Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 5 - Evidence - Meeting of March 8, 2005
OTTAWA, Tuesday, March 8, 2005
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-20, to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts, met this day at 9:29 a.m. to give consideration to the bill.
Senator Nick G. Sibbeston (Chairman) in the chair.
[Translation]
The Chairman: Welcome. I call the Senate Standing Senate Committee on Aboriginal Peoples to order. Before we begin, I would ask one of the witnesses to say a prayer. Please stand.
(Prayer in native language by Mr. Ben Whiskeyjack)
The Chairman: Thank you, Mr. Whiskeyjack. Senators, before hearing from our witnesses, we will deal with the budget of the committee. The committee has undertaken a study of Aboriginal peoples and businesses across Canada and, in particular, the elements that make for successful Aboriginal businesses. The committee has heard from various witnesses here and over the coming months will travel to the Northwest Territories, British Columbia, Alberta, Saskatchewan, Manitoba, Northern Ontario, Quebec and Eastern Canada to hear additional testimony. A motion to adopt the budget that senators have reviewed is required so that this travel is possible.
Senator St. Germain: So moved.
The Chairman: Moved by St. St. Germain, seconded by Senator Christensen.
All in favour of the motion?
Hon. Senators: Agreed.
The Chairman: Our witnesses today will help the committee in its deliberations on Bill C-20.
Mr. Large, please proceed with your presentation.
Mr. Eric J. Large, Acting Chief, Saddle Lake First Nation: Senators, I have an 11-minute presentation. First, I would like to thank you for inviting me to present on Bill C-20. I commend senators for fulfilling their role as the chamber of sound second thought of Parliament in consideration of the passage of bills that will impact on all Canadians. The proposed legislation will have considerable impact on treaty First Nations peoples in particular.
I am a councillor of the Saddle Lake First Nation. This presentation on behalf of Saddle Lake First Nation is not to be construed, interpreted or translated as consultation or consent in the passage of Bill C-20. I am here to express my treaty First Nation's concern with the intended potential impact of the Bill C-20, which I will briefly outline.
Background information is being made available to you for further study of our rationale regarding Bill C-20. Mr. Chairman, with me is Elder Ben Whiskeyjack, who has provided the background information consisting of 13 pages.
Honourable senators, this is my 16th year as leader of Saddle Lake First Nation of Northeastern Alberta, including a three-year term as chief from 1992-95. Saddle Lake Reserve No. 125 is approximately 70,000 acres of park and agricultural land located in Treaty Six Territory. There are approximately 8,500 tribal members attached to Saddle Lake First Nation who are descendants of two of our chiefs who signed Treaty No. 6 in 1876 at Fort Pitt, Saskatchewan District, Northwest Territories. By the year 1900, two other chiefs subsequently amalgamated to Saddle Lake and adhered to Treaty No. 6.
For purposes of brevity, I will refer to the four proposed institutions in Bill C-20, variously referred to as commissions, boards and an institute.
In reference to Part 2, First Nations Tax Commission, Saddle Lake First Nation does not permit any body, board or commission of any other government to determine its fiscal powers. Saddle Lake First Nation retains the authority and jurisdiction in relation to the acquisition of revenues or in fiscal arrangements with other levels of government or other entities. Saddle Lake already has a fiscal relationship with the Crown in right of Canada based on a nation-to-nation relationship reaffirmed in Treaty No. 6. This relationship is composed of our commitment to peaceful coexistence with Her Majesty's government and in the sharing of the topsoil of land with Her Majesty's settlers. In exchange, Her Majesty is obligated to share the revenue derived from the produce of the land and natural resources so that the First Nations would continue to survive unmolested.
Tax exemption, whether personal or corporate, is paramount to Saddle Lake First Nation. We cannot compete economically with huge multinational corporations. That is why we need a semblance of a level playing field. We need fiscal resources flowing from the Crown that support the development of economic, employment and business opportunities to be able to sustain our people and to contribute to Canada's social, political and economic fabric.
I am proud to inform you that Saddle Lake First Nation is making best efforts to raise the level of education, employment and economic initiatives, while providing social services and public works with limited sources of revenue.
Regarding Part 3, First Nation Financial Management Board, Saddle Lake First Nation perceives this proposed board as another multi-layered, costly bureaucracy, ostensibly created for First Nations who desire advice on best management practices. However, since this board is the creation of government, it will enable First Nations to continue as in the days of the Indian agent who controlled all aspects of First Nations people's lives, a relationship of dependency and paternalism.
The proposed management board will not serve Saddle Lake First Nations and other First Nations which already have the experience, confidence and proven track record in managing their affairs in a manner that meets or exceeds standard management practices. For example, Saddle Lake First Nation completes continuous and satisfactory reports to Indian and Northern Affairs Canada, Health Canada, and Human Resources and Skills Development Canada. Saddle Lake First Nation has management systems in place in the various service delivery programs, as well as policies and procedures that are accepted by our staff and the people of our First Nation. Saddle Lake First Nation has businesses which operate with boards and operate according to standard business protocols. Personal contact, written communication, workshops and tribal meetings serve to inform our people of our nation's affairs.
Article 39 of Part 3, ``Not agent of Her Majesty,'' is problematic to Saddle Lake First Nation, as it lacks clarity while seeming to state it has no relationship to the Crown. Bill C-20 and article 39 of Part 3 imply that Crown agents such as the Governor-in-Council, cabinet or Parliament are the creators of the board and leaves unanswered the question of to whom the board is accountable.
In Saddle Lake's estimation, Part 3 is an example of the Crown's reluctance to fulfil its treaty and constitutional obligations to the treaty people of Saddle Lake First Nation.
Finally, should a first nation need remedial management, it faces intervention through imposed co-management or third party management under article 52 and article 53. Saddle Lake First Nation's opinion is that situations requiring remediation do not need legislation, imposed management regimes or threats to get back on track.
In reference to Part 4, First Nations Finance Authority, the option will be offered to First Nations to raise their own revenues to finance their public works infrastructure. However, only First Nations with excellent credit rating and with substantial own-source revenue will qualify for the funding consortium, leaving out many First Nations who have little or no credit, land or other own-source revenue.
Saddle Lake First Nation has received information from reliable sources that investors in large bond and debenture markets do not invest in small amounts of the range of $20 million the proposed consortium may only be able to raise but that large institutional investigators seek to invest in the $200 million range or higher. The result is that qualified First Nations will access less money, while the costs of replacing or repairing their Public Works infrastructure is never ending.
Saddle Lake First Nation's view is that the federal Crown, by making Part 4 of the Bill C-20 optional, is offering the proverbial ``carrot at the end of the stick'' to any First Nation willing to take the leap and seek all its revenues on its own.
The effect of article 60, Finance Authority, again, ``Not agent of Her Majesty,'' is that the federal Crown is cunningly divesting itself of its treaty and constitutional obligations to treaty First Nations to provide adequate capital and fiscal resources to ensure the renewal or replacement of public works infrastructure and other social and economic services on-reserve that protect and maintain the physical, mental and social well-being of treaty First Nations such as Saddle Lake through the assurance of high quality drinking water, safe roads and buildings, sewer systems and landfill sites.
Part 5, First Nations Statistical Institute, offers First Nations the opportunity to collect compile and analyze more data, information and statistics. Logically, more of the same will not necessarily result in increased funding to First Nations for them to address adequately the deplorable living conditions of their people. With the creation of the First Nations Statistical Institute, the information gathered is supposed to be used by First Nations to justify further funding from various government departments or other sources.
Many First Nations presently use Statistics Canada data through the census and other surveys or studies as well as data from the Department of Indian and Northern Affairs, Health Canada and Human Resources and Skills Development Canada. However, First Nations such as Saddle Lake would not necessarily receive additional funding for the much needed areas of public works, education, health services, social development, administration, policing, economic development, employment and training, tribal justice, child welfare, band support, research and development, management development and capacity building. There may be annual small increases of 2 per cent for some of the aforementioned, but this results in no additional benefit to First Nations, as the cost of materials and inflation may exceed the small increases of any new funding.
Saddle Lake First Nation has observed that the living conditions of First Nations peoples have been studied and analyzed continuously since their discovery in 1492. Numerous governments, Royal Commissions, agencies and institutions have collected, compiled and analyzed First Nations peoples and their historical and contemporary conditions from the First Nations cradles to their graves. Notwithstanding their perceived benefit, supporting statistics, however valid, are often superseded by the federal government of the day's fiscal and monetary policy. For example, if there is national economic uncertainty, the government may pursue a policy of fiscal prudence which affects the delivery of services to all Canadians and impacts First Nations well-being in particular.
Honourable senators, with all due respect, Saddle Lake First Nations advises you to reject Bill C-20, as it allows the federal Crown to legislated ``optionally,'' to deviously distance itself from meeting its treaty and constitutional obligations to Saddle Lake treaty First Nations and to other treaty First Nations.
Saddle Lake submits that all of the energy, planning, commitment and financial resources that the above four proposed institutions will require is better spent in providing for the much needed infrastructure and services at the First Nations level.
The fast-tracking of Bill C-20 from the previous Parliament to Order-in-Council in the House of Commons and to the Senate does not allow First Nations adequate time and resources to respond to it.
In conclusion, Saddle Lake First Nations is advising Parliament and the federal government that the best efforts and resources should be better utilized in recognition and support for Saddle Lake First Nations self-determination, the nation-to-nation relationship as reaffirmed by the royal proclamation of 1763, Treaty No. 6 of 1876; retention of governing structure, believe in tribal customary law; and the delivery of adequately funded public services and infrastructure.
Saddle Lake First Nation reminds the Standing Senate Committee on Aboriginal Peoples that the Crown in right of Canada has outstanding treaty obligations to Saddle Lake First Nations and other treaty First Nations for the provision of fiscal and other resources. Saddle Lake First Nations reaffirms its right to economic base and to tax exemption. The outstanding obligations by the Crown in the provision of public services and infrastructure must be fulfilled so that the peoples of Saddle Lake First Nations are assured their treaty and constitutional rights to adequate services are conducive to the health, safety, education, development, cultural survival and future growth of their families and nation.
The Chairman: Thank you very much. Before we go further, I will introduce all of the senators that are here. Senator St. Germain is from British Columbia; Senator Charlie Watt is from Northern Quebec; Senator Landon Pearson is from Ontario, and I am from the Northwest Territories. We also have Senator Léger, from New Brunswick, and Senator Christensen, from the Yukon. Our committee has representatives from all parts of the country.
In terms of procedure, would it be best if we heard everyone and then senators can ask questions?
Senator St. Germain: I have several questions. How many presenters do we have this morning?
The Chairman: We have five.
Senator St. Germain: It will be pretty tough to question if we do not take them one at a time. I realize it is a bit of an inconvenience to those waiting to make a presentation, but if we have questions to Chief Large, I think that it would be best if we would have a short period to question him now, based on some of his statements.
If we have five presentations, it will be next to impossible in this time allotted to get to them.
The Chairman: I do not think it would be impossible. I do not necessarily think all the presentations will be this long. Would the presenters agree that they could make it shorter so that we have more opportunity to ask questions? I get the impression that might happen. In terms of procedure, it would be better to hear everyone and then ask questions with the knowledge of the remaining time. I certainly do not want to leave anyone out for lack of time. We have until 11:15. There is another meeting in here at 11:30. Knowing that, would you help us in making sure your presentation is short?
Senator St. Germain: I would ask the presenters to be as brief as possible. We have asked you to appear because you were denied the opportunity to appear before the committee in the other place. We want to ensure that we fully understand your position on this proposed legislation.
Mr. David M. General, Chief, Six Nations Council: Thank you for the opportunity to present the views of the peoples of the Six Nations of the Grand River Territory. I would first like to acknowledge the Algonquin Nation, on whose territory we are meeting today. I would like to thank the elders from Six Nations who came with me to make this presentation here today, and I believe there is one youth that came with us also.
Six Nations, along with many other First Nations across Canada, have been waiting for the opportunity to present their positions and views on Bill C-20, the First Nations Fiscal Statistical Management Act. Unfortunately, we were denied the opportunity to present to the standing committee in the House. On December 7, 2004, the standing committee heard from Minister Andy Scott and only the proponents of Bill C-20. We were told by the committee members that the proposed bill had received enough debate. We were told that there was an all-party agreement to hear only the minister and the proponents, and we were told that there was really no opposition to Bill C-20 since the government had incorporated new amendments. Honourable senators, I am here to tell that there is significant opposition to Bill C-20.
If the proponents of Bill C-20 claim to represent the interests of a purported 100 First Nations, then I want you to hear the remaining 530 First Nations who do not want Bill C-20.
Regrettably, many First Nations do not have the time and resources to be here in Ottawa today. Many of the First Nations lack the resources to participate in the democratic process, and this is a serious disadvantage. On the other hand, the proponents of Bill C-20 are very well funded and they are able to maintain a constant lobby. When you combine the efforts of their principal lobbyist, the chairs of the four fiscal institutions and such federal officials who want Bill C-20 passed, that, senators, is a considerable lobby force.
When you consider the issues that face First Nations across Canada, and when you look at the immediate needs at the community level, would not the millions of dollars spent developing four national institutions under Bill C-20 be better spent on housing, education and water plants to produce clean drinking water?
First Nations should be the people to develop the priorities for spending all this money that is being generated. The estimated cost of the four institutions ranges from $25 million to $30 million annually. One only needs to check the public records and do the math.
Our position is that the entire concept of the fiscal institutions is so questionable that no amount of amendment can fix Bill C-20. This has been stated repeatedly in a number of standing resolutions in which the chiefs and assembly have rejected the predecessors to Bill C-20.
Honourable senators, you have been informed that the original bill has been remedied with various amendments. One of the amendments presents Bill C-20 as optional. This amendment is misleading. I had the opportunity to talk to a senior government official and asked the following question, ``Would there be any resources for infrastructure projects for First Nations who do not opt into Bill C-20?'' The answer was ``no.''
The same question needs to be asked by this committee. If this committee gets the same answer as I was given, then most certainly Bill C-20 is not optional. We are told that Bill C-20 is optional, yet the statistical institute attached to it is not. If the statistical institute is to be applied to all First Nations, why does it have to be linked to Bill C-20? Could it or should it be a stand-alone institution?
Honourable senators, I ask you, given all the time, resources and energy spent by First Nations to generate information, statistics and data aimed at improving funding levels, why are we even considering such an institution?
The decision to opt into the fiscal institutions is a decision that is on par with those that now require referendum: the designation of land, amendments to our election codes, adoptions of membership codes, ratification of self- government agreements and the acceptance of claims settlements.
As Bill C-20 is currently read the First Nations leadership could forever wrap their membership in the web of the fiscal institutions with a mere vote of a single council. Most alarming, there is no requirement for community consultation. On the other hand, it is virtually impossible to get out of the proposed arrangements once they have been established.
I ask the committee to please consider the following amendment: Require each First Nation to hold a referendum on this question.
There are also questions about what Bill C-20 does not address. This bill does not address the questions of the fiscal relationships that were set out in the Penner Report, in the Royal Commission on Aboriginal peoples, and on this committee's own report, ``Forging New Relationships: Aboriginal Governance in Canada. ''
Senators, I read with some satisfaction the proceedings of Wednesday, December 1, 2004. At that meeting, Professor Stephen Cornell, co-director of the Harvard Project on American Indian Economic Development appeared before this very committee.
It is not difficult to support the ideas of the necessary prerequisites of jurisdiction, good governance and culturally appropriate institutions that Professor Cornell suggests are necessary for First Nations to succeed in taking charge of their destiny. It is not difficult to realize that, as Professor Cornell indicated, ``indigenous governments must have legitimacy with the people being governed.''
It is not difficult to appreciate the hopeful words of Professor Cornell when he says we should, ``look not only at the problems but also at the solutions that indigenous people are generating.''
I will depart from my presentation to say that one of the issues we face in our community right now is the huge amount of excise tax that our community is paying. It is for us, as a community, as a nation, to get involved in solving that problem. Those are the discussions going on right now at Six Nations.
More reassuring were the questions and comments that you, the senators, made in committee that day. You spoke of the challenges and successes in your own regions. You spoke of differences. You spoke of diversity.
No one piece of legislation can be the panacea for all First Nation needs. You have heard of the resistance of the ``one size fits all'' approach, and you have heard the support for the government-to-government relationships. From Six Nations of the Grand River, you will hear strong support for nation-to-nation relationships. You will also hear us advocate nation-specific relationships. I truly believe that within the reports mentioned above lies the variety of diverse solutions for improving the lives of our diverse peoples.
The solutions of one nation must not infringe upon the solutions of another nation; this is consistent with our traditional teachings. This fundamental principle is the underlying basis for the two row wampum.
The peoples of Six Nations of the Grand River and many other First Nations share the view that Bill C-20 is an infringement on our inherent rights to self-government.
We would respectfully suggest that this proposed bill be reviewed by the Standing Senate Committee on Legal and Constitutional Affairs to address this very question. This would save Canada and Six Nations, and all First Nations valuable time, energy and resources that would most certainly be consumed by the courts.
Another subject that needs thoughtful consideration is the power of the minister to unilaterally appoint boards of the four institutions. If there are to be 40 political appointments, we suggest that the appointments should be done with the public consultation of all First Nations.
The proponents of Bill C-20 do not need the proposed bill when the institutions are already up and running. Their websites are on the internet, their offices have been rented and their staff has been hired. The proponents of Bill C-20 do not need the proposed bill when the institutions are already being funded.
In closing, I must state emphatically that Bill C-20 is detrimental to the self-determination of Six Nations of the Grand River Territory. We do not want or need legislation designed by someone else. We want to continue the discussion of our inherent, Aboriginal and treaty rights. Within that discussion, it will become apparent that by resolving the issues of land, resources and jurisdiction, Canada and Six Nations and many other First Nations will find themselves on a far more productive path.
Senators, I would like to thank you for listening to the views of Six Nations of the Grand River Territory. It is my hope that the power of a good mind will be with you as you consider Bill C-20 and make your decisions.
The Chairman: Thank you, Chief General.
Mr. Michael Anderson, Research Director, Manitoba Keewatinook Ininew Okimowin I am pleased to proceed but it is my practice as a technician to defer to any chiefs who are present to make their presentations, if that is appropriate for the purposes of the committee.
The Chairman: Are there other chiefs to present? Chief McCormick.
Mr. Chris McCormick, Grand Chief, Association of Iroquois and Allied Indians: Good morning. Senators, I appreciate your request for a prayer to open this meeting. I would like to acknowledge that we are on Algonquin territory. I thank the elder for the prayer and I thank the Senate for the opportunity to present on behalf of the Association of Iroquois and Allied Indians.
Last week, I was asked by the political confederacy for the Province of Ontario, which is all the provincial territorial organizations, to present on their behalf. That umbrella organization represents 134 First Nations in the Province of Ontario. I asked for some speaking notes and I received them this morning at eight o'clock. There are 17 pages and so I have done my best to reduce that presentation. I hope that I have copied the points that are most important to the committee.
First, we would like to speak to inadequate consultation. Bill C-20 proposes national legislation that will affect the rights and interests of all First Nations. For example, the bill prejudices the inherent right of self-government for all First Nations by providing that all future First Nation laws and property taxation and financial administration are subject to a veto by federally appointed committee's, the tax commission and management board respectively.
Several leading Supreme Court decisions stand for the preposition that a government measure likely to prejudice rights in a significant way must go through a rigorous First Nation consultation exercise before acceptance and implementation; Sparrow and Haida Nation, and in some cases, First Nations' consent may be required, as in Delgamuukw v. British Columbia.
The consultation record of Bill C-20 is very suspect and raises a distinct possibility that if it is passed into law it will be declared constitutionally invalid.
In its present form, the bill and its predecessors going back to 2001 have been consistently rejected by First Nation assemblies at the national and provincial levels. This opposition has been ignored by Indian and Northern Affairs Canada and a small number of First Nations in support of the bill. Some cosmetic amendments to the proposed legislation have been introduced, but there has been no serious reconsideration of the substance of the bill.
The last paragraph of the preamble of Bill C-20 states:
And whereas first nations have led an initiative culminating in the introduction of this Act;
That kind of statement gives lawyers a bad name. Some First Nations support Bill C-20 but most are opposed to it. With respect, it should cause this committee concern that the government is complicit in this kind of deception in a significant proposed statute.
The hearings before the House of Commons committee were a microcosm of the fundamental unfairness of the consultation process on Bill C-20 in that they lasted only part of one day. The only witnesses were from INAC and supporters of the bill. These supporters are affiliated with the four institutions to be blessed by Bill C-20. Naysayers were excluded from the party. The dubious nature of this procedure speaks volumes to how Bill C-20 has been handled from day one.
Bill C-20 has been rammed down the throats of First Nations. This is inconsistent with the commitment made by Prime Minister Martin at the historic Aboriginal round table last year. He promised that legislation and program packages would no longer be imposed on First Nations. He promised a partnership approach. The rough tactics being used to pass Bill C-20, come hell or high water, raise serious doubts about the sincerity of the commitment of a new partnership.
I will speak to the rationale for transferring the proposed legislation to the Senate Committee on Legal and Constitutional Affairs. Federal policy developed by INAC accepts for all purposes that the inherent right exists and is protected by section 35 of the Canadian Constitution Act, 1982. This is a general recognition. The elaboration of the Aboriginal and/or treaty right of self-government depends on research and discussion at the local level. Ironically, the federal policy support for the inherent right is referred to in the first paragraph of the preamble of Bill C-20.
The inherent right in section 35 cannot be purely ornamental or empty but it must have some substantive content. There must be some legislative jurisdiction for First Nations associated with the inherent right. Certain federal enactments may be unconstitutional because of the inconsistency with the inherent right.
Is there anything in Bill C-20 that is potentially inconsistent with the inherent right in section 35 of the Canadian Constitution Act of 1982?
If there such a potential inconsistency with the inherent rights, parts of Bill C-20 may be unconstitutional. This is the issue that should be of interest to the Senate Committee on Legal and Constitutional Affairs. There is an opportunity for the Senate to consider important draft legislation vis-à-vis the inherent right in section 35. This is a very important area from a legal and political point of view that would benefit from consideration by the Standing Senate Committee on Legal and Constitutional Affairs.
What parts of Bill C-20, if any, might clash with the inherent right? In my view there are two key potential problems. First, Part 4 of Bill C-20 provides that a First Nation cannot pass a financial administration law without the prior approval of the proposed First Nations' management board. Part 5 provides that a First Nation cannot pass a local property taxation law and related laws without the prior approval of the proposed First Nation tax commission.
Part 3 concerning the financial management board, clauses 40 to 41, and Part 3, the tax commission, clauses 19 and 20, are appointed by the federal government. It is funny that subclause 20(2) guarantees three seats on the tax commission for taxpaying business interests, likely in practice to be non-Aboriginal. These federally appointed individuals will give thumbs up or down to all property taxation laws, including the expenditure of funds proposed by all First Nations in Canada. There is nothing this bad in the Indian Act of 1927.
In other words, these two federally appointed committees, the tax commission and the management board, have absolute veto over First Nation laws dealing with some of the intimate matters of local government such as local taxation and local finance administration. The proposed tax commission even has a veto over the annual budgets for the expenditure of property tax revenues, paragraph 5(1)(b).
In my view, this federal veto over intimate local law-making is inconsistent with even a modest understanding of the content of the inherent right in section 35. If the inherent right does not cover jurisdiction over local taxation and financial administration, then what does it cover? What is the residential content of the inherent right if such a basic local jurisdiction is not included?
I wanted to touch on the First Nations Statistical Institute. There is no optionality about this institution. Whether or not a First Nation likes it, the institute will exist and will be paid for from funds that would otherwise go to real First Nation priorities, such as schools and health care. The institution will have a platform to make pronouncements about First Nations statistical policy, even though it does not enjoy the support of the majority of First Nations.
The institute will have a broad and non-consensual access to the most intimate data on all First Nations in Canada. This reality is artfully camouflaged by clause 106 of Bill C-20, which talks of agreements with First Nations on the sharing of the statistical information. However, the kicker is clause 107, which provides for non-consensual access to practically all First Nation data held by the federal government. This data is massive and intimate, given the level of financial and program over-reporting required by First Nations, so First Nation data will be shared with the institute even though most First Nations are strongly opposed to its mandate. Fully funded by INAC, the institution will thrive even if not a single First Nation data sharing agreement under clause 106 is ever signed. This belies the assertion that the institution and the rest of Bill C-20 are optional or opt-in.
The fact is that most First Nations in Canada, and especially in the North, are hurting very badly indeed. Many First Nations are verging on bankruptcy or third party administration, as it is called in the parallel universe of INAC. All social economic indicators are well below Canadian averages and in some cases are equivalent to Third World. This overwhelming problem does not stem from bad local management or some other fault at the First Nation level. Rather, the problem stems from the decision of Canada in 1995 to cap federal transfers to First Nations. The effect has been devastating, since the overwhelming majority of First Nations mostly depend on federal transfers.
Instead of dealing with First Nation fiscal agenda, Bill C-20 refers to tax and borrow mania. The proposed legislation is based on the absurd proposition that First Nations can tax and borrow their way to prosperity. This may work for a handful of First Nations with significant reserve business properties. However, for the overwhelming majority of First Nations, the truism stands: You cannot draw blood from a stone. If there is no business base, which is the norm, there is no hope for a property taxation system. Without property taxes, there can be no borrowing on the international bond market under the auspice of a financial authority. For the great majority of First Nations who are struggling to get by on capped federal funding, the tax and borrow scheme of Bill C-20 is at best a bitter joke.
In regards to chiefs in assembly, Bill C-20 and its predecessors have been continually opposed by Chiefs of Ontario and assembly. The official position, based on resolutions at the Assembly of First Nations, is to oppose Bill C-20.
I would strongly urge, based on this presentation, that this proposed legislation be referred to the Standing Senate Committee on Legal and Constitutional Affairs.
There are institutions established and presently carrying out the work of this proposed legislation. Why were not these institutions not tendered out? There were large amounts of money and there was no tender process. Is that not the norm for taxpayers' money when institutions like these are going to be established, a tender process?
Mr. Randall Phillips, Chief, Oneida Nation of the Thames: Good morning, senators. I would like to also acknowledge the fact that we are here on Algonquin territory. I also acknowledge the elder for opening today's session with a prayer. That is very important.
Honourable senators, I did not give you a brief today simply because I think you have read enough briefs, and I think you will continue to read enough briefs. You need to have a personal, direct contact with a leader from a First Nations community that has had a chance to review Bill C-20. I will not go through a clause-by-clause analysis of it. I do not think that will serve any purpose. At the end of the day, you might find there is hope that Bill C-20 can be salvaged. I want to echo some of the comments made earlier that the amendment list would be too lengthy, and there would be a lot of time and effort to do so.
I would like to introduce myself as elected chief of the Oneida Nations of the Thames. I say ``Oneida Nations'' because that is exactly what we are. We are the only Oneida Nations within Canada's boundaries. Our traditional homeland is from New York. Some of you may be aware that there is a current land claim negotiation with New York State and the federal government as it stands right now.
It is important that you understand that I am here representing those people's interests and not necessarily all First Nation's interest, and certainly not the proponents of this legislation's interests. They have made it clear to Parliament and other members that they are in favour of this particular piece so they can move on with their own interests. It is from spring board I would right to take off.
The Oneida Nations of Thames is a unique community here in Canada. We are the only community I know of that was not granted land through the federal government. We purchased our land outright. We do not call it a reserve. We call it a settlement specifically for that purpose. Our children learn that it is a settlement. They have quite a time, sometimes, dealing with the reserve across the river because of this notion of one being a settlement and one being a reserve. Our fundamental thinking is that of a nation.
We believe there are other outstanding issues in regards to land issues. This certainly is a bill about land ownership, land issues, land acquisitions and how you use that land under the pretext of taxation. Taxation is not a value or an ideal that is widely held within our community or our nation. Our forefathers, my grandfathers, made a distinction a long time ago that they would protect us, this future generation, from exactly those kinds of impositions of foreign governments. This is, unfortunately, one of them. However, it might be guised in other terminology and other phrases in terms of ``good for the community.'' There are some fundamental rights here that need to be addressed, and I do not think that Bill C-20 supports those rights.
I will now make quick mention of the lack of debate and consultation with regard to the process. As you are aware, this is the third time this proposed legislation has been introduced to the House, in different forms. I will echo the sentiments of the Grand Chiefs by saying that at each time it was presented, the chiefs rejected the proposed legislation. It still sits here in government. Does this say something? It says something to me and the people that I represent. It says that we are not being listened to. Once again I appreciate the fact that at least now we have a chance to be heard.
The Oneida Nations of the Thames Chief and Council has formally rejected Bill C-20 through the Band Council Resolution and those that have been submitted through the proper processes, through Indian and Northern Affairs Canada and everything else. We reject Bill C-20 for a number of reasons. It has a direct impact on our rights; throughout Bill C-20 you will see references that are made to control. You will see references that are made to approvals. You will see references that are made to government-created institutions that will have a direct impact on the day-to-day administration and governance of our community. That is not acceptable for the people I represent.
We are not in support of institutionalized self-government and that seems to be the trend. The notion of a national First Nation financial authority that lends money out might be a good idea in concept but those institutions already exist. First Nations just need an access to them. We do not need to create our own for this specific purpose with a whole new set of rules and regulations that bind us even further.
We are not in favour of institutionalizing a board. We are not in favour of institutionalizing a tax commission. Simply put, this whole notion of creating these types of institutions goes against whatever notion of inherent self- government that there is.
We have not even had that debate in regards to the inherent rights policy and the objections that First Nations community, especially the ones my community have with that. It is limited, it is restricted and comes down to the last fact that it is controlling; that is what we want to move away from. Bill C-20 takes us further us along that path.
Part of the rejection is in some of the terminology used. There is finality to all these institutions in the sense they can say yes or no to anything. There is no appeal mechanism.
In 2005 this notion of accountability should be first and foremost in everyone's thoughts. Yet, should the financial board deem a First Nation ineligible, for whatever reason the control rests with the institution. The control rests with decision makers appointed by the federal government. Therefore, we are dealing with another federal body to control First Nations' interests and rights. For the people I represent, that is not acceptable.
We talk about the optionality of this proposed legislation and how it was a deal breaker in previous pieces of legislation. Now that has been addressed through Bill C-20. You heard from the other panellists here that there is no optionality to Bill C-20. They mention the specific statistical institution in regards to optionality, but I would like to take you one step further. Bill C-20 has a direct amendment to the Indian Act, not in terms of the taxation amendment where everyone might logically take that first jump to, but what bothers me and my community the most is that it amends section 88, which is a general provision for other laws to apply on First Nations territories.
If what we have been told is that this legislation is optional, then why change the Indian Act to read that this will be part of a law of general application?
My fear, senators is that these institutions will certainly look after their own self interests and with every opportunity encroach further into the governance issues that are solely the responsibility of First Nations governments.
There are too many provisions within those three institutions that will have a negative impact on a community.
The other point I wanted to raise here is in regards to the actual application of this proposed legislation. Who will it benefit? It will not benefit the Oneida Nations of the Thames, because we still have outstanding land issues. Going back to one of the references made by a previous speaker it states that those need to be resolved far in advance of this. We cannot get access to increased territory, so this notion of development coming into our territory any time in the future when we can even think about using that as a tax base is far remote from our thinking.
I want to echo the sentiments of the Grand Chief that if and when we decide as a First Nations government and a people to increase our economics and development capacities it should be our choice and it should not have to be guided by an institution. There is no optionality otherwise.
The inclusion in several of the sections to third party interests over First Nations' interests is unacceptable to the people I represent. This is another way of outside interests directing and controlling what First Nations want to do. It is limiting, restricting and offensive, senators.
The purpose of this is taxation. Let us be clear about this. We can read the opening statements in regards to the creation of four institutions but the purpose of this is taxation. It does not change the fiscal relations with First Nations. All it does is harmonize communities with non-native communities. This has been a goal of assimilation since I was born, my father was born and his father was born. It is something that the people I represent take offence to. There are a lot of personal issues in regards to Bill C-20.
We are not in favour of anything that attacks our rights. As the Oneida Nations, we are part of the Iroquois Confederacy, and from that confederacy stems all of our history, governance and actions, it is not from the Indian Act. The Indian Act creates confusion and a dilemma for people like me who are representatives of an elected system. We do not support the Indian Act. To be further offended by the fact that this organization is going to continue to dictate and to guide us in terms of what we think is our future is also unacceptable.
In closing, thank you for your time to listen to the rants and raves of a young chief. I have been the beneficiary of a great many people at home who have provided me with guidance throughout this short term that I have held as chief. They are very supportive of the efforts I am trying to make and of my being here today. It does cost money to appear before you and there are many things we should be doing at home right now, but I think that it is important that you hear from a group that opposes Bill C-20 and takes no benefit from it in any way. I have tried to point out the negative side of this proposed legislation.
I ask senators in the course of your actions and responsibilities that you do what you can to refrain from endorsing Bill C-20. I ask that in concert with the Grand Chiefs' statement made here today.
These are constitutional issues. The proposed bill would create institutions that would directly conflict with First Nation governments' rights and responsibilities through a process in which we have never been directly involved. Our national office has been put on record as rejecting this proposed legislation. I ask senators to do what they can to stop Bill C-20.
Should this piece of proposed legislation pass, I would ask senators to make one simple amendment: Include a specific reference that this legislation not apply to the Oneida Nation of the Thames.
The Chairman: Next we will hear from Mr. Anderson. The committee has had the benefit of reading your lengthy presentation and we wonder if you might provide us with a summary? I will leave that to you, Mr. Anderson.
Mr. Anderson: Mr. Chair, I do not intend to read the entire document. I would like to request that the committee consider adopting the presentation that I have circulated as part of the evidence of this proceeding. If it is acceptable to the committee I will move on to simply summarize some of the points that have not been touched on by our colleagues today.
The Chairman: Do we have a motion to accept the document as an exhibit?
Senator St. Germain: So moved.
The Chairman: It is moved by Senator St. Germain and seconded by Senator Watt.
All in favour?
Hon. Senators: Agreed.
The Chairman: Mr. Anderson please proceed.
Mr. Anderson: Thank you, Mr. Chair and members of the committee, also chiefs, grand chiefs, elders and youth who have attended to hear this important presentation.
I would like to express my appreciation for opening with a prayer to centre our minds on this important issue and to acknowledge being in Algonquin territory today.
The MKO First Nations appeared before the House of Commons committee when the bill was known as Bill C-19. We submitted a presentation at that time. I would like to mention, in addition to other comments that we might make, that we spent some time with the assistance of the clerk of the committee looking at the recent transcripts for February 23 and February 27, which are not yet posted on the website, as well as the remaining entire record of the discussions on this proposed legislation from Bill C-19 through Bill C-23 and its current incarnation as Bill C-20. We did that in part because a great deal of discussion has taken place and in part because the formal position of the Assembly of First Nations is to oppose Bill C-19. Bill C-20 is different and has certain amendments.
Manitoba Keewatinook Ininew Okimowin wishes to fully understand the proposed legislation that is before this committee in order to advise our First Nations. I have been asked by Grand Chief Dr. Sydney Garrioch to make these representations today on his behalf and that of MKO. I appreciate the invitation of the committee to do so.
MKO supports recognition of the autonomy of each First Nation to determine whether the provisions of the proposed legislation are applicable to the circumstances of that First Nation. I have some comments that I would like to make, however, in respect of the inherent right.
MKO will not support any federal legislation that seeks to impose a system of financial arrangements upon a First Nation or otherwise infringe the authority of the First Nation, including those First Nations presently exercising financial authorities.
MKO represents the 30 northern-most First Nations in Manitoba and some 56,000 treaty First Nations citizens. We have signed treaties numbered 4, 5, 6 and 10. There are also four major languages spoken in our region: English, Ojibwa Cree, Cree and Dene. As a result of that diversity, our organization has to respect the differences of view, the differences of cultural perspectives and the differences in language within our region. It is an essential principal of MKO that only that First Nation directly affected by a measure may decide upon its appropriateness when it falls upon itself.
More specifically, in terms of lands and natural resources, this measure is about land in terms of land values, about taxation for the values of it and about financial management principles and rules that would apply to those regimes. We are very careful when we make our comments here today about the interests of our own First Nations and those of others who have invested time in examining this proposed legislation.
MKO recognizes that with the important exception of the functions of the First Nations Statistical Institute, Bill C- 20 provides that a First Nation has the option of requesting an Order-in-Council naming a first nation as participating in the provisions of Bill C-20, namely in respect of the First Nations finance authority, the tax commission and the financial management board. We recognize that amendment has been made. We had objected to that amendment and many others, in particular the tax regime.
MKO also recognizes that its previous concerns regarding the imposition of these regimes upon First Nations, which have already enacted taxation laws under section 83 of the Indian Act, appear to be addressed and will preserve any such existing taxation laws as well as the related statutory regime under the Indian Act.
We are quite familiar with those particular provisions and they are related directly to our earlier comments. Similar to another comment made about the preamble by a previous witness, we have noted one:
Whereas the Government of Canada has adopted a policy recognizing the inherent right of self-government as an aboriginal right and providing for the negotiation of self-government;
To assist us in a careful examination of the proposed legislation, we broke the bill down into a series of tables by function and by status for our review. It is clear that three of the four agencies to be created by the proposed legislation are largely First Nation in name and in terms of their primary mandates. With the possible exception of the reference at clause 153 to the Westbank First Nation Self-Government Act, Bill C-20 does not appear to reflect the terms of any comprehensive self-government arrangement or arrangements negotiated between the First Nations of Canada regarding Canada/First Nation fiscal relations.
The witness testimony from the committee meetings on February 22 and February 23, as well as the commentary appearing on the existing websites, are very interesting. Each of the four proposed institutions in Bill C-20 is described as a First Nation-led initiative. However, a review of Bill C-20 also reveals that three of the four proposed institutions would be governed by cabinet appointees recommended by the minister. These are the First Nations tax commission, the financial management board and First Nations statistical institute.
Three of these bodies are classified as ``federal government institutions'' under the Access to Information Act: the First Nation tax commission, First Nation fiscal management board and the First Nation statistical institute, all of which have been added as a consequential amendment to those affected by the Access to Information Act and whose records would be available under the provisions of that law, with exceptions in clause 108 to those covered by privacy provisions under the statistical institute.
Two of these bodies are ``federal institutions'' as defined by Bill C-20 and which have their annual corporate plans and budgets approved by the minister, subject to any terms and conditions that the Treasury Board may direct. One would be a federal Crown corporation governed in accordance with the Financial Administration Act, among other provisions. When we look at the four proposed institutions to be established, three of them are clearly federal government institutions. There are various provisions in respect of whether they are agents of Her Majesty the Queen in right of Canada, but they are federal agencies.
We also note that Bill C-20 proposes in subclause 35(1) and subclause 55(1), which were canvassed and discussed by the Grand Chief and others, that certain standards be established by the tax commission and the financial management board respectively and adopted by all participating First Nations. They are essentially the template for their local laws and financial management practices.
There has been considerable discussion about the inherent right. MKO agrees that the extent to which these standards may infringe the exercise of the inherent right is a matter for further consideration. An interesting question, perhaps taken up by the Standing Senate Committee on Legal and Constitutional Affairs, is whether a council can agree to impose an infringement of the inherent right of that nation through its agreement, for example through clause 2 requesting an Order-in-Council to be added to the schedule.
The language used was ``basic local jurisdiction.'' MKO agrees that the establishment of financial practices and tax legislation and other means of managing the resources of the community, particularly own-source revenues, is a basic reflection of the inherent right to self-determination and self-government. To adopt other templates that are established by federal government agencies seems a fairly clear infringement of the exercise of the authority of a First Nation chief and council, notwithstanding the fact they may elect to engage in that infringement.
The integrated relationship of the functions of the First Nations financial authority and other government institutions and the standards established by these institutions is quite succinctly summarized on the website of the First Nation Financial Authority, and I would like to review what they say because it brings them all together for us.
To become a borrowing member of the FNFA and to qualify to participate in FNFA borrowing where the borrowing is secured by property tax revenues, a First Nation will be required to pass a property taxation law. The property taxation law will be approved by the First Nations Tax Commission. Following passage of the property taxation law, a First Nation will be certified by the financial management board as to meeting established standards of financial management. Following certification by the financial management board, a First Nation will be formally approved as a borrowing member by the board of directors of the FNFA and once qualified as a borrowing member, a First Nation will submit its requests for financing through the FNFA by way of an approved and certified borrowing law. The borrowing law describes the infrastructure to be built, the cost of that infrastructure and the terms and conditions of a borrowing agreement to be entered into between that First Nation and the First Nations Finance Authority.
Many of these authorities and approvals are in effect, determined by these federal government institutions. It is in this regard that the approach in Bill C-20 to establish additional new government institutions and standards that are established by these institutions does not reflect the commitment of Canada to work in partnership with the Manitoba First Nations, including the MKO First Nations, to recognize and fully restore the jurisdiction of Manitoba First Nations in contemporary terms through the Manitoba Framework Agreement Initiative.
The 1994 Manitoba Framework Agreement Initiative provides a negotiating program and expenditure authority for Manitoba First Nations in Canada to jointly develop and evolve the treaty relationship within the context of the FAI, including fiscal relations, self-government and governing structures, which are all part of the main table discussions on FAI.
The MKO First Nations have been working since the inception of the FAI agreement to examine the nature of the law within our communities, and during this time many First Nations have developed their election and government codes, laws and policies.
I will make a comment that while the FAI was set to expire on December 7, 2004, Part 9 of the FAI provides that the ten-year process may be extended by mutual agreement between the First Nations and the minister. In November 2003, the Manitoba FAI First Nations requested such an extension and continued to seek the agreement of the minister. For its part, the MKO First Nations remain committed to achieving the objectives of the FAI, including a renewed fiscal relationship.
In looking at the records and transcripts we are very interested in the comments that were made during the proceedings before you on February 22 and February 23. One thing that was of great interest to us and that was raised by the chair and other members of this committee was why it was necessary to provide the certainty to conduct the objectives of the First Nation Finance Authority to establish three government agencies that would require appointments by the Governor in Council, that would have their budgets approved by the minister and/or would be a Crown corporation subject to the Financial Administration Act.
As I was reading through the transcript, in that committee members were asking this question repeatedly, I was eagerly looking for the answer. I regret that answer was not clearly provided.
For a group of First Nations, that is the MKO part of the Manitoba family of First Nations that have entered into the Manitoba Framework Agreement Initiative whose objective was to dismantle the Department of Indian Affairs in Manitoba, and that is exactly what the header of the agreement says, ``dismantling,'' it seemed to us a great step in the wrong direction to create three new government agencies to administer the affairs of First Nations, particularly in a matter as sensitive as maximizing the benefit of property values for those First Nations that have them.
We recognize that the ability to generate own-source tax revenues is largely a factor of geography, that is, whether you are close to rivers and lakes that are also close to large urban centres. Much of the MKO First Nation, in fact 15 of the 30 First Nations, are isolated and only accessible by air or winter road, but there are several large First Nations with MKO that have property values of interest. In fact, the Opaskwayak Cree Nation is one First Nation within our region that is affected by ITAB and has a section 83 tax regime.
Having said that, we were keenly interested as to why we would need to establish government agencies. Ms. Kustra, when was she was before the committee, indicated that Bill C-20 would provide the kind of certainty and checks and balances that many investors are looking for to invest substantial sums of funds. The minister used similar language in indicating that it is necessary to put in place a pretty rigorous series of backstops.
Mr. Craven's testimony to this committee was very interesting, given his long-term participation in the development of the key ideas at the very beginning. He indicated in the answer to the question in respect of why government agencies were required, I think his interesting comment was:
I must admit partly our advice. We said any credit that you expect an investment banker to sell to his clients has to have certain characteristics. There were a great number of unknowns related to the quality of the eligibility of a person to borrow money in different First Nations. This standardizes and this makes clear to an investment banker and his customers and to the credit rating agencies that there are certain controls here, and that everything that everyone threw up in the air as being a problem about First Nations' credit has been dealt with.
I was struck by that phrase, ``the quality of the eligibility of a person.''
There was also some similar discussions about the perhaps intuitively simple thought of the government guarantee of the loans that would be provided by the agency, but it appears from examining the package as a whole, the commentary of the experts that helped design the proposal, as well as the proposed legislation itself, that the government guarantee has been replaced with government oversight. That again is a step in the opposite direction of the Manitoba First Nations and our considerable efforts under the Manitoba Framework Agreement Initiative, that is, to establish First Nation institutions that succeed in meeting the needs of First Nations within the Province of Manitoba. It also speaks clearly, if this is the advice, of the demands the investors are making about First Nations to place their considerable tax base and the revenues that are associated with that as leverage for bond issues, overseen essentially by a series of government institutions that establish the means and standards and mechanisms for providing the certainty the investors require.
Now, we are in no position to dispute whether or not the investors require that level of certainty, but it is clear that is the discussion that emerged from all the discussions that took place. The First Nations are not, in and of themselves, according to this proposal, providing adequate security for the investments made with their own revenues.
The recommendation that we would make in respect to this proposed legislation is that any First Nation or First Nation organization who desires to appear before this committee should be afforded the opportunity to do so in respect particularly of the potential for the infringement of the inherent right, and any other issues that they may choose to bring before you.
The consultations that were described at some length on February 22 by the departmental officials, if my recollection is correct, were primarily related to the bill when it was Bill C-19 as part of the suite of bills being presented by the department.
The committee report also amended Bill C-20 as follows. We suggest that if you intend to proceed with the bill, that clause 3 be amended by adding a new provision:
Except as provided in section 153, nothing in this act shall be construed so as to limit or affect any existing treaty, land claim agreement or self-government agreement with Canada, or as to limit or affect any negotiations regarding any such treaty or agreement.
What is in our mind when we make this suggestion is the Manitoba Framework Agreement Initiative, but similarly that the processes, standards and so forth that are contained in Bill C-20 are not applied in any way as a template to any other negotiation or process;
It is recommended that the process for the appointment of directors to the First Nations tax commission, the First Nations financial management board and First Nations statistical institute be revised to include persons designated by First Nation organizations, as well as requiring consideration of the advice of these organizations.
It is recommended that section 146, which is the review provision, be revised to provide a review of the provisions and operations of Bill C-20 and the operations of those institutions established by Bill C-20 within three years after the day on which Bill C-20 receives Royal Assent.
Although we are not really in a position to speak for the authority, the finance authority is the one First Nation entity; so we suggested that it would be upon the request of the First Nation Finance Authority, if the finance authority concurs that it would be suitable for its purposes.
If the theory is that the finance authority needs these three government institutions to anchor and provide certainty to its borrowings, it seems to us the finance authority would have the best vision of whether they are in fact working if, in essence, the theory as presented to us is correct.
It is recommended that section 146 be further revised to indicate that any recommendations that the minister might make related to the evolution of the mandate and operation of these institutions expressly address the assumption by First Nations of the functions of those institutions, as may be negotiated.
Again, as a framework agreement, an initiative series of First Nations adding more agencies without the hope of a sunset for the purpose seems a step in the wrong direction.
It is further recommended, taking into account as well the direction of the FN chiefs in assembly in respect of developing new fiscal relationships as set out in resolutions 5/96 and 49/98, which essentially say that any of these relationships must respect the inherent right.
The final recommendation is that the government renew its commitment to a joint First Nation-Crown initiative intended to develop new fiscal relationships that are based on principles of flexibility, fairness, choice, certainty, economic incentives and efficiency, which were referred to explicitly in the AFN resolutions, that reflect an equitable sharing of the resources derived from treaty lands and natural resources, as well as those lands and resources to which an unresolved Aboriginal title applies and are in keeping with the constitutional and legal framework.
I would like to add one thing about this particular renewal. It is an observation in respect of the functions of the statistical institute and the evidence that the committee received regarding the value of statistics.
I am the research director of the Manitoba Keewatinook Ininew Okimowin's natural resources program, and the people in my office assist all departments within MKO in developing statistical analysis on a variety of issues. Although I am the natural resources director, I am also a research director for the organization. I can indicate that in 1991, when Statistics Canada began to do the census, particularly the post-census survey of Aboriginal peoples, I participated in the negotiation of the memorandum of understanding with Statistics Canada that was intended to do much of what the statistical institute claims it will do. However, there was not the commitment to carry it through. We were looking for capacity, the placement of workstations that would actually access the census products, to develop a statistical capacity within Manitoba First Nations. This MOU was negotiated in support of the Assembly of Manitoba Chiefs at the time.
The object of First Nations interest in providing and having access to better data, particularly statistical data about First Nations citizens and institutions, is nothing new. I would respectfully submit that in Manitoba, at least, partly the reason we are in the position we are is as a result of a lack of federal commitment to meet the terms and obligations of MOUs it entered into in good faith with Manitoba First Nations.
I am sure there are many reasons why it was not pursued, but I wanted to bring to the committee's attention that such a document existed and such an attempt had been made more than a decade ago.
The Chairman: Can I stop you here? If you continue, Mr. Anderson, there will not be time for questions. In fairness to the other persons who made representations, there is an interest in asking questions. You can continue and take up all the time, or I can stop you.
Mr. Anderson: Stopping me now is fine because I would be concluding in any case.
The Chairman: It was hard to tell.
Mr. Anderson: I want to conclude by saying that there are examples of our interest. The statistical institute in particular is a function that First Nations have expressed an interest in developing an arrangement with, and moving in the direction of a First Nations statistical institute that is truly First Nations, that involves First Nations organizations, that involves the agreements with Canada, but that the agreements are between First Nations and other agencies that hold this information, as distinct from a federal Crown corporation making agreements with First Nations to access First Nations data.
Thank you very much for the opportunity to appear.
Chief Robert Daniels, Swan Lake First Nation: I would like to table some documents with your committee today. We have some resolutions that were rejected back in September 2001. We also have a resolution from Swan Lake First Nation and a letter to the Prime Minister's office and all the political organizations that we speak for ourselves in our treaty matters.
In Swan Lake First Nation, no one represents us as it relates to our treaty, our treaty relationships or anything to do with our treaty rights. This proposed legislation does not do anything for us in Swan Lake.
Senator St. Germain: Are these your documents? Are you are from Swan Lake, Manitoba?
Mr. Daniels: Yes.
The Chairman: We will file the documents as exhibits to the committee. We will review and read them. It is unfortunate we did not give you a chance to make a formal presentation, but our time is just about up. I thank you for coming and doing what you have done.
Mr. Daniels: If there is a way I could address the committee at some point, I would be willing to do so.
Senator St. Germain: I would like to apologize to our witnesses that we are so restricted for time. In all fairness, Senator Sibbeston and I try to operate in a non-partisan way. When I brought up the fact that we must listen to the opponents of Bill C-20, he agreed, and the committee agreed to have you here. Unfortunately, we did not anticipate this number of presentations; perhaps we should have. I can only apologize on my behalf.
As some of you know, on native affairs I try to be as non-partisan as possible. I voted against the party to which I belong on the last proposed legislation that went through the Senate. I do not know what I will do on this one as yet. I am not guided by anything but what I hope is in the best interests of our Aboriginal peoples. I feel that our chairman operates in the same vein, as well as the other members of this committee.
Grand Chief General did you state that some appointments have been made and the offices have been set up already for some of these agencies?
Mr. General: I do not know about the offices but from my information they are on the Internet; they are up and running; their offices have been rented and staff are there.
Senator St. Germain: Mr. Chairman, I think this is real arrogance on the part of the government and an affront to the Senate. We are still reviewing this particular legislation and there is no indication that Bill C-20 will pass. It is very presumptuous on the part of the government. It is an insult to the institution of the Senate that the government is operating in this fashion.
That answers that question.
There is a litany of questions I have. The first presenter, Chief Large, says that there are outstanding treaty obligations he feels should be handled before issues like this are dealt with by the government. With regard to the aspect that one has to opt-in, it is being said here that there really is not an option.
Grand Chief General, you stated in your presentation that there is not an option available. Would you like to elaborate on that answer? This is an important change from previous bills.
Mr. General: Thank you for the question. Previous to the committee meeting on September 7, the chiefs of Ontario had a meeting with some of the officials who were shepherding this piece of legislation through the process.
I had the opportunity to ask, not only one government official, but one on December 6 and another one on December 7, if there would be resources set aside for those First Nations who did not opt-in to Bill C-20. The answer in both cases was ``no.''
Senator St. Germain: Resources for what, sir?
Mr. General: Resources for infrastructure projects; the money that Bill C-20 was set up for, in order to generate revenue.
Senator St. Germain: Are you saying that any infrastructure on any of the 630 First Nations lands would now, if any infrastructure was to be supported by government, have to go through this process?
Mr. General: That was the understanding that I got from my question.
Senator St. Germain: Is the AFN supporting Bill C-20 or are they opposed to it?
Mr. General: Bill C-20 has never come before the chiefs in assembly. It is so delicate that no one wants to go and either win or lose the support or rejection of the proposed legislation. Therefore it has never come before the Assembly of First Nations. There are the standing resolutions against Bill C-19 and Bill C-23. The last opportunity for the national chief and the AFN under the current administration was September of 2003 and their statement was rejected. The previous resolutions stand opposed to it, although we know since that time there is personal support from the national chief and some of the other members of the AFN.
Senator St. Germain: Do you think they are trying to avoid it for political reasons?
Mr. General: I will say very directly, yes.
Senator St. Germain: The opting-in of this is at the request of a council of a band. In other words, a council on its own can arbitrarily opt-in and really not necessarily have the support of a given band. Am I correct in that assumption?
Mr. General: Senator St. Germain, thank you for the question. Yes, you are correct in your assumption. We are saying that this is such a huge decision that not just the leadership, the chief and council of the day, should be able to make that decision. It should be a well-informed membership that is consulted and this should be taken to a referendum. As I mentioned in my presentation, this decision is as large as a decision to designate land or sign a self- government agreement.
Senator St. Germain: My last question is the question of the appointments to the respective agencies and boards. We are back to the old Indian Act, basically. It is the minister, again. The paternalistic scenario carries on through a different form of legislation. We say we are getting away from the Indian Act, which I have always advocated.
I believe it was you who talked about Professor Stephen Cornell and if one listens to the success stories in the studies that he has conducted, unfortunately this paternalism has been the underlying factor for many of the failures of our Aboriginal peoples.
If I am hearing you correctly, and if I am reading things correctly, we are back to the same old thing but just under a different form of presentation. In other words, it is the Indian Act brought forward by Bill C-20.
Am I misreading this? I am not trying to put words in your mouth. I just do not have time to ask the questions that I would like to ask. Can you comment on that, please?
Mr. General: Again, thank you for the question.
We sit enlightened by all those volumes of reports that we have seen and we need only to dust them off. The most current document that everyone refers to is the Harvard project. When you start mentioning nation building, economic development and the bad word, ``sovereignty,'' which most governments in Canada have trouble with in the context of First Nations' governments, those are the pillars on which we will build our new fiscal relationships.
Only when we have the courage to go back and dust off RCAP, and the Penner report, and dig into those pages and extract the essence of what they are trying to say to us, will we start on that new path, that good path, that bright path.
That is to the exclusion of looking at the Indian Act. There is so much that we have already spent our time and energy on, so many positive productive pages in those documents; senator, we begin there. We ignore the Indian Act and look at the current capacity we have.
First Nations across Canada have tremendous capacity, even from the time that RCAP was provided to us almost 10 years ago. That is why I am hopeful that as a young leader like Chief Phillips we start down that road while we are still young enough to make an impact on it because change takes a long time. In using those documents, senators, I hope we can start on that path.
Mr. Phillips: Senator St. Germain, with respect to options, I made a reference to a change in the Indian Act, which called for this proposed legislation to be included under the general application provisions, section 88. That will apply to all First Nations communities that are under Indian Act, regardless of whether this proposed legislation references them or not.
Senator Pearson: The subjects under discussion are complex and complicated when you get into financial arrangements. I know the credit ratings in Standard & Poor's. This is the globalization of the world in which we all have to function and we all have to give up a bit of sovereignty, unfortunately, but it seems to be the way things go.
It seems to me that your arguments in some sense are with some of your other First Nations, because we have 100 who seem to want to support Bill C-20 and the rest do not.
I am trying to follow that argument and I am curious, what success you feel you are having with those other First Nations who seem to support Bill C-20?
My second question is perhaps more of a comment than a question. Everyone brings up the issue of consultation and it is a very difficult word to actually describe.
I spent some time over the weekend with a number of young people, including a number of young Aboriginals, and they expressed some frustration because they have not been consulted.
If you have a referendum, at what age will you engage the youth in the process?
You do not have to answer that one. I would rather have an answer to the first one. I just want to speak up for them because they want more say in the decision making process.
Mr. McCormick: I have a response to your first question in regards to the national association trying to appease the differences in opinion. One thing I want to point out is that there are 100 that are for Bill C-20 but there are 500 plus against it.
The resolution passed at the assembly was that if the government put forward Bill C-20, specifically with the First Nations that wanted to be part of it, they would be noted in the proposed legislation and it would be closed in that fashion. It would not have this opt-in or opt-out.
There is a precedent set in regards to this type of legislation in the fact that your harmonization tax only applies to three provinces in the country.
Mr. Phillips: I want to give a quick response to your first question. You say that this is a quarrel between other First Nations. No, it is not. There are other communities that see advantages and some do not see any benefits whatsoever. It is being characterized and pushed through by this process as a quarrel issue and it is not.
One other thing that I would like to caution the Senate on is that there is precedence in regards to government following along this particular avenue with respect to the First Nations Land Management Act. That was a piece of legislation that was just prescriptive to a very few First Nations communities that wanted to engage in options in terms of how to utilize their lands.
As of today, the federal government, through the Department of Indian and Northern Affairs provides no other resources to First Nations communities when they talk about land management regimes other than through that particular act.
Going back to what Senator St. Germain had asked before about the impact and optionality of this, it is that which we see. We have historical evidence in seeing this path go there. It is not a quarrel between First Nations, but against the process in the way the government tries to interpret what is in our best interest.
Senator St. Germain: Are you are saying that Bill C-49, the Lands Management Act, is now applied across the board?
Mr. Phillips: Our community had specific regards. We are dealing with land issues now within our traditional territory which we purchased in 1840. We purchased some more land and wanted the title to convert but cannot do that because of a distance to reserve policy, which as an Indian and Northern Affairs of Canada document does not apply to us completely because we are not a reserve. The only other times we can get dollars to bolster our land management regime is through this Land Management Act, which of course we have rejected.
The Chairman: Any other question senators?
Senator Christensen: The information that you have brought in our arguments have been extensive and in depth.
Of the five presenters, I take from what you have said that Bill C-20 is spot on with the exception of Mr. Anderson who said that if this has to go ahead then these are the types of amendments that are needed.
Were these amendments put forward when you were dealing with the previous two bills?
Mr. Anderson: Thank you for the question. MKO's previous position on Bill C-19 is that it was not dissimilar to the position presented today. It was just fundamentally flawed. There were changes in definitions and a wide variety of things that MKO believed would not be resolved and our reference to the Penner report and Royal Commission on Aboriginal Peoples is still contained in this submission and we believe that is where all these processes begin.
However, we have looked at all the records, the transcript, the proceedings, the discussions and investments that have been made and recognize there is a certain inertia going on.
If it is the intent of the Senate to recommend to the other place that Bill C-20 proceed, we have concerns recognizing that there is considerable support amongst many people for certain aspects of the proposed legislation notwithstanding our positions.
Regarding the quarrel issue and your question, I mentioned earlier MKO's position about recognizing the autonomy of our own member nations similar to resolution 31, 2002, of the Assembly of First Nations. However, our linkage to the framework agreement initiative is very much what the Grand Chief is saying; if this proposed legislation was isolated only to those First Nations that had arrived and negotiated an arrangement with Her Majesty, then it would be similar to looking at it as one of the self-government agreements perhaps without speaking to whether it is similar or not. We would be in a position to say that these First Nations have put themselves in a position where they are requesting that Her Majesty approve these mechanisms specifically to affect them. It is because of the opting-in clause of section 2 that gives concern that a simple grand council resolution will lock people into a process.
Without wanting to go down the road of questioning whether or not a First Nation has made the correct decision that is a distinction we wanted to make and that it is our read of resolution 31, 2002 where it says:
Respect the right of these and other First Nations to make their own local and regional agreements.
We would respect that but this is being presented as in-fact legislation with a broader scope for which others can opt-in. The others that may opt-in are unknown at this time and whether those First Nations received adequate information and advice is another road to travel. Bill C-20 has a broader application. Aboriginal First Nations' resolution as we understand it respects the negotiated arrangement between these First Nations and Her Majesty.
Senator Christensen: You touched on my next concern. You are saying it should be specific to those that have progressed to the point where they have had self- government agreements and gone through that process and this would be another tool to pick up off the table, whereas, those First Nations that have not gone on that route would not have the option to opt-in or opt-out. Having the option of opting in and out, it is far too broad in our particular opinions.
Mr. Anderson: We would agree. That is why batching in the statistical institute into the proposed legislation concerns us. It could be a stand alone statute, but the fact that you have this broad general application, a Crown corporation established to feed what really is something that we see as per the Aboriginal First Nations' resolution a negotiated agreement between identified First Nations and Her Majesty. They are two different things.
Senator Christensen: Even if you did have it specific to those First Nations that have self-government agreements, if Bill C-20 is implemented you would still have this addition of government agencies. That seemed to be a real concern from all the presentations in the fact that all we are doing is creating more agencies and not less. In doing so, we are making the pot even thinner because it is being spread out to more and more bureaucratic administrative costs.
Mr. Anderson: Yes, our vision over a decade ago was that the statistical institute would be an affiliation of First Nations governments working together to produce better statistics for the management and administration of First Nations. We in fact would be arriving at agreements with Her Majesty to access information that Statistics Canada and other agencies might have in their possession. We looked at the privacy consideration, the transfer of data, the types of security and prohibitions and in fact constraints that are in this proposed legislation in respect of the disclosure and who can handle it.
Our vision is different than what we see in front of us in many respects.
Senator Christensen: It is such a complicated situation and I think we could perhaps spend another couple of hours on questions.
The Chairman: We are running out of time. Chief Large, I notice in your presentation that you recognize fiscal resources flowing from the Crown. You say you need fiscal resources flowing from the Crown to deal with economic development.
I do not know your situation, the state of the area of the country in which you live, but when there are developments that go on, particularly opportunities for business, have you had a situation where you have to deal with that situation and in need of money to get the businesses going? How have you met that problem?
Mr. Large: Right now we have contribution agreements and these are written up by the Department of Indian Affairs and Northern Development. As an example, we only get about $398,000 per year for economic development. We have a social services budget of about $4 million. That is the present day arrangement.
What I was trying to say is there are unfulfilled obligations by the Crown in the area of resource sharing. When I began my presentation, I mentioned Treaty No. 6. The understanding was the surface resources were only to be used by Her Majesty's settlers and other subjects for tilling of the soil and taking care of their animals of the day. There was no surrender of subsurface resources. These are the things that I was trying to get at. Due to a lack of time, I am unable to do that. This is where we are certain that we have a rights and the opportunity for development. That is our base. That is our economic growth and development.
Right now, to access any economic development dollars there are criteria, paperwork and levels of approval in the bureaucracy, and business opportunities do not wait. They pass us by, and we go to the next one.
Several months ago we applied, and it took 10 to 12 months before we got an approval. By that time, the situation had changed in that business opportunity.
Senator St. Germain: Senator Watt, unfortunately had another hearing to go to in the House because of something that impacts the Inuit and the region in which he lives.
There was a concern that if the band council can enter into a situation without a referendum of the population of that respective band, there is a question of security of entering into financial obligations. There is a possibility that if the band defaulted, other bands could theoretically take over that particular band.
Are you cognizant of anything of that nature being a negative aspect to the way this particular proposed legislation has been written?
I am not sure about the details, but do you have a comment on that, Mr. Anderson?
Mr. Anderson: Bill C-20 as I understand it provides for the ability of the FNFA to seek financial management board intervention only in respect of sums that are related to the borrowings associated with the FNFA and not to the general funds of the operation of the First Nation council.
There was discussion about the distinction of the use of the term ``third party management'' in respect of Bill C-20 as distinct from the more common understanding that it would only be in respect of the management of revenue monies from tax accounts that would allow the financial management authority to step in.
Senator St. Germain: Therefore, it would not jeopardize other revenues.
Mr. Anderson: The proposed bill is written that way, but I have to say that although these are separate accounts strains on any First Nations resources tend to affect everything. The word we use is ``re-profiling,'' where you have a comprehensive fund arrangement that allows a First Nation to expand its total sum of contributions from, for example, the department, on its own needs. Where it is inadequate to meet any one of those needs, it will re-profile amongst other needs and make different priorities.
We are looking carefully at this particular aspect of trying to make a sharp distinction between these two deposits of funds and trying to do some analyzing to determine whether they could be kept apart, in practical application in respect to the band's administration.
Bill C-20 does not permit the entry into the other contributions that are not related to the borrowed amount, as I am aware.
The Chairman: We are out of time. Thank you all for your presentations, and I thank all the other witnesses that have come to observe our proceedings.
Mr. Phillips: Thank you. Honourable senators, I want to reiterate that I appreciate the opportunity to speak to you and that through your clerk, I will be available for any questions, follow up or other discussion, should you wish to do so.
The Chairman: Thank you.
The committee adjourned.