Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 5 - Evidence
OTTAWA, Tuesday, April 22, 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 10:03 a.m. to give consideration to the bill.
Senator Landon Pearson (Chair) in the Chair.
[English]
The Chair: Honourable senators, our witnesses this morning are Mr. George DaPont, Ms Wendy Reid and Mr. Allan MacDonald.
Senator Tkachuk: Madam Chair, I have a point of order. At the last meeting, I raised a question about televising the proceedings of the committee. My understanding was that you had said that if the televising was being done by the CBC, it required the permission of the chamber. It is also my understanding that CPAC has asked for permission, and they were told that the committee had decided that they could televise the proceedings. I do not know if I am missing something, but I do not remember that matter being discussed in committee.
The Chair: What I said at that time was that we had just come from a meeting of the Legal and Constitutional Affairs Committee where there had been some issues raised with respect to CPAC's coverage of the committee, and the committee had been asked to pause until those issues had been cleared up through the Internal Economy Committee. That was what I said last week.
Senator Tkachuk: My understanding is that CPAC is allowed to cover hearings unless the committee tells them not to cover the hearings.
The Chair: It is the same thing. No matter who it is, the televising of committees has to be approved by the Senate.
Senator Tkachuk: Is there no agreement with CPAC?
The Chair: The procedure must be followed for each hearing.
Mr. Tõnu Onu, Clerk of the Committee: To broadcast, the rule is that approval must be granted by the Senate. In other words, even if CPAC is willing to do it, the committee must present a motion to the Senate to get authority to broadcast.
The CBC or anyone else is able to come in and take some shots before the meeting starts. Once the meeting starts, we ask cameras to leave unless we have authority from the Senate to broadcast meetings of the committee. That is a blanket rule.
Senator Tkachuk: When did CPAC ask for permission?
Mr. Onu: They did not ask for permission. An agreement is being negotiated right now with CPAC. CPAC has not been broadcasting on a regular basis. What CPAC is prepared to do now is broadcast eight hours of Senate Committee meetings per week for a total of 32 hours a month. They have not asked to cover specific committees; in other words, they are leaving it to the discretion of the Senate. The Senate can go to CPAC and say, "We feel we have some interesting committee meetings here this week, would you cover these two or three or four committees?"
Senator Tkachuk: When CPAC covered the meetings regarding the tobacco legislation and the Somalia committee's first meeting, those committees had been granted approval by the Senate to have them broadcast?
The Chair: Yes.
Mr. Onu: CPAC was also informed that the Senate feels there is sufficient public interest to have the meetings broadcast. There is that kind of negotiation between CPAC and the committee.
Senator Tkachuk: Thank you, Madam Chair.
The Chair: Please proceed.
Mr. George DaPont, Director General, Government Relations, Department of Indian and Northern Affairs Canada: Madam Chair, I shall start with a very brief presentation, setting out some of the main elements of the government's approach to aboriginal self-government, particularly its recognition of the inherent right of self-government, and then touching upon what appear to be some of the main differences between that approach and some of the matters proposed in the bill before you. My colleague Wendy Reid from the Department of Justice, will give you more detail regarding other general points I shall make.
In August of 1995, the federal government announced its approach to self-government and its policy for recognizing the inherent right of self-government. The objective of the policy was to work out, in cooperation with aboriginal people, provinces and territories, practical self-government arrangements.
One of the fundamental features of the policy was recognizing that the inherent right of self-government is an existing aboriginal right under section 35 of the Constitution Act. As many of you are undoubtedly aware, prior to that recognition, it had been the policy of almost all governments that a constitutional amendment would be required to afford that type of recognition.
In adopting this approach, the federal government accepted that not all other governments accepted its legal recognition of an inherent right. Other governments and certainly aboriginal groups may not accept all of the specific aspects of the federal government's inherent right policy. However, the policy was intended to be a framework which would guide federal negotiators, and others groups were not required to accept all aspects of the policy as a precondition of any sort prior to negotiations.
The federal government was attempting to set aside some of the legal and constitutional debates that had stymied progress towards aboriginal self-government and to focus instead on achieving practical arrangements through negotiated agreements. The government also took the view that it was critical to involve provincial or territorial governments at the front end of any negotiation process in order to ensure that there was general acceptance of the outcome of negotiations and to ensure that relationships were harmonious and that the potential for future jurisdictional disputes was minimized.
Another of the fundamental features of the government's approach under the inherent right policy was a recognition that the actual details of self-government may well vary significantly among aboriginal groups, depending on their unique circumstances and their unique needs, history and culture. Some of those differences would be fairly obvious. For example, self-government arrangements for aboriginal people with a land base undoubtedly will vary significantly from self-government arrangements for aboriginal people without a land base.
The government's policy was intended to capture a broad range of possibilities which would apply essentially to all aboriginal people -- Indian, Inuit and Métis. The scope of negotiations under that policy would result in significant law-making powers for aboriginal people in a wide variety of areas. A few examples would be education, adoption, child welfare, membership, their own government structures, health, social services, natural resource management and housing, to list a few.
One of the key features of the federal government's policy was a willingness, where the aboriginal group and the province or territory concerned was in agreement, to protect aspects of the self-government arrangements as treaty rights pursuant to section 35 of the Constitution Act. In addition to being a framework to work out the relationship of laws and law-making powers, the government's approach to self-government also focused on a number of other matters that were seen as critical to working out effective self-government arrangements. Among them would be establishing predictable and secure financial relationships among the various governments -- the federal government, the aboriginal government and, where appropriate, the provincial or territorial government concerned. As a result, there is considerable emphasis on this aspect of the government's approach, including setting out principles that the federal government believes should be taken into consideration when working out specific financial arrangements.
The negotiated agreement relating to the inherent right policy would be a treaty. In most cases, there would also be federal and/or provincial or territorial implementing legislation. This would provide the greatest stability and security for ensuring a common understanding of the jurisdictional arrangements. Self-government negotiations are currently underway at approximately 80 different negotiating tables across the country.
Certain aspects of Bill S-12 appear to be different from some of the key principles which I have just set out and are reflected in the government's approach to recognizing inherent rights.
Bill S-12 is apparently not tailored or easily adaptable to taking into account different social, political, cultural, historical and economic circumstances of various groups. Our experience has been that, while there may be many aspects of a self-government arrangement that are common or could be common to various types of situations, many groups may want to negotiate specific provisions that are different from each other. Obviously, if one were to compare existing examples of self-government agreements, albeit negotiated under earlier government policies, Naskapi in Quebec, the Sechelt Act in British Columbia, and the legislation to recognize self-government for Yukon First Nations, one would see some aspects that are similar but also many aspects that are quite different.
The government's approach to inherent right emphasizes a clear understanding of the relationship between laws of the aboriginal, federal, provincial and territorial governments. The federal government recognizes that First Nation laws in many areas might well have priority over federal, provincial and territorial laws. However, it is believed that those areas should be specified in the agreements and that the agreements should also include negotiated rules to resolve conflicting areas of law if and when such a situation might arise.
The government takes the view that, in all cases, laws of overriding national importance should prevail over inconsistent aboriginal laws. As well, issues such as standards and harmonization in areas such as health and safety should be addressed. The federal government considers as a fundamental principle that laws relating to health, safety and criminal law should apply equally to all Canadians.
As I mentioned, one of the key objectives in working out legal arrangements is to ensure that the agreements are set out as clearly as possible, to ensure a common understanding and so that all Canadians, whether they might be citizens of the aboriginal government or citizens of other jurisdictions, know what laws apply to whom and when. This is considered to be quite important to avoid legal uncertainty and potential for future court actions.
The relationship between federal and aboriginal laws as proposed in Bill S-12 appears to be somewhat confusing. My colleague Wendy Reid from the Department of Justice will expand on this aspect in the course of her presentation.
Bill S-12 does not appear to provide a role for a provincial or territorial government to work out the details of a self-government arrangement. This, in our view, is especially important, particularly since the bill provides or appears to provide for the paramountcy of federal laws over provincial laws.
Again, in keeping with some of the comments I made earlier, one of the government's objectives under the inherent right policy is to ensure that all jurisdictions have been involved in working out the jurisdictional lines and that they are comfortable with the outcome. The government's policy takes the approach that the provinces or territories must be involved where the subject matters being negotiated normally fall within their area of jurisdiction or where aboriginal law-making authority or the jurisdictional scope may have impact beyond the aboriginal group or beyond the territorial land base of the aboriginal group. The prime objective is to ensure that the outcome of negotiations will be harmonious relationships between all levels of government, again, to decrease the risk of future jurisdictional conflict and uncertainty.
A final difference is that Bill S-12 does not address any issues related to the financing of aboriginal government. It is not readily apparent how an aboriginal community coming under this bill would finance self-government unless it had resources to do so at the onset. The federal government's approach on this issue is to try to ensure that the financial arrangements around self-government are negotiated at the same time as the jurisdictional arrangements and that its approach takes into account the range of jurisdictional responsibilities being assumed and a variety of other principles or factors on which I can elaborate in further detail should you consider it necessary.
Those are our initial comments to highlight the key differences between the inherent right policy and some of the matters set out in Bill S-12.
Ms Wendy Reid, Senior Counsel, Department of Justice: Madam Chair, I shall begin by discussing the First Nation law-making authority over what is known as peace, order and good government, otherwise called the POGG power, which falls to Parliament under the Constitution Act, 1867.
In Bill S-12, subclause 8(1) provides that:
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.
This section is saying, in effect, that the First Nations law-making powers are enumerated in Schedule II of the bill, but overriding that power is a power that is broader and more general, that being the peace, order and good government legislative authority.
As it has been explained by Professor Hogg, the purpose of POGG resides in its relationship to the provincial heads of power. That is, any matter that is not enumerated as a provincial head of power in the Constitution must be within the power of the federal Parliament under this POGG power. The POGG power has been interpreted by the courts as granting Parliament jurisdiction in respect of matters of national concern, meaning that it authorizes legislation which extends past local or provincial concern or interest.
POGG has been relied upon by the courts to authorize many types of federal legislation and actions. For example, this principle allowed for the power to enter into treaties with foreign powers, to legislate the Official Languages Act, to legislate offshore minerals and aeronautics, to create the National Capital Region, to legislate in the area of marine pollution, to give federal jurisdiction over atomic energy, to authorize federal wage and price controls, to authorize the Narcotic Control Act and to authorize the War Measures Act during the two World Wars.
Professor Hogg has explained that, in the case of national emergencies, the POGG power authorizes laws which, in normal times, would be competent only to the provinces. As a result of this broad power and it being residual in nature, it is difficult to envisage how it might be exercised in practice by First Nations and how it might, thereby, impact what would otherwise be federal and provincial law-making authority.
The role of POGG does touch on matters such as the sovereignty of the Crown and the power to enter into treaties with foreign powers. By contrast, the Government of Canada in its aboriginal self-government policy provides that First Nation self-government would not extend to powers related to Canadian sovereignty and external affairs.
Bill S-12 is not at all clear about which federal laws will take precedence, or whether the First Nation law will take precedence over federal law. The government's objective of implementing the inherent right of self-government, as Mr. DaPont explained, includes a recognition that First Nations should have significant law-making power. In certain cases, First Nation laws may well override federal laws. However, because of the overriding importance of various federal laws, such as the Criminal Code and atomic energy legislation, it is important to preserve the paramountcy of some federal laws over First Nation laws. Mr. DaPont explained that it is the policy of the Government of Canada that potential discrepancies would be carefully negotiated and resolved by very specific agreements.
Clause 34 of the bill begins in subclause (1) by stating:
Except to the extent that it is inconsistent with a provision of this Act, a law of the Parliament of Canada of general application applies to the First Nation, its citizens and its lands...
A federal law of general application would apply. It then goes on in subclause (2) to state:
Subject to the terms of any treaty or land claims agreement, a law of the Parliament of Canada of general application... enumerated in section 91 of the Constitution Act, 1867, does not apply to the First Nation, its citizens or its lands to the extent that the law is inconsistent with the constitution of the First Nation or a law of the First Nation...
In other words, a federal law would not apply. The bill goes on to outline the criteria for the law of general application in paragraphs (a) to (c). In effect, clause 34 states that the federal law of general application does apply, but that it does not apply except under certain conditions. This is quite a confusing way to set out whether or not a federal law applies. It probably would not be helpful to citizens who would be subject to this legislative confusion.
The relationship between First Nation laws and provincial laws is addressed in subclause 34(4), which reads:
A law of general application of a province having a territorial link with the First Nation applies to citizens of the First Nation on lands of the First Nation... to the extent only that any such law is not inconsistent with a term of a treaty with the First Nation or with this or any other Act of Parliament, or with the constitution or a law of the First Nation or any applicable land claims agreement.
Therefore, if the First Nation passes a law which is inconsistent with the provincial law, the First Nation law will override the provincial law. This approach is different from the situation which now exists on reserve lands. The courts have ruled that Indian reserves are not enclaves in a constitutional sense, and, as a general principle, provincial laws of general application apply to Indians residing on reserves just as they apply to other citizens in the province.
There are many limitations to this general rule. For example, a provincial law will not apply if it is in conflict with the Indian Act, a First Nation by-law made under that act, with treaties or if the effect of the provincial law is to affect Indian status. This is a complex area of constitutional law, and there are many exceptions, but the general rule is that provincial laws do apply to Indians residing on reserve lands.
As a practical matter, the Education Act of each province governs education standards and the accreditation of teachers. These rules apply to all citizens in the province even though the Department of Indian Affairs funds the education of Indian children. Similarly, provincial labour relations laws apply on reserve. Also, Indians who reside on reserve are subject to provincial jurisdiction over the administration of justice. Residents of reserves are subject, like all Canadian citizens, to criminal prosecutions by the provincial Attorneys-General.
Bill S-12 purports to give legislative authority to First Nations in some areas which may fall under the provincial head of power under the Constitution. The one example I should like to point to is found in clause 35 of Schedule II at the end of the bill, page 38. This provision indicates, in effect, that the First Nation has law-making authority over the:
...administration of justice, including the establishment and designation of courts and tribunals of criminal and civil jurisdiction.
This power over administration of justice falls under the provincial head of power under section 92(14) of the Constitution Act, 1867 which gives provincial legislatures legislative power in respect of the administration of justice in the province, including the constitution of provincial courts, both civil and criminal jurisdiction. The federal government also has some jurisdiction in the area of criminal law and administration of justice; however, it is a concurrent jurisdiction which is shared between the Parliament and the provincial legislatures. It is possible, as a result of clause 35 of Schedule II, that this bill may encroach on provincial jurisdiction in this area.
It is clearly desirable that First Nations have broad governmental powers, especially in areas closely related to preserving aboriginal culture and identity, such as child welfare and education. However, the relationship between First Nation and provincial laws should be negotiated by First Nations with the provinces in order to avoid jurisdictional disputes.
Bill S-12 also provides for some First Nation laws to apply to citizens of the First Nation even if they do not reside on the reserve. It should be noted that Bill S-12 exacerbates the legal problem of jurisdictional confusion because it purports to extend the law-making authority of Parliament beyond reserve boundaries to affect citizens of the First Nation, wherever they happen to reside. Parliament, under section 91(24) of the Constitution, has legislative jurisdiction over Indians and lands reserved for Indians. Since the bill touches on provincial heads of power even off the reserve lands, the validity of some provisions in the bill may be in question.
Clause 10 of the bill 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.
The First Nation government may provide, in its law dealing with any one of those enumerated powers, that the particular law will apply to its citizens off of the reserve lands.
Let us just look at a few examples where First Nation laws would apply off reserve under this bill. Clause 17 of Schedule II provides the First Nation government law-making power in respect of
Education of citizens wherever resident and other persons resident on lands of the First Nation.
"Wherever resident" suggests that the citizens need not even reside in the province where the First Nation is located. If you are a citizen of a First Nation, even if you move to another province, it is possible you could be subject to the laws which are developed for the reserve community, and it is not clear how such laws could be enforced.
Another example is found in clause 33 of Schedule II which gives the First Nation government law-making authority in respect of
Trusts held for the benefit of citizens and the variation of any such trusts wherever the trusts or the citizens are situated.
Again, the validity of this provision is in some question since the provincial legislature has law-making power over property and civil rights in the province under section 92(13) of the Constitution Act.
As a final point, I should like to state that, in many cases, it may be desirable for various reasons for First Nation laws to apply off the reserve. In the area of child and family services, for example, it is apparent that there should be greater autonomy for First Nations to design laws which are suited to their communities' unique cultures and circumstances. However, self-government legislation which creates significant confusion and conflict of laws is not desirable. This is because it is important for all citizens to know which laws apply to them and to avoid legal disputes and challenges of legislation in the courts.
The legal means to achieve the goal of greater aboriginal autonomy should involve negotiations with the relevant province and, ultimately, the passage of reciprocal provincial legislation in order to avoid legal disputes.
Mr. DaPont and myself would be pleased to take any questions you may have.
Senator Tkachuk: I assume that you are here to help us with a good self-government bill that we can pass in the Senate. Are you here to assist us or are you opposing the bill?
The Chair: I presume the witnesses are here to assist us.
Senator Tkachuk: Yes. If I were the chief of a reserve in Manitoba and I wanted to come under this act, I could go to the minister and say, "We want to come under this act; we will meet all of the obligations going into it, but because we are from Manitoba, we want to make the following amendments to the act." There is no problem for Parliament to then pass those amendments, is there? They are just specific to that particular reserve.
Mr. DaPont: Certainly not. Such amendments would result in a variety of different acts.
Senator Tkachuk: Is that not the situation as it now stands?
Mr. DaPont: I was not suggesting that was a criticism. It was only an observation that this bill does not accommodate a full range of things. That was only an observation and was not intended necessarily to be a criticism.
For example, there are a number of aboriginal groups who appear to deal with self-government through a public government structure. These groups would clearly not fall within the scope of this bill and they would be required to have a different legislative base for such arrangement.
Senator Tkachuk: They can do that under the act as it is constituted right now, actually.
Mr. DaPont: I had read this bill to operate as a basic framework, however you are suggesting that it would be open to people to negotiate or rework parts of the framework. That was not readily apparent from reading the bill.
Senator Bryden: Under what section of the bill that we have before us are those arrangements possible?
Senator Tkachuk: This is a proposed act of Parliament. Any act of Parliament can be amended at any time. There is no compulsion under this bill for any reserve anywhere in the country to be compelled to fall under this bill. Certain conditions must be met before a reserve can fall within strictures of this bill.
For example, a chief in Manitoba might say, "I like the basic framework of this bill but I need some changes. Before I go through all the machinations of falling into the act, I want certain amendments passed as it applies to me in Manitoba." Because it is a bill of Parliament, those amendments can then be made specific to that particular band. There is nothing stopping them from making such amendments, and it is not necessary to include a provision in the bill that would allow them to do that. This is a proposed act of Parliament; therefore, it can be changed. We are not speaking about a constitutional amendment.
Senator Bryden: Are you saying that in order to have this act apply in any specific situation, there would have to be further legislation?
Senator Tkachuk: There could be, but not necessarily.
Senator Taylor: Is Senator Tkachuk implying that there is the possibility of about 400 self-government acts to provide for each band seeking self-government?
Senator Tkachuk: That is the direction in which we are heading. That is what is happening now. This act would provide a framework. It is not unusual for municipalities, cities or any self-government that there be specific provisions for particular groups. The jurisdiction of the Constitution provides for different rules for different provinces.
In principle, what are the major differences between this bill and the Yukon Act or the Sechelt Act?
Mr. DaPont: I will start with the area of relationship of laws. We certainly spent a considerable amount of time on that issue.
In the case of the Sechelt legislation, there is one rather important difference, namely, a general provision which has federal and provincial laws of general application continuing to apply. In the Sechelt Act, there is a list of legislative powers which the First Nation can exercise, but it was recognized that at the time they had not worked out how they would exercise those powers or the relationship of those powers to the powers of other governments. Therefore, the Sechelt legislation provides for a process whereby those relationships will be determined through future negotiations at the instigation of the Sechelt First Nation. On the surface, it appears the same in the sense that there is a general list, but there is a process built into the bill to provide for working out those relationships prior to the powers being exercised.
In the case of the Yukon legislation, the law-making powers are broken into two categories. One category of laws is limited to the territorial land base and the second category of laws can track citizens of the Yukon First Nations anywhere within the boundaries of the Yukon itself. In that situation, there is extraterritorial application of laws. There are also a number of very specific provisions in the Yukon legislation that would speak to a process to work out harmonization between First Nation laws and territorial laws in those areas.
There are also some specific provisions related to emergencies. I will give you one example to illustrate the point. One of the areas in the Yukon where the First Nation laws track the entire territory and follow their citizens is in the area of child care. For example, a citizen of a Yukon First Nation is still subject to that law, even if they are not living on the territorial land base. However, it is recognized that there is a requirement to work out harmonization types of agreements.
Second, and more important, in an area like that it may be necessary, in the case of an emergency around a child care situation, for someone to intervene. There is a recognition that, with quite a number of different First Nations and potentially different laws, you cannot take the time to determine whose law applies in an emergency situation. Therefore, there are empowering provisions which allow intervention to take place in such situations if there is a risk, and the jurisdictional implications are worked out after the fact. That is one example of an area where you can have extra-territorial application of laws and where it is important to give consideration to how to deal with particular circumstances as they apply.
One of the points we are trying to make is that the relationship among laws can, unfortunately, get quite complicated, especially in a federal structure. It is important to work it through with more specificity than appears to be the case in this bill.
Senator Tkachuk: If this bill were made law and a self-governing band met its provisions, how would life change negatively for that band?
Mr. DaPont: I did not mean to imply that change is negative. Our point is that, in the way the bill is drafted, there can be uncertainty in terms of what laws apply to what situations. The department feels that this situation would create uncertainty because anyone as those situations would have to be resolved through the courts.
In terms of application of laws, the provisions are imprecisely drafted. It is an issue of clarity. We should put in place the framework within which potential conflicts will be addressed in a way that everyone understands. On the surface, this bill does not appear to do that.
Senator Tkachuk: Can you give me an example?
Mr. DaPont: I will use the example I used about the Yukon. Under the provisions of this bill, it would be possible for First Nation laws to track their citizens in the area of child care. That is specifically referred to in one of the provisions. There is no territorial limit around child care. Presumably, children could be tracked anywhere in Canada. That may be an issue to think about.
More important, this bill lacks any clarity of the relationship as to what type of interface, if any, there would be with provincial child care laws. It lacks the emergency type of provision which I have outlined that is part of the Yukon deal. The problem is not necessarily having that law-making power, because in that case we have clear examples of it. The problem is not having that law-making power declaring paramountcy of federal and/or provincial legislation in those areas.
In the operation of that law-making power under this bill, there are also areas that should be addressed. If there is an emergency situation, it is not clear what is to happen in that situation and it is not clear by what authority people may intervene. It may not be possible for the First Nation child care agency to intervene if the citizen is in Calgary or Vancouver, for example. That means that the child care agency of another jurisdiction must intervene. It is not clear.
Senator Tkachuk: How does Saskatchewan deal with Alberta in the area of child care?
Mr. DaPont: Provinces have reciprocal child care agreements.
Senator Tkachuk: Was that established in the Constitution Act, 1867? Were laws established about how child care would be dealt with, or did they just give power to the provinces?
Mr. DaPont: I do not think that is the issue, senator. The difference is that the laws of Saskatchewan cannot track into Alberta.
Senator Tkachuk: Exactly.
Mr. DaPont: Here the proposition is that the laws of the First Nation will track their citizens into other jurisdictions. There is a fundamental difference in the relationship between two provinces and what is being proposed here.
Senator Andreychuk: Are you saying that the bill as drafted has merit as a principle and as a direction for self-management or self-government, but that there are certain aspects which you believe require clarification and rationalization, particularly in the dispute-resolving areas between jurisdictions?
Mr. DaPont: That is a fair question. There are precedents for some of these types of arrangements. It is not a question of the direction in terms of having self-government nor a question of having significant law-making power for aboriginal people. Concepts and principles are contemplated, however, some of the specifics are not.
Senator Andreychuk: My point is that it is not fundamentally flawed. You are saying that certain aspects need resolution.
Mr. DaPont: Yes. In my opinion, the fundamental flaw is that this bill would set up a relationship between First Nation laws and provincial laws which is not clear enough and which does not appear to have involved any discussion with the provinces concerned. It is more an issue of process than of content of the bill.
Senator Taylor: I do not see anything wrong with First Nations law taking precedence over provincial law. Leaving the provinces in charge of human rights and minorities has not been the best formula in the past. If you are recommending that they be subject to provincial law, that is almost atrocious.
How do you argue that the provinces have a right to push the First Nations around with regard to self-government laws?
Mr. DaPont: I hope I did not leave the impression that the provinces should have an absolute veto or should make decisions in this area.
Senator Taylor: That was my impression.
Mr. DaPont: There are examples of agreements that First Nation laws should have priority over provincial laws. Our only objection is that there has been no discussion. By not having an arrangement that has been concurred with by all of the relevant jurisdictions, there is a much higher risk of challenge on a variety of grounds. My comments were from that perspective. I am not saying that in all cases provincial law should override First Nation laws. In some cases that may be desirable; however, the idea is that negotiators should work through the specifics in an attempt to clarify as much as possible.
Senator Taylor: Perhaps Ms Reid could expand on the interface in this bill between human rights and self-government. Mr. DaPont was worried about who has membership under this bill, and we then hear about First Nations having authority. Will the human rights of a member of the First Nations be any less subject to self-government than they were without self-government? I am concerned about the rights of the individual and how they would be affected within self-government or without self-government.
Ms Reid: This bill is subject to the Charter of Rights. If a citizen were discriminated against as a result of a First Nation law passed under this act, the citizen would have recourse to the courts and to challenge the discrimination on the basis of the Charter.
Clause 30(4) states that the Canadian Human Rights Act does not apply in respect of anything done under this bill. This provision is very similar to section 67 of the Canadian Human Rights Act. It effectively shields laws and provisions of the Indian Act from the application of the Canadian Human Rights Act. In any event, even though the Canadian Human Rights Act may not be available in all circumstances to a member of a First Nation, he or she still has recourse to the courts as a result of the rights in the Charter.
Senator Taylor: I have some difficulty following you. I am not a lawyer and maybe that is the part of the problem.
The bill states clearly that the Canadian Human Rights Act does not apply in respect of anything done in this bill. You say there may be some access where it would apply, and then you say not to worry because they would have recourse to the courts in any event. Is your chance of recourse to the courts pretty slim if you have something in writing saying that the Canadian Human Rights Act does not apply?
Ms Reid: There is always room for argument when dealing with legal issues.
Senator Taylor: What are the chances if someone went to court under this legislation?
Ms Reid: It depends on the circumstances. Clause 30(4) states that the Canadian Human Rights Act does not apply in respect of anything done under this bill. For example, if there were a First Nation law, this provision likely shields that law from the application of the Canadian Human Rights Act, but it is not clear that a policy decision or a policy position of the First Nation would apply. Notwithstanding this provision, there is still much scope for argument before the courts.
What is important is that the Charter does apply. In law, there is not much difference between the rights granted under the Canadian Human Rights Act and the Charter. Both the Charter and the Canadian Human Rights Act provide a vehicle to challenge discrimination by governments. Notwithstanding the fact that the Canadian Human Rights Act may not be available to a citizen, the Charter will still be available.
Senator Taylor: Would that apply to membership?
Ms Reid: Yes.
Senator Bryden: As I remember my constitutional law, the powers of government in Canada are totally distributed between the federal and provincial jurisdictions. Any abridgement of those powers must be effected with the concurrence of the jurisdiction which is involved; is that correct?
Ms Reid: That is correct.
Senator Bryden: From what you were saying, this bill as it now stands would create another institution with jurisdiction over some of these powers. I am not trying to put words in your mouth. The federal government can agree by legislation to allow this bill to infringe on its powers. However, it cannot agree to allow this bill to infringe, for example, on the administration of justice or education without agreement of the provinces.
Once again, I am doing the talking here and people are nodding their heads.
Mr. DaPont: Emphasis is placed on having provinces involved in negotiating these relationships for exactly the reasons you have set out. One of the arguments is that there has been an exhaustive distribution of powers, and certainly one level of government cannot infringe or give away the powers of another constitutional level. In terms of recognizing that there is an inherent right of self-government, that concept also implies that it must have some content, although there is no agreement on what the content might be.
Varying arguments could be put forward, but if one wants to have a practical outcome and a secure arrangement, it is critical to have all of the jurisdictions involved and comfortable with those arrangements. That would avoid the potential for legal or constitutional challenges of the nature you are describing.
Senator Bryden: If the Government of Canada wished, they could proceed under the peace, order and good government provision in some fashion.
Senator Andreychuk: Education is provincial, but aboriginals are a notable exception.
Senator Bryden: I was saying that there has been an exhaustive distribution of powers, except in the extraordinary situation where the Government of Canada exercises peace, order and good government. The point was made that the bill does not address financing the structures involved. If the government were to enact this legislation, would that imply or permit the Government of Canada or some other level of government to provide the required resources to implement this legislation?
Mr. DaPont: I cannot comment. Perhaps my colleague has some views on whether it would create a legal requirement. It would be a reasonable expectation that resourcing and financing would have to be addressed, having a set arrangement in place, having recognized a framework within which First Nations would exercise significant law-making powers and having done the things that they are not now doing. As I mentioned in my remarks, we see that as a critical deficiency in the sense that the two should be dealt with together.
I am not suggesting that finance necessarily be worked into the bill. However, there is no reference which I could find in the bill that addresses such issues. If this were the sort of approach taken, that is one of the things about which there would be some provision. The normal type of provisions that we have been negotiating in those areas in other self-government arrangements indicate a general commitment to negotiate funding and some of the principles that would be taken into consideration as part of those negotiations.
Senator Tkachuk: There are no such provisions here. This is a private member's bill. Obviously, there are no provisions for extracting cash from the Crown. That is part of the problem. Presently, the federal government has obligations for education, health care and a number of other areas. Those obligations, obviously, would continue.
Perhaps, just to clarify the senator's question, let us say that a band falls under the provisions of this proposed act and attains self-government. Why would they require money?
Mr. DaPont: Certainly, there is an existing level of financial support within the existing framework for various programs and services. However, one of the provisions of the law-making powers I noted is the ability to establish courts and tribunals. We do not now have courts and tribunals. The federal government is not currently funding such entities as part of its normal funding. I do not know how one could exercise that particular power without some financial resources to set up the institutions.
Senator Tkachuk: Could that not be negotiated? Does everything have to be written down?
Mr. DaPont: I am not suggesting that everything has to be written down. I am indicating that there is absolutely no reference to financing at all in this bill. That is a deficiency for a variety of reasons. I would expect that there would be a sense on the part of government and on the part of the aboriginal group of wanting to know what resourcing or what was available to support the exercise of self-government.
The only point is that it is not addressed and it is something that would have to be addressed in the context of having a practical self-government arrangement.
Senator Bryden: My point is, the Government of Canada would not enact a bill which creates courts and an administrative system of justice without providing for funds. The Government of Canada is committing itself to additional funds for that purpose. Otherwise, this bill is nothing but a hollow piece of paper.
Senator Tkachuk: When this bill goes through the House of Commons, they can deal with the finances. That is the prerogative of the House of Commons. We can pass a law which does not require the expenditure of money. We do that all the time. As a matter of fact, that is probably a benefit to the bill. All of these issues can be negotiated at any time. It happens all the time with governments and laws, does it not? I do not see a bill saying, "With this bill we have this much money." That does not happen, unless it is a money bill.
Mr. DaPont: I certainly cannot speak in general. However, I can speak to self-government arrangements. Certainly, in our experience, it has been the strong interest of government and the strong interest of the aboriginal group concerned to have the financial arrangements, a funding agreement and an implementation plan in place when the bill is approved.
Senator Tkachuk: Did we do that with Yukon?
Mr. DaPont: Yes, we did we did that with Yukon, Sechelt and the Cree Naskapi. Before bills are enacted, these things are normally worked out as part of the overall self-government arrangement. I am not aware of any situation in which a bill is passed and then all the funding is worked out later on.
Senator Taylor: There is another scenario. We have already recognized a number of self-government scenarios. You have mentioned three, but we could be up in the hundreds by the time we finish.
I do not see that not having financing cripples this bill. Perhaps there are bands which have independent sources of financing, in which case they may not be concerned with setting up financing. It is true for some other bands, but there may be many others which do not need financing. I can think of many bands which do not need financing for self-government, something which you say needs to be in there.
Mr. DaPont: That may be the case.
Senator Taylor: That does not cripple the bill, then.
Mr. DaPont: That being the case, undoubtedly, there would be some interest in ensuring that in passing the bill in such situations there is not an implied financial commitment to government. If you are taking the view that some First Nations may be quite content to fund the whole self-government arrangement on their own, then, in that scenario, government would want to ensure that, having passed such an entity which intends to be self-financing, there is not some sort of implied commitment on the federal government.
Senator Tkachuk: Are you representing the Liberal government here or are you representing the department? I am not quite sure what he means, Madam Chair.
We are here to discuss the bill. It is something new for parliamentarians to be discussing self-government in the first place. Certainly, it is not for us to decide whether or not a bill needs funding.
The Chair: I understood you to say that there was no reference to a process. It did not have to do with the fact that there would be an obligation to provide money. The reference to process is a weakness in the bill that needs clarification.
Senator Tkachuk: There is nothing in this bill to prevent that from happening.
Is there something in this bill which would prevent that from happening?
Mr. DaPont: No. The point is that there is nothing in the bill one way or the other which would indicate how it would be addressed.
We are here, senator, to try to raise matters which, in our experience, have been dealt with and issues which have come up generally in the context of self-government arrangements. We are not here to speak for or against the bill. If I am leaving a different impression when I raise the issue of financing, it is only to flag that in all our experience to date this is a critical issue which has to be addressed. It is usually the desire of the First Nation, as well as government, to ensure that it is addressed prior to enacting an arrangement.
Madam Chair, it is in that context that I am making the remarks, as opposed to speaking for or against what is before you.
Senator Bryden: It is my understanding you are here to assist us in understanding the bill and to provide some background, and I appreciate that.
Ms Reid, you pointed out the clauses that are in conflict with the BNA Act, both federally or provincially. I have had some experience with that. However, when you got to 34(1), you summarized it by saying that that -- and it does exactly what you said -- says the federal law does apply, and then it later says it does not apply, and then it says it does apply unless certain things happen.
I hesitate to ask this, but was this bill drafted by the Department of Justice?
Ms Reid: No.
Senator Bryden: We have received some bills from your colleagues with wording that is just as confusing as this.
Senator Taylor: You mentioned a number of times that criminal law is a federal jurisdiction. Is it possible to have actions that are criminal in the non-First Nation society that are not criminal in a First Nation society or vice versa? First Nations have things like sentencing circles? Can there be different methods of applying the criminal law? I must confess, the First Nations approach to property and our approach to property are different. It seems to me quite possible, if I played with this concept enough, to find something that is criminal in downtown Calgary but that is not criminal somewhere else.
When you say the federal government has jurisdiction over criminal law, I wonder if there is not some friction point here.
Ms Reid: It is a very complex area of constitutional law. I think that the administration of justice can best be described as a concurrent area of jurisdiction. The provinces have jurisdiction and Parliament has jurisdiction.
Senator Taylor: Can you see that being extended to First Nations?
Ms Reid: I certainly can. There are provisions of that kind in the Indian Act as it is now. For example, it provides for the appointment of Justices of the Peace to preside over hearings of certain offences. As it is a shared jurisdiction and unclear at what point you are infringing on the other jurisdiction, as Mr. DaPont pointed out, it is preferable to have some kind of reciprocal legislation to avoid the legal debates and the constitutional challenges.
When you are talking about passing laws, if the individuals who are subject to a law do not like the law, they will challenge it, and if it is open to challenge on a constitutional basis, the Government of Canada is left open to legal dispute and expense. As opposed to saying it is clearly unconstitutional and invalid, I am simply saying it raises the spectre of legal ambiguity that can be avoided if an agreement with the relevant province and possibly legislation can be passed by the province.
Senator Andreychuk: I fully appreciate that perhaps it is good management, from a government perspective, to have concluded all of the negotiations, to know what the answers are and the lay of the land before you produce a piece of legislation. However, surely you would agree that that is not the only approach that could be adopted.
This piece of legislation being put forward in the Senate surely has some merit if the process that needs to be completed is appended before the government or the house may wish to look at it. In other words, put the pieces together and come up with the legislation. The other method is to have the principle and have past experience apply to the bill, and then enumerate the yet to be determined areas and negotiate them, and you may come up with the same result.
Mr. DaPont: I am not entirely sure I understood the question.
Senator Andreychuk: You said that with regard to every other piece of legislation, you knew where the provinces stood, you had done the negotiations, you had dotted the i's and all of that.
In this piece of legislation, the principle is there, it is understood. You have agreed that many of the clauses are acceptable. There are some worrisome ones and those are the ones where the jurisdictions are not clarified. Could this bill not be seen as acceptable but for (a), (b) or (c)? Then have the process continue and clarify (a) and then move on to the next issue. If we use the framework of the bill to complete those other negotiations, not as a precondition of having us analyse the bill, but as a precondition to it passing through both Houses, would you not accomplish the same thing?
Mr. DaPont: Senator, that is a determination you will have to make in your deliberations. It is inappropriate for me to speculate on what may or may not be acceptable.
Senator Andreychuk: However, you have speculated in the opposite. You have made the political statement that here is how the process should be handled; you did not restrict yourself to legalities on the first go-around.
Mr. DaPont: I did point out, as I thought we were asked to do, that there are some aspects to this bill that are drafted in such a way that we think they could result in legal confusion and misunderstanding. For the reasons we tried to set out in both presentations, I suggested that involving the provinces in this discussion would appear to be good public policy. It was within that spirit that I made those comments. I was not criticizing the specifics of the bill. Not criticizing the bill would likely result in running more significant risk than you would otherwise.
Senator Tkachuk: I would like to discuss the peace, order and good government aspect of the bill. I do not have a lot of problem with what we have discussed here. It is time that we as legislators took this issue of self-government seriously. It is time that we as legislators quit treating the issue of self-government as something we have to do for them. That is why I asked that question.
Let us say Senator Twinn's reserve or a reserve in Manitoba or Saskatchewan fell under this bill and achieved self-government. What would happen? Nothing would happen. People on that reserve would go on living their lives. They would share common borders. They would have to make provisions for education, laws and the administration of justice. Why do we not let them do it themselves? Why are we doing it for them? Why are we making sure everything is perfect for them? I believe they will behave like any other municipality which has cross borders. Whenever we have a problem in Saskatoon with the adjoining municipality, or a municipality has a problem with the reserve, we do not go running to the federal government to help us out. Most of the time, the issues are resolved right there, whether it is school buses, hospitals, ambulance service, administration of justice, traffic or roads that go from one border to another. Let them figure it out.
I made that little speech because I am so frustrated, Senator Bryden. I am tired of waiting.
On the issue of peace, order and good government, the Department of Justice has been involved in all kinds of legislation to do with the Yukon. You should read some of the contributions to Bill C-34 in the previous session, now the Yukon First Nations Self-Government Act. Section 3(1) reads:
(1) ...in the event of a conflict or inconsistency between this Act and any other Act of Parliament, this Act prevails to the extent of the inconsistency or conflict.
(2) In the event of a conflict or inconsistency between this Act and the Yukon First Nations Land Claims Settlement Act or a final agreement or transboundary agreement, within the meaning of that Act...
It does not get any better is what I am trying to say. There is opportunity for it to get much worse.
Once this bill is passed by the Senate, there is nothing to prevent, as Senator Andreychuk said, certain provisions from being written in. We know that each reserve will have to deal with issues from time to time as it moves forward. There will not be universal agreement because there never is. Certainly, we should hold the debate. We, as legislators, are coming to understand not only the difficulty of the process but also the potential simplicity of the process if we put our minds to it.
The Chair: That is not a question, is it?
Senator Tkachuk: It is a statement, but I wanted to point out that it does not get any better.
Senator Twinn: Do you have the minutes of all the negotiations between the First Nations and the Department of Indian Affairs?
Mr. DaPont: We rarely keep minutes in that sense. We are usually working on a common document and the document evolves.
Senator Twinn: We had signed off these agreements with the department. If you do not have minutes, I could provide some.
What surprises me is that all the same questions come up. It is unfortunate that the Senate cannot hear our people explain some of these concerns that they had and that they now have again.
The Department of Justice was always on the shoulders of the Department of Indian Affairs. We met with Revenue Canada and many other departments, not only with the Department of Indian Affairs. Sechelt had not completed their negotiations when their act was passed. You ask me about the financial side. How does Sechelt do it? Ask me about the financial issues aboutwho financed this self-government, unlike the big amount of dollars that I do not have to go through to spend on the Yukon? Give me a break.
The general law applies. You talk about how this affects someone out of province. The Indian Act now applies. If an outsider is out of the province, the Indian Act applies to that person. This would replace the Indian Act.
If there is any more confusion, we must have our day with the department and with all the opponents of this bill so that we can explain it more. I understand the Senate must understand what is going on. They must know the bill. We have been trying hard to explain it. Give us the opportunity to be heard. Give us a few days and let us go at it. Let us not stall anymore. We came to the Senate for a specific reason.
The Chair: Thank you all for coming. I have found it extremely helpful. As Senator Twinn and Senator Tkachuk realize, we are coming to grips with issues which many of us have not addressed before. This has been a tremendous opportunity for us. I hope we will have more.
Honourable senators, we have three bills rushing at us and we are uncertain about how to manage them. Bill C-39 and Bill C-40 are here.
Senator Taylor: Perhaps Senator Andreychuk can help me with this. If we are in a hurry, perhaps we could dispense with committee stage and move directly to third reading at the next sitting. That is a decision for the committee.
Senator Andreychuk: Senator Johnson will be speaking to both Bill C-39 and Bill C-40. I have not heard of any opposition to these bills.
My understanding is that the reserves involved have already negotiated. This is their agreement, in fact. It is flood-related and it is similar to other pieces of legislation which have been put in place. One was in Nova Scotia. We can do one of two things: revert to a committee of the whole or dispense with committee stage. I am mindful of three years ago when there was a discussion among the leadership of both sides about whether we wished to set the precedent of not having a referral to the committee. We would have to check that out and then discuss the question of dealing with these bills in committee of the whole.
Senator Taylor: I spoke to our leadership and, as near as I can understand, unless the house leader has spoken to others, he had no complaint last night. He did say that if anyone in the opposition wanted to call it, they may. I want to make clear that I am not pushing this. We have such a full load in the Senate, and there seems to be no opposition to these bills. I have read up on this in the last couple of weeks. We do refer many things to committee which could be skipped.
Senator Andreychuk: The gist of the speech given to me three years ago is that, if we wish the Senate to be taken seriously, we should respect our process, and that includes a committee review, even if that committee review is to indicate that someone who is specifically tasked with that area of concern has done their homework and is satisfied. It can be a committee meeting of five minutes to simply put our feelings on the record.
We can circumvent that in certain cases for some justifiable reason. I shall go back and check with the leadership as to how we handle it, whether it can be handled otherwise or whether it must come here. Those two bills are not contentious. I do not even see the need to explore the issues as we do in some cases.
Senator Johnson: It is very straightforward. We have been waiting for a year to get them through.
Senator Andreychuk: If we can expedite it, we will expedite it.
Senator Taylor: You made one statement with which I did not agree. You say it creates a pattern. I went through the Senate rules. The only necessity to refer to a committee is for a private bill.
Senator Andreychuk: That was not my point.
Senator Taylor: It can be dispensed with by the house. In these cases, we must make an overt move to push it to committee. If we do not so move, it automatically goes to third reading.
Senator Andreychuk: That was not my comment. That reason was given to me as a justification that if we wish to be seen by the public to be doing our job, we should at least give the bill some scrutiny beyond the two critics.
The Chair: There is an opening tomorrow at 5:15 p.m. when something could be done.
Senator Andreychuk: Let us explore it with the leadership, if the committee has no objection to dispensing with the scrutiny of those two bills.
Senator Tkachuk: I do not even know why we would refer those matters to committee. Why not move those two bills forward?
Senator Andreychuk: We were just discussing that.
Senator Tkachuk: We do not make that decision.
Senator Taylor: If I may, I will move third reading. I am not someone who gets broken-hearted if the house does not put it through. We will just go to committee. I will bash forward.
Senator Andreychuk: The other issue, however, is that Bill C-75 is being fast-tracked. Bill C-75 provides for the ratification and bringing into effect of the framework agreement on First Nation land management. It is very complicated.
I do not know whether it is contentious. I have done some homework on it, and it would definitely demand committee study, but it is a question of when.
The Chair: I have said that we will meet at the call of the Chair.
Senator Tkachuk: How do we proceed with the bill before us now, namely, Bill S-12? Do we report it to the Senate chamber?
The Chair: I understood we wanted to hear two other sets of witness, one group being independent legal scholars such as Peter Hogg, and the other group would consist of other aboriginal community people.
Senator Tkachuk: Are we to go through that same work plan for Bill C-75, which is a very complex bill as well?
The Chair: I would expect that we would have to do that for Bill C-75, yes. That is my understanding.
As we started into this process, the understanding was that we would have another two sets of witnesses. I would prefer to follow that plan.
Senator Taylor: May I ask Senator Tkachuk, the sponsor of the bill, if there would be any sense in getting amendments from the witnesses today?
Senator Tkachuk: I was trying to listen to them to see whether they had ideas for amendments but there really were not any.
Senator Taylor: I agree with you that financing is out, but I thought there may have been other areas that they wished to address.
Senator Tkachuk: I did not see any that they had.
Senator Bryden: They would only do that as some sort of gratuitous assistance to the committee. This is a private bill, not a government bill. They are not expected to offer proposals suggesting how to fix it. They might tell us what is wrong and where we could investigate it further, but that is all they can do.
Senator Tkachuk: Are there any outstanding issues that senators have a problem with that we could address between today and tomorrow?
Senator Taylor: There was definitely a conflict in clause 34. I thought that could be cleaned up.
The Chair: I feel awkward without Senator Watt. He is ill today. He had some views on this and I feel he needs to be heard.
Senator Tkachuk: He did not feel that the bill went far enough. His views were a little bit different here.
The Chair: I would prefer that he spoke for himself. Before pushing anything ahead now, I would prefer that we leave it to the next meeting. We must have one more meeting anyway.
Senator Tkachuk: We felt there may be something to which we could agree that would address the problems that senators have with the bill.
The Chair: There will have to be a meeting tomorrow.
Senator Tkachuk: Whether or not we like it, we are running out of time.
Senator Taylor: That is why I was trying to get Bill C-39 and Bill C-40 passed without going to committee.
Senator Tkachuk: The government's problem will be to deal with Bill C-75. We have Bill S-12. If we are to go through the same process for Bill C-75, it will not happen unless we are here on Sunday.
Senator Andreychuk: Bill C-75 concerns land management only, not other powers. It is not the same kind of bill. It is a much more complex bill.
Senator Tkachuk: We do have some people who have objection to the bill. It will not be that simple.
Senator Andreychuk: I have no idea, because I was told that Bill C-75 was not on the fast track.
The Chair: I was told it was not, either.
Senator Andreychuk: Certain groups are saying that it is on the fast track and that we will get three bills this afternoon. We will have to wait to see what happens.
The Chair: I will try to arrange a meeting for when I am available and when as many people as possible can be available.
What about Thursday afternoon? We will be sitting on Friday. Will Thursday afternoon be possible for most of you?
Senator Tkachuk: Other bills take precedence over a private member's bill, but if there are any issues that we could address so that they could be brought forward, we could then move the bill out of committee and onto the Senate floor on Friday.
The Chair: I am prepared to look at that. However, I would prefer to have Senator Watt around.
Senator Johnston: Will Senator Watt be better by then?
Senator Tkachuk: I will try to talk to him.
The Chair: Thank you. We will do what we can.
The committee adjourned.