Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 26 - Evidence, April 20, 1999 (afternoon meeting)
OTTAWA, Tuesday, April 20, 1999
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-49, providing for the ratification and the bringing into effect of the Framework Agreement on the First Nation Land Management, met this day at 5:15 p.m. to give consideration to the bill.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Our first witnesses, senators, represent the Interim Land Advisory Board.
Mr. Robert Louie, Interim Lands Advisory Board: Mr. Chairman, we would be prepared to have our chiefs and council members come up and make comments on specific issues when the need arises. We thought this might be the best way to save time this evening.
The Chairman: My understanding is that the people behind you will all be affected by this particular legislation. Is that true?
Mr. Louie: That is absolutely true.
The Chairman: Okay. From what I understand, the majority of them are in support of this bill; is that correct?
Mr. Louie: All of our participants here are in full support.
The Chairman: All right. You may proceed, now.
Mr. Louie: Good evening. Mr. Chairman, honourable senators, I, along with our chiefs and their communities, wish to thank you for the opportunity to be here today and for the opportunity to make our presentation to you.
With your approval, it is our intention that I start off with the first part of our presentation. I intend to be brief and to the point. I will focus on some brief opening remarks, explaining the primary purpose and objective of Bill C-49 and the Framework Agreement on Land Management. I will then touch on the issues of expropriation, division of interest in land upon marital breakdown, municipal consultation, and the environment.
In view of the time constraints, the chiefs and council members present today who wish to speak on specific topics will refrain from doing so. However, they would like to speak when certain topics arise during questioning. This will save valuable time, so that we can focus on questions and answers this evening. That is how we would like to proceed.
With me this evening are the following people: Chief Barry Seymour, Lheidli-T'enneh First Nation, British Columbia; Chief Harry O'Donaghey, N'Quatqua First Nation, British Columbia; Chief Bill Williams, Squamish First Nation, British Columbia; Councillor Harold Calla, Squamish First Nation, British Columbia; Councillor Krisandra Jacobs, Squamish First Nation, British Columbia; Councillor Vincent Yellow Old Woman, Siksika Nation, Alberta; Chief Austin Bear, Muskoday First Nation, Saskatchewan; Councillor Ava Bear, Muskoday First Nation, Saskatchewan; Chief Terry Pelletier, Cowessess First Nation, Saskatchewan; Chief William Lathlin, Opaskwayak Cree First Nation, Manitoba; Chief Margaret Penasse-Mayer, Nipissing First Nation, Ontario; Chief Rennie Goose, Mississaugas of Scugog Island First Nation, Ontario; Chief Lorraine McRae, Chippewas of Mnjikaning First Nation, Ontario; Councillor Arnold Ingersall, Mnjikaning First Nation, Ontario; Chief William McCue, Chippewas of Georgina Island First Nation, Ontario; Councillor Pat Big Canoe, Chippewas of Georgina Island First Nation, Ontario; and Chief Arthur Bear, St Mary's First Nation in New Brunswick.
Also present are some of our technical staff, who will assist us in responding to specific questions.
Our chiefs, councillors, their communities, land managers, resource personnel and technical advisors have been working tirelessly on this project for well over 10 years. Although our group represents only 14 of the 610 First Nations in Canada, we account for 15 per cent of the registered reserve transactions in Canada.
During this 10-year time span, hundreds of meetings have taken place, coast to coast, involving First Nation communities; federal government officials and their advisors; provincial government officials; local governments and municipal associations; the Department of Justice; financial institutions; concerned interest groups; parliamentarians; and various national, regional and local aboriginal groups.
This initiative has been well thought out and thoroughly researched, and it is now complete. We have been listening for 10 years, making changes or amendments whenever they were necessary. However, our framework agreement was signed on February 12, 1996, and it is now time to ratify it.
The primary purpose and objective of Bill C-49 and the framework agreement on land management is the recognition of First Nations' authority to manage their existing reserve lands and resources at the community level, without interference from other governments. It is about designing and passing laws for responsible land management, and about being recognized as a government, equal in every way to other governments, where land and resource management are a concern.
To this end, honourable senators, we are appreciative and grateful for the opening comments of Senator Chalifoux during second reading of Bill C-49. She has adequately characterized its intent and purpose.
Our 14 First Nations will opt out of the land management provisions of the Indian Act, adopt their own Land Codes and sign individual transfer agreements with Canada. The land code and the individual transfer agreement must be approved by eligible voting members, both on and off reserve. Three of our 14 First Nations have completed their vote. It may take several years before the other 11 are at this stage.
This initiative is viewed by our First Nation communities as an incremental step towards self-government. Our First Nations will have the opportunity to make their own decisions. In so doing, they will have no more power than the Department of Indian Affairs and Northern Development presently has; at the same time, they will not have less power.
Mr. Chairman, I will now focus on some of the specific issues that you and your colleagues have raised. The first issue is expropriation.
Expropriation is a last resort power, used only when it is not possible to acquire legal interest in the land by mutual agreement. Expropriation is an essential power of governance. Bill C-49 and the framework agreement reflect the Canadian standard in expropriation powers and obligations.
Honourable senators, when you refer to the binder of materials before you, in the second tab, you will find that the compensation rules for First Nation expropriations in Bill C-49 are the same as those for the federal government in the Expropriation Act. Bill C-49 incorporates the federal Expropriation Act compensation rules by reference. The expropriation provisions of Bill C-49 extend only to collective First Nation purposes, analogous, at a First Nation community level, to the corresponding public purposes and public works in the federal Expropriation Act. The terms "First Nation," "community," and "band" are interchangeable in Bill C-49. First Nation expropriation under Bill C-49 is subject to the same tests, and in some cases stricter tests, when compared with expropriation by other levels of government in Canada; yet all of the same legal remedies and appeals are available.
I will not waste your time with other arguments we have heard, largely to the effect that First Nations cannot be trusted with expropriation powers or that some of our First Nations intend to abuse them. Such comments do not deserve attention.
Recently, we went outside for an independent opinion on expropriation issues. This is a very significant and major issue. We retained Mr. Ken Marchant, who is a recognized expert on constitutional expropriation law. Mr. Marchant provided us with written opinions relating to the issues of expropriation. His opinions on this topic are contained in the binder of information before you. Mr. Marchant and I will be available to assist you with any questions you may have about expropriation. We have attempted to answer specific questions raised by you in the past to the best of our ability.
With respect to the division of interest in land upon marital breakdown, the framework agreement and Bill C-49 represent the first initiative, and the only federal legislation to date, to address the issue of division of interest in land upon marital breakdown. This initiative ought to be encouraged, not stifled or subjected to unfounded criticism.
The Indian Act is silent about matrimonial property on reserve. Provincial laws do not apply to possession of lands on reserve, as they exist now. The separated or divorced spouse can only gain an award for compensation in respect of his or her interest in reserve land.
Critics of this initiative insist that the First Nations be compelled to adopt provincial matrimonial property laws either on an interim or permanent basis. This adoption of laws cannot be done for at least three reasons. First, provincial laws do not take into account the special tenure of reserve lands. They are Crown lands. Second, special provision must be made to deal with the situation of spouses who are not members of the First Nation and cannot normally hold lands in a reserve. Third, the provincial matrimonial property laws do not consistently deal with the partition of lands in the names of both spouses.
Honourable senators, this issue is very broad. It has been addressed numerous times and many meetings have taken place. We are dealing with children and spouses of both genders. This is a situation First Nations intend to address.
The framework agreement and Bill C-49 recognize the right of First Nations to develop solutions appropriate to their communities. This power is not unlimited, nor is it undemocratic.
The Charter clearly applies. Section 28 of the Charter states that:
Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
First Nations will not have the option, nor do they have any intention, of discriminating between men and women who may become involved in matrimonial property disputes.
Women will be under no disadvantage in the enactment of matrimonial property laws by First Nations. Women have the right to be consulted and to vote on the land codes of their First Nations. Honourable senators, this right applies regardless of residence, whether on or off reserve. In many cases, women form the majority of First Nation votes.
First Nation matrimonial property laws will always be subject to court challenge and judicial review if, on their face or in their application, they are alleged to violate Charter principles. The approach taken in the framework agreement is entirely consistent with the recommendations of the Royal Commission on Aboriginal Peoples.
Chief Margaret Penasse-Mayer and Councillor Ava Bear, together with Chief Austin Bear and one of our legal counsel, Bill Henderson, will be available to assist you with any questions you may have about matrimonial property division or the specifics of matrimonial law. We also have others who could add to those comments, should the need arise.
I will speak about municipal consultation. Over the past few months, there have been allegations that this legislation should require consultation with municipalities as some have claimed that the municipal legislation in B.C. and in other provinces requires municipalities to consult with First Nations about proposed developments. We recognize the need to have a reciprocal consultation agreement with local government. We believe that these are best left to negotiations between the First Nation and local governments and not form part of either provincial or federal legislation.
There are hundreds, perhaps thousands, of local service agreements that exist in each of the provinces -- many of which exist with our First Nations present today. It is not something new. It is addressed on a daily basis.
We have looked at the B.C. legislation and the situation in other provinces. There is nothing in the B.C. municipal legislation that requires municipalities to consult with First Nations on proposed developments. Our review of the situation in other provinces has not identified any legislative requirement for municipalities to consult with First Nations. We have done extensive research in this area.
Should you have any questions about consultation with municipalities or the B.C. process, in particular, Chief Bill Williams and Councillor Harold Calla from the Squamish First Nation in British Columbia will be pleased to assist you in the specific details.
I have a few very brief comments on the environmental issue and how we intend to address this issue with other governmental regimes. The B.C. Environment Act and other provincial legislation requires the proponent to provide advance notice to various parties, including First Nations, early in the planning stages, and later when the project is accepted for review.
Bill C-49 will show the intention of our communities to enter into arrangements to harmonize environmental assessment processes and co-ordinate other matters with other jurisdictions who are willing to enter into reciprocal agreements. To that end, we refer you to various sections in the framework agreement -- 25.7, 26.1, and 26.2.
The framework agreement also shows the intention to join with provinces and other jurisdictions through further agreements to ensure the health and well-being, not only of our own communities, but those of our neighbours. We are very proud of the new ground we have broken and what we have achieved on environment.
You have a binder of information that we took the liberty of preparing. If I can take you briefly through the materials in that binder, you will see that we have attempted to address the specific and technical questions that you have raised previously, during the second reading and during the department presentation to the Senate committee.
I refer you to tab 2, which includes materials on expropriation and opinions provided by Mr. Marchant. The items here specifically address issues that honourable senators have previously raised.
Tab 3 deals with the issue of matrimonial property. In that section, we have provided historical background on the issue, the application of the Charter to equality and other issues related to matrimonial disputes and property division. We also give reasons why our initiative is, and should be, the first to address matrimonial property on our reserves according to laws enacted in our communities.
Tab 4 deals with municipal consultation and includes notes on the myths that municipalities must consult with First Nations, as well as various letters on the topics and correspondence with the Union of B.C. Municipalities on a proposed reciprocal arrangement on which we have agreement. The chairman of the aboriginal affairs committee for the Union of B.C. municipalities was present in the audience last week during the department's presentation and was prepared at that time to go on record confirming this agreement.
Tab 5 gives a summary of the factual background on the Musqueam tenants issue. We have included this to avoid any misconceptions and false assumptions that might now exist. Should any questions arise on this topic, I will try to answer them, along with the chiefs present. Chief Bill Williams and Counsellor Harold Calla have volunteered to add comments specific on that issue.
Tabs 6 through 10 are transcripts of senators' comments to date on Bill C-49 and the framework agreement. We have included them in the event there is need to refer to your comments for clarity.
In conclusion of my initial presentation to you, I would note that this is an all-too-brief introduction to our land management initiative. This initiative is essential for our communities to exercise their rightful authority over their own lands and resources and to do business according to the business cycle of the real world. We respectfully submit to this committee that you should report Bill C-49, which will ratify and implement our Framework Agreement on First Nation Land Management back to the full Senate without amendment.
Thank you, Mr. Chairman and honourable senators. We, including all of our members present, are prepared to move directly into the questions and provide answers to you.
The Chairman: Thank you for the presentation. We are open for questions.
Senator Ghitter: At the outset, I must congratulate the witnesses on the basis of the information they have provided. It is very detailed and clear. I commend you all for working so hard over the past 10 years on this legislation. This is important legislation. I know it has been a tremendous effort for all of you to come here.
As to any comment I might make, please do not construe it as being one that is suggested in your material today of involving any sense of lack of trust, or anything such as that. We are speaking in terms of how you end up with the fairest legislation for all parties concerned. My questions have nothing to do with any lack of trust of the chiefs, participants to the agreement, or those who may, in the future, determine that they wish to enter into the land management regime as contained before us.
My comments are to be construed as being in full support of what you are endeavouring to accomplish by this legislation. I would ask that my remarks be construed on the basis of wanting to put forward the best possible and most credible legislation for all involved, legislation that will engender the greatest respect and understanding in the overall population, not just within your population across Canada. I preface my remarks in that light.
I have concern about the expropriation provisions. I have made my remarks in the Senate. You have attached them in your material. You have referred to them somewhat in that regard. I have read Mr. Marchant's learned brief with respect to this material before us.
I must say that I am still not persuaded. I would like your help. Perhaps I misunderstand in some respect. However, by way of preface, I am still of the view that those who may find themselves in a position of having their land expropriated are still not adequately protected by this legislation. Let me ask some simple questions to Mr. Marchant; perhaps he can explain the situation.
Assume that I am a leaseholder on a reserve and that the decision makers come to the conclusion that they need that land for some "community purpose" -- a community purpose that is broadly interpreted. It includes things like health care facilities. It has a very broad interpretation in the Muskoday agreement. As I understand it, I am then served with a notice that says that you need my land and in 30 days you may have my land. I then ask myself: "When am I paid for this? What if I disagree as to the value of the land? Where do I go? What is the timing? How can I be assured that I will be treated appropriately?"
Considering that all those matters are contained in the federal Expropriation Act, in the proposed legislation only 25 lines deal with expropriation.
I do not take any comfort from the proposed legislation that it will protect me as a leaseholder, as far as when I will be paid, what I can do to receive proper compensation expeditiously and to avoid launching an appeal. My only right of appeal might be to the very people who expropriate me.
That is my reading of it. I would like clarification to put my mind at ease that leasehold interests in the future will not find themselves in that position.
Mr. Ken Marchant, Interim Lands Advisory Board: Mr. Chairman, before I attempt to answer the question, I should like to determine whether I have a similar understanding of how the federal Expropriation Act would work in this connection. I am particularly interested in what the timing of a compensation payment would be under the federal act. What is your understanding?
Senator Ghitter: I am familiar with it, having worked with it as a lawyer. I have read the Expropriation Act and have a copy of it here. I have worked on it in a practical way.
Mr. Marchant: My understanding is that typically it takes a minimum of some months, unless there is consent. An initial notice is issued and then there is a 30-day period under the federal act during which one can object to it, which can cause a hearing to occur on the expropriation. There can then be appeals and things of that nature.
If the minister will proceed with the expropriation under the federal act, he or she issues a notice of confirmation and the act requires that, within 90 days of that, they must make an offer of compensation, which may then be disputed.
The point I would make is that, under the federal act, compensation is not by any means instantaneous, especially if it is disputed. The land can be taken over by the Crown under the act, even when it is not required urgently. Title can become vested and compensation is left for negotiation or possibly adjudication in the future.
Senator Ghitter: My understanding is that, upon expropriation, I am then served with a document of appraisal. As the landowner being expropriated, I can receive the money to the extent of the valuation presented. If there is a dispute, and I feel my land is worth more, then I can go through a dispute process. It is the same in Alberta where I have been involved in many actions of a similar nature.
Mr. Marchant: I will back up and answer the question this way. You may wish me to elaborate further.
Bill C-49, the proposed First Nations Land Management Act, does set out some of the rules in quite specific terms, either in Bill C-49, particularly in clause 28, or through the mechanism of incorporation by reference of the rules of the federal act as they relate to compensation. Those are imported into Bill C-49 by virtue of proposed subsection 28(5) of Bill C-49.
Part of the detail is spelled out in Bill C-49. However, as you know, one of the purposes is that First Nations will administer their own lands. That is the purpose of the bill. One of the powers they will have is to enact the detailed procedures under which expropriations will occur. That reflects a policy judgment that the complexities that are in the federal act may not necessarily work at any particular First Nation level.
Those detailed rules do remain to be determined by First Nation laws that will be adopted. That will set out the detailed procedure. I cannot answer what those details will be in some respects until they are presented. However, having looked at it with some care, I have a high degree of confidence in saying that the same protections and the rights to challenge that are available for the leaseholder or any other interest holder expropriated under the federal Expropriation Act are covered in Bill C-49.
I would refer to the following four main tools, and I am able to elaborate further. First, whether the ability to challenge the public or community purpose is genuinely for the welfare of the relevant community as opposed to a specific interest. As honourable senators are aware, the courts have interpreted that with some strictness.
Second, the federal act and Bill C-49 both say that it must be not only for that public or community purpose, but also must be necessary for that purpose. That is a stricter test. The courts have been very strict on that subject.
In passing, I would note that the act pertaining to Sechelt self-government does not have the word "necessary" in it. It is nowhere as strict. They require that expropriation must be for a community purpose.
Third, there is a requirement for fair compensation. That is clearly set out and the federal act rules apply.
Finally, there is a requirement that the rules of fundamental and natural justice be applied, including reasonable notice requirements and the right to a fair hearing before an impartial tribunal. These fundamental rules would apply on all matters on which there could be a difference, ranging from whether it is a proper expropriation to whether the compensation is adequate.
If one wants extra protection, I would refer senators to the provisions of the 1960 Canadian Bill of Rights. It has many things in common with the Charter of Rights, but it includes one thing that the Charter does not, namely, protection for property rights. In particular, there is a requirement -- and this is still the law at the federal level -- that there must be respect for the enjoyment of property rights and that they can only be taken with the due process of law.
Senator Ghitter: Let me challenge you, if I may, on your comments. Perhaps we could go through clause 28 of the bill for a moment, which states:
(1) A first nation may, in accordance with the general rules and procedures contained in its land code, expropriate any interest in its first nation land that, in the opinion of its council, is necessary for community works or other first nation purposes.
When I look at the Muskoday agreement and I see what they interpret to be "community works," I frankly have never seen health care facilities, retirement homes and daycare facilities regarded as community works.
When you talk in terms of "public purpose" with respect to expropriation, it has always been my understanding that it refers to roads, sewers, and matters of that nature. I have not seen "public purpose" referred to in relation to daycare facilities, health care facilities, retirement homes, let alone whatever else may be needed, such as more housing. That may be a community purpose, but I do not know that it is a purpose that warrants expropriation. Maybe you want to take my land and put a casino on it. Is that is a public purpose?
I have many problems with the definition of "community purpose" as seen in the Muskoday agreement. I think it is very broad, and I would feel more comfortable if it were limited.
Mr. Marchant: The language in clause 28(1) is basically a First Nation version of what is the federal Expropriation Act. The federal Expropriation Act in section 4(1) states that any interest can be expropriated that "in the opinion of the Minister," instead of the opinion of chief and council, "is required," instead of is necessary, "for a public work or other public purpose," instead of community works or other First Nation purposes.
The language is very similar. The difference is that the public, in the case of the Government of Canada, refers to all citizens of Canada. In the indication of a First Nation, it is a body of Indians who comprise that First Nation, whose membership is clearly defined.
Senator Ghitter: In the Province of Alberta, where there exists the power to force an inquiry as to whether a public work or a public purpose is a precondition to going through the process, if you went before the board of inquiry as appointed by the government and said, "I want to expropriate that land for a public work or public purpose to put in a health care facility," you would not get it. "Community purpose," in my mind, is much broader than what I see here.
Mr. Marchant: The test for community purpose is whether it is for the general welfare of the community. I suggest to you that hospitals and schools are for the general welfare of the community. Some hospitals actually have expropriation powers.
I disagree with you, senator, on a particular point. The Supreme Court of Canada has made it clear that the policy decision to expropriate is a policy decision and not a precondition that can be challenged. The case is an Alberta case, Calgary Power Ltd. and Halmrast v. Copithorne.
Senator Ghitter: That is an old case, but I remember it.
Mr. Marchant: It was applied quite recently.
Chief Bill Williams, Squamish First Nation: One of the things you must realize is that First Nations derive their power directly from the Constitution. We do not derive our power from other sources, as do the municipalities and other organizations. Our range of authority goes from one spectrum to the other, one part of which deals with the health of our people.
In the Constitution, the federal government, through transfer agreements and agreements to the different provinces, has given that authority to each province. The province then has the authority to grab lands for provincial use. They are grabbing lands for hospitals and other necessary health issues. We, as a First Nation, have that authority through the Indian Act. We see the health issue as a common need for our community.
Looking after our children in daycare centres is a community issue that serves our community when our children grow up. We do not limit ourselves because of provincial or municipal jurisdiction. We have to look at the whole spectrum of the community.
Senator Ghitter: On the reserve, if you needed some land for what you regard to be a community purpose, and you then went to the federal government asking the government to expropriate the land for you, I assume the federal government would be bound by the federal Expropriation Act.
Mr. Marchant: No, that is not correct, not on a reserve. I will read you the provision.
Section 18(2) of the Indian Act has an interesting feature to which I wish draw your attention. It states:
The Minister may authorize the use of lands in a reserve for the purpose of Indian schools, the administration of Indian affairs, Indian burial grounds, Indian health projects or, with the consent of the council of the band, for any other purpose for the general welfare of the band, and may take any lands in a reserve required for those purposes, but where an individual Indian...was entitled to the possession of those lands, compensation for that use shall be paid...in such amount as may be agreed between the Indian and the Minister, or, failing agreement, as may be determined in such manner as the Minister may direct.
First, the courts have said that the test for public purpose is general welfare, and that will always be the test if it is challenged. It is not some list of purposes because there is no such list. It is a criterion the courts will apply.
Second, I think it is a quirk of the statute, but it does contemplate that Indian interests will be compensated. However, it does not speak to the compensation for any non-Indian interest.
In Bill C-49, both are treated equally.
I think Indian and non-Indian interests can challenge the public or community purpose, just as they can under the federal Expropriation Act. They can challenge whether something was necessary for that purpose, as they can under the federal act. They can challenge whether the principles of fundamental justice were applied in all respects in dealing with any dispute, and they will be paid fair compensation according to exactly the same rules.
I suggest, senator, that this is a very strong package.I think that is the position of chiefs appearing before you.
Senator Ghitter: Where the Crown has entered into a lease agreement with a non-reserve member and the Crown wants to abrogate that lease and expropriate the land, are you suggesting that they can take it and not go through the expropriation procedure? Do you interpret the section you just read in that way?
Mr. Marchant: The section from the Indian Act?
Senator Ghitter: Yes.
Mr. Marchant: No. That is the current expropriation provision for on-reserve interests.
Senator Ghitter: In the context of my original question, you said that the Expropriation Act does not apply. Are you suggesting that, if it is a leasehold interest entered into by the Crown -- which is the case in Musqueam and other places -- and if the Crown wanted to rescind that lease and take that land back, the federal Expropriation Act does not apply? Is that your position?
Mr. Marchant: I want to be clear concerning what we are speaking about. If we are speaking about a lease or a lease-like arrangement on reserve land, then, yes, the Indian Act applies. If it is a lease from the Crown that is not on reserve land, then the Indian Act would not apply and then, yes, the federal Expropriation Act would apply.
I do not know the specifics of the lease. I would want you to produce the lease for me so that I could take a look at it to give you a clear opinion. The distinction is that if it is on reserve then the Indian Act clearly applies. However, if it is a Crown lease that does not involve reserve land, then the federal Expropriation Act would apply.
The rules and the protections would be the same, as would the tools for challenge, under both Bill C-49 and the federal Expropriation Act.
Mr. Louie: I wish to add to what Mr. Marchant and Chief Williams have already indicated. I wish to ensure that all honourable senators understand the issue.
First, we are talking here about reserve lands. They are under federal jurisdiction. We are not talking about fee simple lands. Fee simple lands is a different concept from what First Nations have here. That is a fundamental and important fact. I want to draw your attention to that.
Second, regardless of what it is sought as an expropriated interest in land, expropriation is a last-resort power. First Nations are not stupid. They will be very careful. We have discussed this intimately and frankly. The reality is that First Nations will be carefully scrutinized under a microscope. Bearing that in mind, no First Nation intends to breach its duties to its members, to third-party interest holders or to anyone in this country because the general public in Canada will focus on that. One mistake will affect us all. We are not about to make that one mistake.
We have done our homework in this regard, and we want to ensure that that understanding is clear to you, Senator Ghitter, and to all senators. We are not talking about cutting our nose off to spite our face. We are talking about good government. The intent of the First Nations that are present is good government. It will be looked at cautiously because it is the intention of all First Nations who deal with that issue.
My other point is somewhat significant. Expropriation is an issue that bears to mind not only third parties -- that is, lessees in Musqueam or wherever those lessees might be situated -- but also band members. Band members must vote to pass their land code. That will be a significant area of improvement. When that band member votes, that member will have to be very careful about the area of expropriation involved.
This power is a power that is given to government. We are governments and this is a government-to-government agreement. We are talking about an exercise of jurisdiction of authority by our peoples. We do not want to see that authority being diminished or put in a lesser way than any other government in this country. I assure you that this is the viewpoint that we all hold very firmly.
Senator Wilson: I did not speak to Bill C-49 on second reading, because other senators raised the issues that I was concerned about. However, I am not a lawyer. How is fair compensation determined?
Mr. Marchant: It means fair market value determined by an independent appraiser, based on the highest use that land could command together with compensation for disturbance such as moving expenses -- that is, if you were required to move out of your residence. There are also special rules where there are special situations; for example, a special-purpose building that had been built for the purpose of a hospital or a specialized factory. The federal rules recognize that additional compensation would be paid for that type of situation.
Finally, adjustments are made, for example, if you are only taking part of a parcel of land or taking this half and leaving the rest. I hope I am being responsive to the question.
Senator Wilson: In terms of fair market value for these homes, no one will buy them now. What is the fair market value for them?
Mr. Marchant: I am not sure what you are saying when you say that no one will buy them.
Senator Wilson: I have received correspondence from some non-native leaseholders who say that they cannot sell their homes now because of the current situation. Therefore, their homes have no market value.
Senator Johnson: Are you referring to Musqueam?
Senator Wilson: Yes.
Mr. Marchant: I am not an appraiser, and it is difficult to comment on any specific market. However, there are active markets of all sorts in all regions of Canada, including markets for leased and rental premises. Appraisers are able to put a reasonable value on most.
Senator Wilson: This is specifically the Musqueam situation. They felt that, if they could, they would sell their homes and leave, but they cannot do so because no one will buy them.
Mr. Marchant: The Musqueam situation does not concern this bill. That is my understanding.
Mr. Williams: In the case of Musqueam, the court has already decided the market value of the land. The market value of the land is 6,000 per cent to 7,000 per cent above what they were originally paying for the first 30 years. That is the problem. The court decided what the market rate is and the leaseholders are wondering why they must pay rent at today's market price. That is their problem. They do not want to pay today's market rate.
Senator Wilson: Was there any indication to any of these non-native leaseholders that this situation would arise 10 years after they got into the lease?
Mr. Williams: The situation was identified 30 years before the renewal period actually occurred. It was written in the contract when they originally started paying $375 a year for three-quarters of an acre.
Senator Wilson: Does either Bill C-49 or the framework agreement provide for First Nations to undertake a regular review of the expropriation provision? Do you think this is an appropriate idea?
Mr. Marchant: There is a requirement in the framework agreement that there be a review within the first four years, and it is to be completed within a further year. In addition to that, under the framework agreement, the land advisory board -- the executive of which is the chiefs who are appearing before you this evening -- is a technical adviser to the First Nations under this bill and it is charged with monitoring all implementation under the bill.
Mr. Louie: In reality, the review will happen much quicker than the four-year time frame. The four-year time frame is minimal. It is a guaranteed review by that time frame. The reality is that the review is beginning to gear up in anticipation that this legislation will be passed.
Should this be passed at third reading -- as we are hopeful it will -- we are looking at probably six months for an intensive review. I suggest six months because there are several other First Nations who are out there in various parts of the provinces and who are saying, "We are watching closely. We have letters and bank accounts and resolutions of support. We want to be part of this process. Can you allow us into this process?" We have worked with those First Nation communities. They have approached us and they have dealt with Department of Indian Affairs and Northern Development. It is our intention to ensure that there is a complete review at an early time frame. That is our intention and that is how we are looking at that situation. However, we know that we will be under a microscope during this time frame.
Senator Wilson: It has always been my experience that aboriginal culture is very hospitable. I have never felt under attack. I was somewhat comforted by your words that you are well aware that people will be watching.
What attempts have been made by either the First Nations or the non-native leaseholders to talk, or is the situation an adversarial one?
Mr. Louie: Mr. Henderson wishes to respond to that. Then, perhaps, I could add to his comments.
Mr. Bill Henderson, Legal Counsel, Muskoday First Nation, Interim Lands Advisory Board: There is a difference, depending on whether you are speaking generally or specifically. If generally, most of the First Nations have had consultations with third-party tenants, where there are third-party tenants on their reserves. If you are talking specifically about the Musqueam situation, it is an adversarial situation.
As Chief Williams pointed out, a lease was signed in 1965 and was up for a 30-year review in 1995. The principal area of contention was the meaning of the words "current land value" in the lease. The tenants took the position, as they still do, that the land value in Musqueam Park was half that of the land value across Southwest Marine Drive in Vancouver. The First Nation does not accept that. They say their land is worth as much as anyone else's.
"Current land value" is a legal term that has been construed by the courts. One judge at the trial level agreed with the tenants; however, three judges of the Federal Court of Appeal unanimously agreed with the First Nation. The tenants, as they have every right to do, have applied for leave to appeal to the Supreme Court of Canada.
Yes, there is an adversarial position. Is there a discount in land value because it is reserve land? The First Nations say absolutely not. The issue has gone to court.
One year after that review process and the dispute, the Musqueam First Nation along with the other First Nations here signed a framework agreement on land management that says that they will respect the third-party interests in their reserves according to the documents that created it, in these cases, the leases. Both the tenants and the First Nation have done nothing other than focus on the actual lease document and asked the courts to construe the words.
Senator Gill: I am very happy to see what is taking place. For a long time, people have been thinking that aboriginals are dependant or managed by someone else. Now, a group of people like you is standing up and deciding to take over and manage yourselves. In was chief for 10 years on my reserve; I have suffered somebody else's' management.
I worked for Indian Affairs in Quebec. I was responsible for managing land on behalf of Indian Affairs for the people in the North. At that time, I felt strongly that those things should be decided by the people themselves. I felt insecure to take this decision from Quebec City for the people.
I am very happy and comfortable about your move. I am sure this land will be well managed, because the responsibility and benefits will be enjoyed and suffered by the Indian people. There is no question about that; I think we can have confidence that it will be done well.
In the case of a divorce, do you have an amendment to ensure that those people are comfortable? I was chief of my reserve when Bill C-31 was being debated. We must ensure that women are treated equally and fairly. I do not know what can be done, but something must be done.
Mr. Louie: I would like to offer some comments in response to your concerns. Following that, we can turn to Chief Margaret Penasse-Mayer from the Nipissing First Nation.
You understand land management, and we appreciate that. We certainly are comfortable with what you said. Your English is very good.
Mr. Louie: We have made amendments, as well as having dealt with this issue extensively last year. To clarify the issue of women and matrimony, we made amendments to section 5.4 of our framework agreement. We had those amendments approved and they are now part of Bill C-49. As you can see, that work has been done.
Furthermore, we have also taken the liberty of preparing options to the spousal separation. The issue is taken very seriously by all the chiefs in all the communities. I assure you that the matrimonial issue has been addressed in a very responsible manner.
The Charter is there. The Charter is part of this legislation. The whole intent and purpose is to deal with our aboriginal peoples, regardless of gender.
There is a much broader issue than what has been stated by specific aboriginal women groups. The broader issue is that all of our members must be looked after. Our children are particularly important. That is the intent in this legislation and in the framework agreement. It is much broader than what you may have seen, in the courts or otherwise, with regard to the specifics of aboriginal women not being looked after. We have looked after our people, all of our people. All of our people are equally important.
Believe me, senator, this is something we take very seriously, and we have dealt with it.
I know Chief Margaret Penasse-Mayer would like to offer some comments as well, to elaborate further on the subject.
Chief Margaret Penasse-Mayer, Nipissing First Nation, Interim Lands Advisory Board: I want to speak more about this area of matrimonial law, which does not exist in the Indian Act. There is nothing forthcoming from anywhere to resolve this issue. We decided to pursue this issue, and the timing was just right to do all the work, including the lands. In our community, at Nipissing First Nation, near North Bay, our elders spoke to us about this issue for some time. However, in those days, the band did not have the resources to do a full-fledged documentation and consultation with the community. It takes time and money to do those things. When we decided to do the land legislation, we recognized that we wanted to incorporate this issue in it. We are very happy to do that.We realize the seriousness of it because it entails not only the women. In our community, you are either a band member or not. There are non-band members who reside in our community who are married either to First Nation members or reside with other people within our community. Indeed, we must deal with those issues. We realize that and take the situation very seriously. I wanted to let you know that.
Mr. Louie: Honourable senators, I would refer you again to tab 3. This is a significant part of our presentation. It is supplemental to what we are saying here tonight. We would ask that you carefully review all of the correspondence in that tab along with all of information in that binder. We have addressed the issue. We have tried to be as careful as possible in the explanations to the question you raised, senator, concerning the whole issue of matrimonial property and the division of property upon marital breakdown.
Senator Chalifoux: You say that band members are consulted. Are the non-band members who are married to band members consulted?
Ms Penasse-Mayer: Our intention is to consult the community. Every community across Canada has values. It is mostly women who run our community. They have been dominant in our community. They have made the community what it is today. Consultation will take place on all of those issues. Only when that has been done will that issue be decided.
Senator Chalifoux: Mr. Louie and I have had some discussion on this issue. I am receiving a lot of letters from women who are married to band members regarding what happens to them if there is a marriage breakdown. What happens to them? What happens to the children of those marriages? My comments also apply to a man, a non-band member, who marries a woman who is a band member? Many letters inquire if we are addressing is being addressed in Bill C-49.
Ms Penasse-Mayer: Yes.
Mr. Louie: Chief Lorraine McRae from the Mnjukaning has joined us. Chief McRae would like to respond to the question.
Chief Lorraine McRae, Chippewas of Mnjikaning: Honourable senators, it is nice to be here with you today. This issue is probably one of the most important to our community. Our children come first and foremost in our community. Our land is critical, very important. Through our land, we connect to our ancestors and to future generations. I am a woman who lost her status through marriage, and that issue has been very important to our community at Mnjikaning. Our whole community watches out for the children, and decisions are made based on what is best for the children.
At home, we do have a situation that occurred a few months ago. A non-native woman is married to a native man and they have two children. The native man has agreed with the non-native spouse to remain there with the children. It has been agreed upon amongst themselves, the family and the whole community. The matter has come to the council, resolved on its own. Everyone is aware that this is how the situation will be. There have been other cases, as well. The whole community looks out for the children when these things happen. It is always in fairness.
Mr. Louie: Honourable senators, you have struck on a very important issue. Councillor Ava Bear would like to respond to your question, as would Chief Terry Pelletier.
Councillor Ava Bear, Muskoday First Nation: Good afternoon. It is true that children are our utmost priority. We have situations in our community where there has been marital breakdown. The house is always assigned to the parent who is going to keep the children. We have single fathers, and we have single mothers. It is always the children who come first with us. They are the most important. They are our future.
In regards to some of the letters that you may have been receiving, I understand that some of them are from the Native Women's Association of Canada and the native women's association in B.C. At our presentation in December to the House of Commons standing committee, the Muskoday First Nation presented a petition stating that those two groups of women do not represent us. We do not know who they are. We have never known who they are. They have never corresponded with us indicating that we could vote for them or participate in their elections. We are not a part of them. The women of our community were very upset when they found out that these women were coming forward and speaking against a land code agreement which they had supported and voted on. Muskoday is one of the communities where a higher number of women than men voted on it.
I cannot see why a group who has nothing to do whatsoever with our community would be opposing it. Our community knows very well how to look after our own people. We have been doing so and we will continue to do so. If those are the types of letters to which you are referring, then I think you would get a better response to the concerns from the women who live in the communities who are affected by this agreement. Thank you.
Chief Terrence Pelletier, Cowessess First Nation: Good evening, senators. I want to raise some issues regarding the rights of women.
Our agreement outlines a process where we have to communicate with our membership about the laws that will be in effect after we vote. We all have a fair amount of input, including women, on the issues raised here.
Our committee has been working since about 1993 on these rules. They are submitted to the membership for input, and then they are redrafted. Our proposal is not included in your kit because we have not voted on it yet.
We discuss important matters at our tables. Two of the members who were sitting at our table drafting our own land law both have spouses who are not residents of our reserve. We all have a fair amount of input when these matters are being considered. You should understand that we, as chiefs, have to provide housing, health care, and education for our people.
I remind you of two very unfortunate incidents in Saskatechewan. In the north, a chief was in the papers for kicking out a woman who was from that reserve. She had married into a different reserve and was no longer a member, so he kicked her out. In another incident in the south, closer to my reserve, a grandmother and her grandchildren burned to death in a house fire in a nearby community. It was a terrible house and not a good place for them to stay. The reserve was nearby. They asked the chief why he did not provide housing for that lady and he told them that it was because half of the people living in band houses were not band members. They were not members of that reserve.
On the one hand we take fire for making people leave, and on the other hand we take fire for letting them stay. We do not have houses coming out of our ears. They are hard to come by.
In terms of land, this legislation does not give us the power to do anything. However, it does recognize our ability and our right to determine our future. We are talking about women's rights and about the expropriation of land for schools and day care centres.
Senators, if you do not pass the bill, we will never resolve these issues at the community level. There would be no point in sitting down with our women and no point in discussing the power that the council has over land use. We would not have the money or a purpose for doing anything. If we were to do anything, it would have no teeth.
With this bill, we can go back to our people and discuss these matters. We can come to a reasonable agreement on how we want to manage ourselves.
This legislation challenges the minister's authority under federal legislation to manage First Nation land. Up until 1996, all of my land back home was in weeds. There was nothing there. The Prime Minister said he was returning a power to the First Nations that the federal government had held in trust.
We have spent a lot of time on this bill. It is not an overnight thing. It is not something we have done under the table, and we are not trying to pull the wool over anyone's eyes. We are doing this in full public view, and we are talking with you.
You should understand that land on the reserve does not create wealth. It does not hold wealth like it does off the reserve. Land is held by everyone.
I farmed a piece of land up until 1989. When I left it, it had been in my family for five generations. My dad died in 1966 and my mom ended up with nothing. I took over the farm and ended up with nothing. That land does not hold wealth. You cannot create wealth. You do not want to invest in it because in the end it is not yours anyway.
This bill will allow us now to go back home and plan our future. It will allow us to determine what it is we want for ourselves. It will help us to organize change, manage change, and facilitate change that will be beneficial for all our people, especially for our women and children.
When it comes time to exercise these powers that we would have as chiefs and councils, we will have to be good business people. We do not have a lot of money to invest in all of these projects. We have to go out and convince someone that we will be good partners, and that we will not misuse our powers. We need the confidence that this bill gives. We must be able to convince people to invest their money in our land, for whatever purpose.
Passage of Bill C-49 will allow us to go back to our people and come up with a plan to make our communities healthy and to heal the divisions within our communities. If we are healthy, other nations around us and other communities around us will be healthy as well.
Honourable senators, after 125 years of being a First Nation, we are at a very critical stage of our development. We settled the Treaty Land Entitlement Agreement two years ago, and we are managing 52,000 acres of extra land. This bill will allow us to manage that land and to use the money generated from it to the benefit of our people.
I was talking with the minister's representative this morning. He said, "You bought all this land, and it is turning to reserve land. You have to send it to Ottawa, and we will keep it there for you. You can ask us to let you use your own money."
As it is now, we are managing that land quite well. It makes extra money that we did not have before. If we are doing a good job now, why would we want to turn the money over to them? They are not managing it, we are. They have done a disastrous job managing our land in the last 125 years. We got nothing from it. Now that we are managing it on our own, we are finally making money, and we can invest in various things. We can put extras into our schools. We can build a day care facility or a seniors' lodge. We can develop our little economy.
With respect, senators, I thank you for providing me with this opportunity to make a presentation.
Mr. Williams: I would like to address the comments made with regard to the land issue and to ensuring that everyone in the community has the benefit of the land or use of the land.
I must again go back in history and identify that what we are working under today is the Indian Act. It was proclaimed in 1863, or thereabouts. From then until today, there have been half a dozen or so amendments dealing with various sections of the act. One of the sections deals with women.
Up to 1985, we all know how the Indian Act dealt with Indian women -- disastrously. Since then, things have changed a bit. However, in reality, the Indian Act states specifically that the land is to be registered to the head of the household -- in brackets, "male." That is in the act today. That is part of the problem we are faced with today.
In 1980, the Squamish adopted its own land registry policy. We are registering the land ourselves. When anyone is allocated a house, the chief and council ask whether there is a spouse -- married or common law. We identify both individuals to the registered owners of the lot and the house. If we are dealing with a single parent, then the house is registered to the single parent and the children. This is contrary to the Indian Act. The Indian Act does not look at our registry system in a positive way. Through community interest, we wish to have the land registered to everyone involved with the allocation of the house and the lot.
With respect to people who are on the housing list, we allocate by date of application or when the individuals come into our band office and sign the housing application list. We use that date as the date of their application.
Right now, we are allocating homes to people who came into our office in 1983. They are eligible for a house now.
Once they are eligible for a house, we allocate $80,000 to build them a house. They can pick the plans they want, the colours, and so on. They can pick any one of the residential lots we have in any of the 22 reserves that we have that have residential lots for community members, if they do not have a family lot or lot that has been willed to them. If they have the benefit of having a lot willed to them and they do not wish to live on that lot, then they can then transfer that lot back to the nation and pick another lot where they want to raise their family.
There is flexibility within our community. We have gone well beyond the Indian Act, with the best interest of our community in mind. Lot allocation and looking after best interests of all our community members is definitely a priority with the Squamish Indian government.
There is another section I will ask Mr. Calla to talk about.
Councillor Harold Calla, Squamish First Nation: When it comes to the Squamish, there are two points to understand. Part of the National Native Women's Association initiative was started by one of our members. I understand you will be receiving another one of our members next week. I appreciate Senator Andreychuk allowing us to speak to this because it is important.
It is important to understand that in Squamish now, you pay not $1 for your house. There is no equity by either party in a marriage in that home. The bands pays for it and maintains it. That is our interest in that home. It is what makes us a bit different for the moment. I do not know how long we will be able to do that but, at the moment, that is the difference.
We are interested and motivated by good sense. There is a social fabric that says "We care," to our community. We are as interested in making a dollar as you are, and we will work toward that end. However, as a result of the challenges we face in dealing with the statutes and policy, we had to develop some rules and regulations by which we govern ourselves. Those rules deal with many of the issues that you have raised.
Children are foremost. Whoever has the children in a marital break up -- whether they are married, living common law, Indian, non-Indian, or whatever -- maintains the house.
Senator Mahovlich: Who makes that rule?
Mr. Calla: The community.
Senator Mahovlich: If I am married and I want to take my children with me, I can take them. The community cannot stop me.
Mr. Calla: Yes. We are not asking you to do that. We are not saying that the children must remain there. We are saying that, if the children remain in our community, the spouse who keeps those children in that community is the spouse that has possession of the house.
Senator Ghitter: What if there is a dispute as to who gets the kids? Then what?
Mr. Calla: The courts must decide. Someone must give us direction.
Senator Ghitter: What happens in the interim?
Mr. Calla: The children remain in the house.
Mr. Henderson: With respect, child custody matters are dealt with under provincial law in Canada -- certainly in the common-law jurisdiction. That determination would be made by the provincial court under a provincial statute. The First Nation acknowledges that judgment, and agrees that the spouse who has custody of the children will occupy the house.
Senator Ghitter: Is the First Nation is acknowledging the jurisprudence of the province in which those children reside?
Mr. Calla: Not ultimately. There are several initiatives currently underway where child welfare is a delegated authority that will be handed down.
Senator Ghitter: Are you saying the same thing?
Mr. Henderson: I am certainly not saying anything different from what the chief and council are saying. Many of these disputes go to the provincial court and the First Nation acknowledges that.
"Jurisdiction" is a loaded term. The report of the Royal Commission on Aboriginal Peoples says that all aspects of family law should properly be within First Nation jurisdiction. Section 35 covers that provision. I am merely explaining the mechanics of child custody litigation. Sometimes it is by family agreement, and sometimes it is by an agreement between the two parties. The First Nation acknowledges that. "Acknowledge" is a more neutral word to use. It permits the first possession of the house according to the custody of the children. The children are kept in the community, regardless of which parent has custody. The focus is on the children, not the parent.
Mr. Calla: We have heard concern about, for example, a situation where one partner is a non-Indian or a common-law spouse. If, after a 30-year relationship one of the parties dies, what happens then? Is the other party left out on the street? We have dealt with those issues. In both cases, under our custom policy, the common-law or non-native spouse secures the right to reside in that home until he or she has lived his or her natural life. At that point in time, the property is transferred to another member in our community, usually within that family.
We want those kinds of things understood, namely, that we are not making people leave because they are a common-law spouse or non-native. If their spouse passes away, they are allowed to remain in that dwelling until their natural life ends. We then deal with the home. Those things are not always understood. I thought it important to make that point, and I appreciate the opportunity to make those comments.
Senator Ghitter: That is important information. I certainly had no understanding about that. I thank you very much for clarifying the matter.
Continuing with that issue, let us assume that a dispute arises as to who will reside in the house and let us say there are no children. Who makes the decision, then?
Mr. Calla: Ultimately, the court must decide. A non-member may have the right to have the use of the land, but they can never own the land.
Senator Ghitter: I understand, but I understood earlier remarks to suggest that, in a dispute under section 17 of the proposed legislation, you will "establish general rules and procedures in cases of breakdown of marriage...," and the section carries on from there.
I understood that you did not want the jurisdiction of the province in which the reserve is situated to have any involvement or supervision over the situation. In one instance you accept that jurisdiction, but in another you will not; is that so?
Senator Andreychuk: I will answer.
Senator Ghitter: All right. The judge will answer.
Senator Andreychuk: Are we mixing two things? We are talking about the existing situation. There is an overriding and outstanding situation of self-government. That is the substance of the royal commission report. Therefore, if the self-government negotiations go in another direction, this may all change, including Bill C-49. At the moment, those bands that will be under Bill C-49 are respecting provincial jurisdiction; is that correct?
Mr. Henderson: Are we talking about child custody or are we talking about the division of matrimonial property?
Senator Andreychuk: Take it topic by topic.
Mr. Henderson: Concerning child custody, the First Nation acknowledges an order made by a provincial court under provincial law.
Regarding matrimonial property on a reserve, provincial courts using provincial statutes have no constitutional power. It is ultra vires for them to make an order for the use of or the possession of the home. They can award compensation in respect of it in terms of "netting-out" family property, simply ascribing it a value and distributing dollars. However, they cannot make an order for the allocation of the home under provincial law. There is no provision in the Indian Act for such an allocation to be made in the event of a matrimonial dispute, if the parties do not agree. If they do agree, they can execute a transfer. However, if they do not agree, there is no provision in the Indian Act to allow that.
What is new, and where the First Nations are breaking ground, is that they will have the jurisdiction, which is not in the Indian Act and is not in provincial law, to make the rules about what will happen in their communities when a marriage breaks down. Whether it is the matrimonial home or a whole raft of properties on the reserve, there will be rules as to how it is to be distributed equitably.
Senator Ghitter: Thank you. That is very helpful.
Mr. Louie: Senators, at tab 3 we have enclosed a chart that deals with various rights on spousal separation. It deals with matrimonial home issues, division of land and family assets, compensation orders to spouses, sexual equality, spousal support, child support, and custody of the children of divorced parents. We have tried to summarize all those matters in a chart. We hope that will be of assistance to you with regard to how provincial statutes apply in relation to those various issues.
The answer to the question originally posed by Senator Chalifoux regarding non-native spouses or non-band member spouses is, yes, they are intended to be looked after as well as children, with children being paramount.
Senator Andreychuk: I have read much material over the last two years, but I want to be absolutely certain that I am current. I was told that in the framework agreement instruments such as the Charter of Rights and Freedoms were identified as applying, that existing third party rights would be honoured, and that land codes would be set out later.
We are now dealing with Bill C-49. I understood that the land codes would be negotiated and put in place, subject to Bill C-49. Am I now to understand that some of the land codes have already been put in place?
Mr. Henderson: Yes, senator, you are. When the framework agreement, which is the original and umbrella document for this, was being negotiated, the minister of the day wanted to be sure that some First Nations would take up this option before he would introduce what was then Bill C-75 into the House of Commons. Two First Nations did in fact enact land codes and enter into the individual agreements, which is the First Nation way of ratifying the framework agreement. Before Bill C-75 was passed, it died on the Order Paper, and we now have Bill C-49.
Bill C-49 ratifies the framework agreement from the federal government side and makes the necessary legislative changes when a land code comes into effect. For example, sections 20 to 30 of the Indian Act will no longer apply because those are the provisions whereby the minister manages land. A number of other provisions are specified in the statute. Bill C-49 in fact ratifies the agreement and makes the necessary legislative changes at the federal level to implement it once land codes go into effect.
Senator Andreychuk: My question remains. Have some land codes been negotiated and voted upon on the reserves, and are fait accompli, subject to this bill coming into force?
Mr. Henderson: First, land codes are not negotiated. They are developed by the First Nation; they are subject to review by an independent third party for compliance with the framework agreement; and then they are voted upon by all of the voters in the community, whether they live on or off reserve. There are three of those in place, but obviously they have no legal effect until the ratification is matched at the federal level, and that is the purpose of this bill, to ratify the framework agreement. In these three cases, it will bring those land codes into effect.
Senator Andreychuk: At one of our previous sessions with department officials my concern was that there was much talk about expropriation and much history of expropriation on non-reserve land. We were being told that section 28(1) was really intended to give expropriation powers to First Nations land, akin to that which would be given on non-First Nations land.
My concern was that we did not use words like "public works," and we have a whole jurisprudential body of law that we can follow there. Rather, words like "community works" or "other First Nation purposes" were being used. My concern is that that may not be the same thing, and we cannot simply infer that all of the case law on expropriation will be looked on favourably in any dispute over First Nations land. Consequently, we have asked the department to consider that. I hope they come back with an answer to that.
I want to be certain that there is still a point where we can consider that there is full and fair natural justice, due process, et cetera, in expropriation. One question relates to the purpose of the expropriation. We must deal with that. Another question is: How will it be done?
I thought there would be time for us to give our opinions on that, but if these land codes are already in place, we will simply have to determine whether they comply with what we believe to be fair.
Mr. Henderson: Mr. Marchant dealt earlier with a large part of that question, and I am sure that he will reprise that for you.
Senator Andreychuk: Unfortunately, due to commitments in other committees, I was unable to be here earlier. If this matter was covered before I came in, I will simply read the transcript. Please just cover the points that have not been dealt with.
Mr. Henderson: I will leave it to Mr. Marchant to decide whether he should add anything to what he said earlier, or reprise it for you.
In terms of the land codes that are already in place, yes, there may be a problem. If something the committee wants to put into the statute is in addition to the framework agreement and was unanticipated and not dealt with in the land codes that were already passed, then maybe something has to be done. There is that theoretical problem. However, it is largely theoretical.
A senator asked earlier whether expropriation will be reviewed in four years. In four years, there will be no expropriations to review. This is an essential power, not a power that will be much exercised, either immediately or probably over the long term. If that were to occur, I think it could be dealt with, but it is a theoretical problem because there are land codes that might not comply with what you think ought to go in there.
Senator Andreychuk: To me it is more than theoretical, because I think that if First Nations are going to manage this land appropriately, they must have some powers of expropriation and should be able to use them in certain circumstances.
Mr. Henderson: Yes. That is why it is there.
Senator Andreychuk: I do not think it is theoretical. I think it is very necessary, in the same way that I think we have it elsewhere in the public interest.
I want to be certain that we understand exactly when they can expropriate, what it means, and what the procedures are. That is the reason for my question.
Mr. Henderson: When I said "theoretical," I did not mean that it is not real, but that it is not urgent. It is not a practical problem and perhaps it can be fixed. In terms of what you can expropriate for, what protections are there, and whether it is fair, Mr. Marchant has provided you with materials and I am sure he would like to address that.
Mr. Louie: We have two legal counsel here chomping at the bit to answer your question directly, Senator Andreychuk. Patrick Orr also wants to ensure that there is clarity in that answer, if need be.
Mr. Marchant: I will be brief, Senator Andreychuk, and then I will expand on my answer if you so wish.
The public purpose jurisprudence, in my view, applies directly the proposed provisions in Bill C-49 and specifically to First Nation and community purposes. Why do I say that? The general law of expropriation is that it must be in the public interest. That is also a feature of the fundamental justice requirements that are part of the general law and further guaranteed in the Canadian Bill of Rights.
When one uses the term "municipal purposes" in relation to expropriation, the courts readily understand it to mean only that the municipal government is addressing the municipal public, as opposed to the wider public that a national government would be addressing. In the case of the First Nations, "community" and "band" mean the same thing. They all mean the general welfare of that community, that body of people and that body of interests that are called "First Nation" or "band." The public interest expropriation test would be for the general welfare of the relevant constituency, and not for a private group or private interest.
Senator Andreychuk: I agree with that. However, "community works" is not the part that troubled me. I was troubled by the term, "First Nation purposes." I think that is a new one. Future courts or future arbitration panels will obviously draw on the body of expropriation law. "First Nation purposes" may mean much more than the public at large, or the non-aboriginal public. Public community interests would include schools and other public structures. First Nations have a different history, and this is why I have asked the department to reflect on my comments. You may wish to refer to the comments I made previously and provide an answer in written form.
Mr. Marchant: I have read your comments. I do not think there is a big difference in the concept between what First Nations might do and what any other order of government might do. They are governments. They will act within their jurisdictions. For example, they might expropriate for a sacred burial ground, whereas a municipal government might expropriate for a war memorial. Those cultural differences are not the test. The test is the general welfare of the community.
I would disagree that any new feature is introduced by the term "First Nation." It simply defines the public for which the expropriation may be undertaken. It is purely to locate clearly for the courts the public membership.I suggest the courts will know very clearly what it is. Membership is clearly defined.
Mr. Patrick Orr, Barrister and Solicitor, Legislative Drafting Services: Senators, I was the legislative drafter who composed those words years ago. I know you often do not get a chance to talk to a drafter.
The intention and the opinion that we have secured from outside counsel is that we could not use the words "public purpose," even though that term is somewhat common. There are many other terms used in jurisdictions across Canada. Under tab 2, you will see a list of the various types of wording. They are very varied. The idea was we could not use the word "public" because it is for the First Nation, not for the general public. In that sense, it is more restrictive than "public." We attempted to find wording that would give a flavour of what was meant by "community works," and to make it clear that it must be for the purpose of the First Nation, which is the collectivity, the community, and the public as a political entity of the First Nation. There was no intent other than that it had to be for the benefit of the First Nation, and that can only be determined by the First Nation.
Senator Andreychuk: If all three of you who have responded feel there is no difference, that position is fine. If you can add more, I would ask that it be in writing, so that we can reflect upon it.
Over the years that I have dealt with these issues, I have come to respect that the community of interest in the First Nations is something different from the community of interest in the non-aboriginal sense. Perhaps there is need to expropriate for the purposes of the First Nations that we have not yet thought about. I hope that we clearly understand that their needs are being met, as well as having this reticence and fear about expropriation. It is two-sided, in my view, which is why I wanted to reflect on whether we have adequately addressed this issue.
Mr. Henderson: I would refer you to tab 2 of the materials. Mr. Marchant did provide an opinion specifically on the question of "First Nation purposes," as that term is used. It is dated April 19.
Are some First Nation purposes different from general public purposes? Conceivably so, but obviously the tests would have to be met. Someone may have to meet those tests in court if there is a challenge as to a purpose which appears creative or novel. Challenges are not unusual in this decade.
Senator Andreychuk: One other area concerns the problem with leaseholds in one particular reserve. It appears not to be a problem with Bill C-49; rather, it is a problem of leases and how they were managed when they were entered into.
I may be wrong, but it was never intended that, if Bill C-49 were to be proclaimed, someone would contemplate expropriating to get rid of the leaseholders.
Mr. Henderson: That is absolutely correct. There is no intention along those lines at all. I guess it is fashionable or seen to be necessary in some quarters to raise that argument, but the First Nations, and Chief Campbell if he were here, would say most emphatically that we never even thought of it. Had we been thinking of it, we would not have spent the last four years in court arguing that the land is worth more than twice as much as the tenants say it is.
Senator Andreychuk: This problem started when the renewal of leases came up.
Mr. Henderson: It arose during the rent review period after the first 30 years, which was in 1995. A completely different calculation was to be applied for the 20 years from 1995 to 2015. That is when the dispute arose. Of course, it was litigated.
Senator Andreychuk: Would you say it is akin to what happens with municipal tax levies, particularly in Saskatchewan, where all of a sudden the municipalities use a different methodology in calculating taxes? Some people find themselves with double the taxation in one year. Is that the kind of situation that happened in 1995?
Mr. Henderson: I would not equate it to taxation. Taxation is not an issue covered by Bill C-49. It is specifically excluded. I would equate it to national parks where people who were paying $20 for a residential lot in the Town of Banff found themselves paying a lot more after the 1960s. They did not like it. That has happened in the national parks. It has happened on various reserves. Some were part of this initiative, and some were not.
People were paying $20 to $50 for beachfront cottages. After the 1960s, they found themselves paying much more.
In this case, in 1994 people were occupying estate-sized lots in one of the nicest neighbourhoods in Vancouver and paying $395 a year for the use of that property, less than they would have paid for a parking spot anywhere else in the city. That is the fact of the matter. Hence, the calculation changed. That happened in 1995 before this agreement was even signed.
Senator Andreychuk: Mr. Chairman, will we be calling any evidence on the history of the leases?
Mr. Henderson: At tab 5, you have a summary of the history. The relevant provisions of the lease are here. The tenants will appear before you, but I do not know how they will relate a leasing dispute that is 30 years old.
Senator Andreychuk: Then you know more than I do.
Mr. Henderson: Yes. You have the relevant leasing provision that will show you what the dispute is about. It is still before the court.
Senator Andreychuk: To what extent has the federal government, which was managing these leases at about $300 until 1995, entered into mediation or negotiations to resolve this issue between the leaseholders and the new managers?
Mr. Henderson: The management of the leases, as such, was undertaken by the First Nation, under section 53 of the act, as of 1980. There did not seem to be many problems until the new rent review.
As to what the federal government has done to attempt to mediate the dispute that is still before the courts, that question was asked of the government last week. If they have more to report, perhaps you could ask them when they come back here. I cannot tell you, on behalf of these First Nations, what activity is going on in that quarter. I can certainly tell you what the chiefs have instructed me to do, but it has nothing to do with the framework agreement or this legislation.
Senator Johnson: I think there is a certain amount of confusion concerning the relationship, if any, between Bill C-49, particularly the expropriation provisions, and the situation that has arisen on the Musqueam reserve in British Columbia relating to rents now due under a long-term lease on reserve land. I think it would be helpful if you could comment on this and clarify what the link is, because we have received a letter from the Musqueam Indian Band themselves saying basically what I have said, namely, that lease issues involving the Musqueam have erroneously been connected to Bill C-49 and these are two distinct and different issues. I think that they have become connected -- certainly in the press and in what we have been hearing over the last little while.
Mr. Henderson: They have become connected in a public relations sense. They are so legally distinct that I do not think anyone could have any difficulty with that proposition.
Let me attempt to answer it in this way: You have a lease dispute. The lease is 30 years old, and that dispute is before the courts. There is legislation going through Parliament and you are losing or you have lost the last round before the courts. You do not like that result. You want access to a parliamentary committee. You want to make it a political problem because you do not like the economic result. That much, everyone knows. There has been quite a strident campaign to make it a political problem.
Again, the First Nation is quite right. It has absolutely nothing to do with this. If you want access to a parliamentary committee, what do you do? You look for some hook -- however realistic or unrealistic, tenuous or not tenuous -- to connect your economic problem to this initiative. You find the word "expropriation" and say, "Our problem is not that we have to pay more rent than we want to pay, our problem is that our properties are not marketable because somewhere down the line someone might expropriate them and actually have to pay us for them." That is the connection. It involves public relations.
Senator Ghitter: I have a different view. I do not read it that way. I do not think the issues are related at all.
I agree with you in the context that a level of distrust has emerged. You referred to it being an adversarial situation that has now arisen. Obviously, that happens when your taxes increase, your lease payments increase and you are before the courts to protest that. I think what these people are saying in all these letters that they are sending to us is that, in that particular case, a high level of distrust has arisen, resulting in what these people perceive to be now a diminution in the value of their properties because of the expropriation provisions which are now in place that were not in place before. If they were grandfathered, as they have recommended to us, they would probably have no trouble, and we would not be getting these letters. I am not suggesting that is the solution, however.
I think these people well recognize that there is no linkage, but I think that they are worried because of the lack of trust that now exists. I am not taking one side or the other on it, I am just saying that seems to be the situation now. They are worried about the expropriation provisions because of the ambiguity and lack of clarity that is obvious in the proposed legislation. That is how I read it.
Mr. Henderson: I guess we just have to agree to disagree. I appreciate your impartiality and your sensitivity to the people who brought this issue to your attention. I read your presentation in the Senate chamber. What struck me in particular, as well as the chief and council at Musqueam, was your reference to the fact "if bands continue to act inappropriately." I am not sure what the band has done that is inappropriate except try to enforce the terms of the lease for the benefit of their First Nation.
"Expropriation" is a false and illusory issue. As I said earlier, if the First Nation spent four years trying to establish the maximum possible value for that land, how can anyone seriously believe that there is some subversive intention to diminish the value of the land or to expropriate it for less than the value they have spent all those years establishing? It makes no sense.
There is no linkage; we certainly agree with that. If the tenants recognize there is no linkage, I would be very glad to hear that, and to communicate it back to the chief and council at Musqueam, because we need not deal with any longer in this committee or in relation to this bill. They are unrelated events.
Senator Ghitter: I agree, but I must also state that, when you are dealing with an extraordinary remedy like expropriation, the obligation is to be specific, concise and clear as to the processes that apply. I do not see that in this bill. I should like to delve into that in much more detail, but I know we are running out of time.
Mr. Calla: I do not want to pretend to speak for Musqueam, but as probably the single largest landholder of undeveloped land in Vancouver, the Squamish Nation, we do have some interest in this discussion.
The First Nations in and around Vancouver have had no control over the value of land in the greater Vancouver area over the last period of time. I could show you some similar leases of Squamish land where we were getting $8,000 a year for 24 acres of land which is virtually in downtown Vancouver now. The market value of land has changed and, because people chose to ignore the type of tenure they had on that land, the value rose, I suggest. Those agreements, those leases, were well known to everyone who chose to read them: From the lawyers who did the transactions, to the banks who financed them, to the real estate people who sold the property, to the people who bought it. Everyone hedged that the rent review would be something other than it has come to be. They bet wrong and they are not happy. I suggest that it is a dangerous position in which to put ourselves if we are to start covering the bad investment decisions of people. I do not think that is our role. I do not think it is your role.
The reality is that the value of property increased. There may be some price adjustment taking place now. That is a reality. In 1982, in Vancouver, what happened to prices? What happened to them in Toronto? Those are the realities of life. None of us can do anything about them. The people who acquired those interests did so with the benefit of being able to secure the full knowledge of what it was they were buying. They made those decisions consciously. The fact that property values in the Greater Vancouver area rose, was something that was not foreseen, perhaps, but it is the reality. The formula is there. It is reflective of a rate of return that we are currently using in our own rent reviews.
Senator Ghitter: I totally agree with everything you have said. I am not waving the flag of the leaseholders in the face of these comments. As Senator Mahovlich says, you pay your price and take your chance.
Let us leave the Musqueam situation aside for the moment. If this is general, appropriate, expropriation legislation, then it should set out rights and remedies. That is all I am saying. It has nothing to do with the Musqueam. I am just saying that good, responsibly drafted legislation would clearly set that out.
Mr. Chairman, perhaps now is not the appropriate time, but I would like a better understanding of Mr. Marchant's legal brief because I think it is very important. The issue for some of my colleagues and myself is just that limited point. It is not lacking support of the proposed legislation. One of the chiefs spoke most eloquently about his desire to have land management controls, and I totally agree with that. I fully support what Senator Gill said. All we are really talking about is a concern some of us have with one aspect of the bill. That is one area I should like to explore further. I simply do not want any misunderstanding between us.
Mr. Calla: Senator, someone said earlier that we have been gaining years of experience in managing land. The Squamish have been doing it for 40 years. We are already doing much of what this land code will do.
Given that wealth of experience, the value of the lands and the impact perception has on the attractiveness of one's land for people to invest in it, do you not believe that those powers would be exercised with extreme discretion because there is much more to lose than there is to gain? You will destroy the value of your land or your development potential. My guess is that most Indian reserves are developed to 15 per cent to 20 per cent of their total potential.
An exercise of this jurisdiction to expropriate inappropriately will drive people away from their reserves. We need that investment capital because we need our human resources looked after. We want jobs for our people and we want to educate our people. We want to use our land to do that. Anything we do that is not in keeping with what they could secure on the outside will destroy that.
I respectfully request that you consider that and come to understand that we will do the prudent thing. We will not abuse this power in the way that it has been abused for us and the Squamish. I would invite you to come to Squamish, sir, and see the amount of land that has been expropriated for regional infrastructure.
Senator Ghitter: Once you say that, all it does is stress the importance of having a fair and appropriate procedure for all to see.
I take it we will be back to address this issue at another time, Mr. Chairman.
The Chairman: There is no doubt that we may have to recall these witnesses.
Mr. Louie: Honourable senators, we certainly appreciate your questions. Senator Ghitter has opened the door.
Our package is intended to be supplemental. There is much information in it that we have not touched upon. We believe that many of the answers are contained within those documents.
Once you have had an opportunity to go through that documentation, we would be pleased to come back and answer specific questions in an effort to ensure that there is absolute clarity. We do not want anyone to confuse what has happened with the Musqueam and the present day Indian Act. We are talking about the future of land management, and we have an opportunity to make positive changes.
What happened with the Musqueam should be unrelated to Bill C-49 and the framework agreement. That took place under the Indian Act regime. It was not the doing of the Musqueam people or these chiefs. This is what precisely needs to change. We recognize the protection needed for third party interests. We have provisions in the land code which specifically cover that area as a fundamental principle, and we intend to exercise that principle in all humility and with all responsiveness to the third parties.
We also have the duty to protect our band members and to deal with all parties who deal with reserve lands. That is our responsibility and we accept that responsibility. I want to ensure that that is clearly understood.
To those people who want to challenge us and misconstrue what the Musqueam tenant situation is, or what the matrimonial issues are, I would say: Please understand that this bill gives us an opportunity to change things. That is what we intend to do. We have dealt with this issue fairly and openly. We have answered the questions that you have asked us point blank.
If you desire, we would be very pleased to come back and respond to your questions. We do not want to see confusion and misconception reign.
The Chairman: Thank you for your presentation.
The committee adjourned.