whole bill, Mr. Chairman. It should be acknowledging the inherent rights that exist already, not seeking to outline and define rights that now will exist stemming from this bill.

I think it's very much in keeping with what we know about successful and healthy first nations communities and the role that elders play, and the role that elders have played in recent years in dealing with the social crisis that exists for many aboriginal youth both on reserve and off reserve.

Â (1235)

Many of the successful models of dealing with at-risk children, at-risk aboriginal youth, have been built around a reaffirmation and a renewed commitment to traditional values, whether it's traditional religious spiritual belief or traditional practices led by the elders. The elders are as concerned as we are at the state of aboriginal youth and their lack of connection to the workforce and at many of the predictable social consequences that come from being marginalized and being not included in the mainstream economy. One of those predictable things is the secondary economies that are developing because of the lack of inclusion in the mainstream economy.

I'm speaking specifically of the gang culture that's developing in the inner city of Winnipeg. If there's no hope or no prospects of successful involvement in the mainstream economy, secondary economies flourish. And some of those secondary economies involve criminal activity. We often look to the elders and try to bring the elders into our attempts to provide guidance to youth who may be lost, who may be falling through the cracks in terms of the opportunity for prosperity that our children find so readily and so easily in a great wealthy nation like Canada.

As to reference to the elders, it will be the first place anywhere in this bill that we even acknowledge the existence or the role of a council of elders in first nations communities. I think this is a logical place to introduce this concept, because we're looking for objective and well-respected persons within the community who may act as an oversight committee involving the fairness of an election process and the appeals that may stem from irregularities, or alleged irregularities, in the election process.

We don't have to look further. We don't have to look to the minister's office to find an honest man. I think that would be the wrong place to look. It would be like Diogenes walking down the streets with a lantern in the middle of the day seeking out an honest man. Well, you don't have to look outside of the community to find an objective third party who could fulfill this role quite capably, to choose a person who would be the one to conduct the examination, etc., and the review of documentation associated with the election.

This council of elders would be the one that would designate a person. I suggest it should be a person again, Mr. Chairman, from a pre-authorized, pre-approved list. This is what my subamendment also reads. If we have time to have it circulated before my time is up, it would be helpful, I think, for all of the members to be able to give it proper scrutiny. But we also suggest that the person selected by the council of elders should be from a pre-qualified, pre-approved list of individuals who have not only the qualifications, but have the respect of the community—not just the band and council, but the community.

I notice they're circulating my subamendment now. I regret that it's almost the conclusion of my remarks on this subamendment. People won't have it in their hands for long, but I think they'll find it useful. They'll find it to be a constructive and logical subamendment that deals with two concerns: one, trying to introduce tradition and culture into our dealings in this bill; two, the qualified person who should be designated by the band of the council of elders should be a pre-qualified person from a list of pre-qualified people, and those deliberations should be made before the election takes place.

Â (1240)

I think it's only logical that this is one of the things that perhaps should be in the election code of the band and council. Somewhere within that election code there should be a list of pre-qualified individuals who would be acceptable to be the person designated to conduct any kind of examination or review of the election process.

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Thank you, Mr. Chairman.

Before making my comments, I would like to welcome Chiefs Charlene Sunday, Darren Bonaparte and Thomas Dan Johnson of the Aswesasne Mohawk First Nation. Welcome to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources. We are very honoured to welcome you here. We would have liked to receive you in somewhat happier circumstances, because it certainly is no fun doing battle against a government that just doesn't get it. But you will see that this is the democratic process that is being offered up. We would have liked you to be sitting here with us, at the table, so that as equals, we could debate the issues surrounding the future of the First Nations in Canada, but unfortunately, the system won't let us.

We did it previously with joint groups composed of both Aboriginal and non-Aboriginal Canadians to define the kind of consensus that has operated since 1983, but it would seem that things have changed.

The Chair: Mr. Loubier, I would just like to clarify something.

If the chiefs were sitting here with us, as equals, it would be difficult for them because we are just a committee of backbenchers. I hope that when we talk about dealing with each other as equals, we mean government to government. But we are not a government. I don't think it's right to suggest that if the chiefs sat down with the Committee, they would be dealing with us as equals. I don't think that's so.

Mr. Yvan Loubier: I don't share that opinion; not in the slightest.

We are a committee of the House of Commons. We act independently of the Executive, and the whole point of our being here is to ensure that the democratic will of the people is done. When you say that we are only a committee of backbenchers, well, I think that's a horrible thing to say. That means that the work we're doing here is totally pointless, that the government will go ahead and do whatever it likes, and if we really wanted to do something constructive here, the government would have to be seated at this table and tell us what it has decided to do. It's unbelievable to hear comments like that.

I guess that means that the 100 hours we have spent discussing a bill as lawmakers, are of no importance. I guess you're saying that the legislative role of a Parliament is not important, and that the joint committees we may be part of with the Senate are not important. So why are the taxpayers spending so much money if all of this is unimportant and pointless?

It makes me absolutely sick that you said we're just a committee of backbenchers. We are the representatives of the people. We were democratically elected to be a counterweight to the Executive. If the chairman of a committee is incapable of understanding that fundamental role, then I think we have a problem.

I say “as equals”, because we represent the people, and they, too, represent their peoples, who are recognized by the United Nations. I still say they could be here with us, debating the issues as equals.

The Chair: They are more important than we are. That was the message I was trying to convey.

Mr. Yvan Loubier: More important than us? More important than a Parliament?

The Chair: No, more important than a committee of backbenchers.

Mr. Yvan Loubier: I would remind you that the Committee is an extension of the House of Commons. I get the feeling you don't really understand your role as Committee Chairman, the role of the committees in general, or the role of the people who are here. In any case, I'm sure we'll have an opportunity to discuss this again.

In my opinion, the First Nations' representatives, the chiefs who are here today, understood perfectly well what I meant. When you're trying to redefine relations between the federal government, playing a fiduciary role on behalf of the Crown, and the First Nations, you have to ensure that the people most directly affected are part of the decision-making and policy-making process, rather than simply listening to the debate we are having among ourselves, when they are in fact directly concerned. I'm quite sure that that is what they understood, because unlike all of you, they don't need someone to draw a picture to understand what's going on.

Let's come back to the sub-amendment moved by my colleague and friend, Pat Martin. I think it's an excellent idea, and I even experienced this myself while on a tour that I organized in Quebec. We went to meet with the representatives of the four Innu communities involved in the negotiations. Even members of the non-Aboriginal communities appeared before this committee composed of Bloc québécois Members of Parliament. We wanted to hear what the First Nations involved in negotiations thought of the draft agreement between the Government of Quebec and the four Innu nations, and to get input as well from the people living in those areas. And I realized, to my great surprise--because we know very little about the traditions and customs of the Aboriginal peoples, given that we've been denying their existence for the last 130 years and prohibiting the Aboriginal peoples from practicing them--just how important the role of the Elders is in First Nations communities.

Those of you who were here about two weeks ago will have heard the story I told about something that happened during that tour. There was a problem between two communities, the Innu community and the non-Aboriginal community, with respect to the use of what is called a controlled harvesting zone near Sept-Îles. There were tensions and friction between the two communities. So I asked a member of the Betsiamites First Nation who was present why there was this tension. And the First Nation representative answered saying that the chief and the members had been consulted, but that they had forgotten to consult the Elders. The Elders are important, and need to be consulted because they are often experienced guides, spiritual guides who can enlighten decisions or ensure that ways are found to resolve conflicts.

So, I think it's an excellent idea to refer in the Bill to the Council of Elders, as representing an essential customary authority in most First Nations communities. As I recall, Mr. Martin, we already tried, several weeks ago--I believe it was in the first few hours of clause-by-clause--to emphasize the importance of the Elders and ensure that Bill C-7 would recognize their influential role in the decision-making and policy-making process of the First Nations. But like all the excellent amendments and sub-amendments that we have moved here, those proposals were rejected, despite the fact that the point was made, not only in the representations we heard here, but in the report of the Erasmus-Dussault Commission and the excellent report of the Special Committee on Indian Self-Government in Canada issued in 1983, that the traditions and customs of the First Nations have to be respected. There is also a need to show respect for those institutions that still exist or that existed before the first Europeans arrived here and decided that they had the best institutions and the best system of democratic representation or participation.

We have to stop claiming that we hold the truth, because that is absolutely wrong. The people who aspire to form a third order of government in Canada are in fact the people who hold the truth, because they are the ones who want to take control of their affairs and revive institutions that were laid waste over 130 years of the Indian Act. They also want to find solutions to the many problems afflicting most Aboriginal communities in Canada in such areas as education, health care and economic development. But they need to be given the means to do this.

Â (1245)

And the first step in providing them these means, is to recognize that the Aboriginal nations are nations that have a right of self-determination and can therefore decide on their own, based on the institutions they favour, their customs and their traditions, just how they want to organize themselves in terms of developing the laws and regulations that will apply to their people.

It is essential to show respect for such institutions as the Council of Elders, for example, and to reflect the importance of such institutions in bills that claim to want to gradually create among the First Nations the conditions that are needed to promote new self-government agreements, ensure proper management of the reserves, etc. And yet all we see in this Bill is an attempt to turn the First Nations into municipalities and a denial of their fundamental rights.

We need to take a new approach. Every report since 1983, including the last report issued by the Senate in 2000--even though I realize that some people have no respect for those institutions--has said exactly the same thing. We have to recognize First Nations' institutions. We have to ensure that the work of developing processes, procedures and institutions is carried out by the First Nations, and the First Nations alone. Procedures relating to leadership election and election appeals are none of our business.

Earlier on, I was listening to a Liberal colleague, whom I won't name to avoid starting any personal disputes here, unlike what some other people are doing, who was comparing what is suggested in the Bill C-7 with what election observation committees do when sent to countries considered to be banana republics or dictatorships, and where there have been irregularities in past elections…

Â (1250)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chair.

I can sense that there's growing support for this amendment, in part due to the compelling arguments put forward by my colleague from the Bloc, who has put in a very succinct way and with great economy of language the arguments why it's necessary and desirable for us to introduce and encourage it. In fact I hope this starts a bit of a trend, to foster wherever we can some semblance of goodwill by recognizing and acknowledging the role of elders in first nations.

We have people actually in the audience today who are witnessing this particular.... I don't know what you call what we do here any more. It can't really be called the work of the committee any more, because very little work actually gets done. We exchange views and then the government rubber-stamps whatever they wanted all along. But we do have witnesses with us today, who I wish could participate in this debate and give us their views about how important they feel making reference to a council of elders would be.

I think it would be viewed as a gracious gesture of goodwill if this committee would incorporate the concept of acknowledging the role of elders in communities somewhere in this legislation. So far in our previous attempts the Liberal members of the committee have refused to vote in favour of that.

Representatives today of the Mohawks of Akwesasne are with us. Chief Charlene Sunday, Chief Darren Bonaparte, and Chief Thomas Johnson are observing these proceedings today. I wish to acknowledge them and to welcome them to these proceedings, as frustrating as it must be to be relegated to the peanut gallery while the work of the committee is going on here.

I say for the record again that I regret that this committee voted down a motion I had made, supported by the Bloc and supported by at least one member of the Liberal Party, to expand the representation of this committee to include three individuals from first nations who would have voice but no vote at this committee, so that we could have their input and their participation in these deliberations. But that too was voted down by the ruling party. Unfortunately, the very people whose lives are affected by this bill are relegated to observer status as these things are again being done to them. That's what's been offensive about virtually every aspect of the bill to date.

In speaking about the role of elders and the importance of making reference to elders, or allowing elders a role in our dealing with the election of council members above and beyond the role that currently exists, but recognizing that role, it would be appropriate to quote from a letter sent by an elder, in this case an aboriginal veteran, who made the point that “The First Nations Governance Act will severely limit...rights, and it must not pass through Parliament.”

This is the wisdom of an elder who introduced himself by saying that the aboriginal veterans “...have been tested and tried in battle during the First World War, the Second World War, the Korean War, Vietnam and more. We fought for the freedom and the rights that most of us enjoy to this day. As a matter of fact, we have been allies even before this country was formed. For instance, my great grandfather, Chief Shawanapinas (Peter Stevens was his Christian name), fought with General Wolfe on the Plains of Abraham, in Quebec.”

This may or may well not be received, but it simply cites the historical connection.

A voice: It's not only a victory; it's a defeat also.

Mr. Pat Martin: I will refrain from any comment on that in deference to those who may not agree. But the Iroquois and the Huron in ancient times, certainly at the time of original contact, aligned themselves and were warriors on behalf of white society on both sides of that struggle.

The question this elder asks is “Do we end up losing human rights, treaty rights, and a breakdown of family ties? Without family, our society will suffer. What will we stand on? What will become of us? We must preserve the family unit, our society...” our traditions, our culture, within our country.“Most of us have shared these long-held beliefs and values. We are well aware that the backbone of our country lies within the framework of the family.” By extension, I believe he's talking about the traditional framework within communities.

Â (1255)

My subamendment to the government's amendment regarding the election of council members would include and recognize the important, crucial role that elders have in keeping together the structure of first nations communities.

Now that we've been made aware of this and now that by this amendment we've been given the opportunity to incorporate a reference to a council of elders, I think we would be really negligent in our duties to not avail ourselves of this opportunity and to provide some remedy to at least that aspect of the injustices associated with this bill.

I think there are people seriously considering supporting this amendment, and, again, what a great way to end the day, as we wind down to one o'clock, when we're supposed to adjourn. If in fact this one subamendment would succeed in spite of the frustrations we've had associated with others, I think it would be well viewed and acknowledged across the country.

I guess I would ask the members opposite what they see as the possible downside of this recognition of the role of elders in communities. I can't image how they could find fault with this, although I'm sure they're taking guidance from others. It's not their own thought processes that really matter at this particular committee meeting. They're waiting to rubber-stamp the clauses written by the minister on their behalf, or someone else to do their thinking for them. But if they were thinking clearly, I wonder how they would find fault with the idea that the council of elders would authorize a person to require other people to attend for examination under oath, etc., and that person shall be from a list of pre-approved, pre-qualified people, from a list being kept as a part of the election code undertaken by and ratified by that first nation community.

You would think that virtually any election code would have an appeals process, and in fact they do across the country. Chief Earl Ermine of the Sturgeon Lake First Nation made a presentation to this committee when he argued that subclause 32(2), as it currently stands, usurps the rule of band custom law and allows the minister to usurp the rule of band custom law. Well now the minister's designate would be usurping the rule because this amendment has been put forward.

Chief Earl Ermine says “In our situation where we have the band custom election act, we also have provisions in that election act for a tribunal to deal with appeals.”

The nature and the structure of that tribunal is none of our business. It's been up to the Sturgeon Lake First Nation to establish the tribunal that's satisfactory to them.

He goes on to say that in the proposed legislation, the minister decides whether the appeal is upheld or thrown out. Or in this case now, it's the minister's designate. It begs the question as to why would the minister have this authority to impose his views and his wishes on the first nation and the problems that might be associated with the infractions to the election code?

He says “I have some major concerns about that. When you're dealing with those kinds of issues, where do you draw the line on what responsibility the minister has over our lives?”

I think he's asking that as a rhetorical question, and the answer is self-evident. For anybody who believes in the right to self-determination and the right to self-government, the minister should have virtually no role to interfere with the lives of first nations. Legislation should only be viewed as enabling legislation under which first nations can flourish and prosper and conduct their own affairs. That should be the limit and the extent of the interference of Parliament into the lives and the affairs of first nations. To do anything else is contradictory to the stated intentions. It's contradictory to our obligations. It's contradictory to Supreme Court rulings recognizing and upholding the inherent right to self-determination, and it's contradictory even to--

· (1300)

The Chair: Thank you, Mr. Martin.

A recorded vote on subamendment 2 to G-11.1, on page 198.

(Subamendment negatived: nays 7; yeas 2)

The Chair: Colleagues, we are going to adjourn after the next vote. Would you like to do something that's never been done in committee? If someone wants to do something innovative in committee, ask for unanimous consent that we apply the vote just taken to the vote before us. Do you feel like doing something interesting? Requested by....

It's refused by Mr. Loubier.

We'll have a recorded vote on amendment G-11.11, on page 198.

(Amendment agreed to: yeas 7; nays 2)

The Chair: The meeting is adjourned.