[Recorded by Electronic Apparatus]
Thursday, October 31, 1996
.1106 
[English]
The Chairman: Order, ladies and gentlemen. I want to reconvene this subcommittee's hearings on Bill C-25, the Regulations Act.
Our first witness, with the Canadian Labour Congress, is Mr. Dave Bennett, national director of health, safety and environment.
Welcome, Mr. Bennett. I want to thank you, sir, for taking the time to come this morning. We welcome your comments.
Mr. Dave Bennett (National Director, Workplace Health, Safety and Environment, Canadian Labour Congress): Thank you, Mr. Chair. I'm delivering this submission on behalf of the officers of the Canadian Labour Congress, who have signed the submission before you. What I propose to do, since time is short, is to read the submission but omit some passages of detail to leave some time for discussion, comments and questions, if needed.
The summary of the CLC recommendations for changes to the bill are as follows:
1) there should be no exemptions from the regulatory process except in clearly defined emergency situations;
2) a code of practice with the force of law on the drafting and writing of regulations should be appended to the act;
3) referenced documents, material and standards should be subjected to the regulatory process and should be declared to be a part of regulations, with the force and authority of law;
4) explicit limits should be placed on what sorts of documents, material and standards, and their origin, can be referenced in regulations; and
5) lists of persons, places, products, substances and other things should not be exempted from the regulatory process, nor from parliamentary scrutiny of regulations.
The CLC represents 2.2 million union members in both public and private sectors across Canada. All of our members are affected by federal regulations, whether as citizens, workers or consumers. This is particularly important with regard to those regulations that confer rights on citizens or that protect us from social, industrial or environmental hazards. Regulations are a great social equalizer, and a society that is unregulated exposes its members to sources of hazard and social power against which citizens cannot otherwise protect themselves.
We welcome the opportunity to appear before the committee. We also welcome the intentions of Bill C-25, at least as they are stated - namely, to modernize regulations; to streamline the regulatory process, enabling regulations to be put into effect more easily and swiftly; and to clarify the law.
In some ways the bill fulfils these aims, but in other ways it fails to do so. Generally, the bill sets down a procedure called the ``regulatory process'', but its way of ensuring that regulation-making is streamlined is to give the government power to subvert or short-circuit the very process the bill lays down. There are other ways, which we will elaborate on, in which the regulatory process fails to ensure the regulations do the job they are supposed to do.
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We will make comments on the relevant clauses in order, drawing attention to both positive and negative aspects of the provisions of the bill, but referring in particular to those areas where the government has, so to speak, given itself too much power at the expense of Parliament.
Subclause 5(1) gives the Governor in Council the unqualified power to exempt regulations from the regulatory process. In the next two subclauses, the government gives itself the power to extend the regulatory process, which, assuming the regulatory process is adequate, works against streamlining government procedures. The next subclause offers the public some safeguards that regulatory goals will be protected and that cost and delay will be avoided, but there is no binding obligation to fulfil this requirement, nor is there any remedy or sanction when the obligation is not fulfilled.
The government is to exercise its powers to exempt regulations from the regulatory process, taking into consideration the importance of regulatory goals such as safety, health, the environment and sustainable development, yet this is not a clear legal obligation, and neither is it clear how useful this requirement will be. It is quite possible to preserve regulatory goals explicitly yet to gut those provisions and substantive requirements that would enable those goals to be achieved. We can have regulations aimed at promoting health, yet giving no indication of how these goals will be achieved and no clue as to what measures will count as for or against promoting health.
Subclause 6(1) requires that regulations are clearly written. This is a laudable aim. Unless regulations are accessible and intelligible to the public, they do not know what rights and protection the law provides.
Currently, federal regulations are very badly drafted. Regulations are badly organized, a fact not recognized in Bill C-25, and they are written in language best described as Victorian high legalese - tortuous, obscure and opaque. A public that thus does not know its rights and protections does not in fact have such safeguards.
The government has long been aware that its legal language is antiquated. It has employed and consulted with experts, some foreign, to address this state of affairs. But unless the government's aims are enshrined in a legislated code of practice, justice department lawyers will continue to churn out the same old stuff. Calling a regulation a regulation rather than a statutory instrument is only a tiny beginning. Some ideas for a legislated code of practice are set out in annex 1 of our submission.
The definition of regulation as a ``rule of conduct'' seems to be correct on the face of it, but it needs to be made explicit that this embraces performance and specification standards, i.e., those that do not fall outside the definition of a regulation. This issue is examined in greater detail in our brief.
Subclause 7(3) is a muddle inherited from the Statutory Instruments Act, whereby a regulation does not have to be reviewed by the justice department, yet giving the government the power to nullify any regulation not so reviewed. In particular, the justice department does not have to review any changes in fees or any changes to lists of persons, places, products, substances or other things, and any minor or technical amendments. Yet these are often the essence of regulation.
In the brief, we give you a number of concrete examples where these factors are highly relevant to the content of regulations.
Further, many of these lists and numbers were arrived at after long and difficult consultation, often on the basis of a multipartite consensus. If there were some guarantee that the importance of these items were brought to the attention of the relevant parliamentary committee scrutinizing the changes, there would be no criticism. But there is no such guarantee, a crucial omission.
Clause 16 deals with the incorporation into regulation material produced by persons or bodies other than the regulatory authority. Some of the clause reflects established practice, i.e., referencing technical standards, standards produced by professional bodies, and codes of practice such as the fire code. There is a welcome addition in that documents can be referenced, as amended, from time to time so that documents that are periodically updated do not have to be updated by changing the regulation every time an update occurs. The CLC has long argued for this change in consultations over the regulations under part II of the Canada Labour Code.
But there is a big danger in clause 16. It allows the referencing of documents that are political - that is, they lay down policies - and not technical in nature. For instance, the International Standards Organization, ISO, produces documents that incorporate policies, procedures, practices and managerial decision-making, not merely traditional technical standards. Yet these documents were not formulated by some democratic practice involving all the parties - for example, representatives of governments centrally as well as representatives of workers and communities, who may be directly affected by ISO standards. On the contrary, such standards are often framed by business people even when they go to ISO meetings nominally as the representatives of a government or a professional association or a government delegation. This is in marked contrast to a United Nations agency such as the International Labour Organization, which is a tripartite body comprising representatives of governments, workers and employers.
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Take the case of workplace environmental auditing. Probably in ISO 1410 to ISO 1412 - and actually these standards have now passed into international law. So far these ISO standards do not contain any tangible criteria against which to measure workplace environmental performance, nor is there any requirement to reference other ISO standards where environmental performance standards might be laid down. In other words, there is no indication of what managers actually have to audit. Only formal audit procedures are laid down. There is, for instance, no mention of sustainable development criteria, no reference to the aim of reducing natural resource inputs or to the aim of energy efficiency, and no requirement to measure performance in the technical area of pollution prevention.
All these are recently established environmental management functions gleaned from Agenda 21, which arose out of the United Nations Conference on Environment and Development held in Rio in 1992. Further, it is now the official policy of the Canadian government, in its pollution prevention strategic framework, to have the Canadian Standards Association put forward pollution prevention in all relevant ISO standards. The CSA is simply not doing this, nor is the position being pushed by the Canadian government representatives on the CSA. Thus, referencing ISO 1410 to ISO 1412 in regulations in order to require environmental auditing would not be helpful.
It would be difficult for the government to tell in any particular case whether or not the standard was, on the whole, being adhered to. The reason is that this series of ISO standards was not designed for the regulatory context. And in any case, the standards lack the substance that would make audits more than a mere formality. There is no substitute for spelling out the actual environmental auditing requirements in the body of the regulation. And some of these may well be reflections of the content of ISO standards. But simply referencing ISO standards is not constructive. Such a practice would only amount to the illusion of regulation.
The moral of this story is that the Regulations Act must make it explicit that documents and standards will only be referenced when it is clear that they refer to tangible technical standards or when it is clear what procedures have to be followed in order to achieve compliance and in order to facilitate enforcement. In general, reference standards that refer to policy should not be allowed to be referenced; policies should be embodied in the text of the regulations themselves.
There is a further difficulty over the referencing of policy standards in regulations. When proposed regulations are scrutinized by parliamentary committees, and such regulations reference policy standards, the committee concerned cannot make comment on only a part of the reference standard. All it can do is to criticize the reference standard en bloc on a ``take it or leave it'' basis. This is another good reason for embodying policies in the text of the regulation and not incorporating them by reference.
A related point is that the work of some international bodies is not suitable for referencing in regulations since the bodies are, for differing reasons, not accountable enough to be regarded as sources of legitimate public policy. The maximum residue limits produced by the Codex Alimentarius Commission, for instance, are not based on science, as the Codex makes explicit. They often differ widely from established Canadian MRLs and the Codex does not have the same sort of legitimacy as the ILO as a United Nations agency.
If referencing the work of bodies that are not governmental or neutral is to be permitted, a form of contracting out of regulatory power, then there has to be some mechanism whereby interested parties have some effective voice in determining whether the work of such bodies is adequate and appropriate in the particular regulatory setting. Or take again the provision that a regulation may incorporate by reference material produced jointly by the regulatory authority and the government or government agency for the purposes of harmonizing the regulation with other laws.
In the environmental areas, these could be documents produced by the non-elected staff of the Canadian Council of Ministers of the Environment. Though they may have the blessing of provincial governments, they are not embodied in the laws of every province, sometimes not in any province. The result is to bypass the democratic process of regulation-making and to incorporate documents into regulations that do not have practical regulatory force.
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Clause 19 says that:
- Material does not become a regulation for the purposes of this Act because it is incorporated by
reference in a regulation.
- On the face of it, this provision is outrageous because it suggests that referenced material is not
part of a regulation and does not have the force or authority of a regulation. Referenced
materials would be reduced to the status of a voluntary standard, guideline or non-mandatory
code of practice. By the same token, referenced material would not have to go through the
regulatory process.
What clause 19 may have wanted to say is that a referenced item does not become a regulation by reason only that it is referenced in some regulation or another. So it needs to be made clear that, one, reference material, including documents and standards, is just as much a part of the regulation as any of its other provisions; two, the regulatory process applies to a reference material as well as the regulation itself; and three, reference material has the same regulatory force and authority as the regulation itself.
Paragraph 26(g), allowing the Governor in Council to withhold publication of a regulation, is an arbitrary and unwarranted power. It is absurd to suggest that the publication of regulations could have any of the dire effects implied in this passage. In general, exemptions from the regulatory process should only be allowed under clearly defined emergency situations. Even then, it is not clear that this power is required because the government can exercise powers through Orders in Council.
Our appendix deals with the language of federal regulation, a very important aspect of Bill C-25. We suggest, in order to ensure that regulations are clearly written, we need a legislated code of practice that sets down the rules that must be met if regulations are to be intelligible; i.e., truly accessible to the public.
This could have the following provisions. Number one is a set of rules about the length of words, sentences and paragraphs. Two is the avoidance, as far as possible, of the use of technical and legal terms. The definition sections could give legal, technical meaning to common sense terms and not as at present, the converse. Number three is rules about the flow of regulations - a neglected point. For example, the text of regulations proceeds from general to particular items and from more important to less important or more detailed items. Fourth is a rule that provisions dealing with a single topic are all grouped together in a single passage or a series of passages. It should not be necessary to comb through the entire regulation in order to know the rules on a single topic. Repetition of material is better than dispersal or dissipation. Currently, repetition is not allowed. Finally, fifth is a program for the compulsory re-education of all justice department lawyers who fail to abide by the rules.
Mr. Chairman, I think the thrust of our brief is really twofold. It notes that there are some administrative and drafting faults in the bill, which I hope the committee will turn its attention to; and secondly, there are some policy issues relating to the nature of government power and the advisability of incorporating certain documents into regulations policies issues, which in our view are just as important as the administrative and drafting issues that we've tried to draw your attention to.
The Chairman: Thank you very much, Mr. Bennett. We'll now pose some questions, if you don't mind.
Mr. Lebel's not here. Perhaps, Mr. White, you could start. Ten minutes, please.
Mr. White (North Vancouver): Thank you, Mr. Chairman.
Mr. Bennett, can I take it from your presentation that in a general sense the Canadian Labour Congress is concerned about accountability. I would like to read you a sentence from the MacGuigan report, which is thought to be behind part of the enactment of the current legislation. It said:
- For parliamentary democracy is a system of government which requires that the executive be
responsible to the legislature and that both be accountable to the people...
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Mr. Bennett: The answer to that is yes. The questions of accountability form one central focus of the presentation that we've put to the committee, but I think there are two aspects to it. One is the relationship between the government or, as the document puts it, the executive, and the elected members of Parliament who are responsible for the scrutiny of regulations. That's one aspect.
The second aspect is that in the provisions for referencing materials, there is the very strong possibility that documents will be referenced that then have the force of law but have not themselves gone through any process of democratic decision-making or accountability.
Mr. White: The Standing Joint Committee for the Scrutiny of Regulations shares your concern in that respect. I'd just like to concentrate a little more on the actual publication of regulations. You didn't specifically mention this - or you did slightly in passing - and I'd just like to probe into it a little more deeply.
How do you feel about the exemption from publication in the Canada Gazette of certain classes of regulations and the dissemination of information by other means? Has the Canadian Labour Congress taken a position on that?
Mr. Bennett: No. To be honest, we haven't thought about that, but I think that as a general rule if something is important and it has consequences for public policy or if there should be an opportunity to respond to government plans, then, yes, the conventional methods of publication should still continue.
However, the government comes out with a large number of administrative items for which I personally don't see the need for the solemn process of gazetting, which of course now applies to all government activities, large or small, major or trivial.
Mr. White: Thank you.
The Chairman: Thank you, Mr. White. Mr. Lebel.
Mr. Lebel (Chambly): No.
The Chairman: Vous n'avez pas de questions?
Mr. DeVillers.
Mr. DeVillers (Simcoe North): Thank you, Mr. Chairman.
Mr. Bennett, the comments in your brief about incorporation by reference weren't clear to me. Are you objecting to the process of incorporation by reference or do you just want to make sure that what is incorporated is appropriate?
Mr. Bennett: Yes, the second point is certainly true. We are concerned that material may be referenced that is not good public policy and that has not been arrived at by any sort of democratic process, but we don't object to the referencing of technical material, which is a major and traditional part of regulation-making activity. In fact, it's hard to see how some regulations could be implemented without referencing technical documents.
Mr. DeVillers: Your brief also makes reference to the review that the Standing Committee on the Environment and Sustainable Development did on the Canadian Environmental Protection Act. There was a whole debate at that time on the value of regulatory control or voluntary compliance. What do you think about that? How would these changes to the Regulations Act affect that debate?
Mr. Bennett: I think there's one set of arguments about the advisability of public policy that incorporates practices, codes of practices, guidelines, and expressions of intention. When it incorporates those into regulations or legislation and at the same time it's quite clear that these have no regulatory force, there's one debate about whether or not that is a good thing...but there is another debate.
It's the debate that we have tried to address in the submission, and that is, should you incorporate documents and standards that in practice have no regulatory force even though it's the intention of parliamentarians that they should have? The example we gave was from the International Organization for Standardization, where the content of the documents is such that even though legislators may intend to give those documents a regulatory force, in fact and in practice they are unenforceable.
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We're suggesting that there are two questions here, not one. First, should you put voluntary standards into legislation? Second, what sort of standards can in fact be enforced by a regulatory authority?
Mr. DeVillers: Thank you, Mr. Chair.
The Chairman: Mr. Kirkby.
Mr. Kirkby (Prince Albert - Churchill River): You made some comments indicating that there should be guidelines for drafting for the justice department lawyers with respect to regulations. You indicated that there should be guidelines to limit the length of sentences, words and paragraphs, and that legalese should be pulled out. What if, in the view of somebody, guidelines were breached? What would be the consequence on the regulation if that were found to be the case? Would it be enforceable? Would it be valid? Or is it ruled invalid or...?
Mr. Bennett: The point at which the rubber hits the road is the scrutiny of regulations and the procedures for passing regulations into law. As we see it, the time to match the regulation against the code of practice is at that time.
Mr. Kirkby: That's all well and good, but if, as you say, to simplify these things...if the drafters can say it is as simple as they can make it, you're saying there should be no consequence to breaching those rules.
Mr. Bennett: No. I'm saying that Parliament should give itself the authority to see whether the code of practice is being breached. Actually -
Mr. Kirkby: Okay. But what if it goes through and in the view of Parliament there is sufficient drafting and clarity and then it gets out into the public and somebody says the rule was breached? Is there any consequence?
Mr. Bennett: I don't think there can be, because otherwise you're going to clog the courts with people protesting, for technical reasons, that a regulation isn't really a regulation at all. I don't think you can do it.
Mr. Kirkby: So these are just suggestions for parliamentarians and drafters rather than anything that would have any binding force. Is that correct?
Mr. Bennett: I think it's a bit more than that, because -
Mr. Kirkby: No, it's not.
Mr. Bennett: - we're saying that parliamentarians ought to have a very large degree of authority over the regulatory process that in fact, according to Bill C-25, they don't have. I don't see anything like a legal vacuum in the fact that you have a code of practice that the regulators or the regulatory authority must ensure is implemented when regulations are put into effect.
Mr. Kirkby: So every time regulations came forward, wouldn't the argument then...? One group of individuals who perhaps don't like the substance of the legislation will jump up and down and say, it's not clear, it breaches the rules. The other side will say it is clear and it doesn't breach the rules, so it should be passed.
Where are the objective standards and the enforceability and all of that kind of thing? All you're getting into is another political debate. Are we not just moving back to where the Department of Justice officials are at the present time? They're indeed making a greater effort in all new statutes and in legislation that comes forward to make them simpler and clearer and to put them into plain, modern language. Is that not what we're ultimately driving at?
Mr. Bennett: Yes, but I'm also saying there are examples within Canada of good drafting of legislation and regulation. Second, you seem to be suggesting that the CLC's proposals amount to a messy situation.
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Mr. Kirkby: What I'm suggesting is, when you're putting forward guidelines and there's no enforcement mechanism, really all you have is what you have now - people attempting to do a better and better job of putting forward clear regulations. Is that not the case?
Mr. Bennett: My response is that simply because a system is not going to be 100% successful, that's not a reason for dismissing it. I'm saying there's a very real problem here. Confederation took place in 1867, at a time when all of the legal influences on Canada came from the upper middle class of the United Kingdom. This tradition has continued for well over a century, and our regulations from the point of view of intelligibility, elegance and clarity are a disgrace.
I'm saying we ought to think of some serious ways of doing this. If you could find some legally binding way of doing this that doesn't in fact subvert the regulatory process, then we'd all be in favour of it. I don't think you can, but at the same time, doesn't something have to be done about this?
Mr. Kirkby: My concern is that you put forward these guidelines and they're not enforceable. What are we really doing other than what everybody is trying to do at the present time, anyway? It's exactly what you're suggesting, to have all regulations clear, intelligible and readily understandable.
The Chairman: Thank you, Mr. Kirkby.
Mr. Bennett, just following on the clarification and intent, you say on page 1:
- The government is to exercise its powers to exempt regulations from the regulatory process,
`taking into consideration the importance of' regulatory goals such as safety, health, the
environment and sustainable development [Section 5(4)(c)]; yet this is not a clear legal
obligation. Nor is it clear how useful this requirement will be. It is quite possible to preserve
regulatory goals explicitly; yet to gut those provisions and substantive requirements which
would enable those goals to be achieved. We can have regulations aimed at promoting health,
yet giving no indication of how those goals will be achieved and no clue as to what measures
will count as for or against ``promoting health''.
Mr. Bennett: I'll give you a topical example. As a result of the United Nations conference in Rio and the Brundtland report of the 1980s, we now have the term ``sustainable development''. It's defined in Canadian legislation as measures that enable the current generation to meet its own needs without compromising the ability of future generations to meet their own needs.
I'm suggesting that definitions like that incorporated into legislation are really not helpful. Legislators really have no idea about which things are going to count as cases of sustainable development and which are not. For example, you have very prominent Canadian environmentalists taking part in delegations going to China to give business advice on the development of the Three Gorges dam. To suggest that the Three Gorges dam counts as a case of sustainable development makes the whole concept totally ludicrous.
So my point is that simply putting your aspirations into an act is no guarantee whatever that the legislation or regulations will embody those principles. You lack tangible criteria for deciding whether the regulation does in fact meet the aspirations or whether it goes contrary to it.
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The Chairman: You feel tangible criteria should be included in the regulations, is that it?
Mr. Bennett: I think it's a very big issue. It's a big issue of principle, and it's something that doesn't relate only, or even predominantly, to Bill C-25.
I would make the observation that when you do get administrative acts - and an example is the Canadian Environmental Assessment Act - they suffer from the fact that there is no policy incorporated into the legislation. So it's quite possible that projects would go through a very elaborate government procedure of environmental assessment, but then the decisions made on the basis of the assessment are not guided by any policy at all. The environmental assessment becomes an expensive and elaborate exercise. It in fact doesn't make any difference to the implementation of public policy, because the policy against which environmental assessments are matched is totally absent.
The suggestion that you actually should bring policy issues into an administration act such as Bill C-25 is something I think this committee should seriously look at. It implies that if you don't put the policy in, all you're doing is producing simply a mechanical act, but also - and from our point of view, more importantly - you're allowing policy issues to invade the act in a way that presumably was not the intention of the legislators.
We've given examples of cases where the government has the power to incorporate standards that are inappropriate policy standards from the point of view of parliamentarians.
The Chairman: Right. Thank you very much.
Mr. White.
Mr. White: Thank you, Mr. Chair.
Mr. Bennett, in your brief under annex 1, ``The Language of Federal Regulation'', I was quite intrigued by your second point. It says:
- 2) the avoidance, as far as possible, of the use of technical and legal terms: the ``definitions''
section could give legal, technical meaning to common sense terms, not, as at present, the
converse;
Mr. Bennett: No, I can't, although the CLC did have a lot of contact with the justice department over the drafting of legislation and regulations. In fact, the example I have in mind was a particularly good example of the involvement of public interest and the government in the development of legislation and regulations. It was a relatively rare process and on the whole a constructive and educational one, and one that I don't think infringed on the rights of parliamentarians.
During this process an Australian academic had some comments on the process of developing the legislation and regulations. I got the impression that something of this type was either being contemplated or had in fact been tried in Australia.
Mr. White: Thank you.
The Chairman: Thank you, Mr. White.
Mr. Bennett, I want to thank you very much for taking the time to appear before us this morning.
Mr. Bennett: Thank you.
The Chairman: We have another witness scheduled for 11:45 a.m. They're not here yet, so we'll have a short recess.
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The Chairman: I think we're ready to recommence with our second witness of the morning.
On behalf of the committee, I would like to welcome Chief Clarence T. (Manny) Jules, chairman of the Indian Taxation Advisory Board. I would also welcome Mr. Robert Groves, principal of the Aboriginal Affairs Group Incorporated.
I appreciate your taking the time to appear before us. You have prepared a brief and we look forward to your testimony this morning. We would like you to make a presentation, following which members of the committee would like to have the opportunity to ask some questions.
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Chief Jules, would you like to begin.
Chief Clarence T. Jules (Chairman, Indian Taxation Advisory Board): Thank you for this opportunity. I'd just like to let you know that the ``T'' stands for ``tax''.
We appreciate this opportunity to present our brief to you this morning. With me today is Bob Groves, who is my adviser on the first nations gazette. Mr. Groves heads up the Aboriginal Affairs Group, an Ottawa firm with considerable experience in this field.
I'd like to begin by explaining what the Indian Taxation Advisory Board is, so you'll know why we have an interest in Bill C-25.
In 1988, the Government of Canada changed the Indian Act to make it possible for first nations to raise funds by taxing non-native interests who use reserve lands. The revenue from property taxation has the potential as an important source of revenue to finance social and economic development. As such, it represents an important basis for greater economic self-sufficiency and self-government. Because this type of taxation was new for first nations when the changes were made in 1988, there were a lot of questions about how to go about it properly. In 1989, the Indian Taxation Advisory Board was created to address many of these concerns.
ITAB provides first nations with technical assistance at all stages of by-law development and implementation. We have developed sample by-laws dealing with assessments, rates, expenditures, and business licensing to help first nations avoid expensive start-up costs when they want to enter the field of real property taxation. When requested, we also get involved with mediating disputes stemming from tax jurisdiction negotiations. Finally, ITAB conducts ongoing research into legal issues that relate to first nations taxation powers.
ITAB was created by Canada's first nations and the Department of Indian Affairs but operates at arm's length from the department. Our board is made up of representatives from five regionally based first nations. Our offices are located both in Kamloops and in Ottawa.
Before getting into Bill C-25 and the proposed amendments, I do want to indicate to you as well that ITAB is currently in detailed discussions with the Minister of Indian Affairs, the Hon. Ron Irwin, and with the department concerning our future mandate. Our board is unique in Canada, with a governance advisory and facilitation mandate that no other agency has. Moreover, our mandate is uniquely dual. It has both a first nations mandate and a federal mandate. As we progress in our discussions, we will be examining many of the legislative sectors that first nations are currently engaged in and that are subject to normal legislative gazetting.
When ITAB was created in 1989, we thought perhaps 20 first nations might be interested in establishing property taxation by-laws within the subsequent five years. Instead, there are now over fifty first nations that have decided to get into real property taxation, generating over $15 million annually.
We are here today because we want to propose a simple amendment, one that we think is straightforward and, hopefully, non-controversial in both the technical sense and the partisan sense. It's a small amendment, but we do think it's an important piece in the overall self-government puzzle down the line. It is directly related to the efforts of first nations to become self-governing and more economically self-sufficient.
In a general sense, our amendment has to do with the kinds of issues that are at the heart of Bill C-25; that is, the changing requirements for registration, notice, and publication of statutes and regulations in Canada. When it comes to the printing and publishing of first nations by-laws, a vacuum currently exists. The amendment we are proposing will make it possible for that vacuum to be filled in the future.
In 1985, the Indian Act was changed to exempt first nation by-laws from having to be published in the Canada Gazette. As it is written now, clause 73 of Bill C-25 will continue this exemption. While this will continue to save the government some costs in administrative work, it will also continue the vacuum that has existed since 1985. There is no standard alternative vehicle for publishing band by-laws. There still isn't today, but the need for one is growing.
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First, the number of by-laws has grown considerably in recent years, making the field of first nation tax more complicated. As the sheer number of tax-related by-laws increases, so does the need for a standard, accessible source of information.
Second, the recent decisions of the courts have indicated the authority of by-laws must be challenged if sufficient and proper notification has not been given to those most likely to be affected. This undermines the effectiveness of first nations taxation powers.
At ITAB we have been very conscious of this vacuum, given our close work with first nations on taxation matters across the country. As anyone knows, there's a lot at stake when it comes to taxation. The parties affected by first nation by-laws definitely want, need and deserve to know what ground rules they are working with. Like anywhere else, they also need to know when and how those rules are ever going to be changed, and want to know how they can make their views known to those who are making the decisions.
All of these are normal needs that businesses and property owners everywhere have, but at the moment there is no national system available to ensure this type of information is available and accessible in a reliable way.
For a number of years now, ITAB has been exploring the concept of a first nations gazette to fill this void. We have done surveys to assess the need for such a vehicle and have consulted widely amongst first nations involved in real property taxation. We have found there is strong support for the concept of a first nations gazette as well as support for ITAB's role in bringing this to fruition. Based on these findings, we are now at the stage of developing mock-ups, a copy of which has been circulated to you, and negotiating publishing and distribution agreements.
This brings us to Bill C-25. Generally speaking, one of the novel thrusts of the bill is to give the Clerk of the Privy Council or the Governor in Council more flexibility in deciding how the laws and regulations are to be brought to the attention of those most likely to be affected by them. I refer to subclause 10(3), subclause 13(2), and subparagraph 26(c)(ii).
This means flexible alternatives with Canada Gazette where the situation warrants, but when it comes to first nations, this greater flexibility offers no real benefit, since it applies to only those statutes and regulations that currently have to be published in Canada Gazette. But first nations by-laws and membership codes have been arguably exempted from this requirement since 1987. The current bill merely confirms this exemption in clause 73 retroactively.
To support the establishment of a first nations gazette, we invite the committee to consider an addition to the bill. We propose the following be inserted in clause 10:
- 10.(3A) The Clerk of the Privy Council may enter into such arrangements as the Clerk considers
effective in bringing the substance of those rules and bylaws referred to in Section 86.1 of the
Act, and otherwise exempted from the provisions of the regulatory process, to the notice of
persons likely to be affected by them.
Our goals here are entirely consistent with those of the government as well as those expressed earlier this week by the assistant deputy justice minister, Mary Dawson. We want to develop a system for publicizing first nations tax laws and regulations that is both transparent and readily accessible to those most likely to be affected by them. The first nations gazette has the potential to play a key and vital role in that process.
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We think giving the clerk the power to designate it as an acceptable alternative to the Canada Gazette, as we have proposed in our amendment, will go a long way towards helping that happen. As a result, it would make the first nations gazette an effective tool for first nations as they engage in property taxation across Canada, build their own economic base, and expand their law-making activities.
We are, through the Bill C-25 amendment we are recommending, looking ahead into the next decade and to the type of public and first nations access to information and notice requirements which will increasingly be needed. As you well know, the bill has a genesis going back to 1979, seventeen years ago. We don't think we could accept a suggestion to wait another two to five or ten years to come back to address this matter in a future Regulations Act or amendments to that act. We have an opportunity now.
Before going on to questions and answers on our primary concern, I also want to provide you with ITAB's assessment of one other element of the bill. Proposed subsection 86.1(3), as drafted, marks a fundamentally new departure for the government, and in a direction that first nations are not likely to appreciate. In effect, this proposed subsection compels all first nations to meet the same precise standards for giving notice to by-laws. I could imagine this type of approach might have been appropriate a decade ago, when the issue of non-gazetting of by-laws first came up, but in today's climate, with first nations seeking assistance in the move from delegated authorities to inherent authorities, this kind of cookie-cutter approach is no longer viable.
The enforcement of first nations by-laws is already quite difficult. The inclusion of a new and quite inflexible standard will really make effective law-making authority more problematic, by providing anyone at all with a statutory basis to harass first nations who are giving notice and are posting their laws, such as a person who is driving through a reserve and breaks a traffic by-law. First nations want to meet standards of modern government, but they will vigorously resist being forced to fit the mould of somebody else's idea of what is appropriate. They wish to proceed in a fashion suited to their own particular situations and conditions. While the first nations gazette we are proceeding with does provide the basis for national and a consistent vehicle for notice, it does so by attracting compliance, not forcing it.
I would very much suggest you simply drop proposed subsection 86.1(3), as inconsistent with contemporary approaches and the government's own policy of enhancing flexibility and avoiding ``one size fits all''. In this regard, I've had discussions with department officials and they seem quite agreeable to our position. What we may have in proposed subsection 86.1(3) is really a hold-over of the some of the earlier drafts, going back a decade or so ago.
Again, I want to thank you for this opportunity. I feel this issue, as I've mentioned, is very critical for first nations right across the country. As I mentioned, and I just want to reinforce it, when we first started dealing with taxation by-laws around 1990 we started getting into a lot of issues coming forward not only from the first nations but from provinces concerned about first nations getting into taxation by-laws, and also individuals. It's very much a concern of all of us. It's in our best interest to help facilitate first nations getting into this so we can properly have notice for all those parties affected by the by-laws.
Thank you for your time.
The Chairman: Thank you very much, Chief Jules.
Mr. White.
Mr. White: Thank you for your presentation, Chief Jules.
From your presentation it's clear to me you see this as a major opportunity to start the first nations gazette, but I wonder if it could be a double-edged sword. If the single-reference status of the Canada Gazette - and I realize there have been exemptions in the past - is going to be replaced by a series of fragmented reference gazettes, whether it's a first nations gazette or some other group starts up a gazette because they have an interest in particular laws and regulations, won't it make it more difficult, including for you, to find out what laws and regulations are in effect, for interested parties to find out what's going on, if we have all these different gazettes running around? Surely it would be better for it to be concentrated in one place. Overlooking what it's called - if you don't like the name Canada Gazette, maybe it can be called something else - do you not see a danger in this fragmentation?
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Chief Jules: I think that's the problem; we're exempted right now. Our by-laws are not in the Canada Gazette and, in the situation in British Columbia, what we found was that we had to change the Indian Act. In Bill 64, the enabling act that allowed first nations to get into taxation by-laws, we first had to change the Indian Act and then, because we couldn't provide notice under the Canada Gazette, we had to include a provision in Bill 64 whereby the provincial government would issue a certificate notifying individuals and municipalities and regional districts that a by-law was coming into force. That would be ultimately my preference, but unfortunately that isn't the case. So what we are suggesting is a simple amendment to the Regulations Act that would hopefully accommodate this.
Mr. White: I think the amendment looks very interesting. If this fragmentation goes ahead, then it seems to me, on the surface, to be an interesting amendment. But I'd like to get some historical perspective here, because I'm not sure why the exemption was put in place in the first place. Was that pressure from Indian bands themselves, or was it the government side that put that exemption there? Who put that exemption there in the first place?
Chief Jules: My understanding is that it was a government concern related to cost, related to a number of other issues they were concerned with. It wasn't at the beck and call of the first nations. As a matter of fact, I would have preferred that by-laws, regulations and laws would have continued to apply under the Canada Gazette, but unfortunately, as I mentioned, that isn't the case. So what we're proposing is an amendment that we feel would accommodate that.
Some of the other rationale behind the whole move is that for the first by-laws we had, we had concerns raised by individual members of particular first nations, also adjoining municipalities and residents within the reserve who were going to be affected by the passage of taxation by-laws, and there was no real mechanism that would compel the band councils to make sure that copies were made, that there was really an informed process. That's what we're aiming at. We're trying to get first nations to recognize that they have to inform all parties affected by the passage of by-laws. Unfortunately, that isn't the case with the Canada Gazette.
Mr. White: I congratulate you for that approach of informing people. I think it's a great idea. I think you expressed it very clearly, but I'd just like to double check: you wouldn't have had any objection to being involved with the Canada Gazette, it's just that you've perhaps been put in the position that you've had to create this.
Chief Jules: That would have been my preference, but that isn't the case now. So we're dealing with this particular legislation that's before you right now.
Mr. White: Thank you very much.
Mr. Kirkby: With respect to band by-laws dealing with taxation, it would be safe to say that each band government has the jurisdiction to develop their own type of taxation system, that no taxation system can be imposed on any band by a tribal council or provincial organization. Is that correct?
Chief Jules: Section 83 of the Indian Act is an enabling provision, so what we've done as a taxation advisory board is to provide a model that would serve as a basis for the development of that particular by-law. It goes to the first nations and they adapt it for their own particular needs in that particular community, as well as taking provincial matters into account. Taxation, as it relates to real property tax, differs greatly between British Columbia and Nova Scotia, which we're dealing with now.
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Mr. Kirkby: Each individual band has the authority to make that decision.
Chief Jules: Yes.
Mr. Kirkby: And they have the capacity to design unique by-laws for their own particular needs. Is that correct?
Chief Jules: Yes.
Mr. Kirkby: You're talking about inserting these by-laws in a national publication when the impact of these taxation by-laws is purely a local concern. Why is it necessary to publish by-laws nationally that can be obtained by somebody who is interested walking into the band office and saying he wants the by-law?
Chief Jules: That was actually one of the rationales for the government saying they should be taken out of the Canada Gazette. The government was saying that this is strictly a local matter. In fact, even though there is an enabling power that allows the first nation to develop unique by-laws, it's better to look at precedents. First nations from across the country can look at the passage of by-laws in Kamloops and in Tobique, let's say, and use them as a basis for developing their own laws.
Also, it's of interest to provincial governments, to affected parties right across the country, and to individual ratepayers. There is an effect that takes place right across the country.
Mr. Kirkby: If there are impacts on neighbouring municipalities or on individuals within the community for what they are proposing, is it not up to the local band to ensure that proper...? That amounts to a local political issue. The band must do its best to get input from affected parties. They don't have to do that, but they can. Generally it's recognized that it's better to talk to everybody who's affected before enacting something.
The gazetting process is put in place only after something is put into force, so it would seem to me that it doesn't solve the political problem of developing or putting into force the regulation on the reserve. Does it?
Chief Jules: You do raise some valid points in that the by-law in Kamloops affects Kamloops, but at the same time first nations across the country looked at that as a model and used it as a basis for a model. And individuals, lawyers and academics can look at it. It's a way of educating the public.
There is a whole range of other benefits that accrue from the passage of by-laws. My own view is that by-laws aren't necessarily just for local areas; there are ramifications that take place right across the country.
Mr. Kirkby: But most first nations would be aware of the existence of your organization and would be aware that you have access to these by-laws. If they say they want to put in a taxation by-law and ask you to please send them one, it could be done, couldn't it?
Chief Jules: Yes, but it's a unique situation. When you look at the by-laws that are passed under section 81 of the Indian Act, there's no requirement for it...we constantly get phone calls. As a matter of fact, we received a request just this week for a copy of a curfew by-law, which we're not involved in. We're going to look around to try to find that. Had there been a gazette, that first nation would have been able to look at the gazette and say, oh, there's a curfew by-law we could adapt to our particular and unique situation.
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The Chairman: We were able to give Mr. Groves a copy of the letter submitted, written by Diana Goldie, chair of the national aboriginal law section of the Canadian Bar Association. If you want further time to look at it, Mr. Groves, or consult, please do, but I wanted to get your feeling about what they're recommending.
Mr. Robert Groves (Principal, Aboriginal Affairs Group Inc.): We had been briefed on the CBA aboriginal law section's suggestion. They had not held consultations with ITAB or anybody working on the first nations side. This was rather an internal document they pulled together and a request they made.
The difficulty that has been disclosed over the last two years of review by ITAB of this issue of a first nations gazette - and in fact, this research on how to get this problem of the vacuum solved has been going on since 1986 - is that there's a vacuum of access to laws. There's no consistent access to laws by electors. There's no access to laws by non-Indians who are affected by taxation laws. There's no access by utilities that are affected, let's say at the national or regional level, by real property tax laws. A huge debate is going on between Chief Jules and Paul Tellier, over at CN, on the issue of whether CN will admit they're subject to tax laws. You can imagine the rolling stock alone we're interested in.
At any rate, in the 1980s the thought was, well, why not add a part V, or part IVA or V, to the Canada Gazette and simply have it called the ``Indian Gazette''. That was consistent, perhaps, with thinking in the 1980s.
In the 1990s, with the movement towards acceptance of the inherent right, now adopted as federal policy, that was felt to be inconsistent, because the issue is that first nations will be increasingly adopting laws under inherent authority, under agreements, under a variety of treaties and other arrangements, outside the Indian Act. To facilitate the movement from one regime to the other, it would be retrogressive to have a statutory gazetting procedure. Nevertheless, we have the access to information, public notice requirement - the democracy requirement. The reference I recall being discussed in the late 1980s was to a quote from Caligula, who was fond of posting his laws in small letters on top of thirty-foot pillars, ``the better to ensnare the people'', I think he was quoted as saying.
So we have that problem. The gazette is intended to fill the vacuum in a consistent national way, and the mandate of the Indian Taxation Advisory Board, which is uniquely joint first nations and government - it is neither one nor the other, it is both; it is arm's length from both - has managed to find a niche of legitimacy and credibility to assist the quality of law-making and to assist in notice of law.
So the first nations gazette in fact would not, we would hope, with the facultative amendment we're seeking, be subject to inefficient competition and other standards emerging at regional levels or what not. First nations, at the end of the day, can do what they like, and they will do what they like, but this will provide a national reference point.
The thinking of the CBA is of course to try to have the cake and eat it too with regard to the 1980s and the 1990s, I suppose. On the one hand they're saying to force the Canada Gazette to do what the Canada Gazette has not done since 1972, gazette and register all band laws and by-laws, plus set a standard in the text. This is drawing on proposed subsection 86.1(3), which itself is drawing on some elements of court rulings in 1987 and after, on liquor by-laws, and it's rolling it all together.
It's a lawyer's ideal approach, I suppose, but not a first nations lawyer, not a first nations approach. This is heavy-handed. It's too heavy-handed, and it does not accommodate the move from delegated authority to inherent authority which we're seeking to bridge, this gap we're seeking to bridge with the first nations gazette, starting in tax and moving on and beyond and picking up other areas.
I hope that answers your question, Chairman.
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The Chairman: You're very helpful.
Are there any further questions or witnesses?
There being no further questions, Chief Jules and Mr. Groves, I want to thank you very much. Your presentation, as I have mentioned earlier, has been very helpful. You've raised some very interesting points, and I can assure you they will be considered. I want to thank you for the time you went through to prepare your presentation and to come before this subcommittee today. Thank you very much.
Chief Jules: Thank you.
The Chairman: I'd like to ask members to stay for a minute to talk about further meetings, and I would ask the clerk to give her report as to the people she has contacted about appearing before the committee.
The Clerk of the Committee: The next meeting is scheduled for November 6 at 3:30 p.m. I have as confirmed Mrs. Michelle Swenarchuk from the Canadian Environmental Law Association. I was unable to get any other witnesses to appear that day; they think it's a bit soon.
For the week after the return, on November 19 I have three unconfirmed, starting at 9 a.m.:Mr. Yves Ouellet, from the Université de Montréal; Mr. Ed Ratushny, from the University of Ottawa; and Mr. Philip Anisman, who's a barrister and solicitor in Toronto who has written on the subject. On November 20 I have, from 3:30 p.m. on: Mr. Roderick A. Macdonald, from McGill University; and tentatively, le Barreau du Québec.
The Chairman: We decided that perhaps we would not hear witnesses after the break, but I think these are good witnesses. They can only come with a little more notice, so my suggestion would be that we continue hearing witnesses the week after the break so that we can accommodate these people.
Instead of clause-by-clause on November 21, which is a Thursday - it's too soon after we've heard the last witnesses - I suggest we go over to the next Tuesday for clause-by-clause, if that's suitable to members of the subcommittee.
Mr. Kirkby: Do you mean the last testimony we'll be hearing will be on Tuesday?
The Clerk: Wednesday.
The Chairman: It will be on Wednesday, November 20.
Mr. Kirkby: So we'll be hearing witnesses on Tuesday and Wednesday.
The Chairman: Yes.
Mr. Kirkby: What would be wrong with proceeding with the clause-by-clause that Thursday?
The Chairman: If we can, if members....
[Translation]
Mr. Lebel: Mr. Chairman, we would like to have the time to look at recommendations made by witnesses with a view to introducing amendments. It is unthinkable to do so that quickly.
[English]
The Chairman: Mr. White, do you feel that way?
Mr. White: Yes, I agree.
The Chairman: For the sake of a couple of more days, I think we can do that. I want to get good suggested amendments if we can, and I think a little time may be needed.
Mr. White: Thank you, Mr. Chairman. I have a suggestion with regard to the witnesses.
Tom Wappel and Derek Lee have indicated their willingness to be witnesses and they have had extensive experience over many years at the Standing Joint Committee for the Scrutiny of Regulations.
I noticed that the clerk indicated we only have one witness on November 6. It's hard to imagine that Mr. Lee and/or Mr. Wappel couldn't be available on that day. May I make a suggestion that perhaps we could see if they're available?
The Chairman: It's unusual to have members of Parliament appear as witnesses, especially when they're with another committee that is hearing this same question. But I'll leave that open for discussion.
[Translation]
Mr. Lebel: It is not a bad thing to go off the beaten track, you know. I think it would be advisable to have Mr. Wappel and Mr. Lee as witnesses, because they have a wealth of experience in the area of the regulatory process. I am sure it would be interesting to hear what they have to say.
[English]
Mr. DeVillers: Mr. Chair, are you saying they are members of a committee that's reviewing the same bill?
The Chairman: Aren't you having hearings in the...?
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Mr. White: The input of the standing joint committee is not part of this process. My understanding is that the Senate has requested some sort of review by the standing joint committee, but it's not at this parliamentary level. It would be a unique opportunity to get input from a group that is intimately connected with regulations.
The Chairman: Do you have any comments, Mr. Kirkby?
Mr. Kirkby: Just that I confirm your understanding that it is unusual for members of Parliament to give this consideration, other than on private members' bills.
Mr. White: It's a treat.
The Chairman: Perhaps we can think about this issue the next time we're convened.
[Translation]
Mr. Lebel: You have experts and you do not want to hear them.
[English]
The Chairman: The next time we'll be meeting is on Wednesday afternoon at 3:30.
Mr. White: That would be the ideal time.
The Chairman: I'm open to what the committee wants. It's unusual, but it can be done.
[Translation]
Mr. Lebel: It is not illegal.
The Chairman: Yes, that's it.
[English]
Do you want to hear the -
Mr. Kirkby: I would want to think about it first.
[Translation]
Mr. Lebel: It is unusual as well not to have your real experts in administrative law sitting on this sub-committee, that it is not made more formal.
[English]
The Chairman: What we could do, then, is vote on it and consider it next Wednesday afternoon. If it is the wish of the committee, we will hear these gentlemen. We'll bring it up for discussion and vote next Wednesday.
The meeting is adjourned.