Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 4 - Evidence
OTTAWA, Tuesday, April 15, 1997
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-12, providing for self-government by the first nations of Canada, met this day at 10:06 a.m. to give consideration to the bill.
Senator Landon Pearson (Chair) in the Chair.
[English]
The Chairman: Honourable senators, we have a quorum.
We are particularly interested to hear from our witnesses about the legal and constitutional aspects of Bill S-12.
Please proceed with a short introduction.
Senator Tkachuk: The witnesses are not prepared to speak. A number of senators wanted questions answered on the Charter and certain constitutional issues. We have addressed quite a few of those questions in the presentation we made at pre-study. These witnesses were brought here to answer questions, but the senators who asked those questions are not here.
As a legislator, I am happy with everything. I do not know about the other senators.
The Chairman: Several members of the committee are new since you originally presented. It was the intention that they be brought up to speed on the issues, particularly the legal and constitutional issues.
Ms Catherine Twinn, Legal Counsel, Lesser Slave Lake Indian Regional Council: We can make a brief presentation to reacquaint you with the major issues.
The Chairman: That would be helpful for Senator Anderson and myself. I would be happy to hear how you see this fitting with the Constitution, federal-provincial relations and the Charter of Rights and Freedoms.
Ms Twinn: A good summary of the legislation is provided on the back of the cover page of the bill. The preamble is important because it sets out the framework for this legislation. It is clear that legally the Crown has enjoyed long relations within the Indian tribes, bands or bodies of Indian peoples. That predates the Indian Act. There were hundreds and hundreds of treaties entered into; treaties of trade, commerce and friendship, basically founded on the principles of mutuality, reciprocity and mutual benefit.
I recall reading about an Iroquois leader who, in 1645, came down the Three Rivers to meet with a delegation who were his enemies. He said, "I have come to make known to you the thoughts of my peoples and of my country and I know that in coming I may be risking my life."
As a result of his effort, a treaty was entered into, but two years later it was broken, which resulted in the Beaver Wars which lasted for 50 years and in which many lives were lost. There is a long history here. It is an important, rich history and it is important that it be understood.
The Indian Act did not create Indian bands, bodies or tribes, although you may see that idea surface in legal arguments presented to courts of law by lawyers from the Department of Justice.
The Indian Act is not a complete legislative code governing all matters Indian. The Indian Act is legislative recognition of these ancient bodies, bands or tribes of peoples. At core, they are communities.
I will not go into the community topic because if those of you who are new to the committee read the testimony given before this committee on a number of different occasions, you will hear firsthand about what is community, the value of community and the ways in which community is destroyed.
At core, the Crown has always recognized these communities and most recently, in the Van der Peet case, Chief Justice Antonio Lamer commented that the reason the peoples have Indian or native title is not because it was given to them by the sovereign or the Crown, but rather it was recognition of their legal rights and interests which pre-existed the coming of the Europeans, and that this legal reality arises from one fact and one fact alone, that being that prior to the coming of the Europeans these peoples were living together in communities, in organized societies according to their own customs, laws and practices. The preamble of the bill provides some contextual framework to the legislation.
The purpose of the legislation is set out in clause 3 which states:
The purposes of this Act are to enable the communities of indigenous people inhabiting lands, reserved for Indian communities to exercise the jurisdiction and powers inherent in their status and to enunciate the status, jurisdiction and powers of those communities.
That is the purpose. It is very clear and simple.
Clause 4 describes to you how a community can come under this legislation, and there is quite a process that the community must follow. The community must put together a proposal which sets out a number of items which are set out in clause 4(3)(a) through (h). They must also put before the people voting, as set out in clause 4(4), the draft constitution. The constitution is an important document. It is by the people, for the people, of the people, of the community.
The constitution is the mechanism which expresses their rules, their will, their caveats on the exercise of power that the community institutions will be recognized as possessing under this legislation; for example, financial accountability, political accountability, social accountability and the calling of meetings. All those types of items are included. It is up to the community who knows best what their needs are, what their priorities are, what their concerns are and how they can create a balance.
To best explain this legislation, I will use a simple analogy. You have the Indian Act now and you have federal administrators exercising responsibility toward these communities. Remove them, drop the community into their shoe, and then you understand the legislation. Many of the constitutional and legal issues that may be in your mind will also evaporate because this bill does not change the status quo. It simply exchanges federal bureaucrats with the community.
Clause 5 is under the heading "Coming Under Act".
The next important section to go to is clause 8 which is the legislative powers. It reads:
The First Nation is hereby recognized as having the power to make laws for the peace, order and good government of the First Nation, and, in particular, without limiting the generality of the foregoing, may make laws respecting the subject-matters enumerated in Schedule II, subject to any restrictions on the law making power in the constitution.
Schedule II is at the very back of the bill. There you will see an enumeration of what those specific examples include. They include elections and referendums, practice and procedures of the First Nation, exercise of First Nation powers, internal management of First Nation, lands of First Nation, property and money of the First Nation, et cetera.
Clause 10 is also important. It states:
A law of the First Nation applies only within the territory comprising the lands of the First Nation unless otherwise provided for in this Act or in a law of the First Nation made in relation to a subject-matter in items 13, 14, 15, 16, 17 or 33 of Schedule II.
Those items referred to in Schedule II include education, child welfare matters, custody placement of children, wills and estates, dissent of property, trusts and custody and adoption. Right now, for example, the Department of Indian and Northern Affairs administers a very large post-secondary education fund for the Indian peoples wherever they are. That is not territorially restricted to the reservation. It is, therefore, not a change from the current situation. There are also other examples that we could provide to you, but I think that will come up in the questioning process.
Clause 11 provides for a mechanism in which the laws of the community can be enforced. At present, there is a legal vacuum or void for band by-laws and the enforcement of them.
I remember Jerry Kerr, who was Regional Director General for Ontario from the Department of Indian Affairs, telling me about community in Ontario. Certificates of possession are used on their reservation lands and an individual of the community had a certificate of possession. They then gave access to that parcel to a non-Indian who was dumping tires on the land. The community was pretty concerned about this but found themselves powerless to address it properly through their own laws and the enforcement of them because there is not proper enforcement.
Currently, if there is a band by-law and there is a punishment imposed, the RCMP do not normally enforce those by-laws. It is very haphazard and very frustrating.
One of our communities passed a by-law prohibiting alcohol on the reserve. It was submitted to the Department of Indian Affairs. As you know, under the Indian Act the department has been judicially determined as having absolute power -- which I find dangerous -- to reject a by-law for any reason and they do not have to provide reasons. They do not even have to explain themselves.
However, this community passed such a by-law. It was approved by the department within the 40-day period in which they must approve or disapprove. It then came into force. A local band constable was enforcing the by-law. Signs were erected on the reservation saying that this by-law was in force and that there would be penalties imposed. They were able to curb at the community level the problems that were being caused by the small group of mischief makers in the community who were damaging property and committing alcohol-related crimes, because they realized there would be consequences.
However, one day a federal Department of Justice lawyer looked at the by-law and decided that it might violate the Charter rights of some people in the community. A letter was written -- not to the community or the band government, but to the Alberta Department of Justice. A decision was made that there would no longer be co-operation at the local provincial court level. Up to that point, the provincial Crown prosecutor had been accepting these informations sworn by the band constable and prosecuting them in the court.
Suddenly, the entire enforcement mechanism was literally snatched away without even discussion with the community. The only way in which the community found out about this was through the courtesy of the local staff sergeant of the RCMP who told the community what was happening.
The band government was extremely distressed. It realized that it was a eunuch. The mischief makers in the community thought they could once again do whatever they wanted and the community interest had no way of expressing itself in a legal and orderly fashion.
Clause 11 is important because it sets out that there will be a maximum fine or a maximum term of imprisonment imposed by or under any law of the First Nation, which basically does not exceed summary conviction offence.
Schedule II of the bill gives the community authority to establish courts and tribunals of criminal and civil jurisdiction. A lot of federal moneys have flowed into the Northwest Territories where they now have Indian Justice of the Peace courts with full summary conviction jurisdiction.
We in the Lesser Slave Lake Regional Council area have established our own police service called the Lesser Slave Lake Regional Police Service. We are taking over authority from the RCMP. That police service was established pursuant to band by-laws. I am on the police commission. We are in the process of setting up sentencing circles and working on the appointments of justices of the peace. As you know, JPs have input every inch of the way in the criminal process and they must be independent and impartial and have security of tenure and remuneration.
There will be many ways in which to have cooperative relationships with the other levels of government in terms of agreements and protocols, et cetera. This will keep things very balanced and accountable. In any relationship, you begin to create all sorts of leverage and influence to work toward the proper end.
The next important part of the bill is clause 16 which reads:
The absolute ownership of its reserves and such other of its lands as are lands reserved for the Indians within the meaning of section 91(24) of the Constitution Act, 1867, passes to the First Nation on the day the First Nation comes under this Act, subject to the rights, interests and conditions referred to in section 17.
Clause 17 protects acquired rights; third party rights. So those interests are carried forward and act as a binding force on the title.
I will now go to clause 28 of the bill which provides for an organizational option to the First Nation. Clause 29 recognizes that First Nations may come together and form what is called a "confederate body politic", which is really what the Lesser Slave Lake Indian Regional Council is. It is eight individual Indian bands which have traditionally come together on important matters of common interest recognizing that there are some issues that they must come together on in order to benefit the community.
This body politic may have some of the legislative power delegated to it. It would make sense for some of the institutions which have been established and need to continue to operate, be they courts, tribunals, areas involving child welfare, et cetera.
Senator Taylor: Before you leave clause 28, who has the right to vote on an amalgamation?
Ms Twinn: The community at the community level.
Senator Taylor: Those that are being amalgamated?
Ms Twinn: Yes.
Senator Taylor: Those outside the amalgamation do not have a vote, even though they may be leaving the group?
Ms Twinn: Amalgamation means two communities forming one.
Senator Taylor: But they are coming from somewhere else.
Senator Twinn: For example, four bands may want to amalgamate.
Senator Taylor: Let us say that one band wanted to amalgamate with the Sawridge. Would only that band be allowed to vote on the amalgamation? Would the other bands around them have anything to say about it? It is like separation in other words.
Ms Twinn: In the 1930s in the United States, under the Indian Reorganization Act, they lumped a bunch of communities in as one and created a central government. That may or may not have worked. In those cases where it did not work for very practical reasons, such as linguistic, geographical, cultural or other differences, there is continuing friction because the body politic of the central government will make decisions with which a community which still sees itself as distinct and separate does not agree.
For example, in Arizona, the Tohono O'odham outside of Tucson have reserve land. Water is a big issue in the southwest. When they were centralized, a lot of the community power was lost to this central Indian government. The chairperson of that central Indian government was having discussions with the city of Tucson about the sale of water rights from that community to the city. Of course, Tucson cannot grow unless it gets this agreement, so there is a lot of power and a lot of pressure.
The community is fighting on two fronts. They are fighting what would be seen as internally, their own central government, which is interested in a cash deal and they are not willing to sell their resources. They are also dealing with Tucson and outside interests which wish to acquire some of their rights.
In this case, this is avoided. I caution that centralization is very dangerous because we are talking about communities. When we appeared before this committee previously, we talked a lot about community. I know that some may have wondered why. I cannot overemphasize how important it is that the power over the community be in the hands of the community. Without that, nothing will work; not the local health standards, the local ecological standards or the local economy.
When outside interests are managing community, which is really a form of apartheid -- outside management and control -- that is when you have problems and conflict. That is when things get done which are not sensible. It may take a long time before that conflict manifests itself, but it will come out. It will not work.
Mr. Michael McKenny, Legal Counsel, Lesser Slave Lake Indian Regional Council: Senator Taylor asked whether only the party that is joining or leaving gets to vote. It is not like a portion of a First Nation could leave and only that portion would vote. It is not like Quebec saying they can decide to leave. It requires a vote by 80 per cent of the people. Using Canada as an analogy, 80 per cent of Canadians would vote to see if part of it could divide and the terms of division would have to be set out before the vote. It would be much different than the analogy you used.
Ms Twinn: Going to clause 34, I will turn that over to Mike McKenny. This is an important clause based on the questions that we understood were going to be asked.
Mr. McKenny: I am a lawyer with the Sawridge Indian Band and also here on behalf of the Lesser Slave Lake Indian Regional Council. I helped draft Bill S-12. It was primarily drafted by Jim Ryan but I assisted him and he has been kind enough to join us here. He may be able to answer some questions as well.
Senator Twinn: Mr. McKenny is also the executive director and looks after all the band business. That is important because he knows the problems that First Nations or bands face with the Indian Act. He is not just a lawyer. He is working with it every day.
Mr. McKenny: We have distributed to you a flow chart which I will use to attempt to explain clause 34(1), (2) and (3). That clause is confusing to some and we hope that this will help to explain it.
Starting at the top of the chart, you are faced with a situation where a First Nation law has been passed and you want to know whether a federal law of general application applies and which law you look at.
You must first ask whether it is a federal law of general application. If it is not a law of general application like the Indian Act or a special law, obviously it would not apply. This clause is only meant to deal with laws of general application. The Criminal Code is a law of general application.
You must next ask whether it is consistent with the treaty and land claims agreements.Obviously if it is not consistent with those agreements, it would not constitutionally apply because clause 35 would stipulate that. This bill reiterates that the law of general application must comply with treaty and land claims agreements.
Assuming that it does, we must ask whether it is consistent with this bill. Obviously this bill, should it be enacted, would affect some other acts. It will affect the Canada Environmental Protection Act to some degree although the basic environmental rule set out in this bill is that the First Nation must choose either CEPA, which is a Canadian standard, a provincial standard or its own standard, but it cannot go lower than the lowest of either provincial or federal standards.
Assuming that the federal law of general application is consistent with this bill, we must then ask whether it is consistent with the laws and constitution of the First Nation. If the federal law of general application is consistent with the laws and constitution of the band, it will apply. They are concurrent laws. They both deal with the same subject matter and they do not conflict, so they both apply.
If the law is inconsistent with the law of the First Nation, then we must go through this more complicated process to see if it will apply. We first must ask whether it is an enumerated matter in section 91 of the Constitution. In other words, is it a matter that the federal government has enumerated as a head of power. If it is, we must see if this federal law of general application would apply in a similar circumstance in a province. In other words, if the province has a power to pass a law under its property and civil rights jurisdiction, which is seen by a court as paramount to a law the federal government passed under trade and commerce, then the First Nation would be in the same shoes as the province. In most cases, the federal law would be paramount and that would not happen.
If the province can pass a law that overrides the federal law, then we come into the two tests that have been enunciated in the past as setting out what the residual powers of Parliament are. These are whether it is a distinct matter inherently of national concern. The Criminal Code is a distinct matter which is of national concern. It cannot be overridden.
Assuming it is not such a matter, then the last test is whether the matter is a temporary extraordinary law to avert a major disaster. Such laws would be the War Measures Act and other temporary laws passed in the past for national emergency purposes.
We skipped the box in the middle of the page on the right-hand side where it says, "Enumerated matter in section 92 of Constitution". Normally Parliament cannot pass a law which is enumerated in section 92. This section would come into play is the territories or other areas where the federal government can pass laws dealing with matters that might be in section 92. In addition, there is a lot of overlap between sections 91 and 92 and if a federal law is ever passed that may cross that boundary, this would cover it. So it is basically treated in the same way as a law passed under section 91.
The second chart we have distributed helps to explain sections 91 and 92. The large box represents all possible powers of a government that are included in the phrase "peace, order and good government". The dark circle on the left represents all those powers enumerated in section 91. The dark circle on the right represents all section 92 powers. These, of course, overlap in cases like property and civil rights in the case of the province and trade and commerce in the case of the federal government. There is some overlap there and some would argue that there is more overlap than I have shown.
The large lightly drawn circle represents national concern, which overlaps quite a lot of the section 91 powers and some of the section 92 powers. It covers some things which are not enumerated in either section 91 or 92; some of the items that were not set out but are considered to be included within peace, order and good government.
The final small circle at the bottom represents emergency powers which will overlap both those powers enumerated in section 91 and those powers enumerated in section 92, and may include other matters that are not set out there.
I know this is a very confusing area and I am sure you will have some questions.
Senator Beaudoin: Before going any further, what is the status of this federal statute? It is stated at the beginning that it is enacted by the Senate and the House of Commons, so it is a federal statute. You referred to powers. Up to there, there is no big problem.However, when you are dealing with sections 91 and 92 there is a little problem. We may amend section 91 or section 92, but we need a constitutional amendment, not an ordinary statute.
What is the status of this statute? Do you consider this as constitutional, quasi-constitutional, a third order of government or what? If it is the equivalent of sections 91 or 92, and if in some cases this is paramount over sections 91 and 92, I come to the conclusion that it is a constitutional statute. There is no other conclusion.
If this is a constitutional statute, we must follow the rules of the Constitution and sections 91 and 92 may be amended only by seven provinces and 50 per cent of the population. I would like to know where we are going. It is interesting; it is fascinating. If it is an ordinary statute, I have no problem. However, if it is a constitutional statute aimed at amending sections 91 and 92 and creating another order of government, I am not against or for, but I would like to know before going further.
Mr. McKenny: This is not meant to be a constitutional bill. In order for it to be a constitutional bill it would have to go through the constitutional amendment process, and we know how very difficult that is in this country. It is meant to be an ordinary statute.
The only reason we have referred to sections 91 and 92 is that those are concepts that are known. They have been through the judiciary and people know what is included in them, so it is a way of enunciating what powers exist in Canada. We are not trying to amend section 91 or 92. We cannot amend sections 91 and 92 of the Constitution of Canada with an ordinary statute.
This is merely a way of enunciating those powers that the First Nation is recognized as having. If you look at the analysis closely, you will see that the powers are not all of sections 91 and 92. They are not very broad. In fact, they are mostly of a local and private nature similar to what a province has. They are more akin to a local government than to a national government. There are no provisions that a First Nation could set up an army, its own legal tender or its own Criminal Code. Those are not intended to be the kinds of things a First Nation would do.
Senator Beaudoin: If it is a delegation of power, there is no constitutional problem. If it is the federal authority that is constituting an authority by the territories, I may understand that, but if it is the Parliament of Canada establishing an order of government that is in all respects equal to sections 91 and 92, it may be done, but by a constitutional amendment only.
You say it is not that. However, I heard a moment ago that it may prevail over a federal or a provincial statute. Is that not the case?
If sections 91 and 92 remain as they are and if this is a statute that is recognizing some powers to the First Nations, pursuant to section 91(24) I have no problem with that. This may be done right away. However, I am not sure, when I listen very carefully, that it is only that. It is a devolution of legislative powers to a very great extent.
I am not on the merit of the bill yet. I am just worried about the process of this. If it is within the ambit of legislation, it is all right. However, we must know right from the beginning if it is tantamount to a constitutional amendment.
Mr. James Ryan, Legislative Drafter, Lesser Slave Lake Indian Regional Council: Madam Chair and senators, I realized today that it was some 34 years ago when I first appeared before a Senate committee. For 13 years, I was almost a regular witness trying to explain why bills were drafted in the fashion they were. I have always enjoyed it. The senators were always intellectually stimulating, much more so than in committees in another place that I will not mention. I am glad to be back.
This bill is different in a number of ways in its framing from the usual run-of-the-mill bill on which I have worked. Senator Beaudoin's concerns might be better addressed if I explain the considerations that went into the framing of the bill.
At the outset, I was directed to be concerned that the bill not suggest that a First Nation be a creation of Parliament. That was the first concern of the draftsman. I think we succeeded in doing that. That may be part of your problem, senator, although I am not sure.
The second major concern was to so frame the bill that it would meet the criteria for Senate bills. I believe, from the fact that you are here in committee, that we succeeded in doing that.
The third criteria was to stay within the legislative authority of the Parliament of Canada under section 91(24) of the Constitution Act, 1867, and we did that.
To the best of my professional legislative drafting experience, there is nothing in this bill that takes away from Parliament in any way.
While the bill is to create a general act, it will be a special act in relation to any First Nation.So if some things of the act do not fit the circumstances of a First Nation local community, they can petition the Parliament of Canada for an alteration of the special act as it relates to them. In that sense, it is a general law which, like a corporation, First Nations can apply and operate under, but if need be it can be altered.
If anything here is politically harmful or socially harmful in the future, Parliament is perfectly free to change it. It is not taking away anything from Parliament. In that sense, it does no harm to the parliamentary process. Anything that is here that appears to be an encroachment on the provincial jurisdiction is really already determined to be within federal jurisdiction.
Senator Beaudoin: Thank you very much. That is clear cut. Do you have an example of where there would be an encroachment on section 92 or section 93?
Mr. Ryan: Examples would be education or property and civil rights, inasmuch as it effects an Indian.
Senator Beaudoin: I have no problem with that because, as you say, it is designed in such a way that it is within the ambit of section 91(24). This satisfies me.
Senator Watt: Before we lose sight of the issue with which we are now dealing, I would like further clarification. I thought I had a clear understanding of the draft bill. However, while listening to your explanation of this flow chart I began to wonder whether I have a clear understanding.
In relation to section 91(24), one of your targets is to have the responsibility of the Department of Indian and Northern Affairs transferred to the community level through a governing authority at the administrative level. I understand that and I do not quarrel with it.
Section 92 is a provincial power and from time to time, whether or not it is an administrative transfer, if through this proposed bill you get your own governing structure, you will be stepping on the provincial power, because the provinces, whether we like it or not, are providing goods and services to our community to a certain extent.
In that area, I feel that there must be some willingness on your part to negotiate between two governing authorities. The same thing will apply under section 91. Section 91 goes a little beyond that even, because, in my personal opinion, section 35 of the British North America Act, which was renegotiated in 1982, still requires implementation.
Keeping that in mind, I felt that this bill would be instrumental leading up to that, that it would be enabling legislation. For that reason, I welcome very much your private member's bill.
I believe that all those areas still need to be clearly answered. If you are going to equip yourself with the power and authority to be able to stimulate legislation, sooner or later the government of the provinces or the federal government, depending upon what jurisdiction you are tackling, will have to react, negatively or positively. How do you deal with that? Therefore, you must seriously consider building in a dispute resolution mechanism or provision for negotiations.
I see this bill very positively, although some senators and politicians have not. I am trying to look at this very positively to see whether this instrument will be a required tool in the future to further develop section 35.
Mr. McKenny: I will try to clarify this for you. First, I did not address provincial laws in this chart. It can be adapted to cover them. However, the basic rule is that all provincial laws of general application will apply unless they are inconsistent with the laws and the constitution of the First Nation. That is very similar to the situation right now.
Under section 88 of the Indian Act, provincial laws apply to Indians on reserves to the extent that they are not inconsistent with by-laws of the band. Right now, a band can pass a by-law that overrides provincial rules. In addition, the Indian Act deals with a number of matters that are in the provincial realm of powers; education, wills and estates, property and things like that. We have not attempted to change the status quo.
The federal government has exclusive power over land reserved for the Indians. That is in section 91(24). The province does not have power to pass laws under its section 92 powers dealing with those lands and the federal government has incorporated by reference, using section 88, the provincial laws only to the extent that they are inconsistent with existing federal law and First Nations law.
Ms Twinn: My mother was a property owner and taxpayer in the city of Edmonton. When she took ill, I brought her to the reserve so I could look after her. She could no longer get out of bed. I phoned the Athabasca Health Unit, a provincial health authority, to ask for a bedpan and they told me, "No, she is on reserve. We do not provide services on reserve." There was a flurry of letters back and forth between myself and, ultimately, Nancy Betkowski who was then the Minister of Health in Alberta. That is the reality most of us are facing every day in many ways.
Senator Watt, being from Northern Quebec as you are, perhaps you do not experience that, but those of us on the reservations do. We are constantly confronted with the reality of who has jurisdiction and who will take the responsibility. Neither government wants to. They are each pointing to the other. The people in the community are the ones who whither. The people in the communities are the ones who suffer.
All this legislation does is to set out that the community has that responsibility. If the community exercises its responsibility and passes a law, it bumps out provincial laws. If it does not, provincial laws apply. If it does, I would think that my community, for example, would make an agreement with the Athabasca Health Unit. Since they are already in business and since we do not have a whole lot of money, we would ask them to extend their services on reserve.
We already do that with the town with respect to water and sewage. The only problem is that we have to go up the federal bureaucracy and then down the provincial bureaucracy. That is the mess; that is the impediment; that is the delay; that is the cost; that is the frustration. That is the part we want to eliminate so that we deal directly with those people with whom we need to have a relationship.
It will also save the taxpayer, because right now the Indian industry is a $13 billion-a-year industry. It was not that long ago that the Auditor General of Canada said that the Department of Indian and Northern Affairs was gobbling up as much as 80 per cent of the moneys appropriated by Parliament on its own internal administrative costs.
Senator Watt: I have no problem whatsoever with you wanting to take on the administrative responsibility. I think that is long overdue. I am just wondering whether you are putting a shield on yourself. Let us look at it realistically. Provincial governments have powers. Provincial governments have money. The provincial governments administer the various programs that you want to be able access.
Would it not be more expedient if you could eliminate the big stumbling block, the Department of Indian and Northern Affairs that you have to channel through to accomplish anything at the community level?
I see no provision in this bill which would allow you to begin dialogue between your governing structure, when this happens, and the provincial government. I can also understand that when the Government of Canada enacts your law, it becomes a law. It does not mean that you are already claiming enforceability. This is where I see the shortfall.
Are we going to create legislation pretending that it is empowering you when in a sense it will not do that? That is what I am pointing out.
Mr. McKenny: We recognize that First Nations cannot be self-governing in a vacuum. They will have to operate within Canada. They will have to negotiate with provincial governments. They will have to negotiate with local municipal governments on certain matters. It is the only efficient and expedient way to do business. Many First Nations would not have the resources to do many things unless they did that. We have not legislated that someone should negotiate. Certainly we anticipated that First Nations and provinces would want to negotiate and that they would do so and reach an agreement. We have attempted to empower the First Nation so that they have something to negotiate with.
Senator Watt: I am beginning to understand.
Mr. McKenny: You need the power to implement the agreement.
Senator Watt: That is the way to go. The way I understood this is that you are not even open for negotiations.
Mr. McKenny: That is not the case. Clearly we contemplated that there would be negotiations. That has been the history of First Nations. They have negotiated. This just gives them power once they do reach an agreement.
Senator Watt: How much time will you give the federal and provincial governments that operated under sections 91 and 92 to respond to any given issue? Would it be 60 days?
Senator Taylor: In my experience it could take 25 years.
Senator Watt: We are talking about a new mechanism now. How much time will you give the federal and provincial governments to respond to your legislation?
Ms Twinn: The same time that we are given to respond to Parliament's laws or provincial laws that are passed.
Senator Watt: Is that 60 days?
Ms Twinn:When laws are passed, they are the law and you respect them. That is the way you order your relationships. You set it out and it is clear.
Senator Watt: It was described by your legal representative that this is, in a sense, administrative transfer and not an attempt to amend the Constitution. However, I believe that sometime in the future you will be attempting to amend the Constitution. We will leave that for now.
Can we consider this as a pilot project? You are proposing a very new way of negotiating with the government and the legal system. It is a way of looking at things from a different perspective.
Senator Tkachuk: Just to clarify, this bill is not really so much new as it is different. The federal government administers certain powers over the Indian peoples on reserves. Under this legislation, the Indian people will have those powers in their community
Senator Watt: I have no problem with that.
Senator Tkachuk: I know that you do not. I just do not want to misunderstand you. In an earlier meeting of this committee, the department expressed concern about the Indian people administering certain laws in their community. It will work the way it all works. All adjacent municipalities pass various laws and we have to govern ourselves within the context of those laws. There are often conflicts or jurisdictional disputes with regard to water rights or new roads which cross municipalities. When that happens, we negotiate and organize our affairs.
It is not a huge concern of mine. Each community has a self-interest to protect itself, including the province of Alberta and the town of Lesser Slave Lake. Everything they do is done in context. Nothing can be done in isolation. To do things in isolation is self-destructive and chaotic, and no community wants that. If communities conduct their business in that manner, then they are self-destructive and chaotic, and that is their business.
We should not get lost in how people behave. We should try to keep it as simple as it really is. It is a simple bill, although it has many consequences.
Senator Watt: As senators, I think our role and responsibility goes beyond ensuring that this one piece of legislation works. You must take into account other factors that might be directly or indirectly related in the future.
I have no quarrel with your explanation, Senator Tkachuk. However, how do you get there? You need enforceability. If you have legislating power, you must be able to enforce those laws to make the system work. In order to make it work, you must have people and money. Where will those resources come from?
Can tribes other than this one finance their own governing structure today? Some may be able to, but others cannot. It varies across the country.
It is very different in northern Quebec. In northern Quebec we probably have more provincial government input into our territory and our lives than any other province. That is the nature of the James Bay Northern Quebec Agreement. We have allowed the provincial government to establish an arm, much like a regional government, which is directed by the people in the region. That is a public body. It is not ethnic government. It is non-ethnic government.
The general laws of application of the provincial government and the federal government override everything else.
Senator Twinn: I have a hard time seeing any complication here. Education is now paid for by the federal government. There are 14 school boards in Alberta where our children go to school. It is negotiated with those school boards for the children to attend there. There are kindergartens on some reserves. That is also negotiated with the Department of Education and the federal government. That is how this government will work. It will be administering those programs.
There has been a large vacuum. For instance on education, the Department of Indian and Northern Affairs used to negotiate with certain school boards for Indian people to attend there. Once the school board had the money up front for the entire year, they did not care if an Indian child dropped out, because they already had their money.
Also, school buses were from off the reserves. Bus drivers sometimes left children behind. They would just toot the horn. They did not care. However, since then we have negotiated with school boards and some Indian people were hired to drive the buses to pick up our children.
The drop-out rate was almost 100 per cent in 1974. Since we have begun administering our own affairs in this way, there has been a great increase. This is simply enabling legislation.
With regard to policing, we are entitled to negotiate with the police forces on what the community wants done on the reserves. Road maintenance is negotiated with the province. The municipality may be allowed to use the highway through the reserve.
These things are negotiated without a third party. The third party is what is cumbersome. It is that simple. It does not take a lot of money to self-govern.
Senator Tkachuk: Before you arrived, Senator Watt, Mr. Ryan explained that the bill is not paramount for all communities. In other words, if a community in Ontario wanted to fall under this legislation, they could modify the legislation to make it apply to them more precisely.
Mr. Ryan: Yes. This bill does not impose First Nations status on anyone. The community must be in existence and must be able to meet the criteria set out in clause 3. First, it must be a community. The details of the reserves and other lands that constitute the territory of the community must be set out in its proposal. The details of the treaties and agreements entered into between the Crown and the community are set out in the proposal. There is then a general description of the tribal patrimony and other resources available to the community. That is a key because if that does not exist to the extent that it is feasible to take control of yourself, there is no point in coming under the legislation.
If you have sufficient resources, background, identification and community interest to come under the legislation, you may do so. It is much like a general corporate statute being passed by a provincial or federal government. It imposes no corporate status on anyone.However, if a person qualifies and comes under the act voluntarily, they become a body corporate and they can do all the things together as a corporation.
In a sense, this legislation permits an existing community, properly qualified, to bring itself under the legislation of its own volition; not by enforcement of the government, but by itself.
Having come under the legislation, a community may find that the provisions of the legislation do not quite suit their own experience. They then petition Parliament to have the legislation altered in respect of their community only. By its nature, this would be a special act applying to each community which comes under it.
Senator Watt: Are you saying that what applies to one particular band will not necessarily apply to other bands?
Mr. Ryan: Their constitutions can differ to some extent. Some of their other circumstances can differ.
Senator Watt:You said that this is not focusing on making a constitutional amendment, that this is an administrative area. Let us stay in one area rather than jumping back and forth between the administrative and constitutional levels.
Mr. Ryan: I am referring to the constitution of the band itself. There is a pro forma constitution set out in the bill.
Senator Watt: Is the constitution of the particular band already established?
Mr. Ryan: Yes. If the governing body of the First Nation requests by resolution that the Governor in Council do so, the Governor in Council may declare any of the following provisions of this legislation not applicable. So there is provision for a little change there.
I was speaking to the position of a band which comes under this legislation and then, after a few years of operation, thinks that in its circumstances it requires some other provision other than this general statute. It can petition Parliament for that, but it relates only to them, just as a bank can come to Parliament and ask that its name be changed, for example.
Mr. McKenny: There seems to be an impression that this bill may not make sense for bands that have significant wealth. First, this is a Senate bill and the Senate cannot implement any funding for the bill, and that was never contemplated.
Second, many of the First Nations in the Lesser Slave Lake Indian Regional Council which strongly support this bill and are actively interested in pursuing self-government under it do not have a lot of money, but they recognize that there are existing programs. This bill does not effect existing programs. Funding for education and other like programs will continue. If the First Nation chooses not to exercise powers in those areas, it will not change the status quo as far as programs and services. Those will continue. We have not changed that.
The First Nations recognize that they will have to negotiate. They have done that in the past and will do it in the future. If they choose to move into the field of education, as an example, they will approach the people who are providing the programs and services now, and the people who are administering the funding, and negotiate. They recognize that if they act on their own without consulting anyone, they may cause themselves a problem and end up in a situation where they cannot enforce their own laws. We recognize that. We are empowering First Nations, we are not pushing anyone into doing anything and we are not trying to take away what they already have.
Senator Taylor: I was interested in Mr. McKenny's last comments that bands do not need to have a large financial resources and that existing programs would still apply. I would think it might be more difficult for a self-governing band or community to access federal and provincial moneys than it is under the old Indian Act.
Do bands think they can be more successful in negotiating for funds under this legislation?
Ms Twinn: The Sechelt Indian Band passed self-government legislation in 1986. We have a letter of support from the Sechelt community for legislation. I understand that they receive a direct appropriation from Parliament every year in the form of a grant for the programs and services which they deliver. If they choose to have someone else deliver that program or service for them, they can enter into that direct relationship.
That provides for accountability, because there is the relationship. If there is a problem, you have the option to take the contract away.
Since the early 1980s, the Department of Indian and Northern Affairs has been parcelling out many of its responsibilities to other federal departments. It has become very Byzantine; very confusing and difficult. There are cross-departmental politics and all sorts of things going on.
The Sechelt People say that it has worked very well and they have been doing it for 11 years now.I point to that as support for the direction that we want to take.
Senator Taylor: That is a good example. My understanding of that is the same as yours.
More of our First Nations people now live off reserve than live on reserve. How will this affect the large percentage of our First Nations and non-status people who do not live on reserve?
Senator Twinn: When you have a home in a city, half of your property taxes go to education. So that city is your government. We are the biggest taxpayers in Slave Lake, yet we cannot vote or run for city council. We are on the reserve.
Senator Taylor: That does not answer my question. How will this affect self-government for First Nations people who do not have a land base? Will it help them or hurt them?
Senator Twinn: Are you speaking of Métis?
Senator Taylor: I am speaking in general. There are many people who do not have a land base yet are legitimate First Nations people who will not be able to buy into this. I am thinking of natives who live in Edmonton, Winnipeg or Calgary, or even the Métis of Saskatchewan.
Senator Twinn: Their government applies regardless of where they are.
Senator Taylor: They are governed by the laws of society in general, but they are not able to set up their own self-government procedure.I see this as self-government based exclusively on land base rather than on the fact that you are a First Nation person.
In clause 4, you describe electors quite well, but it seems to me that by definition an elector is someone who is already inside the fence. There are many people outside who want to come back to the reserve and they will not be considered electors. It seems to me that this legislation would permanently exclude from the system those who are not already in it. In other words, you are setting up a ghetto; you are saying that only those who have left cannot come back in. That is what the federal government was doing with the Cree in Loon Lake.
Senator Twinn: I believe that you know what has happened with Lubicon Lake, senator.
Ms Twinn: I would like to address Senator Taylor's question which was not fully answered. There are many pieces of information that are important to be communicated if the question is to be properly answered and there is to be some knowledge provided to lead to a good understanding.
With regard to off-reserve people, first, there is an extra-territorial reach. We have already discussed what that is. That is in very important areas.
Senator Taylor: It that extra-territorial reach in this agreement?
Ms Twinn: Yes, as I explained. Clause 10 mentions items 13, 14, 15, 16, 17and 33 of Schedule II.
Second, if you destroy the community, there is nothing for the off-reserve people either. I will give you a recent example. One of our community people married and moved to New Brunswick and has now decided to return home with her children. Things have not worked out there, but there is a community to which she can return. There is a community which is able to bring her home, and that is important.
Senator Taylor: She can come home?
Ms Twinn: There is a community which continues to exist for people to return to if things do not work out for them off the reserve.
There has been a tremendous diminishment of Indian land in the 1500s, 1600s, 1700s, 1800s and 1900s, to the point that today we have little tiny dots called reservations. It is important to us that we retain what little land we continue to possess which provides a base for this community of people to live together locally. That is what community is; people living together.
I believe that answers some of your question about voting power being extended to strangers to the community.
With respect to your question about electors, you are overlooking clause 4(2)(b). An elector is the people who, as a matter of law, are currently recognized as electors, whatever that law is. It could be customary law which says that off-reserve people are electors. In addition to that, subclause (b) makes it very clear that those people, however they are legally defined right now, can, in addition, extend recognition of elector status to people who might not fit the current legal rules.
I do not know how much more fair people can be without creating chaos and anarchy by saying that anyone who wants to can vote, which is what some people would impose on reservation communities, which is unworkable.
Senator Taylor: In all fairness, that was not my question. You have confirmed what I thought, that the community as it exists today controls whether voting rights are extended or not. I accept that although I am not so sure that I buy it.
My question was about those people who do not have a community. Most of our native peoples now do not live in their own community; they live off reserve. Under this bill will that be their problem to be worked out another time, or will this bill assist non-land-based First Nations people to get self-government? Do you have to have a land base?
Senator Twinn: That is not where the problem is.
Ms Twinn: Section 91(24) says that the federal Parliament has power over Indians and lands reserved for Indians. I understand that the Minister of Indian and Northern Affairs has provided the Native Council of Canada a lot of money to address self-government. I do not know the status of those negotiations. However, I anticipate that they are fairly progressive because Brad Morse, the Executive Assistant to the Minister, was former counsel to the Native Council of Canada. I am sure that they have very good access to the minister's door.
With respect to the provision of services and programs to off-reserve people, they are in the best position to know what their problems are, what they need and to work toward securing what they require as a community, if they are a community. I do not know enough about it.
Senator Milne: Clause 10 says that law of the First Nation applies only within the territory except in items 13, 14, 15, 16, 17 or 33 of Schedule II.
That brings me to adoption of children outside the area controlled by the band. Clause 17 speaks of trusts held for the benefit of citizens and the variation of any such trusts wherever the trusts of the citizens are situated.
Those are pretty broad extra-territorial powers. This is not talking about just land. This is controlling the lives of people off the reserve. I am quite concerned about this aspect of this bill.
Ms Twinn: They are citizens of the First Nation. With respect to child welfare arrangements now, for example, under the provincial scheme in Alberta, if a First Nation child has been seized I understand that the community is notified that something is taking place with their child. The community gets involved if it chooses to; if it can provide a home, et cetera. Therefore, there already exists this recognition of the interest of the First Nation in areas pertaining to First Nation children.
Senator Milne: Even though the parents of these First Nation children living off the reserve cannot vote?
Ms Twinn: That is not necessarily true.
Senator Milne: I understood that from your answer to Senator Taylor.
Ms Twinn: I was saying to Senator Taylor that he is assuming they cannot vote. Each First Nation has different rules about who votes and does not vote. For example, there are many communities where the voting franchise is extended to all First Nation adult citizens, regardless of where they live.
Senator Milne: That is not the case in Ontario.
With regard to trusts that are "held for the benefit of citizens and the variation of any such trusts wherever the trusts or citizens are situated", would this mean that a trust that aboriginal parents set up for their children, when the whole family is living off the reserve, could be controlled by the council on the reserve?
Mr. McKenny: There is a general law of fiduciary duty that applies to trusts. The reason for this section is that the history of First Nations has been one of trusts. Their reserve lands are a trust for their future. Their resources are a trust for their future. Many First Nations have set up trusts to hold assets. The federal government currently holds assets in trust for many First Nations. There is a rule against perpetuities which says that you cannot hold a trust forever that was enacted centuries ago. It basically says that you must give the money out eventually. "Eventually", in the case of Alberta, is 80 years after everyone who is alive today dies. That is not very long in terms of first nations history.
In the province of Manitoba, they have abolished that rule because it does not make sense in the case of first nations.
One of the primary reasons for this is to allow first nations to alter those rules which do not make sense in the context of first nations. First nations would change the rules and make them apply to the first nation that way.
Senator Milne: Then this would fall under your clause 34 and your flow chart as to whether laws are applicable.
Mr. McKenny: Right.
Senator Milne: This would be a provincial law that you would claim was not applicable.
Mr. McKenny: That is right. The contemplation is that the trust assets may not be situate on a reserve. If you put the money in a bank that is not on the reserve, you are suddenly under provincial law and under different rules. It is the same with a child. The rationale for the rule is that today the child is on the reserve but tomorrow he may be in the province and which law will apply? The poor kid will be yanked back and forth by all these rules.
The traditional rules of conflicts have been considered here. In the case of estates, we have decided that in the case of land, the law in force where the land is will apply. If it is other property, the law where the person ordinarily resides will apply. That way, there will not be 10 different laws claiming to govern the matter. In this way, all the rules conform with one another.
Senator Milne: For example, if a native family lives off the reserve and wants to adopt a child, because they live off the reserve the reserve law on adoption does not apply?
Mr. McKenny: If they are adopting a non-citizen, it would not apply.
Senator Milne: What if they want to adopt a child of their own background?
Mr. McKenny: The practice now is that the province contacts the First Nation of where the child is from to gain their consent. They will not grant adoption without it.
Senator Milne: I will leave it at that but I have great reservations about that.
Senator Andreychuk: Are you not saying that the laws of adoption will apply to these cases dependent on the current status of the agreements or laws in the province? You are referring only to Alberta that has a procedure. Saskatchewan has a similar one. Some other provinces do not. If there were reserve people living off the reserve who wished to adopt an aboriginal child, the provincial laws would apply unless there is an existing agreement on how aboriginal children within that province will be treated.
In other words, pre-negotiations in the 1970s, provincial law applied to adoptions in Saskatchewan. Since then, the provincial government has made an arrangement whereby aboriginals will have the first say about aboriginal children. Am I correct on that?
Mr. McKenny: It is my understanding that the First Nation of where a child is from has to consent as to where the child goes. The bill is drafted in the same way as the Indian Act. The provincial law will apply unless the First Nation passes its own law. That is the status quo under the Indian Act. Under the Indian Act, the minister and First Nation are involved in adoption.
Senator Andreychuk:I would also like clarification on your reserve funds. You are referring to funds that are attracted to the aboriginal person by virtue of the Indian Act or by virtue of reserve moneys. Should an aboriginal living in the city of Winnipeg receive moneys by way of a trust that have nothing do with his aboriginal status and are not traceable to the reserve or the Indian Act, in other words he gets funds independently, would those funds also be tracked for control or would they fall to the exclusive jurisdiction of the individual? I understood you were tracing only communal moneys administered either by band chiefs or by the Department of Indian and Northern Affairs. Are those not the funds and reserves that you are concerned about maintaining status?
Mr. McKenny: The minister currently holds trust funds for individuals; minors and dependant adults, for example. Those were contemplated by that section as well. The contemplation is that the minister will not continue to have a role in administering property for the band. The band would have the power to administer those assets and property, and of course they would have to do so within the fiduciary relationship that exists and would be subject to breach of trust.
Senator Andreychuk: You are talking about the fiduciary relationships and all the money that flows from that in one way or another. You are not talking about an aboriginal person going out into the world and making money totally independent of any band resources, and in some way setting up a trust account.
Senator Milne: This does not differentiate at all.
Senator Twinn: Right now all funds and lands of the band are held in common. I cannot will my share of that money to someone else when I die. Trust money cannot be willed.No one inherits trust money. It is held in common, not by individuals.
Senator Milne: You said that this bill really only replaces administration by the Department of Indian and Northern Affairs with native administration. I believe that is a goal which we should be trying to achieve. I agree with that. However, clause 16 seems to contradict that because it talks about dealing with the land. How would this section affect land claims outside the reserve?
For example, in Ontario, the Golden Lake Band is claiming all of the Ottawa Valley. In Ipperwash, the local band is claiming DND lands. How would this affect cottagers who have, in good faith, bought lots from the local Indian band on a lake shore? How does clause 16 deal with such problems as those?
Mr. McKenny: On page 2 there is a definition of land of the First Nation. We are basically dealing with what is the territory of the First Nation. We have tried to restrict it to things that are absolute and known, not to possible claims and things like that. Those are unresolved claims and we cannot impose jurisdiction over those lands.
We have contemplated lands referred to in clause 16 that pass to the First Nation under this section. Those are primarily reserves. There may be other lands that are recognized as being reserved for Indians under section 91(24), but primarily they are reserves.
The second component of the territory is:
...lands acquired or owned by the First Nation before or after it came under this Act that are declared by the Governor in Council to be its lands.
That is the same as under the Indian Act. The Governor in Council can make new reserves. We have not changed that.
(c) any lands acquired by the First Nation, before or after it came under this Act, pursuant to a successful claim asserted in connection with reserve lands or a negotiated settlement of any such claim...
If there is a land claim and it is resolved by a court or there is an out-of-court settlement, that is the status quo. That is what would happen today.
Senator Milne: What about lands outside the reserve where First Nations have hunting rights?
Mr. McKenny: Those are not recognized as reserve lands or lands of First Nations. The First Nation has a treaty right over aspects of those lands but does not own them.
Senator Milne:You are talking about deeded land.
Mr. McKenny: It is not technically deeded, but it is set apart for those people.
Senator Adams: Did the drafters of this bill take into consideration recommendations in the report of the Royal Commission on Aboriginal Peoples?
Mr. Ryan: I did not consider those recommendations because they were made after I began my work. However, I do not believe that this bill is inconsistent with those recommendations.
Senator Adams: That report cost the taxpayers of Canada $50 million and now the minister says that he has no time to look at it. I thought it might be useful in drafting legislation for aboriginal people.
Ms Twinn: I have not gone through the entire Royal Commission report but, for example, the extra-territorial dimensions of items 13, 14, and 17 of Schedule II are not only constitutionally supported by Professor Hogg in his text on constitutional law but are also supported by the Royal Commission on Aboriginal Peoples, as are many other elements of this legislation, including the fact that it should occur.
In MacMillan Bloedel, Delgamuukw and Sparrow the courts continue to reiterate that we should not continue to throw at them the issue of communities being self-managing, self-regulating and self-controlling. That should be dealt with by the lawmakers, and we are here before you. We hope that there is a willingness of heart.
I believe that Senator Milne is very disturbed by the issue of adoption. I want to remind you that customary adoption has always existed. These communities have rules, interests and ideas about all of these things, and have practised them. They have practised customary adoptions. That was recognized, for example, by the B.C. Court of Appeal in Casimel a few years ago. Grandparents had adopted a child in a customary adoption. When the child was killed as an adult, there were death benefits available for his parents under an insurance policy. The question was whether they were his parents. The whole issue was the legal status of this customary adoption. The Court of Appeal upheld it and said that it is valid, equally as valid as other methods of adoption.
Last week I brought a young male Indian dancer from the Driftpile Reserve, which is one of the member bands of the Regional Council, in to teach the grade six children in the school in Slave Lake where my children attend. It is off reserve. He was explaining the origins of the grass dance. He said that when Indian peoples were moving camp or had to establish a camp for a ceremony, 50 warriors would line up at the edge of a field of tall grass and dance and pray, slowly pressing the grass down to prepare the field so that the people could come in for their gathering.
Perhaps a European would have burned the grass, cut it down or prepared the field in a different way. They are all equally valid ways and we have to respect that. We have to give room for people to be who they are and to be tolerant and accepting.
The Chairman: When you speak about citizens, do you consider that the citizen of the band is also a Canadian citizen?
Ms Twinn: Yes.
The Chairman: Then all the international treaties and so on in which Canada has engaged would still apply?
Ms Twinn: Yes.
The Chairman: You would have no problem with issues of national defence and so on?
Ms Twinn: Those are matters of Canadian sovereign.
The Chairman: This is enabling legislation and related to all other Indian groups. Have you been consulting with many other First Nations groups in the preparation for this?
Ms Twinn: Yes, to the extent that we had resources. We did ask the Department of Indian and Northern Affairs for some money to help us in that respect but we were denied. I recently spent a day on the Siksika Reserve going through the bill with their government and answering questions from them and their lawyers. That process is taking place with other people in other places as well.
The Chairman: Thank you very much for your presence here. It has helped to explain quite a number of things about the bill.
Senators, representatives of the Department of Veterans Affairs are not available before April 24, but they can produce a written report by the end of next week and they can speak to it later. Is that acceptable?
Senator Andreychuk: I find it very unacceptable that a department is not ready to report to us after two years. We should pursue that at a later date. In the meantime, the best answer would be to at least get a written report so that we have something on the record.
The Chairman: Thank you.
The committee adjourned.