Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 27 - Evidence, April 27, 1999 (evening sitting)
OTTAWA, Tuesday, April 27, 1999
The Standing Senate Committee on Aboriginal Peoples met this day at 6:00 p.m. to consider Bill C-49, providing for the ratification and the bringing into effect of the Framework Agreement on First Nation Land Management.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, our first witnesses are representatives of the Ontario Association of Lessees on Native Lands.
Please proceed.
Ms Suzanne Leclair, Ontario Association of Lessees on Native Lands: Mr. Chairman, I am here today with my colleague, Hubert Mantha, Legal Counsel for the Ontario Association of Lessees on Native Lands.
Mr. Hubert Mantha, Legal Counsel, Ontario Association for Lessees on Native Lands: I have copies of a presentation, perhaps they could be circulated. I am a lawyer, and I practice in Toronto. I am counsel for the Ontario Association of Lessees on Native Lands. I am also counsel in a case before the Federal Court known as R. v. Morin, which has been referred to in many current decisions in the Federal Court of Appeal, notably the Musqueam one. The Ontario association believes there are two legal concerns, which are extremely serious. It is important to understand that the Ontario association concerns itself with long-term, residential, and permanent lessees. In other words, our association does not represent cottage owners or occasional users, although many of those are in fact members. Our thrust is the protection of people who lease native lands on a long-term basis. Some of those people have been born on reserves and who will undoubtedly die on reserves, some of them anyway.
There are two aspects and I do not want to go into a detailed analysis here. The presentation that has been filed will speak for itself. In broad terms, two aspects of Bill C-49 concern us. The first aspect is found in clauses 6 and 20 of the bill, which outline a considerable breadth of local government power that is being given to First Nations. We are of the view that this is good, that First Nation self-government is long overdue and is an important addition to our national fabric.
Close examination of Bill C-49 makes it quite clear that the breadth of the self-government that is being recommended parallels completely provincial legislation that deals with municipal governments -- from police villages to towns to cities to regional municipalities. In other words, the federal government is legislating in an area that is exclusively assigned to the province in the Constitution Act, section 92(8).
It was an important feature of Confederation over 100 years ago and over 200 years ago in the United States and in confederations generally, including Germany and Switzerland. The issue is that local government should be handled by the local subdivisions -- in our case, the provinces. The provinces are at the very heart of local government. Local government, as has been said in the past, is really where grassroots democracy begins, but it much more than that. Over more than one century, and in fact much longer than that, the concept of municipal government and local government has been highly honed, not only in England and in English-speaking countries, but in virtually every civilized country in the world. The idea that a municipality must meet the ends of the people who reside within its geographical boundary is central to the concept of local government.
The Nipissing First Nation is on a reserve situated in North Bay, along the north shore of Lake Nipissing. The people who are land lessees -- non-natives -- are approximately equal to, or perhaps a little greater than, the native population. This is not a transient or insignificant group. This is a group that will be affected very seriously by the concept of local government.
Bill C-49, in one fell swoop, invades and trespasses on the province's right to establish, monitor, and fine-tune legislation that deals with local government, particularly municipalities. We are very concerned about that.
The Municipal Act in Ontario, which has roots in hundreds of years of English legislation of that sort, has resulted in a framework, or an architecture if you will, that guarantees as much as possible, that people who live in municipalities have a meaningful say over the legislation. They have, through the use of not only sections contained within the Municipal Act itself, but through ratepayers' actions and all sorts of other fiduciary rights that stem from those sections, the right to control what a municipality does. A ratepayer can compel a municipality to obey its own bylaws. A resident of a municipality can elect people who will make the laws that fundamentally affect him.
We are more affected by municipal laws than by any other level of legislation. Municipal laws are very close to us. They are very pervasive and we all get into it. There is typically a higher, more broad-based voter turnout at municipal elections than there are at higher levels. Australia, for example, has in the past made voting at the federal level compulsory because people did not turn out. That was never the case municipally. Municipal elections are heated. They engage and involve the people who are there -- typically because the people who are there are neighbours, they deal with each other. Bill C-49 therefore has a serious flaw, in our view.
The second item that concerns us comes from the nature of the lessees' property interest. They are leaseholders. In the province of Ontario, and indeed in every other province and territory and in every state in the United States and in every country in the Western world, and indeed in China, landlord and tenant legislation is easily the most pervasive piece of legislation. Half the people in this country rent from the other half.
Landlord and tenant legislation has been worked and fine-tuned over literally hundreds of years. The landlord and tenant legislation that we have, for example, in Ontario, which became highly evolved in the sixties and seventies, has been copied freely by New York, Michigan and other states. It works. Landlords in the province of Ontario enter the marketplace for profit, and they do make a profit. Our rents are stable. We have controlled a very important part of the use of property, not only in this province but everywhere else.
It is our view that there is a misapprehension that the Landlord and Tenant Act, currently termed the Tenant's Protection Act in Ontario, has no application to Indian land because the federal government is paramount there. The fact of the matter is that the Landlord and Tenant Act is a law of general application in the province. It is difficult to imagine a law that has greater application. Everywhere you see here, you are looking at leases and ownership of land. Can a landlord do anything with his residential property? Absolutely not. What he does, when and how he does it, is very tightly controlled. It is part of the very fabric of this province -- of any province that has this legislation, and they all do.
The idea that this can be completely ignored misses a very deep point in Canadian society. Bill C-49 is quite mute on that. It gives the power to make laws but it ignores a body of highly sophisticated legislation that has been in existence for hundreds of years. It should not be ignored.
That, in essence, is the position that we take. The position paper that has been filed cites authorities and goes into it a little deeper. The long and short of it is that we urge your committee to recommend that simple amendments be made to Bill C-49 to recognize very important safeguards that have already been invented and worked out.
Ms Leclair: Currently, our association has a national charter, although as Mr. Mantha has indicated, as an association we represent Ontario lessees on native lands. As of last week, we represent a number of lessees in the province of B.C. Even as of today, there were additional subscriptions to our newly formed Canadian Association of Lessees on Native Lands.
That being said, our immediate mandate is to amend the current objectives that we have been espousing. The immediate objective is to include all people, including non-members, who have a commercial or residential interest on native lands. We are now aiming to create a national organization that will advocate for organizations or corporations involved in mining or forestry or which have interests on native lands. It is imperative that our organization regroup and consolidate its efforts with respect to this government in order to effectively voice our concerns regarding the displacement of interest. This is a serious issue.
As far as our organization is concerned, this issue will create a two-tiered government, which will have some serious repercussions in terms of the status of power or the status quo.
The purpose of this new association is to seek redress from both the federal and provincial governments participating in the promulgation of self-government legislation and treaties. We believe that the participating governments will be responsible for creating a two-tiered nation, as I indicated before, without any due consideration to non-members who will be adversely affected.
Those governments are accountable to non-members. As a result, our newly created association will soon be studying the possibility of initiating a class action suit against the participating governments on behalf of all non-member interests that have been displaced. These interests will include non-members and non-natives residing on native land, commercial operations, such as mining, forestry, gaming, and industrial companies that currently have an interest on native land.
We will also include interests that will be displaced as a result of successful land claims.
I am a lawyer. However, I am definitely not involved in aboriginal law. I am a simple real estate lawyer. That being said, I noticed recently that there are many ads in the Ontario reports for lawyers who specialize in aboriginal land claims. Therefore, we know there will be an increase in the number of claims in the near future. Of course, our Canadian association wishes to represent the interests of those who will be displaced.
The perspective of our newly created association is straightforward. We believe that any principles for the self-government of aboriginal people should emanate from sound policies and clear visions with respect to the impact on non-members.
In our view, this bill is shortsighted. It fails to address the international policies and dispute resolution mechanisms that should be instilled within the ambit of this law.
Nowhere in this bill -- not even in the preamble -- does it acknowledge that there are some non-member interests. It is certain that all non-member interests will eventually collide with the governing authorities, as they always do collide in the non-native/aboriginal context.
There is no mechanism to ensure predictable checks and balances, especially those which we have come to expect in a democratic society. The dispute mechanism that is provided for in Bill C-49 is, in my opinion, a perverse attempt to render lip-service to some kind of a possibility of settling disputes.
[Translation]
In my view, in the interest of good international relations, a tribunal must be set up to ensure that negotiations are predictable. The bill gives no assurances that the interests of non members will be respected. The bill creates a very dangerous precedent in the Canadian historical context and will give individual nations the right to govern the native and non-native people living within their boundaries.
[English]
Non-band members have absolutely no right to participate in the decision-making process concerning matters that will affect their interests. An unprecedented caste-like society is being created within the boundaries of native land.
As far as our organization is concerned, the solution is quite straightforward. We do not want to stand in the way of the future self-determination of aboriginal people. In our view, the only solution is to relocate and compensate all displaced interests, such as residential and commercial interests.
There is no other way around the question. If we are unable to achieve some kind of dispute-resolution mechanism, a method of democratic controls and reasonable ways of influencing the decision-making process, there is absolutely no way that non-native and non-members belong within the boundaries of native lands. We do not belong there. These are communities that want the right to govern themselves. We should not stand in their way. To create a two-tiered society is not the solution. It will invite serious political unrest. People will be desperate. They, unfortunately, will resort to desperate means. In our view, this is not something with which we want to be even remotely involved.
In closing, this government will have to indemnify and compensate all economic and residential interests held by non-members who have been and will be adversely affected by the passage of self-government laws.
Those are our submissions.
Senator Pearson: I am a little puzzled. You have all been operating under the provisions of the Indian Act. I presume your leases were created under those arrangements. Judging by what I have been reading, I thought that this would be easier for you to deal with than dealing with the Crown. I do not understand what you mean when you say that it is an invasion or that it is against the BNA Act, since aboriginal rights are preserved under section 35.
I am puzzled by your approach. I understand that people become nervous when there are new arrangements about things. It seems to me that you are unnecessarily concerned about arrangements that are not yet in place. It is in the interests of the band to continue to have good relations. I do not see why you are so agitated. For example, in the Framework Agreement, section 18(3) provides that "a land code will not address the taxation of real or personal property and that section 83 of the Indian Act which gives First Nations powers to tax interests on reserve land will continue to apply to participating First Nations." Given that provision, what are your concerns?
Ms Leclair: First, with respect to taxing bylaws, while we did have conflicting versions of the understanding of that particular application of law from DIAND, it is our understanding that DIAND is able to tax non-aboriginal interests located within reserve land. That has not yet happened within our communities, but you can imagine the scenario in the near future when the funding for various bands will be trickling down. You can imagine the temptation -- and, it is a real temptation -- for anyone who is running for power. If you have a choice to tax your non-voting constituents or your voting constituents, who is the easiest target? It will invariably be your non-native constituents because they do not have the right to vote you out of power if you have unfair taxing bylaws.
We are getting more agitated based on the "certain bands" and "certain non-members" relationship, which has been strained at best. The relationship is one that is currently governed and under the fiduciary duty of DIAND, which has, on a number of occasions, intervened. In the future, it is clear that the intent of this legislation is to allow the bands full control to negotiate with its non-members. Having said that, the relationship with certain bands is absolutely strained and there is no trust. That is an example of a treaty that has been undertaken without much controversy. I am told that there is quite a bit of goodwill between both parties and, hence, no controversy. If there is a controversy today, it is very much the fact that non-members have encountered serious difficulties in dealing in good faith with certain bands. We anticipate that since there is no longer a referee involved in the negotiation process, things will get worse.
Senator Ghitter: As a lessee, can you tell me how your disputes are now resolved?
Mr. Mantha: They are resolved in the Federal Court.
Senator Ghitter: Under the terms of the lease?
Mr. Mantha: Yes, under the terms of the lease.
Senator Ghitter: If you have a lease and a dispute arises, is the court is available to you?
Mr. Mantha: It is.
Senator Ghitter: After this legislation, you have a lease and you have a dispute. The courts are still available to you. What is the problem?
Mr. Mantha: The problem is twofold. In a community such as Ottawa, if you reside here and even if you are destitute on the street, you have the right to vote. If you reside within the municipal boundaries, you have the right to vote. If you rent here, you have a right to vote. If you own property, you have a right to vote.
Senator Ghitter: And if you are a Canadian citizen, you have a right to vote.
Mr. Mantha: Yes, if you are a Canadian citizen and over 18 and not otherwise prohibited from voting, et cetera. Judges, for example, cannot vote.
Senator Ghitter: I suppose there are those same rules on an Indian reservation as to who can vote and who cannot. They set the rules just like the federal government does, do they not?
Mr. Mantha: We set the rules. The federal government is an agency of its people.
Senator Ghitter: I suppose that applies in the native situation too, does it not?
Mr. Mantha: No. The band sets the rules under Bill C-49.
Senator Ghitter: Yes, in representing their people.
Mr. Mantha: What about the other people who reside there?
Senator Ghitter: You have leases, and the leases speak to the relationship.
Mr. Mantha: The band will be able to set user fees for garbage and road maintenance and they will be able to set rents.
Senator Ghitter: There is nothing in this legislation that affects that. They can do that today without this legislation and they have done it.
Mr. Mantha: But the legislation that they pass, such as band bylaws, are approved by someone who is ultimately responsible to the people.
Senator Ghitter: I am having difficulty with your argument because the lease speaks for itself. If a dispute arises under the lease, the courts are available. I share the same puzzlement as Senator Pearson. I do not see what you are getting at, to be quite candid.
Mr. Mantha: Would it not be easier to say that the Landlord and Tenant Act of Ontario applies?
Senator Ghitter: It does not apply now on native lands, so why should we make it apply now?
Mr. Mantha: Who says that it does not apply?
Senator Ghitter: That has always been my understanding. Please correct me if I am wrong.
Mr. Mantha: There is not a case in this country that says that.
Senator Ghitter: You are saying that the provincial Landlord and Tenant Act applies on federal land?
Mr. Mantha: A provincial law is of general application in a province.
Senator Ghitter: I should like to hear a legal opinion upon that. That is new to me. If there is a legal opinion, please correct me. It has never been my understanding that that is the case.
Mr. Mantha: I have commissioned research on this to find such an opinion and have found that our situation is close to that stated in the Millbrook decision in Nova Scotia.
Senator Ghitter: If that is available, I am sure it would be of great interest to the committee to receive it.
The Chairman: That is not a small item. The difference is great. I am wondering whether we need a third party to come in here to clearly indicate what applies and what does not apply. I do not think we can sit around and argue with you on this point. We must be fair to all witnesses. Is there some way that could be transformed into a document?
Mr. Mantha: Do you have anything in writing that you could give us?
Senator Chalifoux: I have it here.
Senator Ghitter: To what is Senator Chalifoux referring?
Senator Chalifoux: This is their presentation.
The Chairman: I am talking about the actual legal opinion.
Senator Ghitter: May I suggest that we ask the witness to provide us with a legal opinion, Mr. Chairman? It would be of great interest to us. If he would kindly do so, that could be very important.
Mr. Mantha: I have here a strategy paper that was researched concerning every decision that could possibly apply to precisely this topic. It has all the citations and all the court decisions.
The Chairman: Will you table that?
Mr. Mantha: Yes, I will.
The Chairman: We can examine that further.
Mr. Mantha: I need copies of it.
Senator Ghitter: Certainly.
Mr. Mantha: It deals with the Millbrook band, and so on. These cases will ring bells for people.
Senator Chalifoux: First, I should like to find out from which reserve you are leasing.
Mr. Mantha: It is the Nipissing First Nation, Indian Reserve No. 10.
Senator Chalifoux: Where is it?
Mr. Mantha: It is immediately west of North Bay, Ontario.
Senator Chalifoux: It is on the north shore of Lake Nipissing.
You state in your presentation that this bill will create a two-tiered system of government. Do you not consider the local government, the municipal government, your provincial government and your federal government tiers of government with which you must deal?
Mr. Mantha: The people who live on Nipissing Reserve No. 10 have no municipal vote.
Senator Chalifoux: Why do you think that is?
Mr. Mantha: In order to make that happen, someone would have to make an application to get the Municipal Act of Ontario to apply on reserve lands.
Senator Chalifoux: You are saying that reserve land is under federal jurisdiction. If you are not allowed to vote in a municipal election, because of where you live, then are you not living on federal land?
Mr. Mantha: You are allowed to vote in a municipal election if you live in that municipality, and satisfy the other requirements, of course, such as not having been convicted of an offence and that sort of thing.
Senator Chalifoux: Have you ever attempted to meet with the band council in Nipissing to negotiate?
Mr. Mantha: There are two subdivisions, two tenants' associations. As we speak, the president of one of the asociations is meeting with the band in North Bay. This is a last-ditch attempt to avoid what we believe is going to be a further court application. Attempts like this have been suggested and they have failed over and over again.
Senator Chalifoux: I have difficulty with the reasoning in your presentation when you state, first, that it will create a two-tiered government. I live on non-aboriginal leased land. My landlord can charge me whatever he wants for the rent, for the road allowance, and for anything that is on that land.
Mr. Mantha: Is this in Ontario?
Senator Chalifoux: No, this is in northern Alberta. My landlord has the ability to do that. I cannot vote on his land as a ratepayer because I am not one. I am a lessee, so I leave that up to him. Now this is where I am getting confused, if that happens in the non-aboriginal community, why can it not happen in the aboriginal community, because our people have become very well educated? I think that if you give them a chance, they might make good landlords. Deal and negotiate with them. This is the thing. I just do not understand your reasoning and your concern that there will be violence, or that you will be in court forever.
Mr. Mantha: I have no legal knowledge of what the Landlord and Tenant Act is in Alberta. But if you lease your residence from a landlord in the province of Ontario, with a non-native landlord on non-native land, the Tenant Protection Act and the Rent Control Act apply.
Senator Chalifoux: I am buying my place, so I am not involved with rent.
Mr. Mantha: I thought you said you leased.
Senator Chalifoux: I lease land. I do not lease my house. I have built a house on leased land.
Mr. Mantha: Right. In Ontario that is known as a land-lease community. It is specifically covered. For example, a trailer park is a land-lease community. It is governed by the Landlord and Tenant Act, and both the Rent Control Act and the Municipal Act apply.
Senator Chalifoux: Has the band there developed a land code?
Mr. Mantha: Not yet. They are working on it. We have made submissions to them asking if there is any way we can help them with their land code. Can we have some kind of democracy that only applies to the land lessees? We do not want to outvote them and start taking over their band. We do not want to do that. We want to have some kind of control over how we live and what we pay: the things that are at the very heart of municipal law.
Senator Chalifoux: How do you think the passage of Bill C-49 will prevent you from doing all of that under your leases?
Mr. Mantha: We think that it does not address the issue of the applicability of landlord-tenant legislation or municipal legislation. We then must leave it to the courts or we rely on the goodwill of people who want to talk together and make a deal. Those are the only two alternatives, the court or a deal. In the last 10 years, goodwill has evaporated catastrophically, not only in these cases. There is an avalanche of litigation. As more and more of these land-lease communities have come on the market, the rate of litigation has increased.
Senator Chalifoux: The lawyers will make a lot of money.
Senator Wilson: In view of your presentation, have you any specific amendments to this bill you would like to recommend?
Ms Leclair: I have two specific amendments. First, it would be good to have a ward-like system in which we as non-members could vote on matters that will directly affect us.
Second, we would like to see assurances regarding the dispute resolution process in Bill C-49, because dispute resolution is not referred to in the framework agreement. We would like to ensure the neutrality of mediators and arbitrators in the body of Bill C-49.
Senator Gill: Did you mention that you have a study indicating that the general law of expropriation of Ontario could be applied on a reserve or Indian land? Did you mention that?
Mr. Mantha: No, I did not. That would not be the case. I can see that the right of the federal government, under section 91, to protect against the alienation of native land is important because the federal government has been entrusted with that issue. However, the Landlord and Tenant Act does not dispossess a landlord. It controls the use that the landlord may make of his land. In essence, it says that if you want to be a landlord, you must obey this law. If you do not want to obey this law, you cannot be a landlord.
[Translation]
Senator Gill: You have several times suggested that if the bill is passed, its application will be very unfair. What do you base that statement on and what consequences are you thinking of?
Ms Leclair: We are not saying whether the relations are working or not. In certain cases, the relations between the two groups are very good. But in the cases I am personally involved with, relations are not working and have never worked. Unfortunately, there is a lot of mistrust between the two groups, for reasons that are valid on both sides. I do believe that if this bill is passed it will simply entrench the differences of opinion that exist and ensure the democratic dissonance that predominates today. Our concern is that we will not alleviate a problem that already exists, and we will simply be worsening the situation.
[English]
Senator St. Germain: The only thing that throws me off in your presentation is the animosity that seems to exist in your particular area. I am a great believer that if our aboriginal peoples are to regain the dignity, pride and equal footing that they should have as Canadians, they will have to control their land. My only concern about Bill C-49 is the aspect of expropriation, because we are actually charting a new course. They have changed the words regarding expropriation and all the legal people that I have spoken to have said that it is a wide open situation for litigation. One must bear in mind that the Expropriation Act governs. You mentioned the Sechelt Band in British Columbia. The agreement entered into with these people appears to be a very good agreement, and they have accepted the Canadian Expropriation Act as part of their agreement.
You are more concerned about the governance than you are about expropriation, are you not?
Ms Leclair: No, we are very concerned about the expropriation rule. In our view, the dispute resolution process is closely intertwined with the expropriation process that is provided for under the Expropriation Act. If there is any dispute as to the methods used under this bill, there is no predictable mechanism that a fair hearing with respect to expropriation rules will apply.
Mr. Mantha: Native peoples should be entitled to control their land; that is unquestionable. Land is at the very heart of all wealth, at the very heart of everything. We have no problems at all with the concept that native peoples have a right to do that because it causes them to maintain their cultural and social entity. Our problem is that native peoples have decided to become landlords and they are now going to be allowed to form municipalities. In essence, they have the right to make laws and they have the right to create offences over which we have no control. That is not only unfair, it is simply bad management.
Senator St. Germain: If you leased land from me on my place in B.C., you would face that same fact. You would have to deal with the rules and regulations I set up in regard to any leasing. If I had a lease with you, I would have to honour the lease. However, when the lease expired, I would have the right to tell you, as the lessee, what you must or must not do. Why should not the natives have that right?
Ms Leclair: Let me explain about the original leases. They were signed under the authority of Her Majesty the Queen in right of the minister of Indian Affairs. Clients that have purchased these lands have felt comforted by the fact that our federal government was involved. They had no idea, and most lawyers have no idea, that their primary fiduciary duty owed by Her Majesty the Queen as lessor is to the natives. They have not a clue. They understood that they were dealing with the federal government, hence they are going to be dealing with someone who will mediate both interests. Whether or not you are in agreement with this, most lawyers and most purchasers have no idea that the duty of care was only owed to the native. That is what the situation was when they entered into leases.
I participate in mortgages -- the buying and selling of leasehold interests on these lands. I can assure you, I have a letter from DIAND that assures me that these leases cannot be amended. I have a letter from a member who is sitting in this room right now saying that these leases cannot be unilaterally amended. The reality is quite different.
I had a transaction, someone that needed to mortgage his house desperately to send his two daughters to school. The band said, in this specific situation, that if he had to mortgage his property, his lease would expire. Incidentally, it was not due to expire. The lease was for a term until the year 2022 or 2027. There was a valid lease in place but the lease had apparently expired. The only way this person was able to remortgage his leasehold interest was by agreeing to the band requirement to a new lease. My client signed under duress. We sent the document off to the band. He signed under duress and the band sent me back a letter saying that they would not register the mortgage unless we removed the "signing under duress" clause. Hence, my client had to amend the terms with respect to the lease increase provision for a rent review every five years. All these court decisions involve fighting over the terms. There was an attempt by the band agent to amend this particular lease, and that was successful.
Senator St. Germain: Does the band have to sign on the renewal of all mortgages, on all the rents?
Ms Leclair: It has to approve the consent to all mortgages, yes.
Senator St. Germain: Is that part of lease?
Ms Leclair: It is part of the lease provision, yes.
Senator St. Germain: Were they in violation of the lease agreement by requesting the negotiation of a new lease?
Ms Leclair: They were most assuredly in violation of the lease agreement, but that is a matter between the lessee and the Department of Justice. When you expedite the army of legalese, there is not a single lessee that will take on the federal government's law firm. You cannot do that. If you say that there are a lot of lawyers who are going to be happy, the simple fact is that no one can wage their own private war against the government because all of a sudden it decides to change the rules. I have three specific documented cases where there was an insistence upon amending the lease halfway through the term. I would be more than happy to release this information, obviously with the consent of my clients.
The Chairman: Thank you for your presentation. We have two other witnesses to hear this evening.
Ms Marilyn Buffalo, President, Native Women's Association of Canada: I wish to thank you for providing the native women of Canada with the opportunity to give you a presentation here this evening. As a non-profit organization incorporated in 1974 -- 25 years ago -- the Native Women's Association of Canada is an aggregate of native women's organizations and is an association that is formed like a grandmother's sacred lodge. In this grandmother's lodge, we, as aunties, mothers, sisters, brothers, relatives, collectively recognize, respect, promote, defend and enhance our native ancestral laws, spiritual beliefs, language and tradition given to us by our creator.
The Native Women's Association of Canada is founded on the collective goal of enhancing, promoting and fostering the social, economic, cultural and political well-being of First Nations and Metis women with First Nations and Canadian societies.
The principles or objectives of our organization, as stated in our constitution, are as follows: to be the national voice for native women; to address issues in a manner that reflects the changing needs of native women in Canada; to assist and promote common goals towards self-determination and self-sufficiency for native peoples in our roles as mothers and leaders; to promote equal opportunities for native women in programs and activities; to serve as a resource among our constituency in the native communities; to cultivate and teach the characteristics that are the unique aspects of our cultural and historic traditions; to assist native women's organizations, as well as community initiatives, in the development of their local projects; to enhance and advance issues and concerns of native women; and to link with other native organizations with common goals.
The Native Women's Association of Canada is not opposed to Bill C-49. We are well aware of the time, diligence and hard work that the signatory chiefs, their supporting staff and their lawyers have put into the realization of this legislation and we have great appreciation and respect for this fact. This bill will give the signatory band the authority to manage its own reserve lands and resources without having to obtain approval from the Minister of the Department of Indian Affairs and Northern Development. We will celebrate this level of autonomy if the membership of the First Nations concerned enjoys and provides their informed consent.
Under the Indian Act, there are no provisions offering protection of matrimonial property for native women in cases of divorce from Indian men. Native women, unlike other Canadian women, cannot obtain orders for possession or for partition and sale of reserve land under provincial legislation, according to the Supreme Court of Canada case Derrickson v. Derrickson.
According to the B.C. Native Women's Society, typically, a native woman lives on her husband's reserve. This is likely due to the fact that previously the woman was legally bound to live on her husband's reserve. If the marriage ends, the woman and her children have no place to live because the husband usually keeps his house. Often, the woman cannot return to her old reserve unless she is divorced, and she does not usually get support from her husband's reserve. This creates a desperate situation for the woman and her children.
Although the federal government has been aware of the deficiencies in the Indian Act, it has failed to provide a remedy. Considering the serious implications for native women, and the failure of the federal government to take action on their behalf, the B.C. Native Women's Association launched a court case against Canada. In that action, the B.C. Native Women's Association seeks two declarations: first, that the federal government has a constitutional responsibility under section 15 of the Constitution Act to correct the inequality that exists in the Indian Act regarding matrimonial property; and, second, that the federal government cannot pass its fiduciary responsibility to correct the inequality deficiency on to the First Nations.
The federal government answered the action by applying to the court to strike out those parts of the B.C. Native Women's Association statement of claim that relate to the framework agreement. On December 15, 1998, the signatory First Nations obtained intervener status in the case. On December 22, 1998, the judge announced that he would reserve his decision on the federal government's application. As of this date, the judge has not returned his decision.
The Native Women's Association of Canada certainly cannot blame the signatory chiefs for the fact that the Indian Act ignores the human equality and property rights of native women. It is the federal government that must answer for this particular breach of its fiduciary responsibility. It is the Native Women of Canada's responsibility to bring forward the concerns of native women regarding this bill. That is why we are here.
NWAC, as it is sometimes referred to, has already expressed very strenuously its great concern about this legislation to the Minister of Indian Affairs and Northern Development, to the Standing Senate Committee on Aboriginal Peoples, and to the chiefs who support this bill, including the national chief himself. There has been no meaningful response to our efforts. Despite NWAC's discussion with the departments of Justice and Indian Affairs, there has been no serious commitment by the federal government to act on this matter.
On June 9, 1998, at the National Native Women's Association annual general assembly, the Minister of Indian Affairs and Northern Development, Jane Stewart, announced her commitment to act on the concerns expressed by native women in regard to their equality and matrimonial property rights in cases of divorce.
Minister Stewart announced that she would establish an independent fact-finding process to examine native women's rights to marital property when a marriage breaks down. It would appear that this was meant to be just a smokescreen, as Minister Stewart introduced Bill C-49 just two days later into the House of Commons. She was well aware of the concerns that native women have with this legislation.
Almost a year later, there has been very little action taken by DIAND regarding the fact-finding process. It is our great hope that this bill will not become law before the serious and obvious gaps are filled.
A provision was added to Bill C-49 that is supposed to address the issues that concern native women. This provision is clause 17, which states:
(1) A first nation shall, in accordance with the Framework Agreement and following the community consultation process provided for in its land code, establish general rules and procedures, in cases of breakdown of marriage, respecting the use, occupation and possession of first nation land and the division of interests in first nation land.
(2) The first nation shall, within twelve months after its land code comes into force, incorporate the general rules and procedures into its land code or enact a first nation law containing the general rules and procedures.
(3) The first nation or the Minister may refer any dispute relating to the establishment of the general rules and procedures to an arbitrator in accordance with the Framework Agreement.
However, this provision does not adequately address the concerns of native women. In its current form, the bill presents the following issues of concern. First, there is no indication of how cases of divorce and division of matrimonial property are to be dealt within the 12 months following the community ratification of the land code. As each First Nation is free to develop its own land code, absent of any clear underlying principles, native women will not have access to any consistent application of law concerning protection of their property rights as all Canadian women and other than native women do.
The bill states that the First Nation or the minister may refer any dispute to an arbitrator, but native women, who may be victims of inequitable practices, have not been given standing in the dispute resolution process. Moreover, who will pay for the native women's involvement in this process, particularly when it is clear that native women are the poorest of the poor?
Under clause 12 of Bill C-49, signatory First Nations can obtain community approval for the adoption of a land code and an individual agreement by any process agreed on by the First Nation and the minister, with a minimum approval rate of 25 per cent plus one of eligible voters. This threshold is so low that it provides no assurance that the will of the community will be behind the new regime.
Beside the lack of protection of native women's equality and property rights, another issue raised by Wendy Lockhart Lundberg causes great concern to native women. This has to do with the extraordinary expropriation powers given to chief and council under clause 28 of the bill. Often, women who lost their status under the Indian Act and then regained it under Bill C-31 are not welcomed back to their lands. Ms Lockhart Lundberg points out that there is no fear that lands and homes that should pass by will or demise to Bill C-31 women will be lost forever through the expropriation provisions under the guise of necessary community works or other First Nation purposes.
Ms Lockhart Lundberg uses the example of her own mother to illustrate her concern about these extensive powers of expropriation. Her mother's status was reinstated in 1985. However, she has not been welcomed back to the Squamish nation, although she is a member. As a status Indian, she receives only health benefits. Ms Lockhart Lundberg's grandfather had a certificate of possession for two lots, which he bequeathed to his daughter, Ms Lockhart Lundberg's mother, in his will, which was properly executed in-accordance-with-the-Indian-Act. These lots are still in his name, are occupied by other people and have not been referred to Ms Lockhart Lundberg's mother.
The band could easily expropriate those lots with minimal compensation because compensation need only be "fair." whatever that means. The First Nation need only take into account the provisions of the Expropriation Act. Ms Lockhart Lundberg is quick to point out that the expropriation powers can be used against all band members. She was quoted in House of Commons Debates as saying that the Squamish First Nation chief and council is rumoured to have plans to commercially develop valuable waterfront reserve lands in North Vancouver. These plans could mean the displacement of band members to reserve lands further up the coast. Ms Lockhart Lundberg brings to light possible situations of expropriation that all band members should be concerned about.
Another of Ms Lockhart Lundberg's complaints is that the Squamish First Nation chief and council did not have a community mandate to sign the framework agreement. Clause 45 of the act stipulates that any band may sign on to the framework agreement on behalf of the band, if they have been duly authorized to do so.
Ms Lockhart Lundberg believes that this means duly authorized by the community following consultations and a referendum. A likely response from the signatory chiefs would be that "duly authorized" means the authorization that comes with being elected by the community and that they are not only authorized as elected chiefs to act on behalf of the band but they are obligated to do so.
A chief and council must take opportunities as they become available. Once the legislation is passed to support the initiative, the communities are then consulted as to whether they wish to continue with the process. The ambiguity of clause 45 has created a great sense of panic among members of the Squamish First Nation, who only recently found out that their chief and council have been involved in this land management initiative for many years.
After hearing about the legislation on a radio talk show, Ms Lockhart Lundberg phoned her member of Parliament to get a copy of it. Upon receiving it, she was shocked to find out that the Squamish First Nation is a signatory of the framework agreement. Ms Lockhart is a concerned and involved community member who has missed only one general meeting on the reserve in the last six years, and there has never been any discussion with the community on the framework agreement.
In an effort to create awareness in the community, Ms Lockhart Lundberg has a core of about 10 women who have started a petition to oppose Bill C-49. The petition and the signatures were sent to Ted White, Reform member of Parliament for North Vancouver. As of April 6, 1999, some 262 signatures had been received at Mr. White's office.
The National Native Women's Association of Canada supports Ms Lockhart Lundberg in her outstanding efforts. In keeping with the commitment of the Native Women's Association to advance issues and concerns of native women, and in a spirit of cooperation and compromise, the association submits the following proposals to amend Bill C-49.
The first proposal is that into clause 6(3) there should be inserted a provision relating to the division of matrimonial property which meets minimum recognized standards to serve until affected First Nations implement a land code that includes division of marital property on divorce provisions.
The second proposal concerns clause 12. It is that an approval rate of a minimum 51 per cent of eligible voters for land codes and individual agreements should be required.
The third proposal regards clause 17, incorporated by reference into clauses 21(2) and 22(2), to add a minimum standard to guarantee that native women's rights to matrimonial property in divorce are no less than the rights of other women and to ensure consistency, equality and natural justice.
The fourth proposal regards clause 20, to add a provision specifying that the law-making powers would include the use, occupation and possession of the First Nation land and a division of interest in First Nation land in case of marital breakdown.
The fifth proposal is to add a provision specifying what happens regarding matrimonial property when a First Nation law passed pursuant to Bill C-49 is inconsistent with provincial laws of general application.
The sixth proposal is to add a provision to ensure that Bill C-31 women cannot be discriminated against through the misuse of expropriation provisions.
The seventh proposal recommends that clause 28 be amended to: (a) limit the powers of the expropriation provisions by adding a requirement for a community approval process calling for no less than a 51 per cent approval rate of eligible voters; (b) add a provision requiring that an appeal process be available to First Nations members; (c) add a requirement for all proposed expropriation orders and a subsequent community consultation process to be verified by an independent verifier jointly appointed by the First Nation and the Department of Indian Affairs; and (d) amend clause 28(5) to ensure that First Nations must apply the rules for determining fair and full compensation as set out in the Expropriation Act.
The eighth proposal regards clause 45, and it recommends that "duly authorized" be defined as meaning supported by at least 51 per cent of the community as indicated in the community referendum.
It would appear that the two greatest weaknesses of Bill C-49 are its lack of provisions protecting native women's aboriginal equality and property rights and the extraordinary powers of expropriation accorded to signatory First Nations. NWAC is concerned mainly with the provisions and issues affecting native women and considerations for making the legislation more acceptable to us. In my opinion, the amendments presented are reasonable.
Some of the chiefs of the signatory First Nations have sent letters to NWAC giving assurances that the concerns of native women can and will be adequately addressed in individual land codes. It is my strong belief that if it is the chiefs' intention to adequately address the concerns of native women anyway, then the chiefs should have no objection to the proposed amendments.
I want it clearly understood that NWAC does not imply that the signatory chiefs have any intention of perpetuating discrimination against native women in their communities. This submission is merely intended to point out potential problems with this legislation. The fact is that any and all First Nations will be able to sign the framework agreement, perhaps with the sole intention of abusing the substantial power contained within this legislation.
In conclusion, I humbly ask you to summon the courage to implement our proposed amendments that perhaps should have been implemented by the members in the House of Commons. I appreciate having the opportunity to address you.
I know that members of the aboriginal community have asked, not only at this committee but at previous committees, whether or not NWAC has a mandate to address this issue. The fact that we have been around for 25 years is an indication that there needs to be a voice, and I might say an independent voice, one that is not dominated by males and male-dominant organizations. That is the reason this organization was founded, not by us, but by our aunts and grandmothers.
For the purposes of the record, as I have said before, NWAC is only one of the five national organizations that own real estate in Ottawa. We are completely mortgage free, and we do not spend money unless we have it. We do all of this work on a pro bono basis. We have many friends, and we are prepared to go to the full extent of the law to be involved and to assist you in any way we can.
I might also say the backgrounder that was developed and sent to every member of Parliament and senator was done in-house, by volunteers.
Senator St. Germain: Thank you for your presentation, Ms Buffalo. The question I have to ask you zeroes in on one particular incident in regard to Ms Lockhart and the Squamish band. Are there any other incidents in other parts of the country? Perhaps you do not want to explain, and you need not, why you zeroed in on this particular case. However, are we dealing with huge numbers of these situations, or are they isolated?
Ms Buffalo: My answer is twofold. First, niether NWAC nor any other women's group is informed as to what is going on here in Ottawa. Many of our women do not know about this legislation.
Senator St. Germain: That happens to many of us.
Ms Buffalo: That should not be an excuse. That is not acceptable. Because we are poor, we do not read The Globe and Mail. It does not hit our reserves, nor does The National Post. By the time we receive information, it is by luck through the native newspapers, and many of them do not cover this issue. By the time the native women read this, it is ready to become law. That is the unfortunate reality. This is also not being debated in the open forums.
Senator St. Germain: How are you funded? Are you funded by the government at all?
Ms Buffalo: We are funded $300,000 a year by Heritage Canada. That is our core funding for the national office, which we run through that.
Senator St. Germain: There are several incidents that you could enumerate.
Ms Buffalo: Yes, there are, which is why at one point we were excited about this task force that was going to go across Canada, that proposed fact-finder. We were excited by the announcement that Minister Stewart made at our annual general meeting. Unfortunately, I had made initiatives. I made proposals to Ms Stewart four times for funding for us to do the development and work that is necessary, and more important, to have the expertise to do this kind of work. Four times we were turned down. She kept focusing on the fact-finder. We do not even have the resources to have one person going across Canada, let alone to inform women that this fact-finder is taking place. Therefore, it was a non-starter from the word "go" and they will not fund us. We have made overtures many times to Ms Stewart.
Senator Lawson: It was an excellent presentation. I must say I am somewhat shocked at the presentation and at the fact that there is a need for it.
Sticking to questions, you say that under the Indian Act there are no provisions offering protection of matrimonial property to native women if they divorce Indian men. Has there ever been any provision in any legislation?
Ms Buffalo: None.
Senator Lawson: Has there been any legal precedent or decision?
Ms Buffalo: No, our women are so oppressed that I really consider it an insult when someone tells me that I am just opposing this legislation for my own political gain.
I think that you can underestimate the living standards that our women must endure both on and off the reserve.
I met with a group of 30 women in Edmonton. They asked that I not disclose their names because of the implications for them politically if they are seen to be gathering in large numbers in the communities. However, the living conditions are worsening and that cannot be overstated.
Senator Lawson: You spoke about the action filed by the British Columbia Native Women's Society against Canada. The demands were eminently fair and reasonable. You said that the federal government answered the action by applying to the court to strike out those parts, et cetera. Who initiated that action, the Minister of Indian Affairs?
Ms Buffalo: The B.C. Native Women's Society did.
Senator Lawson: No, I meant who was the respondent in that action? Was it the minister's decision to try to block that action?
Ms Buffalo: I am not sure.
Senator Lawson: I know the B.C. native women initiated the action, but you said that the federal government answered the action by applying to the court to block out those parts of the native women's statement of claim that related to the framework agreement.
Ms Buffalo: The Department of Justice initiated that.
Honourable senators, we have no friends. I do not think you realize the dire straits in which we find ourselves. The very fact that we are even allowed to have this time with you is an honour. Our women have no recourse at the reserve level, nor do they have the money to hire lawyers.
We are fortunate that two native women make up the executive of the B.C. Native Women's Association, otherwise this action would not have taken place.
Senator Lawson: Did you make a presentation of a similar nature to the House of Commons when the legislation was there?
Ms Buffalo: Yes, we did. We were ridiculed.
Senator Ghitter: Who ridiculed you?
Ms Buffalo: We were asked very pointed questions, such as who our organization represents. I did not like that. It would be as insulting as asking the national chief who he represents.
Our association has a 1-800 number in our office because many of the complainants across Canada have no access to long distance. Sometimes they do not even have access to telephones. We have tried to make as many accommodations as possible.
Senator Lawson: You say that the federal judge has announced that he is reserving his decision. Has any indication been given as to when you might expect a decision?
Ms Buffalo: They will wait for the outcome of the proposed legislation before you.
Senator Lawson: I heard a discussion in B.C. recently that one of the ministers involved in these negotiations, in explaining why there were not provisions protecting native women, said that you were overlooked.
Ms Buffalo: We are always overlooked.
Senator Lawson: I think you have been overlooked for a very long time. You have made an excellent presentation and it should be given serious consideration by the committee and by the Senate.
Ms Marlene Lapierre, First Vice-President, Native Women's Association of Canada: Honourable senators, I wish to add my part to the discussion that has taken place so far.
I wish to express more of the frustration that faces aboriginal women in reserve communities. At present, I serve as the president of the Ontario Native Women's Association. I have been involved in the association since 1972. I was particularly active in the preparation of our report on the level of violence in aboriginal families, both on and off reserve.
Eight out of ten women and a similar number of children experience violence. Women, especially in the northern isolated communities, often must flee their communities for safety and in some cases are not able to flee because there is only one way out of the community and that is via airplane.
If the powers in the community did not want you to leave, you could not leave. A currently popular phrase describes living under these conditions as "living behind the buckskin curtain." Life for the women in these communities is often hopeless, especially when it is frustrated by family-controlled leadership or when the perpetrators happen to be the ones in control.
In my capacity as president, I often hear stories from women who have had rifles directed at them by the perpetrators. In one case, a woman had a rifle held to her head in order to remove her from the reserve. The perpetrator kept the children and the woman had no alternative course of action.
One must also consider that when we are speaking about land, we are also speaking about custodial matters. There is no way for aboriginal women on reserve to have the kinds of protections that most of us who live under provincial laws have. In some provinces, where a significant amount law reform is taking place, it is a much more balanced legislative package than in other provinces.
For the reinstated Bill C-31 Indians in particular, and especially where there are Indian Act bands that do not allow off-reserve members voice or vote in any kind of general matter, never mind for land use, we are particularly at risk for this kind of discrimination and have no say whatsoever in land ownership.
For 80 per cent of the aboriginal population, we have no say whatsoever in how our lands are used or how our families are treated in these break-ups.
In 1980, we conducted a study with over 1,000 aboriginal women in Ontario. Almost 95 per cent of those people had never seen or heard of the Indian Act. What should have been a very prominent piece of legislation that affected every moment of our lives was not familiar to a huge majority of our people.
I would venture to say that an even higher percentage of people in our communities have never heard of Bill C-49. They will only hear of it if the native women of Canada continue to make it an issue and bring this kind of awareness, as we are with Bill C-31, to as many aboriginal people as possible, both on and off reserve.
I wanted to add those few remarks to what has already been said.
Senator Wilson: I wish to congratulate you for your tenacity and the clarity of your presentation, and for the specific proposals you have made for amendments. I have heard stories that support your brief from a number of native women with whom I have worked over the years. I am glad you are taking this initiative.
At the bottom of page 12, you mention under the specific proposals to amend, "Add minimum standards to guarantee that Native women's rights to matrimonial property in a divorce are no less than the rights of other women and to ensure consistency equality and natural justice." Could you sharpen up for the committee what you mean by "the rights of other women." Is there any legislation to which you can refer there?
Ms Buffalo: I mean other Canadian women. It would be as if in Ontario there were two different laws governing the cities of Ottawa and Thunder Bay, and the laws could not be applied equally, and were not consistent. It is very difficult for native women to be protected under family laws applied to the areas of child custody, for example, because we do not have the means to hire lawyers and go to court to ensure that we are protected. The same happens with provincial laws in the family division. How will that be addressed? I believe it was addressed before when there was a First Nations' matrimonial law. At one point it was discussed as one concept. The parliamentary process is welcome to address that issue any way it wishes. We are ready any time.
Senator Wilson: You mean as it regards consistency across the country?
Ms Buffalo: And within provinces, because the Indian Act is federal legislation.
Senator Ghitter: Madam Buffalo, I wish to first understand the situation and then make a comment. Today, on the reserve, let us say that there is a lease and a marriage breakdown. The land is owned by, I suppose, the federal government, with title subject to the rights of the reserve. If there is a marriage breakdown, it is not a matter of division of property because the property is owned by the government. Then does the band tell the man to stay there with the children. Does the land follow the children? What is the procedure? Can you comment on that?
Ms Buffalo: I will comment on one aspect of your question, about what happens at the reserve level. Then I will ask Ms Duffy to comment on the legal side. We are matrilineal societies, historically and traditionally. The Indian Act, however, is patrilineal law that has been imposed upon us for the last 200 years. It has been amended many times and will be amended again, but these laws have never been amended. There has never been an effort or assertion of native women's rights in the past to the level where we are at now. I have seen few exceptions, and I have lived at the grassroots level all my life. I have seen some exceptions where a man gave the home to his children and the woman stayed, and he left, but those are uncommon. It is almost always the reverse, and that is unfortunate. I mention this, because 60 per cent of our First Nation population is living off reserve, in the cities. The problem is escalating. I will be meeting with another group of 30 women in Edmonton who are living in this situation. They are from all across Canada. They just happen to be in Edmonton.
Senator Ghitter: Who makes the decision as to who stays on the land?
Ms Buffalo: No one does, but neither does a woman have protection. It has always been the man who has the say, because that attitude has been perpetuated by the Indian Act over a long period of time. There are no laws that protect women and reverse that trend.
Senator Ghitter: In the context of this legislation, recognizing that it only relates to land management, many of the grievances that you are stating are not land management issues. They go beyond land management, to things like custodial and support matters. The matter of who should remain in the home is perhaps a land management issue. Yet, are you really not better off as a result of this legislation? Section 17 speaks to rules on marriage breakdown. It appears that finally the government is recognizing that they should do something about it. In my view, they have just pushed the issue aside all of these years. In this section it says that a First Nation shall,
in its land code, establish general rules and procedures, in cases of breakdown of marriage, respecting the use, occupation and possession of first nation land and the division of interests in first nation land". Does not that give you a starter that you never had before and are you not better off by this legislation than you were before, assuming that this legislation becomes reality?
Ms Barbara Clifton, Hereditary Chief, Gitxzan First Nation: I would like to say to the chiefs here present, who are with the Land Management Act, that I personally feel that not enough work has gone into this particular act or the background to Bill C-31. I do not think aboriginal people really looked at the consequences of what would happen. If you look at it realistically it is extinguishment. We are going to have a women's conference about this issue in a couple of weeks.
Senator Ghitter: What do you mean by extinguishment?
Ms Clifton: In that act, after two generations, some of us will no longer be Indian.
Senator Ghitter: I understand.
Ms Clifton: I am concerned that this bill has not had enough preparatory work. For instance, under section 17 -- I am not going to point fingers, and remember our research is limited -- it says:
the First Nations shall within 12 months after its land code comes into force incorporate the general rules and procedures into its land code or enact a First Nation law containing the general rules and procedures.
Ladies and gentlemen, with our limited research from our unfunded activities, not many bands are willing to share this with us. Now, there could be a reason they were not developed or they are discriminating against women. We attempted to do that research to look at what has been developed to give substance to this land management act so that we are not in the same position as we are with Bill C-31. We believe that if we raise these issues with this committee, we should have laws that are liveable for us.
Senator Adams: Senator Ghitter did not receive an answer to the question.
Senator Ghitter: I was questioning whether you are not better off with clause 17 today than you were before? Does it not better your position?
Ms Buffalo: It is not developed senator, and should we be happy for half measures? No. We want the same protection as any other Canadian woman in entering into the new millennium, and we will not settle for second best. It does not go far enough; it does not go anywhere near enough.
Senator Chalifoux: Welcome, ladies. We have met here periodically for many years. I wish to thank you for your presentation. It was very enlightening.
We have received documentation and presentations from women who live on the reserves affected by this bill. There are only 14 nations affected by this bill, and they support it. They support the land codes for their communities. In one reserve, the women wrote to me and said that they constitute 51 per cent of the population and they vote. Have you been in contact with those women? As well, there are two women chiefs on the 14 reserves. Have you been in touch with those women?
When we look at the population on the reserves, hopefully you will agree with me that the women are becoming more educated and vocal and are demanding equal time. How have you dealt with those issues? We are getting the other side of the coin, which is good, but have you talked to the women who support this bill?
Ms Buffalo: I am sorry, I did not understand your third question.
Senator Chalifoux: More and more women are being educated. Do you not find that they are participating more at the reserve level in the political arenas and demanding equal time?
Ms Buffalo: First of all, we in the Native Women's Association of Canada do not have anywhere near the capacity that the other 14 First Nations have. I understand they have received millions of dollars. The Assembly of First Nations has received some funding from Minister Stewart.
We do not have the capacity and that is why we exerted pressure to extract some money from the Department of Indian Affairs. We tried. Since I have become president, I have made four proposals. I have written them myself and I must say they are not bad. The Assembly of First Nations has set up a women's secretariat, and I understand, under "Gathering Strength", money has been set aside for native women to discuss how they will find their place in governance.
We have not had access to that money as an organization. Jane Stewart tells me that we do not qualify because she is not mandated to look at and fund organizations off reserve. Therefore, where do we go?
Have I been in contact with the First Nations? No. We do not have the capacity and the resources necessary to be able to sit down with the First Nation chiefs. With all due respect, when you go to a table you do not go without any resources or technical advisers -- at least I do not. I realize my limitations. I told Minister Stewart to give me some money and I would sit down and look at this bill. I would look at what it is that you are attempting to initiate. I requested money to gather some women so that it is not just me speaking with this voice. It must be a collection of women. Then she initiated the fact finder.
Have I been in touch with the chiefs? No. I have my reasons. We have received their letters. We are not the problem. The Indian Act is the problem. The legislation is the problem. NWAC is here to help in any way it can. However, I must say, for the record, that we will be here for a long time because we have many educated women at the grassroots. We have quite a few chiefs on their way up and we are meeting with them.
The Chairman: Thank you for your presentation.
Our next witness, honourable senators, is Mr. Phil Fontaine, National Chief of the Assembly of First Nations.
Mr. Fontaine, perhaps you could begin by introducing your associate.
Mr. Phil Fontaine, National Chief, Assembly of First Nations: Good evening, senators. I am here this evening with Chief Bill Williams of the Squamish First Nation of British Columbia.
Honourable senators, it is a pleasure to appear before you this evening in support of the 14 First Nation land management communities and their endeavours to create a sectoral piece of self-government. The Assembly of First Nations, as the representative organization of all First Nations men and women, regardless of where they choose to reside, supports each First Nation community and community-based initiatives.
As you may already be aware, the Framework Agreement on Land Management is a government-to-government agreement that was conceived of and driven by the signatory First Nations. Bill C-49 will give these First Nations the necessary tools to collectively and democratically design and assert control over First Nations lands.
I wish to commend this group for its work on accountability, environmental protection and preservation, matrimonial property, dispute resolution, and most important, increased protection of the First Nations land base. This group of First Nations has consulted with provinces, municipalities, the financial sector, various government departments, aboriginal groups, and political parties to define their interests on what it is that each community is trying to achieve with this agreement.
This agreement represents a significant step towards self-government by First Nation communities, which is, as you know, constitutionally protected under section 35(1) of the Constitution. In accordance with the framework agreement requirement, three communities have already voted to adopt their own land codes, with overwhelming support. One Georgina Island First Nation in Ontario voted 150 to 21, 88 per cent in favour. Scugog Island First Nation in Ontario voted 72 to 4, or 94 per cent in favour. Muskoday First Nation in Saskatchewan voted 309 to 40, 89 per cent in favour.
This agreement is a significant step forward in democratic, community-based government whereby all First Nation members, on and off reserve, are active participants in the creation, approval, and operation of land codes. In terms of self-sufficiency, this agreement will allow for greater opportunities for economic development on reserve by removing barriers previously imposed by the Indian Act.
The Indian Act has been the major source of much dysfunction in our communities. For too long this oppressive, paternalistic, and discriminatory legislation has been the cage that has contained and restricted our governments, to the detriment of our culture and our communities. It has become increasingly evident that change cannot occur overnight, nor are the problems created by the Indian Act easily erased.
It is for these reasons that this group of First Nation communities has worked for nearly 10 years to get to this point. What has resulted from all of this hard work is an agreement that is applicable only to the 14 First Nations involved. Although it is optional for other First Nations, the bill will not create changes for those communities that do not wish to apply.
I understand that the framework agreement ratified by Bill C-49 will seek to address a long-standing problem in our communities -- the distribution of property upon marital breakdown. Because of the complete legal void under the Indian Act, both men and women have been left without property rights when their marriages failed. Bill C-49 is the first piece of federal legislation to deal with this particular lack in the Indian Act. Each of the 14 communities will fill that void according to its individual circumstances, while explicitly guaranteeing that the Charter of Rights provisions on gender equity are respected. It has also been established that the rights of the children to be housed and to remain in the community are paramount.
In closing, I would like to quote the final report of the Royal Commission on Aboriginal Peoples:
...progress in self-government, in economic development and in eradicating the social ills afflicting many Indian communities cannot be accomplished within the confines of the Indian Act.
I support the move away from outdated and paternalistic modes of managing First Nations lands and towards community-based control.
I wish to thank you for hearing my comments, and I urge you to expedite enactment of this bill so these communities may begin regaining control over their lands and resources, which should rightly be theirs to manage.
Chief Bill Williams, Squamish First Nation: Honourable senators, I am here this evening to add the point of view of the Squamish Nation. One of the areas of concern that we should clear up is the notion that this is a gender issue. This is not a gender issue. This deals with the management of lands in a way that benefits the whole community.
The Squamish Nation's system of government begins with the membership, on and off reserve, voting for 16 councillors every four years. That process has been set up to allow everyone, whether they live on or off reserve, to elect the representatives of our community. In the last election, approximately 60 people were nominated to run for the 16 positions. Of the approximately 1,800 members who voted, 55 per were female and 45 per cent were male.
As I say, our council is elected every four years. The last election saw approximately 75 per cent of our voting membership cast ballots, and they elected nine men and seven women to these positions.
It is important to note that of the 17 major departments within the Squamish Nation's administrative structure, 10 are headed by women.
The council uses a portfolio system of allocating responsibilities and duties. Of the 10 major portfolios, only two do not have equal gender representation -- the chair and co-chair -- since the 16 representatives who elect them selected two males, myself and Byron Joseph.
The other area of concern is that Bill C-49 has been mixed up with Bill C-31. The Squamish Nation, through its membership code, has welcomed into its community all the families that have been affected by Bill C-31.
Senator St. Germain: It was suggested this morning in an earlier presentation that the existing scenarios be grandfathered and that we go forward with Bill C-49 as it now stands. Then everyone knows what they are dealing with, as opposed to having people lease properties and come under a new piece of legislation with new rules and regulations. What is your view on that?
Mr. Williams: The bill grandfathers the terms and conditions of any lease. With respect to the grandfathering of the formula base, the length of the lease is already stated, so the lease cannot change. If the band chooses to change it, the individual then has the normal recourse of any court system in Canada.
Senator St. Germain: You no doubt know that the new Expropriation Act is very controversial. If this issue had been responded to, we would not have had to hold these hearings.
Mr. Williams: I have talked to representatives of First Nations about Bill C-49, and the use of expropriation is seen as a last resort. The Squamish, in the past, have always negotiated with individuals on whether any land had to be set aside for community benefit. We utilized the community negotiation method rather the expropriation process.
Senator St. Germain: Do you agree that this proposed legislation would give you more powers and better control of your lands?
Mr. Williams: Yes, it does give us better control of our lands through a minimal use of the powers that presently exist in the Indian Act. Bill C-49 does not change any powers that exist in the Indian Act today. On various occasions, the minister has given bands control over different sections of the Indian Act.
Senator St. Germain: We just heard the presentation of the Native Women's Association of Canada and they targeted your band as an example. Would you like to comment on that?
Mr. Williams: Bill C-31 did ostracize and alienate certain members of every aboriginal community across Canada. The case of Ms Lockhart Lundberg has gone to the heart of hundreds of First Nation families. One of our councillors here is directly affected by that issue. The Indian Act stipulates that only a member of the community can own land on the reserve. When Bill C-12 was implemented and they were no longer members of the community, where could the land go but to the nation as a whole? We are in a catch-22 situation.
Senator Gill: Thank you very much for your presentation. I do not know what we will do about this issue. There are many other matters to be considered in Bill C-49. Everyone knows of the problems being faced on and off reserve. There is much suffering on the reserve, mainly by women and children. First the Indian Act controlled everything and then people tried to take control of their own destiny. Non-natives do not have confidence that aboriginal people can solve their problems or manage their own affairs.
Where will we go from here? What will we do? What do you propose? There are many debates taking place on and off reserve, and the non-natives are jumping into them. Land management is just one small aspect of Indian life on the reserve. There are thousands of other problems to solve. What do you propose that we do?
Mr. Fontaine: As you know, there have been numerous studies and reports on various aspects of First Nations life. The most comprehensive was the Royal Commission on Aboriginal Peoples. The report made 440 recommendations that cover virtually every aspect of our lives. It described in considerable detail the major impediments facing First Nations people that have resulted in the poverty that challenges most of their communities in Canada.
I have been involved for a very long time, and it is clear to me that the answer lies in having an adequate land base and access to resources so that our communities can become as self-sufficient and independent as most other, non-First Nation communities are.
Clearly, the answer lies in ensuring that our people are able to exercise self-government, self-determination, or self rule -- whichever term you wish to use -- to the fullest extent possible in order to control our own destiny.
In order for that to happen, we need the goodwill of the other two levels of government, so that, where appropriate, the federal government or the provincial governments will vacate the field and be replaced by self-governing First Nation entities, whether in child welfare, education, health, or land management.
We must keep in mind that here we are talking about a transition that we hope will lead us to the point where First Nations will control themselves as completely as others do. That includes not only the management of our lands, but exercising jurisdictional control over them.
If a full debate on the report of the Royal Commission on Aboriginal Peoples is required, then the Right Honourable John Chrétien must convene a first ministers meeting to enable us -- the provincial governments, the federal government, and aboriginal leaders -- to sit at the table, as we are doing tonight, and talk about this issue. That call is not only being made by me as National Chief of the Assembly of First Nations. It has been made by the premiers as well, most recently at the premiers and aboriginal leaders meeting in Regina just a few weeks ago. I believe that would be an appropriate first step to take.
Senator Lawson: Thank you for your presentation, Chief Fontaine. There are two areas of concern to me. First, I am pleased that you referred to the paragraph that Senator Ghitter drew to our attention about protecting women's rights. You say that, because of the complete void in law under the Indian Act, both men and women have been left without property rights when their marriages failed. You go on to say that it is of national importance that this be dealt with.
However, later you say that each of the communities will fill that void according to their individual circumstances while explicitly guaranteeing that the Charter of Rights provisions on gender equity are respected.
Senator Lawson: Does the Charter of Rights apply?
Mr. Fontaine: We are suggesting it does.
Senator Lawson: Do we have any legal basis for that? Does the department agree that the Charter of Rights applies? Do we know that to be so?
Mr. Fontaine: Yes.
Senator Lawson: Is there a strong motivation in national policy -- you are speaking as the national chief -- to right some of the obvious wrongs discussed by the national women's groups?
Mr. Fontaine: We recognize that we have a big challenge there. That was quite correctly noted by the earlier witnesses. I think it was Madam President Marilyn Buffalo who said that the problem is the Indian Act. The Indian Act has been the major impediment to ensuring equality between women and men.
As a national organization, we recognize that there are deficiencies and we are prepared to address those issues. Some months ago, the chiefs in confederacy in Edmonton adopted a resolution that called for the creation of a gender secretariat in the Assembly of First Nations. The purpose is to instruct the national organization so that everything we do will reflect the interests of women.
As a first step in establishing the gender equality secretariat, we convened a round table on gender issues a few weeks ago. We invited a number of representative voices, women's voices, including Native Women's Association of Canada, to come and talk about how the Assembly of First Nations ought to structure this particular initiative to meet the requirements of the resolution.
We are taking this challenge very seriously. We want to, as I said, reflect the interests of women in everything we do, just as we want to reflect the interests of our people who are resident in urban centres.
Senator Lawson: As you and I both know, one paragraph in Bill C-49 will not get it done. With the motivation you are displaying here today though, I can see progress on the horizon.
I will turn to the issue of Quebec's appropriation. Bill C-49 requires First Nations to create a process for resolving disputes, but it does not require that process to be independent of those First Nations.
I for one would be very concerned about a process that did not allow an appeal from a decision made by one of the nations. There should be recourse to some independent agency, an arbitrator or a tribunal. Is it possible, in the creation of the process, to include one further step as a matter of national policy? We have heard about wrongdoing and some interference. Can there be some guarantee of an independent panel to deal with expropriations?
Mr Williams: If you have had the chance to read the French version of Bill C-49, you will see that it states there that we are looking at Canadian expropriation rights and all the rules and regulations that deal with that. That does include a tribunal and a fair rate of exchange for lands.
Senator Lawson: We are very pleased to hear you say that. If we could only convince the minister and her officials to apply the same Expropriation Act, we could clear up this discussion.
The Chairman: Do I understand that there are two different interpretations of this particular bill, one in French and one in English?
Mr. Williams: That is my understanding.
The Chairman: We must revisit that, if that is so. That should not be the case at all.
Mr. Fontaine: The point being made is that the French version is much clearer.
Senator Lawson: For those of us who cannot read French, that is a problem.
I would like to see a policy or a national undertaking to that effect. Many people should be grandfathered in and should have their rights protected. That would certainly put my mind at ease. I am sure many of those involved would be relieved to know there is some agency that flows from the Canada Expropriation Act.
Mr. Williams: I want to follow up on your question of how First Nations are dealing with the land issue. In the Squamish First Nation, in 1982 we changed the policy of land registry. We, through a land registrar, register all our lands through council motions. The land registrar, who happens to be female, is developing policy to reflect the community's view on how land is to be registered.
From 1982 to today, we have been registering both husband and wife as titleholders for the land and the house, and will into the future. If they are in a common-law relationship, we register both parties. If they are single parents, we usually register under the names of the parent and children. We have been progressive, as have the other First Nations that are involved in the land management documents. We have been moving in the same direction.
Senator Lawson: That is progressive and positive and we compliment you for your approach.
The Chairman: Coming back to the two ways of interpreting this bill, we just looked at the provision. Rather than saying "may" it says "shall." The other reference in French means "must." Is that what you mean by two different interpretations?
Mr. Williams: That is correct.
Senator St. Germain: Mr. Chairman, legal counsel says that "shall" in legalese is the same as "must." I do not know that, since I am not a lawyer. Are you, Mr. Fontaine?
Mr. Fontaine: No, I am not a lawyer, but we can venture an opinion.
Mr. Williams: The opinions that we have state that the expropriation laws of Canada will apply, with all the terms and conditions that fall behind it.
Senator Adams: Mr. Chairman, my question relates to the bill. Is there no discrimination between whites and natives who own property to which Bill C-49 applies?
Mr Williams: No, there is no discrimination.
Senator Adams: We have heard from Senator St. Germain and Senator Lawson about the people now leasing the land. They do not know what the future is. If those people have a home on a piece of property, and if the minister changes the law covering these land bases, where do we go from there? The people leasing that land expected to be okay for another 99 years, or something like that. There is nothing in their leases to say we can change the tax bases by 300 per cent or 400 per cent. Does Bill C-49 say anything about that?
Mr. Williams: No, unless a First Nation wanted to start manipulating the rules of economics to try to do a cash grab with regards to land leases, or any other aspect of value of land, whether through taxation or whatever. That is an entirely different issue.
However, even with land leases, if they try to change those, there will be two problems. First, the band would be thrown into the court system for a fairly long time for breach of contract, which is totally uneconomical for them. Second, if a band tried to do that, they would be identified and ostracized by the economic movers and shakers within the community, who would say, "Do not go to that piece of land over there because they are asking 20 to 80 or even 5 per cent more than they are asking across that line over there." The economics of First Nations land would ensure their ability to do what they were originally set up for, which is to benefit the whole community. The only rules and regulations that First Nations can develop are on fair market value. They will develop in the same way as on adjacent land.
Senator Adams: In the meantime, the buyer's name is automatically transferred to the leasehold?
Mr. Williams: Yes.
Senator Adams: It does not matter who they are?
Mr. Williams: It does not matter who they are.
Senator Lawson: The Musqueam have one lease rate for non-natives and a lower one for natives. That is happening today. That is what you are raising. That is true.
Senator Adams: Does Bill C-49 do that?
Senator Lawson: They were doing that before Bill C-49. Bill C-49 would just strengthen the right to do it again.
Senator St. Germain: I wish to clarify that point. That is what we have been told. We have not talked to the Musqueam representatives at this time because we have not been invited to, whereas we were invited to talk to the leaseholders. We now have received documentation saying that they would like to speak to us, so we will speak to them. All I want you to know is that this is what we have been told. Whether it is a fact or not, we should be able to find out, and we must make certain that we get the facts right. We hope to have a meeting with Chief Ernie Campbell of the Musqueam Band so we can find that out and report back.
Senator Adams: We have the same thing in Nunavut. It does not matter who you are or where you come from when you buy property, as long as you are Canadian.
Mr. Fontaine: Mr. Chairman, I am sorry, but I must leave because I have another commitment. I was told to be here at 7:30. I understood that you always start on time here.
The Chairman: We try. When the whip calls you into the House, you have no choice, and that is what happened today. You may be excused. Thank you for appearing.
Mr. Fontaine: Thank you for your indulgence.
Senator Wilson: You said in your brief that Bill C-49 will address a long-standing problem of distribution of property on marital breakdown.
Mr. Williams: Yes.
Senator Wilson: You heard the previous brief, which said that each First Nation is free to develop its own land code in the absence of any clear underlying principles, which will mean that native women will not have access to any consistent application of the law concerning property rights.
It is not good enough to identify particular situations such as yours where women are doing all right. That may be spotty across the country. Nor is it good enough to say women will hopefully be better off, that this will all be fixed up in the future. If you are serious about addressing this issue, I assume you have no objection to specific amendments that would give women greater certainty.
Mr. Williams: The amendments that have been put forward are good and well-meaning. However, I would like to see the amendments developed in our community, by our community members, and be community-driven. From what I understand, the Charter of Rights does exist and is in effect across all the reserves in Canada. If there is an issue arising from new legislation, the Charter of Rights would then automatically kick in and would have to be taken into account. I do not know what amendments you are thinking of. I do not know what the effect would be on the 55 per cent of our population who wish to make a choice of developing land codes that would benefit them. I am talking about the 55 per cent that is female.
Senator Wilson: The problem is that it may have a spotty application. We do not have amendments at this point. I am just wondering why you would have objections if in fact women require more certainty than is presently in the bill. That would secure it for them.
Mr. Williams: I believe the Minister of Indian Affairs and Northern Development said that she wanted to set up some sort of discussion document to reflect the needs of women right across Canada. Right now, this only affects 14 communities. In the discussions that I have had with the other chiefs, they all have a similar issue with regards to the Indian Act and a similar concern in trying to ensure that everyone is looked after properly in a way that will benefit the community as a whole.
Senator Wilson: That is fine, but why let this go through without the certainty that women require, and wait for something else from the minister?
Senator Chalifoux: I might be mistaken on this, but I understand that the Indian Act supersedes the Canadian Human Rights Act and therefore the latter does not apply to Indians living on reserve.
Mr. Williams: Until it is amended.
Senator Chalifoux: When will it be amended? That is the issue.
Senator Ghitter: Chief, I wish to leave you with a thought. You made an comment, and some of your colleagues have made the same comment, and I believe in your sincerity in this area. You said that you do not wish to do anything to discourage investment on reserves because that is very important to you, and you would not take any steps that might prevent that from happening.
I wish to share with you a phone call I received this afternoon from an individual who is on reserve, under lease, and has assets, as he stated, in excess of $2 million mortgage free. I believe it is a marina on a reserve. He went to his bank to discuss some expansion and was told that there was no further money for investment on reserves because of this proposed legislation. That is not a result that you want. I believe the reason is the uncertainty in this bill relating to the area of expropriation, a different type of uncertainty from that Senator Wilson is talking about, but still an uncertainty. May I leave it with you that uncertainty in this proposed legislation will act to your detriment in the long run? As much as you may not like the idea of amendments, they may be necessary to bring about certainty that will be of assistance to you as well as those other, aggrieved parties. I recommend you think about that, because I think in your own self-interest, it is important to ensure there is certainty in this bill.
Mr. Williams: We will take that under consideration. However, if you are talking about a marina in British Columbia or in North Vancouver or on one of our reserves, that marina is limited in terms of the length of time left on the lease. They are complaining that they wish to go back to the bank for a loan. That lease, as was discussed earlier, involves a business decision. It is at the tail-end of the lease and banks do what they normally do, namely, look for a length of time in which their money will be returned. If that is the case, then it is unfortunate that they are going to the bank now, because they could have gone 10 years ago and received twice the money that they are asking for now and had time to pay it off during the term of the lease. That is another wrong business decision that someone made. That person is now trying to rectify the situation by criticizing this bill unnecessarily, hoping that someone will give them another outlet for a proper business decision that they should have made 10 years ago.
Senator Ghitter: I am not sure we are talking about the same situation because I do not know those details. If it is as you say, I agree with you.
Senator St. Germain: I wish to add to what Senator Ghitter said, namely, that financial institutions in the country would say, "Bill C-49 as presently written creates such a level of uncertainty that we would not consider advancing funds against leases affected by it." Would you then consider an amendment with respect to the expropriation section to rid the situation of that uncertainty?
Mr. Williams: I thought I answered that succinctly in identifying that the Expropriation Act of Canada does apply here. There is an anomaly between the French and English versions of the document. As chiefs, and through our legal counsel -- and my own band's legal counsel has told us the same thing -- we have been told that the Canadian Expropriation Act does apply. You are talking about a non-starter. You are bringing the powers from Ottawa, and in our case to Vancouver, British Columbia, to Squamish reserves. That will give the bill a lot more definitive decision-making powers over what the community wants to do with the land.
Senator St. Germain: That is right. I respect that and I hope that you become the most prosperous people in British Columbia. However, legal counsel are telling us that the changed wording "for the reason of expropriation" is the area that creates the uncertainty. That is why I asked the question.
I do not wish to badger you. We are hearing one thing and you see it from another perspective. I hope we will be able to come to a meeting of minds.
Mr. Williams: We hear it in the day-to-day decision making that faces our community in order for us to develop more harmonious economic relationships with both the outside community and our members. You ask me to change the act with regard to expropriations? No, I am sorry.
Changing the act in areas dealing with the inadequacies of the Indian Act is the big problem. There are many inadequacies in that act. We are trying to change everything about it and fit it into a small piece of proposed legislation that we want to deal with on a day-to-day basis in order to create a better economic situation for our community.
The Chairman: Thank you for your answers.
The committee adjourned.