AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 3, 2000

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Good afternoon, everyone. Pursuant to Standing Order 108(2), the committee is proceeding to a second briefing session in a series on the Indian Act.

Our witnesses are the same as for yesterday's briefing session. From the Department of Indian Affairs and Northern Development we have Mr. Bob Watts, assistant DM of lands and trust services; Mr. Ray Hatfield, assistant director general of the registration, revenues, and band governance branch of lands and trust services; and Mr. Al Broughton, the senior counsel of lands, trust, and corporate services of the legal services branch.

I understand we have a second presentation. I hope everybody has it in the appropriate official language at their seats.

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Mr. Watts, as soon as you're ready, please begin.

Mr. Bob Watts (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): Thank you, Madam Chair.

As with yesterday, the speech I will give will be a condensed version of the one that's been distributed, so folks who are trying to follow along may not be able to follow along word for word, because my speech will be a bit shorter than the written text.

Yesterday we reviewed the broader history and context of the Indian Act in some detail. We dealt with the theory of the act and the theory of various approaches to change that have been recommended. Today, with your approval, I would like to turn to the challenge of modernization more directly and focus in some detail on the two main focus points the committee had identified: membership and elections.

As discussed yesterday, the Royal Commission on Aboriginal Peoples made a detailed study of the Indian Act regime and chose to recommend against any piecemeal legislative reform of the statute. For the commission, there was a need first to re-establish the political geography of aboriginal-federal relations and concentrate on rebuilding first nations into larger tribal or national groupings with less fragmentation of opportunities for cultural and economic growth.

The government's response to the royal commission was set out in January 1998 in Gathering Strength—Canada's Aboriginal Action Plan, in which the federal government acknowledged the mistakes of the past and confirmed its commitment to a new, modernized relationship with aboriginal peoples in Canada. The launching of Gathering Strength—Canada's Aboriginal Action Plan effectively ushered in a new era of relations between the Government of Canada and first nations.

As you know, Gathering Strength is a comprehensive action plan that is based on four themes. Those are: strengthening the partnership; building strong accountable aboriginal governments; designing a new fiscal relationship; and supporting strong and healthy communities, peoples, and economies. Gathering Strength focuses on the rebuilding agenda and takes as its starting point the need for a new partnership with first nations. In particular, the government has stressed the importance of good governance models and practices and added new funds to the cause of capacity-building so that first nation communities have the tools to take on added responsibilities.

Special attention has been given to the important role of first nation women in governance, recognizing the historic disabilities they have been subjected to, including those imposed by the Indian Act. On this front, the department has established a special women's issues and gender equality directorate under the direction of John Sinclair, senior assistant deputy minister of policy and strategic direction.

The lands and trust services sector undertook to implement the partnership and good governance themes of Gathering Strength, and by mid-1998 a basic approach with the Assembly of First Nations had been developed—what is called the joint initiative on policy development—to review and agree on changes to the operational and policy framework for lands and governance administered under the Indian Act in order to enhance first nations' control over as broad a range of matters as possible.

The joint initiative flows from the federal government's recognition that it has been imposing policies on first nations for far too long. Then too, federal policies are usually designed in the “one size fits all” mode, as though all first nations were identical. But as we are all aware, first nations in Canada are remarkably diverse culturally, socially, economically, and geographically.

The joint initiative is looking at ways to create options within policies and operations that first nations can use in a way that actually benefits them. Our vision is to develop joint policies that are tools, as opposed to obstacles.

The joint initiative has considerable scope and is unprecedented in its potential. The LTS sector manages the core provisions of the Indian Act. Our 21 business lines span all of the archaic provisions of the act that have given rise to so much criticism and an increasing number of court challenges. Within the joint initiative it has been agreed to organize those business lines under 12 main headings. Those are: fiduciary relationship; elections and leadership selection; membership and citizenship; environmental protection; additions to reserves; moneys, implementation options; law-making; natural resources; lands management; wills and estates; and capacity requirements and costs.

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The mission of the joint initiative is to “facilitate First Nations in directing change to LTS policies and support First Nation policy development”.

The Chair: Mr. Konrad has a point of information.

Mr. Derrek Konrad (Prince Albert, Canadian Alliance): I don't know what LTS means. Will you identify that?

Mr. Bob Watts: I'm sorry; it's lands and trust services.

Mr. Derrek Konrad: Lands and trust services. I must have missed that. Thank you.

Mr. Bob Watts: The joint initiative's major objectives are: one, to improve services in the LTS sector; two, to engage in co-management activities; three, to move towards full management of lands and trust services activities by first nations; and four, to build a partnership between the Assembly of First Nations and the Department of Indian Affairs and Northern Development with respect to lands and governance and build a positive relationship between first nations and the federal government.

The joint initiative is now entering its second full year of work, and preparations are being finalized for a national gathering on the joint initiative to provide policy options on five lead themes: elections, membership, additions to reserves, moneys, and environment.

The committee, as we understand it, is particularly interested in the registration and membership areas and the impacts of Bill C-31 to date.

For the past half-century the membership and status regime of the Indian Act has been the object of ongoing attacks and criticism from first nations, Indian women's groups, parliamentarians, and human rights agencies. The major grounds for opposition have been twofold: the fundamental inequalities and discrimination built into the various provisions of the 1951 Indian Act and the arbitrary determination by Parliament of who is and who is not a first nation citizen, thus stripping first nations of the right to control their own membership.

Considerable improvement in meeting both challenges occurred with Bill C-31 in 1985. Nevertheless many issues remain, and demands for reform are growing.

The current status and membership regime was introduced in 1985 and is set out in sections 5 to 14.3 of the Indian Act. The primary objective of Bill C-31 was to undo the discriminatory provisions of earlier legislation in relation to entitlements to membership. To paraphrase the minister of the day, the legislation was aimed at removing negatives, not adding positives. As a result, a great many changes to the act that different first nation groups sought were not accepted and were left for another day.

Bill C-31 also recognized a band's power to enact membership rules, reversing the Indian Act's erosion over the previous century of first nations' historic autonomy in this area. No disallowance or approval powers over the substance of first nation membership rules were granted to the minister. This was considered an important measure of recognition of self-government and part of a political compromise involving restoring status and membership to those who had been discriminated against in earlier legislation.

A key feature of the 1985 act was the replacement of all the earlier exclusionary rules on membership or status with a new single exclusion rule for status, popularly known as the second-generation cutoff rule. The new status eligibility rule then is simply that all persons entitled before 1985 remain entitled, all persons who had status or membership and lost it are reinstated, and any new applicant must show they have at least one parent amongst the latter two groups. As a result, in many situations the first-generation children of persons reinstated are provided recognition as status Indians under subsection 6(2).

A closely related decision of Parliament was to provide equal treatment between marriage partners only from 1985 forwards, with the result that the act permits a remnant inequality of treatment between cousins who are otherwise genealogically and culturally identical.

These provisions are the two most commonly cited as evidence of continuing discrimination in the act that is in need of reform, but the first is of particular importance as well to membership.

The Indian registrar does not maintain data on membership, although enough is known of membership rules to draw some conclusions about the relationship between membership and status regimes. Of the 234 first nations that have assumed control over membership since 1985, the vast majority did so before June 27, 1987, the cutoff date for any membership rules to exclude some reinstatees or first-time registrants. Indeed many of the membership rules adopted chose a double-parent rule to apply to all members, which is more stringent even than the pre-1985 Indian Act.

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From a demographic perspective, the impacts have been significant, both on first nations and on DIAND's operations and budgetary pressures. The current statistics from the Indian registrar indicate that as of the end of March, there were 660,873 registered Indians. Bill C-31 can be credited with the first-time registration or reinstatement of 122,226 persons over the last 15 years. This represents a little under 18%.

In comparison, the overall growth in first nation membership has been less pronounced, given the fairly narrow entitlement provisions most have adopted. This could be a consequence of cultural values of course. Alternatively, as first nation participants in a recent focus group for the joint initiative have indicated, the reason may lie with perceptions about resource limitations tied to the status regime. In short, as long as government is seen to be linking first nation funding to status entitlements, status entitlements will set out the likely outer boundary for membership.

The only significant break in this trend is where bands break out of the Indian Act regime entirely and adopt a new beneficiary system in connection with land claim settlements and related self-government agreements. Some examples are in the Yukon and the Nisga'a agreement.

The demographic consequences are not insignificant. According to a study done for the department, the second-generation cutoff rule built into Bill C-31, based on current out-marriage trends, will lead to an increasing collapse of the status populations after about 2035. However, based on the majority of membership rules in place now, using a double-member parent rule, the first nation membership figures, at least for those bands, will begin to decline earlier and more rapidly. For example, there are bands in Ontario and in Alberta whose membership rules will likely result in those bands ceasing to have any members within as little as a decade.

Bill C-31's introduction of a new equation for first nation membership control and a retained but altered status regime was the first time Parliament had to respond with changes to a core area of the Indian Act system as a result of the Canadian Charter of Rights and Freedoms. The experience was a crucially important one for hundreds of thousands of first nation members, but the response capacity of both the department and first nations was constrained. Serious backlogs in processing registration applications plagued the department and applicants, and these have only recently been wrestled to the ground. The number of protests with respect to registration has increased greatly, particularly since over 42,000 applicants have been turned down. Similarly, first nations were provided limited funds to establish their own membership rules and are not funded to manage ongoing administration, disputes, or appeals.

Membership and status issues have attracted the largest number of court challenges of any other topic covered by the act, with over 60 current cases, most of which contest provisions of Bill C-31.

The other major pressure for reform is not litigation but resource capacities. First nations are now increasingly engaged in administering not only their own membership regimes, but also, through delegation, aspects of the Indian registry process. Currently some 450 part-time and full-time personnel at the first nation level are engaged in delegated registry administration for 537 first nations, or 88% of the total number of first nations. Funding for this level of first nation engagement is not at parity and does not take into account the tasks of administering membership systems, let alone dealing with protests and appeals under first nation membership rules.

The committee has noted interest in the issue of marital breakdown and the implications for both membership and property interests. Marriage breakdown has no effect on registration entitlements, but some first nations may have membership rules that revoke entitlements of a person who acquired membership rights through marriage and subsequently divorced their partner. This can give rise to very difficult questions about the division of property.

Under the Indian Act, provincial laws of general application apply in respect of movable property, such as furniture, automobiles, financial assets, and the like. However, provincial laws do not apply to interests in reserve lands. At the same time, the act is silent as to the distribution of marital property, and this has led to a vacuum.

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Most recently, passage of the First Nations Land Management Act gave rise to a controversy over the protection of matrimonial property interests. While the legislation was altered at the committee stage of the House to address these concerns, litigation is pending, so I really cannot comment on all the issues that were addressed through that process. Certainly, however, there is a clear need to fill the void within the Indian Act itself on the question of division of property. Charter standards will be of great importance, as well as the need to maintain the integrity of first nation lands and respect the reality that a great many reserve lands also fall under aboriginal title.

The Supreme Court has decided that dealing with property rights in such cases requires equal respect for both the common law or statutory provisions, and aboriginal laws and practices.

I would like to turn now to the key theme of first nations governance, and in particular first nations elections. As I mentioned earlier, the 21 business lines covered by our joint initiative with the Assembly of First Nations includes elections. The joint initiative has in fact identified elections as one of its five key themes.

The challenge faced in reforming the Indian Act election system is that there are several different regimes now in place for the election or selection of first nation governments. These fall broadly into two categories: the common two-year system provided for at sections 74 to 79 of the act; and the wide range of systems now in operation under first nation control, broadly referred to as “custom”.

There are currently 611 bands or first nations in Canada. Of these, 268 first nations select their leadership pursuant to the electoral provisions of the Indian Act. It should be noted that 17 of these bands have been exempted by the governor in council from the application of residence restrictions on the vote.

With respect to first nations outside of the Indian Act election system, a total 326 select their leadership pursuant to community-based electoral systems and/or in accordance with their respective customary practices. The remaining 17 first nations have negotiated self-government legislation, which in part governs the manner in which these communities elect their leadership. Some examples of that are the Cree-Naskapi of Quebec Act and the Sechelt Indian Band Self-Government Act.

The diversity of leadership selection systems in place is greatest for those first nations that have always been under custom or have reverted to custom. In contrast, almost all community systems involve elections and are often quite similar to the Indian Act system. Common differences involve residence requirements for voting or for office—some of those being more stringent than under the Indian Act—and longer terms of office and different appeals procedures.

The easiest explanation for the current diversity of systems is the relatively swift failure of the new two-year term system of chief and council elections established in 1951. Prior to that time, the vast majority of bands were under their own customary election or selection rules. Parliament had attempted, before 1951, to induce bands to give up their customary election systems and embrace the modern election model typically required of village or town councils under provincial law. There were few takers, and the 1951 model was not introduced so much as imposed. Hundreds of bands were automatically forced into the election system within a month of the 1951 act coming into force.

The Indian Act, in short, was and remains designed as a one-way gate between unregulated custom and the more normal regime of simple two-year municipal council elections. Calls for reform of the 1951 model did not even wait until the end of the 1950s, with the standing committee of the day proposing, for example, that the exclusion of non-resident members from voting be rectified. However, change has proven exceedingly difficult.

In response, the easiest route to dealing with individual first nation complaints or difficulties with the new election system has been to promote the reversion or conversion to custom or community selection systems, a process that began with a trickle in the 1960s and has been a steady stream every since.

The impetus for reform of the election system has a number of sources, including legal challenges under the charter or aboriginal rights law; general problems of illegitimacy faced by section 74 chiefs and councils, as a result of the electoral regime itself being imposed; the problems associated with defining what “custom” is; and the various disabilities of the act's election system. Many bands find that the terms are too short, there is no autonomous appeal system, voter and candidate eligibility provisions are out of date, and there is a lack of flexibility in polling systems.

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As I said, the joint initiative identified elections as one of its five lead themes for policy development. To date, focus groups, research papers, and working group discussions have begun to identify potential areas for change in both the Indian Act election system and the customary regimes now in place. Obviously, any reforms to first nations electoral systems will have to take into account the diverse cultures and needs of first nations across the country.

While the full range of issues needs to be addressed, the Corbière decision of May 20, 1999, has tended to dominate everyone's attention. As you are aware, subsection 77(1) of the act defines the term “elector” to be a member who is ordinarily resident on reserve, a restriction that was only introduced nationwide in 1951. The Supreme Court has ruled that this restriction is constitutionally invalid under the charter because it imposes a uniform infringement on the equal dignity of band members without any justification, and penalizes what the court has described as a discrete minority that has suffered historic discrimination.

This represents a considerable impact for many first nations, including members living both on and off their reserves. The Corbière decision could add nearly 190,000 individuals to the electorate. This would pose all kinds of technical and logistical challenges for first nations and for the Department of Indian Affairs and Northern Development.

Over the long term, the court has advised that the definition of voters' rights be revised for band members living off reserves. The court also recognized that band members living on reserves may have different interests from those living off reserves. As a result, the court noted that complying with the charter may not require that voting rights for on-reserve and off-reserve members be identical.

What we do know is that any new voting arrangement must recognize the important interests of both off-reserve and on-reserve band members in their communities. Ultimately, this could mean either amendments to the Indian Act or new election-related legislation.

The court has given the government until November 20 of this year to bring the Indian Act regime into line with its ruling, and also provided a number of interesting suggestions for how legislative or alternative solutions might be structured.

The government's response was announced on December 9, 1999, after several rounds of dialogue with national first nation groups. Currently, and up to November 20, a first phase of work is being done in consultation with these organizations and regional first nation groups, in order to put into place the basic regime needed to accommodate and facilitate the absence of any residential restrictions on the vote.

It is expected that amendments to the Indian band elections regulations and the Indian referendum regulations will be agreed to and recommended to the Governor in Council, in order to ensure that on November 20 the first elections to proceed under the new rules operate smoothly. Our goal is to assure that elections are run in a climate of certainty and to reduce to a minimum any election appeals on the grounds of residency.

The second phase of consultation has also been announced. This phase of discussions with first nation groups will continue into the mid-term and focus on broader reform to the election system of the act. The Supreme Court's suggestion that alternative systems might be preferable, such as two-tiered councils, will be explored, as will the court's positive indication that the use of customary selection regimes might be more appropriate. The department is now in the early stages of consultations with national first nation organizations on how that second phase of consultations will proceed, but it is quite likely that Parliament will become engaged more directly at some point.

With that, Madam Chair, my formal presentation is over. I would greatly welcome questions from members of the standing committee. Thank you.

The Chair: Thank you very much.

Mr. Konrad, go ahead please, as the first questioner.

Mr. Derrek Konrad: Thank you very much.

You've laid out many of the problems very eloquently, but of course our problem is to recommend solutions.

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I note that the government is not going to be introducing any legislation this year, but you did say near the end that it is quite likely that Parliament will become engaged more directly at some point. Then I look further and see that you're expected to make amendments to the Indian band elections regulations and the Indian referendum regulations, which will probably be accomplished by Order in Council. Is there any possibility that they would be submitted to the standing committee on DIAND for review prior to regulations actually being amended, so that as a result of the studies we're making here we have an opportunity to have input into that process?

Mr. Bob Watts: Thank you for that question.

Our process in terms of regulatory reform calls for regulations to be developed prior to August 1 of this year in order to be proclaimed and be effective on November 20 of this year. We have consulted with the minister with respect to that process.

My sense, Madam Chair, would be that there's probably some role for the committee to talk to the minister in that regard, so I can't answer that question directly.

The Chair: I won't take away from your time, Mr. Konrad, but I will clarify, because, as chair when we were having our steering committee, I said we were not aware of any legislation coming before us. That technically is correct, because until the House refers us legislation, we can't deal with it in this place. That doesn't preclude a minister from bringing in legislation, and I know nothing more than you. This committee has received a letter that had elections in it, and it's up to this committee's steering committee to decide whether they want to inquire on that.

These consultations were decided prior to us choosing what area we went into. I just do that as a clarification for the record, and for you, if you need it. I don't know if you do or not, but I'm not taking this out of your time—this is on House time, let's say.

Mr. Derrek Konrad: Thank you, Madam Chair.

It comes out of all of our time equally, gentlemen.

I do see some significant suggestions here that talk about bringing voting rights to off-reserve band members. I see that we're going to, in a sense, create two classes of citizens associated with a particular band, I presume, and two kinds of councillors, if I understand correctly. Mixed into that will be the band “custom”: the custom of people living in a city will be different from that of the people who reside on the reserve. Many times I think it would be a rather good idea to bring the committee into it at some stage. You might at least hear a different perspective from what you might in a more controlled environment.

Moving to another area that I'd like to discuss here, on page 4, at the end of paragraph 3, you say, “I will resist the temptation to explore the associated budgetary pressures.” I think associated costs with expanding band lists must be identified. It's my understanding that there are roughly $200 billion in outstanding land claims. As the band membership increases, I suspect that number will also increase. I understand that there are a further 2,000 claims being researched at the present time.

None of this has really been costed by the government, so that we have no idea as parliamentarians or as the people of Canada in regard to knowing what the actual cost is going to be. Two hundred billion dollars, as you're aware, is a third of our national debt. In fact, it's slightly more than our national debt. We don't even know what the government thinks their possible liability may be in these issues.

Just the other day we had $1.4 billion announced by the Samson Cree near Calgary. Prior to that, we had the Walpole Island Band claiming pretty much the entire river between Lake Huron and Lake Erie. There are significant dollars involved. Don't you think that being upfront about those costs is the first requirement to getting any cooperation at all on moving forward on these issues?

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Mr. Bob Watts: I'm really not understanding the nature of the question. By saying that “I will resist the temptation”, I wasn't suggesting that I wasn't prepared to be upfront, but it would probably take many pages and perhaps several days of testimony to talk about how our budget regime is in place. Again, I understand that Mr. Shanks will be appearing before you next week to talk about budget.

Mr. Derrek Konrad: Well, I hope somebody doesn't resist the temptation to explore the associated budgetary pressures, because that's what Parliament is all about if it's about anything: trying to have some handle on the spending and the tax levels in this country.

I'm sure my time's up, so I'll pass.

[Translation]

The Chair: Mr. Bachand, please.

Mr. Claude Bachand (Saint-Jean, BQ): I have to tell you that for me, one of the biggest issues regarding native affairs is the issue of membership. Who is a member? Who is not? Who is registered? Who is not? I'm starting to understand what is the meaning of “registered” and “not registered”, but as far as the band lists and the native status are concerned, I'd like you to tell me who can be a member.

I have specific examples because these are things which happen often within native communities. For instance, there is the whole issue of adoption. If I am adopted by someone who belongs to a native band, do I become a member of that band? I think I can vote, but since I am not a status Indian, I believe you don't take into account the fact that my name appears on the band list as far as the budget is concerned.

If I am adopted, can I vote in the elections? I'd like you to comment the issue of adoption because for them, it's important. It happens quite frequently that non-natives are adopted. These people get more or less the same services as any other native, but I don't know what kind of obligations the department has in their case. I'd like you to tell me more about this first.

Then, there is the whole issue of citizenship which is often raised. I know that in some reserves, citizenship codes apply. Do you recognize these citizenship codes? I know that the Mohawks have a very sovereignist approach. They are Mohawks first and foremost. They are not Canadians nor Quebeckers. They are Mohawks. They often refer to themselves as Mohawk citizens. Is there any legal basis to such a statement? At the same time, the department is changing its views on this issue, because I believe that the bi-citizenship of the Nisga'as has just been recognized. The Nisga'a citizenship code has not yet been approved, and it may be one of the few things which are still missing in this agreement. It doesn't yet include everything.

I know that I'm casting my net rather wide, but even if you have to take 10 minutes to do so and give the rest of your explanation during the second round of questioning, I'd like you to do it, so that these issues of membership, adoption and citizenship get sorted out.

[English]

The Chair: Mr. Hatfield.

Mr. Ray Hatfield (Acting Director General, Registration, Revenues and Band Governance Branch, Lands and Trust Services, Department of Indian and Northern Affairs): I'll try to answer a couple of those issues you raised, one with regard to adoption. There is recognition for custom adoption. When we're presented with that, we ask the first nation for verification of their custom adoption process that has been engaged. Certainly if it's one that's recognized and accepted, the individual then can be registered as a status Indian. In terms of age of majority to vote, they eventually could vote in an election. I believe you were trying to make that link.

In terms of citizenship, there is no recognition of citizenship within the Indian Act. It refers to individuals that are registered as status Indians under the act, and you're right, there is some link to self-government agreements where there's reference to, for example, Nisga'a citizenship. That's the only area we recognize under the act.

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[Translation]

Mr. Claude Bachand: If I get it right, Mr. Hatfield, somebody who has been adopted doesn't have the right to vote. I think I understood that, but maybe I missed what you said at the beginning. Does the department, then, recognize this individual has a true native and take him or her into account when calculating the amount of the grants or the funds provided to the band council? I'm going to give you a rather caricatural example. Let's suppose that a 300 people band decides to adopt 100 individuals. Is the band's budget going to be adjusted according to the fact that there are 400 people on the reserve, or do you consider that these adopted individuals do not have the status of registered natives?

[English]

Mr. Ray Hatfield: The example you described has never occurred. In fact the custom adoption that we've been presented with usually is in a very limited number, and as I indicated earlier, we would ask for verification of the custom adoption that has taken place. If it's recognized in the community, the registrar would accept it and the individual would be registered as a status Indian and would be included in the population count for the band itself.

The Chair: Thank you.

Ms. Hardy.

Ms. Louise Hardy (Yukon, NDP): Thank you.

In the beginning you went over the Gathering Strength document and the statement of reconciliation. Does your department deal with the cases of residential school abuse, or the Department of Justice? What is happening with the cases that are handled at the table between the department and churches for the individuals who don't want to go to court?

Also, can a woman reinstated under Bill C-31 then pass her status on to her children? I know you dealt with it, but it's not clear to me.

On the section on custom elections, how are those decided? For all the people who come to me with problems in my constituency, particularly the women, it's where the chief has been elected for life and they end up with, in many cases, no recourse, no place to go, no one to appeal to under those circumstances.

The Chair: Mr. Watts.

Mr. Bob Watts: The presentation we've made hasn't gone into residential schools. That's not covered by my part of the department, so I really can't comment on residential schools.

With respect to women who have been reinstated, in almost all cases women who have been reinstated are referred to as “6.1 Indians” and have the ability to pass on their status to the next generation. I'm trying to think if there are any exceptions where women who have been reinstated cannot pass on status.

Mr. Al Broughton (Senior Counsel, Lands, Trust and Corporate Services, Legal Services Branch, Department of Indian Affairs and Northern Development): No, I don't think so.

Mr. Bob Watts: With respect to custom elections, I think it depends on the community custom. Many communities in Canada have never been brought into the Indian Act with respect to the electoral regime, so they operate on a custom system. Some may be hereditary systems, some may not be. In the case where some communities may revert from the Indian Act to their custom, they do it through a referendum, and they're expected to have an entire electoral code in place consistent with the Charter of Rights, with appeal procedures and all the procedures that any electoral code might normally have.

The Chair: I think there's a written policy on that point in the department, is there not? And if so, if I'm correct in that, would you please table it and distribute it to the committee? Am I correct, Mr. Hatfield?

Mr. Ray Hatfield: Yes, you are. We have a conversion-to-custom election policy. As Mr. Watts indicated, there are certain criteria, provisions that are required prior to the first nation being allowed to revert to custom election. We can provide that.

The Chair: You will table it?

Mr. Bob Watts: Yes, we will.

The Chair: Okay. If you give it to the clerk, we'll distribute it.

Ms. Hardy, go ahead. You have more time.

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Ms. Louise Hardy: That's okay.

The Chair: Okay. On the liberal side, who would like to start? Mr. Iftody.

Mr. David Iftody (Provencher, Lib.): Thank you very much.

I wondered if you could elaborate a bit, Mr. Watts. I actually had two questions. I was interested in your comments on the question of non-movable chattel—in other words, the homes on reserves—in the event of a marital breakdown. But I'll leave that for now.

I wanted you to comment, if you could, a bit more fully on the protections within the charter with respect to band elections. You said the charter applied. Perhaps legal counsel from the justice department could elaborate just a bit more on that policy framework and the checks and balances. Surely that policy is shrouded by, governed by, and designed through the specific charter protections.

Could you perhaps help us a bit, talk about that a little bit more, give the members some assurance that in those conversions in and between custom and non-custom band elections, there are hybrid models—or what happens—but that in any event, however it's governed, the charter applies, and then beyond that, the administrative rule of law and what appeal processes and remedies are available for somebody who feels that their rights may be abridged in any way under that process?

The Chair: Mr. Broughton.

Mr. Al Broughton: Perhaps I can answer at least some aspects of that question.

It's our view generally that the charter does apply to bands and band councils under the Indian Act just as a matter of law. I can't answer—and I don't know if Mr. Hatfield can—in regard to the steps that are taken by DIAND to examine those election regimes when they come in. Certainly DIAND's and the justice department's position has been that the charter will and does apply. There may be certain aspects of the charter that don't apply directly. For example, I think there are certain electoral requirements under the charter. I'm sorry I don't have it with me, so I can't cite them exactly.

Mr. David Iftody: Excuse me. Maybe I was talking particularly about section 7 under natural and procedural justice. Within that section, for example, all the jurisprudence that's developed under that particular section of the law, obviously these same sorts of protections would be available to all first nations people in light of that. Could you talk about section 7 a bit?

Mr. Al Broughton: Well, certainly in terms of natural justice, fairness, and administrative law principles, the first nation members can and do apply to the courts when a decision has been made by a council or by an election official that they think has been made without taking their interests properly into account. So absolutely, the administrative law remedies are probably the most common remedies available to band members under a custom election system, aside from whatever the appeal mechanism may be for that first nation, which the Department of Indian Affairs wouldn't necessarily know about.

So there are two possibilities there: the appeal mechanism that the custom system itself may include; and administrative law remedies that would be open to any member to bring to court on a summary basis.

Mr. David Iftody: In the case, for example, where you had a particular custom review process, the court could rule on whether it was fair procedurally, substantively fair, and gave the proper rights to that Canadian citizen. In other words, even in that angle of process within elections, those rights in a review of that process in terms of its overall charter application would be open to any plaintiff.

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Mr. Al Broughton: Absolutely, to any plaintiff who has an interest. Essentially any band member or any person claiming entitlement to be a member would have standing, I would think, to bring such a case to court and to enforce his rights.

Mr. David Iftody: Thank you.

Thank you very much, Mr. Chairman. Those are all my questions.

The Acting Chair (Mr. John Finlay (Oxford, Lib.)): Thank you, Mr. Iftody.

Mr. Konrad.

Mr. Derrek Konrad: Thank you, Mr. Chairman.

I see that one of the five major areas where litigation occurs most commonly is discrimination under membership rules. That includes rights to membership, rights to residence, rights to receive treaty payments, and rights to per capita distributions.

I have a family who has approached me on, let's see, at least three of those grounds in respect of a band. The mother and two of the children who were born after the couple were married were included on a band list. Now, I think it was a band list—and I might stand to be corrected—used to acquire funds. The band used their names to acquire funds under Treaty Land Entitlement but they were denied the right to reside on the reserve, which is a remote reserve.

After considering all of the implications, they decided they didn't want to live on the reserve anyway. Nonetheless, the band still retained the funds that were paid to the band to buy land that should have been used for their benefit.

What are their rights in that case, and where do they appeal? Do they have a right to any of the funds that were made available to the band despite the band first denying them the right to be there and then so poisoning the relationship that they no longer wanted to reside on the reserve? They simply wanted to take the funds that were made available and buy a chunk of land somewhere and farm it or log it or whatever they decided to do with the funds. What is their recourse?

Mr. Bob Watts: I'll start, after which Mr. Broughton may want to join in.

I'm not familiar with the specific case, but I will say that in most treaty entitlement frameworks the calculations may indeed be made on a per capita basis, but they aren't made with the intent that distributions be made on a per capita basis. Rather, the number of people would determine the amount of land that may be available for purchase by the first nation as a whole.

As to how that corresponds with residency rules of the first nation, I first would have to know what the first nation is. I may be able to respond to that in writing. Certainly some first nations in Canada have more restrictive residency requirements than do other first nations.

Mr. Derrek Konrad: Was Mr. Broughton going to try to respond to that?

Mr. Al Broughton: I don't think I can add any better answer.

Mr. Derrek Konrad: If I understand you correctly, these people can simply be denied their right to residency or have their relationship so spoiled and so poisoned that they don't want to reside there and it's just too bad. Is that the answer I'm getting here? The band decides, and that's that?

Mr. Bob Watts: I'm not sure who these people are, who you're referring to. If there's a specific case, it may well be better to do this in writing rather than to try to get some sort of ill-informed response on my part.

Mr. Derrek Konrad: I think the department may already be aware of these people. It's not the first time I've heard this story. It's been told—

Mr. David Iftody: I have a point of order, Madam Chair. I think there are two processes and two questions going on at the same time.

• 1625

If Mr. Konrad is asking the officials whether there are soured relationships in the community, whether relationships go bad, you'll find that in my municipality, his, and everyone else's. Whether somebody's rights are infringed on as a result of actions taken by the chief and council, and their rights are abridged, that's another question. Whether they're unhappy about living there because they don't like the local politicians, well, both he and I also live with that every day.

So I don't know if that's a fair and accurate question to put to senior officials from a government department.

The Chair: I don't think this is a point of order, so we'll just go ahead.

Mr. Konrad.

Mr. Derrek Konrad: I don't want to get into an across-the-floor discussion here—that wasn't my point—but might I respond to the parliamentary secretary?

The Chair: It's your time, Mr. Konrad.

Mr. Derrek Konrad: If any other person decides they don't like the politician and don't like the situation, they can put their house up for sale and move. In this case, the people can't. That is the point. Their benefit is held in common for the benefit of all, and if all are not able to benefit, it seems to me that a right has been denied, regardless of whether it's a soured relationship where people can't live on the reserve or whatever it is.

Is there a mechanism in place that would allow them to take their benefit and ask the band to buy them land somewhere or to make a cash payment available to them? It seems to me that would be a fairly simple thing to do with treaty land entitlement funds.

The Chair: Mr. Broughton.

Mr. Al Broughton: It would always be open for them to ask the band to make them a payment. As far as I know, there's no particular statutory requirement for the band council to agree to that.

You know, there are court remedies available to everyone when they think their rights are being abused, but I can't speak more specifically in this case.

Mr. Derrek Konrad: Well, the federal government, of course, makes funds available to people who want to fight the government, but I don't know if the band makes money available to band members who want to fight the band. I rather doubt it. In that case, you're one person, or two, or a dozen against a very large bank account and a suit that'll be defended aggressively.

I'll pass for now. Thank you.

The Chair: In any event, you're out of time.

Go ahead, Monsieur Bachand.

[Translation]

Mr. Claude Bachand: I have a few questions regarding page 8 of the French version of your document. First, if I get it right, there are two different regimes in place for the elections. One follows the electoral provisions of the Indian act and the other the native customs. I believe the minister has to authorize the use of one regime over the other. I believe that when a native band decides that it doesn't want to follow the electoral provisions of the Indian act and organizes an election based on the custom, the minister has to authorize that. Am I wrong?

[English]

Mr. Al Broughton: Yes, that's correct. Under section 74 the minister may make an order bringing a first nation under the rules of the Indian Act and may also revoke that kind of order, which puts them back under custom.

[Translation]

Mr. Claude Bachand: Thank you.

Second, you mention two types of elections, and I don't dispute that. You even give figures corresponding to each type of elections. You talk about 17 Indian bands in the first paragraph of page 7 and then, in the second paragraph, you mention 17 other first nations. Are you talking about different nations or is it the same bands which are mentioned in the first and the second paragraphs? Do you see what I mean? You mention 17 bands in the first paragraph and again, 17 bands in the second paragraph. I want to know whether you are talking about the same bands or different ones.

[English]

Mr. Ray Hatfield: No, it's not the same 17. I believe the 17 refers to 17 first nations. I just can't find the particular page.

• 1630

The Chair: While you're looking for the page, there will be a vote in 25 minutes. I won't be coming back after the vote, so we'll just go for the remaining time period before this vote. I don't think it was planned.

Continue with your answer.

Mr. Al Broughton: If I may, in the first paragraph on page 7 of the English version, the 17 bands that are referred to have been exempted by Governor in Council from the residence restrictions in the election provisions of the act. The 17 first nations referenced in the second paragraph are first nations that are under self-government, and they're not the same.

The 17 in the first paragraph are under the Indian Act.

[Translation]

Mr. Claude Bachand: In the first paragraph, you note that 17 bands have been exempted by the Governor in Council from the application of residence restrictions on the vote. Does this mean that the Governor in Council or the Cabinet have made a decision in anticipation of the ruling in the Corbière case? It's my first question, because I'm rather surprised.

In the second paragraph, you mention the 17 first nations which, because they have negotiated self-government legislation, are excluded of either category. I suppose that it concerns the seven Cree first nations, three Naskapi first nations and one Sechelt nation. As far as I know, in the Yukon, it concerns 7 nations out of 14. Can you tell us how come you arrive at 17 nations? However, I would very much like you to answer my first question before anything else, because I'm quite interested. For once, have the Cabinet of the Governor in Council made a decision in anticipation of a Supreme Court ruling? Is it the case?

[English]

Mr. Al Broughton: I'd be pleased to answer the first part of that question anyway, about the Corbière decision.

On the 17 bands that were exempted by proclamation under subsection 4(2) of the Indian Act, that happened well before the Corbière decision. In fact, I think that happened before 1990. So those proclamations were made prior to 1990. The Corbière decision followed well after that, but it essentially had the same effect. The proclamations that were made removed the application of the same seven words from the provision.

[Translation]

Mr. Claude Bachand: And what about the 17 nations who have now negotiated self-government agreements?

[English]

Mr. Ray Hatfield: In each of the self-government agreements there are a number of first nations. Under the Yukon First Nations Self-Government Act, for example, there are a number of individual first nations bands.

Mr. Claude Bachand: Seven?

Mr. Ray Hatfield: I believe there are seven and there are 14 in total. The Sechelt is a single band. Under the Cree-Naskapi there would be a single band as well. So there are a number of bands within each agreement.

[Translation]

Mr. Claude Bachand: Could you send us a list of the 17 bands which have now negotiated a self-government agreement? It would be fine with me. You could send it to the clerk, to be distributed to the members of the committee.

[English]

The Chair: Thank you.

Ms. Hardy and then Ms. Karetak-Lindell.

Ms. Louise Hardy: In Bill C-31, when a woman is reinstated and can pass her status on, is there some particular process she has to go through? I know a woman who asked to do that and was turned down flat, with her kids.

The Chair: Mr. Watts.

Mr. Bob Watts: The process for being registered as a status Indian is to apply to the registrar. The woman would have to apply with a separate application for her child. It's the same process we've had in place for many years, and in my view it's a very straightforward process.

Ms. Louise Hardy: What part of your department is responsible for the residential school abuse? You said you weren't responsible.

• 1635

Mr. Al Broughton: At Indian Affairs it comes under Assistant Deputy Minister John Sinclair. It's in the litigation management branch. The Department of Justice also has a team of lawyers working in our office in DIAND legal services, and then there are lawyers across the country who are involved in individual cases.

Ms. Louise Hardy: For your department, what responsibility do you have for cleaning up the toxic sites, and in particular ones that are located within cities? There's a tar pit—a toxic site—right in the city of Whitehorse.

Mr. Bob Watts: That may well come under Mr. James Moore, who's the assistant deputy minister for northern development. The environmental issues my sector deals with are all on reserve, and don't include either the Yukon, Northwest Territories, or Nunavut.

The Chair: You have more time if you wish to use it.

Ms. Louise Hardy: No, that's all right.

The Chair: Mrs. Karetak-Lindell, go ahead please.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): On page 6 you refer to elections done by custom. I know there were some questions about that. I don't quite understand, depending on which band it is, whether that custom has a different method of election.

Louise talked a little about a chief for life. Is that also one of the custom types of elections?

Mr. Bob Watts: Mr. Hatfield may want to join in on this, but maybe I'll answer your last question first about chief for life. That first nation may never have been brought in under the Indian Act in the first instance, so it may not be considered custom pursuant to the Indian Act but custom pursuant to their own ways.

Custom can vary by first nations. Some first nations have adopted a method of custom election that is very similar to the Indian Act—a two-year term, with many of the same restrictions as the Indian Act. Some of them have adopted three-year terms. Some have chosen that anyone can vote, regardless of residency, and anyone can run for office, regardless of residency.

So there is some variety in customs right across the country. Some of it is dependent upon the tradition of the first nation. Some of them are more customized systems of election rather than customs, in the anthropological sense.

Mrs. Nancy Karetak-Lindell: So you're saying that some of these elections are not covered under any elections act per se, the same way a municipal election is covered under a municipal election act within a territory or a province. How do you regulate those?

I'm having a bit of a tough time. We go to foreign countries to oversee elections so they are run fairly and democratically, and whatever. I'm trying to see how we make sure that same democratic system happens in a band, if they're not under an Indian Act or any other act. I'm a little lost here as to how that's determined at the community level. You say someone would appeal if they felt it wasn't run properly. Where would they appeal? What act or regulation would they refer to?

Mr. Ray Hatfield: Under the conversion to community custom election, there is a requirement for the custom election code to be written. It would have those procedures, such as the appeals you mentioned. There would also be a provision for amendment and adherence of the charter.

• 1640

So for those who want to convert or have converted under our conversion policy, there are those kinds of protections you have mentioned. For those Mr. Watts had mentioned earlier, who had not been brought under the act, the codes may not be written; it may be on a verbal basis. And they wouldn't have reference to the Indian Act itself, since they are custom and under their own.

Mr. Al Broughton: Perhaps I could just add a little bit to that. For those first nations that are under their own original custom, have never been brought under the Indian Act, and have no written code necessarily, as I mentioned before, there is recourse to the courts. We do from time to time see members from those first nations applying to the courts for a ruling on the election or selection of their leaders, because that may be their only recourse.

[Translation]

The Chair: Is that all? All right.

[English]

I will wait until the end for my questions, because there's another member on our side who wishes to ask some. So Mr. Konrad, if you would like to go now, that's fine.

Mr. Derrek Konrad: Thanks very much, but I'll allow the other member to go. I'm just having a bit of a conference here with my staff.

The Chair: Okay.

Mr. Bonin, you're down for second. Go ahead.

Mr. Raymond Bonin (Nickel Belt, Lib.): Thank you, Madam Chair.

As some of you know, we went through the Indian Act four years ago, before the last election, and we've had two ministers since, and here we are talking about today's Indian Act. It reminds me of when I was kid in Catholic school and I asked the teacher if God could do anything, and she said yes. I said, “Well, can he make a rock so big that he can't lift it?” That's the impression I get when I read the Indian Act: it's in there, it's law, and it can't be done.

My question is very straightforward. We've done the work, some of us. We've sat 12 hours a day video conferencing with witnesses and done the whole bit, and here we are again. I really want to know why the department didn't come back early in the next term and at least identify the obvious, the things that even the Reform Party agreed with when we did all that work. If we all agree, well then, why not just do it and move on to other things we might not agree on, that may take a little bit longer? Why talk about this now, when we're nearing the end of a term?

I'm interested in making a difference for people, but I didn't come here to take university courses. That's what we're doing now. Why can't we make a difference, and why is your department not more proactive on obvious stuff such as this—things that everybody agrees would be a matter of unanimous consent? Why don't we get some of the work done?

Here we go again, four years later, going through all the work, knowing it's not going to come to a head. What's wrong with this department that there can't be a drive to get things done and changed so that we can help these people? I know you're the assistant deputy minister. You can make up an answer, but tell the deputy minister it's becoming frustrating.

Mr. Bob Watts: Well, as an assistant deputy minister, all I can say, sir, is we were asked to come to make this presentation. It's my fault if it seems like a university course lecture, and I apologize for that, but we were asked to provide some information to the committee.

As I think you can appreciate, in order to get a national consensus, which is what we're talking about.... We're not talking about looking at legislation first nation by first nation by first nation across the country. It's national, and it will require some sort of national consensus to be able to move ahead.

[Translation]

The Chair: Is that all, Mr. Bonin? It's enough, I think.

[English]

Mr. Raymond Bonin: That's my last question.

The Chair: Okay.

Madame.

• 1645

Ms. Louise Hardy: What I find so incredibly frustrating is this. I listened to what you had to say to Ms. Karetak-Lindell, that all the appeals are in place, and that on a custom election, certain criteria have to be met. Then I have people come to me who are supposed to be treated equally to any other citizen in the Yukon Territory, so if they go to social assistance with the department, they're supposed to be treated the same as a white person, and they're not.

I had a woman who was given $51 for food for a month for her and her child. That she had to flee an abusive relationship wasn't recognized, so she wasn't assisted with an apartment. The list just goes on and on and on. So she came to me, and I said, “Well, you have to go through the appeal; you have to go through the process.” Nothing happened. Nothing. Not a thing. The only thing that happened is the local anti-poverty group made sure they had someone there to assist her to go through the appeal with her and give support. She got yelled at; she got screamed at. She was told she was nothing but a good-for-nothing slug who had no right to anything. It was horrifying.

So she then went to our regional director, and still nothing happened. Nothing happened. She doesn't even get winter clothing that she's entitled to. I don't know how these people.... I spent one afternoon trying to convince her not to kill herself. It's just outrageous. And she's not alone. It's just so unbelievably frustrating. What do you do? I feel embarrassed to look at her.

Mr. Bob Watts: I agree with you that it's horrifying. I'm really not too sure if that's a question I can answer. Welfare isn't within our presentation, and it's not within my area of responsibility. If there's something I can do in terms of talking with one of my colleagues to help, I can offer that, but I'm sorry....

The Chair: As chair, I'd say I think what you're really hearing is political will around this table to look for change. I am very cognizant as chair that there's, as you said in your presentation, the joint initiative, and first nations people are looking at these issues too. So perhaps we'll be having to listen to where they are in this process, as Monsieur Bachand has suggested to this committee also.

On that note, we're getting to the close of our time, because I think the five-minute bell is going to ring in a minute.

Next week, on Tuesday afternoon, we're going to have our briefing session. If we have nine people here, that will prevent me from having to call a separate meeting just to get approval for who you'd like to hear from next. So my intention is to do the briefing, and if there are nine people there at some point during that meeting, we'll take a little bit of that time period so that I don't have to call you back again, just so that the clerk and our researchers can get our next witnesses in. So I'll take some liberty. We had nine people here briefly earlier today. I should have taken advantage of that and interrupted. But I'll give fair warning that if we have nine people there, I will do that. It will save us an extra meeting just being called for that purpose later on. We're in this room again next week.

Thank you very much to our witnesses, and thank you, members, for your attendance and participation again today.

The meeting is adjourned.