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Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 28 - Evidence, May 4, 1999 (afternoon sitting)

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OTTAWA, Tuesday, May 4, 1999

The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-49, providing for the ratification and the bringing into effect of the Framework Agreement on First Nation Land Management, met this day at 5:15 p.m. to give consideration to the bill.

Senator Charlie Watt (Chairman) in the Chair.

[English]

The Chairman: We have Ms Wendy Lockhart Lundberg with us this afternoon. Please proceed.

Ms Wendy Lockhart Lundberg: I am here this evening with Velma Baker, who is affectionately known as Maisey by her family and the community of the Squamish Band, where she is the most loved and respected elder.

Thank you for this opportunity to express to you our views on Bill C-49 in person. I would like to start off by telling you a bit about my family history, which I hope will explain to you why I am opposed to this proposed First Nation Land Management Act and why I have so many concerns about it.

I was born and raised in Vancouver. I am a Canadian citizen and a status member of the Squamish Nation. My mother, Nona Lockhart, was born Nona Baker, the only child of Henry "Hawkeye" Baker. Henry was an exceptional lacrosse goalie and played for Canada in the Olympics in Los Angeles in 1932. In 1966, he was inducted into the Canadian Lacrosse Hall of Fame and last week he and two of his brothers, Ray and Dominic, were inducted into the B.C. Sports Hall of Fame.

Nona Lockhart was born in 1925 and raised in her parents' home on the Mission Reserve in North Vancouver. She has vivid memories of her childhood there and remembers travelling to stay with her father or visit him at his other house on Stawamus Reserve in Squamish, where Henry spent time fishing, hunting and logging in the mountains. My mother speaks fondly of her memories of the times she shared with her parents and she proudly remembers accompanying Henry to his lacrosse games. She recalls her grandfather's visits when, together as a family, they spoke the Squamish language. My mother spoke only her native Squamish until she started elementary school, when she was no longer allowed to speak it.

In 1941, my mother requested assistance to attend high school. In a letter dated July 29, 1941, Indian Agent Ball wrote to the Department of Indian Affairs and Northern Development in Ottawa on behalf of my mother as follows:

Sir: I have been asked by an Indian girl, Nona Baker, age 16, of the Squamish band, to enquire whether the Department will supply her with the necessary books for first year High School in Vancouver. She has made all arrangements and will do housework for her board, but is unable to finance the books. I do not know whether the Department is willing to do this, but I hope there is nothing to prevent the assistance being given to this girl, who is quite ambitious. I know of cases where all expenses have been paid for Indian boys attending University, but do not remember any girl being so assisted. I am unable to say at present what the cost of the books would be, but it is not much in comparison with what we have done for Indian boys, and I respectfully recommend that this girl's application be given favourable consideration if it is possible to do so. I have the honour to be, Sir, Your obedient servant, signed: F.J.C. Ball, Indian Agent.

In reply to this request, Indian Agent Ball received a letter from Indian Affairs dated August 8, 1941, which states:

Dear Sir, I have your letter of the 29th ultimo, with reference to Nona Baker. At the present time the Department is not encouraging Indian girls to take higher academic training. However, we are prepared to supply her books if she attends high school, but it is not our intention to be responsible for any other expenses in connection with her education. Signed: Philip Phelan.

In 1947, my mother married a non-native. As a result, and pursuant to the Indian Act, she was stripped of her native status and band membership. This was not the case for native men. In fact, not only did native men who married non-native women retain their status, but their non-native spouses and their descendants acquired it.

In 1968, Henry Baker died. He was predeceased by his wife in 1967. In his last will and testament, approved by Indian Affairs, he left all his property to his only child as follows:

I give all the property of which I die possessed as follows: Unto my daughter, Nona Rose Lockhart, all my assets, cash, my house and contents on Mission Indian Reserve No. 1, and house on Stawamus Indian Reserve No. 24 and all of my property not herein before disposed of I give to my daughter, Nona Rose Lockhart.

Like other native women at the time who had lost status, my mother was not allowed to inherit or even live in the house where she was born and raised. While my mother worked at an unskilled occupation because she was denied higher academic training and paid rent or a mortgage off reserve, members of the Squamish Nation who live on reserve have benefited from free housing and are more readily able to access programs and services from the band. To this day, in Henry Baker's property on Stawamus Reserve, there lives a native man who is a member of the Sechelt Nation and not even a member of the Squamish Band. His mother tore down Henry's house and replaced it with one of her own without my mother's permission. In the intervening years, despite claims made by my mother, she has never received compensation or any rent for the use of this property.

A male member of the band lives with his non-native wife in Henry's other property on Mission Reserve. This is the place where I spent most of my time with my grandparents, in the house that Henry built himself. I have vivid recollections of my weekly visits there. I remember picking cherries from the trees in the front yard and when the lilacs bloomed there every spring. I will never forget the spectacular, million-dollar view of Vancouver looking south over the harbour from my grandfather's kitchen and balcony.

In 1988, pursuant to Bill C-31, my mother was reinstated as a registered status native and member of the Squamish Nation. She attempted to participate in programs and benefits provided for natives, which on paper she is entitled to do. However, in the 14 years since Bill C-31 was enacted, the Squamish Nation has not embraced her and welcomed her back, and despite her request to return to live on reserve, the band has not made provision for her to do so. For example, in 1989, 10 years ago, she applied for housing, but has not yet been allocated a house.

In January 1995, my mother made a formal inheritance claim to her father's property on Stawamus, but neither this property, nor Henry Baker's other property in North Vancouver, have been registered in her name. In December 1995, band council dealt with my mother's claim by passing a motion that states:

THAT Lot 7 Block E, Sketch Plan 244-01, Stawamus I.R. No. 24, reverts back to the Squamish Nation and Nona Lockhart be given first consideration of the Lot 7, Block E, when allocated a home in the future.

There are a lot problems with this motion. The words "reverts back to the Squamish Nation" suggest to me that this lot is still registered in Henry Baker's name but we are unable to access the band's records to confirm this. In fact, the words "first consideration" do not guarantee that this will be done, and "when allocated a home in the future," is again open-ended and non-committal.

In trying to understand why she has not been provided housing in 14 years, I wrote to John Watson of Indian Affairs with specific questions about government funds for the Squamish Nation housing program. Ernie Filzweiser, funding services officer, replied that:

I am not able to respond to your questions. The Department of Indian and Northern Affairs does for the most part not keep the information at the level of detail that you are requesting...

As a result of my concerns about these matters, and my wish that my mother live to see that she will be recognized, able to realize her property rights, and enjoy benefits that she is supposed to be entitled to, I have, over the past seven years, regularly attended Squamish Nation membership meetings. I have voted on motions before members and I am knowledgeable of issues I have been advised of by council. I have participated in cultural events as a volunteer and I have attended council meetings to speak on my mother's behalf, as she is an elder and she is handicapped, and it is increasingly difficult for her to travel.

I was advised by council that the Squamish Nation submitted its statement of intent in December 1993, in the treaty negotiation process, and that letters were submitted by Canada and British Columbia as evidence of their commitment to treaty negotiations. I was advised by council that part of the treaty process requires that ratification of the framework agreement, agreement in principle, and treaty must be obtained by council by presenting these documents to members for approval once they have been negotiated. I was also informed that an openness protocol was signed by Canada, British Columbia and Squamish in October 1995.

I was not advised by council, however, about the existence of Bill C-49, or that the Squamish Nation signed the framework agreement on February 12, 1996. I found out about Bill C-49 after I made inquiries to the office of my Member of Parliament, John Cummins, in October 1998, when a caller to a radio program raised concerns about consultation with municipalities in conjunction with proposed native land management legislation.

I had many questions about Bill C-49 and Bill S-14. In my letter of November 30, 1998, I sent my questions to council. I then asked John Watson of Indian Affairs, in my letter of December 8, 1998, if he could answer my questions. In a reply dated December 23, 1998, from Doreen Mullins, federal treaty office, she said, "Information on Bill C-49 will be provided in a separate letter."

To date, I have not received a separate letter from her, nor have I received a reply to my letter of January 31, 1999, which I sent directly to the Minister of Indian Affairs, Jane Stewart. Raymond Chan, Member of Parliament for Nona Lockhart, also brought my questions and concerns to the attention of Minister Stewart in his letter of March 12, 1999. However, neither my mother nor I have received any response from the minister.

In February 1999, Bill Williams of the Squamish Nation stated in a letter that "Squamish Nation is waiting until the Purposed Federal Legislation becomes a piece of federal legislation (law) before any effort to write the Land Codes."

Clause 45 states that the Governor in Council may, by order, add the name of a band to the schedule if the Governor in Council is satisfied that the signing of the framework agreement on behalf of the band has been duly authorized and that the framework agreement has been so signed.

In your examination of and debate on Bill C-49, I respectfully ask you to question the basis on which the Governor in Council was or would be satisfied that the signing of the framework agreement on behalf of the Squamish Nation had been duly authorized, when in fact it was not even provided to members for information.

I respectfully ask you to question the legal validity of the framework agreement when council was not mandated to sign it and members did not vote in a referendum, unlike some signatory bands, to indicate their participation.

I respectfully ask you to query why it is that, on the one hand, we have a treaty negotiation process in which a statement of intent confirms the mandate from the people to negotiate a treaty leading to ratification, by the membership, of the framework agreement, yet on the other hand, we have an agreement pursuant to Bill C-49 that was not ratified by the people nor even provided to them for information.

I was also not advised that the Squamish Nation went to Ottawa to support Bill C-49. Having read a copy of the transcript from the Standing Senate Committee on Aboriginal Peoples held December 2, 1998, I was shocked that representations regarding the future of the Squamish Nation, which will affect my position and my rights as a member, were being made on my behalf without my knowledge. I was stunned to learn that council has a list of projects totalling $1.3 billion in activity to develop Squamish Nation lands. I have never seen this list or been provided with information about these plans.

Harold Calla, in his testimony to you, said that the Squamish government is a council of 16, representing the 16 villages that amalgamated. This was true of the original amalgamation in 1923, but the days are gone when the election process ensured that each village was represented on council.

In your examination of Bill C-49, I respectfully ask you to consider and question the validity of this proposed legislation in the event that Squamish Nation villages opt out of the amalgamation, which would radically alter the makeup of the band and, I assume, bring into question any legal or business agreements or arrangements that might have been entered into. Some members have told me that they want to opt out of the amalgamation because they are not satisfied with the manner in which council is handling affairs, business, and administration of programs on their behalf.

Harold Calla, in addressing your committee, introduced his son and stated that "Jason is obviously a member of the Squamish Nation." I am of the same generation as Harold Calla, and both our mothers are returning Bill C-31 women who had married non-native men. My son, Maximilian Lundberg, is not a member of the Squamish Nation, and according to a letter dated February 25, 1999 from Indian Affairs, my son is not entitled to be registered under the Indian Act.

These facts are relevant to your examination of Bill C-49 because they are evidence of a pattern of discrimination against native women in terms of a significant property issue -- inheritance. If I were able to inherit my grandfather's property from my mother, I could not pass the land on to my son because he is considered to be non-native and a non-member. The only way I could have the same inheritance rights as all other Canadian women is if Bill C-31 were to be amended to provide for all descendants of native women to be made status band members. Bill C-31 fails because it only specifies that the children of the returning women are eligible for status and band membership, not all of their descendants.

Alternatively, if the structure of land holdings for natives were the same as for other Canadians -- in other words, if the land was held in fee simple -- then inheritance rights would be equal.

The question of testamentary disposition or succession of any interest in First Nation land is dealt with in clause 6(1)(c), but like the rules of property division on marriage breakdown pursuant to clause 17(1), the rules and process for these property issues would be established by a First Nation, and therefore native women would not automatically have the same property rights under Bill C-49 as all other Canadian women.

On the issue of native women's property rights on marriage breakdown, the Squamish Nation even intervened on behalf of all the signatory bands on the side of the federal government and against the B.C. Native Women's Society's lawsuit against Bill C-49 without informing band members. In view of this, I am absolutely convinced that native women's property rights will not be dealt with in a fair manner and will not be equal to all other Canadian women in a band's own land code under Bill C-49. I think it is shameful that as Canada approaches the millennium, native women are being legislated back into the Dark Ages and they are still having to fight for human and property rights that all other Canadian women possess and enjoy.

I am concerned that if Bill C-49 is passed, the power legislated to council pursuant to clauses 18(3) and 20 will supersede the band's own land code. I am concerned that clause 28(1) would legislate power to a council to expropriate land for First Nation purposes that are not defined, and that these legislated powers will render invalid my mother's claim by inheritance to her father's property. When Canada enacted Bill C-31, it gave the Squamish Nation the ability to return her father's property to her and to welcome her back to her band. Canada gave the Squamish Nation the power to end the legal and technical genocide of their own people who suffered as a result of the Indian Act. However, 14 years have passed since Bill C-31 was enacted, and the Squamish Nation has perpetuated the discrimination against my mother, not ended it. I do not hold out hope that by enacting Bill C-49, her situation and plight will improve.

I am concerned that clause 12(2), regarding approval of land codes and agreements, requires a minimum participation of eligible voters of only 25 per cent. In terms of the Squamish Nation, this represents approximately the number of members who are employed by the band, and in my experience of trying to participate in band business in a truly democratic fashion, this is another particularly worrisome clause.

Bill C-49 would give a First Nation the power to enact laws pursuant to clause 20, while remaining silent on Charter rights for both natives and non-natives on First Nation land. This causes me concern. Clause 20(3) deals with search and seizure, but does not specify the federal laws with which Bill C-49 should be consistent. Clause 23 says that in any court proceedings, a copy of the First Nation law appearing to be certified -- without any proof of the officer's signature or official status -- would be considered evidence that the law had been enacted.

I know of no other court proceedings in Canada where this would be the case, and in view of a Canadian Human Rights Commission decision in 1989, which dismissed the claim of Melva-Lynne Billy, a Squamish Band member, I question any proposed legislation that does not provide me with the same Charter protection that all other Canadians enjoy.

Section 67 of the Canadian Human Rights Act insulates Indian councils from complaints against decisions made under the Indian Act. In the federal court in this matter, the order dated October 7, 1994, stated "...that The Canadian Human Rights Commission was prohibited from investigating the complaint against the Squamish Indian Band Council".

In view of this systematic discrimination against my mother, Nona Lockhart, myself, and other native women, I am opposed to Bill C-49 and I respectfully ask you to consider the Squamish Nation's handling of returning Bill C-31 women as a precedent in your examination of this bill.

I am opposed to a bill that would give more power to a First Nation council that has not behaved responsibly in 14 years and returned a native woman's property to her. I am concerned that council powers of expropriation will displace many band members and that claims such as my mother's will just disappear.

As a status member, I consider Squamish Nation participation in Bill C-49 and the framework agreement legally invalid and not binding, as the criteria pursuant to clause 45 were not met because the signing of the framework agreement was not duly authorized on behalf of the band. I therefore submit that the Squamish Nation should be removed from the schedule of First Nations.

I respectfully ask you to consider, honourable senators, in your examination and debate on Bill C-49, that legally binding provisions that would restore, and in some cases even establish, human and property rights for native women, native men, and non-natives on First Nations land equal to all other Canadians, would be much better served through an openly debated treaty process.

Mrs Velma Baker: Honourable senators, I am very pleased to be here to speak on behalf of my people.

I do not know where to begin. I found out about Bill C-49 when Harold Calla was talking about how the Squamish Nation wants this and how the Squamish Nation wants that. It just blew me away. It tore me apart to see him speaking that way. He said that the Squamish Nation will do wonders for its people. They talk about how wonderful they will be for their people, but they are never there. They are always fighting against the people.

They say, "Oh, we took people out of the welfare lineup and put them in the stupid store to work." They say, "We took 80 people off welfare." For how many days? They maybe work for this store one day. Then, they do not care if they work at all again. That is how they are. They do not look after our people. They just keep saying "We will look after our people," but they are never there for us. They are always fighting against us.

We have to fight for our language, culture, education, and elders. I have petitions here from my people, saying, "We do not want Bill C-49." Has Harold ever brought any petitions to you and said this is what our people want? I do not think he has one petition. But this is what I brought for you today. I have so many people concerned about Bill C-49.

The Chairman: Would you consider tabling that with the committee?

Mrs Baker: Yes. I could have had more, but when I wanted to tell my people what was happening with this Bill C-49, our chiefs and council locked us out of all our recreation centres, elder centres, and learning centres. We had no place to meet. We could not even talk about it. That is how they work against the people. If you pass Bill C-49, I am telling you that it will ruin our people. Our people are just healing from the residential schools. If this bill goes through, you will bring them right back down to their knees, because they have been through having that land taken away from them and used for money.

I have some of my CPs here, which I own. If this bill goes through, what is the use of my having them? I am trying to will them to my children today, but I cannot, because if that bill goes through, I might as well just rip them up right here. I have seven of them to give to my children before I die.

I am telling you that this bill is not meant for the Squamish Nation. It will never work. Our people are suffering. I told them that the rich get richer and the poor get poorer. That is the only way I can put it. It is time to stop them from getting what they want. If this is the only way we can do it, let us do it. I know it will ruin my people and I speak for them. They always say that I am the leader and ask me to speak for them. I have much backing from the elders. Even the younger generation have come to me, but if you were to ask Harold and Bill if they have anybody backing them up, they would say no, because no one does. All they do is fight each other. We tried to organize a general meeting, and as soon as we called it, they cancelled it. We cannot hold a meeting. There is nothing we can do. They have the keys to these buildings. If we can prevent the passage of this bill, then I hope to make a better life for my people. I will give them back the gyms that belong to them. We cannot use them because they have the keys. They want to charge us $500 to $800 to use them. Where would we get $500 or $600 to rent a gym? We do not have that kind of money. Our kids are out on the streets today because those doors are locked against them. They cannot get in. If they want to use it, they have to pay $16 an hour. Where will welfare kids get that kind of money? We are just so tired of this going on and on. As I said, the rich get richer and the poor get poorer.

That is the only way to see it, I am sorry. We refuse to have this bill on our reserve because it will just bring us down. We are not very rich. They say we are the richest Squamish Nation, but I say, prove it to me. I never see any money. We have land claims here and there. Where does it go? I never see it. Every time we go to the band office and ask for some money, we are told that we are broke. We have no money. Yet they want a raise in their wages and the money comes just like that to them, but not to us.

We tried to get an audit done on our band finances. They would not allow it. They threatened our people that they will be cut back on this, and cut back on that. Our people become scared, because they do not know what to do. They threaten our people by saying, "If you do this, we are going to cut back the education; if you do that, we will cut back for language and we will cut back welfare." They want to cut back everything, but they never cut their own wages. They stay high. We get $32 million to run our Squamish Nation, and yet three months or seven months into the year, we are broke. I asked them, "Where does that money go? Why cannot you help our people, who are struggling so hard?" I am always up there fighting these chiefs and council. You call them chiefs, but to me they are not chiefs. I will never call them chief, because they are not my chiefs. A chief would be standing there with the people, not fighting against them.

Sorry if I sound rude, but that is how I see it and that is how I feel. A leader has to be a chief whom the people can respect. That is what they have lost. All the people who are supposedly working for us have lost respect for our own people. They treat them like dirt. I hope I will change that when I get back home. I guess that is about it.

The Chairman: Now are we free to go into questions?

Senator Perrault: Mr. Chairman, this is an excellent brief, well organized and well put together. If the allegations contained in this brief are accurate, we must be prepared to bring in appropriate amendments.

Have you any amendments to propose to the bill as it stands now, by section and subsection and so on?

Ms Lockhart Lundberg: You mean from our own band?

Senator Perrault: Changes. There are allegations of serious abuse here. If that is the case, we must be prepared, as legislators, to do something about it. If the allegations are not entirely accurate, it needs a legal analysis to investigate whether there is merit to the charges being made. I think this would make a first-rate book or long article. It is well done.

Ms Lockhart Lundberg: Thank you. I question the basis on which the Squamish Nation is included in the schedule of Bill C-49 pursuant to section 45.

Senator Perrault: It would be interesting to have a list of changes or amendments that you would like to see. That way, we can have a piece of paper in our hands. I certainly would take it to the Justice department and find out where they believe it stands, because we must not have a perpetuation of injustice.

Ms Lockhart Lundberg: I can draw up a list for you, if you like. However, over and above that, there is the fact that this bill went forward without it going to the people first.

Senator Perrault: You are saying there was inadequate consultation.

Ms Lockhart Lundberg: There was no consultation. I understand that some of the other signatory bands did actually hold referendums. If that is the case, and that is what the people in those bands want, that is fine.

Senator Perrault: Did you have a town hall meeting?

Ms Lockhart Lundberg: We had no meetings at all. I found out about it in October when I heard something on the radio. I phoned my MP's office and got information. They sent me a copy of the bill. I was shocked to see the Squamish Nation listed there because I had not been given any information about it by my own band. I have never participated in a vote on it. As I said, I have been a very responsible and diligent band member. I have attended meetings, council meetings, and cultural events.

Senator Perrault: You had no invitations to participate?

Ms Lockhart Lundberg: I have never been advised by the band council or a band member of any proposed legislation, the framework agreement, or Bill C-49 -- nothing.

Senator Perrault: I would welcome suggestions for specific changes that you think should be made to this bill.You have made a very moving appeal.

Ms Lockhart Lundberg: Thank you. Again, with regard to section 45, if ABC corporation wanted to merge with XYZ corporation, would the shareholders not have to approve that? In our case, there was no vote, no referendum, and no documentation. The people were not even given the information. As I said, in public we were told about a treaty process that we would have to ratify, while Bill C-49 was being negotiated in secret. The people knew nothing about it.

Senator Johnson: On a point of clarification, the Framework Agreement on First Nation Land Management goes back to the mid 1980s. Surely you were aware of this. You say that you knew nothing about anything that has happened since that time. It was signed three years ago.

Ms Lockhart Lundberg: I knew nothing about it and I am a diligent band member. I go to meetings. I have been trying to follow the issues and I have been trying to pursue my mother's property issue. I knew absolutely nothing about Bill C-49 and I would be prepared to swear an affidavit in a court of law to that effect.

Senator Johnson: Were you not aware of the Framework Agreement on First Nations Land Management, which was started in the mid 1980s?

Ms Lockhart Lundberg: No, not at all. I would swear an affidavit in a court of law that I knew nothing about it. One day I heard a radio talk show from B.C. on which a man from a municipality in the north said that he was concerned about how certain proposed land management legislation would affect municipalities. I wondered about that because I had never heard of such a thing, so I phoned my MP's office. They did some research and told me about Bill C-49.

Senator Wilson: We have heard from other witnesses before this committee about discrimination against aboriginal women. Your testimony supports that. Property rights in Bill C-49 seem to be centred around the issue of expropriation of land and what happens in case of divorce.

Ms Lockhart Lundberg: I am also raising the issue of inheritance.

Senator Wilson: If this bill were amended to make the practice of expropriation similar to expropriation of any other land in Canada, would that affect your property rights?

Ms Lockhart Lundberg: That ties in with council power.

Senator Wilson: My second question is related to this. You said that only 25 per cent of eligible voters openly debated the treaty process. Who decides that and how is the band council elected? Is there any movement toward reforming that?

Ms Lockhart Lundberg: That voting provision is in Bill C-49. We would have to fight with the band council to raise that to a proper level and make it a truly democratic process. That is right in Bill C-49.

Senator Wilson: How is the band council elected?

Ms Lockhart Lundberg: They are elected in a democratic process.

Senator Wilson: Therefore, you presumably have due process, under the democratic system, to influence them.

Ms Lockhart Lundberg: We try.

Senator Wilson: Amendments dealing with expropriation and property rights might not help with inheritance rights, but would they be welcome?

Ms Lockhart Lundberg: Some amendments would be welcome. However, I maintain that in the Squamish Nation, the people were not consulted before the framework agreement was signed. Therefore, I believe that it is invalid.

Some bands had a referendum. In previous testimony before this committee, there was reference to referenda and vote results. There was no vote or referendum in the Squamish Nation.

Although I said that the council is democratically elected, I believe that it has failed us by doing this without consulting the people. The treaty process specifically says that the membership must mandate and ratify every step of the way.

Senator Tkachuk: How many signatures are on that petition?

Ms Lockhart Lundberg: There are 250.

Senator Tkachuk: What is the population of the reserve?

Ms Lockhart Lundberg: The total population of the band is about 2,800.

Senator Tkachuk: Does that include children?

Ms Lockhart Lundberg: Yes, that includes everyone. The on-reserve/off-reserve split is approximately 50-50.

Senator Tkachuk: I am very surprised to hear that there was no consultation. We have been told that there was consultation with the membership. To be very clear, are you saying that there was no public event for the discussion of Bill C-49 with the members of the band?

Ms Lockhart Lundberg: We learned about this by accident. In the late fall of 1998, we started to inform some of our members. We started to write questions to the band and ask for information. We also wrote to the Department of Indian Affairs, but received no response.

We then learned about the upcoming debate in the House of Commons and we then started the petition. Before the bill was dealt with in the House of Commons in February, there was a community information meeting called by the band, but notice was not sent to everyone. That meeting was not recorded. There was no vote taken on whether the members wanted to participate in the process.

One meeting was attended by approximately 40 band members. A week later, there was another community information meeting. Again, not all band members were notified of the meeting. That meeting was not recorded. There were 40 to 50 people at that meeting.

Senator Tkachuk: Would meetings be advertised in the normal course of events? Although there may not have been individual letters to people, were there notices on public bulletin boards or in the local newspaper?

Ms Lockhart Lundberg: No. When band meetings are called, notice is sent by mail to every band member.

Senator Tkachuk: And that did not happen at all?

Ms Lockhart Lundberg: It did not happen before the framework agreement was signed in 1996 or when Bill C-49 was given first reading in the House of Commons. The only meeting that was called was in February. It was called "an information meeting" and notice was not given to everyone. For example, my mother did not get a notice. I happened to get a phone call on the day of the meeting, informing me that there was a meeting that night.

It was an informal information meeting and only about 40 band members were present. There was no vote. As I said, the vote had to come before Squamish entered into the framework agreement.

Senator Tkachuk: This question of property rights on reserves is a very complicated and ticklish question because of how the property is held. It is Crown land.

Ms Lockhart Lundberg: I understand that.

Senator Tkachuk: We, and perhaps the public, might better understand if you could explain how property is attained on reserve. When you acquire property on the reserve, do you purchase it or is it given to you?

Mrs Baker: The property was handed down from generation to generation. My grandfather, or my great-grandfather, cleared the land and worked it. It was his land. Then when he passed away, it would be signed down to one of his sons and so forth. It was always passed down.

Senator Tkachuk: Would it have been registered? Would there have been a title through the Department of Indian Affairs? Do they have a registration system?

Mrs Baker: Yes. I have the certificates of possession that I had got from DIA. However, today, our councillors will not let our people sign for these certificates of possession because they want the land to be band owned. We would not own the land. They want to have full control over the lands.

Senator Tkachuk: Are you telling us that they plan to prevent individuals from registering land and property with the Department of Indian Affairs and Northern Development so that they can obtain the property rights?

Mrs Baker: Yes.

Senator Tkachuk: If we went to the reserve in Squamish and had a hearing on this bill, would we get a good understanding of what the people prefer?

Mrs Baker: Yes. They would love to have you there.

Senator Adams: Where will we find a place to meet when they have the locked the community hall?

Senator Tkachuk: We would probably ask the band council for a meeting.

Mrs Baker: We could rent off the reserve. There is a big hall just off the reserve.

Senator Gill: You have expressed many problems that you are facing in your communities, and you are aware that there are many problems across the board. People try to discuss issues among themselves to find solutions to things that were managed before by people on both sides. The aboriginal world was managed before by Indian Affairs. Everyone managed except the people themselves. Many things need to be discussed.

The government, upon the suggestion of Indian Affairs, for example, passed Bill C-31. Someone else worked on the project of Bill C-49. Do you have no hope that something can be discussed among the Indians themselves, and aboriginal people can find solutions?

Ms Lockhart Lundberg: No.

Mrs Baker: Like I told my people, there are a lot of ugly words in Bill C-49. Perhaps one word would mean one thing to me, but to a white man it comes out 10 different ways. This is what frightens our people -- what is behind the ugly words.

Senator Adams: I would like to return to the discussion on property. You have a lot number. As soon as you acquire your land, no one can take it away from you. I do not know how the system works on the reserve, but any member of your band should tell you that you are entitled to that piece of property. How could you lose it?

Mrs Baker: My brother had a lot there. He was in jail and some people just came and took his lot and started building a home on it. They did not even ask him. We are going through the court system because this is what happens to all our people's land. They know it is yours, yet they have the gall to go and build these homes on it. That is how our chiefs and council behave.

Senator Adams: Are the community halls owned by the community?

Mrs Baker: It is band owned, but we do not benefit from it.

Senator Adams: You do not benefit from it. Why are they locked?

Mrs Baker: That is how they are. They want money, money, money. Like I say, money corrupts.

Senator Adams: The community should have some kind of budget to run it so that they do not run out of money. The place belongs to you. Why would they close it down?

Mrs Baker: I do not know. We do not benefit from it because only rich people can rent it. Only the rich kids can use it; the welfare kids cannot.

Senator Johnson: You have said that your son is on the council, but that there have been no discussions or negotiations that, in your mind, are adequate. How has that happened? Do you not communicate with your son? Is he not able to tell you everything that is happening?

Mrs Baker: Everything is supposed to stay in the council room. You do not discuss anything further when you are out of the council room. Your power is only in that room.

Senator Johnson: You have meetings every month. You are saying, nothing leaves the council room so there are no further discussions?

Mrs Baker: I would not want to ask my son about these things because it is not up to him. It is up to the chief and all the council to talk to the people, not just one of them.

Senator Johnson: It would be helpful if you did communicate.

Mrs Baker: What do you think we have been trying to do?

Senator Adams: When nobody asks them, how do you communicate your opinion?

Senator Johnson: You communicate by consultation.

Ms Lockhart Lundberg: If you look at the document annexed to my presentation as "S," you will see it is a letter from Bill Williams in which he states that it did not go to the people. Those are his own words.

Senator Perrault: It is good material.

Senator Johnson: In that respect then, I refer you to clause 10(2) of Bill C-49, which provides that: "Every person who is eighteen years of age or over and a first nation member, whether or not resident on the reserve of the first nation, is eligible to vote in the community approval process" for the First Nation land code and individual agreement.

Clause 12 of the bill sets out various methods for obtaining community approval and requires that a minimum of 25 per cent of eligible voters must vote to approve a proposed land code and individual agreement. That is in the bill itself.

Ms Lockhart Lundberg: I still question the legal validity of this document on the basis of clause 45. It did not go to the people before they signed the framework agreement and before Bill C-49.

Senator Johnson: Creating a land code is no authority.

The Chairman: Thank you for your presentation. You do not give us much comfort in terms of where we go from here.

We are finding that there are many problems in regard to the position of women in general. All Bill C-49 does is give the band council the flexibility to be able to deal with the question of land. They do not have that now. That rests in the hands of one minister today. They are trying to empower themselves.

You elect those people and you can vote them out if you are not happy with them.

Are you saying that you do not want Bill C-49, even though it goes a certain distance toward improving on the Indian Act?

Ms Lockhart Lundberg: I am saying that for the Squamish Nation, the agreement should go to the people first. The people should vote in a referendum, like other signatory bands, to determine whether they want to enter into the agreement.

I feel that Bill C-49 is flawed in many areas.

The Chairman: Are you saying that the Squamish Nation should not opt in right now?

Ms Lockhart Lundberg: Right.

The Chairman: You believe that the leaders should consult with their people and fully explain the contents of this bill.

Ms Lockhart Lundberg: Yes.

The Chairman: Do you think if that is done, the bill will be welcomed by the community?

Ms Lockhart Lundberg: Yes.

The Chairman: They could then consider opting into the process later on.

Ms Lockhart Lundberg: Yes, in a proper manner.

Senator Andreychuk: If that is not possible, then are you happier remaining under the dominance of a system of white man's rule, which we continue to hear you do not want?

Ms Lockhart Lundberg: Under the Indian Act?

Senator Andreychuk: Yes.

Ms Lockhart Lundberg: Yes.

Mrs Baker: We would rather stay there.

Ms Lockhart Lundberg: Until there is a proper, publicly discussed treaty process.

The Chairman: Including the overall problem with women's rights.

Ms Lockhart Lundberg: Yes.

The Chairman: Even if stand-alone legislation might have to be written.

Ms Lockhart Lundberg: Yes.

The Chairman: Thank you.

Our next witnesses, honourable senators, are representatives of the Lower Mainland Treaty Advisory Committee and the Union of British Columbia Municipalities.

Please proceed.

Ms Nancy Chiavario, Chair, Lower Mainland Treaty Advisory Committee: Honourable senators, thank you for the opportunity to speak to you this evening on local government concerns regarding Bill C-49, the First Nations Land Management Act.

Before I begin, allow me to introduce the organizations represented here this evening and the members of those organizations who are part of our delegation.

Collectively, we represent the Federation of Canadian Municipalities, the Union of British Columbia Municipalities, the Lower Mainland Treaty Advisory Committee, the Fraser Valley Treaty Advisory Committee, and the Lower Mainland Municipal Association. Co-presenting with me tonight is Mayor Don Bell of the District of North Vancouver. Mayor Bell is an executive member of LMTAC and is the local government representative at the Tsleil-Waututh treaty negotiating table. He is also an executive member of the Lower Mainland Municipal Association.

Also presenting this evening in partnership with the LMTAC is Mayor John Les, representing the Union of British Columbia Municipalities and the Federation of Canadian Municipalities. Mayor Les is past president of the Federation of Canadian Municipalities, current Chair of the Fraser Valley Regional District, Mayor of the District of Chilliwack, and a member of the Fraser Valley Treaty Advisory Committee.

Also with our delegation this evening is Councillor James Coleridge from the city of White Rock, who is Chair of the Lower Mainland Treaty Advisory Committee's communications subcommittee. Mr. David Didluck is LMTAC's executive director, and Ms Robin Tourangeau is a policy analyst with the FCM.

After my opening remarks and some commentary on our key concerns regarding Bill C-49, Mayor Bell will provide an overview of our proposed amendments and make some concluding remarks. Following Mayor Bell, Mayor Les will highlight some of our shared concerns from the UBCM and FCM perspective.

In short, we have come here together to collectively express specific local government concerns regarding Bill C-49 and to present some suggested amendments to the bill. I understand that copies of these prepared amendments were already provided to you by the committee's clerk. However, we wish to submit another copy, along with our speaking notes, for the official record at the end of our presentation.

Let me begin by providing you with some context for our presentation. The Lower Mainland Treaty Advisory Committee works to represent and coordinate the interests of local governments and their constituents in the lower mainland treaty negotiations.

LMTAC is comprised of 23 municipalities and three regional governments and acts as a full member of the provincial negotiating team. Our role is to provide advice from a local government and community perspective on aboriginal and treaty negotiation issues and to assess the post-treaty impacts of aboriginal policy on local communities.

As chair of LMTAC, and as a member of the UBCM Aboriginal Affairs Committee, I am here to express the collective concerns of local government regarding Bill C-49.

Let me emphasize that LMTAC is not here to oppose the replacement of the current land management provisions -- sections 53 to 60 -- of the Indian Act, nor do we oppose the principle of aboriginal self-determination. Rather, it is our belief that Bill C-49 establishes rules and procedures for creating land codes without due consideration for growth management and land use, which are of critical interest to local governments and their constituents. In short, we believe some of the current provisions in Bill C-49 do not work to improve or enhance local government and First Nation cooperation, but rather, could further the divisions between us that are currently set out in the federal Indian Act, divisions which the British Columbia treaty process is attempting to address.

Furthermore, given that there already is a comprehensive treaty negotiation process under way in British Columbia to deal with issues like land and land uses, the application of Bill C-49 appears to be creating a parallel process to those negotiations.

We believe that some reference to the B.C. treaty process is needed in the bill to clarify the link between that process and the rights and responsibilities transferred to First Nations under Bill C-49. In short, a provision needs to be added to the bill to clarify how the development of the land codes are linked, or not linked, to the B.C. treaty process, and whether these codes will have any force or effect in the post-treaty environment. In the B.C. treaty process, for example, local governments act as full members of the provincial negotiating team and provide advice on treaty proposals, but under Bill C-49 as it stands now, there are no provisions for local government or neighbouring community input into the development of the land codes. Honourable senators, these are serious issues for local governments. We thank you in advance for giving due consideration to these concerns.

I will now ask Mayor Don Bell to speak to specific proposals we have prepared for Bill C-49.

Mayor Don Bell, Lower Mainland Treaty Advisory Committee: In the interests of time, and recognizing that UBCM's presentation will raise concerns that are shared by the LMTAC, I will focus primarily on two specific concerns regarding Bill C-49. First, the bill provides no requirement for a First Nation to consult with neighbouring local or regional governments on the development of the land code or on land-use decisions made pursuant to the code. This lack of a consultation process with neighbouring jurisdictions affected by the land codes stands in sharp contrast to existing consultation requirements between municipalities and regional governments under British Columbia's Municipal Act and the Ontario Planning Act. In B.C., the act requires local governments to refer their land-use plans to the boards and councils of adjoining regional governments and municipalities for comment. If a proposed plan affects those municipalities, it provides the adjoining municipality, not with a veto, but rather with an opportunity to become informed and to comment prior to a land-use decision being finalized. The B.C. Municipal Act, section 855.2, also requires the board of a regional government to develop a regional growth strategy, and to adopt a consultation plan that provides opportunities for early and ongoing consultation with citizens of that area, affected local governments and boards, and, specifically, First Nations. I have additional information, received late today, which refers in more depth to the Ontario legislation.I will send it to you later, as I was not aware of it before. I now have more information. I will send this as a supplementary package for your information. Suffice it to say, the Ontario legislation appears to be even more extensive than that of B.C.

We recognize that not all provinces have legislation requiring consultation by adjoining jurisdictions on local land-use issues, and not many make reference to consultation with adjoining First Nations. However, we suggest that this principle, which speaks to the concept of providing an opportunity and a process for informed comment from those who will be affected by proposed government land-use legislation, should be included in this landmark Bill C-49. In addition, the recent decision of the Supreme Court in Delgamuukw further reinforces the requirement and necessity for meaningful consultation between First Nations and existing governments.

Consultation with affected parties is a critical and fundamental principle of local governments. Land-use decisions on reserve lands can have a significant impact on neighbouring local governments, particularly in urban settings such as Greater Vancouver, where there are currently 21 reserves.

As such, Bill C-49 should give consideration to reserves located adjacent to urban centres and not deal solely with those in rural contexts. Second, we recognize and appreciate that Bill C-49 is attempting to devolve the responsibility for land management to the local aboriginal community. However, the bill contains no requirement for mechanisms to address and resolve disputes between adjacent jurisdictions, particularly when those disputes involve land use, and the servicing, infrastructure, fiscal and planning issues connected to that use. The only reference to dispute resolution in the bill centres on disputes between a First Nation and the Minister of Indian and Northern Affairs, not neighbouring local governments. I would also like to acknowledge that consultation must be a two-way process. The land-use decisions of a municipality can have an impact on reserve lands as much as decisions on reserve lands can have an impact on a municipality. As such, we suggest that the principle of reciprocal consultation be added to the bill. Our amendment in section 20(5) of the material we have provided proposes that a First Nation law only be referred to an adjacent local or regional government in cases where the provincial law governing land use by an adjoining local government requires notification of the First Nation in equivalent circumstances.

You will also notice that our suggested amendment at 6(1)(n) calls for a mechanism to assist local governments and First Nations in resolving their disputes. We have not elaborated on the specifics of this mechanism, but would offer and request our involvement at the bill's regulatory stage, when such a mechanism would be developed.

As a result of the concerns I have just outlined, the Lower Mainland Treaty Advisory Committee, in conjunction with the Union of British Columbia Municipalities and the Fraser Valley Treaty Advisory Committee, has developed a list of draft amendments to the bill that have been endorsed by the executive of the Lower Mainland Municipal Association. I urge you to consider these amendments.

To better assist the Senate committee, we wish to present you with a detailed briefing package for your review and consideration. This package includes five documents. One outlines the proposed amendments within the context of the overall bill; another, companion document summarises the amendments according to the priority with which local governments believe they need to be addressed; a copy of LMTAC's and UBCM's speaking notes; and a letter of support from the Federation of Canadian Municipalities.

Thank you, Mr. Chairman and honourable senators, for your time. I would now like to introduce Mayor John Les, who will speak to FCM and UBCM's position on Bill C-49, and will also make some comments on the inconsistencies in the bill regarding environmental protection. We will then answer any questions you may have.

Mayor John Les, Union of British Columbia Municipalities: It is a pleasure and an honour to be here this afternoon to present to you on this very important piece of proposed legislation. Thank you for making this opportunity available. I am here on behalf of a number of organizations: the Fraser Valley Treaty Advisory Committee, and the Union of British Columbia Municipalities, of which I am a director. I am also the mayor of the District of Chilliwack, a community of 70,000 people that has eight Indian reserves within its borders and three adjacent to it.

Three years ago, I was president of the Federation of Canadian Municipalities, a national organization that represents some 700 municipalities from coast to coast. At its recent board meeting in Victoria, that organization unanimously endorsed the positions and principles we are putting before you today.

I am a member of the aboriginal affairs committee of the Union of British Columbia Municipalities, which was involved in negotiating the 1993 memorandum of understanding that provided for local government participation in the treaty process in British Columbia through membership on provincial negotiating teams. As a member of the Fraser Valley Treaty Advisory Committee executive, I sit as a participant at the only treaty table intergovernmental affairs working group in B.C., where we are exploring, with Canada and the In-SHUCK-ch N'Quat'qua First Nation, how to ensure that relationships between local governments and First Nations are productive and meaningful in the post-treaty era.

My primary purpose in addressing you today is to recommend changes to this bill that will more adequately meet the interests of the entire Canadian population and the many municipalities and local communities within our country. It is my hope, and firm conviction, that the changes we are recommending can, and should be, acceptable to the First Nations involved. These amendments are also endorsed by my colleagues who spoke earlier this evening.

First, I would like to emphasize that our local government is committed to building stronger relationships between First Nations and local governments. Forty-five Indian reserves are located within municipal boundaries in British Columbia, and many others are located in electoral areas of regional districts. There is a level of interdependency and interconnectedness between these communities that is not always found in the rest of the country, although I am well aware of Saskatoon and the Muskeg Lake First Nation, where they have a very productive relationship.

Residents of both aboriginal and non-aboriginal communities often share commercial shopping and recreation facilities that are regulated, and in some cases owned and operated, by local governments. Non-aboriginal residents also work side by side with aboriginal people in their local communities.

We have a vision for aboriginal-local government relations, and it involves aboriginal self-government. We appreciate that these intergovernmental relations between our communities are, in some cases, very sophisticated. Sometimes they are strained and sometimes they are more harmonious, but there is generally reason for optimism that the foundations for good relations can be, and are being, developed.

No government can operate in a vacuum and we in local government emphasize the tangible interface between municipal and aboriginal interests. Also, local governments have for years entered into service agreements with neighbouring bands for a wide variety of necessary services. There are, in fact, over 100 servicing agreements between local governments and neighbouring Indian bands in British Columbia alone, covering roads, water, sewers, libraries, schools and policing and more. It is at the local community level that aboriginal self-government will be realized. Once the dust has settled and the feds and the province are gone, we will have to make it work at the local level. We prefer to be partners in the process to ensure that this new form of local government is developed and implemented with foresight and harmony.

We are the level of government closest and most accountable to our constituents. We have a responsibility to ensure that, when government powers are delegated to First Nations, appropriate measures are taken to ensure compatible and harmonious regulatory and governmental structures. This must not be an afterthought. It is essential that federal legislation be drafted in such a manner that the progress already made in establishing positive and harmonious relationships with aboriginal peoples and their governments not be impeded or destroyed inadvertently.

We are not disinterested bystanders on the issues at stake in Bill C-49. After all is said and done, cooperation and coordination between First Nations and local governments will play an important role in ensuring that Bill C-49 works.

We agree that First Nations should have the ability to opt out of the land management provisions of the Indian Act, but again, we have concerns regarding Bill C-49. We hope that this committee will give serious consideration to the changes that we will propose today. We believe that these changes are necessary to address our concerns.

We have four major concerns. The first one is really an editorial comment. In British Columbia, we have the B.C. Treaty Commission process. We believe that this bill creates potential confusion in situations where land management agreements are being implemented at the same time as self-government authorities are being negotiated through that process.

Our second concern is that there has been no consideration given in the bill to mechanisms for the harmonious evolution of intergovernmental relations between neighbouring First Nations and local governments.

Third, the bill contains unnecessarily broad expropriation powers that can be exercised in relation to local government interests.

Fourth, additional First Nations may be granted Bill C-49 authority without parliamentary review or notification of other levels of government.

These concerns with the bill have been communicated by the Union of B.C. Municipalities to the federal government on numerous occasions over the last several years. Director Jim Abram, Chair of the committee and a table officer of the UBCM, and UBCM staff, have been meeting and exchanging correspondence with officials from the Department of Indian Affairs and Northern Development, and with representatives of the Chiefs' Land Advisory Board, since 1996, shortly after the framework agreement was signed. During the ensuing years, our concerns have been consistently voiced.

It was unfortunate that the UBCM's recent support for a reciprocal consultation agreement with five B.C. First Nation signatories was referred to by some members of the House of Commons in support of Bill C-49, with no reference to our long-standing concerns. In addition, Mr. Abram has asked me to clarify comments made by Mr. Robert Louie when he led a delegation to this body on April 20, 1999. Mr. Abram, as stated by Mr. Louie, very definitely supports the reciprocal consultation agreement, but he also strongly supports inclusion of that principle in Bill C-49.

The importance of the first concern cannot be underestimated. All five B.C. First Nation signatories to the framework agreement are involved in the B.C. Treaty Commission process. The integrity of that process can be undermined if a perception develops that First Nations can get what they want through other channels on an à la carte basis. The BCTC process is the best chance we have in British Columbia for resolving issues relating to aboriginal rights and title. The process is important in maintaining social harmony and creating sustainable development in many regions of the province. These are important things for all Canadians, aboriginal and non-aboriginal alike.

Therefore, it is our opinion that initiatives which create disincentives for First Nations to engage in treaty negotiations are not in the best interests of Canadians generally. The B.C. government has stated on a number of occasions that Bill C-49 has the potential to create just such a disincentive. UBCM concurs with the province's assessment in this regard.

You will note in the documentation that we have provided that we have not suggested any amendments to the bill to address this concern regarding the BCTC process. This is simply because the concern goes to the very root of the proposed legislation. However, the bill might better meet the interests of local government if some of the following concerns were adequately addressed.

As I have previously mentioned, we have provided wording for a number of suggested amendments to the bill relating to intergovernmental relations, expropriation, and notification and voting. The suggested amendments are contained in the documentation you have before you.

I do not intend to describe each of the suggested amendments in this presentation. My colleagues and I look forward to answering any questions that you may have regarding the specific amendments, and my colleagues from the Lower Mainland Treaty Advisory Committee have already provided greater detail in their presentation.

I will make one or two comments relating to dispute resolution and expropriation. As you will note, in our second amendment, we have included suggested wording for a change that would require a land code to contain a mechanism for resolving disputes between neighbouring jurisdictions in respect of land-use issues. The bill is entirely silent on resolution of disputes where conflict or incompatibility arises between a land use on First Nations land and land uses in adjacent jurisdictions. It is completely unrealistic to suppose that these kinds of conflicts will not arise, and it is bordering on irresponsible to delegate land management powers to First Nations in an urban or semi-urban region without addressing this important issue. We acknowledge that this issue is very difficult, but it must be addressed. It does a great disservice to everyone concerned simply to ignore it.

I believe that our suggested amendments in relation to expropriation are self-explanatory. We are concerned about the prospect of First Nation expropriation of local government interests on reserve lands. Clause 28 of Bill C-49 stipulates that a First Nation can expropriate any interest on its land, if necessary for community works or other First Nation purpose. The bill specifies that fair compensation must be paid according to rules set out in the Canada Expropriation Act.

Only interests obtained by way of expropriation by Canada and subsequent transfer to the province or a local government under section 35 of the Indian Act are exempt from expropriation by a First Nation under the bill. Local governments have many interests in reserves created in other ways. Water mains and sewer treatment plant infrastructure through the Capilano Indian Reserve in North Vancouver are a couple of examples of local government interests. With a bit of research, I could come up with quite a few more. We believe that local government interests ought to be expressly excluded from the expropriation power.

Furthermore, the expropriation power contained in the bill is considerably broader than that delegated to local governments in the B.C. Municipal Act. I refer specifically here to the ability to expropriate interests in reserves for community works or other First Nations purposes. This clause is brand new and has never been judicially considered. We believe that either the words "or other first nation purpose" ought to be deleted, or that the purposes ought to be exhaustively listed in the bill.

In our opinion, it would not be inconsistent with the framework agreement to list other First Nation purposes exhaustively, rather than expressing this category in exactly the way it is expressed in that agreement. Clause 28 introduces an unacceptable level of uncertainty on the extent of the First Nation expropriation power.

Regarding environmental protection, we are concerned about ensuring that environmental protections in provincial legislation will apply to lands covered by this bill. Amendment 9 on page 3 of our documentation contains suggested wording to address this concern. As it currently stands, clause 21(2) does require that First Nations environmental standards be at least equivalent to provincial standards. This reflects a similar provision in section 24.5 of the framework agreement. However, there is a jurisdictional problem that has the potential to defeat the intent of the agreement in this regard.

Clause 40 of the bill states that federal environmental standards prevail over First Nation standards in the event of a conflict. The effect of this provision is that federal standards regarding any particular environmental subject matter on lands subject to a land code would prevail over provincial standards dealing with the same subject matter. Higher provincial standards would, in effect, be irrelevant and First Nations would not be bound to meet or beat those standards. This could not have been the intention of the drafters of the bill. It appears to be a technical oversight in drafting that definitely ought to be remedied, especially since Bill C-49 and the framework agreement both state that the First Nation signatories have agreed to meet or beat provincial standards.

To conclude, we believe that our suggested changes to Bill C-49 are reasonable. They are necessary to ensure that sound intergovernmental relationships will continue to develop between First Nation signatories to the framework agreement and the neighbouring local governments.

Senator Pearson: That was a very interesting presentation. You are right that in the real word, we are living next to one another and we must find ways of getting along.

I am curious about the practice up to now. To what degree have municipalities made a point of consulting with the First Nations within their territory? Has that been a common practice?

Ms Chiavario: I will comment first from the perspective of a City of Vancouver councillor. We have been extremely remiss in consultations because there was no requirement to have them. All be it, we do advertise all of our meetings, and certainly anyone from the reserve or First Nations is welcome to come when we hear from delegations. We have certainly come to understand that there needs to be more attention paid to expressly seeking to meet with the band councils.

Our term of office in B.C. is three years. During the current term of office, we have, on two occasions, had the opportunity to go to the Musqueam Reserve and speak with the band council on some issues. That was not a practice in the past.

Senator Pearson: In the process of preparing for this session, have you been consulting with some of the aboriginal people?

Ms Chiavario: We have had several opportunities to hear, by invitation or by request, from some of the First Nations. Chief Bill Williams and others from Squamish were recently before the lower mainlands committee. Mayor Les could speak from UBCM's perspective. They were involved in our last convention and have had discussions through their aboriginal affairs committee.

Mr. Les: It is generally accurate to say that the level of interaction and cooperation between aboriginal and non-aboriginal governments has moved forward tremendously over the last number of years. In 1989, for example, Indian bands were given the power to levy local taxation. In some ways ominously similar, we found out about it several years later. At that point, there had been little interaction. Certainly speaking from my area, we did not know of the change until two of the bands announced that they now had those powers and we were out a few hundred thousand dollars a year in taxation revenue. We thought that was real cute, but we still provided municipal services and it was necessary to talk about it. It took a few years of head knocking before we had the agreements hashed out.

Since that time, other agreements have come much more readily and easily. The communication has been established.

In terms of Bill C-49, the process may be somewhat easier. However, as I said earlier, we must ensure that the mechanisms are in place. There must be minimal standards of performance to ensure that in fact appropriate consultation does occur.

The fact that municipalities have been remiss for many years does not justify another wrong in an attempt to make the situation right. We have to do a better job at communicating. We have always been required under the Municipal Act to publicly announce and advertise public hearings on land-use issues. There is a new provision in that act for regional growth strategy legislation, specifying that First Nations notification is required.

Mr. Bell: The First Nation members who live within municipal boundaries are considered residents and have the right to participate in local elections and school boards. There has been at least one board member from the Squamish Band in North Vancouver. Chief Philip Joe is here today as a member of the North Vancouver school board.

The municipality has invited both the bands to become members of our advisory planning commission on zoning issues to help develop our community plans. We have had specific task forces, the most recent one being a waterfront task force, in which we invited them to attend as members and contribute to the planning that deals with the community at large.

We need to address this even more. We are required by the Municipal Act to publicize, within a certain time period, when the municipalities are considering a bylaw. It must be publicized in newspapers, which are widely distributed. A section of the B.C. Municipal Act requires that regional governments notify First Nations specifically when adopting their regional plans. In the section that deals with municipalities, we have to notify adjoining municipalities. If you reverse it, the reality is that we have to adopt official community plans that are consistent with the regional plans, and then write bylaws that are consistent with community plans, and hence with regional plans. We cannot adopt anything that is at variance. Therefore, what we do is consistent with First Nations having to be notified. Ontario has even more extensive requirements for notification at a variety of levels. These two provinces are on the leading edge of consultation. It is certainly the trend, and the expectation, that if we are to get along together in the post-treaty and post-Bill C-49 environment, we must have clearly established lines of communication -- not a veto, but a way to communicate.

We are not against the concept of self-determination that has been proposed in Bill C-49. We are saying that we must get along as good neighbours.

Senator Perrault: There has been some excellent material provided to us. I would like to return to communications. We have been talking about bargaining and negotiating in good faith and with goodwill. Was your organization consulted during the drafting of the Framework Agreement on First Nation Land Management and/or Bill C-49? If so, what was the response to any concerns raised? If not, is it your view that LMTAC should have been consulted, and for what purpose?

Ms Chiavario: I can speak from the perspective of the Lower Mainland Treaty Advisory Committee. When the previous bill was tabled and then resurrected as C-49, it was quite by accident that we and the Union of British Columbia Municipalities discovered that it was back on the table under another number.

We learned that during the month of September 1998 at a convention. We scurried around trying to find out what the province knew. They seemed as surprised as we were. We spent two and a half to three months trying to obtain information from Ottawa. Through the UBCM and ourselves, over that time, we managed to get some information. By then, it had passed third reading. Therefore, we contacted the Senate to see if we could make some presentations here.

Senator Perrault: The LMTAC letter states that Bill C-49 is "perceived by local governments as a parallel process to treaty negotiations." Would you explain this perspective to the committee more fully? Does this statement suggest that it is your view that the land management initiative in Bill C-49 is incompatible with the treaty process?

Ms Chiavario: It would not be incompatible if the issues we put forward in suggested amendments were dealt with, particularly the issues to do with consultation. Again, I refer to the fact that we have been very strong in saying "reciprocal."

The B.C. Treaty Commission process is dealing with the same issues. As I said at the very beginning, there must be something that references how the act either does or does not fit with future treaties.

Senator Perrault: Mayor Bell happens to be mayor of the area where I live, and a good one too.

Mr. Bell: Good area or mayor or both?

Senator Perrault: You talk about improving consultative procedures across the country. That is good news. What is the current practice with regard to consultation and agreements on matters of mutual concern? Do municipalities in your organization regularly consult neighbouring First Nations on matters that may affect them? Conversely, do First Nations regularly consult municipalities about decisions that may affect them? Does it vary from one part of the country to the other?

Mr. Bell: It varies from jurisdiction to jurisdiction. I suspect that where a First Nation deals with more than one municipality, the relationship may vary among those municipalities, and where a municipality has more than one First Nation with which to deal, again that interaction may vary.

Senator Perrault: Are you encouraged by the process?

Mr. Bell: It is improving. I indicated where we have taken steps as a municipality over the years to include the two First Nations on the north shore in our advisory committees. They have not been particularly active, even though we have encouraged them. I think they felt they did not have the resources to make people available for that. Certainly the kind of discussion that is going on because of the treaty process right now is more intense. We have concluded servicing agreements in the past with Squamish. My municipal staff have had some discussions with them regarding the more recent issues, but there has not been the same degree of formal communication.

The Squamish representatives came to us two years ago and indicated they would like ongoing dialogue. We felt it was a good idea, but it has fallen by the wayside. There are ways to improve it, and that is why the principle needs to be enshrined in the bill. Leave the details to the smaller reciprocal agreements, but the principle needs to be in there, indicating that it is a requirement.

Senator Perrault: You want a strong statement right in the bill itself.

Senator Austin: I welcome my fellow British Columbians. Thank you for your presentation. It raises interesting points.

On the issue of expropriation, we have heard a number of representations with respect to the wording in Bill C-49. As the material you have given us today says, and as Mayor Les said, it is a use of language which has not been traditionally tested. Can you tell us what rights of expropriation exist under the Municipal Act, or any other act that applies to municipalities in British Columbia? What are you entitled to take private lands for?

Mr. Les: Generally speaking, we are entitled to take lands for public purposes. Road widening, for example, is probably the most commonly used form of expropriation. I have been involved in local government for 16 years, and our council has never used expropriation in that time. I would suggest that in most areas, it is a seldom-used tool to effect the aims and objectives of local government.

With the rewrite in British Columbia some years ago of the expropriation legislation, it will cost you a lot of money to go that route. You tend to avoid it. When you go to bargain, you are normally looking at a 15 per cent to 25 per cent premium in terms of the value of the land, but that is still cheaper than going to court.

I would say road widening in particular is probably the area where expropriation is most often used.

Senator Austin: I will give you a hypothetical question. I know political people love to be asked this kind of question.

Consider, for example, a situation in which you have 10 private owners of street-front stores. A major developer comes along and says, "I have been trying to buy those properties, but the two in the middle will not sell. I need the two in the middle. I will be investing hundreds of millions of dollars and creating 1,000 jobs. This will be fabulous." Could council expropriate those two properties in a situation like that?

Mr. Les: I suspect that tool might be legally available to a council, but politically, I would never do it. I think that would be an unjust interference in the affairs of a private property owner. If there is not a direct public interest served by the expropriation of the land, I would argue it is inappropriate. That is my personal view. I did say earlier that legally, there is very likely the ability to proceed on that basis. Perhaps my colleagues would like to comment.

Ms Chiavario: In Vancouver 12 years ago, when the expansion to the Vancouver General Hospital was in the planning stage, a dear lady had a house on the property where the multi-level parking lot was to be built. She refused to sell. This was under the jurisdiction, for all practical purposes, of the province, with some relationship with the GVRD. The city suggested, and the other levels agreed, that we should let her live out her life there. The project was built around her little house. She remained there for a few years after the construction. After she passed on, the land was purchased and the house demolished. It is now just a small public area.

Senator Austin: It could have been expropriated if the decision were made to do so?

Ms Chiavario: It would be by the province, in that case.

Senator Austin: Perhaps only Senator Perrault and I are old enough for this recollection, but at a location called Granville and Georgia, a mayor by the name of Tom Campbell expropriated property against the will of shop owners in order to build what is now the TD Bank building, the buildings across the street, the Four Seasons hotel, and so on. It was quite a municipal brouhaha at that time.

Ms Chiavario: Some of us did not agree and do not agree with the fact that Granville Street was closed off and turned in a mall but does not function like a mall. I regret to say I was paying little attention to Mayor Campbell, other than during the Gastown riots, when I was a hippie and had him come at me on his horse.

Senator Austin: I am trying to make clear that these powers do exist. The question is whether these commercial developments are for community purposes. We are struggling with this because these powers are offered under Bill C-49, or may be offered under Bill C-49, depending on the interpretation. There is an old saying: mutuality is equity. If the municipalities and the provinces have this power, certainly it would be equitable to give the same powers to the bands whose lands these are, for their economic management. Do you have a view on that?

Mr. Bell: Senator, collectively, we have a number of years of experience in municipal government. This is my 25th year of involvement. In 25 years, I only recall one expropriation, and that was for a fire hall. We needed to enlarge a fire hall in North Vancouver. There was a holdout, and we had to expropriate that property for that purpose.

In some instances we have exchanged road allowances. Another vehicle in the Municipal Act is called "replotting," whereby people can be given land of value within a particular area for development.

The difference between Bill C-49 and that power is that there is legal recourse. There is available a legal challenge to the municipality's powers. People can go to court.

There was an instance where a piece of land was to be expropriated for a park on the Capilano River. The expropriation bylaw was passed. At the compensation adjudication, the compensation offered by the regional district was rejected by the landowner as being inadequate. It went to court and the court agreed it was inadequate. The court ordered a higher amount, and the GVRD ended up walking away from the expropriation.

Again, the difference is that a legal challenge is available. That is not available, as we see it, under Bill C-49. We have talked about this dispute resolution mechanism.

Senator Austin: It is not available because you do not see an appeal process in the bill as it exits today.

Mr. Bell: We do not see a dispute resolution process.

The second aspect is that, if you read the wording in Bill C-49, it states that a "band purpose" is a purpose in the opinion of the band. We believe that those uses should be clarified. There are many legal precedents in the case of municipal decisions as to what constitutes public use, such as road widening and fire halls. I suggest that a decision to expropriate to facilitate development may not stand up. Councillor Chiavario has mentioned many examples. Often in a municipality a piece of property is not developed because there were holdouts and the development would have had to go around them, so they have moved them for the sake of advancing the development.

Senator Austin: I should like to move away from hypothesis and ask a specific question.

In Chilliwack or West Vancouver, the districts you represent, are any Squamish lands or other lands subject to this legislation, interests of your municipalities that you think might be acquired by expropriation under Bill C-49?

Mr. Bell: There is the possibility of some municipal interest, particularly as was mentioned by Mayor Les, in terms of water and/or sewer facilities or right-of-ways.

Senator Austin: What about parks that could be taken for economic development? Can you think of examples? There is one in West Vancouver that I am curious about.

Mr. Les: We are getting into a murky area. This issue of parks has arisen in the treaty process because there are various tenures under which municipalities hold parks. In some cases, parks that were municipal parks for 100 years are still held by the provincial Crown, for example. In other cases, the municipality holds direct title to the property. The answer to that question will vary depending upon a whole set of circumstances. We would really have to start hypothesizing if we are to get into that.

Senator Austin: I am not trying to solve problems. I am merely attempting to see if we have them.

With respect to the question of consultation, is it as serious as you have presented? If any developments are to take place on aboriginal lands, they will require financing and investors. Investors will require a measure of reality. Therefore, the way in which development operates will provide a proper basis for the dialogue that should take place.

Mr. Les: Usually that is correct. We saw that in Chilliwack a couple of years ago when one of our bands developed a new shopping centre on part of their property. They required water and sewer servicing, and we had to rebuild roads that fronted that property. That was all done very cooperatively.

However, if I raise the spectre of a casino operation, that is one area where reality starts to evaporate quickly. Ways and means are often available where local governments can be ignored and the property can be developed.

I do not need to elaborate on how a local community might react to that type of development, even though it might be right in the middle of a community, which it would be in my case and in several other cases.

Senator Johnson: Mayor Bell, I wish to follow up on a theme that Senator Austin raised, that is, economic development. Did the Squamish Nation consult with the District of North Vancouver when it built the Real Canadian Superstore, and what did that entail?

Mr. Bell: I was not on council when the decision to go ahead was made by the Squamish band.

In speaking to the issue, my understanding is that there was discussion at the staff level but not at the council level. There was no requirement to get an approval from the municipal council because it was within the band's lands and they have authority.

A servicing agreement was already in place for that particular portion, Indian Reserve No. 2. It was negotiated while I was mayor in 1980 or 1982, and it provided municipal services for that area.

Some of the concerns raised at the time were that, if it had been a project within our municipality and had come to a public process, we would have required more landscaping, a setback and maybe some positioning relative to the proximity of the highway. By that, I am referring to the visual impacts. Those are important matters to the people who live in our community, and that did not take place.

Senator Johnson: We all know that expropriation rights and community works are the key areas with respect to which people are looking at amendments to Bill C-49. Do you all agree with that?

Mr. Bell: Yes.

Senator Johnson: A colleague of mine has said that a real area of potential conflict is created with Bill C-49, unless those matters are addressed through the bill by way of amendments. Do you agree with that?

Mr. Bell: Yes. We have seen consultation requirements in Ontario and British Columbia. I have referred to them as "leading edge." In fact, I think they are progressive. Bill C-49 is a leading edge, progressive piece of legislation that recognizes the need for First Nations to have control over their future. However, at the same time, there must be a provision for getting along as neighbours. Those are the kind of mechanisms we are looking for.

Senator Johnson: We are all looking for those mechanisms.

Chief Robert Louie of the Interim Lands Advisory Board, when speaking to our committee, said that a review of provincial legislation did not identify any legislative requirements for municipalities to consult with First Nations during the decision making on areas of mutual concern. What is the current practice with regard to consultation on agreements in matters of mutual concern? Do you regularly consult neighbouring First Nations on matters that may affect them?

Mr. Les: There are two mechanisms. One has been in use for years.

First, municipalities are required to advertise proposed land use changes in local newspapers of record, which circulate in reserve jurisdictions as well.

Second, any property to be redeveloped or rezoned in every community of which I am aware requires that intention to be posted for a minimum period of time before the public hearing is held.

Third, as Mayor Bell pointed out in his presentation, there is now a legislative requirement in the Municipal Act for the 27 regional districts in British Columbia. When they deal with growth management legislation, there is a specific requirement that First Nations be consulted.

Senator Johnson: Should this legislation go through unamended, will you fully cooperate with the new act?

Mr. Les: I was not aware that we had any option but to obey the law.

Senator Johnson: Yes. However, there are appeal processes at various levels, as you know.

Mr. Les: We will continue to do our very best to cooperate with First Nations wherever we have an opportunity do so. However, I would strongly encourage you to look at some of these suggested changes that will, I think, improve the chances of success of the bill and meet the concerns of all parties.

We do not need legislation imposed on us that will make the first years of implementation difficult. I referred earlier to the taxation legislation of the late 80s. That was forced on us, and I say that quite bluntly. The federal government decided it was good and passed it. The provincial government, I am talking from the British Columbia experience now, had to backtrack later on and scramble to get their act together and pass enabling provincial legislation. We at the local community level had a lot of head knocking to do because, frankly, people did not understand the legislation, or its implications. It is that kind of approach to legislating that provincial governments, but certainly in this case the federal government, needs to beware of, so that we can implement this in a collaborative way, where everyone understands it well and it takes like a duck to water, rather than creating all this uproar and upheaval.

Ms Chiavario: I wish to add to that from a local perspective. If this act is passed, we believe it could compromise, as I said earlier, the B.C. treaty process because some First Nations are indicating that if the act is passed, they will likely not have to bother with treaties in the future.

Senator Johnson: We have heard that argument as well.

Mr. Les: That is a good argument.

Senator Adams: If you get into some kind of partnership with native organizations, how do you arrange the police system? Do you have different bylaws covering different areas? Do you have separate police forces? How are you going to work that?

Mr. Les: In North Vancouver, they share an RCMP contract. West Vancouver has a private municipal force. The Squamish Band area, the reserve area, for example, is policed by the RCMP and they have a First Nation constable who covers that area.

Senator Adams: How do the citizens of Vancouver know if they are part of a certain area? For example, if something is only open for certain hours, let's say a casino, do you have two sets of bylaws?

Ms Chiavario: In the City of Vancouver we have our own municipal police force and we have a good relationship with the Musqueam Reserve, which is within the boundaries. While I am not familiar with the details, I know that they have a band member who polices the area, working under the same rules and regulations. As to the non-aboriginal people living on Musqueam land, their safety and security is looked after by the Vancouver police force.

Senator Perrault: You have good material for us.

The Chairman: Mr. Blair, please proceed.

Mr. Lou Blair, Director, Lynnwood Industrial Estates Ltd.:Good evening, honourable senators. I am the director of Lynnwood Industrial Estates Ltd., which operates a land and water tenants' business under the authority of a lease from her Majesty the Queen for the Squamish Indian Band.

Accompanying me today is Mr. Clemens, our solicitor. I will give a short presentation and then Mr. Clemens will speak. We will then receive questions from members of the committee, and finally, I will read a closing statement.

Lynnwood and the Squamish Band have had a landlord and tenant lease in place for four years. This lease has a further 17 years and 8 months to run, plus a renewal of the term. We are not the only business operating at Lynnwood, which has 50 small-business tenants employing 250 people. These businesses run the gamut from woodcraft works, millwrights and marine mechanics, to sanitation companies and boat builders. It is a diverse and energetic group of businesses contributing to the north shore economy.

I refer you to our short brief, which gives you an overview of Lynnwood 's business. I have included a couple of pictures in there, one from 1958 before the great bridge was built, and one before the crash of that bridge. I am sure Senator Austin recalls that. Another one shows the area as it looks today with the Ironworker's Memorial Bridge, as it is known. There are also a couple of other pieces of information for your interest: a list of the sub-tenants, the names of the owners and employees, a few letters that have come from my office, and my and Mr. Clemens's brief.

Lynnwood believes that the Squamish Band should manage their own lands, and to that extent, we do not oppose Bill C-49. However, the bill C-49 has to give non-natives doing business on native land some degree of certainty as to their tenancy with the landlords. Lynnwood and its 50 non-native business tenants must be able to develop and mature their investments. Their business goodwill must be protected. Bill C-49 must be clear and certain in its wording of the clauses dealing with expropriation, arbitration, and environmental law. I would now like to give you a short history of how our group came to acquire Lynnwood Industrial Estates and where we find ourselves today.

In 1998, my partners and I entered into an agreement to buy Lynnwood. We were diligent -- the lease was examined, rent arbitrations were reviewed, the high risk of the investment was appreciated, and the confidence in our lease and in our new business became stronger. Once the TD Bank approved our financial package of $2.8 million, we proceeded to acquire the business. A few years later, a further $700,000 was obtained for the purchase of the last building that Lynnwood did not own. The TD Bank quickly advanced 100 per cent of the funds.

Lynwood paid its land and water lot rent, taxes, and bank loans in a professional and timely manner. However, in 1993, we went into rent arbitration. Our lease has a five-year rent renewal. If we do not agree, that is, the Squamish Indian Band and Lynnwood, we go to arbitration. This rent arbitration review was finally decided in February 1999. The expenses were huge on both sides, but probably more so for the Squamish Band. Lynnwood paid the additional $587,000 awarded to the Squamish Band as dictated by the lease agreement, again in a timely manner.

I now come to the past few weeks. Our bank loans will be paid out on October 4, 1999, yet the TD Bank will not advance this company a new $600,000 loan, fully guaranteed by its partners. The business is viable, arbitration as provided for by the terms of the lease works, and we will continue to meet our financial obligations. What has happened in the last 10 years?

The only thing that has changed is that the uncertainty over native land issues has taken away any appetite the TD Bank had for continuing to be a financial partner with a triple A company. Non-natives investing on native lands have become too high risk for the banks to underwrite. Therefore, there is currently no financial support for non-native investment on native lands, and specifically for the property of the Squamish Band through our lease. This is an appalling situation.

The Squamish Band and Lynnwood have had a mercurial landlord-tenant relationship, but this is natural in most lease relationships. Bill C-49 would render Lynnwood's future precarious.

Lynnwood has relied on its lease agreement, with its accompanying arbitration clauses, to give certainty and closure to any disputes between landlord and tenant. Bill C-49 does not give Lynnwood any clear and certain expropriation protection, and has the potential to abrogate existing rights in our lease agreement.

Non-native businesses that have no vote or say on how native governments will rule, must have the protection of existing laws. It is imperative that "natural justice" protect natives and non-natives alike.

Mr. Murray Clemens, Solicitor, Lynnwood Industrial Estates Ltd.: Honourable senators, as Mr. Blair has stated, Lynnwood does not oppose this historic legislation. The submissions made in our brief, and what we will say tonight, identify means by which this proposed legislation can be improved for the benefit of all involved. The benefits will include a better climate for investment and business development.

My background is as a commercial litigator and I have acted for Lynnwood since 1982 with respect to lease disputes. I have practised commercial litigation for 25 years.

Commercial relationships thrive when there is goodwill and good faith. When those are lost, relationships only survive when there is clear, unambiguous language in the contracts governing them.

Common examples of those circumstances include partnership agreements, franchise agreements, and leases, particularly where leases have long terms and the original parties may no longer be present. For example, where a lease is with an entity like the Squamish Nation, band councils may change. With respect to a corporation such as Lynnwood, shareholders may change. Mr. Blair is a representative of the second group of shareholders for whom I have acted.

This principle of certainty in terms of preserving a business relationship is no less important, and perhaps more important, in legislation. An example in the context of my client's relationship with the Squamish arises out of this lease. For many years, a debate ensued with respect to the definition of "rent" in the lease. The lease says that the rent to be fixed must be fair as between the landlord and the tenant, having regard to all the existing circumstances.

There were two proceedings before the Supreme Court of British Columbia, two before the Court of Appeal, and one application for leave to the Supreme Court of Canada. It was finally established that rent would be based on the lands in their original tidal mud flat condition and that the tenants did not have to pay based on the value of the improvements they had made since 1958.

The luxury of going to court is sometimes a vice. Lynnwood's concerns with respect to this proposed legislation arise in three areas. The first is expropriation; the second is dispute resolution; and the third relates to environmental and land regulations. In my oral presentation, I will emphasize the concerns with respect to expropriation.

Two concerns arise out of the language used and I go back to my suggestion that certainty of language preserves relationships. We have heard many references to the right to expropriate for "other First Nation purposes." As I have set out in my brief, that has no direct analogue in provincial or federal expropriation legislation.

The second legislative reference is to compensation. Clause 28(5) states that a First Nation shall pay fair compensation to the holder of an expropriated interest, and in determining that compensation, the First Nation shall take into account -- and I emphasize those words -- the rules set out in sections 26 to 36 of the Expropriation Act.

What do the words "other First Nation purposes" and "take into account" mean? For one thing, I can tell you that they mean that lawyers will be enriched by litigating them for many years to come.

Is that necessary? It really is not. It may be necessary in a new business relationship, where the wording cannot follow existing precedent and experience, but it is avoidable where there is tried, true, and known experience.

In Canada, we have experience of expropriation going back many decades. Prior to 1970, the federal Expropriation Act was much criticized as being arbitrary and unfair. The new act was passed that year. I will refer to an extract from the speech made by then Minister of Justice, John Turner, moving second reading of Bill C-36, which became the Expropriation Act. He said that the bill was designed to reform the law relating to compulsory acquisition or expropriation of land by the federal government and its agencies. He said that the government trusted that this comprehensive revision would largely remove the arbitrary features long associated with the existing federal expropriation law.

The concern is that the words "for other First Nation purposes" may mean something different from what some of the parties understand them to mean; that it may include the power to take over a business because the First Nation sees it as a good adjunct to their own businesses, and that the profits made will assist in raising revenue for community purposes. One wonders whether that is what is intended.

With respect to compensation, the suggestion in the bill that compensation take into account the provisions of the Expropriation Act is less certain than providing that the stated sections of the Expropriation Act, being sections 26 to 36, shall apply. Compensation on that basis may be less than what would be available through arm's-length negotiation or less than what the Expropriation Act would provide. The Expropriation Act was designed to provide at least as fair compensation as would be achieved through arm's-length negotiation.

Senator Austin raised a question with the preceding witnesses about the ability to expropriate under provincial legislation for commercial purposes. That power was available under the previous expropriation act in British Columbia, which was replaced in 1986 with an act which follows the federal act fairly closely. The timing requirements are a little tighter and there is penalty interest. If an advance payment is not made, within a certain limited percentage, on what the expropriation board awards, the expropriating authority must pay interest at 5 per cent above prime, compounded monthly. That encourages expropriating authorities to make good-faith and fair offers to settle expropriations. That is why there are not a lot of expropriations. The process has been designed to be self-policing.

Some of the previous witnesses from the municipalities were having difficulty remembering when an expropriation last occurred. That is because the legislation forces them to deal directly and to negotiate fair compensation.

Senator Austin: Mr. Clemens, would you like to speculate on why the provisions of Bill C-49 are different from these standard provisions?

Mr. Clemens: It would be speculation on my part, but it seems that they simply follow the language of the framework agreement.

I read some testimony from the chiefs who attended on April 20 and from Mr. Marchand, who gave some evidence concerning the purpose behind the language. Some of it is intended to recognize the cultural difference between a First Nation and a government in terms of public purpose.

Senator Austin: Do you mean a cultural difference or a difference in legal standing? A First Nation is not a municipality.

Mr. Clemens: It is not a municipality but it is a government, as I understand the approach and the government's recognition. They have public purposes, so why not say "for public purposes?" That is a tried, true and tested definition of a purpose for expropriation. It carries a good history of judicial consideration and it takes away the uncertainty.

Banks lend money to individuals who own properties on highways, knowing that those properties can be expropriated for the widening of a highway, for example. The banks know that there will be fair compensation. The same kind of certainty can be created in this proposed legislation by following similar language.

Senator Austin: What ministerial control over agreements do you see when you study Bill C-49? Do you believe that the minister can control the rules and processes of expropriation, including the appeal procedures?

Mr. Clemens: That is limited by the bill. For example, the appeal procedures are limited under this proposed act. That was the third troubling element of expropriation here. Under the Federal Court Act, an arbitrator, who would be the dispute resolution process applied to establish fair compensation under clause 36(3), is subject to review under section 18 of that act, but it is limited. It is limited to where the decision maker acted without jurisdiction or failed to observe principles of natural justice.

What it excludes, and what would otherwise be available upon an appeal from an expropriation board, is review under section 18.1(4) if the expropriation board, or the arbitrator in this case, "erred in law" or if the expropriating board "based its decision on an erroneous finding of fact". Under the Federal Court Act, an appeal could be brought if the tribunal decision was "made in a perverse or capricious manner" or it "acted, or failed to act, by reason of fraud or perjured evidence," or that it "acted in any other way that was contrary to law".

I take it that would mean contrary to native law as established under the proposed legislation. That is my third concern on behalf of Lynnwood with respect to this bill.

These legislative changes, which I set out in my brief, would be easy to implement and would enhance the relationship. For example, the bill could be amended so that the wording in clause 28(1), "for other First Nation purposes", would read "for public purposes". If the definition stated that "other First Nation purposes shall mean public purposes", the difficulty would be resolved. Similarly, with respect to compensation, if proposed section 28(5) were amended to provide that sections 26 through 36 of the Expropriation Act would apply in determining compensation, that concern would evaporate.

Third, it should be provided, under clause 36(3), that a review of a decision of an arbitrator or decision maker under this bill would be subject to all the grounds for review in section 18(4) of the Federal Court Act. We would then have the right to go to court for a review of an expropriation board decision because of an allegation that there was an error of law or that a capricious finding of fact was made. That would add certainty.

Who would benefit from these amendments? The third-party interest holders, namely the tenants on reserves, would benefit, as would future leaseholders. They will be more inclined to invest in and partner with First Nations as the uncertainty is reduced and the risks managed in that kind of business.

The First Nations will benefit. They will see an increase in investment, economic development on their lands, and increased jobs.

Senator Andreychuk: Your comments on the amendments that you are requesting are self-explanatory.

Did you testify, or make any appearances, before the House of Commons as this bill was making its way to the Senate or in its previous form? If not, why not?

Mr. Clemens: I did not because I was not aware of it and I blame only my own ignorance for that.

Senator Andreychuk: However, as the tenant, were you not aware of these changes at all?

Mr. Blair: The Squamish Band never consulted me. I have negotiated with them over the last three or four years on matters such as the sale agreement, which we made last year at this time. We agreed to sell the lease, the interest, back to the Squamish Band. We negotiated. At 11 o'clock at night, we cancelled arbitration that was supposed to start the next day. At no time did I hear about Bill C-49.

I heard about this around Christmastime. I complimented people on how quietly it was done. It is very unsettling. I had a meeting earlier today with Mr. Ted McWhinney, and he brought up the same thing that you are talking about. I have a problem with it as a businessman. I am concerned about moving my business forward, along with my partners, and looking after our interest. We were never aware of this and the Squamish Band did not consult us.

Last October, when we went to sell the property to them and had a sales agreement in place that was not fulfilled, we had to go back to arbitration. Never during those negotiations were we made aware of Bill C-49, nor were we asked about it.

Senator Andreychuk: I heard Mr. McWhinney's name come up previously and I wonder why, if there were concerns, he did not act on them and raise the issue in the House of Commons. One of the dilemmas we face here is the time factor. If we want to correct the bill, it must go back to the House with the amendments. The Prime Minister controls the agenda and how long we sit, so we have that balancing act. Perhaps you could put those questions to Mr. McWhinney.

Did the federal government ever approach you, since the original leases that you signed were being held and managed by them at that time? I understand they subsequently turned them over to the bands to operate. Did the federal government advise you at any time that your position might change?

Mr. Blair: They did not advise us directly, or through our solicitors. We would have realized the significance of Bill C-49 the moment it was mentioned to us and once we read the framework agreement. We have been on a crash course in the last few weeks, I make no bones about that. I walk into this committee meeting of the honourable senators and see band and municipality people involved. I am a businessman, that is all. I invested in something, along with my lawyers. I am not a lawyer or a councillor and I am not a member of the band. We are non-natives on that particular property who are doing a very good job with our business, but now we cannot get financing. It is not because of our performance; it is because there is no certainty.

My concern is that we have never been consulted on this nor told about it, either by the Squamish Nation or the federal government. My other concern is, how do I invest in this property down the road? Where do we go with it? What do we do with it? What is the value of this business now that there is no certainty?

You frequently hear the phrase "natural justice." I am hoping that that will prevail and that we will use the federal Expropriation Act to level the playing field for everyone.

Mr. Clemens referred to the words of John Turner in 1969 on the second reading. Justice Thurston also spoke on this issue between 1956 and 1960. He talked about how bad our expropriation laws were and how they were some of the worst in the Western World. I could read it to you, but I will not bore you with that. The fact remains that in 1969 and in the 1970s, the Liberal government put forward the federal Expropriation Act.

It seems to me that no matter who you are, and no matter what kind of government we have, if there is not certainty and clarity in the law, so that you know where you are going and what you are doing, problems with interpretation will arise.

That is it what I am asking for today. That is why I am before you and I thank you for bringing us here. I am here to ask that the federal Expropriation Act be included in this amendment.

Senator Andreychuk: If the federal Expropriation Act were made to apply in some form or another, do you believe then that your problems would be solved and that you would be able to obtain the refinancing?

Mr. Blair: I believe my path would be a lot smoother. I do not believe there is anything holding us back from being refinanced. We have a successful business and strong partners and the company is solid.

Senator Andreychuk: My point was that perhaps you have a re-negotiation process within your lease that comes up every five years. Therefore, there is always that uncertainty. That will continue even if we put in the expropriation clauses. What are you most concerned about when it comes to re-negotiating loans and continuing the business in that way? Is it the re-negotiation or the expropriation process?

Mr. Blair: We went through that in 1989 when we obtained the first loans. We put together a package of $2.8 million in 1989. That amount would be much larger today. Now, we cannot put together a package for $600,000. That is only the fallout from this situation.

We are more concerned, as we go down the road, that not only is the Squamish Band our landlord, it is also our government. We pay taxes to them and we have no problem with that. We pay the Vancouver Port Corporation for the water lot leases. They share in that. At tab 3 in our brief, we have given you a lease-rate history. In the end, we contribute somewhere in the neighbourhood of $458,000. We are not here to argue with the value of the lease or the land and so on. We are concerned about the fourth component. They are our competitors in the harbour. They own a marina two-and-a-half times the size of ours. Last year they tried to buy us, but that did not happen. We are constantly banging away and that is fine. We accept that as businessmen and I do not have a problem with it. I can rely upon the arbitration clause and other points in my lease.

I am worried that if Bill C-49 goes through, in my layman's terms and the way I read the language that has been drafted, there is no certainty, no clarity, and definitely no familiarity of law. I am very concerned.

Senator Austin: Mr. Blair, it is good to have you here. We do not get many business people coming to defend their interests. Usually the businessperson thinks his interests are served more by silence than by advocacy.

Mr. Blair: This room is getting warm behind me.

Senator Austin: Your views are particularly valuable because there is a business relationship involved here.

Mr. Blair: Yes.

Senator Austin: You are speaking in public about it.

I wanted to speculate with you a bit about the TD Bank. You stated that you believe that the bank is not prepared to put any further funds into your project because of the uncertainty caused by Bill C-49.

I take it that there is a mixed set of issues. It is that, and the fact that your lease has only a few years more to go and there is a competitive situation there. How much of a problem is Bill C-49, compared to your business situation, from the point of view of a risk-averse bank?

Mr. Blair: First, I do not know if you were the architect behind this, but it seems like it is PC day here for you. We have come out in full force.

To answer your question, you are right that it is a mixed bag. I have never said the banking problems have to do with Bill C-49.

Senator Austin: I wanted that to be clear.

Mr. Blair: Second, I have said that Bill C-49, and the framework agreement of 1996, are a problem for us through lack of certainty and clarity in language.

I will say that because of the lease, and because of ongoing press and media coverage over the past several years on native land issues, we have many shaky banking institutions out there. I do not think I have to tell Ottawa about the banking institutions. I read the papers and I know what is going on. It is a tough go right now. Anything that is uncertain or unclear, especially when it has political issues behind it -- and this is from my point of view -- creates a problem for investors. We are non-natives on a native reserve where there is no certainty as to what will transpire because there is an arbitration clause. You say there are not many years left on my lease, but there are 17 years and 8 months. My first loan was only for 10 years. I have plenty of time. I also have a renewal clause. I will not debate that point now because I know some gentlemen in this room will be debating that with me in the next year or two, but that is a fact. I am not here to debate the lease or the relationship. We have had a 3,000 per cent increase in the rent since 1958. As I show you in the plans, these were undeveloped properties. All that development was done by the leasehold interests. That business has been developed and it has been a good relationship. Yes, we have had tugs of war, and many times Harold Calla and I have had to bang the odd head, but I respect his position and I respect the position we have had to take. I say that here without compunction.

However, Bill C-49 is poorly written. Please, let us have clarity and certainty so that words mean something.

Senator Austin: This question is more to your counsel than to yourself, Mr. Blair. Have you looked at clause 8? This is the verification clause. We have not debated it much, nor have we had much evidence with respect to it. A verifier is a "good offices person", if I can describe it that way, who is there to settle issues between the minister and the First Nation with respect to the items enumerated there, all before the land code comes into force.

Do you see a problem with this kind of flexibility, or is your problem with the framework agreement itself?

Mr. Clemens: You have answered the question for me. It is the framework agreement and the proposed legislation. The verifier's jurisdiction is limited as set out in clause 8. The verifier will ensure that the proposed land code and process for its approval are consistent with the framework agreement. The verifier cannot improve upon any of that. He cannot detract from it either.

As you say, it is a good offices position, which will ensure that the First Nations draft is consistent with this bill. However, it will not alleviate the problems that we have identified with respect to the expropriation process.

Senator Austin: Should the amendments you propose be enacted, would that be in breach of the framework agreement? In other words, would it amend the framework agreement unilaterally?

Mr. Clemens: I do not think so. I take some comfort from the evidence of Chief Robert Louie, who testified on April 20. He said:

I will now focus on some of the specific issues you have raised. The first issue is expropriation. Expropriation is the last resort power, used only when it is not possible to acquire legal interest in the land by mutual agreement. Expropriation is an essential power of governance.

I agree with all of that.

He goes on to state:

Bill C-49 and the Framework Agreement reflects Canadian standards in expropriation powers and obligations.

Senator Austin: Do you agree with that?

Mr. Clemens: I do, yes.

Mr. Clemens: He states:

When you refer to the binder of materials before you, in the second tab, you will find that...

He then sets out a number of principles, and I will refer to two. He states:

...the compensation rules for the First Nation expropriations in Bill C-49 are the same...

In this copy of the transcript, "same" is in italics for emphasis.

...as those for the federal government in the Expropriation Act. Bill C-49 incorporates the federal Expropriation Act compensation rules by reference.

If that is the intention of the First Nations, let us use clear words to say so.

The second point that he makes, and makes well, is that:

...the expropriation provisions of Bill C-49 extend only to collective First Nation purposes analogous to a First Nation community level to the corresponding public purposes and public works in the federal Expropriation Act.

Again, "collective" and "public" are emphasized.

Let us define that. Let us use words in the bill that clearly indicate the intention of First Nations to meet those standards. That will entirely satisfy the business interests.

The third point he makes is the following:

First Nation expropriation under Bill C-49 is subject to the same and in some cases stricter tests when compared with expropriation by other levels of government in Canada; yet all of the same legal remedies and appeals are available.

With respect to Chief Louie, four subsections of section 18 of the Federal Court Act are not available. If that is the intention -- and there is no mention of that in the framework agreement -- let us fix the bill so that these words carry all the same legal remedies consistent with the draftsmen's language.

What we are proposing, in my respectful submission, is not at all inconsistent with the intentions of the First Nations as stated in their testimony on April 20.

Mr. Blair: Senator Austin, you slipped one by me a moment ago. I never said that Bill C-49 created any direct problem for us. That was voiced by the TD Bank. In a very extraordinary meeting with many members of the TD Bank, which the solicitor to my right attended, we were informed that they were taking a major hit with a very big client on the Musqueam Reserve. We all know of this situation because it has been much discussed.

In that conversation, the point was made clear. The point I want to make here is about uncertainty. It is in the press and we hear about it every day in the west. The uncertainty and the mood among investors is delicate, very tough, and almost untenable.

Senator Austin: You left what I thought was an ambiguity in your written text vis-à-vis the TD Bank. You gave us a clear answer disassociating your comment from a direct application of their view. You have restated that, and I am happy to have that on the record.

Mr. Blair: My ambiguity was not meant to shade anything. It is very straightforward. I could not sit in front of someone at the TD Bank and say they said that about Bill C-49. They said it about all our issues with the Squamish Nation at this time. They said it about all our lease issues and everything that is going on in the press. I feel that it all comes together in one mixing bowl.

Senator Austin: I agree with you in a general way. In British Columbia today, the issues on the Musqueam lands, Bill C-49, the Nisga'a, and one or two others have come together to create a public impression. However, we are not here to react to the media debate. We are here to analyze and create a fair context for a relationship between the aboriginal communities and the general community.

As I said at the beginning, I value the fact that you have come here this evening to give these answers. It has been extremely useful.

Mr. Clemens: Bankers read the media.

Senator Austin: I know.

The Chairman: Unless there are additional questions, we will adjourn the meeting.

The committee adjourned.

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