Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 5 - Evidence - Meeting of May 6, 2009
OTTAWA, Wednesday, May 6, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 6:30 p.m. to study on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada (topic: issues pertaining to Indian Act elections).
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: I would like to welcome all honourable senators, members of the public and all viewers across the country who are watching these proceedings of the Standing Senate Committee on Aboriginal Peoples. This broadcast is available on CPAC and on the web.
I am Gerry St. Germain, a senator from British Columbia, chair of the committee. The mandate of this committee is to examine legislation in matters relating to the Aboriginal Peoples of Canada generally. On April 1 of this year, the Standing Senate Committee on Aboriginal Peoples decided to launch a study to examine issues related to Indian Act elections. There have been reports of problems with the two-year term of office currently prescribed by the Indian Act, as well as the establishment of a fixed or common-day election, and the possible use of removal or recall mechanisms should terms of office be extended.
The committee is seeking the views of First Nations citizens, their governance leaders and specialists in First Nations law issues in Canada on what changes are necessary to provide better governance of First Nations, including questions of accountability.
This evening, we launch the study by having specialists provide us with their opinion on the topic.
[Translation]
Let me first introduce the members of the comittee who are present.
[English]
We have with us today the deputy chair of this committee, Senator Sibbeston from the Northwest Territories. Next to him we have Senator Brazeau from the province of Quebec. Next to Senator Brazeau, we have Senator Brown from the province of Alberta. Next to Senator Brown we have Senator Raine from the province of British Columbia. Next to Senator Raine we have Senator Lang from the Yukon. Next to him is Senator Hubley from the province of Prince Edward Island. Next to Senator Hubley is Senator Fraser from the province of Quebec.
On my right is Senator Peterson from the province of Saskatchewan. Next we have Senator Cordy from Nova Scotia. Last but not least is Senator Lovelace Nicholas from the province of New Brunswick.
Allow me to introduce the three witnesses who will be addressing us this evening. We have Professor Bradford W. Morse from the University of Ottawa Faculty of Law. We have Senior Associate Mr. John Graham from the Institute on Governance. We also have Professor Shin Imai from York University's Osgoode Hall Faculty of Law.
Gentlemen, we welcome you to our committee this evening, and we are pleased that you could make the time to join us here on relatively short notice. Your remarks will be followed by questions from senators, if you are prepared to answer them, which you have in the past, Professor Morse. If you are all in agreement, we will start with Professor Morse.
Bradford W. Morse, Professor, Ottawa University Law School, as an individual: It is obviously a great pleasure to be present today with this committee as it embarks upon this important exercise. I intend to speak briefly to the three particular aspects of the Indian Act election issues, but before doing so, let me make introductory comments.
Frankly, it is extraordinarily difficult to look at pieces of the Indian Act, even where there is some coherence around those pieces, such as you are attempting to do in looking at the provisions dealing with elections under the Indian Act in relation to those First Nations still governed by those Indian Act election provisions. Frankly, even looking at the Indian Act in a piecemeal fashion is an exceedingly difficult task, not only in political terms but in practical and personal terms and their impacts upon First Nations.
Furthermore, these issues, as important as they may be, to some extent pale alongside some of the larger and more fundamental issues at a practical level within communities on a personal level, whether that be education, clean water, appropriate health care or on constitutionally protected issues in terms of Aboriginal title and rights, or more generally upon treaty relationships between those treaty First Nations and the Crown in right of Canada on issues of self- governance and, more generally, on the relationship between the Crown and Canada — both the Crown in right of Canada in terms of the federal government as well as the Crown in right of the provinces, their relationship with First Nations and, equally, with the Metis peoples and the Inuit. These are massive issues.
Having said that, however, that does not suggest that one should never look at the Indian Act or even look at components of the Indian Act but that one must appreciate the far broader and more fundamental context in which even these issues arise.
In terms of the three specific aspects that you are particularly looking at, as I understand them — the question of extending the terms of office for chiefs and councils from the current two-year regime that is set out under the Indian Act, the question of election dates and the possibility of fixed terms and fixed and common dates for elections, and then the question of removal from office — I will try and deal with each of those briefly.
The current two-year term is the cause, in my experience, of significant difficulty for First Nations governments, as it would be, and is, for any government with a two-year term, simply because of the shortage of time involved in that term. It is a particular challenge for First Nations governments, especially for those governments that have elected individuals who have not previously served as chief or councillor. They face a significant learning curve, which is much larger than other, smaller governments or local governments, let us say of a municipal nature, or even for city governments. Not only are First Nations responsible for local public service matters in the way that municipalities are in terms of roads, sewers, water systems, waste disposal, garbage collection and so forth, but First Nations governments are also the primary delivery mechanism for a wide array of essential public services that are usually delivered by much larger governments, and provincial governments in particular.
In addition, First Nations are involved as the primary deliverer of health care services. In most circumstances, First Nations are involved in child and family service issues, such as child protection and the like. Of course, almost all First Nations are operating schools within their communities, such as preschools, daycare operations, primary schools, and many are delivering secondary school education. They are responsible for those.
First Nation are also responsible for exercising control over all reserve land, whether those lands have been allocated under a certificate of possession or a certificate of occupation, or have been developed under customary land management regimes. They are involved in all of those issues, as well as, of course, most reserves have a larger percentage of common lands — or what might be regarded as public lands — than municipal governments do where, predominantly, the land within their territorial limits are privately owned lands and, therefore, private owners have some primary responsibility in relation to those lands and obligations of law in that regard.
Further, First Nations regulate natural resource activity including subsurface resources that might occur in reserve lands and forestry resources on those lands. They also have law-making authority and practical management functions in relation to hunting, fishing and trapping activity within reserve lands.
The breadth of issues that First Nations deal with, in a sense, are virtually all the issues that municipal governments deal with — whether small towns or massive cities the size of Toronto — and virtually all of the issues that provincial governments deal with. That is a very large array of issues with which to come to grips in the context of a small community with a limited human resource and financial base.
The vast majority of First Nations are extraordinarily dependent upon externally-sourced funds for their operations through transfer payments. These payments come mostly from the federal government, but also from the provincial governments. This means that they do not have control over a large part of their budget, which has a significant impact.
First Nations governments — the chiefs and councils — are the primary representative in dealing with the funders on which the community's survival depends for provision of services to their citizens. The chiefs and councillors are also the political representative, and are therefore responsible for interacting with federal government officials and ministers, provincial government officials and ministers and with neighbouring municipalities.
Again, many First Nations operate on some equivalent of a cabinet portfolio system in which individual councillors take lead responsibility in particular areas. One councillor may be responsibility for education and another for health care, et cetera. Therefore, they need to learn that portfolio while also being involved in everything else.
First Nations are relatively thin in the public service on which they rely. They do not have a battery of officials in each of their departments who can prepare wonderful briefing notes that go back and forth from official to official and are revised many times before finally seeing the light of day, compared to when a minister gets such a note. They really are hands-on with these issues. They need to understand them in a far greater depth of complexity and the practical implications of any decisions they make upon people in their communities. They do not have the luxury of delegating to, or getting information from, a large civil service. Nor have they the luxury of being removed from the people most affected by their decisions. Instead, they will be called at two o'clock in the morning by their auntie, uncle, niece or child, if the decision they make does not go so well.
These are frequently extraordinarily serious and very emotional decisions. They often involve allocating relatively limited resources amongst the citizens of those First Nations who are desperately in need of those resources. For example, there are long housing lists, and they mudy make decisions about who will and who will not get a house and where they sit on the list, et cetera.
All of that is in the context of a two-year term. Frequently, attention on re-election issues starts in about the eighteenth month. For new members of council or new chiefs, there is this learning curve at the front end and they have an end of term or re-election issues at the back end. That leaves a relatively small amount of time to be fully conversant with all of the issues for which they are responsible.
The attraction of moving beyond a two-year term is significant. Many First Nations have opted for three- or four- year terms where they have authority to make those decisions for themselves. Choosing two years is not a particularly attractive option.
On the question of establishing ``fixed'' or ``common'' election dates, it is important to distinguish between those two terms. The Indian Act has a fixed term; it is a two-year term. It is not open-ended or at the discretion of the chief, as is the case with the Prime Minister going to the Governor General to call an election.
The fixed term is also being used, increasingly because of the influence, particularly, of provincial governments and the federal legislation, to think of a certain date near the end of a term. For example, the first Tuesday in November is the presidential election every four years in the U.S. Common-day elections suggest, as the label indicates, that the election day would be common among First Nations, whether that would be set by agreement or by statute. It is important in any common-day scheme that this is something occurring by choice, and is not imposed from outside by statute or otherwise.
I would suggest that it is likely necessary that this not be a national date, but be regionally sensitive of particular issues in a region. For example, goose hunting season is a big issue in the James Bay Cree communities in Quebec. For other First Nations, it is caribou, moose, deer or commercial fishing seasons. Picking a date nationally that reflects the practical regional issues would be a significant challenge.
Similarly, there are also local patterns. Particular ceremonies, feasts, potlatches, et cetera, occur at particular times of the year that are not reflected nationally. There is also a necessity to allow for local surprise factors. Frequently, when funerals occur within small First Nations communities, elections will be postponed for a few days. If you set a national or even a province-wide fixed date, there is not the capacity to respond to those kinds of issues.
Common election days have some attraction, particularly amongst First Nations within the same tribal council or the same regional body within a province. There is capacity to move forward at the same time, rather than to have a turnover period over the course of a year among tribal council members. All of these issues need to be addressed by First Nations themselves.
In terms of the removal mechanisms existing under the Indian Act, I think there are a number of flaws within the current provisions set out in section 78(2). It includes factors of a somewhat limited significance in making fundamental decisions about the continuation in office of the chief or councillor. The question of missing three consecutive meetings may be a cause for concern within a community such that they may not re-elect a person if they are missing. However, it is not an issue on which one would decide whether a person is fit to continue in office as the chief or as a member of council, any more than of a municipal council, provincial legislature, the House of Commons or the Senate.
In addition, it fails to distinguish between the nature of indictable offences. It establishes that a conviction for an indictable offence is grounds for removal. It does not look at the question of whether the indictable offence for which the person has been convicted relates to the capacity to fill the function of chief or council that somehow reflects or relates to issues involved in their office.
Corrupt practices are specified, but there are other issues such as questions of fraud or breach of trust that one might say relate to the capacity to fill that political role. There are many other provisions for which people can be convicted that might speak to the person's appropriateness for re-election or perhaps appropriateness for continuing in office, but this is a wide net. It catches all indictable offence convictions.
This also means that for many mixed offences, it can be proceeded with by the Crown prosecutor either as an indictable or summary conviction offence. The choice of the Crown prosecutor about which offence he or she may choose to proceed with has this effect on the outcome. If they proceed by way of a summary conviction matter, then section 78(2) does not apply, whereas if it is an indictable offence and the person is convicted, it does.
In general, the nature of the removal provisions leaves far too much control with the minister for reaching a conclusion on this matter. In practical terms, the regional offices of INAC will make the determinations on the ground as to whom to question, what facts to gather, what to include in the report and what to recommend up the long chain of command to a minister's office. Throughout the process, there is no transparency or accountability.
The issue of accountability is raised frequently in relation to First Nations governments. This is an example where we have no accountability mechanisms in place in relation to either the department or the minister. There simply are no rules under the IA that regard the nature of the investigation, who must be interviewed, whether there is an opportunity to be heard, who will receive notice, whether the investigations will be conducted in public or whether there will be any element of public hearings — the kinds of things that one would normally anticipate might be applicable in circumstances of this nature. We do not have a clear requirement for a detailed, written report coming forward that speaks to the information gathered, the decision and the reasons for it. Likewise, we do not have a clear system for a right of appeal or judicial review in any way.
As I indicated, the investigation is largely done by officials from a regional office and the few sub-regional offices. They are in an almost untenable position. Their life is dependent in part on having a positive relationship with the First Nations that they are supposed to be serving, while they are tasked with investigating allegations of some impropriety. That is a rather awkward position to be in. Also, it is compounded by the fact that the regional office has an extraordinary level of power in relation to daily life within First Nations communities. It is the primary entity that decides which funds a First Nation will receive, in relation to which areas and in what quantum. Thus, the party that decides virtual issues of life and death within a community is trying to have a good relationship with that community while it is tasked to investigate challenges to the appropriateness of the political leadership, or at least one member of that leadership within the community.
Clearly, it would be preferable for this function to move outside the secrecy or invisibility of the Department of Indian Affairs and the minister's office. This should be at arm's length, not only from the department but also from the federal government as a whole, and to do so in terms of looking at issues such as a First Nations elections commission that could build up the necessary expertise. In my experience, INAC does not develop expertise in investigating these issues because it does not do it often enough.
I will move on to the body that is sensitive to First Nations dynamics. Even without a requirement for legislation in the area of Indian taxation, we saw the development of the Indian Taxation Advisory Board. Frankly, the activities of Indian Affairs that used to deal with tax bylaw matters in general was put outside of the department to the Indian Taxation Advisory Board. Granted, the members of that board were appointed by the minister but they had a high level of independence and came forward with respect from the First Nations communities. While they officially advised the minister in these matters, they worked actively with First Nations to refine bylaws so that they would be in a position as a board to recommend approval of those bylaws. I am not aware of any circumstances, although there may have been some, where a minister ever rejected that advice. We have moved on so that that entity has been replaced by one with a statutory base.
I use that as an example to suggest that it is possible to move forward without legislative change if there is First Nations support. Having a statutory base for such an entity could be beneficial, and would be appropriate if it were done through a bill drafted jointly by Canada and the Assembly of First Nations. Perhaps it could be done through a chiefs' committee drawn from those First Nations in Canada who are under Indian Act Election rules because they would have a particular interest in this regard.
A version of that idea was discussed by a previous witness before this committee, Mr. William B. Henderson, in terms of the First Nations Land Management Act. In the past, I have had a great deal of involvement with the FNLMA. These kinds of changes do not impact on all First Nations, so such changes can be done by First Nations that are interested and could be affected by them.
It seems that such an independent body should be both known and visible within First Nations communities. Section 78(2) is not exactly the provision that people in First Nations communities read before they go do bed at night and think about what it all means. An independent body would have an easy application process, at no cost to the parties, that would investigate speedily, which is a huge challenge right now. Frequently, these issues linger on and the First Nations government, particularly in smaller communities, find themselves somewhat hamstrung by uncertainty. Such a body could conduct hearings and issue written reasons open to First Nation members both on and off reserve.
As a general matter, I would suggest that no bill should come forward unilaterally because extensive consultation is required. Canada has extensive experience with such consultations, some of which is good. There are good examples, such as the Joint Ministerial Advisory Committee done through the AFN and the federal government. We have lots of experience on bills being jointly drafted by First Nations and the government. It seems to me that this one clearly needs to have significant support prior to introduction by those First Nations that would be impacted by it.
I suspect that such a bill will have to be optional because some First Nations believe that no changes to the Indian Act should be brought about that has not obtained their direct consent. In light of the duty to consult and accommodate where appropriate, it seems that moving forward on a bill without First Nations' consent on something that involves the Indian Act would be unwise, if not inviting constitutional challenge.
The Chair: For our viewing audience, 252 Indian bands hold elections in accordance with the Indian Act, and 334 bands have custom elections. We are dealing with the first group. There are 29 that select their leaders as a result of their self-government agreements, and 10 to 15 bands follow other leadership mechanisms, such as hereditary or clan systems. With that information, the viewing audience will know what we are talking about. We are talking about the 252 Indian bands that fall under the Indian Act.
Mr. Morse: It is roughly 40 per cent.
John Graham, Senior Associate, Institute on Governance, as an individual: I always like following Mr. Morse. He is so erudite and comprehensive that one is left saying only that I agree with Brad, and we can move on. Sadly for me, I should have talked to Mr. Morse beforehand to have an idea of what he planned to say. I have taken quite a different tack so I cannot simply fall back on his words.
I have provided a PowerPoint presentation with some speaking notes. I hope most of you have the notes so that I can go through this quickly and then take questions.
As a brief introduction, the Institute on Governance is a not-for-profit organization and completely independent from the federal government. Sadly, we do not receive any sustaining funding. We are a charity, so if anyone wishes to provide us with a small charitable donation, Mr. Morse has my tin box and you can given us a couple of toonies if you want.
More seriously, we have been in business since 1990. We have been in the Aboriginal area since about 1996. We have done about 350 governance-related projects, so my comments, to a certain extent, are empirically based. Our uniqueness, in some sense, is due to the fact that we do a lot of work for various federal government departments, as well as some provincial governments, but we indeed do a lot of work for Aboriginal organizations as well — all three: Metis, Inuit and First Nations — so we have a bit of a sense of the relationship and the divide by which that relationship is often characterized.
In my presentation, I will start broadly and narrow down to your electoral issue. My presentation will start with these two fundamental questions: Why is progress so slow in improving the well-being of First Nations, and what policy approaches relating to governance, and in particular electoral reform, might improve the pace of progress? My slide 4 has essentially my IOG conclusions. I am speaking on my own behalf. The IOG works on the basis of our individual researchers having their own perspectives. This is not a perspective that the board of the IOG would necessarily share. That is our standard way of proceeding.
First, governance matters a lot. I will come back to that in terms of determining the well-being of communities, and indeed states. The First Nations governance regime is highly dysfunctional and acts as a brake to achieving better socio-economic outcomes. The third bullet is that there are no magic bullets and no grand strategies that will fix the situation. There should be no illusions on your part that anything you might deal with here will have a major impact in terms of improving overall governance. To a significant degree, and thank God I can have something here that echoes Mr. Morse, the pace of progress will be determined by First Nations themselves. Finally, there are some federal approaches that might help the situation and some of these relate to elections.
Slides 5 and 6 simply quote some of the evidence that governance matters, and I will not bore you with some of that. There is a lot of international evidence to the effect that governance and well-being are closely linked.
Let us go to some of the key characteristics that are important in thinking about First Nation governance. The first one does build on Mr. Morse's initial comments about the scope of the responsibilities that First Nation governments have, and I characterized it differently, in terms of the superlative. First Nations governments are the largest local governments in the world. We often do not use the word ``largest'' when we talk about First Nations because they are small communities for the most part, averaging in the order of 600 residents, but it is hard to find any governments at the local level that are as large when measured by per capita expenditures. You can see the per capita expenditure data I have there. Roughly, First Nations are spending about 10 times what average municipalities in Canada are spending. This is not an argument that First Nations are overfunded — far from that. In fact, there is lots of evidence that they are indeed underfunded for their particular sets of responsibilities. The argument here is that they are very, very large, and they also have very large public services. For example, in one community that I worked that had 1,600 residents, the public service was 450 people. These are very large governments, no matter how you cut it. It is important to remember that.
The second characteristic that is important is that they are essentially very unbalanced governments when you look at other examples, certainly in Canada and the rest of the world. The bubble diagrams on slides 9 and 10 try to illustrate that point. In essence, in First Nation governments, you do not have the kind of countervailing forces of civil society, such as an active private sector and a media, that essentially counterbalance the kind of power that operates in most governance systems. What we have with First Nations is essentially a very unbalanced system of governance, and slide 10 tries to illustrate that.
The next characteristic, again, is another superlative. The number of full-time, fully paid politicians per capita really knows no parallel in Canada. The Indian Act establishes one per hundred, roughly. There is a minimum and a maximum. Of course, as Mr. Morse indicated, there is a custom approach to choosing that can get you away from that ratio, but in my experience there are a great many politicians per capita. As Mr. Morse noted, there are some exceptions, but many of these politicians are full-time, fully paid people.
The result of this, when you think of electoral reform, is the following: First, elections are hotly contested. You will see examples of some First Nations where 10, 11 or 12 people are running for chief, and for councillors you may have 50, 60 or 70 people running. The reason is fairly clear. These are fully paid jobs. They are very good job with lots of status within the communities, and consequently there is very fierce competition. Often, this competition also breaks down along family lines, which is again a characteristic of small communities. Because of the frequency of elections and the fact that they are hotly contested, you get a lot of political churn and a high degree of political turnover, and this again makes your governance system relatively unstable. You have a constantly new set of people — or at least a portion of them are new — coming in, many with very little experience at times in terms of what their actual duties and responsibilities are.
Finally, when have you this number of fully paid politicians, you have a high tendency to politicize the public service. As Mr. Morse mentioned, often you have a portfolio system where a councillor will be in charge of health or economic development, and the tendency often is for those politicians to act very much like a cabinet minister and start directing those staff and, indeed, getting involved very much into the public service works in a way that other governments tend not to act.
Fourth, there are a startlingly large number of regulatory voids relating to land. This gets to constitutional issues such as 91.24 and 92, and I have given you a long list there. The point here is that First Nations are often not constrained by the web of rules that other Canadian governments have, especially at the local level. This means that often the federal government is left to add a whole series of funding conditions that try, in some way or other, to impose this kind of regulatory regime in a contractual sense, and often this is done very ineffectively. Waste water is a good example of that. The fact that there is this lack of web of rules also exacerbates the political churn that goes on in many of these communities.
Mr. Morse mentioned my fifth point, which is the reliance on a high degree of fiscal transfers from federal government, and with very few exceptions there is not a tax relationship between citizens and their government. This has very important relationships for understanding the quality of governance. There is substantial evidence internationally, and indeed some Canadian evidence, that without a tax relationship you have really quite a different relationship between political leaders and citizens, and the propensity of political leaders to, among other things, pad public services with supporters and the like.
The other problem with relying so much on the federal government is that you are then subject to many of the federal shortcomings. Being a former federal public servant, I must say mea culpa here. One of the shortcomings I find is that few federal public servants have much experience in dealing with local governments. It is just not in their curriculum vitae to have had experience in dealing with education or with social assistance, or with all the kind of meat and potatoes issues that go on in local government. People like me get in there with little experience in local government and then are suddenly expected to run very complex education and social assistance systems and the like, or at least try to run them in some sort of policy sense.
Number six: Most first nations are too small for effective delivery of many of the services for which they have responsibility. Education and potable water are two particularly strong examples there. Finally, small First Nations means that they have a small pool from which to draw their leadership cadre. This can be, for very small First Nations, a real problem.
Number seven, First Nations communities have individuals with varying rights, varying status and membership residency, a situation that will only get worse over time. Once again, you have a toxic mix here of various peoples living on reserves with various rights and various privileges vis-à-vis voting, program rights and residency issues.
Number eight, the history of colonization leading to dependency and victimization is again something that is becoming less and less prevalent but is still an important factor facing many First Nations. I have these two quotations: ``The language of victimhood seduces then paralyzes'' and ``It is hard to see the future with tears in your eyes.'' The paradox here is that First Nations and Aboriginal peoples in general were clearly victims and continue to be discriminated against. The problem, though, is that a psychology of victimization is not one that will lead to rapid development of your communities.
Major differences between federal and provincial governments are over fundamentals such as Aboriginal rights, treaties and fiduciary duties. These tend to be major stumbling blocks in terms of both producing a lot of ongoing litigation but also major challenges for working between First Nations, the federal government and provincial governments.
Finally, and this is important for anyone dealing with any kind of policy issue relating to First Nations: The huge variation in governance capacity. I apologize for the quality of the slide on page 16. I will try to explain it a little bit. This is a community well-being index. It is an index measuring education attainment levels, per capita income, mortality rates and the like. It tries to show that the white bars are essentially Canadian communities and the darker coloured bars are First Nations communities. You can see the X axis is measuring, in essence, the community well- being index. The further to the right you are, the higher your community well-being index is; and the further to the left, the worse off you are. You can see from there that, in terms of the darker bars, the bell curve is very much wider. You are dealing with a huge variation in community well-being in the Aboriginal communities, much more so than the narrower end of the bell curve in the white bars, which are the non-Aboriginal communities.
In thinking about any kind of policy changes affecting First Nations, one must consider: What about those folks essentially on the left-hand side who are in really dire straits? In trying to see how your particular policy thrust or change will have an effect, I think you need to have some sort of an analysis about what will happen to those folks on the extreme left-hand side of that bell curve.
Drawing quickly to a close, I wanted to spend a little bit of time on slide 17, which is looking at evidence about the attempts to have governance reforms and what the evidence seems to suggest internationally. The evidence is, on the whole, fairly pessimistic. More positively, the World Bank has essentially stated that wealth is not a precondition of good governance, which is good news, and that the principal causality is good governance to good outcomes. That is another piece of good news; if we can affect governance, we may get better outcomes.
The next three bullets are fairly pessimistic. Relatively rapid improvement is rare but possible. The worldwide average has not improved over the past ten years. This should give anyone thinking about governance changes, especially third parties looking on other policies, a fair amount of caution. The evidence for effecting governance change in another jurisdiction is not good.
There have been some exceptions. I provide a little course in this, and I ask people what they think has been one of the major exceptions that has occurred over the past 15 or 20 years in terms of international governance. What country or countries have experienced rapid, positive governance changes? The answer to that is the European Union. The answer is in the strategy of European Union enlargement in that all of those former Soviet bloc countries — Latvia, Estonia, Lithuania, Hungary, Poland, Czech Republic, Romania and Bulgaria — have all undergone rapid positive changes in terms of their governance over a 10-year period. There is that coupled with a movement away from centrally managed economies.
The issue is, why has that happened, and is there any way in which that kind of magical set of incentives can be brought to bear in Canada? Of course, you can see some of the dynamics here in these countries and what they wanted to do. The change was driven by their populations themselves; they looked over their borders and saw that being part of the European Union was something they wanted to do. It was clearly positive. ``We can see that the well-being is clearly better than what we have now. There are jobs over there. This is what we want, and we will drive our political leadership to make sure that we can get into the European Union.'' It is clearly something that has been driven by these countries, driving their politicians to get themselves into the union, come hell or high water, and to effect the kind of governance changes that have been very significant. This is the major exception to a rather dismal picture of governance change in the world.
Coming finally to some policy ideas, I will skip over these quickly and move to the last slide, which is on the electoral reform. I now turn to Mr. Morse's analysis and essentially say that I agree with pretty well all of it. Electoral reform will have, at best, only a very modest impact on a much larger set of problems. That is the first notion. You are dealing with something at the edges here of a much bigger set of governance problems. Changes to the electoral sections of the Indian Act will likely garner significant First Nation opposition — as Mr. Morse has quite rightly put it — unless First Nations are involved from the beginning in terms of trying to crack those changes. I also agree with Mr. Morse that the changes would have to be voluntary. There is clearly a potential in section 35 here so that any unilateral change that would be contemplated by the federal government would be mightily resisted by First Nations.
I want to build a little bit on what Mr. Morse has said about some sort of an electoral commission. It might be possible to create a First Nations-controlled membership and election appeal mechanism on a regional basis. The one area I think is interesting, and that I would urge the committee to know more about, is the Metis Settlements Appeals Tribunal. I think you have a senator here from Alberta who may be aware of this. The eight Metis settlements in Alberta have something called the Metis Settlements Appeals Tribunal, which has been in operation now for around 20 years and has built up a kind of Metis set of laws and jurisprudence around Metis law that I think is startling, and one that could certainly be emulated in First Nations country.
The Metis settlements also have an ombudsperson, and that is a newer mechanism, which is a little more controversial. I would urge the committee, if you do plan to do any kind of work outside Ottawa, to inform yourselves about the Metis Settlements Appeals Tribunal and the Metis settlements ombudsperson. Those are two interesting mechanisms that could be applied, I think, more regionally than nationally, and that are really worth looking at.
I am also very big on voluntary accreditation as another possible route. You could have voluntary accreditation around an election process or leadership processes that could also be interesting.
Finally, I want to leave this thought with you. Is it possible to imagine a liberal democracy in small communities that does not rely on voting? It is all about elections. The fundamental issue is that elections are so disruptive to many of these communities. Is there any alternative to elections in small communities? Surely, with small communities of 600 people, the answer to that is probably yes, if only we used our imagination.
Shin Imai, Professor, Osgoode Hall Law School, York University, as an individual: I was asked to make remarks for ten minutes, so I will adhere to that.
Mr. Graham said that he agrees with so much of what Mr. Morse said. Just as a preliminary remark, I have to say that I did not agree with very much of what Mr. Graham said. It is not that I disagreed with it. I found the approach quite problematic. That is because he detailed 12 things that were wrong with Indian Act bands, their councils and how hopeless it was. Such an approach could lead to paralysis.
The problem I found with the way Mr. Graham presented is the underlying assumption that our system in the Senate and Parliament if fine. We do not have problems. Therefore, we have to deal with these Indian Act bands.
I could tell you that an Indian Act council got into a problem and 13 of them went to jail for stealing money and the whole thing collapsed. Or I could tell you that after a chief's term ended, he received $300,000 in cash that he did not declare right away for income tax purposes and kept in a safety deposit box. You would find such examples problematic.
We must keep these things in perspective. Of course, I love Canada and I am all for the system. These things need to be addressed, but I do not think it should be presented in such a way that the system seems totally hopeless.
I am Japanese-Canadian; I am not Aboriginal. I first went on to a reserve about 30 years ago. I have not done all the studies that Mr. Graham has. However, from my experience of having worked for the government, in private practice and teaching Aboriginal law for 15 years, I perceive that there has been tremendous progress. If you look across the country, you will see Aboriginal people in all areas. For example, I think about how much progress has been made in the legal profession. That, eventually, will relate to governance issues. There is a point to looking forward, to going ahead, to being positive and not getting stuck in statistics that simply drag you down and make the situation look hopeless.
I am happy to answer questions about specifics on those three things the committee is examining. My family hates me for this, but every year I read about 200 court cases dealing with Aboriginal issues and I update this book every year. If you want to know the trends, what the judges are saying and how they are dealing with these issues, I can answer questions in that regard because a lot of these disputes end up with the Federal Court. They are doing a terrific job dealing with difficult issues, given the legal tools they have. They are trying to adapt current administrative law principles in ways that make sense for First Nations governments. I can see ways in which they are dealing with some of these disputes.
I want to touch on a couple points. The first has to do with accountability and the second has to do with reform of the Indian Act. With respect to accountability, historically, if we look at where the accountability lay, the default position is custom elections. Under the Indian Act, Aboriginal bands had their own elections. Currently, elections under section 74 require the minister to declare that he or she deems it advisable that they have Indian Act elections.
There is a famous Six Nations case that I am sure some of you know about. The Iroquois Confederacy always had its own ways of governing. In 1924, there was a violent takeover of the government and imposition under section 74 of the Indian Act system. Did that solve their governance problems? No. What happens on Six Nations reserves is that of the 10,000 or 12,000 people who can vote, only a few hundred vote because the majority refuse to participate in Indian Act elections. They refuse to participate in anything related to the Indian Act. In situations like that, although the government has said that the Indian Act actually applies, changing these governance provisions will not actually solve the core problem.
For the majority of bands outside of the Indian Act, the reforms you are talking about will not apply to them. I did not realize this before. It is positive to talk about the possibility of change. However, if the idea is that somehow there would be an imposed change on custom bands, there is a significant legal problem because the default position was to elect community leaders by custom. It is clearly a right recognized under section 35 of the Constitution as an Aboriginal treaty right. You cannot simply have federal legislation apply to them. There is a whole process of consultation and justification. It may very well be that the courts simply will not allow that.
With respect to bands under the Indian Act, there is this issue of consultation and the necessity to work with First Nations in order to make those changes. Mr. Morse mentioned this as well. I would use the Six Nations as an example in this sphere. However, the types of changes that you are talking about are not the main problem. The main problem is legitimacy of the system, and accountability to the community, as opposed to accountability to the Minister of Indian Affairs. All elections under section 74 of the Indian Act place accountability on the minister. That is one of the problems with section 74 elections. Mr. Morse was saying if someone misses a council meeting three times, who deals with that? It is the minister. If you have a problem with the election such as someone who is running lives off-reserve, who deals with that? It is the minister. There is a problem with accountability. Instead of accountability being in the community, it is accountability to the minister. Again, I do not think the specific changes you are looking at will address that core, underlying issue.
I want to end, since I said I would finish in ten minutes. I am not against changes to the Indian Act. I have been teaching native rights at Osgoode Hall Law School for approximately 15 years. During that time, maybe four of five ministers have attempted to change the Indian Act. I cannot remember their names; there are a whole slew of them. If you think about the First Nations Governance Act, it is such a difficult thing to do that they have not succeeded in ever getting any of the big changes through. As Mr. Morse suggested, the changes that have been successful have ended up with the department saying it would be optional. The First Nations Land Management Act was not to be optional, but now it is a buy-in. Internal taxation changes were not to be optional, but in the end, they are optional.
These are particular challenges. I do not know if anyone has ever read to you the definition of residence on-reserve. If we want to change anything, this is what I think you should change. Previously, you had to be on-reserve for elections under the Indian Act regulations, called the Indian Act Band Election Regulations. These provide the nitty- gritty details of the requirements, such as 45 days' notice before calling an election and the functions of the electoral officer. One inclusion is the definition of ``ordinary resident,'' which states:
The place of ordinary residence of a person is, generally, that place which has always been, or which he has adopted as, the place of his habitation or home, whereto, when away therefrom, he intends to return and, specifically,
where a person usually sleeps in one place and has his meals or is employed in another place, the place of ordinary residence is where that person sleeps.
If you can figure that out —
The Chair: You are supposed to help us.
Mr. Imai: I love this. When anyone asks what are we to do about the Indian Act, I suggest changing this section.
The Chair: Thank you, professor. My biggest concern is that this must be enabling legislation — an opt-in situation. I do not want to prejudge anything before we hear what people have to say when we consult extensively.
The committee studied economic development when Senator Sibbeston was Chair of the committee. We travelled to Northern British Columbia, where a chief wanted self-governance. If you listen to Stephen Cornell and others from Harvard, this is the ideal. The chief had 50 people in his band and half of them were children and half were elders.
Capacity is the biggest challenge. We are dealing, in essence, with 252 bands. I would like your opinion on how we could go about grouping people by linguistic or treaty groups and establishing an electoral commission with a chief electoral officer and an ombudsman. Would someone like to try to respond?
Mr. Morse: One of the interesting things about the way the Indian Act is structured is that it speaks to the capacity of First Nations to subdivide or break away. It does not readily speak to the capacity of First Nations to amalgamate. The orientation of this act has been to break down historic nations into ever smaller parts. What you suggest, senator, entails quite a fundamental recasting of the opportunities and the orientation of federal policy, federal legislation and federal relationships with First Nations. It seems that there is no capacity at law for the federal government or Parliament, if it wished, to compel First Nations to work together to share services or activities, divide responsibilities amongst themselves, or compel them to group together. Currently, there is almost no opportunity to do so, even amongst First Nations who wish to do so, unless First Nations go outside the Indian Act through self-government arrangements, which the Nisga'a Nation has done. However, grouping together under the existing Indian Act does not meet any of their aspirations, and there is no capacity under the act to do so. That requires going outside the act.
The capacity of small communities underlying your question, in particular in British Columbia, is a huge issue if you add the impact of second generation cut-off implications on the future of those communities. There is a necessity to come to grips with it that entails creating opportunities for the communities to make those kinds of decisions and ensure that obstacles to a decision on their part to unify are removed and replaced with increased capacities to increase their size to be more efficient in an economic sense, and to have the human resource base to deal with the vast array of responsibilities that these communities have.
Senator Sibbeston: I come from the Northwest Territories where most Aboriginal people come from an entirely different way of life off the land to communities. The Inuit people seem to have taken on the trappings of government more easily. They have established community governments, government buildings, council chambers with nice, high- backed chairs and some money to work with. They accepted this way of democracy without much question.
The Dene in the North were a little more suspicious of the government system because many of them had their traditional forms of government and organizations. The Dene did not jump automatically into the territorial government system. They challenged the system and did not simply accept the democratic system as we know it. However, over the years, many have come to recognize and accepted the notion of voting in elections in a one-ballot, one-vote system.
A number of years ago, the Dehcho tribal council had an elder system whereby they had to vet candidates interested in running for tribal council. Even to this day, if there is to be an election in our area, the elders have a say, and they must vet the candidates, but there is a bit of resistance to that. For the most part, more reluctantly, they have taken on the democratic system. We are talking about the system of governance and accepting democracy as a way of government and leading people. It is a strange, new phenomenon so we should not be surprised that it has taken some time for the democratic ballot system to be accepted and adopted in Aboriginal communities. In a sense, some people would say that it is a White man's system and would not readily accept it. That is what we are dealing with. It is a difficult concept that is not easily accepted, although there is an acceptance of a democratic approach.
In White society, there are many people, but in native communities there are usually two or three big families. When you have elections, it is about that family supporting their candidate, and so forth. It is a different system and a different situation than in the normal, non-native community in Canada. If we recognize that, we would be more sympathetic and understanding of why it is not so easy and why our system just has not flourished so readily. I wanted to say that, and, professor, I got the impression that you recognized this factor.
Mr. Imai: I agree with you completely. That is a very insightful observation. I know the members of the committee know this, but it is not a ``one size fits all'' solution. Different Aboriginal peoples have different reactions. Even among First Nations, there is quite a large variance in terms of approaches.
I do agree at the end with Mr. Graham. He said something very interesting. Are we stuck on the secret ballot system, which is what you are raising? I read these cases of some of the elections where they work on family groupings. They work on representatives of families by consensus choosing a chief. They can be based on family circles. They can be hereditary. There is a lot of experimentation going on. I do not want to give the impression that doing that will suddenly solve all of the problems, because the reason I know about them is that they are in Federal Court, arguing that that family did not choose the right person, or whatever. There are still disputes, but that is what courts are for. That is why we have so many judges and lawyers, I guess.
You can see this kind of regeneration and this attempt to deal with some of the issues that you have raised, senator, and also that Mr. Graham has raised.
Senator Hubley: Thank you to each of you for being here this evening. It certainly has been informative on both sides.
Mr. Morse, you itemized the many challenges that our First Nations are facing. Given the large number of responsibilities that fall on the shoulders of our chiefs and council upon election, is it fair and reasonable for us to adapt a voting time frame from another model that perhaps does not relate closely enough, or at their stage of development, and should we then be looking at perhaps a longer time frame? I believe four years is a time frame that has come to us, but is that reasonable? Is that four years taken from other models, from more established governments, perhaps municipalities that have been dealing with this type of governance for a long time? Is it reasonable to take that time frame and suggest it to First Nations communities?
Mr. Morse: Thank you, senator, for an excellent question. Let me attempt to come at it in several ways and also, in a sense, to pick up on Mr. Imai's comment to Senator Sibbeston.
My experience and understanding is that, prior to the Indian Act, or where the Indian Act regime is not applied, First Nations were global leaders in democracy. Democracy, in my mind, does not necessarily mean elections with ballots; it means the voice of the people in the selection of their leaders and in the decision-making of governments. First Nations were extraordinarily democratic. I would agree with Mr. Imai that there are many options around how one envisions democracy beyond elections in particular periods.
One of the aspects of that now tends to get labelled by some governments as recall procedures. It seems to me that First Nations governments have a long history of recalls, whether that is dehorning chiefs or a common pattern of segments of the community breaking away and forming a new nation under particular leaders because they were dissatisfied with an existing one. There has always been, in a sense, a recall capacity.
One thing that is not presently in the Indian Act, except when challenging the validity of an election or the violation of section 78 for an existing chief and council, is the loss of confidence. There is no equivalent to loss of confidence in the house, federally or provincially, in First Nations governments. The issue around length of term may be connected to the question, in part, of the capacity for the members of the communities to demonstrate if they have lost faith in a particular chief or councillor.
The only concern I would have about length of term, particularly going much beyond four years, is that there is that capacity for the community to say that this is not working out, we have lost faith in this particular person as chief or councillor, and have some capacity to have that addressed through some form of recall mechanism developed within the community. Some of the custom election First Nations have that capacity, but we do not have that within the Indian Act.
I would suggest that the issue of loss of confidence or the ability to call an early election, if you will, is something that may be appropriate to be discussed with First Nations as you do those consultations, connecting that to the question of the term of office. The greater the presence of capacity for a community to change their minds about the current leader, it seems to me there then is a greater comfort about perhaps extending the length of time the holders are in office from the last procedure of selection, whatever that might be, whether by a show of hands or secret ballot or some other mechanism.
Senator Hubley: I have a comment on your first bullet on electoral form. Electoral reform will have, at best, only a very modest impact on a much larger set of problems. If I turn that around a little bit, could I say that more stable governance will give First Nations a better opportunity to deal with the many issues that are facing them today? I sense that this is sort of negative. Given the relationship between federal governments and First Nations, and provincial governments and First Nations, I think we must consider what our government is, and how we can best deal with First Nations. Perhaps we might be feeling that, if they have a similar government, that would make their task easier. I would like to see it more positively. I would like to think that electoral reform will bring some benefits to our First Nations communities, and I would hope that that, then, would translate into their being able to approach some of those many other problems that you have suggested. It would give them a better opportunity to approach some of those problems.
Mr. Graham: I was trying to temper your enthusiasm a bit that this would be a magic bullet. Perhaps I did not need to do that. Having some sort of stability in government is generally a good thing. If you look at some of the high performing First Nations, and again I do not have any data on this, many of them seem to have long-serving chiefs. They seem to have chiefs who, for whatever reason, have a certain charismatic approach. They seem to be able to win election after election and are able to develop a stable, longer-term vision which the community buys into, and those tend to be well-functioning governments. Ones with more political churn tend to be less stable; the directions change quickly, and that tends to lead to poor governance. Agreed, it could be phrased more positively, but I was trying to put electoral reform into a broader context for you.
Senator Lovelace Nicholas: Welcome, gentlemen. My concern is that I have been involved in Indian Act elections most of my life, and for one thing, most of them are corrupt. There should be more accountability. I say this because a person came to me and complained that they went to Indian and Northern Affairs to launch a complaint, and Indian and Northern Affairs would not even touch it. They said that the RCMP should be responsible; the RCMP refused to touch it. What do you think a good mechanism would be as an appeal system?
Mr. Imai: Right now, it goes to the Federal Court, and there have been suggestions to have an alternative. To me, having a regional panel or commission made of First Nation people, not all from the same community but across the spectrum, would be helpful. I know that brings its own problems, but part of the advantage is that it will be their job. As you say, sometimes it is hard to make contact with Indian Affairs officials, either because they have a lot on their plate or there are other factors at play.
If you had an actual, good commission working, it would be hard to pull the wool over their eyes because I think they would know how to get to the issues. You can point out the downsides: how do we know we will get the good people in there, and that kind of thing, and those are always issues. You might try to combine that with having a joint panel, maybe with some of the Federal Court judges or something. There are different ways of looking at the situation. The present system, which is that you either end up in Federal Court or you must try to get someone's attention at Indian Affairs, is not ideal. There is room for change there.
Mr. Morse: If I could add to that, I am not at all surprised by your comments, senator. One practical challenge is, even if you go into a regional office and ask for the person responsible for election investigations, there is not anyone. There is no person; there is no desk; there is no expertise, frankly, within Indian Affairs in which you could say that this is the individual, for the Atlantic region, for example, who deals with all of them. She has been doing it for the last five or ten years and has developed expertise on it. They have things they can look at for past experience and precedence for what has been done. That is not there.
The irony is that despite the fact that INAC is a large entity and responsible for election questions, at least for the election First Nations, not the custom ones, there is not that kind of expertise, so you cannot find a person to talk to. As far as the RCMP is concerned, in my experience, the last thing they want to do is investigate anything to do with the First Nations government. They have to be actively prodded. Even, frankly, when chiefs have asked the RCMP to investigate questions and the like within the community, they do not really want to go there. Even if the RCMP does, you cannot then get the provincial prosecutor to take on the case because they do not think it is important enough, and it is not quite within their job, either. The net result is that, even in blatant cases, there is not a ready vehicle right now to deal with these issues effectively. That can give rise to further problems.
The flip side of that is that you can get spurious complaints, and then there is a complaint launched against a chief or council and it is a black cloud hanging over their heads that they do not have the ability to disperse. Our status quo, despite it being here for a long time, really is a disaster.
Senator Lovelace Nicholas: I hope we get to the bottom of all this with this important study that we are doing.
Mr. Graham: I just mentioned two models that you could look at. There is the Metis Settlement Appeal Tribunal, and they have an ombudsperson. Those are interesting models, the only Aboriginal models I know of in Canada. There are lots in the United States, presumably, but those are two very interesting models. It may be that the Metis Settlement Appeal Tribunal only looks at land and membership at the moment, but there has been a study to expand their mandate into election issues and the very kinds of things that we are talking about here. That is a very interesting model to look at. I would suggest that senators might want to do that.
Senator Lovelace Nicholas: I imagine this is a long process and will take more than two years.
The Chair: Senator Lovelace Nicholas, I have asked our support staff from the library and our researchers to try and find the documents that support what Mr. Graham is suggesting in regards to the Metis settlements.
Senator Peterson: Thank you to the presenters. On numerous occasions in this committee, we have heard that the Indian Act is dysfunctional. You have sort of reinforced that view this evening, but we are charged with the task of looking into issues pertaining to Indian Act elections. Having said that, in your mind what are the advantages and/or disadvantages of trying to bring forward amendments to the federal legislation regarding elections, provisions under the Indian Act, or should we look at it from a totally different direction?
Mr. Imai: In my experience, as I said, over the past 15 years I have seen many of these bills go through, and they have always ended up as opt-ins or enabling legislation. As such — I am an optimist — one can do things that may deal with the situation, or may make improvements. That is a positive.
To be clear about the process, Senator St. Germain has said that there will be a process of consultation, and that is a good thing; and second, we need to be clear about the relationship that these changes will have with section 35 rights. For example, bands that remain in the customs system will not be affected. That would be an important point to make. Those are the observations I have in relation to your question.
Senator Peterson: We talked about the cost of governance being 10 times higher than municipal numbers, which is understandable because there are a lot of smaller bands. Also, there are many reserves closer to urban centres where 50 per cent of the members live off-reserve. Is this a governance problem that will grow or is this an issue that can be dealt with? What are your thoughts on that?
Mr. Graham: Just a minor correction there. When I said it was the cost of governance, I was talking about the per capita expenditures of the government at large, not the cost of the government itself.
The Corbière decision — and Mr. Morse has more expertise in this area than I do — has had a major impact on many of the First Nations just in terms of the administration of figuring out where their residents are, and trying in a reasonably professional way to get in touch with those people and give them the ability to participate in the elections. That will be a continuing problem, I would think. Perhaps Mr. Morse would like to add to that?
Mr. Morse: One of the demographic realities, even with the second generation cut-off impacting on a number of status Indians, is that the number of First Nations people is continuing to grow. There is nothing to suggest that that will change. The population will grow, and it will likely continue to increase in terms of the off-reserve constituency, which raises increased challenges. I think that is somewhat inevitable.
First Nations will continue to have ever more expansive responsibilities and, with that, there will be a necessity to have larger budgets to fulfil those needs. Health care budgets have skyrocket everywhere. There is no reason to suggest that they will not increase for First Nations. The difficulty, if anything, is that the rate of financial increase for First Nations over the last 15 or 20 years has not been keeping pace with the increase in population or the increase in costs. It has been rising, and one can expect it to continue to do so. These issues will continue to exist. The capacity issues and managerial challenge issues will keep on going forth. Hence, there is a growing need. First Nations want to address those issues more effectively.
Senator Brazeau: From the outset, I would like to respectfully clarify a statement that was made by you, Professor Morse, when you mentioned that the Joint Ministerial Advisory Committee was a joint committee between INAC and the AFN. In fact, there were multiple representations on the committee, including the Congress of Aboriginal Peoples and the National Aboriginal Women's Association of Canada at that time. There was also representation from independent individuals who represented the Membertou First Nation and other colleagues that you know, for example, Jim Aldridge, and so on. That is for the record.
You mentioned as well, Professor Morse, the issue about the duty to consult. With the federal government's duty to consult, in your opinion, does that equate with consensus by the group that is being consulted?
Mr. Morse: Let me try to address that question, both in terms of the current state of the law and the direction in which I think the law is going. The current state of the law is that the duty that is on the Crown varies depending upon the magnitude of the impact of the issue, how significant is it for the community, and, similarly, how clear are their interests in whatever that issue might be.
In terms of the particular topics that the committee is addressing now, for the 252 First Nations that are currently connected to the Indian Act election rules, I would be hard-pressed to see if any changes on that aspect would not be significant. It would be at the far end of the spectrum. As both of my colleagues have indicated, section 35 constitutionally protects the Aboriginal and treaty rights issues at play here when we are talking about any changes to leadership selection regimes. That puts it at the far end of the spectrum, which is not merely ``consult''; it is ``accommodate.'' We have statements from the Supreme Court of Canada that that, in appropriate circumstances, requires not merely consultation or accommodation, but consultation with the party that will be affected where they are dealing with existing rights or proven rights, and where the impact is significant. These election issues are at that end of the spectrum. It is not just that it is good policy for the government to consult with whoever is being affected on whatever the issue might be, and not even in this context that we have constitutional requirements on the federal government to consult in some circumstances. I think we are in the consent mode of that spectrum, so that any First Nations who will be affected by any legislation on these issues, at the very least, would have to be consenting to that.
That either means an opt-in format within the bill itself, or it means First Nations signing on in advance. For example, with the First Nations Land Management Act, the original group of 13 First Nations that were involved in that initiative were all on the initial schedule. They had already agreed ahead of time when they signed on to the First Nations Land Management agreement before the statute was even drafted. They pre-consented, if you will, rather than opting in after the fact, although the enactment of the land codes came in afterwards. You are looking at either one scenario or the other. It is only for those First Nations who have already consented, and they are on a schedule to the act, or it is optional legislation for them to come in afterwards. Merely consulting would be insufficient in this regard.
Senator Brazeau: If we go back and look at former Indian Affairs Minister Bob Nault's bill, the First Nations Governance Act, although it was not enabling legislation, it did provide for all communities who conduct elections under section 74 to develop their own leadership selection processes, including terms of office, eligibility to run for office, and the possibility to develop their own accountability frameworks as well. Many leaders during that time said that this was an imposed legislation, and that they had section 35 rights. In my opinion, First Nations communities would have had the opportunity to develop exactly the processes that could have reflected their own values, customs and traditions, but chose to boycott the process and not to do so, which led to the failure of the bill.
Mr. Morse: My colleagues may well be happy to supplement my comments on this — and I hope they do.
One of the hallmarks of so much politics in Canada, and this is especially true for First Nations issues, is that it is all about the process. The process frequently is more important than content or substantive details. Many aspects of the First Nations governance bills, on their own, would have been embraced by First Nations as particular pieces. As a whole, because of the process through which the bill came about, there was fairly widespread opposition.
In a bill that just deals with election issues — and even if it is clearly enabling and empowering in its orientation — if it seems to be coming from the Crown unilaterally, then I think it is doomed to fail. The process here becomes essential. It must be seen as something that is jointly drafted. It must be seen as something that First Nations are supporting before it hits the floor of the House of Commons or the Senate, and is subsequently considered by this committee and its counterpart on the other side.
Senator Brazeau: I was fortunate enough to be an observer on the joint ministerial advisory committee on that legislation. That committee was established to provide recommendations to the minister on how the legislation would have appeared. There was an open door given to every interested stakeholder who sat at the table, which included the Assembly of First Nations; they had representation at the table. That led to the development of the legislation.
I agree with your comment that it is all about process, but in my opinion, at that time the process was there for people to take advantage of so that they could have their concerns raised and addressed in that piece of legislation, to make it a better and stronger piece of legislation from which people could benefit.
I have one comment with respect to Mr. Imai's comment on the custom codes. I had the privilege of doing quite extensive work on custom codes during my previous role in the last two years. There are many issues with current custom codes across the country. There are many codes that are not charter compliant, which still exclude a lot of members from being able to participate in the leadership's election, whether it is by secret ballot or otherwise. There are age requirements that, again, fluctuate across the board, and then there is the issue of enforcement and redress. When communities operate under customs, the minister rarely intervenes in those types of situations where there might be a conflict.
There is a current conflict just north of my home community in Barrière Lake. There is the traditional custom component, and then section 74 elections were held, and those two groups within the same community are now fighting amongst themselves. One problem is that in the custom code there are not many rules that guide the electorate, or the possible electorate, as to how exactly the governance works in those communities.
I would be careful in saying that the custom code system is the system that has been traditionally acknowledged and has worked for First Nations communities because there are some significant problems to those custom codes as well.
Mr. Imai: I agree with you completely about that. I was not trying to romanticize custom codes as opposed to Indian Act elections. Each type of election has its own problems. I was only indicating that, just as a matter of law, custom elections are the default position. The minister has to do something, which is make a declaration, to go from custom to an Indian Act election. The minister can withdraw the declaration, and then it goes back to the default position. The points that you raise about the problems with custom codes are clear, and that gets me back to the dispute resolution mechanism.
Right now, the minister does not interfere, and it ends up in Federal Court, so the judges are doing their best to try to figure it out. These codes are not complete, so they have to read in provisions to make different parts fit together.
You can criticize by saying that those courts are not complete, either, but if you look at our laws, why do we have judges and what is common law? Our statutes are not complete codes. Not everything is in our Constitution, even. The Supreme Court has said that there are unwritten parts of our Constitution. We have common law, and a big chunk of our law as we know it, for example contracts, is not in any code. In Quebec it is, but not in the common law area in Canada. It is just decisions of judges, then they get law professors to write them up as important, and then they get accepted as the rule. That is my job.
Although I agree with you completely, you cannot get away from the importance of the dispute resolution mechanism in either system, be it the Federal Court or an Aboriginal tribunal, because there will be holes that need to be addressed.
Senator Brazeau: Just a quick point: I studied civil law, and we tried to codify everything and write everything down to try to make it easier.
Mr. Imai: And you succeeded perfectly.
Senator Lang: It has been enlightening in one way but depressing in another, as far as the last two hours are concerned. No offence to the speakers here, but you make it sound like an insurmountable task.
However, Mr. Graham, in a perfect world where you are in charge, where you have a two-year term but you have the ability to extend it to four years, and you could do it. Would you do it, and would you do it because you felt it would help the current system?
Mr. Graham: Four years is a better solution than two, but I would also premise that comment with the notion that you had better have some way of having some sort of dispute resolution or some sort of recall mechanism. Four years is a long time to put up with a system that clearly has gone off the rails. The answer to your question is yes, four, but you must have a good dispute resolution system or some way in which citizens can vent their problems through an ombudsperson, or something like that.
Senator Raine: I found this discussion very fascinating, and I thank you for coming. I agree with Mr. Imai that many things are changing and many good things are happening out there. I keep going back to the thought that our country is vast and the First Nations are very different, one from the other, with their heritage, their traditions, their needs and what fits them. It would be a mistake for us to look for one solution for everyone.
On that note, I would like to ask Mr. Graham to expand on his idea for smaller bands, namely, an option of choosing a leader without an election. Could you paint that picture for us a little bit?
Mr. Graham: Again, the dynamic in any of these small communities is potentially around families and kin groups. Mr. Imai made some reference to the fact that it is conceivable to have your family or kin group develop some process for having a representative from that particular kin or family as a way of developing your council, instead of having an election in which you pit family against family.
I have seen one other device that is interesting, and that is having a committee of elders, and you will like this, senators. It is sort of akin to being a Senate, where the council, in its decision-making, essentially defers in part to this elder committee, which has been constructed so that you have your kin groups or your family groupings represented on that committee, with the notion that you want to have a second opinion on that decision they are taking, so that no family is particularly disadvantaged by what council or the leaders are trying to do there. Those are a couple of ways of trying to deal with this family dynamic which, in many cases, makes the electoral process very disunifying and very disruptive.
Senator Raine: The other question I wanted to ask is on the customs elections because more than half of the First Nations are doing custom elections. What is the normal term, or is there a big variance in terms for those custom elections?
Mr. Morse: Have you seen data on that?
Mr. Imai: I have not seen data, but my impression, just from reading these cases, is that they are longer. I think Mr. Morse mentioned that they were going to three years or four year terms. I do not know if I have seen anything longer than that.
Senator Raine: It seems to me that the bands that have chosen to follow custom elections have done it by their own choice.
Mr. Imai: Yes.
Senator Raine: Maybe that would give us an indication of what that group of people, at least, would have chosen.
Mr. Imai: That would be interesting. Please send me an email when you find out.
The Chair: You have your instructions, senator.
Mr. Morse: One of the challenges is that there is no registry of customs election codes or rules. Indian Affairs does not have them all. It would be a bit of a task to try to identify. Coming at it another way, I cannot recall a single Federal Court case that has had involvement with the two-year term. All of the ones that I can think of are three- and four-year terms.
I would mention, as a segue, that the Federal Court of Canada is doing an excellent job in a difficult situation in providing dispute resolution where there are challenges on custom elections, the likes of which we do not have for Indian Act elections. The one downside, though, is you need to have money to initiate the litigation before the Federal Court, and there is also the issue of timeliness. Frequently, by the time decisions from the Federal Court finally come down, the term of office is already over. It may be a great decision suggesting that the prior election three years ago was invalid, but there has already been another election by then. Speed is critical on matters where there is some question, as the City of Ottawa is learning right now.
Senator Raine: Mr. Morse, do you know why the federal government chose two years?
Mr. Morse: I think it was because at the time two-years terms were common for municipal governments. I have not seen any documentation explaining that decision. That is only my impression.
Senator Brown: Mr. Morse, I was interested in your two conclusions. You said that sustainability is critical, but you need to get the incentives right, and that too much emphasis on short-term attempts would result in technical problems. I agree with both of those comments.
I had experience over a nine-year period on a planning commission outside a large city in Alberta. For four of those years I was a member and for five I was chair. We dealt with three different First Nations. One of them built a golf course with some expensive homes around it. They wisely leased them for a period of time, and they have already been re-leased. Another First Nation built a resort with cabins around a lake on the other side of the city. A third one sold a small piece of land for a link road around the city for about $70 million and built a huge casino.
If we let the native peoples make their own decisions on how they would like to be governed and for what terms, we might come out ahead. From your own observations, we did not do a very good job with the Indian Act. Perhaps going a bit slower might be the answer.
You made one comment with which I disagreed. You said that the European Union has had a positive outcome. It is a positive outcome but, unless I have forgotten my history, they spent quite a few hundred years trying to kill each other before they got to this perfect union. That is why I say that perhaps we should stand still and let these communities decide for themselves.
Mr. Morse: I will leave selling the EU model to my colleague who raised it.
The circumstances that you are describing, Senator Brown, are ones with First Nations near a major metropolis in Alberta. The economic opportunities that they have are not readily mirrored by others groups, and they are large First Nations as opposed to communities of 50. However, I take your point. There is great value in any government, any community, having the ability to develop at its own pace and to try things out before they become fully wedded to them.
I gave the example of the Indian Taxation Advisory Board before, and I think it is a good one. It now has a statutory base, but that was almost 20 years in the making. Even without the statutory base it worked extraordinarily well, and it did so in a couple of ways. First, it worked directly with individual First Nations, offering assistance and not imposing anything. Second, one of the members of the board from the beginning was the head of the B.C. union of municipalities dealing with property taxation. They learned from a good model in a different context, applied it in a First Nations context and adapted to it.
On election issues, the Chief Electoral Officer for Canada and provincial election commissions can be looked to to provide guidance and assistance to whatever First Nations entity might be created. The proposal needs to come from First Nations, and then they can set their own pace. If that evolves into statutory change, and that may happen far more quickly than otherwise, it will still be coming because the communities are seeking it.
With our history of colonization in this country, with all of its tragic consequences, anything that comes from Ottawa to First Nations communities is viewed with suspicion. What is the hidden agenda and conspiracy going on to harm us? It has to be much more organic and what people want to see, rather than them feeling that it is being imposed on them, or that they are threatened by it.
The Chair: Thank you very much.
Before the panel leaves, I would like to bring to the attention of the entire committee the presence here of chiefs from Treaty 1. They are Chief Russell Beaulieu from Sandy Bay, Chief Deborah Chief from Brokenhead, Chief Glenn Hudson from Peguis and Chief Terrance Nelson from Roseau River.
Welcome to the committee. It is nice to see you here. For our first trip to consult on this study, we are going to Manitoba. We hope that we will be able to spend some time with you. If you need any expertise, we have Mr. Morse, Mr. Graham and Mr. Imai.
Gentlemen, thank you very much for your presentations, your answers, and for sharing your time with us this evening. Your testimony has been both informative and helpful to the committee's work. I have worked with some of you in the past and I look forward to working with all of you in the future in trying to resolve some of these huge challenges.
I think we are making progress, particularly with the educational projects in British Columbia and elsewhere. Education is not being hived off, but it is being combined with the infrastructure in the provinces. It is to be hoped that health care and others will follow suit.
Our next hearing on this study is scheduled for next Tuesday, May 12 at 9:30 a.m. Our witnesses will be from the Assembly of First Nations. I hope that our viewing and listening audience across the country will be able to join us at that time.
This concludes the business for this evening. We will continue with an in camera meeting on future business.
(The committee continued in camera.)