Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 11 - Evidence - June 10, 2009

OTTAWA, Wednesday, June 10, 2009

The Standing Senate Committee on Aboriginal Peoples met this day at 6:35 p.m. to study on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada (topic: issues pertaining to Indian Act elections).

Senator Gerry St. Germain (Chair) in the chair.


The Chair: Good evening. I would like to welcome all honourable senators, members of the public and all viewers across the country who are watching these proceedings of the Standing Senate Committee on Aboriginal Peoples either on CPAC or possibly on the web.

I am Gerry St. Germain. I am from British Columbia and I am the chair of the committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal Peoples of Canada generally.

On April 1 of this year, the committee decided to launch a study to examine issues related to the Indian Act elections. The committee is looking at outstanding concerns related to the Indian Act elections systems, including the two-year term of office for chiefs and council as currently prescribed by the act. We, as a committee, are seeking the views of First Nations leaders, Aboriginal organizations, First Nations people, as well as experts in this area, regarding whether and what changes should be made to the Indian Act elections regime in order to provide better governance for First Nations, including strengthening political accountability of their leadership.

For our viewing audience, it is important to note that 252 Indian bands, roughly 40 per cent of all Indian bands in Canada, hold elections in accordance with the Indian Act. This study on elections processes focuses on those First Nations whose elections are held under the Indian Act. The other First Nations bands select their leaders by way of custom or as a result of their self-government agreements.


Before listening to our witnesses' views about the electoral process under the Indian Act, let me introduce to you the members of this committee.


Starting on my left, we have the deputy chair, Senator Nick Sibbeston from the Northwest Territories; next to Senator Sibbeston is Senator Patrick Brazeau from the Province of Quebec; next to him is Senator Bert Brown from the Province of Alberta; next to Senator Brown is Senator Daniel Lang from the Yukon; and next to Senator Lang is Senator Lillian Dyck from the Province of Saskatchewan. On my right is Senator Robert Peterson from the Province of Saskatchewan; and last, but not least, is Senator Sharon Carstairs from Manitoba.

Senators, allow me to introduce the witnesses. We have, from Manitoba Keewatinowi Okimakanak, MKO, Louis Harper, in-house legal counsel; I believe I am correct on that. This organization is Manitoba based and was invited to appear during the recent committee trip but they asked for more time to prepare. We are pleased to give you, on behalf of MKO, the opportunity to present your views to us this evening.

Welcome to the committee. We are pleased you could make time to join us and share your views on the elections under the Indian Act.

Your remarks will most likely be followed up with questions which I hope you are prepared to respond to. Louis Harper, the floor is yours.

Louis Harper, Legal Counsel, Manitoba Keewatinook Ininew Okimowin: Thank you, Senator St. Germain. I work with Manitoba Keewatinook Ininew Okimowin which is a northern First Nation organization.

First, I want to state that Grand Chief Garrioch could not make it because of the outbreak of H1N1 in Manitoba. He had to stay behind and asked me to be here today on his behalf.

I have a prepared presentation which I will now begin.

On behalf of the chiefs of MKO, Manitoba Keewatinowi Okimakanak, I thank you for the opportunity to share our views relating to the Indian Act elections. As an organization, MKO represents 30 First Nations in Northern Manitoba who are signatories to treaties 4, 5, 6 and 10. The traditional territories of our First Nations cover approximately three-quarters of the lands and waters of Northern Manitoba.

First, I want to state that we, as First Nations people in Northern Manitoba, regard our treaties as sacred and we stand by the relationship that our forefathers established before us. We entered into treaties as sovereign nations, and the treaties attest to our sovereignty today. Her Majesty's representatives told our people they would protect our lands and to sign treaties with them. We hold the Queen as our trustee today.

We also say that these treaties cannot be altered as to diminish our rights at any given time, and that consent by the First Nations is required before the solemn promises made in the treaties are changed. In this way, dialogue and the duty to consult with respect to treaties are ongoing.

We respectfully urge the Canadian government to ensure it holds its obligation and commitment to honour treaty relations. We would also like to emphasize that MKO First Nations in Northern Manitoba also stand by the principles of the United Nations Declaration on the Rights of Indigenous Peoples, in particular article 37(1), which states:

Indigenous peoples have the right to the recognition . . . of treaties . . . and to have States honour and respect such treaties . . .

The Indian Act has been a long and bitter experience to our First Nations. At its conception, we all know its purpose — that is, to civilize First Nations to European norms, to direct them on how to live with the newcomers. Although not appreciated by many First Nations because it imposed foreign laws, the Indian Act, however, safeguards the residue of First Nation governance rights. It safeguards our inherent rights and treaty rights to some extent — for example, the treaty right to tax exemption.

Definitely it is our opinion at MKO that the Indian Act infringes on our right to self-government, but at the same time, as I previously stated, we are cautious in amending the Indian Act because it recognizes some of our existing rights embedded in the legislation.

We view the proposed amendment of the Indian Act as it relates to elections as a continuation of regulating our people. As you know, we are the most regulated people on this earth.

In the process of tinkering with the Indian Act, it will have an effect of limiting our right to govern ourselves as we see fit. As a solution, we recommend that the Government of Canada negotiate self-government with us so we can establish our own governments, our own systems, and implement our own laws such as our own election law. Maybe this can be done by way of a new legislation that recognizes our section 35 rights.

In the alternative, if you are looking at interim measures such as amending the Indian Act, we urge the government to recognize our custom elections under the current regime and ensure these systems are resourced adequately.

As we previously stated, our premise of any proposed legislation or amendment to the Indian Act will have the effect of diminishing and abrogating our rights and, conversely, will empower those that made the legislation. As you are probably aware, we want to avoid further erosion of our inherent and treaty rights. Instead, we recommend a process or processes that will reinstitute and recognize our governing powers, including our customary laws.

Our customary laws come from the Creator which are not negotiable and should be honoured and recognized by both the federal and provincial governments. We feel this would be a good starting point in reconciling section 35 rights. Many of our First Nations desire community custom elections, which MKO supports and can be built upon for the purpose of electing our leaders.

Of course, we prefer an opt-in clause, if it is done through the Indian Act amendment. In our region, we have approximately 65 per cent of our First Nations under band custom. As you are aware, the Minister of Indian and Northern Affairs, through an order, allows for community custom elections. At the same time, however, the minister can revert, through his discretionary power, a custom election to an Indian Act election under section 74(1).

With regard to this aspect, MKO recommends that the Minister of Indian and Northern Affairs consult with First Nations to find alternative ways in dealing with issues under the custom election prior to invoking section 74(1). MKO First Nations have always supported the mobility of treaty rights: that our treaty rights apply regardless of residency. The Corbière v. Canada decision supports this notion in that our rights extend beyond the boundaries of our communities and reserves.

As we all know, in Corbière v. Canada, the election process under the Indian Act allows for the off-reserve membership to vote. MKO supports this. In fact, our recent survey indicates that all MKO First Nations who elect their chief and council through custom election allow off-reserve member participation.

With regard to Esquega v. Canada — the Gull Bay decision — and section 75(1), MKO recommends that, before any legislative amendment is contemplated by the government, the First Nations and off-reserve First Nations be consulted to determine this very issue and to ensure proper processes and rules are developed.

MKO has reservations with the federal court with regard to the Gull Bay decision as it has major governance implications which can potentially create an imbalance of power in favour of off-reserve membership and may impair First Nation rights in the process.

The Indian Act states under section 78(1) that a chief and council are elected for a term of two years. It has become a common belief among our people in Northern Manitoba that a two-year term is not enough time to fulfill the mandates of our leadership and, as a consequence, brings instability and economic uncertainty in our communities. Our experience in Northern Manitoba is that community custom elections which allow more than two-year terms are satisfactory to those First Nations.

It definitely brings more assurances in developing and completing new initiatives and projects, therefore bringing economic viability to our communities. Needless to say, our people in our regions support an increased tenure of office.

The Indian Act and the Indian Band Election Regulations have very defined rules with regard to the selection of our chief and council. They define who qualifies to run for chief and council, they provide training for the electoral officers, provide funding for the election process and are compliant to court rulings, such as Corbière v. Canada. INAC, Indian and Northern Affairs Canada, also acts as a quasi-judiciary to hear appeals and make decisions relating to those appeals by First Nation elections. The federal government can also set aside elections.

This complex system is adequately resourced by the government. Therefore, MKO recommends that equal funding on community custom elections be made available to ensure accountability in the custom election processes.

In conclusion, we also call on the government to consult with the First Nations before any changes are made with respect to leadership selections. MKO believes the Indian Act is contrary to the ways of doing business in our communities, and definitely does not reflect our customs.

However, embedded in the Indian Act are recognized rights that stem from the treaties. Therefore, before the Indian Act is amended, we recommend that adequate consultations be developed to engage First Nations people at the community level, which would be in accordance with case law.

MKO does not support tinkering with or "piecemealing" the Indian Act with regard to amendments. However, we will support a new legislation that will recognize our self-government rights. We believe the Indian Act should be repealed but not until both First Nations and Canada agree to a new order between them.

This concludes my presentation. Thank you for listening.

The Chair: Thank you, Mr. Harper.

Did I hear you correctly? You do want legislation, is that correct? My understanding was establishing another piece of legislation was not satisfactory to many of our First Nations. I would like clarification on that.

My understanding is that there was something put before the Assembly of Manitoba Chiefs, and the suggestion that legislation was to be established by the department or by the government led to a rejection of this proposal.

Am I correct about that?

Mr. Harper: Yes, your honour.

The Chair: It is not your honour; it is just senator. You can call me Gerry, if you like.

Mr. Harper: It is true we do not support any kind of legislation that may affect our rights as First Nations. Preferably, as the treaties indicate, we would like to have relations with the Government of Canada.

Also, we would like our inherent right to self-government to be recognized. I believe the leadership would like to see self-government arrangements and agreements, as opposed to creating new legislation, such as the First Nations Governance Act, which was opposed by our leadership.

I would say you are correct: We prefer not to see legislation. However, my presentation indicates an alternative: If the government pursues legislation or legislation amendments, we have certain conditions to that process.

The Chair: I have another quick question, senators.

Please correct me if I am wrong; I am not trying to put words in your mouth, but what I am hearing is that, if an amalgamation or a group, whether it be MKO or whoever, decided they wanted to exercise their inherent or treaty rights to govern themselves or establish their own elections procedures, they could apply to go back to the custom code.

I think one of the concerns is that it would have to be funded by someone. Is that correct?

Mr. Harper: That is right. From our experience, we do have a process; we have appeal committees, through a custom. However, what we are hearing is that they are not adequately resourced. If you compared that with the Canada Elections Act election system, you have all the resource people and resourcing of that process.

Senator Peterson: Thank you for your presentation. I thought I heard you say that you wanted the Government of Canada to negotiate self-government with First Nations people, is that right?

Mr. Harper: That is right.

Senator Peterson: Do you really want that? Is that not Indian and Northern Affairs Canada getting involved again and directing the show? I thought you did not want this top-down discussion.

It would take forever to do this nationally, with all the different groups. However, if one group was prepared to operate on a pilot project where they would take all of these issues — terms of office, contested elections, recall, process of voting, who gets to vote — and did that over a one-year period, and consulted within their group to try to get a sense of it and come up with some kind of a template, would that not be a start that could maybe move this process a little more quickly?

Mr. Harper: The issue of self-government is a process which is supported by our leadership. You have examples right across Canada where they have negotiated their own self-government agreements in which they have processes in how they select their leadership.

In terms of a pilot project, MKO would support whoever is to be part of that pilot project. However, if it is within MKO territory, then there would be consultation with our leadership to ensure that they would agree with the pilot project. I do not know if I answered your question.

Senator Peterson: You did. I am just trying to move the process. It must start somewhere, and we were focusing on Indian Act elections. I think self-governments and inherent rights will all flow once we get started.

I sensed the bottom-uppers are saying they would like to do something, but nobody knows where to start. If you support that idea, that may be one way to get the process going.

Mr. Harper: Yes. There is a belief by our leadership that they should assert their self-determination and sovereignty, to just go ahead and make those processes such as setting up their own selection criteria and processes. There is that group that says let us assert our sovereign powers or our inherent rights.

Then there are those leaders who say let us establish a relationship with Canada through self-government arrangements in which we will take control of our own processes and establish our own laws. Then there is the current system with the Indian Act which is, to me, an interim measure if you are going to amend the Indian Act to establish a selection of leadership process.

Senator Lang: Since I am new to the committee and have not spent any time in Northern Manitoba, you say you represent 30 First Nations in that area. What size are these communities? Are we talking 1,000, 2,000 or 3,000 people per community? What are we looking at here?

Mr. Harper: It varies from community to community. Where I come from, Garden Hill First Nations, we have approximately 4,000 registered Indians that live either off- or on-reserve. The population is approximately 4,000.

Within that area, we have four communities that used to belong to one band. We have St. Theresa Point, Wasagamack First Nations and Red Sucker Lake; a combination from that region is about 10,000 people. We have Norway House First Nations, who have a big population of over 4,000 people in that community. We have another First Nation — Nisichawayasihk Cree Nation, which is Nelson House First Nation; it has about the same population as Norway House. The same with Cross Lake First Nation, they have a big population. It is the same with the Nisichawayasihk Cree Nation. We are talking thousands of First Nations people belonging to these communities.

Senator Lang: Going further now, you talked about custom code elections. I believe you said 65 per cent of your membership were custom code elections, is that correct?

Mr. Harper: That is right.

Senator Lang: How many of those custom code elections are longer than two-year terms?

Mr. Harper: Most of them are more than two-year terms. There are a few custom bands that still remain at three years. The majority of them have three to four years. Norway House Cree Nation has a four-year term.

Senator Lang: Has that been for a long period of time? Have they been doing this for 50 years or 20 years?

Mr. Harper: It is more like 20 years.

Senator Lang: In your area, you have some communities that have two-year terms under the Indian Act, and in Norway House you have four-year terms. As an observation, is it more politically stable? Are there more economic and social opportunities in Norway House, where there is a four-year political term of life for a council, versus in another community in close proximity that goes under the two-year cycle under the Indian Act?

Mr. Harper: I would say the First Nations that have more than two years are more successful with regard to social programming and economic development. Norway House is an example in which they have all the amenities of a small town. They have a shop where they can fix cars, for example; they have a laundromat and a mini-mall.

They have four-year terms. The leadership can actually fulfil their mandates and plans, as opposed to two years in which you get elected, you organize your council within eight months, you start implementing and then you are faced with an election.

I feel that our governments, Indian Act governments, are set to fail with regard to that. If you look around, the city of Winnipeg, for example, has a four-year term for the mayor. Governments have more than two-year terms, as well, and they are very successful.

Senator Lang: If I am a member of one of the communities that has a custom code election, can I go on the website and get the rules that are in place for the purposes of an election? Is that available to me as a member?

Mr. Harper: More progressive First Nations would have accessibility to the rules. That goes to my presentation that First Nations require funding so they can have such documents available at their fingertips. Unfortunately, that is not the case in all the communities in Northern Manitoba. How they access the rules is through dissemination by hand, distributing the actual rules prior to the election.

Senator, you make a good point. That is something that should be in place and why I said the custom elections should be adequately resourced.

Senator Lang: That brings me to my next question. To ensure that an election is fair and all the rules are followed in these cases where elections are called, is there an election officer who is in charge to ensure that all the rules of private ballot and all that are adhered to?

Mr. Harper: Most First Nations under custom do have electoral officers. Under the Indian Act, we have electoral officers as well. Training these electoral officers is something that needs to be built upon. I feel there has to be more training for these individuals and, in turn, providing that information to the community. The answer to your question is yes, there are electoral officers in place.

Senator Lang: Under the Indian Act, if there was a recommendation to extend the period of office for chiefs and band councillors from two years to four years and that was the only recommendation made in this interim period, in order that we can get a longer period of time for the purposes of the political stability in these communities, would you be opposed to that — if it was seen to be done for a period of time and that would be the only amendment that would be recommended?

Mr. Harper: Personally, I would support that recommendation. However, I would not support any other amendments to the Indian Act if it affects the residual governance rights that we have or some of our treaty rights that are embedded in the Indian Act.

Senator Carstairs: Mr. Harper is from the Garden Hill community, in which we know there have been already some people who have been infected with H1N1, along with St. Theresa Point. I know this is not relevant to this governance, but since he is here I would like an update, if he can give it to me. The last I heard, 27 people had been evacuated. Do you have any greater numbers than that, Mr. Harper?

Mr. Harper: I can only report what I know. I can say that I have talked to the leadership in the area. In particular, I have talked to Chief McDougall, who is from St. Theresa Point, and to my own chief, David Harper, from Garden Hill. In Garden Hill, there is one case of a baby having tested positive for H1N1.

With regard to St. Theresa, I have been concentrating on the two individuals who are critically ill in the hospital. It is those individuals I ask about when I phone Chief McDougall.

I know there are symptoms. I am not sure how many confirmed cases there are within the Island Lake area, but I do know there are two other cases further north from our communities. In South Indian Lake they have one case.

The concern the chiefs have expressed is that they question why there is a high incidence of this flu within First Nations. The responses have been in relation to overcrowding in the houses. We have family members, up to 10 people, living in a two-bedroom house. If one member gets infected, there is a high chance of others being infected as well.

Senator Carstairs: Thank you, Mr. Harper. I would like to go back to the actual purpose of your being here.

In terms of the whole issue of consultation, it seems to me we go around in circles. The government will tell us — and it does not matter what political stripe they are — that they are in fact engaged in consultations. I then speak to the Aboriginal First Nations and they tell me that, no, they are not engaged in consultation, that any consultation is kind of a directive from on high; it is not a consultation process.

Could you describe for us what you would consider to be a genuine consultation process?

Mr. Harper: Well, I am probably guided by case law in how I will respond. Basically, the severity of the impact on our rights guides how you would develop the consultation process. In case law, they say a simple letter, in some instances, would suffice if First Nation rights are not impacted that much. Then there are other cases where you need the actual process in which you establish a process and ensure that there is consultation with the community and community members.

Our position has always been that even policy development requires consultation because it potentially can affect our treaty rights or inherent rights. Developing any regulation will impact on our rights, and especially amendments to the Indian Act or new legislation. If the regulation impacts on our treaty rights or even Aboriginal rights, we would be demanding consultation. In those cases, we would say we should actually have a dialogue between government and the First Nations, not just information sessions but to be part of the process of recommending how to change legislation, for example.

Senator Carstairs: As I understood your presentation, I think I heard you say — and please correct me if I am wrong — that if the government, through the Indian Act, administers an election process, then of course they pay for the training and for the election itself, but if it is a custom code election, there is no compensatory funding. Is that correct?

Mr. Harper: No, I did not say that. There is funding available. The issue that I am raising is the amount of funding, that there should be adequate funding — for example, in establishing an appeal committee to ensure that committee is well resourced.

Senator Carstairs: Thank you for that clarification.

In terms of custom code elections, I am aware of many of the communities and I have been in many of the communities in the MKO area. The larger communities, like Opaskwayak, Norway House and Cross Lake, are they all custom code elections?

Mr. Harper: Norway House is definitely community custom election. Nelson House is definitely custom election. Opaskwayak Cree Nation is not. They are still under the Indian Act election system. Cross Lake is custom election. The bigger communities, a majority of them are custom election.

Senator Brazeau: Thank you for being with us tonight, Mr. Harper. While we are talking about governance, if you look at the big picture, we have the Assembly of First Nations, AFN, at the national level, and as it applies to Manitoba, you have also a representative from Manitoba, a regional chief of the AFN for the Manitoba region. You also have the Assembly of Manitoba Chiefs. You also have MKO and SCO, the Southern Chiefs' Organization.

Could you please explain MKO's role vis-à-vis all these other regional organizations? Does MKO provide any services to the citizens living in the First Nations communities that you represent?

Mr. Harper: The mandate of our organization is to advocate on behalf of our First Nation governments and also on behalf of individual First Nations. As an entity, we are incorporated. To benefit the government, we agree to administer and to flow monies to our First Nations. Training is one example where we have an agreement with the government. If we did not have our organization, there would be individual agreements with the First Nations. From what we have experienced with the federal government, they have always liked this idea of having a one-window approach through which they would flow monies and programs.

We are not a service organization; we are a political organization. We do administer certain programs; however, that is mandated by our constituents, the chiefs.

Senator Brazeau: You talked about consultation, and that is always a big-ticket item when we are talking about Aboriginal affairs. If the government were to properly consult with stakeholders, who would the government go to? The bodies I mentioned earlier are all political representative bodies of First Nations communities in Manitoba, so who would the government go to, to try to consult on any amendments, and in this particular case, amendments to the Indian Act?

Mr. Harper: My opinion is that, because we advocate on behalf of First Nations, we would work jointly with the governments to ensure there is adequate consultation at the community level. To answer your question, it is not enough to consult with the organizations. What is adequate is for these organizations, such as MKO, to work and assist in proper consultations at the community level.

Senator Brazeau: If the government were to properly want to consult with First Nations people in Manitoba on amendments to the Indian Act, would the organizations be opposed if, hypothetically, the government decided to host the consultation sessions directly with the First Nation citizens living in those communities? Would the organizations oppose it if the federal government were to go into those communities and have a town hall session where individuals could provide feedback with respect to the specific amendments in this case?

Mr. Harper: Definitely they would be opposed to that. Of course, the chiefs are the board members of our organizations and it is the chiefs who will say, "MKO, you have a role to play. You are mandated to safeguard treaty rights, to safeguard inherent rights," so they will tell us to advocate on their behalf, set up a process and conduct these consultations. Yes, they would be opposed to circumventing leadership of organizations who have the mandate to advocate.

Senator Brazeau: I have a problem with that as a First Nation citizen myself because, if I understand you correctly, that means if First Nation citizens would want information and to be consulted, and if a government would spearhead that process of consultation, thereby giving First Nation citizens and individuals the opportunity to have their voices heard, you are saying that the Manitoba chiefs would oppose such a process in which individuals could have their voices heard?

Mr. Harper: No, that is not what I am saying. Definitely, their voices should be heard. It is developing a process. That is what I am talking about. We need to assist First Nations in developing those consultation processes to ensure everyone is heard through that process.

With the defunct First Nations Governance Act, that was the constant complaint to our organizations: Where are you? The government is circumventing our organizations and saying communities first, and the communities are asking, where are you? That is why I say we would be opposed because we have experienced that process before in which our First Nations have always said, "Help us," so we need to be involved. That is all I am saying. I am not saying we do not want to hear from the people. By all means, we want to hear from the people.

Senator Brazeau: You mentioned earlier that amending the Indian Act on a piecemeal basis is not going to work. As a matter of fact, MKO opposes that. Correct me if I am wrong in any of my statements. Having said that, I have always been of the opinion that any improvements to a piece of legislation are better than the status quo. Several attempts in the past that were tried were to improve upon the governance systems and the accountability of what is currently in the Indian Act or what is lacking because of the Indian Act. Having made those bold statements earlier with respect to and even including recommendations of what the federal government should be doing, such as entering into self-government negotiations that you mentioned, what type of consultations have you had with the First Nations in the 30 communities you represent that has led you to the positions MKO has with respect to these potential amendments to the Indian Act?

Mr. Harper: I have worked with native organizations for approximately 15 years. Through those 15 years, I have listened to the leadership and talked to the First Nations and their position is: Assert your sovereignty. Do the things that you want to do. You do not have to listen to anyone. That is the position of many leaders. They talk about treaties, the treaty relationship between the Europeans and the First Nations, that they still retain self-government powers, that they never negotiated or relinquished any of those powers with First Nations. I have talked to the leadership and I continue to talk and I will continue to talk tomorrow. That is why I am stating that they prefer not to tinker with the Indian Act and not to piecemeal these amendments to the Indian Act.

Earlier I said personally I would support a clear and concise amendment to extend from two years to four years, but when you start tinkering with other provisions of the Indian Act then I would be very cautious and I would say to consult with the First Nations.

Senator Sibbeston: Thank you, Mr. Harper, for being here and answering questions. I do not know you and I have been wondering how I should broach the subject. Many of us on the Senate Aboriginal peoples committee are Aboriginal and those who are not are here in support of Aboriginal people. We come sincerely with a view to helping the situation. We are focusing in this case on the election period, believing that it is a problem out there in terms of our own experience and contact, and believing that if we could just deal with that question of election terms, increasing it, we will be doing First Nations people in our country a whole lot of good. That is the spirit with which we approach this task.

I see you and your organization as being very guarded and cautious. You do not want to see piecemeal amendments; you want wholesale changes and, as you say, a new order. In answer to some of the questions, you recognize the benefit of having more than two years. If it is possible, could you give us that credence or that credit that we are here to try to do good with the work that we do? We have been to Manitoba. We have been to Winnipeg and Dauphin and we will be going to other areas of the country. I think we are doing the right thing. We have spoken to AFN and to other organizations just so that they are not surprised or unaware of what we are doing.

Recognizing that, could you give us the benefit of telling us whether we should continue doing our work, whether in the end if we do find a lot of people recommending to us that we ought to increase the term to more than two years and it is a good thing, whether we should do that?

Mr. Harper: Thank you, senator. I have presented once before to Senate hearings when I was employed with the Assembly of Manitoba Chiefs. I can say that the Senate has been very helpful, not only assisting First Nations' issues but raising and clarifying what problems exist out there. There have been many benefits as a result of the processes that you undergo.

With regard to amendments to the Indian Act, I do raise the issue that First Nations will not be readily supportive of amendments to the Indian Act. However, if it was concise and clear and did not impact on their rights, I am sure they would not oppose it.

The Chair: We have about seven minutes left, so I would ask you to be brief.

Senator Dyck: Thank you, Mr. Harper. You have made your position clear — namely, that treaties are made between sovereign nations. I think you said that you viewed this study as somewhat limiting the right of First Nations to their own abilities to govern themselves. Though that may be the ideal goal, in the meantime, we have the situation we have today.

Would you agree to the idea of removing from the Indian Act the sections that deal with elections, or do you prefer to keep those sections there?

Mr. Harper: The Indian Act, section 74(1) and so on, and the regulation pertaining to Indian Act elections, have served its purpose as well. It is matter of choice by individual First Nations as to which process or regime they want to use. I do not think it is within my position to state what preferences First Nations would like to go through when they have their elections.

Not long ago there was a suggestion — and I believe the First Nations introduced this option — of a recognitions act in which First Nation inherent rights and Aboriginal and treaty rights are recognized. You would have a broad piece of legislation that would enable First Nations to develop their own arrangements with the Government of Canada and recognize their customary laws. That would be the ideal thing that they would support.

I also mentioned this notion of asserting sovereignty, in which you do not go to Canada and say, "Recognize us;" you just assert your sovereignty. To establish that harmony and relationship could be one possible option that First Nations can either implement or look at.

Regarding your question about taking all the procedures, the legislation, from the Indian Act, I think that the recognition act would do that if that was the case. Inevitably, that would be the case, if you were to implement that recognition act.

Senator Brown: Mr. Harper, I believe you mentioned that you have people who live on-reserve and people who live off-reserve. Is that correct?

Mr. Harper: Yes; that is true.

Senator Brown: Do the people who live off-reserve have access to their own homes or apartments or whatever?

Mr. Harper: Persons who live off-reserve do have access to that.

Senator Brown: Can they own their own home or apartment or whatever it is they live in if they are off-reserve?

Mr. Harper: I live off-reserve and I am an off-reserve First Nation who believes in our leadership. I have my own home, if that is what you are asking. I have been on the housing list for a home on the reserve for the past 25 years. I would prefer to live and work on my reserve, but I cannot because of the housing shortage.

Senator Brown: Is it correct that none of the people who live on reserves have their own homes?

Mr. Harper: Some First Nations have their own, private homes, but the majority of them are band-owned homes. On the reserve, yes, they are called CMHC, Canada Mortgage and Housing Corporation, housing in which they pay towards owning the home.

Senator Brown: In other words, they are renting the home to own it, is that what you are saying?

Mr. Harper: I believe they pay the First Nations and when they do finish paying for the house, it would be their own house. I do not know if that is mortgage payments or rent payments. I tend to think that it is mortgage payments.

Senator Brown: How long would that process take?

Mr. Harper: I am not an expert in housing on-reserve, but the amortization period would be the same as you would find in off-reserve housing.

Senator Brown: Do the people who live on reserves and rent these homes own their own furniture or appliances or any of that?

Mr. Harper: Let me be clear: First Nations do not rent their homes. They do not pay rent. They live in the housing that is provided for them through the band. It is band housing.

If it is CMHC housing, that is a different story. In that case, they have to pay mortgage payments like everyone else. With the furniture, they do buy their own furniture. I have not heard of any resident on the reserve who says "I want furniture," being given furniture.

Senator Brown: They buy their own furniture. Do they buy their own appliances as well — that is, washers, dryers, stoves and refrigerators?

Mr. Harper: That is true.

The Chair: I am not trying to direct the line of questioning, but I remind senators that we are having this inquiry on the elections codes and custom codes, and so on.

Senator Raine: First, Mr. Harper, I am sorry that I was late. Sorry to have missed your presentation, but I have very much enjoyed your answers to the questions from my colleagues.

I have been told by friends that, in some ways, reserves are like a prison; in other ways, they are like a fortress. There are aspects of not being able to do what you would like to do, but there is another aspect where you have protection.

We have heard on the committee that, while there is a recognition that a four-year term is good for economic development, continuity of social programs and being able to set goals and achieve them, there is also difficulty sometimes and people are afraid of going to a four-year term because they might have a leader they do not like or someone who will, somehow, go off the tracks.

If we are going to look at changing terms, should we also look at the ability to have a recall mechanism in the elections if something is not right? What are your thoughts on that?

Mr. Harper: The recall mechanisms are removal of leadership.

Let me start by answering your question this way: If, for example, there were amendments to the Indian Act with regard to extending the four-year terms, I am not sure if there is a process in which we can allow First Nations to opt in to four-year terms or to leave it as two years. They will decide. That is my response to that issue.

Through custom elections, they do have recall mechanisms, such as petitions, which are recognized. I happen to have written one custom election in which I was instructed to ensure that a provision was in the custom election code for the recall mechanism of a petition. In that process, yes, they do indicate that they support that mechanism, and I believe they should.

I wanted to also make the point that, in drafting a custom election code, I find their criteria as to who should run and when they should be removed are more stringent than the Indian Act. Under the Indian Act, if someone gets charged, and I am a lawyer and know that, you can be removed from office, but the fact is if you get charged, it might take four years to get a conviction, so you still serve your term plus another two years. The process is quite slow.

To answer your question, yes, there is support out there for recall mechanisms.

The Chair: Senators, our next witnesses were scheduled for 7:30 p.m. I am at the behest of the committee. I do have a couple of names on a second round, but I would like to go to the next witnesses, if that is agreeable.

One question came up considerably, which was voting by mail. I may talk to you about that later, Mr. Harper. In some areas, it was really an issue and uncontrollable. Senators, I spent some time with Mr. Harper today prior to the meeting, trying to deal with other economic development concerns. Mr. Harper, thank you for coming tonight and being candid and straightforward, and for a good presentation as well.

Senators, we now have before us the chairman of the Dakota Ojibway Tribal Council, DOTC, Chief Ken Chalmers from Birdtail Sioux First Nation, and I believe he is also chief of Birdtail Sioux. He is accompanied by Robert Daniels, chief executive officer of DOTC and by Chief David Meeches of Long Plain, just outside of Portage La Prairie. Birdtail Sioux is on the Saskatchewan-Manitoba border. Chief Robert Daniels is from the Swan Lake First Nation, which is halfway between Winnipeg and Brandon.

As you know, we are researching the question of elections under 74(1) of the Indian Act, terms of office, set election dates and possibly the recall situation. Chief Chalmers, if you are ready to go, the floor is yours.

Ken Chalmers, Chief, Birdtail Sioux First Nation, and Chair, Dakota Ojibway Tribal Council: Thank you, senator. Honourable senators, thank you for inviting me to Ottawa and to this committee meeting. I missed a meeting in Winnipeg recently. I just became chairman of the DOTC and the secretary gave me four days to represent eight communities from the DOTC. I am also the chief of Birdtail Sioux First Nation and I have been involved there politically for 12 years.

In regard to elections, I want to give a brief history of the Dakota Ojibway Tribal Council. It is the first tribal council in Canada and is 35 years old this year. They do all our elections. I am chairman of five bands that are in section 74, three in custom and one hereditary chief.

The DOTC does our elections; they function with our governance and we are viewed as the grassroots people. Also, the Dakota Ojibway Tribal Council is the largest landlord in Manitoba. We own over 700 subsidized homes, which we rent to our students and to lower-income people working in the cities — in Winnipeg, Virden and Brandon. They are soon maturing and so we use those as equity for future plans.

The Dakota Ojibway Tribal Council is unique, being the first one, a strong organization and connected to the grassroots of our people. For instance, I am from Birdtail Sioux. The DOTC came in and helped with policies and elections, and also helped us with our connections with government, corporations and Indian affairs.

I would like to give a brief history of my reserve. I did not have a chance to represent Birdtail Sioux First Nation at this committee as chief. We are considered refugees in Canada. We have really no home and Canada's position is that we are refugees. That position here is so we have no treaty. We are non-treaty Birdtail Sioux. We recently engaged with the Government of Canada in the last couple of years through Bill McKnight. Former Indian and Northern Affairs Minister Prentice referred him to us in order to look at our grievances. We will get back to that later.

Concerning the elections for Birdtail Sioux, section 74 is the only thing we have. I have no problem personally with it because it is the only mechanism we know. We do have recall in our community and we use section 74 for that, too. As for the other bands, as I said, three are custom so they run their own elections.

The Dakota Ojibway Tribal Council is really connected to the grassroots of our eight nations. If anyone is going to conduct elections, we get the tribal council to come in and run them for us. They are through our advisory dollars that come to the tribal council. I will get to the point here: They are allowed to do our elections, mail-outs and everything else, which is done properly. However, when it comes to referendums, I have a problem with that because currently I am in the ATR process, federal additions to reserves/new reserves, and I finished that. I am now going into an agreement in principle with the region and the Department of Indian and Northern Affairs says it takes a year to two years to do this referendum process. They refuse to let the Dakota Ojibway Tribal Council do the referendum, yet it says in our agreements that they do elections and referendums.

This process is really affecting me because my additions to reserves are one of the first in Canada that is on a highway. We purchased 10 acres of land and it has taken four years to get a municipal service agreement. It has taken hard work to get investors to believe in our First Nation as an economic partner with the local towns and communities around us, to believe that we want to be part of the economy in our region, which is in the area of Russell, Manitoba, with ski resorts, Lake of the Prairies and new potash mines being developed. Birdtail Sioux has memorandums of understanding with TransCanada Pipelines. We have a memorandum of understanding with the Enbridge company. With the potash people we have jobs in training. In fact, I have 20 guys going out tomorrow. These things are affected by elections.

We have investors. My ATR is a business and economic ATR, as they call it. I bought a school that was shut down in 1994. We are not allowed to spend band money on economic development. I work to get investors to believe in our projects and to start to trust us, but when we run into elections they are scared that I will not get back in and the next guy, who they do not know, will wreck the whole thing. We have agreements with investors so we have $5 million put away for this project, which includes a 300-seat bingo hall, which I negotiated for with the Province of Manitoba. I have 120 machines. We are setting up a gas bar and restaurant here.

It has taken me four years to get a municipal service agreement. It is an urban reserve on Highway 16, right beside the ski resorts, and the potash mines are coming in. There is a great tourist industry there. We have bass fishing in Lake of the Prairies. Every time there is an election, I have to assure these investors, even if I do not get re-elected, whether we are going to stay with the First Nation. I developed this trust with the outside businessmen, chambers of commerce, mayors, municipalities and holding on to these guys is a real chore.

As you all probably know, when you are trying to get people to invest in your people and community, and become part of the economic strategy for the region, then along come elections and you have the guy who is running against you phoning your investors saying that, when Chief Chalmers is out, I am going to shut you down. It creates turmoil in whatever we do business-wise. I think every chief has said that. You work so hard and then the Department of Indian and Northern Affairs gives you the four- or five-year process — the studies the department is supposed to pay for, such as the environmental studies, phase one and two, to make sure the land is free and clear before they hand it over. Manitoba hands to Canada and then Canada hands it back to Birdtail Sioux. They tell the chief that two years from now we will give you $10,000 for that study but you have to wait two years. I convinced our investors that we can do it ourselves and our investors would pay for that study and another one, and basically the investors own the land.

Now I have this referendum coming up, which is called the designation process, in which you have to involve your community. This ATR is a new one for Canada and the Department of Indian and Northern Affairs because it is economic. I have to present my investors to the community and they have to come to three meetings. We have to show them how the corporation is set up, how the chief is put in trust, how it is 100-per-cent owned by the Birdtail Sioux First Nation, and how we buy the investors out over a period of time so we own it all and get all the revenue.

Indian and Northern Affairs Canada must be there at the table every time we do it. I am losing money now. We can kick this thing right off and move ahead. I have to do 12 months for this referendum for designation, and I have the tribal council here as the CEO, and the chiefs who could do the referendum and designation, and do it properly.

You inform your people how it breaks out, how it is set up for the future of your children, and how it is set up for economic development. It will help our housing and pay for renovations — $29,000 a house is not sufficient. It is an economic engine I need and our people need and our children need so I can feed them at school. It is a nice business proposition.

I just came through an election. My stance has cost me a lot of votes. My stance is cooperation with the big corporations. I am listening to the grand chief of Canada who says to work with the corporations; do not take them to court; you do not want to know their answer. I am non-treaty. I am working with Canada. We have a rail line going through our reserve, and I made a promise to former Minister Jim Prentice on July 4, 2006 and have kept it to this day; we will never let anyone use that rail through my reserve unless we keep talking. So far we are talking.

It cost me because a lot of my people want to engage in militant acts on those rail yards. I have guys against me who say let us go and blockade CN Rail and the pipelines through our territory. I say, no; we work. I find it very beneficial working with corporate Canada here.

For example, Enbridge is doing our daycare centre, community investments and a new store. Our people had to travel 50 miles to buy food. It cost them $50 to go buy $20 worth of bread. We have this huge new store where people can shop and the money stays at the community level.

I have a tribal council here that can do everything. We are 35 years old; we are before AMC, SCO and MKIO, Manitoba Keewatinook Ininew Okimowin.

Enbridge is sponsoring our language conference. They are sponsoring my pilot project for saving our language in schools.

Getting back to what we are doing here, the Dakota Ojibway Tribal Council is perfectly capable. This 35-year-old organization has always been grassroots, always came to my reserve when I needed help. I was not born on the reserve and did not live on the reserve. I am an army brat; I was born in Germany. I am the first landed-immigrant chief in Canada. I came home after university to see my mom. She was the first nurse in Canada. I have a sister, Angela Chalmers, who ran for Canada in the Olympic Games and won a bronze medal from Birdtail Sioux.

We have a very outward-looking view. We had the highest suicide rate. We beat the national average when I first came home. We have changed all that. We have changed accountability.

I spent six years getting us out of debt from the previous chiefs, and brought in transparency and accountability, to everybody's chagrin. Some people on my reserve do not like that, believe it or not. A chief being paid $120,000 a year, we are not worth that. We brought our wages down to $30,000.

We did a lot of work here. We get a lot of flak from our people because of my stance. It is hard to win an election when you have one every two years. You just get started in your economic development.

I have been through three terms with this project on the move, and I like the four-year terms. I believe you must set some sort of recall mechanism. There are guys out there who do not care about their people. Recall mechanisms need to be done here.

With respect to section 74, I am glad we are not under custom because they are confusing. They can be used by the opposition and by the chief to their advantage, if it is not set by Parliament with some recommendation on how to do it.

It is hard for us, for me as a chief, to go through this so often. You go in a year, and you have a building plan for a year. We are building 15, 20 houses a year now. We are economically viable now. We pay rent; we have a rent regime and user fees.

We have the first level 2 water plant, one of the top-level water plants in the country is on our reserve and a brand new school. I had four graduates in 40 years. Now we are doing that every year. I am from a small community; I only have 400 on reserve and 300 off reserve. The Dakota Ojibway Tribal Council handles all my post-secondary members. It is very strict; if you fail at school you cannot go back for a while. They are very strict in that area. You have band members who say the chief refuses to let them go to school. We have people in the tribal council to handle all of that so the chief does not take it.

Here is a good example of a situation that can affect your election: Yesterday, to keep our children safe, we shot 21 dogs because they were bringing down our calves. We do this every year. You shoot the wrong dog on a reserve and you can lose the bloody election. I am not joking. We just did it. We culled our dogs because I do not want children hurt. If I did that before an election, you could lose. It is a weird situation.

It is weird to me because I did not grow up there, and all my family is out there — just me and my mum, actually. One year you are elected and you could go and go. The year before the election you are starting to get slammed for your positions in your community on accountability and transparency, you are saying "no" a lot, and saying this does not go on anymore, our children are more important.

This old system of top families on reserves getting more than anybody else, and the workers in our community getting high wages has all ended. That costs you. That cost me, and it is one of the hardest things I have ever done. Somehow I keep getting re-elected. The last one was the closest because of my stance with the corporations and with Canada. Keeping my promise to a minister set me apart from a lot of chiefs.

I was the only chief sitting in the AMC, Assembly of Manitoba Chiefs, sitting there cooperating with the big corporations and feeling ostracized for cooperating because I should be standing in blockades or threatening lawsuits and not following the norm of what we do.

We stuck to our guns, and I see the benefit for our people. After the court rulings in Manitoba, everybody sees that it is best to cooperate. I am following what Minister Prentice told me. He said work with us; economic development is the answer. As I said, four-year terms would be good, but there must be recall; I believe in that. I do not know what to say to you on the recall mechanisms.

I believe that the Dakota Ojibway Tribal Council — this organization has been around 35 years — is closer to the grassroots than AMC, SCO or anybody else in Manitoba. I heard some questions about these organizations. I sit on the boards of these things and I find it confusing. There are so many resolutions, and it is very confusing.

I feel sometimes they do not have my community's interests, but they have some good things.

I can leave it at that. I am frustrated with our election system. I was just elected, and in six or seven months I will have a referendum and will have to wait for Indian and Northern Affairs Canada. People will say, "Chief, you are lying to us; you promised us a gaming centre and a hotel." It was the hardest 10 acres I ever bought. We go into elections and they think I have not been doing anything for the last three years. Getting municipal service agreements alone take about three years. I thought I could do it all in one year; I was naive. It has been five years now. I believe in our Dakota Ojibway Tribal Council. We are economically established in Manitoba having some 700 or so homes for people who live off-reserve. Our post-secondary graduation rate is the highest in Manitoba. My reserve is small. I have 25 graduating students all over Canada. I have head nurses and surgical nurses in Vancouver; and I have police officers and detective sergeants in Winnipeg. With the elections, I will get back to them. I am forced to do it and it is a big campaign. I know you were all elected at one time somewhere, although not here. I am talking about elected positions and not appointed positions. For example, I followed the career of Senator Carstairs when I was a younger man. I am not insulting you but I am 50 years old now.

The Chair: That is a lot of information.

Mr. Chalmers: I cannot tell you how the recall mechanism works, to be honest. The Dakota Ojibway Tribal Council is working at the grassroots level. I bring guys in on all policy and everything we do. They are well respected in my community. Sometimes I have a grand chief come in. Robert will come in and bring his staff and teach policy and administration. That is the way it has been and it is really good. Why can the Dakota Ojibway Tribal Council not run referendums? They run elections. They mail out and do everything properly. However, when I get to this referendum for my additions-to-reserve designation, the Dakota Ojibway Tribal Council cannot run it; Indian and Northern Affairs Canada has to run it, which will take another two years.

The Chair: Thank you, Mr. Chalmers. For the record, do you have eight bands on the Dakota Ojibway Tribal Council?

Mr. Chalmers: We have nine bands. There were eight originally and we let one more in, but they have no control. We let them in and provide service to one of the First Nations. We advise them and give them a helping hand on whatever they need.

The Chair: Are any of these bands in Treaty 1?

Mr. Chalmers: Yes, the four Long Plain bands. There are four Dakota bands that have no treaty.

The Chair: You said "machines;" is that video machines?

Mr. Chalmers: Yes, I negotiated with the justice minister for 120 one-armed bandits.

Senator Lang: I appreciate your candour. It must be tough being the dog catcher. You made a comment in your opening address that custom codes can be confusing and often to the chief's advantage. Could you clarify that?

Mr. Chalmers: The power in communities is based on families. Usually the power bases have been there for 30 to 40 years. I say it can be used by the chief and by the opposition. There are a few examples. I know one First Nation that is always in court. There is always someone challenging the custom election code. You might be elected but then have to face a court case against you. For 18 to 19 months, the poor chief is sitting there wondering what the custom election code was meant to be? They have people in your community, which they should have, to make that chief responsible and the council responsible. Yes, there should be an opposition but when that opposition goes to the custom election code and bends it in their favour, the elected chief ends up in court. A judge has to figure it out for you. The chief might say he did everything right but the opposition thinks otherwise. The interpretation of the custom election code can vary. It is very confusing and drags the community down.

Senator Lang: What is the difference between a custom code that has recall versus election under the Indian Act that has recall?

Mr. Chalmers: It is straightforward with section 74 and such things as the chief missing meetings or not showing up around the community. It is pure and simple: You are out. If you are charged with an offence, you are out. The rules are straightforward. Custom election codes are more confusing.

David Meeches, Chief, Long Plain First Nations: With respect to the earlier question relating to the custom code and the process, prior to the amendment of the custom code or the adoption of the custom code, you have parties. My First Nation is custom and we go to a vote in terms of the changes we make. Generally, those that provide the louder voice will have their amendment put into the code. Potentially, it is changed based on the interests of that individual.

As I indicated, we went through that process in our community in Winnipeg. Our code was changed six months prior to an election. We have three-year terms. I was fortunate enough to be elected, but I cannot say that the provisions changed within our code were in the best interests of our community because it was a simple majority of a small number of people who approved it.

Senator Lang: I see real problems with the recall because, as a mechanism for dissention within the group, it provides that political base to continue to agitate as opposed to dealing with issues as they arise.

If we were to recommend that the Indian Act provision on elections be amended to go from two years to four years, would you support it?

Mr. Chalmers: Clearly, yes, as long as it is black and white. Section 74 is black and white but many First Nations want sovereignty. We want provisions like drug protection for candidates and certain criteria that you throw in, such as education. It is up to that First Nation but I would support a four-year term with a recall mechanism so that you do not face a disaster in two years, which can happen.

Senator Brazeau: Thank you for being with us this evening. I will share Senator Lang's view of appreciating your candour in your comments. I certainly sympathize with good chiefs across the country, having had the experience of heading an Aboriginal organization. In terms of governance, you are dealt the cards you are dealt and you try to do the best you can.

I understand some of the opposition you may receive when you are trying to do the right thing and things within your mandate and whatnot.

Just for clarification, you are here as the chair of the tribal council. Therefore, do you speak on behalf of the nine communities that make up the tribal council?

Mr. Chalmers: To answer your question, most of the chiefs have spoken to this committee already. I know of one who has not, the hereditary chief. I am pretty sure every chief from the DOTC has been up, like Chief Brown.

The Chair: Is that Sioux Valley?

Mr. Chalmers: Sioux Valley, Chief Elk. She is from Sioux Valley. Chief Frank Brown is from Canupawakpa. He is in Winnipeg. I think most of them came. Chief Murray Clearsky came from Waywayseecappo. Terry Nelson belongs to the tribunal council.

The Chair: Is it Rolling River?

Mr. Chalmers: No, that is another tribunal council.

The Chair: Thank you.

Mr. Chalmers: To answer the question of Senator Brazeau, I am speaking on behalf of Birdtail Sioux and being chairman of the organization, I would not talk on behalf of another chief. I think they had their words here already. The Dakota Ojibway Tribal Council is closer to the grassroots than the AMC, the SCO or even INAC or whoever runs the election. There are ones who are giving the information for accountability.

That is the oldest tribal council in the country that is secure in its grassroots. There are CEOs and they have professional staff. We have health directors. Health directors have master's degrees. My health director at the grassroots level comes in and helps them organize what we need to do. Our health director is all over the latest epidemic. The AMC did not help us at all. The DOTC knew that we should have got those funds instead of the AMC. They went around workshopping everybody, but we needed wash stations at our schools. We needed that stuff on the ground, right now, instead of the AMC.

I remember my health director coming back to me and the Dakota Ojibway Tribal Council health director saying, "Workshop, workshop," but now this thing has hit. Traditionally, for First Nations, every new epidemic that comes down the line we get hit. I believe Dakota Ojibway Tribal Council as a grassroots organization with the nine-member bands have handled our money very well. We have a very good accountability to the First Nations. We do very well in that area.

I am stuck between a rock and a hard place with 20 different organizations when I know this organization can do it for 15,000 people. In this tribal council, we could have done it a hell of a lot better. I am not talking about anybody in the other organizations, but I see something that works, and somehow that money stops at the AMC, and they are not service providers. The Dakota Ojibway Tribal Council is. We have health staff. I will leave it there.

Senator Brazeau: I appreciate the clarification. I will frame my question to you as you being the chief of Birdtail. Birdtail is under section 74 as you mentioned, and our work as a committee is to look at means, ways and options to improve on the section 74 prescriptive election regime under that act.

Given your earlier comments, I am assuming that you would not be, as chief of Birdtail, opposed to any improvements to the governance in terms of rules of elections under section 74. Would that be a fair assessment?

Mr. Chalmers: It would be fair to say that I believe in Elections Canada. When they do a job, they do it right. We get questioned every day on how we do it, and we need someone who has credibility. We need your help — this committee's help — to show that we have credible elections, and that they are done right.

Section 74 is all I have, and it is, like I say, black and white. This whole system is not perfect. It is dependent on the mail-out ballots; I will go to that. I am not too sure as chief if I should be contacting my students. Who is the family and how do you campaign? So you sit there quietly and hope family members phone them up and get them to send names in so the Dakota Ojibway Tribal Council can send them the election ballots. I barely hang on.

However, section 74 is the only black and white thing I have. It is under the Indian Act, which is archaic, but that section is all we have now, unless we go to custom and that will take me years, or a long time, because it will be just a sideshow in our community: "We want this; we want that." To implement all these rules and then be challenged, we have to send it to Ottawa, Justice Canada, and make sure Charter rights and all that are taken care of. It is something I would love to engage in, but the capacity is hard to do. Tribal council would love to help me do my custom election codes. There would be a series of meetings. It would take at least five years to complete with our community.

To answer your question, the only thing I have is section 74.

Senator Brown: Mr. Chalmers, I admire what you have done with the tribe that you are working with, especially a non-treaty, but your success shows that the election process works. I would suggest that the more risk you take, the more freedom you will have.

I had nine years' experience dealing with some reservations around a large city in a planning commission. We could get anything for — I do not know what you call them — ordinary people in three months. We could make decisions. If there was a plan that came in from a reservation, it took a year just to get it to Ottawa and back before we could start making a decision. A good part of your problem is the slowness of the Canadian federal government, so that everybody understands the government I am talking about. That is why it is a snail's pace to get projects done that you want.

However, you have to do a lot of pushing on the federal government to make that time frame shorter. It is worth the struggle because I know that one particular reservation — I will not name names; people can find out easily where I used to live and the names of them — decided to subdivide a bunch of land and lease it to people who lived in the city, and the lease was only 10 years. They have renewed it twice already that I know about. These people built some expensive homes around a big golf course, and I do not think they understood themselves, but it was nice to see the Aboriginal people get the upper hand, quite frankly.

I can think of another reservation on the south side of the city. They just got $50 million for an intersection on their reservation — not a bypass, just the intersection.

Therefore, the harder you push for democracy, I think the better off you will be and the more freedom you will have. If you are held by regulations, you are always stymied in what you are doing.

The one thing I agree with all my colleagues on is that you do not want a recall mechanism. They can be a horror story, unlike any election you have ever heard of.

Senator Carstairs: This is the first time the issue of a referendum, to my knowledge, has been raised vis-à-vis elections. If the DOTC is capable of running elections — and they are — then why they cannot be designated as the official group to run a designation process I do not know, but we will try and find out.

In terms of recall, if you think it is a misery to have to run an election every two years, can you imagine the misery that you will live in if six months after you were elected, a group of residents decide they will begin a recall petition against you, and you will be spending the next six months fighting a recall? At least you had two years. I happen to believe the four years is probably a reasonable amount, but I would ask you to rethink the concept of recall. I think it could really put your feet in clay in terms of being able to function adequately.

It seems to me that the best "recall" should be losing the support of your council. Once you lose the support of the council, you will not be able to do anything anyway as chief if the council is not functioning properly. I would like your comments on that.

Mr. Chalmers: That is an interesting comment. I went through that experience. If there are ideas the council do not like, I get out-quorumed. You cannot do anything. With the economic development proposals we are doing, I have full support. It is internal when you work with your council. Believe me, if they do not believe in you or in a specific project, they will out-quorum you on any issue.

I try to get the point that recall is what really hurts everyone, but you make me think again; I forget that council has that power. It does, and I have felt it. It is democracy at its best at that level. They represent people on my reserve who I have to respect, and I cannot out-quorum them. That is why we do everything right.

I have heard nightmare stories on recalls and custom elections, and I am not prepared to go there. You are right; it is my council that controls me. There are many elders who control the council. It evens itself out.

Four years would be good. It seems like some people think I just want to stay in power, but that is not the point. You have a whole generation of children in school currently; I will find out 10 years from now, when they are 16 and 17 years old, if I have failed. If I have failed these guys, I will have another 70 per cent of my population unemployable, which is at that point right now. My job is to get this new generation all re-educated.

Robert Daniels, Chief Executive Officer, Dakota Ojibway Tribal Council: Thank you. I wanted to clarify that I am not chief of Swan Lake anymore. I might get in trouble with my chief if you keep referring to me as "chief."

The Chair: I said "former chief."

Mr. Daniels: That is for the record. Anyway, in terms of the question raised by Senator Carstairs, the Assembly of Manitoba Chiefs' proposal is contradictory in one sense in that, on one hand they want stability and to make sure they can enter into long-term agreements and stable chiefs and councils but, at the same time, they are looking for recall. We could have 64 chiefs in recall and we could have chaos. I am not sure why they are promoting the recall mechanism through the office of a First Nations chief electoral officer. Those are some of the concerns we raised in terms of our briefing.

The paper we presented to you this evening we were not able to read; we do not have the time, but there are points in there that we raised that were also raised by the Department of Indian and Northern Affairs and the AMC that have yet to be resolved. There are question marks around some of these issues.

For the record, we would like to enter this brief from the DOTC as part of the record this evening. We were not able provide a version in French, but if we could enter it in as part of the record, we would appreciate it.

The Chair: Is it agreed it should form part of the record?

Senator Carstairs: Absolutely.

The Chair: I have the copies here, but we have not circulated them because they are only in one official language.

Senator Carstairs: Could we hear from Chief David Meeches on this point as well?

Mr. Meeches: With respect to recall?

Senator Carstairs: Yes.

Mr. Meeches: What I can refer to and to do a comparison, the issue of recall within our code can cause a lot of problems because recall is too easy under our code. It just takes certain provisions to kick-start whether it is a chief or a member of council to be recalled, or the whole council, for that matter.

Again, we underwent a process in terms of approving a code where there was so little participation by our membership on and off the community, that I raised the point there should be a level of participation prior to adopting a change of that nature, especially with respect to recall.

When you look at the issue of recall under section 74, I am aware of First Nations that waited their whole term and beyond to be recalled under the appeal mechanisms provided within the Indian Band Election Regulations. There were whole new chiefs and councils in place where they were removed as a result of the non-recognition of the former council. Recall under section 74 today is no good unless it is clear-cut in terms of the reasons for recall under the current recall provisions.

Once recall does occur, in terms of an appeal, everything is in the air and you cannot make a decision. It is basically that way throughout your whole term. Under section 74, the recall mechanisms are irrelevant.

Senator Carstairs: Thank you.

The Chair: Is that because you end up in third-party management when the process is happening?

Mr. Meeches: In the cases that I am aware of, they were not in third party because they were under investigation. When a recall does occur generally, a whole new election is directed. That is when they go into third party under the accelerated process, for 35 days, I believe.

Mr. Chalmers: Indian Affairs or INAC would call it political instability. That is when they put you in third party and sort it out years later.

Senator Dyck: Thank you for your frank presentations. You talked a bit about the mail-in ballots, and it sounded as though you had some difficulties with them but it was not to the extent that you felt it was a problem. Other witnesses have told us about a lack of secrecy of the mail-in ballot or procedural difficulties, which you have told us you have not had problems with. Your experience has been relatively good, has it not?

Mr. Chalmers: The DOTC CEO is the electoral officer for the tribal council, and he will explain the problems of that mail-in ballot. I stayed away from it because it is so confusing to me.

Senator Dyck: If you stay away from the mail-in ballots, how do your off-reserve people vote?

Mr. Chalmers: We post in papers and tell them across Canada there is an election. It is in the papers: "Please contact Robert Daniels. Get your address and name, and we will send you a ballot." I feel it is not me but the candidate running who should be phoning these guys.

I am worried about breaking some rule that I do not even want to go there. Someone will say you did something to change that ballot. I will let Mr. Daniels explain how there are problems.

Mr. Daniels: Within the Manitoba region, the process is that the chief and council have elections, so they have to appoint an electoral officer. They pass a band council resolution, BCR, recommending that someone be appointed. Then the department appoints the electoral officer to conduct the election.

However, in Birdtail Sioux's case, that is what happened. We were asked to run the election in Birdtail Sioux — recommended by the band and council — and the department appointed me as the electoral officer. My capacity at that time was coordinator for advisory services within the tribal council. That falls within our mandate. David Meeches was the CEO at the time so he was my deputy electoral officer. We worked together on the election.

In terms of the mail-out ballots, when the notices go out, they are posted and everyone is aware; we use the previous year's election ballot addresses and so on. Because they move, people ask for ballots to be sent to different addresses. In fact, we have even sent out information to them right up to days before the election, even though we know the turnaround is not big enough; they will not make it for the election day or the time everything has to be in.

I collected everything at the post office on election day for the mail-out ballots. I think the majority of them were returned because the people had moved. When we do count the ballots, there are checks and balances within the Indian Band Election Regulations where everyone has to sign certain documents regarding their mail-out ballots. They have to sign a document even if they bring a ballot in for someone else; they have to sign it. They bring in those ballots on behalf of their mother, father or whomever.

In Birdtail Sioux's election, we had no spoiled ballots whatsoever. Of all the mail-out ballots that came back, only one was spoiled in the last election. The 45 days came and there was no appeal on the election. Therefore, I guess I am saying the election regulations work if you follow the rules.

Mr. Meeches: I would like to make reference to process. Going back to my former role as chief executive officer of the Dakota Ojibway Tribal Council, my observations with respect to the mail-out ballots are that our community people do not trust them. Whether it is custom or section 74, they do not trust them.

The primary reason why that process is being so heavily criticized is when the Manitoba region — and I am assuming it is applies to all regions — when a First Nation is about to enter into an electoral process, the department provides that First Nation with its notification and timetables under section 74. There are 79 days or so to appoint an electoral officer. On the back, attached to your notification, is a list of regionally trained electoral officers. The First Nation then chooses one of these individuals.

However, there is no transfer of the database for the off-community members' addresses. Therefore, the electoral officer has to start fresh in terms of trying to access addresses. Generally, what happens is that First Nation individual who wants to participate and does not get a mail-in ballots rightly complains or indicates: "I received this information at the last election. I did not get it today."

That is because that database is not transferred because everything with respect to the election is handed in to the department; it is not kept at the First Nation level under section 74. To me, when you look at my observations with respect to that, there should be a pool of individuals from tribal council to tribal council region, who are not only trained to be able to conduct elections, but trained to be able to provide an educational process under either current section 74 or future section 74 provisions.

Then you have continuity and a database that is ongoing from election to election.

Senator Raine: I am finding this very interesting, and it is a conundrum that you are facing here. Hopefully, we can come up with some solutions or, at least, some recommendations.

One of the things we were looking at was the potential for holding elections on the same day for the whole of the province so there would be a common knowledge that, every so often, it would be a regular occurrence. That way, people would get used to voting at a certain time of the year, all on the same day.

I can see that, perhaps, if the Dakota Ojibway Tribal Council is running the elections, it would not work because you could not obviously work elections for all the different bands on the same day. Could you comment on that?

Mr. Chalmers: Yes. In my mind, I think it would be practical to run them at the same time if you had four-year terms. I am trying to figure out what it would do to the political organizations — the grand chiefs and all that stuff.

I would not mind if it is all at the same time, but it would change the whole aspect of the AMC, the SCO and all those guys because you would have a bunch of the same or new chiefs all coming in at the same time.

I am worried about our First Nation and having these elections not rip us apart at the community level. I cannot see it not hurting altogether; I cannot see it hurting it.

Senator Raine: I am from British Columbia and we have municipal elections all across the province on the same day. It is not the mayor's turn to be elected in every municipality. Some are elected one year and others the next. There is quite a rotation.

It is the same with the councils. Some terms are up and some are not. Looking forward to municipal elections on a certain day becomes a routine.

Mr. Chalmers: I would agree with you there. I think elections are quite controversial in our region. I have chiefs going up for elections in our tribal council this year, and mine does not come for another two years. I am engaged with these guys in community investments and working together, and I am not sure if they will get back in.

Do I disengage with my investors? We do not know who will come in. Maybe if we all stayed together and got elected there, it would affect it in that way. I really believe the grassroots people should be electing the grand chiefs, not grand chiefs electing grand chiefs. I have always believed in that. That is every four years.

Senator Raine: It works for the United States.

Mr. Meeches: My difficulty with that concept is how you get there. I am not aware of anyone within our tribal council who has a three-year term as I do. If we decide to do this two-year term, will I give up a year for the sake of this concept? I indicate truly that I will not. We are scattered. Before I can agree to any process of that nature, I would first have to see if this is something my community will agree to. You can appreciate that we listen to chiefs, but you are not hearing from the people at the community level.

I suggested in Winnipeg that, if you want to get the true picture of what it is like at the community level, speak to a tribal administrator. You should see the people who manage our First Nations during an election process. It is chaotic for us at the political level. As a former administrator, it is that much more difficult. There is always a deep-rooted fear that, when you are politically appointed and change comes or when there is an election, you will lose your job. We recently eliminated a process for our chief executive officer.

The Chair: Thank you, chief. I would like to thank the panel for sharing your time with us this evening. We had candid, straightforward presentations and candid, straightforward answers. It has been informative. Hopefully, we can work this into recommendations. We will not impose or recommend the imposition of anything on First Nations. We are here to make recommendations.

Honourable senators, the next hearing is scheduled for Tuesday, June 16, at 9:30 a.m. The committee will hear from representative chiefs from the Province of Ontario. If there is no other business in public, we will go in camera for business relating to the committee.

(The committee continued in camera.)