Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 5 - Evidence - March 26, 2014
OTTAWA, Wednesday, March 26, 2014
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, 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, met this day at 6:56 p.m. to give consideration to the bill.
Senator Dennis Glen Patterson (Chair) in the chair.
[English]
The Chair: Good evening. I would like to welcome all senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, via CPAC or the web.
I am Dennis Patterson. I have the honour of chairing this committee. I'm from Nunavut. The mandate of our committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally.
This evening we will continue consideration of Bill C-9, 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. Tonight we will hear from two witnesses, Mr. John Paul of the Atlantic Policy Congress of First Nations Chiefs Secretariat and Chief Ron Evans of Norway House Cree Nation.
Before proceeding to their testimony, I would like to go around the table and ask the members of the committee to please introduce themselves.
Senator Moore: Good evening. Wilfred Moore from Nova Scotia.
Senator Dyck: Lillian Dyck from Saskatchewan, deputy chair of the committee.
Senator Ngo: Senator Ngo from Ontario.
Senator Meredith: Senator Don Meredith, Ontario.
Senator Oh: Senator Oh, from Ontario.
Senator Wallace: John Wallace, New Brunswick.
Senator Beyak: Senator Beyak from Ontario. Welcome.
Senator Tannas: Scott Tannas from Alberta.
The Chair: I know members of the committee will help me in welcoming our witnesses. I think Chief Ron Evans has been before this committee before. Welcome back. We'll look forward to your presentations, which will be followed by questions from the senators. We're budgeting about an hour for this session. How do you want to proceed, gentlemen?
John G. Paul, Executive Director, Atlantic Policy Congress of First Nations Chiefs Secretariat: I'm from the east where all the snow is from, so I'll go first.
The Chair: Go ahead, sir.
Mr. Paul: Good evening, honourable senators. I'm here tonight to speak on behalf of our member chiefs regarding our support for Bill C-9. We represent 37 First Nations chiefs in our traditional territories across Atlantic Canada into Quebec. Our organization's mandate is to research, analyze and develop alternatives to federal policies that affect the Mi'kmaq, Maliseet, Passamaquoddy and Innu First Nation communities across Atlantic Canada, Quebec, and into Maine in the United States.
As mentioned, our chiefs support Bill C-9 as it currently stands. We feel it reflects the key recommendations in a resolution our members adopted in January 2011 in which we asked the Minister of Aboriginal Affairs and Northern Development Canada to draft legislation that would present a strong alternative to the Indian Act elections system. One of the reasons we decided to champion electoral reform is because, at 75 per cent, Atlantic Canada has the highest percentage of First Nations that still hold their elections under the Indian Act system. We believe that if we could build a better election system, the majority of our First Nations would immediately benefit.
We first became interested in election reform in October 2008 when our members passed a resolution asking the minister to amend the term of office under the Indian Act system from two years to four years. As we continued to discuss this change, both amongst ourselves and with departmental officials, we realized that the Indian Act election system had other fundamental weaknesses that need to be addressed. The department's willingness to support further discussions on this matter presented an opportunity to elaborate on a more extensive reform.
At present, approximately 40 per cent of First Nations in Canada hold their elections pursuant to the Indian Act. These election provisions are outdated and problematic. Not only did we hear this when we were engaging our own community members on this question, we also heard it when we were discussing our recommendations with First Nations groups in other parts of the country. Specifically, issues centre on the following: The term of office for elected band councils under the Indian Act is two years. The short length of term places First Nations communities in an almost continual state of electioneering, and it undermines band council's political stability as well as their efforts to develop and implement long-term economic developments for their community. As well, a weak process for the nomination of candidates can result in the nomination of many candidates, sometimes over 100, for one election, and the mail-in ballot system is open to abuse. There is an appeal process to the minister that is paternalistic, complicated and often takes too long to produce findings and for a final ruling the average appeal time is about 12 to 18 months of a 24-month election term. The absence of defined election offences and associated penalties under the Indian Act allows questionable activities, such as the selling and buying of votes, to go unpunished.
As mentioned earlier, our organization has taken a keen interest in looking at ways to stabilize and improve upon First Nations governance through a stronger and more modern alternative election system. With the support of AANDC, the APC undertook research on the issue of band council elections. After having heard from First Nation leaders, governance technicians and community members in our region, we came forward with our recommendations.
I will outline for you how we went about developing these recommendations. We struck a regional technical working group to conduct research and develop options. We published articles in a widely circulated First Nations newspaper called the Mi'kmaq Maliseet Nations News, which goes to all our communities, and we developed a Facebook page, both of which invited First Nations members in the whole region to share their views and also to complete an online survey. Focus groups were also held with youth, women and electoral officers. The working group presented their research, options and all the feedback to the technical group and, of course, to our member chiefs and councils. Based on the discussion and feedback we received, we arrived at the definitive recommendations that we submitted to the minister.
Our recommendations are reflected in Bill C-9. The APC recommended the development of new opt-in First Nations election legislation and further provided recommendations for its content. For the most part, these recommendations are reflected in Bill C-9. Bill C-9 contains some of the same rules as the Indian Act election system, along with some very important differences. These are: The term length is four years instead of the two-year term that exists under the Indian Act system; defined qualifications for candidates for chief and clear rules around the nomination process; clearly defined offences and penalties that will deter questionable election activities, especially those that take place around mail-in ballots; and the minister is not involved in election appeals.
Although the APC itself did not recommend that a new election regime allow for a common election day among First Nations, it appears the provision in the bill that allows a minimum of six First Nations to line up their terms of office is gaining interest in our communities to try and coordinate the election process.
I will now speak on some of the elements on Bill C-9 that have been commented upon and debated in the past. First, there is new opt-in legislation by band council resolution.
Our organization recommended that individual First Nations, if they so choose, could opt in through a band council resolution. We debated at great length whether it would be preferable for the opt-in mechanism to be a community referendum. We reached the conclusion that although it is certainly an effective way to determine the will of the community, it is simply not cost-effective to consult the community in this fashion on all issues. Moreover, our experience with community votes is that First Nations voters tend to favour the status quo. Therefore, requiring a costly and time consuming referendum to move to a new election regime would, in effect, act as a huge barrier for First Nations to reap the benefits of the four-year terms, which is what we are trying to achieve. Even though a referendum is not required, interested chiefs have told us that they would not make this type of decision without first engaging in some manner with their community members on the question of elections.
We also recommended that the new election legislation provide terms of office of four years, making them comparable to most other governments in Canada. The Indian Act, in requiring elections every two years, has created conditions of instability and has fostered divisions in many First Nations communities. The two-year term of office is too short to provide political and economic stability for First Nations governments to plan for and implement long- term initiatives, and to build a proper foundation for community development before facing re-election.
The two-year term is especially difficult and challenging for those elected to a band council for the first time. New chiefs and councillors need time to learn their responsibilities and the various projects that require their attention. Development projects or initiatives at the community level are often put at risk by the two-year election cycle and by the instability caused by a high turnover of elected officials.
On appeals of band council elections, under the Indian Act, election appeals are received, reviewed, investigated and decided upon by the minister and the department. Statistics given to us by the department show that 30 per cent of all elections under the Indian Act have been appealed, which amounts to about 40 elections per year. Each year, usually no more than five appeals result in the overturn of an election, very few of which occur in Atlantic Canada. These numbers illustrate a fundamental problem with the way appeals are currently dealt with. In close to 90 per cent of the appeals launched, the allegation of wrongdoing is either unfounded or is deemed to not have affected the outcome of the election.
The problem is that it usually takes several months for these conclusions to be reached. While an election appeal is outstanding, it is very difficult for the band council, whose election is called into question, to govern effectively, make long-term plans, key decisions, or initiate projects for the community.
We think the problem lies in the fact that the appeal process is simply too easy to engage by community members whose motives may be questionable, and we also think that the role of the minister in investigating and deciding upon election appeals is paternalistic and an inappropriate intervention in the internal affairs of First Nations communities.
We need a more rigorous appeal system that does not afford a role for the minister, while at the same time ensuring that frivolous or unfounded allegations do not result in a lengthy appeal process that hampers a First Nation's ability to govern.
The APC initially recommended that the role of the minister and his department in election appeals be eliminated in favour of the establishment of a new independent tribunal. However, we are comfortable with the election appeal provisions of Bill C-9. The courts decide election appeals, impose penalties and overturn results in municipal, provincial and federal elections, and they could play this same role in First Nations elections.
In conclusion, the submission on Bill C-9 to the Standing Senate Committee on Aboriginal Peoples is based on our analysis of how well Bill C-9 responds to the key recommendations we put forward as our organization when we engaged our First Nations members on the important issue of election reform.
We have called for the design and implementation of the First Nation elections bill and the resulting regulations that would provide an alternative, effective and modern system for governing elections for opting-in First Nations. As evidenced by the recommendations, First Nations governments in Canada are interested in having free and fair elections that support stable, effective and accountable governments as well as supporting the individual rights of their members.
Thank you for providing me with this opportunity to present the reasons why we support this bill and we ask you to lend your support as well by helping this bill become law as soon as possible. We strongly believe First Nations in Canada need other options for addressing these important and pressing governance matters that currently face their communities.
In my own opinion, I feel this is probably one of the most important pieces of legislation that will appear in this cycle of the government. I feel that the election process is so fundamentally important in our community that giving communities an option to move away from the Indian Act process is critical to our future. I do want that future to be very open and prosperous for all our communities and this will help it a great deal.
Thank you very much. Wela'lioq.
The Chair: Thank you very much. It's obvious your congress has played a major role in developing this legislation. That background is very helpful.
Mr. Evans, you have also been involved in developing this legislation, so we have two witnesses with a good history in this bill before us tonight. Please proceed.
Ronald Evans, Chief, Norway House Cree Nation: Thank you, Mr. Chair. Honourable senators, and all observers, I am very pleased to have been invited once again to testify before you as the Standing Senate Committee on Aboriginal Peoples and to speak on this important bill, Bill C-9.
As the former Grand Chief of the Assembly of Manitoba Chiefs and current Chief of Norway House Cree Nation, I am pleased to provide support for Bill C-9, the First Nations Elections Bill.
Although this bill does not directly affect my community of Norway House Cree Nation, as we enacted a custom election code in 1998, this bill is important for those 37 First Nations in Manitoba and the 240 First Nations in total across Canada whose elections are governed by the Indian Act.
Years of hard work and commitment stands behind this bill. Bill C-9 will change the way First Nations are governed, create stability, strengthen self-governance and allow First Nations to move forward.
I thank the Minister of Aboriginal Affairs and Northern Development Canada and the departmental staff for their commitment to supporting this very important initiative and I hope that each of you, as our representatives in the Senate, sees the urgency and importance in supporting this bill, which has been debated in the Senate when it was first introduced by the former Minister of Aboriginal Affairs and Northern Development, the Honourable John Duncan, in 2011, as Bill S-6. I had the opportunity to address the Senate standing committee at that time and expressed my support for this important endeavour.
The bill was supported by the Senate, and made its way to the House of Commons where, after first reading, the bill died when the government prorogued. In October 2013, the bill was reintroduced as Bill C-9, and I had the opportunity to present to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development in November 2013 and answer questions from members who had misunderstood clauses of the bill. I am here today to reiterate my support for Bill C-9 and to help address any questions you may have.
I also thank the Atlantic Policy Congress of First Nations Chiefs for their partnership in undertaking the national engagement process in 2010, during my time as Grand Chief of the Assembly of Manitoba Chiefs. In collaboration, we reached out to First Nations across Canada to discuss the groundbreaking work that our respective organizations had done to improve the electoral system for First Nations whose elections are governed by the electoral provisions of the Indian Act. I thank the Atlantic Policy Congress for their continued support and vested interest in ensuring this bill becomes law.
The First Nations Elections Bill provides some constructive provisions that will strengthen the election process and governance of First Nations, including a longer term of office, from two- to four-year terms, and a common election day where all First Nations who opt in to the proposed First Nations Elections Act will eventually be elected on the same day. This type of general election adds a more robust and transparent nomination process for candidates, fair and sound penalties for offences and, more important, an independent process for First Nations elections.
The current Indian Act election system is not working. It has proven to be weak and creates instability for our communities and their economies. It has prevented First Nations from moving forward on important projects and initiatives, such as economic development and important infrastructure developments that are vital for communities, their well-being and their quality of life.
With the current two-year term of office, our research and experience has shown that newly elected chiefs and council members have little time to learn their responsibilities, build the necessary relationships and develop or complete the necessary projects and initiatives before it's time for another election.
In any given month, leadership in one or more of the First Nations band councils in each province is changing due to an election. Constant changes to band councils cause major disruption to the important plans and projects being worked on in the communities. This political instability makes First Nations very unattractive to long-term investment and economic development by both internal and external entities.
It is important to note that the vision of a four-year term of office — a central component of this initiative, formally known as the common day election initiative — is not a new concept. This vision was first articulated by the leadership of the Manitoba Indian Brotherhood in 1971, in the book Wahbung: Our Tomorrows, a document which has inspired our leadership ever since it was written, and it strikes at the very heart of our sustainability and self-governance.
Wahbung is a visionary document that was created by the Indian tribes of Manitoba expressing the position and policies to achieve honourable and mutually satisfactory relationships between Canada and the Indian people of Manitoba.
Wahbung is referenced by the leadership of today to guide us in the work we do and to respect the work of the past leadership. In reference to governance, Wahbung stated that: ``The method of elections must be left at the discretion of each community. . . . it is recommended that the terms of office of elected Chief and Council be extended to four years.''
The ultimate goal of all First Nations is to be self-sustaining and self-governing. Creating an electoral system that is accountable, transparent and driven by First Nations is essential in creating stability and credibility within First Nations governments and will strengthen First Nations governance in Canada. These changes will benefit all First Nations, will improve and strengthen First Nations governance and will allow First Nations to move forward in a positive and progressive manner.
It is my understanding that clause 3.1(b) of Bill C-9 has been the cause of much debate amongst members of the Senate. Clause 3.1 states that:
The Minister may, by order, add the name of a First Nation to the schedule if . . .
(b) the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation; . . .
For the record, I wish to once again state my position on this clause. It is of utmost importance that a protracted leadership dispute does not cause interference in the day-to-day administration of a First Nation.
As a leader, I understand what it takes for a community to function and what the absence of leadership can do to compromise the administration of a First Nation. I also know what the process of an election appeal can do to communities that are governed under the electoral provisions of the Indian Act. We have seen many cases where communities have gone months, even years, before a court decision has been made as a result of an appeal. In some cases, a full term of chief and council, two years, has passed before a decision has been rendered and where the same chief and council in question are re-elected.
As members of the Senate, it is important that you begin to understand the realities at the community level. When there is a contested or protracted leadership dispute in a First Nation, it causes uneasiness amongst members, causes frustration and chaos because decisions cannot be made. In many cases, it leaves the First Nation without the quorum to make important decisions that ultimately affect the finances of the community because chief and council meetings cannot be held without quorum, and agreements and BCRs cannot be signed and ratified.
The reality is that it does not take long for a First Nation to reach critical levels of financial instability, and we know that AANDC, Aboriginal Affairs and Northern Development Canada, has enforced policies that force many First Nations into default management and even third-party management. In Manitoba alone, AANDC has reported 19 First Nations in default management, formerly known as remedial management, 18 First Nations in co-management and seven communities in third-party management. Once a community is placed into third-party management, it is very difficult, if not impossible, for a First Nation to make its own decisions and retract this default management and status of intervention.
Therefore, I urge honourable senators to continue to support Bill C-9 to include clause 3.1(b). The intent of this bill is to create stability, and in the event that a community is not able to function on its own or is faced with leadership who can no longer serve the needs of the community, it's important that the minister play a role in ensuring that the priorities and needs of community membership are met and protected.
In 2009, the Assembly of Manitoba Chiefs, as mandated by chiefs in assembly via resolution, researched and discussed changes to First Nations election systems with First Nation leadership, technicians and First Nations people across Manitoba. The initiative was coined ``The Common Election Day Initiative'' (electoral reform). As part of this initiative, engagement sessions were held with the leadership and community members of the 37 Manitoba First Nations who hold their elections under section 74 of the electoral provisions of the Indian Act.
The engagement sessions were extremely significant, informative, important and valuable as we gathered thoughts, comments and recommendations on how to improve the election system for First Nations governments. This input received from the community engagement sessions were carefully considered in crafting recommendations to then- Minister of Indian and Northern Affairs Canada, now Aboriginal Affairs and Northern Development, to develop an improved system for First Nations elections.
The feedback we received from communities supported the call for a common election day for First Nations who opt into the new legislation and a four-year term of office along with an appeal and recall process. This would not be mandatory. It would be the prerogative of each individual First Nation to decide as to whether they want to opt into the First Nations Elections Act.
With the support of the Minister of Aboriginal Affairs and Northern Development Canada, departmental staff, and in partnership with the Atlantic Policy Congress, we were able to undertake a national engagement process in 2011, when I was Grand Chief of the Assembly of Manitoba Chiefs. This allowed us the opportunity to discuss with First Nations in other regions across Canada the groundbreaking work that our respective organizations had done in collaboration to improve the electoral system for First Nations currently under the Indian Act.
As part of this national engagement process, I had the privilege of meeting with First Nation leadership across Canada, engaged them in discussions on how we, together, could make this a reality. We extended the opportunity for leadership and members who participated in the engagement sessions to provide their recommendations and feedback with respect to improving the electoral system for First Nations. Both First Nations leadership and members shared with us their challenges stemming from the inefficiencies of section 74 provisions that have detrimental impacts on First Nations people and communities.
The engagement sessions proved to be successful as we received positive and supportive feedback from the leadership in British Columbia, Alberta, Saskatchewan and Ontario. The Atlantic Policy Congress engaged the eastern provinces and received the same positive feedback with consistent recommendations.
We also used social media, urban forums and our respective organizations' websites to ensure that individuals across the country had the opportunity and access to engage as well as provide feedback and recommendations no matter where they lived.
After this information was gathered and reported to the department, the next step was to work together with the department to craft the proposed legislation before you, which is Bill C-9.
This important groundbreaking and historic initiative has been many years in the making. A concept born in the 1970s is finally closer to reality thanks to the hard work and determination of Manitoba First Nations leadership, the Atlantic Policy Congress, and through the hands of now four Ministers of Aboriginal Affairs and Northern Development: the former ministers the Honourable Jim Prentice, the Honourable Chuck Strahl, and the Honourable John Duncan; and now the Honourable Bernard Valcourt, as well as their respective staff. They each deserve ample credit and thanks for their ongoing support and commitment and for their every effort in ensuring that this initiative would one day become a reality and legislation.
Once again, I express my absolute support for Bill C-9. I hope that in this session of Parliament our representatives in the House of Commons as well as our representatives in the Senate will understand the importance of this bill and provide your support to ensure that First Nations governance can be strengthened and be part of making the positive and necessary legislative change that is supported by many First Nations in this country.
Thank you for the invitation to participate in today's standing committee proceedings. Ekosani.
The Chair: Thank you, Chief Evans. We're privileged to have both of you here, with your very long history in the development of this bill. Your clear presentations are very welcome.
I will begin on the question of engagement and consultation. Both your organizations have led the engagement process. In 2011, the bill which is before us today was the same; we know that it hiccupped in the last Parliament.
You have described the engagement process and feedback from across Canada, although you didn't mention Quebec. Is it fair to say that consultation and engagement was well done, and that not everyone may like every detail of the bill but that consultation is not an issue with this bill?
Mr. Paul: I don't think consultation is an issue on this bill because many of the fundamental things proposed in the bill have come from us in the First Nations, and in particular in Quebec. Four communities that are part of our organization, the Atlantic Policy Congress, are from Quebec. We did have an opportunity to have them as chiefs provide information to the Assembly of Chiefs in Quebec and offered to present at an all-chiefs forum in Quebec as well. Basically they took it to our representative chiefs to talk about the issue, and also came back with feedback like we did in other regions in the country.
The thing we found in the different presentations we did was that we were trying to change it. Our people, our communities, our leaders were trying to change it. It originated from us. It wasn't somebody else telling us what it is we wanted to do.
That has been an important vein in all the work we've done in collaboration with the Assembly of Manitoba Chiefs and working with the government, is trying to do it in the best possible way to allow as much feedback, consultation and input as possible. Going through the legislative process twice has also done that and improved people's discussions and input on the issues related to the bill. Since the beginning, various groups from across the country have presented to the committees, both in the House of Commons, most recently, and to the Senate and have expressed their views to the committees.
I want to go back to one important thing. One of our former chiefs who was the co-chair of the Atlantic Policy Congress, and who has now passed the other side, Chief Noah Augustine from Metepenagiag, saw the vision of taking the idea of two years to four years and the need to fundamentally change the election system so that we would have the tools for governance and the tools to promote economic prosperity for our communities. In all the discussions and consultations that we have had, and even in what the government has done, a lot of input has been about how important this is and how it will help in terms of improving the long-term stability of what communities are striving to do.
That's very important to us. It has taken quite some time. I was telling Ron earlier that we are going to be here until the job is done, basically. In our region a number of elections have occurred. Even in this period, we have gone through three, four cycles of elections — and it is the same in Manitoba — because of the Indian Act election process. We're trying to create a specific option for communities that will help in their governance and with their future, basically.
Mr. Evans: As far as consultations go, I personally went into those 37 communities in Manitoba to meet with the membership, not the leadership. The leadership gave me the mandate to do so. In many of those engagements the leadership had an opportunity, whether or not they chose to be in those meetings, to allow their members to speak freely and openly about concerns they had about extending the term from two to four years.
Concerns were always raised but at the end of the sessions there was always support for it. We then took that to the western provinces and I met with the leadership there. I didn't meet with the people, but I met with the leadership. They would then use their own regional processes in terms of how they consulted with their membership. In Manitoba, I actually went and did that myself to demonstrate how important this work was and continues to be, for that matter. Where did it come from? It didn't come from the government.
First, if I can take you back to my notes where I talk about Wahbung, in 1971, the leadership back then already had it in their minds to extend the terms to four years from two-year terms. They saw how detrimental that was to us as First Nations. Back in the 1990s, when Manitoba entered into what was the Manitoba Framework Agreement Initiative, the FAI, I believe a considerable amount of money was invested in that process over the period of almost a decade. When there were no results, the government made a decision that they were not going to expend any more monies on the process because it was not delivering the results.
At that time Jim Prentice was the minister; I was Grand Chief when that happened. I approached him and said that we have to do something about the governance of the communities because the structures are not working. I asked him to allow us to do so and to work with us to begin a process, which is the process that we embarked upon. That is what we're doing today. That is where it came from. It is not government imposing anything upon us. It might not be the perfect document. There's never a perfect document, but we have to start somewhere. There's nothing in there that says we can't make necessary changes as we move forward. That's why I hope to convince you to support the bill.
The Chair: That is a very impressive history. Thank you, Chief Evans. We don't always hear in this committee that government has not imposed initiatives on First Nations so that's refreshing to hear.
I would now like to call on the deputy chair.
Senator Dyck: Thank you for your presentations tonight, gentlemen. You have made it very clear what your position is.
Chief Paul, you were saying that there are 37 First Nations in the Atlantic Policy Congress and 27 hold Indian Act elections. Do any hold these custom community code elections?
Mr. Paul: There are a number of them that do hold custom community elections in the region, yes.
Senator Dyck: There are just a few?
Mr. Paul: Yes.
Senator Dyck: Chief Evans, you said Norway House itself holds a custom community election?
Mr. Evans: Yes; we have a four-year term. We changed over in 1998. We used to be two-year section 74 at that time and then we developed our own code. A number of us have those types of arrangements.
Senator Dyck: Some of the concern, as you mentioned yourselves, revolves around clause 3(1)(b) and the power of the minister to impose C-9 on a First Nation. When it is a First Nation that holds elections under the Indian Act, I don't think anyone would see that as a disadvantage because you are moving into a much better system. Let's say, Chief Evans, you have your own custom code election. Let's say you had a protracted leadership dispute. The minister could then say, ``Well, you have had this protracted leadership dispute. It has been going on for long enough to significantly compromise good governance. Therefore, you are ordered to go under C-9.'' That's how that clause would apply.
Are you in agreement with it applying to First Nations who hold custom code elections?
Mr. Evans: My understanding is that it applies to communities that are under section 74. We already have our own election code presently.
Senator Dyck: We understood, from departmental staff, the Department of Justice and probably the previous minister, that it would include custom code.
Mr. Evans: Regarding the custom code, we call ours the Election Procedures Act. Then there are custom elections. Nothing is written so it depends on what the exact definition is. It should not be misunderstood.
Senator Dyck: Our understanding is that it would apply to both.
Mr. Evans: I don't know how that would change it because we're already in a four-year — how would that change it?
Senator Dyck: If, for some reason, you had a protracted leadership dispute; and if it was determined that this had compromised good governance, then the system described under this proposed legislation would be imposed upon you by the minister.
Mr. Evans: I think that's a bad example. We're not comparing the same thing; it is not apples to apples. We're taking it from a two-year to a four-year election. If the minister wanted to impose Bill C-9 on our community, that would be wonderful.
Senator Dyck: It would be wonderful?
Mr. Evans: Yes, it would be wonderful if it's going to make it better than we have, which I don't know how much better that could be.
Your question really doesn't make sense.
Senator Dyck: From what we have heard from other witnesses, there was objection to the idea that the minister had this power to interfere in what seemed to be the ability of a First Nation to design their own custom elections. The minister could then come in and say, ``Well, there's something going on here that's not working,'' and then impose the C-9 legislation on them through clause 3(1)(b). There were other witnesses who said that that was not the correct thing to do, that it was an expansion of the powers of the minister into something that could be seen as interfering with the constitutional rights of that First Nation to govern themselves and that the First Nation didn't have a choice and it was the minister who decided.
Mr. Evans: The minister has that power now under section 74.
Senator Dyck: By policy, for Indian Act elections. This would give the minister legislative power.
Mr. Paul: I think it comes down to the choice of the community. We understand that that is part of it, but we see the importance of what it is we're trying to do. The reforms that we're doing trump that even in terms of what it is we're trying to do because of the optional nature of what it is we're doing. The power of the minister is the power of the minister. We're looking at change for our communities. That is the goal of this bill. The minister has powers in the Indian Act already, so I'm not worried about the minister. I'm not worried about the clause. I'm more worried about us changing the election process.
Mr. Evans: If I can just add, I referenced the Framework Agreement Initiative, which I think I have done at another session. That was the reason why we needed to change the way that elections are held in First Nations. That undertaking was already 10 years under way, and of those that initiated the initiative at its beginning, there was only a handful there when it was concluded, so no one could speak to it or understand.
If we don't change the way things are now, we are not going to change anything. Nothing is going to change for First Nations if we don't begin to initiate change. It is coming from us. We see the problem. We're the leadership. We know the challenges. We're trying to fix it. That's all we're trying to do.
Senator Tannas: My understanding, building on what Senator Dyck was talking about, is that the minister has the power in a deadlock to clear the pool and start over, and that as it stands today comes from the Indian Act and presumably then the election would be held under the Indian Act. If in either of your communities you were faced with a deadlock and the minister intervening, would you rather have an election under the Indian Act provisions or under this one?
Mr. Paul: I think more people would rather have the election under this type of legislation because it covers a lot of things that our leadership and our communities have identified as issues that need to be fixed. We're trying to fix something here. We're trying to make it better for our communities so that good governance and long-term stability is there, and that makes the lives of our community members better.
Governance and elections are fundamental in our communities. When we have 100 per cent or 90 per cent participation in elections, you don't think people are taking elections seriously? They're taking it very seriously. The selection of our leaders in communities is probably one of the most important efforts that children learn from when they're children to when they become adults and vote. It is something that they all believe is fundamental and important to the community. When you have a say in your leadership and the quality of your leadership and you give them time to do the work, then the work gets done. That's what we want.
Mr. Evans: There's an issue right now in one of our communities. You must have read about it. One of the journalists in one of the papers in Manitoba writes, you know, if —
The Chair: Can you describe the issue for us, please?
Mr. Evans: The issue that is happening in one of the communities is that the community has decided that no one runs for chief unless they're 50 or over, and nobody runs for council unless they're 40 or over, that no one can live common-law and all those other rules they put in there, and the minister cannot do anything about it. So the election will happen.
Now, those things happen, and then the journalist writes, ``Why is somebody not doing something about it?'' He says, ``Where is the First Nations leadership? How come they're not coming forward and helping with the community and looking at what is going to become of the community with leadership that's not stable in that way?''
That's what we're trying to do. Basically, what we're trying to do is implement. If I, as Chief of Norway House, say that Bill C-9 is good, and if the minister wanted to impose Bill C-9, I would say yes. If I say it's good enough for somebody else, it should be good enough for Norway House as well.
Senator Dyck: I'm a little confused. I thought you had just said the minister had the power to come in and order an election, and what you said now sounded like the minister didn't have the power.
Mr. Evans: Until an election actually happens and then something will change through the legal system. It will be challenged legally.
Senator Dyck: I thought the minister under section 74 of the Indian Act could go in there and say, ``Things are not going right. You have to hold a new election.''
Mr. Evans: Yes. Your point is because of Bill C-9, he can.
Senator Dyck: Pardon me?
Mr. Evans: Is it because your point is in Bill C-9 he can?
Senator Dyck: No, under the Indian Act, under section 74.
Mr. Evans: Apparently, he can't.
Senator Dyck: Then I don't understand.
Mr. Evans: I'm just going by what I read in the article.
Senator Dyck: The news article is not based on fact.
The Chair: Maybe I can help. Under section 74 of the Indian Act:
Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.
``Whenever he deems it advisable for the good government of a band,'' that's the trigger. I hope that helps.
Senator Dyck: In this case, he could if he wanted to.
The Chair: Well, I wouldn't want to interpret that. I wouldn't want to say how that provision has been interpreted. On the face of it, it is a pretty broad power, Senator Dyck.
Senator Dyck: Exactly.
The Chair: I don't know how it has actually been applied.
Moving along, I have Senators Meredith, Wallace and Moore. I would ask you to keep your questions brief, please.
Senator Meredith: Mr. Chair, I feel so empowered. We should just close on this committee now because we have had some wonderful testimonies and the passion in this room of empowerment of your people. I wrote down a tag line here. It says, ``By the people, for the people.'' This bill here is for your people. That liberates you economically.
Mr. Paul: Yes.
Senator Meredith: Talk to me about the economic empowerment once this bill is passed and enacted. What will that mean for your First Nations communities?
Chief Evans, talk to me about the transition from your custom code of two years and the challenges that you faced within your communities with the section 74.
Mr. Paul: In terms of economic empowerment, the biggest issue that we run into is finding financing or access to capital or trying to negotiate a business deal with somebody. To get it from the idea stage to business opportunity usually takes from one to two years, depending on the magnitude of the business.
If you have people changing in midstream of the process, your partner sticks with you, runs the risk of new people or walks away. In a lot of cases, they're walking away because they don't see the longer term stability. If you are an investor and you are going to invest in financial resources or debt or whatever you want to call it, you need a comfort level to minimize the risk and have stability in the group you are dealing with.
Four-year terms and the provisions under this bill will help that immensely because investors and people outside our communities will see the rules at face value and put more trust, I hope, and credibility in the leadership of our community and the many business opportunities that are in front of us. A growing labour force and all the opportunities in the natural resource sector are right in front of us.
The business of 730 days to come up with a business plan, develop it and get financing just doesn't cut it. A lot of opportunities are being lost as a result. This having four years will unlock those opportunities, I believe, and create better and stronger relationships between our communities and the wider business community.
Senator Meredith: Excellent. Thank you.
Mr. Evans: We changed over in 1996, when we were at two years. I was re-elected a few days ago, so I'm good for another four years.
Senator Meredith: Congratulations.
Mr. Evans: Having said that, it takes time to do projects. We built our school in Norway House. From our first meeting until completion of the project took six years. Had I been under a two-year term and not been re-elected, it would have fallen off the table. This process is taking six years. Had I not been re-elected, I wouldn't be sitting here this evening to speak and give you the history of the process that I have been so grateful to be part of.
That shows the importance of lengthening the term because now I have credibility. When an election is coming up, the business community waits to see what the outcome will be. It's no different than the U.S. election, where they start campaigning a year or two years before. It's no different than this government as well.
Senator Meredith: Can you tell us if there's going to be a pipeline?
Mr. Evans: It depends who we elect.
The Chair: We're just a little off topic here.
Senator Wallace: Gentlemen, both of you have given a lot of yourselves to the changes reflected in Bill C-9. You have consulted extensively in your regions and have a very strong feeling of what the views are in your regions. Beyond that, you initiated this national engagement in 2011, which took it beyond the Atlantic region and Manitoba and across the country. As you said, you dealt with the chiefs. There wasn't a referendum among council members, but you were dealing with the chiefs.
As with anything in life, trying to get unanimous agreement is impossible; and there are divergent opinions on different aspects of this bill. What is your sense of it with the 240 bands across the country that fall under the Indian Act? I believe that 64 of them are in Manitoba and the Atlantic region. With that balance, what's your sense of the degree of support that exists among the bands for the changes that are proposed in Bill C-9? Is it your sense that generally there may be differences on certain issues but generally there's support across the country for it?
Mr. Paul: I think there's strong support across the country for the bill by the 240 bands because it really comes down to the vision of the future. Communities are always changing to do better and to improve, basically. I would say that the majority of the 240 would look at this as a very viable option. They have the other options available of self- government and custom, but this one gives a bunch of things that help to make it a system. One of my friends has been a chief for 30 years, so he's gone through this process 15 times and it doesn't get any easier.
You can have great success and great progress in your community, but it can be taken away by anybody, basically. With the real option of C-9 in front of them, communities and the leadership across the country currently under the Indian Act will give it serious consideration.
In our region, I have had calls from chiefs almost every other week asking when this will become law. The biggest question is: When do we send in the BCR to move to the new bill? They know it won't take effect until the next election. Almost all the bands currently under the Indian Act are calling and asking me when this will happen. It kind of tells you that there's great interest in doing that. I went to speak to the regions to speak about this with the chiefs in a general assembly. The ones I talked to during and after the session spoke very positively about it helping them toward strong governance, strong accountability and strong economic prosperity.
If we can make all those things happen with this change, then what is the problem? Most people that I have spoken to in the community think we've been stuck with what was created a couple hundred years ago and that it's time for us to create our version of what we think could work. So that's what we did. It is an idea that came from our regions working with our communities and our chiefs going across the country in a national engagement to put our credibility behind what we were talking about. We weren't talking as the government. We were talking as people like them to do something to fix governance in our community. That is how we have looked at it all the way through.
The results of this will be very interesting in terms of how many actually jump in and the outcomes in 5 or 10 or 15 years. I really believe from all I have seen that it will help move our communities in a positive way in terms of the future.
Senator Wallace: That's helpful to hear. It seems there is that broad base of support among First Nations communities throughout the country.
Senator Moore: Chief Evans, you mentioned that Norway House Cree Nation is under its own custom code. You have a four-year term now. Are there any provisions of this bill that you could not bring into your own code? Is there anything stopping you from making changes to your own code, whether or not they are consistent with this bill, so long as they are consistent with the Canadian Charter of Rights and Freedoms? Is there anything stopping you from making changes?
Mr. Evans: No.
Senator Moore: We were told by department officials that since 1996, 75 First Nations had moved out of the act to their own custom code, and to date there are 343 that have their own custom code. It looks like that is the favourable position. Chief Paul, I think you said there are now 37 under the act in Atlantic Canada.
Mr. Paul: No, they're not under the act. I was thinking about it in just the number of communities versus 76 per cent of them are under the Indian Act.
Senator Moore: I think there are 27 under the act.
Mr. Paul: Something like that.
Senator Moore: Have any of them indicated they would rather have their own code when you were doing your canvassing to see what the position was?
Mr. Paul: I put it out there, and we've talked about that. For the issue on codes, you have to go back to why people developed codes a long time ago. The codes were developed when we were dealing with membership — C-31 issues — almost a decade ago and a community's desire to control their membership or not. From that, it also led to developing a custom code in some cases. In communities that are currently under the code, the financial obligations to update and to meet the standards of the Charter are directly put on that community to revise that code to be in accordance with the Charter.
There is a significant cost to take your code and keep updating it to be in compliance with the law and the Charter. It is a very expensive proposition in a community. It costs. We did talk to communities about the custom code, and to the communities that do have a custom code. They like what they have. Some have five years, a couple have three, and it's an assortment. Some have off-reserve polling and other stuff, but their view was, ``We'll stick with our current code that we have, but we are 100 per cent in support for our brothers, 27 of them who want to go under Bill C-9.'' They will do anything to help, support and assist us to do that. Even if you go under Bill C-9 at some point, you can still go to a custom code. There's nothing stopping you. This only improves the process. That's what we're trying to get at: Improve the process. That's fundamentally what we're trying to do.
Senator Moore: Chief Evans, I have one last question. The current Grand Chief of the Assembly of Manitoba Chiefs, Derek Nepinak, has expressed strong opposition to this bill, saying that:
. . . the proposed legislation does not fulfill the recommendations put forth by the Assembly of Manitoba Chiefs, and represents an apparent ``attempt by the Minister to expand governmental jurisdiction and control of the First Nations electoral processes that are created pursuant to the Indian Act or custom code.
He goes on to talk about the minister's ability to bring First Nations under the legislation without their consent, and lack of a First Nations appeals process in the conduct of election draws to resolve tie votes.
That seems to be inconsistent with what you're saying. Where does this sit today in terms of the Assembly of Manitoba Chiefs?
Mr. Evans: When I undertook the process as grand chief it was by way of resolution and the support was there, as I've indicated, from the communities themselves. Any new position on it should include a resolution, and I don't believe one exists.
Senator Moore: It does or does not?
Mr. Evans: Does not, indicating not to support this.
Senator Moore: So this is his personal position and not the resolution of the full assembly?
Mr. Evans: That's correct.
Senator Moore: Thank you.
The Chair: I should mention in this connection that the steering committee did agree that Grand Chief Nepinak would be invited to appear before our committee. Unfortunately he was not able to appear due to scheduling issues, but we had extended that invitation.
Colleagues, I would like to thank the witnesses very much. You presented a tremendous history on these issues. I'm amazed that it was 2008 when the four-year term was asked for, so your patience is to be commended, and then there was a reference to that in 1971. You ask when the bill will be passed. I think the answer lies around this table. With your leave, we're going to adjourn this meeting now and it will give the committee an opportunity to discuss where we go next in camera.
(The committee continued in camera.)