Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 13 - Evidence - March 7, 2012
OTTAWA, Wednesday, March 7, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 6:45 p.m. to examine and report 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: additions to reserves); and to give clause-by-clause consideration to Bill S-6, an Act respecting the election and term of office of chiefs and councilors of certain First Nations and the composition of council of those First Nations.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good evening. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples. They will either be watching on CPAC or possibly on the web.
I am Gerry St. Germain, from British Columbia, and I have the honour of chairing this wonderful committee.
The mandate of this committee is to examine legislation and matters relating to Aboriginal Peoples of Canada generally. Today we will be continuing our study of addition to reserves. The phrase "addition to reserves" refers to the process of adding land to existing reserves or adding land to new reserves.
In June 2011, Canada, as represented by the Minister of Indian Affairs and Northern Development; and First Nations, as represented by the Assembly of First Nations national chief, agreed to a joint action plan to improve the long-term prosperity for First Nations people and all Canadians. The Canada-First Nations Joint Action Plan includes a comment to explore concrete initiatives aimed at unlocking the economic potential of First Nations, including improvements to the additions to reserve policy.
Witnesses for this study would be asked to provide their views and observations on the current ATR policy, which is Additions To Reserve policy, and its associated processes and will be encouraged to offer their suggestions on how to overcome the various deficiencies with the current policy and process.
This evening we have the honour of hearing from the Office of the Auditor General of Canada.
[Translation]
Before we hear from our witnesses, I would like to introduce the committee members here this evening.
[English]
On my left is Senator Nick Sibbeston from the Northwest Territories. Next to him is Senator Lillian Dyck, deputy chair of the committee and from the province of Saskatchewan. Next to her is Senator Lovelace Nicholas, who is from the province of New Brunswick. Next to her is Senator Charlie Watt, from the province of Quebec. On my right is Senator Dennis Patterson, from Nunavut. Next to him is Senator Dagenais, from Quebec. Next to him is Senator Greene Raine, from the province of British Columbia. Next to her is Senator Vernon White, from Ontario. Next to him is Senator Jacques Demers, from the province of Quebec. Last, but definitely not least, from the province of Ontario, we have Senator Don Meredith.
Members of the committee, please help me in welcoming our witnesses from the Office of the Auditor General of Canada. We have with us Mr. Jerome Berthelette, Assistant Auditor General; and Frank Barrett, Principal.
Gentlemen, as usual, we look forward to your presentations, which we have heard from the department on numerous occasions. As you know, your presentation will be followed up by a few questions.
Jerome Berthelette, Assistant Auditor General, Office of the Auditor General of Canada: Honourable senators, thank you for this opportunity to discuss the chapter on treaty land entitlement obligations from our March 2009 status report. I am accompanied by Frank Barrett, the principal responsible for the audit.
Land can be added to reserves for any number of reasons. According to the additions to reserves, new reserves policy of Aboriginal Affairs and Northern Development Canada, land can be added to a reserve to fulfill a legal obligation, such as a claim settlement agreement, for community growth or for the creation of a new reserve. One type of addition to reserve arises from the settlement of treaty land entitlements. When treaties were first assigned, the appropriate amount of land was not always set aside for reserves.
[Translation]
Canada acknowledged its failure to meet these types of treaty obligations and, in the 1990s, signed treaty land entitlement agreements with many First Nations in Saskatchewan and Manitoba. Consequently, First Nations that did not receive the proper amount of land under the original treaties can obtain additional land and convert that land to reserve status.
Some of the most impoverished First Nations in Canada are in Manitoba and Saskatchewan. The land that these First Nations acquire under treaty land entitlement agreements can have a significant impact on their social circumstances and economic development opportunities. These agreements outline the responsibilities of the department, the provinces and First Nations for completing the process.
Our office first examined the government's fulfillment of obligations related to treaty land entitlement agreements in 2005. The audit in our November 2005 report specifically examined the department's progress in converting land selected under these agreements to reserve status in Saskatchewan and Manitoba. The audit also examined whether the department was managing the conversion process in a way that was consistent with its legal obligations to First Nations. These obligations involved converting over 1.4 million acres in Manitoba and over 2.7 million acres in Saskatchewan to reserves once the land had been selected for conversion.
In our November 2005 audit, we found a number of deficiencies in the department's management practices for meeting its obligations, such as inadequate planning and an absence of targets for land conversions. We found that these deficiencies limited the department's progress in converting lands to reserve status, particularly in Manitoba. We also found that about 58 percent of the land selected by First Nations in Saskatchewan had been converted to reserve status, while only 12 per cent of the selected lands had been converted in Manitoba. We made eight recommendations, most of which focused on the need for the department to improve its management practices. The department agreed with our recommendations and, in 2006, the Minister of Indian Affairs committed the department to converting 150,000 acres of land in Manitoba to reserve status in each of the following four years.
[English]
In our March 2009 audit, we examined the department's progress in converting land to reserve status and in implementing the recommendations from the November 2005 audit. We found that the department had made significant progress in converting lands to reserve status.
We found that, since 2005, the department had converted over 315,000 acres to reserve status in Saskatchewan and Manitoba. This number represented a 42 per cent increase in land conversions in just three years. In Manitoba alone, over 227,000 acres have been converted to reserves since the previous audit.
The follow-up audit in 2009 also found that the department had made efforts to improve its communications with First Nations and to work more closely with them when planning conversions. However, during our 2009 audit, we also found that the department had not made satisfactory progress toward implementing several of our recommendations for improving its management practices to meet its obligations to First Nations.
For instance, in Manitoba, the department had not developed a plan that outlined how it would manage its operations to process outstanding selections within a reasonable period of time. Furthermore, it had not tracked processing times, and it could not demonstrate that these times had improved over the previous three years.
The continuing management weaknesses that we identified in our 2009 follow-up audit were of particular concern because they related to treaty obligations that Canada incurred more than a century earlier. We found that, in Manitoba, over 430 selections — close to 650,000 acres of land — remained to be converted. In Saskatchewan, over 700 selections, representing 451,000 acres, remained to be converted. We concluded that, without sustained management to correct the weaknesses we had identified, the department risked being unable to sustain its progress in converting land to reserve status.
I should point out that the audit, which was tabled in March 2009, was substantially completed in September 2008. We have not conducted any follow-up audit work on this issue in the past three-and-a-half years. The department has advised us that, in response to our audit recommendation, it implemented a National Additions-to-Reserve Tracking System. The department also advised us that the tracking system is now a mandatory requirement of the additions to reserve process and that the department intends to monitor the progress of land conversion. We have not audited this tracking system.
This concludes my opening remarks. We would be pleased to answer the committee's questions.
The Chair: I will ask the first question. When will you do another audit, Mr. Berthelette? Is there anything set, or am I asking something that is out of school?
Mr. Berthelette: Not at all, Mr. Chair. We have no plans to conduct another follow-up audit of additions to reserves.
The Chair: Is it fair to ask when, or is it determined by other workload responsibilities?
Mr. Berthelette: We have no plans at this moment.
The Chair: Oh, I am sorry. How would we interest you in having a plan?
Mr. Berthelette: Mr. Chair, we understand how important additions to reserves is to First Nations. We recognize the economic impacts and the social impacts. In our planning process, we try to coordinate the resources we have available with the number of issues that we have to look at. I can say, Mr. Chair, to you and to the committee members that, as part of our planning, we will consider it, but, at this moment in time and for the next few years, I do not see us doing any work on additions to reserve.
The Chair: Is it possible that you can just send someone in to do a quick check, or do you have to go through a complete process if you are going to go that route, sir?
Mr. Berthelette: We would do an audit level of assurance if we were to go back and take a look at it, so it would require some resources on our part and some planning.
Senator Patterson: I have had a bit of experience with the work of the Auditor General in government. Traditionally, government departments are asked to provide a response to the Auditor General's recommendations and often develop a kind of an action plan. Did your last report on the ATR process, in 2008 and 2009, have recommendations and any way of getting a response on those recommendations from the department?
Mr. Berthelette: I will start and maybe Mr. Barrett will follow on. The original audit of 2005 had eight recommendations in it. This audit followed up on all eight recommendations. I would refer honourable senators to page 19 of the 2009 audit. I do not know if the members have that before them, but when you go to our website and you see it there, you will see at paragraph 4.58 that we had a recommendation, which I will just read for the record. In 2009, we recommended that:
Indian and Northern Affairs Canada should develop and implement an action plan that sets out how it plans to convert lands to reserve status. In the plan, the Department should clearly identify its next steps, responsibilities, and timelines for actions for each land selection that is to be converted to reserve status. The action plan should include details on
- the Department's commitment to help First Nations resolve third-party interests,
- the way data integrity issues will be resolved, and
- the Department's plan for developing a consistent file structure to better monitor the status of treaty land entitlement selections.
The department responded and said that it was committed to honouring its lawful obligations and committed to an action plan that sets out the next steps, responsibilities and timelines for the process by which land selections are to be converted to reserve status. The department did commit to develop an action plan and we have a copy of the action plan.
Senator Patterson: What did you think of the department's action plan?
Mr. Berthelette: We have a copy of the plan, but we have not audited the plan. I am not in a position to be able to say very much about the action plan.
Frank Barrett, Principal, Office of the Auditor General of Canada: If I could elaborate slightly, as Mr. Berthelette has explained, we have not audited the action plan, so we would be reticent to speak about something that we cannot give you any particular assurance on.
In discussion with departmental officials on more of an informal basis, not during an audit, they have said that this has been a useful process for them in terms of reaching agreements with Manitoba chiefs, for example, in moving forward on different issues. However, I cannot speak to how much of a different it has made over the last three years. That, I would suggest, would be a better question to pose to the department.
Senator Dyck: Thank you for your presentation. I was just looking at the numbers and the information that you presented, namely that it was the 1990s when the treaty land entitlement agreements were made on the Prairies and in Manitoba and Saskatchewan.
I am from Saskatchewan. You said that Saskatchewan has had 58 per cent of their land selected converted to reserve status, while it is much lower in Manitoba, at about 12 per cent.
Furthermore, you said that most of your recommendations focused on the need for the department to improve its management practices. Is the difference in the rate of conversion between Manitoba and Saskatchewan due to management practices or was there something different that occurred in Saskatchewan that somehow facilitated the process there?
Mr. Barrett: I would be happy to address that question. There are a few things that we found in our 2009 audit that directly speak to that. We found that in Saskatchewan the regional office was working much more closely with the First Nations. We found that they had a much better filing system. In fact, they were working in much more, I would suggest, of a systemized way to make the conversions.
In fairness, the 12 per cent that we identified was from the 2005 audit, and we did note that in 2009 that number had moved up substantially; there had been a lot more land in Manitoba converted. However, we were seeing a fewer number of parcels converted to reserve status, but they were bigger parcels. In Saskatchewan, it was much more typical that they were acquiring land that was already privately owned and smaller parcels of land and then getting each of them converted to reserve status, whereas in Manitoba they were getting larger tracts of land. One conversion would count for more acres.
Senator Dyck: It is numbers versus actual area.
Mr. Barrett: In general, the situation in Saskatchewan is a happier story in 2009 than what we saw in Manitoba.
Senator Dyck: A while back we had witnesses from the National Aboriginal Land Managers' Association who had a chart of the process involved. They had this long chart that they unrolled that was pretty much the length of the table at the back. It looked as though it could be a huge impediment to rapid conversion.
Do you think that tweaking management will make that big a difference or is there something within the process itself that will make the biggest impact?
Mr. Barrett: I am happy to take a stab at that question. First, I think there are lots of reasons why it is a fairly complex, involved, complicated process. In addition, when we produce an audit report, we work hard to simplify the process and to make things as accessible as possible and not get really bogged down.
In exhibit 4.1, we have a highly simplified chart that sort of walks us through the process. This is about as complex as you will ever see in one of our audit reports. We try to make it as simple as we can, but there are just so many pieces to it. I would not call that a management problem per se, because there are legal ramifications. Acquiring things from the third party interest is involved, as is private land ownership. The First Nation has a role to do and then, when it gets to the department, there are many steps involved that they have to do as well. The issue is recognizing that there are all these steps to do. It requires a good management system to accomplish that in a reasonable time frame.
Senator Meredith: Thank you for your presentation. You said on page 3 of your brief that "We found that the department had not made satisfactory progress towards implementing several of our recommendations for improving its management practices to meet its obligations to First Nations." In point four you raised the fact that, obviously these delays are causing significant impacts, socially and economically.
Can you elaborate for me on some of the social impacts that you identified in your audit? We have also heard about the economic opportunities that exist for First Nations when additions to reserves are accommodated and about the fact that they are being denied participation in economic development within Canada because, again, of these lengthy delays. Can you expand on those two points for me, please?
Mr. Barrett: First, in exhibit 4.6 of our report, on page 16, we raised two examples Rolling River First Nation in Manitoba and Onion Lake First Nation, Saskatchewan. These are First Nations that we visited during the course of the audit, where we saw that land — especially in the Saskatchewan case, if I recall correctly — had already been purchased but it was not yet a reserve. Often, there are economic benefits to First Nations — that is, if they are developing land that is part of the reserve. It helps the whole community at that point and often there are issues relating to tax, or whatever else.
If they have land acquired in or near a city, for example, they might want to develop that for commercial purposes and there are advantages to developing it as a reserve. Therefore, if they have the land, but it is not a reserve, they may in effect not want to develop it at that point because it is better to wait until it becomes a reserve. You end up with a situation where, in effect, the land is in limbo, waiting to be converted before it can be used the way the First Nation would like to use it. Often that has caused some economic hardship, for example.
Sometimes if the land was designated for housing, for example, then other issues kick in. It is just held fee simple, which is like any of us would purchase land to build a house on; then there are some things they cannot do with the land that they would otherwise be able to do, so, again, not having it as a reserve leaves it in limbo until this process works its way through.
Senator Meredith: You identified the processes that you have gone through in your report. Others have appeared before us and held a banner that is longer than those two desks combined in terms of the process. How do you think we can truly simplify this so that, again, you look at the economic and social impacts, to First Nations people? How can we minimize this and ensure they get access to these lands as quickly as possible without having the legal wrangling they have to go through, with the lawyers who are benefiting from their taking the municipalities to court or the federal government to court to get access to these lands? What would you recommend to this committee in terms of a more simplified process?
Mr. Barrett: I would be reticent as an auditor to step in and suggest here is part of their process they do not need, et cetera.
I would point to some very simple things we look at in the course of our audit, like the files that are kept. How do you organize your file system to know which lands are being asked for? Well, in Manitoba, particularly, they were not in good shape at all. If you cannot find the files and you do not have the record of what the First Nation has asked of you, or you have it but you cannot access it quickly, it will take time.
Senator Meredith: Does that relate to the municipalities?
Mr. Barrett: No; it relates to the Aboriginal Affairs and Northern Development department's regional offices where these things come in.
My point here is there are some real basic management things that were not being done, and in our view that was slowing down the process. It is true that it is a complicated process, but I guess our view would be that is all the more reason to have good management processes in place.
Senator Meredith: Thank you so much.
Mr. Berthelette, did you want to comment?
Mr. Berthelette: I would just add, picking up on what Mr. Barrett said, sustained management attention to the file is absolutely fundamental. There are many selections that we found in 2009 that were still outstanding and needed to be followed up. When you get right down to it, it requires, as we say in the audit, sustained management attention, attention to the files, attention to the issues that get in the way of dealing with moving the selections along. For instance, something that the department did successfully was to acknowledge that the environmental assessments were becoming stale dated. They had a limited of two years in 2005. In 2009, the department extended the validity of these environmental reviews to five years, so it made it easier for them to have simultaneously valid environmental reviews and surveys, so that then the lands could go forward for the order-in-council or the ministerial order for the conversion to reserve.
It is by focusing on these details as they did in this case that the department will be able to find the solutions to the impediments to moving the process along.
Senator White: I will apologize because I am a replacement, so maybe someone has answered these questions.
I refer to number 13. Having been involved with Auditor General audits before where there was a tracking system recommended and put in place, typically, there would have been a follow-up if nothing else on whether or not the tracking system was working and whether or not it was having an impact. The tracking system would have been put in place probably the spring of 2009, which is three years ago. Do we not have any data telling us the success or non- success of the tracking system over the past three years?
Mr. Berthelette: We have done no follow up on the tracking system, so we are not in a position to make any comments on it.
Senator White: I would suggest that we ask someone who is in Aboriginal Affairs and Northern Development Canada to respond, at least, to the last three years of data that were missing so we know whether this tracking system is working, whether it has had a substantial impact or no impact.
The Chair: There is a strong possibility of that if it is the wish of the committee that we bring the department back and ask that specific question: How is the national additions to reserves tracking system working?
Senator White: It could be in writing. I am okay either way. It is a three-year gap.
The Chair: We could request it in writing if that is satisfactory to the committee.
Mr. Berthelette: I would like to ask Mr. Barrett to speak about information that is available from the department.
Mr. Barrett: If I could just clarify one point, we do not have any information on their tracking system. However, just in preparation for this discussion this evening, we did ask the department if they could give us some numbers or some idea of what progress has been made. They were very quickly able to provide us with numbers. Again, they are completely unaudited, but, for example, they are saying that since 2005 they have now converted almost 474,000 acres in Manitoba, and another 228,000 acres in Saskatchewan. That is since the beginning of 2005, and that, to me, suggests at least they have something in place now that they did not before, assuming these numbers are accurate.
Senator White: If I may follow up, that is great, and it is nice to see that the tracking system is in place and it might be working, but at least it would tell us whether or not the actual conversion of land is working. If in a tracking system it is garbage in and garbage out, it is still garbage, so it would be helpful to know what we have seen since 2009.
I do appreciate the fact the system is in place, but if it is garbage in and garbage out and not having an impact, we should know that. They have had three years to clean up their act, and I do know, having been with a federal organization that was audited regularly that when we had recommendations and we put them in place, the checks and balances would have been strong. It is helpful, I think, to this committee.
The Chair: We will proceed to seek more information.
Senator Raine: It is good to have you here. In your presentation, you talked about your recommendations and that the ministry committed the department to converting 150,000 acres of land in Manitoba each year. Then it looks to me like it was only 227,000, so that is less than half of what they committed to. It does indicate a serious problem.
Do you know if third party issues are holding things up? I can see where they have a lot of files going and they run into a third-party issue that is difficult to solve, that they just grind to a halt. Have you any indication of that?
Mr. Barrett: Third-party interests were sometimes an issue, and we did point out that that was a problem. We were not satisfied with the progress. I recall in Manitoba there was sometimes the issue of hydro wires where Manitoba Hydro and other third parties would have right-of-ways or whatever. They would have vested interests, and sometimes it could be adjacent lands, if you will. In some cases in Manitoba when you had large tracts of land, it was often Crown land, and it was not always limited to third-party interests, but that was one of the factors.
Senator Raine: You are probably not the right people to comment on setting up a better process, but it might be helpful to do another audit just to reinforce that the process has to change if there is not substantial progress. In last few years, there has not been substantial progress.
I am looking at some figures that I have. They have a lot of active projects and they have described a lot of things, but it does not look like they are coming to the end point of being converted.
Mr. Barrett: I have two quick points on that. You are absolutely right about the commitment that the minister made for 150,000 acres per year. In year one, we noted in the chapter that they converted 159,000 acres, so they made their quota for that first year. In the second year, we pointed out, it was 43,000 acres, I believe. I recall that was there was a lot of land that they thought they were in the process of converting and planning to convert within that year-two period, but things got held up. As we have said previously, it is such a long process to get this through that they could not get to the end game to reach their year-two commitment.
There is another interesting point on the information. Again, I must emphasize that unaudited information that the department provided to us suggests that in 2012 we still do not have the full 600,000 acres converted.
[Translation]
Senator Dagenais: Thank you, gentlemen. My question may be somewhat similar to that asked by Senator Raine, but I will ask it anyway. I am under the impression that several people are involved in those land conversion files. This question might have been put to you already, but I am asking it again. What is the reason behind the delays? Is it red tape, lack of understanding or the project's complexity? I see that there are many delays.
[English]
Mr. Barrett: It is fair to say all of the above. In fairness, whereas it is a very long process, we have it broken down into three big chunks, if you will. On the first part, the First Nation has to decide what land it wants and go through the process of selecting the land. In some cases, it has to obtain the land or ask the provincial government for the land, because the provincial government owns the Crown lands there.
When we were looking at delays and at the average seven-year time period, we were looking at phases two and three, both of which are really within the department. The First Nation has done its thing that it has to do to begin with and then we are seeing the different things that have to be done in the regional office and what has to be done at headquarters. That is what we are seeing as taking a very long period of time.
Yes, it is long, and in my mind it speaks to needing a good management framework and process to move these land selections along.
Senator Lovelace Nicholas: In order for some First Nations to obtain land, do they have to buy some of the land?
Mr. Berthelette: That is mostly in Saskatchewan because of the fact that there is limited Crown land available. The First Nations in Saskatchewan have to buy the vast majority of their land. In Manitoba, the situation is different because there is more Crown land, so they are able to acquire the Crown land without having to buy it. However, there is still provision, some amount of money set aside, for First Nations to acquire some private land in Manitoba.
Mr. Barrett: To add to that, when the Treaty Land Entitlement Agreements were signed, they included funds to enable the First Nations to buy the land it was anticipated they would be required to buy.
Senator Lovelace Nicholas: Previous witnesses at committee mentioned that the land they wanted to buy was at a certain price, but when it is found out that it is First Nations wanting this land, the price goes up. If this did not happen, it would advance the process.
Mr. Barrett: Yes. I recall hearing that as well.
[Translation]
Senator Dagenais: You said that land had to be selected. Is that selection logical? How is land selected?
[English]
Mr. Barrett: The First Nations would select the land.
Senator Demers: I personally consider the Auditor General extremely important. I will not read it all but the sheet you gave us says that the department has not made satisfactory progress towards implementing several of your recommendations.
We will go to 13, and I hope that this question has not been asked because I am trying to follow this closely. It says that it has been three and a half years. Are you not afraid that somewhere you will get a major surprise when your recommendations have not been followed, and now it has been three and a half years since you audited. This is a long time for the First Nations. They are going through a lot, and now we see that it has been three and a half years. You are extremely experienced. Do you not have some concern that you could be in for a major surprise? Maybe you do not see it that way.
Mr. Berthelette: We are always hopeful and optimistic that the department follows through on the recommendations. In this case, the department has an action plan. It is trying to follow through on the action plan. When we did this audit, we saw a number of cases where the department had made some good progress in terms of the conversions. To be fair to the department and to all the participants, we have to give the department sufficient time to be able to make the changes that are required in order to make a difference.
It is a question of judgment on our part when we will go back and take a look and do another follow-up. We will always consider when we need to go back and look at it. We maintain a close liaison with the department, and we talk to the First Nations on a regular basis. At some point, we may be going back, but I cannot commit to doing that because it is also an issue of the resources available and other priorities that we may have to look at over the next number of years.
Senator Meredith: It goes back to the increasing frustration on behalf of the First Nations people. Senator Lovelace Nicholas raised the issue of trying to acquire land and you raised it, Mr. Barrett, with respect to the processes. When do we hold the department accountable and who holds them accountable to your recommendations? Taxpayers' dollars are being spent to produce these reports and make these recommendations, and yet they are not heeded. Thus, the frustration continues. How do we hold them accountable?
Mr. Berthelette: Mr. Chair, I would like to think that we help Parliament and we help the Senate hold the department accountable for its actions. We hope that our audits are helpful to the Senate, to Parliament and to this particular committee and that you are able to use this audit and any of our other audits to question the department, to ask them for the action plan and to follow up from time to time with the department on how they are doing on the action plan.
On our side, because you are our boss, in effect, we commit to following up as required, given our resources and the priorities that we have to help you do that job. Between us, and in partnership with the first Nations, I think we do a pretty good job of holding the department accountable.
You have had the department here already on a couple of occasions, I understand, to talk about the ATR, and I believe that is fundamental, democracy in action, to hold the department to account.
Senator Watt: Welcome again. Listening to everybody's concern makes me want to ask beyond what is being asked at this point. It is more related to whether there is a three-party negotiation or if it is only a two-party negotiation. When I say a three-party negotiation, is the provincial government, the one that will be impacted by possible additional land being added to the reserve, involved? Are three-party negotiations taking place?
You also mentioned, responding to someone's questions, depending on the availability of Crown land. Explain that to me. I would think that if the federal government is the one that is speaking on behalf of the original crews, trying to acquire the land, it would have to compensate the provinces in order to obtain that piece of land that is requested by the Aboriginal group. Is that the case?
Mr. Barrett: My understanding is that when Saskatchewan and Manitoba became provinces, there was a provision allowing the Crown, the federal government, to reacquire some of the land, if need be, for settlement with First Nations. The province is involved in the process, but not in a large way. It is their role, and it is more an issue in Manitoba than Saskatchewan, that when an First Nation identifies Crown land that it is entitled to as addition to reserve land, it identifies Crown land that it would want for its reserve, and then the province has to transfer that land to the federal government, at which point the federal government can convert it to reserve. In a very simplistic way, that is the involvement of the province, but mostly it is a federal process.
Senator Watt: It is mostly federal, but the consent still has to be provided by the province in terms of compensation and transferring the land over to the Crown under the federal jurisdiction.
I have gone through the process, and this is why I am asking some questions in relation to whether there are three- party negotiations or just two-party negotiations. You are giving me an answer that is in between. Yes, it is a three- party negotiation, but it is the federal government's initiative to come up with a resolution on this matter. How does the actual consent from the provinces and the transfer of the money from the federal government to the provinces take place? I would think that would be the problem that we are dealing with today, probably delaying the whole process.
Mr. Barrett: My understanding is that basically it is part of the settlement or, in effect, the establishment of Saskatchewan and Manitoba as provinces. I believe it is a particular provision. I am not a lawyer, so many in this room could probably answer this better than I can.
In terms of transferring the land from the province to the federal government, there is an obligation on the province to do so when the federal government wants the land, particularly in order to settle land claim issues with First Nations when that land is identified.
Now, that is not to say it always works smoothly. There could be a third party interest. I do recall having discussions, and I remember Manitoba Hydro power lines going through reserves, or going through a piece of land that the reserve would have wanted for their land. That represented a third party interest and, in some cases, that can slow down the whole process, because notionally it is the First Nation's responsibility to settle third party interests before the province has to transfer the land over.
Mr. Berthelette: I would refer the honourable members to our 2005 chapter, paragraphs 7.9 and 7.10. As we have noted before, in Saskatchewan, the issue is not Crown lands. There is not sufficient available Crown lands in Manitoba that the First Nations would be able to access. What they do is they have sufficient funds to be able to buy the land from private parties.
The Chair: You mean in Saskatchewan?
Mr. Berthelette: That is in Saskatchewan. In Manitoba, and this is paragraph 7.10 in this 2005 audit, we note that the province does not receive compensation from the federal government for provincial Crown lands selected for First Nations. That is given, so 90 per cent of the land selections in Manitoba are to be from Crown land.
Senator Watt: I would like this committee to receive the documentation that goes back quite a few years, I would imagine, on the agreement that was put together between the First Nation — potential agreement, I would say. Is it really a written agreement when the province was in formation at the time that they were in a tentative agreement but it was not really an agreement? That is what I understand here.
Mr. Barrett: There were agreements signed with each province.
Senator Watt: Is that documentation available?
Mr. Barrett: I believe it would be from the department, yes.
Senator Watt: We would have to obtain that from the Department of Indian Affairs?
Mr. Barrett: They would be the source for it, yes.
Senator Watt: I would imagine that what we are dealing with here could also apply to the land that is being held under fee simple, such as, for example, Nunavut and Nunavik, including Labrador. Would this type of criteria that you are dealing with and encountered in your examination also apply to the Inuit? Could it apply to the Inuit?
Mr. Barrett: The treaty land entitlement agreements were signed in I believe it was southern Ontario, there was a bit there, but predominantly in Manitoba and Saskatchewan.
Senator Watt: This is one of the reasons why you are only dealing with two provinces at this point, on account of that factor?
Mr. Barrett: That is correct.
Senator Patterson: We are studying this subject with the blessing of the minister, because there is a need to improve the process. I think everyone agrees it is a good thing, and it fosters economic development and other opportunities, but it just does not seem to be working as well as it should.
I would like to get the comments of the representatives of the Auditor General on an idea that has been floated by the First Nations tax commission. They did a report in 2006 that you may have seen, a Fiscal Realities report, comparing municipal boundary expansion to additions to reserve. There was also an Aboriginal Affairs and Northern Development Canada internal evaluation that was done in 2010, which you would be not be aware of. Both those reports talked about the improvements and recommended that consideration be given to enactment of ATR legislation. Apparently, there has been special ATR legislation in the Prairie provinces that was found to increase the effectiveness of the process. I think they were talking about broader, national legislation.
I am kind of hesitant to think that things can always be fixed by passing laws, but would you have any thoughts or comments on that? Did that come up in your review?
Mr. Berthelette: We really do not have any comment on that. We have not had the opportunity to study either of those reports that the honourable senator has mentioned.
Senator White: I have one quick question. I take it they are not following a true federal government expropriation of land and then the transfer to the First Nation in value. Instead, they are buying it on market, which would answer the question that Senator Lovelace Nicholas talked about, namely, the value going higher.
What would stop the federal government from using an expropriation type of purchase and value for time of day versus value for what it is going to? What would stop them from doing that?
Mr. Berthelette: It is an interesting question; it was not one that we explored. That would be a policy decision. We do not really touch on policy decisions; we started this from policy that existed.
Senator White: I knew the answer, but I wanted to raise it here. It did not make sense to me that we would buy, at inflated value, land that would be transferred from the Government of Canada to a First Nation. That does not make sense to me, unless you were going to expropriate it. It would save money not only for the federal government but also for the First Nation. That is another point.
I am a visitor; I apologize, Mr. Chair.
The Chair: You do not have to apologize. We are glad to have you here. As a matter of fact, you bring a lot of joy to this committee.
Senator Raine: I would like to go back to the difference between how the files are being managed in Saskatchewan versus Manitoba. Do you have any more observations there? I note, for instance, that for First Nation land selection in Saskatchewan, the department supports them in addressing third party claims. However, they do not do that in Manitoba.
Are they working under a management regime in Manitoba that will not work? Can we not do it the same in both provinces?
Mr. Barrett: That is an interesting question. There is no reason that we can point to that it would not work as well in one province as in another. This is going back to 2009 and shows, perhaps, the starkest difference that we saw in our interviews in our two regional offices, in our visits to First Nations and in looking at the files.
One of the simple questions we often ask when we are on a reserve is who do you deal with in the regional office? In Saskatchewan, they knew who their contact people were and who did what. They knew how the priorities were in the regional office and at what point the land selections were. In the Manitoba office, I do not recall it being nearly as amicable a relationship. There was not as much knowledge back and forth.
Often, when you are working with others, you have to decide how you are going to do that. What we were seeing in the Manitoba regional office at that time was not as strong a working relationship with the First Nations themselves. Similarly, we were not seeing strong processes within the regional office. This is an issue that has been looked at by the department since then, and we have seen another audit on which action has been taken in that regard.
Senator Dyck: I wanted to go back to the idea of the importance of the management processes. In your presentation, you said that the management weaknesses were of particular concern because they were related to treaty obligations that Canada incurred more than a century earlier. For instance, in Saskatchewan in 1874, Treaty 4 was signed. I am an off-reserve member of the Gordon First Nation. My First Nation launched a $10 billion lawsuit against both the Government of Saskatchewan and the federal government, claiming it was cheated out of land that surrounds the reserve that is rich in potash and oil. This process, additions to reserves, is incredibly important financially. The land that our First Nation wanted to acquire — and the treaty land entitlement settlement agreement was signed in 2008, which is just four years ago — was sold to someone else before it could be acquired.
Is there something in the process that is flawed and allowed this to happen before the First Nation was able to purchase it?
Mr. Berthelette: I am sorry, Mr. Chair and honourable senator, but I do not know of the facts around the case, so I am not in a position to be able to answer that question.
The Chair: Colleagues, I have had a certain amount of experience over the 19 years on this committee of working with First Nations. I think Mr. Barrett really hit the nail on the head when he said that information has to be filed and be accessible on the spur of the moment because there are so many people to deal with.
I know of a First Nations band that did an addition to reserve in Winnipeg and they had to deal with the City of Winnipeg and the Province of Manitoba. There are taxation issues and a litany of other issues. They just opened a college on the 2.5 acres, but they had to deal not only with the municipality and the city but also with an adjacent property owner and they had to buy another piece of land to be able to facilitate this. As Mr. Barrett points out, there are natural delays in the system because of the complexity and the number of players. There are not only third parties but also fourth parties. The only hope is that when information has to be accessed, it is at the fingertips.
I want to thank both of you for coming here. I realize we have maybe been asking questions that we should have been asking the Department of Justice or the department, but we are thankful that you have responded in the open, candid way that you have and we thank you for your presentation.
Colleagues, we are now going to suspend and go to go in camera session for a bit. We will then go back to a full meeting.
(The committee continued in camera.)
(The committee resumed in public.)
We are now going to clause-by-clause consideration of Bill S-6, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-6, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Now, colleagues, there could be a possible amendment on clause 3. I will ask the question: Shall clause 3 carry?
Senator Sibbeston: I do have an amendment.
The Chair: There is an amendment. In amendment to the motion that clause 3 carry, it is moved by the Honourable Senator Sibbeston
That Bill S-6 be amended in clause 3, on page 2, by replacing lines 36 to 38 with the following:
"(a) in the case of a First Nation whose council has been elected in accordance with the Indian Act, that First Nation's council has provided to the Minister a resolution requesting that the First Nation be added to the schedule;
(a.1) in the case of a First Nation whose council has been chosen or elected in accordance with the First Nation's community or custom election code,
(i) that the First Nation's council has made a request to the Minister that the First Nation be added to the schedule, and
(ii) the request was approved in accordance with the code's amendment procedure or, if there is no such amendment procedure, by a majority of the votes cast in a secret vote in which a majority of the electors of that First Nation participated;".
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: No.
Senator Sibbeston: Can I have a brief moment to explain the basis of this amendment?
The Chair: Yes, you may.
Senator Sibbeston: Clause 3(1) provides "The Minister may, by order, add the name of a First Nation to the schedule if", and I think it is generally intended that it be Indian Act First Nations who have basically fallen under the provisions of the Indian Act provisions. Where this amendment comes in is with respect to a First Nation that is somewhat more sophisticated. They have gone to the effort and trouble of setting up their own community and custom elections, so there are rules in their rules as it were, to provide for amendments. All this amendment asks is that when it comes to these First Nations, that their provisions, their custom elections, be recognized, and usually it will require some kind of a consultation with the elders, or there will be a vote or something. It is just to recognize that.
That is the basis of this amendment.
I know that initially I was not so much in favour of this, but the Atlantic Policy Congress of Chiefs made the point it was very difficult to get support for change in Atlantic Canada as voter turnouts are low and people tend to resist change. I caught that when Mr. John gave his evidence. However, I have discovered that the Atlantic Canada organization has only two First Nations that are in custom elections, but most are Indian Act First Nations.
This amendment is, in my view, a sign of respect, just to recognize that First Nations have their own custom election process. It is just to recognize that, and I think that for a band council to just short cut all their own provisions and just make a motion and ask the minister to put them on the list, in my view, kind of short circuits the system and could make it very chaotic in their community.
For the government to accept this, in a sense, it could be inadvertently creating cases on it because they would be supporting a system where they are saying to band council, "Okay, just make band council resolutions, and we will put you on the list." It is not giving credence to the fact that they have their system and they have their own provisions for amendments, which they really should follow.
That is the basis of this amendment, thinking that it would improve and would recognize the First Nations that have their own custom election provisions.
It is with that in mind. It is a sincere effort to improve what is now presently clause 3(1).
Senator Dyck: To add to that, we had chief Tammy Cook-Searson, and I think also the Canadian Bar Association that said that opting in only requires a band council resolution, and opting out required the double majority referendum, and they thought that was a bit odd.
Then we also have the possibility that those First Nations who hold custom code elections might wish to opt in, but they have already gone through the double majority referendum in order to get their custom code, so it seems reasonable, then, that they should have the same sort of requirement to get into Bill S-6. Therefore, if they have a double majority to get into custom code, we should respect their democratic process and allow them to use that same process in order to opt in to Bill S-6, if they choose to do so.
It is recognition that they already have established their own democratic process, and then this puts in that they should use the same democratic process rather than downgrade it to a band council resolution.
Senator Patterson: I have a few comments about the bill in general. I think it was mainly designed by the department on the recommendation of our committee to deal with the limitations of the Indian Act elections process. I think we all agreed that the two-year term in that act was restrictive and did not allow bands that wanted to do long-term plans to have the time to make things happen. It did not allow them to work together in regions where they chose to work on a common project using common election dates, and it also lacks governance protections. There are no penalties for corruption; there are flaws in it. A person can be nominated without their consent or can run for chief and councillor under this Indian Act process.
The thrust of the bill is to encourage people to get out of the Indian Act if they are willing to do so. I mention all that because I do not really think the bill was targeted at the custom code communities who have developed their own code. I was impressed with the chief from Lac La Ronge who talked about the work that had been put into that. I do believe that we should respect the ability of bands to develop codes according to their own practices and traditions, which may include a hereditary regime that is quite foreign to Anglo-American legal traditions. That is fine.
I mention this because I think the department has also supported the custom code communities, if I may call them that, and my understanding is that the minister does not interfere with the development of those codes. Truth be known, if government were to look inside them we would find things that might run afoul of the Canadian Charter of Rights, which is based on different traditions and histories. I know there is a show-of-hands tradition in some communities in the North that I think should be respected, although they may seem odd to other people.
This is by way of background to explaining, with all respect, why I do not recommend we support the amendment. The minister and the department have stayed out of custom code regimes and the minister cannot access them and he has no role in assessing their validity, and I think that is a good thing.
The problem with this amendment, as I see it, is that it says the minister can bring a custom code community into Bill S- 6 and into this new regime with two conditions. The First Nations council has made a request to the minister. That is straightforward. There would be a resolution that comes from the First Nation council. However, it is the "and" part that is of concern to me. It says, ". . . and (ii) the request was approved in accordance with the code's amendment procedure or, if there is no such amendment procedure, by a majority of the votes cast in secret ballot."
How will the minister be satisfied that the request was approved in accordance with the custom code's amendment procedure? Worse yet, the minister and his officials will have to look into the custom code procedure to determine whether the request was in accordance with the code's amendment procedure. I am reading from the amendment.
This gives the minister a role that he or she does not have in the act right now and, in effect, gives the First Nation a new reporting or accounting burden. I respect the reasons that are given by the mover and Senator Dyck, but the other thing it does is it really creates a two-tier system among First Nations. The ones who are in the Indian Act, who are the ones we want to give the option and maybe even encourage to get out of the Indian Act provisions for reasons I mentioned, will only need to do a band council resolution. The ones who have developed their own custom code, not only will the minister or his officials have a reason under this amendment to look into their code, which they have no business looking into, in my view, will have to go through a difficult process by requiring a majority of votes in a secret vote. We must remember that in some of these situations, sadly, the community will be split. There will be tensions. There will be disputes over elections. That may be a very stiff hurdle to climb.
Now, I know the movers of the amendment want to respect custom codes and want to make it a little more difficult for those communities to give that up in favour of the more conventional process here under Bill S-6, but in seeking to do that the good motive has actually exposed them to the minister poking his nose into their affairs and perhaps creating the impression that we have two approaches for bands depending on whether there are custom or Indian Act elections. In principle, we should try to have a level playing field among all communities no matter what election mode they have chosen in the past.
The Chair: There is no question it would be more intrusive on those bands that have a custom code. I believe what we are trying to do is distance First Nations from the Indian Act and from the paternalistic scenario that has existed over the years and so I am ready.
Senator Dyck: Can we make further comments?
The Chair: Yes, if you like; I am sorry.
Senator Dyck: I am a little surprised. One of our first options was that the bill be restricted just to First Nations who hold elections under the Indian Act because that seemed to be the intention of the minister, but when they reappeared it was very clear that this bill will not only affect First Nations holding Indian Act elections, it will also affect First Nations holding custom code elections and those who have the hereditary or traditional system. Therefore it does affect them and they do have different methods of selecting.
If we thought this would happen we probably would have gone with the other option of restricting the bill to only those First Nations who hold elections under the Indian Act, but because we thought we were seeing eye to eye we did not bring that option forward, we had it, so it is not the most pleasant position to be in, frankly.
The Chair: Is there any more discussion?
Senator Watt: I do not want to come across as differing from what you people have already worked pretty hard on regarding this issue. I guess I am entitled to ask a question. Why are we dealing with this on a piecemeal basis when we should focus on the whole Indian Act and get that straightened out once and for all?
The Chair: That is sort of outside the topic, but it is a great suggestion.
Senators, is there any more discussion? I do not want to stifle discussion at all.
If there is none, we will proceed to a vote on clause 3 by a show of hands, and I will be voting.
Is it your pleasure, honourable senators, that the motion in amendment carry? All those in favour?
Senator Sibbeston: Of the amendment?
The Chair: Yes.
All those opposed?
Abstentions?
Senator Watt: The vote is only on the amendment?
The Chair: That is right.
Senator Watt: I do not fully agree with it.
The Chair: You will vote with them?
Senator Watt: I am voting with them.
The Chair: All those against again? Those who are opposed raise your hands once more for the clerk.
There are five in favour and seven opposed. That is clause 3.
Resuming debate on clause 3, if there are other amendments that any senator would like to propose to this clause, this is the appropriate time to do so.
There being none, shall clause 3 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Agreed?
Opposed, if any?
Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall clause 5 carry? Is it agreed?
Hon. Senators: Agreed.
The Chair: Opposed, if any?
Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Agreed?
Opposed?
Carried.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall clause 8 carry? Agreed?
Opposed?
Carried.
Senator Sibbeston: Why not just move the whole thing because it is obvious we will not have any more amendments?
The Chair: If the committee agrees to grouping, we will proceed with grouping. Clauses 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 through to 44, shall these clauses all carry?
Hon. Senators: Agreed.
The Chair: Agreed?
Opposed?
Carried.
Shall the schedule carry?
Hon. Senators: Agreed.
The Chair: Agreed?
Opposed?
Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Agreed?
Opposed?
Carried.
Shall the title carry?
Hon. Senators: Agreed.
Senator Sibbeston: I want to say something. You made efforts yourself to deal with this in a very consensual way. Initially, some of us had strong feelings that there should be a number of amendments dealing with 3(1)(b) and (c) and also the point about having a tribunal or commission. In our discussions we agreed to let these matters go, on the basis that Senator Patterson would see whether we could make these amendments that we dealt with. We feel somewhat betrayed by the fact that Senator Patterson does not seem to have tried. He has basically just given reasons why he was against the amendments that we agreed this afternoon to try to have supported and passed by everyone. We feel a bit betrayed.
If this is the way of the future, when any bill comes before us, what is the use of having discussion about it if it is just going to pass anyway without any amendments? What is the role of senators if from now on we can never work to improve a bill and make the amendments? I feel a bit sad about that.
The Chair: May I comment on your comment?
Senator Sibbeston: Sure.
The Chair: I know what Senator Patterson went through, Senator Sibbeston. He made every attempt. There were huge discussions on (b) and (c). I said to you that this is not a hill I wanted to die on when we had the discussion because it is optional, but speaking to what you said in regard to Senator Patterson, I know the work he has done and how many times he went back to the department and how he tried to have some of these amendments carried out.
Senator Sibbeston: Tonight, Senator Patterson never gave one reason of any of his attempts to follow through on what was decided by us in a consensual way.
The Chair: It is easier for me to speak on his behalf.
Senator Sibbeston: He basically made the arguments for the department.
Senator Patterson, if this is the way of the future, what is the use of even having a Senate committee deal with any legislation that comes before us? Should we, in the future, just remove ourselves and let you deal with it, recognizing that there will never be any amendments? It has to go through the way it is presented by the minister. What is the role of us senators then with regard to any bill that comes forward? Should we try to improve it, or is it like a foregone conclusion that we are not going to?
Let us stop that process. It is a waste of time. We are fooling Canadians, as it were, if you think our role is to deal with legislation and improve bills.
The Senate has a reputation, a record of amending 25 per cent of all bills that come before us, but is there now a new rule that nothing gets amended? Let us know so that we do not waste our time coming to the Senate committee here and try, in our very sincerest way, to improve things for First Nations in our country.
Senator Patterson, what have you to say?
Senator Patterson: First, Mr. Chair, I have said in the chamber and in this committee that I am delighted to be on a committee that works in a non-partisan way and has worked in a non-partisan way, even if my colleague thinks it has broken down tonight. I also would never say that a bill that comes to this committee should never be amended. In fact, when the first version of the safe drinking water bill came before this committee, Senator Sibbeston may recall that I personally gave the department a very tough time over the very poor non-derogation clause that they presented in that bill, which was going to apply to regulations. Frankly, I was glad when the bill died.
I thought it was flawed. I hope the next incarnation — probably the next bill we see — will be an improvement, including in the treatment of non-derogation. I consider myself to be an independent senator. I would not hesitate to support an amendment that I thought made sense.
With regard to what happened today, I think the members can appreciate there was quite a short time frame in which to deal with these questions over our last three meetings. I do want the member to know that, as the person with carriage of the bill, I did go to the department in good faith right after our meeting today at noon. I was impressed that the amendments made some sense. I told you at the time that I thought what you proposed was reasonable, and that I would take it to the department at the highest levels, and I did.
I said there were serious concerns about this issue, and a reasonable proposal. I passed the amendment to the department for review, and I explained the reasoning behind it. Without going into a lot of detail, I had several discussions over the course of the afternoon with senior departmental officials. I was persuaded for the reasons that I gave tonight, and maybe I should have said that. I was not necessarily reading a departmental line. I was persuaded that looking at the intention of the bill as a whole and learning more about the department's unwillingness to tread into the custom code regime. My belief is it should be left alone. On reflection, I thought the amendment actually worked in that direction and got the minister involved in matters, and there was no business the minister should be involved in.
I know that was communicated to your assistant probably late this afternoon, but that was intended to tell you. I made an effort in good faith. It certainly was not a trap to set anyone up. I had actually hoped that we could come here tonight and say this is a useful amendment and it will make the bill better but I was not persuaded, so here we are.
Senator Munson: The question is who is making public policy in this country? Bureaucrats or politicians?
Senator Patterson: Let me say that the Minister of Aboriginal Affairs was involved in these discussions. I would say, Senator Munson, it is not bureaucrats, no, it is elected officials.
In my case I will take responsibility. I could have told the department we have to have this amendment; we have to keep peace in the committee. This committee operates on a long tradition of consensus, which I am very respect of. I am a new member of this committee and am respectful of that, but I was persuaded that the amendment was not appropriate. I gave the reasons why tonight. I will take responsibility for what happened. I am quite willing to do that. You can discuss it in the chamber, if you wish.
Senator Sibbeston: It seems to —
The Chair: Senator Patterson is speaking.
Senator Sibbeston: Are you finished?
Senator Patterson: Yes.
Senator Sibbeston: It seems to me Senator Patterson should have gone to see the minister or the political people that work for the minister. Going to the department, you have to recognize that they are probably not the ones who will ever insist on change. They make their living supporting the status quo. They make their living holding things as they are. They are not good people to go to, in regard to this.
I think you should have gone to the minister, but we told you to go in there fighting, Senator Patterson. We want to see some scars when you come out of there and I do not see any.
Senator White: Look closely, he is pretty scarred.
Senator Dyck: I think there has been a big problem with communication. If you knew what you were going to say tonight, I should have known before the meeting started. We had all these conversations ahead of time, and I did not know you were changing your mind. That is a huge difference in the conversation we had at noon.
The Chair: You were not advised?
Senator Dyck: No. I was not advised personally. I think it should have come to me directly from Senator Patterson or yourself if you knew.
The Chair: There is no question you should have been advised. I was under the impression you were being kept in the loop. I apologize for that.
Senator Dyck: Not directly, no. I did not know. We probably did not have enough time to really do anything, but it is a big mistake that I will not forget.
The Chair: We have done a lot of good work, the people who are here. Senator Watt has worked with us in the past. I would hate to see it undermined by a piece of opt-in legislation. All legislation is important, but it is not something that is being imposed on people. It has got 3(1)(b) and (c), which I find a little difficult to deal with, but in the overall picture of legislation we have gone through it is not onerous. It is optional to the First Nations of our country. I apologize to you, Senator Dyck, if you were not kept in the loop. My impression was you were part and parcel of all this and you should have known what was coming down.
Senator Meredith: I understand how my colleagues feel in this matter. I think it is a lesson learned. I understand that Senator Patterson did go and the minister was involved in this process. Obviously there is a great lack of communication that was communicated from this side. Going forward, I think the integrity of this committee can be maintained by further opening the communications when there are amendments put forward, and there is this give and take. The department could possibly have made some concessions, seeing how this amendment could have been put forth in a different way and accepted. However, in the light of this eleventh hour that we are at now — in the spirit of moving forward with this legislation — maybe there is an opportunity to make some further amendments through another piece.
The Chair: There is always the possibility of making amendments at third reading. I can tell you that I have been here for 29 years, and I have never seen meetings like you and I had with Senators Dyck and Sibbeston. I have never seen that. I stand to be criticized in not keeping Senator Dyck in the loop. However, I can tell you in the 29 years I have been here, I have never once seen people sit down and try and work out a solution to a problem like we did with previous governments, and even with this one.
It would be sad if we could not carry on in a manner that has been so productive. This is not about us and our little prides. This is about our First Nations people. Let us get this straight. That is what it is all about.
Senator Sibbeston: Exactly, and we should re-establish that. The next time a bill comes before us, we should have it very clearly stated that the Senate is able to perform its job and amend if it is necessary. If we all deemed it necessary we should be able to amend the legislation, rather than be in a situation where we are not able to make any amendments at all. I know that even though there were three amendments that we suggested that were very reasonable, it did not come about. Like I said, I appreciate your efforts in your attempt to have us deal with this in a consensual manner. I think we told Senator. Patterson to go out and talk to officials and fight, come back with scars on your face if you have to, but show us you fought.
The Chair: I think we have discussed the matter.
Senator White: I think we have pushed this rock back and forth long enough.
Senator Patterson: I would like to say that the communications were not as respectful as they should have been. My error was in thinking that a communication with staff was adequate. I have learned from that. I do apologize to Senators Dyck and Sibbeston. They should have had the respect of me reporting back on my mission with the department and with the minister. Perhaps I hesitated to do so because I did not have the good news that I had hoped to deliver. I apologize for that.
I do want to reiterate that I do not want to be part of a Senate or even a government that thinks that bills are drafted perfectly. I have been around long enough to know that is not the case. I will be open to amendments in the future, whether they are to a government bill or, if the issue is important enough, whether they are against the advice of the minister in question. I believe in the independence of the Senate.
The Chair: I have two senators who want to speak, but I would like to proceed. There is no point — we could go on all night long.
Shall the title carry?
Senator Sibbeston: I think we are close to reaching an agreement and setting a good stage for the future. I am interested in what the senators have to say in this regard, because it will be good for the future.
Senator Watt: I am not a member of this committee and I have not spent enough time dealing with this subject, so I have a question for my colleagues. When you were drafting the amendment — the one that we dealt with that was voted down — I imagine you were looking at the overall picture of what this legislation will do. For that reason, you also accompanied it with the other two amendments.
What will happen now, in your eyes, with your knowledge and with the fact that you touch base with the communities more regularly than anyone else? What does that mean to you now? One proposed amendment has been knocked down, and you did not succeed in putting forward two other amendments because you made a deal with the other side. You were hoping that they would bring back a positive agreement, at least to put that one amendment forward.
From what I understand, this is what you were explaining to me. Will that have an overall impact now, in your minds, if those other amendments are not being dealt with?
Senator Dyck: Impact in our minds? What do you mean?
Senator Watt: Yes. It is in your minds because you are the ones who are understanding it and passing it. The community will have to accept it.
Senator Sibbeston: I think what Senator Watt is referring to is the consensual approach we took. We did try it, and I do believe in that approach because I am familiar with that from the Northwest Territories where we do not have political parties and where things are dealt with on the merits.
In as much as we have had this situation tonight, I have not given up on the goodwill and approach taken, and I accept what you, Senator Patterson, say and I look forward to continue working with you.
I am okay with it.
The Chair: We will proceed then.
Senator Dyck: I am not okay with it, but that is okay. You can be deputy chair.
The Chair: Shall the title carry?
Hon. Senators: Yes.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Does the committee wish to consider appending observations to the report?
Some Hon. Senators: Yes.
Senator Sibbeston: We want to make observations. We do have a draft amendment —
The Chair: We have observations.
Do you want to stay in full committee or do you want to go in camera to discuss the observations? We have the option.
Senator Sibbeston: I think we are fine in the open.
The Chair: Okay, we are fine with an open session. We have a copy of the observations. I will read the observations into the record. Does everybody have a copy?
Some Hon. Senators: Yes.
The Chair: Is everybody is satisfied with their copy?
Is it the wish of the committee that we take time to read them, or do you want me to read them into the record? What is your wish?
Senator Patterson: Read them into the record.
The Chair:
Observations
1. Over the last number of years, numerous First Nations led institutions have been created with the goal of improving the ability of First Nations to exercise their inherent right to self-government. These opt-in institutions operate in such areas as land management, taxation, and education. They have been very effective and increasingly utilized by First Nations.
Bill S-6 does not across address this issue. Under the legislation, appeals will no longer be handled by the Minister and the department, a positive step in view of the committee. Instead, appeals will be dealt with through the courts. First, your committee finds that the proposed approach set out in Bill S-6 could prevent First Nations citizens from bringing forward legitimate appeals as the costs of going to court could be prohibitive, thereby limiting access to justice for those who cannot afford litigation. We are therefore concerned that the costs of bringing forward appeals, currently assumed by the Department, will now be borne by those least able to afford it. Second, your committee notes that the proposed approach may not practically address the need for an expeditious and culturally-appropriate appeals process.
Many legal experts, most First Nations and the Standing Senate Committee on Aboriginal Peoples have all recommended the creation of a similar First Nations-led opt-in institution to govern First Nations elections, whatever system the First Nation uses to conduct their leadership selection, and to provide a centre of expertise to handle election disputes in an effective and efficient manner.
The committee considered the argument that creating a separate elections commission "require a significant amount of resources that would be difficult to justify for an optional legislative framework," but remains unconvinced that the incremental cost is necessarily greater than that already incurred by government to investigate and deal with appeals. The government should examine more closely the current costs to the federal government of investigating appeals, the incremental costs of establishing an independent appeals mechanism, and any additional costs that may be incurred in making such a process available to all First Nations, irrespective of how they hold their elections.
Bill S-6 is intended to respond to the recommendations provided by the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs. Key among their proposed recommendations is the establishment of an independent and impartial appeals body.
It is, therefore the view of the committee that the creation of a First Nations elections institution represents "unfinished business" and that Canada should pursue with interested First Nations and their organizations.
2. Bill S-6 provides a distinct improve to the election system provided for under the Indian Act. However, it only represents another step in the eventual full expression of the inherent right of self-government. First Nations whose elections fall under the Indian Act should be encouraged to take that step. It should still be recognized that the ultimate goal of First Nations is to develop their own custom election codes or other self-government arrangements reflecting their own history and traditions of governance; and the Minister should encourage and support that further step when First Nations demonstrate a desire to do so.
3. Some observers have expressed concern that Sections 3(1)(b) and 3(1)(c) of Bill S-6 grant additional powers to the Minister. The Minister and his officials argue that they restrict the powers the Minister already possesses under the Indian Act. In any case, it is the view of the Committee that these powers, whether exercised under the Indian Act or under Bill S-6, continue a colonial and paternalistic approach to First Nations governance. Sections 3(1)(b) and 3(1)(c) should only be used in the rarest of cases when every other form of dispute resolution or democratic reform at the First Nation level has been attempted and has failed.
Is there any discussion in regard to this document? I realize it appeared on the scene quite late.
Senator Sibbeston: I move adoption of these observations to be included with the bill.
The Chair: It is moved by Senator Sibbeston. Is it agreed that the observation's will be appended to the report?
Senator Patterson: Second.
The Chair: Seconded by Senator Patterson. Any discussion?
Senator Patterson: "First Nations-led institutions" in the top line should have a hyphen there.
The Chair: We will do something else that will help clarify that situation in a second.
I am calling for a vote on Senator Sibbeston's motion, seconded by Senator Patterson. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed, if any? Abstentions? None. Carried.
Only if the committee wishes, that the Subcommittee on Agenda and Procedure be empowered to approve the final version. Is it agreed to be empowered to approve the final version of the observations being appended to this report, taking into consideration today's discussion and with any necessary editorial, grammatical or translation changes as required? Is it agreed?
Hon. Senators: Agreed.
The Chair: Carried.
Is it agreed, honourable senators, that I report this bill to the Senate, with observations?
Hon. Senators: Agreed.
The Chair: Opposed? Carried.
Thank you, colleagues.
Senator Watt: Are we voting on the main bill?
The Chair: We did just now. I asked if it was agreed we report this bill.
Is there any other business? Let us leave with the spirit of open mindedness and conciliation. God bless you all. Good night.
(The committee adjourned.)