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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Thursday, May 15, 2003

0920

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

Mario Laframboise (Argenteuil—Papineau—Mirabel)

Mr. Charles Hubbard (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development)

0925

The Chair

Mr. Mario Laframboise

0930

The Chair

Mr. Mario Laframboise

The Chair

Mr. Mario Laframboise

The Chair

Mr. Charles Hubbard

The Chair

Mr. Joe Comartin (Windsor—St. Clair, NDP)

0935

0940

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

0945

The Chair

Mr. Charles Hubbard

The Chair

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

The Chair

0950

Mr. Charles Hubbard

The Chair

Mr. Jeffrey LeBlanc (Legislative Clerk)

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

0955

The Chair

Mr. Joe Comartin

The Chair

Mr. Charles Hubbard

The Chair

Mr. Mario Laframboise

1000

The Chair

Mr. Mario Laframboise

The Chair

Mr. Mario Laframboise

Mr. Joe Comartin

The Chair

Mr. Mario Laframboise

1005

The Chair

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

The Chair

Mr. Julian Reed (Halton, Lib.)

1010

The Chair

Mr. Joe Comartin

1015

The Chair

Mr. Mario Laframboise

1020

1025

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

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

Mr. Joe Comartin

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

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Warren Johnson

Mr. Joe Comartin

1030

Mr. Warren Johnson

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

The Chair

Mr. Mario Laframboise

Mr. Paul Salembier

Mr. Mario Laframboise

Mr. Paul Salembier

Mr. Warren Johnson

The Chair

Mr. Mario Laframboise

1035

Mr. Warren Johnson

Mr. Mario Laframboise

Mr. Warren Johnson

The Chair

Mr. Mario Laframboise

Mr. Warren Johnson

1040

The Chair

Right Hon. Joe Clark (Calgary Centre, PC)

Mr. Paul Salembier

Mr. Joe Clark

Mr. Paul Salembier

Mr. Joe Clark

Mr. Paul Salembier

Mr. Joe Clark

1045

Mr. Warren Johnson

Mr. Joe Clark

Mr. Warren Johnson

Mr. Joe Clark

Mr. Warren Johnson

Mr. Joe Clark

Mr. Paul Salembier

Mr. Joe Clark

Mr. Warren Johnson

Mr. Joe Clark

Mr. Warren Johnson

1050

Mr. Joe Clark

Mr. Warren Johnson

Mr. Joe Clark

Mr. Warren Johnson

Mr. Joe Clark

Mr. Warren Johnson

Mr. Joe Clark

Mr. Warren Johnson

Mr. Joe Clark

Mr. Warren Johnson

Mr. Joe Clark

The Chair

Mr. Charles Hubbard

The Chair

1055

Mr. Joe Clark

The Chair

Mr. Joe Clark

The Chair

Mr. Joe Clark

The Chair

Mr. Joe Clark

The Chair

Mr. Joe Clark

The Chair

Mr. Joe Clark

The Chair

Mr. Joe Clark

The Chair

Mr. Maurice Vellacott

1100

Mr. Paul Salembier

1105

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 075

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 15, 2003

[Recorded by Electronic Apparatus]

¿ (0920)

[English]

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

The order of the day is Bill C-7, an act respecting leadership selection, administration, and accountability of Indian bands, and to make related amendments to other acts. We are on page 211, discussing amendment BQ-42.

Monsieur Laframboise.

[Translation]

Mario Laframboise (Argenteuil—Papineau—Mirabel): Mr. Chairman, you must know that this amendment presented by the Bloc would modify clause 35:

(a) by replacing, in the English version, line 28 on page 19 with the following:

Act,

(b) by replacing line 31 on page 19 with the following:

(e) any band or first nation that chooses to pursue traditional means of leadership selection, administration and accountability.

So you have to put clause 35 into perspective, and I am going to read it to you so the people who are watching us will understand it properly:

35. For greater certainty, this Act does not apply to:

(a) a band, as defined in subsection 2(1) of the Cree-Naskapi (of Quebec) Act, except as provided in that Act;

(b) the Nisga'a Nation, within the meaning of the Nisga'a Final Agreement Act;

(d) a first nation, as defined in section 2 of the Yukon First Nation Self-Government Act.

The amendment from the Bloc would add:

(e) any band or first nation that chooses to pursue traditional means of leadership selection, administration and accountability.

Mr. Chairman, you understand that the stated objective here is for this law not to apply, in any form whatsoever, to each and every band or First Nation which presently is accountable--and our analysis shows that 95% of all First Nations are accountable--or has chosed to be accountable under its governance. If we really think of it, Mr. Chairman, with all the complexity...

[English]

Mr. Charles Hubbard (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development): Mr. Chairman, I have a point of order.

The Chair: On a point of order, Mr. Hubbard.

Mr. Charles Hubbard:Mr. Chair, if the amendment were considered—and maybe our witnesses could give you further advice—I don't think there would be any bands included in a treaty or agreement who are outside those listed in paragraphs (a), (b), and (c).

¿ (0925)

The Chair: On a point of order, Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Thank you, Mr. Chairman. It seems you got the proper meaning of the amendment proposed by the Bloc. It is important to consider this problem differently to enlighten my colleagues who seem to have questions. We try to impose norms and rules to First Nations while quite a few of them are already accountable to government. That's what the Bloc amendment is saying. This amendment means that any band or First Nation adopting a traditional mean of leadership selection, administration and accountability could be excluded from this bill.

Our position is simple. This bill would apply exceptionally and not to the majority of First Nations. If you take the time to properly analyze this amendment, you'll have to recognize that it would tell First Nations this law would apply once and for all to those who are not accountable because, as per our calculation, 95% of all First Nations are already accountable to the government. Please note we already got exceptions in clause 35 to Crees, Naskapis, Nisga'a, Sechelt Nation and Yukon First Nations. So, we already have exceptions. This way we could make more of them and include any First Nation who is accountable to government. It is really important for me, as I am the member for Argenteuil-Papineau-Mirabel. I have in my constituency the Kanesatake Territory, where this aboriginal nations have already their own means to govern themselves, which is recognized by our amendment.

This amendment reads:

(e) any band or first nation that chooses to pursue traditional means of leadership selection, administration and accountability.

I consider that mohawk nation of Kanesatake has, among other things, its own traditional means to select its leaders, to administer itself and to be accountable. It wouldn't be forced to apply the scandalous bill which is before this committee and which will be made law when you have adopted it. Up to now, the liberal members hardly approved any of the amendments proposed.

Such amendments, and this one in particular, nevertheless give testimony to the efficiency of aboriginal nations on their territories. The great majority already have their traditional means of leadership selection, administration and accountability. To respect First Nations, aboriginal nations, we must recognize they already have their own way of living, some self-government and some accountability to federal government. They already do this.

This amendment from the Bloc is really important. It could make of bill C-7 a law to be applied in some exceptional cases and not to First Nations who already are accountable to government and who represent, in our own estimations, 95% of all First Nations. So this bill would apply to 5% of all First Nations who do not--

¿ (0930)

The Chair: Mr. Laframboise, in the last seven minutes, you repeated four time the same argument.

Mr. Mario Laframboise: Am I allowed to say what I please, Mr. Chairman?

The Chair: No. You can't do what you please. I am tolerant, but don't exaggerate. You said the same thing four times in seven minutes.

Mr. Mario Laframboise: This way the liberal members, Mr. Chairman, will understand properly the message, the importance of self-government and the way First Nations administer themselves. It is worth repeating that most First Nations have their own governance and their own accountability to federal government.

So why force them to accept a bill they don't want? Their representatives repeated it again and again before this committee. They don't want bill C-7 and this amendment from the Bloc, whether you like it or not, Mr. Chairman, gives you the opportunity to get out of this embarrassing situation and to respect what people live there. You have to think about those who live near First Nations lands.

As I mentioned, there is some social peace in Argenteuil-Papineau-Mirabel, between Kanesatake people and neighbouring populations. I wouldn't want a bill like C-7 to endanger social peace. It is of course a risk we run into when we never consider representations from elected members, for instance. I am an elected member from a constituency that say this bill C-7 goes to far and is not well received by the aboriginal people. It could even endanger social peace that exists presently between aboriginal nations and people from Quebec. I am in a good position to tell you this, Mr. Chairman. This is why it is important for you to take into consideration the amendment proposed, so this bill C-7 will become a law applying to the 5% of aboriginal nations not accountable to government.

[English]

The Chair: Merci, Monsieur Laframboise.

Mr. Hubbard.

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

I'll be very brief. I thought the member might have withdrawn, because we had just completed NDP-52, and this one is similar to it.

I'm amazed at the continuation by the Bloc of the filibuster, as you might call it—buster or bluster. I am more amazed at the member alluding to his own province, because when we as a committee visited the first nations peoples in Val-d'Or, I think I heard one of the worst examples of how first nations were being used of practically any province in Canada.

For him to allude to the tremendous, great relationships.... I forget the exact figures, but it seemed to me nearly 300 first nations people were living on 40-some hectares of land just south of Val-d'Or. It really gets my blood pressure up for him to cite before this committee the tremendous relationships his party has had with the people; it's just unacceptable.

We will continue with the amendment, but it certainly doesn't increase my respect for his party to hear what he says, given what is happening with some of our first nations people in his own province.

The Chair: Thank you, Mr. Hubbard.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Mr. Chair.

Not surprisingly, I disagree with the comments of the parliamentary secretary with regard to this particular amendment, in particular in that I think he was implying not only similarity but complete overlap with NDP-52. There is no connection. There is no similarity. It is an entirely separate amendment dealing with the broader issue of who is going to determine the applicability of this legislation.

The NDP amendment yesterday was much more specific with respect to a band or a first nation that had actually entered into an agreement. Quite frankly, we got, I think, a fairly extensive description of what that would mean, both in the comments I was making and more specifically in the comments and responses we got from Mr. Johnson and Mr. Beynon last evening.

Before suggesting it's the same as this amendment, I think the parliamentary secretary needs to re-read both of the amendments, the one last evening and the one before us right now.

I want to indicate that we would support this amendment. It gives the government, Mr. Chair, the opportunity in what is really a very straightforward amendment to correct all of the problems with the bill, from the perspective of the first nations.

What it is saying is that we—that is we, the first nations—will have an unbridled discretion to determine whether in fact, according to our customs and traditional means of leadership, we accept this legislation. It allows this particular government, I suppose, to carry on their role, as they've seen it, of dictating the standards of governance to the first nations.

Perhaps we can suggest that the bill, then, would become almost model legislation, to be accepted or rejected by the first nations. If we did that, Mr. Chair, it would allow the first nations to pursue the goals they have. It would also recognize a long line of cases from the courts, all the way up to the Supreme Court, that have recognized that fundamental right.

If we were to do it in one fell swoop, which is not complicated but pretty straightforward, we would in effect accomplish that end and recognize—that is we, the federal government in the form of this legislation—those inherent rights that have been well recognized throughout the court system.

Mr. Chair, if we were willing to do that.... Perhaps I should say this—I made some reference to it last night. There is a major demonstration in Kenora today, to which the minister has been invited. It would give the minister an opportunity to say to the first nations finally that he has heard them, that the pronouncements he's made up to this point that it's only a few of the senior leadership who oppose this legislation.... It would give him an opportunity to admit in a straightforward manner that he was wrong. It would give him an opportunity to say “I accept that in fact the first nations from coast to coast—every one of the nations—is opposed to this legislation.” It would give him the opportunity, and we would be giving him the ability to say to them that we can correct this really quickly.

¿ (0935)

This committee can simply say to them by this amendment: “We recognize those fundamental rights.” Government would have an opportunity in almost a face-saving type of measure to say, “Well, we've still set out our standards. This is the way we believe you should govern yourselves. These are the kinds of codes we want you to follow. But we recognize that ultimately, if this is going to work, it's only because you do it yourselves.” Anybody who looks at democracy, in no matter what part of the globe, recognizes that ultimately a democracy functions when it functions according to the accepted standards and culture of the particular society.

Mr. Chair, I have some slight concern about the wording, in that it is not broad enough, and I would propose a subamendment that BQ-42 be amended by adding the following after its final word “accountability”:

or any other band or first nation which files a certificate with the minister stating that in its opinion the operation of the regulations passed pursuant to Sections 5, 6, 7, 16 or 17 would infringe upon their inherent treaty or aboriginal right of self-government.

¿ (0940)

The Chair: Is that written down?

Mr. Joe Comartin: It is.

The Chair: Mr. Comartin, you have the floor on your subamendment. We'll have it photocopied and distributed.

Mr. Joe Comartin: Thank you, Mr. Chair. Let me just take one moment.

Mr. Chair, pursuing the line of argument I was making with respect to the Bloc amendment BQ-42, the proposed subamendment I have made would expand the basis on which the first nation band would be recognized as having a right to accept or reject the provisions of the bill, but would tie it in more specifically.

I think it's fair to say that a great deal of the opposition we have heard from the first nations, both in the form of the witnesses who came before the committee to testify and in the form of the written briefs, has been directed specifically at the particular proposed sections that are in here—5, 6, 7, 16, and 17—in terms of establishing the codes, the areas and issues and policies those codes would cover, the breadth of the codes, and the policies that have to be addressed in them.

I believe the message has been very clear. In fact, there was a brief filed at the UN with a reference in it by a number of the leaders of first nations and leaders of some of Canada's churches. They were addressing both bills, C-6 and C-7. Specifically, in this amendment we're saying that if we are going to persist in the policy.... As they described it, both bills

...perpetuate the inherently discriminatory and paternalistic federal policy that has impeded the efforts of Aboriginal peoples to promote and protect their right to self-determination, or other rights, including the rights to health, education and development. This has resulted in the social and economic displacement and marginalization of Aboriginal peoples in Canada.

This subamendment goes directly to the fear that's expressed in that statement.

I'll paraphrase here the comments we have heard. This would be the voice of the first nations, if I'm accurately reflecting the evidence that was taken by this committee: “We have suffered under the Indian Act for all this length of time, even before the Indian Act in terms of some of the policies that were imposed by the federal government. We recognize that the act, with all its inherent weaknesses, obviously has to go. But our fear is that Bill C-6 and Bill C-7 are replacing one form of paternalism with another; that the differences are subtle, and there is no substantial recognition by this government in Bill C-7 to allow us to continue to exist, to expand our horizons, to provide leadership within the community according to our customs and traditions. It does not allow us the ability to expand the role we play; it simply continues to make us subservient. We're seen”--as we saw from some of the comments we heard from the government side yesterday--“as an inferior level of government, and the federal government as superior.” Those were actual terms used yesterday. “So Bill C-7 simply perpetuates what we have had under the Indian Act for the last 100 years.”

¿ (0945)

This subamendment, combined with what's in amendment BQ-42, would recognize that fear on the part of the first nations and would deal with it. It would in effect say to them, “We've heard you. We do have this model; you treat it as a model--take all, none, or part of it, but you make the decision within the confines of your band, your nation. It's up to you to decide what is acceptable and what is not according to your customs, tradition, culture, etc.”

If we accept that as the proper role for the federal government to play, unless we withdraw the bill completely, it's the only way we can patch up the relationship. It would have been preferable that we not have to pass this type of amendment. It would have been preferable if meaningful consultation had gone on, if it had been recognized and accepted by both sides as a better process. But faced as we are this late in the day, amendment BQ-42 and this subamendment combined is one final chance for us to be able to say we've accepted the proper role you have to play.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

Mr. Hubbard.

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

We've listened for ten minutes, and I was hoping to be able to read that subamendment.

I would like to point out for the record, Mr. Chair, that all of us probably think that being a député fédéral or a member of Parliament is a rather insignificant role we play, but there are people around the table who have done masters theses and PhD theses and have tried to analyze the history of this country. I would hope that when members come to this table to try to put forward their concerns they would work so that history would reflect that they've made a positive contribution to the bills this country is developing.

Mr. Chair, I'm going to talk for a minute while we're getting the subamendment, but I would like to have it analyzed by our legislative people.

I'm amazed, I think it's four weeks tomorrow at least--

The Chair: Mr. Hubbard, could we circulate this to the members first? We're circulating to everybody but the members.

How long does it take to get a photocopy of this bill made? We'll wait until everyone has a copy.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Members are last.

The Chair: It's not the gentleman's fault that it takes so long. They have to go down to the first floor every time they need a copy. You'd think they'd make an arrangement with the office next door. But it's not his fault; I want that known.

Mr. Hubbard.

¿ (0950)

Mr. Charles Hubbard: Mr. Chair, last night we talked about the legal profession, and I think most of us have great respect for the legal profession. There's an old saying in the legal profession that if a lawyer goes to court to defend himself, he has a fool for a client.

We've had these amendments before our committee now for about 30 days, and every party has an opportunity to look at the amendments the other party is putting forward. They've had sufficient time to analyze, dissect, and consider subamendments and to try to improve the legislation we have before committee.

I'm amazed, Mr. Chair, that as I watch across the floor, I can see a member, who has just spoken, who will have someone sitting behind him, a legislative assistant, you might say, who on the spur of the moment writes up a subamendment without any more than a minute or two of thought, and it takes a long time for this committee to consider it.

It's unfair. In fact, I think history will reflect that this member has made an unjust contribution, if you can call it a contribution, or a lack of contribution, toward the workings of this committee.

As a member of Parliament, in a hundred years' time I hope they don't look at my name and say “Hubbard was there to screw things around so that the bill would not be brought back to the House.” I think all of us have an obligation.

In the meantime, Mr. Chair, we might ask our legislative people to think in terms of clauses 5, 6, 7, 16, or 17 and whether this subamendment really is in order. I don't think it is in order, in terms of referring to regulations....

Could we ask Mr. Salembier or Mr. Johnson to--

The Chair: Mr. Hubbard, if I may, upon receipt and investigation of the subamendment, it seems it's not acceptable. I will ask the legislative clerk to explain why.

I know Mr. Comartin, when faced with facts, has always been reasonable with us, so we'll ask your opinion, Mr. Comartin. And I'm sincere about that comment.

Mr. Jeffrey LeBlanc (Legislative Clerk): The problem I'm having with the subamendment is that is says “regulations passed pursuant to Sections 5, 6, 7, 16 and 17”. Clearly, clauses 16 or 17 have nothing to do with regulation-making power. They're about law-making power for the band. And clauses 5, 6, and 7 are about the codes bands can adopt.

The regulation-making powers concerning clauses 5, 6, and 7 are in clause 32.

The Chair: We'll start over.

Mr. Joe Comartin: The clerk has the habit, Mr. Chair, of dropping his voice at certain points and I don't hear him.

The Chair: Do you agree, Mr. Comartin?

Mr. Joe Comartin: I agree with the points about clauses 16 and 17, but it seems to me clauses 5, 6, and 7 would still apply. The fact that we should say clause 32, as opposed to clauses 5, 6, and 7--

The Chair: But the subamendment doesn't say that.

I need a yes or no, because it will be shorter to let everybody speak. I don't want to debate it. I'm just asking you. You're a lawyer; you can see face value.

Mr. Joe Comartin: If I can have direction, I would ask to be able to withdraw the references to clauses 16 and 17. I think that's appropriate.

¿ (0955)

The Chair: We're not going to modify the subamendment. You need unanimous consent.

Mr. Joe Comartin: I'll challenge the chair, then, Mr. Chairman.

The Chair: There's no challenge. Keep talking.

I'm not ruling it out of order. That's what we've been doing for 14 weeks. It's shorter to do it than to argue about it.

Mr. Hubbard.

Mr. Charles Hubbard: I have only the conclusion, Mr. Chair, that the modus operandi of the member opposite is quite obvious to anyone who will read the history of this debate or see the point, in terms of his party and their position on what they want to do for the first nations across this country.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Hubbard.

Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: I think the amendment from the Bloc and the subamendment deal with one of the most important features of this bill. We talk in clause 35 about exceptions, whether a nation is subjected to this bill C-7. In that connection, I'll note the commentary from the liberal member, who said previously that my party could have... I can tell you that in Quebec, Mr. Chairman, the Party Quebecois dared what neither the federal government nor any government in Canada dared to do: that is to put aboriginal nations on an equal footing. A Truce between equals was signed and other agreement were being negotiated between the Quebec government and aboriginal nations. Even the premier from Quebec praised what the Party Quebecois government of Mr. Bernard Landry had done in favour of aboriginal nations.

Instead of trying repeatedly to denigrate aboriginal nations, why shouldn't we try to recognize their importance negotiating between equals, from nation to nation, from people to people? This is the objective. I understand, among other things, what my colleague from the New Democratic Party is trying to do with his amendment. He wants to give aboriginal nations the choice, in their self-government, to accept and comply with bill C-7. This is the stated objective of the Bloc, supported by the New Democratic Party amendment. The objective is to allow nations who still didn't find a way to be accountable to government to comply with bill C-7 or simply choose their own means to be accountable.

Le liberal members try to minimize clause 35 impact. On the contrary, Mr. Chairman, this is probably the most important discussion we had on this bill. Why? Because they are exceptions. Pursuant to sections 35(a), (b), (c) and (d), some nations won't have to comply. The preamble of clause 35 is really clear in this respect: “For greater certainty, this Act does not apply to:”, and we list, among others, four examples. What would do the amendment from the Bloc, proposed by my colleague from Sainte-Hyacinthe–Bagot and which I am defending here, and the subamendment from the New Democratic Party, is to consider aboriginal nation as equals and recognize that they have their own means of self-government, their own administration and their own accountability. As for those who are not accountable, they could use the provisions of bill C-7 and decide themselves the form of governance they prefer.

Could you verify the quorum, please, Mr. Chairman?

À (1000)

The Chair: Excuse me?

Mr. Mario Laframboise: Could you check if we have a quorum?

The Chair: We have nine members.

Mr. Mario Laframboise: Ok? Thank you.

So you must understand I agree with the subamendment presented by my colleague from the New Democratic Party, which purpose is to better our amendment. I hope I'll hear less and less arguments of the kind we are hearing from the liberal member who, anyway, doesn't want to establish a relationship on equal footing with aboriginal nations. He is still trying to build an unequal relationship. This is the consequence of bill C-7 and this is why it is not accepted by aboriginal nations. This is again a bill establishing a relationship between master and servant. I am well aware, when I am hearing what the liberal member is saying, that he wants to maintain this relationship between master and servant and doesn't want to accept Quebec position, which decided to negotiate between equals with aboriginal nations. Mr. Chairman, this is not the end of it. My colleagues must know that there are other agreements with other aboriginal nations which are discussed and negotiated in Quebec. I hope the federal government and other provinces will take these examples...

[English]

Mr. Joe Comartin: Mr. Chair, on a point of order, I don't think we have a quorum.

The Chair: We have nine members and a quorum.

Mr. Joe Comartin: I couldn't see the member who was away from the table. It was the brilliance emanating from the member directly opposite from me that blinded me to the fact that there was another member sitting behind him, Mr. Chair.

[Translation]

Mr. Mario Laframboise: Mr. Chairman, I want to explain to you the right way to negotiate with aboriginal nations, the new way to negotiate between equals in Quebec. Whether my liberal colleague likes it or not, and anyway he doesn't understand the Quebec way to negotiate with aboriginal nations, there is a reality, and the new relationship with aboriginal people must be based on this reality. I have to state that this bill C-7 doesn't take into account this form of negotiating.

If you cool down and read the amendments from the Bloc and the interesting subamendments from the New Democratic Party you'll note their purpose is to consider aboriginal nations as distinct people having the right to choose their own means of governance and administration, which are often based on traditional ways of leadership selection. Our amendments would give them the opportunity to explain the way they act and would be a much more acceptable mean to tell them this bill C-7 is here to better the present situation, not to reestablish a master to servant relationship. This is why this bill C-7 is not well received by aboriginal communities.

I have some difficulties to understand my colleagues from the liberal Party. A liberal member told us he wanted to be remembered in the future as a good member of Parliament, who did a good work on this bill. The future will be really different from him, Mr. Chairman. It will be noted for him that he contributed to perpetuate a master to servant relationship between government and aboriginal nations. I hope he will be glad in the future some opposition members were there to better the present governance of aboriginal nations and to enhance our debate while considering aboriginal nations are equals.

This is the objective of the amendment from the Bloc and of the subamendment so well presented by my colleague from the New Democratic Party.

Evidently, I hope the explanations we gave you will help the liberal members to better understand aboriginal nations. A vote in favour of the subamendment and the amendment would enhance the level of negotiating with aboriginal nations and would be a way to tell them that, from now on, we will negotiate as equals.

This is the message the Bloc, in this amendment, and the NDP, in its subamendment, want to deliver.

Mr. Chairman, I repeat that clause 35, we propose to amend today, is the most important section in this bill.

À (1005)

The Chair: Thank you, Mr. Laframboise.

I must say that this was the most trying 10 minutes period we had in 14 weeks. You'll excuse me, but there was no substance in what you said. It is difficult for us to listen and understand.

[English]

Mr. John Godfrey (Don Valley West, Lib.): Mr. Chair, I just want to note for the record the extraordinary position we're in. We are now debating a subamendment that you and the legislative clerk have ruled out of order, and which the proposer of the subamendment—who is a lawyer—has agreed is out of order, but insists that we debate. I don't understand this.

Thank you.

The Chair: It's hard to understand the process we're going through.

Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Every few days, Mr. Chairman, I feel compelled to speak. I'm not going to quote from the White Roots of Peace today, but I want to maybe expand on Mr. Hubbard's concern with what's happening here in this committee.

The fooling around with this bill by two opposition parties leads me to have to say to them that in order for a democracy to work, there has to be respect for that democracy, and there has to be the assumption of responsibility by both the government and the opposition. I spent ten years in opposition, so I am very much aware of the responsibilities of people in opposition.

I'm deeply concerned that disinformation is going to the first nations who are opposed to this bill. From the mouths of these opposition members, I heard a comment that every band was opposed to this legislation. It will be on the record. The very fact is that there are bands who are models for this legislation, who have set the pattern, set the tone, and taken the lead.

If this legislation is so bad, why did witnesses come before this committee and say, “Well, the bill's not perfect, but it's the direction we have to go in”? Why did Chief Manny Jules come before this committee and say, “Pass the bill, and get it on the record”? Why are there individuals from first nations coming to members and saying, “Please get the bill through”?

I would suggest to the opposition who are attempting this filibuster, which will take them nowhere, that once the first nations who are opposed to the bill find out that they're being betrayed, the story will be much different.

Here we are trying to make the best bill we possibly can after first reading. We haven't even got to second reading, so we're in the negotiating or development stage. Filibustering in this situation simply shows a total disrespect for the democratic process, and disrespect for those concerned members of first nations.

Thank you, Mr. Chair.

À (1010)

The Chair: Thank you.

Mr. Comartin.

Mr. Joe Comartin: To respond to at least some of the comments of the government side of the table, you haven't in fact ruled this out of order; you opted not to do that. Second, when it appeared that you might be thinking along those lines, I made it very clear that I did not accept what was potentially going to be the ruling. So the information that came from the other side of the table in that regard obviously shows the member's not paying attention to the process.

With regard to the comments from the last member, I'm not sure what area of the country he's been in contact with, but the reality is, and I quoted these numbers yesterday, we had 44 individuals and 147 organizations who were opposed to Bill C-7—who came here or filed briefs. When you do the total numbers of the people this committee heard from, there were 10 in favour, 191 opposed. And they weren't just first nations: they were the Canadian Bar Association; they were constitutional law professors; people from the legal community who do extensive work with the first nations and on their relationship with the federal government.

To hear from the government side that somehow this is a small group of first nations, an insignificant number of first nations people who are opposed to this legislation is just grossly misleading. That's not the fact. It's not the reality. And to hear the comment that this model is one that's working.... I don't know what first nation band he's referring to. In some of the experiences we've seen where this has been attempted—one in particular at Kanesatake— the band is in great turmoil at this point. It's not working there. I don't know what other experiments he's referring to, but that's certainly one that's a glaring example where a good deal of the band has not accepted this model. One can only argue that it will be even less acceptable to other bands when it's being imposed from above.

Another point I would like to address touching the comments from the other side of the table concerns the role the NDP and the Bloc have played in presenting amendments, and on occasion subamendments. I'll defer to the fact that members on the other side of the table have been here longer than I have, but I have paid a good deal of attention to the role opposition parties are supposed to play—that we as individual members of Parliament are supposed to play—which is to see that legislation that is passed to govern this country is legislation that's in the best interest of the country as a whole, and of the sector of society that would be addressed by the legislation.

We have a role to play in that regard. I intend to play that role, as every other member of my party certainly does. From the comments I've heard from the Bloc over the last two days and at other times I've been in this committee, they intend to do the same thing. We do not intend to be lectured—or I guess we have to accept that we may be lectured from the government side as to what the proper role is of the opposition, but we don't have to follow that direction, Mr. Chair. We're going to follow our own road, the road that's the proper one for opposition in this Parliament and in all other parliaments that are based on the British model.

I would simply say to my colleagues across the table that if they continue in the lecturing as they have up to this point, it will be ignored. We know the role we have to play. We intend to play it.

If I can get back, then, to the actual subamendment, Mr. Chair, the difficulty I have with the comments from the clerk is that I looked at the former clause 33, which has now been extensively amended. But I would note concerning clauses 16 and 17 in my provision that a very similar type of wording was in clause 33 before and wasn't ruled as inadmissible at any time. So I have some difficulty.

À (1015)

I recognize that there may be some better wording. I want to indicate that I was actually going to propose a different subamendment, but I had this given to me earlier today from a representative from one of the first nations. There may be some valid argument for better wording differentiating between clauses 5, 6, and 7 and the results—probably the types of words that should go into clauses 16 or 17—but given the direction I received from the chair, that change or any fine-tuning would not be allowed. I suppose we can't do that, although I have to say I think the wording would stand in any event, in spite of the fact that it could be clarified by the addition of some additional words—two or three words between clauses 5, 6, and 7 equating those to regulatory functions and to the legislative functions that are in clauses 16 and 17.

But having said that, Mr. Chair, in spite of the fact that it would be cleaner, I believe the intent is clear enough that anybody looking at this would be able to accept what direction it is this subamendment would take us in. I suppose we, as I've certainly done myself in my practice, can criticize the drafting. There may be some valid criticism there, but the end result is I believe any judge would able to properly interpret the intent of this subamendment and where we want to take the legislation.

Based on that, Mr. Chair, I want it to go ahead. It seems to me what it's accomplishing, to go back to summarize the point of it, is that adding it to the amendment we have in the form of BQ-42 would give us the ability—within the legislation—to respond to all of the criticisms and attacks that have come from the first nations against this legislation. It's a saving clause that would allow them to assess it, accept whether they're going to use the bill, reject it in total, or use parts of it. But that would be their decision by way of a vote.

If they were granted.... I hate using that term. If it were acknowledged by way of this amendment and subamendment that they had that right, the terrible destruction of the relationship between the first nations and this government might start down the road to healing, and a much stronger, healthier relationship could be looked forward to in the future.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

We'll have a recorded vote on subamendment 1 to BQ-42 on page 211.

(Subamendment negatived: nays 8; yeas 2)

The Chair: We'll go back to the amendment.

Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Mr. Chairman, for the proceedings to be well understood, I am going to read again the amendment modifying clause 35 of the bill, which reads in the first part:

35. For greater certainty, this Act does not apply to

There are therefore provisions which permit to exclude some nations or bands from the application of bill C-7. We add subsection (e). Clause 35 modified reads:

35. For greater certainty, this Act does not apply to

(e) any band or first nation that chooses to pursue traditional means of leadership selection, administration and accountability.

Evidently, the purpose of this amendment is to add another exclusion to clause 35. Mr. Chairman, I am appalled when I hear liberal members saying, among other things, that a great majority of aboriginal nations are in favour of C-7. I hope you read the letter--I received one copy--sent to us by the chief of first nations only a few days ago, to tell us precisely that bill C-7 was irrelevant. You have to admit this is not coming from somebody who is not in charge of anything. It is coming from the chief of first nations who is warning us against bill C-7.

I have some difficulty to understand this affirmation from the liberal members, unless the committee didn't understand properly the interventions or wanted to hear other witnesses to review the bill. As I understand it, the liberal members seem to tell us that lots of witnesses are in favour of this bill, while the chief of first nations, who should represent the great majority of these nations, is telling us that this bill should not see the light. Before taking such an important decision such as the adoption of this bill C-7, our committee must hear every witness. If the liberal members want to hear again some witnesses or hear other witnesses, the Bloc is opened to this procedure. It will accept to extend the work of the committee if you feel the necessity to get a better explanation of the different positions, among them the one from the chief of first nations, on bill C-7.

If you don't want to do it, the amendment from the Bloc would have a very beneficial impact: it would give the opportunity to the great majority of nations which are already accountable to the government to exclude themselves from the application of bill C-7. The stated objective of the Bloc is to make an exception of bill C-7. Among the nations, the 5% which have no means to be accountable to the government could be subjected to C-7. That way aboriginal nations having already their traditional means of leadership selection and administration, which constitute the great majority, could exclude themselves from the application of bill C-7. It would probably be the best way to give more meaning to this bill.

I repeat to you that the best way to treat the first nations as equals, from government to government, would be to recognize their traditional means of leadership selection and administration as well as the way they are presently accountable to government. Evidently, the purpose of Bloc amendment is simply to establish the trust relationship lost years ago. The federal government simply didn't respect aboriginal nations. By adopting this amendment, we would make good a new way to deal with aboriginal nations, a new way that the Quebec government, under the leadership of the Party Quebecois, implemented. This government negotiated between equals some agreements with aboriginal nations, which permitted to sign a truce and, I hope, will negotiate some upcoming agreements in Quebec.

The Bloc amendment would tell aboriginal nations having traditional means of leadership selection and administration and which are already accountable that they can be excluded from the application of bill C-7.

À (1020)

The modified clause 35 which could apply to them would read:

35. For greater certainty, this Act does not apply to:

(e) any band or first nation that chooses to pursue traditional means of leadership selection, administration and accountability.

Mr. Chairman, I hope the liberal members will seized this opportunity offered to them by the Bloc to transform a confrontational bill with the aboriginal nations in a bill considering them as equals.

The effect of this amendment would be, among other things, to consider as equals some 95% of aboriginal nations. This bill C-7 would be used then to settle the exceptions, for example when a nation didn't establish a mean or an obligation to be accountable to the federal government. Thank you, Mr. Chairman.

À (1025)

[English]

The Chair: Merci, Monsieur Laframboise.

We'll have a recorded vote on amendment BQ-42 on page 211.

(Amendment negatived: nays 8; yeas 2)

The Chair: Are we ready for the question on clause 35?

Mr. Comartin.

Mr. Joe Comartin: Thank you.

I was going to ask one question of Mr. Johnson in this regard, but I see that he's moved away from the table. Perhaps he'll be back before I can report.

The Chair: Would you ask it to Mr. Salembier? They work together, so maybe he can answer.

Mr. Joe Comartin: It's about something that occurred last night, but I'll do that, Mr. Chair.

Mr. Salembier, we had an exchange last night with regard to the provisions in clause 35. I had a separate amendment dealing with another issue, but I was thinking overnight about some of the existing treaties. I was going to ask Mr. Johnson this, but I hope you can help me with it.

Within the existing treaties.... Let's use Treaty 3, because it's in the minister's area. With the government back then who entered into the treaty—which might have been the British government, since this goes back quite some time—are there any provisions in the treaty that conflict, overlap, or occupy the same territory that some of the codes, paragraphs, or clauses of this bill are going to occupy? If there are, should we not recognize that those treaties should also be exempt from the application of this legislation?

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): To start with, not having the text of the treaty in front of me, I wouldn't want to speculate in a detailed fashion on whether there is anything in the treaty that might overlap with the scope of Bill C-7.

However, it should not be an issue. Clause 3.1, which was inserted by this committee, makes it clear that if there were a conflict with a treaty, the statute should be interpreted not to contravene the treaty in any fashion. Notwithstanding that, even if a first nation were to enact a law governing their own people under clauses 16 or 17 that might conflict with the treaty, I think clause 3.1 would suggest that, to the extent there is any conflict, the law made by the first nation under clause 3.1 wouldn't apply.

However, were a first nation to ratify a code that departed to some extent from a treaty entered into earlier, I think a court might very well find that the first nation has decided to conduct itself in accordance with the code, as opposed to the treaty, particularly a code ratified by a majority—and perhaps even by a greater majority than ratified the treaty. Now, treaties don't normally impose obligations on first nations citizens themselves. So this isn't something that's ever likely to arise.

Mr. Joe Comartin: Just to pursue that, the detail that is in this legislation around the codes would not normally appear in any of the treaties, at least the ones you have more extensive knowledge of. Is that fair?

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): If I could respond to that one, if you're speaking of the historical treaties--

Mr. Joe Comartin: I am.

Mr. Warren Johnson: --that is correct. If you are speaking of the modern treaties--

Mr. Joe Comartin: No, I'm talking--

Mr. Warren Johnson: --and self-government agreements, they're comparable.

Mr. Joe Comartin: I'm sorry, Mr. Johnson, while you were out I was actually going to address the question to you. Mr. Salembier has done a pretty good job of answering on your behalf.

I specifically made reference to Treaty No. 3. Mr. Salembier's comment was that it doesn't have that type of detail that would likely run into any conflict. And I was asking specifically about the codes. There's nothing in the treaty that would say that you don't have to have any regulation or you can regulate this way. The old treaties weren't that detailed.

À (1030)

Mr. Warren Johnson: No, and the treaties talk more about the relationship than the internal issues with respect to first nations.

Mr. Joe Comartin: Then just to finalize that, maybe, Mr. Salembier, if there is any conflict, in your opinion, 3(1)--

Mr. Paul Salembier: 3.1.

Mr. Joe Comartin: --3.1 would protect those treaties from the application of this bill?

Mr. Paul Salembier: Even in the absence of clause 3.1, it would be open to a court to determine that the treaty takes precedence over conflicting provisions of the act, and it would all have to be interpreted in context and in context of the particular first nation and the particular part of the law that's being challenged.

Mr. Joe Comartin: In spite of what we've heard from the parliamentary secretary a couple of times, I'm not here to make work for lawyers; I'm trying to do just the opposite. I just want the legislation to be as clear as possible so that we wouldn't have to have a challenge if there were a dispute. But your opinion at this point is that it's very unlikely that we have that kind of conflict.

Mr. Paul Salembier: Yes, certainly with the bill as it reads now.

Mr. Joe Comartin: Mr. Chair, in that light, this was an issue that hadn't come up last night, and I needed that information. It was a point of concern that was raised again by one of the first nations as to whether 3.1--I didn't know what the section was, but that particular section--was broad enough to catch this. So I'm satisfied with the answers we've gotten from Mr. Salembier and Mr. Johnson.

I have no further comments with regard to clause 35. Thanks, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Thank you, Mr. Chairman.

I'd like to ask a question to Mr. Salembier. Section 35 excludes from the application of the law four laws or agreements signed with some nations.

Presently or before the adoption of the law, were we negotiating or discussing other agreements?

[English]

Mr. Paul Salembier: Yes, there are a number of self-government negotiating tables underway at the moment. What will happen in those cases is those agreements will be implemented by statute, and that particular statute will contain a consequential amendment that will add them to the list in clause 35. And that's how those nations will figure into clause 35 in the future. When any self-government arrangements are implemented by legislation they will be added as further paragraphs to clause 35.

[Translation]

Mr. Mario Laframboise: Do you have a list of the agreements? Your saying there are several of them; we would like to know how many and which are the nations concerned.

[English]

Mr. Paul Salembier: Mr. Johnson might have more information as to what groups are in the process of negotiating self-government arrangements at this time.

Mr. Warren Johnson: We provided a detailed report to the committee, in one of its previous sessions recently, on the progress on the 80 self-government negotiation tables in place across the country as well as the sectoral self-government agreements, including the milestones that had been achieved since the commencement of FNGA and the anticipated results in the next year or so on those. So they are on the record. I don't know whether the member would want me to go through that again. That would take five or ten minutes to run through that again.

The Chair: He's trying to get you to read for those ten minutes.

[Translation]

Mr. Mario Laframboise: Mr. Johnson, do you confirm what Mr. Salembier said, that is every agreement, when signed, will have a provision saying this nation won't be subjected to C-7? Or may be it's in the law giving effect to the agreement that we will find a provision saying...

À (1035)

[English]

Mr. Warren Johnson: Each self-government agreement clearly defines the subjects covered and what that implies then for existing legislation in terms of where in the current situation, the Indian Act--or in the future situation Bill C-7--that would in whole or in part no longer apply. So that's specifically in the agreement. This clause 35, which is the reference to the existing agreements in Bill C-7, is really only there for greater certainty. The legal effect is already accomplished in the agreement and the enabling legislation for those agreements themselves, because they will already provide for that exemption. Those are the primary documents, especially those like the Nisga'a Treaty, which are constitutionally protected in any event.

[Translation]

Mr. Mario Laframboise: For the information of those who read or listen our debates, could you tell us how long it takes to negotiate a self government agreement with a nation. Could you give us an example and tell me how long it took?

[English]

Mr. Warren Johnson: It would be dependent on the type of agreement. As we've had to clarify for purpose of the committee's deliberations in previous sessions, there are different types of agreements. We have self-government agreements that are comprehensive and are leading potentially towards constitutional protection. We have self-government agreements that are sectoral, just dealing with one issue--for example, education. There's Mi'kmaq education, the First Nations Land Management Act dealing with lands, the first nations land management initiative from first nations. We also have self-government agreements that are twinned with comprehensive claims settlements, for example, in the treaty process in B.C. and a number of the discussions now going on in Quebec, which the member himself has cited. So there are a variety of agreements, and the length of time obviously depends on which of those we're talking about.

I can describe examples I'm familiar with. For example, the treaty that should be signed, ratified, and put into place very soon with the Dogrib in the Northwest Territories--which was on the forecast we were talking about--took ten years. I know that because I was at the first meeting. That took ten years to get to this point, but it's a comprehensive agreement because it deals with both claims and self-government issues, considerable overlap issues with neighbouring first nations, etc. So it was a fairly significant effort.

On the sectoral basis, dealing with the optional sectoral legislation that now exists, for example, under the First Nations Land Management Act, the process that has been established in cooperation with the First Nations Lands Advisory Board, which is running that process on behalf of the first nations, is taking up to two years, and may accelerate as we have more experience and have more model codes in place.

That's the time it's taking for first nations to develop their own land codes and procedures and how they want to manage that, to get their community ratification, and for us to go through all the environmental assessments, the legal descriptions of the lands involved, etc., and make sure all of those, the legal descriptions and environmental situation, are cleaned up prior to the transfer of responsibility to first nations. That can take two years now under the process. We hope to be able to accelerate that. There is a significant range, depending on the type of self-government agreement one has in mind.

The Chair: Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Are you telling me that in some sectors, C-7 would not apply anymore, but in others, who would not have been negotiated, C-7 would continue to apply?

Within a sector agreement, some parts of C-7 wouldn't apply anymore to the nation concerned, but other parts of the bill could continue to apply. Is it the case?

[English]

Mr. Warren Johnson: In theory, that is possible, but I would expect as a practical matter, since all of the core aspects of governance are in Bill C-7, that it would be unlikely that a first nation dealing with a self-government agreement would deal with one but not another one of those issues. I think the more practical question is that sectoral self-government agreements don't necessarily deal with governance, like in land management, etc. So in those cases, Bill C-7 would likely continue to apply, but then again, depending on the results of the agreement.

The other agreements, the broader self-government agreements that are not specifically of a sectoral nature, usually do, and I think it would be very unusual that some of Bill C-7 would still apply. And while I'd have to think perhaps more carefully about this, it's more likely that none of it would apply.

We can take any examples of the agreements, where all of the subject matters provided for in Bill C-7 are covered. For example, if one looks at the Nisga'a agreement, it calls for the Nisga'a to develop their own constitution, and then if you look at the points that will be developed in that constitution it's ratified by their citizens, agreed to by first nations, and in some sense it's something like the codes on governance in Bill C-7. It talks about things like how the constitution must be provided for, how laws will be enacted, how they will be challenged; it requires the Nisga'a government to be democratically accountable to the citizens; that elections should be held every five years; that there will be specifications in terms of residency, age, and other requirements, in terms of who can vote but that they all can vote; it requires a system of financial administration comparable to standards generally accepted by governments in Canada; and that the Nisga'a government will be financially accountable to Nisga'a citizens, etc.

So we find in the core of any of the comprehensive self-government agreements the very same kinds of matters that one finds in Bill C-7. So it would be most likely, I think, that none of it would apply in that circumstance, as opposed to, for example, when there are local redress mechanisms. Almost every one of the key principal features that relate to the empowerment of individuals that is at the basis of Bill C-7 one finds in the self-government agreements as well. That may be why, for example, in the case of the Nisga'a, Joe Gosnell went on the record to point out that with Bill C-7 in place, it probably would have saved them several years of work in terms of what they had to do subject to the ratification of their agreement, because the jump between what they were doing under the Indian Act--even though no one would argue that the Nisga'a was not a very well functioning first nation in terms of how it worked as a nation group as opposed to a band--and where they wanted to go in self-government was so large it was a huge amount of work for them to put in place.

À (1040)

The Chair: Mr. Clark.

Right Hon. Joe Clark (Calgary Centre, PC): Thank you very much, Mr. Chair and colleagues.

You will know that because of the illness of Inky Mark, our regular member on the committee, we have not been able to be represented here. I regret that, because this is an important piece of legislation. I am particularly interested in it because I've had the opportunity to be involved in extensive and real consultations with aboriginal people in earlier incarnations, both during the Charlottetown Accord and of course as a minister in the government that set in place the royal commission a decade ago.

I have some very serious reservations, as my party does, about this legislation, which I will return to later. I understand we are now dealing with the latter stages of clause 35. I'd like to refer back for a moment to clause 33, which talks about the capacity of the Governor in Council to make other regulations, I take it, on its own. I assume that clause 35 is not subject to the power given to the government under clause 33....

Mr. Paul Salembier: That's right.

Mr. Joe Clark: So the only way in which there can be an addition to this list is, did you say, by actual change in legislation?

Mr. Paul Salembier: Yes. It would be a consequential amendment in a self-government statute for another first nation that's taking on self-government.

Mr. Joe Clark: Which could itself be subject to significant delays in the House in the normal process of getting a bill through, so there could be a lag time between the signing of an agreement and the protection of that agreement under this legislation?

Mr. Paul Salembier: It's not a question of protecting the agreement. It would be a question of exempting that first nation from the requirements, and removing them from taking away the powers that this legislation gives that first nation. Until they have a self-government statute that gives them new powers, they would require the law-making powers under this statute to continue. Otherwise, their government would cease to exist in the interim.

Mr. Joe Clark: I'm interested in the lag time between their acquiring, by way of negotiation, the status of the four groups specified in paragraphs 35(a), (b), (c), and (d). The lag time between their acquiring that status and being exempt under this legislation would be as long as it took for new legislation to be introduced to the current section 35. It could be anywhere from ten minutes to three years.

À (1045)

Mr. Warren Johnson: Perhaps I could clarify. The relevant legislation, in terms of the situation you're describing, is the legislation that gives effect to the agreement itself. There doesn't need to be a consequential amendment to this act. The legislation giving effect to the agreement will clearly define the situation I'm describing, where the Indian Act no longer applies and where any acts do or do not apply.

There is actually no legal requirement to add anything further. In fact, there's no legal requirement to even do the ones that are here. Clause 35 begins with the words “For greater certainty”.

Mr. Joe Clark: Yes, I understand that.

Mr. Warren Johnson: It's a comfort clause. The legal effect is actually in both these agreements and the other agreements. Since Bill C-7 was not in place when these agreements were put in place, I think it would be clear legally, but for greater clarity we're making reference to them here. For any future agreements, we'll deal directly with it in the agreement and the implementing legislation. There's no further requirement for an addition here.

Mr. Joe Clark: Okay. The law that created a fifth band would itself amend clause 35 of what is before us now as Bill C-7.

Mr. Warren Johnson: Yes.

Mr. Joe Clark: Okay.

To go back to the earlier question with respect to clause 33, is there any way that clause 33, on the power to the Governor in Council to act by regulation, can affect any portion of clause 35 that we're now studying?

Mr. Paul Salembier: Again, the answer would be no.

Mr. Joe Clark: Have any other bands sought to be included in clause 35?

Mr. Warren Johnson: I'm not aware of there having been any formal application in that regard, because the act doesn't exist in the sense that the level of formality doesn't exist.

There has been a not insignificant amount of discussion, less the question on clause 35. As we noted, it's automatic and is in their own agreement. They don't need to seek an exception under Bill C-7. They'll be negotiating the application or non-application of various acts in their own self-government agreements. It has been more with relation to the potential exemption from Bill C-7, provided in the earlier clause 34, for those who are close to self-government negotiations. There have been a number of first nations interested in us speculating on what the actual time periods are likely to be. This does not come into force until the regulations are in place, so how long is it likely to take?

They are thinking about it in the context of where they are now in their negotiations and whether this is going to potentially apply to them, given where they're at. The inquiries have been more along that vein in terms of us speculating on the various provisions of the bill coming into force, and whether they want to have a discussion about being exempted from the bill because they may think they'll be close at that time.

Mr. Joe Clark: What has been the result of the discussions?

I apologize for my absence from this committee in the past. Has there been any amendment of the bill to take into account the concern to which you've referred?

Mr. Warren Johnson: I stand to be corrected, but I think the significant amendment that has been made here is on the whole time period of the coming into force of a number of the sections of the bill that commence when the default regulations are available.

À (1050)

Mr. Joe Clark: Yes.

Mr. Warren Johnson: It has been extended to three years, as opposed to two years, because there are still a few motions yet to come. Consistent with that, last night the two-year period to seek the exemption was also extended.

It's why there's some speculation and interest on first nations about the time period of three years from the regulations. The regulations will take a year of work once we know the final characteristics of the bill. The bill is not yet complete. People are speculating on whether the end point is three years or five years, given the legislative timetable, the regulatory consultations that need to occur, etc., and their own progress.

Mr. Joe Clark: But after the now three-year period, the guillotine falls, assuming there has been no compliance with the regime dictated by the government, on every band, with the exception of these four specified quotes for greater certainty in paragraphs 35(a), (b), (c), and (d).

Mr. Warren Johnson: That's not quite correct. The period in clause 34 is the period in which an exemption can be granted. The exemption, by definition, if we think about the subject matter, is to have an exemption until you've completed your agreement, so you don't necessarily have to come under the provisions of the act. The exemption could be for another two or three years into the future. We're speculating in terms of how this would all unfold, but the exemption would carry on beyond that three-year period. That's the period in which you would apply for the exemption.

Mr. Joe Clark: I appreciate that precision. That exemption, however, is granted by the Governor in Council. That is not consensual. It is the government exercising its will over the destiny of individual bands and band councils with respect to whether or not an extension will be granted

Mr. Warren Johnson: Yes. The extension is a discretionary authority of the Governor in Council.

Mr. Joe Clark: Right. It's an opportunity for the Government of Canada to act unilaterally in the absence of an agreement with the first nation in question.

So the only first nations with guarantees of exemption are the four that are stipulated in paragraphs 35(a), (b), (c), and (d).

Mr. Warren Johnson: And any that conclude agreements within the period we're talking about, which could be as long now as four or five years.

Mr. Joe Clark: Any that conclude agreements that include a consequential amendment to this bill.

Mr. Warren Johnson: Yes, and any band dealing with governance in their agreement that wasn't doing a purely sectoral agreement, for example, in land or education or something, would automatically be doing that. That's the standard part of the agreement. We know there are a number coming forward in that period.

Mr. Joe Clark: When this portion of the bill was being discussed.... And I fully understand there is a very fundamental dispute about the adequacy of the consultation, but for the sake of argument, let's accept the argument--

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

Mr. Hubbard.

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

I guess we're pretty well concluding our debate on clause 35, but I do want to say we certainly welcome the honourable member to our committee. It was of concern that his party's member on this committee has been affected with illness, and I certainly sympathize with Mr. Mark from that point of view.

It has been a concern that after a long period we've not had representation from the Progressive Conservatives on committee, but I do want to say that when the honourable member came I was quite taken by the fact that he sat between two parties who have lacked a lot of meat in terms of the discussions we've had on the bill. From the interventions he has made, I think they probably have learned a few points in terms of legislation.

I noted that from his experience and his work here on the Hill he was able to use the witnesses effectively and try to explain the legislation to all of us around the table. I want to commend and thank him for that. I'm not sure how long that sandwich will continue, Mr. Chair, but there were some very good thoughts put before the committee in terms of how the sandwich on the other side has been improved.

With that, I think we're ready for the vote, but I hope he and his party can continue to represent themselves as our discussions continue.

The Chair: We'll have a recorded vote on clause 35.

À (1055)

Mr. Joe Clark: Mr. Chair, I don't want to--

The Chair: You don't have the floor, Mr. Clark. I called a vote.

Mr. Joe Clark: Let me--

The Chair: No. Turn off that microphone.

I called a recorded vote on clause 35. The clerk has the floor.

Mr. Joe Clark: I have a point of order, Mr. Chair.

The Chair: There's no point of order. I called the vote. You've been around long enough; you know that.

Mr. Joe Clark: I've been here a long time.

The Chair: I am not giving you the floor.

Mr. Joe Clark: Look, I didn't come here for a confrontation on this matter, and I trust, sir, neither did you. These are important issues, and I'm raising a point of order.

The Chair: You do not have the floor.

There's no point of order after I call a vote. You know that. The clerk has the floor.

We have a recorded vote on clause 35.

Mr. Joe Clark: Let me record a protest and an intent to raise this in the House of Commons.

The Chair: You do that to the Speaker of the House.

Mr. Joe Clark: I shall.

(Clause 35 agreed to: yeas 8; nays 5)

The Chair: We are now on amendment CA-48, page 212.

Mr. Maurice Vellacott: I think the issue of access to information applying in respect to all documents produced by the council of a band is a pretty crucial one.

One of the parliamentary associations that I'm part of is the Inter-Parliamentary Union. This is a body of some 144 member countries trying to promote democracy and some of the other good things that I think are necessary, advancing peace and security, and so on. One of the crucial things, though, is that of democracy.

Just reading through their declaration, they talk in terms of democracy being a universally recognized ideal, based on values common to people everywhere, regardless of cultural, political, social, or economic differences. As an ideal, democracy aims to protect and promote the dignity and fundamental rights of the individual, to achieve social justice, and foster economic and social development.Democracy is a political system that enables people to choose freely an effective, honest, transparent, and accountable government. It's based on two core principles: participation and accountability. Everyone has the right to participate in the management of public affairs; and likewise, everyone has the right to access information on government activities, to petition government, and to seek redress through impartial administrative and judicial mechanisms. Democracy is always a work in progress, a state or condition that is constantly perfectible. Sustaining democracy means nurturing and reinforcing a democratic culture through all the means that education has at its disposal.

I would be under the impression that the government may not support this. There are probably technical reasons or something. I'm not exactly sure why not. But Mr. Reid, the information commissioner, suggested that the act apply to bands. This is an independent person outside our committee who has worked in this area long enough, in terms of access to information, and so on.

For the life of me, I can't understand why the government did not include this provision, although I know there's some reference and hints of that. At the end of the day, if that's put in, in clause 6 in particular, which we were looking at with the parliamentary secretary just moments ago....

Paragraph 6(1)(d) is a reference to this aspect of access to information, and paragraph 6(2)(d), and also paragraph 6(4)(c). I notice in all those places it talks about “An administration of government code must include rules respecting”, getting down to paragraph 6(1)(d), “access to the minutes by members”, and in paragraph 6(2)(d), “access to those records by members of the band.” In paragraph 6(4)(c) it says, “respecting access to information under the control of the band, protection of personal information under its control and access by individuals to information about themselves”.

But what I notice here and my understanding is that under this it may well be that they come up and say take a hike; there is no access. You don't have any kind of opportunity to get a look at the documents in respect to those produced by the council of a band. That would be very concerning.

I realize the membership are the ones who actually weigh in on this and decide yea or nay, whether they want any kind of access at all or what degree of it. It's an issue, particularly for me, of trying to balance off that matter of people having ownership and deciding how they want to do it themselves against what to me is a very vital, crucial issue such that you want to be a little stronger than just throwing out a possibility there when in fact, through the ITU, this Inter-Parliamentary Union, and others, it's pushed pretty hard in terms of the necessity of having access to information, access to documents--in this case, produced by the council of a band.

So I know it's a bit of a push-pull as to what degree of specificity you want to have in regard to direction or instruction to a band council, but to me, this is really at the heart of what we're trying to do in terms of an open, transparent kind of government.

I'm well aware that there may be members who make the argument that it should only be available or accessible to members of the band. I would have some hesitations about that approach in the fact that I know that at any level of government here in our country and in first nations there is that sense that it's an important level of government. “Nation to nation” is often a term that is used.

Á (1100)

If you go to your city council, they don't ask you if you're from B.C., or from another jurisdiction, or from that city. You can make the request and have those particular documents that have probably been on the public record by way of a public meeting, or other kinds of documents available as well.

Provincially and federally, all this stuff is recorded. It's even being televised--such as some parts of our committee hearings here.

I just feel unsettled at the fact that one of the first nations across the country might be looking at these particular sections and saying, well.... I would hope that many of them would, and I want it to be on the record that, for my part, my humble attempt, this whole thing is a strong encouragement in terms of basic rights--and internationally, at that, not just Canadian here--that there be access to those documents produced by the leadership, by the council of a band.

So I want to stress that. I think it's so fundamentally important to the growth and development and the maturing of any democracy, and no less the first nations in our country. I think of how hard it is for them in terms of being fully in stride and in sync, if you will, with some of the other norms across the world, internationally and democratically. I think that would be fundamentally important. I can't accept or buy the fact that it's kind of secret, their realm only, when in fact somebody who's not in a particular city or province can go and get access to all kinds of interesting documents now.

As I was reminded by a colleague before--in fact, the parliamentary secretary--and we talked about this when Mr. Comartin was here, it does produce work for lawyers in deciding what is whitened out, or blocked out, or blanked out. That's true. Still, I'm not sure of any other approach, if there are other suggestions as to how to proceed without that elaborate kind of screening and vetting before it's even released. Certainly we're open to that, I would think.

I want to ask our witnesses--Mr. Salembier at the table now--if I understand clause 6, it seems to at least suggest to me in subclause 6(1), and then in paragraph 6(1)(d) in particular, that “An administration of government code must include rules respecting meetings of members of the band and, in particular, rules”--in the last part of paragraph 6(1)(d)--“respecting...access to the minutes by members.” This is on page 5.

But I take it to mean as well, as I said before, that the particular first nation could simply say forget it, it's off bounds; it's not available; it's not accessible. I would hope they wouldn't say that, but I think that's a theoretical possibility, if I read this correctly. Would that be true?

Mr. Paul Salembier: There are certain requirements in the bill itself that cannot be overridden by a contrary provision in a code, under clause 6. Under clause 9, all financial statements have to be made available to band members and in fact to the public. Under clause 12, all band policies, directives, laws, and so on also have to be made available to its members.

Beyond that, as you point out, the first nation can, by a vote of its members, decide not to make certain documents of it publicly available. In other words, they can establish their own rules for access to information that accord with their traditions, customs, and culture.

Á (1105)

Mr. Maurice Vellacott: That is to say, the long and short of it may well be I don't know what the customs and culture would be in each of those respective band situations, but theoretically I think you've reinforced my point that they could say, in respect to documents.... I grant the difference there in respect to financial statements, and so on, those other things you alluded to there, but that's my contention. I think there is interesting stuff that comes up, and it keeps governments accountable federally, provincially, and municipally, all through our country and elsewhere in the world where there are decent access-to-information rules applying.

I think some of those other documents are important. We obviously have in camera meetings and there are verbal discussions. There may not be, but we're talking about documents maybe in respect to the letting of a contract.

I had a rather disturbing bit of information come my way just the other day from a situation. I think it's rare, because I--

The Chair: I'm afraid we won't be able to hear it, because your time is up.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, on a point of order, I move that we adjourn to the call of the chair.

The Chair: I have a motion to adjourn.

(Motion agreed to)

The Chair: We will now adjourn.