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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Thursday, May 1st, 2003

0800

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

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

The Chair

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

0840

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

0845

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

The Chair

Mr. Maurice Vellacott

0850

The Chair

Mr. Pat Martin

The Chair

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

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

0855

0900

The Chair

Mr. Yvan Loubier

0905

0910

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

0915

0920

The Chair

Mr. Yvan Loubier

Mr. Pat Martin

0925

0930

The Chair

Mr. Yvan Loubier

0935

0940

The Chair

Mr. Pat Martin

The Chair

0945

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

Mr. Warren Johnson

0950

Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development)

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

0955

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1000

1005

The Chair

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

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Andrew Beynon

1010

Mr. John Godfrey

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Warren Johnson

Mr. John Godfrey

The Chair

Mr. Yvan Loubier

1015

1020

The Chair

Mr. Pat Martin

1025

1030

Mr. Yvan Loubier

Mr. Pat Martin

The Chair

Mr. Pat Martin

1035

The Chair

Mr. Pat Martin

1045

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1050

1055

The Chair

Mr. Pat Martin

1100

1105

The Chair

1110

Mr. Charles Hubbard

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

The Chair

Mr. Yvan Loubier

1125

The Chair

1130

Mr. Pat Martin

The Chair

Mr. Pat Martin

1135

The Chair

1140

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1145

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1150

The Chair

Mr. Pat Martin

1155

1200

The Chair

1205

Mr. Yvan Loubier

1210

The Chair

1215

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

1220

The Chair

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

1225

1230

The Chair

Mr. Yvan Loubier

1235

1240

The Chair

Mr. Charles Hubbard

The Chair

1245

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 067

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 1st, 2003

[Recorded by Electronic Apparatus]

¾ (0800)

[English]

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): It being 8 o'clock, and not having a quorum, we will suspend for 15 minutes.

¾ (0802)

¾ (0835)

The Chair: Good morning, everyone. We're here on Bill C-7, an act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other acts. We are now on amendment CA-36.

Mr. Vellacott.

Oh, excuse me. Mr. Martin has a point of order.

Mr. Pat Martin (Winnipeg Centre, NDP): I'd just ask, Mr. Chair, if you could make sure that everyone who is here is actually here with full status as a substitute committee member.

The Chair: Mr. Vellacott.

(On clause 16--Laws for local purposes)

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Thank you, Mr. Chair. As we get into this, I think it's a very crucial subject area that needs to be dealt with. We're trying to provide some assistance in urging this forward. I know the issue of real matrimonial property has been studied for women and for men on reserve. I guess it more often affects women--at least, it can affect them fairly adversely if they have children. I know over the last number of years some joint consultative work has gone on. We've talked with quite a number of first nations women, and some of their official groups as well have indicated they have concerns about the area of real matrimonial property and the need for first nations to have consistent laws put forward--for their protection and the protection of their children and grandchildren.

I would think both genders, men and women, want to be fair in this issue. What we're proposing in clause 16 of Bill C-7 is to replace lines 26 to 29. It's actually not a deletion of any kind, if you follow carefully how it's segued in here. I notice the printing of the draft bill is very instructive. There's a whole blank section. I think the members across the way will note that, and I think Stan is aware of it. Dominique is as well, and so is Gérard. It's a little blank space that's very instructive in that it appears it's an invitation to fill it out. There is a lack--a bit of a hole there--that needs to be adequately addressed.

In view of that, we've taken the clue, an indication that this is something that could be moved on, possibly even as early as today.

Under this particular clause, the band has the permission and the encouragement to move on some of these areas, and many in fact may have done so already, from (a) all the way down to and inclusive of (o)--from (a) to (o)--where the council of a band may make laws in respect to health, residence, damage to property, activities in public places, local works, public utilities, zoning, nuisances, construction, residential tenancies, traffic, regulation of business activities, the keeping of wild and domestic animals, the observance of law and order, prohibition of the sale or exchange of liquids--mixtures capable of human consumption--the issuance of licences, and so on.

We have inserted, in this area, that there should be an addition in respect to “the breakdown of marriage on reserve, including common law relationships, and the division of marital property, that shall be consistent with the principles of the respective provincial laws”. To make it plain in lay language, as much for myself as for anybody listening, and for the support of the members across the way--hopefully they would be able to give their support on this very crucial one--it's for making laws in regard to the real matrimonial property so that there's fairness and justice when there's a breakdown of a marriage relationship, so that somebody's not out of shelter or a roof over their head.

We propose that bands can exercise powers in respect of the breakdown of a marriage on reserve, including common law relationships. Particularly we're talking about the division of marital property and about there being a consistency with the norms surrounding the principles of the respective provincial laws. I think it goes without saying that women need to be able to access the right to retain the matrimonial home, especially when they have children, or that there be some fair determination of that. I think this is a missed opportunity if we don't follow through sooner rather than later.

I would hope, if this doesn't pass today, that with real speed and haste--and not a shoddy kind of haste, because I know much work has been done--there will be a move to fill this very crucial gap, because it affects so directly and can affect so negatively if this area is not addressed or dealt with. I've had discussions--and I hope it's not as frequent as sometimes I'm led to believe--where first nations women have indicated to me that at the breakdown of a marriage or a relationship, they're out on the doorstep. They're moved out; they're gone from that situation. They're pretty hard-pressed to provide accommodation for themselves thereafter.

¾ (0840)

I think it would be a missed opportunity, and I think that all parties, not only the Canadian Alliance, would want to promote this and encourage aboriginal communities to develop proper matrimonial property codes.

As it stands now, interests in matrimonial real property are not always divided fairly, equitably, or in a timely fashion. Again, if it's a delay, that's not real justice, and sometimes this delay is far too long, many years, and sometimes never addressed.

I would give credit to other parties who would be thinking along the same lines, but I know we in the Canadian Alliance want to facilitate the establishment of a band-developed matrimonial property code to ensure the equal protection of both spouses. I inferred in my comments that more often it may affect first nations women adversely if there's not a proper disposition and division of matrimonial property, but it goes both ways and we want to cover both genders with respect to this.

I rest my case with that and plead, based on what I presented, that we would give serious consideration to this.

I ask Mr. Johnson if he would perhaps give us a quick background. I've only touched on or inferred, I guess, some of the work that's being done, and I'd ask what he would suggest, if not covered today, how would we best get at that very important issue in days ahead.

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

As you mentioned, this is a hugely important issue. It was one of the most significant issues raised by aboriginal women in the consultations on FNGA, along with the issue of their involvement and ability to seek redress generally, in terms of the affairs of their band governments.

On this point, it's a little broader than that, in the sense that we're really talking about issues of any kind of family dispute relating to this area, the issue being that the laws of general application generally apply on reserve, except with respect to land. Because family disputes are a subject matter of the provincial court system, we therefore have a constraint, in terms of the application of provincial laws, both with respect to marriage breakdown but equally, if not at least equally important, with respect to family violence.

Therefore, those aspects of court rulings that affect the real property on reserve, either the disposition of assets with respect to a marriage breakdown or the kinds of interim orders provincial courts often apply in terms of who will have occupation of the house in a family violence situation, the protection of the children, those kinds of issues, don't apply because they affect property on reserve.

This is a hugely significant issue, a very significant issue for the National Aboriginal Women's Association and other aboriginal women and other intervenors throughout this process.

On that basis, though, it is a significant and complicated issue affecting real property. It does begin to address fiduciary questions, because of the federal government's involvement and responsibilities with respect to that. Therefore, despite its importance--and I think the minister is on public record in a variety of fora on this--we hesitated, especially because it was recommended that there be detailed consultations on that issue because of its significance and complexity, despite the urgency that everybody felt in terms of dealing with that issue, that somehow that needed to be dealt with as soon as possible but may not be appropriate--and that's the issue for the committee--for inclusion in the First Nations Governance Act.

As I understand it, there are active discussions now going on in the Senate with respect to a special Senate study on this issue, as well as discussions and reference from the minister and the Senate on that. I'm afraid I'm not completely up to date on its specific disposition at the moment. They are talking about when and how quickly they can get at this issue, seeing that it's a matter of urgency as well.

There have been a number of studies and reports commissioned that have been made public in recent conferences on this and related issues--and I'm speaking since Christmas, very recently, in terms of catching up on this issue--to get more public dialogue and discussion on this issue within the first nations communities.

The only active area that is being moved on is within the context of those first nations implementing the First Nations Land Management Act--we discussed that issue last night--because that was a very significant issue for aboriginal women in intervening on the First Nations Land Management Act. It was also a key point in the discussions, I think, in both the House and the Senate, in terms of the First Nations Land Management Act. At least there, since the first nations were taking control of their own land functions and it therefore didn't involve the federal government directly because its fiduciary obligations have changed, they would begin moving on that immediately. That is happening under the Land Management Act.

¾ (0845)

The Chair: Thank you, Mr. Vellacott.

Mr. Hubbard.

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

I think Mr. Johnson raised the main points I would make. I know it's of significant importance, but I'm not sure we can deal with it here.

Secondly, I'm not sure it's in the proper grouping. We're talking about construction; we're talking about keeping wild and domestic animals, and traffic, and business activities. I think dealing with the concept of matrimonial property is certainly not part of this clause 16.

Thank you, Mr. Chair.

The Chair: Anyone else? Mr. Vellacott, do you have closing remarks?

Mr. Maurice Vellacott: It's in respect of the making of laws--law-making powers--so I'm not exactly sure what other area you would suggest. But if Mr. Hubbard had a friendly amendment to insert it in a more appropriate place in the bill, I'm of course most open to that. Charlie might want to give some thought to that in the few moments I have here.

The other question, picking up on your remarks at the very end, Mr. Johnson--I'm trying to recall where I was going to on this one--is the issue of violence, as you said, on the breakdown of marital situations as well. If I understood you correctly, that's an area equally of concern, where I guess what you're implying is that injunctions, restraining orders--those kinds of things--cannot be exercised in a reserve situation, which is somewhat troubling as well.

I would hope that, if not today, then certainly with great dispatch, we would get at and address this particular area. We can do much talking and much study, and you know the process around here is sometimes quite long. Careful deliberation is part of the reason, but also sometimes there are other things that get in the way. Meanwhile we have devastation of peoples' lives--families, women, men--throughout our country on first nations reserves.

That's what distresses me a great deal and why we would propose that with great speed we need to get at this issue. Lives are being wasted and devastated and great harm being caused because of a lack of ability to address this issue. And it does, admittedly, revolve around this issue of the common, shared land.

I'm wondering if Mr. Johnson would comment on the fact of the blank space. I notice it's just about the appropriate amount of space for the insertion of my little amendment here. Would you find that at all instructive? I'm not sure if you're prepared to comment on the fact that there's this white space in here--the exact amount of space that would fit for my clause. Does that hint to me at anything?

The Chair: Mr. Vellacott, I'll just make a small precision. If there's a space there it's because in French it's longer; that's why you have a space there.

Mr. Maurice Vellacott: In French it's longer? Oh my, oh my!

Mr. Warren Johnson: That would have been my answer as well, Mr. Chairman.

The Chair: It would not have been mine, but with the good coaching I'm getting, it was.

Mr. Maurice Vellacott: Well, thank you very much, Mr. Chair. That was enlightening.

On the surface of it, we'll accept that as an answer, but I just have the sense that there were greater powers at work here allowing me the opportunity and a segue into the bill by way of some very crucial stuff.

I'll let it go to a vote, with the appeal that we need to get at this issue, if not addressing it today, then in a greater, more complex way, and with clarity. At the end of the day it's not about taking yours and yours, and taking time, and having no end of Senate studies and no end of drafts and academic studies; it's about getting something on paper in a way that may not be clean and may not be perfect, but that attempts to seriously and honestly address the needs that have been brought and indicated to us so clearly by first nations women.

They have made this abundantly plain. It's not at all a partisan issue. I think we would all agree to that: the Liberal party, the Bloc, the NDP, the Canadian Alliance, the PCs. This is an issue well above the fray and well above partisan issues. This is the lives of people at stake. First nations women have been abundantly plain, and I would think men would share the view as well, in wanting to be fair in addressing this issue--for the sake of families, for the sake of children, for the sake of all concerned--when we have the very sad situation of the breakdown of a marriage: how to deal with things in terms of reconciling and resolving, at least in the manner that's possible, to the end that people have their needs dealt with.

That would be the intent of my heart and my spirit and certainly of our Canadian Alliance Party, and I think it would be true of other parties as well. So I rest my case with that and would appeal to members to give serious consideration to the clause before us.

¾ (0850)

The Chair: Thank you, Mr. Vellacott.

Mr. Martin, on a point of order.

Mr. Pat Martin: I have a point of order, Mr. Chair.

Due to circumstances beyond my control, I missed my opportunity to make an intervention on this clause and I have a point I'd like to make. I'd like to ask for unanimous consent to allow some flexibility and allow me to have a brief intervention on this before it goes to a vote.

The Chair: Do I have unanimous consent?

Some hon. members: No.

Mr. Pat Martin: Thanks a million.

The Chair: We'll go directly to the vote.

[Translation]

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Mr. Chairman, I also have a point of order.

[English]

The Chair: Mr. Loubier, on a point of order.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, it's the same with me. Considering the issues raised by Mr. Vellacott…

The Chairman: What is your point of order?

Mr. Yvan Loubier: I would like to be given unanimous consent…

The Chairman: Oh, I understand; please proceed.

Mr. Yvan Loubier: I would like to ask my colleagues for unanimous consent to make a brief intervention on this issue. I found the arguments made by Mr. Vellacott in the second half of his intervention to be more convincing.

The Chair: Thank you.

[English]

Do we have unanimous consent?

Some hon. members: No.

The Chair: We'll go to a recorded vote on amendment CA-36, page 128.

(Amendment negatived: nays 7; yeas 2)

The Chair: We go to amendment NDP-35, page 129.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I was quite prepared to speak to the previous amendment, and I'm disappointed I didn't get a chance to, because I felt I had a contribution that I could have made that would have been helpful to all concerned. So I'm disappointed in the lack of flexibility shown or the lack of accommodation or unwillingness on the part of the government-side members to even entertain legitimate contributions that could have enhanced or expanded this particular bill.

This is a problem with the whole format here, Mr. Chairman. There's very little willingness to really develop good legislation here, because there's no exchange. This leads to the point I was making before. It's a breach of the fiduciary responsibilities and obligations that we have as members of Parliament to do everything possible to make this the best bill possible. And if that includes shutting down legitimate input and legitimate participation from opposition-side members, that in itself is not in keeping with our obligation to make this the best bill possible.

Now, the points that we could have been raising to make Mr. Vellacott's amendment suitable and meaningful would have been in keeping with what's happening in the Senate. Now what we've done is left our decision-making to the unelected chamber of the Senate, because that's who is dealing with this issue of property and the breakdown of marriage and real property and common-law relationships. It's the unelected Senate that has this issue.

We're charged with the responsibility of crafting Bill C-7, and it's been subcontracted. The minister went over to the Senate and offered them a stack of money to do an in-depth study on this very issue and to bring back results by June, so the Senate is doing our job at exactly the same time as we are, in parallel. They're meeting in a different room at the House of Commons at the same time we are, and we're the elected officials. What's wrong with that picture? The human rights committee of the Senate has been given funding to bring forward recommendations on the minister's behalf dealing with this very issue that Mr. Vellacott brought forward.

The human rights committee has further subcontracted this off to the aboriginal peoples committee, and it's going to take them until March 2004 to bring resolution forward on this particular issue. So it's unlikely it's even going to be within the confines of Bill C-7 or the new First Nations Governance Act.

So if we are trying to achieve some satisfaction on this issue, we just missed our opportunity, frankly, because I did have a contribution to make that I believe could have modified, by subamendment, the issue Mr. Vellacott brought forward that would have been acceptable to people here. And we would have then been in control of crafting amendments to Bill C-7 instead of the other chamber having this duty. No one elected them to deal with matters pertaining to the First Nations Governance Act.

So I'm disappointed, and I suppose that sets the tone for the day. If there was any optimism that there could be some level of cooperation, I suppose we're off to a bad start again.

I don't know what the parliamentary secretary means that we rely on evidence. We rely on input from all sources. And Mr. Vellacott makes a legitimate point that we did get submissions made to the committee over and over again on this very issue. So it's irresponsible of this committee to invite witnesses to make submissions, hear those submissions, and then ignore what we were told, or not give it the time necessary to deal with it properly and farm it off to the unelected Senate, contract it out across the hall to another group of individuals who frankly don't have the same authority because they're not elected to do this job. We are.

The timeframe worries me. If the minister felt there was an urgent rush on this, why didn't he ask the committee to spend special time and attention? He couldn't really, because the government side moved time allocation on the amount of time that we can deal with any issue on this committee. This issue deserves and warrants special attention and full consideration, and now we've moved off it again.

¾ (0855)

Still in clause 16, the NDP has an amendment we would like to move as well, amendment NDP-35. And this again speaks to the fact that there's great apprehension in the aboriginal communities that Bill C-7 will in fact have the effect of abrogating or derogating from existing aboriginal and treaty rights.

It was on their behalf and to address those concerns that the NDP and the Bloc, and I believe the Alliance as well, have been fighting vigorously for a reference to language that would shield or at least give direction to some future judge or arbitrator in terms of interpreting this bill so that nothing in the bill should abrogate or derogate from any existing aboriginal or treaty rights.

Mr. Chairman, we have reason to be concerned when a non-derogation clause is consciously and deliberately left out of this bill when it comes before this committee.

We were fully aware that the original draft of this bill had a non-derogation clause, and then it was sent to the Department of Justice for their perusal and review. A red flag went up and the justice department cautioned the drafters of this bill and said, this bill is a minefield; it's loaded with potential challenges.

It is our information that the Department of Justice cautioned that this bill does in fact infringe and does derogate, abrogate, etc., from...it attacks aboriginal and treaty rights.

In cautioning them, they say, if you have this language in here and the things you want to achieve, you're going to have to do one or the other, either change the offending clauses or get rid of the non-derogation clause. And it looks like the government is choosing to do the latter.

In the final incarnation of the bill that arrived before this committee, the non-derogation clause had vanished. Believe me, people aren't dumb. The people who read this bill noticed that immediately and started putting in reference to non-derogation at every opportunity. In the “Purposes” clause under clause 3, and at virtually every relevant clause in the bill, we wanted some reference that this clause should never be interpreted in such as way, or this language should never abrogate or derogate from existing aboriginal treaty rights.

So it must be frustrating for those who have come hundreds and thousands of miles, in some cases, to make presentations and to make that argument to caution. And I notice there's a pattern and a trend. Some people are second-generation activists who have been lobbying this committee to do something about the fairness of the Indian Act. I noted last night that we had people in the audience who were fighting the fight in 1968 and 1969 against the white paper. Those same people were back here again in 1982 when they were trying to make sure the repatriation of the Constitution included and dealt with the fact that the fiduciary responsibility of the Crown now had to be transferred into this new patriated document, if the Constitution was to be repatriated in Canada. And that struggle was a huge, rancorous debate.

We have veterans of that struggle here too. In fact, we have relatives in the audience today whose history goes back in terms of coming here in 1947.

I'd like to make reference to and pay tribute to Sergeant Tommy Prince. He was the most decorated war veteran in Canada, and he also happened to be an aboriginal man from Manitoba. In fact, there was an interesting story that we've only recently purchased back his decorations and his medals to repatriate them to Canada. They were sold to a collector out of the country. There was a movement in Winnipeg, led by Jim Bear, the former head of the Aboriginal Council of Winnipeg, who was with us today in fact, to lead the campaign to get these medals back into Canada so they could be shown and treated with the respect they deserve in memory of Tommy Prince.

In 1947 Sergeant Tommy Prince came to this--

¿ (0900)

The Chair: Thank you, Mr. Martin.

Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Like my colleague, Mr. Martin, I would have liked to discuss Mr. Vellacott's motion. In future, Mr. Chairman, I would like you to clearly ask Committee members if they have any further comments, and please try not to mumble. I even asked the interpreter, but the interpreter did not hear you ask whether there were any other comments, before Mr. Vellacott made his intervention. So, I was caught unprepared.

I would have liked to comment on Mr. Vellacott's motion, even though I do not fully agree with all the wording he is proposing. However, Mr. Vellacott did raise the issue of non-discrimination against women in cases involving marital conflict, divorce or separation. That is a very important principle.

Mr. Johnson's comment made it even clearer just how important this issue is. There are also a number of other issues related to the status of women living on and off-reserve, and the status of women with non-Aboriginal spouses or the children of those unions who, in some cases, do not enjoy the rights of Status Indians.

When they appeared before the Committee, representatives of the Association des Femmes Autochtones du Québec (AFAQ) really focused on the problems on the reserves and off-reserve. They pointed to the need for changes to the Indian Act or the process for negotiating Indian self-government to include these considerations, given their tremendous importance for the future of the communities.

But where the wording talks about “the principles of the respective provincial laws“, that raises a problem. From one nation to the other, there may be differences. In certain cases, matriarchal regimes or other forms of organization and cultural thinking may prevail with respect to such unions. Providing for consistency with provincial laws may run completely counter to Aboriginal ways of doing things or the future we say we are seeking for them—in other words, one based on Aboriginal self-government. Here we are talking about the ability of Aboriginal nations to make laws in such areas as family policy, for example.

However, there may be a way—and if I had had an opportunity to put the question to Mr. Johnson, I would have asked this—to refer to harmonization, if the legislation was developed by Aboriginal nations as well as by provincial and federal authorities responsible for family policy, separation of property, and so on. I believe this issue is increasingly becoming important. Every time there have been serious consultations on the future of Aboriginal nations, as part of the Erasmus-Dussault Commission, for example, this concern has been raised. Aboriginal women are increasingly well organized and want this to be resolved.

From a practical standpoint, there is no place in Bill C-7—and Mr. Johnson was right to point this out—where this kind of consideration can be included, for the simple reason that the Bill itself is not worth the paper it's written on.

There is all this talk about introducing a new way of doing things and encouraging Aboriginal nations to reorganize themselves based on their culture, their system and the way they lived in the past, before the Europeans arrived and destroyed everything. But that necessarily means treating the matter of family policy as something fundamental.

¿ (0905)

Our nation has evolved over the years. And we developed codes and charters that served us well at times. I say “at times“ because without the notwithstanding clause, in some cases, collective rights would have been violated. Generally, these charters serve us quite well.

Aboriginal nations have a right to develop similar charters, enjoy similar rights and adopt the same kinds of measures to put an end to discrimination based on gender or marital status, and to determine the status of children born of mixed or other unions. But I think we need to be careful about saying that this sort of arrangement should be consistent with provincial laws. I think this is a far more complex matter, and the solution must come from the Aboriginal nations themselves, who are the only ones who can really know what they are all about and how they can resolve this kind of problem.

It seems to me that Aboriginal women's groups have made sufficient representations, particularly over the last 15 years, for it now to be possible to deal with questions of discrimination in a real Bill or in real negotiations on self-government.

Yesterday, Mr. Comartin, Mr. Martin's colleague, talked about the importance of referring to the Charter of Rights and Freedoms. I agree with that, and I would add that not only is it important that a real Bill—and by that I obviously mean a Bill that would take its inspiration from the Erasmus-Dussault report—refer to the Canadian Charter of Rights and Freedoms, but it should also refer to the Aboriginal Charter of Rights and Freedoms and ensure that there is the greatest possible consistency between the two charters.

I became aware of that last year when I reviewed the draft agreement with the Innu Nation in Quebec. Every time there is a reference to self-government or the inherent right of self-government of the Innu Nation, the agreement states that representatives of the Innu Nation will try to ensure the greatest possible consistency between their own laws and regulations and provincial or federal laws and regulations, or will try to develop a charter of their own, given their particular status, again trying as much as possible to avoid too many conflicts between the Canadian Charter of Rights and Freedoms, for example, the Quebec Charter of Human Rights and Freedoms, and the Aboriginal Charter.

The intent there was to try and achieve a certain harmony between neighbours, while at the same time respecting the autonomy of each of the different entities.

I want to come back to the motion I did not have a chance to discuss, because I was denied the opportunity to do so. It would have been a good idea to include this kind of consideration and pass it as a sub-amendment. We may have a chance to do that later; I don't really know because it's difficult to predict what the Liberals are going to do. But we could have adopted a sub-amendment that would basically have read as follows : That all matters of gender-based discrimination, relating to the division of marital property or such other fundamental matters as the status of Aboriginal women and children of mixed unions, benefit from special treatment, consistent with Aboriginal arrangements, as presented by the Aboriginal nations, and the Charter of Rights and Freedoms that may be developed by an independent government representing Aboriginal nations.

I would also point out that we only recognize the inherent right of self-government in the preamble of the Bill. We could have made that distinction, rather than trying to make the Aboriginal people fit into the mold of a provincial or federal policy on the family. We could have adopted a more nuanced approach. If we respect the principle of Aboriginal self-government and recognize that Aboriginal nations have different Aboriginal and matriarchal regimes, regimes that a number of Aboriginal communities are trying to rebuild, we need to be a little more nuanced in the way we approach the idea of consistency between such regimes and provincial or federal laws.

I would have been more inclined to go with this kind of approach, but as Mr. Johnson so rightly stated—we have to give credit where credit is due—this Bill may not be the ideal framework for dealing with this kind of consideration.

¿ (0910)

The Chair: Thank you, Mr. Loubier.

[English]

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, we've heard a lot of talk, but not on the amendment. The honourable member complains about the chair, but I sense the significant problem is that the member doesn't look at the chair, toward the chair, or toward other members of the committee. His audience is not us to try to convince but rather someone beyond the committee. You speak to the public.

Mr. Chair, with all respect to the honourable member, instead of following the directions of the chair, he seems to want to take his.... I want to point out to him that if wants to see that the chair looks after the meetings, he should pay attention to the chair, not to other people in the room.

Thank you, Mr. Chair.

The Chair: It is a difficulty the chair has, I must admit, but we're moving forward.

Mr. Martin, closing remarks.

Mr. Pat Martin: Mr. Chairman, the amendment I put forward dealing with clause 16 is based on a larger principle. The language may seem simple and straightforward, but the larger principle is that clause 16 outlines that a band may make laws for local purposes, and it outlines what laws those shall be. It may make laws dealing with health; it may make laws dealing with the prevention of damage; it may make laws dealing with activities in public places.

The tone implies that this clause gives permission to bands and first nations, if you will, to make laws in these areas as if that permission doesn't already exist, as if that permission must be now transferred or delegated from the jurisdiction of the federal government to the jurisdiction of first nations. That implies that the right didn't exist before this clause made reference to it. It's the full box versus the empty box theory that their box of rights to do things is empty until we give those rights to them.

The principle at issue is that those rights exist already. It is recognized by our Constitution, their inherent rights to make rules, regulations, laws, and codes of governance before they're necessarily authorized by the federal government.

So the language we seek to add to this clause is...we have no particular objection to the list of areas that may be regulated and bylaws made by the band, but we want to make sure their rights to make bylaws are not limited to only those things found in this list. Therefore, I've added a clause that says the power of the band council to make laws does not limit any authority that may be vested with the band council “by virtue of the inherent right of self-government of an aboriginal people”. In other words, it's leaving the door open. It may be that other things will be added to this list or be part of the list of things that a band or council can, will, and may evolve about their own regulations and bylaws. This is the fundamental difference and the philosophical difference, I suppose, that we keep trying to draw attention to on the larger, macro scale.

I started to tell you a story about how this particular argument has been going on for as long as activists can remember. Reference was made to the fact that 56 years ago Sergeant Tommy Prince, Canada's most decorated war hero--aboriginal or non-aboriginal, the man who was most decorated in any arena of combat on behalf of Canada--came to Ottawa to make these very arguments to the standing committee of its time of Indian affairs in June of 1947. It was 56 years ago to a month. His argument then was to scrap the Indian Act and honour the treaties. In other words, stop tinkering with the Indian Act and get back to the process of nation-to-nation negotiations of implementing the details of the treaty process.

That's what we have to keep reminding this committee of, that we should be putting the energies of the federal government and the resources of the federal government to that noble pursuit, rather than antagonizing people with these amendments to the Indian Act.

I believe what motivated Sergeant Tommy Prince at the time is that he came home, Canada's most decorated war hero--treated as a human being with full status both in the field of combat and afterwards, by being, as I say, recognized with more medals and recognition of his service than any other soldier--to find out that he's not a person. He didn't have the right to vote; he didn't have the right to go into a beer parlour; he didn't have the right to hold property; he didn't have the right to hire a lawyer. In fact, a lawyer could be disciplined for acting on behalf of an Indian prior to the amendments made in 1951. A lawyer could lose his right to practise law for representing an Indian. This is unbelievable.

At that time--it's only 56 years ago.... In a way, far too much time has elapsed because the change and progress has been very slow.

¿ (0915)

But I cite that. These very themes I'm trying to harp on--and I know it bothers some that I'm repetitious about them--I don't think are resonating with the people here, what the fundamental objections are to this bill. It's not the nuances and details of individual lines or whether a paragraph is misplaced or whether it should have an extra sentence; it's the fundamental principle that we are operating in a way such that these rights don't exist, that these bands and councils don't have the right to do these things unless we give them specific permission to do so by this legislation. That is fundamentally false, and has been determined to be false, not only in the language in our Constitution but upheld over and over again in the Supreme Court of Canada.

I ask you to seriously consider this amendment. The first part of the amendment I suggested includes the non-derogation clause reference. I'm satisfied in fact that now that we have won our argument and had a non-derogation clause included elsewhere in the bill, paragraph (a) of our suggested amendment may be unnecessary. I'd be willing to consider a subamendment to that effect.

However, paragraph (b) of what I'm putting forward here as this amendment to clause 16 is critically important because it clearly states that even though there's a list of those areas in which a band council may make local laws or laws for local purposes, that list does not end with what's written on this page. In fact, the box is full of rights. These that are being acknowledged in this legislation are either necessary or not, but it does not limit any authority that may be vested in the band by virtue of the inherent right of self-government of aboriginal people.

If it's part of the purpose of this exercise to reinforce and to recognize the inherent right of self-government, that should be a consistent theme throughout this bill and should surface as we go into different categories of the bill.

We are entering a whole area under the “Powers of Band Councils”. We dealt with the legal capacity in clause 15. In clause 16 we deal with the law-making powers of the band. Well, I argue that those law-making powers don't start and finish with what's included in this clause. Those law-making powers are expansive and do in fact exist, subject to negotiation, I presume, subject to making sure they don't conflict with other areas of jurisdiction, but certainly band councils don't need the prescriptive language here to exercise those rights to law-making powers and to make those powers relevant to their local communities.

Affording the right is not the principle here. This is not the delegation of jurisdiction, as you would find when the federal government, for instance, transfers the jurisdiction over labour market training to a province. That is a legitimate transfer of jurisdictional authority from one level of government to another. That's not the case here. We're not transferring the jurisdiction of these law-making powers to bands and councils. Those jurisdictional authorities already exist. The government is the one that feels it necessary to formalize that arrangement under legislation, instead of simply recognizing the current practice. We believe it's an error to leave out reference to the inherent right of self-government.

Having said that, I'd ask members to seriously consider this amendment and consider supporting this amendment.

Thank you.

¿ (0920)

The Chair: Thank you, Mr. Martin.

Are you ready for the vote on NDP-35, page 129, a recorded vote?

(Amendment negatived: nays 7; yeas 2)

The Chair: NDP-36, page 130.

Mr. Martin.

Mr. Yvan Loubier: Another good amendment from the NDP.

Mr. Pat Martin: Thank you, Mr. Chair, and thank you, Mr. Loubier, for that vote of confidence. This is another amendment that we feel we are committed to and we feel strongly about.

Again, before we leave clause 16, before we move off debating what the law-making powers will be and what laws the band council may make for local purposes, applicable on the band's reserve, we feel strongly that clause 16 should be amended by deleting lines 30 to 34 on page 11--it's subclause 16(2)--which speaks to a very important point that was raised by one of the guests, who we have here today in fact again, that in the event of a conflict between a law made under this section and an act of Parliament or any regulations made under an act of Parliament, the act or the regulation shall prevail to the extent of the conflict.

It is again one of those clauses that fairly leaps off the page at any objective third party who's interested in fairness or who is monitoring the proceedings or the activity of this committee.

The current practice is that if any band bylaw or code that is developed runs into conflict with the Indian Act, the Indian Act in fact has primacy. But if it runs into conflict with any other statute of Parliament, the bylaw or the band council code of governance has primacy.

What this would now mean, frankly, seriously diminishes, seriously reduces the first nation's ability to pass meaningful legislation as it pertains to a first nations community. This, if nothing else, constitutes an infringement on the right to self-government, because what good--

[Applause]

Mr. Pat Martin: Mr. Chair, I was asked to address this clause specifically and to emphasize even more than our amendment perhaps would emphasize why this is so critically important. If we are going to recognize the inherent right to self-government, how can we then say you are allowed to govern yourselves, but if there's anything you do that runs in contrast in any way to any other law in the country, your law is null and void and the laws of the land shall have primacy?

Even in the Canadian Constitution there are details as to primacy when laws conflict. Those things are agreed upon, and on some things there is shared jurisdiction. But in this case it's a blanket statement. It doesn't even have the courtesy to say that in some cases the band rules will have primacy and in some cases federal law will have primacy. It's a blanket statement, a broad and sweeping limitation, and it diminishes, and in fact you can't argue that it doesn't derogate from the status quo. It makes things worse for first nations in terms of their freedom to determine their own codes of governance.

I'd be interested in hearing any arguments to the contrary, but I don't see how. If we are looking for examples where first nations are concerned where Bill C-7 does in fact infringe upon or even extinguish existing rights, this is one of them. The right to self-determination is being challenged here. The right to self-determination is being extinguished here, because you only have the right to self-determination as long as it's exactly in keeping with standards set by others, and those standards set by others are not even being set by elected bodies.

We have a Senate committee developing legislation on our behalf as it pertains to matrimonial property and so on, which is offensive to me, but that's not the point.

What jumps off the page to anybody reading this clause is that it presupposes the outcome of any challenge as well. We should always be reluctant or opposed to putting in place any legislation that limits the freedom of an arbitrator or a judge in future court proceedings or limits what the findings might be, never mind the fairness of the issue.

¿ (0925)

We haven't debated this thoroughly enough to be able to say, in all cases, whenever a conflict occurs between a law made under this section and an act of Parliament, the act of Parliament shall always prevail. That's predetermining the outcome of a hearing or a complaint that might come up to that effect, but it's not for us around this table to make that determination, especially when we've given it absolutely zero consideration. We haven't debated this issue, and I'm limited to 10 minutes to even make this case. This is a big, big issue, and not a single witness came forward either asking for this or even, frankly, raising this as a priority for first nations. We don't even understand fully why the government is pushing for this. You would have to ask, is this a problem serious enough to warrant what is clearly and obviously an infringement upon existing rights to self-government?

If we embrace and endorse the inherent right to self-government--and the minister has said so publicly recently, and the preamble of this very bill says publicly that we do--how can we put in place a clause that is so contradictory to the spirit of that statement that in the event of a conflict between a law made under this section and an act of Parliament or even any regulations made under an act of Parliament, the act or the regulations prevail to the extent of the conflict? It's simply offering, on one hand, a recognition of the inherent right to self-government and taking it away on the other hand before we're even halfway through the text of the document. Before we're even 16 clauses into a 57-clause document, we've already stripped away any hope of genuine self-determination and the genuine ability to the right to self-government.

So I would be interested in hearing what other members have to say about this and how we justify it, because that's the element that's lacking here. There has been no justification. If it is the intention of the government to diminish or infringe upon existing treaty rights or the right to self-government, then what's the justification? What's the rationale, other than that it's more convenient if everyone, including people on reserves, complies with not only the act of Parliament but even the regulations under the act of Parliament, those regulations that we in fact have no input in crafting nine times out of ten? The elected officials don't craft the regulations. It's rare that we even get any participation in the crafting of regulations. Yet we have this act giving more weight and more authority to regulations crafted by bureaucrats than to laws crafted by a sovereign, independent first nation. It's an insult.

I'd be insulted, certainly. I'm offended even though it doesn't affect me personally. I can't imagine what it would be like to be one of our guests here today and see language like this, that we, in our wisdom, are seeing fit to undermine the ability of a first nation to make meaningful laws. What does this say about recognizing traditions and customs and cultural traditions and mores? If they run afoul in any way of any act of Parliament or any regulation of an act of Parliament, boom, they're irrelevant; they're not part of the governance codes of that first nation then.

Mr. Chairman, I would ask that we give serious attention to this issue. I think it warrants more than the 10 minutes allocated to each speaker. We could easily spend the rest of the day on this one broad policy issue. It should have been the subject of lengthy analysis and debate before it ever found its way into this act.

Before the government even moved this act forward, if there was any meaningful attempt at consultation, then this particular clause could have been the subject of a great deal of discussion. In fact, if we were being honest, this should have been presented to first nations long before the crafting of this bill.

I don't understand how JMAC in fact could have dealt with this issue in any depth and still allowed it to proceed, glaring as it is. It's highlighted in my copy of the act, but it didn't need to be highlighted to jump off the page at anyone. It stands there in glaring contradiction to the preamble of this bill, to the purpose clause of this bill, and to everything we know about recognizing, acknowledging, and respecting the inherent right to self-government.

¿ (0930)

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I, too, am quite disturbed by sub-clause 16(2), which allows federal acts of Parliament to prevail over law-making powers that might be given to band councils. And I find this even more disturbing because when I look at the kind of areas where band councils would be empowered to legislate, and therefore to exercise their legislative powers, I see that in every single case, the areas set out in the Bill are municipal in nature. These are matters that, in our society, would normally be within the jurisdiction of a municipality, and I had not really seen it in that way when we talked about creating a third order of government. I saw the third order of Aboriginal government as being related, as with all nations, to the inherent right of self-government, and did not realize that we would actually be turning Aboriginal communities, the First Nations, into huge municipalities. That is not how I saw this initially.

But when I looked at the list of law-making powers that band councils would enjoy under this Bill, I referred back to the 1969 White Paper developed when the current Prime Minister was Minister of Indian Affairs, when an attempt was made to turn First Nation territories into municipalities that would have the same status as other municipalities. And here, in addition to that, we see that if the provisions of Aboriginal nations' legislation, in areas of municipal jurisdiction, are not designed correctly, according to what the federal government may think and to federal legislation which, depending on the federal government's mood, could change in such a way that Aboriginal laws would no longer be operational in municipal areas of responsibility, then, federal legislation will prevail.

It's very annoying to see this kind of thing, because this can only be viewed as a lack of good will on the part of the federal government to advance the cause of the Aboriginal nations, and particularly to apply what the courts have deemed over the last 30 years to be the vested rights of Aboriginal nations, including the right to govern themselves based on what they are and their own specific ambitions.

Personally, I have nothing against municipalities. I would not like people to think I have something against municipalities or against the people who administer municipalities. I, myself, worked as an economist for the Municipality of Montreal assessing public investments, and I certainly believe that the daily task of dealing with such problems as water systems, sewers, local structures associated with any good municipal government, low-cost housing or municipal by-laws relating to commerce, is a very noble task. But that is not what the Aboriginal nations want. They are not expecting to be given municipal powers; that is not what they are seeking. They are in fact seeking to exercise the powers of sovereign nations, nations with an inherent right of self-government.

So, in addition to “assigning“, quote unquote, certain powers—because in actual fact we are not assigning any powers to them since they already have the power of self-determination—so, in addition to drawing up lists of municipal activities that they will be allowed to manage and over which they will have law-making powers, the federal government—and you can always see it coming a mile off—says it's going to assign them these fantastic powers, which are in fact municipal powers, but that in the event of conflict between their laws and federal laws, of course, federal laws will prevail. Once again, the old oppressor-oppressed pattern of interaction is at play.

¿ (0935)

I simply cannot understand why my Liberal colleagues cannot arrive at some reasonable understanding of what the future of relations between the federal government and Aboriginal nations are all about. We are always hearing it said that the weight of history bears heavily on the government's decisions. But I am starting to wonder whether the weight of history is not also bearing heavily on federal Members of Parliament, and on the neurons of federal Members of Parliament, who cannot seem to think clearly about the plan they were presented with a year ago, or the representations they have been receiving over the past year with respect to Bill C-7. Is the weight of history bearing so heavily on them that they are now incapable of thinking, that they have only a blurred vision of things, because the brain also is responsible for regulating vision? Are they now so blinded by the weight of history that is indirectly putting pressure on their neurons and therefore obscuring reality, as we try to look towards the future—or are we simply dealing with a lack of good will here?

I have no doubt that we are all equally intelligent and that what we are seeing is really just a lack of good will with respect to real negotiations on the ability of the Aboriginal nations to exercise their inherent right of self-government. What we should be listing in this Bill are those matters we have agreed come under the responsibility of a third order of government, and the responsibilities it can expect to exercise . That third order of government should be able to make laws in areas of its own choice, because it is an Aboriginal government.

I agree with Mr. Martin's amendment because I see the wording of sub-clause 16(2), even though this amounts to a list of municipal powers, as perpetuating a kind of modern colonialism when we use language saying that federal or provincial legislation will prevail in the event of a conflict. This is the kind of language you might find in bipartite, tripartite or multilateral trade agreements, such as at the WTO, but it is inappropriate in a context where we are seeking to develop new relations between our nations and aboriginal nations. We can't say that if they make laws or take decisions that are inconsistent with ours that we are automatically right. That is colonialism, apartheid. There is no other name for it, and there has been no apartheid in South Africa for some years now. I think it's high time we got in step with new international democratic realities.

So, I will certainly be supporting the amendment moved by my honourable colleague and now, honourable brother, at least according to the tribute paid to us yesterday and that I suppose we still deserve and will continue to deserve right until the end. We have to win this battle. So, we will certainly be supporting your amendment, Mr. Martin. I see that you also have some other excellent amendments, which will really have a very positive impact.

But the problem here is the same one we have been facing right from the beginning, with all the amendments we have moved. They do make certain improvements and allow us to take away some of the more offensive language we see in this Bill, and particularly some of the provisions the federal government has put in this Bill that could be seen as provocative by the Aboriginal nations, but overall, that provocation is still a very prominent feature of this Bill and it amounts to a denial of the fact that Aboriginal nations have rights, including the fundamental right created by what we know as the Creator, which has never been taken away or removed, and which you as legislators have no right to change—namely, the inherent right of self-government. Nowhere is that right given concrete expression in this Bill.

So, I fully and enthusiastically support Mr. Martin's amendment, as I strive to save the honour of some who may not support it.

¿ (0940)

[English]

The Chair: Thank you, Mr. Loubier.

Does anyone else wish to comment?

I'm not seeing a signal from Mr. Martin. Do you want the floor, Mr. Martin?

Mr. Pat Martin: If I am allowed my wrap-up time, I--

The Chair: Yes, sir, but I'd like to get it clear. You need to indicate to me that you want to use it. I want to be fair with you, but I have to know the signals.

So, Mr. Martin.

¿ (0945)

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

I think you can always assume I do want to use it, in the absence of a.... Maybe it should be a reverse onus: I'll indicate if I don't want to use it.

The Chair: That's fine. I can work with that, but I don't want to have to assume. Do you want me to always give it back to you?

Mr. Pat Martin: I think we could leave it at that, Mr. Chair--

The Chair: Okay. It's difficult if I have to assume.

Mr. Pat Martin: --if you could always assume that I do want my opportunity to make closing comments.

The Chair: The floor is yours.

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

I'm disappointed that there aren't more who want to be involved in this debate. I think it's quite a legitimate debate, and it does raise questions. The motives of the government regarding this bill have come into question from a number of witnesses. People question what it really is the government is seeking to achieve by this bill. They're suspicious that it really has less to do with embracing and enhancing and recognizing aboriginal rights than it has to do with diminishing aboriginal rights.

This is one of those clauses we believe caught the attention of Justice when the bill was handed to them, and then probably was one of the clauses that made Justice suggest you had better take out the non-derogation clause if you're going to put in clauses like this, because you can't have both.

I know the current practice is that if a band and council makes a law for local purposes and there's an irreconcilable conflict between that law, made pursuant to the authority vested by this section or to existing rights, and an act of Parliament--the Indian Act currently--the Indian Act has primacy.

Bill C-7 expands that to say that if there's a conflict between any law developed by the band and council and any act of Parliament or any regulation of an act of Parliament, then that law or the regulations have primacy.

I'd like to ask our advisers, then, if they know anything about the history of how this issue developed, and perhaps some of the arguments made in terms of the motivation of the government, or what they were trying to achieve, if you're allowed to make any of that information public.

Mr. Warren Johnson: Yes, I think all of that information is already public, both in the minister's intervention and ours in answer to previous questions.

I'm not aware of any such discussions or analysis by the Department of Justice that indicated this was a minefield and/or an obvious infringement. Rather, as I think both the minister and my colleague, as a result of previous questions, had indicated, the difficulty was that during the period in which FNG was being considered for tabling in the House, there were a number of acts before the House and the Senate that had a non-derogation clause--there was a variety of different language--and there had arisen a significant issue of debate for parliamentarians on the appropriate language in the appropriate circumstances, to the extent that there was, and continues to be--and my colleague can comment further on this if necessary--an attempt to broadly study how this should be handled more generally.

For that reason, and that reason alone, instead of adding yet another topic to the debate by having the non-derogation clause here, it was thought better to start the process with the committee by tabling the bill prior to second reading without a non-derogation clause, in the hopes that this whole process would be informed in the very near future, given the number of acts now or in the recent past before the House and the Senate, or coming forward, where this same topic continues to recur.

There was an interest in attempting to get some broader understanding and consensus on what kind of language should be used and when.

If there's further comment on that, my colleague could provide it, I think.

¿ (0950)

Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development): The one comment I guess I would make is that these provisions, beginning with subclause 16(2), set out a relationship of laws in express terms. That's a change from the Indian Act, because the Indian Act in section 81, which deals with bylaw-making authorities, doesn't have an express clause setting out the relationship with federal acts or regulations. Courts have had to supply the rules in terms of that.

This makes express what is the relationship between band laws made under the act and federal acts and regulations. There's a different test for clause 17 and for clause 18.

Mr. Pat Martin: You're clear, Andrew. But it makes the relationship clear: band laws are at the bottom. It automatically assumes that if it goes to the courts, they're going to lose.

Mr. Andrew Beynon: In the case of subclause 16(2), that's correct; it provides for acts and regulations to prevail. Clauses 17 and 18 have a more restricted test.

But the issue has been raised of laws made pursuant to an inherent right of self-government. We would view that as being different from the statutory law-making powers that are here. It's a question here of making laws pursuant to the act, and then what the relationship is with federal acts and regulations. If a community wants to exercise what it considers to be an inherent right, how those laws and rules might relate to federal acts and regulations, I think most would argue it's not pursuant to this act; it's pursuant to the inherent right.

Again, that echoes the preamble, which draws a distinction between inherent right of self-government and this legislation.

Mr. Pat Martin: The problem is we're just having this dialogue now. I appreciate your trying to answer that as plainly as possible, and I think I understand most of it, but it only flags and raises the concern that we're not equipped as parliamentarians to really make a judgment on whether this is a good thing or a bad thing. We don't have enough experience or enough time to get experienced on this.

One thing that's been raised to me is that customs, traditions, and bylaws and laws, for instance, almost become one in the context of many first nations. What about when customs and traditions are the laws--for instance, about leadership selection--that may run afoul of some other provincial statute or act of Parliament, or, for instance, Elections Act rules, or now even, I suppose, things to be covered in this bill? It would be obvious then that the established customary practice that did become in fact the laws for leadership selection, if they weren't already negated by the leadership codes mandated by this, would be certainly undermined by subclause 16(2). The example I used before was the story where the men aren't allowed to vote. That kind of thing couldn't happen any more.

I'm not being very clear, because frankly I think we're all exhausted from the pace here, but I hope I'm being clear enough.

Mr. Andrew Beynon: Perhaps I could just offer the comment that I think you are right that many communities of course will try to infuse their approach to law-making with their customs and traditions, and that's entirely appropriate.

A question arises in respect of leadership selection where communities have a custom approach to it and a traditional approach to it: how will that wed with the leadership selection provisions of the legislation?

Mr. Pat Martin: And then, how will it run afoul possibly of other acts of Parliament and regulations?

Mr. Andrew Beynon: And how it would interact with acts of Parliament and regulations, including this one? But I think that's a separate question from subclauses 16(1) and 16(2), because 16(2) is setting up a relationship of laws that deals only with the law-making powers under 16(1), not law-making powers or rules in respect of custom and leadership selection.

Again, the issue of leadership selection would be under clause 5 of the bill, and there's a question of how that interacts with aboriginal or inherent rights--or treaty rights for that matter. But subclause 16(2) is only saying, here is the statutory rule for the relationship of laws in respect of these statutory law-making powers. Again, I would suggest, and I think most lawyers acting for first nations would argue, that inherent law-making authorities or aboriginal rights of self-government are separate from this statutory one and subject to their own rules of relationship with federal acts and regulations.

¿ (0955)

The Chair: Mr. Martin, thank you.

Now for the vote on NDP-36, page 130, recorded vote.

(Amendment negatived: nays 8; yeas 2)

The Chair: NDP-37, page 131, Mr. Martin.

Mr. Pat Martin: Mr. Chair, can I suggest we...? No, never mind.

The Chair: Then I guess you can't.

Mr. Pat Martin: I know what happens when I do that.

Mr. Chair, I will confess to being really tired. I don't know about you, but I didn't sleep very well last night. When we work until midnight and get a few hours' sleep and are back here doing the same thing at 8 o'clock the next morning, I don't think we're doing justice to any of these issues, to tell you the truth. I'm bone tired and bordering on grumpy too. I'll caution you there as well.

The Chair: And, Mr. Martin, we're not even halfway.

Mr. Pat Martin: Our interest in amending subclause 16(2) of the bill is for some of the reasons I outlined before. Subclause 16(2), I suggest, requires that we adopt language.... If we are going to make reference to what bill or what regulation or band council law has primacy, then I think we should be paying deference to some of the submissions that were made. We did have good detailed analysis of this particular clause by some of the presenters who came before the committee.

I note that at certain points this issue came up frequently and it came up right from the very beginning. One of the very first meetings I attended was in Nanaimo, when the B.C. regional vice-chief of the Assembly of First Nations drew our attention to their views regarding clause 16.

There was a great deal of comment, specifically in what categories a council or band may make laws for local purposes, and comment was made on the whole idea that the philosophical tone of this, that a band may make laws for local purposes in the following areas, implies that they didn't already have the right to make those laws until that right was afforded to them by virtue of this clause, or by virtue of this bill. I argue this is contradictory to the principle and to the purposes clause and to the preamble of this bill, and even to what first nations were led to believe would be the results of entering into this whole exercise.

In the first observations that were made in the presentations we heard, people found it offensive to imply that the box of the right to self-determination is empty until it's filled by the goodwill and benevolence of the government to fill that box with specific rights, and that no other rights necessarily exist until such time as they're afforded to them. In other words, until it's stated and put into legislation by the federal government, council and a band may not have the right to make laws regarding (a) the health of residents, (b) the prevention of damage to property; (c) activities in public places.

Well, we don't agree, necessarily, with the limitation of the list, for instance, the list of those things that a band and council may now, by virtue of this law, make bylaws about, because we believe that right existed before; that right has always existed. We acknowledge and recognize that in our own Constitution.

We note very specific prescriptive language again, in itemizing in great detail the things, by legislation, band and council may make regulation about, and one of those is paragraph (l), the keeping of wild and domestic animals, except fish. I really wish we had more time to go through this list, because we didn't develop this list.

This is a huge issue on the west coast of British Columbia, where aquaculture is becoming the predominant form of the industry associated with fish. So now, specifically, the Government of Canada has determined in its wisdom--certainly not this committee because we haven't in any way ever discussed it--or the minister has decided that the council of a band may make laws associated with the keeping of wild and domestic animals, except fish. It can't deal with fish, even though, frankly, when in terms of economic development this burgeoning new industry of aquaculture is a dominant...well, it's certainly an opportunity in a marine environment and it will become more so across the country, even in freshwater environments. And related activities associated with keeping fish are not to be the jurisdiction of band and council.

What does that say about the right to use of lands and resources if we are picking some things that you may make rules and codes and laws about and some things you may not? The federal government seems to be the one that will decide those things and not the right of self-determination of that community.

À (1000)

We're critical of clause 16 in many respects, but unfortunately we've already lost the amendments that we sought on those provisions and we're now faced with trying to amend subclause 16(2).

Therefore, instead of the language that we see in subclause 16(2) now, that in the event of a conflict, any act of Parliament or regulation made under an act of Parliament should have primacy, I would suggest the language should read:

In the event of an irreconcilable conflict between a law made pursuant to an authority vested by this section and an Act of Parliament or any regulations made pursuant to an Act of Parliament, the conflicts shall be resolved through a conflict resolution mechanism negotiated between the band and the Minister.

In other words, we'll work it out. In the event that we reach an impasse as to who has jurisdiction, we'll treat it the way other levels of government treat it when there's a discussion about who has jurisdiction. It will be negotiated between the band and the minister or a delegate of the minister.

Why this absolute presupposing as to who will be right? This subclause as it stands, subclause 16(2), presupposes that the government is always right and the band is always wrong, and therefore it affords primacy in every eventuality. In every case and every circumstance, the government shall win. That's what this clause says. It says the government shall win always; the band shall lose always. That's the way God wanted it, I suppose, in this view of the world.

At least in our scenario it recognizes that conflicts may in fact from time to time occur, especially as more bands get involved in more economic development activities. Conflicts may arise, and in the event of a conflict arising, then the two parties should decide on a conflict resolution mechanism, be it binding third-party arbitration or be it some sort of outside third party, to be decided and to be determined because we around this table don't have the wisdom or the crystal ball to anticipate the nature of those things.

This is one of the most glaring examples I have seen of using this bill as a Trojan Horse to achieve secondary objectives under the guise of trying to speak about accountability and transparency. It's anything but transparent, because they're trying to win future court cases, essentially, or trying to avoid future court cases by declaring who the winner will be in advance.

[Applause]

Mr. Pat Martin: We've heard the questions, and this is one of the questions that was raised by the Indigenous Bar Association. Does this bill or will this bill have any effect or impact on the outstanding body of court cases that currently exist, or future court challenges associated with aboriginal issues? Well, I would answer that their fears are well founded because certainly in this case it precludes going through the courts in the event of a conflict because the outcome is predetermined by this clause.

In the interests of basic fairness, can the members opposite not concede that there is something wrong in the state of this particular clause, and why are we so reluctant to advocate on the side of fairness and on the side of the band and council for a change, instead of always on the side of government?

That's what I meant about the fiduciary responsibility. We, as members of this committee, have an obligation to act in the best interests of aboriginal people, not in the best interests of the ruling party of the day. We're forgetting our duties as members of Parliament by falling into step behind what the current minister wants to do to get rid of some nuisance irritants he has in terms of court challenges when conflicts arise, by predetermining the outcome and saying in all cases--

À (1005)

The Chair: Thank you, Mr. Martin.

Mr. Godfrey.

Mr. John Godfrey (Don Valley West, Lib.): Mr. Beynon, I have two questions. The first is this notion of a conflict resolution mechanism in the context of dealing with conflicts between competing laws. Are you aware of any precedence in Canadian statutes where that's the way it's dealt with, through a conflict resolution mechanism rather than declaring which law takes precedence over which other in a case of conflict?

Mr. Andrew Beynon: I would have to research it a bit further, but the answer is no, I'm not aware of examples like that. Usually what is done in a self-government context or a land claims negotiation context is to negotiate the subject of the relationship of laws. Then it is set out precisely, as is done here. You don't leave it for future negotiation unresolved, on a case-by-case basis, because that would create uncertainty. As lawmakers at a first nation propose to make laws or enact laws, they wouldn't know what the rule is until some later negotiation, perhaps long after the law has been put into place.

Again, in land claims and self-government arrangements, you set out with precision the relationship of laws so that lawmakers, be they federal, provincial, or first nations lawmakers, know in advance what will be the relationship.

As I said earlier, the Indian Act today does not have any express laws. It suffers from having no clear indication of the relationship of laws. The reason for doing it with precision here is so that we know--and first nations will know up front--what the answer is.

Again, just to say what I said before, inherent rights of self-government or aboriginal rights of self-government arise at common law. They don't depend on grant or expression from the Crown. They're outside the context of this act.

What is the relationship of those laws? Any law that may be made, pursuant to an inherent right, with federal acts and regulations is not a matter we pronounce on in this act.

Mr. John Godfrey: When we leave ambiguity in statute about such relationships, does that increase or decrease the likelihood of subsequent legal action?

Mr. Andrew Beynon: If matters are left ambiguous on relationship of laws, it increases the likelihood of litigation. Having a specific rule would decrease it.

If I may, just to emphasize that point, there are quite a few court cases, including recent ones, on the relationship of bylaws under the Indian Act with federal acts and regulations, precisely because the Indian Act is unclear.

Mr. John Godfrey: My third and last question is, if we adopted this amendment, would it mean that in fact, because of the ambiguity, bands would then find themselves potentially subject to more legal action? Because of the ambiguity, their autonomy, their ability to conduct their affairs and move forward past the rules set out in the act would then be compromised. Other people might demand some kind of conflict resolution mechanism because of this lack of clarity, rather than simply allowing the autonomy of the bands to be expressed through the law.

Mr. Andrew Beynon: That's a hard question to speculate on, but I think it is fair to say that from a government, a third party, and a first nations perspective, a clause that leaves the matter for negotiation, without any certainty of what happens if negotiations fail, would likely lead eventually to having to go to court to work out the differences, perhaps even by a first nation itself or by third parties against a first nation.

À (1010)

Mr. John Godfrey: I don't want to put words in your mouth or take your speculation further than you're willing to go, but in fact this might have a perverse consequence. It might go in exactly the opposite direction Mr. Martin wants by reducing the future autonomy of a band to operate within clear rules.

Mr. Andrew Beynon: Yes, you're trying to put words in my mouth, I suppose. All I can say is, negotiation of these relationships is appropriate where you have a structure that has negotiations--in other words, in self-government negotiations or in land claims negotiations. The point is to work those issues out before you make laws.

You are correct about the disadvantage here. First nations, governments, third parties--everyone going in would be uncertain. Laws would be made; then you'd be trying to sort of chase your tail afterward and figure out what the negotiated result is. That's the downside.

Mr. John Godfrey: Thank you.

Mr. Warren Johnson: If I could add what may be an important point--I apologize if it has already come up; I was out of the room for a moment. It would also be in conflict with the stated purpose of this act as amended by the committee, which was to decrease, as opposed to increase, the minister's involvement in these matters. The negotiation is with the minister here, so we would be adding ministerial discretion or authority.

Mr. John Godfrey: Thank you very much.

The Chair: Thank you, Mr. Godfrey.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I would like to begin by commenting on three assertions which I really do not agree with and which were part of the exchange between my Liberal colleague and one of our experts.

First of all, I was quite amused to hear that a clause dealing with a conflict resolution mechanism could lead to clashes between the parties and to an upside-down world where from now on, it wouldn't be the First Nations suing the federal government for breach of their rights, but the federal government taking the First Nations to court for having exceeded their powers as legislators. That is absolutely unreal. That anyone could seriously consider suing the third order of government that has just been created in cooperation with the First Nations amounts to a complete denial of the weight of history and a desire to pretend the last 30 years never existed. I'm completed bowled over at the notion that some people could actually think that way.

Second, there seems to be a belief, even now at the outset, that negotiations could fail over the matter of a conflict resolution mechanism. If an idea is presented—one that has already, in fact, come forward, but I'll come back to that later—that people believe, right from the outset, is bound to fail, then it most certainly will fail. It's all a question of positive energy and positive thinking. If we don't think positive and don't have either the energy or the determination to resolve something, then we most certainly will fail.

You wouldn't ask a boxer to get into the ring thinking that he was going to lose, because then he would most certainly lose. A boxer has to be in a positive state of mind. I think you have an energy problem. I would suggest recharging your batteries; that might be a good idea.

Third, there is no such precedent that I'm aware of. I think we have to look at that. There are plenty of precedents, starting with the ones created under the Free Trade Agreement with the United States, NAFTA, the North American Free Trade Agreement signed with the United States and Mexico, and the WTO, formerly known as GATT. Their conflict resolution mechanisms worked extremely well. They have served Canada well, particularly under NAFTA and the Free Trade Agreement with the United States. And the reason they have worked well is that a process was put in place to provide for an objective assessment of every given situation.

Let's take the example of the Free Trade Agreement with the United States. The United States appoints one person to be part of the panel, Canada appoints a second person, and a third person is appointed by both parties. So, the panel is objective. It works independently of the governments and makes a decision that can be challenged at other levels. If a decision made by a NAFTA panel doesn't suit Canada, Canada always has the option of taking its case to the WTO. So, it cannot be said that there are no precedents when it comes to conflict resolution mechanisms; there are plenty of them. I've just named three. I think that's quite enough.

I find it excellent to say that if we realize self-government based on Aboriginal Nations' inherent rights, and therefore, rights they already have, we need conflict resolution mechanisms, because we live next to one another, often on territories that overlap. They fact that we didn't think of this is another problem. So, I will be supporting this amendment.

I would like to come back to the list of powers for Aboriginal nations under clause 16. I repeat: I'm absolutely flabbergasted by the list of powers reserved for municipalities under Bill C-7. These are government powers. The first time I read Bill C-7, the first thing I looked at was the powers it provides. My reaction at the time was that this made no sense whatsoever. Municipalities have the powers of nations—nations recognized by the UN and which the courts have been saying are appropriate for the last 30 years.

There are also precedents here in Canada. The agreement signed by the James Bay Cree Nation last year, and known as the “Peace of the Braves“, does not give the Crees the power to create water systems and sewers or to pass commercial regulations on municipal territory. That is not what it does. Read it if you're interested in knowing what the powers of a real government are, and you'll see that that is exactly what was negotiated. That is how the Crees exercised their inherent right of self-government.

À (1015)

Listen to this. On their land, the Crees have jurisdiction over justice, the environment, economic development, culture, the family, transportation, taxation, human resources development, land use and development, social development, and even international affairs.

Again, if you look at the draft agreement signed with the Innu Nations in Quebec, you will see that all these areas of responsibility have been transferred to a third order of government—a true third order of government; none of the futile activities listed in Bill C-7—but in addition to that, the Innu also have shared sovereignty over an area called Inuassi, their traditional hunting, fishing and trapping grounds. Sharing is provided for here—not sharing of jurisdiction, but sharing in terms of the regulation that will apply depending on whether the hunter, trapper or fisher is a member of the Quebec community or the Innu community. The regulations that apply to the Innu are those regulations determined by the Innu government. The legislation that applies to a Quebec fisher is the legislation that comes within the jurisdiction of Quebec. What we're attempting to do here is to establish a process of harmonization between the two orders of sovereign governments, in order to avoid conflict, but the fact remains that the laws and regulations developed by the Innu Nation apply to the Innu, whereas those developed by the Quebec Nation apply to Quebec residents.

The same applies to the sharing of royalty revenues. When you have common territory that you have historically shared, but which belonged to the First Nations before the Europeans arrived, you have to negotiate the sharing of revenues—like revenues from royalties on natural resources in the territory called Innuassi, the traditional land occupied by the Innu Nation. Those revenues have to be shared.

The annual royalties paid by mining companies should not go only into Quebec Government coffers. So, we negotiated with the Innu Nation, which has rights over that land, that the government would receive part of those royalty revenues. And where such arrangements are not negotiated, it's simply because there is a lack of good will. Indeed, how can you expect an independent Aboriginal government, like the Innu government, to fund its activities as a sovereign government if it has no financial resources with which to keep the government machinery operating? That is ridiculous.

So, if what we are saying is that we don't need a conflict resolution mechanism, that federal laws will prevail and that we really don't give a damn about the Aboriginal nations' inherent right of self-government, well, that's something else, but in that case, why not stop making this Bill even more convoluted, under the guise of modernity, all the while claiming that these clauses are normal clauses. When you're facing a lower order of government—yes, that is the federal government's attitude—you have to ensure, if there is a conflict between actions taken by the lower government and the higher government, that the federal government, which knows all and tells all, and federal legislation, will prevail. If that is the real idea underlying all of this, well, that's different, but in that case, why don't they stop this baloney by constantly referring us back to the darn preamble, which is a beautiful piece of lyrical writing that appears nowhere in the body of the text. So, let's not take people for fools here.

I don't want to make any personal attacks, but we are told that people have some expertise as to what should follow on from Erasmus-Dussault, and then we're presented with something like this… We are giving independent Aboriginal governments municipal powers, and yet we're being led to believe that we have ceded something important to them, when in actual fact, we haven't ceded anything at all. In any case, we have nothing to cede to them, because they already have those rights. So, people should just stop saying that we're making incredible concessions here, that we are moving towards self-government and that we are abiding by court decisions and responding to the many criticisms that have been made internationally about the federal government continuing the kind of domination that it enshrined in the Indian Act 130 years ago.

So, let's not take people for fools here. As we provide information to the population about the content of this Bill, even the non-Aboriginal population is starting to be fed up with the federal government's prevarication.

When we began the debate on the Innu Nations and the “Peace of the Braves“ in Quebec, the people of Quebec were skeptical until we explained the content of the treaty and the fact that Aboriginal nations have rights and that we are not granting them those rights, since they already have those rights. Our job is simply to negotiate how those rights will be exercised.

Once the people understood that, we achieved the same kind of result as at our party convention three weeks ago. A resolution supporting those agreements was adopted almost unanimously, by 550 out of 552 delegates…

À (1020)

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Martin, closing remarks.

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

This is the second attempt we've made at trying to amend subclause 16(2). The amendment that was just defeated made an attempt to change clause 16 by deleting subclause (2), the passage that gives absolute victory to the government any time there's any conflict to do with who has jurisdiction or who has primacy over laws versus the bylaws of the band.

In this section, what I'm proposing this time around is actually a softer proposal. It's a more gentle approach to give satisfaction to the same concern. We're proposing to amend subclause 16(2) so that in the event that there is a conflict between the law made pursuant to the law made by the band council, let's say, and an act of Parliament, then that conflict shall be resolved through a conflict resolution mechanism, negotiated between the band and the minister. That seems like a civilized, contemporary--not just contemporary--time-honoured way of dealing with an impasse whenever a conflict arises.

Now, what we have currently in the bill presupposes that the government is always right and the band is always wrong; that the government shall always win every subsequent challenge and the band shall always lose every subsequent challenge. I know that's the way the minister would like it. That's his vision of a perfect world: he wins all the time. That's ideal. And I suppose if you can get away with it, you would want to legislate that kind of absolute power. That is not acceptable to us.

Had the government asked anybody, had the government consulted anybody about how they would envision this kind of thing taking place, they would have heard what the wishes are of first nations, supposedly a partner to this process. When it was brought to our attention, reasonable recommendations were made. There are a significant number of first nations who, although they condemn Bill C-7 in its entirety, and they resent and they reject the whole prospect of the federal government trying to define what self-government is...many of them felt it was necessary to at least move amendments along the way to try to defuse some of the worst irritants associated with the bill.

When they came to this particular clause, it was one of particular concern. Clause 16 has had a lot of attention from a lot of presenters around the country. The proposal I bring to you today is not a proposal that I wrote. The proposal I bring to you today was brought to our attention by the regional vice-chief for the Assembly of First Nations of British Columbia, who did a detailed analysis and commissioned a detailed legal opinion and analysis of this bill.

They cautioned us on clause 16. It is highly controversial and they and many other first nations believe it is the government's attempt to define what self-government shall be. This is contrary to any good-faith development of what self-government is and the recognition of what self-government already is.

Some of the testimony we heard on this was very important. I believe it was from Professor Brad Morse, who is a well-respected authority in these fields. He cited clause 16 as particularly lacking. It was almost incredible, in his view, that a key jurisdiction like education was not included in this list of areas where laws and rules may be made.

Now, of all things, that is--exclusively, in my mind--the jurisdiction of first nations, because of their traditions, unique status in society, unique culture and language and heritage, which is so much a part of who they are. Exclusive jurisdiction over education surely must be theirs, as stated.

I know my honourable colleague from the Bloc Quebecois, Mr. Loubier, cited things that the National Assembly in Quebec has already successfully argued should be the jurisdiction of the provinces--and education is paramount. Education is one, as are the environment and justice issues.

First nations are justifiably proud that their system of justice is far different from the colonial view of a justice system. They have found, to glaring, shocking results, which are self-evident, that our justice system does not work as it applies to first nations people. The evidence is clear. The overrepresentation of aboriginal people in our jails is all the evidence anybody needs. You can't lock up a whole generation of people.

À (1025)

[Applause]

Mr. Pat Martin: I found a shocking statistic in doing research for this particular clause that said that at a certain point in the early 1970s, guess what the percentage was of aboriginal women in the women's penitentiary in Kingston? I thought perhaps 50% would be horrible, given their population; 70% would be too much. It was 100%--all of them. Every single one of them was aboriginal. Granted, it is a fluke moment in time, but it illustrates the incapability of our justice system as it applies to first nations.

So why isn't justice listed as one of these details that the federal government is going to allow bands to have control of in terms of making laws for the local purposes?

Professor Brad Morse was not alone. Other testimony we heard cited education, justice, transportation, family, culture, human resources. These were the things that my colleague mentioned were subject to the debate. And they are subject to federal-provincial negotiations all the time.

More and more, there has been the devolution of powers from the federal government to the provincial governments, but that same concept of the devolution of powers does not apply when we're dealing with the inherent right that first nations already enjoy.

Those rights aren't bestowed upon them by the federal government; those rights exist and must be recognized and acknowledged. And nothing that we do as parliamentarians should in any way diminish, infringe, or seek to extinguish any of those rights. This is where we have to act in a cautionary way.

So I've put forward what I believe is a reasonable amendment. This amendment speaks to a conflict resolution mechanism that is brought into play.

Now, one of our technical advisers said it was a stated objective of this bill to reduce the influence or the participation of the minister in the lives of first nations people. He suggested that by putting in a conflict resolution mechanism between the band and the minister, that would actually expand the role of the minister.

I argue the opposite. If anything, the role of the minister is diminished in this, in what I envision, compared to what's envisioned in clause 16. In that event, the minister always, every time, exclusively wins. By legislation, he wins. So at least this contemplates that sometimes the government may be wrong, and sometimes the band and council may in fact win, if the argument has merit. It at least supposes the possibility that in the event of a conflict, the government is not always right and the government shall not always win.

I have examples when the government has been wrong before. It's not unusual that the government screws up. Some very worrisome precedents exist.

À (1030)

Mr. Yvan Loubier: They didn't admit that.

Mr. Pat Martin: No, it's a failure to admit that.

So I'm actually disappointed at the tone of some of the debate I've heard and the effort to defend what I see as a shocking and deliberate attempt to diminish, infringe upon, even extinguish rights to self-government found in clause 16, and especially subclause 16(2).

I have to wonder really what the motivation is. I can almost see the thought process that took place.

There were well-meaning people and representatives on the ministerial committee, the JMAC, whom I thought would have caught this. When it was so obvious and apparent to others, such as Professor Brad Morse and the lawyers who developed the research on behalf of the British Columbia vice-chief of the Assembly of First Nations, and it was explained so clearly to us...how those developing these clauses failed to be seized of the importance of the issue. We don't know a great deal about the process, to tell you the truth, in the development of this bill.

We've asked for the rationale and development.

The Chair: Thank you, Mr. Martin.

There will be a recorded vote on NDP-37, on page 131.

(Amendment negatived: nays 7; yeas 2)

The Chair: Mr. Martin, you have reason to be tired, as we all are. We're in our forty-ninth hour, with a few breaks. This is our tenth week of almost full-time work on this and we're not halfway.

On amendment NDP-38, Mr. Martin.

Mr. Pat Martin: There's an easy solution. We'd all be better rested if we would simply back off this bill and start all over again.

[Applause]

Mr. Pat Martin: There's broad support among first nations to simply stop what we're doing. People have given up their week, too, to come here to make it clear to the government that they don't want anything to do with Bill C-7. They don't want us to be undertaking this process.

The cost notwithstanding, even bystanders who have no vested interest in these proceedings would be horrified at the amount of energy and the amount of resources being dedicated to an exercise in futility, an exercise that will benefit no one and will cost us a fortune.

It defies reason and logic to be spending $550 million to try to force people to do something they don't want to do in an attempt that we know is going to fail. We've been seeing right across the country that the opposition is actually coalescing and merging together into a very powerful movement of opposition.

I note, again, in the minister's remarks to cabinet, he cautioned the cabinet that “there is opposition across the country, but that opposition is random, ad hoc, and we don't expect it to get coordinated in any way”. This is the pitch they made.

I don't think cabinet would have allowed this to proceed if he knew, at that time, how coordinated the opposition would become, because it's no longer “random, ad hoc” flare-ups of opposition. It's a grassroots movement of opposition.

[Applause]

Mr. Pat Martin: And good luck. I don't know where you're going to get the staff, the manpower, and the resources to try to impose something that people have clearly stated they don't want. They will voice their opposition in every legal way they know how, and they have served notice that they will not cooperate with it.

You're starting a riot. You're literally provoking civil disobedience in the countryside. Who would want that as part of their legacy? It seems the Prime Minister wants it as part of his legacy to finish a job he left undone, and it seems he's found a minister willing to proceed with this. But I'm concerned about the new minister of the Department of Indian Affairs.

We know that the future Prime Minister is making speeches across the country and dropping planks of his platform in various speeches as he travels. We know that when he gets to Edmonton this weekend he'll be talking about aboriginal issues. If the future Prime Minister, Paul Martin, mentions one word about how he doesn't approve of agitating and provoking and poking first nations people in the eye with a stick, if he says anything to the effect that he disapproves of that level of animosity that's being provoked out there in the community, believe me, this bill will crash and burn overnight. By the time we come back Monday morning, this bill won't exist, because the Martinites in caucus won't allow it to proceed.

That's perhaps our best hope. What new Prime Minister and new Minister of the Department of Indian Affairs would want to start their new job faced with this level of acrimony and animosity? You'd have to be nuts. Well, you'd have to be nuts to start this process already, without the participation and the support of aboriginal people, but you'd have to be nuts to continue, knowing what you know now. You can almost excuse it, based on naïveté, the first time around, when this process was started, but knowing now--

À (1035)

The Chair: Mr. Martin, I apologize for interrupting.

We must get a commitment that the flash camera will not be used again; otherwise the camera or the person must leave the room. We will suspend until that happens.

À (1037)

À (1040)

The Chair: Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I've made three attempts now to amend subclause 16(2). In the spirit of goodwill, frankly, as today began, I felt badly, unfortunately, when we asked for unanimous consent to even participate in one clause that I missed an opportunity to speak to, but I think we've kind of flagged with the chair and with others that this particular clause is of particular concern to us and a great number of first nations representatives across the country.

The first motion we made simply to delete subclause 16(2) was voted down, so we've now suggested a second option for subclause 16(2), simply to introduce a conflict resolution system.

If they're not interested in either of those two options, perhaps they'd be interested in turning this around 180 degrees, that in the event then of a conflict between a code or law passed by band and council and an act of Parliament, the law made under this section prevails to the extent of the conflict.

In other words, let's give the benefit of the doubt to the band and council for a change. Let's say that in the event of a conflict, the preference or the bias shall go to the band and council to the laws made under this section. Perhaps that would appeal more to members of Parliament. They seemed willing enough to put forward a bill that says the minister shall always win. Well, maybe they'd be willing to contemplate the flip side to that. Let's give the benefit of the doubt to the band and council that in the event of a conflict, they would always win.

They don't seem to like any of the other two options, so here's a third option. This is how seriously we're taking subclause 16(2). We believe any law made by the band and council under this section, in the event of a conflict, should prevail, versus the other one. That's the type of provision that I think we should be willing to explore here--all options.

Instead of simply rubber-stamping what's presented to us by the bureaucrats on behalf of the minister, this committee is supposed to have debate and exchange about the relative merits or the virtues of different combinations of issues that have to do with this bill.

Ultimately, even then, our obligation doesn't end there. We also have an obligation to take into consideration what we heard through the consultation process, because as I've said a hundred times, consultation without accommodation is not true consultation if we don't incorporate some of those things.

[Applause]

Mr. Pat Martin: So by asking somebody what they think of something and then doing what you wanted to do anyway, you've not truly consulted; you've simply given them an opportunity to vent.

So, Mr. Chairman, I caution government, and even this committee, that the unrest is growing in the community. The unrest across the country is growing, and in fact the media are starting to notice. Things are unfolding as they should. They notice that there is some unrest out there. Unfortunately, they don't seem to take notice in aboriginal affairs until there is a road blockade or an all-night parliamentary committee meeting, or something extraordinary, because the public is not exactly seized of this issue, and journalists are slow, but they're starting to notice now.

This headline was in the Saskatoon StarPhoenix: “Natives stage vigil in Parliament: Groups protest proposed First Nations Governance Act”. We're finally starting to resonate across the country that our objections are legitimate.

I resent some of the editorials I've seen that say it's not just the chiefs, and not even just the councils, but it's grassroots members of first nations across the country.... So if the public and the media have been sold a bill of goods that there is a grassroots movement that's demanding this bill, where are they? We haven't seen them come before the committee. We haven't seen them approach us. We haven't seen any evidence of them. This grassroots movement in fact seems to be 100% opposed to Bill C-7, not knocking down government's or the minister's door asking for more restrictions in their lives. No one is beating down the minister's door saying, please impose your will upon us; please dictate in the minutest detail what we're allowed to do and what we're not allowed to do. I haven't heard anybody asking for that kind of thing yet. That's what Bill C-7 is all about, and that's what it does.

À (1045)

So I suppose you can sense from my tone that I'm frustrated at the unwillingness to deal with clause 16 for the length of time it deserves and in a way that is respectful of what we heard, because we've heard that not only is the list of things that a band and council may make laws for inadequate, but woefully inadequate if it fails to include things like education and justice.

And yes, as I've just heard someone say, taxation issues are not contemplated or dealt with it. It's inadequate.

The Chair: Thank you, Mr. Martin.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, I'll try to be brief, but Mr. Martin in his talk failed to acknowledge--

The Chair: Mr. Hubbard, would you refer to “my colleague” or “the member on the other side”?

Mr. Charles Hubbard: Yes. My colleague....

There were extensive consultations across Canada.

Voices: No.

Mr. Charles Hubbard: The bill was introduced in the House last June. It was brought back to the House in October, and this committee began study of the bill in early 2003. The committee travelled across Canada having dozens of meetings with people, and following that, amendments were put before the committee. All members have had these amendments for more than three weeks, and on this side of the House we spent a lot of time studying the amendments.

It's our intent as legislators to try to improve the bill. From the very beginning the purpose of my colleague opposite was to destroy the bill.

We are at mixed objectives here in terms. Our motives are different. The motive of my colleague is to destroy the bill. Our motive is to bring before Parliament the best possible legislation we can bring back at report stage.

After considering nearly 200 amendments, the House will further consider amendments from various members. It's a lengthy process, but we are determined to bring the best possible Bill C-7 back to the House at report stage, and that is the intent.

With my colleague's motives, it's most difficult to listen to his rhetoric, and he does not stick to the amendment that he presents before this committee. For that reason, we have difficulty dealing with his motives and listening to his rhetoric to see his arguments or to see the benefit of the amendments he's bringing to this committee, and this amendment, like so many others, we have no alternative but to vote against.

The Chair: Thank you, Mr. Hubbard.

Before I go to Monsieur Loubier, I remind the people in attendance that a committee room is an extension of the House of Commons, and we owe respect to Parliament and to the extension of Parliament. We would certainly appreciate that there be some--

A voice: What about respect for us?

The Chair: We urge the people in attendance to have respect for the dignity of the work that's being done and for Parliament.

Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I agree with the need to respect the dignity of Parliament and the dignity of the Committee and its members, because it is an extension of the House of Commons, but I am even more concerned about respect for the dignity of those are directly affected by this Bill, the Aboriginal people. That is a far greater concern for me. I have been a Member of Parliament for 10 years now. I have always shown respect for Parliament and the committees, as an extension of that institution, but I am realizing that beyond respect for procedures and the institution itself, there is also the important matter of showing respect for people, which goes beyond respect for any institution, since an institution is the instrument of the people. But if we are fundamentally incapable of showing respect for the people or peoples, then it's difficult for those people to respect the instrument that is the institution. I can understand their reaction, because we are taking away their right to speak, when in fact they are the ones that should be sitting at this table talking about Bill C-7.

A few minutes ago, you said that we were into our 49th hour of discussing this Bill. Of course we are tired. We are all tired, because in addition to discussing this Bill, we all have other work as Members of Parliament and as members of a family, and so on. At the same time, it seems to me that 49 hours is not very much time, considering that the Aboriginal peoples have been waiting 130 years for others to show respect for their dignity and for what they are. Personally, I am prepared to give them several months, and even several years to help and support them determine what they would like to be in the coming years, but not based on Bill C-7, because this kind of legislation is completely ridiculous. I urge my Liberal colleagues to wake up.

As Mr. Martin said earlier, this government is between administrations. The current Prime Minister is simply biding his time, because he'll be gone in a few months. He may have certain ambitious, as a former Minister of Indian Affairs, or perhaps he has other motivations, because this is certainly not the kind of bill one would expect from a former Minister of Indian Affairs who has become Prime minister and wants to leave a legacy. If that is the legacy he wants to leave, well, all I can say is it's a pretty pathetic legacy he is seeking to leave Parliament. It seems to me you should understand that since he is just biding his time…

Between the three declared candidates—Mr. Manley, Ms. Copps and Mr. Paul Martin—Mr. Martin is the one most likely to take over. First of all, if Paul Martin makes a statement on the weekend—now I haven't often agreed with him; I even fought with him as Finance Critic because he sometimes made totally inappropriate decisions, but when he was right, I supported him, and you can check the record on that—and says he is prepared to scrap Bill C-7 and start over, based on the findings of the Erasmus-Dussault report, and second, if he says that he wants to engage in real consultations with the people directly affected by this—that is, the leaders of the Aboriginal nations—and third, if he says that in his mind, the only way to proceed is to respect the inherent right of self-government and negotiate with the Aboriginal people as equals, nation-to-nation, and fourth, if he accepts all of that, he will have the entire opposition on his side. Perhaps I can make that commitment for my NDP colleague. If Mr. Martin supports the Aboriginal nations, if he drops Bill C-7 and starts the process over from scratch, based on the work plan presented by Erasmus-Dussault to be carried out over the next 20 years to rebuild the Aboriginal nations, we in the opposition will support Mr. Martin in that goal. There is no doubt in my mind about that.

À (1050)

However, if Mr. Martin wants to wear the shoes of the current Prime Minister and pursue the policy laid out in Bill C-7, we will not be behind him; we will step up to oppose that policy, as we are now opposing this Bill which makes no sense whatsoever, given what the Aboriginal people want to define as their future and their desire to rebuild their nation on the basis of principles such as respect and dignity, and to do things for their own people. In that case, we will be right in front of him, blocking him every step of the way. If that is how he wants to start his mandate, I'd say that would be a very bad idea.

Given what I heard a Liberal colleague, who shall remain nameless, say earlier when he expressed a desire to improve the Bill, there are a number of questions that come to mind. I won't put those questions to him, because I can't do that, but how can one possibly improve something that is unspeakably bad and unacceptable, and which no one wants, particularly when the people most directly affected are saying they definitely do not want this? How can you possibly improve something that is rotten at its core? That is the first question.

Second, where in the package of amendments presented by the government initially, are there amendments aimed at improving the content and responding to the criticisms made in the briefs we received and that we have hearing since we began our cross-country consultations? Where are the government's substantive amendments aimed at improving this Bill? There are none. Not one government amendment has come forward that improves the content of this Bill.

So, the government can keep on saying whatever it likes, that it wants to work in a spirit of dignity and effectively improve the lot of the Aboriginal nations, but that if the lot of the Aboriginal nations is to be improved, that will happen on the basis of their decisions, their government autonomy and in keeping with the decisions they themselves make.

Our job is to make reparation for all that has happened over 130 years of the Indian Act, respond to their comprehensive land claims, respond to their specific land claims—some 500 of them are still outstanding at this time—quickly negotiate the land base over which Aboriginal nations will exercise their jurisdiction and their sovereignty as nations, provide them with compensation for the harm caused them over the years, help them, as has been done in all the successful initiatives that have gone forward in the United States or even here in Quebec or Canada, through federal government support, rather than forcing them to do things they do not want to do.

When that happens, maybe then we can talk about improving relations between the federal government and the Aboriginal nations. But for now, don't treat us like fools by telling us you want to work quietly and efficiently to improve a Bill that cannot be improved, in any case.

I would like to remind you of an historical truth. When the first Europeans arrived here, they were greeted with open arms by the Aboriginal nations. The Aboriginal chiefs that greeted them agreed to sign treaties with them, welcome treaties. They lent them their land for hunting, for example. They gave them the right-of-way on their lands. They even signed non-aggression treaties with them and greeted them with open arms. If you welcome someone into your living room, would you want him to start changing all the furniture around, or changing the colour of the walls, and then say to you after a few years : “You have to leave your house, because your house now belong to me»? That's called robbery. And that is what we did when we arrived here. So, now, what we have to do is give them back at least part of their land base, show respect for our Aboriginal nations, respect their inherent right of self-government, and negotiate in good faith, nation-to-nation, how that self-government will work in practice, rather than coming along and saying that if there are inconsistencies between the laws made by Aboriginal nations—and in municipal areas of responsibility, to top it off—and federal laws, then federal laws will prevail.

What difference is there between such an attitude, which underlies this Bill, and the attitude we have seen over the last 130 years, which is tantamount to expelling the owner from his own house, his own living room, when he in fact greeted the Europeans with open arms when they arrived on this continent? What difference is there? What difference is there between doing that and supposedly giving law-making powers to these nations…?

À (1055)

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Martin, you have the floor.

Mr. Pat Martin: Mr. Chair, it's becoming abundantly clear to me we're not doing our job at this committee, because we're not giving these issues the attention they deserve. We're not giving them meaningful debate, and by that I mean exchange. We seem to have lots of opinions on the one side about these clauses, and very little participation or input from the other side. We have an obligation, a duty on our side to at least represent the views that are brought to our attention by first nations, because they're not allowed a chair at this committee; they're omitted from this process.

We're not even getting participation from members on the other side, even on issues of such weight and substance. As an example, again I point to the fact that we moved off the issue Mr. Vellacott raised about matrimonial property rights, etc. We simply have skipped along. The time for dealing with that issue is over, nothing is resolved, and we've not even had a full and open debate about the issue. In fact, the minister wanted it that way.

The minister sent a letter to the Senate Standing Committee on Human Rights with this particular formal request. He's asking the committee to undertake a study to examine the interplay between provincial and federal laws in addressing the division of matrimonial property, both personal and real on reserve, and in particular enforcement of court decisions. He's asking them to examine the practice of land allotment on reserve, in particular with respect to custom land allotment. He's asking them to examine, in the case of marriage or common-law relationship, the status of spouses and how real property is divided on the breakdown of the relationship, and possible solutions that would balance individual and community interests. He's asking the Senate to do our job for us, and then to report back no later than June 27, 2003.

Now, how does that happen that we have our duties undermined or stripped away from us, in that this committee has expressed no willingness to deal with these issues of substance, even though that's what we were elected to do and appointed by our parties to do? We've had that duty undermined by having it go to the unelected Senate and having them pass it around.

In fact, the committee it was given to have decided they're either too busy or don't want to do it, and they've farmed it off further. They've subcontracted it to the Senate committee on Indian affairs and...I can't remember the last part of the name of their committee on Indian affairs.

There's even debate among the senators as to whether they should accept this. So there's no great willingness on their part to be saddled with this issue. They claim they don't have the timeframes, and some have commented it's an abrogation of duties elsewhere. Senator Kinsella says that many honourable senators are fully cognizant of the tremendous resources that the line ministries have available to them and that we do not have available to us. He says the budget of the Department of Indian Affairs and Northern Development is humungous, and that it could undertake significant studies with not even a dent in its budget.

The minister's letter lays out in great detail the areas he'd like to have examined, building upon the study done by Ms. Cornet in the discussion paper, “Matrimonial Real Property on Reserve”, which is the very paper we were going to give special attention to at this committee.

I'm wondering what we're doing here, then, if it's not just to rubber-stamp the minister's wishes, even up to and including the point of taking any controversial issues away from the purview of this committee and handing them over to the Senate so they can play with them and frankly be lost in the sands of time, because by June 27 Parliament will not even be sitting any more. Parliament will be adjourned.

Now, with any luck, before that happens, Parliament might be adjourned even earlier, because the Prime Minister is offering that as an incentive to his caucus to accept the financial contributions to elections act. It will be interesting what would happen to this bill if all of a sudden the Prime Minister's interest were to shift from ramming this bill through to ramming his election financing act through, and having to bribe his own caucus by saying if you don't disrupt my election finance bill, I'll let you go home early. School will be let out early.

Á (1100)

Maybe that's the best thing that could happen to this bill too, because we will go home for the summer, and by the time we get back, the Liberal Party will be so busy with their leadership campaigns in the fall that nobody's attention will be on this bill. Perhaps the fleeting attention span of the House of Commons, as it is, will have moved on to yet another issue. One can only hope that will be the situation.

I ask members to consider the appropriateness of taking a section that so clearly belongs in the study we're undertaking regarding the Indian Act and farming it off to an unelected Senate, where they're going to banter it around and ballyhoo it around, then coming back with a recommendation: is it going to come back as a separate bill, or a subsection of the bill?

We've started to see bills getting subdivided—bills C-15A and C-15B—because “It's too volatile, so let's hive off the volatile section, send it to the Senate, and have it reintroduced as an 'S' bill.” Well, any bill that begins with “S” instead of “C” I think lacks legitimacy anyway, because it has been developed by unelected, appointed people.

I flag that as an example of how I think we're not doing our job as members of Parliament around this table. First, there's the inability to do our job properly because of the lack of information and documentation. We don't have it; we've been asking for it. We do a disservice to the issues where we can't participate fully if we're denied information the government side has.

I can't even advocate on behalf of the guests we have here. It's no secret that I'm trying to act as a vehicle to bring first nations issues forward to this table; that's my whole purpose for being at this table. But I can't even do that properly. I can't adequately advocate for Canadian citizens at this table if I'm not given the same information others are given.

I just wish there were enough members with courage around this table who would do something similar to what the government operations committee did when they refused to continue with their study of Bill C-25 until the government gave and circulated all the relevant documents and legal opinions.

We should suspend. We should suspend our study of this bill at the very least until such time as we are fully made aware of what the government is up to with their own legal opinions. It's fundamentally wrong for us to proceed. It not only trivializes the issue; it's a breach of my privilege, I would suggest, that I'm not given the information I need to effectively represent the constituency I'm here to represent. It's an insult, really.

People have raised another issue about the cost factor associated. I think it's irresponsible for us to even contemplate going any further with a plan to spend $550 million, and then an open-ended chequebook, really, of taxpayers' money. More importantly, it's money that should be spent providing the basic needs and services to first nations communities. If this money is going to come out of the A-base budget—and we have information that's exactly where it's coming from, it's not new spending—imagine what $550 million could do in meeting the basic needs. Maybe we would prioritize a campaign to ensure that every first nations community has clean, freshwater systems instead of the “boil water” orders that we find epidemic across the country.

Who knows what we could do? We could plan and strategize a campaign to eradicate the epidemic of diabetes among first nations people in the northern part of my province. There are any number of things we could and should be spending $550 million on. This is not one of them.

[Applause ]

Mr. Pat Martin: We have an obligation as members of Parliament to assess the benefits to any public spending we do. The time I spent on the public accounts committee has taught me a good lesson about our obligation and our duty to be the watchdogs of the public purse.

On an arbitrary whim and notion on behalf of the minister, we're about to spend $550 million ramming these issues through and shoving them down people's throats, when they've said very clearly they not only don't want them but resent the imposition. What could be more morally wrong?

Mr. Chair, as I suppose we see the swan song of my motion to try to amend clause 16--

Á (1105)

The Chair: Thank you, Mr. Martin.

We'll go to the vote.

We're trying to vote, please: a recorded vote on NDP-38, at page 132. Did everybody hear me?

(Amendment negatived: yeas 3; nays 8)

Voices: Shame! Shame!

The Chair: We're on G-7, on page 133.

Mr. Hubbard.

Á (1110)

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

Very briefly, amendment G-7 deals with the disposal of waste, and with it....

My colleague here is amused.

When you speak to most first nations people, in terms not only of their own land but of all of Canada, their attitude toward the environment is one of the highest standards we find in this country. In fact it's often been said the greatest impression a native person has, in terms of his land, is not what he receives from his parents, but what he leaves to his children.

With amendment G-7, we're attempting to make sure, in terms of whatever laws this bill may enable--and we do talk about enabling legislation dealing with various aspects--that in the long run, all the best interests of first nations peoples are looked after.

We can call upon our experts, in terms of the legal aspect of this, to discuss it further, but really what we're saying is that we have laws in place at present, under the Indian Act, and until such time as band councils come up with a new law to replace the old, that part of the Indian Act will continue in place until the new codes are ratified by the chief and council.

Perhaps Paul could explain further.

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): Sure. Just to add to your comments, which are important--

The Chair: Excuse me, Mr. Salembier.

We will suspend until I feel comfortable that we can regain decorum in the room.

Á (1112)

Á (1121)

The Chair: Hoping to regain order, we will resume with Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, thank you for giving me the floor and determining that decorum had been regained. That decorum did disappear several times, but not necessarily because of the audience; rather, it was because of certain people sitting at this table. But I am grateful to you for allowing us to continue our work to try and improve the provisions of Bill C-7, which are so devastating for the Aboriginal nations.

When I saw the government's amendment G-7, my reaction was that this is the first substantive amendment the government has put on the table, because from the very beginning, we have seen only technical amendments aimed at improving the English version or the French version, and that sort of thing. I see now that this is the first substantive amendment to come forward. What bothers me, however, is that the government's first substantive amendment deals with waste disposal. That is simply unbelievable. Despite considerable analysis of the needs of Aboriginal nations and of their inherent right of self-government, the one and only substantive proposal the government can make, after consulting with the First Nations, or so it says, and after considering their needs and all that is required now to allow them to rebuild, is a substantive amendment on waste disposal.

I think that the best way of disposing of waste, in the context of this debate, would be throw this Bill in the garbage. That way, we would be disposing of a considerable piece of waste right at the outset. So, if you really have a concern about waste disposal, I would suggest that you start by disposing of Bill C-7. You will have made an excellent contribution in terms of cleaning up the political landscape and protecting the environmental landscape, which should lead to better relations and a real partnership between the federal government and Aboriginal nations. I think that would be the best amendment you could possibly make to the current political environment, which is clearly contaminated by your narrow conception of the relationship that should exist between Aboriginal nations and the federal government.

I heard a Liberal colleague who shall remain nameless—given that I am not in the habit of making personal attacks—say that this would be a way of improving the environment. That is what this good Liberal government that is always right, since it always votes against our amendments, is seeking to do. That is the kind of great idea we see coming from a federal government that is concerned about the environment, and that is in fact one of the points that was made even by members of First Nations who appeared before us. But if the government is truly concerned about the environment of the First Nations, why did it not negotiate self-government with the First Nations in good faith, so that they could then have exercised full jurisdiction over environmental matters, rather than talking nonsense and telling us that this shows the federal government is flexible and is giving the Aboriginal nations the power to protect their environment? Giving powers to a third order of government—in other words, describing the powers of a third order of government with respect to environmental protection—means stating in an agreement negotiated nation-to-nation that in future, because of the need to respect the inherent right of self-government of Aboriginal nations, these nations will exercise full jurisdiction over environmental matters on their lands.

So, I certainly don't want to hear the government say that by presenting an amendment like this, it is showing its concern for the ability of Aboriginal nations to exercise their jurisdiction with respect to environmental protection, and that by doing this, we are meeting their primary concern.

I think we have to be careful here. If this is deliberate, then it seems to me to be an awkward, unfortunate way of presenting things. If it is not deliberate, that is another matter altogether. If the government is not deliberately presenting things in this way and claiming, under the guise of serious arguments, that this is what it wants to do, then we are facing an even deeper problem : a total lack of understanding of what Aboriginal nations want and have the power to do in light of their inherent right of self-government, as confirmed by every court ruling handed down in the last 20 years.

Á (1125)

So, if the government is saying that Aboriginal nations have certain powers with respect to environmental stewardship, then what we should be saying in this Bill is that the Aboriginal nations have full jurisdiction over every aspect of environmental protection.

If we really want to give them the opportunity for self-government with respect to their economic development… First of all, we are not actually giving them anything here, but if we do want them to be self-governing in terms of economic development, then what we have to do is set out, in a nation-to-nation agreement, that they have full jurisdiction over their economic development on their sovereign territory.

They say these nations have jurisdiction and that they're concerned about Aboriginal culture. Well, if that's true, that means their jurisdiction over matters of culture, as a third order of government, must be full jurisdiction, meaning that they must exercise full powers in their territory and even outside, in the international arena, when it comes to extending those internal powers to promote their culture. Gérin-Lajoie's theory of several years ago with respect to the extension of internal powers holds just as true for the Quebec nation as for Aboriginal nations. If they have full jurisdiction over their culture internally, because they have a recognized right of self-government, they can exercise that jurisdiction in their areas of responsibility outside as well, to promote their own culture, what they stand for as a people, and their language, which is a spiritual language that is beautiful to hear and is a treasure for all nations, not just something that should be set aside because the official languages of Canada are French and English. Aboriginal languages are beautiful and constitute a cultural treasure.

If we really want to give them certain powers—in actual fact, there is no reason to give them anything; they already have the power—but if we really want to allow them to exercise their inherent right of self-government with respect to family matters, we should be enshrining in a treaty duly negotiated between sovereign nations that they have full jurisdiction over family policy in the territory where they exercise their right to self-government. That is the only possible solution, the only way that we will be able to claim to have real self-government agreements and truly respect the dignity of the Aboriginal nations.

If we're also saying they will have powers over transportation, the agreement must state that Aboriginal nations have full jurisdiction over transportation and that they can sign agreements with Canada, the United States and others dealing with the right-of-way and transportation over their territory. That is their right. If we give them back the land they're claiming and they have full jurisdiction over transportation, they will exercise their jurisdiction without asking the federal government's permission. That is the whole basis for the exercise of the inherent right of self-government.

If, according to what you say, we have to cede certain powers to them, when in actual fact we are not ceding any power whatsoever, since they already have those powers, then those powers have to be recognized now. If we're going to deal with the power of Aboriginal nations to deal with youth development in their area of jurisdiction, which is a total disaster, because this has been left up to the federal government…

[English]

The Chair: Thank you, Mr. Loubier.

Is there anyone else?

Mr. Martin.

Á (1130)

Mr. Pat Martin: Mr. Chair, I thank my friend Mr. Loubier for his comments. He has a succinct way of grasping the larger picture in this issue and he uses such an economy of words, too. It's a pleasure seeing somebody be able to render complex, abstract arguments and thoughts into a relatively short presentation that does capture many of the issues this legislation fails to capture and fails to address.

The Chair: Mr. Martin, I haven't interjected often, but I also would like to compliment the translators, because those are the words you hear.

Mr. Pat Martin: That's a very good observation, Mr. Chair. Thank you, you're right. There should be some awards given perhaps to translators faced with the unhappy task of trying to keep up with this committee.

Mr. Chairman, I have tried to express my dissatisfaction with clause 16. We tried to move what we thought were meaningful amendments that would be helpful amendments to address some of the many concerns we've heard from first nations presentations. I'm disappointed that the government would see fit to vote against any of the constructive and meaningful amendments we've brought forward, but yet bring forward more amendments of their own in clause 16.

They are not suggesting clause 16 doesn't need amendment and review; they're simply saying it should be what they think that goes into the bill, not what anybody else thinks. It really is becoming such a one-sided exercise, Mr. Chairman, that it's become frustrating for me, as a member of Parliament and as a representative, to even participate any further with this exercise in futility.

It seems the government members have their marching orders. They've been told what they are supposed to be doing. The government-side members of Parliament are not willing to listen to reason, or even listen to the input from the very people they are duty-bound to represent and be faithful to. As much as I regret that my views are not being valued by the committee, I particularly resent that the views of the many people who have taken the trouble to come here are not being valued by this committee or accommodated in any way.

[Applause]

Mr. Pat Martin: We have people here today who were here late into the night last night and were back here at eight o'clock this morning. One individual I met recently hitchhiked for nine hours to come here to participate, at his own expense and is still here in the hope and the optimism that by his presence here he will be able to make his views known and that his views will be accommodated in some way by this committee.

Imagine how disappointing that is, when someone participates in what they thought was their avenue of recourse, their opportunity to participate in the process, only to be blindsided and stonewalled at every turn by a stubborn government operating on an agenda that has nothing to do with honouring self-governance or recognizing and acknowledging the inherent rights of aboriginal people to govern themselves.

People have pointed out to me that if the government wants to speak about the disposal of waste, first nations wouldn't dare dispose of Bill C-7 on reserve land because it's toxic. They wouldn't want to dump toxic waste on their own home communities. That's been the reaction to Bill C-7 right across the country. It's become a rallying point, in fact.

If anything, this bill has awakened a sleeping giant of discontent and a unanimity and a consensus unlike anything we've since the 1969 white paper. It's developed a level of rancour and animosity that, once unleashed, I'm not sure we're going to be able to contain in any way such that meaningful dialogue will be possible for many, many years to come.

I caution members of this committee. History has shown us that once this damage is done it takes a generation before things ever get back on track in terms of moving forward in a meaningful way towards the emancipation of aboriginal people, which surely should be our ultimate goal here.

So knowing what we know now, the only responsible thing to do would be to cease even trying to amend this bill and simply withdraw the bill. Cancel the bill. Stop it in its tracks. Don't waste another taxpayer's dollar trying to implement these changes that nobody wants. People have spoken vehemently against them. As a secondary problem, these changes will cost hundreds and hundreds of millions of dollars--and will waste them. You might as well flush that money down the toilet, because it's not going to buy any product.

Again, I'm disappointed that the only amendment I have to look at that I suppose is going to succeed on clause 16 will be the amendment put by the government side. They have this whole process stacked in a way that's similar to how they're stacking the bill itself, where the minister will win at all costs because he's the one who wrote the rules of this particular game and process.

Á (1135)

Unfortunately, it was made abundantly clear to me a long time ago that there's very little hope in using reason or logic in this debate, trying to reason with the government side and trying to craft a bill that really does address the needs, hopes, and aspirations of the people in the communities.

We went into this exercise with some hope and optimism, and even in fact with good faith. I've told some members of the Liberal side of this committee that when the minister first stood up in the House of Commons to table this bill I rose in response to the minister's statement and said that I welcomed the opportunity to participate fully. I spoke to him privately even afterwards, saying that this was something I really looked forward to because it's an issue I have great interest in. I looked forward to the idea that we may be amending the Indian Act.

At that time we hadn't seen this bill. Imagine our disappointment, and imagine the disappointment in Indian country. For the first time in a generation, the bill gets opened up and this is what we have to deal with--not the issues of substance they say they want addressed, but issues that are not even remotely priority issues for first nations people. They don't even show up on the radar screen.

Now the best minds on the government's side have been getting their heads around what's wrong with this bill. We were also given the assurance, if you will, that because the bill is coming to us at first reading, we would be able to entertain serious amendments. Well, the best minds on the government side, having gotten their minds around what's lacking in the bill, have only been able to come up with this minor, inconsequential detail in clause 16. It has nothing to do with the many major irritants of the bill that we've tried to identify, and that 191 witnesses pointed out clearly.

They're tinkering with minutia, with insignificant, minute details. Not to trivialize the matter entirely, I'm sure the disposal of waste on reserve lands is an issue of importance, but it pales in comparison to the issues of priority brought before the committee, not only by the many witnesses, but by ourselves as opposition members.

We're frustrated that clause 16 doesn't include issues of substance, such as education and justice, even though we know there are interesting developments going on all across the country. In my own home province of Manitoba, we had the exhaustive aboriginal justice inquiry stemming from the murder of J.J. Harper, and then the murder of Helen Betty Osbourne, cases that decent people could no longer ignore, stand by and not act upon.

The province pulled itself together and did an exhaustive study on how unfair the justice system is in its treatment of aboriginal people. It made a great number of intelligent recommendations, some of which are now being implemented by the newly elected NDP government in that province.

But this bill fails to recognize all of that progress going on, and then clearly fails to acknowledge that the homegrown solutions to justice issues need to be recognized, supported, and developed. Surely it needs to be acknowledged that these should be in the list of law-making powers jurisdiction in clause 16.

I remember when I lived in the Yukon, some of the first experiments on this issue were with the first magistrate of the Yukon, Edith Josie from Old Crow.

The Chair: I'm afraid we won't hear about your life in the Yukon. Thank you.

Mr. Hubbard, closing remarks.

Á (1140)

Mr. Charles Hubbard: Very briefly, Mr. Chair, I was waiting to hear in the honourable member's presentation whether or not he favoured this amendment.

The Chair: Do you wish us to suspend? If you wish to continue despite the noise, we can do that.

Mr. Charles Hubbard: I think we probably should continue.

After listening for ten minutes to find out, I'm still not sure whether or not he favours this amendment, which gives protection to first nations lands. I think we can find out, though, when the vote is called. Mr. Chair, I suggest you call it.

The Chair: Are you ready for the vote by a show of hands?

(Amendment agreed to)

The Chair: Shall clause 16 as amended carry?

[Translation]

Mr. Yvan Loubier: Excuse me, I have a point of order.

The Chair: On a point of order.

Mr. Yvan Loubier: When you only say things in English, and say them quickly, what happens is that before I hear the interpretation in French, you've already gone ahead. I had not even heard the interpretation in French when you called the vote. That is simply unacceptable. I would therefore ask you to proceed slowly so that as a Francophone, I can exercise my right to request a recorded vote. You have already done this to me a few times; I won't let you do it to me again.

[English]

The Chair: Mr. Loubier, I do allow time, but, out of courtesy, I am getting a message that the other members are willing to do a recorded vote. We will do a recorded vote. Before we do--

[Translation]

Mr. Yvan Loubier: I still have a point of order, Mr. Chairman. You have just told me, a Francophone, that it is a waste of time translating into French what you say in English. Is that what you are saying? You are denying me my rights.

[English]

The Chair: Cut his microphone, please. We will have a recorded vote.

Voices: Shame! Shame!

The Chair: This will be a recorded vote on clause 16 as amended.

(Clause 16 as amended agreed to: yeas 7; nays 2)

The Chair: Mr. Hubbard, do you have a point of order?

Mr. Charles Hubbard: I move that the committee agree that we suspend today after we complete our discussion on clause 17.

The Chair: I have a motion that we adjourn after we complete clause 17.

(Motion agreed to)

(On clause 17--Laws for band purposes)

The Chair: Amendment BQ-32. Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: With this amendment, I am trying to do what I tried to do with all the other amendments I have moved since we began clause-by-clause consideration of this Bill that Members on the opposite side of the House say they want to improve, but I am realizing that even when we propose considerable improvements, the Liberals just don't get it. Their ears appear to be completely blocked and they can't see any farther than the tip of their nose, since they always vote against substantive motions that we bring forward for the specific purpose of improving this Bill. On the one hand, they say they want to improve it, but when we present amendments to do that, they never accept any of them.

What I'm trying to do with this amendment is include recognition, in the actual body of the text of Bill C-7, for the first foundation of Aboriginal self-government, which is the inherent Aboriginal right of self-government and everything that flows from it. Nowhere in the body of this legislation, in any place other than in the preamble, is there recognition of the inherent Aboriginal right of self-government. Indeed, had we recognized that inherent right of self-government in the clauses of the Bill, we would have been the first to say that what we should be ceding and assigning are not half-powers, but full powers that are devolved to a third order of government, rather than attempting to turn First Nations into municipalities, which is what the government is trying to do with Bill C-7.

Earlier, I heard certain colleagues say that further on…

Á (1145)

[English]

The Chair: Mr. Loubier, do you wish to continue with all the noise, or would you prefer that we suspend until we have quiet?

[Translation]

Mr. Yvan Loubier: Yes, of course I want to continue.

[English]

The Chair: If you want to continue with all the noise, please continue.

[Translation]

Mr. Yvan Loubier: No, Mr. Chairman, I don't want to continue with all the noise; I want to continue when people can understand what I'm saying.

[English]

The Chair: Could I ask the people in the audience to respect Mr. Loubier while he is speaking? I understand he is a relative now. We can give him that courtesy.

[Translation]

Mr. Yvan Loubier: You see, we can sometimes have fun in committee. We don't spend all our time fighting.

Earlier, as I listened with one ear, I heard someone say that further on, we would see that some real powers are being devolved to a third order of government are not half-powers. So, here we are at clause 17, and when I look at the powers listed here, I am thinking that the protection and conservation of resources is starting to sound like environmental protection and the protection of the territorial resources of Aboriginal nations.

And, as I look at each of the items not only am I surprised as I look at what is listed, but I have an even greater surprise at the end, where it says, once again, that federal laws or acts of Parliament will prevail over any legislation that might be adopted in the independent territory over which First Nations exercise their inherent right of self-government. So, there is a snag here. The snag is that if that legislation is not consistent with federal legislation, once again, the federal law will prevail. So, as a general rule, whatever powers might be ceded or assigned to them, the federal government will always have the last word. So, from start to finish, it's the federal government that will be managing the legislative process.

If the First Nations, who are considered to have an inherent right of self-government, intend to make certain laws because that is the wish of First Nations members living in that territory, then the federal government will clearly have to be consulted to ensure that there are no federal acts of Parliament on the books that may run counter to what the First Nations want. That is where we hit the snag. You can't give full self-government or recognize the inherent right of self-government, and at the same time say that whatever laws they make have to be consistent with our laws and our vision, consistent with what we introduce in different areas of responsibility, such as the protection of natural resources, transportation and so on.

The second major problem that we come up against in supposedly wanting to give law-making powers in certain areas… I'll give you just one example. Sub-paragraph 19(1)(a) says :

17.(1) The council of a band may make laws for band purposes in relation to

(a) the protection and conservation of natural resources within the band's reserve and the disposition for personal and commercial use of those resources,

Then listen to what it says after that :

… other than wildlife, fish or resources that can only be disposed of pursuant to a surrender under the Indian Act…

So, basically, we give them something and then proceed to take that something away in the lines that follow. We tell them there are exceptions for wildlife and fish. In terms of traditional activities, as we saw in the negotiations with the Innu, if you take away the sovereignty of Aboriginal nations over lands where they hunt and fish, what are you leaving them in the way of sovereignty, in terms of their ability to engage in their traditional Aboriginal practices?

And here is another example. In sub-paragraph 17(1)(c), it says “the council of a band may make laws for band purposes in relation to

Once again, if the First Nations had waited for the federal government to get involved in order to protect their language and culture, they would have lost everything a long time ago. They would have lost everything right away. But that is not the worst of it. To make matters worse, the preservation of the band's culture and language is subject to sub-clause 17(2), where it says, at the end :

(2) In the event of a conflict between a law made under this section and an Act of Parliament or any regulations made under this Act or the Indian Act, the Act or the regulations prevail to the extent of the conflict.

What does that mean? It means that even if a First Nation makes laws to preserve its language and culture, whatever they do has to be consistent with federal laws because otherwise, it cannot exercise its prerogative to preserve its culture.

But there is yet another problem with that particular clause, which relates to the fact that at the beginning of clause 17, there is no recognition of the inherent right of self-government, which is essential to any understanding and to everything that flows from it in terms of negotiations, powers, and the exercise of those powers by First Nations as a result of that right. And that does not apply only to the preservation of the band's language and culture. As I mentioned earlier, any language and culture—and especially the culture of the Aboriginal nations—should not only be preserved, but the rest of the world should learn about it because it is an incredible treasure that must not be lost to humanity.

Á (1150)

For years, there has been a debate internationally about cultural diversity. People have been saying that with market globalization, we are losing international cultural identities, and now, because of this kind of obstructive measure relating to the promotion of Aboriginal language and culture internationally, the First Nations are to be deprived of the power to preserve their language and culture, something they have struggled to do because they had no help whatsoever from the federal government. On the contrary, they were put down so that they would just forget their language and culture and fit into a European-type mold. That's what the government has been doing with the Indian Act for the last 130 years.

And on top of that, the government says it's being generous, because now we're going to let the First Nations make laws to preserve their language and culture. But there is nothing generous about it. And what is really ungenerous on the part of the government, is that it is not being smart, not using some of those neurons the Creator gave us to consider the fact that preservation must include the promotion of Aboriginal languages and culture in the international arena.

But that shouldn't just be done through a regulation of some sort that has to be consistent with federal laws. The laws I'm talking about have to be completely independent and worthy of a third order of government.

But it seems to me that it would be quite simple to be intellectually generous. I don't mean generous with the powers that we assign them, because the fact is, we have no need to be generous in that respect. The Aboriginal nations already have powers related to their inherent right of self-government, a right recognized by many courts of law, including the Supreme Court of Canada. The Supreme Court ruled in favour of respecting the inherent right of self-government. The United Nations demanded of the federal government that it allow First Nations to exercise their inherent right of self-government. This has been going on for years. The Canadian government was even denounced many times for not respecting the premises and specific clauses of the International Bill of Human Rights.

When is the government going to stop violating these rights and freedoms, when we have elected representatives in the federal Parliament, like the Prime Minister, who go around promoting international peace? How can we promote peace and freedom when inside our own country, we are being denounced time and again by international organizations, by the Council of Europe as well, because we can't even do what is needed to allow a right recognized by the courts to be exercised, namely the inherent right of self-government given the First Nations by the Creator?

At some point, is someone going to manage to convince you to start listening and get a handle on this basic analysis, which is really not that difficult to grasp? It's a matter of respecting people's rights, freedoms and dignity.

Furthermore, it is absolutely disgraceful—I said this last night and I'll say it again—that I should be here, instead of them, trying to defend the inherent right of self-government of the First Nations, trying to express, acting as their spokesperson, their concerns and indignation, and explaining what they think. I am ashamed to be doing that, because they are the ones that should be sitting here doing that.

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

Mr. Pat Martin: It's my turn again so soon. How nice.

Thank you, Mr. Chair, for my opportunity to speak again to this bill.

And thank you to my brother from the Bloc for his hard work on this issue. Mr. Loubier has been very diligent in his efforts to try to improve this bill. I notice that this is the 32nd amendment that the Bloc Québécois has moved on this bill, and many of them are issues of great substance and issues of great policy, in principle.

We believe that this clause 17 speaks to the fundamental principles of the bill. Again, the intent of referring this bill to the committee at first reading was for us to consider the principles of the bill. It should be open and flexible for us to be making recommendations that do set the tone of the bill and speak to the fundamental basic principles that we wish to be addressed in this bill.

So I think it's appropriate that in the first line, at the very beginning of this clause, Mr. Loubier suggests that we should be adding language to the effect of what he proposes here. He says that “the existing inherent aboriginal right of self-government includes legislative authority for band purposes in relation to”...and then it proceeds, of course, in the current clause to list some of those areas where the aboriginal right to self-government will be recognized and authorized.

The difference in the language between what Mr. Loubier proposes and what the bill itself suggests is that the bill suggests that the first line of clause 17 should simply say “The council of a band may make laws for band purposes...”. Well, we've learned, I think, in the maturing of our view of these issues that even terms like “band in council” are frankly constructs of the Indian Act. It doesn't reflect nations, exactly. It doesn't reflect the cultural sensitivity to the fact that a band in council is something that was manufactured by the Indian Act, by a European concept of what this structure should be in communities that didn't exist before contact.

The sensitivity that Mr. Loubier brings to this debate is to make the argument that we should be, wherever possible throughout this bill, making reference to the existing inherent aboriginal rights in a way to reaffirm those rights so that there can be no doubt about the intent and the background of the way these issues are being addressed.

Mr. Chair, I'm most interested in dealing with these larger issues of principle. Perhaps you can call them the abstract principles associated with this bill, because frankly the minutiae, the details, the prescriptive aspects of the bill are the very things that so offend the first nations that have made representation to us.

There are glaring oversights and glaring omissions in some of the language. Although we keep hearing that there's no such thing as accidents in terms of writing language for legislation, it seems to me an oversight or an omission on the part of the drafters of this language to fail to include any reference to the inherent aboriginal rights of self-government, if for no other reason than to give comfort to those who are affected by the bill that we are aware that those rights do exist.

There are the guests we have here today and the hundreds of thousands of first nations people who must think sometimes that we're not aware of those sensitivities. If a government can be judged by its actions, its actions would indicate that it has no willingness to acknowledge these basic principles, because actions speak louder than words.

So no matter how flowery the preamble may be of a piece of legislation, it's the execution of the legislation and the end result and the evidence, the actual experience of the legislation that must be measured if we're going to measure its success or its failure.

Á (1155)

I would argue that the Indian Act itself and its administration have been an abject failure. By whatever social or economic measurement you use, the Indian Act has been nothing but a tragic social failure. I see the evidence in the over-representation of aboriginal people in prisons, and in the birth weight of aboriginal children in the inner city area of Winnipeg, where I live. All of these are indicators of the key determinants of the health and well-being and social conditions of first nations.

When we choose language such as that put forward by Mr. Loubier, we are doing the courtesy to first nations people of providing some comfort that, at least on this side, it is not our intention to ignore, bypass, or seek to infringe upon the inherent right to self-government. In fact, we will state and restate in this bill, over and over if necessary, that we will not tolerate the infringement or extinguishment of first nations rights. If necessary, we'll keep saying this on into the night again as this closet filibuster proceeds.

We're not alone. Courage is shown by the first nations people who have come here to bear witness to these events and to this tribunal, who came here under great difficulty and adversity in many cases. I use as an example my friend from the Manitoulin Island region who had to hitchhike here to attend, because funds simply weren't available for them to have a representative observing. Even though it's a community of 6,000 people he represents, they found it necessary to thumb down here to observe, in this palatial setting, to sit here in this palace that is the House of Commons, to witness what this tribunal is undertaking and the effect it may have on the lives of his people back home.

He will be taking back a report to those 6,000 individuals. As a councillor for that community, he will report what's happening at this committee. I can't write that report for him and I can't predict what will be in that report, but I have a pretty good feeling what he's going to say in terms of the attitude he's seen in our treatment of these very sensitive issues.

I welcome the participation of observers here, because if I went out from this room and had to address a group in a first nations community, I would have a hard time explaining and justifying my participation on this committee. Because when the dust settles and this bill--whether it passes or not remains to be seen--becomes law, and people see my name associated with it, I want to make it abundantly clear from the words--and I want witnesses to attest to the fact--that I want nothing to do with this bill in its current form. That's for the record.

The parliamentary secretary has accused me of doing everything I can to stop the bill. Well, he's right--we will. With every legal and procedural means we have available to us we will seek to either defeat this bill or substantially address every aspect that irritates us, because that's our job. So if he said that to me in an accusatory fashion, that I'm somehow disrupting Parliament, all I'm disrupting, perhaps, is their agenda and their schedule for imposing this bill. I reserve my right to do so, and I think I speak for a broad constituency, a broader constituency even than the parliamentary secretary represents.

So I don't apologize, Mr. Chairman, for pointing out the shortcomings of this bill. I certainly support the efforts of my colleague from the Bloc Québécois in trying to introduce to this bill language that accurately reflects what Canada's relationship should be with its first nations if we are to move beyond this cycle of chronic, long-term poverty to a model of independence, self-sufficiency, and self-government.

Â (1200)

In that context, Mr. Chairman, we can't deal with true independence and breaking the cycle of poverty without dealing with issues of land and resources, and management of those resources. Now, this is--

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

Â (1205)

[Translation]

Mr. Yvan Loubier: For 51 hours now, we have been talking about this Bill and considering it clause-by-clause. And yet I can't really say that we have made much progress as far as that debate goes.

Our first task, as parliamentarians, is to have a thorough debate about a bill, an issue or a clause so that, through the clash of ideas, we can develop a better piece of legislation, with the best possible provisions, so as to better serve the people we claim to want to serve well.

And yet, after 51 hours of debate, practically no substantive proposal put forward by the opposition, and intended to improve the content of various clauses of this Bill, has been passed by the Liberal majority. What is worse is that over 51 hours of debate, Liberal Members have made very few comments. And here I refer to comments regarding substantive arguments we have made in defense of our proposals aimed at improving the Bill.

As I consider how the debate has evolved, three conclusions come to mind. First, there is no desire to make any substantial change to this Bill, introduced by Robert Nault and defended by the Liberal Members sitting here today, despite the hearings we held across the country and our consideration of the briefs presented by witnesses.

Second, in spite of their role as responsible parliamentarians who are asked to engage in debate and bring that debate to a close having retained the best possible solution, the Liberals are not in fact interested in debate.

Third, I must conclude that there is deliberate lack of good will on the part of the Liberal government when it comes to really satisfying the needs of the First Nations and moving on to the next stage, which is to act on the findings of the Royal Commission on Aboriginal Peoples.

They claim to respect the inherent right of self-government and various articles of the Constitution, but when it comes to addressing specific points and provisions of Bill C-7, points that go to the heart of the legislation, it becomes perfectly clear that nothing here will make it possible to respect the inherent right of self-government. And yet, we had every reason to expect that that right would be respected, particularly since 1997 when the Royal Commission of Inquiry tabled its findings. It is important to remember that that Royal Commission had seven members : four Aboriginal and three non-Aboriginal members.

Given that there was a consensus around the Royal Commission's Report, to come forward now with this disgraceful Bill that should immediately be burnt in effigy, in order to teach the government that this is exactly what it shouldn't be doing… Bill C-7 is nothing but a complicated, convoluted revisitation of the vassalage imposed under the Indian Act 130 years ago.

It seems to me we have gone a lot further than that. Reference is often made to the government's recognition of the First Nations inherent right of self-government, and we are told it is in the Bill. But where is it in the Bill? In the preamble. Listen, we weren't born yesterday. We are lawmakers. In the event we had to go to court about this Bill, I think it's important to point out that the courts do sometimes look at the preamble to determine what the lawmaker's real intent was. However, if the intent is clearly stated in the Bill itself, and the direction the federal government wants to take with respect to each of the issues addressed in the 17 clauses of the Bill that we have been considering for the last 51 hours is really clearly laid out in the Bill itself, and if that Bill contains no ambiguity or grey areas, the courts will not look at the preamble.

Â (1210)

And yet, it is a lyric preamble, because it says that the government recognizes the inherent right of self-government as being a goal to be attained at some point, but at the same time, it says that the Bill is not a vehicle for resolving problems, and that its purpose is not to resolve the matter of Aboriginal self-government through negotiation. So why, in that case, do we have this lyric preamble that recognizes that inherent right of self-government, when we are being told at the same time that the purpose of this Bill is not to initiate and finalize self-government agreements with the First Nations? That's a pretty outrageous assertion, particularly when you refer back to the preamble.

It seems to me we have no need to demonstrate that the inherent right of self-government must lead to something other than the assignment of certain legislative practices that the federal government is willing to turn over to the Aboriginal nations, in a surge of incredible generosity. The right of self-government is something other than that. The inherent right of self-government means, first of all, accepting the idea that we have nothing to say about the inherent right of self-government, that Aboriginal nations have that right of self-determination, that Aboriginal nations have the right to form a government, this being a right recognized not only by the Constitution, but by many court rulings, by the United Nations, and by other national and international organizations in different countries of the world. That is what we must do. We must respect the dignity of the Aboriginal nations and allow them to take their future into their own hands. However, the only way they can do that is with dignity and by exercising their own right of self-determination—not through bills such as this, that are completely ridiculous, that don't allow any progress whatsoever, but simply make a complete mess of the relationship between the federal government and the First Nations.

I have never felt so much aggressiveness among the First Nations and as much of a desire to do something other than deal with the ridiculous provisions we see in a Bill like C-7, when there are 500 land claims still outstanding as we speak. Another 500 will be added to that number over the next two years, and yet the federal government has the nerve to say, even in the preamble, that this is not intended to resolve those land claims or deal in any way with self-government negotiations.

You can only go so far when it comes to taking people for fools, and, in this case, imagining that the First Nations people don't understand what you are trying to do here. You are in the process of usurping their rights; that's what you're doing.

So, for once, show at least a little good will, and make a symbolic gesture : accept my proposal to recognize the right of self-government in the body of the legislation itself. Your failure to do that will simply confirm that you are prepared to talk about the inherent right of self-government—it looks good, very good, particularly since the Prime Minister is a former Minister of Indian Affairs—but that you are not in fact prepared, for example, to take concrete action and realize the many initiatives that the Erasmus-Dussault Commission recommended be taken over the next 20 years, in order to build and even rebuild the Aboriginal nations, and allow them to give concrete expression to that right of self-government, all of which leads us back to the inherent right of self-government, that date with history that you don't ever want to keep. And if you don't want to keep that date with history despite the consensus achieved five years ago with Erasmus-Dussault, it's because you are completely irresponsible when you present the sort of thing you are presenting today.

You will also have to answer for your actions in the history books. I get the feeling that doesn't really bother you much, since you already bear the burden of history and have to deal with the unpleasant truth of having enforced the Indian Act for decades. But this doesn't seem to have caused you to lose much sleep. On the contrary, you seem to be completely indifferent to that. So, if the weight of past history does not cramp your style, I guess we can assume that the history being written now won't either. That's really too bad.

So, tell me that I'm wrong; tell me that that is not the way it is and vote in favour of this amendment, as proof of your good will.

The Chair: Thank you, Mr. Loubier.

Â (1215)

[English]

We'll go directly to the vote. We have a recorded vote on amendment BQ-32, page 135.

(Amendment negatived: yeas 2; nays 8)

The Chair: We'll now go to amendment G-7.1 Mr. Hubbard.

Voices: Shame!

The Chair: Mr. Hubbard, do you wish us to suspend?

Mr. Charles Hubbard: I think we should, until we get order.

The Chair: I will suspend until I'm comfortable that we can regain order in the room.

Â (1215)

Â (1217)

The Chair: It being nice and quiet in the room, we'll ask Mr. Hubbard to resume.

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

In amendment G-7 we have another technical amendment, and again we give credit to Mr. Jim Aldridge, who suggested that to our committee a few weeks back. He pointed out that in clause 17 it was somewhat redundant to state “The council of a band may make laws for band purposes in relation to”. He said the best solution was to write it, “The council of a band may make laws in relation to”.

We've heard a good amount of debate this morning, and it would appear that some members would like to maintain the Indian Act of 1876. We'd like to point out to the honourable members opposite that in 1876 Canada was a very young nation. In fact, it was only a few years after the four provinces had been put together, and at that point in time the province of Prince Edward Island had joined the federation, and the province of Manitoba in 1870, of course, and with the general consent that a railway would be built across the west, the province of British Columbia.

It was interesting to note that one of the first premiers of British Columbia was a young man from Nova Scotia who in B.C. called himself Amor De Cosmos, a very fancy name for a person bringing British Columbia into Confederation, but he just had a very plain name from Nova Scotia when they later found out what his real name was.

In 1876, of course, Canada had just purchased Rupert's Land from the Hudson's Bay Company, and with it there was a problem in terms of what the face of the great nation of Canada would look like. It was 136 or 137 years ago that our parliamentarians here in Ottawa drafted a bill, an act that became the Indian Act of 1876, and with it we had a much different country. Railways were crossing the west. The great migration of people westward had not yet begun, for example, in terms of the great period when Laurier opened up that great western area to agriculture.

We find, of course, that with the movement of Europeans into the west, there were relationships that developed in terms of treaties between different groups across the country. But I am amazed that some of our members opposite would want us to continue to have people in those territories and across this great nation, some of the first people, the indigenous people of Canada, the first people that Europeans met...that they would want to impose and continue to impose an act that was written before we had electricity, before we had cars, before we had televisions, before we had all these modern things--in fact, before Canada became a great world power.

When we listen to their discourse, we do acknowledge that the Indian Act has been amended at times since 1876, but in terms of the opportunity to make changes, to enable us to provide better relationships among our peoples in this country, we have before us today a bill called Bill C-7, and we're hoping that all of us can work together as parliamentarians. We have heard the consultations across the country, and we are proposing here today to improve the original drafting that was done by the justice department, in consultation with DIAND. We have a tremendous opportunity, a tremendous challenge as parliamentarians to bring back to the House of Commons at report stage significant improvements to the bill that was introduced last June and reintroduced in October.

With that, I want to propose and endorse amendment G-7.1. I know we'll have considerable support for that, because we just did a similar one in a previous clause, and I suggest that you have the vote on that as soon as possible.

Thank you.

Â (1220)

The Chair: Thank you, Mr. Hubbard.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): I must admit I'm surprised at the parliamentary secretary's suggestion that we've had an open consultation process here, when in fact just the opposite is true. It's quite obvious that the group in the audience would not agree with that assessment whatsoever.

It goes back to the very beginning, when we attempted, first of all, as we have done historically in other circumstances, in other committees, to bring people onto the committee to assist the committee in its deliberations--in this case, asking for specific representation from the first nations community. That was rejected out of hand, in spite of, at that time, Mr. Martin's extensive argument and rationale. There was no consideration whatsoever given to that.

So when I hear, well, maybe we could get some positive response from some of the opposition parties, we didn't get it then, and we quite frankly feel--and you've heard this argument again from both Mr. Martin and Mr. Loubier--that we're very uncomfortable in terms of our fiduciary position here. The consultation process has been grossly inadequate.

One of the examples certainly was the one I've just given with regard to not having the representation of people sitting here who would be able to participate, who would be able to provide us with first-hand responses, as opposed to seeing this coming down from above from a culture and a society that in many respects is alien to the culture and society that should be sitting here at this table assisting us in this process.

You're not going to get any argument from this side of the table on the need to deal with changes to the Indian Act. I can remember sitting in law school back in 1969, my first year of law school, and having a conference, with very strong arguments from all sides of the political spectrum about the need to change the Indian Act, to change the name of it, if nothing else. So there are no arguments about where we're at historically, where we've been at arguably for the better part of the past century, the need to recognize that the foundation for the Indian Act is very severely flawed. There's no dispute over that. But the process here is one that we simply cannot accept.

So you can't expect that we're going to provide you with support on even an amendment that is as technical as this one is. It's just not going to happen.

Again, when we attempted, and Mr. Martin in particular attempted to try to deal with the process to make it more transparent, to expect the response from the committee that we got, to say to this committee and the government members on this side of the committee, and I include the chair in this...you cannot expect that we're going to allow you and cooperate in any way when you in effect have broken conventions that have stood in this House for most committees for the better part of fifty years, since the Second World War.

When you have no way of dealing with that and you say to us that you're going to cut off debate, I find that at a personal level, as a member of Parliament, so offensive. It's not the first time it has happened with the committee.

I don't know if the government members appreciate just how significant the impact has been of what you did a few weeks ago in cutting off that debate. I sit on other committees. I don't get treated that way as a member of the opposition. This committee has broken a number of those conventions.

It's quite clear to me that when I came here there were certain rules we abided by. They weren't written down. They weren't binding in the sense of being enforceable, but we had sort of all agreed on that and we were going to live that way as government members and members of the opposition. We had a right to expect that on both sides of the table. You broke that.

Â (1225)

So this is to say to the parliamentary secretary, if you expect any cooperation, you're just not going to get it. What we basically need to do is pull this bill and start all over again. If you wanted to do that, we probably would have some basis of discussion.

I'm just going to spend another minute on this issue of convention. We've raised it in our party, and I believe Mr. Loubier has as well. We're not going to let it lie here. Whether we take it up in the process of trying to reform the House, and get what that is going to require.... Again, I don't know if the government members appreciate this. We are going to somehow work this out. What happened here cannot happen again.

Either we're going to live by the conventions this House has evolved--I shouldn't say just this House, as they have evolved in houses in the Commonwealth, specifically in England--and not use individual cases to breach those conventions, or we're going to say they're no longer conventions, they're now going to be formal rules of the House, and all parties, all governments--this and all subsequent governments--are going to have to live by basic rules. We cannot function in a democracy unless we do that.

So we're going to, as a party, look for every mechanism we can find to see to it that either these conventions are honoured, and enforced when breached, or we're going to have to convert those into standing rules in the House so that democracy can function in a meaningful way here.

Going back specifically to this particular amendment, Mr. Chair, it is a technical amendment. When you look at what is being proposed overall in clause 17, it simply is, again, a foreign government saying to the first nations, this is what we're going to give you. We're not recognizing it's inherent; we're simply going to take the position in a very arrogant fashion and say to the first nations, quite frankly, we don't care about consultation, we don't care what your position is--this is what you're going to get, so take it or leave it.

We cannot be part of that type of process. We've signaled that as strongly as we can. We're going to continue to do that. The Bloc, I believe, is going to follow the same process.

So, to the parliamentary secretary, no, you're not going to get that cooperation, unless you withdraw this bill.

Thank you, Mr. Speaker.

Â (1230)

[Translation]

The Chair: Mr. Loubier.

Mr. Yvan Loubier: It really was quite amazing to see how the Parliamentary Secretary introduced this amendment. He said it was to improve things, to do the best we can. Are we improving things with an amendment like this? I wondered about that, so I took a look.

Maybe it reads better in French and in English; in any case, it's shorter. They have removed the words “of a band”. From the very beginning, the government's amendments have been like that. Right from the outset, the government has been proposing amendments that claimed to improve the content of this Bill, when in actual fact their only purpose was to improve the English in some cases, or the French, in others. The only substantive amendment we have seen talked about waste disposal.

And that is no laughing matter. We are supposed to be preparing the ground to negotiate self-government for a third order of government, and to be doing that based on everything we have gathered in the way of experience, analysis and consensual direction, in order to start negotiations with the First nations, and yet the only substantive amendment the Liberal government has presented so far, despite its ridiculous line about wanting to do the best it can, and that the Bill isn't perfect but that the government is continuing to work at improving things, is an amendment dealing with waste management on the reserves.

I'm discouraged, Mr. Chairman. For 51 and a half hours now, we have been discussing this Bill, going through it clause-by-clause and presenting amendments on both sides, and yet in 51 and a half hours of discussion, only one substantive amendment has come forward, and that amendment dealt with waste.

In fact, we should be working towards finding ways of expediting negotiations with Aboriginal nations in order to finally give concrete expression to the inherent right of self-government that the First Nations received from the Creator, and which has also been recognized by the courts, including the Supreme Court of Canada. But instead of that, the government is stuck on such trivial points as whether or not we should remove the word “of the band“ from the language at the beginning of clause 17 of Bill C-7.

At that rate, given the government's preoccupation with such futile considerations, when the time comes to present amendments to improve a Bill that is in fact disgraceful and impossible to improve, that would mean that Mr. Erasmus and Mr. Dussault made a big mistake in 1997, when they said it would take 20 years of initiatives for the Aboriginal nations to realize their inherent right of self-government. Because at that pace, and with that level of comprehension and progressive thought among the Liberals, it will take at least 130 years just to get them to understand that the First Nations' inherent right of self-government is a vested, non-negotiable right, and that we must act quickly to allow it to be exercised.

I don't understand why the government is so determined to keep debating a Bill that has no redeeming features, makes no improvements whatsoever, entrenches practices that most First Nations communities already engage in, in terms of the administration of funds, holding public band council meetings, and managing certain activities. That is already in place in most of these communities.

So, I really cannot understand why there is this determination to confirm the proper management practices of Aboriginal leaders. In fact, that is what the Auditor General said when she last appeared before the Standing Committee on Public Accounts and commented on management within the Department of Indian and Northern Affairs. Her criticisms did not relate to First Nations communities, but rather the Department of Indian and Northern Affairs, which she accused of being ineffective in terms of its management practices and application of the Indian Act.

Â (1235)

In my view, that is where the real problem lies; not with First Nations communities. The Department of Indian Affairs has brought this Bill forward claiming to want to improve things when, in some cases, either economically, socially or politically, those measures are already in place in First Nations communities. However, we are being presented with these proposed clauses, that would have us believe that things are going badly within the band councils, that there is a lack of transparency, and that there are shortcomings in terms of accountability and management. I find that very hard to swallow. The image and vision that come through in Bill C-7 are both inaccurate and utterly offensive.

Now the government says it wants to improve this Bill by introducing a government amendment that demonstrates a profundity not often seen. It is proposing to remove the words “of a band” from the language that appears at the beginning of clause 17 in Bill C-7. What an improvement! Now there is a good way to advance the cause of self-government and the First Nations' economic and social development. That's something that will really improve their system of education, or that will help them to have drinking water on the reserves or to ensure that the inherent rights recognized by the courts can be exercised immediately. All we have to do is remove the words “of a band” from the language at the beginning of clause 17, and Bob's your uncle. That is what the Secretary of State and the government—this is, in fact, a government amendment—are suggesting to improve the living conditions of First Nations.

And we are being asked to pass this amendment, supposedly because this is something substantive that will improve the Bill. Many people appeared before this Committee, and many briefs, which we read, were tabled with this Committee. So this is the government's response to all those people who had the heart to table a well-documented, serious brief with the Committee, presenting specific demands and requirements, and to the almost unanimous criticism that has been levelled at this Bill.

The First Nations told us quite clearly what they wanted. Most of them presented projects or models whereby the inherent right of self-government could be realized. They told us specifically how they see their own government, what powers they require and the direction they want to move in. And yet the supposedly serious response of this government is to withdraw the words “of a band”. That is how this government responds to a major concern that has been expressed by First Nations, who are fundamentally opposed to this Bill.

All we need to do is talk about waste disposal on the reserves, and we will have resolved the matter of the First Nations inherent right of self-government, and of what needs to be done so that the Aboriginal nations of Canada can once again live in dignity. That is what the government is proposing as an improvement to Bill C-7. After all we have heard and read, it is absolutely inconceivable that the government could respond to all the criticisms in this way.

The fundamental and almost unanimous criticisms levelled at this Bill clearly demonstrate that what we should do is scrap it completely and start all over again, this time basing ourselves on nothing else but the Report of the Royal Commission on Aboriginal Peoples.

This is a discouraging situation. I understand the reaction of my colleague, Mr. Martin. Luckily, his NDP colleague, Mr. Comartin, who has tremendous experience with constitutional issues, decided to replace him for a few minutes; and I understand why. For the last 51 hours and 41 minutes, we have been dealing with proposed government amendments that are purely cosmetic. They add nothing to the demonstration, they in no way improve the process of negotiation, they don't make any contribution in terms of dealing with the 500 self-government-related cases that are still outstanding, and they show total disregard for the many problems afflicting First Nations communities with respect to economic development, a land base, education, and even drinking water. It seems inconceivable, but I have discovered that on a number of reserves…

Â (1240)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard, for closing remarks.

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

With the complaints about time, I think we all would acknowledge that the two members opposite take the maximum amount of time allocated for each of their talks. I'm going to take a little bit of time this time, as I did the last time.

It was my understanding last time that several members were attempting to come to some conclusions, in terms of the frivolous amendments that were being placed before the committee. But I'm rather surprised--well, in fact I'm not surprised, Mr. Chair, because the intent has always been there--to acknowledge on the record that the two parties opposite have no intention of supporting this bill and in fact they don't want even to bring it back to the House. That is their position.

With that, Mr. Chair, I would like to mention briefly the purposes of the act. For the record, the purposes of this act are:

a) to provide bands with more effective tools of governance on an interim basis pending the negotiation and implementation of the inherent right of self-government;

b) to enable bands to respond more effectively to their particular needs and aspirations, including the ability to collaborate for certain purposes; and

c) to enable bands to design and implement their own regimes in respect of leadership selection, administration of government and financial management and accountability, while providing rules for those bands that do not choose to do so.

So with this bill, we have an opportunity to enable, to suggest to first nations how they might want to develop codes by which their people can live, by which their bands can operate.

The member, for example, from Manitoba has made various allegations. And I said last night that quite often the facts don't disturb his rhetoric.

In Manitoba, a good number of bands are under third-party management, and if we can suggest methods of accountability, of strong financial management.... The most humiliating fact any chief and band council have to accept is when a third party comes in to manage their resources and to look after the affairs of their first nation.

The purpose of this legislation is to hopefully overcome those difficult situations so many first nations encounter. I'm not saying any government is perfect. As a government, certainly we are not perfect. But we have to work toward the improvement of the methods by which the people are governed.

Every day, every year in the House, we come as parliamentarians here to Ottawa. We improve legislation. We hope to be able to make better methods by which Canadians can live and by which our society may regulate.

So, Mr. Chair, I would like to suggest we've heard their position. We know the position of Canadians. We know, in terms of the consultations that were held across this country, that people want changes. They don't want to live under an act that was written in 1876. They want to be enabled to improve themselves through new legislation, and hopefully, as parliamentarians, that is what we're trying to do here today.

With that, Mr. Chair, to take and spend as much time as we did this morning, in terms of two little words, which were suggested by first nations people to improve this section of the bill, is astounding. We regret we have to go through it, but we are willing to go through it and we're willing to continue our deliberations to make sure we report to the House, where further amendments can be made, for the best possible return at report stage at the end of our second reading.

With that, your vote, Mr. Chair.

The Chair: We'll have a recorded vote on amendment G-7.1, on page 136.

(Amendment agreed to: yeas 8; nays 2)

Â (1245)

The Chair: Do you have a point of order?

Mr. Charles Hubbard: Mr. Chair, I would suggest the members opposite reassess their position, and that we return--

The Chair: That's not a point of order. Do you have a point of order?

Mr. Charles Hubbard: I move that we adjourn until next week.

The Chair: I have a motion to adjourn until next week.

(Motion agreed to)

The Chair: We are adjourned, and we will resume Monday at nine o'clock.