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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Monday, April 28, 2003

0905

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

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

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

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

The Chair

Mr. Yvan Loubier

0910

The Chair

Mr. Yvan Loubier

0915

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

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

0920

Mr. Pat Martin (Winnipeg Centre, NDP)

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

0925

0930

The Chair

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.)

The Chair

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

0935

Mr. Warren Johnson

Mr. John Godfrey

Mr. Warren Johnson

Mr. John Godfrey

The Chair

Mr. Julian Reed (Halton, Lib.)

Mr. Warren Johnson

Mr. Julian Reed

The Chair

Mr. Gérard Binet (Frontenac—Mégantic, Lib.)

Mr. Warren Johnson

The Chair

Mr. Warren Johnson

The Chair

Mr. Gérard Binet

0940

The Chair

Ms. Nancy Karetak-Lindell (Nunavut, Lib.)

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

Ms. Nancy Karetak-Lindell

Mr. Paul Salembier

Mr. Warren Johnson

The Chair

Mr. Maurice Vellacott

0945

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

0950

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

0955

The Chair

Mr. Pat Martin

1000

1005

The Chair

Mr. Yvan Loubier

1010

1015

The Chair

Mr. Yvan Loubier

The Chair

Mr. John Godfrey

Mr. Warren Johnson

Mr. John Godfrey

The Chair

Mr. Pat Martin

1020

1025

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1030

1035

The Chair

Ms. Anita Neville (Winnipeg South Centre, Lib.)

1040

Mr. Warren Johnson

Ms. Anita Neville

The Chair

Mr. Yvan Loubier

1045

1050

The Chair

Mr. Pat Martin

1055

1100

The Chair

Mr. Yvan Loubier

1105

1110

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

1115

Mr. Paul Salembier

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1120

1125

The Chair

Mr. Yvan Loubier

1130

1135

Le président

Mr. Pat Martin

1140

1145

The Chair

Mr. Charles Hubbard

The Chair

Mr. Warren Johnson

1150

Mr. Paul Salembier

The Chair

Mr. Yvan Loubier

1200

Le président

Mr. Pat Martin

1205

1210

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

1215

Mr. Warren Johnson

1220

Mr. Paul Salembier

Mr. Yvan Loubier

Mr. Warren Johnson

The Chair

Mr. Pat Martin

1225

1230

The Chair

Ms. Nancy Karetak-Lindell

1235

Mr. Paul Salembier

Ms. Nancy Karetak-Lindell

Mr. Warren Johnson

Ms. Nancy Karetak-Lindell

Mr. Warren Johnson

Ms. Nancy Karetak-Lindell

The Chair

Ms. Nancy Karetak-Lindell

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

1240

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Warren Johnson

1245

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

The Chair

1250

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

The Chair

Ms. Nancy Karetak-Lindell

The Chair

Ms. Nancy Karetak-Lindell

The Chair

Mr. Pat Martin

1530

1535

The Chair

Mr. Yvan Loubier

1545

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1550

1555

The Chair

Mr. Maurice Vellacott

1600

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

1605

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

1610

1615

The Chair

Mr. Yvan Loubier

Mr. Pat Martin

Mr. Yvan Loubier

1620

Mr. Warren Johnson

1625

Mr. Yvan Loubier

The Chair

Mr. Charles Hubbard

Mr. Paul Salembier

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

1630

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

1635

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

1640

1645

Mr. Warren Johnson

The Chair

Mr. Pat Martin

1650

1655

The Chair

Mr. Charles Hubbard

1700

The Chair

Mr. Charles Hubbard

Mr. Paul Salembier

Mr. Charles Hubbard

Mr. Paul Salembier

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

1705

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

1710

The Chair

Mr. Maurice Vellacott

Mr. Paul Salembier

1715

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1720

1725

The Chair

Mr. Pat Martin

1730

The Chair

Mr. Julian Reed

The Chair

Mr. Yvan Loubier

1740

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

The Chair

1745

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1805

The Chair

Mr. John Godfrey

Mr. Pat Martin

Mr. John Godfrey

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

1810

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. John Godfrey

The Chair

1815

Mr. Julian Reed

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. John Godfrey

Mr. Stan Dromisky

The Chair

Mr. Julian Reed

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 064

2nd SESSION

37th PARLIAMENT

EVIDENCE

Monday, April 28, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): We'll call the meeting to order to resume proceedings on Bill C-7, an act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other acts.

Welcome, everyone, to the tenth week of committee work on Bill C-7. We have done two weeks of clause-by-clause, almost full-time, and we're at clause 5. There are 59 clauses. So it gives you an idea of the amount of work we have before us.

Before starting, I will say that the debate that occurred for the two weeks we sat rarely referred to the amendments. It was off topic and it was repetitious. I urge my colleagues to speak directly to the amendments. The amendments affect a specific clause. And the debate should always be on the issue on the table at one time.

We are now at amendment CA-10, but I see Mr. Loubier wants my attention.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Mr. Chairman, on Tuesday, April 8, I introduced a motion in committee. We set ourselves a rule that there must be 48 hours' notice. As the 48 hours have elapsed, I would like us to debate the motion before leaving.

The motion was this:

That this committee report to the House of Commons on the procedural irregularities of April 1 and 2 last...

[English]

The Chair: We will not be dealing with that notice of motion. We are in debate on the clause-by-clause. As I told Mr. Loubier when he presented his notice of motion, we will have a meeting on future business after we finish the clause-by-clause, at which time we will deal with the notice of motion.

The 48 hours is a minimum 48 hours before a meeting, which means you have to table and present your notice of motion to the clerk or to the chair over 48 hours before there's a meeting. You can't bring it in two hours before.

I have the notice of motion. And we will be having a meeting to deal with it after we finish the clause-by-clause.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, allow me to clarify one point. I introduced that motion on April 8, nearly three weeks ago. Of course, there was a two-week break, but the 48-hour period ended before the break. I don't see why we should change our way of doing things. The committee decided not to analyze...

[English]

The Chair: Sorry, I have ruled on it.

[Translation]

Mr. Yvan Loubier: Just a second, Mr. Chairman, let me finish.

[English]

The Chair: We are in clause-by-clause. We have been in clause-by-clause for two full weeks. We are continuing what we have started.

We suspended proceedings. This is not a new series of meetings. We are finishing the work we started. And we are now on amendment CA-10. That's the amendment of the Canadian Alliance.

[Translation]

Mr. Yvan Loubier: I wish to raise another point of order, please, Mr. Chairman.

This morning I introduced another motion condemning Minister Nault's attitude and his arrogance and cynicism toward the Aboriginal nations. I introduced it and I would like...

[English]

The Chair: That is not a point of order. The member says he introduced another notice of motion. That's fine. We'll put it with the first one. We'll have a meeting to deal with notices of motion. We are today in clause-by-clause. That is the only purpose of our meeting today. That's what we're going to be doing.

We are now at Canadian Alliance amendment CA-10.

(On clause 5--Leadership selection code)

The Chair: Mr. Vellacott.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Mr. Chair, rather frequently around the country, as we heard testimony from various witnesses, I think they were sincere in trying to do something in respect to this bill, knowing that there were lots of problems, lots of flaws and shortcomings with it. They felt this was far too quick a period of time if it were to be only two years and that possibly even much longer was too short a period of time.

Some bands don't have the capacity, others want to write codes sensitive to their own culture and customs and so on. So we're proposing at this juncture that there be at least a minimum of a three-year period of time.

The subclause would read:

A code consisting of custom rules may be adopted only during the period of three years

--instead of the simple two years that was there before.

I think this amendment reflects the concerns of many aboriginal witnesses that two years is simply not enough time for each community to develop their own codes. Although it's not a great lengthening of the time, an additional year will allow bands to spread an additional cost associated with the code development over another year. It will allow band councils that have a limited degree of capacity more time to develop the appropriate level of expertise to develop, implement, and enforce these codes.

We think this is a reasonable proposal that is based on testimony that was fairly uniform through the country by first nations people. We think this is a very good amendment to give consideration to. We would hope government members on the opposition side here as well would support this as a very small attempt to mitigate and to rectify some of the problems of the bill.

The Chair: Thank you, Mr. Vellacott.

The amendment is changing two to three years. I wish the debate will stick to that.

Mr. Loubier.

[Translation]

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

You're a bit odd. When I don't ask you for the floor, you give it to me, and when I ask you for it, you don't give to me.

Mr. Chairman, I entirely agree on the motion introduced by Mr. Vellacott. Like him and most of the other persons around the table, we have had occasion to observe that it was extremely difficult for a number of the country's First Nations to adopt things within the time frames imposed on them. This bill imposes things. It's not a bill in which the Aboriginal nations are treated as equals. Things are imposed on them. The deadline is much shorter for many First Nations, in particular for the small nations. It does not enable them to implement the requirements of Bill C-7.

It is also a bit indecent to ask the First Nations to adopt codes and all kinds of procedures that they don't want within such a short deadline, the deadline prescribed by the minister. It's quite odd to tell them that, over the next two years, they will have to accept a bill they detest and to submit once again to a system which may treat them as vassals and children for the next 130 years, just as the Indian Act has done for approximately 130 years.

Mr. Chairman, we would have expected other types of wording in Bill C-7, particularly since the Royal Commission on Aboriginal Peoples, the Erasmus-Dussault Commission, presented its major findings and analyses resulting from joint work done in an atmosphere of mutual respect by the federal government and the members of the First Nations.

We expected that we would start off again on a new footing and that we would stop imposing things. When we talk about nation-to-nation negotiations, that means something. That means that we are on an equal footing, that we respect the person before us, that we respect the First Nations for what they are and not for what we would like them to be.

The Erasmus-Dussault report talked about partnership and strongly emphasized the conclusion the Commission had reached in that regard. It also talked about mutual respect, reconstruction and what the Aboriginal nations were before the Europeans arrived. It imposed no deadlines or procedures that were utterly inconsistent with the First Nations' ways of doing things.

We know what the situation was before the Europeans arrived. We were able to study it based on the observations made in the Erasmus-Dussault report and on the basis of consultations we ourselves conducted of the representatives of the First Nations. When we talk about rebuilding our relations, we talk about doing it without imposing anything, about doing it of a common accord, by consensus.

¿ (0910)

[English]

The Chair: Mr. Loubier, I wish you would speak to the amendment, which recommends a change from every two years to three years. The rapport between governments and the first nations could be dealt with in other clauses maybe but not this one.

[Translation]

Mr. Yvan Loubier: I was talking about the amendment, Mr. Chairman, but I'm going to talk about it more specifically.

Imposing a two-year deadline is already odious because that's not what you do with a new agreement. In the past few weeks and even months, we have had occasion to speak at length about provisions such as the one appearing at line 15 on page 5, prescribing a period of two years.

This type of wording should not appear in the body of the act. Although Mr. Vellacott's proposal represents an improvement because it sets a limitation period of three years, the fact nevertheless remains that it constitutes a limit. We should not rethink the relations we maintain with the Aboriginal nations on this basis.

If it had been up to me, Mr. Chairman, this provision would have been completely replaced. We would not have mentioned a time period; we would especially have talked about the fact that we should sit down with the duly elected representatives of the Aboriginal nations to negotiate. Lastly, the deadline should be the one on which we achieve a consensus. We cannot impose things on nations. Would we, as Quebeckers and as Canadians, be able to impose our vision on Americans, Chinese, French and Belgians? It's said in speeches that they are nations and that we must negotiate on an equal basis, but, in actual fact, we don't recognize them as such. This no longer works.

Although I support the amendment introduced by Mr. Vellacott because it gives the First Nations a little more time, the form and content of this provision must be fundamentally amended. We must also amend the form and content of other clauses. The preamble is better than the body of the act, because at least it talks about self-determination and self-government. But the clauses in the act, particularly those which, like this one, describe periods of two years... After two years, what do we do? We asked the senior officials what would be done at the end of two years or three years if, for example, First Nations didn't want to submit to the time periods prescribed in a number of clauses. We were told that nothing was planned. We were even told that they would have to think about it. When deadlines are prescribed and those deadlines are not complied with, what do you do?

When you look at this provision at line 15 on page 5, you say to yourself that this bill shows not only incredible formal problems, but also legal defects, as the Canadian Bar Association and the Barreau du Québec mentioned. We were told about the prescribed time period and we were asked what was going to be done after two years. I ask the question again: what's going to be done after three years? If there is very strong opposition from the First Nations across the country, what do we do if most of the First Nations decide not to enforce this act? Are we going to put all their members in prison? Are we going to put 700,000 Aboriginal persons in prison?

I have the opportunity to ask the question once again. What's going to be done? I put the question to Mr. Johnson because I didn't get an answer the other day. What's going to be done if, after the prescribed time of two years, or three years according to Mr. Vellacott's proposal, 95% of the First Nations in Canada don't want to comply with the provisions of Bill C-7? What's going to be done? Are they going to be put in prison? New prisons will have to be built because there's no more room.

¿ (0915)

[English]

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): Mr. Chairman, for any first nation that by the end of the period now under discussion has not proceeded to develop its own code in any one of the three areas indicated in the bill and wishes to take more time for whatever reasons, the default codes, which we'll be developing in consultation with first nations in the next stage, will apply to them.

The Chair: Thank you, Mr. Johnson.

[Translation]

Mr. Yvan Loubier: There are these default codes the content of which we still know nothing about. We also asked the Chief Electoral Officer, Mr. Kingsley, whether he had been consulted in order to design a code to enable the First Nations to exercise their democratic rights. If the First Nations don't want the code that you want to impose on them, and the content of which you don't even know at this time, as we speak, whereas you are imposing Bill C-7, what are you going to do if 95% of the Aboriginal nations refuse not only to comply with the provisions of the act, but also to accept a code they don't want and which you claim represents the new basis of cooperation and partnership between Canada and the Aboriginal nations. What are you going to do if they refuse?

[English]

The Chair: I'd like to interject. The representatives of the department are here as resource people to assist us in our work. I don't think I should sit here and accept any member preaching to these professionals, who work for the department and are here to assist the committee. If we have a question that is helpful, we can ask them the question. That's why they are here. It's not their bill. This bill belongs to the House of Commons at this time. I would like us to show more respect to our witnesses, who are spending every moment we are here trying to help us.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I would like to point out to you that you are eating away at my time. I'm not preaching to the officials. I'm asking questions to which we have had no answers since the analysis of this bill began.

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

¿ (0920)

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

I'll try to limit my remarks to CA-10, the motion from the Canadian Alliance regarding clause 5.

I'd like to acknowledge and point out the level of interest we have today in these particular hearings. The seats are full. People are watching, I presume, on television. We expect to see greater interest today.

I see this as an opportunity for all of us to give this bill the attention it deserves and that I don't think it has had in the period of time we were operating behind closed doors in the very lacklustre process of consultation that took place leading up to this bill.

Speaking more specifically--

The Chair: Mr. Martin, I will not allow the perception that as chair I held meetings behind closed doors. You spoke for 13 hours on a filibuster in camera, and not once did you put in a motion that we go public. That's the procedure. Anytime you're in camera, if you want to go to a public meeting, you put in a motion saying, “I move that we go public”.

Mr. Pat Martin: As soon as I put forward a motion, my speech would have ended, Mr. Chair. You know that.

The Chair: At the end of 13 hours that work was done and we went public. You kept it in camera for 13 hours. Don't blame the chair.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I would like to raise a point of order. We know what you do with motions: you disregard them.

The Chair: That's not a point of order.

[English]

Mr. Martin, you have the floor.

[Translation]

Mr. Yvan Loubier: You disregard them. If Mr. Martin had raised one, you would have done what you usually do.

[English]

The Chair: Monsieur Loubier, I will chair this meeting, not you.

Mr. Martin, please. We'll start the clock over.

Mr. Pat Martin: Speaking to Canadian Alliance amendment 10, which is seeking to amend clause 5 of the bill, I appreciate the Canadian Alliance moving amendments to clause 5 because I believe it's clause 5 that most offends first nations people across the country. It's certainly the clause that drew much of the very real criticism in the presentations we heard across the country.

Clause 5 deals with the imposition of leadership codes on first nations communities that fail to develop those codes within a specific timeframe. This is what jumped off the page for most thinking people who read this bill. On the face of it they see, and they have strong reason to believe, that a constitutional challenge will in fact take place due in large part to clause 5.

The Indigenous Bar Association, which made a presentation to this committee, had very specific comments to make on the leadership code clause, which the Canadian Alliance amendment speaks to. The Indigenous Bar Association told this committee that they believe it is an infringement on constitutionally recognized aboriginal and treaty rights with the language as it occurs. The Canadian Alliance amendment won't change in any substantial way the language that the Indigenous Bar Association felt was a constitutional infringement.

This committee can't speak knowledgeably about and do justice to clause 5 because we don't have the information government has. We have legal opinions that say clause 5 contravenes section 35 of the Constitution. We have legal opinions from the Quebec Bar Association, the Indigenous Bar Association, and university professors and constitutional experts from the University of Ottawa and the University of Victoria, right across the country. Yet when we ask for the government's legal opinions to the contrary, they won't table those opinions with this committee. Even as a member of Parliament and a member of the standing committee on aboriginal affairs, I don't have the right to see the government's legal opinions that say it doesn't infringe.

Mr. Chair--

The Chair: Mr. Martin, you've presented a motion asking for those and it didn't pass this committee. That's been dealt with by this committee. We have to move on now. It's been dealt with.

Mr. Pat Martin: Mr. Chair, I'm happy to deal with the amendment as it stands. I think it's a meaningful amendment that was put forward in the right spirit of trying to improve this bill. All I'm saying is that I find myself handicapped to even comment knowledgeably on Mr. Vellacott's amendment, in that I don't have the information that I believe a member of Parliament should have, that I believe any member of the public should have, to tell you the truth. I should note here that the Indigenous Bar Association filed the access to information request and waited eighteen months for these papers, and was told in the end that it would be against the interests of the Crown for those papers to be shared.

Mr. Chairman, I would point out that another standing committee of the House of Commons, the Standing Committee on Government Operations, ceased hearing amendments on their bill because they couldn't get the papers they thought they needed from the senior bureaucrats. They suspended hearing amendments, and here we're in exactly the same situation but in a more vulnerable situation, because we're dealing with matters having a constitutional import.

The government operations committee was dealing with a bill dealing with amendments to the Public Service Act. It doesn't even compare in terms of weight and importance. We're dealing with constitutionally recognized rights, and we don't have the information. They refused to keep meeting when they couldn't get the papers. And now, today, the government has given them the papers they requested. They played hard ball and refused to keep meeting until the government gave them or tabled all the pertinent and relevant legal opinions and documentation.

We asked the same thing; it was turned down. Yet here we proceed, moving forward with a bill that could have serious constitutional ramifications and could--we argue does--infringe on constitutionally recognized aboriginal and treaty rights.

We also believe this bill has an impact on the 200 outstanding court cases, that there could be a government liability issue in aspects of this bill, and we need information to that effect as well before we can do any justice to this bill. But I will mention, in the Canadian Alliance motion 10, the amendment to change clause 5, changing the period of time within which a first nation must adopt leadership selection codes in keeping with the government standards, changing that from two years to three years does nothing in any substantial way to eliminate what we believe is offensive, and that is that it undermines the very idea of self-governance to impose governance codes on first nations.

Surely, people can see the contradiction that exists here, that if we have a bill that's called the First Nations Governance Act, a bill whose preamble is all about self-governance, it undermines the very idea of self-governance to impose leadership selection codes crafted by bureaucrats in Ottawa on any free people. These are not to be crafted by first nations, and are without deference, frankly, to traditional customs, etc., because these codes have to comply with the standards set out by the federal government.

This is an intrusion into practical sovereignty, the type of practical sovereignty that we hear about as the ideal or certainly as the ultimate goal in fixing the relationship between first nations and the federal government. Sovereignty and recognition of first nations as a third form of government is the stated goal and objective here. What we're doing with clause 5, and not just the amendment put forward by Mr. Vellacott but all of clause 5, is undermining that very value and that very ideal.

I, too, would like to comment on what Mr. Loubier pointed out. What are the repercussions, whether it's two years or three years, within which timeframe a first nation must comply? What is the fallback here? We know that the default codes kick in, default codes that we've never seen, default codes that are not even written yet. We know that those kick in. What are the sanctions that apply if first nations cannot or will not comply with the default codes? Those are questions we should be addressing to our technical advisers, and those are questions that we presume are in the private cabinet documents we're not allowed to see.

¿ (0925)

Now, if you have 633 first nations who either cannot or will not live with these new imposed default mechanisms, the only real power the minister can invoke, the only sanction, would be massive third-party control, massive ministerial intervention into their finances. That's really the only instrument they could use to punish or to try to coerce first nations into cooperating, which would be a predictable consequence.

We've been told by first nations across the country that they will not voluntarily comply with these new codes. It will be civil disobedience on a massive scale, or it could be. I'm not advocating this, nor am I trying to speak for anyone, but we could be faced with civil disobedience on a massive scale, forcing the heavy-handed intervention of the minister. Conveniently, this bill does expand the arbitrary authority of the minister to intervene. We'll have third-party management on a sweeping, massive scale.

The Minister of Indian Affairs will become the new Indian agent of the country because he will be in charge of everybody's bookkeeping, even more so than he is today, by way of punishing them for not complying with the provisions of clause 5 and other governance codes found in this bill.

That's taking the predictable consequences to their natural conclusions here, if we're trying to look forward to what the impact of this bill will be.

Again, these are probably opinions that were dealt with by cabinet and by the government in terms of a risk analysis. We believe there was an internal cabinet document circulated that presented the bill, that presented the cost of the bill, that presented the benefits of the bill, in their minds, and that presented the risks of the bill.

That document should be circulated.

¿ (0930)

The Chair: Thank you, Mr. Martin.

Mr. Dromisky.

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.): Thank you very much, Mr. Chairman.

I appreciate the kind of concern that the Alliance Party has put in by presenting this amendment to clause 5. To me it is rational, comprehensive, in a sense. As you examine the conditions and the various demands of clause 5, this is a very onerous, demanding area for any first nations group in deciding who their leaders are going to be.

Now, I do know this. On some reserves this will not be a problem. They already have well-established strategies that will meet the demands of clause 5.

I do know, from what I understand and from what I've heard, that on some reserves it's going to be very difficult to meet some of the demands that are in clause 5. For instance, one that comes up is whether or not in the voting of a chief people who live off reserve will have a right to vote.

So, Mr. Chairman, assuming there is the right to vote for people who live off reserve, who are members of that first nations group, and who are scattered all over the country, do we have addresses of all these people? Can they be contacted? Will there be extra funds for carrying out this type of strategy, for carrying out a proper election?

I could go on and on, Mr. Chairman, but because of the onerous demands that some groups are going to face in solving some of the problems that are contained within clause 5, I feel that two years will not be sufficient. Look how long it has taken us to make some decisions in the House of Commons--sometimes four, five, six, seven years, or perhaps even longer.

So I would strongly support the Alliance amendment recommending that extension from two years to three years be provided to solve many of the eternal problems that may come up in debates within some of the first nations groups.

The Chair: Thank you, Mr. Dromisky.

Mr. Godfrey.

Mr. John Godfrey (Don Valley West, Lib.): Well, Mr. Chairman, I'm sympathetic to the arguments just raised by Mr. Dromisky, and I have a question to the officials, which is quite simply this. If we were to extend the period of introduction from two years to three years, does this have any unintended consequences? Does it, in any way, affect the attempt of the government to meet the demands of Corbiere? Does it raise any problems we haven't anticipated?

¿ (0935)

Mr. Warren Johnson: I think the simple answer to the question is no, but the committee will want to consider it as it looks toward other clauses. The two-year period is consistent across a number of clauses of the bill, and there may be other clauses of the bill that the committee may want to review.

Mr. John Godfrey: Perhaps I can follow up, Mr. Chair. If we were to change “two” to “three”, in this particular instance, would the logic of the subsequent references to two years indicate, without tipping our hand, that we would have to move to three years for every time it said “two years”, or are there some places where two years would still make sense?

Mr. Warren Johnson: I think that's the committee's judgment. All I'm pointing out is that the committee may want to have a consistent two-year period in those areas where it applies, which is with respect to the time period during which a first nation that is finalizing a self-government agreement can seek an exception from falling under the provisions of the bill, from the application of the default regulations, and from the time to develop a custom code. There are three distinct clauses that all call for a two-year period in the bill now. The committee, as it hits those other clauses, may want to see a consistent treatment of that, for the reasons that are probably fairly apparent.

Mr. John Godfrey: Thank you.

The Chair: Thank you, Mr. Godfrey.

Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Thank you, Mr. Chairman. I have a question for Mr. Johnson.

Did I understand you correctly when you said that a default code would be worked out with the first nations, that there would be consultation with the first nations?

Mr. Warren Johnson: Yes, that is correct. The minister and the government have committed, since the launch of this whole first nations initiative two years ago, to an extensive set of consultations on the regulatory, implementation, and capacity issues first nations will require in terms of the implementation of this bill. Once we have the results of the committee and your work on its final aspects, we will then have to move on to those consultations.

I should point out that that's all before these time periods kick in, because obviously first nations have to know what those regulations look like before they begin thinking about what they might want to do, about how they might want to adapt them or replace them with their own codes. So none of the periods we're talking about would begin until those regulations were available to first nations.

So we have a fair amount of work yet to do.

Mr. Julian Reed: Thank you.

The Chair: Thank you, Mr. Reed.

Monsieur Binet.

[Translation]

Mr. Gérard Binet (Frontenac—Mégantic, Lib.): Thank you, Mr. Chairman.

To begin with, I must say that there are no communities in my area. There have been, but that was long ago. Currently there are none. There are 630 communities in Canada. How many are there in Quebec?

[English]

Mr. Warren Johnson: I don't have that information at my fingertips, but I could get back to you on it.

The Chair: Can anybody answer, approximately?

Mr. Warren Johnson: I'd be guessing, so I hesitate to put it. I think that information was provided to the committee as basic material at the beginning, but I don't have it with me.

[Translation]

The Chair: So we don't know.

Mr. Gérard Binet: All right. I ask the question because I have listened to Mr. Loubier in the past few weeks, and he told us about the Braves' Peace Agreement that was signed in Quebec. I looked at a report on Canal D and Ted Moses took 100 days to do the tour before signing the agreement. I don't know whether we can calculate the ratio, 100 days with the number of communities, but perhaps you could say that two years is too much. I wonder about that. How can an Aboriginal chief in Quebec manage to sign an agreement in 100 days, whereas we're talking about two years?

¿ (0940)

[English]

The Chair: Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you.

I think some of us have maybe misunderstood this line that says “coming into force of this section”. Can you explain to me a little more when this would start? Some of us think that as soon as the legislation is passed, bands will have only two or three years if we pass this amendment. But someone was explaining to me that it really might be longer than the perception we have because we're missing this line of “coming into force of this section”. That section only comes into play a certain amount of time after the band has passed its own codes. Can you clarify that for me, please?

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): Yes, you're quite right. The clause doesn't come into force immediately upon the act receiving royal assent. Instead, clause 59 provides that the governor in council will bring sections of the act into force on a specific day, and it's only on that day the period will start to run.

As Mr. Johnson explained earlier, that will not happen until the minister has finished his consultations on the default codes, on the fallback regulations. We would not want bands to be faced with a time period within which to adopt a code without having seen what the repercussions would be or what the fallback position would be if they chose not to adopt a code.

Ms. Nancy Karetak-Lindell: Let's go back to the specifics about the custom rule, the one we're trying to amend. That has its own set of rules also as far as going into custom rule is concerned, I believe.

Mr. Paul Salembier: No, there are no regulations. There is no set of rules that is being contemplated regarding bands who are now under custom as to deciding whether to continue to do so. The fallback regulations will deal with section 74 bands, and of course they will apply to any band that is now under custom that chooses not to continue under the custom they had previously adopted. Their membership may in fact decide by vote or simply by the passage of time that they prefer the regime of the fallback leadership selection codes that will be developed by the minister in consultation with first nations.

Mr. Warren Johnson: If I could summarize, perhaps, it may be important in terms of trying to put all this together.

It's speculative, but once we have the final version of Bill C-7, as the minister has mentioned in discussions, it could take us at least a year for consultations on the various regulatory implementation and costing issues, including the fallback provisions or the default codes, if you want, in the regulations. The intent is that only at that time, when all that consultation was done and the fallback regulations were available so everybody could look at them, would the two-year periods, all of them I had referenced earlier, kick into force.

So at that time custom first nations would have the opportunity to decide, following section 52, if they wanted to remain under custom through ratification by their community. Those bands currently under section 74, under the Indian Act elections, would then be able to look at the default regulations and decide where or how they wanted to adjust them and where, what, and how they wanted to customize them to meet their own needs. And that period of two years for first nations who are close to a final self-government agreement to apply for an exception, which is also set out in the current version of the bill before you, would also kick in.

None of those periods would kick in until the regulations were available, and the plan is that those sections would all come into force. So there's at least a three-year period we're talking about here.

The Chair: Thank you, Ms. Karetak-Lindell.

Mr. Vellacott, could we have your closing remarks?

Mr. Maurice Vellacott: I just want to use my closing time here for some questions to our witnesses. I appreciate their being here, and hopefully they can respond in a way that will shed some further light on this.

If I understand you correctly, then, at least in terms of your clearer statements here at the end--and you've implied that before as well--the development of the default codes will take place in consultation--I want to ask about that method of consultation later--and that will definitely take place prior to the coming into force of this particular section. Am I correct that the development of the default codes in consultation with first nations will take place before the coming into force of this particular section?

¿ (0945)

Mr. Warren Johnson: Yes.

Mr. Maurice Vellacott: What will be the nature of those consultations? How will you proceed? Are there plans on the drawing board in terms of getting out to the first nations communities?

People have indicated very strongly that they felt there was a flawed consultation process here, that it was more of an attempt at information sharing, not a two-way kind of thing. How will this play out in terms of consultation on the default code? What will be the nature of that? Will we be going across the country to all the first nations and to the AFN? Do we have a sense of how this might develop?

Mr. Warren Johnson: There is no formal plan in place on the consultations for the next stage of potential implementation of this proposed act. The discussion of how to approach the various subjects we will be talking about, and a better way to consult with first nations across the country is something we need to talk to first nations about, particularly the national and regional organizations. We don't have that plan in place.

The consultations leading to the legislative provisions you have before you involved both information and consultation sessions offered to each first nation right across the country in a period of about nine months. It was from May to November the year before and was followed up by an advisory committee taking those results and making recommendations to the minister, with first nations represented on an advisory committee. That was a very extensive set of consultations because it provided all first nations individuals, whether in the community or at other locations, an opportunity for input into that.

We have a variety of subjects in the next stage of consultations where we can talk about the details of the regulations, the implementation costing issues. Some of those issues will maybe be of greater interest, for example, for chiefs and councils and band administrators to comment on in terms of the work involved to implement this and the kind of support and capacity requirements they're going to need.

The consultations will, by definition, change character in the next stage because of the different topics we will be consulting on, but we don't have defined plans at this stage. We need to await the results of Parliament's review of the draft Bill C-7 we have now and then talk to first nations and their organizations about how we should be consulting on the next stage.

Mr. Maurice Vellacott: So we'll take it that you are saying the consultations will take on a different character, depending on what the nature of the consultation is. One should never assume, I suppose, but would it be correct to understand it is going to be a whole lot more than just information sharing, just a kind of “We think this is the best way to do it, this is the information we want to share with you, and we will set up meetings” sort of thing? Is it going to be the back and forth, two-way kind of thing, or do you suspect it will be “We have done some with some of your key leaders and top leaders and so on, we think this is the best way, and this is the information that's shared”?

Mr. Warren Johnson: I'm not sure what the question is.

Mr. Maurice Vellacott: The question was not just rhetorical. My point is simply that you say the consultation will vary depending on the issues that are being worked on. Will it be in some cases just an information sharing?

Mr. Warren Johnson: No, in no case would it be an information sharing. Just for clarification, the information sharing up to this point has taken place at two stages. Once the legislation was tabled with the committee in the House and with the committee last spring, we spent the summer offering information sessions on the contents of the draft legislation to any first nation that wanted one, because at that point they hadn't seen it. They had been providing thoughts on the input, but they hadn't seen the proposed legislation. We couldn't consult because the bill was before the House, so we provided information sharing there.

In the earlier stages of the initial consultations on this bill, some communities were not comfortable immediately moving to consultations. They wanted to proceed with an information-sharing session to talk about the genesis, the potential scope, and what the questions they would be having were. Quite often the consultation sessions that were held with those communities were preceded by an information session before the community decided it wanted to be consulted. That is where this distinction between information and consultation session happened.

At the next stage we will have to consult. Post those consultations, there will be a lot of education and information sharing on the results, but the initial stage has to be meaningful consultations.

¿ (0950)

Mr. Maurice Vellacott: Thank you very much, Mr. Johnson.

As I'm presenting this amendment, it appears there's a level of support for it and it may in fact carry. I'm simply interested as to how we arrive at the two-year timeframe. Was it an arbitrary two years as opposed to three or four or one? Or was there some particular point of reference or comparison in terms of how two years was established in the first place?

Mr. Warren Johnson: There was no hard science involved in the definition of the period of time. The experience we did have, and the closest experience we had, was the result of the Corbiere decision. In that case, the Supreme Court provided 18 months prior to its ruling coming into force. First nations were concerned that 18 months was too long to both consult and develop a legislative response, and the government therefore suggested that the legislative response would follow and we would use the 18 months to develop regulations that would put the specifics of the Corbiere ruling into force.

It took us 18 months of consultations to do that, and then we found ourselves with six or nine months to be able, in the end, to implement the resulting regulations. That was a significant strain, I think, on both first nations and those trying to work with them to help them provide that support.

So we knew we needed some period of time for that to occur. There was no magic in the two years, but we knew it needed to be longer than the kind of period we'd just been through with the Corbiere regulations.

Mr. Maurice Vellacott: So the 18 months plus another six to nine roughly--that's taken up two years. So three is probably...maybe not an excess, but two is kind of marginal. So we're looking at a period of time wherein, maybe, this could be doable. It would be a scratch for some, a stretch for others.

Mr. Warren Johnson: But to be fair, first nations can do it any time afterwards as well. That's just the initial period in which first nations view the fallback regulations and say “Do we want to do anything right now?” to put their own codes in place. First nations can develop their own codes, adapt them, change them, any time after that period as well.

Mr. Maurice Vellacott: How much time do I have left?

The Chair: You have a minute and a half.

Mr. Maurice Vellacott: Very quickly, then, what will happen with those who choose not to put into effect the default codes? We've heard comments of civil disobedience and so on. You surely must plan contingencies and so on, worst-case scenarios, if you will. What will happen if a band does not adopt a code of their own, if they don't do the default code? What position are we in then in terms of how the government responds to that?

Mr. Paul Salembier: There's no action necessary on the part of a first nation, to start with, in order to adopt the default regulations. Just like other regulations in Canada--

Mr. Maurice Vellacott: No, I understand, but let me say it's kind of a default option, if you will. So by nature of definition it's simple; it's on them. But if they say “We're not abiding by any of this and we're not applying it, whatever you guys say”, in terms of its application, what do you do at that point?

Mr. Paul Salembier: I think anything we might say on that would be speculative at this point. I might, however, draw your attention to the definition of “council” in clause 2 of the bill. It says:

“council”, in relation to a band, means the council selected by election or custom in accordance with a leadership selection code or, in the absence of such a code, by election in accordance with the regulations.

So you can draw your own conclusions as to whether, for example, a first nation chose its leaders by neither method. I think you can draw your own conclusions as to whether they would in fact be a council for the purposes of this bill, and therefore whether they would be able to exercise any of the powers of a council under this bill if they weren't in fact established according to one of those two methods.

¿ (0955)

The Chair: Thank you very much.

We now go directly to the vote. Are you ready for the question and a recorded vote? This is on CA-10 at page 48.

(Amendment agreed to: yeas 10; nays 0)

The Chair: We now go to NDP-16. Mr. Martin.

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

Again, it's no surprise, and it would be no surprise to anyone viewing these proceedings, why so much energy and effort is being spent on clause 5, because it's clause 5 specifically that many observers and authorities from around the country believe is an infringement upon constitutionally recognized aboriginal and treaty rights.

We seek to amend clause 5 in a very substantial way with this amendment we're moving forward. We didn't mind voting for Mr. Vellacott's previous motion a moment ago because it extended the grace period from two years to three years. The motion I would put forward now with NDP-16 would change clause 5 in such a way that all of these leadership selection codes would be optional. Hereby bands could, if they chose to, institute or implement leadership selection codes that met the standards set out by the federal government. And I point out the precedent in this way of thinking.

In 1996 and 1997 the standing committee on aboriginal affairs dealt with amendments to the Indian Act dealing with governance issues. At that time they contemplated accountability and transparency, changes in the bookkeeping, etc. They contemplated leadership selection and other governance codes. But at that time they were putting in place these codes as a service to first nations, who may choose to adopt them should they need to or should they lack the administrative capacity to develop their own. In other words, the whole tone of the legislation in 1996 and 1997 dealt with trying to assist smaller communities to put in place governance codes that may help them. We believe the tone has substantially shifted as we're dealing with this bill in 2003; we seek to put in place codes of governance and then impose them on first nations communities whether they want them or not.

The amendment I put forward today in NDP-16 would simply change clause 5 on page 5 so that these leadership selection options would take place within three years now or at a date as early as the band establishes to be feasible. So it's at the choice of the band to adopt these leadership selection codes. We believe this tends to defuse some of the animosity surrounding clause 5. We believe it's a sensible amendment that speaks to many of the apprehensions that were brought forward during the hearings we had on clause 5.

I should point out that groups like the Northwest Tribal Treaty Nations from Prince Rupert spoke specifically to this particular aspect; the Kaska Tribal Council from Whitehorse from the Council of Yukon First Nations, the Mennonite Central Committee of Canada, and the Mennonite Church of Canada believed this was an issue we should address in terms of speaking to some of the very real concerns that were brought forward.

When we heard Professor Kent McNeil speak to the fiduciary obligations, he pointed out that they believed clause 5 was an infringement of constitutionally recognized rights, and for there to be an infringement the government has to justify why it's necessary to infringe on constitutional rights. This should never be done lightly. This should never be done blindly, as we're acting blindly today. As I pointed out before, I resent even having to debate this amendment without even having the government's own research papers and documents that speak to whether or not this clause is an infringement, or whether it has an impact in other outstanding court cases--in other words, whether any aspect of this bill relieves the government's liability to its fiduciary responsibilities, etc.

À (1000)

So without that information, we are handicapped. We are acting blind here in a sense. But all we can do is take actions to try to mitigate some of this liability that we feel or some of the impact of this bill.

When the Council of Yukon First Nations had their presentation, they spoke specifically to this difference, this change in the tone of this bill, versus the previous act.

There are people around this table who took part in the 1996-97 amendments to the Indian Act, which died on the order paper, which failed. But I would ask you to harken back to that time when the exercise then was really as a service to smaller communities who may benefit from having a cafeteria-style approach so they could say, if we need this assistance it will be there for us and we can opt into it, instead of the mandatory aspect of having to adopt the codes as devised by senior bureaucrats in Ottawa. They weren't devised by us around this table, and they weren't designed in consultation with first nations people. That much we know. So they must have been crafted by someone. I presume they were crafted by the technical advisers who we have here as witnesses today.

So rather than have any of these governance codes crafted by bureaucrats in Ottawa and forced upon first nations people, at least as far as leadership selection codes are concerned, my amendment would mitigate that somewhat by saying that, yes, we will design these leadership selection codes that we recommend as a model for democratizing the process in your communities, and if you see fit to undertake that particular change in the way you conduct yourselves, then you may adopt that in a timeframe that the band establishes to be feasible and realistic. So not two years, not three years necessarily, even if that were to be a target or a goal--two or three years may be the goal the government has. I suggest there should be no rigid timeframe.

I point out the precedent as well that in many legal environments timeliness can always be relieved. Timeliness is for guidance only in most situations, whether it's in labour relations or even civil law. You must do this within 10 days, it may say in the law, but if it takes 11 days to do it, most arbitrators or judges will relieve timeliness, because if reasonable attempts were being made, they don't want timeliness only to be the determining factor.

The amendment I recommend to amend article 5 speaks to the timeliness issue. Two years might not be realistic, because using a cookie-cutter template approach--and we've already decided three years now because we supported Mr. Vellacott's amendment--fails to recognize the vast diversity of first nations across the country. Certainly it's unfair to apply the same standard to a small community in northern Manitoba and to the Six Nations in southern Ontario in terms of the development or administrative capacity. It's simply apples to oranges. We're putting in place a bill that clearly doesn't take that sensitivity into place.

We've been cautioned by Stephen Cornell, the author of the Harvard project, that the template approach, the cookie-cutter approach, is a recipe for failure, that you have to build in more and better flexibility in any undertaking dealing with first nations.

The presentation of the vice-chief for British Columbia of the Assembly of First Nations spoke specifically to this too, and spoke specifically again about the justification where we could relieve some of the challenge, and we believe there will be court challenges. We can anticipate and preclude court challenges if we begin to undertake amendments to this bill along the lines of what I am suggesting here today. We can go through this bill and defuse it, if you will, in many of the flashpoints, if we're sensible, because we've already been served notice that the Assembly of Manitoba Chiefs have a court case all prepared and ready to go.

À (1005)

Grand Chief Dennis Whitebird copied us with this court challenge, and we're fully aware that it will be tabled as soon as this bill passes, if it passes in its current form. If we're smart, we would take steps--

The Chair: Thank you, Mr. Martin.

Does anyone else wish to comment?

Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Thank you, Mr. Chairman, for so kindly giving me the floor.

Mr. Chairman, I support, without a second thought, the amendment introduced by my NDP colleague from Winnipeg Centre, Mr. Martin, because, in a way, it supplements the amendment introduced by Mr. Vellacott earlier.

When we conducted the consultation, a number of people told us that, as a result of the code selection and the development of all the conditions that must be met in order to realize Bill C-7, two years was way, way too short. So, with a kind of insurance with Mr. Vellacott's three years, but also keeping an open mind regarding the needs of each of the communities, more particularly those of the small communities, which need more time, I feel that Mr. Martin's amendment is welcome and that it could considerably improve Bill C-7, in clause 5, line 17.

I believe, and this has been our credo since the start of this consultation, that we must respect the various parameters that were outlined for us in the work done by the team of Messrs. Erasmus and Dussault, who said that we had a great deal of work to do in the next 20 years to rebuild our relations with the Aboriginal nations. They didn't talk about the next two years, they didn't say that, in two years, this would be imposed if everything didn't work out, they said that there was work to be done and that the time period was very important, and they anticipated 20 years in order to finalize the basis of a new relationship with the Aboriginal nations.

To illustrate the importance of deadlines for you, Mr. Chairman, and this comes back to what we heard earlier on the subject of the James Bay Cree, Ted Moses, for example, had to spend more than 100 days in the Cree communities, and there are nine in Quebec. He spent 100 days talking and informing, and he was often with Mr. Létourneau, the former parliamentary assistant to the Minister for Aboriginal Affairs. That means that he spent more than 10 days per community providing explanations, gathering impressions, listening to proposed changes, seeing what people wanted to have in an agreement.

If you look at the Canadian situation, with 630 communities, that means that, if we keep the period of two years, the federal government will have spent one day per community. That's one-tenth of the consultation and work that was done with the Cree communities. If we wanted to do things properly and if we based our efforts on the agreement with the James Bay Cree, which is currently a success, it would take at least 15 years of genuine consultation with the Aboriginal communities of Canada to negotiate something that makes sense, hence the importance of the time period.

I don't think that two years is long. It's extremely short if you look at what has happened. The officials should know that from experience because they've been there for a long time. A two-year period to do all that, even simply to develop the codes, is very short.

We have to start off on a new basis in a manner consistent with the approach taken a few years ago with the findings of the Erasmus-Dussault Commission. So we should take the necessary time to conduct consultations properly. What we have heard from the start of the hearings and what we read in the briefs submitted by the various First Nations of Canada is that the consultations conducted on Bill C-7 and on the limitation period and other important questions were not genuine consultations. It was after a bill was tabled in the House of Commons that we went to inform people, the main parties concerned. We told them that we had tabled a bill in the House of Commons and we asked them what they thought about it, knowing perfectly well that, once a bill is in the institutional machine, it is very difficult to put it in the waste basket if it's worthless or to make in-depth changes, something we've been trying to do for days and days. Very few of our amendments have been agreed to by the Liberal majority here.

À (1010)

So when we talk about consultations, that leaves me a bit uncomfortable because consultation after the fact, after the bill is developed, is not genuine consultation. Consulting each of the communities after the bill is tabled, with a quick tour by officials and the minister in certain regions, is not true consultation.

Conducting a consultation means that you are going to gather people's views and that you reflect those views in the clauses of the bill, including clause 5, which we are currently concerned with. If there had been a genuine consultation, the concerns of the First Nations of Canada would have appeared in all the clauses of the bill, including clause 5. However, what we have seen from the start of the consultations is that virtually no one in the Aboriginal communities agrees with the wording of this bill.

We may have conducted consultations on the preamble because it is well developed. The preamble is quite good. When you read it, you think that the Erasmus-Dussault report has just been translated into concrete terms. But when you look at the body of the act and read clauses such as clause 5 here, you realize that there is an entire world between the poetic wording of the preamble and the specific clauses such as clause 5. But the problem is that the interpretation the courts would make of the bill's provisions, including clause 5 discussed here, would be based on the clauses, that is to say the body of the act, not the preamble.

The courts often refer to the preamble where the body of the act contains unclear provisions. But the provisions are currently so clear, the limitations such as the time period for developing the codes, for example, are so clear that no court will need to refer to the preamble to see Parliament's intention, not at all. If there were a lack of clarity in the body of the bill, and I would like there to be, the courts would have to rely on the preamble, and that would be extraordinary, but that's not the case with this bill. The bill is so precise, even in its least important lines. The Aboriginal nations are even told what to do the very minute they make a decision, where they will begin to develop things. So there's no ambiguity in that regard.

What saddens me is that it is said that we consulted all the First Nations over nine months. There is a kind of dichotomy between what we hear here, when we talk around the table, like the answers of Mr. Johnson, Mr. Salembier and Mr. Beynon, and what we've heard and read from the start from the representatives of the First Nations. Either we've consulted or we haven't consulted. In this kind of process, we can't consult one-quarter, three-quarters or half the way. Either we consult and we take into account what we've heard and we convey it in a statutory instrument on which there is a consensus, or else we inform and don't care about what we heard, and that is reflected in the reaction to the bill that we have heard from the start.

As the minister said yesterday, we can be insensitive to the protests of the members of the First Nations and say that, in any case, we're used to protests and we don't care.

À (1015)

[English]

The Chair: Mr. Loubier, would you speak to the amendment, please?

[Translation]

Mr. Yvan Loubier: Yes.

Either we can be sensitive to the various recriminations and bring sensible amendments such as the one Mr. Martin has introduced to line 17 on page 5, where it says to respect the process, for once. If we didn't consult properly over a nine-month period, at least for the remaining things, in order to put in place certain codes or certain institutions which certain Aboriginal communities might need, let's comply with the time periods, let's comply with the work plan that the First Nations might submit to us because they are the first parties concerned; it's not us, it's not the officials. This is a bill which, in the coming decades, may redefine our relations, and they are grounded on the wrong basis.

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Godfrey.

Mr. John Godfrey: I have a technical question for the officials.

Since this amendment refers to custom elections, I assume the issue of opting in and opting out, which is really what is implied by the amendment, applied to this section, would have no impact on the Corbiere decision as such because the Corbiere decision does not apply directly to the custom elections stipulated in the section we're amending or not amending.

Mr. Warren Johnson: That's correct.

Mr. John Godfrey: Thank you.

The Chair: Thank you.

And now, Mr. Martin, closing remarks.

Mr. Pat Martin: Thank you, Mr. Chair. And thank you for the input from other members, who are taking this amendment in the spirit in which it's tabled.

We are seriously interested in improving this bill, or at least minimizing the impact of this bill, and perhaps mitigating the liability we think the Government of Canada is putting itself under in terms of being challenged in the courts, after the fact.

We're dealing here, Mr. Chairman, with a very simple amendment designed to expand the way we're viewing the imposition of these codes, one that simply allows a community to take their option at a date as early as the band establishes to be feasible. That may be earlier than the three years. It may be sooner. It may be within six months, if they choose to. It may be longer. This is what we're trying to establish here.

The commitment was made, when this bill was introduced, that it would not be prescriptive. That term kept being bandied around: it won't be prescriptive. In fact, the minister specifically cited this when he brought this bill to this committee at first reading. He said coming to this committee at first reading gives more flexibility for allowing amendments, and in fact allows a committee to have a role in crafting the bill based on what we heard.

I challenge anybody here to tell me where we heard witnesses before the committee asking for detailed prescriptive minutiae listed, in terms of the selection of leadership codes. Yet earlier in clause 5 we have language that deals with exactly providing for the size and composition of the band and council, establishing the mode of selection of the members of council, prescribing procedures for the selection of members, and requiring that voting for the elected members be conducted by secret ballot.

We're dealing with the minutiae of how a first nation conducts itself in clause 5. That's why we feel that clause 5 really came to us in stark contrast with what we were promised. When the minister first introduced this bill in the House of Commons, I was one of the first to stand up and welcome it because he announced that he was going to, in his tenure as Minister of Indian Affairs, open up the Indian Act and get rid of some of the most offensive aspects of the Indian Act. I said, right on, I want to be a part of that. I stood up in the House and said I welcome that because that's something I really want to work on and I'd be happy to apply myself to it.

But 18 months later, when the bill was finally before this committee, it's anything but what the minister promised us. At that time, they said a broad consultation would take place, they would listen to the input from first nations, and they would craft a bill along those lines. Show me anywhere where any witness who presented to this committee asked for the specific details of clause 5, asked for bureaucrats in Ottawa to dictate to them how they select their leaders.

Even whether it shall be a show of hands or a secret ballot vote, that is interfering directly with how people choose to conduct their affairs. It shows a disrespect, and that disrespect is evident here because the predictable result has been massive demonstrations that we'll see outside later today.

So, Mr. Chairman, I'm asking the committee to consider this amendment as a way to, again, diminish some of the negative impact of this bill. We've rejected earlier amendments to clause 5, where the committee voted down our earlier attempts to deal with some of this prescriptive language in clause 5. At least now, as we deal with the timeframes, we could show some latitude and some flexibility here. Because first nations communities are not all the same, because there's a vast difference across the country in the 633 first nations this applies to, we should show the flexibility within this act to say, here is the leadership selection code as we see it--our Eurocentric colonial view of how elections should take place on your communities. If you choose to opt into this code, go ahead. Maybe you'll like it. If you don't, carry on with what you're doing. I suppose that would be the other option, because again we've been cautioned about this template style, this boiler-plate style of introducing amendments in language.

À (1020)

We also caution it'll be absolute folly to try to impose the conditions of the leadership selection codes against the will of a first nations community. Let's say some community does dig in its heels and either cannot or will not. I can't see how the default mechanisms will come into full force and effect. One of the technical people, Mr. Salembier, said it'll simply become law. Well, it can't simply become law without the acceptance of the people we're imposing it upon. There'll be a cost factor in enforcing it.

The minister's own internal cabinet document said $110 million per year for five years. We believe that figure is ridiculously low, even if everything goes smoothly. As soon as they run into any resistance and court challenges, and civil disobedience as an option, that cost will skyrocket right through the ceiling.

So rather than putting that money toward the basic needs of first nations people of health, education, housing, the diabetes epidemic in my province, we'll be spending billions of dollars trying to ram these changes down the throats of people who have said very clearly they don't want them. The only justification and reason I need, frankly, is that the very people who this bill will affect have told us in no uncertain terms that it's not satisfactory; they don't want it. So who are we to force it on them?

Sometimes you get bogged down in the minutiae of this language, but the basic issue just becomes abundantly clear to me. We are doing something fundamentally wrong here in trying to craft legislation to force down the throats of people who have told us they don't want it. We're extending colonialism into the 21st century, and I'm not proud to be part of it.

I hope we can accept this change to this clause. I hope it indicates perhaps a trend in the way we treat subsequent amendments, because if we do develop a pattern of cooperation around this committee to deal with some of the most offensive aspects of this bill, it'll be a grand and gracious gesture of goodwill toward first nations people in this country.

We can simply say, “This bill got off to a bad start. We made a mistake. We're going to back up a couple of steps and take out some of the offensive aspects of this bill.” Then it will have very little impact across the country and we won't have to waste the next 10 years in the Supreme Court trying to defend a bill that has no merits. If it has any merit, somebody would have come to the table and said they like this bill, in our exhaustive cross-country consultation. Somebody would have come forward, but nobody did.

À (1025)

The Chair: Mr. Martin, we're debating a clause.

Mr. Pat Martin: Well, in dealing with clause 5, I didn't hear any of the hundreds and hundreds of witnesses who came before this committee say, “I want to adopt codes written by bureaucrats in Ottawa within two years. If I don't do it, I want the government to slap me on the wrist and impose some kinds of sanctions on me.” Not one witness said that. Yet hundreds and hundreds of witnesses--from scholars, to constitutional experts, to grand chiefs, to legitimately elected leaders in aboriginal first nations--came to this committee and said, “Don't do this to us. You are imposing colonial Eurocentric views on us that we don't appreciate and don't want. It deviates from the very principle and spirit of self-governance to impose these governance codes on us.” That's what we heard.

If we're to take the minister at his word when he said, “We are going to consult and we're going to craft a bill based on what we heard”--well, to say anything different, the empirical evidence is here. Here's what we heard. I've brought dozens and dozens of these presentations with me and we have hundreds of them on file. What we heard was, “Don't do it”. So it would be an absolute falsehood--and I don't use the word “lie” because “lie” is unparliamentary--to have anybody here believe this is what people want, because they've told us in no uncertain terms that it isn't.

We have an obligation to the people. We have a unique obligation here.

The Chair: Thank you, Mr. Martin.

We'll go directly to the vote.

(Amendment negatived: nays 7; yeas 2)

The Chair: Next is amendment NDP-17.

Mr. Martin.

Mr. Pat Martin: Thank you. I thought it was important to allow people the courtesy of at least a moment to have some input.

Mr. Chairman, amendment NDP-17 seeks to deal with clause 5 as well by amending subclause 5(5) by replacing lines 23 to 29 with the following:

A leadership selection code must respect the rights of all members of the band.

We believe this simple sentence actually clearly states what the intentions of subclause 5(5) purport to be. We think that with the amount of detail clause 5 goes into...it is a loaded clause. In fact, we are not sure of that reference to the interests of the band, and I quote:

the rights of all members of the band but may balance their different interests, including the different interests of members residing on and off the reserve.

We are apprehensive about why that specific language is necessary in the bill. If it is the intention of the crafters, of the architects, of this bill to ensure that the leadership selection code must respect the rights of all members of the band, why don't they simply say so? There are a number of outstanding court challenges. There are a number of outstanding disagreements over membership and citizenship in first nations, for instance. There's a great problem associated with Bill C-31 members, with subsection 6(1) and subsection 6(2) of the Indian Act, with registrations of children of reinstated Indian men and women.

All of those problems compound to create a very fuzzy and grey picture over the treatment of membership and citizenship, most of which, I should point out, Mr. Chairman, is tied to funding, or the lack of it.

Obviously Bill C-31 was supposed to end the sexual discrimination implicit in the criteria for entitlement to Indian status, but the outcome has been that band lists have grown. Membership and citizenship have expanded without any commensurate funding. So people are faced with the impossible task of trying to provide basic needs to new members of their band lists, brought to them, quite legitimately, under Bill C-31, but without any transfer of associated funds to provide for housing, etc.

We're concerned that this is all part of this package, which is quite a deliberate thing. These internal cabinet documents that we need to have tabled here, we know, speak to this. We are passing on the responsibility for some of these claims and challenges. With the municipalization of first nations communities and with the changing in legal status from first nation to that of a municipality, or comparable to a municipality, some of those disgruntled new members of the band will sue the newly established legal entity rather than go to the minister, who has the fiduciary responsibility now.

The couple of sentences added to subclause 5(5), we believe, speak to that very issue. You may balance the rights of band members, you may balance their different interests, including the different interests of members residing on and off the reserve. We all know that in the interest of basic fairness the rights of off-reserve members of the band must be taken into consideration and they must be taken into account.

Again, I don't write these things myself.

It was suggested, in consultation with first nations across the country, that an amendment be made so that the only reference in subclause 5(5) was that, and I quote:

A leadership selection code must respect the rights of all members of the band.

We believe this says it all and that it does represent the interests of off-reserve members as well as it represents those who choose to live on the reserve. Any further language is either unnecessary and superfluous or actually has the effect of speaking to a different agenda. It's put there deliberately.

À (1030)

I don't believe any language winds up in this bill by accident. I believe it's all quite calculated and thought through, certainly without our input and certainly without the input or participation of any first nations people. We believe it is deliberate that they go beyond the simple sentence that I believe would achieve their stated objective. They go beyond that quite deliberately to achieve an unstated objective, or to add to or build the case for the very things we're concerned about.

I think we should be seeing whatever information the government may have in terms of the impact of this particular language or the application of this language, or where this language may be cited and in what other context it may be useful. Does it in fact address some of the 200 outstanding court cases? Does this particular language have some impact on the current liability the government sees itself having, because of the 200 current court challenges or subsequent future court cases stemming from subsection 6(1) and subsection 6(2) registrations of the children of reinstated Indian men and women, or from Bill C-31 and new members of communities?

The impact of Bill C-31 has been dramatic. The resources of the federal government have not matched the increase in band membership populations in critical areas such as housing. We know that the aboriginal housing crisis is an issue at the top of the minds of most Canadians. It was brought to our attention most recently by the Auditor General.

As we scratch the surface and see what the actual obligations of the government are, there will come a time when people will realize that there is an obligation on the part of the federal government, and they're going to go after that in a large way. They're within their rights to do so.

Now, is some of the language we're seeing introduced, the unnecessary language, the additional language in clauses like this, building a case? Is it helping to set a tone or a theme within the Indian Act or within this first nations governance legislation to deal either with current court challenges that the government may be wrestling with or with subsequent court challenges?

I'd be interested in hearing other members' views. If the idea is to make sure the rights and interests of off-reserve band members are to be taken into account in this bill, if that is the goal, then what is wrong with the very simple and plain language that I recommend here in my amendment, that “A leadership selection code must respect the rights of all members of the band”?

It seems to be in keeping with Corbiere; it seems to be in keeping with the stated goals and objectives. I can't for the life of me think why that wouldn't be satisfactory to everyone here and why that wouldn't meet the interests of everyone here if there wasn't some other agenda under way.

We've had comprehensive, detailed analyses of membership and citizenship issues right across the country. The subject came up a number of times.

The Opaskwayak Cree Nation of Thompson, Manitoba, made a very compelling presentation to us, dealing specifically with subclause 5(5), and they asked that this passage be deleted in its entirety.

We felt that this wasn't practical, given the bureaucrats who wrote this bill, or the minister who wrote this bill without the consultation of the committee or without the consultation of first nations. They felt there was a need to make reference to the rights of all members.

And I would never object to making reference to the rights of all members of the band.

When the Quebec Native Women made their presentation to the committee, they raised the point that allowing a leadership code to balance different interests, including the different interests of members residing on reserve and off reserve, would affect reinstated women and their children disproportionately. In other words, they were concerned that this would compound the problems that subsection 6(1) and subsection 6(2), the reinstated children of Indian men and women--

À (1035)

The Chair: Thank you, Mr. Martin.

Ms. Neville.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you, Mr. Chair.

My question is for Mr. Johnson, for some clarification. I too have reviewed some of the presentations that have come before us.

You are talking about Corbiere, and my understanding is that this will create more flexibility. I go to one of the briefs we had from the New Brunswick Aboriginal Peoples Council where they're urging the committee to recommend that more direction be given to bands to develop clear guidelines and criteria. And they speak to the fact that this does not provide sufficient direction and clarity.

Can you speak to this clause and the implications for both the charter and the Corbiere decision?

À (1040)

Mr. Warren Johnson: In respect of the proposed amendment, there are two substantive differences between what is now in clause 5.... The first is the removal of the reference to “may balance their different interests”, including the rights of on-reserve and off-reserve members.

To answer the question that was put, yes, it was deliberate to use that language, and it comes from the Supreme Court. That is to say, if they are not the exact words of the Supreme Court, it's a paraphrasing of the Supreme Court's wording in Corbiere, in the sense that the Supreme Court, especially in the minority opinion in that decision, had a model of band governance in mind and looked at the role of the band government on reserve in terms of its local programming service responsibility for all residents and its responsibilities for the nation as a whole, the assets of the nation, the culture, language, politics--the assets of the nation for on-reserve and off-reserve members. It said that those two sets of interests had to be respected, but they weren't necessarily identical and there may be a variety of ways they could be treated. That's why it called for a legislative change, initially. In a sense, this is part of that response.

As a matter of clarity and to clarify or to make clear for first nations, in developing leadership selection codes or in providing input on the default codes, we'll be developing a consultation with them. There will be in fact a variety of ways they can ensure those interests are reflected, but they may do it differently. For example, ward systems on and off reserves. There has been a variety of speculation on how that might be done specific to each first nation. That's why that balancing clause was put in there, to reflect the words of the Supreme Court decision.

The second point substantively, though, is that we were careful to craft that clause so it did not apply to custom first nations, because the Corbiere decision does not directly apply to custom first nations, but the wording of the proposed amendment would in fact apply it to all first nations, including custom first nations. It would apply the Supreme Court decision in Corbiere to custom itself.

Ms. Anita Neville: Thank you. That's very helpful.

The Chair: Thank you, Ms. Neville.

Mr. Loubier.

[Translation]

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

Once again, I'm pleased to see that my NDP colleague, Mr. Martin, has shown vision in introducing this amendment to clause 5 once again. I believe we are going to spend an eternity on this clause. Why have there been so many speeches and so many suggested amendments? Because we realized that clause 5, on the face of it, suffered from a considerable lack of clarity and, in certain respects, might violate the very provisions of the Constitution, indeed provisions in other instruments, in federal acts in particular.

The Barreau du Québec and the Canadian Bar Association underscored the fact that some of these provisions might violate other current provisions. These are vague provisions that are added to others. From the start of the study of this bill, we have realized that, if we had to characterize this bill, it would be the absence of clarity and the absence of a game plan for the remaining things that stand out.

In the course of the study of this bill, there have been many briefs that have led us to reflect on clause 5, in particular, and discrimination. I believe that Mr. Martin of the NDP has done well to bring this amendment since we saw that there were a number of cases of discrimination, for example between members living on-reserve and members living off-reserve. Their rights were not necessarily respected because there was nothing either in the Indian Act or in other legislation that provided for non-discriminatory treatment.

Apart from the discriminatory treatment of members living off-reserve compared to those living on reserves, there was also testimony concerning gender-based discrimination. A number of cases were reported to us, but the brief that most highlighted this discrimination against women was that of the Quebec Native Women's Association. They even proposed, for example, that, if a community did not respect equality of treatment and equality of opportunity for men and women that a way should be found of properly stating, either in a bill or elsewhere—we believe that the place is in the bill—that everyone is equal before the law. Everyone has obligations toward Aboriginal women, in particular Aboriginal leaders. It was the Quebec Aboriginal Women's Association that in a way provided the wording proposed by Mr. Martin since, in their brief presented by Michèle Audette, they said, at point 3:

That clause 5 of the First Nations Governance Act be amended so that all leadership selection codes respect the rights of all members and that there be no possible distinction between the voting rights of the various classes of members.

The Quebec Native Women's Association also went a little further and asked that the Indian Act be amended to eliminate all forms of discrimination against Aboriginal women.

Mr. Chairman, this is becoming a very important clause. You will recall that, a few days ago, we suggested that a reference to section 35 of the Constitution be included in the body of the act and that everyone around the table was initially skeptical. But after discussing the matter and seeing that there was a hole in this Bill C-7, everyone around the table, Liberals, the Canadian Alliance, the NDP and we, the Bloc Québecois, supported an amendment that would refer to section 35 of the Constitution because we said that there was no non-derogation clause in this bill.

Why did no one think to include a non-derogation clause?

À (1045)

One official responsible told us that it was because the terms and conditions of a non-derogation clause were being analyzed elsewhere, in a committee, and that there would always be a way to come back to it after Bill C-7 was passed.

Things don't work like that. You ultimately have to make provision for everything in a bill, including something related to the absence of a non-derogation clause that could arise afterward, like that related to the proposal introduced by my colleague Mr. Martin, which is designed to underscore the fact that not everyone is equal under the Indian Act or under the manner in which certain communities could administer the terms of that act or administer subsidies, or administer or manage housing needs, for example.

I remember very well one woman in northern Alberta who said that she had been requesting housing for a long time and that, as a result of the rules requiring her to live off-reserve and because of the fact that she was a woman, she had been unable to receive housing on the reserve. There is also necessarily a lack of funding, since there is a considerable shortage of funding to meet the needs of the Aboriginal nations, not only for housing, but also for water supply systems.

I was astounded to learn that there is no access to drinking water on Aboriginal reserves here in Canada. It's quite incredible. The needs are numerous and varied, and there is no funding. But, in the case before us, there was also a kind of illustration of a case—they are rare, but still too numerous—which was clearly related to the fact that the woman, in addition to being an Aboriginal woman, was living off-reserve, and the leaders of her community did not respond to her needs. That must be prevented in future.

I believe that, if we had to improve Bill C-7 properly, it would be precisely by adding to clause 5 a clause similar to that introduced by my NDP colleague which would state that all rights and members shall be respected in the development of the leadership selection code.

Mr. Chairman, in view of all the briefs and oral presentations that have been made to date, I would take a dim view if we did not refer in at least one place to this non-discrimination against members of First Nations living off-reserve and also against Aboriginal women, whereas it has become clear, particularly from the brief of the Quebec Native Women's Association, that there is an obvious need.

When we talk about the analysis of a bill such as C-7, when we talk about leadership selection in clause 5, we should then express our will so that, not only for clause 5 of Bill C-7, but also for all other bills which may arise, we send a clear message that we, as parliamentarians, must at all costs ensure that there is no discrimination of any kind in the treatment of an Aboriginal member depending whether he or she lives on or off-reserve, or depending on whether that member is a man or a woman. This type of debate and this type of concern is a daily matter for us.

When we look at the bills we pass from month to month, there is always this reference to the Canadian Charter of Rights and Freedoms, to compliance with non-discrimination. There are now 13 grounds, I believe, and there is a fourteenth which may be introduced in the Charter. If we have this wish regarding non-discrimination on the basis of gender or socio-economic status, we should consider introducing a clause on the fight against discrimination in a bill such as this, in view of the fact that a number of witnesses have appeared before us on this point.

Once again, I congratulate my NDP colleague for having had this very clear vision of what this clause 5 could represent once amended, and I believe that this is a good place to set the tone concerning the fight against the discrimination suffered by women in particular. So I'm going to support this amendment enthusiastically, Mr. Chairman.

À (1050)

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Martin, closing remarks.

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

It seems quite straightforward what we seek to do here. It actually has the effect of making subclause 5(5) cleaner and more straightforward, and it is in keeping with the principle that in crafting language for any kind of legal document you should never use any more language than you need to in achieving the goal you're trying to achieve. I believe that adding the further four or five lines is unnecessary and further clouds the issue, as I understand it, of providing some satisfaction or relief when dealing with membership, citizenship, voting rights, and the rights of off-reserve members.

I don't think you could state it in a more clean and succinct way than “that a leadership selection code must respect the rights of all members of the band”, and leave the rest silent as to whether they're on reserve or off reserve, or under subsection 6(1) or 6(2), or under Bill C-31, or whether they're adopted. It really doesn't matter, because by starting to identify who it should apply to, you're inadvertently limiting who it applies to, because you're stating who it should take into consideration.

If you're going to do this, then you should list all of the various ways that you might be entitled to be registered: under paragraph 6(1)(a), if you are registered or entitled prior to Bill C-31; under paragraph 6(1)(b), if you're members of groups who are declared to be new bands by the Governor in Council; under paragraph 6(1)(c), if you're a woman who has lost status by marrying a non-Indian man, you're now entitled; and also under paragraph 6(1)(c), if you're enfranchised because your mother married a non-Indian prior to April 17, 1985. This list goes on and on, as to who would be entitled to vote. So if you're going to list some based on geography, then you'd better list all, or none, and simply leave it plain and simple that you must respect all the members of the band. It doesn't matter if you are an aboriginal child adopted by non-native parents; you are entitled now under the amendments of 1985.

But if you're going to be specific and are narrowing it down as to the rights that you may consider, etc., it simply clouds the issue. Under paragraph 6(1)(e) of the Indian Act, they would be automatically enfranchised before 1920 because they acquired university degrees or became qualified to practise a profession of law, medicine, or religion. There are just dozens of these. Before 1951, if you're automatically removed from band membership because of continuous residence outside Canada for five years, without written consent from the Superintendent General of Indian Affairs.... These were all ways that you lost your rights, and then were given them back in the 1985 amendments. But it's far too specific.

If you're going to deal with who does apply, then you'd better start listing who is not entitled to register on a list: a non-Indian woman who gained status on marriage to an Indian man under paragraph 11(1)(f) of the 1951 act; and a child whose mother gained status through marriage, and whose father is not an Indian, is not entitled to register. Moreover, paragraph 7(1)(a) does not apply to a woman who is entitled to registration prior to her marriage or who is entitled in her own right under any of the provisions of section 6.

Mr. Chairman, it's an absolute rabbit's warren of complex definitions of membership and citizenship. But all we need to know for the leadership selection codes is that the rights of any member of the band, no matter how they were entitled, must be respected. If any further qualifiers specifically refer to the rights of one and leave out the rights of the other, what is some future arbitrator to read into this? You want to make sure that this particular set of rights is recognized and adhered to, but is it less important because you fail to mention the others? In other words, it's better not to have any reference at all, other than that the rights of all members of the band shall be respected in a leadership selection code.

À (1055)

It's complex. As I said, this was brought to our attention in Thompson, Manitoba, by the Opaskwayak Cree Nation from The Pas, and the many Cree nations who are associated with them.

The Canadian Bar Association recommended that the FNGA should be amended to read: “require that band by-laws,adopted codes and customary rules respect the equalityprovisions in the Constitution Act, 1982, to protect the equalityrights of aboriginal women”. I suppose that's what the 1985 amendments in Bill C-31 set out to do, to alter the registration system so that entitlement to Indian status was no longer based on sexually discriminatory criteria--but they fell short. The 1985 amendments removed several sexually discriminatory provisions affecting entitlement to registration as an Indian, but not entirely their effect. They failed to address the actual impact or effect. The residual sexual discrimination still exists, to the extent that children of Indian women who married out before 1985 are registered under subsection 6(2), and the children of Indian men who married non-Indians before 1985 are registered under subsection 6(1).

The result is the effect of subsection 6(2), the second generation cut-off rule, whereby Indian status is lost after two successive generations of a status parent and a non-status parent. It is felt one generation earlier by the descendants of these women, compared to men who married at the same time. So that inherent imbalance still exists, with children on the woman's side being affected one generation earlier, or losing their rights one generation earlier than the children of men who married at the same time. So those inequities still exist.

Rather than enter into any debate, challenges, or court cases regarding entitlement, citizenship, and the right to vote, I think it would be far better advice for the committee to stay away from even contemplating balancing the rights of one compared to the rights of others, or of balancing the interests of one and the interests of others. Just stay away from any reference to any language of that whatsoever and simply state that, “A leadership selection code must respect the rights of all members of the band”.

There are further complications regarding adoption. I have personal friends who have run into this in adopting aboriginal children. Persons who are adopted by non-Indian parents still do not lose status or band membership as before. Adoption in accordance with Indian custom is recognized for registration and band membership purposes. Non-Indians can gain Indian status band membership when adopted through the courts, or by Indian custom, by registered Indian parents. And registered Indian children are no longer automatically transferred to the band of their adoptive parents. These transfers now require the consent of the band as well as the consent of the adoptive parents.

How do we balance the interests of the registered Indian child who may wish to be recognized as being transferred to the band of the adoptive parents, but in actual fact the band has to give the consent for that to happen?

These are complex and thorny issues, every one of which could be taken all the way through the courts. If we're looking at the idea of balancing the different interests of members residing on and off the reserve, and balancing other interests as well, not just geographic residency.... In fact, if you read subclause 5(5) the way they would have us accept it now, it applies to “all members of the band but may balance their different interests”. I would argue that one of those interests might be that of the adopted aboriginal child, who may wish to be recognized in the band of their adoptive parents, but the band of the adoptive parents may say, “We simply don't have the resources to have another person added to our membership list, and we're not going to give consent”.

Á (1100)

In terms of leadership selection code and voting, etc., those rights must now be taken into consideration by this act. We think it's an absolutely complex and tangled web of legal rights, which we don't need to enter into regardless.

The Chair: Thank you, Mr. Martin.

(Amendment negatived: yeas 2; nays 9)

(Clause 5 as amended agreed to)

(On clause 6--Administration of government code)

The Chair: We now will address clause 6, for which my colleague has 17 amendments. We will first deal with BQ-17.

Mr. Loubier.

[Translation]

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

I'm really sorry that clause 5 was agreed to, because, despite the amendments made to it, although we have a kind of assurance regarding the period for selecting codes, which has been increased to three years, it still remains highly restrictive and problematical for the First Nations. That makes this clause that much less acceptable.

At least in the next few hours, we will be trying to introduce amendments to the next clause, clause 7, to ensure that the biases that we find in it and the distortions that these clauses, including clause 6, may introduce into the relations between the federal government and the First Nations of Canada, can, without being eliminated, be at least attenuated in an attempt to improve the bill. That's what we have been trying to do over the past few weeks.

Unfortunately, although our proposals are valid, although our proposed amendments reflect what we heard and what we perceived from the testimony brought before us, too few of those amendments have been agreed to. That's unfortunate, Mr. Chairman, because our role is not to obstruct. Our role—and you have seen this in the wording of the amendments we have introduced—is to try, since you told us we couldn't throw the bill in the waste basket, to at least improve it, to make certain improvements and to ensure that the now palpable tension between the federal government and the First Nations—moreover they have rallied in front here in a demonstration against Bill C-7, and, incidentally, I welcome them—and the aggression that we have felt since the start of our hearings are attenuated, that we come up with better provisions and that we understand that, by agreeing to amendments such as those that the NDP, the Bloc and even the Alliance have introduced, in certain cases, are not designed to obstruct, but to improve matters.

Moreover, the amendment I'm introducing to clause 6 of Bill C-7 is designed precisely to eliminate all reference to prescriptions, to a kind of normative framework that Parliament would like to impose on all the First Nations and that we see virtually everywhere in the bill. But we also see this kind of limitation in Bill C-6. When it's not a deadline, it's a prescription on, for example, the frequency of meetings or other things. Moreover, in our hearings, a number of briefs were submitted requesting that the limitations, that the excessively normative framework provided for in clause 6 of Bill C-7 be softened and that we remove all the irritants that dictate a kind of standard conduct to the First Nations, without necessarily taking into account what they are.

There is, among others, the brief we received from the Assembly of First Nations, from the Office of the Vice-Chief for British Columbia, who said, and I quote:

The wording of clause 6 is too normative and, consequently, inconsistent with recognition of Aboriginal self-government and potentially incompatible with the customs and traditions of Aboriginal people.

And we recommended, because here too the First Nations have made constructive recommendations to improve Bill C-7, that clause 6 be amended as follows:

6.(1) An administration of government code must address and achieve the following objectives:

and not prescribe,

(a) frequency of meetings;

(b) the manner of calling and publicizing meetings;

(d) the keeping of minutes of proceedings at meetings and access to the minutes by members.

(2) An administration of government code must address and achieve the following objectives respecting meetings of the Council of the band:

(a) meetings which are to be open to members of the band and the frequency of such meetings;

(b) the manner of calling and publicizing meetings;

(d) the keeping of records of the Council's decisions and access to those records by the members of the band.

End of quotation.

Á (1105)

So you have noticed that the wording is roughly the same as that in the bill. The only major difference is that we're saying that the purpose of the administration of government code is to state and not to impose, hence the difference of perception one might have of the rights of the First Nations, obligations as well, but of the rights of the First Nations and the manner in which we must address all statutes, regulations, every basis of our future relations with the Aboriginal nations, avoiding behaving as though we were former Rhodesians, before the emancipation, and ensuring that we state ways in the codes without imposing them, with the freedom that the representatives of the First Nations could have to comply or not to comply with that statement.

It seems to me that becomes quite clear when you have too many prescriptions and moreover claim that you consider the Aboriginal nations as equals, there is a problem not only of semantics, but also of fact. We can't talk out both sides of our mouths. We can't say that we respect the First Nations and then impose our vision on them. Either we respect them or we reject them; it's as clear as that.

At present, when you look at Bill C-7, when you see how we are behaving through the wording, such as that of article 6, you see that we are being presented with things as though we wanted to continue the power relationship we have had since the Indian Act went into effect. We were not prepared for this type of direction. We were not prepared for that since we were mainly prepared to start off again on the right foot, to take the necessary time to start off on that basis, to discuss matters with the Aboriginal nations and especially to come to a consensus so that, as full-fledged equal partners, not as players in the old dominant-dominated scheme of things, we could start off on a new basis and try to solve the real problems of the First Nations.

What is readily apparent from the testimony we have heard to date and that we can read is that not only does no one want Bill C-7, but also it does not at all meet the obvious needs of the First Nations. When we talk about housing problems, when we talk about multiple substance abuse, when we talk about drinking water problems, these are concrete problems. When we talk about under-employment on most of the reserves, that's a concrete problem. When we talk about the exploitation of lands that would normally have devolved upon the First Nations and when you find oil and logging companies there and when you even scoff at the negotiations under way to hand those lands over to the First Nations because they belong to them, Bill C-7 addresses none of these major concerns. It doesn't result in us respecting the First Nations, but results instead in us continuing this old reflex we've developed over decades of making decisions for them and taking them by the hand, because we consider them as children, and imposing a way of doing things because you, as a government, consider that they are incapable on their own, that they are not mature enough to make decisions, to manage their affairs on their own and to be considered, with all the dignity that entails, as members of real nations, that is to say of great nations that have a history, a language, a culture and that want to rebuild as well because, all too often over the years, they have been demolished. They want to rebuild and shout around the world that they exist. And to be able to shout around the world that they exist, they must be given what they must have, that is to say status as a true nation, with all the means that calls for, with the reparations that must also be made with regard to their rights, lands, resources as well and the share of economic growth that they have not been able to enjoy.

Á (1110)

When you look at the lands that have been occupied and are still occupied by a number of representatives of the Aboriginal nations, you realize that those lands are bursting with incredible natural resources, and when you see that most of them have not been able to benefit from that...

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Hubbard.

Mr. Charles Hubbard (Miramichi, Lib.): Thank you, Mr. Chair.

I listened to Mr. Loubier's talk on this, and I'm having some difficulty. In terms of the bill that's before us, it says “An administration of government code must include rules respecting meetings of members of the band and, in particular, rules”, and then it goes on to (a), (b), (c), etc. It appears that he's making a major argument saying that the code should address and achieve, more or less, the following principles. It seems to be much better written as is.

The second major point in terms of his amendment is that it says here in paragraph (a) that there must be at least one meeting each year, and Mr. Loubier seems to have forgotten that fact. I think the bill offers first nations a good deal of latitude in terms of developing the code. I'm not sure this amendment would do anything to improve what the bill already says. Maybe our witnesses could give us a legal interpretation of the phrase “must address and achieve”, which is a legal term I'm not familiar with.

Á (1115)

Mr. Paul Salembier: We find that the language is somewhat ambiguous, as you've indicated, sir. I think it might be problematic to determine how frequency of meetings could be interpreted as an objective, as you've indicated. So for that reason we would suggest that the existing wording more clearly sets out how the clause will operate. In other words, there shall be a rule respecting the frequency of meetings. We don't see the frequency of meetings per se as an objective.

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

The Chair: Thank you.

Does anyone else wish to comment?

Mr. Martin.

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

I'm interested in doing a further comparison between the amendment put forward by Mr. Loubier and the bill itself because the bill does outline in great detail and specifically, again, how a first nation community or band can conduct themselves, even specifying the frequency of meetings. Whether that's one per year, one per month, or one per day, I don't care. The point is the same, that we are prescribing not only the frequency of the meetings but the manner of calling and publicizing the meetings.

All these issues are addressed in the principles of natural justice that apply to everyone. I know something about this because I've dealt with this as leader of my own local union. If you call a meeting, especially if it's a meeting that has some importance or impact on people such as with the ratification vote of a collective agreement or a strike vote, you have to give adequate notice and make sure everyone is notified, within reason. You have to allow a reasonable timeframe so people can make plans and attend. All those things are basic principles of natural justice in terms of access to things.

In fact, it's less necessary to outline the specifics. What's more important is that we state the principle that the frequency of meetings or the manner of calling these meetings, etc., and the participation of the members in meetings shall be carried out in keeping with the principles of natural justice. But you don't have to state that because that's a deemed provision in every piece of legislation. It's a deemed clause. It's deemed to be there even when it's not there because those are the principles of natural justice we all adhere to.

It's been pointed out to us by numerous presenters that they find it offensive when this bill dictates to them and outlines even the fact that they have to essentially list and ask for permission, or at least submit to have determined whether it's acceptable, even their method of keeping minutes and giving access to the minutes to members. We all agree that people should keep records of their meetings and make those records accessible to members, but it's not up to the government to dictate the specifics of how that is done and then have the first nation or the band council come with cap in hand and present their proposal for the approval of the government.

These clauses are really the ones we believe grew out of the campaign of misinformation we, the NDP, have made reference to before. We heard one witness I can remember who cited this type of information, or the lack of this type of information, as a problem, and that was Leona Freed at the Winnipeg meeting. She claimed to have complaints from a number of individuals in first nations communities across the country, but we didn't hear others making the same claim. Yet the government has acted as if complaints were rampant about problems of this nature, of not being able to see minutes kept at meetings, of meetings held in secrecy.

That may well be a problem in some situations, and maybe that should be addressed. I'm not saying it shouldn't. No one could prove to us that the frequency of these incidents, of this happening, justifies the measures laid out in Bill C-7. They've dedicated a page and a half to clause 6, outlining in great, specific, agonizing, minute detail how the administration of governance must take place. The codes may be created by the band council of a first nation, but they shall meet the standards outlined by the government. It's our vision, our view of the world, of how they should conduct their business.

Á (1120)

That's what so offended the many presenters who came before the committee. The honourable member from Saint-Hyacinthe--Bagot pointed out that some of them, the Assembly of First Nations regional vice-chief from British Columbia and the Canadian Bar Association's national aboriginal law section, all cited that it's unnecessarily prescriptive again. That term keeps coming up, that this bill prescribes a governance code but essentially prescribes a code of conduct for the band council and the administration of their governance.

We don't have the evidence of where this is a problem. My experience, again, has been perhaps in the narrow field of labour relations, but whenever we would go to management seeking an amendment to our collective agreement, the first question management always asked us was, well, has this been a real problem? Cite the examples where this has been a problem, and if it has been a problem enough times, then I guess we'll consider amending that code. No one has really cited for us the incidents where it's a problem.

When we toured the country to hear people's complaints, again, there was just the one woman, who has actually made a career of this, who's essentially a full-time advocate on this one particular issue of accountability in terms of the operations of band councils. Even there we didn't hear her cite specific examples, so we don't know the extent to which this is a problem.

What we do know is that the language put forward in Bill C-7 is so prescriptive that it offends the very people the bill will have an effect on. The amendments put forward by Mr. Loubier address the same issues but in a less inflammatory way, in a way that doesn't turn the heads of those people reading it, in a way that deals with these issues with common sense.

An administration of government code should address frequency of meetings perhaps, but no one should dictate the frequency of those meetings. It's none of our business. We may think it should be at least once a year, in keeping with a corporate board having their shareholders' meeting once a year, that's fine, but it's none of our business to dictate that to a band council.

Mr. Loubier's amendment, which I'm suggesting we support, says that “An administration of government code must address and achieve the following objectives respecting meetings of the Council of the band”, namely “meetings which are to be open to members of the band and the frequency of such meetings”--fine--and “the manner of calling and publicizing such meetings”. That should be agreed upon ahead of time; maybe they will decide 15 days ahead of the meeting that notice shall go into the local newspapers or whatever.

What I do know is that there are ways of doing this, there are ways of manipulating notice and what constitutes proper notice. I've seen it done, I believe, in the consultation meetings on this particular bill, the original round of consultations. We had people who said they were not adequately notified. Stapling a notice on a telephone pole that there will be a consultation meeting in a few days, without allowing adequate time to prepare or develop presentations, would, I suppose, fail any test in terms of fairness. We'd be guilty of that ourselves because that's the way it took place in many communities around the country.

Mr. Loubier's amendment, which I support, says that the manner of making decisions and exercising the council's power should be decided upon and agreed to as part of the administration of governance codes. Virtually all first nations would, I think, be able to say that they're already in compliance on all these things.

Á (1125)

The difference is that in Mr. Loubier's proposal, compared to the language that we find in Bill C-7...nowhere in Mr. Loubier's proposal does it dictate specifically how much or how frequently or how often. It cites these things as desirable and even necessary aspects of an administration of governance code, but it does not prescribe.

The Chair: Thank you, Mr. Martin.

Mr. Loubier, closing remarks.

[Translation]

Mr. Yvan Loubier: Yes, Mr. Chairman.

I'm very pleased with the support my NDP colleague has just given me concerning this amendment. I feel that this amendment is consistent with all the remarks we have made in recent days concerning Bill C-7. There's an attitude that should be adopted, a kind of legislative decorum that should be followed, something that is not being followed in Bill C-7.

In all the clauses that we have analyzed one after the other, we perceived that a tone was given, that there was a terminology that was not acceptable, to the extent that we have gone further in our relations with the Aboriginal nations and that the many judgments have required the federal government to start over on an equal footing with the Aboriginal nations. However, to the extent that things are being imposed, as is being done under clause 6 concerning rules with regard to the frequency of meetings, for example, that may seem harmless...

I listened to Mr. Salembier earlier, who said that my wording was ambiguous. My wording is not ambiguous. It allows the leaders of the First Nations the flexibility to decide on the frequency of meetings. “Prévoir” is not ambiguous, and the word “prévoir” is often used in legislation. “Prévoir” is not prescriptive; it is not an imposition; in the normal framework of the operation of the assemblies of the First Nations, it simply means providing for. But the federal government should not impose one meeting per year.

Moreover, as my NDP colleague Mr. Martin said so well, most of the First Nations have assemblies at least once a year, and a number of them have several a year, but they provide for those meetings, and the needs and agendas of those meetings, themselves. The First Nations do not need a federal government prescription, an obligation or an imposition to have one general meeting a year. That makes no sense. Moreover, I'll just cite the example of the Hupacasath First Nation in British Columbia. I quote the brief submitted to us on this point. The chief who presented the brief told us:

We have community meetings every two months. Envelopes containing the agenda, minutes of the previous meeting, financial statements and other relevant information are sent to all our members wherever they are.

So, every two months, meetings are held on things as important as, for example, strategy development or land use. That's stated in the brief. It also states that those meetings are held every two months and that the members off and on reserve are informed that those meetings are being held, that they are reached and that that is done every two months. There's no need to dictate a way of proceeding or a frequency for those meetings.

So why do we feel the need to do so in the bill? It's adding insult to injury to present once again, as is the case in many clauses in the bill, prescriptions, impositions and an infantilization which is virtually systematic in the very wording of the clauses of the bill as presented to us in Bill C-7. It would perhaps be less offensive for the First Nations if we used terms that might be considered ambiguous, but which are more respectful of what the First Nations are and what they want to do with the powers conferred on them by self-government, which, moreover, is slow in coming for some of them.

Mr. Chairman, as you may have noticed, this amendment does not shine by its precise wording, if you will, since you could have taken that wording and compared it with the initial wording of clause 6 and realized that, with a few exceptions, the same terminology is used, whether it be in amendment BQ-17 or in the bill as such.

Á (1130)

What characterizes our amendment, Mr. Chairman, is precisely the absence of obligations and limitations which are offensive to the First Nations because most of these concerns are worded so that they constitute obligations to operate in such and such a way.

The message that that sends to the First Nations is that they are incapable on their own of doing things, of thinking, and that they are not mature enough to develop their own codes. It also means that they are not able to determine on their own what is good for them, having not yet reached that level, it is apparently assumed. They are unable to hold community meetings to discuss the development of strategies for economic development, land use and so on.

If I were Aboriginal, I would feel very offended by this bill. We say they are nations, and the judgments rendered by many courts over the past 30 years have often proven them right. Those courts have even shown us the path to take to renew the relations we have with them. Those directions also contain statutory elements. Unfortunately, clause 6 was not drafted in that spirit, and the same is true of clauses 3, 4 and 5. However, the preamble is very good, as usual. But in the body of the text, we see this need to define and impose precise rules, as though the First Nations were unable to define those rules themselves.

Moreover, I can't understand how the minister can claim that Bill C-7 will help the Aboriginal nations take their own affairs in hand. Instead of assisting the Aboriginal nations that have, most of them, begun a rebuilding process, we tell them not only how they should do things, but we also impose on them a way of doing those things. We tell them that that's the way it is, period, and that they have to comply with our vision within a period of two years or another very brief period.

Clause 6 of Bill C-7 is thus much too normative at the outset. It is also too prescriptive and offensive in certain respects. It treats the First Nations like children. I can understand their reactions. As could have been seen during the committee's hearings, they have a kind of aggressiveness that is exacerbated not only by the content of the bill, but also by the attitudes of the persons responsible for promoting it at the political level, particularly Robert Nault. He is very cynical and arrogant toward the Aboriginal nations. That makes no sense; he's throwing oil on the fire. In Quebec, we would say he's playing with fire.

We can't continually adopt an incendiary attitude and say that, even if they show and do what they want, there won't be any change. We've decided to proceed in any case, despite the fact that the governance bill will determine whether or not the First Nations have the opportunity to take their affairs in hand. The vast majority of the First Nations do not want this bill, which concerns them to the highest degree, and the presence of a number of Aboriginal people on Parliament Hill at this time clearly shows that.

I don't think we have the right to fail. The Erasmus-Dussault Commission moreover said the same thing in its main recommendations. We don't have the right to fail this time. We have set ourselves a deadline of 20 years to establish new relations between the Aboriginal nations and the federal government.

We're currently proceeding...

Á (1135)

Le président: Thank you, Mr. Loubier.

[English]

Now we'll go directly to the question. Those in favour?

(Amendment negatived)

The Chair: Monsieur Loubier, if you're trying to aggravate the chair so that we can get into another battle you can bring to the Speaker of the House, it's not going to work. Thank you very much.

NDP-18. Mr. Martin.

Mr. Pat Martin: Mr. Chairman, we believe we should be revisiting clause 6 to make it less prescriptive, and we advocated that when we were debating Mr. Loubier's previous amendment, which was BQ-17.

BQ-17 sought to achieve similar things. We're in agreement, I suppose, in that we both feel the administration of governance code, as found in Bill C-7, doesn't reflect what we heard across the country. It doesn't reflect the input that first nations people tried to have in this bill as we toured the country to hear their input.

We were told that because this bill is coming to the committee at first reading, there would be more likelihood and it would be easier to amend the bill. In effect, we were given the bill as a working document instead of a finished product. Then we were directed to go out and consult people, go out and seek the broad consultation and the input from people. But a point I've made before is that consultation without accommodation of what we've heard is not consultation at all.

If we were serious about accommodating the legitimate points of view that were brought to our attention, one of the key criticisms of the entire bill was the prescriptive nature of the bill that would dictate and outline in very minute terms the way the administration of governance code must be crafted for each band and council across the country.

We believe it's objectionable to again try to put in place a cookie-cutter template of administration of governance codes when we don't even have a full body of information, or full knowledge of what the current state of affairs is in first nations communities, and what the needs are or what the incidence of problems has been.

We don't have a record of complaints or grievances brought forward dealing with any of these specifics to do with the number of public meetings a band and council must undertake, the frequency of meetings, the method of calling and publicizing those meetings, or the participation of members in meetings. We have no knowledge of those things. All we have is some anecdotal knowledge brought to us third-hand, some through the Canadian Alliance, who cited some specific complaints from across the country. They say they have been approached by frustrated band members who want changes. Fair enough. At least they've brought forward examples.

In all of our cross-country consultations, we had one presenter who specifically addressed this issue as an individual. But where is the overwhelming body of information--the complaints and grievances--that justifies us taking this prescriptive approach in dictating, within the bill, such detail outlining how the administration of governance codes must be crafted?

I point out again that this particular clause got more attention than virtually anything else in the act. I mean, we have a page and a half of detailed language dealing with the administration of governance codes and what it must include. It must include rules respecting meetings of members of the band, and in particular it must include this, that, and the other thing.

The language I propose softens that somewhat. It seeks to recognize and accept that good business practice would dictate that an administration of governance code must specify the frequency of meetings of band members, but it doesn't say what that frequency shall be.

My proposed amendment says that the administration of governance code must specify the manner of calling and publicizing those meetings, but again, it doesn't say what the manner of calling and publicizing those meetings shall be. It may be agreed upon that it's satisfactory to announce an annual general meeting of the band and council for general membership by putting an ad in The Globe and Mail. That might be what a certain band and council agrees is the method of notifying, especially for off-reserve members who wish to participate in such a meeting. But that's up to them to decide. If that's what they agree upon, they may want to put it in The Drum, a newspaper put out by first nations. They may want to use radio broadcasts. We don't know what they will decide, but as long as they're satisfied, it's none of our business. That's my point.

Á (1140)

Regarding the participation of members in meetings, well, that's always an issue in any meeting, even a Royal Bank shareholders' meeting, which is the most scripted event I've ever attended, where shareholders have little or no access to any kind of participation, and if you do try to go to the microphones, you'll find there are rules to prevent that. There are examples of the lack of democracy in a number of settings in society, and certainly first nations don't have a monopoly on that. In fact, we haven't heard complaints to that effect.

We don't know that there's any urgency out there in the communities demanding to have outlined in an administration of government code the participation of members in meetings. But I will point out that many first nations do outline all of these things in their existing bylaws and band council rules, etc., and they would have no trouble whatsoever meeting the conditions set out or contemplated by clause 6.

We've seen examples. We've had examples brought to our attention with great pride, tabled here with the committee. I wish I had some of the administration of governance codes that were tabled with committee. They showed us, this is how we have decided to conduct our meetings without any input or guidance or supervision, frankly, from INAC or from this committee. They're proudly carrying on in a way they deem to be fair. And it is an issue of basic fairness that all members of the community should have the right to participate in these meetings. They should have adequate notice of when the meetings take place, and the meetings should take place with a frequency that's agreed upon by the community.

If it's not agreed upon by the community, there are steps to be taken. There are avenues of recourse the membership can take. If they don't like the way a band and council is being accountable to them, they would make changes. We find that chief and council are very accountable to their community because they wouldn't be there for long if they weren't. That's the sort of self-policing aspect to a small community, where you simply can't ignore the wishes of the people.

The subsections we're dealing with, the types of transparency and cooperation envisioned by the provisions of subclause 6(1) in my amendment here, such as supplementing the frequency of meetings with a minimum of one membership meeting per year and keeping minutes of proceedings that are accessible to all band members, are matters of existing practice for most first nations communities. It's not a big issue.

What's at issue here is the implied impression this gives that they're not accountable or that the government has any right to dictate matters of accountability. Those self-policing mechanisms are there. It's argued aggressively by many presenters not to insult their intelligence by telling them they have to use fairness when they conduct a meeting, whether it's an annual meeting or a regular meeting.

Á (1145)

It's an intrusion into their freedom to design their own administration of governance codes to dictate frequency, the manner of calling and publicizing the meetings, and the participation of members in meetings, if those are rigid and prescribed. And the notion that within a set time period a band council has to develop these and then present them for approval to the minister or to the minister's representative, and that those administrative codes have to be approved in keeping with standards that someone has deemed to be appropriate, without their input, is offensive.

The Chair: Thank you, Mr. Martin.

Mr. Hubbard, and then Monsieur Loubier.

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

Just for the record, the previous amendment that we looked at from Mr. Loubier also talked about no need to have any definite frequency of meetings or the “must” of having at least one meeting for members each year.

I think people watching today should recognize, really, what's happening here, and I certainly commend you for your patience, because each member has 10 minutes to speak, and I notice the two members opposite take the full 10 minutes. They seem not to stick to the amendment that they have placed before the committee but want to spend 10 minutes talking about something, and quite often seem to be talking about nothing rather than something.

I would hope that we can look at this, and perhaps our legal people can indicate to us.... Mr. Martin has presented here an amendment to clause 6, and in terms of paragraphs 6(1)(b), (c) and (d), really there's no change from what the bill actually says. In paragraph 6(1)(a) there is a change, because it talks about no need to have at least an annual meeting. Maybe our experts can tell us different, but....

I know all of us are patient, but we have to recognize that we're trying to do something here to improve a situation that has existed in this country with an act that was written in 1876, and that we, as a government, are committed to attempting to improve the relationships and the method of operation between our government and the people among the first nations of Canada.

So from that point, could we please maybe have a little legal interpretation of how this differs from what is already in the bill, with the exception of the annual meeting that would be required under the code?

The Chair: Mr. Johnson.

Mr. Warren Johnson: There are two questions here.

Just for clarification, because of the references made by a number of members of the committee in this discussion, these codes are not approved by the government or the minister; they're only approved by the community itself. That clause has already been reviewed by the committee, so there's no approval of these codes by the government or the minister.

The two points of reference here, other than the frequency of meetings, are the alternative wording in the introduction in terms of “must specify” and that the introductory clause removes the reference to the whole topic being about applying to meetings of the members of the band.

I don't know whether the lack of that in the introduction creates an ambiguity in the interpretation of the subsequent clauses--for example, the keeping of minutes of proceedings. I'm not sure legally whether that makes it clear that we are talking there about those types of meetings, because the introduction has been changed. But I'll turn that to my colleague Mr. Salembier.

Á (1150)

Mr. Paul Salembier: I concur with what you're saying. I have nothing further to add to that.

The Chair: Mr. Hubbard, you make reference to my patience. There are 59 clauses, 191 amendments, plus three votes. We're talking about 253 votes. At a minimum, a very minimum, of half an hour per, if only two of the opposition members speak on it, we're talking 126 hours.

My patience hasn't been tested yet. We're only at clause 6.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier Mr. Chairman, it's not a matter of your patience, but rather of the rule we have set for ourselves and for which Mr. Hubbard and all the Liberal committee members also voted. That rule states that we have 10 minutes to present our amendment and 10 minutes to conclude; so it's not a matter of patience; it's a matter of using the time allotted to us. And if we want to talk about patience, let's talk about the patience of the Aboriginal people, who have been waiting for 130 years for us to stop crushing and treating them like children. I think that would be more relevant to the notion of patience than to talk about the Chairman's patience, which is not really real.

I readily agree on this amendment introduced by Mr. Martin of the NDP. It is consistent with the amendment I introduced earlier and which was rejected out of hand with a bit of arrogance, cynicism and everything in his power, something we've gotten used to since the analysis of this bill began.

I believe people have to stop talking through their hats about the bill's wording. I was listening to Mr. Johnson. With all due respect, one reads what one wants to read, but if I had to characterize this bill with regard to the wording in the body of the legislation as such, I would say it couldn't be clearer than that. You can interpret what's there any way you want, but, in clause 6, I read:

6.(1) An administration of government code must include rules respecting meetings of members of the band and, in particular, rules:

(a) specifying the frequency of meetings, which shall not be less than one each calendar year;

“Obligation” is exactly the same thing in French and in English; it means they are required to do so; they can't circumvent this obligation. They are being told that they must hold these meetings at least once a year. It's not the idea that they don't hold at least one meeting a year that poses a problem, because most of the First Nations currently have more than one meeting a year. The problem is that wording is being put into the bill that requires them to do things, whereas we shouldn't have that kind of wording.

This was a unanimous criticism in the briefs submitted and even in the e-mails we were sent. We can't require the First Nations to do things. These aren't obligations they must meet; this is a redefinition of what they can do and what they want to do.

I don't understand how we can so deform the French language, or even the English language, by saying that we're exaggerating, that we're speaking in a distorted way. There's always a limit to laughing at people. When we talk about an obligation to hold at least one meeting a year, that's not made up, that's not surrealistic, that's not virtual, it's in the bill right now.

I see the officials laughing at the back as we speak; I don't find them funny.

The Chair: That's because of [Editor's Note: Inaudible]; they forgot to turn it off.

Mr. Yvan Loubier: Okay, that's all right. Ah, you find that funny too. What a chairman!

So we shouldn't split hairs by saying that the wording here doesn't necessarily mean that they have an obligation, whereas in fact we're talking about an obligation to hold one meeting a year. It's this type of wording that makes the representatives of the First Nations aggressive since they were led to believe in recent years that they would be consulted before new bills were tabled in the House of Commons. That was not the case with Bill C-7; the bill was tabled, and we asked their opinion afterward, knowing full well that, once the bill is tabled, it is much more difficult to completely redo the exercise, to set the bill aside and introduce another.

Moreover, it can be seen from the minister's recent attitude that he is determined to bring in the steamroller and push through this bill which no one in the First Nations wants.

Â (1200)

Le président: Thank you, Mr. Loubier.

[English]

Mr. Martin, closing remarks.

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

It just becomes more clear to me that, despite the stated concern with self-governance that the government professes when it developed it and with helping first nations to develop effective tools of self-governance, what's most striking to any objective reader of this bill is the degree to which matters of governance in the FNGA are not left to first nations discretion--in fact, they are imposed by the government. It's a glaring contradiction.

That's the principle that we need to address here and that I'm seeking to address with our amendment NDP-18, seeking to amend subclause 6(1).

In keeping with the objective of ultimately supporting and endorsing self-governance, we shouldn't be doing things that are directly contradictory to that idea. Surely it's contradictory to the idea of self-governance to impose governance codes on first nations. It undermines the very idea of self-governance.

So we believe the Canadian government, with this bill, is in danger of following a common and flawed approach to the decentralization or to the recognition of first nations' inherent right to self-governance when it develops a template for governance and then imposes it on local communities. It's an approach that is doomed to fail, and it's no wonder it offends so many people.

What people need to understand is that neither Mr. Loubier nor I are objecting to the idea of having an annual general meeting. That's not the issue here. Whether it's one meeting per year, one meeting per month, or one meeting every two years is none of our business. It's entirely the business of the band and council.

We may recommend that it's in keeping with normal business practices, or it's in keeping with our view of how to have an orderly code of governance to have an annual general meeting. That may be our personal belief and something we might want to propose. It may be, and in fact we know it's a fact, that most first nations already do just that very thing, but nowhere is it our right or nowhere should the government subject these views on first nations.

That's why my amendment doesn't try to delete the idea of what an administration of governance code should include. In fact, the language in my proposed amendment says

6.(1) An administration of government code must specify

(a) the frequency of meetings of band members;

I don't see a huge contradiction there. The difference is we've deleted some, we believe, unnecessary language, and not even contradictory language but language that doesn't add to the effect of what we're trying to achieve. We're simplifying subclause 6(1) as an article, and we're simplifying or making amendments to paragraph 6(1)(a). We believe it actually improves and strengthens the idea and takes away, as I say, the flashpoint or irritant associated with dictating what that should be.

As I've said before, I didn't craft these. It would be presumptuous of me to write amendments dictating or even suggesting these changes. In putting my amendments forward, we listened to the presentations made to the standing committee--which is in keeping with the promise the minister made. Unfortunately, that doesn't seem to be the way it's going with the government-side members.

In some of the presentations we heard, one particularly good presentation on this subject, or a particularly clear presentation that consolidated the input we had from a number of presenters into fairly clean language, was a legal opinion or a submission crafted by Maria Morellato, a lawyer with Blake Cassels & Graydon, on behalf of the B.C. regional vice-chief of the Assembly of First Nations.

Their proposal quite specifically said, dealing with clause 6 and the administration of government code:

The language of s. 6 is overly prescriptive and therefore inconsistent with the recognition of aboriginal self-government and potentially inconsistent with aboriginal customs and traditions.

Â (1205)

It is recommended that s. 6 be modified as follows:

6.(1) An administration of government code must address and achieve the following objectives:

(a) the frequency of meetings;

(b) the manner of calling and publicizing meetings;

(d) the keeping of minutes of proceedings at meetings and access to the minutes by members.

That's pretty much word for word, with very subtle differences. After we proposed that to the legislative drafting assistants in the House of Commons, they made some subtle amendments to that proposal. The language we now have in my proposed amendment is:

6.(1) An administration of government code must specify

(a) the frequency of meetings of band members;

(b) the manner of calling and publicizing meetings;

(d) the keeping of minutes of proceedings at meetings and access to the minutes by members.

I don't see how government-side members can object to that. It simply clarifies things, in my opinion. We didn't deal with the two-year timeframe, etc., associated with implementation of any of these codes. That will be dealt with elsewhere. But we did craft our proposed amendments around what we heard. I think it's a duty and an obligation we have as a committee to take into serious consideration the presentations made to us. These presentations were not made lightly. They were not written on the back of a napkin. These proposals were developed and crafted with the expertise that is out there.

The real authorities on this subject are the current legitimately elected leadership of first nations in the country. They are the ones who have dedicated much of their lives to becoming familiar with the act, the implementation of the act as it affects them, and the need for change.

The first mistake the government made was to bypass the legitimately elected leadership in their consultation process, because frankly, when you ask people on the street or your average band council member, I'm not sure you get an informed or as informed a presentation. But when we toured the country as a standing committee and sought the participation and input of first nations leadership, this is the kind of thoughtful and useful presentation and brief that was presented to us.

You can disregard that, but I suggest you do so at your peril, because you'll find it takes the willingness of first nations and the cooperation of first nations to implement any of these kinds of changes. It's like steering public opinion. As any government should know, it's like steering a supertanker. It doesn't happen dramatically. You don't crank a hard right and turn 90 degrees. You inch it along, one degree at a time, gently and slowly in the direction you want it to go. You do that with cooperation, and the methodology you choose has a direct relation with the success you're likely to have. In this case a club was used; a heavy hand was used. Instead, we should have massaged gently this issue until we achieved some of the goals we set out to achieve.

I suggest, as it's been suggested all along, that this entire bill should be withdrawn. Never mind amending these clauses. We're doing our best to make the best of a bad situation by suggesting amendments. The whole bill should be pulled back and we should come at it in a completely different way.

First of all, we should be looking for examples of best practices, an abundance of which were made available to us in the presentations. Many first nations and bands and councils came forward with their bylaws and codes saying, “Here's what we do in our community. We started doing this 20 or 25 years ago, or else we've always done it. We don't see why the government wants to butt its nose into these issues now, because that's the way we conduct ourselves. We do it not only because it's good business practice, but because our membership would tolerate nothing else. There is an accountability mechanism.”

Â (1210)

So if accountability and transparency are the goals here, the only thing that's unaccountable and not transparent that I've seen so far is the government's unwillingness to provide us the documentation we've been asking for consistently.

The Chair: Thank you, Mr. Martin.

(Motion negatived: nays 5; yeas 3)

The Chair: Next is amendment CA-11.

Mr. Vellacott.

Mr. Maurice Vellacott: Our amendment replaces line 32 on page 5 with the following:

of the members of the band and residents of the reserve and, in particular,

I think it's pretty important to make reference to reserve residents as well as band members. They may not be one and the same in all cases or in all situations across the country.

Reserve individuals could include individuals from other bands who are living on that reserve. Going back in history, individuals could kind of vote with their feet by moving over to anther band and attaching to that band if that was the kind of leadership they liked, as opposed to where they came from. So reserve residents could include individuals from other bands living on the reserve--spouses who are non-native, children of members from other bands, etc.

These individuals need to be adequately protected and their needs must be addressed by whatever form of band governance they have there. Reserve residents will not have any voting rights on reserve and therefore need to be expressly included in all other codes developed by the chief and by the council. This just tries to ensure, in terms of a very basic amendment here, that a basic level of freedom, rights, and protections is offered to all Canadians, regardless of their residency. That's the intent here.

I want to pass it on to my colleagues on this side and across the way if there are questions, and then to our technical advisers here on that as well.

So that's our amendment. We want to provide a basic level of protection for those who reside on the reserves, and they may not always be the same as the band members there.

The Chair: Thank you.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I announce that I'm going to support Mr. Vellacott's amendment because it has been our concern since the hearings began on the bill to ensure that not only the members on reserve, but also those off reserve could receive certain non-discriminatory treatment.

Moreover, we saw an example earlier with the start of clause 6, where talks about introducing a clause—these are the amendments I was introducing—to ensure that there is no discrimination. That was aimed not only at members on reserve, but especially to members off reserve and Aboriginal women.

Like me, you have witnessed some cases—this isn't widespread—where it was clear that rights were not being respected for some members of the First Nations. That moreover is what we must seek in all the bills that are before us, particularly this one. We are seeking to ensure that there is as little chance of discrimination as possible which could affect certain members concerned by Bill C-7.

I'm going to paraphrase my NDP colleague Mr. Martin. Of course, for me, in my opinion, this is an improvement, definitely, but, if you will, it's not the promised land, to use a stock phrase, since there is a kind of very extensive formal defect in the bill as a whole, even if the fundamental amendments we introduced had been agreed to. It should be entirely rewritten with a different kind of treatment from what can be found in and what comes out of this bill.

Mr. Vellacott, I allow that you have introduced a number of amendments consistent with that, and they are attempts at least to prevent the bill from having undesired and undesirable effects. The amendment you introduced five minutes ago is a highly valid amendment which I enthusiastically support because no one here would want any bill whatever, even less so Bill C-7, to favour one class of individuals and be unfavourable to another. So I'm going to accept it readily. I'm very pleased that you have introduced it and, once again, congratulations.

I have a question to ask Mr. Johnson. It comes back to your question. We didn't receive any legal opinions on the wording of Mr. Vellacott's amendment. It might be very interesting to have one. In our view, it represents an improvement, but what do you think?

Â (1215)

[English]

Mr. Warren Johnson: I think the role of band members, on the one hand, both on and off reserve, and residents of the reserve, which can be both band members and non-members living on reserve, is an important issue for the committee in terms of a variety of aspects of this bill.

There is a specific role, however, for meetings of members of the band. There are specific issues that first nations deal with that are of interest just to band members as opposed to all residents. We've attempted to make some distinction in crafting Bill C-7 to reflect those interests. This clause deals just with the issue of the meetings of members of the band, which do have a certain purpose and some legal requirement under the Indian Act, which my colleague can comment on.

In terms of the interests of residents as distinct from the interests of members, one of the amendments is a notice provision to all residents. That was carried earlier in the committee's discussion. The leadership selection code allows first nations to specify qualifications for office, who can nominate, etc., so that they can include resident interests in that code. Under the law-making references later on in this clause, there is notice of laws to both members and residents so that they can provide input. So there are a variety of clauses in the bill where we've attempted to be conscious of the interests of residents, some of whom may not be band members, as distinct from the interests of members, who may be both on and off reserve.

Subclause 6(1) is specifically for meetings of members of the band.

My colleague can comment on the areas where band meetings have a specific function under the current situation.

Â (1220)

Mr. Paul Salembier: Yes, there are a variety of situations in which a band would want to hold a meeting for members of the band that would not affect the interests of reserve residents who are not band members, things like assuming control of the band membership list, an amalgamation of two bands, and surrenders and designations of reserve lands.

Bill C-7 does provide for notice to non-member residents of the reserve in paragraph 6(3)(a) regarding proposed laws of the band that could have an effect on the interests or rights of non-member residents. So the rights of non-member residents are specifically addressed in paragraph 6(3)(a). For general meetings of the band to discuss subjects of interest to the band members, in other words, band affairs, it's only required, of course, that they be open to members of the band.

[Translation]

Mr. Yvan Loubier: In your opinion, are the present leaders of the First Nations open to the idea of inviting residents who are not necessarily members of the First Nations to the general meetings? Is that commonly done? Are people positively predisposed toward that? What is the situation?

[English]

Mr. Warren Johnson: Given the variety of situations across first nations, I would hesitate answering that to those interests, but you've asked the question in terms of the annual meeting.

First nations have, and the bill as drafted before you would envision, different types of meetings in different situations. Again, keep in mind the issue as articulated in the reference earlier in the Supreme Court decision in Corbiere that first nations have two types of constituencies. They have a constituency of residents, some of whom may be non-members, and some communities have significant non-member participants and take a variety of measures to include those non-member residents in their discussions, especially those first nations involved in property taxation questions and local servicing questions.

So there is a constituency of residents who are affected by either the local laws and/or the local program and service issues of the first nations. But there is another constituency, which is all band members, on and off reserve. The off-reserve members' interests, as articulated in the Supreme Court decision in Corbiere, don't always extend to the local programs and services, because being off reserve, they don't access them, but they do have strong interests in the basic politics and constitution of the first nation, the issues of the capital of the first nation, the disposition of assets--the disposition of lands--because those are their heritage, if you will, and it may be a better term. And that's why, as my colleague pointed out, there are specific situations where under the Indian Act currently, first nations operate through meetings of members of the band exclusively. Now, some of them may open those meetings up to other people, but the issue is that those relate to decisions of members of the band, not members of the reserve.

For example, membership rules themselves are made by the members, as opposed to all the residents, as well as dispositions of land, etc. That's what this section is dealing with, just those meetings of members of the band.

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

Mr. Pat Martin: Thank you. Those are some of the very questions I intended to ask.

I don't share my Bloc colleague's support on adding the words “residents of the reserve as well as members of the band” for that very reason. I don't fully understand...well, it was helpful to hear Mr. Johnson explain. But I agree that in meetings dealing with band residents, if you had a reference to other residents of the reserve, it could be taken as an entitlement to attend the meetings, and some of those meetings may not be for other residents of the reserve; they may be exclusively for band members.

So the idea of membership is an issue of much debate; even the right to determine band membership has been debated a great deal lately.

I don't see, personally, how non-member residents have a full right to all of the meetings taking place. That may not have been the intention of Mr. Vellacott, but I think if you added that language to clause 6, someone could read it that way, that the administration of government codes must include rules respecting meetings of members and of residents of the reserve.

This particular bill is supposed to be dealing with the administration of governance codes regarding band membership, as I understand. I think it is unnecessarily confusing to introduce at this time, or at this place in the bill, reference to other residents.

I saw elsewhere in clause 6...I'm having trouble finding it now, but there is reference to other residents of the reserve, giving them a right to have some involvement. I don't think it allows the right to vote. It gives the right to a “voice but not vote” type of status.

I'm thinking of the Squamish, the situation in Vancouver where there was quite a high-profile case. For years the band had been leasing land at a very affordable rate, a very low rate, for fairly high-end residential housing of non-aboriginals, non-members of the band. It became quite a hot issue in the courts when they wanted to raise the fees to market value instead of the ridiculously low rate that was being charged over the years.

I don't think anybody would want to contemplate a situation where those residents of the reserve who are leasing land would have a right to have full participation in a meeting dealing with the rents to be assigned. I think they should be guaranteed access to having their voices heard at meetings, since obviously they have a vested interest, but it's really up to the band and council to set the business end of those meetings.

There is room for reference to other residents of the reserve within clause 6, but I don't think it's appropriate where it's being recommended by Mr. Vellacott. I wonder if “other residents of the reserve” is even the right term to use. “Other affected persons” might be better language.

There are people who may be affected by decisions made by a band and council that might have a good argument that they should at least have an opportunity to make their case known. Again, no one would argue that “other affected persons” would have a right to a vote at the band and council level, unless they actually had band membership.

“Affected persons” is better language than “residents of the reserve” because it's broader, and that's what we're trying to consider--to allow input from other people who are affected by a decision made by a band council. That might be preferable.

Â (1225)

I notice that in paragraph 6(3)(a) of the bill we do have reference to “residents of the reserve”, and it was recommended under BQ-17 that “residents of the reserve” be changed to “affected persons”. The language would be “providing for reasonable notice to band members of a proposed law and permitting affected persons to comment on it before its made”. Paragraph 6(3)(a) currently says “requiring reasonable public notice of a proposed law in order to enable members of the band and residents of the reserve to comment on it before it is made”. I think this needs more debate. We have to have a serious look at whether we want to use the term “residents of the reserve” anywhere in clause 6.

It was helpful to see that under Corbiere a band council has an obligation to consider two types of constituents. One type of constituent is residents of the reserve, whether they're members of the band or non-member residents of the reserve. They have a second constituency they speak to on different issues or have an obligation to support on different issues, and that's all band members, no matter where they live. There are some issues that would be dealt with only by all band members, no matter where they live, and some issues where it would be legitimate to allow input from non-members.

In terms of subclause 6(1), the holding of meetings, etc., I don't agree with Mr. Vellacott that this is an appropriate place to have residents of the reserve included. I think it could add further complications for those seeking to interpret this bill later on when it ultimately winds up before the courts.

We have to try to streamline it and make the language as clear and as plain as possible, unless there is, again, an objective whereby this language is not accidental, that there's an objective someone is trying to achieve here by adding that language to this particular line of the bill.

I wish I could ask Mr. Vellacott questions directly, and perhaps he'll answer this in his closing remarks. In terms of including rules respecting meetings of members and residents of the reserve, how does he contemplate that actually working in practice? What types of meetings would he expect other residents of the reserve to be invited to? If this were to go into effect, what about situations where there may be 100 band members on the reserve and 500 non-member residents of the reserve? What are the rights of those non-member residents of the reserve? Does he anticipate or contemplate some further rights for them so they have a say in the ongoing, day-to-day business of providing of services, etc., in the community in which they live?

Choosing to live on the reserve, you're making a conscious choice that you'll be living under the codes of governance of that community, just as you would if you were living in a rural municipality. You would be bound by the codes of governance there; the difference is that if you were just living in a rural municipality, you would have a voice and a vote at meetings. I'm finding it hard to understand why you would have a right to attend all types of meetings in the community whether you're part of a minority or a majority in terms of the actual residents of the community.

Â (1230)

I would hope that we would revisit this at greater length and in detail. Maybe it should even be withdrawn and dealt with or reintroduced at a later time, because we're on dangerous ground here. I see it was Mr. Chatters who signed this particular amendment.

The Chair: Thank you, Mr. Martin.

Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: I just have a question for the technical staff. Who now determines who is a resident? Is that currently done by the band council under the Indian Act? Do you have to live for one month there, or are there local by-the-band rules on residency? How would you define residents of a reserve?

Â (1235)

Mr. Paul Salembier: Residency isn't defined in the act or regulations anywhere, so it would simply be a question of fact. If they physically live on the reserve, then they would be considered residents of the reserve.

Under Bill C-7 it has not been contemplated that there would be any further rules defining residency.

Ms. Nancy Karetak-Lindell: Yes, I looked for that. So you're saying that someone who just moves onto a reserve or is even visiting at the time of a meeting could technically be called a resident of the reserve if they're physically living in a house on the reserve?

Mr. Warren Johnson: In that situation, since there's no definition or prescription of that in Bill C-7, that would be up to the community or the chief and council to decide. They can add whatever they wish in terms of other definitions, other procedures, or other requirements beyond the minimum set out in these various codes.

If a first nation individually was concerned that it wanted to have meetings of all residents, as many if not most governments do, they could define residency as requiring some minimum period of time, whether that be a number of months or whatever. They could do that themselves, but that hasn't been prescribed in Bill C-7 as currently drafted.

Ms. Nancy Karetak-Lindell: Are there bands today that do define residency, where you have to live there for so many months or reside continuously for three months? Those are just examples, but are there bands that currently do have some definition of residency?

Mr. Warren Johnson: There may very well be, but since that's not an issue that affects legal obligations under the Indian Act, that's not something we are aware of on a day-to-day basis.

It does affect some program funding issues because a variety of programs for which first nations are funded are residency-based, but that's a less frequent calculation, so it's about being resident as of a given point in time. Some people would be moving off and some people would be moving on, so I doubt even there we would get into that level of detail or definition or would need to. I'm not sure we would be aware in the department of first nations own rules in that area.

Ms. Nancy Karetak-Lindell: The way this reads now, it just gives me cause to worry, because someone who wanted a certain bylaw passed or something like that could bus a bunch of people in, have them live there for a month, and sway the vote in some way. I'm not saying that's what some people would do, but if there is no residency requirement and a band hasn't stated how long one has to live there to be recognized as a resident of the reserve, it tends to be quite open-ended.

The Chair: Ms. Karetak-Lindell, subclause 17(1) of the bill says “The council of a band may make laws for band purposes in relation to”, and if we go to paragraph 17(1)(e), it says “the residence of members of the band and other persons on the band's reserve”. The opportunity is there for them to make the regulation as they go.

Ms. Nancy Karetak-Lindell: Thank you.

The Chair: That was brought to my attention by the researcher.

We now go to Mr. Vellacott for closing remarks.

Mr. Maurice Vellacott: Just to help clarify some things that came up in the way of questions from Mr. Martin and others here, I think I know the answer somewhat, but I'll ask this question: who ultimately determines who are band members in every band community across the country? Who is the one who draws up that band member list?

Mr. Warren Johnson: In the context of those first nations that control their own membership, they do. In the case of the others, each person who is registered with the Indian registrar...along with that is the membership. So for those first nations who don't, we maintain the membership in the department through the registry system.

Mr. Maurice Vellacott: Therein lies my point. For those bands that you just mentioned, they don't get to keep their own list. So you as a department do. There may well be people who have been there a long time and are part and parcel of that community, married with children, and so on, but they're not on the band list. I often hear stories like that.

Â (1240)

Mr. Warren Johnson: For those first nations that haven't assumed control of band membership, and any first nation can under the Indian Act as it stands, we maintain the list. The list is of all band members who are status Indians under the Indian Act. That would exclude any resident who was not an Indian registered with that band as defined under the Indian Act.

Mr. Maurice Vellacott: I'll frame the question this way. Would that exclude, then, individuals who even the leadership would judge should be part of their band membership but for purposes of the Indian Act and the Indian Affairs department are not on that list?

Mr. Warren Johnson: Yes. But that's why there is an option under the Indian Act for first nations to assume their own membership if they wish to redefine membership to include something other than those Indians who are registered as status Indians under the Indian Act.

Mr. Maurice Vellacott: Is that just a simple resolution of a band council to say, we want to have control of our own list and determine who is on that list?

Mr. Warren Johnson: What this clause was intended to deal with is that requirement of meetings of band members to determine issues of solely band, as opposed to resident, concerns. One of them, which was cited in the earlier reference, was meetings of the band for membership purposes.

Mr. Salembier can comment further.

Mr. Paul Salembier: Assumption of control of membership by a band is governed by section 10 of the Indian Act. It requires a vote of a majority of the electors of the band in order to confirm assumption of control of membership by the band.

Mr. Maurice Vellacott: Do you ever get reports of individuals who have a pedigree as good as that of anyone else and are bona fide first nations people, it would seem, but are not on the list because of, for example, a falling out with the chief of the council? Has that occurred?

Mr. Paul Salembier: Being a status Indian is a right under the Indian Act, so that right would not be affected simply by the relationship, as per your example, with the chief of the band.

Mr. Maurice Vellacott: So they have taken control of their own membership list. They have assumed that right. When they have control of the list themselves, can they remove people from the band membership list because there has been a cleavage along family lines or whatever?

Mr. Paul Salembier: Sorry, I misunderstood your first question. A band that takes control of its membership will establish membership rules for itself, and those rules will be in writing. Who becomes a member and who ceases to be a member would be determined in accordance with those rules.

Mr. Maurice Vellacott: You are talking about the future. Has that been the case in the past?

Mr. Paul Salembier: Bands that have control of their membership do have rules in writing that determine who becomes a member and who ceases to be a member.

Mr. Maurice Vellacott: So there's never any arbitrariness, at least from your point of view, in terms of who is dropped off the list.

Mr. Paul Salembier: Sorry, I can't give you an opinion as to what all of the various membership rules state and whether any of them are arbitrary or otherwise.

Mr. Maurice Vellacott: I hear what you are saying in terms of their control. These bands don't have control of their list, and they resent the fact that they can't determine who is part of their membership. So once they take control of it, you don't have any say at all.

Mr. Warren Johnson: No, none whatsoever, once they've taken control.

Â (1245)

Mr. Maurice Vellacott: Okay.

To my colleague, Mr. Martin, this is not about leaseholders. It's about, as I said in my preface, individuals from other bands who would be living on that reserve--spouses who are “non-native”, children of members from other bands, and so on--allowing them to...going back to the old days, if you will, where bands had that freedom, as supposedly they do now, from what our witness has indicated. But they could in effect vote with their feet and decide they liked the leadership there, they liked the opportunities, the situation, and they'd go there and become part of it. That's according to sources I've read and what occurred historically.

So basically my concern, obviously stated before, is I think other reserve residents, first nations people with first nations blood in them, should be given adequate protections. I don't understand--and this is a bit of a bafflement for me, because we're not necessarily talking of votes, or at least that wasn't expressly spelled out here--why it's a problem for them to be given notice to be informed of meetings and so on.

I don't understand subclause 6(3), which you make reference to, as allowing that reserve resident person--first nations, we'll assume; lots of first nation blood flowing through their veins...why by paragraphs 6(3)(a), (b), and (c) they can make a comment, but they're not ever given the opportunity to debate in any “public forum” or “meeting”.

If I understand paragraphs 6(3)(a), (b), and (c), it's basically that they can make comments. I don't know if that's an offhand comment to a chief, a council member, second or third hand, whatever, but it doesn't give them any opportunity to be at a meeting where this information that affects them so directly is shared. Would that be correct to say? Paragraph 6(3)(a) just says they have a right to make comment on it before it is passed. So they're not necessarily at a public meeting anywhere when this stuff that so directly affects them is discussed and talked about.

Mr. Paul Salembier: There's no actual requirement under the bill for a meeting to precede the making of every band law. So what this does is give them the opportunity, like all other members of the band, to comment on a proposed law, but the bill does not actually require a meeting to be held before a law comes into effect. Nothing would preclude a first nation from deciding to hold a meeting prior to adopting a particular law to discuss the law, and nothing would preclude them from inviting reserve residents as well to such a meeting.

Mr. Maurice Vellacott: So what's the nature of “to comment on”? What technically or legally does that mean? Who do they make these comments to?

Mr. Paul Salembier: I think the courts would likely interpret it according to its ordinary meaning.

Mr. Maurice Vellacott: They would just kind of ventilate to somebody on the street corner or wherever, this kind of thing? Is that what it is? Is there something a little more substantial than just a “comment”, or is it just the ordinary sense of the term?

Mr. Paul Salembier: I think I would interpret it in the same way. For example, the Government of Canada solicits comments on proposed regulations. People can make their comments in writing, which is a normal way such comments are conveyed, in order to have some record. Or one would assume they could make their comments orally to one of the councillors on the band as well.

The Chair: Thank you very much, Mr. Vellacott.

We'll go to the question.

(Amendment negatived)

Â (1250)

The Chair: Colleagues, I didn't order food because there were so many people in the room when I should have ordered that there would have been the risk there would have been no food for you. When everyone left, they said “We'll be back”, so I didn't know what to do.

You may want to suggest we suspend either to eat, or for question period, or both, or we can go right through. It's up to you.

Having said that, we'll go to amendment BQ-18.

Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, during the two-week adjournment, I had the opportunity to reconsider the amendments we were introducing and the bill, and I decided, in light of what I read, of what I saw again, to withdraw, with the consent of committee members, amendments 18 to 25 inclusive. So I will resume further on, with your permission, of course.

It would be interesting if the government followed my example and completely withdrew the bill, but we haven't gotten to that point. So amendments 18 to 25 are withdrawn, if you agree.

[English]

The Chair: I'm asking everybody if they agree, but nobody's reacting.

So for now, amendments BQ-18 and BQ-19 are withdrawn.

We go to NDP-19.

Mr. Pat Martin: Mr. Chair, what happened to the idea of going for lunch?

The Chair: Well, I would have hoped somebody would have put that motion before somebody started speaking.

Ms. Nancy Karetak-Lindell: I'll make a motion to adjourn for lunch from 1:15 p.m. to 3:15 p.m.

The Chair: Should we do it from 1:15 p.m., because if we start with a speaker, we can't cut in, or do you want to go now? It might be cleaner to go now before we start.

Ms. Nancy Karetak-Lindell: I'll amend my motion to adjourn now for lunch until 3:15 p.m.

The Chair: The motion is that we suspend now until 3:15.

(Motion agreed to)

Â (1252)

¹ (1525)

The Chair: We will resume proceedings on Bill C-7, a continuation of this morning's meeting.

We are discussing NDP-19. Mr. Martin.

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

Our amendment, NDP-19, seeks to amend the bill in subclause 6(2) and would eliminate the first 15 lines of the bill, effectively all of subclause 6(2), and replace it with comparable language, language that doesn't differ very dramatically from what's proposed in the bill, but language that does address some of the concerns we've raised about the prescriptive nature of the language in subclause 6(2) as it currently stands.

In the proposed clause we would amend, we would allow that an administration of government code must specify the frequency of meetings of the council and that all such meetings be open to all members of the band.

In paragraph 6(2)(b) we would propose that the code must specify the manner of calling and publicizing the meetings. We suggest that the code must specify the manner in which the band council is to make decisions and exercise its powers, and that the code must specify the manner in which records of the council's decisions are to be kept and the means by which members of the band are to have access to those records.

We believe this language is thorough and comprehensive and speaks to the issues raised by the government, or the concerns they're trying to address with subclause 6(2). It simplifies the language in subclause 6(2), whereas the original language in the bill says:

An administration of government code must include rules respecting meetings of members of the band and, in particular, rules

It then proceeds to itemize what things an administration of government code should outline and address. It simplifies a major change. Our amendment takes out the reference to one meeting not less than once each calendar year, again, not because we don't agree that one meeting per year may be desirable or good business practice; we make no comment on whether one meeting per year is adequate or insufficient. Our point is simply that it's not our place to dictate what meetings per year a band council has. We would simply leave it as language recommending that the code should be established and agreed upon and developed by the band and council with participation of the members of the community as to how frequently these meetings will take place and the guarantee that all such meetings would be open to all members of the band.

We would fall short of making any reference to other non-members, other residents of the reserve who may not be members of the band, because, again, we are not interested in entering into that debate about citizenship and membership. We think it's a whole other issue.

We note that currently the determination of membership is a mixed bag. There are 250 first nations who control their own membership lists, and 359 bands. Under section 11 of the act, a separate membership code has not been developed. Therefore, the department administers membership entitlement for those 359 bands.

We think to go into that whole debate about membership and citizenship is not necessary in the context and the parameters of the administration of government codes. It's complicated and complex, the citizenship and membership. We're happy to debate later on, as this bill unfolds, and I think we should comment on some of the problems that arise out of subclauses 6(1) and 6(2) membership--not subclauses 6(1) and 6(2), but of the Indian Act, under who is to be listed as a member on band membership lists.

¹ (1530)

We feel the reason there's such a great amount of debate on and interest in clause 6 is that the very administration of government codes, which so alarms first nations leaders and observers from civil society.... They find fault in the imposition of these codes or the prescriptive nature of the codes as they're recommended in terms of dictating minute details about the administration of governance issues in communities.

Under subclause 6(2) it prescribes the rules respecting meetings of the council and of the band. It says:

An administration of government code must include rules respecting meetings of the council of the band and, in particular, rules

(a) requiring that a meeting open to members of the band be held at least once each calendar year.

We object to that, as have others.

It says it will adopt rules “prescribing the manner of calling and publicizing meetings”. We have no objection to that. In fact, the language in our recommendation for paragraph 6(2)(b) doesn't differ in any substantial way. We say “the manner of calling and publicizing meetings”, and you say “prescribing the manner of calling and publicizing meetings”. We think it's common sense that within the community it will be agreed what method will be used to notify people and what timeframe would be considered reasonable in terms of serving notice that meetings will take place. That will be determined by the community. We find no fault with the way it's listed in Bill C-7.

Under paragraph (c), however, we do make changes. Paragraph 6(2)(c) currently reads:

subject to subsection (3), prescribing the manner of making decisions and exercising the council's powers under this Act and the Indian Act;

We would streamline that phrase. Under our amendment, which is NDP-19, we would seek to amend that paragraph to read “the manner in which the band council is to make decisions and exercise its powers”. We feel it's cleaner. It's less language. Less is always better in terms of crafting a piece of legislation that we know full well will be subject to court challenges. We've already been informed that court challenges are ready to be filed as soon as this bill is through the House, unless it's amended in a substantial way. So if we can anticipate what some of the language issues are, we can forego some of the unnecessary grief associated with the court challenges that are pending.

Our amendment to paragraph (d) reads:

the manner in which records of the council's decisions are to be kept and the means by which members of the band are to have access to those records.

Again, we believe that an administration of government code must specify exactly the manner in which those records are to be kept and the access for members of the band. Those records certainly must be accessible. But again, we wouldn't want to include reference to anyone else, such as other residents of the reserve, in this or any other paragraph associated with clause 6.

We think the amendment also takes out the reference of how the code must include certain rules. The changes we have suggested to all of the paragraphs are minimal. This change removes the obligation to create rules. Instead, we have replaced the overly prescriptive language with a provision that states instead that the administration of government code must address, achieve, or specify those things as we've outlined.

¹ (1535)

Again, some of the presenters to the committee cited this particular clause as one they wanted addressed, and if we're serious about addressing the issues that are brought to the committee, we should take those recommendations seriously and incorporate them wherever possible.

The Opetchesaht First Nation, for instance, made specific reference, as many did. We've tried to--

The Chair: Thank you, Mr. Martin.

Anyone else?

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier Thank you, Mr. Chairman.

Once again, I'm obliged to admit—and I believe you will admit with me—that the NDP, through the member for Winnipeg Centre, Mr. Martin, has shown great wisdom in introducing an amendment such as NDP-19. That amendment contains the spirit that should animate us when we talk about redefining our relations with the Aboriginal nations. This may seem harmless, but, when you choose the words to write such a proposal that is to serve as a basis for new relations in the coming decades, those words must be right and must accurately reflect what we can expect in 2003 from those new bases for relations between the federal government and the First Nations. We are right, I believe—and we must talk to the representatives of the Aboriginal nations to confirm it—to remove any kind of expression or words that may be offensive to people who rightly have an ambition to genuinely take charge of their lives and gain recognition, not only in the long speeches of politicians, but also in fact. But when you look at the words that are used, that are very prescriptive and that convey a kind of obligation in virtually every clause, you can't avoid saying to yourself that this isn't the path that was laid out for us, if we look, for example, at the judgments of the many courts of law or the report of the Royal Commission on Aboriginal peoples. This isn't the way we had understood the phraseology and terms which should have appeared in a bill such as this.

We shouldn't talk about obligations; we shouldn't say that the First Nations must do this, that the First Nations must do that; if I rely on the analysis that was submitted to us by a professor from Arizona, we must ask what the Aboriginal peoples want in accordance with their rights, in accordance with their Aboriginal treaty rights, in accordance with what is provided for in the Constitution and in the Canadian Charter of Rights and Freedoms, and in accordance with the many court judgments. And once we have clearly established what they want, as was done with a high degree of open-mindedness in the Erasmus-Dussault report, it will be our duty to support them, to offer them our assistance, because for them to be able to engage in nation rebuilding, the First Nations must absolutely be provided with means. However, providing the First Nations with means entails providing budgets for that rebuilding and assisting them, not dictating a way to do to things.

When we talk about something that may seem harmless, about annual meetings, and we say that they must hold one meeting a year, that's a wrong way to deal with them. That doesn't reflect what should inspire us as representatives, as legislators, when we design this type of project, which is presented by the Minister of Indian and Northern Affairs as the revolution of the century, which is going to project us 130 years forward. If we are projected 130 years forward as we were 130 years ago, we won't be out of the woods yet, as the expression goes. We have not established the basis for desired and desirable relations with the Aboriginal nations.

So Mr. Dromisky, who agrees with me, when I talk about these projections over the 130 years, knows that we should not recommit the errors of the past, in other words.

¹ (1545)

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard.

[English]

Mr. Charles Hubbard: Thanks, Mr. Chairman.

Again, very briefly, subclause 6(2), which we're dealing with here, has been before the House for a long period of time--in fact tabled last June--and I think it is quite carefully crafted. I'm surprised that the members opposite are trying to change, first of all, a part of the legislation dealing with the basic requirement of having at least one public meeting each year.

Secondly, I would have to express some concern about the fact that it would appear that at most levels of government there are times when meetings are not open to the public. In fact, quite often, at various levels of government, whether it be our own federal cabinet or whatever, certain things have to be done in closed meetings.

It would appear, anyhow, that the amendment as proposed would indicate that all meetings would be public, or open to the public, and for that reason I have serious concerns about the amendment before the committee in terms of amendment NDP-19.

Thank you, Mr. Chair.

The Chair: Thank you.

Mr. Martin, do you have any closing remarks?

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

We would suggest that the language we put forward in amendment NDP-19 comes from the presentations that we heard in our cross-country tours and that we have an obligation as a committee to seriously take into consideration the recommendations made by first nations people in presentations to the committee. It was about their only avenue of recourse, to come before the committee after the fact in terms of the development of this particular bill.

I think probably the language that was recommended here, to include openness in terms of making the council meetings open to all members of the band, was to make the point that no one we heard make presentations is against accountability or transparency. In fact, many presented bylaws and codes of governance that are already in place in their own communities that exceeded the accountability and transparency provisions being put forward under Bill C-7.

In those situations, the point they simply made was that they resented anyone dictating to them what those codes shall be, that they were more than capable and had already undertaken accountability and transparency issues on their own.

Dealing with accountability and transparency, it has been the theme of the government throughout the introduction of this bill and the debate that has taken place since then that we should pause and reflect on the whole issue of accountability and recognize that there is more than one level of accountability obligations that come into play when addressing Indian Act matters and the relationship between the Department of Indian Affairs and first nations. In fact, in a general way, there are three different levels of accountability that can be referred to in the Crown-Indian accountability framework, this being only one of them. You can summarize these different ways we can view accountability.

In the first place, there's the administrative accountability of the department for decisions it makes affecting bands and band councils. Secondly, there's the accountability of the Crown with respect to the fiduciary relationship with aboriginal people and the corresponding fiduciary duties. Thirdly, there's the accountability of band councils to their membership, including political accountability, financial accountability, and the accountability for administrative decisions that affect the right of individual band members--that's one of the three aspects.

This is what we have to address today, but we shouldn't be addressing it in isolation; we should be addressing it in the largest context of accountability. We're being asked to consider accountability and transparency in its larger form and not the minutiae we've been asked to address here in terms of prescribing even up to and including the number of meetings per year of a band and council that take place.

Larger issues of accountability place an onus on the federal government to ensure it conducts itself in a manner that is open and transparent and in a fashion where the unfair exercise of administrative privileges can be challenged. This is where a lot of first nations that made presentations before the committee had much of the substance of their presentation deal with their frustration at the lack of accountability and transparency on the federal government's part and administration of details. There's no shortage of accountability and transparency in the contribution agreements in terms of the obligations of the first nations, but currently there's no process in place whereby first nations can challenge the discretion exercised by the minister and his officials without going to court. So there seems to be a lack of reciprocity in terms of accountability and transparency measures.

In the second category were matters of accountability regarding the conduct of the Crown as a fiduciary. It has been raised earlier before the committee as part of testimony, and that's why I raise it here today, because of the concern over the failure of the Crown, as a fiduciary, to divulge information regarding the impact of Bill C-7 on the fiduciary relationship and on aboriginal and treaty rights. In terms of accountability and transparency, we deserve to know what the government thinks the impact of Bill C-7 is going to be on their ongoing fiduciary responsibility.

¹ (1550)

Is this change in legal status going to result in frustrated first nations individuals suing the new legal entity instead of going after the minister, in terms of their obligation for housing, or whatever it might be? There's been a lack of transparency and accountability on the part of the government to divulge information regarding what impact this bill might have on the outstanding court cases that are currently pending, and future court cases.

The absence of an independent agency to monitor the manner in which Canada fails to fulfill disparate aspects of its fiduciary responsibilities has been troublesome to a lot of the presenters who came to us. If we're dealing with accountability and transparency, it should be in the broader context, and that should have been put forward as a theme, or as an accountability screen, if you will, where every aspect of the relationship between first nations and the Crown should be revisited and reviewed to ensure that there is a transparency and an accountability that works both ways. Looking through that transparency, the accountability screen is a two-way street.

Bill C-7 falls short in that it wasn't designed to look at the broader issues of accountability. It was designed only to look at accountability in first nations communities, and that resulted in what I call this campaign of misinformation that the lack of accountability is so common and pervasive that it somehow justifies these measures, these intrusions, if you will.

The third aspect of the accountability framework we're dealing with here today is the level of band councils' accountability obligations to their membership, including political accountability, financial accountability, or the accountability of administrative decisions. Dealing with that third aspect of accountability of band councils, there are several aspects there that need attention that we don't think subclause 6(2) addresses fairly. In fact, it either exceeds what it should be dealing with or it falls short in what it should be dealing with, if we're dealing with accountability and transparency. There is certainly a need for a complaints and redress process that should be addressed in terms of anybody who feels there is a lack of accountability, and that can be dealt with elsewhere.

But there are certain criteria, there are certain tests, that we have to put in place. Using accountability and transparency is almost getting to be a cliché, a buzzword, and the more it's used, and overused, it loses its meaning and its impact. We have to remind ourselves that accountability and transparency includes independence, fairness, efficiency, and stability, and then it has to include confidentiality and investigative powers to investigate any breaches of transparency or accountability. Public reporting, and the powers to recommend changes, the ability to undertake investigations--we think those matters are fundamental, and, again, the issue of accountability can't be raised in isolation as the single issue, especially as it pertains to intrusion into a community's own right to establish administration of government codes that reflect the community's desires and wishes. That's really of no particular business of this committee.

¹ (1555)

Again, it's difficult to comment on 6(2) at all because we don't know the specific histories of the many communities in question. It's far too diverse a group of communities, and to use this kind of template, cookie-cutter approach doesn't recognize the diverse nature of communities right across the country and the vastly different administrative systems that are in place. That's why I think so many leaders and first nations communities who made a presentation to the committee were outraged that people--

The Chair: Thank you, Mr. Martin.

We go directly to the vote. Are you ready for the question?

Mr. Pat Martin: I'd like a recorded vote.

The Chair: Yes, a recorded vote.

(Amendment negatived: nays 8; yeas 2)

The Chair: We now go to CA-12, Mr. Vellacott, page 58.

Mr. Maurice Vellacott: I move CA-12.

This, at least on the face of it, might appear as if it's going in a different direction from the one just presented by my colleague, Mr. Martin. The intent here is based on my understanding, gathered from discussions with different leadership in the first nations, that most bands will have far more than four meetings per year open to their bands and so on. I think it's more customary that there be minimums of four a year. I'd be rather nervous about a band of first nations--any level of the Government of Canada--that wanted to get by with only one meeting per year and have that written into their constitution. This is a very low threshhold, a very low expectation, and it's almost an insult in some sense that people involved in governing their own people would only have that few. So I think it's more in order, corresponding to the seasons of the year possibly--spring, summer, autumn, winter--that you would have a minimum of four meetings per year.

I find it rather fascinating and interesting to read about the different forms of government that existed pre the white person being on the stage in Canada here, more of a consensual style of governance in many cases. Certainly that would require more than just even four a year. It requires frequent getting together by the tribe, by the band, for crucial decisions that affect the welfare of all those people.

So that's the intent of this here. Also, I note in response to something Mr. Hubbard commented on in a previous amendment here that this doesn't require that all meetings have to be in public--it just says at least four a year--so that others throughout the band can be in attendance. They can have in camera meetings. This doesn't prevent that or preclude that from happening.

Transparency and accountability I think are tenets of good governance, and native leadership, first nations leadership across the country, would want that, be desirous of that. So this basically makes a statement of affirmation that they want it, and we want it. Band members and reserve residents should expect to meet with the chief and council I think on a periodic basis to hold them accountable for decisions. I think any person in responsible leadership would desire that and be willing and want to be subject to that, so their decisions could be questioned and so people could bring relevant issues and concerns to those elected representatives.

I think one meeting in a year is way too infrequent. I think it doesn't think highly enough of what would be the mode of operation out there in first nations country across Canada. There are also many programs administered at the band level--you have health and education, you have TLE issues, you sometimes have justice issues, all of those issues that in fact bear directly on the lives of people--and the chief and council, just by nature of their roles and these many programs administered, exercise a high degree of discretion. So I think for that reason transparency and accountability are all the more important on the reserve and for their own protection as leadership. Therefore, members and residents must be able to challenge that use of discretion in a public and orderly fashion as often as possible. That's my intent.

Now I'd turn it to our expert witnesses here and ask them if this would greatly complicate or trouble the department for there to be a change, for there to be meetings a minimum of four times per year on a quarterly basis, which is not uncommon in public life in Canada.

I'd ask Warren or Paul, either one.

º (1600)

Mr. Warren Johnson: As you've noted, there are two effects of this amendment. One is that rather than a minimum of one meeting a year open to members of the band, with the council able to make as many others as they wanted, this would raise that threshhold to four. And it would have that reference not to members of the band but to members of the band “and residents”. There are no technical consequences beyond those two facts, so this is an issue for the committee to discuss in terms of those directions.

Mr. Maurice Vellacott: So really there aren't technical issues there. If there were issues of members of the band and excluding residents of the reserve, would that make any difference? You're not rendering an opinion on that? If it simply read “members of the band” and “be held at least four times in every calender year”, would that make any difference, as far as you'd be concerned?

Mr. Warren Johnson: I'm not offering an opinion here because I think that's the committee's function. It would only make one as opposed to two adjustments in the current wording in that reference. The other part that's part of the amendment being proposed is that those meetings of the council that are open to band members also be open to all residents.

Mr. Maurice Vellacott: Right. Is there any particular reason for coming to a figure of one per year, for coming to such a low threshold? I would assume a lot of the first nations across the country are holding public meetings far more frequently than that. Is there a cross-reference, or a parallel in the Indian Act or somewhere, that that's where we come up with the “once a year only”, very minimal, threshold there?

Mr. Warren Johnson: I don't know whether there's a legal requirement in the Indian Act itself. This is not number of meetings of the council; this is meetings of the council that would open to the public.

Mr. Maurice Vellacott: Exactly.

Mr. Warren Johnson: The current wording was not meant to provide some threshold but rather to indicate that some meetings should be open to the public but try to leave it as least prescriptive as possible so that first nations could set that requirement for whatever they felt was appropriate. That was achieved by drafting this section requiring that at least one meeting be open to the public, but leaving it to the first nations themselves to decide how many more would be open.

º (1605)

Mr. Maurice Vellacott: Would Paul have a comment on that, in terms of where this derives from? Is it like an annual meeting, as it incorporates, that we have only one a year? I'm surprised.

Mr. Paul Salembier: At present there is no legal requirement for an annual meeting. What the regulations require is that a council have a meeting within one month after it is elected, and then after that time it is such meetings as are necessary for the business of the council or the affairs of the band. So it is not prescriptive as to one per year or four per year. It lets the band council decide its own.

Mr. Maurice Vellacott: Nor does it suggest those meetings have to be public either. Is that what you're saying?

Mr. Paul Salembier: That's right.

Mr. Maurice Vellacott: They can be just for the council itself?

Mr. Paul Salembier: That's right.

Mr. Maurice Vellacott: Right. This, for me, is an issue I do believe in, and I have a sense that this could be an affirming thing. It's basically a statement that we believe first nations want to do business with their members and meet the needs of their members in a very forward, progressive, upfront manner. That's why I proposed it. I wait for comments from others to see if this has enough weight to carry.

The Chair: Does anyone else wish to comment? Mr. Martin.

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

Dealing with the Canadian Alliance recommendation with two changes here, that residents of the reserve be included as well in terms of these meetings and that it be held four times in every year, it simply compounds the issue we've raised that we shouldn't be prescribing how many times the council meets, whether it's open to the public or not open to the public. It's really none of our business. It's micromanaging in the worst sense.

Clause 6 was the subject of a number of the presentations we heard in our cross-country tour. We note that the addition and subtraction has been done now, and there were 191 presenters opposed to Bill C-7 and 10 in favour of it. These figures were just recently tabulated. I wasn't aware that it was that dramatic, but even of those 10, Mr. Chair, there were reservations brought forward among even some of those groups. The Congress of Aboriginal Peoples' representatives, for instance, in various parts of the country, were very critical of certain aspects of the bill and only supported minor details or one particular clause. Or perhaps they were individuals with a single interest, or there was a single irritant they found in the bill they wanted addressed, but they were opposed to virtually every other clause.

So what we heard across the country was not quite unanimous, but the final score of 191 opposed to Bill C-7 and 10 in favour is quite dramatic, I would think. There were three individuals and seven organizations who were in favour of Bill C-7, but that included the minister. The minister was one of those, and DIAND officials were others. So even among the seven organizations that did support Bill C-7, at least the minister clearly had his own biased reasons for speaking in favour of the bill, I suppose.

We find the administration of governance codes at the very core of what's wrong with Bill C-7. The fact is every band faces the same choice: to administer the government as specified in the governance act or adopt a code that meets the same standards of the act. That's no real choice at all. You either administer what the government specifies in the governance act or you adopt a code that matches exactly the standards that are dictated for you. Either way, there must be at least one council meeting per year that is open to members, a record of all council decisions must be maintained, and members must be provided with access to the decisions, and in addition there must be at least one annual meeting of the membership. Those things are for the community to put together, we believe, and shouldn't be in legislation, especially for the simple reason of how do you enforce that?

It's one good argument against being so narrow and prescriptive in the language outlined here, because who is going to police these particular clauses with the minute details associated with the meeting being held and how the minutes are taken, etc.? And what will be the sanctions imposed if you fail to conduct this meeting? Will one be held for you? Will INAC officials fly into a northern reserve and conduct a meeting so that the community is in compliance with the annual meeting, the one meeting per session?

I don't believe that's practical, and I also don't believe it makes any sense to put these kinds of recommendations into legislation if you don't intend to enforce them, because ultimately, what is the point? Perhaps these things, again, should have been put forward and offered as recommendations where there could be voluntary compliance. It would be entirely appropriate for DIAND/INAC to set out as an objective that band councils should meet once a year, should have annual general meetings.

º (1610)

If this idea has merit and they can suggest that, that would ultimately garner support throughout the various communities, and eventually people would begin to adopt that as a practice. Again, learning from best practices is often how ideas are shared and spread.

When you look at the recommendations of the Royal Commission on Aboriginal Peoples, which we spent too little time addressing in this whole process.... In fact, many people have argued that the whole exercise of Bills C-7, C-6, and C-19 took us away from the energy and resources we could have applied to implementing the recommendations of the Royal Commission on Aboriginal Peoples. There was a whole section on governance, chapter 3. I think this should be the working document we begin with, along with implementing some of the recommendations made here. There was exhaustive consultation associated with the royal commission, meaningful consultation and exchange and even consensus building, as it moved toward recommendations that people could buy into and be proud of. It stands on everyone's bookshelf gathering dust, as people say, instead of gathering strength.

We don't see any of the recommendations of the Royal Commission on Aboriginal Peoples finding their way into what are the most significant amendments to the Indian Act in 50 years. Ironically, when we finally choose to make amendments affecting the Indian Act, instead of looking for inspiration to the most comprehensive and detailed review of the relationship between first nations and the government ever undertaken, we undertake what was a sham of a consultation process.

If they didn't like the recommendations of the royal commission, I suppose they had to find some reason not to implement them and to occupy themselves with some other task. We feel they were led to this task by the campaign of misinformation saying there is such rampant abuse in first nations communities in terms of transparency and accountability, the government is going to show Indians on reserve how it's supposed to be done. Run this shop like a business. It's the same sort of neo-conservative attitude that the right wing has brought to government. We have to run government like a business, etc. They're now trying to apply the same corporate practices to first nations, which is the ultimate example of a round peg in a square hole, because you're trying to impose governance mores that don't fit and that people neither want nor ask for and have pretty much announced they will reject and oppose at every step all the way down the line.

Making amendments to clause 6 is really an exercise in futility because clause 6 as it stands should be deleted and withdrawn. In fact, we argue that the entire bill should be deleted and withdrawn.

The provisions of subclauses 6(1) and (2) don't address the transparency issues that we say need to be addressed. The real issue of accountability and transparency, as I've said, is threefold. The transparency associated with the band and council and their obligations toward their membership are only one aspect of it. A larger accountability and transparency issue exists in terms of the relationship between the federal government and first nations.

If we want to talk about transparency, I'd like to have some transparency associated with third-party management, which I've raised before and will raise again. It ultimately is relevant in this case because the only enforceability sanctions that can be imposed by the minister are financial sanctions as a way to coerce first nations into cooperating with a bill and governance codes they oppose. The third-party management industry in this country is becoming the new Groupaction scandal. There are scandals there and stories that need to be told, which we should be dealing with here.

º (1615)

Another case has been brought to my attention involving $30,000 a month for financial activity that is less than for a corner grocery store. So some chartered accountant is billing a first nations community $30,000 a month, and even higher--we've heard $50,000 a month--for--

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

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

That was $60,00 for part time?

[English]

Mr. Pat Martin: Yes, one or two days a week....

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I think we must really delete clause 6 because there are so many defects in it that it should be completely rewritten. I see that Mr. Vellacott has good intentions with his amendment, but, although we denounce the prescription that there be one council meeting a year, we are four times as opposed to imposing four public meetings a year. It's not that we don't agree on public meetings and transparency. On the contrary, we are very much in agreement about transparency. Moreover, we should show a little more transparency in the federal government on certain questions than is being shown at the present time. The problem is in telling a nation how it should act.

I look at the wording of clause 6, where it refers to an administration of government code”. But what's left of the government? In fact, everything is decided for them in advance, and we start with the prejudiced view that the First Nations don't hold public meetings. However, all the representatives of the First Nations that testified before us said that the obligation to hold one public meeting a year was utterly pointless and a slap in the face. They don't want to be told by others what's good for them.

So an amendment that talks about four meetings instead of one hurts even more than the present wording because I wonder where we're headed. Why not 8, 20, 30, 40? The bidding is ultimately open; the bar is open, as they say. Make your best bids.

Clause 6 states that the administration of government code must be defined. But if it's a band government, if it's really a government, we must stop imposing our views on an entity that we consider to be a government. If something was imposed on the federal government from the outside, a way of doings things, a way of seeing things, a number of meetings, the agenda of the House of Commons, our committee's agenda, what would we say? We would tell those people to mind their own business, and rightly so. So why would it be more acceptable to the First Nations for us to state, in the body of this bill, that they are required to hold one public meeting a year? And Mr. Vellacott's amendment states that they must hold not just one, but that they are required to hold four a year.

As I said, in light of the briefs we received and the discussions we had with representatives of the Aboriginal communities of Canada, we realize that it is pointless to include a prescription that annoys the members of the First Nations in the extreme. We could delete it by rewording or simply deleting clause 6, because it is utterly pointless and offensive. That might result in a better situation regarding relations between the federal government and the First Nations.

I would just like to give you an example of what we heard during the tour and discussions that we had with the Aboriginal representatives concerning the annual meetings of the First Nations, and I will have a question for Mr. Johnson on this point.

The Six Nations of the Grand River first nation has a population of 22,000 members, 11,000 of whom live on the reserve. Do you know how many public meetings they hold? They hold 36 a year, 36 public meetings in which members take part. There are two general council meetings a month and one general meeting on the Six Nations' finances. So if you do the multiplication, three types of meetings per month and 12 months a year, that equals 36 public meetings a year. They told us that they held six public meetings last year on the governance bill alone. Not one, not four, six public meetings. Thus there are generally 36 meetings a year for finance and the band councils.

º (1620)

Mr. Johnson, I almost feel like asking you whether you investigated the matter before entering these kinds of provisions on the frequency of public meetings in the bill. Did you have a study proving that the First Nations generally did not hold public meetings, that they lacked transparency, as a result of which this was written into a bill such as this one, knowing full well it's a prescription, an obligation imposed on the First Nations? Do you have any studies that you could make public, that you could give us, stating that it's a real problem, that there are no public meetings and that some should be held in order to meet needs for transparency?

I would like you to tell me that because it troubles me to see this kind of wording, which leads us to believe that there are problems when there may not be. It causes pointless tension between the two communities.

[English]

Mr. Warren Johnson: The members of the committee will note this theme--and it probably won't be the last; in fact, in paragraph 7(a), it will come up again. There is an approach that runs through Bill C-7, which is drafted before you, to reference that there is a variety of types of meetings.

The notion would be that for each type of meeting with different constituents a council or a community may have, one would expect that at least once a year there would be such a meeting, but how many there actually were would then be a function of the community's own views.

That crosses a number of different sections of Bill C-7 as drafted. There are two references in the financial section, which the committee will come to as the next section in its deliberation. For example, you have the presentation of the annual budget, which implies a meeting or a communication of some sort. We've just dealt with subclause 6(1), on meetings of members of the band. We're now talking in subclause 6(2) of meetings of the council itself. There is in subclause 6(3) representation on law-making, and you have the process of consultations on the codes, the amendment process. So there's a variety of styles of meetings and communications of the community or chief and council here, and where specific meetings are referenced in Bill C-7, you have this notion of one meeting per year.

One of the sources of this concept was the Joint Ministerial Advisory Committee and its recommendations on this. There were members of that committee who were concerned that there were councils that had no public meetings, but they weren't specific in terms of analysing those.

We have in fact, as I referenced in our technical presentation to the committee at the outset of its discussions, a significant number of pilot projects running with first nations across the country now on their best practices, to help inform on the regulatory development and on the costing and implementation issues. Those were invited in the consultation process from first nations too.

So there was a variety of sources, but this notion of one meeting a year we did get more firmly from the Joint Ministerial Advisory Committee. It was just used in each of the sections where specific types of meetings are referenced in Bill C-7, to reference the notion that you would have at least one of them open to band members, open to residents, open to the public, as the case may be with each of the meetings, leaving it up to the first nation, then, to decide from there the frequency of those meetings, how many of them would be public or not, and so on.

º (1625)

[Translation]

Mr. Yvan Loubier: That means that you don't have an exhaustive study that would tell us that there is a percentage of Aboriginal communities that do not hold public meetings, as a result of which we would be required to demand that they hold at least one. That's what you're saying. You're saying that you know the man who saw the bear who saw the bear who saw the bear, but you don't have any studies as such. That troubles me because this clause causes terrible tension, and you're saying you don't know why you put it in. You don't have any evidence that there's a need to include precisely that.

The Chair: Thank you, Mr. Loubier.

[English]

Before I go to Mr. Hubbard, I'm told that the Constitution requires that Parliament meet at least once a year. There may be a precedent there for this article.

I was surprised that it was in the Constitution. I thought I would share that with you.

Mr. Hubbard.

Mr. Charles Hubbard: Thanks, Mr. Chair.

I'm trying to get a little bit of background on this in terms of other parts of the bill. We're getting arguments all over the floor on this. Mr. Martin talks about transparency. Mr. Loubier talks about 36 meetings a year by some first nations groups. The problem is that even though it meets once a year, it seems to meet for a long time. In fact, it usually goes from September until June. All those meetings are public.

I think the amendment has some merit, but I'm not sure about the “four”. Maybe our advisers could give us some indication in terms of other parts of the bill.

There are also the annual statements. They are publicized, but it doesn't say whether there's a meeting connected with them, the way I read it.

Paul, does it say somewhere else that they need to have more than one public meeting?

Mr. Paul Salembier: No, I don't believe that more than one public meeting is required anywhere else in the bill. You're right that paragraph 7(a) requires that the annual budget be presented each year. In theory, one would expect that would be presented at a meeting, but it could be presented in some other fashion.

Mr. Charles Hubbard: So from my own perspective, it would maybe be four times a year. I would hope and think that most first nations would have a good number of public meetings every year. I'm not sure about 36--the three per month Mr. Loubier referred to--but it certainly would have merit. But I am concerned because four seems to be quite a high number. Maybe two would be more significant.

Mr. Chair, if I made an amendment on that, would that have to go around all these times?

The Chair: You can make a subamendment.

Mr. Charles Hubbard: So I'd open up the floor to another 30 minutes of discussion just about two, zero, and four. We've gone from zero to one, which the bill says.

I would have to write that out for you too, Mr. Chair, wouldn't I?

The Chair: It's a short one, so I guess we could take it--

Mr. Charles Hubbard: Subject to the mover of the amendment, I move that--

The Chair: I must ask for unanimous consent to modify it to “two”. If everybody agrees, fine. It's a subamendment, so you don't need consent.

Mr. Charles Hubbard: Is there consent, Mr. Chair?

The Chair: Are you seeking it?

º (1630)

Mr. Charles Hubbard: Yes.

The Chair: Do I have permission from the mover and unanimous consent that we change “four” to “two”? I have it; therefore the amendment reads “two”.

Mr. Vellacott is next for closing remarks.

Mr. Maurice Vellacott: I really appreciate that gesture. Even with what Mr. Loubier has cited here, I believe with the bands in my part of the country there's a greater frequency by far than one. In fact, many of them meet on a far more frequent basis--36 times were cited in this case. I'm not sure if they're all in a position to do that, but we certainly have bands that meet on a greater frequency. I think it's a given, especially if the bands are more accustomed to a consensual decision-making model.

This must be a very minimal kind of a threshold, because on their own initiative they'll do it far more frequently. So I appreciate the gesture there.

The Chair: Thank you.

We'll move directly to the vote.

Mr. Charles Hubbard: Before it's put--

The Chair: A point of information?

Mr. Charles Hubbard: On a point of information, Mr. Vellacott also has in it the concept of residents as well as members.

The Chair: That has been covered.

Mr. Charles Hubbard: That's just being put, isn't it?

The Chair: We have only changed “four” to “two”. That's what we're voting on. You can seek unanimous consent before I call the question, with the permission of the mover.

We don't have unanimous consent. So we're voting on amendment CA-12, which reads “two” rather than “four”. Are we all clear?

(Amendment negatived)

The Chair: Amendment BQ-20 has been withdrawn. We are now on page 60, CA-13.

Mr. Vellacott.

Mr. Maurice Vellacott: This is “publicizing meetings, with a view to ensuring that every meeting is publicized for a reasonable amount of time before it is held”. I would think this is just a very basic thing here. It's just trying to make explicit what one would hope would be implied anyhow. It's the issue of giving reasonable advance notice for meetings that are held.

I think we all know about political parties, nomination meetings, and this kind of thing, the context where all of a sudden meetings are called the day before. There are all kinds of little tricks and shenanigans and things of that sort that can happen, and it's no particular tribute or credit to political parties when that is done. It's a shameful thing, actually, and I don't know that any of us speak very proudly about that aspect of what happens in political parties from time to time.

I think that to give people a reasonable amount of time in terms of the publication of a meeting is a given. If they're to be useful to members and residents, there needs to be adequate notice to those individuals such that they're able to order their schedules, order their calendar, if you will, to make a point of being there, so they're able to attend.

In order to know how the band council is operating, it's necessary to have open and public meetings. If you have even one or, as we were heading toward, two public meetings a year, it's as if a tree falls and nobody hears it; it's that kind of issue. For those meetings, if they're only a one-a-year kind of thing, we'd want there to be adequate notice for that. If the purpose of the bill is to bring transparency to band councils and band council decision-making, I would think it's a real requirement to have this amendment a part of it.

I would ask our witnesses here again, on this particular question, what is the thinking of not having any kind of a qualifier or notice like this? Do we not perceive there could be difficulty if there's not something of this kind of amendment here proposed? Do we not assume there could be issues, intentional or otherwise, where you might have a meeting coming on and nobody is briefed, nobody is there? It can even be used in a fairly manipulative manner.

º (1635)

Mr. Warren Johnson: In hindsight, I think it is probably correct that in the legislative drafting, as you referenced in your remarks, it was taken as a given that the whole purpose of discussing the idea of publicizing meetings was to provide reasonable notice. It was just left unsaid here, to be defined in the consultations on the standard; it would be in the default regulations set by first nations themselves.

Those timelines as they exist now and from previous consultations with first nations on this type of topic vary quite a bit depending on the topic and on those who really need the notification. If you're talking about notifying both on- and off-reserve members, more time is taken because you have to do mailouts off reserve, etc. For example, we have 79 days in the current Indian Act election regulations in terms of notice of election, and you have varying periods for different kinds of notices as they exist now. But especially in terms of off-reserve interest, you had to extend timelines to provide for the impact, for example, of the Corbiere decision.

So the short answer is, it was taken as implied in that, and this would make it explicit.

Mr. Maurice Vellacott: Right, and you'll notice here, in terms of the proffering of the amendment as well, it isn't getting specific as to how far in advance that has to be. I think first nations would show good judgment, and if it's a far-flung, spread-out situation, they would probably have to have more time and would exercise good judgment to that extent. If it's where they don't even have a tract of land, then of course there is the problem of getting the notices out.

That will vary around the country. It will vary in terms of the circumstances themselves. So this is why it's not explicit. It's specific in terms of the amendment, but it's just to basically say that this is a given. It's good governance and it's what we assume is being done anyhow, that first nations governments in their intent to serve their people well would be doing this. It's just putting it in there, writing it in, in a very clear manner as well.

I hope this merits support and that there is that judgment by members all around here that we could have this kind of thing specifically spelled out here. I think that would be the case among first nations, and including that here simply affirms that.

The Chair: Mr. Loubier.

[Translation]

Mr. Yvan Loubier: I get the impression we're going round in circles on clause 6. We always come to the same analyses and the same considerations. With amendments such as the last one and the one currently under study, I get the impression we're concerning ourselves with stewardship where it says, talking about council meetings:

publicizing meetings, with a view to ensuring that every meeting is publicized for a reasonable amount of time before it is held;

That implies that we're substituting ourselves for the band council government. On this point, clause 6 clearly states:

6.(1) An administration of government code must include rules respecting meetings of members of the band and, in particular, rules

and so on.

How can we impose rules of stewardship and speculate on what might be good or better for the First Nations, when we state in the bill that there is a band council government? How can we logically and intelligently say that a code must be developed for the band council government, but at the same time not confer powers on them? We're deciding in their stead on the frequency of their meetings and the manner in which they are publicized.

This is either an incredible technical defect or an inconsistency. Clause 6, like the others, moreover, is somewhat Kafkaesque. Amendments such as those introduced also contain biases that are not negligible in the sense that it is always suggested that there are problems within the First Nations.

We talk about governance, accountability and transparency; however, we give the impression to those who don't know what's going on with the Aboriginal nations and with respect to Bill C-7 that there are major problems related to governance, transparency, choice of public meetings to be held and related to the fact that the members of certain First Nations aren't informed sufficiently in advance so that they can attend council meetings, briefings or other meetings concerning band council management.

The bill, like the wording of its clauses, is tendentious. Unless there is significant evidence and studies have been conducted to support your recommendations, you cannot presume, in drafting a bill such as this, that problems exist.

I questioned Mr. Johnson earlier on what links my question to the amendment proposed by Mr. Vellacott. I still have the same question in mind.

First, if we feel the need to clarify the obligation to hold a public band council meeting once a year, is the situation so critical that we must require transparency? Second, if, like Mr. Vellacott, we feel the need to state that the public band council meetings must be publicized for a reasonable amount of time before they are held, is that because sound studies and investigations have proven that not only are there not enough of these public meetings, but that, in addition, people were informed so late that no members of the First Nations were attending those meetings.

The answer as given earlier made me think of the old saw about the man who spoke to the man who saw the bear who saw the bear. Lastly, Mr. Johnson told me that it appeared that he had spoken to someone and that he had been told that, in some cases, it might occur that... The guy who saw the bear who saw the bear...

º (1640)

Exactly the same answer could be given in English and in French. I believe the expression also exists in English.

I haven't often seen bills that were not based on sound studies. I still wonder why we're trying to tamper with the powers of the First Nations in this way, while saying that we're developing administration of government codes. What are they going to govern?

What will be left for them to govern if everything has been selected for them, if we decide in their stead and require them to operate in a particular way, whereas we're telling them they have governments? Governments of what, I wonder?

Is it merely the beauty of the language you have laid down on paper in order to respond, but only seemingly, to the various judgments rendered by the law courts? Is the idea here to give an air of modernity to a bill which in fact is an update of the unspeakable Indian Act?

I find it hard to understand certain things. For example, I was listening earlier to the debate on the frequency of public council meetings. The question was whether there should be one, two or, as Mr. Vellacott proposed, four a year. Then Mr. Hubbard introduced an amendment for there to be two a year. At this rate, we should put a few figures in a hat, draw one out and choose the frequency of public band council meetings in that way.

Why one? Why four? Why two? By what right do we dare, instead of the First Nations, make choices which are based on our experience and our traditions? How can we impose an operating method on them, while stating in the same clause that it concerns the band government? We've previously seen better semantics, phraseology and ideology. The consistency and soundness of this bill's wording leaves something to be desired.

I'm still asking myself the same question. In fact, I'm going to stop asking it and put it to Mr. Salembier or to Mr. Johnson again. I could also put it to any other official at the back who has an answer to give me other than that of the man who saw the bear who saw the bear who saw the bear.

In view of the fact that you state in your wording that the band councils have an obligation to hold one public meeting and that that meeting must be publicized for a reasonable amount of time, I would like to know whether you have studies informing you that there is no transparency—to put the matter crudely—and that people are informed at the last minute, as a result of which no one attends the band council meetings or other meetings? Representatives of the Six Nations told us earlier that other meetings, general and financial, were held.

So I ask the question: do such studies exist? If so, I want them submitted. Otherwise, I'm going to continue thinking that, in the context of this bill, people are talking through their hats.

º (1645)

[English]

Mr. Warren Johnson: I have three points in regard to that question.

Just to correct the record, I did not say we spoke to a few people. I said this notion was a formal reference from the Joint Ministerial Advisory Committee.

Second, the reason we see a number of these features referenced in the draft of Bill C-7 is twofold. As in the reports that were commissioned prior to the consultations and made public, which were referenced to the committee in our first presentation to them about a year and a half ago, we find the best practices in governance are in legislation, both domestically and internationally, at any level of government. That provided some guidance in terms of interpreting the results of the consultations.

The results of the consultations and specific references like the one being made here are not meant to imply or reference criticisms of first nations because they are or are not doing things; rather, it's that in the modern practice, the best practices from the surveys, we've found that in governance both domestically and internationally one does find the practices in legislation to provide some security to the individual as to how these things will work. This was exactly the response we got in consulting with first nations individuals across the country.

The message, again, as we referenced to the committee in our presentation--and some of the individual results and the overview of those consultations were published--is that individuals were looking for some security that those practices would be represented in the legislation being put forward so they would have some security they would be involved to a minimum level in terms of their communities' affairs, they would have the ability to hold their governments to account, and they would have an ability to seek redress.

So the specific aspects we see here are in response to that. What are the standard practices one sees in government enshrined in legislation both domestically and internationally that do that? They're not in any one of the individual components meant to be a critique of first nations in terms of their current practices.

The Chair: Thank you.

Merci, Monsieur Loubier.

Mr. Martin.

Mr. Pat Martin: I'm of the view that the language as it currently stands is quite clear in Bill C-7 regarding the publicized meetings, and it's unnecessary to add the language to ensure that every meeting is publicized for a reasonable amount of time before it is held. The very idea that there's reference to prescribing the manner of calling and publicizing meetings surely implies we're requiring that be outlined in an administration of government code to ensure that the meeting is publicized for a reasonable amount of time before it's held.

Again, notice of an event being held and access to that event for those who are entitled to attend is a basic tenet of natural justice. It's redundant to have to restate that when it's implied by the very fact that we're raising it.

I'm more concerned with subclause 6(2) as a whole, which gives the impression that there's an absence of these rules in first nations communities. The very fact that we have subclause 6(2) in such detail implies there's a great void out there in first nations communities, that they don't have any codes that include rules on meetings, the number of meetings that are held per year, and the keeping of records or minutes. It's offensive to imply that first nations don't do that already.

We have many examples of submissions that were made, where people brought their bylaws with them to show us the great detail in their laws. In fact, the bylaws and codes that are in place in many first nations communities are very sophisticated and tested. The language has been tested over the years and amended. It has evolved to the point where it works for that community. Whether it's in keeping with the standards as contemplated by the drafters of this bill or not is another story.

We should also be aware that whenever we add language to a piece of legislation, it has to be enforced. So when you get too narrow and prescriptive in your language, it's subject to someone filing a grievance, as it were, in the language I'm familiar with, or the government's obligation to enforce language in any kind of bill.

So I don't know how it can be demonstrated that if a meeting was publicized, it was not to ensure that a reasonable amount of time was given before it was held. We don't know the type of meeting being contemplated here. We don't know the importance. I agree that if a notice of an election were being circulated, it might require a certain number of days in advance. If it were a simple bylaw meeting to review the dog control bylaw on a first nations community it might require much less notice in advance. So “a reasonable amount of time” can mean many things to different people, based on the nature of the meeting.

I'm not in favour of adding language to this bill. Most of the amendments I support seek to delete clauses of the bill and get the government's nose out of the business of first nations running their own communities. It's offensive to me that we even need to have this debate on clause 6 and subclause 6(2). Because the previous amendment failed, it will still read that an administration of government code must include rules on meetings of the council of the band, and in particular rules requiring that a meeting open to members of the band be held at least once every calendar year, and prescribing the manner of publicizing meetings.

The very fact that we're imposing these rules instead of recommendations or suggestions smacks of the type of intrusion and paternalistic action that's been criticized so overwhelmingly by people like the Mennonite Central Committee Canada. This is an organization whose work all around the world I respect, and it criticizes specifically that Bill C-7 in clause 6 is highly prescriptive and intrusive. If there's one overriding concern we have with this clause of the bill, it is that it may directly or indirectly erode the status of aboriginal peoples as distinct nations in a special relationship with Canada.

º (1650)

There are other organizations, Mr. Chairman, that made specific reference to these clauses. Professor Brad Morse of the Faculty of Law at the University of Ottawa criticized this aspect of clause 6, specifically the codes. In his presentation he said that Bill C-7:

falls far short of the ideas generated by the predecessor to this committee in 1983, with the Penner report, and more recently with the federal inherent right policy in the final report of the Royal Commission on Aboriginal Peoples. The bill does not attempt to do all of that. Furthermore, Bill C-7 obviously does not reflect a consensus among first nations as to how they wish to see federal law evolve, if at all.

He goes on to say:

It would be argued no doubt by some before this committee that Bill C-7 does intrude upon section 35 rights such that the duty to consult that's been evolving through the courts has been violated.

These are presentations from people other than first nations that I'm choosing specifically, members of civil society who are commenting on this particular bill and specifically clause 6. Amending clause 6 in such a way as contemplated by the Canadian Alliance...I'm not sure that we should be even giving credibility to this section, given the number of organizations that came forward, first nations leadership, and, again, members of civil society.

The United Church of Canada recommended in a blanket way that the Bill C-7 legislation, process, and content be abandoned by the Government of Canada. That's the United Church of Canada; it's not exactly a radical organization, but a social justice organization that saw fit to come down and share their views on what's wrong with this bill. I'm going through these recommendations with the purpose of reminding the committee that it's not just aboriginal leadership across the country opposing the bill.

I was offended by an editorial in the Winnipeg Free Press that said that the only people who oppose this bill are the AFN club of chiefs. What a contemptuous way to view the legitimately elected leadership of first nations across the country, as if they're some club that's trying to look after their own interests as opposed to the interests of the people they represent. I objected then and I object now to that attitude of people who would have other people believe that the reason people oppose Bill C-7 is because of self-interest in some way. The reason they oppose it is self-interest on behalf of their children and grandchildren as they watch their constitutionally recognized rights being eroded and diminished and shrinking and reducing.

We note that the Bishop of Moosonee of the Anglican Church of Canada said:

Our position then is that Bill C-7 should be withdrawn and a better consultative process established. Discussions should be based on the report of the Royal Commission on Aboriginal Peoples and should start with clear acknowledgment of the Constitution Act, 1982....

That's the Anglican Church of Canada.

A former Minister of Indian Affairs, Warren Allmand, said Bill C-7 should be withdrawn and the government should approach first nations on a nation-to-nation, government-to-government basis dealing with the same issues that are contained in this bill, because, he said, if you pass this bill it's going to be declared unconstitutional.

º (1655)

That was the caution we received from the former Minister of Indian Affairs, who said that you can deal with these same issues, certainly, if they're priority issues in your mind or if after consultation you all decide these issues are such that we should move forward with them, but this bill in its current form should be withdrawn and the government should approach first nations on a nation-to-nation, government-to-government basis, dealing with the same issues if necessary.

The Chair: Thank you, Mr. Martin.

Mr. Hubbard.

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

It's rather disconcerting. Mr. Vellacott made an amendment, and why another member would spend time on Mr. Vellacott's amendment talking all over issues that really aren't connected with that amendment...I'm not sure just how we're proceeding here, Mr. Chair.

Subclause 6(2) says first of all that each first nation--and many or most of them have codes, but they will have a code. It says that the code will have certain parts to it, very minimal, and with this I would think most first nations are beyond what subclause 6(2).... For example, paragraph 6(2)(a) says that “a meeting open to members of the band be held at least once each calendar year”, and (b) says “prescribing the manner of calling and publicizing meetings”, which Mr. Vellacott has made an amendment to.

Paragraph 6(2)(c) is “subject to subsection (3), prescribing the manner of making decisions”. It's not somebody else; it's the first nations people developing a code to explain to their members how decisions are to be made, talking about the powers the council has, respecting and keeping records of the council's decisions, and saying that members will have access to those records.

I would assume that when we're dealing with an amendment, we should speak to the amendment and not be talking about something that is not even part of the amendment.

An hon. member: Hear, hear!

Mr. Charles Hubbard: If we're going to continue as we are, I think we're prepared to do that, Mr. Chair, but you know, you can talk and talk and talk, but we should talk in terms of the bill and what the bill offers to the first nations peoples.

I would think that to put on record, in terms of what Mr. Martin is saying, is really not...there are facts, but you can change the facts in a great number of different ways. One of the main facts we found in terms of the consultation program that was held across this country was that a great number of people would like to see good legislation that would enable first nations people to grow, to become vibrant parts of their society, and to be great parts of this great Canadian nation of ours.

I know Mr. Loubier doesn't believe in the great Canadian nation, but we do. Most people in the House believe in the great Canadian nation, and with it, Mr. Loubier--I know you try to stick with the article, but you don't.

» (1700)

The Chair: Mr. Hubbard, please speak through the chair.

Mr. Charles Hubbard: The problem I have, Mr. Vellacott, with your amendment--and I know it has merit--is putting in the word “every”--probably we should ask our advisers about this--saying “every meeting is publicized for a reasonable amount of time before it is held”. In many cases, in terms of governments, certain situations develop where meetings have to be held quite quickly. I'm not sure, Mr. Vellacott, in terms of your intent with that, but it would seem that attempting to have every meeting publicized for a reasonable amount of time would cause some complications for councils and chiefs to do the work that is required for their first nations peoples.

Paul or Warren, could you comment on that?

Mr. Paul Salembier: Yes, there's always a difficulty when you use a word like “reasonable” because it begs the question, to whom is it reasonable? Is it reasonable to the councillor who showed up at the meeting or reasonable to the councillor who wasn't able to make the meeting? Or do they mean reasonable to a judge who later is going to adjudicate as to whether that meeting was properly convened?

I think, basically agreeing with your point, it's uncertain what the scope of adding such words would be, and it might be something that would have to be determined only after litigation.

Mr. Charles Hubbard: The word “every” is also a little bit of a concern. I think that would cause some problems, would it not?

Mr. Paul Salembier: I think you might speculate that that would be the type of circumstance where a challenge might be made. Perhaps there was an urgent meeting that was called on fairly short notice, and a particular councillor who was not at the meeting or who might allege that he or she was unable to make it to the meeting because of the amount of notice could therefore then go to court to challenge the decision that was made at that meeting.

Mr. Charles Hubbard: That would be my problem with it.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Hubbard.

You may make your closing remarks, Mr. Vellacott.

Mr. Maurice Vellacott: In reference to what Mr. Hubbard mentioned a few moments ago, the whole point is that this is an administration-of-government code that must include rules, so you are leaving it up to the first nation to determine what is reasonable. It's not going to be left vague, I don't assume, but the standard of reasonableness is what's required here as they put the code in. It's not going to be left a vague, vacuous interpretation of reasonable, because they're going to decide that in the circumstances for these types of meetings it requires a one-day notice and so on. We decide that for our own committee here, x number of hours, x number of days, whatever. So this would not be the wording “reasonable”, but that's how they'd write the code. Therefore, it's kind of in their court to do it. It's not actually trying to impose on them and it's not being superprescriptive here. They have to come up with a decision, and whatever is judged to be reasonable among that first nations group, it's for them to take it from there.

I'm not sure you'd want to use the word “unreasonable”, though I can't think of a better word. We want to have the code such that they call and they put forward a reasonable amount of advance notice before a meeting is held.

Mr. Johnson, with respect to the last memo, this one again, you referred to the best practices study. Was that among first nations people, Mr. Johnson? Is that a best practices study that's going on right now in terms of first nations, or is it generally speaking?

» (1705)

Mr. Warren Johnson: I'm not sure which study you were referring to in the context of my remarks. There were two references. One was to the original survey study that was published in advance of the consultations on best practices in governance and how they were reflected in legislation domestically and internationally. That was a study by Kaufman, Thomas & Associates and has been on the website for some two years now.

Mr. Maurice Vellacott: That wasn't only first nations communities, though, was it?

Mr. Warren Johnson: No. That was all levels and forms of government.

The other reference was to the pilot projects that first nations are now conducting and putting forward on practices in these areas to guide their own code development and regulatory development later.

Mr. Maurice Vellacott: And I think I heard you say about those best practices studies, either or both of them, that generally it figures to have these common sense assumptions stated, not just left dangling or hanging there, but to have them stated in writing or in the legislation. Is that approximately what I heard you say?

Mr. Warren Johnson: Yes, but most of the features, sometimes in significantly more detail.... For example, if you're looking at much of the municipal legislation in Canada, you find significant detail that's much more prescriptive than what we're dealing with here. Other types of legislation and other forms are in more or less detail, but we find common elements throughout it. That is referenced in that study, many of the features that we see here, the need for preparation of an annual budget, its presentation to the community, the holding of meetings at least once a year, etc.

Mr. Maurice Vellacott: That's my point and why I would appeal to my colleagues around the table here. This is not just some charity or bingo club. This is first nations government, which involves health, education, and welfare, all of these crucial decisions that impact upon people. If we're assuming this anyhow, I don't know why we wouldn't want to spell it out.

I'll give you the example of a situation I ran into a few years back when some first nations friends and acquaintances were concerned about some things happening in their band. I'm kind of the outsider, but they came to me and said, “You should come to a meeting of ours as an observer. There's one planned in the near future, and it's at this particular reserve in Saskatchewan”--I won't mention the name--“about four hours drive from the city of Saskatoon. Why don't you just come out and observe and listen in and be a little bit of moral support for us? We're going to see if we can bring some things to account at this particular meeting.” So I headed out to the meeting. I get partway out there, and I get a call on my cell phone. I answered the phone, and it's these fine friends of mine, aboriginal first nations people. They say, “You're heading in the wrong direction because the meeting has been changed.” I said, “It has? You just found this out?” They said, “Yes.” The meeting was actually back in the city of Saskatoon. We were in a bit of a quandary because some of us who wanted to be at the meeting didn't have two nickels to rub together to get gas money to get into the city. The chief, a kind of rogue leader at that time, had now called the meeting for the city knowing that his own people, those who had the concerns about the issue, would not get back to the city because they didn't have the time and the finances. So it was a real problem, obviously. So I raced back into the city. Just a few of those who had concerns about the issue were able to make it in.

My heart went out to these people. I said, it is not fair that this kind of stuff is happening in a modern, civilized society. Why does this occur? I've come to the belief that sometimes we write laws not for--there's a biblical expression--the good but for the exceptions, those people who will try to take advantage of situations. This clearly reminded me of that.

I think most first nations leadership would say it's only common sense, it's only responsible leadership, that we give reasonable advance notice of x number of hours, x number of days, and so on. But there are going to be individuals who will take advantage of things, and it doesn't matter the colour of your skin, where you come in the world, whether it's a political party, or whatever. It was very upsetting to those people at that time on things that so directly impacted their own personal lives. It was just a little issue of giving reasonable notice.

I'm not even saying in this particular amendment what that has to be, because they're going to write it. It's just saying that in the code they have to give a reasonable amount of time, and it has to be published in advance. They set that. They decide it. It's not intruding, intervening, or imposing from above.

So I just plead with members around the different sides of the table to give some support to this. You may not have run into a situation like this. This is the one outstanding case, and I've heard about a few other instances of that.

I think there is support for this kind of amendment. As our witnesses have indicated, it's assumed. But in the case I just cited to you, the assumption wasn't good enough. The people got shafted big time. It's because there wasn't anything written in there, and we couldn't just go by assumptions. My heart bled for those people on that day. I said, this is not right. It's unjust for people to be treated in that manner, as they were by a rogue chief on that particular occasion.

That's the background, and that's why I'm proposing something that I figure to be fairly reasonable in the circumstances.

» (1710)

The Chair: A recorded vote has been requested for CA-13.

(Amendment negatived: nays 8; yeas 1)

The Chair: BQ-21 was withdrawn.

We go to CA-14. Mr. Vellacott.

Mr. Maurice Vellacott: Well, this one I hope sees the light of day. It's a fairly basic one. In order for business to be done, it prescribes that there be a respect for quorum rules, that an administration of government must include rules respecting meetings. The amendment is simply, and I quote:

prescribing that a quorum of the members of council must be present at a meeting of the council in order for the council to exercise its powers;

Again, I think it's one of those very basic things that you would hope in most circumstances would end up in place anyway. I think for the powers of a council to be exercised legitimately there must be a quorum of councillors present at all meetings, not just at the odd one. I think that's the way responsible government would work.

There have been instances, and, again, it's those exceptional ones, we trust, where a band council decision was challenged or contested on the grounds that the councillors did not act with a quorum. This was brought out by their own first nations people. It was people huddled off at a meeting. There wasn't an adequate number of the other councillors even there. Those councillors were fairly put out and offended that they went ahead and, I suppose, made crucial or important decisions, but they weren't even, as councillors, present or involved in the particular decision-making.

So in order to ensure that band council decisions reflect the will of the community, I think it makes fairly good sense that a quorum of councillors must be present in order to exercise its power.

I'm a little surprised that we don't have this in here in some way, and perhaps our witnesses could indicate again.... Perhaps it's an assumption that the first nations will in fact insert this kind of thing.

Is there some rationale for why we wouldn't accept putting this kind of an amendment in? Is it unnecessary? Is it frivolous? Is it redundant?

Mr. Paul Salembier: I think we would feel that it would be redundant, because if you look at paragraph 6(2)(c), it provides that a code must contain rules relating to the manner in which a council makes decisions and exercises its power. And if you look at paragraph 6(3)(b), it again requires that there be rules regarding the procedure for making band laws.

It would be a fair assumption to say that it was felt that in fulfilling those two requirements a band code would cover off things like quorum of a council.

I suppose the other comment--

» (1715)

Mr. Maurice Vellacott: Can I just interrupt, Paul?

You said that in paragraph 6(2)(c) which reads....

Mr. Paul Salembier: Yes, it says:

prescribing the manner of making decisions and exercising the council's powers

So a band administration of government code will include provisions such as that.

Then paragraph 6(3)(b)--

Mr. Maurice Vellacott: Right, I have that.

I'm sorry to interrupt you. Do you want to carry on, or were you finished there?

Mr. Paul Salembier: The only other comment I would make is that merely putting in a provision that requires a quorum be present doesn't have the effect of setting a minimum standard, because the quorum is undefined. It will still leave it up to the first nation to adopt a code in which they say a quorum is one. So you won't, in effect, set a minimum standard. I'm not suggesting that any code would in fact set such a quorum, but because it's not defined in the proposed amendment, it doesn't set a minimum standard.

Mr. Maurice Vellacott: The fine line I want to walk here is that I don't get so prescriptive such as it's spelled out. It's just a suggestion that this has to be a requirement that has to be covered off.

You're right. I don't think anybody would have a quorum of one. And that leaves it in their hands. If it's a consensual model, then they may have a very high quorum. It may require a very significant number, more than in western European models, if you will.

This is the writing of the code itself, including the rules. It's meant to be a helpful amendment. So that's why I don't in the last one and this time again get into the specifics of what that quorum would be, but rather there is direction or the suggestion from this framework that there be that.

I don't have anything additional to say except that I don't read as much into some of those particular paragraphs, with respect, Paul--paragraphs 6(2)(c) and 6(3)(b). Perhaps I'm rather unimaginative and I don't see, full-bodied, all of those things necessarily. I'm not assuming that one would include everything here, but I think there are some basics, and that's why I would suggest the one. I see the paragraphs you make reference to and I suppose in fact it could occur there. Not presuming that, I thought it in the nature of going that second mile, so to speak, that I would make sure it was noted here in the legislation itself, by way of amendment.

So I rest my case.

The Chair: Thank you, Mr. Vellacott.

Mr. Hubbard.

Mr. Charles Hubbard: Just very briefly, and before we debate this at length, I have some trouble with the word “quorum”. Although the intent is good and I would hope the code written by first nations would have something in it about quorum, in our own committee today we need nine members out of 16, I believe, in order to have quorum. In our House of Commons we need 20 out of more than 300 for quorum.

So I don't think putting quorum into the legislation would be very significant. It would simply put more writing into the bill, unless someone identified in that amendment what quorum was.

I don't know if the mover wants to continue debate on it and hope for some subamendment, or whatever, but it is probably a little too vague for us to debate.

The Chair: You have the floor, Mr. Hubbard.

Mr. Charles Hubbard: I'm suggesting to the mover that it's probably too vague. I'll leave it at that.

The Chair: I invite members to speak to the amendment. I discourage members from inviting subamendments. If you wish to make one, go for it.

Mr. Martin.

Mr. Pat Martin: I'd like to speak to the amendment as put forward by Mr. Vellacott. It compounds the idea of being prescriptive and even uses the language to prescribe that a quorum of members of council must be present at a meeting.

I agree with our advisers. What is a quorum? First of all, it's redundant, because I believe it would be dealt with adequately elsewhere, whether you approved or didn't approve of clause 6 as a whole. It's only common sense that a quorum will be contemplated or dealt with by whoever drafts the governance codes of the first nations community, and holding a meeting implies holding a meeting where there is quorum. Where there is no quorum, there is no meeting held. So it's a sort of redundancy issue, where we don't need to say certain things in the bill and we don't need to clog it up with unnecessary language.

Now a quorum doesn't necessary imply fairness anyway, if fairness is the goal and objective. The type of quorum cited in the ridiculous extreme would be a quorum of one, if that were agreed upon and put in place as one of the rules. It's just as ridiculous to have a quorum of nine on this committee when it can be all Liberal members and all government-side members, with no representation from the opposition. That's an unworkable and unrealistic idea of a quorum. There's certainly no element of fairness associated with the Liberal government's idea of what should constitute a quorum on this committee.

So quorum itself doesn't denote fairness. If it's fairness that we're trying to achieve, we should be dismantling this entire bill and shelving it, putting it to bed--even driving a stake through its heart so it doesn't resurface again, we hope.

We had presentations from the Algonquin Nations Secretariat, for instance, who argued that Bill C-7 should be withdrawn because it is too fatally flawed and the process by which it was developed is too contaminated for it to have any legitimacy or value. The overwhelming majority--in fact, 191 of the presenters who were opposed to this bill--had very strong things to say about how much they disagreed with the bill.

I'll quote from the national chief of the Assembly of First Nations. He said:

Let me state unequivocally that the Assembly of First Nations does not support Bill C-7 nor do we think that it can be fixed through amendments.The fact of the matter is that the process from the beginning was flawed and the so-called consultation process was a complete failure.

Frankly, that's all we should need to hear as a committee. That's the only evidence we should have needed to be sworn into Hansard at the presentations of the witnesses, because we don't need more information than that. The national leader of the very people this bill will affect has said they do not support Bill C-7. That should have been the end of the debate. It should have been the conclusion of our activities as a committee right then and there.

We heard--essentially from our partners, if this is supposed to be a nation-to-nation consultation--that one equal partner of that assembly or structure isn't in favour of it and doesn't believe it should even be amended, doesn't even believe we should be going through this painful and agonizing process of beating to death every line and every clause in this bill.

As painful as it is to go through the process, sit around this table and speak to every single line in the bill, it must be even more painful to have to sit there and listen, especially as an aboriginal person, as a first nations individual who will be affected by this legislation. It must be painful for them to have to sit and listen to this process, because none of their points of view are really being represented adequately, except from time to time when we quote from the actual presentations that were made before the committee. But certainly nothing in the content and nothing in the tone of the government side's interventions reflect in any way the goals, aspirations, hopes, wishes, and demands even of first nations people.

» (1720)

I sit here and go through these motions only as a mechanism, as a check and balance to the initiative of the government, but I in no way support subclause 6(2) or the bill itself. But even as I speak to the amendment put forward by Mr. Vellacott, I'm against the amendment, but that doesn't mean that I'm for the clause as it currently stands in the bill.

I don't want anyone to think for a moment that my speaking against Mr. Vellacott's legitimate point of view means that I prefer or that I do support subclause 6(2), because it's exactly what's wrong. It typifies, it exemplifies, what's wrong with this process right from day one when the bill was tabled, through the consultation process, where people didn't have any input as to what the bill would look like, and up to and including the time we're wasting here today as we plod through these dozens and dozens of amendments seeking to minimize the impact on the lives of first nations people.

Now, if we could say honestly around this table today that we will entertain amendments on the three or four key issues that were brought to our attention, I think you would find interest, in the opposition parties at least, to stop dealing with the trivial minutiae of these 180 or so amendments that are left.

I think you would find there's a real appetite to get down to the nitty-gritty of some of the really contentious clauses in this bill, because, frankly, not many of us have any interest in trying to restate the obvious, that the bill is fundamentally flawed.

Now, if we could get some assurance from the government side that they're willing to entertain meaningful amendments, I think that's where we should go at this point in time, as we get into our eighth or ninth hour of debate just on clause 6. If there are 57 clauses in this bill and we spend an entire working day on clause 6, we do a disservice to ourselves, we do a disservice to the staff here, and we do a disservice to the people who are patiently waiting for us to do something meaningful about this bill.

Therefore, I'd be interested in hearing what others have to say about the idea of moving forward with some meaningful amendments, not just what I view as trivia. We're getting so narrow in the prescriptive nature of what we're outlining in the bill that Mr. Loubier was joking with me. He said we should move an amendment so that we mandate that when first nations band councils have meetings, they should be required to have milk and cookies at the meeting. And I said, “Well, what kinds of cookies should we provide?” Well, maybe that should be outlined in detail in this bill too, that there should be chocolate chip cookies and peanut butter cookies so there's a selection. But then we'd have to also dictate the number that each person would be allowed and whether they would be allowed to have seconds. That's how ridiculous it's getting, as we get prescriptive and more prescriptive and more prescriptive about how we're going to interfere in the lives of first nations people and the way they conduct themselves. It's reaching the point of absurdity to spend a page and a half in this book outlining the fact that you have to serve adequate notice if you're going to have a meeting in your community.

We've been made aware that not only are we mandating that one meeting per calendar year be held...well, we just got a note passed to us that the Six Nations first nation have 36 meetings per year. I mean, everyone meets or exceeds the minutiae or the trivial details that we're dealing with here today or they wouldn't be band councillors or chief for very long in some of these communities.

» (1725)

The Chair: Mr. Martin, are you talking about quorum on this amendment?

Mr. Pat Martin: We're talking about the quorum of members, but the quorum of members is one of those minute details, one of those incidents that is so minute it's almost insulting that we should have to drag this blue-chip committee and the high-priced help here through a debate around something as obvious and self-evident that if you're going to have a meeting, you're going to have quorum at the meeting. It's not a meeting if you don't have quorum.

So we're wasting everybody's time, not the least of which is the many activists in first nations communities around the country who are watching these proceedings with some hope that we will be seized of issues of substance and not issues of trivia, trivial minutiae dealing with subclause 6(2).

The amendment is to amend paragraph (b), with a subparagraph of (b)(i) that will require not only the manner of calling a meeting and the publicizing of meetings but also quorum.

» (1730)

The Chair: Thank you, Mr. Martin.

Mr. Reed.

Mr. Julian Reed: Thank you, Mr. Chairman.

I'm afraid my honourable friend is double-crossing himself in this dissertation inasmuch as he has now gone on record as saying the bill is futile and that it should be shelved and done away with, and yet he continues to introduce amendments. I want to make it very clear to him that he can't have it both ways. If he wants to oppose the bill and say it's not salvageable, then he can do it in debate at second reading. He has now gone on record as saying that the bill is futile, but he still continues to bring in amendments. He obviously has lost all hope that there's any way of making this bill workable. He has gone on record as saying that.

So, Mr. Chairman, why doesn't he save his debate, which I'm sure would be meaningful debate, for second reading, which is where it should be? He can then say outright that the bill should be done away with. I just don't understand how you think you can have it both ways.

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier Mr. Chairman, I've taken note that you let Mr. Reed speak for nearly two minutes about something other than the amendment and that you did not call him to order.

On this amendment, I have the same criticisms as on the previous amendment introduced by Mr. Vellacott.

There is a double standard here. When it's us, we're interrupted by the Chairman, but, when it's you, you have all the freedom. In any case, we take note of it.

In fact, it's the same criticism as for the two previous amendments from Mr. Vellacott. It's the entire question of the irritation resulting from the obligation to do things. Once again, it is suggested that there might be problems in the Aboriginal communities, that, for example, there is not necessarily a quorum for the council to exercise its powers. It's as though it was being said that, after a specific study had been conducted on the subject, it was realized that many council meetings were held without a quorum.

Earlier, I requested evidence of this, and I was given a kind of intellectual disquisition on exemplary practices in international law. That's not what I want to know. When you talk about an obligation, such as having a quorum, for example, such as holding four public meetings a year or one public meeting a year, do you have evidence that that's not being done? Do you have evidence that there is a lack of transparency, that everything that follows from an exercise of democracy, such as a council meeting, is being done in an utterly anarchic and disorderly manner, so that there is a felt need to dictate, in a bill, ways of correcting the problems?

I find this a bit ludicrous. A moment ago, my colleague Mr. Martin referred to what I had told him about the coffee pot. But that's almost what we're doing. We're determining the stewardship of an Aboriginal government that we claim is a government. We're claiming that this is a first step toward self-government, whereas all we're doing in this bill is appointing the band government, but we're imposing all kinds of obligations on it, with somersaults and I don't know what, anecdotal remarks.

Based on anecdotes about someone who knows who did this and that, we want to transpose an anecdote in a general and utterly formal manner to a bill. If we had to introduce bills or amendments to a bill every time we had anecdotes, we would never see the end of it. It was the same thing a moment ago; we heard about some First Nations that had held band council meetings once every two or three years, without transparency. I'm sorry, but we obviously all know someone somewhere who did something. But it's not because we know someone or we know someone who saw someone who saw someone that we must be transpose to a bill an anecdote that has been told to us.

I must say that I am not pleased by this bill, far from it. But the amendment introduced is really based on thin air. I was listening to Mr. Vellacott's arguments. He knows of a band council meeting that was held in that manner. I may also know about a meeting of a board of directors, for example, that was not conducted according to the rules, despite the existence of formal rules regarding quorum and the public nature of that meeting. I too can name a few of those meetings.

But I know that, when board of directors meetings are held in business, for example, they generally proceed in accordance with the rules they have set and with the rules of transparency and also with rules concerning quorum. So why give people the impression that there's no transparency when band council meetings are held on various subjects, that decisions are made without there being a quorum and that that is general practice, and that those meetings and resulting decisions are not legitimate?

» (1740)

[English]

The Chair: We are now at ten minutes even, so I'll go to Mr. Vellacott.

Mr. Maurice Vellacott: If I'm the last speaker, again, I'll just simply point out that I'm attempting to walk that sensitive line of not being prescriptive over much in the way of detail here, giving a framework, a guideline, if you will. That's why, with respect to what Mr. Hubbard said, it doesn't go into specifics. If you want specifics in terms of quorum, that's to be written up in the code; that's for the first nations people in their good judgment to do. So again, we just appeal that this should be one among a number of other things--it obviously will--but a very crucial one, we suggest, probably one of the most important and the reason for this particular amendment or form of amendment here.

You can have other things, of course, in that part of the bill, this particular section, clause 6, with respect to prescribing the manner of making decisions, and so on, but I would think above all and probably most crucial and most important is that of a quorum. If you don't have a legitimate, valid kind of meeting occurring, then all the other is for naught anyhow. That's why we want to have this kind of an indication or suggestion that first nations people then will exercise good judgment and responsible leadership, I would imagine, in terms of what kinds of quorum are required in different situations.

So I leave that for your judgment, and again, I've said what I needed to say on it and I'd like a recorded vote.

The Chair: We'll go directly to the question and a recorded vote on amendment CA-14.

(Amendment negatived: nays 8; yeas 1)

The Chair: Thank you.

Mr. Martin, you made the suggestion that if we could agree about three issues, I think you said, or three clauses, we could probably save a lot of time. If you think this is possible, I'm prepared to suspend for a certain amount of time for you to initiate those negotiations. So I leave that with you, and if you find that there's merit to that, I would certainly be happy to save time; there's no doubt about that.

We will now go to amendment NDP-20, page 63.

Mr. Pat Martin: Maybe just prior to speaking to the next clause--

The Chair: Yes, you may want to do that before.

» (1745)

Mr. Pat Martin: Mr. Chair, I would ask for unanimous consent to suspend the meeting long enough to have a dialogue amongst the parties to see if there's an interest in identifying some issues or some priority clauses that we might want to address to expedite matters.

The Chair: Would you like us to suspend for...? An initial talk would be 20 minutes. I'm not suggesting that you can reach agreement in 20 minutes, but you may be able to identify if there's a possibility.

Mr. Pat Martin: That would be satisfactory, 20 minutes.

The Chair: Can I get consensus from the members?

We will suspend until 6:05 p.m.

» (1745)

¼ (1804)

The Chair: I don't have a quorum, but we can hear from you if you feel there is hope...or if you prefer, we'll wait for a quorum. But maybe it's something we can deal with without a quorum.

Mr. Pat Martin: Maybe it's fortunate there is no quorum because I was going to ask for a little more time, Mr. Chairman. We're getting some mixed messages as to what the impact would be of what we're going to propose regarding, for instance, the length of time of debate in the House when this gets reported back to the House. There are some mixed messages associated with that, so we didn't make as much progress in the 20 minutes as we had hoped. I wonder if there would be an interest in adjourning until tomorrow morning so that we can develop this idea and choose the three or four items that we might consider the most important to be able to negotiate some kind of a resolve.

¼ (1805)

The Chair: Mr. Godfrey, on that issue.

Mr. John Godfrey: Yes. I'm trying to understand, would the initial discussion be between the three representative opposition parties to figure out collectively what the big issues are? Is that how it would work? And you would then tell the rest of us what those issues are and we could take it from there? Is that the thought?

Mr. Pat Martin: That's the stage we're at now, yes.

Mr. John Godfrey: As long as there were the three of you in the same discussion, that would be very helpful, I would have thought.

The Chair: I suggest it would also be helpful if you can agree between the three of you that you have discussions with the minister's staff, the department, whomever you choose, but we don't want to go through a long process and find out from the other side that it's not going anywhere. There has to be hope of finding a solution.

Colleagues, do you agree? Do you want to do a couple more tonight?

Mr. Hubbard, do you have something to say about this?

Mr. Charles Hubbard: In this, Mr. Chair, I don't quite understand what's being said, because I would assume that the amendments that were placed before the committee were all made in good faith. It seems that Mr. Martin and Mr. Loubier have taken it upon themselves to maximize the timeframe that each amendment might have available for it. That is their position; that has been their strategy. But sitting on this side, I would be reluctant to simply say we'll withdraw all these amendments that we're putting in good faith. I think we have to deal with them individually. Maybe there are some that they would like to spend more time on than others, but we have a timetable to follow; we promised to have this back to the House this week.

The Chair: We didn't promise.

Mr. Charles Hubbard: Have we not a commitment to get this back? I thought it was our intent to have it back by Friday.

The Chair: It was our intent to have it back three weeks ago.

Mr. Charles Hubbard: Yes, but when we changed I think we had some--

The Chair: No. The motion to adjourn on the last Thursday we were here was that we adjourn until this morning at 9 and that we table it in the House when it's complete.

But, Mr. Hubbard, if you're saying you don't expect them to withdraw any of their amendments in exchange for allowing more time on three or four points, then let's cut the discussion; let's go to the amendments and keep on doing our work.

Mr. Charles Hubbard: Mr. Chair, I think we could somehow make an agreement that we wouldn't just talk on amendments simply for the sake of talking, which we've done a good part of the day.

The Chair: That would be part of the negotiation.

Mr. Charles Hubbard: Yes.

The Chair: That this won't be done by the committee as a whole, it will be done between representatives of parties--you're the parliamentary secretary and I would assume you would be involved. I have no interest in the committee debating the trade-offs of discussion, the time, and everything. I would expect that members in good faith could negotiate a package that could be presented to the committee and it could be decided very quickly whether we go that way or we come back to this.

But the discussion now is, should we suspend now and resume tomorrow, allowing time for the package to be created? The other side of that is it's only 6.

Mr. Charles Hubbard: I think, Mr. Chair, we would agree with that, providing we have a timeframe in which to come back to start or continue our deliberations.

The Chair: Well, we would have to come back tomorrow morning with a package.

¼ (1810)

Mr. Charles Hubbard: By a certain time?

The Chair: We have announced the meeting tomorrow for 9 o'clock. If you need for us to start at 10 o'clock and you're working on a presentation, then it's worth it. But if we're simply killing more time yet....

Okay, let's move on.

Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I believe my colleague Mr. Martin is in good faith when he says that he intends to provide you with a real operating proposal. At some point, we realize that you can talk about band council meetings once, twice, four times, 10 times. Ultimately, we can discuss those details for a very long time, but we are coming to a situation where we can't debate major aspects of this bill in a fundamental manner.

So we can go on, Mr. Hubbard. We did so in the case of the millennium scholarships, young offenders and so on. We did so and we could go on, but perhaps there's a way of taking all these amendments, grouping some together and introducing four or five major amendments per party. We'll see how we can negotiate amongst ourselves and take the debate back to the House of Commons for a full dress debate on the bill as a whole, perhaps in a slightly more effective manner, to enable us, and you as well, to do our work properly. We are in good faith and we could propose something to you here tomorrow morning.

[English]

The Chair: Correct me if I'm wrong. Am I hearing that we would create a package that would be to combine them and send them to the House to be dealt with? We have to do our clause-by-clause A to Z, that's for sure.

So I'd like you, Monsieur Loubier, to clear that up, because you did mention sending four or five--it started at three, then it was three or four, and now it's four or five--to the House. Well, I'd like to know. I would not accept that they would be sent to the House. I want us to deal with every clause. That's our job.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, we were toying with the idea and that's why we request an adjournment until tomorrow morning. We're toying with the idea of being able to take three or four major amendments concerning the bill, making a proposal to you, and, after that, for the clause-by-clause consideration, we could proceed with the vote. I'm not saying we wouldn't do our work in this regard, but the debate would serve the public much better if it were taken to the House of Commons and if we agreed on a way to proceed.

Of course, as Mr. Hubbard said, we can continue on as we started. That's no problem for me. We have energy; we've just come back after a two-week holiday.

[English]

The Chair: Mr. Vellacott.

Mr. Maurice Vellacott: It's kind of on this but it's moving off to the other. I suggest that either we're going to move in that direction or, if not, I think we probably could do another couple of motions. That's going to run another hour or so, given the averages so far, and then we should recess until tomorrow.

Either way, I think we--

The Chair: Either way, we should do a couple more.

Mr. Maurice Vellacott: Yes, wrapping up within the hour.

The Chair: That's a suggestion.

Mr. Godfrey.

Mr. John Godfrey: Well, I think if we have an opportunity here to pick out the big themes from all three parties, the work should begin immediately. If we spend an hour on a couple of clauses or a couple of amendments, as we have, that's an hour that these folks can't get together.

I think before the committee can meet again effectively, there really are two rounds. The first round is the three opposition members getting together to come up with their package, with their big items. The second round involves Mr. Hubbard and his team seeing whether they're in shooting distance of some kind of arrangement. If they are, they then report back to the whole committee. But I don't think we can negotiate the second round in committee of the whole. I don't think that's going to work. We need to know what the minister's bottom line is, frankly, and Mr. Hubbard and his associates are the only folks who can really strike deals.

Once that's happened, those two steps, we're in a position to do something. This means I doubt we could probably meet, unless Mr. Hubbard's going to meet at 9 a.m., and you folks are going to be done this evening. I think we have to be realistic in what we can expect if we're to go for some kind of deal.

The Chair: Before I go to Mr. Reed, once we've reached a deal, each clause comes back; each amendment that has been tabled, that has been produced, will be either withdrawn or dealt with. So the deal would have to say, we'll deal with some of them with no debate, because if the idea is to save time, we have to identify those. Each one of the clauses has to be voted on and we have to deal with the amendments first before sending it back to the House.

Mr. Reed.

¼ (1815)

Mr. Julian Reed: Mr. Chairman, I agree. Mr. Godfrey has articulated it much more succinctly than I could. To go ahead now for another hour with amendments that might or could find themselves in a grouping would really not be productive time, in my view.

The Chair: Okay.

This is to the parties. When will you meet if we suspend until tomorrow morning at 9 o'clock?

Mr. Martin.

Mr. Pat Martin: Well, my idea is that we would stay and meet now for a couple of hours or until 9 or 10 o'clock tonight, if need be, because it is a little complicated. The way I envision it is we would be withdrawing quite a few of our amendments, frankly, and then agreeing on a number of others to not debate at all, other than perhaps asking a question, as per normal practice of point of clarification or some such thing. Then we would agree on whatever number of amendments of great substance that we wish to really address thoroughly.

The Chair: You would want us to increase the time of debate for those three or four?

Mr. Pat Martin: Well, that's a possibility.

The Chair: Otherwise, what are you getting out of it?

Mr. Pat Martin: We would hope that we would agree that there was enough interest on both of those four or so items that they could succeed, obviously. That negotiation has to take place in the second round of negotiations, as Mr. Godfrey put it. We'd like to identify them now, prior to going home tonight, and we'd like to put that proposal to you at 9 o'clock tomorrow morning.

The Chair: Now, Mr. Martin, I would not want to leave the impression that the members of this committee are in a position to commit a vote.

Mr. Pat Martin: Of course not.

The Chair: Mr. Hubbard can't commit anyone else's vote.

Mr. Pat Martin: I agree.

The Chair: The Prime Minister cannot commit our votes, okay? As long as it is clear that after the debate on those principal clauses every member is free to vote their way--and that goes without saying.

Mr. Godfrey.

Mr. John Godfrey: In the same spirit as before, if these votes can be done more or less in a couple of hours, that means that at 9 o'clock tomorrow, Mr. Hubbard and the team are going to be in a position to talk for round two. I would then say if we give them a couple of hours, then the committee might reasonably expect to meet at 11 o'clock with, we hope, a deal. I don't think there's any point in this meeting at 9 o'clock since they have to have that discussion, and we don't know what the minister's bottom line is.

I'm telling you that you need to give yourself enough time.

Mr. Stan Dromisky: Yes. You can't do it unless you come here at 7 o'clock in the morning.

The Chair: I'm certainly prepared to go with this. I ask, as a courtesy to opposition members, that if we don't succeed, at least on a few of these amendments we get them by faster than we have been, to make up for the two hours tomorrow morning. Is that a fair commitment?

Some hon. members: Agreed.

The Chair: Based on what we've all heard, right now I would need a motion to suspend until 11 o'clock tomorrow morning.

Mr. Julian Reed: I so move.

(Motion agreed to)

The Chair: The meeting is adjourned until 11 o'clock tomorrow.