Proceedings of the Standing Senate Committee on Aboriginal Peoples
Issue 21 - Evidence for the evening meeting
OTTAWA, Tuesday, March 2, 1999
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-14, providing for self-government by the First Nations of Canada, met this day at 5:00 p.m. to give consideration to the bill.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this afternoon we have with us representatives from Indian and Northern Affairs Canada.
Mr. Dewar, please introduce your colleagues to us and then proceed.
Mr. Barry Dewar, Director General, Self-Government Negotiations Branch, Indian and Northern Affairs Canada: Honourable senators, I appreciate the invitation to be here today. With me today are Catharine MacQuarrie and Allan Cracower.
In April 1997, DIAND officials appeared before this committee to provide information to senators on the main feature of the government policy approach for implementing the inherent right of self-government. At that time, they also outlined certain differences between the federal policy approach for implementing the inherent right and the approach proposed in what was then Bill S-12 and is now Bill S-14.
Today I thought it might be useful to tell you about a significant evolution that has been occurring over the past two years in the approach to implementing self-government. That evolution has occurred in response to three main developments: first, the recommendations of the Royal Commission on Aboriginal Peoples; second, the agenda established with First Nations pursuant to "Gathering Strength," the government's response to RCAP; and, third, through the ongoing dialogue with First Nations and provincial governments at self-government negotiation processes across the country.
The RCAP report and the federal government's response "Gathering Strength" highlight the challenges we face in building new and sustainable self-government relationships. They point out that there is no quick fix.
Together we need to address a legacy of over 100 years of Indian Act administration. That regime contributed to the disaggregation of First Nations into Indian Act bands and to the dismantling of traditional governance. That regime imposed a band governance system that was designed for the administration of limited and local government powers, but it was ill-designed for the meaningful exercise of broad self-government jurisdictions.
In addition to addressing that historical legacy, we face the challenge of implementing self-government arrangements that can meet the social and demographic needs of a First Nation population that is growing at twice the national average. This population will increase 20 per cent in 10 years. This population is significantly younger, on average, than the general population, and this creates pressure for education, housing, employment and social services. This population is also currently before the national average on most social indicators.
Those are some of the challenges we face in trying to build sustainable self-government arrangements. We have an historical legacy and a demographic fact that we must address.
In terms of the policy context to assess where we are going, it is important to look at where we have been in the area of self-government. Our efforts to move towards self-government are relatively recent against that historical backdrop, approximately 15 years, perhaps a little longer if you look back at the work of Penner.
In the late 1980s the federal government announced its community-based, self-government policy. We engaged in negotiations with a significant number of bands across the country. The focus of that policy was to negotiate self-government legislation, which would delegate a range of jurisdictions to Indian Act bands on reserve and which would replace the Indian Act. It would also provide a legal capacity to bands and provide for new constitutions.
That policy met with limited success for a number of reasons. Politically, it was not palatable to many First Nations because the jurisdiction was delegated rather than premised on the existence of the inherent right of self-government.
In addition, the policy provoked fears of federal offloading, both among First Nations and provincial governments. Too often the objective was perceived as transferring jurisdiction and responsibility to First Nations without addressing the capacity-building, financial arrangements and the implementation plans that would build sustainable First Nation governments that could effectively deliver programs and services to their citizens and meet the other needs of their citizens.
While Bill S-14 goes further in certain respects than the CBSG policy, it is in many cases reflective of the CBSG approach in its focus on individual bands and setting out an alternate jurisdictional framework to the Indian Act.
The inherent right policy, which was announced in 1995 and to which Mr. Dupont spoke at that time, represented a major legal and constitutional shift in the approach for achieving self-government.
As he outlined in his presentation to the Senate standing committee in 1997, the inherent right policy recognized the inherent right of self-government as an existing aboriginal right under section 35 of the Constitution Act. The policy proposed to set aside legal and constitutional debates to focus on the negotiations of practical arrangements within the Canadian constitutional framework.
This policy provided for constitutional protection of aspects of self-government agreements. It provided for application of the Charter of Rights and freedoms and laws of overriding national importance. It required agreement among First Nation governments and the federal, provincial and territorial governments, depending upon the circumstance, on the relationship of their laws and on the rules for resolving conflict. That was to provide clarity for all parties as to which laws apply and where.
Through work at a variety of negotiation tables across the country with First Nations and provincial governments, we have made substantial advances in each of these areas in terms of the language with respect to recognition of the inherent right, in terms of the Charter's application and the rules relating to the application of laws. We will soon have a number of agreements in principle and final agreements, which will provide a variety of workable approaches for addressing these issues.
Then came RCAP. It challenged First Nations and the federal and provincial governments to look beyond the legal and jurisdictional framework for self-government. It proposed that we look at a broader structural reform of the relationship needed to support legitimate, empowered and sustainable First Nation governments.
In particular, the royal commission noted that the exercise of extensive jurisdiction by individual communities may not always lead to effective, sustainable governments. It set out a vision that encouraged the rebuilding of aboriginal nations; the examination of governance systems to ensure legitimacy, accountability and redress; and the development of new fiscal relationships.
In "Gathering Strength," last January the government set out its commitment to renew the relationship with aboriginal peoples by pursuing four key objectives: first, renewing partnerships; second, strengthening aboriginal governance; third, developing new fiscal relationships; and fourth, supporting strong communities, people and economies.
The theme of strengthening aboriginal governance in that response to RCAP signalled a shift from a narrow jurisdictional focus to a broader examination of the essential components for building sustainable government-to-government relationships.
In discussing this more holistic relationship approach at negotiation tables, as we have been doing at a variety of tables across the country, we are beginning to generate consensus on the interacting elements that need to be addressed to build a new government-to-government relationship.
There are six interacting elements to which I should like to speak briefly. The first element is governance. What is the nature of the First Nation government with which Canada and provincial governments will have a relationship? Will it be a single community or a tribal or regional government? What will be the division of responsibilities between community and tribal levels of government? How do we face the political and capacity challenges of transforming or replacing Indian Act band councils and tribal councils or political associations with new, accountable government structures that are able to assume a full range of responsibilities associated with governance, including legislative, executive, judicial and administrative functions? How do we support that type of transformation?
Under "jurisdiction," the more traditional element of self- government that has been addressed, what is the scope of jurisdictions that will be recognized and what is the relationship between First Nation laws and federal and provincial laws? Are there certain preconditions for the exercise of certain jurisdictions in terms of size, capacity, resources or harmonization arrangements with federal or provincial governments, or can every individual band, regardless of size, exercise or expect to exercise a full range of jurisdictions?
Under "programming," will First Nation governments have the structures, capacity and resources to design, evaluate and deliver programs and services to their citizens? What do agreements need to say about program standards, mobility and program transfers?
Over the past 20 years, we have seen the dramatic devolution of program delivery to First Nations. Over 80 per cent of programming is now delivered by tribal councils or bands, and that has created an administrative capacity. However, when you move into self-government, you are not just delivering someone else's programs. You need the capacity to develop your own policies and programs and to evaluate them and set the standards. That additional level has not been addressed in our current administrative devolution.
Under "financial arrangements," through "Gathering Strength" Canada is committed to working in partnership with aboriginal governments to develop new fiscal relationships that provide more stable and predictable financing, which maximize the internal generation of own-source revenues, and which provide for accountability.
We are seeking to develop these new fiscal arrangements through the establishment of a national fiscal table with the Assembly of First Nations through a fiscal table involving all the First Nations in Saskatchewan, under the Federation of Saskatchewan Indians. The Government of Saskatchewan is participating at that table. As well, through a number of our more advanced self-government negotiations, we have been trying to negotiate a new generation of fiscal arrangements based upon a formula transfer model, which would ensure that First Nations have the resources to provide comparable programs and services. It is a difficult challenge to move from the type of arrangements we have had into these new, more formula-based arrangements.
The next issue is implementation. Experience has shown the necessity of joint implementation plans. We have witnessed the problem in major land claims settlements where we did not have implementation plans in place. Self-government is not just about the First Nations opting out of the Indian Act into a new, pre-built jurisdictional framework. It is about a fundamental relationship change between First Nation governments and federal and provincial governments. Achieving that transition requires joint planning and resourcing. It takes two parties to be involved in a relationship, and in this case it involves more because of provincial and territorial roles. That must be planned.
With regard to treaty relationships, with First Nations that have historical treaties or modern land claim agreements, the parties need to examine and address how these new self-government relationships will build on and respect the existing treaty relationships. This issue is being actively examined at self- government tables and through fora such as the Saskatchewan Treaty Process and the Office of the Treaty Commissioner, which is looking at reaching understandings on the nature of the historical treaty relationship and on which of the principles that were incorporated in that relationship should be carried forward in self-government arrangements.
I should like to speak now to the current status of negotiations across the country. We are now seeing agreements emerging at tables across the country which, in various ways, address the interacting components to which I have referred that are essential to creating new government-to-government relationships. Honourable senators will soon have the opportunity to examine the Nisga'a agreement, which has addressed these issues. A number of agreements in principle have been concluded or will soon be concluded.
This is no "one size fits all" model, but the precedents being established in these new agreements may provide useful examples, which can accelerate other self-government negotiations.
I wish to speak briefly about recognition instruments. We are also interested, as the Senate obviously is, in finding ways to expedite self-government arrangements through the development of recognition instruments. The agenda for action with the Assembly of First Nations includes joint work on the concept of a national recognition instrument. That work is only beginning to get under way.
The concept is also being raised in Saskatchewan through a common table process that has been established there involving the Federation of Saskatchewan Indians, the federal and the Saskatchewan governments. At other tables we are developing agreements to recognize core government powers and allow for other jurisdictions to be brought into effect over time without requiring legislative amendments or separate bills on each jurisdiction. This is for First Nations that want to move into self-government on a progressive basis, taking on different jurisdictions over time.
Speaking briefly to Bill S-14, Mr. Dupont in 1997 outlined a number of concerns about the content of what was then Bill S-12, most notably the potential legal uncertainty regarding the application of laws, the rules relating to the interaction of First Nation laws, federal laws and provincial laws, and which laws prevail in the event of conflict. He also voiced concern about the peace, order and good governance powers that could encroach on certain critical federal powers. He referenced the lack of role for provincial and territorial governments in addressing the relationship of laws and in playing a supportive role in the implementation of the new self-government arrangements. As well, he noted that the bill did not address the financing of aboriginal government.
Honourable senators may find that many of these issues are being addressed in creative ways in the new self-government arrangements coming forward, and I would invite you to look at those in your deliberations.
Today, I am joined by Alan Cracower from the Department of Justice. Without repeating the legal analysis that was provided in 1997 on Bill S-12, he would like to highlight for you some of the principle legal concerns raised by Bill S-14.
Mr. Allan Cracower, Counsel, Indian and Northern Affairs Canada: Approximately one year ago I had the privilege of appearing before this committee with respect to the Mi'kmaq education bill. As members of this committee are aware, like the bill before us, that, too, was a self-government bill. It is with that legislative experience in mind and the knowledge and experience that I acquired assisting in negotiating the Mi'kmaq Education Act and subsequent agreement with the First Nations and the province that I reviewed Bill S-14.
My comments today will focus on highlighting some important legal concerns, as well as addressing recent law of relevance to this bill. Legal developments over the past two years have not, however, been limited to case law. Barry DeWare has just outlined the evolution of aboriginal self-government policy since we last appeared before this committee regarding this subject. This evolution has been expressed in final agreements and agreements in principle, with more pending. In parallel, legal solutions have been found and are being found, which assist negotiating partners in making practical, just, and durable self-government agreements a reality.
The solutions found to the problems inherent in the relationship of laws issue are a prime instance of success in the ongoing legal work towards realizing self-government. Until recently, the realization of all self-government arrangements has been hindered by the pervasive and fundamental problem of working out which law applies to whom, when and where. Two years ago, my colleague went into some detail concerning the confusion raised by Bill S-12 about when a First Nation law or a federal law applies to citizens. When reading subclauses (a), (b) and (c) of clause 34 of Bill S-12, initially it appears that the federal law applies but, on closer scrutiny, it appears that it does not apply unless one of three conditions is met. The result is a great deal of confusion, leaving the courts to determine whether a particular federal law does or does not apply.
I think that you will agree with me that it is important for all citizens to know which laws apply to them and when, especially when two competing or contradictory laws could apply.
The challenge is even more acute where First Nations are offered authority to legislate extraterritorially. A good example concerns education. The ability of First Nations to legislate extraterritorially respecting the education of their members imposes legal and practical problems. Legally, section 93 of the Constitution Act, 1867, provides that provinces have exclusive legislative authority with respect to education. It is therefore constitutionally questionable if Parliament can provide enabling legislation with respect to off-reserve education.
Moreover, even if a province agreed to enact appropriate legislation to enable a First Nation to provide education to its members outside of the community, implementation would still prove operationally frustrating. The aboriginal and non-aboriginal students could be subject to different laws regarding, for example, curriculum and attendance while sitting in the same classroom.
The complications are still further exasperated when one factors in, as one must, the existence of provincial laws as well. A citizen of a self-governing First Nation, non-member resident, or third party seeking to do business in the community or with its citizens could be subject to three potentially competing legal regimes: First Nations, federal, and provincial. In all cases, clear, understandable, and specific rules must be worked out as to which law has priority, under which circumstances and for whom. Bill S-14 does not do this.
As well as simple general default rules, negotiators have found that custom rules are often necessary to produce certainty with respect to many specific powers, for example, education and environment.
It is not adequate to say that it can be left to the courts to interpret conflicting legislation, disputes over which could result in one law trumping the other. While it is sometimes necessary to have disputes resolved by courts, it takes a long time, is very expensive, and economic activities can be discouraged pending judicial decision. It is usually better to avoid litigation by negotiating clear arrangements in advance that ensure that everyone wins, that First Nation values are respected, and that First Nations are self-governing while federal government legal obligations are still met.
It is clearly desirable that First Nations have a broad range of self-government powers. However, if the exercise of them results in repeated need for court intervention in order to settle various and complex jurisdictional disputes, both the principled and the practical gains from self-government will be reduced, if not eliminated. Rather, the relationship and expectations of the First Nation and federal and provincial governments regarding laws should be worked out up front through negotiations.
A related issue is that of ensuring that laws of overriding national importance are respected everywhere in Canada. Among laws of overriding national importance are those concerning the criminal law, laws protecting health and safety, laws responding to emergencies, and Canada's international obligations.
It is in the interest of First Nations and their citizens, as well as all Canadians, that the expectations of all parties clearly reflect that laws of overriding national importance apply to self-government communities as well. This extensive and inclusive power in relation to peace, order, and good government set out in clause 8 of this bill is effectively an invitation to legislate generally on matters relating to Canadian sovereignty, as well as to pass legislation that could lead to conflicts with provinces and, consequently, extensive litigation.
As you are aware, since our last appearance before this committee, the Supreme Court has decided the Delgamuukw case. I would like to close by mentioning two aspects of that case, which we believe are pertinent to your consideration of Bill S-14.
First, the bill, through clause 16, would include First Nation lands over which they could exercise jurisdiction, as those lands are referred to in section 91.24 of the Constitution Act. The Supreme Court of Canada has indicated in the Delgamuukw decision that aboriginal title lands are 91.24 lands. The bill would therefore transfer absolute ownership of aboriginal title lands and establish First Nation law-making jurisdiction over aboriginal title lands. However, where they do exist, these aboriginal title lands are unknown in extent. This would be a cause for significant confusion and potential litigation if a First Nation came under the new regime with a claim for aboriginal title outside of existing reserve lands.
Finally, I note how the Supreme Court concluded its reasons for its decision in Delgamuukw. The court admonished First Nations and governments to negotiate not only to resolve differences but also by necessary implication to ensure future success and harmony in our arrangements for governing ourselves. The court noted that we are all here to stay. In other words, we should all work together in the best interests of First Nations, in particular, and of Canadians in general.
Mr. DeWare and I will now be pleased to answer your questions.
Senator Tkachuk: Does the Department of Indian Affairs support in principle Bill S-14?
Mr. Dewar: We believe that there is no "one size fits all" approach to self-government. A variety of vehicles can be used to move towards or into self-government arrangements. We have outlined a number of our concerns with Bill S-14 as it is currently drafted.
We think that there are models and agreements coming forward that would address some of our identified concerns. Some of them are the need to address fiscal arrangements and an implementation plan. We have new examples of ways to address the application of laws. You will see in the Nisga'a agreement some good models, which might improve the current bill. We are concerned about some of the problems that would be inherent in that particular bill as it stands now.
Senator St. Germain: Does the government support in principle this enabling type of legislation? The instigator of the legislation, originally Chief Walter Twinn, wished to bring it forward to mitigate costs and make it more affordable for many native tribes and nations that could not afford to go through this process.
Mr. Dewar: We are interested in coming up with models that could form the basis of recognition instruments, or a model of arrangements for First Nations to use. It would make it easier. As I mentioned, we are starting work with DFN on the concept of a national recognition instrument but we are interested in other models.
We are concerned about groups who wish to take up self-government on a progressive basis, that they would need to come back for separate legislative amendments when a new jurisdiction or sectoral arrangement is recognized.
Senator Tkachuk: How does Bill S-14 preclude all that?
Mr. Dewar: We do not see Bill S-14 as precluding that.
Senator Tkachuk: Let us say that Bill S-14 becomes law. How does it preclude any of the statements you have made as far as other arrangements or models? How does Bill S-14 preclude any of it?
Mr. Dewar: Bill S-14 would not preclude other models of self-government from being negotiated with other groups. We have raised some concerns with Bill S-14. If you had groups opting into self-government in the manner that Bill S-14 is currently laid out, we feel that there would be problems with implementing those types of arrangements, problems in relation to the application of laws and problems in relation to the fact that you do not have in advance an implementation arrangement or a financial arrangement that clearly sets out the parties' expectations.
Senator Tkachuk: Do you not think that before a reserve would take action to come under this act that they would do all that?
Mr. Dewar: I would certainly hope that a reserve or a community making those types of changes to fundamentally change their relationship with the Government of Canada or provincial governments would look at those issues.
One of the messages that I was attempting to give in my presentation is that self-government is not just about an alternate jurisdictional framework to the Indian Act. It is about establishing a relationship. When you move into a new relationship, both parties are affected by that and should do some planning as to how that transition will occur.
As you look at the legislation, I would encourage you to look at the issues related to implementation and financing arrangements and what would be the mechanism or the trigger under which you would move from one relationship into another.
Senator Tkachuk: You mentioned "relationship." What is the fiduciary obligation of the Department of Indian and Northern Affairs and the Government of Canada to the Indians?
Mr. Dewar: The Crown has a fiduciary relationship with First Nations and aboriginal peoples. The specific fiduciary duties we have vary and depend on particular circumstances. It differs, depending on the type of arrangement you are in.
Senator Tkachuk: If you have a fiduciary relationship, is it with the bands or the chiefs? Do you not have that? Is that not what it is? What is it exactly?
Mr. Cracower: In response to the question of fiduciary obligations, that issue would need to address the particular subject matter if you are talking about land in a particular community and our relationship with that community. However, I believe that we are focusing not so much on the relationship in that context as on the ultimate result of implementing legislation of this nature in terms of the constitutional issues that could arise and other legal issues that could frustrate effective implementation.
If I may respond to your earlier question about enabling legislation, I do not believe the Crown is opposed whatsoever to enabling legislation as such; it is a question of having effective legislation.
Senator Tkachuk: To whom is this fiduciary obligation owed?
Mr. Cracower: It is owed to the community at large, to the aboriginal people.
Senator Tkachuk: The ones on the treaty?
Mr. Cracower: There are treaty obligations with regards to the treaty.
Senator Tkachuk: We have a bill in front of us that relates to Indian self-government, Bill S-14. It seems to me that there would be an obligation upon the department and the government that the fiduciary relationship that we have applies not only to the executive but also to the Senate and Parliament. We have an obligation to ensure that we try to assist this process to happen rather than resist the process from happening.
In other words, I have a bill in front of the Senate. We have some obligation to recognize the inherent right of self- government. You, as an executive, have an obligation to assist in that process. This bill has been around for a number of years. How have you helped this process move along?
Mr. Dewar: We appeared before the committee before and identified a number of concerns that we felt should be addressed to improve upon that bill. I come in here today to identify concerns, not to be an obstructionist. A number of agreements that are being negotiated today provide constructive models for addressing some of those issues and avoiding what we see as some of the potential problems in implementing Bill S-14 as it currently stands. I do not put that forward in a spirit of opposition.
Senator Tkachuk: I understand that.
At one time this bill was proposed and there is evidence to suggest that it was given cabinet approval in October 1991. Then we have had this bill, which is not dissimilar from the one dealing with Sechelt or some of the other Indian self-government bills that have been dealt with.
It certainly does not have the same ramifications as the Yukon bill, which was dealt with in the House of Commons and in the Senate in way too short a time period. Why is there a reluctance to deal with this issue with those nine bands?
Mr. Dewar: We have had processes for groups to be involved in self-government negotiations. They can apply to become involved in self-government negotiations.
Senator Tkachuk: They have written. They have talked to the minister. Do you have evidence to suggest that you have sent letters stating that this is a process to which you would attend and that this could happen? The regional council asked that this process start before the bill came forward. I understand that that request was refused. The minister refused to deal with it.
Mr. Dewar: I am not aware of the circumstances of any particular request.
In relation to the cabinet approval issue in 1991, we know that the Sawridge First Nation has begun legal action in relation to its former self-government negotiations. I will decline from getting into those specifics because I am unfamiliar with them.
Senator Tkachuk: I am trying to get to the bottom of this issue. I think Minister Irwin met in March 1994 with representatives of the eight reserves. I understand that he walked out of that meeting. I want to know what the reluctance is to deal with an issue like this. This bill is not as significant as many of the bills that have been dealt with to date. The problems are not as insurmountable as some of the problems that have been dealt with by some of the other self-government bills, including the one that is presently before Parliament. It took a tremendous amount of money to negotiate. I refer to the Nisga'a bill. All of these matters are on the burner.
I am trying to understand why this one is such a problem. They have a significant population, and nine bands are interested in solving this problem.
Could you find out for us why there is a reluctance to deal with these nine bands? That would be helpful. That negotiation could have been completed years ago.
You mentioned the federal involvement in Indian education and the problems of education under section 93. You also said that under the terms of this particular bill, the Indian band will look after off-reserve education. How will Parliament account for the hundreds of millions of dollars of public money that has been spent to date on off-reserve education, including payments to agents during the residential school era?
Mr. Cracower: I was speaking about enacting laws that could govern members off reserve in the general community of the province. I am not speaking of financial assistance. That is an issue that could be administrative in nature. I am referring to the power that would be granted under this legislation to enable First Nations to establish, as I said earlier, curricula, attendance standards, the duration of the school year, as well as the duration of the school term for graduation, et cetera. Things of that kind could come in conflict with provincial jurisdiction.
Senator Tkachuk: What is the difference between now and then? You are governed by the Indian Act now.
Mr. Cracower: I am referring to off reserve.
Senator Tkachuk: They will have to negotiate this. They cannot deal off reserve. Once they get out of their territory, the provincial government is there. Do you not think that the provincial government has a powerful negotiating tool in negotiating with Indians on education? How would the Indians do something that would cause a problem off reserve? Give me an example of that, please.
Mr. Cracower: It is not so much that it is causing a problem. I can only cite the practical situation with regard to the Mi'kmaq education bill, and specifically how it was entered into. Negotiations took place with the First Nations as a community, in this case, 13 First Nations. Similar to the bill that is before you, it was an opt-in situation. It was not imposed upon any particular First Nation. In fact, not all of them have opted into the provisions.
Nevertheless, while the federal government was negotiating with the First Nations, we were also in contact with and working closely with the Government of Nova Scotia. Ultimately, we had a tripartite government that recognized to what extent First Nations could exercise jurisdiction pertaining to off-reserve education. That was limited to the support of post-secondary students. This was not only sanctioned by Parliament, it was also sanctioned by the provincial legislature. If you will, the relationship of laws issue was addressed wherein a specific authority gave the First Nations supremacy to enact laws governing education and they had supremacy in that area. Their laws would take precedence over other laws on the First Nation reserve. As far as off-reserve education, it was limited only to post-secondary student support. It avoided potential conflicts.
Essentially, that is what we are saying with regard to this bill. It is not a question of opposing the bill; it is a question of coming here, as we are, in a non-partisan way, to raise issues concerning the possible effect of its present formulation and subsequent implementation.
Senator St. Germain: Have you set out in detail the exact areas with which you are concerned as far as the legal point of view is concerned? I am not making any accusations; however, it appears that the department would sooner see this thing disappear than carry on to make it work.
A lot of money has been put into this measure. Private funds raised by both sides have been used to try to put this particular initiative together. In some cases, you are dealing with entities that are economically viable.
Have you gone through Bill S-14 in an itemized way and listed your legal concerns?
Mr. Cracower: As I indicated, it is obvious that we have reviewed Bill S-14. We are presenting today, as we have previously indicated, some of the legal concerns. There are also technical concerns that we have not addressed today. These are matters that could be easily addressed at the drafting stage.
As far as the significant issues are concerned, we have brought them to this table, yes.
Senator St. Germain: With regard to the funding aspect you raised, why would the normal funding that applies at present to native bands not apply in this case in terms of self-government negotiations?
Mr. Dewar: First Nations moving into this arrangement would continue to have access to normal funding arrangements with the department based upon normal program funding criteria. However, as you move into self-government, you inevitably take on new functions, both legislative and administrative. Inevitably, there would be certain incremental costs associated with that which the parties would need to address.
It may be that certain First Nations would have the resources themselves. However, for most First Nations there would likely be a need to address making these arrangements economically viable so that they could actually exercise the jurisdiction and deliver the programs and services that they would be assuming responsibility for under these new arrangements.
Senator St. Germain: Again, it seems as if you are saying one thing but that the department has been doing another thing in not really dealing with it. Someone commented that the minister walked out during discussions in response to that. The will must be there to make this work. This application has been made. I believe Senator Tkachuk asked you to clarify further as to whether the obstacles are real.
Are we pushing a string or pulling it? That is what I would like to know. We have gone through this piece of legislation. If there are areas that are of such major concern or that are so egregious that they should be addressed from a legal point of view, fine. However, is the will there to proceed and work towards ratification and a final draft that would be acceptable in the department's eyes?
The department still seems very paternalistic in the way it is dealing with this. It speaks of giving authority to the community but not really giving authority to the community to establish its own laws to govern native people. I am not asking you this in a mean or vicious spirit. I am asking so that we can proceed and hopefully move this piece of legislation forward in an orderly manner. The bands have indicated clearly that they are interested in proceeding with this type of legislation.
Ms Catherine MacQuarrie, Director, Aboriginal Governance Policy Directorate, Indian and Northern Affairs Canada: Honourable senators, my comments are framed with a bit of confusion. When you ask us if there is a willingness to proceed, I am not certain -- and I ask this genuinely -- whether you are making particular reference to the situation Senator Tkachuk was asking about earlier with respect to a particular group of bands wanting to proceed on that basis, or if you are referring generally to finding some kind of mechanism to implement a self- government agreement.
Senator St. Germain: Does a piece of legislation brought forward by a particular band, outside of the department's parameters, have a chance, or does it have to originate with the department, in consultation with the department? That is my question. It appears to get only so far and then it stops.
I am from British Columbia and I see what is happening there. The initiative has been taken and everything is proceeding, but there is definite involvement with the department right from the very beginning. Is there resistance because the department was not involved from the very beginning on this legislation? Has it created this stalemate that we seem to have arrived at with this bill? I think that is a fair question. I have been around this place long enough to know a little bit about how the process works.
Ms MacQuarrie: Because of the particular circumstances -- and we are facing a legal proceeding on a particular issue to which this bill is germane -- it is very difficult to answer "yes" or "no." In the approach outlined by Mr. Dewar in terms of fresh starts across the country in different situations, the department is genuinely trying to find different approaches. Mr. Dewar could probably speak more specifically to one table where we are looking at a framework type of legislation under which, over a period of time once the legislation had passed, the particular First Nation would be able to incrementally take up jurisdictions.
The general answer is that, yes, we are willing to look at a variety of different arrangements. Certainly we will take a look at those proposed by the First Nation and work with them in an open and frank manner to find out what will work. We want, as well, to be frank about some of the legal challenges we face with regard to the relationship of laws and the application of the Charter.
Senator Tkachuk: We talked about administrative and financial responsibilities -- in other words, all of these things that one would normally do in negotiation. I do not know what you are trying to tell me or what you are trying to tell the Indian people. If this piece of legislation existed or were slightly amended to meet some of these concerns, are you trying to tell me that Indian people on a reserve in Sawridge or any one of the other eight bands will leap into a self-government bill without organizing that, and that white men will have to do that for them? Are you trying to tell me that they will not figure this out for themselves? Are you saying that they will not follow the same procedure as normal people do when they organize into cities, towns or villages. What if natives in Banff, Alberta, decide they want self-government, and they have a referendum and then do all the negotiations? Why would Indian people need the department involved in dealing with the provincial government on educational matters? Why would they need the Department of Indian Affairs?
I do not understand the paternalism here. I either have something wrong or else I totally misunderstand you. You want to do all of this for them. As I said in the Senate, they are not our burden. We have a fiduciary obligation to provide an instrument for self-government. We have an instrument in front of us that we should all be diligently pushing forward. The Indian people will figure this out. They will decide all these issues, will they not? They will not jump into this. They will not have a referendum without thinking this thing through. They will not get up in the morning one day and say, "We need a referendum on this self-government bill, and after that we will decide." Will they not talk to people about all of these matters beforehand? Can we not let them do that on their own, for God's sake? Why are we involved?
Mr. Dewar: I do not think I am suggesting a paternalistic approach. We are saying that we are prepared and interested in entering into new arrangements that will overcome the history of the Indian Act and move into new self-government arrangements. We are interested in working with aboriginal groups to negotiate instruments that will make that possible and viable to implement.
We have over 80 negotiation processes going on across the country where we are engaged in doing just that. These are not instruments of paternalism where we are trying to dictate. Parties are coming forward with their respective proposals and interests, and we are working toward solutions. We feel we are achieving success at a number of those tables in terms of approaches and instruments.
This is not an issue of paternalism where we have to do it all. As I said before, it is about entering into a new relationship. There are at least two parties in that relationship -- three, constitutionally, with the provinces -- and it is fair for all the parties to set out their expectations as to how that new arrangement will work.
Senator Tkachuk: Nine bands -- if we take what you say at face value -- want to develop a self-government relationship.
We then approach the minister. The minister, from what they tell me and what I know, was not interested in this particular group, although they had provided a model. They then interested a senator like me in proposing the bill in the Senate because they could not deal with the government. Let us think about this. I became involved. I learned a lot. I then moved the bill on to the Senate, I believe, five years ago in 1994.
The Department of Indian Affairs, the minister and the government know that these nine bands want to develop a self-government relationship and have self-government on their reserves. They know that. Yet I have never heard from them. No letter has ever been sent to me saying, "Senator Tkachuk, we can do this directly. You do not need to do this." Nor has any letter been sent to the nine bands saying, "You guys have done a lot of work and have come a long way. Let us talk and finish this relationship up and sign an agreement."
All the work was basically done. The bands did it all on their own. I do not understand this.
First, you tell me you want this done. You say you want models. You have an obligation but you have not provided one model that I have ever seen, except individual models for certain individual bands. There has been no model for self-government over all the years we have been talking about it and that has been a long time.
The Chairman: Senator Tkachuk, you are going too far off the topic here.
Senator Tkachuk: I want to know why this question has not been dealt with by the Department of Indian Affairs and the Government of Canada. Why has there been no response to me or to the nine Indian bands?
That is a fair question, is it not, Mr. Chairman?
The Chairman: The question is fine as long as you do not lecture the witnesses.
Senator Tkachuk: That is the old teacher in me coming out. If I lectured the witnesses, I apologize.
Could I have an answer to that question?
Mr. Dewar: As I said earlier, I am not familiar with the circumstances around the requests of those First Nations to either negotiate or move this particular self-government initiative forward. It is something on which I would need further information.
Senator Gill: Just on the question of jurisdiction, it seems that the situation has evolved over the past 20 or 30 years. Is it clearer now that the federal government has jurisdiction over those Inuit and status Indians?
Mr. Al Broughton, Senior Counsel, Indian and Northern Affairs Canada: The simple answer is yes. Parliament has jurisdiction under section 91.24 for Indians and lands reserved for Indians. That generally includes the Inuit.
Senator Gill: What about the education of those people? Is that the same thing? Does the federal government have jurisdiction over the education of the Indian and the Inuit peoples? I am talking about education but it could be any area.
Mr. Cracower: With respect to education, as I was attempting to point out earlier, there is jurisdiction under section 91.24, which you are referencing, but as I also referenced, section 93 of the Constitution provides the provinces with exclusive legislative authority with regard to education. Consequently, one could argue that it is concurrent jurisdiction. This is why we emphasize the importance of working in close cooperation with the provinces to ensure that there is not a jurisdictional problem as a result of implementing legislation of this nature without addressing that issue.
Senator Gill: Some time ago, the provincial government was using that to stop the Department of Indian Affairs from making agreements directly with the Indian people. The provincial government says that this is their jurisdiction and that the federal government must go to them before doing anything about Indian people's education.
I imagine that has not changed much so far. Jurisdiction is very important. We talk about devolution and self-government, but this has an impact on people living off reserve.
At present, some exercises try to cover the Métis, the off-reserve Indians and the Inuit people. Unless we can clarify this question of jurisdiction on people and on activities affecting those people, they will be affected. That is very important.
Mr. Dewar: That issue of jurisdiction is generally one of the major hurdles we faced in implementing self-government. We want a scenario that recognizes that First Nations have the jurisdiction in relation to their citizens, at least on reserve, and, in some cases, off reserve.
There is no unanimity on the scope of section 91.24 and the federal powers under that section. Some provinces might be very happy to have the federal government exercise that power under section 91.24 very broadly and legislate for First Nations in a broad range of areas. Other provincial governments might feel that to do so would infringe upon the jurisdiction of the province and they would therefore oppose those arrangements.
We went through years of trying to come up with revised constitutional arrangements that would recognize self-government. We know the problems we encountered there. That is why, when the inherent rights policy was announced in 1995, we focused not on setting aside the constitutional debate over what is contained in sections 91.24 and 92, but instead on practical arrangements where all parties -- the First Nations, the federal and provincial governments -- agree on who has the law-making power and on which law would be paramount if there were conflicts between their laws.
Those types of arrangements are seen in some agreements. For example, in Nisga'a, the First Nation has discretion over education on Nisga'a lands. Their laws prevail in the event of a conflict with federal or provincial laws. All three parties have agreed, so we know that there will not be a legal or constitutional challenge. That is what we are seeking to achieve in the self-government negotiations. Because of these sensitivities, it is important that the provincial governments, where possible and where they are willing, should also be party to the arrangements.
Senator Gill: This devolution probably varies from one region to the next, but what would be the percentage of the devolution in reference to budgets? The budgets used to be managed by the Department of Indian Affairs. What percentage is now managed by the First Nations themselves?
Mr. Dewar: My understanding is that approximately 80 per cent of the department's program budget is now directly administered by First Nations delivering the programs rather than by the department's personnel.
Senator Gill: I imagine then that the people have shown that they are able to manage themselves. There is a lot of caution here, but the people have proved themselves. Of course, there are bad managers, but in general, the people are able to manage themselves. Sometimes it seems that we are over-cautious, trying to avoid all mistakes. That is my comment on that aspect.
Although we have reached this level of management with the aboriginal people, we are still having problems meeting their needs. The Department of Indian and Northern Affairs must meet the needs of the people it is supposed to serve, and it must be authorized by someone to do so. I am referring to the Minister of Indian and Northern Affairs, Parliament, and various other institutions. How can we practically evaluate whether you are performing well? The recipients are telling you nothing.
What would you recommend for the future to ensure that the people are satisfied and that we do not repeat the mistakes of the past?
Mr. Dewar: I could not agree with you more. Devolution has resulted in the building of a strong administrative capacity in many First Nation communities, but there is a need to take the next step, namely, to support the building of governance capacity. Some communities have it; other communities still need work in that area.
The Indian Act bands have essentially atrophied the development of governance systems. They were designed generally for the administration of local matters. Some First Nations have clearly outgrown those governance arrangements. Often, when we devolved programs, we built administrative capacity but not governance capacity. We did not modernize the electoral rules and the accountability regimes of those governments. We did not encourage the First Nations to redesign their governments, building in their traditional systems of accountability.
The reason we believe self-government is so important is because those governments need to be accountable to their people. It is their people who decide whether the programs and services are being delivered appropriately and are meeting their needs, and they can hold their own governments accountable. That is clearly a direction we want to support.
Senator Gill: Would you be more comfortable answering to a corporation rather than the department? With devolution, most of the programs will eventually be managed by the aboriginal people.
Senator Pearson: My understanding of "fiduciary" is that the federal government has responsibility to all aboriginal people regardless of whether they are members of band councils. Is that the correct meaning of the concept?
Mr. Broughton: It is clear that the fiduciary relationship is between the federal government and all aboriginal peoples. As we discussed before, fiduciary obligations are a little different, but the fiduciary relationship is with the aboriginal people.
Senator Pearson: In the discussions that we have had in this committee about aboriginal governance we have heard from people who talked about accountability, democracy and equality. I have some concerns with the details of Bill S-14 respecting the accountability issue, as well as some other issues, because certain issues are tied together.
Am I correct that clause 19(1) of Bill S-14 allows the First Nation that opts into this regime to sell or mortgage some of their lands, and that the surrender provisions of the Indian Act would no longer apply?
Mr. Dewar: Yes.
The Chairman: Is that a clear interpretation? Is the answer a definitive "yes"?
Senator Pearson: It states that they would have "...full and exclusive power to dispose of and encumber any of its lands and any rights or interests therein..." et cetera. You told us that you understand that to mean that, once they have opted in, they would have the power to mortgage, encumber, sell or otherwise dispose of their lands.
Then it says "...the First Nation may not exercise any of those powers except in conformity with the Constitution and laws of the First Nation." The Constitution, as I understand it, as set out in Schedule I on page 23, is to be formed by the electors. And "elector" is a person who lives on the land and is 21 years of age or over. I have already expressed my concern about the necessity of being 21.
We heard from witnesses that certain people who became members, particularly under Bill S-31, will not be electors. Have I understood that correctly?
Mr. Broughton: I cannot speak to the specifics of membership of any First Nation. Under the Indian Act, First Nations may or may not control their own membership. If they do control their own membership, the federal government has no say in it. If a First Nation has not taken up that degree of control, then membership in the First Nation equates to registration under the Indian Act, and then there is control.
The simple answer to your question is that even the description of residency in paragraph (a) of the definition of "elector" would very likely exclude some members of the First Nation.
Senator Pearson: I do not think people will have a say in how property that should belong to them will be disposed of, because they will not be considered electors, and that bothers me.
Senator Tkachuk: Could you explain clauses 4(2)(a) and (b)?
Mr. Broughton: I am not sure that I can give you a precise interpretation. I think the provision means that for the purposes of voting on the proposal -- that is, voting on whether or not the First Nations are opting into the operation of this bill -- those who are entitled to vote would include persons who are entitled to vote for the governing body of that community. Under the Indian Act that would mean the band council, I presume.
Paragraph (b) adds that persons would also be eligible if they were recognized by a majority of those referred to in paragraph (a). That is my understanding, but I am not sure that this is the best time and place to give a precise interpretation to provisions in the bill.
Senator Tkachuk: I understand. I thought it would be a good idea if you could read it and then give us some answers.
Senator Pearson: Perhaps the witnesses can return later and give us some clarification on this. I have been looking back and forth at the various pieces of the bill. It seems to me that the threshold is not high enough for the disposal of property or goods that belong to the First Nations. Some people will be disadvantaged and not have any say. I am not sure. If you cannot do it now, I should like you to look at it and return to this matter later.
Mr. Dewar: Ensuring that the transition from the current regime to a new regime occurs in a way that has legitimacy for all the people affected by it is a significant challenge for both the First Nations and the federal government. The ratification process for moving from one regime to another can impact on people's rights or entitlement in relation to reserve lands or assets, to their political rights within the collectivity, or even to their membership in the collectivity, depending on how the arrangements are designed -- and I am not speaking to this bill in particular.
That approval process is an important key to transiting from one regime into a new self-government regime. It is fraught with challenges for First Nations, who must deal with the legacy of an Indian Act and Indian Act membership rules, with the effects of Bill C-31, and with differences within the community as to who are legitimate members and who should have a say in certain processes. It is also fraught with challenges for Canada. We know that there are court cases pending looking at the rights of off-reserve citizens. There are also the Charter issues concerning whether you have dealt fairly with all of the citizens affected by the arrangement or whether some have been discriminated against.
There are no easy solutions. We must work them out in many processes. It is a real challenge for both sides in the discussion.
Senator Pearson: That has certainly been made clear to us by the witnesses who have come before us.
In clauses 19 to 26, regarding accountability, the word "elector" is the key. You can see the books if you are an elector, but you cannot do so if you are just a band member. Those are my concerns. I am concerned about being responsive to the rights of all of the people involved.
Senator Chalifoux: I have asked myself this question many times when dealing with self-government. If this bill is passed, will it give the Department of Indian Affairs the opportunity to opt out of any program funding or any funding? Does it relinquish their responsibility as far as financial arrangements are concerned? Also, what effect will this bill have on the programming and financial situation of the people in the communities?
Mr. Dewar: Frankly, I am not aware that we have done the analysis to answer that question. I thought that First Nations would continue to have access to federal programming but we have not done the analysis to give you a definitive answer on whether it would affect eligibility for certain programs.
Senator Chalifoux: In other words, even if they opt out of the Indian Act, they would still be under the jurisdiction of Indian Affairs for their programming. Is that what you are saying?
Mr. Dewar: Most of our program funding does not flow as a result of specific provisions of the Indian Act. We have programming under which we provide funding for various services. That is provided to First Nations who are Indian Act bands. I am not sure whether a band moving into this new arrangement would be eligible or whether we would have to change our program criteria.
Senator Chalifoux: Under the Indian Act, the government is responsible for education, for looking after medical services, for looking after everything that is needed on a reserve. If bands opt out of the Indian Act, that will effectively prevent them from accessing those services because that is in the act. If they opt out, what will happen?
Mr. Dewar: That is why we feel it would be beneficial for all parties to clarify what the funding arrangements would be for the new relationship. It should be made clear in advance to what extent the federal government must make changes to its rules to support those.
Mr. Cracower: If I may add to that, is the dispersion of funds a policy decision or a legal obligation? For example, if there is a treaty right, then ensuing from that would be an obligation for us to continue to make provision for whatever that addressed. That should be looked at on a case-by-case basis.
Senator Chalifoux: Would you then have to include the treaties with the First Nations?
Mr. Cracower: Perhaps.
Senator Chalifoux: I have a granddaughter who was born into band in Hobbema. Because her mother died and she was not living on the reserve -- she was living with me -- I was not allowed to access any education funding for her even in her primary years.
It looks like the Department of Indian Affairs has chosen to begin the devolution of their obligation to the First Nations. Would passing this bill verify that?
Senator Adams: Is anything included in Bill S-14 for those nine bands in the future if this is settled? What will happen? Those people may have oil, gas and maybe a forestry industry. I do not know about mining. What if they settle and all of a sudden they have no more economy? If they drop the treaty, will they just become Canadian citizens? Sometimes the oil and gas reserves go dry. If nothing else comes into those communities, there will be nothing for them in the future. They will still own the land, but what will happen to them?
Nunavut may be a little different. If the mining industry establishes a foothold up there, that would be good for the economy.
I do not know exactly how big the property is for those nine bands, but what will happen in 50 years or 100 years from now? The economy may be growing, but what will happen if it dries up?
Mr. Dewar: I may have used the word "sustainable" often in my presentation. That is merely a habit of repetition. However, part of coming to self-government is coming to a new fiscal relationship. Many First Nations have said that before they take on the jurisdiction and with it the responsibility to deliver the programs and services, they want to change the existing type of funding arrangements. They want assurances that they will have, over time, resources to provide programs and services to their citizens comparable to those that other Canadians receive. That holds true. They want that assurance in good times and in bad times. If they have their own resources, they will apply them to the betterment of their people. However, they also want assurances that if they are out of the Indian Act arrangement and they have taken on the responsibilities for the delivery of services to their citizens, they can count on federal or provincial transfers in bad times to enable them to provide comparable programs and services.
When you look at the national fiscal table and the arrangements in the self-government agreement that initially came forward, you find the type of equalization language that one finds in federal-provincial arrangements starting to appear, such as assurances of negotiating transfers to enable the provision of programs and services. That is how we are seeking to address that question in the arrangements we are now receiving.
Senator Andreychuk: My questions relate to the way we normally operate in the Senate when bills come through from the other House. With respect to Bill S-14, I do not want to know the policy considerations or how to approach them. I want the government's position on whether this bill is constitutional. If not, which clauses are not constitutional? Does the Charter of Rights and Freedoms apply? If not, I should like to know why. I should also like to know what other clauses in here you may or may not think are legally constitutional. Rather than policy issues, I want to know the practical points of view. Whether the bill initiates in the House of Commons or in the Senate, will it comply with our laws? While I heard that those things trouble the government, I should like a legal opinion from the government's point of view as to whether this bill complies with the Constitution.
Second, I should like to know whether there are issues in this act that you think are administratively unworkable, not that they have not been negotiated or thought out, but whether you think they are unworkable. For example, in the Nunavut Act, if there are some things that have not been negotiated but that you think can be workable given time, then the implementation date should be delayed to allow for the period of implementation. Otherwise, we are left having to rely on our own legal judgments, and I am not sure I want to do that. I want to know from the government's point of view whether the bill passes the test or whether it could be challenged.
This was to be a generic piece of legislation, but it seems that we are really talking about nine bands. To what extent does this bill conflict with the customary law of the nine bands or with the Indian Act on which we have been relying? What are the benefits and advantages?
There are a number of approaches, but I do not see a systematic approach given what I have heard from you today. I would appreciate first the legal point of view and then the administrative point of view.
My final question is this: Do you believe this bills relates to devolution or to delegation? Does it devolve powers, and that will be a self-government model, or does it delegate authorities that now are exercised by the federal government? I recall Ms Twinn, in one of her earlier submissions, stating that this was not a full self-government bill and that it allowed the Indian bands to do things for themselves without reference to the Indian Act. They wanted those powers delegated. There was some discussion about them exercising powers similar to a municipality, yet I see things here that are more than delegation: they are devolution.
I do not know if you can answer any of that today. I am looking for a clause-by-clause scrutiny of this bill.
Mr. Cracower: We can offer comments. I am not certain if we have the capacity, as lawyers from the Department of Justice, to provide an opinion. This is a technical matter.
Senator Andreychuk: If you do not offer an opinion, then on what basis can you challenge some of the assumptions? You have some difficulties with the bill. On what basis are you doing this if you do not have the capacity to analyze it?
Mr. Cracower: With regard to the mandate given to the Department of Justice as it relates to the Department of Justice Act and whether we have the capacity to do so, I am not suggesting that we would not do so if, in fact, we were capable of doing so.
Senator Andreychuk: Do you know whether the Department of Justice has done so? I look to the government, but all of a sudden you are coming at me from a departmental point of view. Does that mean we have to call the Minister of Justice and ask for the kind of analysis that we normally get bill by bill so that we can be assured that it complies with the Charter of Rights of Freedoms and complies with the fiduciary responsibilities, et cetera?
Mr. Broughton: I would answer that in two ways. First, I do not think that we are capable of doing that here today, on the spot. Second, Mr. Cracower was saying that, normally, our department does not offer its opinions to parliamentary committees. That is problematic for us.
Senator Andreychuk: If this bill were passed as is, what then would you question in it? Can I sum it up by saying that some of the implementation has not been negotiated and so you would be starting after the bill is in effect to determine what it means to you in implementation? Is that the sum total?
Mr. Cracower: I referred earlier to some of the legal concerns regarding the relationship of law and the issues of national importance such as the peace, order and good governance provision. Those issues are troubling to us in terms of certainty and effect. If implemented, would there be legal challenges?
Senator Andreychuk: Yet you cannot tell me today whether or not there would be legal challenges. The government passed the Millennium Fund but the provinces objected that they had not discussed it nor negotiated it. The negotiations had to take place afterwards. One could argue whether that is a desirable way of going; nonetheless, no one has questioned that the act was valid.
You are saying that, in this case, it would be desirable to negotiate out some of those questions. I agree with you that perhaps it would be better to know those things ahead of time, but does that diminish the credibility of the act or its ability to stand on its own?
Mr. Cracower: I cannot give you an answer other than to say that Parliament reigns supreme and it can enact legislation as it chooses. The question of whether it is constitutionally sound is another issue.
Senator Andreychuk: That is what I want to know. Is it constitutionally sound? Are the things that I care about in the Constitution protected in this act? I am looking for that advice. You are saying that that is beyond your capacity.
I will sum up what you are saying. You would have preferred a negotiated way of looking at these things rather than an imposition by an act of Parliament. It would make your life better and you think it would be a more certain way for aboriginal and non-aboriginal people. That leads me to think that we need the minister. I know Mr. Irwin and I know some of the trails that he has left in negotiations. I should like to know if the current minister's position is the same as Mr. Irwin's. Is she prepared to sit down and negotiate some of those questions using this as a framework document?
I guess I have answered my own questions.
Senator Tkachuk: I have specific questions on some of the reservations put forward in the initial presentation. You can answer them now or by letter later; it does not matter.
There was concern about extraterritorial powers and administrative jurisdiction, for example in health and education programming. How have you resolved the situation with the Sechelt or the Yukon? I believe both have extraterritorial reach and have made administrative arrangements for education, health care and all those other things, have they not? I would add the Indian Act into that same question.
Mr. Dewar: I am not familiar with the details of how the extraterritorial issue was handled in those agreements. I will come back you to with a more specific response.
With regard to Sechelt off-reserve, I know the province looked at arrangements for the Sechelt municipal district over and beyond the Indian band. There was coordination there.
The Yukon self-government agreements, which do provide jurisdiction over First Nation members within the Yukon, are not very far down the road yet in terms of implementation. There are issues of protocols between First Nations and protocols with the territorial government on how to make that a workable system.
Again, I am not sufficiently familiar with the details to respond to your question today, so we will respond in writing.
Senator Tkachuk: The other concern involves, in particular, jurisdictional laws that may cause conflict with the provinces on the reserves. Did the department consult the provinces when it changed the Indian Act in 1985 to broaden the jurisdiction of Indian bands to pass laws in provincial areas? Did that cause many problems? Were there consultations?
Mr. Broughton: I am not aware that it consulted, but I am not conversant with that process. I am also not aware of whether the Indian Act included extraterritorial application of laws in its ambit.
Senator Tkachuk: The Indian Act was changed in 1985 to broaden the jurisdiction of Indian bands to pass laws in provincial areas. The provinces were not consulted. I may be wrong and that is why I am asking.
Mr. Broughton: I am not aware that they did.
Senator Tkachuk: Were there not many problems because they did not consult? When they pass those laws, are Indian bands able to resolve issues with the provinces?
Mr. Broughton: I am not familiar with what has gone on in that regard.
Senator Tkachuk: Regarding the issue of self-government, we heard witnesses from the Native Council of Canada on February 10, 1999. Mr. Richard Long testified specifically against Bill S-14. Indeed, he spent most of his time dealing with Bill S-14. He mentioned that they had raised money to fight the Twinns in the amount of $418,000. I believe they are funded by the Department of Indian Affairs, are they not? They were from Alberta, I think, and represented the Native Council of Canada. Could you tell me how much funding they received?
Mr. Dewar: I am not aware that we fund the Native Council of Canada. I think that is done through Heritage Canada and, to some degree, through the Privy Council. I am really not aware.
Senator Tkachuk: The federal government funds them.
Mr. Dewar: Do you want to know to what extent the federal government funds the Native Council of Canada?
Senator Tkachuk: Yes, as well as who they represent. Who are their members and how many do they have?
One of the concerns you raised was with regard to the provinces and the federal government, that is, the law-making jurisdictions. You tell us that those issues have not been resolved. Could you tell us how this compares with the relationship in the Yukon between law-making jurisdictions? Can you give us an overview of the Yukon Act in this area? How does the Yukon Act deal with this matter? Is it not almost exactly the same as Bill S-14?
Mr. Dewar: I cannot respond in detail to all the issues in the Yukon Act; however, I will give a general response and, perhaps, follow up with more specifics.
From what I do understand, the self-government legislation sets out certain jurisdictions; by that I mean law-making powers for First Nation governments under a number of headings. It makes some provision with regard to resolving conflict and paramountcy of laws. However, it leaves some issues to be further negotiated. That has not been finalized in all cases.
With respect to territorial laws, my understanding is that, when a First Nation passes a law, the territorial law will cease to have effect or application to the First Nation. That is to say, they will come under the First Nation law rather than the territorial law. That arrangement was negotiated in the context of a tripartite agreement involving the territorial government. All parties agreed that those were the rules by which they were prepared to operate. They looked at the consequences of doing that.
Senator Tkachuk: Perhaps you could come up with some proposed amendments to the bill, which would make it more palatable considering that you have certain objections to it. That would be helpful to us.
Programs and services are of concern. Could you provide us with a breakdown of certain programs and services that are now provided by the federal government, breaking them into two areas, that is, those based on policy and those based on treaty obligations?
With regard to education, could you break down the federal moneys flowing to on-reserve and off-reserve Indians, comparing the aggregate funding? My opinion is that we probably spend more money for the education of off-reserve Indians than we do for those on reserve.
Mr. Cracower: I make reference to what I said earlier to Senator Andreychuk in response to whether or not we are capable of providing you with the formulation of provisions in a modified way. If we have the capacity, we will certainly be responsive.
Senator St. Germain: Is there anything we should be doing that would put us in a more favourable position in terms of having you do that? Should we be requesting the presence of the minister? My question is the same as Senator Andreychuk's and Senator Tkachuk's last question. What do we have to do in the event that your department just cannot do it on its own? Can you give us some direction as to what you would like to see done that would facilitate your department doing what we are requesting it to do?
Mr. Dewar: We have had a number of questions here today seeking follow-up on various matters. We have taken some notes of those questions. This is my first time before a committee. I am not sure what the protocol is on follow up with regard to these matters. What is the normal format for doing a follow up on this?
The Chairman: I believe that the Department of Justice does not provide legal opinions or advice on non-government bills. You can communicate with the law clerk in the Senate and send the responses to the clerk of our committee. I think that is the procedure you have to follow.
Senator Andreychuk: We know what the past practices have been. I understand why departments of government do not want to give opinions on bills that they do not initiate. I think we are in a bit of a dilemma here. If they answer us by saying that, no, we have a policy and this is it, we will have to abide by it. I would like someone to take up a discussion in the department and then report back to us saying that, no, it is still the case that Justice, and therefore by implication other departments, will not critique non-government bills for us.
Senator Chalifoux: Clause 30 relates to the Canadian Human Rights Act. It states, in part:
The Canadian Human Rights Act does not apply in respect of anything done under this Act.
Will you please review that provision to see if it is against the law? After all, we are all Canadian citizens. I know at this moment, under the Indian Act, they do not apply. That is a form of discrimination that should be addressed.
Clause 32.(1) states:
Except as otherwise provided in this Act, the provisions of the Indian Act or any other act specifically applicable to Indians or any band, tribe or nation of Indians, and the regulations made thereunder, do not apply to the First Nation, its citizens, lands, moneys or assets.
Is that clause saying that the Department of Indian Affairs does not need to provide them any funding?
I do not expect an answer right now, but I should like you to review that and bring back an answer to the clerk, who will impart it to us.
Senator Tkachuk: To add to that, the Canadian Human Rights Act does not apply in respect of anything done under this proposed act because presently it is in the Indian Act. However, if it were ever the wish of the Government of Canada to change the Indian Act to reflect that First Nations would fall under the Charter of Rights, it would be simple to change this part of this bill as well.
Senator St. Germain: Am I correct that the Department of Justice and DIAND will report to our clerk on whether they can propose amendments to make this bill conform constitutionally and legally?
Senator Tkachuk: We do not have a constitutional problem, nor do we have a legal problem. You just do not like certain parts of the bill.
Senator St. Germain: That is not what they said.
Senator Tkachuk: I have heard testimony from them before and they have never referred to a constitutional problem.
Senator Mahovlich: The part to which Senator Chalifoux referred might be unconstitutional.
Senator Tkachuk: It is currently under the Indian Act.
Senator Mahovlich: We are challenging that, too.
Senator Tkachuk: That would automatically change this. This is a proposed act of Parliament. It is not something that cannot be changed by Parliament at any time. If it were changed in the Indian Act, it would be changed here, would it not?
Mr. Cracower: You have posed a number of questions. Perhaps I could reiterate that my comments essentially highlighted, in part, the comments that my colleague made here two years ago. In essence, we indicated that there are problems, and they may very well be constitutional in nature, which means that they could be legally challenged as being ultra vires perhaps.
Senator Tkachuk: Any law can be legally challenged. You cannot give assurance that a law cannot be legally challenged in some way or another.
Mr. Cracower: I thought you indicated that it was a policy issue on our part that enabled us to come before you and raise certain concerns. I am saying that it goes beyond policy.
The Chairman: I understand that the witnesses are not certain of their responsibility in terms of providing the information requested. They will be appearing before us again to give us that answer. We may have to ask the departments of Indian and Northern Affairs and Justice to come back and clarify certain questions that have not been clearly answered.
Our clerk will be communicating with you and will be prepared to receive any written information you may have, if you do not take the position that it is not your responsibility. Another recourse would be to have our legal personnel within the Senate examine the questions that were raised by senators.
Senator Pearson: We could call a constitutional scholar as a witness.
The Chairman: Yes. I am wondering whether it will be necessary to hear again from the witnesses we heard two or three weeks ago, or should we concentrate on the Department of Justice and the Department of Indian and Northern Affairs at this time?
Senator Tkachuk: I think it is important that the proponents of the bill, of which I am one, have an opportunity to answer some of the questions raised today on a number of key issues. We will respond to those in writing. Then I would like the opportunity to answer any questions on any outstanding issues. Because it is a private member's bill, I think I should have one last kick at the cat to defend myself, and I may ask for help in doing that because I did not have a department to assist me in preparing the bill. We can proceed thereafter. There may be no outstanding issues. We may be in agreement. However, I do not want to close the door.
Senator St. Germain: For clarification, having come here and done what you have done today, which you have done well and for which I thank you, why would you not be permitted to prepare recommended amendments to the bill as it is presently drafted?
The Chairman: Senators, why do we not leave that for a later date. I do not think we will be getting any more answers than we have already received. I do not think the Department of Justice or the Department of Indian and Northern Affairs are obliged to answer some of the questions that are being raised. Let us allow them to take back the very important questions which have been raised. They must be dealt with. At this time, I am not too sure of what the responsibility of the witnesses is in terms of responding to this committee. I am hearing from our resource people that they cannot respond directly, that they have to go through the proper channels. If that is the case, why not allow them to take our questions and return to us.
Senator Tkachuk: I agree. The Crown has an obligation to act honourably in these matters, and I am sure it will. We will await the answers. We will try to provide answers as well and then we can proceed to clause-by-clause study.
The committee adjourned.