[Recorded by Electronic Apparatus]
Tuesday, March 18, 1997
.0905 
[English]
The Chairman (Mr. Raymond Bonin (Nickel Belt, Lib.)): We'll resume public hearings on Bill C-79, an act to permit certain modifications in the application of the Indian Act to bands that desire them.
We are now in Sudbury, and we'll do a test of sound. Can you hear us in Sudbury?
Mr. Martin Bayer (Tribal Chairman, United Chiefs and Councils of Manitoulin): Yes.
The Chairman: Am I speaking to Chief Martin Bayer?
Mr. Bayer: Not Chief, but Tribal Chairman of the United Chiefs and Councils of Manitoulin.
The Chairman: Okay, thank you very much. Tribal Chief Bayer, thank you very much for coming to Sudbury this morning to share with us your views on Bill C-79.
As you may know by now, we have 40 minutes together. These 40 minutes belong to you; you may use them in whichever way you wish. We would appreciate it if you would allow some time, though, for questions from members.
I'm Ray Bonin, chair of the committee. I'm from the riding of Nickel Belt, which is a belt around the city of Sudbury, so we're from the same area. We have Mr. Claude Bachand from the Bloc Québécois, Mr. Breitkreuz from the Reform Party, and on the way are Mr. Harper and Mr. Murphy from the Liberals.
Having said that, I turn the floor over to you. You may proceed at your leisure.
Mr. Bayer: Thank you very much, Mr. Chair.
I'd like to thank the members of the standing committee on behalf of the chiefs and councils and the United Chiefs and Councils of Manitoulin for the invitation to present our views this morning with respect to Bill C-79.
The United Chiefs and Councils of Manitoulin, or UCCM, is a tribal council representing the rights and interests of six first nations in and around the Manitoulin Island area. These are the West Bay First Nation, the Ojibways of Sucker Creek, the Whitefish River First Nation, the Sheguiandah First Nation, the Sheshegwaning First Nation, and the Anishinabek of Cockburn Island. Our people are the Ojibway, the Adawa, and the Pottowatami.
I realize our time is limited this morning, and my approach will be to focus solely on those specific provisions of Bill C-79, on which I have some comment. Following my presentation, I will be available to answer any questions committee members may have.
I should also qualify my comments this morning by stating that my comments in no way derogate from the position adopted by the United Chiefs and Councils of Manitoulin, which is a rejection of these amendments. However, I do appear this morning to provide some commentary on some of the text of the provisions as contained in the act.
My comments and analysis will begin with a reference to a specific provision or clause number of the amendment. I may read a part of that segment first, just for ease of reference so that committee members will be able to refer to the particular section I'm referring to. Following my comments and analysis.... I've had some helpful suggestions with respect to some of the language in the text of the bill, and I've also offered that.
These are my introductory remarks, and I'll now get into a discussion in relation to the comments I have with respect to the specific text of the bill.
The first provision I'd like to refer to is clause 4 of the bill. Subclause 4(3) begins: ``For greater certainty, nothing in the Indian Act, applied in accordance with this Act,'' etc. In any event, this is the non-derogation subclause. As I've mentioned briefly, it states that nothing in this bill will
- derogate from the protection provided for existing aboriginal or treaty rights...including the
inherent right of self-government, by the recognition and affirmation of those rights in section
35 of the Constitution Act, 1982.
Also, this subclause should be in the specific legislation itself, and not in the preamble.
.0910
Many of the provisions being removed for being paternalistic are arguably a source of a statutorily created fiduciary obligation and duty. These can be detected through the type of phrase I just mentioned; that is, through the insertion of another phrase that would also state that this bill wouldn't derogate from any fiduciary obligation or duty owed to aboriginal people.
As I mentioned, I'll have additional comments on this specific clause later on, but for now, those are the introductory comments to clause 4 of the bill. Those are the comments I have there.
The next clause I'd like to provide some comment on.... Again, I repeat that the only provisions of the bill I'm going to be referring to are those provisions, on which I have some comment. A lot of it seems fine, but there are specific provisions on which I do have some comments. The next one of these is subclause 5(2), the no-opting-out clause.
Essentially this subclause prohibits the minister from deleting the name of a band from the provision of the bill once the band has opted in. I think this is unfair.
First, although characterized by the minister as simply cleaning up the act, these amendments really amount to a substantial revision of the entire existing Indian Act, affecting approximately 60% of the existing Indian Act legislation.
It would not be unreasonable to allow first nations a brief trial period, if you will, in which to familiarize themselves with the mechanics of the new act. If a first nation feels that it would be better administered, or that things were better, under the old Indian Act or under a new self-government agreement, then first nations should be given the opportunity to opt out if that is in their best interests.
Perhaps consideration could be given to something along the lines of a three-year probationary period. If a first nation does not opt out within those three years, then after the three-year period, it must remain under the provisions, and it can't opt out. That suggestion could be helpful in dealing with the fact that it doesn't have an opting-out provision.
But to simply state that a first nation cannot opt out moves a long way to affirming a lot of the apprehensions that already exist in Indian country about these amendments, including the perceptions in our territory.
The next provision I'll refer to is subparagraph 6(2)(b)(ii). It refers to the powers conferred on a band council. This provision allows band councils to conduct business without calling a meeting. It gives the council the option of simply passing a written resolution supported by all members of the council of the band.
This could be problematic for a number of reasons. First, we in our first nations now find ourselves conducting band business of an increasingly complex nature. In fact these very amendments are a testimony to the complexity of governance in which we in first nations now find ourselves. This complexity of governance in first nations has often led to a lot of anxiety and mistrust on the part of community members.
I think that giving the power to councils to conduct business without adequate community consultation or meetings will not ease or quell that anxiety. It could lead to more expensive and unnecessary electoral challenges in the Federal Court.
In these times of government cutbacks and administrative expedience we should be cautious that we don't govern so that we can just say we've governed. Moreover, this process could potentially eliminate the advisory and spiritual role often played by elders at our important community meetings.
Finally, on this provision it must be remembered that one of the most important recommendations that came out of the report of the Royal Commission on Aboriginal Peoples is when it called for greater public education with respect to native issues. I feel that education begins in our own communities, and community meetings often serve as an appropriate forum for educational processes.
Perhaps one suggestion would be to allow for a period of time in which band members could question the written resolution. If there are no objections after this period, then the resolution would pass.
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I'd now like to move to new section 16.1 in the bill, which deals with the legal capacity of bands. This provision fundamentally alters the legal capacity of bands, and in the process removes the sui generis characterization of first nations established by the courts.
In our area we've never been restricted in our ability to conduct business and management activities by the provision as it reads now. Changing the legal capacity of bands would neither improve nor diminish this capacity. However, this provision has the potential to expose what little band assets there are to potential creditors.
As for the reasoning that this provision is necessary to bring this in line with court cases, my view is that the cases are not definitive one way or the other on this aspect of this provision.
Next I'm going to move to clause 12, which removes subsection 34(1), a provision that deals with roads, bridges, ditches and fences. This section is purported to serve no useful purpose, and that's the reason it's being removed.
However, in the absence of instructions.... I refer to that specific wording, and I'll just read the provision to you very quickly. The old provision says:
- A band shall ensure that the roads, bridges, ditches and fences within the reserve occupied by
that band are maintained in accordance with instructions issued from time to time by the
superintendent.
It can also be argued that the federal government has a fiduciary responsibility to maintain these roads, bridges, ditches, fences, etc., on reserves, and that by removing this section the minister is shedding this responsibility.
I am now going to move to clause 14, which is adding a paragraph 43(c.1). It reads:
- direct that a person shall be deemed to be the spouse of a deceased Indian for the purpose of
devise or descent of property under this Act;
In addition, regulation 15 of the existing Indian Act concerning wills appears to contradict this reasoning. It empowers the ministers to accept any written instrument as a will, notwithstanding the requirements for a valid will under the laws of general application in force in any province.
Perhaps the decision as to who could be deemed a spouse for the purposes of devise or descent of property with respect to a will could be left to the first nation to determine, with appropriate appeal procedures in place.
The next provision, on which I have some comments, is clause 19 with respect to paragraph 57(a) of the act. That is the paragraph that empowers the Governor in Council to regulate lobbying on reserves. I really can't see any reason today why first nations could not exercise this authority themselves under these amendments.
In the years ahead part and parcel of our challenge with respect to negotiating self-government, and attaining self-government, in our communities is to develop economic development-type activities in our communities. These are going to create jobs, businesses and wealth for our communities, and really go a long way to improving the present and existing socio-economic conditions.
.0920
One of the ways we can do that is to have the powers to regulate these kinds of activities in our communities, including commercial activities. Regulating logging on reserves is part and parcel of that process we have to go through.
Those are the comments I have on that section. It just seems somewhat paternalistic still to leave the power with the Governor in Council and then down to the minister to regulate logging on reserves.
Next I'm going to move to sections 70 and 71. Again, these two sections would be removed entirely. The removal of these sections raises some interesting questions in respect of the minister's fiduciary obligation or responsibility to instruct farming and to purchase seed.
Just by way of quick reference, I'll read subsection 70(1) of the current Indian Act, which states:
- The Minister of Finance may authorize advances to the Minister out of the Consolidated
Revenue Fund of such sums of money as the Minister may require to enable him
There are several other paragraphs - 70(1)(b), 70(1)(c), and 70(1)(d) - that I would incorporate into these comments.
I would argue that the minister again is shedding this fiduciary responsibility, which is enshrined in the statute, to provide these items and services. Notwithstanding that some bands or individuals may not be in the business of needing seed grain or fencing materials, the fiduciary obligation and responsibility is there. There are other provisions in the statute that establish this fiduciary responsibility.
This fiduciary responsibility and obligation was established when the decision was made by our people to share the land, and it's not for the minister to unilaterally shed this responsibility.
Balanced against the removal of this provision should be something in the act that offsets or compensates the first nations for the removal of this fiduciary responsibility, because it got in there to provide some assurance to our communities and to our first nations people that in exchange for sharing this land, the federal government would have a role to play in providing these items and services to our people.
The next provision I'm going to move to is proposed section 80.1, which empowers the minister to approve election codes.
This proposed section states that the minister will determine what level of community support is necessary before approving a band election code. This could be problematic in that the provision does not spell out exactly what level of support will be satisfactory to the minister. This could lead, and in fact has led, to challenges to election codes. It also ignores any band considerations as to what would be a satisfactory level of support for the new code.
So the result of the loosely worded language in this provision could be that, as a result of the minister being left with the sole responsibility of determining what level of support is satisfactory for determining when an election code will be approved.... Not spelling it out really leaves the door open to a Federal Court challenge to the code once it is approved. In fact I know that situation has taken place on several occasions in the past. It's just something we should be mindful of and cautious about.
.0925
The final section I want to refer to is proposed paragraph 81(1)(o.1). Again, this is a provision that deals with the regulation of timber on reserves for personal use. This new paragraph is paternalistic in that only the regulation of timber is restricted to personal use. For example, the band is given the authority to regulate timber as long as it's for personal use. Again, this seems to be contrary to the principles of self-government and economic self-sufficiency. A band could be given consideration to have the power to enact a by-law to regulate timber-cutting for commercial purposes as well on its own territory. For instance, the regulation of cutting firewood is one example of where the authority could be extended to allow for that commercial business activity, and the result of that is it can create jobs and generate revenue for the community.
Finally, my last comments on all of this are with respect to the issue of consultation. I know you've heard a lot about that this week, so I'm not going to go into a long-winded discussion about whether or not consultation was adequate or inadequate in respect to these amendments. But I do have this to say: I'd simply like to point out to the committee members that under the Constitution Act of 1982.... I'd like to read section 35.1 of the Constitution Act to the committee members. It reads as follows:
- The government of Canada and the provincial governments are committed to the principle that,
before any amendment is made to Class 24 of section 91 of the Constitution Act, 1867, to
section 25 of this Act or to this Part,
- - which is section 35 of the Constitution Act dealing with the rights of aboriginal peoples of
Canada -
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.
My comment is this: it's difficult to imagine a set of amendments, a set of changes to a piece of legislation, which meets this test. What we're really dealing with here is the subject of Indians and lands reserved for Indians, which is the subject matter of class 24 of section 91 of the Constitution Act. My view is that once we're into a substantial revision to the Indian Act, as we are here, I think that sends us into provision 35.1 of the Constitution Act, because what we're really talking about is a substantial revision to the Indian Act covering some 60% of the Indian Act.
I think the Government of Canada and the provinces should honour the commitments that were made in respect of including this provision in the Constitution. It was for this very reason that aboriginal groups lobbied for the inclusion of this clause into the Constitution so that we wouldn't find ourselves in the situation we find ourselves in today where a major revision is being made to the one statute that governs every activity of our lives on reserves. I think we should give some consideration to honouring the Constitution, specifically section 35.1 of the Constitution, which calls for a first ministers conference on this issue.
Subject to any questions from the committee members, those are the comments I have this morning. I'd like to thank you very much for your time and consideration this morning.
The Chairman: Chair Bayer, thank you very much for an excellent presentation. It's obvious that you did your homework and you presented a professional piece of information. I could see members taking notes as you were speaking.
I won't go on any longer, because we have 15 minutes for questions. I'll go five minutes per party. We'll start with the Bloc Québécois, Mr. Bachand.
[Translation]
Mr. Claude Bachand (Saint-Jean, BQ): Chief Bayer, I would like to thank your for your presentation, which I would characterize as legal because through your comments on each of the amendments proposed, you have provided us with a good overview of the bill as a whole.
.0930
However, I must apologize for missing the first part of your presentation. I arrived as you were beginning your criticism of each of the clauses and provisions. Having missed the beginning, I must ask you whether you took a position against Bill C-79. You can answer that and repeat your position at the same time as you're responding to my other questions.
During your presentation you expressed a fear that the fiduciary responsibilities of the federal government may be reduced. You spoke about paternalism. You expressed concern that some of these clauses may be challenged before the courts and you very clearly demonstrated that this proposed legislation went against subsection 35.1 of the 1982 Constitution Act. Would you be satisfied with the adoption of certain amendments to many of the clauses or do you recommend that the committee simply reject Bill C-79?
[English]
Mr. Bayer: Thank you very much for your comments and your question.
I should mention again that at the beginning, and this is probably the part you missed, my comments this morning were qualified by the fact that the position of the United Chiefs and Councils of Manitoulin was that these amendments should be rejected. In fact we passed a resolution to this effect. However, notwithstanding that resolution rejecting these amendments, there are still some things I thought needed to be said in respect of this legislation. It was in that vein that I presented these comments this morning.
With respect to your question about the issue of whether or not the entire bill should be revised or whether certain provisions should be revised, my view is that there are provisions in the legislation that I think are okay and somewhat harmless, but there are other provisions in the legislation I do have some concern about. I've outlined some of those provisions and what my concerns are.
With respect to your question concerning the fiduciary obligation, I think you have to appreciate that a fiduciary obligation can arise in a number of ways on the part of the federal government. It can arise through treaty or through statutes, through common law or by an express undertaking creating a fiduciary obligation. My concern is that the Indian Act itself and history creates the first fiduciary obligation and duty on the part of the crown, whether that be the federal crown or the province. Because as we all know, it was the province that got the benefits of the land at Confederation in 1867 through subsection 92(13), property and civil rights in the province.
What I'm saying is that the Indian Act itself creates a fiduciary obligation and duty, and there are numerous provisions in the Indian Act that create the specific fiduciary duty and obligation. Arguably, the entire act creates a fiduciary obligation and duty because it was that act that said to the aboriginal people of Canada that in exchange for you sharing this land with us, this is how we will do what's best for you: we will enact this Indian Act and along the way we'll tell you exactly what's best for you. In my view, that creates a fiduciary obligation.
With respect to the specific provisions that are being removed, I think there are specific provisions being removed in the new bill and that this has the result of removing or shedding this fiduciary responsibility or duty. My concern is that I don't think it's just for the minister to unilaterally shed that fiduciary responsibility and duty, because let's not forget that this fiduciary duty could be created at a number of points in time, arguably at the first point of contact when European settlers first arrived and needed land for settlement and in exchange for sharing that land certain things were to happen. The Indian Act stated what those things were.
By the minister removing certain provisions of the act, which he suggests are paternalistic, I would argue that while they may be paternalistic, they also create a fiduciary duty or obligation, and I don't think it's fair or just for the minister to unilaterally remove those provisions in lieu of something else happening.
.0935
The Chairman: Mr. Breitkreuz.
Mr. Garry Breitkreuz (Yorkton - Melville, Ref.): Thank you very much for your presentation. I appreciate the time you've taken.
How much of the input you gave us did you get from the grassroots aboriginal people on the reserves in your area? Did you communicate the contents of Bill C-79 to them? Do your comments reflect their feelings? What meetings did you have with them? Have they read Bill C-79? Are they happy with the present Indian Act? If they are, I guess they would choose to stay with it. If they're not, are they pleased with Bill C-79? Does Bill C-79 address all of their concerns? In other words, my question for you is does your presentation reflect the concerns of all the people of Manitoulin?
Mr. Bayer: Thank you very much for that question.
In fact the views I'm presenting this morning reflect the discussion and the decisions we came to at a conference and a workshop we had convened specifically for this purposes. As you can appreciate, there were a number of major announcements and things that happened with respect to the aboriginal people. For one, we had the announcement that these Indian Act amendments were coming down. We also had the release of the RCAP report, and then we also had some announcements in respect of the financial transfer agreements.
Collectively, these issues were put before my people at a conference I organized. I invited people from the community - our elders, our elected representatives and the community - and it was well attended. It stimulated a lot of constructive discussion and dialogue, and it was really an opportunity for us to explain this complex material to our people, because the Indian Act amendments are quite complex. The RCAP report is pretty exhaustive, some 4,000 pages, and the financial transfer agreements are of a technical nature, which needed to be explained to our community members.
To answer your question, yes, we did have extensive consultations with my individual first nations, and then collectively the United Chiefs and Councils of Manitoulin hosted a special workshop - I think it was about a month ago - on these very issues, these three issues. This was a workshop and a conference that was convened specifically to have discussion and dialogue in respect of these many issues.
The Chairman: Thank you very much. Now we have five minutes for Mr. Harper.
Mr. Elijah Harper (Churchill, Lib.): Thank you Mr. Chairman.
Chief Bayer, I appreciate your comments. First of all, I know you made comments about consultation. I mentioned at the beginning of this process, way back, that the ideal thing would be to go to every community and even have a grassroots consultation, but unfortunately it's not possible. As you can see even from the royal commission report, I don't know how many years they went through, maybe five years, and they obviously didn't go into every community, yet we have a very massive document, some 4,00 pages and some 27 other publications.
Having said that, I think this process itself is to proceed to create another piece of legislation. It's a stand-alone legislation. The Indian Act itself is not going to be amended.
.0940
From your discussion, I understand that you totally reject that, which means that none of the bands will be opting in anyway. Therefore, the provisions you talk about will not affect the bands, because they'll still be under the Indian Act. I believe this legislative process will not be the route that the first nations and the chiefs will take or will see as a way of resolving the relationship we have. I believe there is a higher process, which is the treaty, the nation-to-nation process. It is a process that everybody would like, and under that process I think a lot of things will be discussed.
What I want to ask you is this. You made comments on this stand-alone legislation, Bill C-79, in which you stated some concerns that if bands were to opt in, this legislation creates some fiduciary obligation or something. An example would be where the minister has to authorize the sale of agricultural products. Obviously that prevents the bands from selling their products. How do you see that as eliminating or creating a fiduciary obligation? That is one example of that. Do you agree that with this one specific provision, somehow the fiduciary obligation is being eliminated?
I know some chiefs have made comments in my discussions with them. Obviously there is a reason that it was put in that the minister was to authorize the sale of agricultural products, but then this stand-alone legislation, Bill C-79, eliminates that; it says the bands can directly sell their agricultural products without the interference or approval of the minister. I was just wondering how you may address that. I just want to know your point of view on that.
The Chairman: It may be unfair, Mr. Bayer, but we only have two minutes for your response.
Mr. Bayer: I'll try to be brief.
Before I answer your question, Mr. Harper, I'd like to just point out that notwithstanding that our United Chiefs and Councils of Manitoulin rejected these amendments by resolution and that we may not be opting in to the new legislation anyway, I appear here this morning for a reason. I think there's a day ahead when this piece of legislation won't be voluntary. I think that day is going to arrive when the Indian Affairs Minister imposes the financial transfer agreements on communities and we get to the point in our communities where our resources decrease to the point that we're not able to provide the programs and services to our communities. I think that's where the Indian Act amendments come in.
There are specific provisions in there which create the establishment of a lands registry, for instance, and the establishment of a fee-simple type of land tenure system. I think that's the beginning of opening a door for the creation of a taxation system to tax both our lands and our peoples. I appear this morning because I think there's going to be a day in the future when this won't be voluntary. It will be mandatory, and it will be economic necessity that will make this act mandatory.
With respect to your question concerning the fiduciary nature of the provisions contained in the Indian Act, my view is simply that there are specific provisions in the Indian Act now which arguably create a fiduciary responsibility or duty on the part of the federal Crown to provide authority for the sale of produce or agricultural products, for instance. There are other provisions in there that place a fiduciary obligation or duty on the federal crown to provide certain services and goods.
.0945
I think the wholesale removal of those provisions from the Indian Act has the effect of the minister statutorily removing that fiduciary responsibility and obligation he has by simply taking out an entire section and saying the section is paternalistic. In fact it may be that it's simply to allow the minister to shed his fiduciary responsibility and duty to provide some of the things that are enumerated in the existing Indian Act.
The Chairman: Thank you very much. This concludes this part of our public hearings.
Chair Bayer, thank you very much for all the work you did. You did prepare for this very well and it will be of great assistance to committee members. Thank you and so long.
Mr. Bayer: Thanks, Ray.
The Chairman: Now we're on our way to Montreal to meet with the Mamit Innuat.
We will suspend for five minutes.
.0946
.0949
[Translation]
The Chairman: We will resume our public hearing on Bill C-79, an Act to permit certain modifications in the application of the Indian Act to bands that desire them.
The witness before us is the legal counsel of Mamit Innuat, Mr. Armand McKenzie. Mr. McKenzie, will you be making your presentation in English or French? It's up to you.
.0950
[English]
Mr. Armand McKenzie (Legal Counsel, ``Mamit Innuat''): It's going to be in both languages, French and English.
The Chairman: Okay, and I'll do the same to accommodate.
Mr. McKenzie, we thank you very much for being with us today. We look forward to your presentation.
My name Ray Bonin. I'm the chair of the committee. We have with us Monsieur Claude Bachand of the Bloc Québécois; Mr. Elijah Harper from the Liberal Party; Mr. Charles Hubbard from the Liberal Party; and just outside the door, Mr. John Murphy from the Liberal Party.
We have 40 minutes together. Those minutes belong to you, although we would appreciate it if you would allow some time for members to ask questions.
Having said that, Mr. McKenzie, the floor is yours. You may start at your leisure.
Mr. McKenzie: [Witness speaks in his native language]
[Translation]
of this Standing Committee on Aboriginal Affairs, please allow me to speak first in my own language.
The Chairman: As you wish. The 40 minutes are all yours. If you speak in your language, Mr. Harper will probably understand you. I'd consider it appropriate that you make part of your presentation in your own language.
[English]
Mr. McKenzie: [Witness continues in his native language].
[Translation]
Committee members, we consider it a privilege to be able to speak to you this morning and express the concerns of the First Nations of Mamit Innuat regarding this bill which is intended to voluntarily modify the application of the Indian Act.
Obviously, we would have preferred to appear in person before you rather than in a videoconference. We already indicated that in our letter where we asked to appear before you. We would have preferred to appear in person rather than through a videoconference.
My name is Armand McKenzie and I am the legal counsel of the First Nations of Mamit Innuat. I am accompanied by Mr. Ken Rocque, who is also legal counsel to the Mamit Innuat.
I would first like to describe briefly the First Nations of Mamit Innuat. The name means "people from the east" and refers to the four Innu communities of the Lower North Shore: the Mingan, the Natashquan, the Romaine and the Pakuashipi, who comprise the 2500 people we represent.
As the First Nations of Mamit Innuat, we have land rights over approximately 250,000 square kilometres of Nitassinan, a territory known today to people coming from elsewhere as the Quebec-Labrador Peninsula.
For thousands of years, the First Nations of Mamit Innuat have continuously occupied this territory. In fact, the First Nations of Mamit Innuat are the first governments of Nitassinan.
Despite the abusive way our territory has been used and occupied, despite the actions and laws adopted by governments of the dominant society, the First Nations Of Mamit Innuat continue even today to affirm their jurisdiction as a people and a nation and to apply their laws on the territory of Nitassinan.
Through such means, the First Nations of Mamit Innuat are exercising their right to self-determination. The First Nations of Mamit Innuat are part of the great Innu nation, a nation which is proud and strong and has lived on the territory of Nitassinan in a spirit of respect for the environment and the creatures of the Creator.
The Innu are a people within the meaning of international law and possess all the attributes related to that status. They have a common language, culture and history, and a method of government different from that of the other peoples, thus ensuring Innu jurisdiction over the territory. It is in this capacity that they have always governed Nitassinan.
The First Nations of Mamit Innuat have also, since the arrival of the Europeans, maintained nation-to-nation relations with the new arrivals. However, the status of these people and their rights over Nitassinans have never been clarified by treaty with the First Nations of Mamit Innuat.
.0955
In other locations, the British Crown, and subsequently, the Government of Canada, included treaties with other Aboriginal nations so as to clarify the rights and jurisdictions of each of the parties.
However, this was never really done in the case of the First Nations of Mamit Innuat, and that is why we are currently pursuing land and government negotiations based on the equality of peoples, so as to clarify the territorial jurisdiction and sovereignty of our respective governments.
This morning, rather than stressing ways of amending Bill C-79, we wish to focus on the following points: first, the fiduciary role of the Minister of Indian Affairs and the superficial consultation process involved in the consideration of this bill; also, the need to establish a new relationship based on respect for the laws of the First Nations.
As regards the first point, that is the fiduciary role of the Minister of Indian Affairs and the superficial consultation process undertaken with respect to the Bill C-79, the First Nations of Mamit Innuat are outraged by the conduct of the Minister of Indian Affairs, Mr. Ronald Irwin, with respect to this bill amending the Indian Act.
We wish to denounce Mr. Irwin here before his colleagues. He claims to have obtained the agreement of the majority of Aboriginal leaders in seeking to carry out this amendment to the Indian Act, which is completely untrue.
At the annual meeting of the Assembly of First Nations, held last July, and also during subsequent meetings, the Aboriginal leaders, including the chiefs and leaders of the First Nations of Mamit Innuat, expressed their concern about this plan by the federal government to amend the Indian Act.
On a number of occasion, the people concerned have spoken out against the procedure advocated by Mr. Irwin to implement his plan to amend the Indian Act. On a number of occasions, the Aboriginal leaders stated that the consultation process of the federal government failed to take into account the strong opposition of the First Nations. Even today, we continue to say no to any amendment to the Indian Act as proposed by Mr. Irwin.
However, on this issue the Minister of Indian Affairs, Ron Irwin, is acting aggressively to push through and unilaterally impose this legislation despite the repeated attempts of the Assembly of First Nations to persuade the government to sit down with the representatives of our peoples and discuss amendments which would show more respect for their rights and aspirations and also discuss better way of abolishing the Indian Act. But Ron Irwin prefers to ignore the concerns of the First Nations. We would expect better from someone in a fiduciary position.
Committee members, through this bill and this process the Liberal government is not even meeting the requirements established in the Sparrow case as regards consultation with the Aboriginal peoples when implementing government policy and legislation affecting their Aboriginal treaty rights.
Consultation by the Minister of Indian Affairs has been only superficial even though he tried to show the opposite to you during his presentation. What is even worse is that we believe that Ron Irwin, as a Minister of the Crown who holds fiduciary responsibility for the rights and interests of the First Nations, does not even reach the standards of behaviour for dealing with Indian Affairs laid down by the Supreme Court of Canada in the Guerin decision.
It seems clear to us that when 85 percent of Indian bands point out to their trustee that they don't want the amendments to the Indian Act as proposed by Bill C-79, the least someone in such a fiduciary position could do would be to listen to us and stop his plan. However, in this case the person concerned does not understand that and that is why we have asked Jean Chrétien to appoint someone else.
.1000
Rather than striving to improve an obsolete piece of colonial legislation, Mr. Ron Irwin should move on to more serious matters and discuss ways of implementing the recommendations of the Royal Commission on Aboriginal Peoples. That is the second point we would like to make, namely the need to establish a new relationship based on respect for the rights of the First Nations.
When we carry out a comprehensive examination of the powers of the Minister of Indian Affairs and Northern Development, we can easily conclude that such powers are far from protecting the rights and interests of the First Nations; rather, they maintain and preserve the control and power of the Canadian government over the First Nations, which obviously goes against our aspirations.
The Mamit Innuat nations, together with other Aboriginal groups, have a very particular legal status. They come under a piece of colonial legislation, the Indian Act, which controls almost every aspect of their life, from the cradle to the grave. In fact, no other people or group within Canadian society is subject to such government legislation.
Under the 1867 Constitution Act, the First Nations are still today the subject of legislation in the same way as the banks, railways or post offices. That confirms the situation of a colonized people, in which the First Nations are at present confined. That also confirms the state of inferiority in which... [Technical difficulties - Editor] ...with the complicity of the provinces. All government measures have always sought to maintain the First Nations in a state of inferiority.
Faced with such a situation, are there any solutions? Of course there are. We have to get rid of this colonial legislation, but not at any cost. We have to get rid of Indian Affairs, their colonial control, and this archaic piece of legislation called the Indian Act. We firmly believe that this is the key to change, the key to establishing a new relationship between the First Nations and the rest of the population.
It is unacceptable to still have today such a relationship between peoples and nations. It is completely absurd and colonial to subject a people to such legislation and divide jurisdiction through the highest law in the land, as is done for post offices, wharfs and boats, unemployment insurance, etc. That is why we must urgently get rid of this old piece of British legislation which is still being followed by a few bureaucrats in the Department of Indian Affairs in their offices in Ottawa and Quebec City. This old Act is of no use to anyone, be they Innus or not.
Rather than trying to improve this obsolete piece of legislation, Mr. Ron Irwin should develop an appropriate list of priorities. If he wants to legislate with respect to the Indians, he should do so to help them. The federal government could use its legislative power in order to specify the inherent rights of the Aboriginal peoples in the area of fisheries, for example salmon rivers which are a federal responsibility, and also indicate the role of the First Nations with respect to the administration of justice, particularly criminal justice. Why does the federal government not use its jurisdiction under subsection 91.24 of the 1867 Constitution Act in order to ensure that management of the Migratory Birds Act is implemented by the First Nations and for the First Nations?
In all these areas and others such as health and social services, the federal government is acting as if it was the trustee for the interests of the provinces. Instead of insuring that the First Nations have real power to act in areas of key importance for them, such as salmon rivers in Quebec, the federal government is abdicating its responsibilities towards the Aboriginal peoples and thus increasing the power of the provinces.
If Mr. Ron Irwin was serious, this is the kind of proposed legislation and bills he would be tabling before your committee. Your time and ours is too precious to spend it on Bill C-79.
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There are alternatives to Bill C-79. The report of the Royal Commission on Aboriginal Peoples outlines the way of establishing a new relationship based on the sharing of power and resources and also on mutual recognition.
The Royal Commission made over 400 recommendations indicating the approach that should be taken by the governments of the First Nations, the provinces, territories and the federal authorities. The Commission provides a comprehensive action plan on the measures to be implemented in order to bring about social justice for the Aboriginal peoples.
The Commission made a number of recommendations to accelerate the process of land and government negotiations between the Aboriginal peoples, the federal government, the provinces and territories. Ron Irwin must stop looking for ways to shelve the recommendations of this important commission of inquiry. If he wants to give Canada a chance, he should encourage his Prime Minister to meet the leaders of the Aboriginal peoples so as to discuss the real issues and implementation of the action plan proposed by the Royal Commission on Aboriginal Peoples.
Mr. Irwin, the path that must be followed is that of decolonisation, not the delegation of powers within an obsolete piece of legislation. Mr. Irwin, in case our message is not clear enough, we are saying no to Bill C-79. Mr. Irwin, no to C-79!
Thank you for your attention.
[The witness continues in his own language]
The Chairman: Thank you, Mr. McKenzie, for your presentation. I must first point out to you that the minister, Mr. Irwin, cannot hear the message you are sending him because he is not a member of this committee.
You have been invited to discuss Bill C-79. As I said at the beginning, you have 40 minutes allocated to you and you can use it as you wish.
However, it is regrettable that your presentation does not contain much information to help us when debating Bill C-79, as we will do on Thursday. However, as I said, it is your time.
We have about 20 minutes left for questions. Mr. Bachand, from the Bloc Québécois.
Mr. McKenzie: Before you make your statement...
The Chairman: Please proceed, Mr. McKenzie. Did you have something you wanted to say first? Please proceed.
Mr. McKenzie: No.
The Chairman: A question by Mr. Bachand, from the Bloc Québécois.
Mr. Claude Bachand: Armand, I would like to thank you for your presentation. It is true that the minister, Mr. Irwin, is not sitting at this table, but some members of the committee, myself included, can undertake to convey to him the messages clearly sent by the First Nations, including your message.
There is another point I would like to discuss formally because the chairman has been talking about it for a short time. Mr. Chairman, I believe that you want to proceed to clause-by-clause consideration of the bill on Thursday. Do you intend to hold a meeting to deal with procedure before so doing or do you already have a plan in your head? Will we discuss whether it is appropriate to begin clause-by-clause consideration on Thursday?
The Chairman: If you want to use the 40 minutes allocated to Mr. McKenzie to discuss procedural issues, I have no objection, but it would be almost unfair to the witness to do so. Clause-by-clause consideration is to begin immediately after consultations are finished. As consultations end today and written consultations tomorrow, unless the committee votes in favour of extending the consultation period, clause-by-clause consideration should begin on Thursday morning.
Mr. Claude Bachand: Indeed, I would not want to take up too much of Mr. McKenzie's time. I consider that Mr. McKenzie's presentation is probably the clearest we have heard coming from the First Nations. Their answer is no, particularly because consultation is not taking place. It is also no because of the obsolete character of the Indian Act. What is the point of trying to change a 100-year old statutory instrument? That is not the way to solve the problem.
Mr. McKenzie, I also appreciated the fact that you pointed out that we are legislating here in Ottawa on the First Nations as if we were dealing with mines or forests. It is in fact an area of federal jurisdiction and the minister is deciding on your future.
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There is no doubt that the issue is being studied in committee, that a complete procedure is followed before third reading, but the bottom line is that it is the Canadian Parliament which will decide how you will live from now on.
I said to the First Nations who appeared before us that I saw no difference between the current Minister of Indian Affairs and Northern Development and his predecessor who was in office 100 years ago. I will be grateful if you could perhaps explain the point you made concerning paternalism. Do you see any difference between what the history books tell us about ministers at the time, namely that they imposed countless measures, and the current minister who has taken the position that he knows what is good for you and will impose it on you, regardless of what you think? That's my question.
Mr. McKenzie: Mr. Bachand, thank you for your question. I would point out to you that the way Mr. Irwin has conducted his consultations is absolutely incredible. Mr. Bachand, here is the documentation we received from the Department of Indian Affairs and Northern Development, containing questions and asking for our answers and comments on proposed amendments to legislation, etc.
As I said earlier, our time and yours is too valuable to spend it studying bills of this kind. Bill C-79 cannot be improved. The Indian Act cannot be improved. We should focus our energy and efforts on land and government negotiations and on the recommendations of the Royal Commission.
Throughout my career, I have never seen a minister so determined to impose his view on Aboriginal groups when 80 percent of the people concerned were saying no. The message doesn't seem clear enough. We have said to Mr. Irwin: No to C-79. We said that in Winnipeg and in Ottawa. We sent resolutions. We made representations to him through the Assembly of First Nations, through our national chief.
We are told that it contains recognition of inherent rights for Aboriginal peoples, measures for Aboriginal peoples, but all that is being proposed to us is a bill in which powers are being delegated to the Aboriginal peoples in the context of band councils. That has to be rethought and changed. We have to look ahead of negotiations, and meaningful measures must be taken, based on a new relationship between the Aboriginal peoples and Canadian and Quebec society.
At the present time, Bill C-79 seems to be Mr. Irwin's pet project and, in my view, he wants to get it adopted regardless of the risks it involves. The people for whom he is supposed to be working are telling Mr. Irwin: "No means no". What else does he want? No means no. We don't want it. And our fiduciary dependence continues. I am very surprised by this type of attitude and behaviour.
My colleague Ken Rocque talked about the meeting held in Winnipeg, because we were in Winnipeg at the Assembly of First Nations. Mr. Irwin was there too. We made representations. I would like to ask him to supplement my answer.
The Chairman: No. Mr. Rocque is invited to participate in the answers. However, at this point, we will continue with Mr. Bachand's next question. You can stay there and sit together. There should be two chairs in the room. We could ask Mr. Rocque to complete the answer, give his name and mention the position he holds in the Mamit Innuat community.
[English]
Mr. Ken Rocque (Legal Adviser, Mamit Innuat): My name is Ken Rocque. I'm a legal adviser for Mamit Innuat. I am working with Armand McKenzie, and we represent the first nations of Mamit Innuat in this matter.
The Chairman: Have both of you been mandated by the band council to represent them and to speak on their behalf at this public hearing?
Mr. Rocque: We represent at this time the tribal council of Mamit Innuat, which represents the four communities of Pakuashipi, Ekuantshit, Natashquan, and Unamenshipi.
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The Chairman: Both of you have been mandated to speak on their behalf?
Mr. Rocque: Yes.
The Chairman: I just wanted to get that on the record.
Did you wish to add to the question that was answered before, or do you wish to move on to the next question from Mr. Bachand?
Mr. Rocque: I was going to make some comments about the meeting in Winnipeg at which we were present last year.
The Chairman: Does that relate to Bill C-79?
Mr. Rocque: It was about Bill C-79.
The Chairman: Please carry on.
Mr. Rocque: I was invited to meet the chiefs. The Assembly of First Nations met Mr. Ron Irwin last year. They did tell Mr. Irwin that it wasn't their priority at that time to discuss Bill C-79.
I'm going to continue in French.
[Translation]
At the last assembly of chiefs in Winnipeg, the chiefs of the Assembly of First Nations represented over 200 communities. The chiefs of these 200 communities, present at the said meeting, told the Minister, Mr. Ron Irwin, that they disagreed with Bill C-79. The chiefs and we, the communities of Mamit Innuat present there, informed Ron Irwin that we did not agree with the bill which had been introduced.
The First Nations of Mamit Innuat believe that the time given to Bill C-79 could be better used. We believe that we should not spend time discussing this kind of bill.
Our communities are currently experiencing far more serious social problems and we believe that the Minister of Indian Affairs and Northern Development should spend more time on the social problems faced by these communities.
The fact is, however, that Mr. Irwin has been working on Bill C-79 for some time now. We believe that he should have been working on problems of more serious concern to the First Nations of Mamit Innuat.
The Chairman: I see.
Mr. Rocque: The First Nations of Mamit Innuat...
The Chairman: Mr. Rocque, just a moment please. We have only 10 minutes left. What Mr. Irwin does during his working day is not really of importance to the committee. I think that your disagreement with the way he has worked has been clearly stated. However, it is not the mandate of this committee to assess how Mr. Irwin does his work.
I will allow one other short question because we still have 10 minutes.
Mr. Claude Bachand: I have already asked a first question.
The Chairman: I see. We will therefore move on to Mr. Harper and then Mr. Hubbard.
[English]
Mr. Elijah Harper: Thank you, Mr. McKenzie and Mr. Rocque, for your presentation. As you know, I'm an aboriginal member, a first nations member in the House of Commons. I serve on this committee and I operate on what people say. I listen to what people say. I know you have concerns about consultation and also have concerns about consultation.
I wish we had gone to every community, some 600 reserves across Canada, but that would take two years. As you know, even the royal commission took five years, but it didn't go to every community.
So I would have liked to see more of a grassroots consultation. So I agree with you in terms of consultation, but sometimes you are put into these kinds of positions to move along with legislation that I personally don't do in terms of forwarding any legislation. Usually it's the government that does that or the ministers of the government. Mind you, we could have private members' bills, but those don't go very far.
What I want to say is that I've heard a lot of presentations from various chiefs. First of all, they don't agree with this process. At the same time, they referred these Indian Act amendments. But knowing that you both have a legal background, this legislation is stand-alone legislation. We're not amending the Indian Act at all.
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So there is an opportunity for first nations who don't want this legislation affecting them to not even be a part of it. That's in the legislation's opt-in provision. But there's also a non-derogation clause, which states that the treaty and aboriginal rights plus the inherent right to self-government will not be affected. So on one hand, by legislation we know the Constitution already protects us, in which treaty and aboriginal rights treaties are paramount over any specific legislation, so there is comfort in that.
I wanted to ask your position on that, because for me personally, the worth of this Indian Act provision is not for the kinds of negotiations or the kinds of things we would like to establish. There is a higher process that would supersede the legislative process, and that is a constitutional process of negotiating on a treaty basis, nation to nation. That's where a lot of these concerns could be addressed, because we're dealing only with legislative things here, and I believe that process will come about at some point.
Another comment I would like to make about the opt-in provision is that a lot of bands and chiefs have said that at some point the government may use this as a way of coercing the bands into accepting this, which will become mandatory. What I'd like to say to you is I have every confidence that the first nations will ultimately decide for themselves their destiny. I have a lot of confidence in our people. We've hit rock bottom already and we're going to climb up. I have full confidence in the first nations that they will never allow this to happen anyway. I just wanted to ask you your views on that.
Mr. McKenzie: As for the opt-in clause, I don't believe in a type of clause where each nation has the choice to opt into Bill C-79. It's a question of principle, Elijah. It's a question of principle. Either we get rid of the Indian Act - make an overall review of the Indian Act - or we don't touch it. It's a question of principle.
A number of things have been said by the Royal Commission about land rights negotiations and self-government, and the Liberal government should use its energy to work on these justice issues instead of trying to redraft the Indian Act.
There are certain clauses in Bill C-79 that prevent any infringement on aboriginal and treaty rights. This is an empty box, this type of clause. I did see it in Bill C-79. The reason is that the federal government, at this moment.... When it's time to argue in court about aboriginal and treaty rights, we say we don't have any aboriginal or treaty rights. We don't have those rights. So it's an empty box to insert in a bill those types of provisions.
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They had one in the gun control legislation. We know that when we go into court, one of the first things they say is that we don't have aboriginal or treaty rights. So to say that this act or this bill does not infringe or does not have an impact on aboriginal rights I think is an empty box.
The Chairman: Thank you, Mr. McKenzie.
Mr. Hubbard.
Mr. Charles Hubbard (Miramichi, Lib.): I would like to follow Mr. Harper's points here in terms of the 85%. We certainly received your message in terms of the new legislation and new proposed optional legislation, but it appears that the minority of your people, which would be 15% of some 600 reserves or 90 to 100 groups, might favour the new type of opting in. In terms of presenting this to the committee, are you saying to us that because 85% of the people are opposed to it in terms of Mr. Mercredi's position, the other 15% should not have any minority right to be able to opt in to the new proposed Bill C-79?
Mr. McKenzie: I guess we should identify those groups specifically. We had one for the Chartered Lands Act. We identified 14 groups, 14 bands or communities. Why don't you do the same for Bill C-79? Why don't we identify the bands?
Mr. Charles Hubbard: Philosophically, in terms of the minority groups, the 15%, the 90 bands across this country that want or may want to opt in, are you in favour of them opting in or are you opposed to the principle? Do you think these groups should not have any minority rights?
Mr. McKenzie: I guess I'm opposed to it. If they want to have specific legislation for themselves, they have the right to do that, but they specifically asked the Minister of Indian Affairs that this act no longer apply to them. The Naskapi and the Cree have done this. There's a Cree-Naskapi act for the Sechelt. Why don't we go on the same basis? On the question of principle, the majority of the group here says that we have to have a fundamental change in terms of relationships between Canada and the aboriginal peoples.
The Chairman: Thank you very much for your presentations. This concludes this part of our public hearings in Montreal.
Now we will move on to the Haudenosaunee Mohawk Nation. Through technology we have the spokesperson, Karoniahente.
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Thank you very much for being with us. I saw that some of your colleagues came with you. If they are to participate in your presentation, that's fine with us. We would ask that before they do, if they do, that they give us their name and the position they hold in your community.
We have 40 minutes together. I have with me, from the Bloc Québécois, Mr. Claude Bachand, and from the Liberal government side, Mr. Elijah Harper, Mr. Charles Hubbard and Mr. John Murphy.
The 40 minutes belong to you. You may use them any way you wish, but we would appreciate if you would allow some time for members to ask questions. Having said that, the floor is yours.
Karoniahente: I would like to introduce myself. My name is Karoniahente of the Bear Clan, and I live in the Mohawk territory of Kahnawake. I'm a citizen of the Mohawk Nation, or in my language, Karien'kéha:ka.
Webster's Dictionary defines ``citizen'' in this way: ``...is preferred for one owing allegiance to a state in which sovereign power is retained by the people in sharing in the political rights of those people.''
All the ideas incorporated in the word ``citizen'' are what it is to be Karien'kéha:ka, or a Mohawk citizen.
``Band members'', as we are referred to in the Indian Act, is more than a step backward; it is a genocidal process. ``Member'' is defined as ``being one of the individuals composing a group''. ``Group'' may mean people assembled together, or having common interests. For this reason, the Indian Act is in conflict with the Haudenosaunee.
The purpose for this presentation is twofold: one, to reiterate the position of the Haudenosaune's' exclusive right to determine our own citizenship in accordance with our laws, which right is supported by international law as well; two, the Two Row Wampum agreement dictates on our part that as nations we must discuss any changes that may take place. This process will hopefully be successful in achieving a harmonious end.
The right to determine our own citizenship is based on the Two Row Wampum agreement, as well as the peace and friendship treaties made with each European nation in the early 1600s, which describe how two different people relate to each other in a way of peace.
The Haudenosaunee are a distinct people, with our own laws and customs, territories, political organization and economy. In short, we fit every definition of nationhood. We are governed by our own constitution, known to us as the Gayanerekowa, or Great Law of Peace. It is the oldest functioning document in the world that has contained in it a recognition of freedoms - and the western societies recently claim them as their own - such as freedom of speech, freedom of religion, and the right of women to participate in government.
The concept of separation of powers in government, of of checks and balances of power within government, are traceable to our constitution. They are ideas learned by the colonists as the result of contact with native people of this land.
It is our position that the Indian Act is illegal - illegal because it violates the principles of the Two Row Wampum agreement and has never been accepted by the traditional people. We still assert our right to self-determination, and this includes the right to determine our own citizens, based on our laws and custom.
I would like to present documents that have been in use by our citizens for approximately 30 years. We have birth certificates - I don't know how I'll be able to show this to you - marriage certificates, identification cards, and also a recent document, the Karien'kéha:ka passport.
Our records are kept in the categories of the three Mohawk clans - Bear, Turtle, and Wolf - according to law and custom. At this time, there are many children who are listed in our system, but the Canadian bureaucracy has not respected this right, and therefore these children do not exist as Mohawks. Once again, Canada is trying to force a foreign system on us.
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For centuries our existence was unquestioned, and for all honest human beings it remains unquestioned today. We have existed since time immemorial. We have always conducted our own affairs from our territories under our laws and customs. We have never, under those laws and customs, willingly or fairly surrendered either our territories or our freedoms. Our people, the Haudenosaunee government, have never sworn allegiance to a European sovereign. Perhaps this is the root of our oppression as a people today.
I'd like to thank you for listening to me. You may have questions.
The Chairman: Thank you very much for your presentation. I'd like to say that arrangements could be made to fax copies of the documents that you'd like members to be made aware of. I'm sure the facilitator can handle that for you.
Karoniahente: Passport.
The Chairman: You can fax a copy of it if you want to do a photocopy and send it down. Whatever you wish to send down will be distributed to all members of the committee.
Karoniahente: Okay.
The Chairman: Now I go to Mr. Claude Bachand
[Translation]
of the Parti Québécois, or rather the Bloc Québécois.
Mr. Claude Bachand: Our two parties have a brotherly relationship. We are close to one another although there is a certain independence between us.
The Chairman: They are not the same.
Mr. Claude Bachand: Thank you, Ms Karoniahente, for your presentation. I believe that you represent the Longhouse and I also recognize the proud language of the Mohawks. I see that there is pride not only in the language but also in your actions. You have spoken to us about a passport. Will we need such a passport to go on to one of the Mohawk reserves in Quebec?
Are Grand Chiefs Roundpoint from Akwesasne, Grand Chief Norton from Kahnawake and the Grand Chief from Kanesatake aware of your presentation today? Do they share your viewpoint? I know that in public opinion, and this is also my perception to some small degree, the Longhouse is often considered as being a parallel power not recognizing the power of the chiefs elected in accordance with the Indian Act. Your presentation reflects that to some degree. One of your demands is sovereignty for your nations, while the chiefs have to be elected in accordance with a piece of legislation under federal control. Please tell me whether such a relationship underlies your presentation here.
Are the three band councils aware of your presentation this morning and do they share your viewpoint? Otherwise, can it be considered that you represent a parallel power unrelated to the three elected chiefs and the three band councils established on the territory of the Mohawk Aboriginal communities in Quebec?
[English]
Karoniahente: As far as being aware, I don't know if they are aware, because we found out at the last minute that these hearings were happening. So there has been no contact with either one of those councils.
As well, it is the position of the Haudenosaunee, the traditional people, that whenever the need arises, we assert our position of sovereignty and an explanation of who we are and that we still exist.
As far as the band council is concerned, you are correct that we feel these are an administration of the Canadian government as imposed by the Indian Act.
[Translation]
Mr. Claude Bachand: You do not think that you are currently expressing the views of the band councils, but rather that of the Longhouse. You are not sure whether Grand Chiefs Norton and Roundpoint support the position you have presented this morning.
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[English]
Karoniahente: No, I don't, and I don't plan to say that I would speak for them; they speak for themselves.
The Chairman: Are there any other questions or comments to be made?
Mr. Charles Hubbard: Madam, I was very impressed with your delivery. Certainly as a people, you are very proud of your nation. I want to compliment you on your presentation, on the philosophy and the attitude you have in terms of your relationships with the other people in Canada.
The Chairman: Thank you. Did you wish to make any closing remarks?
Karoniahente: No, I just want to thank you for listening to us. Hopefully, from this presentation and dialogue our rights as Haudenosaunee people, a distinct people, will be respected by Canada.
The Chairman: Thank you very much, Karoniahente, from the Haudenosaunee Mohawk Nation.
This completes this part of the public hearings. I'd like to find out from Montreal whether Claude Gelderblom has arrived yet.
A voice: Yes, they're waiting.
The Chairman: Thank you very much.
[Translation]
Montreal, this is Raymond Bonin, the Chairman of the Committee. Is Chief Gelderblom ready to proceed with his presentation, even though it is only 10:45, 25 minutes before the scheduled time?
Chief Claude Gelderblom (Fédération provinciale autochtone du Québec): Yes, no problem.
The Chairman: Thank you very much. We would like to invite the representative of the Fédération provinciale autochtone du Québec, Chief Claude Gelderblom, to go ahead with his presentation. Thank you, Chief Gelderblom, for agreeing to share with the committee your views on Bill C-79.
You have the next 40 minutes to use as you chose. However, we would very much appreciate it if there were enough time at the end for committee members to ask you some questions.
Mr. Gelderblom, we have with us today from the Bloc Québécois, Mr. Claude Bachand, and from the Liberal Party, the government, Messrs Elijah Harper, Charles Hubbard and John Murphy. The floor is yours.
Chief Gelderblom: Good morning. I represent the Fédération provincial autochtone du Québec, which has over one thousand members, 75 percent of whom are status Indians living mainly off- reserve and 25 percent of whom are fourth and fifth generation Métis.
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In Quebec, over 63,688 people will be affected by these amendments, 46,708 of whom live on reserves, and 16,980 of whom live off-reserve. In addition, there is a considerable number of Métis, who no longer enjoy official status, specifically because the reserves are too small to permit them to raise their families there. That is why a number of associations were created over the years, in order to provide collective protection at all times for the interests of Aboriginal peoples living off-reserve, to discuss recommendations to be made to provincial and federal governments on the acts and regulations affecting the interests of respective governments for the well-being of the Aboriginal people living off-reserve in Quebec and in Canada, and to promote and improve economic, social, political and cultural conditions. The associations also seek to educate their members about human rights. One of the main objectives of our federation is to carry out research so as to better help Indian communities improve their living conditions.
I'm appearing before you today because we are concerned about these amendments. When I started reading them, I thought they were gibberish, and I understood why a number of Aboriginal people did not understand them. We view things very differently, even though our differences often result from our own demands. We often find the way in which laws are made to be disgraceful, because there is no recognition of us as a people. Why do we always have to fight to get something or other? It is true that in any society, there must be laws and people to enforce them. But what all Aboriginal people want in their heart of hearts is to be recognized as Aboriginal people, regardless of whether they are living on or off-reserve. For Aboriginal people, there are no limitations because they live on or off-reserve. While each nation has its own territorial boundaries, territories are vast, and we can use our own resources on these lands.
But, that is enough complaining, we have to unite so that our two peoples can live in harmony and equality, without forcing either of our peoples to live in an enclosed area in order to enjoy certain privileges, because they are only privileges.
Let me come back to the reason I am here, namely the amendments to Bill C-79. We think they mean change for Aboriginal people living on reserve, but that they are still inadequate to demonstrate that we are an independent people. For those living off-reserve, there's nothing in this bill we find fair and equitable, because we are still not recognized and, for this reason, many reserves do not see us as full-fledged members. This is in fact why a number of Aboriginal groups are forming organizations to represent their interests.
We are neither entirely for nor against the bill. We think the time is too short at the moment, because there will only be a few amendments to the Indian Act, until agreements are reached on aboriginal self-government. We think that we should be focusing more on the report of the Royal Commission on Aboriginal Peoples, which has already set out 400 important points that the federal and provincial governments should be looking at. The Royal Commission did its job, as the federal government requested. It is now up to the federal government to act on this report, in light of our needs, as an attempt to heal the wounds experienced by our two peoples throughout the history of our beautiful Canada.
Thank you for giving me an opportunity to express the day-to-day concerns of aboriginal peoples living off-reserve. I hope I lived up to your expectations.
The Chairman: Yes, absolutely, and thank you very much for your presentation, Mr. Gelderblom.
I will now invite committee members to proceed with their questions. We will start with Mr. Murphy.
[English]
Mr. John Murphy (Annapolis Valley - Hants, Lib.): Thank you for your presentation. As I understand it, you are representing the off-reserve issues. Tell me what the process is for you to have input, if any, on reserves and what you think the philosophy and the practice should be to make sure that your voice is heard within your native communities.
Chief Gelderblom: Do you speak French?
Mr. John Murphy: No, I'm sorry. We have translation.
[Translation]
The Chairman: Although the question was asked in English, you may answer in French. Your answer will be interpreted. So I would invite you to use the language of your choice.
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Since we are having technical difficulties with the interpretation, may I ask
[English]
Mr. Murphy if he would agree that Mr. Bachand asks a question in French while they check the translation?
Mr. John Murphy: Sure.
[Translation]
Mr. Claude Bachand: As you can see, Mr. Gelderblom, it's quite handy to speak to each other as Quebeckers; we don't always need translation.
I would like to congratulate you on your presentation. I am eager to meet you, because we have called each other several times, but we have never had time to talk. I will do that through our video conference, until we meet in person, because I believe much more in personal meetings than in video conferences.
I sympathize with you, because you are right when you say that people living off-reserve face tremendous problems. I know what the operating budget is in Quebec, where as many aboriginal peoples live off-reserve as on reserve.
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Claude, since we are having technical difficulties, perhaps we should give the technicians a few minutes to repair the system. I will be back later, because I am very interested in speaking with you.
[English]
The Chairman: We're suspended for ten minutes.
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The Chairman: We'll resume deliberations.
[Translation]
Can you hear me, Mr. Gerderblom?
Mr. Bachand.
Mr. Claude Bachand: I'm going to try to speak to you for the third time, and tell you again that I think you are a good guy and that I hope to meet you soon. You must be the best guy in the world, because that's the fourth time I have told you so.
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The Chairman: Would you like to tell Mr. Gelderblom yet again that he's a good guy,Mr. Bachand? Then we will ask him to tell us that he is a federalist, because such a good guy must be a federalist!
Mr. Claude Bachand: No no, then he wouldn't be a good guy.
The Chairman: They are all good guys, aren't they?
Mr. Claude Bachand: I am glad you are with us, Claude. I will not repeat what I've been saying for the last few minutes. I will rather move directly to my question, because apparently you can hear me now. I will ask it quickly, before we lose the sound again. I sympathize very much with the technicians, but I also sympathize with aboriginal people living off reserve, because we know they are the poor cousins in the current system.
According to our agenda, you represent the Fédération provinciale autochtone du Québec. Is that not the new name of what was formerly the Native Alliance of Quebec Inc.? Could you explain what happened? Excuse me, but I thought I remembered that there were two separate groups.
However, I do know that you represent at least as many aboriginal people living off reserve as on reserve in Quebec, and that you do not have the resources you need. Apparently there was very little or no consultation with the First Nations or with you. Was the Fédération provinciale autochtone du Québec consulted on the bill we have before us? Did you receive any letters from the minister? Did you hear about Bill C-79 through a national group, such as the Congress of Aboriginal Peoples, with which you are perhaps affiliated? You could take this opportunity to explain to us what happened. How were the aboriginal peoples living off reserve and the Fédération provinciale autochtone du Québec consulted with respect to Bill C-79?
Chief Gelderblom: It was one of your colleagues, the member for Kamouraska - Rivière-du-Loup, Mr. Paul Crête, who told me about the bill and said that it would be a good idea for us to express our views on it.
When I was working at the Native Alliance of Quebec, we travelled throughout Quebec to study aboriginal self-government. But this was the first time I heard about Bill C-79. I quickly wrote something up based on all the claims that came from the Lower St-Lawrence and Gaspé region, between Quebec City and Montreal. I repeated all the recommendations we received in the course of our study on aboriginal self-government. So I drafted this brief paper. Unfortunately, we were unable to travel around the province again to talk specifically about the needs and about the opinions of the aboriginal peoples on the many proposed changes. Many points have been removed, while others have been added.
That is why I was saying that we should be focusing more on the recommendations made by the Royal Commission. Its report represents the results of five years of work, and stated, at least in a fragmentary way, what the reserve wanted. There may have been some views of aboriginals living off reserve, but there were very few of them, and they did not present an overall picture.
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There are two classes of aboriginal peoples living off reserve: the status Indians and the fourth and fifth generation Métis, according to the associations, which never go back to the seventh generation, and which make up another separate class.
Our federation was created to deal more with the problems of status Indians, which other associations did not look after enough, in our view. Subsequently, we included the fourth and fifth generation people, who include our children, so that we could determine what their needs were. I don't know whether I have answered your question properly.
Mr. Claude Bachand: Yes, that's fine.
[English]
The Chairman: I apologize to you, Mr. Murphy. You had started the question and we interrupted, so the floor is yours now.
Mr. John Murphy: Thank you very much. I'm getting a bit old. I can't remember what the question was. No, I can.
Thank you for your presentation. My question was with regard to your interaction with possibly your original native community and some of your membership, how you get representation. Do lots of your off-reserve people have an opportunity to interact with their native communities, their reserves, so as to be a part of any voting that may take place, any kind of management that might take place, or is it more of a hands-off approach? I'd like your comment on what it is and what you think it should be. Thank you.
[Translation]
The Chairman: Since we are still having technical difficulties Mr. Gelderblom, I would just say that the member is trying to find out how you consulted your members so as to represent them here today.
Chief Gelderblom: We get together at special meetings or at a general meeting, which is held at the end of each year. We also hold monthly meetings at which one of the chiefs is elected, and of which I am the Grand Chief. There are six other counsellors and two elders. We hold meetings together. When an important matter comes up, we call our members to a special emergency meeting, even though they are scattered around the province, in the Outaouais region, on the North Shore, in the Lower St-Lawrence region, in the Gaspé peninsula, in Quebec and in Montreal. For meetings of this type, we send our members some documents and ask them to respond. It would be almost impossible to get them all together in the same place, because our federation was only established on February 19 last year.
You will recall that our community was formerly a part of the Natives Alliance of Quebec. There may have been some disagreement about our view of certain things. For a year and a half, I worked on the issue of Aboriginal self government and identified certain needs. It is all very well to draft a paper, but once it is tabled, it is no longer much used.
What we wanted, was to continue to advance the claims put forward by our people, to ensure that they are acted upon some day. We are little afraid that the report of the Royal Commission may be shelved as well. We want to be involved to make sure this does not happen. We want to sit down together and talk about these issues. There may have been somewhat of a lack of leadership. Once people are elected, they have to account for what they do to the people who put them in their position. It is only fair that we do the job for which we are elected.
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[English]
Mr. John Murphy: That wasn't quite the question I had. Rather, since a lot of your community would originally have ties with a reserve, I wondered what those ties are if they're there, and if you think there should be a different communication link for those members who are off reserve but want to have some input into the running of the reserve itself. I wonder what that connection is and what you think of it.
[Translation]
Chief Gelderblom: You would like to know about our connection with reserves such as Gaspé, Maria, Restigouche and Maliseet, which is considered off reserve, even though there is an area there which Aboriginal people do not inhabit. Our contacts with various band councils are quite good. We can speak with the Hurons without any difficulty, and we even represent a number of their members. When they have difficulty perhaps in getting student grants, for example, we meet and make representations to band councils. We may send a letter. Whatever the type of representation we make, the communication is good. Things are going well on the Maria reserve.
We may have more problems with the Algonquins and the Mohawks, of which we represent very few members. We may represent one Mohawk, and this 77-year old gentleman does not have many demands to raise with his band council. However, we try to reach other Mohawks through him.
We are well aware that the problem with reserves is that they get funding for all status Indians whether they live off reserve or on reserve. This is something to which they are entitled as members. The reserves are not required to give this funding to Aboriginal people living off reserve or to offer them services or housing programs. Since the funding is limited, it is used on the reserve only. Naturally, the reserves cannot afford follow up for all their members. So that explains why we are here. We are simply helping the members use various programs such as those offered by the Department of Human Resources Development, Industry Canada and SOCCA, an Aboriginal credit society. We have contacts with these various organizations.
[English]
Mr. John Murphy: Thank you.
The Chairman: Any other comments or questions?
[Translation]
Thank you very much for your presentation, Mr. Gelderblom. We apologize for the technical problems. I hope that with time, it will be possible to improve the system. This morning, we proved that the technology needs some improvements. Thank you very much.
Chief Gelderblom: I would like to thank you very much for giving me an opportunity to express my views. It is true that there are sometimes difficult language problems but I certainly enjoyed our discussion.
The Chairman: The problem did not lie with you; it was a technological snag. We very much appreciated your presentation.
[English]
We will now suspend until 11:50, awaiting Chief Billy Diamond.
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The Chairman: We'll resume public hearings on Bill C-79, an act to permit certain modifications in the application of the Indian Act to bands that desire them.
Good afternoon, Grand Chief Fontaine. This is Ray Bonin, the chairman of the Standing Committee on Aboriginal Affairs and Northern Development. I'm here with Mr. Claude Bachand from the Bloc Québécois, and from the Liberal government side Mr. Elijah Harper, Mr. Charles Hubbard, and Mr. John Murphy.
First of all, I'd like to thank you very much for having accepted to be with us today. We have 40 minutes together and those minutes belong to you. You may use them any way you wish. I see that you have colleagues with you. When you begin your presentation I would appreciate it if you would name all three of you and the role you play with the Manitoba first nations. Having said that, you have 40 minutes, and while they do belong to you, we would appreciate it if you would leave some time for members to ask questions. Having said that, Grand Chief, thank you very much again for being with us and I turn the floor over to you.
Grand Chief Phil Fontaine (Assembly of Manitoba Chiefs): Thank you, Mr. Bonin. We appreciate the opportunity to appear before the committee through this pretty interesting way of doing business. It's new for me, so we'll see how it works.
With me is Jack London, who is legal counsel to the Assembly of Manitoba Chiefs, and Ken Young, who is also legal counsel, internal legal counsel, to the assembly.
I have a written presentation and it will take me about 15 minutes, so that will leave us about a half hour for questions, I think. Okay?
The Chairman: Perfect, thank you.
Grand Chief Fontaine: I refer you to my written submission and text of the framework agreement faxed to you on Monday.
I am Grand Chief of the Assembly of Manitoba Chiefs, the political body representing the first nations in Manitoba. The assembly in general and I in particular are dedicated in our efforts to the advancement of all aspects of the life of first nations citizens; their emancipation from the paternalism, poverty, and prejudice that for so long has plagued our people; and the recognition of our people as the third order of government in Canada coexistent with and co-equal to the federal and provincial governments.
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On December 7, 1994, in pursuit of those goals, 60 first nations in Manitoba, represented by the Assembly of Manitoba Chiefs, entered into an historic agreement with Her Majesty the Queen in the right of Canada, as represented by the Minister of Indian Affairs and Northern Development. That agreement has since come to be colloquially known as the Framework Agreement Initiative, a copy of which is attached to my written submission.
This agreement promises the dismantling of the Department of Indian Affairs and Northern Development, the restoration of first nations governments of all jurisdictions, and the development and recognition of first nations governments in Manitoba legally empowered to exercise the authorities required to meet the needs of the peoples of the first nations. Those objectives, all of which will be consistent with the inherent right of first nation self-government, are to be accomplished on the basis of a number of core principles and mutual commitments stipulated in the agreement.
We view the Framework Agreement Initiative as one in which Canada has committed itself to a process of negotiation which inevitably and interminably will lead to further constitutionally protected agreements which will recognize and secure our place as the third order of constitutional government in Canada. It will define the way in which first nations in Manitoba will share constitutional authority with the federal and provincial governments of Canada in the future. That recognition and those agreements will flow from and be consistent with first nations treaty rights, aboriginal rights, constitutional rights, and the inherent rights of self-government, and will implement long abused and outstanding treaty rights of first nations in contemporary terms while giving full recognition to their original spirit and intent.
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The framework agreement is unbounded and unlimited in its scope. It's not limited by Canada's current inherent right policy and supersedes and is paramount to all other executive, legislative, judicial, or administrative action by other governments in Canada, including the Indian Act optional modification act, which is the subject matter of today's presentation.
I want to be very clear on this point. We welcome this government's initiative under the Indian Act optional modification act as perhaps significant to or beneficial for first nations in other parts of Canada who choose to opt in. But for our people in Manitoba, for the most part the only acceptable and relevant process in their interaction with the Government of Canada is that which takes place consensually under the Framework Agreement Initiative.
Of course, individual first nations in Manitoba, each of which act autonomously and independently, will make their own choices on whether to opt in to this legislation. The Assembly of Manitoba Chiefs certainly takes the position that it is a matter of choice for the chief and council of each of the first nations.
In our view, the proposed legislation is yet another demonstration of continued paternalism on the part of Canada. It represents a mechanism which falls short of first nations' views of Canada's obligation to recognize first nations rights of self-determination and self-government immediately.
In fact, the legislation is unnecessary in light of the Framework Agreement Initiative. Subject to the comments I will make later on the need for amendments to the proposed legislation, however, it is not necessarily inconsistent with the Framework Agreement Initiative, since in the preamble of the bill it is provided that the new legislation is intended to ``increase band council authority for local governance, as an interim measure until such time as self-government agreements are in place''. Therefore, the legislation itself acknowledges that it is transitional and, equally importantly, it contemplates self-government agreements.
Subclause 4(3) of the bill provides a non-derogation clause, which indicates that nothing in the new legislation
- shall be construed so as to abrogate or derogate from the protection provided for existing
aboriginal or treaty rights of Indians, including the inherent right of self-government, by the
recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
Once further amendments are made, the new bill would be consistent with the provisions of the Framework Agreement Initiative. First nations rights, aboriginal rights, and constitutional rights are not to be diminished or adversely affected, which is principle 5.01 of the Framework Agreement Initiative. The decision of whether or not to opt in to the new bill will be made by individual first nations, which is consistent with principle 5.17 of the Framework Agreement Initiative.
Because the new legislation is entirely optional in its impact, it is consistent with principle 5.13 of the Framework Agreement Initiative, which requires ratification by each first nation that chooses to come into agreements negotiated under the FAI and leaves all first nations the option to remain under the administration of the federal government as is.
We note further, of course, and very importantly, that even the amendments proposed by the bill will have to be amended or repealed, as they apply to first nations in Manitoba, to the extent required in order to give effect to the new relationships recognized under the Framework Agreement Initiative. That's principle 5.5 of the FAI.
In other words - and I emphasize this point as absolutely underlying my position today - nothing in the current Indian Act, whether or not amended and whether or not any individual first nation opts in, will survive the requirement of further repeal or amendment once, and as, negotiations are completed with Canada under the Framework Agreement Initiative.
In sum, therefore, my position on the proposed legislation initially is as follows. The legislation may benefit certain first nations, particularly outside the province of Manitoba, who choose of their own accord to opt into its provisions.
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The legislation is of little import or controversy in the province of Manitoba, since it is subordinate to, and irrelevant in light of, negotiations for third-order-of-government recognition presently under way under the Framework Agreement Initiative.
It is our expectation and entitlement that results be achieved under the Framework Agreement Initiative with Canada without delay and without any impediment from this proposed piece of legislation. Otherwise, it is unlikely that many first nations in Manitoba will opt into the legislation, though that is their individual decision.
Finally, to assist first nations elsewhere in Canada and ensure that first nations in Manitoba have the option to opt into the proposed legislation, if one or more so choose, there are a number of crucial amendments that must be made to the proposed legislation prior to its enactment.
I turn now to an analysis of the most important of the required amendments. This is a detailed analysis, which you will find in my written submission.
I understand that others without authority may have already tabled in this committee copies of legal opinions done privately and confidentially for us by our legal counsel, Jack R. London, on December 10, 1996, and December 17, 1996. We wish they had been held confidential, but if you have them, we commend to you the analysis, in particular the criticisms contained therein, some of which I will deal with today, and the changes our counsel recommends.
While the content of the present bill is an improvement over previous drafts initiated by Minister Irwin, it remains flawed and in need of corrective surgery. We welcome Minister Irwin's acceptance of our suggestion that the amendments be optional for first nations, and we do not question his good intentions, for the most part, in attempting to deal with day-to-day requirements, notwithstanding the many initiatives outstanding on larger scales in Canada today.
Having said that, to the extent that provisions of this bill attempt in any way to lessen or alter the fiduciary obligation of Canada to first nations and to first nations peoples, and to the extent that the proposed legislation is flawed, we call on this committee and the Government of Canada to ensure that the interests of first nations are protected. In fact, in that light, I urge the reconsideration of the following matters. I ask you to turn to page 21 of my written submission.
The proposed legislation represents itself as interim transitional legislation designed to bring more efficiency to the current anachronistic provisions of the Indian Act, and will apply only to those first nations that voluntarily choose to accept its provisions as amendments to the act. However, prior to enactment, the bill, for those first nations that may chose to opt in, must be amended to rectify a number of flaws, as follows:
(a) The bill presently does not recognize that the inherent right of self-government exists independently of the Constitution Act, 1982, and as a result of recognition under section 35 of that act.
(b) The proposed legislation does not provide for rules that will deal with conflicts that can arise where a first nations citizen has relationships to, or property on, more than one reserve in Canada with different property regimes.
(c) The proposed legislation requires only a simple majority of a band council to opt in without first requiring consultation with the electorate of the first nation.
(d) First nations must accept all of the amendments as a package without having the opportunity to chose to accept some of the amendments while rejecting others.
(e) Clause 8 of the proposed legislation ``corporatizes'' first nations without recognizing them as public bodies performing a function of government in Canada.
(f) The provisions of the proposed legislation that deal with the management, control, and disposition of reserve lands should be made subject to a general clause that appropriately preserves the minister's fiduciary duty, in appropriate cases, to first nations.
(g) The minister should be required to accede to band requests for management and control and should not have the power unilaterally to withdraw such management and control by first nations of their lands and properties.
(h) Regulatory powers granted under the bill should be made subject to treaty rights in order to protect against errant decisions by a majority of a council.
(i) The electoral provisions of the proposed legislation require greater specificity and clarification so that first nations can know with precision how to take control of their own electoral processes, which should be their decision alone, without ministerial interference.
(j) The amendments proposed to the education provisions of the Indian Act should be reconsidered so as to ensure they do not abridge or diminish in any way the constitutional nature of agreements on education or the recognition of first nations' exclusive jurisdiction over education, which will be the outcome of the Framework Agreement Initiative in Manitoba.
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I would be pleased to answer any questions from the committee. I have the able assistance of my legal counsel, Mr. London and K.B. Young.
The Chairman: Thank you very much for a wonderful presentation, which will be very helpful. I will now move on to
[Translation]
Mr. Claude Bachand of the Bloc Québécois.
Mr. Claude Bachand: I would like to extend greetings to Mr. Fontaine, whom I have not yet had the pleasure of meeting in person. However, I have met with Ken Young on a number of occasions, in particular during the debates on Cross Lake and the whole issue involving Northern Flood Agreement.
Your situation in Manitoba is rather unique. I would like to talk to you about the Framework Agreement Initiative. The minister made a commitment saying that the government would dismantle the Indian Act in Manitoba and establish a process whereby the Manitoba nations would be much more advanced than other nations in Canada, because they would no longer be under the Indian Act. So we are talking here about land claims, Aboriginal self-government, and so on.
However, I do not know whether my information is accurate, but I am told that at the moment a number of communities are very concerned about the negotiations surrounding the Framework Agreement Initiative. I am wondering whether the negotiations might collapse, and whether some communities might rather be setting their heart on our current study of Bill C-79. They may think that if little progress is being made on the Framework Agreement Initiative, they will come aboard with Bill C-79. In your view, even though we may not have agreed on Bill C-79, and even though, as we know, it will have very little impact because the Framework Agreement Initiative will have priority, is there not a danger that the government may be tempted to slow down the negotiations on the Framework Agreement Initiative and try to introduce Bill C-79 indirectly?
[English]
Grand Chief Fontaine: First of all, I would like to point out to the committee members present that negotiations are active and represent significant work in progress in regarding the Framework Agreement Initiative. We're pleased with the process to date. That's one point.
The other point is that I'm well aware of the concerns that have been expressed by a number of first nations regarding the negotiations. We're dealing with those issues and those concerns. I think in some respects they're valid.
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Some of these major concerns relate to the government's ongoing and continuing legal obligations to first nations, for example, with respect to treaties. That has been our concern as well. So it's not something that's outside of whatever it is we're involved in. It requires that we be vigilant in ensuring that governments continue to meet their obligations but also go beyond the position that successive governments have taken, and that is to give full effect to the treaties. We expect that this process we are engaged in will enable us to ensure that governments are able to meet their many outstanding obligations to first nations people.
We have made it very clear that if we are to effect true self-government under the Framework Agreement Initiative, and if we are going to establish jurisdictional control over these different areas that are under negotiation, the Indian Act becomes redundant. It is clear to us that the Indian Act must be repealed or set aside for true self-government consistent with our views and interpretation of the inherent right to self-government.
The Chairman: Mr. Harper.
Mr. Elijah Harper: Thank you, Mr. Chairman.
It's good to see you guys on the TV screen. You probably can see me. It's nice to see you.
I understand the framework initiative is a process that at the conclusion, at some point in time, will replace the Indian Act. This is my understanding: that as negotiations proceed to establish a first nation government on a nation-to-nation basis, treaty-to-treaty basis, the Indian Act itself will become, as you say, redundant. This process is ongoing in Manitoba.
Is that the objective of the framework initiative? I know you also mentioned in your presentation that the framework initiative supersedes the legislative process with respect to the Indian Act, that the framework initiative is the priority of the first nations of Manitoba, the Assembly of Manitoba Chiefs. Ultimately, at the end of the process, at the end of the day, we will have established a true relationship with Canada based on our treaties. Is that the goal?
Grand Chief Fontaine: I think you've captured the essence of the agreement, Elijah. I mentioned in my presentation that there are three essential objectives to the process, and these objectives will be pursued in perpetuity. They're timeless. They are the restoration of all jurisdictions to first nations; a process to effect structures of government that will ensure implementation of the jurisdictions that we will assume control over; and the dismantling of the Department of Indian Affairs.
So what we would do, then, in this process, is negotiate agreements that would be accorded constitutional protection under section 35, which will give them, according to our understanding and our view, protection that is provided existing treaties.
In this process, if we are able to effect an autonomous government according to the objectives of the agreement, federal legislation like the Indian Act is unnecessary. In fact if it continues to be in effect in Manitoba it will make it impossible for us to effect the kind of control that is envisaged under the FAI process.
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Mr. Harper: I don't want to take too much of the time here, but is it then your understanding that the committee process, the government process we're involved in, is not a constitutional process but rather only a legislative process in which...? Even in the legislation itself, the preamble states that treaty and aboriginal rights will not be derogated nor abrogated, including the inherent right of self-government.
The reason I ask this question is that there is a lot of misunderstanding about this legislation, and a lot of people fear that somehow our treaty rights will be affected. As stated by the government, this is stand-alone legislation, it is not even an amendment to the Indian Act, and also there are opt-in provisions. There is also concern within the opt-in provisions, fear expressed by some people that at some point the government will use this as a way to coerce the bands into opting in, by way of maybe refraining from instituting some programs or withholding some financial aspects of the relationship we have with the federal government. Those are issues that arise from the colonial relationship we've had, that arise from the mistrust of the governments.
I believe those things are founded, but I believe the first nations of Canada will ultimately decide their destiny. I have a great confidence in our people to uphold their identity, their own institutions. Anything that is devised for them, either by the Indian Act or other things, will never happen. I feel that a lot of people are at a point where we've hit rock bottom and the only way to go is up, and we'll survive, no matter what. So I think the destiny of our people is in capable hands.
The only guarantee we have to our people is to provide education to our people and to uphold our identity, our language, and develop our own institutions.
My question, initially - and maybe you'll want to elaborate - is in regard to this fear that exists among the first nations, not only in Manitoba but across the country in terms of its process. This is only a legislative process; it is not a nation-to-nation process, nor is it a constitutional process. I think those things will come about, such as the framework initiative happening in Manitoba.
I want to ask you to maybe express your views on what I have just said.
Grand Chief Fontaine: Thank you, Elijah.
Your interpretation and understanding of the process is consistent with ours. That's how we view it as well. It's legislative; it's not constitutional.
We see the Framework Agreement Initiative, as I said earlier, as being paramount to any other process, including the one we're engaged in now in our discussions. Clearly, we see that the government's fiduciary relationship will continue, in accordance with judicial decisions, aboriginal rights, constitutional provisions, including section 35 of the Constitution Act, 1982, the treaties and other laws and sources of law, or any of them. This is something I think is important, that it be recognized as such.
Whatever you're doing now through this process will not alter in a fundamental way the historic and ongoing relationship between the federal crown and first nations people. But clearly, based on the understanding that ultimately and very soon first nations in Manitoba will be able to structure a distinct order of government that will be co-equal with the other two levels of government...that's our ultimate objective here in Manitoba.
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What we expect from government is complete support for this process, and so far there isn't anything that would suggest to us that we have less than that required support. In the event that government were to stall for any reason, we would see that as a breach of honour on their part and it would force us to become more firm and more united and more demanding in ensuring that the terms of the FAI, which is a legally binding agreement, are honoured. We expect nothing less from the federal government.
The Chairman: Mr. Finlay.
Mr. John Finlay (Oxford, Lib.): Thank you, Mr. Chairman.
Chief Fontaine, I want to thank you for what has been for me the clearest presentation of the intention of what I read in Bill C-79 as an attempt to allow those forced nations that wish to do so to take advantage of some more control over their own affairs. I thank you for putting it in perspective with the Framework Agreement Initiative.
In your talk, when you said that in Manitoba the first nations are to be partners or at least equals with the other two levels of government, you were referring to the provincial and the federal, I take it. My question comes up with some of the amendments. I'm sorry, I don't have the text of the amendments, but it seems you said the minister should not have power to override band councils on certain land agreements. I think you mentioned that the voting in elections of band councils doesn't have any role for the minister.
Would you comment on that in light of the Charter of Rights and Freedoms and the Constitution of this country? You talk about section 35 and so on, and I agree with you. Who is going to be responsible for seeing that some of those overriding aspects of the constitution, which I think are pretty important for a democratic nation, are looked after?
Grand Chief Fontaine: We're talking about a process that will ultimately establish a distinct order of government, as has already been indicated. There is a requirement and there will be a requirement on the part of our government to make all decisions representing the interests and rights of our people. Ultimately we will make that decision.
It can't rest, as it does now, in the hands of someone who is external to our community and sits somewhere other than within the confines of our communities and our government, because that is where the action is. That's where the decisions have to be taken. Any suggestion that we will be less protective than governments are today.... We don't have any lessons to learn from governments that have been responsible for our people. I think you have to accept the fact that we're going to be as protective and as caring and as sensitive about the interests and needs and rights of our people as governments are today with our citizens.
Mr. John Finlay: That partially answers my question, except that we in government, those of us who are supposed to study these things and are doing it with you and make the laws, are also subject to the Constitution of the country and the jurisdiction of the Supreme Court if we get into an argument with a province.
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I'm simply suggesting that the first nations, however they control things on their own, and I certainly agree with that, will also have to be partners in that framework we call Canada.
Grand Chief Fontaine: We accept that. We've made it very clear that the process we're engaged in, and whatever it is we ultimately structure, will be consistent with the existing framework. We're not suggesting operating outside of that framework. We've made that very clear. We believe in the integrity of Canada and we wouldn't do anything that would undermine it. We're not talking about secession. We're not talking about independence. The sovereignty we talk about in this process is all about defining our place in Canada. So anyone who would oppose the process we're involved in is really being anti-Canada, in my view.
Mr. John Finlay: Thank you.
[Translation]
Mr. Claude Bachand: Mr. Fontaine, there has been an idea going around here for some time, and you may be one of its promoters. I would like you to clarify your views on this for us. Some say that regardless what legislation is passed by Ottawa, the Aboriginal people will always overcome it and slip through it. In your case, you are referring to the Framework Agreement Initiative. You are saying that you are guided by it, and even though Bill C-79 may be somewhat dangerous, you do not care, because the Framework Agreement Initiative will have priority. That is exactly what you said.
You also said that if things were to work out differently, you would see this as a breach of honour on the part of the Crown. You are Indians who have been living under treaties since Confederation, but these treaties have not been honoured. I think it is somewhat dangerous to say that regardless what happens, regardless what legislation is passed, you will overcome. I think you should be more cautious and say that if Ottawa passes legislation on matters that could have an impact on you, you should not only be paying attention to it, but you should also be opposing it if you think that it could be an obstacle in your current negotiation. Could you please clarify your approach in this regard and tell me whether I have understood your views correctly or incorrectly?
[English]
Grand Chief Fontaine: First of all, I want to make clear that you understand there has been no suggestion on my part that we're above the law or that what we'll set in place here will place us above the existing governments. I think I've made it very clear that we're talking about operating equal in stature to the other two levels of government. We want to be co-equal. We accept, as I said, and support the integrity of Canada, and I think anything less than that would go against the spirit of the agreement we've negotiated in Manitoba.
What we of course see as the appropriate process is that we in this agreement and the process that ensues will be able to negotiate self-government agreements under the FAI that - I'm quoting from my written submission - specifically address and secure the fiduciary obligation of Canada, which put in place a true system of responsibility and accountability for first nation government.
As all governments now are obligated to be accountable to their citizens, whatever we do will ensure transparency so that we will be subject to scrutiny by our citizens as well as ensuring we will have arrangements that will obligate us to the governments we negotiate agreements with, be it the federal government or the provincial governments.
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The other point here - and I've asked advice from my legal counsel - is you ought to refer to the amendments I've recommended. There are nine specific agreements that we believe will tighten the bill before you and will ensure that the proper protection is put in place for the special relationship and the special rights that are currently held by first nations in Canada. Anything less than that I think would be irresponsible on the part of governments to move forward.
The Chairman: Mr. Bachand?
Mr. John Finlay: Will we get a copy of those amendments, Mr. Chairman?
The Chairman: I understand they were faxed to us yesterday. We did not receive them. Did the clerk's office receive them?
Grand Chief Fontaine: They were faxed on Monday.
The Chairman: That's yesterday. Who did you fax it to?
Grand Chief Fontaine: To the clerk of the Standing Committee on Aboriginal Affairs and Northern Development, Christine Fisher.
The Chairman: Okay. Members, we're going to ask that these be faxed and be in our office when we return from these meetings today. So we will have a copy of it.
Grand Chief or your colleagues, if you have a desire to make closing remarks, we still have15 minutes. We are extending the presentation, it's so interesting. So we have 15 minutes. If you wish to make any closing remarks, you're quite welcome to it.
Grand Chief Fontaine: Ken will.
Mr. Ken Young (Legal Counsel, Assembly of Manitoba Chiefs): I'm going to make one comment, which is that if there is going to be an amendment to this bill, I would certainly like to see the notion removed that chief and council should be given the mandate to bring first nations into this legislation. If there's going to be one amendment made, it should be that people in the community be given an opportunity to speak and to decide whether or not this legislation would be good for the community.
That's my only comment. I'll leave that with you.
The Chairman: Thank you very much. It's a good point, and it's being noted by members, who will be the ones who will have an opportunity to submit any amendments they wish.
Having said that, I want to thank you very much, Grand Chief, and your colleagues. I know how difficult it was for you, because you have a very busy week. We do appreciate your participation. It would have been a great loss to us had you not been able to participate.
Thank you very much, and we bid you farewell. We're on our way to Edmonton now.
Grand Chief Fontaine: By way of closing remarks, I want to thank you for giving us the opportunity to present. We wish you well in the very important work you're engaged in right now. It's important for first nations, and I hope you'll see fit to consider very carefully all of the important recommendations that are being advanced by first nations, because change is desperately needed and we believe that your work can lead to some important changes, though we recognize the interim nature of what you're doing.
We give you our support.
The Chairman: Point well taken. Thank you very much.
The meeting is adjourned.