Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 29 - Evidence
OTTAWA, Wednesday, May 12, 1999
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-49, providing for the ratification and the bringing into effect of the Framework Agreement on the First Nation Land Management, met this day at 4:05 p.m. to give consideration to the bill.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Madam Minister, we are happy to have you here. We look forward to hearing you on Bill C-49. I hope you will be able to enlighten us particularly on the matter of expropriation and the women's issues that have been brought up. Please proceed.
Honourable Jane Stewart, Minister of Indian Affairs and Northern Development: Thank you, honourable senators, for allowing me to be here to speak about an extremely important piece of legislation. I have been following your work and I recognize the attention and diligence that you have brought to Bill C-49.
I will make some opening remarks and address the topics that you have identified, Mr. Chairman, and then of course I would be glad to take your questions. I would start by positioning the bill and its importance from my point of view. As honourable senators are aware, the bill ratifies and brings into effect a framework agreement that was signed on February 12, 1996, by the 14 First Nations and the former Minister of Indian Affairs and Northern Development. Together with the signatory First Nations, Bill C-49 is a product of over 10 years of work that sought to find a meaningful way of restoring land management jurisdiction to the signatory First Nations.
The framework agreement and this legislation provide the signatory First Nations a legitimate, organized and controlled means of taking back the authority to manage their lands and resources at the community level and pass laws regarding how their land is developed, conserved, protected, used and administered. This means that First Nations can undertake projects without having to turn to me for their approval. They will have the flexibility to move quickly when economic opportunities arrive or when partners approach them. In that way, they can get on with the task of creating jobs and encouraging economic growth in their communities.
I should also like to welcome my parliamentary secretary. We spoke about the importance of Mr. Iftody being with us today, as well. I am glad he is able to join me.
The notions and philosophy in Bill C-49 are in keeping with our government's efforts to increase self-sufficiency in First Nations communities. The bill is a major component of the goals that we outlined in "Gathering Strength -- Canada's Aboriginal Action Plan," which was the federal government's response to the Royal Commission on Aboriginal Peoples.
In previous opportunities that I have had to meet with the Senate, we have had a lively and informed discussion on how appropriate it is that we move to a new and modern relationship with First Nations in Canada.
I will now turn to the issue of the land codes. Let us remember that the bill and the framework agreement provide for the creation of land codes that will set out the specifics of the new land management regime for each First Nation. Community members, not chiefs and council, will approve these land codes. A land code will be the basic law that will govern lands and resources, after the land provisions of the Indian Act are withdrawn from the community. The land code will include the rules and procedures that will apply to the use and occupancy of First Nations land, the sharing of revenues, accountability to members, the enactment of laws, conflict of interest, and the establishment of alternative dispute-resolution mechanisms. The land codes are to be ratified by on- and off-reserve adult members in each community. First Nations will establish a specific process for ratification within the parameters of the framework agreement.
I would note that this bill really is a win-win opportunity for all parties. The First Nations win because they can include their land and resources in decisions that shape their future. The First Nations and their neighbouring communities also win because increased economic development on First Nations land will mean a healthier economy for the region. They will be able to deal directly with the First Nation on business matters instead of having to go through my department.
The federal government wins from no longer having to administer specific sections of the Indian Act for these 14 First Nations, thereby reducing its involvement in the day-to-day management decisions and activities of those First Nations. Individual third parties win by being able to deal directly with the First Nations and by the establishment of alternative dispute resolution mechanisms.
I should like to turn now to three particular issues that have been the concern of this committee and others, not the least of which is the issue of expropriation.
The issue of expropriation deals with the First Nation expropriation powers. Members of the committee have raised the issue of whether First Nation expropriation powers here differ from those provided to other entities. At the outset, I would remind you that expropriation powers already exist under the Indian Act. On request of First Nations, I can exercise expropriation powers for the general welfare of First Nations under section 18(2) of the act.
With this bill, we are seeking to replace the powers under the Indian Act and to ensure that the signatory First Nations have the tools they need to manage their land. The power to expropriate of the signatory First Nations is similar to the expropriation power afforded to federal and provincial governments and public and private organizations such as municipalities, school boards, universities and hospitals.
It is important to recognize that this bill does not allow for arbitrary expropriation. First Nations must justify any expropriation, just as any other expropriating entity must. The courts and alternative dispute resolution mechanisms will be available to ensure that no abuse takes place, just as they are in respect of other expropriating powers.
The bill also requires that First Nations provide fair compensation following the rules set out in the federal Expropriation Act. The federal Expropriation Act provides for compensation to be based on fair market value and contains detailed rules for the determination of compensation. The rules and procedures to be developed by the First Nations will have to follow the principle of fundamental justice. Alternative dispute resolution mechanisms will be available to those persons who want to challenge the rationale for First Nations expropriation or the amount of compensation. The court will also be available for the same kind of challenge.
I understand that specific concerns have been raised about whether these areas have been treated with sufficient clarity. From my point of view, the bill does deal with expropriation appropriately. I know that the 14 signatory First Nations feel that the bill does deal with the issue of expropriation appropriately. Having said that, it is important that we make our intentions clear. I would welcome your further attention to these aspects of this bill.
In terms of matrimonial property, I recognize that we have another important issue: the management of real property upon marital breakdown. This is a significant issue that we must address. There is a legislative gap regarding matrimonial real property rights upon the marital breakdown on reserve. In cases of marital breakdown, the Indian Act does not provide guidance on the use, occupation and possession of the matrimonial home or on the division of the interests in land on reserve.
The courts have been asked for guidance. However, the Supreme Court of Canada replied in Derrickson v. Derrickson that reserve lands are under federal jurisdiction and provincial laws respecting the division of matrimonial lands do not apply. Clearly, this is an issue that needs resolution.
This legislation is a significant step forward, as it would enable the 14 signatory First Nations to resolve the matter. The First Nation members are required to vote on a community process for the development of rules and procedures for matrimonial property. This process must result in rules and procedures to be adopted within, at a maximum, 12 months from the date the land code takes effect. An arbitration process has been set up in the framework agreement to ensure that this delay be respected. The rules and procedures cannot discriminate on the basis of gender.
I would note in the context of this legislation that, in a prior forum, the legislation had been presented to the House of Commons and there was no recognition of this issue. Upon becoming minister -- and after meeting with members of NWAC, the Native Women's Association of Canada, and other organizations -- it was clear to me that we had to do something in the context of Bill C-49, and that we should not miss this opportunity. That is why you see this result today.
As honourable senators can appreciate, for those First Nations who remain under the Indian Act, we have a continuing issue and problem. For those who will be part of Bill C-49, we are taking a big step.
The larger issue remains significant. The issue of matrimonial real property upon marital breakdown affects all First Nations that remain administered under the Indian Act. We must look beyond the proposed First Nations Land Management Act and determine what can be done to resolve the current vacuum in the Indian Act concerning the division of real matrimonial property.
Last June, I announced that an independent fact-finder process will be established to examine how best to address this issue. The department is holding discussions with aboriginal organizations on the proposed process, as well as on the need to develop its terms of reference and identify potential candidates who could be considered for the position of fact finder.
It is unfortunate that the Native Women's Association of Canada, which first raised the matrimonial property issue, has chosen not to participate in the process. Recently, as a prerequisite to its participation, it put forward a number of proposed amendments. These amendments would bind the participating 14 communities to certain rules rather than allow them to resolve the issue of matrimonial assets in a way that best reflects local circumstances and realities. While I cannot agree with this position, I continue to hope that NWAC will constructively seek means to address this difficult issue. I continue to want to work with Ms Buffalo and others so that we come to an appropriate resolution. I do want their input on who would be an appropriate fact finder.
Matrimonial property is a significant issue. It needs to be dealt with more thoroughly, as do the issues facing aboriginal women generally. We need to address the concerns that have been raised by witnesses whose testimony reached beyond Bill C-49 and we need to assess as well the work of the Special Joint Committee on Child Custody and Access and your special study on aboriginal governance, which I am looking forward to receiving. I congratulate the committee on the work that you have done to date.
There is much work to be done. It would be an aid to the fact-finding process if your committee or a subcommittee of this committee were to examine these issues in the fall and provide us with your insight and recommendations. In that regard, I should like to table is a letter, in both French and English, that formally requests the assistance of this committee in that particular regard. I will not read it. However, I should like it to be considered, because this is an area that has broad application and through which the work of the Senate would be useful.
A third area that has been of interest to a number of people regards the consultation with municipalities. A few municipalities near some of the 14 First Nations have raised concerns that they have not been consulted on the framework agreement or on the development of land codes. There are those who say the provisions in the bill must be more specific and that the legislation must require that consultation will occur. I am not sure that one can actually legislate the quality of consultation. What is truly effective for First Nations and municipalities is to build a consultative partnership based on mutual respect and individual autonomy. The signatory First Nations and nearby communities have the option, if they so choose, to create their own consultative process. In fact, this is what has been happening. For the government's part, we have been keeping municipalities informed of the process of creating a First Nations land management regime and have left it to First Nations and nearby municipalities to decide for themselves what further discussions would be useful between them.
This bill and the framework agreement put land management powers back in the hands of First Nations and remove the minister from the decision-making process. The First Nations and neighbouring municipalities will have the opportunity to work out issues between themselves without federal interference. I might have said "guidance" there but "interference" may be the most appropriate word. This is the appropriate direction in my view. I know from my discussions that many of you around this table personally accept this direction.
This bill and the framework agreement really do pave the way for a better understanding and a closer partnership between First Nations and neighbouring municipalities. They remove some of the previous constraints that impeded the building of partnerships between First Nations and neighbouring communities. Now various land and resource management initiatives will be able to proceed.
Honourable senators, the 14 First Nations who signed the framework agreement are leaders in land administration. This initiative was brought forward at their request. They worked co-operatively and in partnership not only with each other but with the federal government, with affected provinces and with third-party stakeholders. Now they are waiting for Parliament to pass this bill so they can get on with the building of their communities.
This bill deals with something much broader than land management. It is about self-reliance. It is about economic opportunity and accountability to members. It speaks to the new relationship that we are building with aboriginal people, one based on the principles of mutual respect and recognition, responsibility and sharing.
I would be pleased at this point to answer your questions with regard to Bill C-49.
Senator St. Germain: Thank you, Madam Minister, for appearing and for covering most of the issues that were controversial during our hearings.
I will not confuse the day but, being from the province of British Columbia, I would be remiss if I did not bring up an issue that has generated a lot of concern; that is the issue concerning leaseholders and one particular band in my province. It is not necessarily appropriate to discuss this here today because it is a different issue, but Bill C-49 is viewed as having a possible impact on the situation in some way, shape or form.
As a member who represents that region, I wish to alert you that we must find some type of resolution on behalf of our native people and on behalf of the leaseholders and on behalf of every person in British Columbia. Therefore, I will ask at a later date for your assistance in resolving this unacceptable situation.
In regard to Bill C-49 and the land code, I have a technical question. Do you have officials with you?
Ms Stewart: I do have some officials with me.
Senator St. Germain: In the event of a vote on the establishment of the land code, how would alleged voting irregularities or alleged denial of voting rights, perhaps by off-reserve natives, be resolved? The minister will be at arm's length from those 14 bands. What method or tribunal would be used to resolve that dispute?
Ms Stewart: Your earlier comments, Senator St. Germain, are noted. I appreciate the significance to you of the issues raised in your province. I continue to hope for a satisfactory resolution to those issues.
In the process of ratification, certain steps involve a verifier who is jointly selected between the federal government and the First Nations. Indeed, once the process of verification has been approved and once I have been party to signing an individual agreement -- and I must sign an individual agreement to bring a First Nation into the process -- the ratification process in the First Nation occurs. The verifier continues to have the responsibility to examine the ratification process and to ensure that the appropriate electors participated. If there are challenges to that process, the verifier will analyse the disputes and allegations that may be brought forward and will make a determination as to whether the process of ratification has been followed acceptably. If it has not, then we do not have an agreement.
Senator St. Germain: It is no mystery, I am sure, that suggested amendments are coming forth with regard to the expropriation section.
Ms Stewart: Yes.
Senator St. Germain: Are you comfortable enough with those amendments that we as a committee can proceed to final ratification on them?
Ms Stewart: As I said in my opening comments, I fundamentally believe this is a very good bill on all counts. In receiving testimony from the 14 First Nations, I know you feel that way as well.
Having said that, there may be opportunities for us to clarify the particular language used on expropriation. If the Senate committee sees it as appropriate to make some recommendations, I would be glad to consider your august views.
Senator Chalifoux: Thank you, Minister Stewart, for appearing before us. It is important to have many things clarified.
You state that you are willing to develop a process to address the issues of women, especially women living on reserve, including the consideration of the matrimonial property laws, et cetera.
You have spoken to representatives of NWAC and I understand that you want them to participate. Do you have any funding to assist that organization to participate? That is a big issue. That organization does not have that kind of money. They really need funds to participate properly. Have you addressed that issue?
With what other native women's organizations have you been in contact regarding this issue?
Ms Stewart: Senator, I thank you for your work in this particular regard. I recognize that you have taken a keen interest and a keen responsibility.
Matrimonial property is a huge issue for us. I was approached first and foremost by the native women's association in B.C. This involves not only the national association; the British Columbia native women's association really addressed this in the first instance.
Clearly something had to be done in the context of Bill C-49 to begin to deal with this problem. The resolution in Bill C-49 is appropriate in my opinion. It means that, community by community, women will be participating in the creation of codes to address matrimonial property issues in the unfortunate event of a marital breakdown.
NWAC can play a broad role. I would not that their funding comes primarily not from my department but from Canadian Heritage. I will take your representations and relay them to my colleague, Minister Copps.
Having said that, we do provide money to NWAC for particular project work, not the least of which was included last year and again this week -- the symposia on the important issue of Bill C-31. We have provided funds to NWAC so that they can begin to have broad discussions. They have invited many chiefs and individual members and other experts on this issue. We are supporting them.
With regard to the particular undertaking of a fact-finder, what I should like from the Native Women's Association of Canada is some recommendations as to who most appropriately could lead this initiative. They have a strong voice and I think they have a role to play in that regard. I hope they will come forward and assist us in ensuring that we have a good selection.
I am sure that they will also be comfortable in knowing that so many of you will take me up on my request, which I know the chiefs also issued, for senators to participate in helping us explore this broader issue.
On the issue of funding, I would point out that we are helping NWAC on a project basis, and that is fundamentally the authority that I have. Minister Copps funds the organization with regard to the broader role.
Senator Chalifoux: About 35 or 40 years ago, I was part of the initial aboriginal women's groups that started bringing forward the issues of aboriginal women and Indian rights for Indian women. That group had distinguished members such as Mary Two-Axe Early, Jeanette Corbier Laval and others.
Action on these issues has been a long time coming. Most of our communities are very chauvinistic, and I say that with full knowledge of just how chauvinistic they are. Therefore, I wish to encourage you to assist the native women of Canada to take part in this very important issue. I think it could be a special project of your department to examine seriously the idea of giving them the financial resources they require to help you to come to terms with this whole issue. This goes beyond Bill C-49. Bill C-49 is specifically for 14 nations. It is a beginning for those nations. However, this is a large issue for aboriginal women right across this country.
Senator Austin: Madam Minister, you, of course, are welcomed by all members of this committee and we thank you for your work in this important area. I wish to begin by echoing comments of Senator St. Germain with respect to the high level of interest that this legislation has provoked in British Columbia. I know you are quite familiar with what is happening in British Columbia. The reason for the high level of interest is the perceived link between the issue of the Musqueam leaseholders under this bill and the Nisga'a treaty, and the link is not always rational. People tend to link things because they appear in a certain order, whether that is realistic or not.
This committee, in hearing its evidence, has heard a great deal of concern with respect to two nuances of clause 28 of the bill, relating to expropriation. As there is a good deal of concern and because I think -- and believe my colleagues agree -- that it would lessen the tensions that exist in the political system of at least my province, I have developed, with the stakeholders, some language that I am just having put before the members of the committee here. The language has now been seen by both sides and, I believe, by your officials. I should just like you to consider that language, be aware of it, and be aware that I will be proposing this amendment when we come to the clause-by-clause consideration.
The amendment essentially deals with subclause 28(1). It would add a word to line 25. There was a good deal of concern that the disjunctive "or" with "other first nation purposes" was a broader power than that which was reserved by the federal government for itself, in terms of the items that could be made subject to expropriation. The amendment would add the word "community" in the line so that it would read "other first nation community purposes."
A number of intervenors who were concerned seemed to be comfortable that adding that word would bring the wording within the normal concept of expropriation. Otherwise, the words appeared to a number of people to be novel and it was feared that they would create uncertainty in interpretation.
The second amendment is to subclause 28(5). At lines 42 and 43, the amendment would remove the phrase "shall take into account the rules set out in the Expropriation Act" and would replace it with "shall apply the rules set out in the Expropriation Act." That is with respect to compensation. Then we have added, because the Expropriation Act does not translate literally, "with such modifications as the circumstances require."
With those amendments intact, I believe the bill would have very substantial support in the Senate.
The concern expressed by a number of senators, and by a number of people in the aboriginal community who are directly affected by this legislation, is not so much with the amendments, because I think the general opinion I have received, including from counsel for some of the aboriginal communities, is that they do not change anything in the framework agreement and the greater certainty is welcomed, but what would not be welcomed would be the failure of this bill to be enacted into law.
I wonder if you could comment on those two items.
Ms Stewart: There are a number of things I should like to say. First, there has been a very direct focus on ensuring that third-party interests are considered and managed appropriately as a result of this bill. As honourable senators are aware, any kind of third-party interest that exists now will continue to exist until its expiration, even after the passage of this bill. That is important.
The other thing to note is that the 14 First Nations have gone to considerable lengths to engage and consult third parties and must, with final agreement of their individual agreements, ensure that all third parties are aware of what is happening and what the circumstances of the land codes as developed will be. The focus on third parties is a real one.
We want to ensure that we pass good legislation. That is the priority for all of us, including First Nations who will be among the beneficiaries. I believe it is a win-win-win situation for all parties.
I have followed the debate and discussions you had around new language that may add clarity while not changing the intent of the bill. I want to reiterate that the intention of the bill as presented is consistent with what now exists in the Indian Act and with what will be available, and what is available, to other expropriating bodies. However, if we can get a clearer product and, from the point of view of the table, a better piece of legislation by clarifying the language, we must consider it.
With regard to that issue, I just wish to say again that it is vitally important that we get Bill C-49 completed and enacted into law. We have communities within the 14 First Nations who are stymied now, waiting for jobs and economic development. I am thinking, for example, of the Scugog First Nation, who have other lease arrangements that are in limbo because we are waiting for this legislation. I am also thinking of Georgina Island and the work of Chief McCue there.
Getting this done must be a priority. I recognize that there are issues. In that regard, making these clarifications may allow us to move forward with a good product. I am hopeful that the table will encourage swift passage through the Senate and state loudly and clearly that they understand and appreciate how significantly important it is for the 14 First Nations to get on with it and for us to prove that, in fact, we can change the relationship and recognize, with courtesy, respect and dignity, the capacity and capability of First Nations to govern themselves.
Senator Austin: We should like your assurance that the bill will be dealt with expeditiously in the House of Commons when sent there.
Ms Stewart: To the extent that I have any kind of influence, believe me, it will be made clear that this bill is a priority for me. I would ask the senators, in their report and at third reading, to clarify that it is an important undertaking for them as well.
Senator Austin: Mr. Chairman, the minister tabled a letter. With the agreement of colleagues, the letter should be appended to the report as well as to the proceedings. I think we would all agree that it should be part of our report to the Senate.
The Chairman: Do senators agree?
Senator Fraser: We have not seen the letter.
Senator Tkachuk: We have not seen the letter.
The Chairman: The letter is being copied now.
Senator Austin: We will need to come back to that. I am giving colleagues notice that I think it is a very important matter for when we come to clause-by-clause consideration.
Senator Ghitter: Madam Minister, I congratulate you on this legislation. I think it is needed legislation, and we certainly support it. I also am very respectful of the comments you have made with respect to Senator Austin's comments and the need for more clarity on expropriation.
We support the amendments that Senator Austin has proposed. We also feel that there is a lack of clarity within the expropriation provisions. I have examined some of the land code agreements that have been approved by your department. In my judgment, they are somewhat sketchy on matters of expropriation. They certainly need to have some clarity, and the amendments being proposed are designed to provide that.
I am still somewhat concerned because the amendments before you only require the Expropriation Act to be applied on compensation. I still feel that matters of rules and process should be better defined, especially considering that expropriation is not just a matter of compensation. It is also a matter of the process you go through time-wise, appraisal-wise and all the other factors in the Expropriation Act. When I looked at the Muskoday agreement that you had approved, I noted that the processes were very sketchy and did not lay out any sense of clarity.
I recognize that it is not appropriate to present an amendment, because I do not think we would have the support to get an amendment through with respect to rules and procedures. However, I would ask for your assurances that when land codes come to you for examination you will look at the expropriation provisions and you will ensure that they are fair and that the processes are well laid out. Third parties entered into agreements with the federal government years ago, and the rules have changed. We must be respectful of that position and not grandfather it. I should like your assurances that you will give attention to the detail of the land code to ensure that those processes are there.
Ms Stewart: Senator Ghitter, I recognize your personal experience in this regard and the attention that you have put to the particular issue of expropriation and the contribution that you have made to the discussions.
In my view, the application of the compensation portions of the federal Expropriation Act is appropriate. I would also say that it is right to recognize that First Nations should have the authority and the opportunity to develop the regulations, if we want to call them that, or the specifics you point out within the community. That makes sense from the point of view of giving First Nations authority in this regard.
As you point out with the Muskoday, their land codes are completely in accordance with the framework agreement. When we pass legislation, we get the authority to enter into significant agreements with Canadians. However, regulations are passed or developed separately. I see it as an analogous situation. I would not want to present the First Nations with any kind of structure that would suggest that we have any lesser expectation that their regulations or details will be developed without full appreciation of all the members of their community and those third parties who may have interests. Having said that, without question, I take your direction and note it. I will be looking at every single one of the individual agreements as they come forward as well as at the advice of the verifier on the work that has been done.
We have an opportunity here to reflect to these 14 First Nations -- and I expect many more as they come to appreciate the significance that this legislation provides to them -- the need to develop their land codes in a partnership with the federal government that is more reflective of a modern relationship, one that allows First Nations to grow and develop and be self-reliant. That will move us into the future.
Senator Ghitter: I echo Senator Austin's comments about the need to expedite this, to move it through the Senate with these amendments in the hopes of moving it along so that it will not fall off the table and so that this important legislation will be passed. I wish you every success in the Commons. We will do what we can do here to see that it is expedited.
Ms Stewart: Thank you. Do not forget, senators, that you also have influence with other members of Parliament.
Senator Wilson: I have been on this committee for only six months, but there has hardly ever been a higher attendance than this. That attests to the interest of senators and the seriousness of the issue.
I think that in general Bill C-49 is very good. In your introductory remarks, you put your finger on three of the issues that need some exploration.
I should like to associate myself in support of the remarks of Senator Chalifoux and Senator Austin, particularly on the funding for aboriginal women so that they can make their peace.
Where does your independent fact-finding process about the effects of marital breakdown stand at this point? What progress have you made? What is the time line? Do you expect to introduce legislation to address that legal void? If your fact-finding comes out differently from Bill C-49, does that mean no consistency for First Nations women, or how do you expect to address that?
Ms Stewart: I appreciate your long interest and contribution to the issue of gender equality.
With regard to the fact-finder, I am still waiting in anticipation that the Native Women's Association of Canada and the association in British Columbia will participate and help me identify the appropriate person for this job. There are many aspects to the particular topic that need to be considered. They including the following: the background to the Indian Act; the jurisprudence as it exists now, not the least of which is Derrickson v. Derrickson; the opportunities that can be afforded to us in terms of reflecting the issue of real property in the case of a marital breakdown and how best to deal effectively with that; and the process of doing it --whether a blanket strategy works or whether we best get results nation by nation or First Nation community by community. Those are the kinds of things, in addition to the work that is being done by NWAC in regard to Bill C-31, that have implications for this topic. A significant amount of study needs to be undertaken.
I am now fully committed to having it done and doing it to the best of my ability in partnership with those concerned. What we want to get out of this is a strengthening of communities and not a division of interests. We want to do it so as to create healthy, self-reliant communities, recognizing, as Senator Chalifoux points out, that, historically, there have been some challenges, some of which have been created as a result of interventions by the federal government. I think we add to that opportunity if the committee, or a subcommittee of this committee, takes up the offer or request from myself and the chiefs also to engage in this and to do an effective analysis.
My understanding of the position of B.C. native women is that, as is appropriately their responsibility whenever the issue of changes to the Indian Act comes forward, and this is one such instance, they want to make their point as clearly and as vocally as they possibly can. Even though there are improvements in Bill C-49, they cannot stand back from recognizing that this is a bigger issue and that there are First Nations that will not be in an improved position because they are not part of Bill C-49. I fully appreciate that.
Something significant can be done in this regard if we work together on it. I want to move the process forward as quickly as possible. However, I also want to make sure I have as many partners as possible. The opportunity that Bill C-49 has presented us may encourage those women's organizations that have a contribution to make to join us.
Senator Wilson: May I ask how long you are willing to wait?
Ms Stewart: We need to get started as quickly as possible.
Senator Wilson: What is the time line on it?
Ms Stewart: If it becomes clear that the native women's associations do not wish to make a recommendation regarding the fact finder, I will name someone.
Senator Andreychuk: This land management bill is long overdue. It received reasonable support in the House of Commons. My concern is that there has been an expression that we need more clarity and certainty. I think the amendments are warranted in that regard.
I want an assurance from you as minister and as part of the cabinet that this will be a priority in the House of Commons for you and for the Liberal Party because we on this side know and understand what wish lists are all about. When push comes to shove, certain pieces of legislation are given priority and others are just paid lip service. How far can you go on that, minister?
Ms Stewart: Senator, your question is exactly in the spirit of the hopes of the chiefs who are here. As Minister of Indian Affairs -- and I can speak only for myself -- this is a priority bill for me. It is critically important from my point of view that we complete this legislation before the summer recess.
As I have mentioned, I know that there are First Nations waiting for the legislation so that they can enter into agreements that will bring economic opportunity to their communities. I know that there are First Nations that have leaseholders who are in limbo because we have not completed this legislation. There are 14 chiefs who have focused on this and nothing else over the course of the last two years as it has worked its way through the House of Commons and the Senate. This is the only bill that I will focus on until the end of the session.
Having said that, I am not in charge of the business of the House. That rests with another minister. I can tell you that there is a clear appreciation for the significance of this piece of legislation, not only from the 14 First Nations who will be signatories to it, but reflecting our true commitment to "Gathering Strength" and our response to the Royal Commission on Aboriginal Peoples.
Senator Andreychuk: We are all aware that a certain member of the House of Commons from your party indicated that the Senate might fix this bill, which placed an expectation in the community with which we have had to deal. There is more than just a need to put this as a priority. I know that Mr. Keddy in the House of Commons has been very supportive of this measure. I do not think you will have any difficulty at all. You will get nothing but support for the amendments and for the continuance of this bill through the House.
The bill needed certainty, which we are addressing through the amendments. Some of the uncertainty has come about because some land codes are already in place. One of them happens to be in Saskatchewan, and we have no problem with it. In other areas, the fact that a land code is in place before this legislation has been passed brings about uncertainty. How will you deal with the land codes that are already in place, taking into account the amendments and the expectations laid out here? How will you revisit the issue?
I have been preoccupied with subclause 16(3) which deals with the coming into force of the land codes of any First Nation. It seems to me that the problems we are facing at the Musqueam reserve are not entirely to do with that. However, the fact is that leases were signed a long time ago. They were signed, perhaps, in ways that are causing problems today. Management was then turned over to reserve. There is a certain discomfort in that area. I know the issue is before the courts and that it has nothing to do with Bill C-49. The reality is that there is a conflict in the eyes of the people.
I understand that aboriginal groups are willing to meet to find some middle ground. I understand that the leaseholders are in the same position. However, you have been reticent to step in. Surely, some undertaking by you to facilitate some dispute resolution needs to be given. Are you willing to do that?
Ms Stewart: As you point out, it is not unreasonable to expect that First Nations have pressed forward trying to make progress in this area given that it has been over a decade that this undertaking has been in the works.
Mr. Kipping will make a comment regarding the review given the bill.
Mr. Kerry Kipping, Director, Resource Initiatives Directorate, Department of Indian Affairs and Northern Development: Senator Andreychuk, the other two First Nations that have already passed land codes have explicitly excluded expropriation from the process under their land codes. They have no intention at this time of undertaking that process.
As the minister said earlier on, as the process develops we will be watching and the First Nations will be working with the federal government within their communities to ensure that there is some form of standardization of rules, procedures and mechanisms as those move forward. Should those two First Nations decide at some point in time that they wish to undertake expropriation, the lands advisory board will work with those communities to ensure that there is a set of rules and procedures in place, based on precedent set by other First Nations in consultation with the lands advisory board, that reflect the discussions we have had here today. The lands advisory board is an integral part of this process, but the guidance they provide to First Nations has often been overlooked.
Ms Stewart: Fundamentally, with regard to the related-unrelated issues, Senator Andreychuk, I appreciate the difficulty that exists in Musqueam First Nation. We have all been apprised of the circumstances there. As I say, time and again, I view this as a relationship between two contracting parties. The role that I have is one that can encourage the parties to come together to find a resolution. I have said in the past that if parties agree and if there is a role a facilitator can play, then we are glad to participate in providing an opportunity for a facilitator to be named to assist. The discussions are occurring and we all hope that progress can be made there.
Again, this is an issue that is outside the focus of Bill C-49. In response to your question, I would say that I have made it clear on more than one occasion that if both parties feel that the services of a facilitator are warranted then we will participate in that way.
Senator Andreychuk: As a final comment on that, it seems to me that there has been a long injustice that the native people have not been able to manage their own land. That is a negative in my opinion. However, the federal government entered into some lease arrangements. I do not believe you right a wrong by creating another wrong. It seems to me that the federal government cannot stand back. Those leases were initially negotiated on reserve land and one should have contemplated what would happen at the transfer of management. Therefore, although I am not ascribing blame in that sense, I am seeking and pleading for responsibility from the federal government to existing leaseholders.
I would have preferred a grandfathering clause. Obviously, I have not been able to persuade anyone that that is the way to go. I believe that more than a moral responsibility, the federal government has some legal responsibility to solve the dilemma of existing leaseholders. From here on in, I agree, subclause 16(3) should be strictly applied. There is a moral obligation on the part of the federal government.
Ms Stewart: I have two comments in response to that. First, with regard to your reference to a grandfathering clause, let me be clear that any third-party arrangements that exist now will and must be maintained until their expiration. I do not think you can ask for anything more than that in terms of any contractual relationship, whether it be between First Nations and non-First Nations parties or between First Nations and First Nations. That is what a deal is about -- you have a set time frame and then after the fact we go from there.
Having said that, I know that the issue of leases on First Nations is a subject of review by the standing committee in the House of Commons. I am expecting a report from the committee on the broader issues of leasing with First Nations and I am sure you will be interested in the report from the committee in that regard.
Senator Perrault: Mr. Chairman, I know I share the view with my colleagues on this committee that we appreciate the fact that the minister has been so forthcoming and has spoken with many of us. You do not have the easiest portfolio. It is very difficult. I believe that your efforts to achieve an agreement on the establishment of a land management code will be successful. I fully support the initiative of Senator Austin today. That is very helpful. I believe it has all-party support.
The other evening we heard some very interesting testimony from representatives of 14 Indian nations. We discussed the matter of women's rights and I know that has been discussed here previously. One of the senior and distinguished chiefs in this country, Chief Mathias of the Squamish, suggested that there would be full support and cooperation from the 14 nations there for a study of women's rights. That is a very encouraging attitude.
Perhaps this committee might play a role in developing some proposals relating to women's rights. This committee is not without its talents. I thought that was a significant outcome of that meeting the other night. Chief Mathias, a chief for 25 years, has a significant amount of wisdom. He said, "Let us go ahead and get this settled." He even mentioned a Royal Commission. I do not think we need a Royal Commission. However, the matter of women's rights certainly should be studied and recommendations made. That would bring almost perfection to the package. That must await action down the line, but let us not postpone it too long. I believe you said earlier that you want to get something done soon.
Ms Stewart: I do.
Senator Perrault: We do, too; we do not wish it to be foisted off on another generation, or even ten years down the line.
I am encouraged by your remarks today. Again, I join in the appeal for the people adjacent to the Musqueam land situation. Some of them have even suffered health setbacks because it has been so stressful for them. Four have had heart attacks and it has been very difficult. I understand there have been some discussions behind the scenes to try to resolve the matter, which is good, we are all for that. Ted McWhinney, the member of Parliament for the area, has done outstanding work in trying to find a settlement. If we get those three items dealt with, we can say it has been a triumphant year for you and for all those who serve in Parliament.
Ms Stewart: As you point out, Senator Perrault, we have a significant amount of work to do to make up for past actions. We are making progress.
I would confirm your statement that the 14 First Nations that are a signatory to this bill really are leaders in land management and, in fact, in many other areas. I am hopeful that as they proceed to reflect what is in Bill C-49 with regard to the requirement to develop codes for the issue of matrimonial property and its management, that those will be opportunities that present themselves for other First Nations as well.
I believe we will see some continued strong leadership interest from the chiefs, council and the people of those 14 First Nations that will probably assist in building the apex on this particular issue of gender equality. I look forward to seeing the work that will come out of those 14 First Nations. They will be contributors to the resolution as well.
[Translation]
Senator Pépin: Madam Minister, thank you for being with us. I appreciate the significance and the complexity of this bill. For over 20 years, I have been involved with the recognition of native women's rights. I heard your presentation and I read the letter that you sent us. I am very glad to see that you do want an effective consultation process. I would be inclined to go a little bit further and require from you that you ask this committee to hold an effective consultation within a rather limited time frame. For instance, those hearings could start next fall.
Since 1982, we have been waiting for the resolution of native women issue, particularly regarding matrimonial property. A very significant step has been taken today with this bill. But the broader issue of women should not be left behind. I support this bill. I think that you are going to take any action that is needed to go forward. I would like to make sure that if nothing happens, you are going to ask this committee to hold a very effective consultation regarding matrimonial property and native women.
[English]
Ms Stewart: At this point, it is not a question of my asking, because I have done so. It is now a question of the committee deciding whether it will respond, so I will leave it in your hands. As Senator Perrault points out, Chief Mathias has also indicated an interest in the wisdom around this committee table. My sense is that native women's organizations will also support it.
Senator Fraser: Madam Minister, I read your letter with great interest. Clearly, some useful work could be done by this committee, of which I am not a member, I hasten to say. However, it does strike me that we have had study after study on this issue. What can you tell us in the way of explaining how prepared you are to act and how quickly? In particular, are you prepared to act in the absence of a broad consensus? I say that because I have done some work on women's issues, and I am not aware of any society anywhere in the world, at any time in history, where any progress has been made for women if people waited for a consensus. It has always taken enlightened leadership to say, "We will do this." If one waits for everyone to agree, it will never happen. What can you tell us in that context?
Ms Stewart: That is a very good point, Senator Fraser.
One of the things we can do is pass Bill C-49. It is a unique opportunity to take 14 First Nations out from under the Indian Act, under which there is no recognition or provision for the issue of matrimonial property as one aspect of gender equality. Before we reintroduced this bill, upon reflection the 14 chiefs accepted it with open arms. They realized that there was an opportunity for us to make progress in a rather unilateral way.
There will be an opportunity for other First Nations to join this bill in the not-too-distant future. If I am not mistaken, at least 10 other First Nations have indicated an interest. They can participate in the aspects of Bill C-49 that recognize the issue of matrimonial property.
I am not prepared to move ahead with unilateral changes to the Indian Act. That has been tried before. I do not think it is a reflection of the respect that must be engaged in with respect to the First Nations. Having said that, we are building a number of examples where First Nations are moving themselves out from under the Indian Act, whether it be with the Nisga'a Treaty or other land claim and self-government agreements in the country. First Nations are taking those actions, and the issue of matrimonial property is being dealt with.
We are prepared to act. I am not sure that the solution will be a blanket solution. There are ways and means of encouraging change without waiting for everyone to come along.
We are in a transition where people are still confused about who has what authority. People are still coming to the Minister of Indian Affairs to say, "Come and fix this for us," but that is changing. As we talk about self-government, communities are saying, "Oh, our chief and council will be responsible, and we must be sure that we elect people who are responsive to us and that we have community involvement and engagement." That means the involvement of women. This transition is occurring.
On the issue of accountability, I see communities standing up and challenging their leadership. That is a healthy part of the transition towards the building of self-reliance within communities and the opportunity for communities not to be told how to evolve and develop, but to take hold of themselves and to understand that they have the accountability, authority and responsibility to do so.
Your point is well taken, senator. I think we are making progress, and I think Bill C-49 is an example of that. I look forward to the recommendations of the Senate committee, of the fact-finding mission, the work of Ms Buffalo and the symposium on Bill C-31 to pull everything together and to make progress on all fronts, wherever we have indications of opportunities.
Senator Johnson: Madam Minister, I have been deputy chair of this committee for some time now, and we have been studying the aboriginal governance issue. Our work on Bill C-49 has been a long and difficult task. We have been attempting to fine-tune this bill, taking into consideration all the concerns that came forward, not only in regard to the bill, but in regard to the Musqueam people and the people of British Columbia.
It was important for you to know how hard this Senate committee has worked on Bill C-49. I commend my colleagues on both sides for their efforts and the tremendous amount of time that went into fine-tuning the bill. You never know what results you will get when you send a bill to the Senate, but usually we are very cooperative. I hope our efforts have contributed to the process. It is the right time for this bill. It is part of our work on self-government, and it is critical to our First Nations. It is certainly something that all members on my side of the chamber have supported.
During our self-governance study, we have heard from many women with regard to the status of our Indian women. We will be giving you some of the views we have heard throughout our study. As well, we have also done some work on urban aboriginals.
Is there anything further you can tell us about the status of Indian women that would be useful for our report on self-governance? Do you suggest a special committee? How many more studies do we need? Perhaps you could give us a mandate. I would appreciate a little word on that before we conclude today.
Ms Stewart: First, let me recognize the contribution you have made to this issue. I look around this table and I see the hard work that committee members have put into the study of this bill.
As Senator Perrault pointed out, the Department of Indian Affairs and Northern Development is a challenging portfolio. In my mind, it is truly one of the most important portfolios as we move into the new millennium. The recognition that you are all showing here today is a reflection of that.
You mentioned the study on governance. One of the key issues that we must consider with regard to governance is gender equity and balance. I anticipate recommendations on that in the report of this committee. This is just one piece of the larger issue. You may find direction in the testimony you have previously heard.
The Chairman: Madam Minister, your letter is very welcome. We will discuss it and get back to you in writing with respect to how we wish to deal with the gender equality issues.
The aboriginal people have been negotiating this issue for the last 10 years. There is strong support from committee members for amendment to this bill. Assurance has been given that Conservative members of the House of Commons will support amendments made here. I believe there was one Liberal MP who had some reservations, and I am worried about that one person.
Perhaps there is some way that you can deal with that. We have no control over the Bloc Québécois or the Reform Party, but I believe there is a strong will here that this bill be passed. These people have been waiting for a long time.
Ms Stewart: Mr. Chairman, in conclusion I wish to reiterate my recognition of the work of the committee. I understand that there is strong support for Bill C-49. You have in your hands the opportunity to move the bill to completion as it stands now. Having said that, I appreciate that you may feel that the amendments, as we have discussed, are the only avenue to take. I bow to your wisdom in that regard.
As I have said, I believe that this is an extremely important piece of legislation. I believe that, as it is, it does deal with the issues. However, that is for the committee to decide. However, there are risks involved in sending it back to the House of Commons, because I cannot say that I can control the members of my party, let alone those of any other party, and that must be taken into consideration.
This legislation is a priority for me. This bill represents far more than only allowing 14 First Nations the autonomy that should be theirs. It is an indication that we can do things differently. I am a big supporter of moving forward and ensuring that, as we move toward the 21st century, the aboriginal people feel that this is the best country in which to live, as I do.
Senator Tkachuk: Madam Minister, with regard to what you have said about the House of Commons, your house leader is not a stranger to closure.
Ms Stewart: We do not use closure, although we have used time allocation.
I reiterate that you have an opportunity here. I encourage you to consider that opportunity, but I appreciate your good work and contributions.
The Chairman: Thank you, Madam Minister.
Honourable senators, is it agreed that the committee move to clause-by-clause consideration of Bill C-49?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chairman:Shall clauses 2 to 27 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 28 carry?
Senator Austin: I have an amendment to propose, Mr. Chairman. The amendment is before all senators in both official languages. If I may, I will address it in English. I move, seconded by Senator St. Germain:
That Bill C-49 be amended in clause 28, on page 15,
a) in the English version, by replacing line 25 with the following:
"other first nation community purposes."; and
b) by replacing lines 42 and 43 with the following:
"first nation shall apply the rules set out in the Expropriation Act, with such modifications as the circumstances require."
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Shall clauses 29 to 48 carry?
Hon. Senators: Agreed.
The Chairman: Shall the schedule carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Shall the preamble carry?
Hon. Senators: Agreed.
The Chairman: Shall I report this bill as amended to the Senate?
Senator Andreychuk: Report it as amended but there should be a report also attached that we are supporting the study on aboriginal women and that that should be documented as an addendum to the report.
Senator Austin: Also, we should append the minister's letter to the report and say that we have endorsed her recommendation and that we recommend the report to the Senate.
Senator Andreychuk: I am just borrowing from the Standing Senate Committee on Legal and Constitutional Affairs. We need to put down our serious concern regarding this issue and say that this issue should be addressed as an Indian Act issue, not as a Bill C-49 issue. This issue should be of paramount importance to both Parliament and the government, and our message should be that we support the minister's letter.
The Chairman: We seem to be focusing on the Indian Act and also on Bill C-31, but we are not recognizing the Constitution. Section 15 outlines male and female equality.
Senator Andreychuk: We could state in the report something to the effect that, "Whereas the Charter of Rights and Freedoms states in section 15... and whereas this is an outstanding issue..."
The Chairman: That is what I am looking for.
Senator Gill: I imagine that the Reform Party and other parties will be somewhat reluctant. I have heard that if this bill does not pass, there will be big problems.
Senator Tkachuk: This is a big issue for the Reform Party. On the contrary, it will be very helpful to move reform along with this bill.
Senator Austin: It gives them another platform to debate at another time.
Senator Andreychuk: They have said that that is their concern, and we are addressing their concern in a bigger way than Bill C-49, which will ultimately encompass everything.
The Chairman: I am not sure you understood Senator Gill.
Senator Tkachuk: Senator Gill's concern, I think, was that he does not want anything we could add to this report to impede the speed of the bill through the House of Commons. We are assuring him from our discussions with the Reform Party that one of their major concerns is the issue of women's rights and matrimonial rights -- in other words, individual rights versus collective rights. It would be helpful to move the bill along.
Senator Austin: I agree. I favour a strong and balanced statement of the kind we have just outlined on this issue regarding our concern and desire to proceed with the issue.
We have finished our clause-by-clause consideration and we are now talking about the report; is that correct?
The Chairman: Correct.
Senator Austin: I should like a paragraph in the report urging the House of Commons to deal with this bill in this session and before it adjourns. We should outline specifically the extreme importance of this bill not only to the aboriginal community, but to people who deal in a commercial way with the aboriginal community. This bill is required for both.
Senator St. Germain: I think we should get the message out that this recommended study will take place. Perhaps we could package such a message through your offices and the communications people in the Senate. We could package it so that the message gets out there ahead of those in the House of Commons who may put into question the matrimonial section. If we get out ahead of them, they will be playing catch-up.
Senator Austin: We should make the strongest statements we can.
Senator St. Germain: If we can do that in a method such that we are leading the pack and they are following, the issue just dissipates that much more quickly.
Senator Andreychuk: The House of Commons tells us how to conduct our business, and I am afraid that may be a red flag to senators. The report must be worded in a particular way and run by our leadership. We do not want to be seen telling them how to run their business because we do not want them to tell us how to run our business.
Senator Austin: We need a sentence in the report, in my view, that is full of political sensitivity but gets the message across. We owe that to the aboriginal people and their concerns.
Senator Johnson: In terms of aboriginal women, could we put something out there as part of our governance study?
Senator Austin: The minister suggests a separate Senate committee study.
The Chairman: Let us deal with that in the committee.
Senator Johnson: We are talking about trying to do some work in case the matrimonial issue comes up again in the house.
Senator Austin: Let us turn the report over to the steering committee.
Senator St. Germain: Perhaps we could get something on the record that we will be going immediately to the entire Senate for its approval to deal with the matrimonial issue. It will give it that much more credence.
The Chairman: You want to flag it now.
Senator Chalifoux: I should like to caution you. If our report talks about governance and other issues, then we are missing the main issue, which is passing Bill C-49. We can allude to different things, but we should not make them big issues at this point because Bill C-49 is the issue.
Senator Johnson: Perhaps we could make a simple statement that we have the minister's letter and assurances on a study on the issue of women and that we will be following this up in the fall for further study.
Senator Chalifoux: That is all that is required.
The Chairman: In regard to the minister's letter asking us to study the question of aboriginal women, numerous studies have been conducted over the years. The issue of aboriginal women is very clear to aboriginal people. We know the problem, and we do not need to go into a lengthy study to find a solution.
Senator Chalifoux: We have been studied to death.
The Chairman: I want members of this committee to know that if we undertake this study, it will not take a year to examine the issue. Perhaps narrowing the study down to one month would be good enough. That may even be too long. I simply wanted to put that comment on the record.
The committee adjourned.