Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 6 - Evidence - Meeting of May 3, 2005
OTTAWA, Tuesday, May 3, 2005
The Standing Senate Committee on Aboriginal Peoples, to which was referred the subject-matter of Bill S-16, providing for the Crown's recognition of self-governing First Nations of Canada, met this day at 9:32 a.m.
Senator Nick G. Sibbeston (Chairman) in the chair.
[English]
The Chairman: Welcome, everybody, to today's meeting, particularly Senator Dyck, who is new to our committee. We are here today to deal with Bill S-16, an act providing for the Crown's recognition of self-governing First Nations of Canada. We have two witnesses before us: Ms. Maureen McPhee, Director General, Self Government Branch, Indian and Northern Affairs Canada; and from the Department of Justice, Mr. Allan Cracower. Welcome.
I was hoping that the sponsor of the bill, Senator St. Germain, would be here and introduce the bill to us.
Senator Gustafson: He will be.
The Chairman: We will give him an opportunity to do that when he arrives. In the meantime, our witnesses will go ahead with their presentation.
Ms. Maureen McPhee, Director General, Self Government Branch, Indian and Northern Affairs Canada: Mr. Chair, I am pleased to be here today.
[Translation]
I am pleased to have an opportunity to bring Indian and Northern Affairs Canada's perspective on the subject matter of Bill S-16, providing for the Crown's recognition of self-governing First Nations of Canada.
[English]
The Department of Indian Affairs and Northern Development has been an ardent supporter of identifying and developing new approaches that can facilitate and promote self-government, the principle goal of this bill. We recognize that various approaches could be used to expedite the recognition of self-government in Canada. The Government of Canada has been discussing some of these approaches as part of the follow-up to the ongoing Canada- Aboriginal Peoples Roundtable process.
We look forward to the ideas and recommendations that will emerge from the Senate's study, and believe that the committee's work may help to inform our further discussions with our Aboriginal partners on these issues.
[Translation]
The challenges that confront Aboriginal peoples in Canada represent some of the most troubling issues of our time. To resolve these issues will require genuine collaboration, honest consultation and concerted action.
[English]
The goal of this bill, expediting the recognition of self-government, is clearly part of the solution. The link between greater self-sufficiency and responsible, accountable governance in First Nation communities has been demonstrated repeatedly. Effective self-government enables a community to direct economic development and improve the quality of social services and physical infrastructure, all on its own terms.
The number of self-governing Aboriginal groups continues to grow. Most recently, Parliament granted significant legal powers and responsibilities to two first nations, Tlicho and Westbank. To date, the Government of Canada has concluded 20 modern land claims agreements. Approximately 45 First Nations and Inuit communities have completed self-government agreements, and approximately 80 more communities have approved self-government agreements in principle.
Although significant progress continues to be made, the pace of change has been slow. New approaches to the recognition of self-government, including a legislative initiative, might accelerate progress and hasten vital improvements in the conditions experienced in First Nation communities.
What would a self-government recognition act look like and how should it be developed? These are important questions. A recognition act could, for example, provide particular Aboriginal groups with access to a core list of standardized powers without the need for detailed negotiations on those subjects.
[Translation]
As to the question of how such an act should be developed, there is no doubt that this requires full engagement of Aboriginal peoples, provincial and territorial governments, and the general public. It would have to be informed by a comprehensive consultation process.
[English]
In this context, Mr. Chairman, the Department of Indian Affairs and Northern Development has expressed some concerns related to Bill S-16, providing for the Crown's recognition of self-governing First Nations of Canada.
Although the department agrees with the overall goal of the bill, we believe that First Nations, provincial and territorial governments, as well as the general public should have an opportunity to provide meaningful input, given the significance of the proposed changes.
Under Bill S-16, First Nations would be empowered to enact laws over matters that fall under provincial jurisdiction, for example, education off-reserve and child protection. In our view, such a provision in a piece of federal legislation is not consistent with the Constitution and implies that the Government of Canada is seeking to diminish or undermine powers granted to provinces and territories.
The law-granting provisions of Bill S-16 could also cause First Nations more harm than good. Provinces and territories could launch court actions that would effectively challenge the legitimacy of the jurisdictions of First Nations governments. These court battles could threaten the stability of even the most established First Nation governments and foster uncertainty among constituents. Such a situation would engender acrimonious relations between First Nation residents and other Canadians. This would also undermine much of the goodwill fostered by the Canada-Aboriginal Peoples Roundtable.
A related concern arises with the provisions of Bill S-16 for the designation of Aboriginal lands. In essence, under this legislation, a First Nation can designate territory it acquires as Aboriginal lands once it gains the approval of a majority of qualified electors. Bill S-16 makes no accommodation for the fact that the provinces have jurisdiction over most of the lands that could be affected. Again, provincial-federal relations would suffer the consequences.
Bill S-16 empowers First Nations to create laws that touch on a broad range of matters that fall under both federal and provincial jurisdiction, such as the administration of justice. The bill grants such powers to enact other laws without clearly defining the scope of the power.
Another significant concern that we have relates to the issue of financing and implementation. Although the financial implications of the legislation are enormous, the question remains: Who will pay the costs of self-government?
This lack of certainty about financing would lead to one of two scenarios. The first would see Canada bear sole financial responsibility for First Nations self-government. This would exert tremendous pressure on the federal budget. The second scenario would see First Nations assume a large measure of financial responsibility, which could effectively deny poorer First Nations access to the benefits of the bill.
[Translation]
All of these issues serve to demonstrate that a collaborative effort is needed to produce effective, comprehensive and enduring solutions to the issues facing Aboriginal peoples. Such an undertaking must directly involve Aboriginal peoples, along with federal, provincial and territorial officials. This is the cooperative approach we are trying to take through the Canada-Aboriginal Peoples Roundtable.
[English]
Launched a little more than a year ago, the historic round table process has involved dozens of federal departments and agencies, along with provincial and territorial governments and Aboriginal organizations. Aboriginal people participated directly in discussing policies that address the issues they face. Together, Aboriginal people and government officials discussed policy options on lifelong learning, health, housing, economic opportunities, accountability and negotiations.
The need to expedite the recognition of Aboriginal self-government in Canada was one of the many key issues raised at the sectoral session on negotiations. Various approaches that could be used to achieve this goal, including a recognition act, were discussed by participants. We look forward to engaging Aboriginal partners on the various issues raised through an upcoming policy retreat which will involve the members of the cabinet committee on Aboriginal affairs and national Aboriginal leaders. The results of the follow-up sessions, including the issue of self-government, will be discussed at that time, along with the next steps for moving forward.
As seen with the ongoing round table process, effective solutions to the problems that face Aboriginal peoples can only be designed and implemented by following a consultative, collaborative and comprehensive approach. Only through close cooperation can we identify and secure access to appropriate tools and mechanisms, such as self- government. It is our view that, through concerted effort and conciliation, we can create the conditions necessary to foster greater prosperity for Aboriginal peoples.
An essential part of this process is a careful, comprehensive and skilful study of the subject matter of Bill S-16, as has been undertaken by this committee. Thank you.
The Chairman: Thank you very much. We will delay questions until Mr. Cracower has given his presentation.
Mr. Allan Cracower, Counsel, Indian and Northern Affairs Comprehensive Claims, and Northern Affairs / Self- Government and Strategic Direction, Department of Justice Canada: I do not have a formal presentation to make at this point. However, I would take this opportunity to say that, having had the privilege for the last 10 years of working in the field of Aboriginal law, I would commend Senator St. Germain and others for this important initiative.
I am sure you would agree with me that, given the Crown's fiduciary relationship with Aboriginal people, it is essential that, not only should the Crown's self-government objectives for them be laudable, but also that they should be realized in a legally sound and practical way. It is with this in mind that I will provide my comments to you this morning.
The Chairman: It would be prudent to give Senator St. Germain an opportunity to say a few words, since it is his bill.
Senator St. Germain: I wish I had received submissions from our witnesses beforehand. That would have put us in a better position to respond, Mr. Chairman. I recognize that the department may not look with favour upon another body coming forward with enabling legislation, but it would have been proper of the department to at least advise us of their views.
Having said that, I appreciate the fact that you are here. Thank you for your presentation.
In a nutshell, we are trying to establish a more efficient way to expedite a process for our Aboriginal peoples. The situation is improving. Significant changes in the self-government process have occurred since the early 1980s. However, we deal with our Aboriginal peoples on virtually a daily basis, and we know that the process, in its present form, is cumbersome and expensive. That is why Aboriginal nations themselves have asked us to do this. Several have given careful consideration to the bill, which will implement a framework and a mechanism to give the federal government statutory authority to recognize First Nations and the rights and powers of their governments, institutions and other bodies.
Both we and the Aboriginal people are looking for a way of not spending 10 years in negotiations. Ms. McPhee has put forward some of the challenges in dealing with provincial jurisdiction. The Aboriginal First Nations that are seeking this type of enabling legislation have an established land base, a fact that the paternalistic attitude of government does not recognize. There is certainly room for negotiation. Many claims have not been settled. Some believe that the paternalistic process of the federal government inhibits them, in many instances, from seeking their full economic potential, and that is why this particular bill was introduced.
I am not the first to have come forward with such a proposal. This process started by Senator Twinn from Slave Lake in northern Alberta. After he passed on, several Aboriginal groups in Alberta and Saskatchewan wanted this to proceed in a way that could expedite and mitigate costs and allow them to get on with their lives.
It is in that spirit that this is brought forward. In its original state, the bill was not acceptable for various reasons. We have gone through a fairly comprehensive study process, and we have tried to mirror several of the agreements that are in place in this bill.
I do not believe there is a quick fix to this problem, but I do believe that there should be some form of legislation in place that would allow those who are in a position to take advantage of the legislation to have a vehicle that will enable them to get on with their lives. This is what we are trying to do.
There is no hidden agenda. We have just ratified Tlicho agreement. The agreement with the Nisga'a was 20 or 30 years in the making. Our Aboriginal people deserve better than that. They deserve an opportunity, if they so desire, to get on with their lives at a much quicker rate than that. That is the purpose of the bill.
People who know a lot about this subject have worked on this for me. That is why I want to study what has been presented today by government, and perhaps ask that the officials from INAC return, if that is at all possible.
Ms. McPhee: As we indicated, we think the idea of a recognition act is worth exploring. We will be interested in knowing the results of this committee's work. We have no difficulty with the notion of a self-government recognition act. It is a worthy objective.
Senator St. Germain: My concern is that so many lengthy studies have been undertaken. The list goes on and on.
I want to be fair about this. Senator Sibbeston and I were just up North, and we know that self-government and the ability of Aboriginal peoples to attain self-government certainly is proving to be a positive step in many instances. The Inuvialuit and the Gwich'in are making progress. The Inuvialuit are well advanced. They have had self-government since 1982.
The Dogrib, Tlicho and the Sahtu are also in that area. We did not spend much time with the Sahtu, but we did spend time with the Tlicho and Dogrib bands. These people are positively asserting themselves.
If we embark upon another huge study, years down the road we will be no further ahead. I am encouraged by the fact that you think enabling legislation would be a positive step forward, but how do we get there? That is my question. How can we expedite this matter?
Our Aboriginal peoples are 20-some years behind the rest of Canadian society in education. How can they catch up? You can clearly see that, when they gain control of their own jurisdiction, their lives start to improve. This is not only true of Canada. It also applies to the situation in the United States of America. In that regard, Professor Stephen Cornell testified before this committee. He stated that the moment they have control of their own destinies, their lives start to improve.
It is easy to be critical. In the past, I have been critical of DIAND. My criticism is not directed at individuals, because there are tremendous individuals like yourself in the department, but the whole nature of the department is paternalistic. It is tough for some of these native bands to implement what they require to move forward. That is what drives this agenda.
As I have told the Liberals, this is not a partisan issue. My name need be attached to this proposal. I want to see results. I took this on at the request of native groups and the native leadership. The native groups of Manitoba, where I was born and raised, have clearly indicated that they have an immediate interest in this measure. How do we expedite this without going through a seven-year study followed by a seven-year evaluation?
Ms. McPhee: I do not think we need a seven-year study. How do we proceed? As I mentioned, there have been discussions of this idea and others to expedite self-government at the sectorial negotiation session of the round table process. That was an opportunity for participation by all Aboriginal groups to discuss, over a two-day period, various ideas. This was one of them. There was open discussion at tables. I moved from table to table and heard the differing views. In some instances, there was good support for the legislation, and at some tables there was less support. A range of views were expressed. A policy retreat is planned for the end of May to have further discussions of this. That will involve the federal cabinet and Aboriginal leaders. To further follow up on the round table work, a first ministers meeting is planned for the fall.
National Aboriginal organizations are interested in this subject matter and in engaging in further discussion. However, our experience last year with Bill C-7, to amend the Indian Act and to bring in more accountability, et cetera, was that there was much criticism of that and the fact that not enough consultation was undertaken. It is critical that this is done in consultation with Aboriginal peoples, Aboriginal leadership across the country, so that we can move in a direction that will lead us to expediting, achieving self-government.
You mentioned the Inuvialuit in the Northwest Territories. That is one of the tables for which I am responsible. They have made great progress in developing a public government model for self-government. In the Sahtu region, the Déline are approaching a final agreement, and they have moved to that final agreement in record time. It has not taken 20 years. Granted, they had already signed their land claim agreement, so they are now able to focus on self- government. That has moved along extremely well.
As time goes on, some groups may wish to continue in a negotiation mode. However, as you begin to have more models out there that others can build upon, then things may move more quickly.
In the Sahtu region, for example, the Déline has provided an outline of how one might proceed in that region. Other tables now are following up, using that as a starting point and making some adjustments to suit their own goals.
There is a range of ways of proceeding, but it certainly needs to be done in collaboration with the Aboriginal people.
Senator St. Germain: It concerns me that we have different situations, as you know, Ms. McPhee. We have set reserves in the southern part of the country and land claim agreements have been established in the North. We have success stories, but the fact is that we have, potentially, 600 nations to deal with, which have different needs across the board. This is strictly enabling legislation. No Aboriginal group would be compelled to use this. It is strictly a tool that they could use to expedite their plight. Some have a satisfactory economic base now, and those are the people who being most aggressive about asking for this measure.
I do not think you will ever get unanimous consent on this from Aboriginal groups. However, if at least a bare majority were in favour of this, we should aggressively pursue it so that they have an opportunity to get on with their lives and do things that they cannot do now under the Indian Act.
Senator Watt: First, I would comment on your presentation in relation to self-government that has been negotiated with a number of Aboriginal communities. You specifically mentioned that Inuit communities have completed a self- government agreement. That is not the case. The Inuit government is not self-government. It is a public government.
In regards to Nunavik, negotiations were undertaken between Makivik Corporation and the Government of Canada and the Government of Quebec. In trying to arrive at an agreement in principle, they wrestled with that, but I do not believe that they achieved it. They are moving towards a final agreement, but it is not quite there yet.
The same applies to the Inuit of Labrador. Land claims negotiations have been undertaken and completed, and they are waiting for the government to introduce legislation to implement that agreement. I do believe there is a self- government component in that agreement but, to what extent, I do not know. I do not have the details. Self- government is far from being a reality in Inuit communities, whether it is Nunavut, Nunavik, or Labrador.
The next item I should like to deal with is the drafting of a recognition bill. You talked about exploring various avenues in that regard, and you seemed to be looking forward to recommendations from this committee at some point. In saying that, you also mentioned the weaknesses of Bill S-16. As Senator St. Germain said, this issue has been around for a number of years, and quite rightfully so. I can remember dealing with this subject 18 or 19 years ago. It is not a new item.
I do not necessarily support the bill itself, but I do support the concept behind it. It is a useful tool to explore whether we can materialize similar enabling legislation that could be further developed in Inuit and Indian communities. However, you have told us that this bill is unconstitutional. I would challenge you on that because I do believe it compares with section 35 quite well.
As you know, section 35 is not part of the Charter of Rights and Freedoms. There are reasons for that. That decision was made when the negotiations were taking place for the precise reason that it was known if would conflict with the status of any Aboriginal community which would become self-governing. If that materializes in the future, there will be conflicts between the provincial and federal governments with regard to jurisdiction on the matter.
However, I think we can find a solution, although not necessarily in the way it is proposed in this bill. This is a one- of-a-kind situation. I cannot be critical of this bill because it is not up to me to say what any community needs. I believe that this proposal is ``scoped-down'' rather than ``scoped-up'' in size. The only authority that will have recognition will be within the boundary of the reserve, and that bothers me because the people I represent are not confined to that reserve for their economic and other well-being. They have to look to adjacent land to bring the bread and butter to their tables.
I also disagree with the issue of membership in this bill. Membership should be dealt with openly and honestly, and I do have some concerns about that.
With regard to this bill or enabling legislation, I am not convinced that this is the way to develop harmony between Aboriginals and non-Aboriginals. As the system is structured, it creates a power struggle between the federal, provincial, and territorial governments. I am not sure that we should be continuing along that same line which will create a situation whereby Aboriginal people will have a power struggle with a well-established instrument. Rather than establishing boundary lines for power, we should have a mechanism in the system that would allow Aboriginal people to pass a law which would then be subject to further negotiations. Perhaps a time limit of 60 days, for example, would have to be imposed. When provincial governments infringe on federal jurisdiction, there is room to negotiate between the governments. Why could we not develop something similar?
I am not sure whether I am making myself clear. I have not heard anyone explore this avenue, but I think it is worthwhile to consider Aboriginals having the power to pass laws, regardless of whether it will impact on the provincial, federal or territorial jurisdictions. That will force the system to deal with the matter rather than leaving it wide open and finding, at the end of the day, that it is too costly.
At times, governments waste a lot of money because they are jealous of our jurisdictions, rather than trying to contribute to the system to better the economy of the country. We should move in that direction rather than continue on the path that we have travelled for more than 100 years. It is time to find another way of dealing with this issue, which needs to be rectified.
There is concern about how such laws would be dealt with by the courts. The courts have been quite generous over time in recognizing the sensitivity of this issue. I think the court would be quite open to exploring an avenue before they deciding it is unconstitutional.
I want this matter to be on the agenda of this country and be dealt with by the courts. The courts may be the only catalyst that will move us in the proper direction, rather than continuing to take the same approach we have taken for more than 100 years.
The Chairman: Would either witness care to comments on Senator Watt's remarks or questions?
Mr. Cracower: I would preface my comments in response to Senator Watt by saying that, as a lawyer in the Department of Justice, my focus is, of course, on the law and not on policy.
However, on a personal note, I would indicate that I very much share your sentiments on the objectives that are being attempted to be achieved through this bill.
In particular, with regards to the issue of the Constitution and the rights of First Nations to exercise self- government, the Department of Justice takes into account, in conducting itself in self-government negotiations, that aboriginal and treaty rights are recognized and affirmed by the Constitution. That is not an issue whatsoever. The question of the bill in its present form may present certain challenges. That is our legal concern, not to achieve the objectives. I am not here in any way to be critical of what is being attempted but, more importantly, how it could be achieved in a practical and meaningful way. Not that I anticipated what you commented on, but certainly relevant to it — and I put this under a general heading — is the important relationship of laws and constitutional issues. You make reference to litigation. Is that necessary? Is there another way to avoid that scenario? The importance of legal certainty and predictability cannot be overestimated.
Which laws apply to whom and where? In reading this bill, those are some of the questions that came to mind. It is with that in mind that I reviewed the bill. I will make reference to some of the areas that perhaps could be further addressed to hopefully attain greater clarity so we have that predictability and certainty.
First I would refer to Schedule 2. Although there are areas of jurisdiction that the First Nations would likely be able to exercise without being legally challenged listed in the schedule, namely with respect to their laws in relation to matters that are internal to their communities, integral to their unique culture, traditions and languages, there are, nevertheless, subjects in the schedule that raise legal concerns.
I will cite several that raise some concern. In particular, item 13 makes reference to penalties. Section 92 of the Constitution Act, the corresponding provision dealing with exclusive legislative authority for the provinces, is referred to in section 92.14. With regards to item 14 of the schedule, which refers to marriage and divorce, there is a corresponding provision again under section 92, and that is section 92.12. For the purposes of being precise, I will make reference to the particular subsections.
Under the schedule we have items 15, 18 and 19. The corresponding provision is section 92.13. Next, with regard to item 34 of the schedule, the corresponding provision is found under section 92.11. Finally, for the purpose of citing examples, with regard to item 22 of the schedule, the corresponding provision is section 93.
With regards to the current subject of interest, I would to refer to item 36 of the schedule. This is quite significant. You will note it states:
Any other matters, activities or things relating to the First Nation, its members, lands, moneys or property interests, or relating to other tribal patrimony.
The phrase, ``other matters'' open up the potential for serious concerns. It could extend the law-making powers already listed in the schedule, which could impact significantly on powers of the federal or provincial jurisdiction. The potential infringement of the provincial and arguably federal jurisdiction and the practical implications arising from this happening warrant close collaboration with Canada and the provinces to ensure greater certainty about both the validity of the law as well as the harmonization of the laws of different orders of government. To some degree, that addresses the question: When does the Parliament of Canada take measures to address these potential uncertainties?
To complicate matters again with regards to jurisdiction, and I am doing so hopefully for the benefit of this committee, I would refer to clause 9 of the bill which, in part, reads:
(1) A law of a recognized First Nation applies only within the aboriginal lands of the First Nation, unless otherwise provided for in this section.
Then subclause 9(2) states:
Despite subsection (1), a recognized First Nation may make laws in relation to a subject-matter in items 14, 15 or 18 to 22 of Schedule 2 that is included in its legislative powers under its constitution, that apply to its members while they are within or outside its aboriginal lands.
Enabling the First Nations to legislate extra-territorially imposes legal and practical problems. A good example of this would be in the field of education. Section 93 of the Constitution Act provides exclusive legislative authority with respect to education to the provincial legislators. It is constitutionally questionable for Parliament to enact legislation respecting off-reserve education.
Moreover, even if a province agreed to enact appropriate legislation to enable a First Nation to make education laws regarding its members outside of First Nation lands, implementation of those laws would still prove to be operationally frustrating. Aboriginal and non-Aboriginal students could be subject to different laws regarding curriculum and attendance while seated in the same classroom.
The same confusion could arise under other heads of legislative powers listed in Schedule 2 where there presently exist exclusive or concurrent provincial or federal jurisdictions. Unless the laws of the different orders of government are harmonized, instability and legal chaos could occur.
Clause 33(1)(b) also impacts on the relationship of laws. It reads:
(1) A recognized First Nation may incorporate in its laws any provision of the Indian Act or of any other Act of Parliament that is (b) not within the legislative powers of the recognized First Nation.
My purpose here is to highlight the importance of bringing some kind of order so that ultimately, if this bill becomes law, it could be effectively implemented without the difficulties that you suggested, Senator Watt, in terms of the uncertainty and the implications arising from that.
My reading of the bill, notwithstanding that provision, leads me to conclude that federal laws apply to First Nations, unless expressed otherwise. Why then do we have clause 33(2)? That is my first question. However, if a First Nation does incorporate a provision of a federal law that it would not otherwise have the legislative power to enact — and by the way, this could arguably have the effect of expanding the First Nation powers beyond those set out in Schedule 2 — it could at a later date, pursuant to clause 33(3), repeal that provision of the federal law that was incorporated into the First Nation law. What would be the implication? Would the provision of the federal law that was repealed no longer have application to the First Nation, even as a federal law? These concerns warrant further policy and drafting consideration.
What happens in the case where there is a conflict of law? Clause 34(2) appears to establish a paramountcy rule that would govern Canada and First Nations should there be a conflict between a First Nation law and a federal law. Subclause 34(2) reads:
An enactment of Parliament applies to a recognized First Nation, except to the extent it is inconsistent with any treaty, treaty right, aboriginal right or land claims agreement affecting it, or the laws and constitution of the recognized First Nation.
In other words, in the event of an inconsistency between a First Nation law and a federal law, to the extent of the inconsistency, the First Nation law would prevail. How would this rule impact on what is commonly known as laws of overriding national importance? Among those laws of overriding national importance are those concerning such matters as have to do with public health, defence, emergency, matters that affect all Canadians. One could question whether it would not be in the beneficial interest not only of the First Nation, but also Canadians at large, that there should be acceptance of the paramountcy of laws of national importance.
In brief, it is clearly desirable that First Nations have a broad range of self-government powers. However, if the exercise of self-government powers results in the repeated need for court intervention to settle various and complex jurisdictional disputes, both the principle and practical gains of self-government will be reduced, if not eliminated.
There is undoubtedly a serious need to provide for greater legal jurisdictional certainty and a process for the harmonization of laws in this bill. In our view, the relationship and expectations of First Nation, federal and provincial governments regarding laws must be more effectively worked out for the objectives of this bill to be realized.
I share your concerns. I share your objectives. With regards to issues that could become problematic and require anticipation and how to address them, I believe that the bill could be further considered.
Senator St. Germain: I have a short supplementary. To date, in all of our negotiated agreements, are you positive that none of these sections is reflected in the existing agreements?
Mr. Cracower: The negotiations in which I am involved, and I believe generally speaking, give considerable importance to the significance of the relationship of laws. In other words, take the case of education, and take the case of the Mi'kmaq Act, which was at one point reviewed by this committee. In that we have harmonization of the laws. In fact, we had a tripartite agreement with the Province of Nova Scotia, the First Nations and Canada, so that the kind of situation to which Senator Watt referred could be avoided.
Senator Watt: We would appreciate it if you would share some of the knowledge and information that you have in this regard.
As well, we are aware that there is bound to be some stepping on another jurisdiction's platform. That is always the case when you are involved in negotiations. Here we are talking about producing a bill that will become law after it is passed by Parliament. I am not saying this is what is going to happen, but that is what normally takes place. Laws set a precedent.
As Aboriginal people in this country who have watched from a distance while other people have governed our lives from the time the first Europeans arrived, we are basically saying, ``We are not different from you. We want to control our own house. We want to have control of our own destiny and our own economy. We want to have a better handle on our social problems.'' All those things cannot take place as long as outside authorities outside continuously invade your household. This is what is happening. The Aboriginal people are saying, ``Enough is enough. You have almost destroyed us. Now you are invading not only our living rooms but our bedrooms too.''
Aboriginal people are trying to convey the message that they understand the jealousy between the federal and provincial governments. That is why there are jurisdictions under federal jurisdictions, provincial jurisdictions and territorial jurisdictions that are semi-jurisdictions. Aboriginal people are trying to tell the lawmakers the enough is enough. We want to look after our own households even though that may conflict with other jurisdictions. At least the system will be forced to deal with the issues rather than ignoring them.
You work for the Department of Justice. I would ask you: How much damage has the gun law, for example, done to the Aboriginal people as a whole? I can tell you that it has done a great deal of damage, economically, socially, culturally and in every other way. Animal protectionist groups have a lot of clout with the government, and the government has taken actions that affect small people. Some of those law have hurt us very badly in the past and they still do today.
We are not ignoring your authorities, but you must realize and understand that we have a right to live too. Our constitutional rights have not been honoured. They have been ignored from time one. That is why we are trying to put forward something that we know for a fact will intrude on federal and provincial jurisdictions. Unless we deal with those, we will never get to the bottom of it. That is the problem, and we need your help.
The Chairman: Is that just a statement?
Senator Watt: Yes.
Senator Peterson: Being new to this committee, I am desperately trying to get up to speed. I am not sure how pertinent my questions will be, but your answers will help me.
Today you talked about Aboriginal groups that already have some form of agreement in place and that they are moving forward on. Under what authority and what parameters was that done? Is it possible for Aboriginal groups to come forward and do a one-off with the federal government? It seems to me that there are enormous federal and provincial issues that must be dealt with here. I do not know where they fit in. Do you deal with them one at a time or will there be an overall game plan?
What about the Aboriginal peoples themselves? Where do they fit into this deliberation? Has there been a lack of consultation? Are we getting ahead of the process here again?
Ms. McPhee: You asked under what authority existing agreements were brought into effect. Most of the negotiations on self-government agreements that have taken place across the country have been on a tripartite basis, involving the federal government, the provincial or territorial government, and the Aboriginal party. In those instances, the agreement is brought into effect through the passage of federal and provincial legislation.
I mentioned the Westbank First Nation Self-Government Agreement that recently received Royal Assent. That is a bilateral agreement between Canada and the First Nation. It will probably proceed in the future to a tripartite agreement through the B.C. treaty-making process. They wished to proceed on self-government as a first step on a bilateral basis. In that instance, the jurisdictions are limited to areas of federal jurisdiction, and it was brought into effect through federal legislation.
That option is out there, but the inherent right to self-government policy, which is our authority for negotiating at this time, speaks strongly in favour of tripartite negotiations. With the exception of Ontario, all other provinces and territories have been involved or are involved in self-government negotiations. With respect to Nunavut, as you mentioned, it was a different approach.
Already some 457 aboriginal communities out of 670 or so are involved in a process of negotiation. Some are bilateral with Canada, but the majority are trilateral. The majority of them involve regional groupings of Aboriginal people rather than individual First Nations. In Manitoba, we are negotiating on a province-wide basis with all First Nations together.
This is approached in a range of ways, and the policy that exists at this time does allow that kind of variation to take place.
However, the issue that has been raised here of the need to enact each agreement by a separate piece of legislation, is time consuming. The notion of enabling legislation is one way of expediting the process.
Senator Pearson: I have seen this type of a bill come to us at various times, and I always end up with the same concern about the position of the women within the communities. Mr. Cracower, you talked about federal legislation covering matters such as marriage and divorce. However, we have concerns about the disposition of matrimonial property. Would you comment on how you view that issue? I do not see any protections for women built into this bill.
Ms. McPhee: Matrimonial real property is addressed in this bill.
Senator Pearson: Yes. It is addressed paragraph 14 of Schedule 2.
Ms. McPhee: This bill does positively deal with providing jurisdiction over matrimonial real property.
Senator Pearson: I agree, but there is no guarantee that any jurisdiction would be more in favour of the woman than it is now. From our study of matrimonial property on reserve, we discovered that women often find themselves in difficult positions.
I would feel more comfortable if this bill also contained some Charter protection for women's rights or something of that sort.
Mr. Cracower: Senator Pearson has referred specifically to women's interests. I will also touch on Senator Watt's reference to membership, because they are in fact one and the same. As you all well know, in 1985 legislation was enacted to ensure that certain Indians who otherwise were not members were eligible to become members. Consequently, there is statutory protection for these individuals. However, in reading this bill, there is certainly the opportunity for the First Nations concerned to ultimately make a determination regarding who or who should not be a member within their communities.
I could enunciate the provisions and give you the implications but, in essence, that issue is not clearly established, that is, whether there is particular protection for women in the context I have just addressed.
Senator Pearson: Or an opportunity for second generation children.
Mr. Cracower: That is correct.
Senator St. Germain: What protects them today?
Mr. Cracower: I am referring now to those who have acquired rights. As I am sure you are aware, the Indian Act specifically provides for that. Those individuals are well protected. In fact, in some Aboriginal communities, this was and continues to be a very contentious issue. An example of this relates to the situation in Kahnawake. In fact, because of differences arising from this issue, self-government negotiations between Canada and Kahnawake have been suspended.
What is being proposed in this bill could result in some Indians losing their acquired rights that, until now, have been statutorily protected. Again, I could cite references to various clauses in the bill which, in essence, give complete autonomy to the First Nations to make that determination, including one particular provision that speaks to the exemption of the Canadian Human Rights Act with regards to the determination of members on the basis of race or nationality.
Senator Watt: This is a supplementary question dealing with matrimonial property. I have been following what is happening in the House of Commons in regard to dealing with that subject matter, and they seem to be quite far away from finding a solution. This might be an opportunity for them to deal with this issue.
While dealing with matrimonial property, I think the scope of the question needs to be widened to include problems related to individual persons' collectivity.
The concept of a bill of rights needs to be considered. In other words, we need protection from ourselves. If the collectivity has a tendency to override that which is administered by an artificial person, a corporation, it could have a tremendous impact on the individual's ability. For that reason, the whole question of the collective versus individuals needs to be addressed, and it has not been dealt with yet.
I thought this might be an opportunity to raise this, because part of the mandate of our committee could be to attempt to find a solution to that problem. We need your help again in that area.
The Chairman: Do you want to comment on that, Mr. Cracower?
Mr. Cracower: I accept the comments made. I have no response to them at this point.
Senator Dyck: Good morning. I too am a new Senator. I am from Saskatchewan. As you know, in Saskatchewan, the Federation of Saskatchewan Indian Nations is a well structured organization. My uncle, Senator Hilliard McNabb, was a key component of that.
You talk about conflict in laws. As a person, I feel that my life has been governed by different laws. My definition as a person is governed by the Indian Act. I am a Bill C-31 Indian. My mother married a Chinese man and, as a consequence, she lost her treaty rights. My guess is that she purposely did that, because, in her generation, it was a great disadvantage to be a treaty Indian. She had more advantage by losing that through marriage.
As a Bill C-31 Indian, I am very concerned about membership. I live off reserve. In this bill, there is a big question as to First Nation membership for off-reserve members. Is it defined well enough in the document that those of us who live off reserve are actually still considered to be part of the self-governing aspect of a law?
In Saskatchewan, women in particular are moving off reserve because the ability to support themselves financially requires education. Many times, the jobs are not on the reserve. They are in cities and other communities.
I do not know the number of off-reserve members, but I would guess it is quite high. In Saskatchewan we are having a baby boom and we are pushing education. My guess would be that the off-reserve membership will continue to grow. The question of membership is particularly important.
You referred to subclause 9(2) on page 12 of the bill and said that there were certain items there that conflict with Schedule 2 with respect to matrimony, divorce, as well as liquor and gaming laws. My guess would be that those are there to protect, and in many cases to protect women and families. I would have to look at the schedule again. With respect to welfare and social services, custody, placement and adoption of children, I would guess those are mentioned there to protect families because, certainly in Saskatchewan and other parts of the country, there is a conflict in the laws. The laws are set by federal and provincial agencies and they may not be in the best interests of Aboriginal families.
My concern from a personal perspective would be that women, like me, who are not living on reserve but living off reserve, would be protected under the same rights.
Mr. Cracower: I respect what you acknowledged.
Senator Dyck: Do you think that passage of this particular bill would guarantee off-reserve Indians the same rights as on-reserve Indians in terms of self-government and the laws that apply? Would there be a distinction? In your view, should they be given the same rights?
Mr. Cracower: I respectively say, as the committee may be aware, the Department of Justice is not in a position to give opinions as such at this point in time. However, what I am attempting to do is raise some concerns.
With respect to that particular question, we have to recognize that there may be competing jurisdictions. It does not mean that the provincial jurisdiction should take precedent or that First Nation law should take precedent. It is a matter of working with the province so that there is some certainty so that people know exactly what law prevails.
That is the only point I am making. I am not commenting on the policy implications.
The Chairman: Is it not the case that, as long as First Nations people are on reserve, federal government legislation can be adopted to apply to people on reserve, but the moment they move off the reserve, then they become ordinary citizens and the attempt to extend the law to those people through an act like this would be difficult because you are intruding on provincial jurisdiction?
Senator Watt: No, not to the members.
The Chairman: It is a fact that as long as you are on the reserve you are a resident and within the jurisdiction of the land on which an act like this would apply. The moment you move off reserve, then you are subject to provincial laws.
An act that tries to extend its control beyond the boundaries of the reserve would be unconstitutional because provincial jurisdiction applies.
Mr. Cracower: Similar to the answer I gave earlier, without giving a specific opinion on the subject matter, what you are talking about is section 91.24, Indians and lands reserved for Indians. That is a jurisdiction which, at the moment, the federal government holds and that could be delegated, shared with the provinces, or exclusively exercised by the federal government.
I am not specifically answering your question. It is a complicated issue. It requires the harmonization of laws and cooperation. This is why my colleague made reference earlier to the significance of close collaboration and consultation, not only with First Nations but also with the provinces and territories.
Ms. McPhee: Under the self-government agreements that we are negotiating, some jurisdictions do extend off reserve and membership is one of them. Under those that have been concluded, a membership law applies not just to members on reserve, but to members off reserve as well. Off reserve members vote in favour of or against the agreement.
Senator Christensen: The vote is extended to the off-reserve persons. They can participate in legislation making or agreements that are being made on the reserve. They have the right to come back to vote on those, but the actual legislation passed on reserve does not come out at the present time to those that are off reserve.
Ms. McPhee: To most jurisdictions, no, but for certain jurisdictions, such as jurisdiction over membership, yes it does. However, those jurisdictions limited in number at this time. In Saskatchewan, we have been exploring the concept of certain jurisdictions extending beyond. This is what we are discussing with the province and First Nations. Take education as an example. Is there a way of having a school located in a city that is under the jurisdiction of a province-wide First Nation law? These are difficult questions, but these are things that can be and are being discussed and explored.
Senator Christensen: That could fall under the jurisdiction of the First Nation, but you are not mixing the pupils at one school where you would have some First Nations children. It would be specific so that anyone wishing to have their children educated in that school would be able to have them admitted there and would not have to split with another school.
Ms. McPhee: That is correct. This is where harmonization is important. Everyone agrees that this is how it will proceed, just as with French language schools.
Senator Christensen: In the Yukon, we have a final agreement. Different bands can do different things. They can deal with, say, education or health, but it applies specifically on the lands that they have negotiated. Those measures would apply on those lands. These are all trilateral agreements. They would enter into an agreement with the territorial government to administer a portion of the education according to their needs.
Mr. Cracower: We are speaking not only of harmonization in some cases; but it may also require legislative initiatives on the part of the provinces or territories.
Senator Léger: Senator St. Germain talked about the paternalistic attitude. Senator Watt, if I understood him, would like Aboriginal peoples to make their own laws and negotiate with the federal and provincial governments. Madam McPhee told us that there are already 457 of 650-plus bands already engaged in bilateral discussions. It must be legally in order.
The Westbank and Tlicho agreements have already been ratified. Senator Christensen just mentioned the Yukon. Senator Sibbeston mentioned the North West Territories. Things are moving along.
What would we gain with the passage of Bill S-16? Are we adding laws rather than diminishing existing laws? As a lay person, I get the impression that there are too many tickets and too many labels. Senator Dyck told us she is a Bill C-31 Indian. We are labelling everyone. We are doing more rather than less. Am I right or wrong? What do we gain from all this?
The Chairman: Who wishes to answer this? That is a very good question.
Senator Léger: Why are we here?
Ms. McPhee: We are here because the issue is not that things are moving, but are they moving fast and efficiently enough? That is the issue of expediting the process.
In the sense that Bill S-16 would be enabling legislation so that you need not go to Parliament every time you have an agreement, it would expedite the process. That is one aspect that would be positive.
We are looking at whether there is a range of jurisdictions that you could cover in legislation so that you would not have to negotiate every single time. This may not be the perfect list. We raised some concerns, but it is not impossible that you can find a list such as that. These are the sorts of things that this initiative is trying to deal with.
Senator Léger: We should be diminishing the number of laws. Laws become complicated, and that is not the goal of making laws. It is the opposite.
Senator Dyck: Mr. Cracower, thank you for raising this law question. Bill C-31 defines status according to Canadian law, that is, whether or not I am an Indian. However, it only applies to me as a first generation woman. It does not apply to my son, because he would be second generation.
If Bill S-16 became law, who would define who is an Indian and who is not? Would that be an example of the conflict in law? Would my First Nation be able to say, ``Yes, your son can be a member of our First Nation''?
Mr. Cracower: Again, without in any way wanting to be disrespectful, I cannot give you a legal opinion, but what I can say, as I said earlier, is that I feel the way the proposed legislation is formulated, there will be absolute discretion on the part of the First Nation to make a determination as to who its members should be.
Senator St. Germain: I would thank both the witnesses. I have a request. I do not happen to be a lawyer and I never wanted to be one. However, I do have a genuine interest in Aboriginal affairs, because I qualify under section 35 as a Métis. I look at the plight of our Aboriginal peoples and I do not see progress moving quickly enough, especially in the area of education.
Everything I have read, and everything I have been told leads me to believe that, when our Aboriginal peoples can control their own destiny, establish their own jurisdiction, then things will happen much more quickly. The quality of education improves and everything improves quickly. This is the objective. I think Ms. McPhee pointed that out quite clearly and I am encouraged by that.
If both of your departments have detailed analyses of the bill, could they be made available to the committee? This legislation was never thought of as being perfect when it was drafted. In your area, I am sure there is not a piece of legislation in the world that cannot be challenged legally. If we allow legal challenges to inhibit the process from going forward, we could be here for 100 years.
With this bill, we have tried to mirror existing self-governing legislation from Sechelt through the whole process. I am sure if you examined the Nisga'a legislation or any others, you would find things that you could possibly challenge. As has been pointed out, some of these were negotiated with the provinces, but Westbank was not.
You did mention in your presentation that the general public must be consulted. Is that an addition?
A detailed analysis of your evaluation of the bill could assist us to improve the bill and possibly make it so that it is acceptable to Justice and to DIAND.
We could get into a litany of details. However, my view is that, if our Aboriginal peoples have an inherent right to self-government, they should be able to govern themselves. If we do not give them that right, how will they ever dig their way out of the morass that we have created as a result of reserves, residential schools, and so on.
I am not faulting anybody. We are all responsible. We are all part of the problem. We should all be part of the solution as well. I do not see myself in confrontation with you people. We changed this bill dramatically because we knew of the concerns regarding Bill C-31, specifically, the membership and the matrimonial problems. We deal with this every day. I have been dealing with the matrimonial situation in British Columbia for the region that I represent. Particular situations come to light continually and we try to deal with those.
I have some friends in the Crow Nation and others in the United States who have progressed in some areas further than we have done. In other areas they have not done as well as we have in Canada.
We will hear witnesses on the matrimonial issue, which I am sure is first and foremost in the minds of our members, as well as on the membership issue.
Hopefully, we will proceed in a positive manner. My concern is not about who introduced the bill, it is about how we can improve the plight of our Aboriginal peoples. We can hear from lawyers and experts, but if we do not have the will to go forward, we will surely stand still or go backwards. Could you provide your analyses?
The Chairman: Is that possible?
Mr. Cracower: I am not sure if my colleague has prepared a comprehensive analysis. With regards to Justice, certainly we have not prepared a critical analysis. I certainly have addressed this bill as I attempted to reflect on it this morning.
However, I would be willing to meet with your counsel and to go over the bill generally because I do not have any written legal analysis.
Senator St. Germain: You have not written a detailed analysis.
Mr. Cracower: No.
Senator St. Germain: Have you, Ms. McPhee?
Ms. McPhee: In the presentation, we outlined our broad concerns, and that is what we have. We have nothing beyond that.
The Chairman: Self-government-type legislation has been attempted by the government in Bill C-7. It is an attempt to have accountability to the band membership. There is emphasis and concern that First Nations in our country adopt the accountability standards that have been developed in our country. There is a provision where the Auditor General would have a say as to whether it meets some Canadian test. That seems to be a bit extreme, that is, the Auditor General considering Constitutional issues. Is that within the mandate of the Auditor General? It would seem to be an unusual role for an Auditor General.
Would you be able to provide our committee with a comparison?
Bill C-7 was the federal government's attempt at providing legislation such as this to deal with self-government and accountability provisions for First Nations in our country. In a sense, that is the federal government's standard or understanding of what should be contained in a bill such as this. Would you be willing to provide an analysis or comparison between what the federal government's position is and compare it with this? If you wish, you can add the Tlicho, the Westbank and the Nisga'a self-government arrangements.
Would it be possible to provide us with that kind of analysis and comparison which I believe would substantially help our committee?
Ms. McPhee: We could do a comparison of that nature.
The Chairman: We look forward to receiving that so we can refer to it as we continue our study of this bill.
Senator St. Germain: With regard to the Auditor General, what we are seeking is accountability. We were trying to err on the side of safety by mentioning the Auditor General. Hopefully you will comment on that as well.
The Chairman: I would thank you for your attendance and the information you provided to us.
I would to remind members that we have a committee meeting tomorrow evening dealing with our special study, and we have invited the Auditor General to attend.
The committee adjourned.