Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 18 - Evidence
OTTAWA, Tuesday, February 9, 1999
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-14, providing for self-government by the first nations of Canada, met this day at 9:05 a.m. to give consideration to the bill.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Senators, this morning we have with us Chief L'Hirondelle, as well as Ms Twinn and Mr. McKinney who are both legal counsel. Perhaps Senator Tkachuk would more formally introduce our witnesses.
Senator Tkachuk: Thank you, Mr. Chairman. I will begin by introducing the chief of the Sawridge Reserve, Chief Bertha L'Hirondelle. Mr. Mike McKinney, legal counsel to the Sawridge Reserve, will lead the presentation. He will be assisted by Ms Catherine Twinn, legal counsel to the Slave Lake Region, and by Mr. James Ryan, the drafter of the bill.
Mr. Ryan is recognized as one of the finest legislative drafters in the country. He was the assistant deputy minister of legislation in the Department of Justice from 1973 to 1975. He was the principal drafter of many federal statutes, including the Canada Development Corporation Act, the National Transportation Act, the Canada Deposit Insurance Act and the Canadian Human Rights Act.
We also have with us Mr. Martin Henderson from the law firm of Aird & Berlis of Toronto.
Honourable senators, we are pleased to be here today to present Bill S-14 to you. It has been a long road to the Senate, and it has taken much time, but we have a great deal of perseverance. I will give a brief introduction and an outline of the history of Bill S-14. The incarnation of Bill S-14 was Bill S-10, which was introduced in the Senate on March 30, 1995, where it received first reading. A point of order was raised on May 9, and again on May 10. The Speaker gave his ruling and the bill was referred to the aboriginal committee on May 24.
There were a total of three committee meetings held on that bill, on June 20, October 18 and November 1, 1995, where witnesses outlined the provisions of the proposed legislation, the constraints of the Indian Act, and how Bill S-10 addressed community needs, as well as a detailed presentation on how the Lesser Slave Lake initiative arose in the first place and, finally, the evolution of the bill. That is all contained in witness testimony to date.
We finished the debate on second reading with an explanation of the breakdown of Sawridge negotiations with the federal government, partly due to the slow pace and complications of the community based self-government process that was established by the government. In the final committee meetings legal questions were dealt with, as well as how the bill could work within the federally recognized framework for self-government. There was some discussion of negotiations on jurisdictional issues and the differences between the Sawridge self-government agreement in principle and Bill S-10 itself. The First Session of the Thirty-fifth Parliament ended and the bill died on the Order Paper.
On November 25, 1996, Bill S-12 was introduced. That was an updated version of Bill S-10 with some minor technical amendments. That bill was given second reading on February 8, 1997 and was referred to the aboriginal committee.
The first of two meetings was held on April 15, 1997, where witnesses, including many of you who are before us today, discussed the legal and constitutional aspects of Bill S-12. On April 22, 1997, witnesses from DIAND and the Department of Justice outlined the main elements of the government's approach to self-government, including its recognition of the inherent right of self-government. They explained some differences between their version and the version presented in Bill S-12. After this committee meeting, the Second Session of the Thirty-fifth Parliament ended and Bill S-12 died on the Order Paper.
I believe that we sent an e-mail to the senators asking them to at least read the transcript of the meeting of April 15, 1997, on Bill S-12, where bill was presented, an outline given, and there followed some discussion. Much of the discussion at the following meeting surrounded the presentation of the Department of Indian Affairs and Northern Development.
On March 25, 1998, I introduced Bill S-14. This bill received second reading on March 31, 1998, and was referred to this committee.
On April 2, 1998, Senator Watt made a motion to have all the papers and evidence received by previous aboriginal committee meetings on Bill S-10 and Bill S-12 brought forward to the committee's present study of Bill S-14. Now here we are, honourable senators, about to embark on another study of self-government.
You will find the approach laid out in Bill S-14 to be very interesting. In fact, this bill puts forward a framework that can be used by other bands trying to establish self-government. Yet, this bill does nothing to contravene the Indian Act, the Canadian Charter of Rights and Freedoms and our Constitution. Instead, it works in unison with all for the benefit of the aboriginal community.
The main initiative for the bill, a man I was honoured to work with, was the late Senator Twinn, who asked me to assist him in this process. He has since passed away. It is an honour for me to continue the work he started.
It has been an interesting but frustrating period of years. However, I do not want to look back. I want to look forward to the progress we can make today and in the next number of weeks. I want to adhere to the work schedule we set out for ourselves and return this bill to the Senate for third reading debate and vote.
Mr. Mike McKinney, Legal Counsel, Sawridge Band (Alberta): Honourable senators, I will take you through the bill, clause by clause, for the benefit of those members of the committee before whom we have not previously appeared. We will explain the bill and answer any questions you may have. Our main objective is that you understand the bill. We believe it is a good bill and that its passage will help many First Nations achieve self-government with less pain than has been the case in the past.
I would refer first to clause 2, relating to definitions. "Citizen" is defined as the community of each First Nation. The bill is designed to apply to any First Nation that wants self-government and wants to go through the process. It is not meant to be exclusive. A First Nation which applies to come under this bill would then have to meet the criteria set out in the bill.
The bill is meant to apply to any community. "Community" is defined as any band, tribe or other body of indigenous people previously recognized. We are not trying, by this bill, to recognize new aboriginal groups or bodies. That is left for other negotiations or other agreements.
You will also find later in the bill that it applies only to those groups that already have a land base. It would not be practical for a group that does not have a land base.
"Constitution" is defined in the bill. It is contemplated that each First Nation will have a constitution. Attached to the bill is Schedule I which is a pro forma constitution, but it is not meant to be "the constitution." Each First Nation which opts to be included in the proposals contained in this bill could draft its own constitution. There are criteria with respect to what must be in that constitution, but it is not dictated how those issues must be addressed.
"First Nation" in this bill is the term used to identify groups that have opted into the bill. It is different from the Indian Act which refers to a "band."
"Lands of the First Nation" refers to the land base of the First Nation that already exists or is recognized by the government in the future. It is not contemplated that this bill will create any new Indian lands or new reserves, but it is recognized that, if a court or if a government recognizes Indian lands in the future, those lands would be the lands of the First Nation. It is similar to today's concept of "reserve," but it would come under this act as opposed to being under the Indian Act.
The definition of "territorial link" is referenced to subclause 14(2). Every First Nation is connected to one or possibly more provinces. A "province" could be a province or a territory. That is set out in the Interpretation Act, so we do not use "province or territory" in the bill. However, the word "province" is used in certain clauses of the bill, such as the application of provincial laws and jurisdiction of provincial courts, which we will deal with later.
"Reserves" is the same definition as set out in the Indian Act. It includes surrendered lands -- in other words, lands that have been surrendered by a First Nation previously, but not yet alienated by Her Majesty. This might be the case where a First Nation has mortgaged its land in the past, but has not sold or otherwise transferred those lands to a third party.
You will see later that third party interests are protected under this bill. It is not contemplated that we would defeat any of those interests.
Clause 3 sets out the purpose of this bill, which is to create self-government for indigenous peoples inhabiting lands reserved for Indians. I will not go into that.
The next few clauses deal with how a First Nation is included in the proposals contained in this bill. If they want to come under this bill, they must create what is called a "proposal." Once they have created the proposal, they must hold a referendum. The proposal must include a constitution. The other items that must be in the proposal are set out in subclause 4(3). They must identify what the community is and what its name will be. They must identify all the lands held by the First Nation and details of all the agreements or treaties that have been entered into by the First Nation, including any agreement they might have reached with the Government of Canada or any other body for funding or other financial purposes. The proposal must include a description of all the tribal property and resources.
Similar to a business plan, they must show what assets the First Nation will have, the number of electors qualified to vote, the name of the person who will be the electoral officer, and the names of the government continuing on from the band or tribe already in existence.
The next subclause deals with what must be in the constitution. These provisions are very similar to what was in previous self-government acts, such as the Sechelt Indian Band Self-Government Act. In addition, this bill requires additional items to be in the constitution which were not required in the Sechelt agreement. Items dealing with constitutional amendments and items dealing with annual general meetings are also required.
The constitution must contain a citizenship code and how the governing body is to be elected, appointed or selected. It must include how the laws are to be passed. There must also be a system for financial reporting and accounting. As well, there must be a process for amending the constitution by the citizens, and there must be procedures for calling an annual general meeting.
In the draft constitution there are provisions for allowing the citizens to call the annual general meeting, as well as rules respecting the disposition of land. The constitution is designed to be a check on the government of the First Nation, to be a balance of power so that the government of the First Nation is not without control.
Subclause 4(5) provides that minor defects in the proposal will not defeat the validity of it. Obviously, any proposal of a substantial nature made without a constitution would not be valid.
Clause 5 deals with the how proposals are to be voted on. A proposal must be approved by more than 50 per cent of the electors qualified to vote, which could be significantly more than 50 per cent of those actually voting. Those entitled to vote are the same as in subclause 4(2), those who are entitled to vote for the governing body of the community before it falls under this proposed act. In other words, those people who are entitled to vote for the council today are the ones who will be able to vote on the proposal.
Senator St. Germain: Could you repeat what you just said in regard to the 50 per cent?
Mr. McKinney: Yes. Subclause 4(5) provides that more than 50 per cent of those entitled to vote must vote in favour of a proposal in order for it to be approved.
Senator St. Germain: Is that a simple majority?
Mr. McKinney: It is a simple majority of those entitled to vote. In most elections or referenda, you do not get 100 per cent participation, so it would be more than a simple majority of those who actually vote. In other words, if you have only a 50 per cent turn out, everyone must vote for it. More than 50 per cent must turn out, because you need more than 50 per cent.
Senator St. Germain: Thank you.
Mr. McKinney: Clause 6 sets out the capacity of the First Nation. Currently there is some debate on what an Indian band is; whether it has the capacity of a person, whether it can sue or be sued, whether it can enter into a contract. This gives it the same capacity as a natural person. As well, it gives it perpetual succession, similar to that of a corporation. Without specifying it, it would not necessarily have perpetual succession. This means that it can continue to exist after the originating proponents no longer exist. Under common law, that was not a trust and other entities were not permitted to exist for indefinite periods of time. This makes it clear that First Nations will have perpetual succession.
The next clause deals with transitional items that allow the existing community to remain as a First Nation. The body governing a First Nation will govern it after it falls under this proposed act. The body is presumed to have been elected for a five-year term. That can be overridden by the constitution. The constitution can call for a shorter term. It can require an election before five years. It can institute a recall procedure. Procedures could be put in the constitution which would limit that.
It was assumed that a community falling under this act would need a period of time to get its government operating, and five years is currently the typical term for governments in Canada. The draft constitution calls for the governing body to call an election within five years of being elected. Obviously, that can be changed to fit the needs of each First Nation. The officers and employees of the First Nations, or bands as they now are, would continue as those of the First Nation.
Clause 8 deals with the legislative powers of the First Nation. In order to be properly understood, this clause must be read in light of the other provisions of the bill. There is a general statement here but there are many other subclauses which limit the law-making power of the First Nation.
The First Nation is given the power to pass laws for the peace, order and good government of the First Nation. Schedule II sets out some specific powers, but that is not meant to limit those powers.
There are other clauses which limit power and I will briefly outline those for you. Clause 10 limits those powers to territorial application, with a few exceptions. Primary law-making power applies only on the lands of the First Nation. Therefore, it makes laws of a local nature.
There are exceptions with respect to matters where a First Nation either currently has powers outside of its boundaries or areas where, under the normal rules of conflicts, the courts would look to the jurisdiction of the First Nation for the law. For example, in matters of estate, the courts always look to the jurisdiction where a person was domiciled at their death to decide what law applies. We have continued that. That applies only to personal property. With respect to land, the jurisdiction is always that where the land is located.
Other issues where the laws may go outside the boundaries of the First Nation include adoption of children, custody and placement of children, property of citizens who are minors or dependent adults, education of citizens, estates law, and trusts held for citizens.
Other limits on power include the maximum fine, which is set out in clause 11. The constitution of the First Nation may also limit the powers of the First Nation. Clause 34 also limits the powers of the First Nation because it makes laws of general application apply to the First Nation, its people and its lands, with some exceptions.
A few other areas are also limited. In the area of the environment, the First Nation cannot adopt a standard lower than that in either the federal law or the provincial law which has a territorial link. That is set out in clause 38.
In clause 32, it is made clear that laws respecting the estates of dependent adults or minors cannot be less favourable to the dependent adult or minor than are the laws currently in place under the Indian act. There are some checks on the power of the First Nation in that clause.
Senator Adams: There are many First Nations in this country. Who is the chief of your nation? Are you talking about your own organization, or are you talking about other First Nations?
Mr. McKinney: Are you asking who, within the First Nation, would enact the law?
Senator Adams: Yes.
Mr. McKinney: That is set out in the constitution. That is one of the requirements a constitution must have. Subclause 4(4) states:
(c) how the laws of the First Nation are to be enacted and promulgated;
The constitution could provide for any system of enacting laws. It could be a grassroots situation where citizens vote on certain matters, or it could be a governing body, or, similar to the Canadian system, it could be a council that passes it and it is proclaimed by the chief. It is up to each First Nation. There is no set way to do this. That is something each First Nation puts in their constitution.
Senator Adams: The council would pass it first, and then it would go to the First Nation to become law; is that correct? If not, perhaps you could explain it to me.
Ms Catherine Twinn, Legal Counsel, Sawridge Band (Alberta): The constitution is a critical piece in this legislative scheme in that it represents a system of checks and balances, and the power of the people. The constitution is done by the people, for the people, of the people.
Each First Nation has its own unique structures and institutions. This enabling legislation does not create or impose; it recognizes and respects what they have.
If, within a particular First Nation community, what we now call the "band council" exercises the law-making function or legislative function, the constitution can impose constraints on how that power is exercised, the manner in which it is exercised and the process they must go through. For example, they might want or require the consent of the elder council. With respect to certain subject-matters, they may say that the content of the law cannot include certain provisions. That is something the people of the community will decide, and I think it will be a good process for the communities to go through.
Your question is who or what within the community will exercise that legislative function. They may pass laws for peace, order and good government. I might add that the words "peace, order and good government" were negotiated and agreed to by Canada. That is found in the agreement in principle. It is very broad, but it is of a local nature.
However, the body within that community that exercises the law-making function will exercise that power, subject to the constitution, which will be the check and the balance.
Does that answer the question?
Senator Adams: Yes, thank you.
Senator St. Germain: If the band is not adhering to the constitution, is there a recourse in the bill?
Mr. McKinney: The constitution could certainly provide for a dispute resolution mechanism, but the ultimate recourse is that the constitution, pursuant to this act, is paramount to any action of the governing body of the First Nation or any law of the First Nation. The First Nation would be acting outside of its authority if it attempted to do something in contravention of its constitution.
The ultimate recourse would be to the courts.
Senator St. Germain: Would the First Nation have a court system incorporated in its constitution, or would the courts of Canada apply?
Mr. McKinney: The bill gives jurisdiction to the provincial courts which have a territorial link with the First Nation. The federal courts would have jurisdiction because the First Nations have been considered similar to a board or committee or tribunal within the Federal Court Act and therefore have standing in the federal courts. As well, a First Nation can set up its own court system, but that would only be in respect of its own laws, not its constitution. It would be either provincial or federal courts.
Mr. Martin Henderson, Aird & Berlis: Under clause 15 of the bill, recognizing the competence of provincial courts having a territorial link, it is important to recognize that that, in effect, gives judicial review oversight in exactly the same way that all local governments in Canada are subject to municipal or judicial review oversight, without saying it is a municipal model precisely, because it is not. There is no gap there. I wanted to make that absolutely clear.
Senator Chalifoux: I should like some clarification about the Lesser Slave Lake Indian Regional Council. How many reserves are in the council? How many separate communities are in the council? Do you represent each one of the communities?
Ms Twinn: I can speak to your second question.
Resolutions were passed -- which I think were provided to the Senate -- by the then nine communities that belonged to the Lesser Slave Lake Indian Regional Council. I cannot speak to its current structure. I do not know if Chief L'Hirondelle wishes to speak to that.
On the question of support, there have been two Alberta chief summits, and resolutions supporting this bill were passed.
Last week, I also received a phone call from Robert Breaker, former chief of the Blackfoot. I understand that 12 communities were involved with the Crown on the issue of self-government. Ten have fallen out of it. They are fed up and unhappy. They feel that they are going through a manufactured process with a predetermined result, which they believe is not acceptable. They are now turning with interest to this bill.
We are not recipients of large sums of public money which we can use to hold workshops to educate people about what is going on. Unlike Ottawa-funded special interest groups, we are reservation-based and community-based.
I believe there is an interest in this bill, and there certainly is support. The beauty of the bill is that it does not impose on any community. It is simply an option for each community. Many things must be done by the community in order for the community to come under this bill.
With respect to communities that do not have the time, the energy and the resources, this bill is there for them as a model.
I note that the Yukon legislation cost over $90 million to develop. When it raced through Parliament in three working days, something like $70 million in unpaid professional fees were still owing.
Senator Chalifoux: At this point in time, who are you representing? Are you representing the Lesser Slave Lake Indian Regional Council, or are you speaking on behalf of the Sawridge?
Ms Twinn: The member bands of the Lesser Slave Lake Indian Regional Council passed resolutions which I believe were filed with this committee. I do not have the date of those resolutions, but I could procure those at the break.
Senator Chalifoux: Was there a referendum on each of the reserves included in the regional council in order that the voices of the community membership were heard, or was it only the councils?
Ms Twinn: Workshops were held for the communities. I attended some of them. Again, money has been a problem. Each community held its own council and had its own discussions. I know there was one very large workshop in Edmonton at which there was a fairly good turn out and very open discussion.
Mr. Henderson: Several hundred people attended.
Senator Chalifoux: Did the members who are not living on the reserve have the opportunity to participate in the workshops, and did they attend?
Mr. Henderson: Many of the workshops were held in the city. The largest one was in Edmonton.
Ms Twinn: No one was excluded. No records were kept or questions asked of those who attended as to whether they were off-reserve or on-reserve. The workshops were open.
Mr. McKinney: The resolutions of the bands that are members of the Lesser Slave Lake Indian Regional Council are not resolutions to immediately opt for self-government pursuant to this bill. Those First Nations want this bill passed in order that they will have the option of opting in. They recognize that opting in to self-government is a major decision for any First Nation, and that it will require significant consideration. All First Nations consider this a very serious matter. Those resolutions which were passed were meant only to support the bill in order that they would have the option. Once that option is crystallized, they can start the process of more detailed consultation with their people.
At least one of the resolutions of the Summit of Alberta Chiefs is in the materials provided to you in the white binders.
Senator St. Germain: This is strictly enabling legislation. Am I correct that, if this becomes law, it would merely give native bands the option to adopt this as a template for self-government?
Mr. Henderson: That is correct. In addition, there are specific provisions in the bill to ensure that, when that happens, everyone who wants to opt in is subject to laws otherwise applicable in Canada as they now exist. The Constitution of Canada is not abrogated or changed by opting in. Everything in place now, including Bill C-31, for example, is accepted as it is as a matter of law. There is specific provision in each case to ensure that it is enabling, it is an opt-in, and it does not change anything.
The Chairman: I want to have a clear understanding of what you mean by "territorial link." I know that certain matters that will be dealt with through your enabling legislation will have some cross-reference to provincial and federal legislation. Municipal services and the policies attached to that would also have some implications.
Is it correct that, if there is a dispute between the provincial government and your governing structure, you will rely only on the provincial court to rectify that difference?
Mr. Henderson: There would be the right of appeal to higher courts, as would be applicable in any case.
The Chairman: If a law is passed for the benefit of the community and it conflicts with a provincial or federal law, how will you deal with that? Would you set out a reasonable time period, such as 60 days, for them to respond to the legislation after which, if they do not respond, it becomes law? At what point will you consider that your position becomes non-negotiable, if you consider that it should be dealt with through negotiations?
Senator Tkachuk: Are you speaking of after self-government is a fact or prior to that?
The Chairman: I am speaking of the period after this becomes law and First Nations have their own governing structure. What will you do when you know that the law you are passing conflicts with either federal or provincial legislation?
Mr. Henderson: As was stated, this is enabling legislation. Because it is generic in effect and every community will have its own specific constitution under this legislation, we cannot prejudge that issue; nor do we want to affect the status quo because we need to have negotiations and/or litigation and/or mediation continue. This legislation is designed specifically not to upset the rights of anyone as they currently exist. That does not mean that it will definitely not create more conflicts which will have to be added into existing negotiating structures or court decisions, for example, but the method of dealing with that is exactly the same method that we now have. If there is an aboriginal or treaty right, that becomes, in effect, a trump card over the provincial legislation, there are avenues to determine that.
Remember that this legislation will not apply in the circumstance of a First Nation that has no land and is undergoing a land claim process. That must be done separately and in different ways. It will not interfere with any of those processes or existing negotiations. It will only provide a structure to enable the two sides to negotiate without a legal vacuum on a more equitable footing. Everyone's rights will remain as they were before an opt-in; neither diminished nor expanded.
The Chairman: I do not think we clearly understand each other on this particular issue. I will try to ask my question again in a way that might be understood.
The enabling legislation is the tool for making laws for yourself. You are pushing it because you feel that your community requires that tool to be able to pass laws which reflect the needs of your people and your community.
There are already two orders of authority -- provincial and federal. One passes a law because it is of national concern, and it would like to have the law applied to everyone, regardless of colour or race. Such laws might, from time to time, conflict with the interests of aboriginal people. We know that. Take, for example, the gun control law that was passed. Many of us said that it was not good for our people because it affected our economy and social life.
If you pass a law with this enabling legislation, will you first negotiate a mechanism with the provincial and federal governments for a time slot to be required for them to react to the law that you have passed? I am asking whether you will allow them, say, 60 days to respond to the law that you passed, knowing that the law that you passed conflicts with the provincial government. Will it then become the subject for negotiations? How will you deal with that? The same applies to the federal government. What mechanism are you planning to put in to avoid having to go to court all the time? Court is very expensive. It is a white man's court. It will not understand your needs. You need some kind of mechanism or remedy other than taking the matter to the courts.
Mr. McKinney: Nothing in the bill requires consultation or giving any government, federal or provincial, a veto power over the laws of a First Nation. That being said, I want to address your concern more fully.
Currently, under the Indian Act, a band can pass by-laws which are paramount to provincial laws, and there is no requirement for consultation with the province. Under section 91(24), the federal government is given full jurisdiction over Indians and lands reserved for Indians. It currently exercises all of the jurisdiction over Indians and lands reserved for Indians. There is no residual provincial jurisdiction.
The Chairman: Can I stop you there? You are operating from the premise that you override all the other laws; therefore, there is no mechanism for flexibility.
Mr. McKinney: That is not entirely true. Under the bill, all provincial laws will apply unless they conflict with the laws of a First Nation.
The Chairman: Does that come from you or from the province? Who has more authority than the other?
Mr. McKinney: Primarily, the provincial laws apply in the territory of the First Nation. Currently, the Indian Act provides for that. If it did not provide for that, provincial laws would not apply to those lands because they are totally under federal jurisdiction. The Indian Act provides that, where there is no other provision, either in the Indian Act or a bylaw of a band, the provincial law will apply to Indians -- not lands, just Indians -- on reserves. Our bill goes further and makes all provincial laws apply unless they conflict, but it also allows the First Nation to override this provision.
Primarily, the laws will be of a local nature. They will be similar to those of municipalities. They will not have a far-reaching effect beyond the territory of the First Nation and therefore will not be of provincial concern. Obviously, it behooves the First Nation to deal with the province. If it purports to set up a school on its First Nation, it will want to work with provincial people because there are resources out there; and it does not make sense for each First Nation to create its own system in every event. We have recognized that in areas like land registration. A First Nation may chose to use the provincial system, although they will have to negotiate with the province that they are in to use that system, because the province will not permit that to happen unilaterally.
We recognize that negotiations will be necessary for some of those things, but there is no requirement set out that for every action of a First Nation, they must go out and give someone a veto. Municipalities do not do that. There is no override for a province to override a municipality. There is no override for the federal government to override a provincial law if they think it contravenes their laws. Where there is overlap, they do consult sometimes, and sometimes they do not. That is our system right now.
The Chairman: How would you deal with the case of a federal law that calls for national standards? Would that override your law?
Mr. McKinney: In some specific areas, federal standards are specifically set out in the act as applying, such as in environment. In other areas, if the federal law is something of a national concern, it will override. The First Nation cannot, for example, pass their own Criminal Code, National Defence Act or Atomic Energy Act. Those items of national concern to the country and are paramount, remain paramount.
The Chairman: What about custody and access? If there are national standards on custody and access, how do you deal with that if it conflicts with the day-to-day activities of your people?
Mr. McKinney: Custody and access are provincial matters. I believe there is a precedent under the Yukon Act for custody and access. In the Yukon, the First Nations are given power to pass legislation in respect of custody and access.
The Chairman: Nevertheless, the federal government is still passing the law.
Senator Pearson: It is collateral to the Divorce Act.
Mr. McKinney: But it is a provincial matter.
The Chairman: The law-making is not; support payments are.
Ms Twinn: While Mr. McKinney is looking that up, I would make a more general comment.
You must look at these issues in the context of relationships. Relationships, if they are footed on fear and suspicion, will necessarily be difficult. Where there is a power imbalance, such as what has occurred under the Indian Act with the Department of Indian Affairs assuming control without the consent of the community, that also produces untenable results and makes for a difficult relationship.
This bill recognizes areas of tribal jurisdiction which are territorial, which is something that I think is non-contentious. It is Indian land. These Indian lands, many of them, are the subject of treaty. The Indian people agreed to give up tracts of land in exchange for reservation lands so that those lands would be there in perpetuity for future communities.
In any important relationship, you take into account, just as a matter of common sense and courtesy, the other party's needs, interests, and concerns, and you communicate.
I think there is almost a certain degree of racism taking place with respect to reservation communities. It is assumed that this kind of relationship cannot or does not or will not exist. I do not think that is fair. I think there is some kind of prejudice operating in the minds of some to assume that that will not occur. This suspicion, fear and mistrust has made things very difficult.
We are trying to move towards greater efficiency, economy and effectiveness. I do not think reservation communities need a lot of people looking over their shoulders and telling them how to live their daily lives and look after their local needs. These are community matters.
In my opinion, the definition of "apartheid" is outside control and outside management. We are trying to move away from that and towards a recognition and a respect for the communities that own this land. It is not fee simple title, which is derivative title or title given. This title pre-existed, prior to the coming of the Europeans.
Senator Tkachuk: To get back to the bill itself, nothing in the bill changes what exists today. The bill retains the present balance of power, but nothing in this bill goes against anything or any law that exists today.
Senator, it does not make sense to have a national board to sort out all these conflicts because that will not happen. Each community, as they decide to become self-governing, must work out its own resolution to those disputes. Otherwise, we will be forever thinking of some national organization to settle everyone's disputes. That will not happen. Each community can organize its system to settle its own disputes, as they do now.
In the City of Saskatoon, we do not concern ourselves with whether we will have a problem with Corman Park, which is the surrounding area, or with the provincial government. Enabling legislation allowed the City of Saskatoon to form, and the City of Saskatoon governs itself. Each community works out its own relationship with the surrounding community. I do not think that an Indian band or reserve will be any different, and I feel very comfortable with the legislation.
We may want to set up a mechanism where someone has to give notice if the legislation impinges on a province, for example. I suppose that could be an amendment, but we do not want to go through the process of setting up a process that will dissolve every dispute because that will take to the end of time. It will never happen.
The Chairman: In listening to you, being an aboriginal person and having a certain amount of experience in implementing self-government over the last 20 years, I am led to believe that you are moving in the direction of getting out of what exists today. My biggest concern is that, in order to do that, you must be able to assume the powers, the liabilities and the accountabilities.
By attempting to come up with enabling legislation to take care of yourself and to take control of your own destiny, how much are you giving back by adhering to territorial links, provincial courts and things of that nature? In my view, one local community having authority and power within a defined territory is a quick way to divide and conquer. I am worried about that.
Senator Chalifoux: I must apologize. I did not get the briefing book until yesterday, so I spent half the night last night and early this morning going through it.
This looks like you want to legislate a third order of government. First, will passage of this bill give the regional council -- and I am assuming you represent the regional council -- the right to opt out of the Indian Act? Second, if this bill were enacted, would the federal government be expected to finance the model of your self-government in your communities? Will you be opting out of the Indian Act, and do you want the federal government to finance it?
Mr. McKinney: This bill will not allow the Lesser Slave Lake Indian Regional Council, as a body, to opt out of the Indian Act. It would apply to each member First Nation, if they choose to opt out, and they would have to go through a process within their community. We envision a grassroots process involving the members and citizens of that community making that decision.
The bill does not contemplate any funding because this is a Senate bill.
Senator Chalifoux: I know that. I am asking if the federal government will still have financial responsibility.
Mr. McKinney: The bill does not create any financial responsibility. First Nations that wish to negotiate with the government to get financing for programs and services may do so.
In the case of the Lesser Slave Lake Indian Regional Council, they already have an agreement with the government to administer and provide services for members of their bands. They provide child welfare services, education, policing and a number of services.
Senator Chalifoux: Only for members on reserve, though.
Mr. McKinney: I believe that is not necessarily the case.
Senator Chalifoux: I know about from personal experience that post-secondary education is excepted.
Bill C-31 has been a contentious issue. Women have been denied access to their home reserves. The decision is up to the band. How will you deal with Bill C-31 issues? I am not talking about first or second generation aboriginals, I am talking about women and men who were denied access to the reserves after Bill C-31 was enacted. Would they have any rights to be admitted to their home reserves?
As well, would they have any voting privileges as citizens of that First Nation?
Senator Tkachuk: Before we answer that question, I want to go back to the first point you made, senator. After Mr. McKinney tried to explain present funding areas in the Lesser Slave Lake region, you said, "Only for members on reserve, though." What did you mean by that exactly?
Senator Chalifoux: For services?
Senator Tkachuk: Yes.
Senator Chalifoux: In the area of education, children of the First Nations who are members of a band are not allowed to have any financial benefits going to school until they get to the post-secondary level. I know about that through my granddaughter.
Senator Tkachuk: That is if they do not live on the reserve.
Senator Chalifoux: If they do not live on the reserve.
Senator Tkachuk: Can they not access services in Winnipeg, Calgary and Edmonton where they can go to school?
Senator Chalifoux: I am not talking about the schools; I am talking about tuition and books.
Senator Tkachuk: There are no tuition fees until they get to university.
Senator Chalifoux: I beg your pardon. There are rental fees, which are almost like tuition fees. There are book rentals, school supplies and field trips.
It is a well-established fact that most people who move off the reserve move because of a lack of economic development. They move into the fringes of the urban areas, and they are denied access to funding from their home reserves for education until they get to the post-secondary level. Will this situation be addressed?
Senator Tkachuk: You are explaining the status quo, are you not?
Senator Chalifoux: Yes, and I am asking whether that will change.
Senator Tkachuk: Nothing will change. You cannot change it. This is the way it exists.
Ms Twinn: I recognize that there have been difficulties with the status quo. Where you and I might part company is on where that difficulty has been created and who has created it. I should like to note for the record that, in the early 1970s, reservation communities forced the federal government to provide services to non-Indians living on the reserves, because those people were falling into a jurisdictional hole. The province was saying that, since they were on the reserve, they were not their responsibility. The federal government was saying that, although they were on the reserve, they were not Indian and therefore were not its responsibility. No one wanted to pick up the bill. It was the communities that forced the federal government to ensure that services and programs were provided to all those on the reservation.
I know that today, when people are engaged in bashing reservation communities, they do not like to note that fact.
On a personal note, when my mother was dying of diabetes, she was a taxpayer living in Edmonton. I lived on the reserve. I brought my mother home to nurse her. I went to the Athabasca health unit, a provincial agency, to get a bedpan because there is no federal program that I could access which would provide me with what I needed for her care. I was told by that health unit that they would not provide any services to her. I could not have a bedpan. The nurse at the local hospital loaned me one, along with some other items that I needed.
Who will solve these problems? It will be the people who know those problems and must live with them. It must be done directly. When you must go through elaborate bureaucratic agencies, you get nowhere.
Senator Chalifoux: How will this bill resolve that dilemma? I experienced a very similar dilemma. I understand the problem, but how will passage of this bill resolve that situation?
Mr. Henderson: We agree with you that it is a major problem. This bill cannot solve problems the hundreds and thousands of problems that exist across the country in 600 communities. Enabling legislation cannot realistically deal with that. However, it does give an option to a community to be directly self-governing, to fill the gaps that become excuses to do nothing. The bill does have teeth. When the local community decides what it wants to do, it will have a legal mechanism to go forcefully and legally to the people responsible and have the problem solved rather than being told that, due to a loophole, it is not their problem. That is what this is for.
I wish the problems could all be solved through this. I agree with everything you have said about that, but the first thing we must do, unfortunately, is give power to the people in order that they can confront the people who should be dealing with them fairly. That is what this is about.
Senator Chalifoux: Thank you.
Senator Pearson: I wish to raise an issue which I have raised before, that being voting age. Under your constitution, an elector is someone who is 21 years of age or older. Given that there are so many young people in these communities, why would you raise the age of enfranchisement? That makes no sense to me.
Mr. McKinney: This constitution is merely a template. Each First Nation can make adjustments on items such as the voting age. This bill was drafted based on an agreement which had been reached with the government, and that was the voting age in that agreement. It was left as it was. It is not meant to be binding on any community. The community may institute a different age.
Senator Pearson: It is important for young people to feel that they are part of the process. I would not like them even to see it there. You need to engage young people as much as possible in your decision-making processes. Much of your legislation will affect peace, law and order, and good government, and they should have input into solving those problems.
My next question relates to custody and access. Since I last saw you, I have been on the committee dealing with that issue and I have many questions about it.
Mr. Henderson: I have one comment on your first question. I have much the same response to it as I had to Senator Watt's question earlier; that is, maybe the age is wrong. That needs to be discussed. Nothing is written in stone.
The same applies to the notice. We do not want to include a veto, but it may be smart to include notice if a conflict is anticipated.
Both of those are intelligent suggestions.
The Chairman: Are you saying that this is an area which may have to be looked at closely?
Mr. Henderson: They seem to me to be common-sense suggestions.
Mr. McKinney: With regard to custody and placement of children, that is set out in Scheduled II of this bill. As I said, there are precedents for it. The Yukon bill provides that guardianship, custody, care and placement of children of citizens of the First Nation, excluding regulation and licensing, are facility-based services outside the settlement land of the First Nation.
The Yukon bill, as you might recall, is quite complicated. It states that a First Nation named in Schedule II -- which are the First Nations that were qualified for self-government under the Yukon act -- to the extent provided by a self-government agreement -- so there is an agreement you must look at in respect of each First Nation -- has the power to enact laws applicable in the Yukon Territory -- not just in their own territory but in the whole of the Yukon Territory -- in relation to the matters enumerated in Part 2 of Schedule III -- which is where the particular section falls.
There is also a precedent in the Sechelt Indian Band Self-Government Act.
Senator Pearson: I am interested in the shared parenting concept with regard to divorce. Issues dealing with custody often have nothing to do with divorce.
Mr. McKinney: It deals with all matters of custody and placement, be it divorce, separation or the death of a parent. It is open-ended.
The language in the Yukon bill is broadly based. It does not restrict custody or placement where the child is the subject of a divorced family.
The same language is in the Sechelt act. In that bill there is not a territorial restriction per se. Nearly every one of their law-making powers is restricted to "on Sechelt lands." The Sechelt Indian Band Self-Government act refers to, "social and welfare services with respect to Band members, including, without restricting the generality of the foregoing, the custody and placement of children of Band members." Basically, it would apply to members wherever they are resident because it does not specify that they must be resident on Sechelt lands, as many other sections do.
Senator Pearson: It would be interesting to see, in any disputed divorce, how that falls into operation. Our frustration in our committee was that we were unable to get enough information about the issues, and we did not feel we could make serious recommendations because we did not have enough time to investigate the whole topic. Several people did mention issues of conflict in a custody case between an aboriginal and non-aboriginal parent particularly, but sometimes even between two aboriginal parents. That is why I asked the question. The whole issue of family law is unresolved. It would be interesting to see the outcome of any case that falls within that section.
Mr. McKinney: You run into the same situation where one parent lives in one province and the other in another province. Each province has its own laws but, typically, those are court-generated guidelines in any event. The best interests of the child is generally the paramount concern.
The Chairman: Please go ahead. I apologise for interrupting, but these are important questions that must be addressed.
Ms Twinn: There were two outstanding questions -- one raised by Senator Chalifoux on Bill C-31 that was not answered, and one raised by yourself concerning the concept of "divide and conquer." I believe clause 29, will answer your question.
Mr. McKinney: Clause 9 states that the Statutory Instruments Act does not apply to First Nation laws. They need not be published in the Canada Gazette. That is similar to other self-government arrangements.
We already dealt with clause 10. Basically, it restricts the general law-making power to the territory of the First Nation with the exceptions that we set out before.
Clause 11 limits fines and imprisonments to those set out in the Criminal Code for summary conviction, so there is a limit on those powers.
Clause 12 states that the fines will belong to the First Nation, which will help them to proceed with their prosecutions under clause 13. A First Nation has exclusive jurisdiction to prosecute contraventions of its own laws.
Clauses 14 and 15 deal with giving jurisdiction to the courts, and we already went over that briefly. It gives the courts in the province with a territorial link to the First Nation the jurisdiction to hear matters arising from First Nation laws.
Clause 16 recognizes that the ownership of the lands of the First Nation belong to the First Nation. Those are the lands they already have. It does not give a First Nation any new land. It just recognizes that the land currently held on their behalf is their land.
Clause 17 deals with protecting interests in those lands that already belong to them. It is not the intent of this bill to adversely affect any third party interests. Those interests continue to be enforceable to the extent that they were before the First Nation came under this act.
Senator Adams: Clause 16 deals with lands and reserves. I know some First Nation bands are trying to buy lands close to but outside their reserves. Somes reserves have taken over land from farmers in order to farm that area. There are also concerns about oil and gas reserves. Does this clause mean they can buy land outside the reserve?
Mr. McKinney: No, clause 16 does not give the First Nation the power to increase its land base. The definition section sets out what can qualify as lands of the First Nation. There are four categories. The first is lands that passed to the First Nation. In other words, it is reserves and such other lands as are reserved for the Indians within the meaning of section 91(24), lands that are already recognized as Indian Lands.
Other lands that fall within that definition include lands that the First Nation acquired that are declared by the Governor in Council to be its land. Under the current Indian Act, the Governor in Council can declare new lands to be reserves, and that power is left with the Governor in Council and the government. The First Nation itself cannot do that.
The third group deals with successful land claims. Obviously, if there is a successful land claim decided by the court or by agreement, the lands that come out of that would be included in the lands of the First Nation.
The final category deals with lands being expropriated and new lands given in exchange. In other words, if some existing lands of the First Nation are taken for, say, a road or railway, and other lands are substituted, those lands would be lands of the First Nation.
It is very limited. There is no power to create new lands unilaterally by the First Nation. They cannot go out and buy 10 quarter sections and say that they are part of their lands.
The Chairman: Do you consider that Treaty No. 8 is intact and has never been violated by third parties in any shape or form in the past?
Mr. McKinney: It would be a very broad admission that I could not make, that the treaty has never been breached.
Mr. Henderson: We think the government breaches Treaty No. 8 all the time.
The Chairman: Is Treaty No. 8 intact with respect to the boundary and size of your reserve?
Ms Twinn: There have been violations in the past and they continue today. I would think, if one were to add them up, one would find that there has been a large number of the violations on the part of Canada.
The Chairman: Is that one of the reasons your presenter stated that third parties' interests will be protected? Why would that be necessary if the land is in the reserve?
Ms Twinn: For example, a highway was put in on Sawridge land. Lands were taken without the knowledge or consent of the band. Today, many innocent people travel those roads and depend on those roads for their livelihood. Just because Canada has been high-handed and has not observed the spirit and letter of the law, does not mean that the innocent should be made to suffer.
You do not want to create additional conflicts. You want to get to the root issue.
Mr. McKinney: I should clarify that. Protection of third party interests only applies to those that are lawfully acquired rights, obligations, or interests in those lands. It is clear that, if they were unlawfully acquired, they would not be protected, just as they would not be protected right now. It is not meant to whitewash anything done under the treaty; it is only meant to preserve rights that have been properly acquired in the past.
The last part of clause 17 deals with the First Nation requesting an accounting from the government in respect of the dealings on the land. This is meant to give the First Nation a clean slate. Once they get an accounting from the government, they can administer their own lands. Currently, those lands are administered by the government, and the First Nation may not have access to all of the history or transactions that have occurred. It basically gives them a clean slate. To discharge that duty, they have to provide an accounting in any event.
Clause 18 provides that a citizen of a First Nation does not have the power to dispose of or otherwise deal with the lands of the First Nation. These are communal lands owned by the community. They must be dealt with in accordance with the constitution of the First Nation which provides for a mechanism for dealing with the land. Under the Indian Act, there must be a referendum, and we contemplate continuing that requirement. It is up to the community to decide before any Indian lands are alienated.
Clause 19 of the bill is a similar provision. It reiterates that the governing body has control over First Nation lands, and no one can come and use those lands. There has been a problem in the past where people come and use lands without consent. This bill clarifies that the governing body controls the use and power over those lands.
Clause 20 deals with registration. The bill provides that the First Nation can pass its own law. In other words, it could enact its own registration system. It is not envisioned that that is necessarily the best for the First Nation. They may want to negotiate a deal with the province with which they have a territorial link in order to use the provincial system. If they do that, they can pass a law to authorize registration in the province.
The bill does not state that they must negotiate. However, if they pass a law stating that it registration is to be done in the province and the province does not accept the registration, then the law will have no force. It is contemplated that they will work out an arrangement with the province.
Our experience is that the Province of Alberta is open to registering Indian lands, but they want certain of their laws to apply. Their system has certain attributes, and they want those attributes to apply to any of the lands registered in their system. That would be a subject of negotiation, obviously, or they would not accept the registration.
The Chairman: The reason for that is you want to make sure that they have the means to enforce the law.
Mr. McKinney: That is correct.
The Chairman: What about the community side of enforceability?
Mr. McKinney: In order for the community to function properly, it must have some form of enforceable system in respect of land registration. It is contemplated that the existing registration under the Indian lands register will continue until some other system is put in place so that there is continuity. We do not want a void in the process of registration.
Senator Adams: If Bill S-14 is passed, will First Nations have the right to control any exploration on their lands? I am thinking particularly about oil and gas exploration. Who has the power, the community or the First Nation?
Mr. McKinney: The power to control or decide what happens to the land rests with the First Nation.
The Chairman: When you say "First Nation," you mean local First Nation, within the boundary of their reserve.
Senator Adams: A community. I think I understand.
Mr. McKinney: If we are talking about a long-term lease or the alienation of a right in the land, they would have to go through a referendum process as set out in the constitution. The issue would go through a grassroots membership process. That is what the constitution requires. Each First Nation could tailor-make that to suit their own community, but it is not contemplated that the government of the First Nation could unilaterally dispose of all the resources on a particular piece of land without consulting the membership, which is similar to what happens today.
It is also provided that the Indian Oil and Gas Act continues to apply unless the First Nation replaces it with some other regime. There is a status quo in respect of dealing in land.
Senator Adams: My concern is that one reserve may become richer than another. I may live on a reserve that has no income from oil and gas. If I am poor and you are rich, who has more power? Will everyone benefit?
Mr. McKinney: Each First Nation controls and owns its own resources. Some have different resources than others. Some are obviously more wealthy than others, and that is their circumstance now. This bill does not force any First Nation to share or to give up power over its own resources.
Ms Twinn: What is wealth? You can have 6,000 acres of swampland and be considered rich, depending on the person's measurement of wealth, or you can have 20,000 acres of pine forest with clean air, clean water and clean land. In the end, I believe land and people who work together not only create wealth, but maintain a healthy relationship with both the human and the natural world. That is where prosperity is found.
Mr. McKinney: Honourable senators, clause 21 of the bill makes it clear that the lands of the First Nation continue to be lands within the meaning of section 91.24 of the Constitution Act, 1867. We believe they are in any event, but we wish to make it clear that it is not the intent of this bill to turn those lands into lands that are not reserved for Indians.
Clause 22 of the bill deals with moneys that are the property of the First Nation. It continues the ownership of those moneys in the First Nation to which they belong. In other words, it does not allow those moneys to be given to any other First Nation.
Similarly, with respect to the lands, there is a requirement for the First Nation to request an accounting. This would allow the government, if they provide the accounting, to discharge their fiduciary duty and allow the First Nation to have a clean audit at the outset. The First Nation's audit is set out in their constitution.
Clause 23 of the bill continues the status quo with respect to taxation under the Indian Act. It continues the application of section 87.
Subclause 23(3) extends that tax exemption to an Indian corporation, and subclause 23(4) defines an Indian corporation. An Indian corporation is a corporation owned by a First Nation, by citizens of a First Nation, by Indians from another band, or by another band, or a combination of those. There can be no non-Indian ownership of an Indian corporation or it will not qualify. In addition, the Indian corporation can only conduct business on lands of the First Nation.
The Chairman: Is it limited to only the land?
Mr. McKinney: It refers to lands of a First Nation or a reserve. Basically only on Indian lands.
The Chairman: Does that mean that you cannot do business outside the reserve?
Mr. McKinney: If you do, it will not qualify as an Indian corporation. If I set up a store on my reserve and it is owned by a corporation, it would be considered an Indian corporation only as long as it is owned by Indians only.
The Chairman: Is that only for tax purposes?
Mr. McKinney: There are a few places in this bill where the phrase "Indian corporation" is used. One of the reasons for that is tax; another is legal process.
The Chairman: What about membership?
Mr. McKinney: No, Indian corporations do not get involved in membership. Membership is people.
This is something that was negotiated with the federal government and is also contained in the Yukon self-government bill. It is not a new provision. It allows an Indian to use a corporate vehicle in the same way that people in the rest of Canadian society use them, but it does not give them any benefit they do not already have. Presently, if a First Nation or an individual member of a First Nation currently wants to incorporate a company, they can do so. If that company conducts all its business on the reserve, the corporation would have to pay tax because there is currently no exemption. The individual could pay all the money from the corporation to himself or herself and not pay tax because it is a salary earned on the reserve and, therefore, it is not providing individuals with a new benefit. This just makes it clearer and recognizes that Indians should be able to use corporations in the same way that other Canadians do. They should be able to exempt themselves from liability in incorporating their businesses and enjoy the other benefits of incorporation. That is the intent. It is not meant to provide a new benefit. As I said, it is recognized in the Yukon bill. If you wish, I can refer you to the clauses.
It is set out in self-government agreements of the First Nations. One example is section 15.3 of the Champagne and Aishihik self-government agreement which sets out the Indian corporation provisions.
Clause 24 of the bill deals with legal process. It is, basically, a copy of section 89 of the Indian Act. It prevents the seizure of personal property situated on Indian lands. There are certain exceptions. We have allowed the First Nations to consent to agreements. In other words, if an individual member of a First Nation wishes to grant a mortgage on some personal property they own and the First Nation signs off on it, that overrides this exemption. The current problem is that, if a citizen or a member of a band wishes to get a loan and post security, they cannot override the provision in the Indian Act unless it is a conditional sale. That applies only when they initially purchase the item. If they already own the item and they take out a loan, the person who made the loan might be defeated in seizing the property. This allows for an override, but only with the consent of the individual and the First Nation.
Clause 25 is the conditional sale exemption. It is the same as section 89(2) of the Indian Act. If a person sells a citizen of a First Nation a property and they retain an interest in that property until payment is made, the person who sold the property can seize it. That is the current situation under the Indian Act and it will continue to be the situation under this bill.
Clause 26 incorporates what already exists in section 90 of the Indian Act. Property that is given to a First Nation or purchased by the Government of Canada with First Nations money is deemed always to be situate on First Nations land. That is the current situation under the Indian Act. In other words, if the Government of Canada purchases a vehicle for a First Nation and provides it to them, since it is deemed to be situate on lands reserved for Indians, it cannot be seized by non-Indians or First Nations, and that continues to be the case.
Clause 27 again continues the status quo under the Indian Act. It copies section 90(2) of the Indian Act. Legal rights under the Indian Act are continued under this bill and that is the intent of that part of the bill.
Clause 28 allows a community to divide or amalgamate. Under this bill, a community can only amalgamate with another community that falls under this bill and a First Nation that is under this act could divide. In order to do so, they must have the approval of the electors. There must be approval of 80 per cent of all the electors entitled to vote. That is a very high threshold. It is not thought that First Nations would lightly decide to divide or amalgamate. It is very serious business.
Clause 29 deals with the confederation. This allows First Nations to set up a confederation wherein they would delegate part of their powers to another body. This could be done if two First Nations wanted to collaborate and work together on certain issues. They could grant powers to, for instance, a regional government. This is not something new. The Sechelt have such a system for regional government.
The Chairman: Regional government does not dispose of the need for local authority, does it?
Mr. McKinney: It does take power from the local government and provide it to a regional government. Since that is giving up power, it must be in their constitution. If it is in their constitution, it would require a constitutional amendment. The First Nation cannot simply decide to give the regional government of Lesser Slave Lake the power to pass laws in respect of policing or some such thing. There would have to be a constitutional amendment to grant that power. The constitutional amendment can be for a limited length of time.
Ms Twinn: This is an important point, and I wish to add to it. When the Indian Organization Act was passed in the U.S., they centralized government for many communities which, although perhaps related linguistically or territorially, were in fact distinct and autonomous. Today there is a great deal of internal conflict. For example, a band in Arizona had a problem with their central government which sold their water rights without their consent. This put the entire community into cultural and economic despair because they were farmers and depended on that water.
This prevents that. I perceive and visualize it as a yo-yo. The people of the community have the power. If they loan out their power, they can do so on conditions. They can take the power back. The accountability is there. That is very important for peoples' sense of comfort, security, trust, and to be able to deal with change.
Mr. McKinney: Clause 30 deals with the interpretation of the act. These are all very important principles.
This proposed act does not attempt to abrogate or derogate from any existing legal rights or any existing aboriginal or treaty rights of First Nations, its citizens, or any other aboriginal peoples of Canada. We are not attempting to override a right that is protected by the Constitution or any other rights.
Nothing in this act will abrogate or derogate from any existing or future claim of the First Nations. We are not asking any First Nation to give up a land claim or any other claim they might have. This is a transition from the Indian Act to self-governing.
This act will bind the Crown in right of Canada or the province. If this were not included, the Crown could claim that they are not bound by the act and it was thought to be necessary in recognizing the honour of the Crown.
Subclause (4) continues the status quo with respect to section 67 of the Canadian Human Rights Act. Under that section, it provides that nothing in the Canadian Human Rights Act affects any provisions of the Indian Act or any provisions made under or pursuant to that act. It is meant to continue that status quo.
Clause 31 deals with the liability of individuals. This basically provides that members of the governing body, in other words, councillors or chiefs or chairman or whatever their title, will not be responsible for the debts and obligations and other liabilities of the First Nation unless they knowingly act outside the constitution. If a governing body of a First Nation knowingly acts beyond the bounds of this act or the constitution, they could be liable. This is another check on the governing body of a First Nation. They must act within their constitution and within this act.
Similarly, the individual citizens of a First Nation are not responsible for the debts and obligations of the First Nation. This is similar to municipalities and the federal and provincial governments. We as citizens of a province or a country or residents in a community are not responsible for the debts and obligations of that community.
Clause 32 deals with the basic principles of the Indian Act. The Indian Act does not apply to First Nations that will fall under this act. There are a number of exceptions to that. They are basically transitional to allow the existing rules and law to continue to apply until they are, in some cases, replaced. That is not the case in respect of Indian status. It is the case in respect of election regulations, referendum regulations, and band council procedure. Those are areas where the First Nation could pass their own laws. The provisions dealing with education continue to apply, as do the provisions relating to estates and property of dependent adults and minor children. The income tax provisions continue to apply. That is already set out in the act, but for greater clarity it is included in this section.
The last subclause deals with Indian status. Basically, this bill does not purport to change the existing regime with respect to Indian status. The status quo under the Indian Act remains. We have incorporated sections 5 to 7 of the Indian Act, and they continue to apply. There is no change in Indian status. We are not creating any new Indians, and we are not taking status away from anyone who has Indian status. The status quo remains.
Clause 33 is referred to as a most favoured nations clause. If a First Nation opts into this act and later the government negotiates or passes new legislation giving First Nations additional powers that were not granted by this act, the First Nation can pass its own law incorporating those provisions. It cannot change those provisions, but it can adopt them in its own law. I believe there is a precedent for this in the self-government agreements of the Yukon.
Clause 34 deals with the application of laws of general application. The main rule set out in 34(1) is that laws of the Parliament of Canada of general application apply to the First Nation, its citizens, and its lands. Of course, that is subject to land claims agreements and treaties. That is something that the constitution provides, and we cannot override that.
Subclause 34(2) is a exception, and it provides that in certain circumstances a First Nation may pass a law that would be paramount. It is fairly restricted. First, the First Nation law must be consistent with this bill, so it cannot act outside of anything contained in this bill. It must be consistent with its own constitution, and it must be either a matter enumerated in sections 91 or 92 of the Constitution. In other words, there is no attempt to permit a First Nation to pass a power which is not enumerated. There is some argument out there that there are residual powers that are not enumerated in sections 91 or 92 of the Constitution. If the matter is inherently of a national concern, if it is a temporary, extraordinary, or emergency law, or if it is a matter that would override provincial law, then the First Nation law will not be paramount. In other words, it really limits it to laws of a local nature. We are not trying to override laws of a national concern or nature such as the Criminal Code or the National Defence Act. Many acts are national in scope and continue to apply.
Subclause 34(4) deals with the same matter in respect of provincial law. It basically continues the existing situation under the Indian Act. The Indian Act bylaws passed by a band override provincial law. Otherwise, provincial laws apply. That same situation exists here.
Clause 35 makes it clear that existing bylaws of a band will be laws of the First Nation once they fall under this proposed act. In other words, their existing legal framework will continue in place until it is replaced or changed.
Clause 36 makes it clear that the Indian Oil and Gas Act continues to apply unless the First Nation passes a law to change that to make it not apply.
Similarly, in clause 37, the Canada Land Survey Act and those regulations continue to apply to the First Nation unless they pass a law to the contrary. It is not contemplated that a First Nation would wish to set up its own system of survey, but they may wish to adopt provincial standards instead of federal standards. Often it is difficult to find a federal land surveyor, but provincial land surveyors are common because they do most of the survey work in the provinces that we are familiar with.
Clause 38 deals with the environment. It permits a First Nation to pass laws in respect of environment on its territory. Those laws can be no less stringent than either the laws of the province they are in or the federal government, whichever is lesser. Most First Nations would probably impose a more stringent requirement, so we do not see that as a drawback.
Clause 39 is similar to section 4(2) of the Indian Act. This clause will permit the Governor in Council to declare that certain clauses of this bill, which are set out here, do not apply in respect of a First Nation. It allows for certain modifications to be made. One example is the punishment clause which limits the punishment applicable for offences. Currently, if you breach a federal law with respect to the environment, the fines are very heavy. If you breach a First Nation law, the fine is limited to summary conviction fines under the Criminal Code. Those fines are minor. This would permit the Governor in Council to exempt a First Nation from that restriction in respect of a particular law if a problem arose. It basically allows for some adjustment to the act without passing a whole new bill, but it is fairly minor because it is limited to a very few clauses of this bill.
Clause 40 deals with membership. It preserves the status quo under section 10 of the Indian Act. If a band assumes control of its membership, they cannot deprive someone of a right to membership by reason of a situation that exists or action that was taken before they assumed that control. That is exactly what is continued here. This is taken from the Indian Act. The intent here is to continue the status quo and not change anything to do with membership as it exists.
Senator Tkachuk: I believe that covers it, Mr. Chairman, so we are ready for questions.
Senator Adams: As you know almost all the stores in the North used to be Hudson's Bay stores. Now we have many stores, some of which we own 100 per cent, some of which are owned by outsiders. The situation has changed since the new stores took over. Some people who apply for jobs at those stores want a guarantee that they will be shareholders of the store they work for. You say that any business will have to be owned 100 per cent by First Nations to do any business on First Nation land. What is the current situation in those six or seven communities?
Mr. McKinney: Most of those First Nations have stores and a number of other businesses on their lands. There are all kinds of different arrangements on those First Nations lands, and this bill is not meant to apply only to those seven First Nations. In the past, all the self-government processes have been small, related to only one band or one group of bands. The thought was: Why should we require every First Nation in Canada to go through a very time-consuming and expensive process that, hopefully, in the end will result in a very similar package, but one tailor-made to their needs? It was hoped that we could come up with a package that would work for any First Nation that wanted to use it. If it does not work for them, they can negotiate their own self-government agreement. We are not trying to preclude that.
Certainly, there are businesses that are wholly owned by First Nations, or wholly owned by individual members of the bands, and there are joint ventures. Presently, if those joint ventures have a non-Indian partner, they would be taxable. There is no tax exemption or benefit, and we are not trying to give them one under this bill. We recognize that is not a policy the government would support, and we are not trying to do that.
Ms Twinn: The corporate tool is to stimulate economic activity and relationships. Let me give you a concrete example. There is a woman who patented a process for the knitting of fur and taught it to certain women in a northern community. Let us say I have the pelts but not the technique, and that they have the technique. We can create a corporation -- they are on the reservation, I am on the reservation -- and we can work together. That is happening now. There is a Haida woman from Vancouver who makes very expensive coats. She sends the coats to Cree women in Saskatchewan who finish the garment with bead work. If I stand alone; I have no power. If you and I come together and put our resources together, then maybe we will have something. That is what this is designed to do.
Senator Adams: In Nunavut, companies with interests in mining, oil and gas, and exploration used to have to get permits from Ottawa. They must now negotiate with the people of the communities. If you have 100 per cent control, what happens if you do not have the money to do everything you want to do in the community? Once you control everything, will you have enough money to provide for those people in the community? In Nunavut, even when we settle the land claims, we still expect companies to come in and operate in our area. My concern is that if Bill S-14 is passed it will put a wall up and no one will be able to go in.
Mr. McKinney: This bill does not really change the status quo with regard to control, other than removing the minister as a secondary control. Currently, if a First Nation wishes to issue a licence to harvest timber from their reserve, they can issue that permit or licence, but then that must be approved by the minister. This eliminates the necessity of corresponding with a regional office of Indian Affairs to get approval for what is done every day. In practice, the department relies on the First Nation, unless there is a dispute or concern. If a dispute arose under this regime, there would be normal recourse, just as there would be outside of reserve lands. If a person applied for a licence or a permit and it was denied, they could go through an appeal process. That is the situation which exists.
Ms Twinn: A video honouring Walter Twinn was put together by the community when he was appointed to the Senate. In that video there are many interviews which deal with the subject of the obstacles to economic development. When Walter started off as a young chief, there was nothing but poverty all around him. He had a vision and he saw possibilities. Those possibilities were off reserve, and so that is where the businesses were created.
At that time, the Department of Indian Affairs and Northern Development said that Indians could not go off reserve and to develop their economies. The first hotel in Slave Lake, which is there today, provides many jobs to many people, native and non-native. The Sawridge Band is the largest taxpayer in the town of Slave Lake. Walter had a heck of a time getting around this policy. It went all the way to the minister, who was then Jean Chrétien. In the end, he overruled his bureaucrats and permitted this, but a gazillion strings were attached to his ruling.
An accountant in the video talks about the farce that was created by the bureaucracy when they said that only an accountant could sign cheques. Of course the accountant would turn and ask Walter if he should sign the cheques. They did not trust Walter as an Indian chief. Walter wanted to get the job done, so he did what he had to do.
You asked how we create a local economy. You must respect local wisdom, local intelligence and local know-how. You must give us that environment of freedom, trust and respect, and let us move ahead. It can be done.
The Chairman: Since we must vacate this committee room soon, I would ask our witnesses if they can be here tomorrow when the Senate rises, say, shortly after three o'clock. We have many more questions to ask.
Ms Twinn: I personally have problems being here tomorrow.
Senator Tkachuk: We have all made other arrangements. Some are more pressing than others.
Senator St. Germain: Mr. Chairman, this is fairly complex legislation and many questions will be asked. If we are going to bring these people in from all over the country at a huge cost, we must have a strategic plan as to how we allocate time to complete our study in a proper manner. I am very disappointed that we have only two hours to deal with this bill this morning.
The Chairman: I am trying to find some way of extending our time.
Senator St. Germain: With all due respect, we should be planning in advance and not at this stage.
Mr. Chairman, I urge you to map out what you think our time requirements will be. If we must bring these people back we should ensure that we have enough time to ask all of the questions we want to ask, as opposed to asking them to come back on another day.
The Chairman: Perhaps you could come up with concrete suggestions.
Senator St. Germain: I will. Let us give them a block of time and ask them how much time they need. Senators should be asked how much time they need to deal with this bill. When we bring the witnesses back the next time, we should allocate four, six or eight hours in order to hear from them properly. That is all I am saying. This is not beefing and bellyaching. I merely want to respect the fact that these people come from all across the country, and they are here at their own expense, I believe.
Ms Twinn: I would suggest that you hear from representatives of the Department of Indian Affairs. I know that they have been actively lobbying against the bill. Perhaps at the end of that process, we could come back and deal with the bill. By then I think you will see that your concerns, fears and questions will fall into certain categories.
Senator Chalifoux alluded to one topic that, in and of itself, is a large topic. Socrates said that there is nothing more dangerous than ignorance in action. After you have heard from the department, you could organize your questions. I would be more than willing to provide a bibliography that would deal with, for example, equality norms and Indian rights to provide some context, as well as background material.
I would be honoured and pleased if we could have a real discussion rather than a sniping exercise. Because the Senate is not an elected body, I think it is important that that occur.
Senator Johnson: I agree. We should focus on any new aspects that arise, as opposed to rewriting testimony we have heard before. Then we will know what time allocation we will need. Then no one will be put in this position again. Department officials will appear, and then you could return to assist us and, hopefully, we can wrap this up.
The Chairman: Ms Twinn, one of the reasons we set up the round table on governance is that we often run out of time at public hearings. We would invite you to participate at that round table as well.
The Assembly of First Nations is the organization that you would go through, because I know that you are a member of that organization.
Senator Tkachuk: Is that study related to this bill?
The Chairman: That is related to the study we are undertaking.
Senator Johnson: We can provide the witness with the information. If they so choose, they can participate.
The committee adjourned.