Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 10 - Evidence - June 2, 2009
OTTAWA, Tuesday, June 2, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 9:29 a.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: Good morning. 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 on CPAC and on with web. I am Senator Gerry St. Germain from British Columbia. I have the privilege of chairing this committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada.
On April 1 of this year the committee decided to launch a study to examine issues related to Indian Act elections. The committee is looking at outstanding concerns related to the Indian Act election system, including the two-year term of office for Chiefs and council as currently prescribed by the Indian Act. The Senate committee is seeking the views of First Nations leaders, Aboriginal organizations, First Nations people and experts in this area regarding whether and what changes should be made to the Indian Act elections regime to provide better governance for First Nations including strengthening political accountability of the leadership to First Nations citizens.
For our viewing audience, it is important to note that 252 Indian bands hold elections in accordance with the Indian Act. This is approximately 40 per cent of all Indian bands in Canada. We are dealing with this group only. The rest select their leaders as a result of self-government agreements or follow other leadership mechanisms such as hereditary or clan systems.
Here, we are talking about 252 Indian bands that fall under the Indian Act.
[Translation]
To discuss our study of Indian Act elections, we welcome today two experts in Aboriginal issues. But before hearing what they have to say about our topic, I would like to introduce the members of the committee who are in attendance.
[English]
Here this morning are Senator Brazeau from Quebec; Senator Lang from the Yukon; Senator Martin from British Columbia; Senator Lovelace Nicholas from New Brunswick; Senator Dyck from Saskatchewan; Senator Peterson from Saskatchewan; Senator Carstairs from Manitoba; and Senator Fairbairn from Alberta.
Honourable senators, allow me to introduce the two witnesses who will address us this morning. They were members of the Joint Ministerial Advisory Council, known as JMAC, established in 2001 to provide technical advice to the Minister of Indian Affairs and Northern Development with respect to possible amendments to the governance provisions of the Indian Act. Leadership selection and voting rights was a key topic on which the JMAC was asked to provide technical advice.
We have Ms. Wendy Cornet, who was a JMAC member representing the Congress of Aboriginal Peoples. She is a consultant with 30 years of experience as a policy analyst and researcher specializing in government relations, human rights and legal issues affecting Aboriginal peoples. She has worked for several national and regional Aboriginal peoples' organizations and individual First Nations communities. Her work has covered issues relating to human rights, Aboriginal and treaty rights, the Indian Act, northern and Inuit issues, land rights and self-government as well as constitutional and international indigenous issues. She is the author of several journal articles, book chapters and major reports on Aboriginal issues. She has conducted and facilitated numerous workshops on Aboriginal issues including consultation and governance issues.
Our second witness is James R. Aldridge, Q.C., who was the co-chair of the JMAC. A barrister and solicitor in Vancouver, Mr. Aldridge is also an adjunct professor at the Faculty of Law at the University of British Columbia. He has represented the Nisga'a Nation in treaty negotiations since 1980 and was lead counsel during most of that time. He is a member of the legal team representing the Manitoba Metis Federation in its current legal action in respect of Metis land rights under the Manitoba Act. Mr. Adridge has also represented a number of other clients in the areas of Aboriginal law, as well as immigration, constitutional and administrative law. He enjoys lecturing and teaching and routinely participates in or chairs various committees and conferences in the legal community.
I welcome both of you to the committee this morning. We are pleased that you could make the time to join us here and share your views on the elections held under the Indian Act. Before I call on Ms. Cornet, I have a submission to be circulated, which is in English only. Is it the will of the committee to have a copy of this submission during her presentation?
Senator Carstairs: No.
The Chair: It is not permitted. Ms. Cornet, we will proceed with your presentation.
Senator Carstairs: It will be distributed after it has been translated.
The Chair: Yes, it will be distributed after it has been translated. That is correct. It will form part of the translated record anyway. Are you requesting a special translation and distribution, senator?
Senator Carstairs: Not as long as it is available in both official languages.
The Chair: It will be on the record.
Senator Carstairs: Thank you.
Wendy Cornet, as an individual: Today, I will speak to some of the larger policy and process issues that I see connected to the consideration of any proposed legislative initiatives to address election issues in First Nations communities. I will also address some of the specific election law issues you have undertaken to study. I will do this to illustrate the larger policy issues that inevitably arise whenever there is a federal legislative proposal aimed at matters such as election law issues that cannot help but affect First Nations rights to self-government.
A common theme in my remarks is the need for deeper thinking on dispute resolution strategies and mechanisms. At the national level, there is a need for a joint process to discuss respective agendas for legislative and policy changes. I believe Regional Chief Shawn Atleo spoke to some of those issues when he was here.
The question of how legislative proposals should be developed and initiated by the executive before they are introduced to Parliament as a bill is an area not addressed by federal self-government policy or by federal statements respecting its consultation policy and legal obligations regarding the legal duty to consult.
Since the enactment of section 35 of the Constitution Act, 1982 and the recognition in principle in federal self- government policy that First Nations possess an inherent right of self-government protected by section 35, First Nations continue to be asked periodically to accept federal legislative interventions as a temporary measure pending self-government. Thus, there is a growing pattern of incremental attempts to amend the Indian Act without providing a forum to discuss larger self-government policy issues. This is despite the fact that the federal government itself on numerous occasions has acknowledged that the pace of progress towards self-government agreements from a national perspective is unacceptably slow and that federal policy on self-government has not kept pace with section 35 case law.
The problem of process at the national level, of managing conflict, has been demonstrated over and over in numerous legislative initiatives. This includes the one that Mr. Aldridge, I and Senator Brazeau were involved in. In the absence of a joint political process to manage these larger policy issues, First Nations and the federal government repeatedly find themselves in deadlock. A joint process should be aimed at determining what legislative and policy initiatives are joint priorities and how they should be shaped.
At the community level, there is also a broad need for institution and capacity building to deal with various access to justice issues and dispute resolution needs, including election appeals. These needs cannot be effectively or efficiently addressed by simply imposing unilateral legislative directives to Indian Act band councils to establish local dispute resolution mechanisms in the absence of commitments regarding the resources needed to support them and in the absence of a work plan to address the broader range of dispute resolution needs, from human rights issues to property rights on reserves.
Successive federal governments have presented legislative initiatives aimed at the Indian Act that assume the larger self-government policy agenda should continue to be placed on hold. As a result, First Nations are asked to consider successive amendments in the absence of this larger agenda.
The difficulty you encounter as parliamentarians often seems to be that once proposals to amend the Indian Act come forward, several threshold policy questions inevitably arise. First, why are these specific amendments or proposals placed at the top of the list and not others, and who decides what the top legislative priorities for First Nations should be? Why is it that the federal government gets to determine when and which amendments should be brought forward and not First Nations and Canada through a joint political process? Finally, there is the overarching reality that the underlying philosophy and assumptions of the Indian Act as a whole are always an issue whenever an issue of Indian Act reform comes up, no matter how limited or well intended the reform in question is.
Another consistent feature of federal approaches to Indian Act reform is the effort to contain First Nations governments, to make First Nations governments resemble as much as possible non-Aboriginal visions of governance and democracy, without much of a reciprocal effort to explore or understand in any depth First Nations' concepts of governance and democracy.
An important aspect of the larger policy and political context in which your study is situated is the fact that the Indian Act and federal policies, such as the conversion to community election system policy, represent attempts to regulate leadership selection for the First Nations who have not yet negotiated a self-government agreement.
Influential cultural theorist Homi Bhabha has written incisively about the dynamics and psychology of colonial relationships. He describes the phenomenon of mimicry and the ambivalent nature of colonial stereotypes. This concept of mimicry may be described as the impulse of the colonizing power to create and control
a reformed, recognizable Other, as a subject of a difference that is almost the same, but not quite.
He describes mimicry as a complex strategy of reform, regulation and discipline that appropriates the ``Other'' and aims to create ``authorized versions of otherness.'' Mr. Bhabha says there is also an ambivalence evident in the way the colonizer turns alternately from promoting mimicry — that is a state of difference that is almost the same, but not quite — to menace, stereotypical concepts of difference perceived in the colonized that are viewed as almost total, but not quite.
Putting this analysis in an Indian Act context, I would suggest that it seems to be fear of the latter, a fear of stereotypical notions of First Nations people as so different from the dominant society that they must be controlled and regulated in an attempt to create a more comfortable stereotype, founded in a belief in this mimicry: that we can turn First Nations people and their governments into authorized but different versions of non-Aboriginal society.
In essence, what the Indian Act does is not to regulate any real concept of First Nations or First Nations governance, but rather to regulate long-standing stereotypes of First Nations peoples. The only way to break the hold of these stereotypes is to engage in meaningful dialogue in a joint process of negotiation, founded on the notions of the equality of peoples and their right to self determination.
Common stereotypes that have operated since the first efforts to control First Nations governance are that First Nations are lacking governance traditions in the absence of an imposed regime from the colonizer, or at least governance traditions recognizable or worthy of recognition by the colonizer. In a more contemporary context, this way of thinking assumes that the reconciliation called for by section 35, even in the face of a century or more of intrusions and interference, is to be achieved by First Nations accommodating the dominant society's most fundamental assumptions and values about governance. This conflict is never far away whenever a federal legislative initiative emerges from the executive rather than from a joint political process.
An unexplored area in considering the future of the Indian Act since 1982 is an assessment of the extent to which the Indian Act as a whole, specific provisions of it including the election provisions, or federal Indian Act policies such as the conversion to community election system policy, represent an unjustified infringement of section 35 rights. With respect to the Indian Act, specific Charter issues and general governance issues are often identified as concerns. It seems quite odd that despite the literature available and the many submissions by First Nations people on this subject, including some important parliamentary committee reports, this is an aspect of analysis that is typically missing from attempts at consultation on Indian Act amendment initiatives.
While the Indian Act was assessed from a Charter compliancy viewpoint, along with other federal statutes prior to the coming into the force of the Charter, no such exercise appears to have been undertaken to ensure that section 35 rights were considered and infringements minimized in the continuing exercise of federal legislative policy and administrative authority under the Indian Act. Such an exercise would seem especially opportune and compelling when considering any amendments or policy changes under the Indian Act in the area of governance or elections.
It can also be argued that Aboriginal and treaty rights are, in essence, a species of human rights. This view is supported by the treatment of indigenous rights by the United Nations in adopting the Declaration on the Rights of Indigenous Peoples.
An example of a provision that probably should be subjected to a section 35 analysis is the power of the Minister of Indian Affairs, under section 74 of the Indian Act, to impose the Indian Act election system. The imposition of provisions determining specific terms for chief and council under the Indian Act also would seem very much to be a matter of local control falling within the concept of inherent right to self government. If it does not, it would be hard to imagine any subject that would.
The most common argument that the federal government advances for not carrying out a section 35 analysis to vet its legislative proposals under section 91(24) of the Constitution Act, 1967, is that the jurisprudence developed for identifying existing and Aboriginal treaty rights is founded on a site-specific analysis, meaning a right must be established by evidence regarding the scope and nature of a particular right in a particular geographic location. The courts have developed this site-specific analysis largely in response to hunting and fishing litigation taking place on Crown lands.
What has not happened in federal policy or federal policy analysis is a consideration of how Aboriginal and treaty rights might be analyzed from a national perspective for policy purposes in the context of legislative activities which are aimed at reserve lands generally or the peoples living on them.
In the Supreme Court of Canada decision in Guerin v. The Queen, the court characterized reserve lands as indistinguishable in nature from Aboriginal title. They seem to attract some form of section 35 protection. One would therefore think, as the Ministerial Representative on Matrimonial Real Property on Reserves, Wendy Grant-John, suggested in her March 2007 report, that this should prompt a section 35 analysis by the Crown prior to and throughout the development of any legislative options and throughout the legislative process that would apply to reserve lands or their peoples.
Another argument often used by the government to explain why it does not routinely undertake a section 35 compliance check prior to introducing federal Indian legislation under section 91(24) is that Aboriginal and treaty rights are not as specifically defined in the Constitution Act as Charter rights are. This argument appears to be both disingenuous and dated, given the substantial body of section 35 case law that has developed since 1982 and the many cases describing the nature of First Nations' interests in their reserve lands.
Collectively, this case law would suggest that a section 35 analysis of how federal legislative initiatives may impact First Nations' Aboriginal and treaty rights, from governance to their property interests in reserve lands, could be attempted. This neglected work has for too long been assigned to the ``too hard'' pile. This was certainly the view of several authorities who appeared before the Senate Committee on Legal and Constitutional Affairs in 2007, including my colleague, Mr. Jim Aldridge, Mr. John Merit, Roger Jones and Mr. Brad Morse. In its final report — Taking Section 35 Rights Seriously, that committee recommended that Canada should establish a formal process for vetting federal legislation from a section 35 perspective similar to the statutory requirement for a charter compliancy analysis.
The committee also suggested that criteria for conducting such an analysis should be developed in collaboration with various departments and Aboriginal peoples and that these criteria should not be static but revised over time to reflect changing legal and factual circumstances.
I will close with some remarks on the common election day issue. Less than half of First Nations operate under the section 74 election system under the Indian Act, and there is an on-going trend for more First Nations governance to move out of the section 74 election system by custom or self-governance agreements. Therefore, it is not clear what will be accomplished by legislating a common election day for section 74 bands as opposed to a provision that would recognize the power or right of all First Nations or bands to set the length of their own terms. As other witnesses have suggested, the merit of a common election day is an issue that would be best determined by regional First Nations bodies, such as tribal councils or province-wide First Nations organizations. In this way, the issue of a common election day can be decided by the people pre-eminently entitled and qualified to determine such matters.
First Nations organizations also would have the political authority and capacity to include a broader scope of First Nations than a federal amendment restricted to the Indian Act band councils still subject to section 74. As well, this would allow First Nations to work through the issue on their own political and legislative timetable instead of having to deal with the vagaries of the federal legislative process over which they have no control. If this is where First Nations want to go, then the most appropriate role for the federal government would be to assist First Nations in holding such discussions among themselves and to respond to any legislative proposals that come from First Nations peoples on this point.
The Chair: Mr. Aldridge, please proceed.
Jim Aldridge, as an individual: It is an honour and privilege to be invited to appear before this committee again, in particular on this important subject. I sincerely hope that my comments this morning will be of some assistance to the committee's deliberations.
As indicated by the chair and Ms. Cornet, it is my understanding that I was invited here today as a result of my experience as co-chair of what was known as the Joint Ministerial Advisory Committee. JMAC was the name given to the committee when it was established in November 2001 by the then Minister of Indian Affairs and Northern Development, the Honourable Robert Nault, to provide him with technical advice in respect of possible amendments to the governance provisions of the Indian Act. That process led to the ill-fated Bill C-7, an act in respect of First Nations governance, which was introduced but never enacted.
During the debate on Bill C-7, I encountered a quote that I passed on to the minister. I am not sure whether it was comforting to him but it seems salient to repeat it today. I found it in a book entitled, The Ingenuity Gap, by Thomas Homer-Dixon. Mr. Homer-Dixon, who quotes from Machiavelli, states in his book:
Even under the best of circumstances, reforming institutions or creating new ones is hard. As Niccolò Machiavelli wrote in The Prince in 1513, ``there is nothing more difficult to execute, nor more dubious of success, nor more dangerous to administer than to introduce a new system of things: for he who introduces it has all those who profit from the old system as his enemies, and he has only lukewarm allies in all those who might profit from the new system.''
It is a difficult task and set of questions that this committee has undertaken to study.
Our task was to study those sorts of things but a much broader task as well. We were quite a remarkable committee in our membership. I had the good fortune to co-chair the committee with Mr. Roy Bird, then Director General for Indian and Northern Affairs Canada in Saskatchewan. Other members included two lawyers from the Department of Justice Canada; a representative from the National Aboriginal Women's Association; Mr. Bernd Christmas, then CEO of Membertou First Nation, an individual appointee; my friend and colleague, Ms. Wendy Cornet on behalf of the Congress of Aboriginal Peoples assisted daily and invaluably by Senator Brazeau; and Mr. Roger Jones, from the Assembly of First Nations, and subsequently on behalf of a number of regional groups.
Notwithstanding the diversity of people who were sitting around that table, we managed to achieve a remarkable degree of consensus. We issued a consensus report that was handed to the minister on March 8, 2002. In my notes on it from that day, I noted that it was available on the department's website shortly thereafter. I looked for it yesterday but it appears to have been stricken from the pyramids or perhaps put to a place where my rudimentary web-searching skills could not find it. I am sure that the able staff of this committee will find a copy and dust it off for anyone interested in reading it. For whatever reason, the department no longer has it on its website.
A bill was then drafted and introduced, as part of the process. Bill C-7 did not, and we did not expect it to, embrace all of our recommendations. We provided advice only and did not write the legislation. There was input from other sources as well. The bill led to quite a debate. The national office of the Assembly of First Nations condemned the bill as constituting an unconstitutional infringement of Aboriginal and treaty rights and as resulting from a deeply flawed process of consultation. The federal government, on the other hand, considered the initiative to be a means of reducing the interference with good governance imposed by the antiquated governance provisions of the Indian Act, pending the negotiation and implementation of the inherent right of self-government.
Our process was before that. We understood that the initiative was taking place within a context that still exists today, in which there are a number of different processes underway in which First Nations are negotiating agreements in respect of various aspects of self-government. These processes include negotiations pursuant to the inherent right policy and the comprehensive land claims policy. In our province, Mr. Chair, there is the B.C. treaty process and the First Nations Land Management Act. All of these initiatives, to some extent or another, engage the questions of self governance.
Implicit in these processes is the idea that a range of solutions to the difficult questions of self-government, including those that this committee is studying, is not only likely but inevitable in a country as varied as Canada. These processes recognized that lasting solutions can be found only when each First Nation is directly involved in designing and affirming the details of its own self-government regime and its on-going relationship with the Government of Canada. The aspirations of each First Nation are unique and no one-size-fits-all approach can ever provide the specific tools that each First Nation needs to address its own particular needs and aspirations.
However, those processes are slow. They are time-consuming and expensive. In the meantime, bands, in particular the section 74 bands on which this study is focussed, continue to be burdened by the need to function under the archaic and paternalistic provisions of the Indian Act, which no one believes works particularly well.
My opinion is that simply tinkering with those provisions will not change that as long as they are administered by a department ``steeped in a legacy of paternalism and colonialism.'' Those are the words from this committee and its previous incarnation in its first-rate study on the implementation of comprehensive land claims agreements.
A friend and colleague of mine from the Yukon is a chief with quite a dry sense of humour. She observed one day, ``Does anyone find any irony in the fact that the Department of Indian Affairs has a directorate called ``the self- government directorate''?'' It does seem ironic to talk about a directorate of self-government living in the Department of Indian Affairs.
We were asked to look at the possibility of an incremental step that would have immediate benefits for the governance of First Nations. This was meant to facilitate rather than obviate or interfere with the establishment of long-term lasting self-government arrangements. Our instructions were to make recommendations for amendments that: would not infringe existing Aboriginal or treaty rights; would not alter the fiduciary relationship between First Nations and the Crown; would be consistent with the Canadian Charter of Rights and Freedoms including section 25 of the Charter; would maximize the ability of bands to determine their own governance regimes, while providing those who prefer to operate under a statutory regime the ability to do so; provide basic rules of political and financial accountability to apply to all bands; and not impose requirements on bands that many would be unable to fulfil due to a lack of resources or lack of capacity.
It was quite an ambitious study. It required members of the committee to consider, debate and ultimately reach consensus on the fewest number of requirements or impositions that could legitimately be set out in legislation. Understand that there is always the possibility of so-called reversion to custom.
As the chair indicated, about 40 per cent of the bands in the country are under the Indian Act. The others are either under contemporary self-government arrangements such as my client, the Nisga'a Nation, or they are under what is called ``custom.''
The point I want to make about that distinction is this. The historical development of the leadership of bands in the Indian Act was absolutely, clearly and overtly invented long ago to promote assimilation and to replace traditional forms of government. I am summarizing from our report now. The act assumed that bands would select their leadership by custom until such time as the Governor-in-Council, and subsequently the minister, determined that a band was sufficiently ``advanced'' or ``civilized'' to enable it to replace its traditional system with the election system set out in the act.
The decision by the government to require bands to come under the elections system was contested by some First Nations while others seem to have welcomed the changes. This was evidence given by Professor Shin Imai, whose evidence I had the pleasure to read. It must be recalled the default leadership selection process under the Indian Act has always been custom. This remains in place until the minister determines that the election provisions should apply. More recently, as mentioned by representatives of the department, the government has permitted bands to ``revert to custom'' through a repeal of the order bringing the bands under the act.
Terminology in this area is confusing. The word ``custom'' always brings to mind a practice that continues or is, at least, based upon traditional indigenous ways of selecting leaders. However, that is not necessarily the case. There is no requirement in law that a custom be frozen in traditional practices. To the contrary, courts have clearly stated that customs can evolve. Courts have also stated — and if I may say so, this it particularly important — the power to determine a leadership selection custom is not a power conferred by Parliament, but is rather an inherent power of the band. It inheres in them; it was not given to them.
That being the case, it is my and others view — and Ms. Cornet said this earlier — that the power to determine leadership selection rules is almost certainly an Aboriginal right protected by section 35. There are few things as clear in the jurisprudence as the fact that that ability is an inherent right in the band.
The interference with that power under section 74 of the act has not extinguished the power. Again, customs are not frozen in time. They can evolve into rules that are quite different from traditional methods of leadership selection. The courts have also ruled that in order to be validly adopted, a leadership custom does not need to be adopted by a majority of electors in the band. The courts have referred to the need for a broad consensus of the membership. In the absence of rules specifying how such a consensus is to be demonstrated, courts will determine the issue based on the facts of the case.
Why do I go through all of this when the subject of your study is the section 74 bands? It is because a band that does not like the section 74 regime can revert to custom under the status quo. Subject to the considerations described to you by representatives of the department, they can unilaterally establish their own rules about — for example — term of office or election dates.
Many bands in this country have already devised effective election procedures that are functioning without any known problems. Many others wish to do so. Are there problems in some places? Of course, there are in the same way as there are problems in elections all over this country and with elected leaders in every facet. However, by and large, it is known that regimes devised internally seem to be working.
Other bands do not want to devise their own procedures. They are perfectly happy to be under section 74 because their focus and priorities are elsewhere. The ability of bands to make this decision is vital to their Aboriginal rights.
I will conclude and be happy to answer questions. What did we recommend? We proposed amendments to address all of these different circumstances. These were as follows:
Establish default election procedures that would apply to every band unless the membership of the brand adopts a different regime. A default electoral regime could be taken off the shelf. That would be a modification of the existing Indian Act regime.
Establish a means by which bands could adopt their own election codes or other leadership selection regimes provided that certain basic standards of political accountability are maintained. The legislation we proposed would clearly set out basic standards of political accountability consistent with the default rules and with which any band designed regime would have to comply.
Ensure that those basic standards are as unobtrusive as possible while striving for a high degree of political accountability.
Ensure that all regimes include the right of all band members to appropriate participation consistent with the Charter, including section 25.
In other words, each band would have the choice of basically three options. First, they could operate under the default regime, which would be a revised Indian Act regime. Part of the revision would be to remove the role of the minister and the Governor-in-Council. There would be an independent institution or some other mechanism to replace it if bands did not come up with their own.
Second, they could design their own leadership selection regime. It would not have to be elected. If not elected, it would still have to meet certain requirements. This was the least intrusive set of basic requirements we were able to come up with. Those requirement would be that: the leadership selection code would have to be in writing and publicly available, whatever it was; the code would constitute a law of the band, thereby enforceable by the courts; there would have to be an independent appeals process, which could be provided by the independent institution that we recommended; and that there be a means for the membership of the bands to amend the code by broad consensus or to decide to come under the default regime.
Third, a band may say, ``we would prefer an elected regime, but we do not want yours. We want to design it ourselves.'' Therefore, we said, all right, what are the basic rules that any elected regime would have to include? We listed the following: The right to vote of every band member — obviously of appropriate voting age. The right to nominate candidates. There would have to be their own rules governing the size of council. They would have to establish their own rules to apply to candidates for office, such as age, residence and such matters as whether they had been convicted of an offence, previous electoral malfeasance, et cetera. They would have to specify the role, if any, of the independent institution. They would have to provide for secret voting. They would have to provide for procedures — the mechanics of the election, if you will — electoral officers, nomination procedures, notices, ballots, et cetera. There would have to be means for an appeal. There would have to be a rule as to whether the chief is elected at large or by the councillors from among themselves.
On the term of office, one thing this committee is looking at particularly, we said it should not exceed five years. Some might prefer four, some might prefer five. We thought if you are having elections, it should probably be five years on the outside, which is, under the Constitution of Canada, the maximum time that a government of Canada or province can sit. It is a long time since one sat for five years, though. They would have to have rules for removal from office, vacancies in office and bye-elections, and there would have to be some amending procedure. Those were what we said every election code would have to address.
That was, broadly speaking and very quickly, the set of consensus recommendations that were made by the joint ministerial advisory committee. There was lengthy and fascinating debate and contributions from all members of the committee. I was privileged to participate. Perhaps the report will get back on the website or you will have a chance to look at it at your leisure.
I would be happy to answer your questions.
The Chair: I will lead off, with the permission of the committee.
I listened to both of you very carefully. You say that the entire process was designed for assimilation. By virtue of that, of dispersing First Nations' historically huge organizations, such as the Algonquin Nation or the Cree Nation, we really changed the dynamic.
What is your view on the ability of some of these smaller bands to exercise their inherent right to governance? It is fine to say that they should have the inherent right — and I agree with that, historically — but they were hived off onto reserves and their actual nations were destroyed. That is one area I would like you to comment on.
The other thing is that I find that if they are going to create an election process — and I think that is what is happening in certain treaty areas — the government needs to be involved. We say they should go out and do this on their own and we should not impede them, but they are so restricted as to funding because they share nothing other than handouts from the government, unfortunately. There is no resource revenue sharing or anything. These are some of the complexities.
Last but not least, why did Bill C-7 fail?
Ms. Cornet: I will start with your last question — why did Bill C-7 fail? I think what happened there is something you see repeated over and over again whenever these legislative initiatives come up. It is an issue of process in that the answer is not simply going to lie in finding the magical formula for certain legal provisions, whether they are legal provisions enacted by the Parliament of Canada or legal provisions enacted by First Nations people themselves.
There are various things at play. Mr. Aldridge referred to fear of change, which is common to all communities and dynamics when change is being proposed, particularly when it is being proposed from outside, change that you do not really control.
In order for things like leadership selection and elections to go smoothly, it will require more than just legal provisions. It will require some thinking about what are the needs of First Nations communities in terms of dispute resolution within their communities. It is not restricted to elections.
It seems that the issue of dispute resolution within First Nations communities does come up, whatever the topic of the day is in terms of a legislative initiative. However, the thinking on that subject tends to be just let us make a tribunal for that. For example, with the First Nations Governance Act, it was decided, I think late in the legislative process, to plop in some provision there to say all Indian Act band councils will establish a dispute resolution mechanism, period. There might have been a few more words than that, but not much more.
There was no reference to what would the relationship of that body be to human rights complaints that might be brought to the Canadian Human Rights Commission or tribunals. There was no thought about resourcing; there was no commitment about resourcing.
It is just that dispute resolution generally is not really thought through. I think dispute resolution is almost always an issue, whether at a national level in terms of the discussion between organizations representing First Nations and government, or within communities themselves. It is a process. We have not spent enough time thinking about how consultation processes should be constructed in a way to reduce conflict.
Mr. Aldridge: I will start with that question, too, and then move to the first one. All three questions are very important.
Why did Bill C-7 fail? There were problems with the legislation. When I saw the final package as it was introduced, there were things about it — I will not go into a complete post mortem on it — that were highly troubling. I understand they were things that could have been changed through the committee process. What was envisioned by the minister, if I may presume to say so, was that at the committee stage, there would be informed and intelligent debate and improvements could be made to the legislation. However, that debate never happened on Bill C-7.
One thing I found frustrating about it so long ago, was how little debate there was from any side about what the bill actually said. The debate was rather at a high level of generality. If I may say so without identifying anyone in particular, there were politicians of various stripes, both within Parliament and within the Aboriginal community, who, for whatever reasons, simply mischaracterized the bill, its intent and its effect in such a way that it fanned the fears of change that Ms. Cornet spoke about.
It is a funny thing that people are almost always willing to believe the worst. If something frightens you, you will likely believe it. People believed things about the bill that simply were not true. Ultimately, is that a failure in politics, a failure in communication or a failure in consultation? I do not know what to call it, but it is my respectful view that the bill did not fail on its merits, although I had some real problems with some of its provisions; it failed as a result of the particular political reaction and how that unfolded.
Mr. Chairman, your first question is extraordinary important. There is no doubt about the fact that the real actual Aboriginal indigenous nations of this land that is now called Canada were fragmented by first British and French, and then ultimately Canadian governments through such things as the imposition of the Indian Act.
Bands were not nations. In my respectful view to all who might differ, the phrase ``First Nations'' should not be simply a politically correct euphemism for ``Indian Band.'' The nations are something much larger. Perhaps my view on this is influenced greatly by my years of association with my client, the Nisga'a. Back in the 1980s, when I started out in this business and we were working on the land claims agreement, Department of Justice lawyers would never allow my clients to use the phrase ``Nisga'a Nation'' in any document that they might sign. They preferred ``Nisga'a tribe'' or ``Nisga'a community.'' Suddenly it changed and people started writing to the Nisga'a government officials — to the ``Nisga'a First Nation'' — but the Nisga'a rejected that because four small band councils amalgamated back into the historic Nisga'a Nation.
It is my respectful view that that kind of reconstruction is a necessary evolutionary step before real, effective self governance will take place for reasons of size, capacity, history and logic, but that cannot be imposed. People will have to be enabled to make their way toward that, and the impediments to that happening will have to be removed. That is the direction it must go.
You are quite right, senator: some bands have fewer than 100 people. To suggest to them that that they have to design a fully fledged electoral regime with all of the costs, complexities and the dispute resolution process, is not practical because it is expensive and time-consuming. That is why JMAC recommended a default regime: They do not have to design their own electoral process but if they want to design their own, they can go ahead and do it.
That was the best we could come up with as an interim step toward the longer term goal of First Nations and Indian bands. They will take it on themselves when they are ready to re-form into the traditional nations or something resembling the traditional nations or some new expression of their traditional nations, in my view.
Senator Brazeau: I had the privilege and opportunity to work with both of you, and I can safely say that Mr. Aldridge's knowledge, patience and passion certainly made JMAC successful. I had the opportunity to work with Ms. Cornet in 2001.
My question is quite simple, and we have had discussions in the past about this. In your expert opinion, would Bill C-7 have passed if it had been an enabling bill as opposed to an imposed piece of legislation at the time?
Ms. Cornet: One of the problems with that bill and others is the issue of the consultation process leading to it. At this late stage, we still do not have a public federal consultation policy, much less one that talks about how the federal government intends to conduct itself when it develops legislative proposals. That lack of clarity is not helpful.
We used terms like ``engagement.'' We know that sometimes First Nations people do not wish to engage in what is regarded as formal consultations, so the word ``engagement'' is used. Sometimes the word ``engagement'' is used interchangeably with ``consultation.'' The process is never clear from the outset. There is not a jointly agreed to set of rules about how the process of consultation will go forward.
The kind of process that is most likely to have success is one that is jointly designed. We have seen that with successful legislative initiatives, such as the First Nations Land Management Act. This initially the initiative of 14 First Nations that had to fight for a considerable length of time to get the attention of the government of the day to bring that forward. Generally speaking, jointly designed processes have higher chances of success than do processes controlled by one of the parties to the process.
Mr. Aldridge: I thought it was enabling legislation. It was a hybrid, senator. What Ms. Cornet said is right. Ultimately, the proof of the pudding is that it failed — the consultation was inadequate. There have been many cases that senators are aware of relevant to consultation. The Government of Canada, if I may say with appropriate respect, is floundering around trying to develop an approach to consultation, although it has not done so to date. One Supreme Court of Canada case refers to how the depth of consultation will vary depending upon the strength of the asserted right. The joke that we all made was: Now, the department will be hiring ``consultation depth analysts'' to determine how they should consult.
That is the simple answer. Remember, if you are to have national legislation with potential universal application, whether enabling or otherwise, there will be many people to consult, which makes it very difficult to find consensus. That is why I am a skeptic about developing any kind of consultation that could lead to a successful national process.
The First Nations Lands Management Act is often cited as a great accomplishment for the people engaged in it. However, it was designed by a small group that was able to find consensus and negotiate. Other people may opt in but it is something in which they had no part in designing. The likelihood of success will be far greater when each nation negotiates directly and develops its own rules.
Senator Brazeau: My second question is about process and consultation. As far as I am concerned, Bill C-7 was a step in the right direction and was much better than the prescriptions of the Indian Act, in particular in consideration of political accountability for First Nations citizens living in those communities and off reserve. That is simply my opinion.
In terms of process, as part of a former national Aboriginal organization, we were given the same opportunity as the Assembly of First Nations and others were given to participate in this process. Whether it was prescriptive or not, we had that opportunity. We were funded by the government of the day to consult with and obtain feedback from constituents with respect to our position on the bill and some of our recommendations. We were able to feed that into the process, in particular the JMAC process.
Some other national Aboriginal organizations that appeared before the committee mentioned that the bill was an infringement on Aboriginal and treaty rights. I find that ironic, as I believe the imposition of the Indian Act is an infringement on Aboriginal rights. Bill C-7 went one step further and offered the opportunity for those communities to develop their own leadership selection and accountability codes, et cetera.
We heard much from these same Aboriginal leaders that it was an infringement and there was no consultation. They felt that they were shut out of the process and that it was contrary to their traditions and customs. However, when you talk with the people living in those communities, you learn that they wanted Bill C-7 to pass. In fact, a poll by the Department of Indian Affairs suggested that more than 50 per cent of the First Nations citizens who participated in the poll supported the passage of the bill, even though it was not all encompassing.
I have asked this question to various witnesses in the past: Do you think it would work if the federal government were to hold a referendum for all First Nations citizens to determine the fate of amending the Indian Act, focusing specifically on accountability and leadership selection codes?
Mr. Aldridge: With respect, no, I do not think it would, for the reason I gave a moment ago. It has to be designed by each group, whatever their self-definition is. ``Does this group want to move to a different regime? Does that nation. . .?'' and so on. I think it would be ironic to have a sort of national referendum that passed by 53 per cent of voters and then, suddenly, people in the region who had overwhelmingly rejected it would find they had to live with those same results.
My respectful opinion is it has to be done nation by nation.
Senator Brazeau: Are you saying that, until individual bands within the same nation come together, amalgamate or think about forming or reconstituting their true historical First Nations, it will be very difficult to move beyond the status quo in terms of governance on-reserve?
Mr. Aldridge: I do not think I would go that far. I mentioned that my view is that the long-term, optimal way to go is on a real nation basis. That is also in answer to the chair's question. However, I also mentioned that, in the meantime, many things can be done, be it through reversion to custom, opting into the First Nations Land Management Act, or through comprehensive claims or the inherent rights policy. There is still a range of options.
I fear for the really small bands. That is what I was referring to in terms of being able to carry out all the responsibilities of government effectively. Westbank is a good example of a band doing very well under its self- government regime. There are as many solutions as there are different bands.
Senator Peterson: Thank you for your presentation and for helping us to deal with this very difficult issue.
A lot of First Nations will tell you there are many other pressing problems than election reform, such as housing, health care, et cetera. They inherently have a fear of the Indian Act; they do not like it and do not really trust INAC. If we try to do this on a global basis, we will likely never get anywhere.
However, if there was a treaty group that was prepared to take this on as a pilot project to develop election reform, with funding from Indian Affairs, would that maybe give us a start in the right direction?
Ms. Cornet: Your question may go to looking, again, at some of these larger federal policies, such as the self- government policy, the comprehensive claims policy and, for that matter, the question of treaty implementation policy, and updating them. As I mentioned, federal officials have acknowledged that these policies have not been touched since much of the substantive body of section 35 case law has been developed. They are in need of some updating.
I think that could be an avenue to explore in terms of looking at some new process to look at moving the self- government process along because the existing policy and process are not creating agreements quickly enough. The only other alternatives that seem to be contemplated are these types of national legislative initiatives which end up being very controversial.
Senator Lovelace Nicholas: My question involves the removal in case of corruption practices in elections. In my experience, the RCMP and INAC refuse to get involved with these corrupted elections. In your own words, do you think there should be recourse? Who should decide? What should it involve?
Ms. Cornet: Those are policy questions that could be determined by any group of self-governing people. There is probably a range of different responses in different democracies in terms of whether recall mechanisms are available. They are really policy discussions that need to take place in First Nations communities.
I have seen some of the work of the First Nations Governance Institute on custom election codes, where they have researched and suggested various options to answer various policy questions, including the one you are posing about recall.
To repeat what I said earlier: There is not necessarily a single right answer for anybody, or even necessarily a single right answer for a given First Nation. However, First Nations should be encouraged to have dialogue and have the resources to have dialogue on such issues.
The only time we seem to discuss these things is when there is a federal legislative initiative on the table.
Mr. Aldridge: It is a very good question.
My clients, the Nisga'a Nation, have developed their own code of conduct, which is probably the most comprehensive and, in many ways, severe code of conduct of any elected body in the country, Aboriginal or non- Aboriginal. It has been used to remove one person from office and contains reprimands. It is accepted because they designed it themselves; it was not negotiated with the government. They did it.
That is the first thing. Second, I think there is a genuine problem with a failure or a ``reluctance'' — if I may put it that way — by the RCMP to investigate allegations of criminal behaviour when it involves such things as the administration of First Nations elections. They are probably reluctant to get involved in municipal elections, as well. In fairness to the police, there are decisions that have to be made about their priorities and what they investigate. However, I think that has led to a frustration.
One of the things we noticed in JMAC is that the current rule is odd. Section 78 (2) says:
(2) The office of chief or councillor of a band becomes vacant when
(b) the Minister declares that in his opinion the person who holds that office
(i) is unfit to continue in office by reason of his having been convicted of an offence,
(ii) has been absent from three consecutive meetings of the council without being authorized to do so, or
(iii) was guilty, in connection with an election, of corrupt practice, accepting a bribe, dishonesty or malfeasance.
It is a strange set, is it not? However, it is not whether you should compare missing three meetings with election corruption. Rather, the point is that, under the status quo, it is the minister's opinion which is at issue. It is one of the reasons that JMAC recommended removing the minister from these kinds of roles, and have some kind of an independent process to do it or allow people to design it themselves.
People will design it themselves. That is one thing they will do; they will design a process for dealing with problems, if and when they arise.
Senator Lovelace Nicholas: How easy or difficult is it, and what does it involve, for First Nations peoples to gain self-governance? I do not understand it.
Mr. Aldridge: I started working for the Nisga'a in 1980. They had been at the table since 1976. Senator St. Germain will remember very well that that it passed this place and got Royal Assent on April 13, 2000.
It is like the story about the stately lawns of England. A tourist couple said, ``How do you get such beautiful lawns?'' The gardener said, ``It is easy. You just seed, water and mow for 400 years.'' It is very difficult to get there because of government, which is a separate discussion. Suffice it to say, it is a long, time-consuming process.
Senator Lovelace Nicholas: Therefore, it is almost impossible for First Nations to decide their own election codes or criteria. It is hard to get self-government.
Mr. Aldridge: They can revert to customs without negotiations.
Senator Lovelace Nicholas: However, not all bands want that.
Senator Dyck: Thank you for your presentations this morning.
I will talk about the treaty issue that Senator Peterson raised. We were at a meeting last week talking about treaties with organizations in Saskatchewan. It is very clear that when the treaties were signed, they were signed nation to nation. In my opinion, we would not be having this discussion if treaties were actually implemented and had been fulfilled.
What we are discussing today has to do with self-government as blessed by the Indian Act or by the Government of Canada with respect to the Indian Act or other legislation, rather than what First Nations actually had when they first signed treaties. They were self-governing nations. If the treaties were fulfilled, the land base restored and resources made available, they would be self-sufficient. They would be able to govern themselves. They may or may not choose to have elections in the way been outlined today.
Should the idea of self-governance, elections and reversion to custom be through the Indian Act or should they be left to the treaty First Nations? Should elections be through treaty negotiations, the Indian Act or other legislation?
Mr. Aldridge: I agree wholeheartedly with everything you said senator. The desirable outcome is that it should be on the basis of treaty organizations.
The question we were asked goes back to what Senator Lovelace Nicholas was observing. It takes so long; what about in the meantime? Our proposals were always intended to be an interim step, because it is frustrating that it takes so long to get there. What you are describing is the ultimate goal.
Senator Dyck: Treaty No. 4 was signed in 1874 in Saskatchewan. That is 135 years ago. Therefore, you are right. We need interim measures.
The JMAC panel had recommendations. Rather than putting them into a bill, could those recommendations have been directed towards modifying what goes on within the Indian Act or within Indian and Northern Affairs Canada with respect to reversion to custom?
Ms. Cornet: The recommendations addressed the specific questions put to the committee as well as some of the larger policy issues.
A key question was transitional arrangements. One committee recommendation went beyond a specific legislative proposal to address the transition period between the Indian Act, which recognizes bands, but not peoples or nations, in contrast to the Constitution, treaties and international law. The recommendation was that there should be a reference in the preamble to the government's commitment to a process to address larger self-government issues that needed to be addressed if we were to land in a place where we have a relationship with treaty nations rather than Indian Act bands and band councils. I do not believe that recommendation was included in the bills.
There was a reference in the preamble that the bill was not intended to be self-government. However, there was no commitment to a table to address these large policy issues that need to be addressed if we will make that step between the Indian Act and self-government with nations.
Senator Dyck: When you say ``table,'' do you mean a table where various partners would meet to discuss how it would proceed? Would it be a table of ministers, someone from Indian Affairs and representatives from different First Nations or other political organizations?
Ms. Cornet: It would be a table available for political leadership to discuss with Canada the barriers within the existing policy contexts that negotiations now take place, that are usually self-government policy, comprehensive claims policy or treaty implementation.
Senator Martin: Thank you for your presentation.
I am new to this world. It seems there is a depth of information including all the historical data and events leading to this time. I come with great respect for what I heard today. At the Social Affairs Committee, we have been discussing the movement of Aboriginal people off reserves into urban centres. I lived in Vancouver most of my life. My exposure to and experience with First Nations was in the schools. I was a teacher for 21 years. I talked about First Nations in the curriculum and saw what was happening in schools.
I also think about the federal perspective in hearing what is happening on this issue of self-governance, elected regimes and all the things you presented today. I am beginning to understand the scope of the challenge before all of us together. You are important liaisons and the bridge that sees the federal perspective as well as working with different groups.
Are you finding additional challenges with the movement of people off the reserves? We were told in the Social Affairs Committee that friendship centres are taking on additional needs of people they are working with in urban centres. There is a disconnect between what is happening in the cities and on reserves. There are gaps because they are moving to various places across Canada and we live in such a large country. How do you ensure that all of people on reserves or in the nations have an opportunity to weigh in on decisions about changes in self-governance? What are the challenges that First Nations are facing because of the movement of people off reserves?
Mr. Aldridge: You raise a crucial subject.
Going back to my knowledge of the Nisga'a Nation, their treaty and self-government. The Nisga'a insisted that treaty rights apply to Nisga'a citizens, not to Indian Act defined entities. They recognized that a large percentage of their population is resident outside of the Nass Valley in northwestern British Columbia and lives in other urban centres, which is the phenomenon to which the senator is referring.
Under the treaty and the Nisga'a constitution, they created entities of government that they call ``urban locals.'' There are three urban locals: one in Terrace, one in Prince Rupert/Port Edward and one in Greater Vancouver. In that way, the Nisga'a people who have moved to Vancouver, Terrace or Prince Rupert — and there is quite a number of them — have their own organization, the urban local, with direct representation on to Nisga'a government.
If you have not already, you will be hearing in due course about the effects of the Corbiere v. Canada decision on Indian Act lands, and the whole question of on-reserve, off-reserve voting rights. The Nisga'a were out in front of that decision, and they ensured there was political participation by all Nisga'a citizens, regardless of residence, through the urban local system.
Here is the problem: The Government of Canada does not look at it that way. The Government of Canada says we fund programs and services essentially for status Indians on reserve. There is a real difficulty in persuading the Government of Canada to provide, through the funding mechanisms, sufficient money to keep those Nisga'a citizens in the urban centres under the roof of the Nisga'a Nation, as being the political entity responsible for delivering its programs and services.
Instead, the Government of Canada says in the urban centres, we fund through such things as the friendship centres. Therefore, we will not go along with that idea. It is a fundamental problem.
You end up with the fragmenting of the nation, as the chair started with, in a different kind of way. Without getting too far afield, in terms of the subject matter of the committee now, the political representation is there. That is one model, not the only one, for how that political participation is ensured; but it is frustrated by the Department of Indian Affairs' old way of thinking about funds.
Senator Martin: Knowing that this additional challenge about the movement of First Nations to urban centres exists, I am wondering about the role the federal government might play in assisting with creating this elected regime. The challenge is so great. When you are saying, how can we have each group create their own system, that process would be long and challenging because of this other reality.
What would be the most effective role of government? In a way, we have that national perspective. I think individuals like yourselves would be an important bridge in working in partnership with the government but I see the challenge of each group. How do we bring this about?
We want these end results, but I can only anticipate that the big challenge is ahead. What is the important role you can play, and the very important role that the federal government should play, because of the national perspective we have in helping each of the bands address these very real challenges?
Ms. Cornet: The prohibition or the handicap that First Nations citizens living off reserves have experienced had their roots in the Indian Act, where there were legislated prohibitions initially against First Nations members off reserves voting and holding positions as council members. There have been court decisions to address both of those issues.
That at least, in terms of some positive news, has stimulated some constructive dialogue and different options on the different ways that members or citizens living off reserve might be represented. Again, there may not be a single formula for everyone, but the Corbiere decision and, more recently, the Esquega v. Canada decision at least reinforced the notion that the federal government should not be creating new distinctions and divisions within First Nations communities. We have had plenty of that, both through the provisions relating to entitlement to Indian status and band membership, and also with respect to the rights of members living off reserve, as Senator Brazeau knows.
At least, with these court decisions, that dialogue has been forced open. First Nations, I think, have undertaken a range of options. Again, in the Corbiere decision, the court contemplated that there could be more than one way of meeting the representation of off-reserve members and, as it typically does, encourages people to talk to each other about these things.
The Chair: You both note that the role of the minister in First Nations' elections is too large. In your view, what would you think this committee could recommend to reduce the role of the department in elections? We are going to try to craft the report, as you know. How do we remove those impediments?
The other question is with respect to the applicability of the Charter to the election codes. I realize these are complex questions. However, on my first question, do you have any suggestions based on your experience?
Mr. Aldridge: I think that the goal of removing the minister and the department from the role they currently have in elections is entirely salutary and important. It is very difficult to know how to get there from here without starting the process of legislative reform because it is in the act.
It would require an amendment to the Indian Act. Then it would beg the question, with what would we replace the minister and the department in terms of the roles and functions that she or he currently plays? We made some suggestions about that, but it is like tugging on a thread that all of a sudden starts to cause wrinkles all the way around.
That is why what we recommended as an interim step was legislative change, the creation of some kind of a body or institute or locally designed mechanism to do election appeals, to rule on the kind of things that Senator Lovelace Nicholas was talking about. However, at this stage simply to propose an amendment to the act, I think, would raise more questions than it would answer. Perhaps smarter people than me can come up with a way of doing it.
I do not think anybody would like it better than the department. I do not think they enjoy having to deal with these issues either. It is just the system we are stuck with.
That is why I still say, regarding the longer term role, revert to custom, enter into a self-government agreement and move forward in that way. Let each First Nation or nation, create its own institutions to do this.
Senator Brazeau: In terms of moving forward and moving beyond the status quo, what would you recommend that the federal government do? This is still within the purview of governance and enhancing governance practices on reserves. What would you recommend that the federal government do in terms of possibly establishing a process?
Obviously, I do not think that any government would deal with 600-plus individual reserves in terms of dealing with these types of issues. If you look at the self-government agreements that have been signed in this country, that is because the peoples within that particular nation got together for a common purpose in terms of spearheading and promoting their own political agendas within this country.
How would you suggest, for example, that the federal government deal with treaty organizations? Should it be through the establishment or the promotion of individual reserves amalgamating, coming together and reconstituting their historical First Nations to be able to move in that direction? I would like to hear that.
Ms. Cornet: You are trying to imagine a process for moving forward, whether it is a consultation that envisions legislative reform at the end or a general reform process to discuss the way forward. The process design will be very important.
I will give some specific examples that recur when legislative initiatives arise. Typically, organizations such as the Assembly of First Nations will be given money at the national level, which is then filtered out to regional organizations. Under the decision-making requirements of the parliamentary system, time is usually constrained and you end up with one regional meeting at which representatives from an entire province will be invited to express their views on the issue of the day, perhaps elections. There seems to be no contemplation of the possibility that a First Nation might not be able to attend the meeting because, for example, they are in the middle of self-government negotiations or dealing with a crisis in their community.
A great deal of thought is given to the decision-making requirements of the federal government and what is required in the consultation processes. Despite the great and legitimate interest in encouraging accountability by First Nations governments and other governments, there seems to be an expectation that First Nations leadership are expected to turn up at one meeting and give their opinion on a very complex legal matter in the absence of time to consult with their communities, including off-reserve members. That happens again and again, and there never seems to be a new way of doing it. We simply do the same thing again and again. Inevitably, the result is the same: They had no time to consult with their respective communities. They are right; they did not have time.
More thought could be given through a national process about the requirements for First Nations to make decisions within their communities in order to be accountable and about how to factor those requirements into the consultation process. That is one suggestion I would make.
Senator Brazeau: In that case, do you see an added benefit to the Government of Canada in dealing with national Aboriginal political organizations? I assume, and Mr. Aldridge may correct me if I am wrong, that no national Aboriginal political organization received any consultation funding in the case of the Nisga'a. I assume that the Nisga'a received the funding to consult their peoples to develop their agreement.
Mr. Aldridge: I do not know whether any national organizations received consultation funds on the Nisga'a agreement. If they did receive funds, I do not know what they did with it because we never saw any of it. I am sure they did not receive any funds. Nisga'a did not receive any consultation funding on the treaty but they did receive a negotiation loan. They are paying back the loan for their consultation with their own people.
Is there a role for national Aboriginal organizations in consultation? I am sure that there is a role. However, the federal government must respect the fact that no single view, whether expressed by the Assembly of First Nations, the Congress of Aboriginal peoples or the Metis National Council, is necessarily the view of all constituents. None of the national organizations, to best of my knowledge, has been given a mandate to make a decision binding upon all of the constituent members in respect of whether a legislative initiative is acceptable. At times, consultation with the national organization, done in good faith on both sides, can lead to false understandings and expectations as to the degree of consensus that exists across the country among the constituent members of the national organizations.
The role would include dissemination of information and educating the government about what constitutes real consultation in different parts of the country. In terms of something that could be taken as binding upon the member nations, I would say: Be very, very careful. I do not think they have that power.
Senator Brazeau: Would you say that there is a greater likelihood of moving beyond the status quo on these matters if the federal government were to establish a process to deal directly with the interested parties, stakeholders, or an amalgamation of communities, as opposed to with political organizations that too often have different interests in these kinds of processes?
Ms. Cornet: I point out that the Assembly of First Nations has a resolution on consultation that dates back to 1989 and how it should be undertaken in order to respect the right of each First Nation to consent to any legislative change. As I understand, they are still bound by that resolution. I'm sorry, could you repeat the question? I was starting to think about that resolution and I lost track.
Senator Brazeau: In your opinion, is there a greater likelihood of success or moving beyond the status quo in these matters if the federal government were to establish a process to deal specifically with the interested community or amalgamation of communities?
Ms. Cornet: There would be a role for national organizations in helping get that answer from various First Nations as to what the process requirements would be for a proper and meaningful consultation process, if that were to happen. The questions never seem to be posed: What are your decision-making requirements within your First Nations? How much time will it take to work through those processes and obtain an appropriate response? Too often legislative initiatives are driven by the federal timetable. Organizations, whether national, regional or at the community level, are told that the decision will be made by a certain date, and First Nations organizations are expected to accommodate that timetable. There seems to be no opportunity to create a joint timetable and a joint process. If there were such an opportunity, we might have more success.
Senator Peterson: Would you comment on the Sharon McIvor case in British Columbia? I was told by one of the Saskatchewan chiefs that if that decision stands, 85 per cent of his members would be removed from the registry.
Ms. Cornet: The McIvor case goes to one of the most fundamental aspects of the Indian Act, which is the question of federal legislation describing and defining First Nations' identity, whether Indian status or band membership. The long-standing problems of gender equality issues in that regard have not been fully addressed with the 1985 amendments. Certainly, that was the conclusion of the courts, both at the trial level and at the Court of Appeal level in McIvor.
That is a big question that needs to be paid attention to because much of what the Indian Act does flows from creating these identity categories. We define some people as Indians and some as band members. If we do not have that right, then many problems arise in the Indian Act. For example, when a legislative initiative on a specific topic is proposed, in order to fully understand its impact, you have to track through the various impacts on people with Indian status and who do not have band membership status, and vice versa, and on those with both. It makes for a great deal of unnecessary work, in my opinion. It is not a very coherent system. It certainly needs some attention. The point of the McIvor case, is that the plaintiffs who brought the case forward were looking for some assistance in finding coherence on the question of the federal role in defining First Nations identity.0
Mr. Aldridge: I agree that the larger question is the ability of each Aboriginal nation to define its own membership. Think of the words we use: ``Status Indian'' and ``Non-status Indian.'' Just think about the language. It becomes so familiar to us, I suppose, that we do not stop and pause and think of the fact we are talking about human beings here. Someone has status and someone has non-status.
Again, I am sorry to come back to the one I know the best but, under the Nisga'a treaty, there is no such thing. You are a Nisga'a citizen and it is defined by the treaty; it is defined by the Nisga'a. It is absolutely fundamental to identity to be able to self-identifying.
Are there objective criteria that could be looked at? Of course there are. However, the idea that the Parliament of Canada somehow has the political or moral right to divide up communities of people and say, ``You are in and you are out, and you are in and you are out.'' With the greatest respect to those who might differ, I find that horrific. It still gives me shivers when I think you can divide up a community that way.
I think it is dreadful.
Senator Peterson: Therefore, would it appear to be of significant import that it should be appealed to the Supreme Court?
Mr. Aldridge: I cannot comment on that. It certainly is an important issue.
Senator Dyck: With regard to that, you were saying the Nisga'a have the right to define their own citizenship with respect to elections. Would it be possible under reversion to custom for an individual First Nation to say, ``I define my citizenship as such and, therefore, they are allowed to vote regardless of the issue of status?''
Ms. Cornet: The way the Indian Act reads now, the answer would be ``no.'' That is reading it within the ``four corners'' of the Indian Act. If you did a section 35 analysis, you might come to a different conclusion.
That is why I was saying at the beginning that it might be helpful to do a section 35 analysis of the Indian Act as a whole to have an understanding of the scope of the problem. If we just focus on these individual issues such as term of election, Indian status and discrimination of various kinds, we may be missing this larger picture. The answer may well be ``yes'' if you did a section 35 analysis. However, if you looked only within the ``four corners'' of the Indian Act, the answer would be ``no.''
Mr. Aldridge: I agree with what Ms. Cornet just said. However, in case I misspoke myself: The Nisga'a treaty sets out who is guaranteed the right to be a Nisga'a citizen. The Nisga'a Nation cannot take that away from anyone who meets those criteria. They can expand the set, but they cannot contract the set.
However, that was a result of their choice as to those criteria and setting them out in the treaty. In terms of what would be possible now, I agree wholeheartedly with what Ms. Cornet said: Under the Indian Act, it would seem the answer is ``no.'' Under section 35 and maybe the Charter, there would be a pretty good argument that the answer could perhaps be ``yes'' if it was inclusive, not exclusive.
Senator Dyck: I would like to clarify. I thought that, if a First Nation reverted to custom, and that was approved, then Indian and Northern Affairs Canada backed off and allowed the First Nation to proceed without interference.
Are you saying they are still ruled by the Indian Act itself although they are not actually under the umbrella of the department?
Mr. Aldridge: The membership rules of the Indian Act would still apply. Reversion to custom allows you to design your own leadership selection. However, the Indian Act would still continue to define who is a registered Indian.
Senator Dyck: Thank you.
The Chair: These are interesting questions. It is a very complex situation, colleagues.
I have a question and I will ask it because this amalgamation intrigues me, the way you dealt with it with the Nisga'a. As you know, Mr. Aldridge, I had enabling legislation on self-government that I tried to promote, and the one thing is always capacity. Senator Brazeau brought it up here this morning.
If we look at amalgamation by treaties or by historical nations, do you feel it is practical to think that First Nations or bands could amalgamate under treaty? In treaty 1, for instance, you have Ojibway and Cree.
You are quite familiar with Manitoba. You will get all our land back for my ancestors. Could you comment on that?
Mr. Aldridge: There has been so much thinking and writing done on the concept of trying to get back to reconstituting the original nations. I would commend to you, through your assistants, to review the Royal Commission on Aboriginal Peoples, which talks about this subject at some length and in quite an informed fashion. It is very useful. We see the initiative — or what we know of the initiative — undertaken before the provincial election in British Columbia by Premier Campbell. The same themes seem to be showing up in that. Of course, we do not know what legislation will result from it yet.
I would not want to be taken as suggesting that it is all or nothing; that if you try to define the historical nation, you get that, or you get to form that and nothing else. It may be something new that is evolved that is still based upon the concept of the original nations, which also had confederacies and operated through confederacies and different kinds of political arrangements.
If I may say so, I think where we are on the same page is trying to figure out a way of addressing the dreadful ``dis- economies'' of scale that you have when you have tiny little political units that are attempting to formulate themselves with the inherent right of self-government in the 21st century, whether they be capacity issues, territorial issues or family issues. A great deal has been written on the politics of small and the particular problems that arise from that.
I cannot suggest a panacea for that problem. It is my optimistic belief that, given the opportunity, the time and the conceptual structure, increasingly groups of people know who they are and they know who they want to be, and they will come together in larger, more cohesive units.
The Chair: Thank you, Mr. Aldridge and Ms. Cornet, for your presentations and answers to our questions. I would like to thank you for sharing your time with us this morning. I appreciate you bringing your expertise to the table, as both of you have extensive experience on our First Nations file in the country and you are both well respected. I think I speak on behalf of this committee when I say this committee respects you greatly.
Senators, if there are no further comments, our next hearing is on Wednesday, June 3, at 6:30 p.m. in this committee room. We will hear representatives from the Congress of Aboriginal Peoples.
Unless you have further comments, we thank you again and the meeting is adjourned.
Senator Peterson: I have a question for possible future presentations to this committee. Do I send it to the clerk?
The Chair: Yes. We can talk about it. Send it to the clerk or we will sit down with our steering committee. We do not make this too formal; we just want to get the job done.
Senator Peterson: Thank you.
The Chair: Are there any further comments? There being none, thank you again.
(The committee adjourned.)