[Recorded by Electronic Apparatus]
Tuesday, November 21, 1995
.1109 
[English]
The Chairman: I call the meeting to order.
It has been ordered that Bill C-107, an act respecting the establishment of the British Columbia Treaty Commission, be now read a second time and referred to the Standing Committee on Aboriginal Affairs and Northern Development, and that's why we have it here.
As I mentioned informally before the meeting, the way we would like to proceed - and if there are any objections, please let me know; this will be your decision, members of the committee - is clause by clause, to identify the clauses we all agree upon. This process should take a very short time - five minutes, hopefully.
On any of the clauses that any of the members wish to debate, discuss, amend or question, we will ask you if you agree that this clause stand and we will come back to it after. But we will only come back to the clauses we have withdrawn. Does anyone have a problem with that?
.1110
Clauses 1 to 3 inclusive allowed to stand
Clause 4 agreed to on division
Clause 5 allowed to stand
Clauses 6 to 21 inclusive agreed to on division
Clause 22 allowed to stand
Clauses 23 to 25 inclusive agreed to on division
The Chairman: In all fairness to the opposition, we did go pretty fast. So, Marg, if you find there's one that you approved and you would like to call back, then certainly I would be prepared to reconsider it and I would ask the members at that time to reconsider it. We want to be fair with you.
Ms Bridgman (Surrey North): Thank you.
On clause 2 - Definitions
Ms Bridgman: At the last meeting we had, we had a couple of concerns that we brought up with the assistance of legislative counsel. One of them was in relation to ``first nation.'' But I think that was satisfied with the questioning that went on at that time, so we can leave that.
The other concern I have is on the summit. I am not exactly sure whether we should be discussing the summit here or in paragraph 5(3)(b), and that's the reason I held this clause open. I do have some questions in relation to this clause.
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The Chairman: Ms Bridgman, would it help if we took a bit of time to talk of the summit? Maybe that would help you in the other inquiries you have.
Ms Bridgman: Yes, possibly. Maybe I could be a little more to the table to indicate where I'm coming from here.
I have some concerns about the process of this bill, from the point of view that it's based on an agreement that was done in 1992. It was my understanding until just prior to this meeting that this bill has to mirror that agreement. Any amendments to this bill violate the agreement, and therefore we cannot amend it. I have some difficulty with the fact that the House of Commons, the legislative body, is dealing with something we can't really amend.
So based on that principle, on the summit situation, I believe we identified at the last meeting the fact that the meaning here does not reflect entirely what the meaning was in the agreement. I want some clarification on that.
I'm sorry, Mr. Chairman, I'd like to discuss that on clause 5.
The Chairman: Do you have concerns about clause 2?
Ms Bridgman: I'd like to ask the witnesses a couple questions, then.
The Chairman: In reference to clause 2?
Ms Bridgman: Yes.
The Chairman: Carry on.
Ms Bridgman: On clause 2, how did the bands actually agree to participate in the process?
Ms Christine Cram (Director, Program Development and Claims Support Directorate, Department of Indian Affairs and Northern Development): They submit a statement of intent to the British Columbia Treaty Commission. That's how they indicate their willingness to participate in the process.
Ms Bridgman: But somehow that has to go to this summit body, doesn't it?
Ms Cram: No, the summit is their representative.
There are three principals: there are the two governments, plus the summit is really their representative group of first nations amongst the principals. They submit a statement of intent to the British Columbia Treaty Commission, and by doing so, they accept that the summit will represent them amongst the principals. They couldn't ask for some other organization to represent them as one of the principals.
Ms Bridgman: But my understanding from the last meeting when we were talking with the summit group was that the membership in that group varies.
Ms Cram: That's right.
Ms Bridgman: Is there any sort of process that if a band is actually going to agree to participate in the process...? What if they do not agree with their representation on the summit?
Ms Cram: By submitting their statement of intent, they're accepting that the summit will represent them amongst the principals. They may choose for other purposes to have some other organization represent them.
Ms Bridgman: All right.
Ms Cram: For some other discussions such as education discussions, or on a political level, they may decide that they wish to be represented by some other group. But once they submit their statement of intent to the British Columbia Treaty Commission, they are accepting that the summit will represent them amongst the principals.
Ms Bridgman: Even if the membership of the summit is not the same, because that membership seems to change....
Ms Cram: It's fluid, as many organizations are, but for the purposes of the treaty processes, they are represented by the summit.
Ms Bridgman: If they don't agree to have the summit represent them, then they can't participate in the process.
Ms Cram: That's right.
Ms Bridgman: How many bands have actually agreed to participate?
Ms Cram: There have been 47 statements of intent submitted, but that's not just one band because they group together. I think it represents something like 70% of the first nations in B.C.
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Ms Bridgman: And how many haven't? How many do we have left?
Ms Cram: I think it's something like 125 out of 196.
Ms Bridgman: So for those bands that don't agree, whatever their reasons - it might be the membership or the summit or whatever - how will their claims be handled, or will they be?
Ms Cram: There is no other process. This is the process identified to deal with treaties, and governments are hopeful that all first nations will participate over time.
Ms Bridgman: So in British Columbia, if they don't participate in this process, there is no other option for them.
Ms Cram: No, there is not for negotiating a treaty involving both governments.
Ms Bridgman: Was the fact that there was no other option for them addressed and accepted by those bands that did not participate?
Ms Cram: The idea was for governments to get a process of working with first nations in place to deal with treaties. We've got 70% in the process. In fact, we have more in the process already than we had originally anticipated.
Ms Bridgman: So it's anticipated that we'll try to get the others to participate in some way or another.
Ms Cram: We hope that over time, as first nations see progress achieved, they will decide to participate. There are some groups that weren't keen to do so at first but that have now entered the process.
Ms Bridgman: Thank you very much.
Clause 2 agreed to on division
On clause 3 - Purpose of Act
The Chairman: Are there any questions or amendments?
Ms Bridgman.
Ms Bridgman: Clause 3 was to establish the British Columbia Treaty Commission. The B.C. Treaty Commission has already been acting, right? It has its commissioners. How long has it been been active for now?
Ms Cram: The commissioners have been active under Order in Council since 1993. The commission itself hasn't been acting because it hasn't been created.
Ms Bridgman: Right. So I'm trying to get to what gave them the mandate to start acting before -
Ms Cram: Order in Council appointments of the individual commissioners.
Ms Bridgman: All right.
I would like to bring in legislative counsel here to comment on whether or not it is proper for the commissioners to have been acting before this process of a statute actually being passed. I think I'm asking whether or not there should have been a bill, or is Order in Council an effective approach?
The Chairman: I'll allow that question.
Ms Diane McMurray (Legislative Counsel, Legislative Counsel Office, House of Commons): By Order in Council, the executive at the federal level or the provincial level can set up any body it so wishes. Of course, if that body needs money it has to come through an appropriation.
To give you an example of this, England's Criminal Injuries Compensation Board - the whole board; all of its powers, all of its rights, all of its privileges - was set up by an executive Order in Council under the royal prerogative. The moneys were provided by Parliament pursuant to a white paper agreement that had been developed between the executive and legislative branches.
It's an unusual way to govern, but it's perfectly legal to set up a body by Order in Council. And as I say, if that body needs money to function and could not function without that money, obviously the body couldn't do anything without the appropriate statute that would grant it the funds needed. So there's no problem in that regard.
Ms Bridgman: Thank you very much.
.1125
Clause 3 agreed to on division.
On clause 5 - Purpose of Commission
The Chairman: Ms Bridgman.
Ms Bridgman: This is where I would like to discuss the summit in order to get this thing straight in my head.
I'm looking at paragraph 5(3)(b), where it says the commission shall ``allocate funds''. I'm not sure whether I want to talk about this summit or the funding here, but I had some difficulty with the allocation of funds to ``enable first nations to participate in the negotiations, in accordance with the criteria'', etc.
This was also where I thought an amendment might be a good idea in this bill. At this point, we do not just have first nations that would possibly not be in a position of being ready to negotiate and would therefore be eligible to have this or have the funds necessary to be involved appropriately. What about third-party people who would have a vested interest in the negotiations? Where are they getting the money? Or why does that not make all parties prepared, be they first nations or otherwise? That was one of my concerns here.
The other concern I had here was with the way this reads. To my mind anyway, there's a possibility of a misinterpretation. I would think this would apply to first nations who are going back to this agreement in intent: that to negotiate would apply to those first nations that agree to negotiate through the B.C. commission. The way this reads, it would have been anybody, any nation, that agrees to negotiate in any way, be it directly with the federal government or through this process.
You clarified earlier that there's no other option, is there?
Ms Cram: Maybe I'll tackle that question first, and then go back to the third-party question.
The way the funding is allocated is in accordance with criteria established by the principals. The first stage of the process - that is, for the first nations that prepare their statement of intent - there is no funding provided. A group of first nations prepares their statement of intent and then submits it. So they've already indicated their acceptance of the process and their willingness to participate in it.
From then on the British Columbia Treaty Commission can allocate funding by stage - they have a six-stage process - according to criteria established by the principals.
Ms Bridgman: Okay.
Ms Cram: Do you want me to...?
Ms Bridgman: No, not just as long as this money is directed directly at the persons participating. That was one of my concerns.
All right, now for the poor third-party people.
Ms Cram: Yes, 80% of the funding provided by the BCTC is in the form of loans. The idea is that first nations will repay these loans with their settlement funds.
The other thing is that the Government of British Columbia has funded the participation of municipalities in the process. There's a regional advisory committee in Smithers. Governments have said they will assist with printing costs and travel costs in order that people may participate in it. Also, the treaty negotiating advisory committee - that's a province-wide body - gets $150,000 a year to support their participation.
Ms Bridgman: Could you just reiterate the comment you made in relation to the municipalities?
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Ms Cram: The Province of British Columbia provides funding to municipalities. It participates in a treaty advisory committee. I don't know the amount of money that British Columbia provides.
Ms Bridgman: All right. So that fund is not coming through this clause here -
Ms Cram: No.
Ms Bridgman: - even though they're part of this clause.
Ms Cram: None of the money I've just spoken of comes through the British Columbia Treaty Commission.
Ms Bridgman: That's one of the concerns that's arising in British Columbia. The municipalities are seeing themselves as a third party. They can't get to the table, or whatever. They are not getting involved. But then there are other third parties, I would think.
So basically we're saying that third parties, other than first nations, that have a vested interest in these negotiations would have access to funding through some source.
Ms Cram: Through governments.
Ms Bridgman: Through governments.
Ms Cram: Yes.
Ms Bridgman: So they can prepare themselves as adequately as this group is being prepared to negotiate.
Ms Cram: Yes. I guess there is no guarantee up to this point. I can only say that we have funded the treaty negotiation advisory committee, which is a province-wide body. B.C. is funding municipalities through a treaty advisory committee, and our governments are providing support to the regional advisory committees. The groups apply to governments to seek that funding.
Ms Bridgman: Okay. Just as long as there's an avenue there for third parties.
Here's the other thing. In the estimates, it indicates that there's $15.393 million allocated to the B.C. Treaty Commission. How much of that money is at the disposal of the B.C. Treaty Commission? The $15 million is to enable first nations to participate. So how much of that money would be at the B.C. Treaty Commission's disposal?
Ms Cram: For its own operations, or in terms of giving to first nations?
Ms Bridgman: The estimates indicate that this money is to provide first nations to participate in negotiations.
My concern would be how they are getting that money. Is it through the commission? Does the commission have control over that, or is the government giving it to them, or what?
I think we're back to this process you were explaining earlier.
Ms Cram: The B.C. and Canadian governments share the amount of money that is provided to the commission. Canada provides 60%; B.C. provides 40%. The commission enters into funding agreements with first nations. Of the total amount of money, 20% is provided for contributions, and a contribution funding agreement is entered into.
For the loan agreements, Canada enters into the loan agreement with the first nation because the debt is payable to Canada, under the direction of the B.C. Treaty Commission.
In terms of the actual number....
Ms Bridgman: Then the $15 million that the federal government is giving is not necessarily the total amount of money that the B.C. Treaty Commission will have for preparing first nations to negotiate?
Ms Cram: That's right.
Ms Bridgman: The British Columbia government is also giving some money.
Ms Cram: Yes.
Ms Bridgman: Do we have a total amount of moneys that is allocated for this particular aspect in the funding?
Ms Cram: I'm just trying to figure out my numbers here. Would you like to look at last year?
For 1994-95, I'll just speak about the total amount provided for the purposes of supporting negotiations with first nations. The total amount of loans was $15 million. For contributions, it was $3.7 million.
Ms Bridgman: Was there a breakdown?
Ms Cram: Canada provides all the loans. Then, in the contributions, Canada provided $2.2 million and B.C. $1.5 million.
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Ms Bridgman: My other question here is to ask if this money aspect is legal, because there was no statute. But I think we've addressed that in the previous one. Possibly I would like to address this to legislative counsel again. Given that the British Columbia Treaty Commission is responsible for allocating this money that they've received federally and provincially according to this particular clause for negotiations and the estimates, shouldn't there be some sort of a royal recommendation attached to the bill or something like that?
Ms McMurray: There is.
Ms Bridgman: All right, this summit thing is the only thing left. I think we questioned last time the way it's written here and the way it's in the agreement, and it's my understanding since talking to others and legislative counsel that it would seem to stand on its own. But I think that's a little weak there with the discrepancies.
So those are my points. Thank you, Mr. Chairman.
Clause 5 agreed to on division
On clause 22 - Principals may amend Agreement
Ms Bridgman: I'm back to this business here about amending the agreement. I was a little concerned that it's very difficult at this table, and in this legislature, to amend this particular agreement. But, according to this clause, the principals, which are the representation from the federal government and the representation from the British Columbia government at this summit, which is fluid, can amend this agreement. If we amend it, it has to go back to these people to change the agreement. Is that correct? I'm talking process now here.
Ms Cram: You're talking about if you amend the draft bill.
Ms Bridgman: If we put an amendment in our bill here, Bill C-107, because of that agreement in 1992.... I don't quite know what happens to our bill or -
Mr. Brian Keogh (Acting Senior Counsel, Comprehensive Claims, Department of Indian Affairs and Northern Development): Basically, the agreement creates an obligation on the part of government to bring forward legislation. It, of course, can't bind Parliament to pass legislation. Parliament can pass whatever legislation it wants. The principals can amend the agreement, but again that amendment would oblige government presumably to bring forward an amendment to the legislation that would come before Parliament.
Ms Bridgman: I understand it coming up that way, the process whereby the principals can make an amendment to the agreement, not the bills, and then it goes into the respective houses and a resolution is passed by this summit. But what if the respective houses amend their bill?
Mr. Keogh: The houses have the same ability to amend the bill now as they have to pass or not pass this legislation to begin with. It's government that has an obligation to bring the -
Ms Bridgman: All right, so it doesn't have to go back to the principals to be agreed to for -
Mr. Keogh: No, but if the act were amended and if the amendment were contrary to the agreement, then government would be acting in breach of its agreement.
Ms Bridgman: All right. So basically what would happen is that if the principals made an amendment it would come up to this House and Bill C-107 would be amended. It would actually go into Parliament. It wouldn't be an Order in Council or a cabinet decision or that type of thing.
Mr. Keogh: It would depend on whether there was a fundamental amendment or if the amendment was the type that required a change to the legislation.
Ms Bridgman: So, in other words, it would have to be a change in intent or something like - -
Mr. Keogh: I'm not sure that all of the agreement required government to legislate. There may be aspects of the agreement that were interim requirements, but if it was something that went to the actual functioning of the treaty commission, it would require an amendment in both Houses and a resolution of the Senate. By the agreement, the parties couldn't affect what the treaty commission was doing or derogate in any way from what the legislation requires the treaty commission to do.
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Ms Bridgman: Okay, so it does have to come. Thank you very much.
The Chairman: Are you satisfied with the responses you had and are you prepared to move on?
Ms Bridgman: I think so, on division.
Clause 22 agreed to on division
Clause 1 agreed to on division
The Chairman: Shall the title carry?
Some hon. members: Agreed.
Ms Bridgman: On division; I might as well be consistent.
The Chairman: Shall the bill carry?
Some hon. members: Agreed.
Ms Bridgman: On division.
The Chairman: Shall I report the bill to the House?
Some hon. members: Agreed.
The Chairman: We are adjourned.