Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 28 - Evidence, May 5, 1999
OTTAWA, Wednesday, May 5, 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 5:40 p.m. to give consideration to the bill.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have before us Ms Kerry-Lynne Findlay from the Musqueam Park Leaseholders Parcel "A."
Ms Kerry-Lynne D. Findlay, Musqueam Park Leaseholders Parcel "A": Thank you for the opportunity to be here and to address you tonight. I am a lawyer in Vancouver. I am also the immediate past president of the Canadian Bar Association in British Columbia. I am a past chair of the Vancouver City Planning Commission, so I have a sense of issues dealing with planning, zoning, subdivision, land use and those sorts of things. I also have the privilege of being a Musqueam Park leaseholder. I come before you today with all of those hats.
I have prepared a written submission that a few of you received earlier today, but most of you have just received it. I have also brought a short videotape with me that is an excerpt from a CPAC program. CPAC attended one of our early residents meetings, which Senator Perrault attended along with Ted McWhinney, our member of parliament, and Dr. Heady Fry, Vancouver Centre member of Parliament. I brought the video to give you a flavour of the community and the concerns there. I would ask you to take a look at it at your convenience.
I was here last night for some of the testimony that you heard. A couple of issues arose that I should like to speak to. First, I believe when Murray Clemens and Lou Blair were speaking, the question arose as to whether they had ever been asked to testify before the House of Commons committee on Bill C-49. Their response was that they had not. That is also true for the Musqueam Park Leaseholders. We were never afforded that opportunity. That is why you will not see testimony from us before that committee.
Also, I believe it was Senator Andreychuk who asked, if this body were to make recommendations to the Senate and if those recommendations for amendments to the bill were accepted by the Senate as a whole, how that would be viewed by the House and, more particularly, by the governing party in the House. I had lunch with Mr. McWhinney today and I put that question to him and asked him for his permission to give his response to this body. His response was that if this committee were to come forward with recommendations for amendments that are clear, concise and preferably bipartisan, the House would look at them very seriously. There is certainly ongoing discussion among the majority in the Senate, as well as the majority in the House, to look at your recommendations. I pass that along and I can elaborate on that if there are questions.
From our point of view, we are looking to this committee and to the Senate as a whole to look at some fairly substantive amendments to a bill that we think has fundamental flaws. We have no problem with the overall ideas and concepts behind the bill. In that sense, we do not take issue with the bill itself, but certainly there are specific areas that we think are not only capable of amendment but that, amended, would improve this bill tremendously and should be considered.
Another issue that has arisen in my viewing of testimony before this committee to date is what I see as a very determined effort by the 14 signatory bands, by the department and by others who have testified to distance your deliberations on Bill C-49 from what has come to be called "the Musqueam situation." You will see in my brief that I suggest linkages between that situation and the bill, and remember that the Musqueam is one of the 14 signatory bands. I draw those linkages to show that many of our concerns over this bill do arise from the Musqueam situation, in that imprecise language in the bill, broad and general terms in the bill are worrisome to us given our experience in dealing with other matters. Also, the global effect of controversy on the Musqueam reserve with non-Indian leaseholders and particularly the expropriation aspects of this bill have devastated any equity in those homes. A few years ago, those homes were worth between $550,000 and $800,000, because we are talking about Vancouver real estate, and they are now worth nothing. That has a direct impact on many, in particular the seniors who live there.
I was in the gallery listening to Question Period today. Minister Stewart made the point during Question Period that the issue that she faces as a minister and that her government faces is how to reconcile their mandate to protect aboriginal rights in a modern Canada. Our submission is that in a modern Canada, where we are seeking enhanced powers for aboriginal peoples, we are also seeking in the end equality and fairness for all Canadians. We preface our concerns and remarks with that. As we move forward -- and Canada in that sense is fairly unified and wanting to move forward with very legitimate claims by aboriginal peoples to form empowerment for better control, for more self determination -- we do not want others who are directly affected by those initiatives to be forgotten in the mix. If the time and effort is put toward reconciling the rights of all Canadians, it can be done. That is why we are here tonight.
There are 74 non-Indian leaseholders on Musqueam Reserve No. 2 in Musqueam Park. There are in fact 75 homes there but one is owned by a Musqueam and her husband.
Those 74 homes house approximately 200 men, women and children; 70 per cent are owned by a retired person or pensioner. The other 30 per cent mostly comprise working and volunteering couples with children. The encumbrances against those homes aggregate about $5.1 million. The 1996 census report published by Statistics Canada stated that the average income there before taxes from all sources -- and that is including Salish and Musqueam Parks -- is $38,000 a year.
This is a 40-acre parcel of land that was developed in the 1960s, with a master lease and ancillary incorporated agreements and schedules signed in June of 1965. In those leases, it was mandated that property taxes be paid to the city of Vancouver, which assessed those properties. Through surrender for lease purposes, the Musqueam Band gave over the land undeveloped, unserviced and uncleared. The original development company and the subsequent leaseholders improved on that land with servicing utilities, roads, homes and other improvements. In that arrangement, the band was given considerable upfront money and then a schedule of annual rents determined with renegotiations at 30 years, 50 years, 70 years and 90 years on a 99-year lease.
Conflicts between the band and the homeowners have to do with the level of property taxes levied by the band, the lack of accountability for the spending of those moneys and how to value the land for purposes of determining annual rental payments and property taxes. That has resulted in the homeowners spending approximately $800,000 to date on legal and expert fees. The interpretation of the phrase "current land value" in the lease is now the subject of an appeal and cross-appeal in the Supreme Court of Canada.
There are many flaws in the lease. The reason I am mentioning the lease is because those flaws all have to deal with imprecision of language that has led to conflict and court action. In our view, that is the problem with Bill C-49. Under that lease there is no dispute resolution mechanism other than resorting to Federal Court, no repossession clause for non-payment, which is not good for the band, and no surrender clause, which is not good for the leaseholders. The renegotiation terms are too far apart and there is a negating by default clause of the fair rent provision. I mention that fair rent provision because in Bill C-49, when you are talking about compensation under the expropriation provisions, the terminology is "fair compensation." I will come back to that, but our experience in Musqueam is that that word "fair" does not mean very much.
There also were no amendments made to the lease to allow for the new reality of the band taking over taxation authority in 1991 -- no prepayment options, et cetera.
What has happened is that the band has insisted that lease payments go from on average $450 to $500 a year to $10,000 a year, which the majority of homeowners, in fact all but three, have not only accepted but paid at the limit of their abilities. Now they want between $25,000 to $35,000 annually after tax as payments to rent or lease the land. That is in addition to $6,000 on average for property taxes and of course to whatever mortgage or the like that a person happens to have.
I have already told you what census reports were on the average income in the area. The average income before taxes is at par with what is being asked for after taxes.
The homes are no longer saleable at any price. That can easily be demonstrated. The total loss for these homeowners is in the neighbourhood of $55 million. That is the net effect.
The fallout is not, as has been mentioned in the press, hypothetical drama. This is true emotional and financial hardship. Banks and mortgage institutions will not lend on any Indian lease land and some specifically not on Musqueam. I append to my brief various notes from banks, mortgage companies and trust companies with notations to a mortgage broker saying, "We do not lend on Indian lease land." Or, "Where is it? Musqueam? We do not lend on Musqueam lease land." The financial institutions have entirely backed away from the area. I am told that there is also some fallout in that area on the bands themselves.
This has had a spillover effect on the prepaid leases adjacent, known as Salish Park. You have had representation from someone from that area, where there are 147 homes. I append a realtor's letter saying that the value of that home is zero; it cannot be sold.
The dispute is also adversely affecting the ability of other First Nations to make leasehold developments. There are a number of First Nations across Canada, but I will talk specifically about British Columbia, which is just starting to try to attract people toward leasehold developments, condominiums and the like.
Appendix E to my brief is a brochure put out by the Sechelt Band as an attempt to counter the Musqueam situation. The one-page brochure basically says that they are trying to answer frequently asked questions, and the question is, "How about that Musqueam thing?" Then they try to explain how their development is different. Clearly, the situation is definitely affecting other First Nations.
I really must emphasize this next point, or I would not be doing what I should be doing in conveying this to you. Many of these homeowners are World War II veterans. All have paid hard-earned taxes to all levels of government over decades of professional and employment lives. They are in despair. They feel abandoned by the federal government. Their homes and lives have been put on hold entirely.
The frequent town hall meetings show anger, sadness, humiliation and, frankly, shock. They are facing bankruptcy. A couple of the homeowners have asked the band if they could just surrender their homes and leave all future obligations behind. That has elicited no response for over two months.
The Indian Act says that non-Indians cannot vote at band council meetings. We are not only not allowed to vote or to attend band council meetings, the band does not even allow us to make representations at those meetings. Therefore, we have no say and no voice in what is happening.
Letters have been written to the federal government, and I append them to my brief, from the Minister of Aboriginal Affairs for British Columbia and the Leader of the Opposition in the British Columbia legislature. Those letters say that this situation threatens to impact negatively on the treaty process as a whole and they call specifically on the minister to deal with the situation.
Frankly, the introduction of Bill C-49 has exacerbated this volatile and difficult situation past the ability of homeowners to cope. If there was any equity left in those homes before the introduction of Bill C-49, it is now gone. Any new lessees who might possibly be attracted to the area would only do so on an entirely different lease and on being given a waiver exempting them from the expropriation provisions under Bill C-49. The bill has eroded public confidence in the viability of leasehold investment on Indian land because not even prepaid leases are exempt under the act.
This of course is enabling legislation. It does not affect just the 14 signatory bands. Once the legislation goes through, any band can, to use the colloquial term, sign on, and I am sure many will, as time passes. Already many First Nations looking at how the bill is developing are interested in signing on. We are talking about a bill with a pan-Canadian impact.
I said that I would mention the linkages with the bill and our situation in Musqueam and then speak to specific amendments, and I should like to do that now.
It is our contention or submission that there is a desire to distance the deliberations on this bill from the Musqueam Park reality because there are weaknesses in the bill; it places too much reliance in many respects on goodwill and good intention rather than sound and specific legislative wording. Negotiating tables and courtrooms have been kept busy for decades dealing with vague and ambiguous wording in legislation and in contracts like that lease.
As I said to members of the department at a technical briefing here back in February, you can write this down and you can write down that a lawyer said it: Litigating your life away, going to court every year and wondering what your litigation calendar is, is no way to live your life.
We assert that it is not in the best interest of Canadian citizens to be subject to misunderstandings as to legislative intent. With the upper chamber's mandate of sober second thought, we have in our hands the tools to bring certainty to what we consider to be rather simple amendments.
Proponents of the bill, including the minister, her officials who have testified, Bob Watts and Kerry Kipping, and architects of the Framework Agreement and the bill, such as Robert Louie of the Interim Lands Advisory Board, all stated in the testimony I read that expropriation powers are essential tools of governance in terms of land management control and use. They collectively argue that powers of expropriation currently exist with other levels of government. Both of those assertions are correct. I agree with them. However, appropriate processes, adequate checks and balances and reasonable and specific parameters need to be spelled out.
I believe that Howard Calla, who testified before you, and perhaps even Bob Watts both said that expropriation is an extraordinary measure. It is a measure of last resort. It is our submission that that is all the more reason for caution and to make sure it is specific because it will be abused sooner or later. I say that because the history of all peoples shows that the nature of some human beings is to do so unless a detailed legal framework exists.
Imprecise terms lead to bitter litigation and will lead to divisions between native and non-native neighbours and between band members. That is particularly so, and I think this is important so I emphasize it, where the entity with power not only defines the relationship, but is not accountable to the people its policies directly affect.
With the greatest of respect to the minister, public statements that she will ensure that the powers of expropriation are not used abusively are not sufficient. She may not be the minister responsible five months from now and certainly may not be five years from now. It is impossible for the Canadian public to rely on ministerial assurances regardless of the good intent behind them. The only control that can be exercised now over future political leadership -- and when I say that, I mean federal, provincial, municipal or aboriginal -- is clear and unambiguous legislative wording. Those presentations fail to address the difference between Canadian governance structures that have been in place for at least 130 years and that have been subjected to refinement and court interpretation over that time, and the new aboriginal law and governance structure, which is fledgling, in transition and under-tested.
They also fail to address the fact that those new governance structures are being imposed in the case of non-native leaseholders without consultation or agreement of the very people who will be subjected to their greatest impact. That goes to the core of Canadian life. It is leaving the possibility of undermining a family's primary residence and financial stability.
It is one thing to know that a governance structure is in place that may be different from the mainstream and to make one's decisions accordingly. It is quite another to make a substantial financial and lifestyle commitment under one governance structure, guaranteed in contract and law to last, and then have a new and different structure imposed later with adverse consequences. That often, of course, results from the frustration over taxation without representation.
I want to address one other thing before I get to specific amendments. Senator Mahovlich was quoted as saying: "You pays your money, you takes your chances." With respect, we want to say that that remark would apply only if the rules of the game had not been changed by the federal government and the band in midstream, without notification to current or future homeowners.
As to amendments, in paragraph 18 of my brief, I quote at some length from Minister Stewart's report "Gathering Strength Year One Progress Report." She talks in great detail about what the government's aspirations are for themselves and aboriginal peoples and what they are trying to achieve. The main thrust of what she says is that they are trying to achieve good and sound governance structures that allow for transparency, disclosure and redress and to build confidence in future relationships.
This is how we think that can be done with Bill C-49. First of all, we feel that because the bill says that Indian law exercised under the act is paramount to any other acts of Parliament, it should be made explicit in the preamble to the act that it is subject to the Canadian Charter of Rights. That would assure remedies such as judicial review, protect against discrimination and add a great deal of certainty. I have been advised by the Department of Justice that the department believes that is implied in the bill. We say that if it is implied, if that is the intent, it cannot hurt to state it specifically.
Senator Austin: Do you have that advice in writing?
Ms Findlay: I am told you do not get that kind of advice from the Department of Justice in writing. It was given to me at a technical briefing February 12 in the House that was attended by a number of department officials. Al Broughton, who is a lawyer with the Department of Justice, said that that was a position of the Department of Justice.
During that same briefing, Kerry Kipping said that the paramountcy provisions relate only to where there is inconsistency and the band would continue to be subject to laws of general application. But as some of you may know, the Kamloops Band, through Chief Manny Jules, just recently passed its own labour code banning strikes, lockouts and the collection of union dues, over the protest of the federal ministry. It is the stated intention of the band that its code shall supersede existing Canadian labour law. I mention that only to point out that in the evolution toward aboriginal self-government and self-determination, implied terms and bureaucratic assurances for us carry little comfort or certainty. We are in a state of change.
On the expropriation provisions -- and I know you have heard a lot about this -- we want to emphasize that we too think the terms are too broad and imprecise. In their testimony, Bob Watts and Kerry Kipping stated that the phrase "community works" is meant to convey what is otherwise known as public works. That is not the difficulty. The difficulty of course is with other First Nation purposes; the use of the word "or" between the two clearly conveys an expansion of purposes outside that of traditional public works. If the act is not amended either to delete this reference or to specify its meaning, any band can use the same broad terminology in the act in their land codes. In our opinion, that broad terminology affects band members as much, if not more, than non-Indian leaseholders. The expropriation powers of course extend to any interest.
It is also relevant to note that the expropriation powers granted to the Nisga'a by treaty and the Sechelt by legislation do not contain that phrase "other First Nation purposes."
The issue of third party interests is of major concern and it has been said by the department that those leasehold interests are protected. By some that was taken to mean they are exempted. That is not what that means. It means only that their terms continue despite the introduction of new land codes; all it does is give the party something to bargain with in an expropriation. They only continue through to the expiry of their terms if expropriation is not used against them.
The other problem with that section is where it is based on the opinion of counsel. Having all the powers of landowners, a band could follow a course, for instance, of general economic develop that would include all manner of purposes not normally understood to be public. That is rather an archaic term in the sense that the development of the law in this area has moved away from such subjective tests, and it has moved away for good reason. We say that there is no reason to retreat to the way this kind of legislation would have been worded maybe 15 years ago.
Fair compensation is extremely worrisome, because there is not enough written in this bill to determine that. You have heard from others so I will simply say that we agree that if it is made subject to the federal Expropriation Act, many of the concerns over expropriation will go away. That is a way to do it, but I take exception with Robert Louie's testimony that the words "taken into account" constitute an incorporation by reference. They do not. All they do is say they should look at it. They do not make it subject to that.
Also, when you get into issues of fair market value, in the Musqueam situation that value is zero. There has to be a procedure for looking at it in an objective way. The timing and compensation on expropriation does not show a need for when the payment would be made, when in conjunction with the expropriation actually taking effect. We say there should be at least nine months' notice, in other words 270 days' notice. The appeal from the compensation award is also too vague and uncertain. It is subject to band rules. It is subject to band appointment as to a panel. It should be an independent process.
The summary conviction powers under the act are also of concern -- I speak to that in paragraph 30 <#0107> again because of uncertainty. You are talking about fines, imprisonment, a parallel court system, the ability to hire justices of the peace with tenure, the mandate for courts of competent jurisdiction to apply the Indian law instead of other law. Those uncertainties make it very worrisome.
Consultation is another area. Bob Watt testified that there is provision to address the concerns of third party interests, but that is not what the wording says. It only mandates a band to inform. Informing a party is a unilateral undertaking. It is not a bilateral discussion.
We support the concerns of many native women whom you have heard on the breakdown of marriage, and I have given three paragraphs to that issue. I come from those pieces of legislation.
My last point, and I think this is very important, is the lack of notice to the band members involved in the signatory bands. I was not here, but I understand that you had a presentation yesterday from members of the Squamish Band saying that their chief in council had not informed them about this bill. I have appended here at the last tab a letter from the chief of the Musqueam Band for 1997 and 1998 in which she says that she was not consulted on the formation of Bill C-49. She signed certain amendments to the Framework Agreement. She was told that the final drafting would come back to her and to her band for them to ratify and go through the proper referendum procedure under the Indian Act, but that never happened. She is prepared to testify before this committee, if you would like her to come. She has given us not only her own statement in her own hand, which is appended, but also a letter from an elder of that band who said that the band membership, and then only a few, were apprised of the bill in February of 1999, but there has yet to be a presentation to the general band membership.
In conclusion, we would ask you, particularly those who are sympathetic to aboriginals historic and present grievances, to view seriously the request for amendments. We think these amendments will build the kind of confidence in future relationships that we all want. They will make for better communities, more harmony. Only in an atmosphere of mutual trust and understanding cans Canadians can work together to attain stability and goodwill.
Senator Tkachuk: Thank you very much for your brief. It seems that we are running into the same situation we have before on legislation that is done in secret rather than in public. All sorts of problems come out and, as parliamentarians, we are left to try to sort this out.
I have sympathy for what you say about the clarity of the law and I agree that the law should be clear. It should give people a sense of confidence, not a lack of confidence. We have heard much about your situation. Some of us who are not from the Vancouver area should like to know a little more about it.
I was looking at the numbers on the assessment of leases of up to $25,000 to $35,000 per year, which on the low end comes out to something like $2,083 a month, plus property tax. What kind of homes are they, in general?
Ms Findlay: In general, I would say those homes are about the 2,400 to 3,000 square feet in size. They were all built around 25 years ago. Some have been updated, but most have not. They are on quite large lots. They are located in the southwest part of Vancouver, not far from The University of British Columbia in the Dunbar area, for anybody who knows Vancouver. There have been improvements on all of them. The landscaping and that sort of thing has been in for many years.
Senator Tkachuk: Were the landscaping and improvements paid for by the tenant?
Ms Findlay: Yes.
Senator Tkachuk: When you say "2,400 square feet," that means different things in certain provinces. In the prairies that is on the main floor, but I know in the Okanagan Valley that means the total finished.
Ms Findlay: I am talking total living space, which may be over two or three floors.
Senator Tkachuk: That is helpful. If you were renting a property in the same general district but off the reserve, what would you pay in rent for a two-storey home or an apartment of 1,200 square feet?
Ms Findlay: Rental would be in the neighbourhood of $2,500. Of course, the difference is that when you rent a home you do not make a sizeable capital investment in it. If the roof falls through, the landlord pays for it. If the pipes leak, the landowner pays for it. You take no risk and you pay no property tax.
Senator Tkachuk: That is why it is covered by the rent.
Ms Findlay: Right. Although you are talking about somewhat comparable numbers, you are really talking apples and oranges because, with the leasehold situation, you have people who have invested approximately $500,000 in a home and who also pay property taxes and who are also responsible for maintaining those homes.
Senator Tkachuk: It is easy to develop value on simple appraisal. You can appraise land at what you want. It is the market that dictates what the price of a rent would be. You could ask for $2,400. You might get that in Vancouver. You certainly would not get it for a home twice that size in Saskatoon. Right?
Ms Findlay: Yes.
Senator Tkachuk: On the question of consultation, did you say that during this process on Bill C-49, which has been going on for quite some time, the tenants were not aware of what was happening?
Ms Findlay: That is correct. We had no knowledge of this bill until it was brought to our attention through the press around Christmas time. I know that in June of last year it was introduced into the House, but we were never advised at any time. We were not advised by the band with whom we had ongoing dealings; we were not advised by anyone in government in any manner. So we found out by ourselves. Once we found out by ourselves and looked at the bill, then of course we made it known that we had concerns about it. However, we were given no opportunity to comment on it previously.
Senator Tkachuk: You say that you probably cannot get any financing presently. The financing was perhaps done through a mortgage or some other way because it was leasehold. It would have been some kind of financing that would be apart from fee simple arrangements that would have taken place and you would have gotten approximately 75 per cent perhaps on the value of the home. What could a homeowner have gotten in a normal course of events before all this stuff started?
Ms Findlay: Actually before all this stuff started -- that is a good way to put it -- lending institutions were treating those leased properties as they would fee simple properties, in the sense that there was certainty in the first 30 years of the lease. Because your normal amortization period is 25 years, the banks were looking at that favourably. Therefore, when I say that there is $5.1 million in encumbrances, I am referring to the mortgages and loans that people received from two of the chartered banks and lending institutions in much the same way one would with a fee simple property. What has happened is that during this decade, with the advent of the property tax transfer, Bill C-49 and the lease issue, now none of the lending institutions will lend any more.
Senator Tkachuk: What do the landlords tell you when they increase the rate of rents to such an extent? What reason do they give?
Ms Findlay: I have had recent direct meetings with the band. Their response is that a maximum amount was established by the Federal Court of Appeal at those levels you mentioned and, therefore, it is their right to ask for them. That is the most they say. When it comes to the inability to pay and the need to discuss what is fair between parties, they simply rely on the court judgment.
Senator Gill: You have many concerns. You quoted Madam Stewart and said that she has a lot to do in protecting the rights of the non-native and the native people. That is true, but we have to do more. We have to try to protect the non-native rights, but we have to try also to create and to make sure that the First Peoples exercise rights that they should have exercised for a long time but did not.
We have to try to create a climate in which the people will have confidence amongst themselves. In other words, we have to try to create a new relationship between the native and non-native peoples. People are not used to seeing that because everything on the aboriginal side was managed by the non-native side, was managed by Indian Affairs and things like that. We have to face this case.
In a case like this where you are talking about the economy and things like that, people expect all kind of bad things, and this is precisely my question: Why are you so convinced that it will be almost a disaster, as you said? Why do you believe that?
Ms Findlay: My conviction comes from the last eight or nine years of trying to deal with a similar situation on Indian reserve land in Vancouver. We have had great difficulty in terms of substantive negotiations. We have had great difficulty because of the imprecision of language in the leases. There is no structure to fall back on. The lack of a mandate to consult, the inability to vote or to represent ourselves to the band -- those are things that most people in Canada take for granted. If the city hall where you live wants to raise your taxes, you have a way to address that. You can ask for an audience at your city hall and you can say, "Look, this is really having an impact on me and let me tell you why." Whether they agree with you or not, at least you have been heard and hopefully you can be persuasive. You can make your point. When you have no ability to make that point, when nobody needs to listen to you, then there is no forum for dialogue. There is no forum to get it right.
That is the same situation in Bill C-49. There is no mandate here even to consult. We are not talking about a veto power. This is a very important and necessary piece of legislation for aboriginal peoples. We are not against the bill and its overall concepts at all. We are saying that there are a few areas that need to be fixed, and if you refine them and fix them, that will build the confidence in relationships that we want.
I am also bringing to this 20 years in the practice of law. The reason most lawyers are in practice is that people have misunderstood each other. Either the deal they had was oral or a handshake and now they say it was not that deal any more, or there is a contract that does not say what everybody thought it was going to say or does not adequately protect a new situation and a new environment. That is what lawyers are in business for.
This is no different. We are saying whether the relationship is aboriginal and non-aboriginal or aboriginal to aboriginal, for any and all people in Canada trying to build confidence for the future, we need a certain structure in place to make sure it goes forward effectively.
I have three other leaseholders here with me tonight who have on their own dime come here because they are faced with losing their homes and they are simply trying to let parliamentarians know that this is a real situation. This is where theory meets reality, I like to say, because we can show you a situation in Musqueam where de facto expropriation has worked adversely, not only for the non-Indians but for the band itself in all its business dealings and other areas of endeavour.
Our point is that if you look at what Minister Stewart said, as you point out, if the government really wants to achieve what she is saying, we have to be very careful the measures taken are not counter-productive.
Senator Gill: Have you got something concrete that will show that people are going to be expropriated? Is there something concrete that you have now just to show to the people that this is a threat?
Ms Findlay: We do have evidence of the market in Vancouver that shows that homes that were once worth $600,000 and that are now for sale at $150,000 cannot sell. We have letters from the band saying that those who have not paid the increase to date will have legal action taken against them. We have that kind of information.
Senator Andreychuk: The lessees are in a different position because when they negotiated and entered onto the land they were dealing with the Government of Canada who was supposed to be the agent for and who has a fiduciary relationship with the aboriginal peoples.
This act seems to imply that when the land codes come in the federal government's responsibility will be at an end, and that gives me some concern. In the meantime, I have been given to understand by some of the lessees that everyone has taken a cooperative approach in trying to settle this problem of the tax hikes and how the lessees will be handled. I understand that the tenants group and some of the municipal authorities and the aboriginal authorities have sat down and are on the way to trying to solve this dilemma, but that Minister Stewart refuses to meet. Is that correct?
Ms Findlay: No. I met with Minister Stewart on behalf of the leaseholders in February and in March. What they are referring to is a recent request on my part for a further meeting with the minister and the band in order to put forward some joint proposals. Not too long ago we thought that that was probably impossible, but we have made some recent strides in that direction. The minister wrote to us last Thursday saying that she thinks my request is premature and that she wants to see some specific joint proposals coming forward before she has such a meeting.
Senator Andreychuk: From whom does she want to see joint proposals?
Ms Findlay: From the band and the leaseholders. The one thing we can agree on is that we both feel that the federal government has a responsibility to be at the table with us trying to sort this out.
Senator Andreychuk: Are you optimistic that if the minister would join this discussion some resolution of this might come forward?
Ms Findlay: Yes, I am. There has certainly been much sympathy, but some resistance to actually rolling up sleeves and finding solutions. We think there are solutions, just as we think there are some amendments that will make Bill C-49 palatable and make it do what it is intended to do. We think there are options and solutions out there if all three parties, meaning the band, the federal government and ourselves, will sit down together to work them out.
Senator Andreychuk: Which areas does this tripartite negotiation have to do with -- the increased taxation and all of the tenants' rights issues, as opposed to expropriation issues?
Ms Findlay: As I am sure your committee also is experiencing, when so many changes and initiatives are happening at the same time you get a snowball or global effect from everything coming together simultaneously. Any discussions have to consider all of it.
Expropriation has made viability of retaining equity in one's home extremely difficult. Why? It is not because a government is being given expropriation powers; municipal, federal and provincial governments have that. It is because it is imprecise: the procedures for compensation are imprecise, there are subjective tests and the whole thing is such an uncertainty. As the honourable senator mentioned, the market will dictate. This is not something manufactured by us. The market reacts negatively to uncertainty. It is really that simple.
Senator Andreychuk: I am quite clear on the expropriation argument, and that really is the subject-matter of Bill C-49. What I am trying to figure out is whether you are negotiating now with the band and want the minister to sort out the non-Bill C-49 issues.
Ms Findlay: That is correct.
Senator Andreychuk: And the minister at this moment is saying that it is too premature?
Ms Findlay: That is what her letter says to me.
Senator Johnson: As we come to the end of this presentation, I want to focus on clause 28 of Bill C-49, because it is the focus of your concern. In particular, you raise questions about broad expropriation purposes, short notice period, the method of valuing and fair compensation.
As you are aware, this committee has heard very conflicting views on the matter of expropriation. One legal opinion provided to us suggests that the expropriation provisions of Bill C-49 apply only to collective First Nation purposes analogous to corresponding public purposes in the federal Expropriation Act and could not validly be used for purposes, such as commercial purposes, that did not meet the test. In addition, the opinions suggested that subclause 28(5) of Bill C-49, page 15, would clearly require a First Nation expropriating authority to consider and apply the rules of compensation set out in the act. Given that, how do you react to the view that the public purpose tests and compensation rules of the federal Expropriation Act would apply to First Nation expropriation under Bill C-49?
Ms Findlay: I say that is incorrect, and I say it categorically. The wording of the act is "shall take into account." I have experience in legislative drafting and I certainly have experience in litigation and I can tell you that those words do not incorporate by reference the federal Expropriation Act.
Senator Johnson: Could you please describe in more detail what purposes you believe could be deemed by the First Nations to be "other First Nation purposes"?
Ms Findlay: As I said before, the fact that it says "community works or other First Nations purposes" already is an expansion from community works. The trouble with what it could mean is that we do not know what it means. There is nothing in any legal dictionary or any case law or any statute that defines what that means. I do know that of the three land codes already developed, I believe the two Ontario bands have not opted for the expropriation powers at this time but the Muskoday Band has. My point is that they can always amend those land codes or expand upon them. Unless the legislation restricts, you cannot look to the land codes to restrict.
"Any First Nations purposes," I would assume, would mean any purpose that the band council in its opinion, that subjective test, deems to be advisable or a good idea for that particular band.
Obviously, unlike what another form of government would do with that kind of power, if a band decided, for instance, that for the general health and wellbeing of its youth it wanted to build lacrosse facilities, it could say that that is a legitimate First Nations purpose and expropriate land for that reason. If there were band members who had certificates of possession on land that was right up against where they had a civic area and wanted to build a seniors centre, they could expropriate.
Senator Johnson: You would like to see Bill C-49 changed specifically in clause 28 more than in any other part of the bill; is that right?
Ms Findlay: That is right.
Senator Johnson: Would you do it with the wording?
Ms Findlay: Yes, either delete that or have it very specific that we are talking about what we normally know as public works.
Subclause 28(4) says that an expropriated interest becomes the property of the First Nation free of any previous claim or encumbrance. Once the decision is made to expropriate there is no going back. That is why it is so important a section and so important to make sure we all know what we are talking about.
Senator Austin: Ms Findlay, on behalf of the British Columbia senators here -- Senator Fitzpatrick, Senator Perrault and I -- I want to thank you for your presentation and commend you for its insight into the issues of Bill C-49. I do not have any questions to ask you on that part of your presentation.
I should like to refer, however, to the very difficult and troublesome issue of the Musqueam leaseholders. In your answer to Senator Andreychuk you referred to a letter that you received from Minister Stewart. I am not sure how, but it happens I have a copy of a letter in front of me dated April 29, 1999. I wonder, is that the letter you were referring to?
Ms Findlay: Is it a page and a half long?
Senator Austin: Yes.
Ms Findlay: That is it, then.
Senator Austin: I wanted to ask you some questions about your response to the letter. I will read a few words here. She thanks you for your letter of April 12 advising that you have had meetings with Chief Campbell, members of his band council and Mr. Harvey, band legal council. She goes on to say:
It was great to hear that the leaseholders and the Musqueam First Nation have met to look at how you might together come to a resolution on a number of your outstanding issues.
I agree that the dialogue is a desirable and even necessary way to proceed to resolve the issues at Musqueam, but I wonder if you can tell us anything here that would not jeopardize your discussions or understandings with the Musqueam Band. Why is the minister so excited?
Ms Findlay: A great deal of effort has been put in over approximately eight or nine years in trying to have direct dialogues between the leaseholders and the band. Those dialogues have not proven very helpful; they have not really led to any resolution of any of the issues.
When all this controversy really sped up around Christmas time, we tried to have meetings but were unsuccessful. However, recently, approximately three to four weeks ago, I was able to arrange a meeting at our initiative with the chief, their lawyer, five band council members and myself and two other leaseholders. It was a very professional and civil meeting, and my impression of that meeting was that the band, as I said earlier in response to a question, is relying on a court decision and is not forthcoming with its own ideas as to options to resolve things. They are looking to us to come up with those ideas.
Following that, I had a further meeting with the band lawyer, a one-on-one meeting, which was very good. He happens to be a classmate of mine from UBC, and it helped that we knew each other. Coming out of that, it was conveyed to me that there was a willingness on the part of the band at least to agree with us that the federal government had a responsibility that they were not presently fulfilling. They were also agreeable to me setting up a meeting with the minister. You have the letter in which she responds to me. That is where we sit today.
Senator Austin: You have not had a meeting with the minister since you received this letter?
Ms Findlay: No. But they have a copy of it and I have telephoned them and they are considering it.
Senator Austin: Some suggestion has been made that the offer of a professional mediator is not acceptable to the Musqueam Band or to the leaseholders. Would you comment on that?
Ms Findlay: At one time I was favourable toward that proposition because we were having a great deal of difficulty talking directly with the band or setting something up. It seemed to me that perhaps if we had an independent professional involved, we would find a way to talk to each other through that person. The band did not like that idea and they specifically did not like the idea of Minister Stewart acting as a facilitator because they want to see her as a party to the discussions, not as a flow-through person.
Now it is no longer necessary, at least at the moment. I have established enough of a connection now with the band that I feel I can talk to them directly and we are not in need of that kind of assistance. I can make myself understood and they have made themselves understood to me.
Senator Andreychuk: Is it your understanding that once a land code comes in under this, the federal government's responsibilities will terminate? Subclause 16(3) seems to imply that any claims you would have, despite the leases having been signed at the time when the federal government was managing the land, would be either extinguished or transferred to the bands.
Ms Findlay: Certainly the whole idea behind Bill C-49 is that the bands can get away from ministerial approval in terms of their land management, use and possession. The thrust of the bill is that once the minister signs off on the land codes et cetera, they are on their own. Because the sections of the bill dealing with land use speak to third party interests, management control and expropriation, in many respects it certainly does take the government out of the equation.
One has to remember that those lands are still federal crown lands. On that heading, one might make the argument that there is still an overriding federal responsibility. Certainly, as the bill goes through, that would be the argument you would hear from me, because I would want them to stay involved. Obviously, however, it does make it far more problematic.
I want to thank you for this opportunity today. In my brief there are a couple of submissions on ideas for amendments from other leaseholders. You have also had a written submission from Charles Locke that I would urge you to take a look at. He is from Vancouver, a Salish Park resident. He spent 10 years as a Supreme Court judge, five years in our Court of Appeal. He is one of the pre-eminent jurists in Canada. He has provided you with a written brief on the bill, although there was not an ability to hear him in person.
The Chairman: Our next witness is Mayor Gary O'Connor, District of West Nipissing.
Mr. Gary O'Connor, Mayor, District of West Nipissing: Mr. Chairman, honourable senators, I appreciate the opportunity to appear before you this evening to speak about Bill C-49, the First Nation Land Management Act and Land Management Framework Agreement.
Before getting into my presentation, I would like to provide you with more background information on my personal experience and to introduce you to Joan McLeod, a land manager for Nipissing No. 10 Reserve.
[Translation]
Allow me to provide some background information about myself.
[English]
My primary and secondary school education was shared with my neighbours from Garden Village, our neighbouring First Nation reserve, and I am still a neighbour of theirs today. It is strange how things work out. I took every opportunity to include First Nations students within my work and recreational environments in order that I might also profit from their specific knowledge of West Nipissing and of its geography, a domain which I pursued into becoming an educator.
In this past capacity as a teacher, I had a rewarding opportunity to share my newly acquired knowledge with the children of my former classmates from Garden Village.
[Translation]
As a secondary school and adult education teacher, I had an opportunity to share my specific knowledge, not only with my students, but also with adults taking related courses.
[English]
Today, I participate in community affairs with my neighbours from Garden Village and other First Nation communities in northern Ontario, especially the Temagami community of Bear Island. In these activities, I have never accepted the second-class citizen perception that is far too commonplace in today's society. I have always defended my First Nations friends' rights and obligations in our community and in our society, and the fact that they are equal in all respects. I will always do so.
Senator Janice Johnson (Deputy Chairman) in the Chair.
[Translation]
I have always supported human equality and I continue to do so even now.
[English]
There are three living languages and cultures in West Nipissing: English, French and Ojibway. I am convinced that our community benefits greatly from this diversity, and I base that assessment on an above-average level of investment within our community.
[Translation]
In our area, the added value of bilingualism is a very important asset, thanks to our aboriginal neighbours.
[English]
I would like to share some particular aboriginal accomplishments with you this evening. First, the union of Ontario Indians headquarters is located on Nipissing land, and this building is renowned as an architectural masterpiece reflective of the concept of the four directions and of the four races. Second, the administrative complex in Garden Village provides a centralized access point to health, social, cultural and administration services. Third, new educational services provide the required education to all students. Fourth, the recent integration of elders with those of West Nipissing has become an excellent working partnership. Fifth, the contribution of past Chief Phil Goulais, who continues to be of assistance as Indian Commissioner of Ontario, is and has been indispensable to our overall well-being.
One of the 14 First Nations requesting this legislation is the Nipissing First Nation, which shares a natural boundary with the municipality of West Nipissing. In my role as the mayor of West Nipissing, I have had the opportunity over the past several years to work with Chief Penasse-Mayer on various issues that involve both of our communities, especially in terms of economic development.
I wrote to this committee on April 3, 1999 supporting Bill C-49 and the Framework Agreement that it ratifies. I wanted to appear before you personally this evening for two reasons. First, I want to reconfirm our support for the legislation and provide more detail on the current working arrangement between the First Nation and the municipality that I represent. Second, I want to emphasize the shared municipal impact that the passage of this legislation will have on our neighbouring communities.
As I mentioned, we have had a very positive rapport with the Nipissing First Nation over the past several years -- and decades, for that matter. We have shared law enforcement activities. We have assisted the Nipissing First Nation when they did not have their own policing services. In recent years, we have worked jointly on boundary issues and have shared resources to ensure that the citizens in our communities had and have more than adequate protection.
[Translation]
We have always been concerned about the need to provide essential services to our neighbours.
[English]
We have also had considerable dialogue on a future housing development in Garden Village, one of the communities on First Nation land. We have discussed a possible project that would see the two communities benefiting greatly from this endeavour. A third initiative is that of a joint economic development committee, which would work on economic projects and would ensure that designated and earmarked profits resulting from these ventures would be reinvested into both communities.
I understand that witnesses from municipalities in the Vancouver area have appeared before you to request amendments to the legislation. Those amendments would require that First Nations consult with neighbouring local or regional governments on the development of the land code or on the land use decisions made pursuant to the land code.
This request seems unreasonable, both to me and to the municipality that I represent. Provincial legislation across the country currently imposes no requirement on municipalities to provide advance planning notices to First Nations. That is certainly the case in Ontario. More formal relationships between municipalities and First Nations would be welcome, but to unilaterally impose this requirement on First Nations would only create unnecessary discord.
A better way to proceed would be for the neighbouring municipalities and First Nations to meet and work out practical solutions suitable to both partners. Under Bill C-49, first nations will be responsible for the management of their lands, and municipalities will have more reason to meet and develop working arrangements. Having federal and provincial governments legislating unilateral consultation requirements is not conducive to dialogue. We in northern Ontario are currently developing open and constructive consultations.
[Translation]
As mayor of the community I represent, it was difficult for me to support the need to make amendments with respect to this legal issue.
[English]
The second issue is the importance of this issue to the Nipissing First Nation. The Nipissing First Nation has a considerable land base from to promote economic growth and to benefit the citizens of their community. They have been active in taking advantage of the opportunities available in our area, but unfortunately the Indian Act severely limits their ability to manage their own lands and resources.
In conclusion, we affirm that this new legislation will benefit the Nipissing community, as well as allowing the First Nation to take a more active role in regional planning, not only in northern Ontario, but also across this great country.
[Translation]
We support the bill as well as the benefits it will provide. Thank you. Kipsish.
[English]
Senator Adams: Is your community similar to the Musqueam reserve in Vancouver? Is the Nipissing reserve similar to the Vancouver situation? What is the difference between Vancouver and Ontario?
Mr. O'Connor: Are you ready for a lesson in geography?
Senator Adams: Do you have leaseholders that have invested $500,000 in their houses?
Mr. O'Connor: We have similar situations, and we have learned to resolve them on a friendly basis. West Nipissing is perhaps the newest municipality in Canada and in Ontario, as a result of the Ontario initiative to amalgamate. We have existed since January 1 of this year. Our neighbours have been there much longer than we have, and they have communities throughout the West Nipissing area. One in particular is Jocko Point, where lease arrangements have been made in the past and are ongoing today. There have been difficulties with certain of the conditions, but to the best of my knowledge all of these difficulties have been resolved in a friendly manner.
Ms Joan McLeod, Land Manager, Nipissing No. 10 Reserve: We are trying to resolve them under the new regime. The leases that are in place under Crown Canada presently represent most of the problems that we are having with the lessees. The reason we got into the land code for Nipissing, other than providing some rules and regulations for our band members and putting in land zoning, was to look at lease arrangements that would be more optimistic.
I heard Ms. Findlay speak earlier about mortgaging capabilities. We have definite ideas on what we would want to do to extend the leases and to allow these people to obtain mortgaging, because that is one of the areas where the Nipissing band's development has been severely economically retarded under the Indian Act.
Senator Adams: Some witnesses have said that some members of the community have not been consulted. Have you consulted with the community?
Ms McLeod: We have consulted with both Jocko Point and Beaucage, and also with our band membership.
Senator Adams: Have you had public meetings with the community, or with the bands only?
Ms McLeod: With our lessees and with our band members.
Mr. O'Connor: No vote has been taken.
Ms McLeod: These meetings were just preliminary, and they were designed to tell them that this is what we are getting into.
One of our lessees, Ms Suzanne LeClair, appeared before your committee last week. On Monday, the Beaucage Association and members of the band council sat down and we had a very good meeting that everyone, including Ms LeClair, left on very good terms. They are hopeful that they will be able to develop something under the land code.
Senator Adams: This is not part of the park. This is a reserve?
Ms McLeod: It is a reserve, yes.
Senator Adams: Which is a little different than the Musqueam.
Mr. O'Connor: We do share the same boundary.
Senator Adams: What is the difference between the park and the reserve?
Ms McLeod: Our reserve, Nipissing First Nation No. 10, is approximately 19 miles wide by between six and eight miles deep. It is on the north shore of Lake Nipissing. The municipality of West Nipissing now shares our western boundary and Sturgeon Falls, the largest of these communities, is within a quarter of a mile. It is right there.
Our eastern boundary is shared with the city of North Bay. These two communities joined us in the late 1880s, and they have developed the relationship from there. Our relationship was always singular, however. Even if we had a development like the fur plant, we visited the city of North Bay for information sharing and also for employment and economic growth. We had to talk to them about such issues.
Senator Adams: Is this going to affect the leaseholders on the land? They are not going to lose a 99-year lease or a 20- or 30-year lease. Can they renew it, or is it only a 99-year lease?
Ms McLeod: The band is very optimistic that, along with our lessees, we will be able to develop a lease that would be better and more comparable. We also hope that it would resolve a lot of the past issues that exist under the present lease and under the present land regime, which mandated by the Indian Act.
Senator Adams: The agreement in Bill C-49 has three different types of agreements. Is yours a little different than the B.C situation?
Ms McLeod: We really have not developed a land code at band level, but we are looking at all the capabilities that it has, including expropriation and land leasing. We want to take it all on, but we also want the affected parties to participate. A leaseholder with a leasehold interest would take part in the development of the lease. A band member would take part in the development of the rules on land allotments. On expropriations, all parties would get a kick at the can.
Ms Findlay also spoke about expropriation. We are taking on expropriation because we know that we need that type of power, but we also know that it can be abused. That is why we like the idea that our band membership -- the true owners of the land -- will be able to vote. We would like that chance to develop those rules with them.
Senator Perrault: You have described a situation that almost suggests there is an idyllic relationship between the non-Indian community and the Ojibway. It is good to hear things like this. Has it always been like this, or was this a process that developed over a period of years?
Mr. O'Connor: It developed over a long period of time.
Senator Perrault: You have a local municipal council. Are any formal meetings held during the year between the Ojibway, for example, and members of city council in your area?
Mr. O'Connor: We have had joint meetings -- not of councils per se, but of committees.
Senator Perrault: You designate a chairman of a committee to handle that?
Mr. O'Connor: Yes, committees have met to share input and to discuss possible projects. This is an ongoing activity.
Senator Perrault: In your testimony, which was very eloquent, you suggested that you would prefer to undertake a journey into faith rather than establish any kind of formal process of consultation before land is expropriated. I may be wrong here, but I believe you used the words "unnecessary amendments."
Mr. O'Connor: To the best of my understanding, amendments would only delay the process and perhaps make it a historical document rather than an economic step into time, and time is of the essence.
Senator Perrault: It seems to some of us that the situation varies from point to point in the country, and that, to some extent, every aboriginal band is also different. You believe that, within the powers that are offered by this act, we can achieve some real improvements for the aboriginal population in your area. How many people are in your area?
Mr. O'Connor: In West Nipissing?
Senator Perrault: Yes.
Mr. O'Connor: Fifteen thousand.
Senator Perrault: How many people are Ojibway?
Mr. O'Connor: Ten percent.
Senator Pearson: Ms McLeod, did you welcome the opportunity that this bill affords your band to work on issues around women's rights in divorce and separation?
Ms McLeod: On our reserve we have had instances where couples have separated. Whoever has custody of the children <#0107> whether they are native or non-native -- has been given the use of the matrimonial home. But, we have had difficulties with what is in existence in Ontario on the division of property rights with custody and things like that, and what is available under Canadian law. At least the Land Management Act provides for a matrimonial division of property or at least for the band to vote on what those rights are.
Our community is sort of unique, too. We have had couples automatically settle their affairs, and one would pay off the other. We have also had one instance where a couple could not agree. In cases where there is no amicable solution and the children are affected, we would to be able to sit down and talk with our own band membership and to some of our non-native spouses in order to get their input. There are about 80 or 90 non-native spouses on our reserve.
Senator Pearson: This is an opportunity to clear up the question of the 25 percent. Is your band membership almost all on the reserve, or is some of it elsewhere?
Ms McLeod: We have 1,800 band members. Out of that band membership, our last population census found that we had 790 living on the reserve. In the immediate area of North Bay and Sturgeon Falls, we also have about 230 more band members who have immediate access to the reserve all the time. The rest of the population is dispersed throughout North America.
Senator Pearson: My understanding of what that means is that, when you have the vote on your land code or the referendum -- are we talking about a referendum?
Ms McLeod: Yes.
Senator Pearson: My understanding is that the 25 percent only refers to making sure that at least 25 per cent of your members vote in a vote where you get 50 per cent plus one. Is that your understanding?
Ms McLeod: Yes, that is my understanding.
Senator Pearson: I wanted to get that clear. It just makes sure that a basic percentage of your membership has actually voted. Of that membership, it will then be 50 per cent plus one.
Ms McLeod: Under the legislation, a band can choose to make that requirement stricter in their land code.
[Translation]
Senator Gill: Thank you, Mayor O'Connor and Ms McLeod for your presentation. Yours words were comforting and as far as I am concerned, they augur well for the future of other aboriginal groups.
[English]
Sometimes we are not confident that things can be done between the natives and the non-natives. Listening to you, we see that it is possible, and that it is very important.
Did this mutual confidence start a long time ago on a project? How did it start?
Mr. O'Connor: The relationship that you are referring to is certainly a long-standing one. For example, my grandfather worked as a woodcutter in the Nipissing area and actually had some of our First Nations as his workers. He always had a keen respect for his workers and for our natives. This is a concept that was brought into our family and shared with each family member. Much of this occurred throughout West Nipissing.
Once we become knowledgeable of our First Nations' depth and intensity of thought, we can only appreciate their presence and contribution.
It boils down to one word, honourable senators -- education. We need people who will take the time to educate properly. That is the bottom line in building this relationship.
If any one of you wishes to visit West Nipissing and the Nipissing First Nation for a hands-on educational approach, you are more than welcome.
The Deputy Chairman: Thank you very much for appearing before us. It has been an excellent exchange, and I am sure we will from you again in the future.
I will now return the chair to Senator Watt.
Senator Charlie Watt (Chairman) in the Chair.
The Chairman: Our next witnesses, honourable senators, are representatives of the Interim Lands Advisory Board. This is the second time they have appeared before our committee.
Please proceed.
Mr. Robert Louie, Chair, Interim Lands Advisory Board: Before I proceed, I would like to introduce the chiefs and council members who are with me this evening. Allow me to present Chief Bill McCue of the Georgina Island First Nation, Ontario; Chief Austin Bear of the Muskoday First Nation, Saskatchewan; and Chief Joe Mathias, Chief Bill Williams, and Councillor Harold Calla, all of the Squamish First Nation.
We would like to proceed in the following order. Chief McCue will make the first presentation, then turn to Chief Bear, then to Chief Mathias, and then to myself.
Chief Williams and Councillor Calla are available to answer specific questions should they arise. We also have several technical staff on hand should further clarification or answers be required.
Should legal questions arise, particularly those that relate to expropriation, our legal council, Bill Henderson, is here to answer them.
Before we proceed with Chief McCue, honourable senators, I wish to refer you to a folder of additional information to which you may wish to refer to during our presentations. For the record, there are eight items in that folder. First, the Anishinabek Nation letter dated May 5, 1999, to Senator Chalifoux; second, a Bank of Montreal letter dated May 4, 1999, to Senator Watt; third, a Peace Hills Trust letter dated November 17, 1988, and addressed to Mr. Guy St-Julien, MP; fourth, a Park Royal Shopping Centre Ltd. letter dated May 4, 1999, to Senator Watt; fifth, a Ratcliffe & Co. letter dated May 3, 1999, to the Squamish Nation Council; sixth, Mayor Lonsdale -- Squamish Municipality -- letter dated March 24, 1999, to the Honourable Jane Stewart; seventh, a District of Squamish letter from Trudy Coates to Harold Calla dated March 2, 1999; and eighth, a Ts'kw'aylaxw First Nation letter dated May 4, 1999, and addressed to Senator Chalifoux.
I would now like to turn it over to Chief McCue.
Chief William McCue, Georgina Island First Nation: Mr. Chairman, I would like to thank the honourable senators for this opportunity to speak to you and to present a few facts.
My community is situated in southern Ontario on Lake Simcoe, which is about 50 miles north of Toronto, one of the largest cities in Canada. We presently have 500 leases with non-aboriginal tenants.
We had a situation early in March where our leases were expiring. The designation was also expiring. I thought Bill C-49 would be passed and wondered why we did not have a redesignation of our property.
We renegotiated a one-year permit with the leaseholders. It was an amicable agreement between the cottage association and myself, and they thoroughly support our endeavours for self-government. I had several meetings with them.
Given that we are so close to the major urban centre of Toronto, leasing is one of our primary sources of income. Once Bill C-49 passes, we will be able to pass our own land laws. Our community passed its land code with an 88 per cent vote in favour of the code.
I would like to read into the record a letter from the Deputy Grand Chief of the Anishinabek Nation, which is a member of the Union of Ontario Indians. I would like to share with you and the committee members the collective thoughts of the 43 Anishinabek Nation communities on the ramifications of Bill C-49 being passed into law before this session of Parliament ends. The letter is dated May 5, 1999.
Senator Austin: Do we have a copy of this letter in front of us?
Mr. McCue: Yes. It is the first item in the package.
The letter states:
As Deputy Grand Chief of the Anishinabek nation in Ontario, I am following closely the Parliamentary process of Bill C-49, the First Nation Land Management Act.
We understand the nature of expropriation. We understand it from the debates that have taken place at this committee and in Parliament. We understand it from our own communities. This is a serious matter. As Mr. Henderson has said, it was not the intention of First Nations to mimic the Expropriation Act, but to look at fairness. Fairness is the bottom line in the whole issue of expropriation. That is the bottom line for the chiefs and for our communities.
Senator Andreychuk: You refer to fairness as defined by whom?
Mr. Louie: I do not know if I could get into lengthy discussions about fairness. I refer to fairness in the pure sense of the word; fairness in the sense that third-party interests need to be protected. Equally, First Nation members' interests must be protected. Good governance dictates that fairness is the root and the underpinning of good land management. I refer to fairness in that sense.
Senator Andreychuk: As a result of taking a totally different look at expropriation, you came up with the provisions in the bill. Do you now believe, from a legal point of view and on behalf of the various bands here, that there are wider and different powers and more capabilities for expropriation in Bill C-49 than in the federal Expropriation Act?
Mr. Henderson: Senator, let me finish on fairness. You asked who defines fairness. Ultimately, it is done by a set of professional appraisers. The rules in the federal Expropriation Act are similar in all expropriation procedures. They set out heads of compensation and additions and subtractions and factors to be taken into account. Some of them are reasonably well understood. Others are a little more arcane and are particular to expropriation law.
Teams of appraisers interpret these factors and, ultimately, it becomes a comparative exercise. If somebody departs wildly from what appears to be a fair approach, the courts reign that in, if it goes that far.
The first step, of course, is negotiation over compensation.
As a result of our consultations, I see a different meaning for "other First Nation purposes" than "public purposes" under the Expropriation Act. There is a premise -- which, in my respectful submission, is false -- that "public purpose" is the only way of expressing expropriating powers. It is not standard in federal statutes. There are two aboriginal self-government statutes which use "community works" and "other community purposes." In this case, we use "First Nation purposes."
The limit upon public purposes in a federal statute is effectively constitutional in nature. Canada can expropriate for peace, order and good government, marine hospitals in zones of quarantine, fortifications, national security, et cetera. I do not think First Nations would intend "public purposes" to mean precisely the same thing.
Senator Austin: I realize the witnesses have not finished, but my question is precisely on this issue. It can be very difficult to come back to it once we have a number of other issues under discussion.
I would like to pursue with you, Mr. Henderson, the process of adjudication. The band will set up the process of adjudication and appoint the adjudicators. These will not be the valuators, but the people to whom the valuators refer their professional opinions.
Is there any process from that stage which would permit an objective review of the adjudicators' conclusion?
Mr. Henderson: The answer to that is yes, senator. The breadth of the review depends on the stage at which it kicks in. If the purpose is challenged, then it is a standard section 18 Federal Court application for judicial review of the exercise of the power that is available in every expropriation. If the issue is compensation, then under the framework agreement and Bill C-49 -- and the Ratcliffe & Company memorandum that you have in front of you deals with that -- it would be depend on whether the process was keyed to a verifier or an arbitrator, et cetera.
Senator Austin: It is a "reasonable person" test.
Mr. Henderson: In that case, only some of section 18 of the Federal Court Act is available for review. The process may be other than that. If it is, for example, a board which hears all the appraisers and makes the determination, then there is a standard section 18.1 review to the Federal Court under the Federal Court Act.
Senator Austin: What is the policy need to exceed the federal government's powers of expropriation which are, as counsel Mr. Henderson has mentioned, wide-ranging and extensive? Why does the definition need to be something new and undefined in any judicial process?
Mr. Henderson: I do not think I suggested, senator, that that the "other First Nation purposes" are broader than those which the federal government would exercise under "public purposes" pursuant to the Expropriation Act. In fact, I suggested that they are narrower. The constitutional range of powers of Parliament and the executive is much broader than First Nations will assume for control of lands and resources under their framework agreement.
Senator Austin: I agree. In terms of the powers which should be given to a community, the federal Expropriation Act can set standards for those powers. That is the legislation that deals with this type of expropriation. I wonder why more power is required as a matter of policy. You clearly suggested to Senator Andreychuk that these powers were "wider and more varied." Those were, I believe, your words.
I am curious to understand this additional need for power. Are you saying simply that nothing you said requires more powers in the process of expropriation than would now be available in the federal Expropriation Act?
Mr. Henderson: I said to Senator Andreychuk with respect, sir, that I see "public purposes" -- in the sense that they are federal purposes in the Expropriation Act -- as being broader than "other First Nation purposes" would be. I said they were different. I did not say that I see them as being wider powers than the federal government would hold.
Senator Austin: Under the Expropriation Act?
Mr. Henderson: Yes. The Expropriation Act is, of course, the act which the federal government would use, at the present time, to expropriate these very lands, whether in the hands of a non-Indian interest or not.
The intention here is to capture the fact that the First Nation has purposes; that the First Nation is a community, and that it is a distinctive type of community. Whether we use the term "community works" and "other community purposes" or simply "community purposes" -- which exists for other First Nations in Canada under federal statute in relation to expropriation -- or "First Nation purposes," the term would simply reflect the fact that there is a community benefit. It reflects the public aspect and it reflects that the community is, in fact, a First Nation.
There is nothing magic in the wording. With great respect to all who have suggested otherwise, there is nothing sinister in not using the same wording that is used in the federal Expropriation Act.
If you look to the other federal statutes and then to the whole range of provincial statutes, you will find more different wording for authorized purposes for expropriation than you could possibly imagine.
"Public purposes" does not even occur in most of the statutes that authorize an entity to expropriate land.
Senator Austin: Clause 28(1) reads:
...expropriate any interest in its first nation land that, in the opinion of its council, is necessary for community works or other first nation purposes.
You said that two other pieces of federal legislation use that exact wording.
Mr. Henderson: No. In 1984, the Cree-Naskapi (of Quebec) Act was passed, and with respect to Category IA or IA-N Naskapi lands, the councils of those Cree-Naskapi bands can expropriate band for community works or community purposes. That is the wording used. There is no reference to the Expropriation Act.
Senator Austin: Is it "or" or "and"?
Mr. Henderson: I will double check. I am sorry. It is stated the other way in the Cree-Naskapi Act. It is "for community purposes or community works."
The other act is the 1986 Sechelt Indian Band Self-Government Act, which authorizes the council to make laws in respect of "expropriation for community purposes."
Senator Austin: Do you give any different meaning to "or other first nation purposes" which is contained in clause 28(1) of the bill? Does that mean something different from "for community purposes or community works"?
Mr. Henderson: A few weeks ago we suggested to the committee that there is, in fact, no difference. If a court looked at "community purposes," it would be hard pressed to ignore the fact that in these cases the communities are First Nations. If a court looked at First Nation purposes, it would be hard pressed to ignore the fact that a First Nation is a community, so one just runs around the same track in the other direction.
Senator Austin: Would you be prepared to recommend to your clients the use of the phrase "for community purposes or community works" in place of "is necessary for community works or other first nation purposes"? You say it is no different, so I take it that an amendment that uses the Cree-Naskapi language would be acceptable to you.
Mr. Henderson: I do not see that it says anything different. People say that "first nation purposes" does not occur in any legal dictionary and has not been construed by any court. In fact, neither have these words.
Senator Austin: I am happy with your answer. I wonder whether that is acceptable to Chief Austin Bear.
I do not mean to put you on the spot, Chief Bear. Perhaps you might answer my question later in the discussion.
The Chairman: I do not think that question should be answered at this point. That should be reserved.
Senator Tkachuk: Mr. Henderson, you mentioned "sinister reasons," but I have not heard any. Over the last little while I have heard a lot of fairly competent lawyers from different jurisdictions across the country say that there is a problem here, because the words do not mean the same thing to everyone. Does that not give you any cause for concern? To me it means that a lot of money will be spent on a lot of lawyers in the next while. Is it not cause for concern that there is this varied opinion on what you say should be a fairly simple matter of law, or are they all wrong?
Mr. Henderson: I have not tried to be simple-minded about it, or to deny that "other first nations purposes" is a fairly novel wording, but it is informed by all the other statutes dealing with the same thing. Those would include the Sechelt Indian Self-Government Act, the Cree-Naskapi (of Quebec) Act and the federal Expropriation Act, which can be used in respect of reserve lands. Similar statutes would also include the Indian Act, which Mr. Louie is turning to with the minister under section 18(2) now. It is new, but all those aspects are captured.
I do not see it as creating any problem. I do not see it as creating inevitable litigation. People may perceive sinister motives, but if any of these powers are exercised in a way that someone does not like, there will be litigation. However, I do not think a court will have any more difficulty with it than if it said "community works," "public purposes" or anything else. I think "other first nations purposes" is perfectly rational wording. It is novel, but that does not mean that it is bad.
Mr. Louie: Mr. Chairman, I was wondering whether to refer you to the specific wording of 18(2), which refers to existing expropriation powers under the Indian Act. It may be helpful for senators to look at that clause.
We would like to turn to Chief Austin Bear for the next part of our presentation.
Chief Austin Bear, Muskoday First Nation: Good evening, honourable senators. I should first like to take the opportunity to thank you for welcoming my appearance here on behalf of the Muskoday First Nation, and for giving me the opportunity to express my thoughts on this critical piece of legislation.
The Muskoday First Nation is a signatory to Treaty No. 6 in the territory of what is now Saskatchewan. It is one of the three communities that ratified the Framework Agreement. Our members voted in favour of it, ranging from 87 per cent to 94 per cent. The people of the Muskoday First Nation ratified the Framework Agreement by 89 per cent. Few governments can claim such support from their constituents in matters dealing with their lives and their destinies.
In light of the concerns raised by First Nations women's groups from different parts of the country, and with all due respect to those organizations, it is interesting to note that the majority of voters on this particular referendum for the Framework Agreement were women. These women take an active role and an active interest in the proceedings of our First Nations community, not only in land management but also in other areas that directly affect their lives, their children, and the lives of their men.
It is not uncommon to hear First Nations say that it is indeed the women who are the leaders and the decision-makers. We toe the line and do what they wish us to do.
After the women's groups raised concerns about this particular bill, the women of our community took it upon themselves to draft a petition against these women who have no authority to speak on behalf of the women of the Muskoday First Nation. Many of these women signed that petition which said that these women claiming to represent the women of Muskoday do not, in fact, represent them, and should not speak for them officially. That petition was read into the record in the other place and I bring it to the attention of this place.
I respect and appreciate the matrimonial concerns about which these women spoke, and I am sure they have legitimate concerns in some areas. However, none of these women live on the Muskoday First Nation, nor do they have any experience or knowledge of the Muskoday First Nation. The Indian Act is silent on matters of the division of matrimonial property upon separation or divorce, and it is clear that the provincial law does not apply in First Nations communities, or on First Nations land. With that in mind, it would do little good to go to our people and tell them that they cannot divorce or separate because we have no law to deal with that. However, common sense prevails and says that in the absence of law, we still have to deal with these issues. In fact, we have dealt with it for decades -- for generations, perhaps centuries.
In the unfortunate instance of divorce or separation, and particularly if children are affected, it is our practice to make certain that their interests and protection are paramount. A matrimonial home is awarded to the parent who will be the primary care giver to these children, regardless of sex. It may be a single father or a single mother at the end of the separation or divorce. It may be a band member or a non-band member.
We also have traditional laws and ways of protecting our women against violent men. We have banished males from our community who have threatened, hurt, or are likely to threaten a woman at the time of separation. Beyond banishment, we have made every effort to assist these men in dealing with their problems and working through them, so that one day they can come back into the community and not be a threat to anyone.
I will be as brief as possible, but I would not be fulfilling my duty as the chief of the Muskoday First Nation if I did not take this opportunity to speak on behalf of my people as adequately and as thoroughly as I possibly can, time permitting.
Our members are becoming impatient with waiting for the implementation of our land management code, which they have already agreed to and supported and passed. We can no longer sit and watch while economic opportunities pass us by and our people continue to have only social assistance and despair for their future. I believe we owe them more than that.
We have been ravaged by the paternalistic Indian Act for generations. We feel the brunt of the Indian Act from cradle to grave, and that is not overly dramatic. You can only say that if you have experienced it. Words from others who have not experienced that are meaningless.
Certain sections under the Indian Act allow the First Nations certain delegated authorities to manage lands, and those authorities are granted by the minister or by an Order in Council. The Muskoday First Nation sought that delegated authority in 1962 or 1963, but it took 15 years for the Muskoday First Nation to have and enjoy that delegated authority to manage their lands.
From 1989 to 1999, we have been working on the land management agreement and on this Bill C-49 -- another 10 years. Why does it take so long for First Nations initiatives and First Nation development? We also have needs and desires, no different from other Canadians.
Let me give you an example. Five or six years ago, a farm implement company wished to move its business operations from Kansas to Saskatchewan. They wished to enter into a business arrangement with a First Nation, and they selected the Muskoday First Nation for reasons known to them and to us.
Why should they set up their operations or their manufacturing plant in our community? As the discussions went along and time was a factor, these people did not have two or three years to relocate and set up their business. However the Indian Act dictated that it would take perhaps two to three years to get a lease. These people said no; we will set up our business elsewhere. That meant opportunities, jobs, and employment for our people were lost. The people of Muskoday say that it is our decision if we wish to use our lands for that purpose, for the benefit of our people and for the growth of our nation. That is our decision. It should not rest at some other level of government.
With respect to expropriation, I have heard arguments and explanations from both sides. Depending on which explanation is most favourable -- if it meets our needs we will say, "this is fine, this works for us." If it does not meet someone else's terms, expectations or interests, it does not work. Meanwhile, at the end of the day, we do not want to be the pawns between interpretations of language and law. The words should mean the same in French, one of the official languages of Canada, as in English. They should not be lost in language and interpretation. If they are, that is why we have the courts. Do we have no trust in the judicial system?
In the Muskoday First Nation we have recently had the opportunity to take all but six persons through a work opportunity program for employment and training. This took all but six people in our community off social assistance. Third party interests held the land we needed for this purpose. Rather than saying, "We will expropriate this land from you and use it for community purpose" we can say, "We will negotiate with you; we will make you a fair offer to compensate you for the return of this land'. However, when the third party learned of the use for the First Nations land, he said, 'I do not want compensation. I will give you back the land'. This is how minds and people with common interests work together.This way decency prevails. Failing that, you need expropriation laws. That is what is in this bill.
In conclusion, honourable senators, after 10 years of intense consultations with representatives of every conceivable interest, we are at the end of our tether. If this small piece of self-government cannot be realized, then larger ambitions of self-government are certainly decades away. Meanwhile, the issues continue to mount as our people increase in the Canadian population. We want to be part of the solution. Our First Nations are ready now, after decades, to move into the next millennium with pride and dignity.
We, the First Nations of Canada, are more than an interest group, or a third party interest. We are partners with Canada, under treaty and other arrangements and agreements, recognized and guaranteed in your Constitution.
Chief Joe Mathias, Squamish First Nation: I have the responsibility and task to outline a number of issues that concern us. I shall be as brief and as clear as possible as to what we are doing. My name is Chief Joe Mathias of the Squamish Nation, hereditary and elected chief for the last 32 years.
In the interest of brevity, and for the record, I would like to bring to your attention letters of support from a financial institution and from a corporate citizen of the Squamish Nation.
First, I refer you to the May 4, 1999 letter from Mr. Ron Jamieson, Senior Vice-President, Aboriginal Banking, Bank of Montreal. The fourth paragraph states:
There are certainly special considerations to be addressed by any financial institution in relation to financing of projects and interest on First Nation land, and these are more complex under the current Indian Act than they will be under First Nation land management. Of these many considerations, including the normal business and lending concerns we would have in considering any lending transaction, I can confirm that the possibility of some future expropriation by any public authority is the least of them.
The fifth paragraph states:
I do not recall the potential of expropriation being a factor in any of the deliberations in which I have participated over the years with respect to financing on reserve lands, nor did I consider that it will be a greater factor in years to come. As always, our concern will be the soundness of the investment that we make and the security that we have in the event of default.
We are a Bank of Montreal client, and we deal with them extensively on any projects or developments on Squamish reserve lands.
The third letter in your package is from Mr. Warren W. Hannay, President and Chief Executive Officer of Peace Hills Trust. In the fourth paragraph he says, with respect to Bill C-49:
We welcome the Framework Agreement and Bill C-49, which will give First Nations the option, if they so choose, to the legal capacity and authority to deal with reserve lands directly. We also anticipate that there is likely to be significant economic benefits for these 14 First Nations, and their members, from a more efficient and practical legal regime.
I think it is significant that these financial institutions offer their support, comments and views on Bill C-49.
The fourth item in the package is from the Park Royal Shopping Centre Ltd. They lease 55 acres from the Squamish Nation, Capilano Indian Reserve 5. The West Vancouver citizens consider this shopping centre to be the gateway to their community.
The development was put in place in 1958, and its current assessed value, for our taxation purposes, is in the neighbourhood of $213 million. The improvements on this 55-acre lease include: three Park Royal towers, in which there are 505 units; a regional shopping centre; a high-rise office tower; a bowling alley; theatres; a restaurant; a golf driving range; and many others. This facility exists on our reserve.
Let me quote the fourth paragraph of this letter, in which they state, in relation to Bill C-49, that they "have enjoyed a long and successful working relationship with the Squamish Nation." Further down in the same paragraph they state that "in terms of the existing powers of the Squamish Nation as a governmental authority, we have never had a problem.
The fifth paragraph states that: "With respect to Bill C-49, we believe that it is in our interest as a major tenant of Squamish Nation reserve land for this bill to become law."
The seventh paragraph states:
The sooner the Squamish Nation is given the necessary power and authority, the sooner it can get on with the important job of defining the rights and responsibilities of all stakeholders in the context of a comprehensive land use regime.
The eighth paragraph states:
With respect to the assertion that financing of leasehold interests will become more difficult with the passage of Bill C-49, we believe that this will not be the case.
Finally, the closing paragraph states:
Institutional investors and financial institutions are becoming increasingly comfortable with providing financing for ourselves as a tenant on designated reserve lands. This is in part due to the demonstrated level of ability of the Squamish Nation as a government authority. To the extent that Bill C-49 assists the Squamish Nation in this regard, we expect that financing will be easier to obtain, not more difficult.
I refer you as well to Mayor Lonsdale of the Squamish municipality, and her letter of support regarding the passage of this piece of legislation.
In closing, Mr. Chairman and honourable senators, I believe that we are at an extraordinary and historical moment. Someone said we must seize the moment now. Failure to pass this bill in its present form will relegate First Nations across this country to the back eddies of the legislative agenda.
If the present government has expressed a national will regarding self-government matters relating to First Nations across the country, it is expressed in its policy statement of the inherent right to self-government, passed by the caucus and the cabinet some two years ago.
It was an extraordinarily bold step for a non-Indian government to venture out and say that it the First Nations' inherent right to govern themselves, and to publicly state its intention to begin processes to implement that inherent right across this land. The government said that recognition would be expressed in many forms, and one of those forms is before you now for your consideration.
Bill C-49 is a small measure, and in my mind, its objective is clear and simple. It is about the orderly transfer of the minister's powers to manage our lands to the First Nations. It will bring that power to the local level, where it rightly belongs.
When we talk about reserve lands, we are not talking about private lands. We are talking about lands that belong, collectively, to the cultural, political, and social entity that is the Squamish Nation.
These are our villages -- these are our homes. We have been struggling these many years under the provisions of the Indian Act. We are like a windmill in a land without wind. We are not moving forward in a manner that we, as a people, desire.
If there is a national and governmental will to recognize First Nations' right to self-government, the government should demonstrate that will by passing this bill into law as quickly as possible. The good work that we have put into this endeavour and this historical moment should not be wasted. In our view, at this point in time any amendment of the legislative agenda and the framework that we are in will put this legislation at serious risk, and it will eventually die. That is the wrong signal to give aboriginal people in this country, especially in light of the inherent-right policy statement by the Government of Canada.
We encourage this committee and we encourage the Senate to move on with this bill. It is time to turn the corner. We do not have any assurance that, if this bill is subject to amendments at this point in time, it will ever return and become law. As I said earlier, the objective is clear and simple.
The Nisga'a treaty is large and complex and deals with a component of self-government inherent to the Nisga'a people, along with other provisions. Already we know that that has been pushed back a few months because of Parliament's legislative agenda. An amendment at this point in time on this piece of legislation will push us back, and it may never survive. I believe that is the wrong signal to send. I believe that we must express the national will and the goodwill to move forward with respect to Bill C-49.
With that, Mr. Chairman, I thank you and your colleagues for taking the time to listen to what I had to say on this important measure.
The Chairman: Thank you, sir.
Mr. Louie: Honourable senators, the presentations before you are drawing to a close. You have much information to digest.
Before I proceed further, I would like to make one clarification for the record. Some of you have referred to me as "Chief Louie." I am no longer the chief of my community. I did serve for 10 years as chief, but my term expired over two years ago. However, honourable senators, I thank you for your kind reference.
I will refer you to the letter from the Ts'kw'aylaxw First Nation, which is addressed to Senator Chalifoux. The Chief of Ts'kw'aylaxw has asked you to circulate his letter in response to the presentation to the committee made last week by Mr. Brian Wallace on behalf of Continental Lime Limited. As you will recall, Continental Lime is mining minerals on the reserve lands of the Pavilion First Nation.
Chief Alec and his council want you to be clear on the factual background concerning Continental Lime's extraction of minerals from reserve lands without the authorization of the chief and council. The First Nation refused to renew the lease with Continental after 1994 because their three concerns were not met. Those three concerns, I believe, are articulated in Chief Alec's letter. The letter is self-explanatory.
Chief Alec wanted to be here, but he could not attend because of the time and expense required. He felt, however, that it would be proper to have his letter entered formally into the record of the committee. I hope you accept that from his community.
Chief Joe Mathias has told you that no amendments are necessary. Several of the presenters have either tabled with you or verbally requested amendments to Bill C-49 and, honourable senators, in our respectful opinion no amendments are necessary. You have heard from our chiefs and from some of our councillors. You have heard from some of our land managers. You have heard from some of our legal counsels and from other representatives.
We ask you to carefully consider our presentations, both verbal and written. The written materials have been laboriously and meticulously prepared. We strongly and confidently believe that the questions you have posed, and those raised by the presenters who have either opposed Bill C-49 or suggested amendments, have, in fact, been answered. We urge you to find the time in your busy schedules to carefully read the materials that we have provided. The expropriation issue has been well covered.
The Chairman: Mr. Louie, I should like to give an opportunity to the senators to ask some questions. I believe you already provided us with the written documents, and I do not believe it is necessary for you to read them because we have them. I wish to ensure that there is enough time for senators to question you.
Mr. Louie: Then, Mr. Chairman, I wish to make certain that the record is clear. I believe you have a copy of my speech and that it forms part of the record?
The Chairman: Yes.
Mr. Louie: We believe there are some important points in there.
Senator Perrault: We have heard some interesting and helpful suggestions offered by the chiefs who have come before us. Yesterday a group of women alleged that they were not given any role at all in this process. You say that no amendments should be made. The women claim that they have not had proper input and that their right to be heard has been denied. I believe you deserve the right to reply to that rather serious allegation.
Did you have meetings to discuss the bill? How many meetings were held? Were the women invited and given an opportunity to participate?
Mr. Mathias: I will offer my comments and my fellow chiefs will follow up to further clarify the matter.
I will answer in two parts. Reference has been made to self-government in relation to the treaty-making process in British Columbia. I was a big part of that movement. Part of that movement was the establishment of the British Columbia Treaty Commission. We spent years developing that institution, which is the keeper of the treaty-making process. The agreement at that time was that both the federal government and the government of the Province of British Columbia would pass legislation putting into existence that treaty-making process as well as the British Columbia Treaty commission. Once that became a legal entity under federal and provincial law, the First Nations Summit endorsed the British Columbia Treaty Commission.
Once the commission existed, the process was in place by law. I was head of the treaty negotiations for the Squamish Nation. It is in the record that we went to the membership and held two general meetings about the treaty-making process. We received that mandate to proceed at all stages of that process.
The process here, as I understand it, is that the Government of Canada will pass legislation. After much detailed work on the bill, the framework agreement was entered into by a First Nations resolution. The minister got involved in the framework agreement by cabinet order. That began the process to get the framework agreement in place. That is what I understand the process to be.
Once the bill becomes law, then the provisions of that piece of legislation, the management land code, will trigger the process for the Squamish Nation Council and the Squamish people to consider whether or not we should opt into the legislation.
Senator Perrault: That process is yet to come?
Mr. Mathias: Our view is that that was the process to which we agreed. The issue we faced was -- and it is a big consideration -- why present a possibility to the 1,800 or 2,000 members of the Squamish Nation when we have no assurance that this bill will become law? It would not trigger the formal consultation process with our members until such time as it existed. We could then go into detailed discussions with our membership to develop the land code. I am awaiting that eventuality with great anticipation, because it will be the most exciting time in the history of the Squamish people. It will be a time to consider our own constitution in relation to controlling our land and our resources and how we deal with our women; my aunts, my sister, my grandmother.
It is so repugnant to me to think that the Capilano Indian Reserve Cemetery, where my grandfathers lie, belongs to the federal Crown, yet it is our home. That must be changed, and that land must come under our jurisdiction.
My answer to you is that we will embark upon detailed consultations with our membership, and we have already had two meetings to introduce this. If it does not become law in the next while, we are still stuck with the Indian Act regime. If that happens, I am afraid that I do not see any hope that something as innovative as this will become available to the Squamish Nation.
Senator Perrault: The bill may have some minor imperfections, but you are saying that it should proceed, otherwise it will be bogged down forever and never see service again. Is that correct?
Mr. Mathias: If it does not pass in its present form, I believe that it will not survive.
Senator Perrault: That is interesting.
Senator Pearson: I would like to set your mind at ease. Many people do not know much about how the Senate operates and believe that, if we make a small amendment, it will be the end of the bill. That is not the case. We have certain powers, but we do not really have the power to kill a bill.
Senator Austin: Yes, we do. You used the word "power." We have the power.
Senator Johnson: We have done it before, senator.
Senator Austin: I do not want any of you to think that is what we have in mind in this case.
Senator Pearson: I will take that correction. It is important to have this clear. We could vote against the bill, and the House of Commons could then send it back to us. In that sense, we do not have the power to kill it. However, if we go as far as prorogation, we can kill it.
Senator Austin: If they send it back to us and we do not accept their amendment, we can kill the bill. I do not want you to misstate our power.
Senator Pearson: I do not want you to go away with the fear that, if a small amendment were made, that would be the end of the bill.
Senator Perrault: Many bills have been changed and amended because of Senate representation. That is what we are saying.
Senator Pearson: Almost no one has come before us to say that they did not approve of the concept behind the bill. While there have been questions about little pieces of it here and there, people have generally been in support of it. I do not think you should worry too much about that. There will be discussion. The Senate takes its job seriously, and it takes its responsibilities to those we represent seriously. Whatever we do will be done to ensure that we fulfil those responsibilities.
I wish to clarify about this 25 per cent. I have gone back and tried to work out the mathematics. As an example, say you have 1,000 members in a band. In order to vote on your land code, you need approval by more than 25 per cent of the eligible voters. What you really mean is that you need more than 25 per cent voting, unless all your 25 actually vote for it. Could you explain that a bit more? There is confusion about this 25 per cent.
Mr. Henderson: Let me explain it briefly, if I can. If you have 1,000 members, under the framework agreement all of those members must be informed of the land code that is being proposed and of the fact that they have the opportunity to vote. Five hundred of them must vote. If 50 per cent of the electors do not vote, the vote is a nullity. If you do have 50 per cent of the electors voting, a majority of those who do vote must approve, meaning that at least 25 per cent must say "yes" at some point.
If you were to have 36 per cent vote of the electors vote, and 80 per cent of them were to say "yes," it would not work. If 49 per cent were to vote and 80 per cent of them were to say "yes," it still would not work because at least 50 per cent did not vote. In no case can less than 25 per cent approve.
That floor standard can be raised by the First Nation under the framework agreement, if they wish to do so. Fifty per cent must vote, and a majority of them must approve, which means basically the floor approval rate must be 25 per cent plus one.
Senator Pearson: That is helpful. In some people's minds, it meant that only 25 per cent had to vote. You have clarified that for me.
You said that the voters must be informed. Is there a specific mechanism for informing them?
Mr. Henderson: The First Nation determines which process it will use to make the information. That process is then independently verified to ensure that it is reasonable and that every attempt is made to get the information to every adult member of the band, wherever they live.
Senator Adams: I believe there are over 500 reserves across Canada, from B.C. to Newfoundland. Why does this bill affect only 14 of them? Have the rest of the reserves not asked to be part of this measure?
Mr. Henderson: That question has been asked many times, senator, by members of Parliament and other interested individuals. Land management is a very complex area. We have not gone out and individually solicited the support of the 610 First Nations across Canada. We have not gone out and actively solicited First Nations to get on board. In fact, few First Nation communities in Canada are ready to handle governance in the form that we are proposing here. We are talking about land management, which is the management of reserve lands and resources. It is a complex issue.
Many First Nations have given us verbal support. We have 15 or 16 band council resolutions on file indicating that they wish to be part of this process or part of the second wave. They are awaiting the outcome to see whether or not this legislation becomes law. We know there is interest from other First Nation communities.
This becomes, if you will, a model. The Department of Indian Affairs is looking at this carefully as well. There is expense, and that is part of this process.
More important, there is a need to be ready -- and to feel ready -- to be part of this process. This is the end result. We have had many discussions with the Assembly of First Nations. We have had many debates internally over the past 10 years with members of the Assembly of First Nations and participants in it. It was made clear to us that chiefs, communities, and First Nations across Canada cannot be forced into this. They must have that decision-making capacity totally within their communities. They must decide whether or not they wish to opt in.
Fourteen First Nation communities have opted in and are now ready to proceed to the next phase. Believe me, there is a tremendous amount of work to do. Three First Nations have passed land codes, and 11 have yet to do so.
This goes along with the question with regard to the membership. It is informed consent. Nothing is hidden under the table in presentations to members of First Nation communities. Everything must be there on the table.
When you are looking for support of First Nation members, you are not talking just about members on the reserve, but also off the reserve. It becomes a difficult task. We have two chiefs here whose communities have passed land codes, and it is a tremendous amount of work to get the informed consent and then to get a vote of this magnitude.
The Government of Canada and each of the provinces, as you are well aware, have a difficult time even maintaining an adequate number of votes in any decisions made. This is a significant requirement for First Nations.
Senator Adams: Bill C-49 is very complex. Even the House of Commons really did not want to deal with it, which is why they sent it to us. We are not elected, and we can do what we want. I have been here for 22 years. Bills have been amended in the Senate during that time. Sometimes the House of Commons does not accept our amendments, and the bills die. I am especially worried about women's rights in terms of this bill. If there were a guarantee in the bill, then it might be okay. There should be some small amendment to alleviate the concerns with regard to women's rights
We passed the Nunavut land claim, and three years later we had 60 amendments. We passed them in the Senate about four or five months ago. People worry about land and its value and that they will not lose their houses. Our committee is concerned about this. We do not want to kill the bill.
You have a letter from the Bank of Montreal, and in the Senate we deal with many financial issues. Every bank must have a guarantee or security in the event of default, and a businessman will borrow money.
Mr. Henderson: Senator, I will offer comments on two of the points you have raised and turn it over to my colleagues for the third point on financing.
I appreciate your comments that it is not the intention of the Senate to kill this bill. However, we are concerned that it is now May 5. It is usually the practice of Parliament to end the session in June, and we anticipate that happening. The fact of the matter is that our days are limited. There is not much time. We understand the process to be that you must make your suggestions or recommendations. The bill is then reported to the Senate. If there are amendments, the bill must go back to the House of Commons, and we are very concerned that time will run out. If Parliament prorogues, then we have a serious difficulty on our hands. All bills left on the Order Paper will die. That is a legitimate concern.
The Chairman: Let us not get into a debate here. That is not the purpose of this hearing. We would like to deal with the issues and stick to them.
Senator Austin: I am personally very happy to hear what you have just said.
The Chairman: Yes, we are happy to hear what you have to say.
Mr. Henderson: The second point was the matrimonial issue. I know that is a significant topic. As we mentioned before in previous presentations, we have dealt with that issue in the most appropriate and fairest way possible. We have a mechanism in place to ensure the protection of women's rights and to ensure the protection of people of both genders, children included, both native and non-native. What fairer process, we ask, is there than to present that to the community for full debate, knowing that the gender provisions in the Charter of Rights apply? That is not singularly understood by many who oppose what has been done here.
This is a serious issue. Our communities have dealt with it and have made amendments to clarify the framework agreement. With all due respect, we believe that this issue has been appropriately dealt with and that a fair process is in place.
Senator Austin: I want to thank Robert Louie for his statement, which has satisfied me on a number of points. I do not need to pursue the questions I intended to pursue with you.
I was concerned about understanding the language of your concern. The committee will meet and decide whether an amendment is desirable. We are not there yet , but that will happen sometime next week. We will be asking the minister to assure us that the government will give such an amendment top priority on the legislative agenda of the House of Commons. If the minister cannot give us that assurance, we will take that into account at that point.
I simply want to repeat what Senators Pearson and Adams have said. On many occasions, we have amended government bills because native communities have asked us to do so. We have told the government to change this process. A recent example was the bill dealing with national parks, which made no provision for consultations with adjoining communities. There was no centre of expertise within the parks branch dealing with aboriginal communities. We said, "You cannot pursue this without that amendment." We wanted the minister to guarantee that such a section would be created, and it was announced this week.
It is a bit of give and take, but we understand your message. I understand it more clearly at the end of the session than I did at the beginning.
CChief Bill Williams, Squamish First Nation: I would like Mr. Calla to respond to the financial question.
Mr. Harold Calla, Councillor, Squamish First Nation: Honourable senators, for those who do not know me, I am a certified general accountant and have been since 1977. I grew up in a self-employed environment and I know about these matters. One of the greatest frustrations I had when I returned to work for the Squamish Nation is that we could not get financing on the reserve. We had to beg to borrow money in order to secure a badly-sold interest through negotiation for fair value. While the government was handing out millions of dollars to everyone else, we could not even get a grant to support the acquisition of our own leasehold interest. It took nine months to get financing to acquire that leasehold interest.
That was 14 years ago, and because of the good work and the integrity of the Squamish Nation borrowing money and paying it back, the banks are now much more aware of us. Over the course of those 14 years, I have been on a personal crusade with financial institutions in this country to ensure that people are able to secure financing for their projects on the reserve.
I was stunned two weeks ago when I was told by Senator Ghitter through his announcements here that a marina on the north shore was having trouble getting financing. It did not take a rocket scientist to figure out who that was. I went to Vancouver on Friday and met with the Blairs and their principals and told them that we were very concerned about their position. We told them that we will act as an advocate on their behalf, as we would with anyone else on our lands, to secure the financing that is available to make things work. It is in our interest to do so.
I will look to the testimony that came out of this committee last night. Before I comment further on it, I want to read it. However, please read the last paragraphs of the letter from the Bank of Montreal. The bank was not there 14 years ago, Senator Adams, but it is there today because of viable business opportunities that have a proven track record. In fact, I informed Mr. Blair before I came to Ottawa that the Bank of Montreal is pleased to receive a credit application for a loan for a project on our lands.
The Chairman: Thank you for your presentation. I wish to follow up on the point that Mr. Mathias elaborated upon.
You mentioned that this bill is not yet law. That is true. It will only become law if it goes through the Senate and then goes back to the House of Commons. It will then be enacted.
When some of my colleagues mentioned consulting with your people, you stated that consulting with them now -- and, if I am putting words in your mouth, please correct me -- would only give them high expectations that might not be realized. That is, there might not be a delivery at the end of the day, because there is uncertainty as to whether this bill will be passed.
If I understood you correctly, you also said that after this, you will go back to your community and consult with your people. Only then will you determine, with your people, whether or not you will opt in. That is what I heard.
Taking that into account, we have repeatedly heard from native women -- not only on Bill C-49 but also on the studies that we are undertaking in regard to the governance -- that they are being mistreated by their own people. The finger is always pointed at the Indian Act. When you consult with your people, the opportunity will be widened in terms of attacking other aspects that are troubling the First Nations, including women.
Would I be correct to assume that this is what will happen when you return to your home? That is to say, you will not only fully consult with your people but also open other opportunities to deal with other issues that are troubling your people? Am I correct in assuming that will be the case?
Mr. Mathias: Thank you for those important questions, Mr. Chairman.
When the issue emerged, through the media, about the framework agreement in Bill C-49 with the Squamish Nation, we did conduct general meetings. We had one in the Squamish Valley. I heard the words loud and clear from one of our members, who said, "Tell me, is this law? If it is not law, I do not want to talk about it." That is the other view that our membership is voicing -- that there is no point in talking about this bill until it becomes a law and enables us to deal with the issues about which we are concerned.
Concerning the other issue that you raised, I think that the Standing Senate Committee on Aboriginal Peoples has it within its jurisdiction to recommend to your Senate colleagues, to the Minister of Indian Affairs, and to the Government of Canada that a standing committee, be it joint or otherwise, be struck to deal with the crucial and important matter of the rights of our women. It should be a stand-alone standing committee. Put in the resources and the people to undertake this job.
We are talking about land and resources and control here, but we are also talking about a history and a big hurt. Each of us has sisters or a mother who have been hurt. We are living with the consequences. It is important that the initiative be taken to deal with our women's rights on a national level, and that we have the national will to examine that issue and to do something about it. We should not bury it under RCAP or put it under a royal commission and forget about it.
As long as these issues face government, these small steps, as I see them, will arise. We will constantly be dealing with this issue. It does not help you or us. My recommendation is a stand-alone joint committee to examine this question thoroughly as we turn to the next century.
The Indian Act was put in place in 1870, and it almost destroyed our communities. We now have the opportunity to move forward into the next century. This government and the Senate have the authority and the jurisdiction to make those recommendations and to deal with these issues. That is my suggestion.
The Chairman: Thank you for your thoughtful ideas.
I should like to go a step further regarding the information that has been brought forward to this committee -- and, again, not solely on Bill C-49 but in regard to other subject-matters or when we deal with other pieces of legislation.
As an aboriginal person, I have a responsibility to share my experiences. I heard about a situation where my own people were passing things among themselves due to a lack of understanding and were not able to get together and deal with the crux of the issues that are dividing them. I should like to point out that this type of situation is not very helpful. I do not know how the other senators view it but, as an aboriginal senator, it is not something that I enjoy hearing on a continuous basis.
We need help. If we are to move ahead and help our people to move ahead into an area that eventually will have a self-government of our own, a strong attempt must be made at the local level to ensure that everyone is on board. As a person who was raised by a woman who was both mother and father to me, it hurts to hear how our women -- our mothers and sisters -- are being treated.
Again, it boils down to the Indian Act. However, the Indian Act was constructed by human beings like us, and human beings can like us also undo, modify, or correct it. If native people take that approach and help each other out and help us, as a committee, we can also help you in return.
There must be a closed dialogue if we are to succeed. To become a government down the road, we must work together and we must stick together. We must come with one voice and we must pray from one hymn book.
The committee adjourned.