Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 14 - Evidence - September 16, 2009
OTTAWA, Wednesday, September 16, 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 welcome all honourable senators, members of the public and viewers across the country who are watching these proceedings of the Standing Senate Committee on Aboriginal Peoples. They are either watching on CPAC or on the web, and we are pleased to be able to televise these proceedings. I am Gerry St. Germain from British Columbia, chair of the committee.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. On April 1 of last 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 elections system, including the two-year term of office for chiefs and council as presently prescribed under the act.
We, as a committee, are seeking the views of First Nations' leaders, Aboriginal organizations, First Nations people, as well as experts in this area about whether and what changes should be made to the Indian Act elections regime in order to provide better governance for First Nations. This includes strengthening political accountability of the leadership to First Nations citizens.
For our viewing audience, it is important to note that 252 Indian bands, roughly 40 per cent of all Indian bands in Canada, hold elections in accordance with the Indian Act. This study on election processes focuses on those First Nations whose elections are held under the Indian Act. The other Indian bands select their leaders by way of custom or as a result of their self-government agreements or hereditary processes.
[Translation]
Just before we hear what our witness has to say on elections held under the Indian Act, allow me to introduce the members of the committee who are here this evening.
[English]
We have with us this evening Senator Brazeau from Quebec, Senator Raine from British Columbia, Senator Hubley from Prince Edward Island, Senator Peterson from Saskatchewan, and Senator Dyck, also from Saskatchewan.
Senators, allow me to introduce our witness.
Jerome Slavik is a lawyer with the firm of Ackroyd LLP in Edmonton, Alberta. Since 1983, Mr. Slavik has worked extensively in the area of Aboriginal law, focusing particularly on the negotiations and settlements of outstanding treaty land entitlements and specific claims. He has been counsel for First Nations on negotiations for tripartite self- government agreements, environmental disputes, royalty and commercial agreements as well as industry benefit agreements. He also teaches a course in Crown-First Nation negotiations at the Banff Centre.
He is also a man of considerable patience, in that we have invited him before and have had to cancel and reschedule his appearance. We thank him for his patience and generosity. We are happy that he agreed, once again, to accept our invitation to be here tonight.
Mr. Slavik, we welcome you to our committee and look forward to hearing your views on the elections held under the Indian Act. We hope you would be prepared to answer any questions after you have made your presentation. You have the floor.
Jerome Slavik, Barrister & Solicitor, Ackroyd LLP, as an individual: I would like to thank the senators for the honour and privilege of appearing before you again. I believe this is my third appearance before the committee. The last time I spoke here was to address the issue of specific claims resolution. I thank the senators for the excellent report that they produced in relation to specific claims resolution that led to the new legislation establishing the Specific Claims Tribunal and the new specifics claim process. I do not think Canadian citizens appreciate how much hard and good work the Senate does, but certainly apparent to me and to many people in First Nations was the work you did on the specific claims issue. On behalf of me and many of our clients, we would like to thank you.
I have prepared a written presentation, which I understand has been distributed. You may not have had a chance to read it, but if it is in your possession, I can speak to it.
The Chair: It has been distributed. If I may interrupt, I would like to introduce the deputy chair of the committee, Senator Sibbeston from the Northwest Territories, and Senator Lang from the Yukon.
Mr. Slavik: I believe Senator Sibbeston and I go back at least 40 years, but maybe that is giving away too much, senator.
The Chair: Well, you were two years old when you met him. Carry on, sir.
Mr. Slavik: The issue of First Nation governance deserves much more attention and thoughtful consideration from the Government of Canada. Not only do we have to look at current legislative government framework as provided by the Indian Act, but we need to look at policies that currently drive self-government initiatives in the country, including the self-government policy that has been in effect now for over 16 years.
If I could just take a brief moment on the side, senators, in my mind, the self-government policy of Canada, particularly in the treaty areas, has not been successful. After over 20 years of negotiations and policy work, I do not think the government can point to one either comprehensive or sectoral self-government agreement negotiated outside of the comprehensive claims areas. I can speak to a number of negotiations on the Prairies and in Ontario that have been ongoing on this, but none have been concluded, and none are near being concluded. It has been an expensive, frustrating and futile exercise for many First Nations. Those senators from Saskatchewan may have some firsthand experience of this, but that is for another occasion and another evening.
I want to speak specifically tonight about the election of First Nation governments. In my mind, electoral legislation and regulations go to the very heart of democratic, responsible, accountable and effective First Nation governance. Without a properly considered and carefully constructed election framework, we cannot achieve those important values that I think all Canadians and all First Nations people want to see in their governments. I want to speak a little about how to achieve those important values because there has been criticism in the last number of years that many First Nation governments are not reflecting those values, and that has affected the way other governments have related to them. It has affected the way they have been financed. It has affected the way they are being dealt with by third parties such as financial institutions, industry partners, et cetera. There needs to be, in my mind, a much more effective set of election regulations that reflect those values that all Canadians, including First Nations, value.
Just by way of background, the Aboriginal economic development project started by Harvard University in 1990 is currently being carried on at the University of Arizona. The project was founded by Stephen Cornell and Manley Begay, two very well-known academics in the United States on Aboriginal governance. They talk about the importance of a strong First Nation governance system that is culturally appropriate, politically responsible and transparent and accountable as a prerequisite to addressing socio-economic initiatives that will lift Aboriginal communities out of poverty and their current socially unacceptable circumstances. To put it the way the Meadow Lake Tribal Council puts it, simply, you need rules for governance in order to have an effective economic development and business platform for your community.
I have been working in First Nations for 38 years, 26 years as a lawyer. I cannot describe to you the number of sound business ventures that have gone under due to either a lack of appropriate First Nation governance or effective corporate governance, which requires many of the same traits and characteristics. This is, if I could say, a core issue.
The Indian Act offers two ways to establish an electoral regime for First Nations. The first, of course, is the legislation and regulations under the Indian Act, and I will just refer to that as the Indian Act election rules or regulations. The second option is what are referred to as customary election regulations. These are election regulations designed by First Nations that are intended to reflect their views of how in their community they can develop culturally and traditionally appropriate electoral systems that, at the same time, are democratic, transparent, accountable and responsible.
I have set out in my paper the typical content of customary election regulations. If you compare what typically is found in customary election regulations — or what ought to be found in those election regulations — to what you find under the Indian Act or Indian Act regulations, you will see very substantial differences. We have drafted over 12 customary election regulations. None of them are less than probably 35 pages because they go into considerable detail on aspects of election procedures.
Before any of you think that lawyers get paid by the word, that is not our rationale for having comprehensive election regulations. In fact, election regulations need to be very thorough, well defined and clear to address many of the issues and to achieve many of the outcomes that both the community wants and the larger community expects.
On page 4 of my presentation, I have outlined the issues that typically customary election regulations address. Here I will draw upon my own background and experience. Where customary election regulations have been properly and coherently drafted with First Nations and good legal counsel who understand what would be required by democratic, accountable and responsible election regulations, they are far superior to what is offered under the Indian Act and Indian Act regulations for many of the reasons I have set out in my paper.
They offer more appropriate terms of office that are established by the community. They allow the community to determine the size of their leadership based on the needs of the community, their economic and fiscal circumstances, their geographic location and other factors. They ensure a much more wide-ranging and mandated voting procedure. They establish clear grounds of eligibility for office. They ensure independent and qualified electoral officers. They have voting procedures designed to facilitate participation, not avoid it. They establish clear grounds of appeal and appeal procedures. They clarify the roles and responsibilities of chiefs and councils, and they have grounds and procedures for suspension and removal of councillors who, for a variety of reasons, either are not meeting their roles or responsibilities or, in some cases, have other reasons set out in their regulations for removal from office.
I have to tell you that under the Indian Act, I am aware of two chiefs who were charged with serious crimes; one with murder, and there were no grounds to remove him from office. He was governing from the jailhouse. That is a large example, but First Nations need to have provisions for removal of leadership who either are not performing their obligations or who have other factors that are affecting them from properly serving their communities. That is a provision that is really not apparent under any of the federal acts or regulations.
Good community regulations — I like to call them community rather than customary — but community and customary election regulations, if properly and thoroughly drafted, can significantly improve the quality of First Nation governance.
When we begin working with First Nations who are having governance issues, we always start with their election regulations. It is not a matter of their post-election policies or their fiscal bylaws. The heart of the matter is who can run for office, how they get elected and how they then can transparently conduct their decisions and how the community can then respond to that. Good customary election regulations do all that. I have attached to my report an index of what would typically constitute the subject matter of a customary election regulation.
Since I think customary election regulations are very superior to the Indian Act and the Indian Act election regulations, in our recommendations, we would urge you to consider a number of initiatives specifically that would encourage and enable First Nations to design and develop their own customary election regulations. There is, in my mind, insufficient support from Indian and Northern Affairs Canada, INAC, either in terms of technical support, legal support, but most importantly financial resources to enable First Nations to adopt customary election regulations that better serve their purposes. I would urge you to recommend to the department that if customary election regulations are the way to go — and I think they are because ultimately they are the heart and soul of self-government — then there needs to be more resources and more policy initiatives in regard to that. I have some specific suggestions as to how to do that.
Additionally, I think the Indian Act, and particularly its provisions dealing with First Nation elections, whether in legislation or regulations, are an anachronism. There needs to be a sunset clause in any amendment to the Indian Act that says that at some point the Government of Canada will get out of the business of running First Nation elections. To that end, I think there should be a sunset clause that says, "At a certain point in time, the Indian Act and the Government of Canada will no longer be responsible for conducting First Nation elections, setting their regulations and conducting their appeals. First Nations, you have to step up as governments and take on that responsibility, and hopefully be resourced to do it."
With that in mind, I will now talk a bit about the Indian Act electoral legislation and regulations. I know one of the issues that you have addressed is the term of office. The act stipulates a two-year term of office. As I have said in my paper, there is no single greater impediment to First Nation development than the two-year term of office. I want to tell you one very personal story.
When I began working with the Indian association as a young man of 23 in 1973, my mentor was an old grizzled chief, William Bull, from Goodfish Lake. He was like a second father to me, guiding me through Indian country for many years. I was a young, naive, university educated white guy — if I could put it that way — working in a very well- established Indian organization headed by Harold Cardinal at the time. Some of you may recall Harold.
The second day on the job, I naively asked William why the Indian communities are in the circumstances they are in. I thought he would talk about poverty, alcoholism or residential schools. His answer was the election provisions of the Indian Act. He said, "Every two years we get to fight amongst ourselves, but it is not every two years. Because we are elected every two years, we are fighting amongst ourselves on a daily basis. We cannot, with a two-year election period, develop the kind of far-sighted leadership, the kind of administrative capacity and the kind of planning mechanisms that enable us to move out of our circumstances."
That was September 20, 1973 that William Bull told me that. I have had that in the back of my mind. In my experience working with First Nation communities over 38 years, that observation has been borne out over and over again. When we go into a community to work as counsel, whatever issue we go on, I always ask the council: Do you want to continue to work with a two-year term? If you do, we are on a very short-term agenda with short-term political interests and consequences. As lawyers, if that is what you want us to facilitate and enable you to do, that is fine. However, there is a different way.
Once most First Nation communities see what their options are, how to do customary election regulations and the implications of them, they start working on them.
First, the term of office issue needs to be addressed. You need to be somewhat sensitive in how you address it. You may think it appropriate to legislate a four-year term. However, there should be some means in the act whereby the First Nation could determine what they see as being an appropriate term of office without necessarily having to completely draft their own customary election regulations. Is there some interim or transition mechanism you can create in the legislation or regulations that would enable First Nations to have a longer term of office without needing to completely adopt customary election regulations? Currently, there is not.
The second key problem with the Indian Act legislation and regulations is the appeal process. Having the deputy minister of another government official undertake First Nation appeal process procedures is rife with problems on the face of it. I read the testimony of the representatives from INAC on the election appeal process: It is an average of 12 to 18 months; it lacks any resemblance to a fair and due hearing process; it is conducted entirely by departmental officials; and it would not meet the legal standard of any quasi-judicial review or appeal process that I am aware of.
However, that is the appeal mechanism that First Nations are left with under the Indian Act. If the First Nation is under a two-year election system and their appeal takes 18 months, you can see the problem. They have 18 months of a government that may not have electoral legitimacy. How do banks, government agencies and third parties deal with a First Nation government whose legitimacy is being examined by INAC and the Minister of Indian Affairs and Northern Development?
A problem exists with having the appeal process within INAC. They may not be perceived by First Nations as neutral or credible, and their process lacks any of the requirements for a fair electoral appeal process. If you look carefully at properly drafted customary election regulations, pages are devoted to ensuring that the electoral appeal process is transparent, expeditious, effective and that it meets the requirements of procedural fairness. Therefore, with respect, you need to address the appeal mechanism under the Indian Act.
Third, the Indian Act and the regulations have no grounds or mechanism for the suspension or removal of council. The only option may be to go to the courts. I am not aware of any particular cases where applications have been made to remove chief and council in courts. I am aware of applications where they have been alleged to have breached fiduciary obligations through conflict of interest and so on but not for removal.
This is a big gap. You have to be very careful how you address this. However, it is a gap that needs to be addressed if you want to continue to have a federal legislative and regulatory framework in place.
Let me make some very different suggestions as to how First Nation election issues should be handled by INAC. First, the whole matter, to the extent possible, should be taken out of the hands of INAC and placed in what I refer to as a First Nations electoral commission. This commission should be responsible for replacing all of the department's functions in relation to First Nations elections. I have set out what their functions should be in my paper.
Second, either as part of the elections commission or separately, a First Nation election appeal tribunal should be established. First Nations who do not have customary election regulations with appeal procedures could go to this tribunal, even if they are under the Indian Act, to have a transparent, effective and expeditious appeal heard rather than some federal official reporting to the deputy minister and making a decision 12 or 18 months later.
I have stated in my paper the problems that the department has identified with its appeal procedures and why I think a tribunal would be an appropriate mechanism.
I want to make one final point. If First Nations do not have an appeal system by custom and the Indian Act appeal system lacks any of the characteristics of an appropriate appeal, the third option is the court. I am aware of cases in the last five years where over $12 million in legal expenses has been incurred by First Nations appealing election outcomes in court. Those are only the few cases of which I am aware.
The Federal Court will hear these cases. They will take years. They will cost tens if not hundreds of thousands of dollars. A number will go on appeal. The appeal process can be anywhere from two to four years by the time it works its way through the courts. To be blunt, the court does not want to be involved in First Nation election appeals. There needs to be a more efficient, low-cost, impartial mechanism for this to happen that meets all the standards of a quasi- judicial review.
Thank you for hearing me. I realize I spoke more than 15 minutes; my apologies. I wanted to lay the context for questions.
The Chair: Thank you, Mr. Slavik. I have a couple of quick questions, honourable senators, if you do not mind me asking off the top.
You indicate that there should be a transition from section 74 of the Indian Act to something else. Is there a reason your recommendation is not simply to scrap the Indian Act and let us go to a different system? Maybe that is unrealistic and your experience can answer that question.
Mr. Slavik: Many First Nations are comfortable with the two-year provision under the Indian Act. A core part of First Nation self-governance is managing your own electoral procedures. I think they need both a stick and a carrot to enable that to happen.
That is why I think a time frame is needed to indicate that at some point Canada will be out of the business of running First Nation elections. However, at the same time, DIAND should be providing the resources, the opportunities and the institutions to facilitate First Nations doing that themselves. That is why I suggested the First Nations electoral commission. Their job would be to provide legal expertise, experience and knowledge to assist First Nations in putting in place customary election regulations.
The only place they get that right now is from legal counsel. Legal counsel is expensive, and they are not all that good at this business. With respect to my colleagues at the bar, I have to qualify that, but I do not feel like qualifying it some days.
Senator Sibbeston: I want to thank Mr. Slavik for appearing and giving us the benefit of his many years of experience and his expertise in this field.
I had a chance to read your paper over before tonight, and I agree with all aspects of it. The recommendations you make with respect to an elections commission and an appeals process is precisely what is needed to benefit First Nations in our country.
It occurred to me that INAC has been doing some things where they take certain matters out of their department and give it to First Nations. The First Nations Financial Management Board and the First Nations statistical body that the government set up a number of years ago come to mind. There are precedents for the federal government to set up Aboriginal-type bodies or independent bodies that would serve their people better than the department itself.
This whole area of governance is one area that I agree is important. It is critical to the life and well-being and the growth of Aboriginal people in our country, and it is one that ought to be dealt with. I heartily agree with your recommendation that we do this.
I do not have to agitate, but I will be very supportive of making these recommendations in our report when it is done. I thank you for your insight. There is nothing more I can say.
We hear experts and government people. They have an interest to serve their longevity, their jobs and so forth; but in your case, you just appear before us without anything to gain, with a view to assisting and advancing the cause of Aboriginal people in our country. I thank you, and I find you very credible in this regard.
Senator Lang: I, too, would like to welcome the witness, and I appreciate the work he has done on the paper. I just have a few questions.
First, we talk about costs here. What is an average cost attached to drawing up customary election regulations for a First Nation? What would be a ballpark figure for that?
Mr. Slavik: It is hard to give a ballpark figure. However, if you had a First Nation that was committed and dedicated to doing this, first you need legal counsel because customary election regulations need to be constitutionally compliant; they need to comply with the provisions of administrative law. A number of legal issues are involved.
You run into problems with customary election regulations when they are designed by First Nations and consultants without the appropriate legal background. You can put one really quick and poor one together for $10,000, and it will cost you hundreds of thousands of dollars of problems. To put a good one together with legal counsel that know what they are doing would cost somewhere between $20,000 and $35,000. That would be, over the course of a year, probably four drafts with a number of community consultation processes for a community of between 5 and 1,000 people.
If you are looking at a community of 2,500 people, in numerous communities with much more complex consultation requirements than that, then the cost will go up. It depends on the degree of consultation, the size of the community and the complexity of the consultation process.
Senator Lang: After five or six of these various templates of customary election regulations had been drawn up across the country, it would seem to me that there would be a generic one that you could put in place with some minor changes. Then you would not have to take a year and spend $40,000.
Mr. Slavik: That is precisely my thinking behind recommending a First Nations electoral commission. It would be a place where First Nations could come for the necessary expertise, legal and otherwise, on both process and substantive issues to put these together.
My plea for an electoral commission is in some sense to put members of my own profession out of work because an electoral commission that had an educative and developmental mandate could do much of that work at much less cost.
Senator Lang: Has any consideration been given to the various provinces contracting with the province's electoral office to take over the responsibilities when the election was called? You would have a contract with them, but you would not have to hire a bureaucracy and have them in place forever and a day.
Mr. Slavik: That was another service that I saw the First Nations electoral commission providing; that is, for First Nations who wish to have independent, impartial and knowledgeable electoral officers put in place, the commission could provide those.
Senator Lang: The point I am making is it is a duplication of services. In our part of the world, we have an electoral office in place. There are people there; they are involved in the various elections. It seems to me if you were to contract with them, you would have someone that is impartial, your costs would be much less and there would not be a question of any partiality.
Mr. Slavik: We have a number of clients who do that. Other First Nations do not feel it is appropriate to contract with representatives from other levels of government, but a number of our clients do hire. For example, one of our clients hired their electoral officer from the adjacent town and another one hired someone who did training for provincial electoral officers.
Use of that advice is on a case-by-case situation, but it is not a practice that is widely adopted, in my experience. That is why if they had an institution that was First Nation managed and that had a reputation of providing knowledgeable and independent electoral officers, I think it would have a lot of take-up. It could be done relatively inexpensively.
If I could make a final point, sometimes there is a reluctance to use electoral officers who are not familiar with First Nations. I am just saying that is a factor out there.
Senator Lang: I notice under "Grounds for Removal from Office" in your paper, you make an example of provisions to having a chief or council removed from office on specified stated grounds by means of a referendum, 50 per cent plus one.
Mr. Slavik: That is just an example from one of the election regulations of our client. That was one of the mechanisms they chose for enabling that to happen.
Senator Lang: You are not recommending that?
Mr. Slavik: No, I am not. It really needs to be community specific, and it needs to be very carefully drafted from a legal point of view. That was just by way of an example.
Senator Lang: The concern I have is that once you start putting those provisions in, then you continuously have that political disruption by a few that can control the majority.
Mr. Slavik: That is exactly right. That is why you need to be very careful in either individual customary election regulations, or if you attempt to address that issue in any federal framework, you must be very careful as to how you address that. Frankly, I do not have a quick or easy answer on that one.
Senator Hubley: Welcome this evening, Mr. Slavik. I must thank you for your compliments to our committee for the work we do. We take it very seriously.
My question has to do with any infringements on First Nations rights. I would then refer back to section 35 of the Constitution Act and any amendments that we would be bringing to the Indian Act, in particular extending the term of office and establishing fixed election dates.
Would you feel that First Nations might view that as an infringement on their rights, or would they view that as a positive change?
Mr. Slavik: A complete answer would require a longer conversation about the scope of section 35 and the inherent right to self-government.
In my view, the current legislation does not violate any section 35 right. The reality is that section 35 rights, insofar as they relate to governance, are negotiated rights. That is, they are negotiated either through comprehensive or sectoral self-government agreements that are then, by federal legislation, recognized as being rights-based.
There is very little judicial ruling fleshing out the scope of section 35 rights. In fact, the courts have said, in one ruling, that there is no, per se, self-government right inherent in section 35 other than what the parties negotiate and have recognized by Parliament.
A right requires recognition. Recognition can either be given by the courts or by Parliament. The courts clearly have a preference for section 35 rights recognition to be negotiated and recognized by Parliament. They take a very narrow view of judicial recognition of section 35 rights in regard to governance matters.
Senator Brazeau: Thank you, Mr. Slavik, for being with us this evening.
My question deals with the notion or the recommendation of establishing an independent institution that would oversee these elections. If I take the quick math of $35,000 to develop these codes multiplied by over 600 First Nations communities in Canada, we are looking in excess of $21 million. I do not think that would be sustainable in trying to develop potentially over 600 different models of election systems.
I have also long called for the establishment of an independent institution, but I would like to hear your take with respect to how that would be beneficial for First Nations communities across the country. I think there would be a sentiment in many communities, maybe not all or the majority of them, of wanting to retain their jurisdiction to oversee their own elections as opposed to having this independent institution. I would like to have your take on that.
Mr. Slavik: Thank you very much for raising that issue. Let me start with your last point.
I see the tribunal as being a resource they can draw on. If they want an independent electoral officer, they can ask the tribunal. The tribunal would not be required to do that; it would be by invitation. They would be invited to assist in drafting customary elections and invited to assist on appeals, et cetera. It is a resource that would be cheaper, more sensitive, more effective and cost less than their other alternatives, which are the courthouse or Indian Affairs. I am just trying to create another alternative or another option for undertaking those activities. I do not see this as an imposition; I see it as a resource.
On your first point about costs, my understanding — I know it was in your materials — is that of the 630 First Nations in the country, approximately 250 some, or perhaps 300 some, already have customary election regulations, and they are already conducting their own elections, mostly at their own cost.
Remember that everything done under the Indian Act is at the department's cost. I do not have the figures for how much the department spends each year on conducting elections and hearing appeals, et cetera. My guess is that it is substantial, but that is really a minor point.
The real point is how dysfunctional that current arrangement is. A huge cost is incurred in not having a good electoral system that produces democratically responsible First Nations governments. The cost of not getting that right is far beyond $21 million per year. As I said in my opening remarks, the basis for First Nations economic development, socio-economic development and business development has to start with sound governance, and we do not have the legislative or regulatory framework to put that in place yet. I have made some suggestions about new ideas in all institutions to get that. The status quo, for many reasons, should not be maintained.
The Chair: For your information, my capable analyst here said that there are 334 bands presently under the customary program.
Mr. Slavik: Yes, I had 340. Thank you.
The Chair: That was just for information. Sorry for the interruption.
Senator Brazeau: Thank you for that. I cannot disagree with you because you are absolutely right.
The point I am trying to make is that the former Liberal government, through the proposed First Nations governance act, gave the opportunity for communities to buy in to developing their own election codes. However that would have looked, that could have reflected their own customs, traditions, practices, values and whatnot. The majority of the leadership rejected that process.
In conjunction with that proposed legislation, the National Centre for First Nations Governance was also established, which was designed to assist First Nations communities in doing exactly the work we are proposing here in developing their code so that it could reflect their own governance systems.
I can tell you — I sat on the advisory committee of that centre for a brief period — that the demand across the country was not very high, and so the centre sort of fell by the wayside.
Given that, I see that you are also proposing or recommending that the Senate recommend to the Government of Canada that the Indian Act regulations stop coming into force in 2015.
Mr. Slavik: It could be some other appropriate date. That is a suggestion.
Senator, this is probably not a politically correct view, but you are asking me for my experience and expert view on this. As I said earlier, you need a carrot and a stick. The stick is a decision by the Government of Canada that it is getting out of the First Nation election business. First Nations have to set up an appropriate framework to elect their own First Nation governments. Many of them have already done it. Others, for a variety of reasons, may be reluctant to do that; but whatever that reluctance is, they need to be encouraged to go in that direction.
Also, they need to be resourced and enabled to do that. Resourcing is not just funding. Resourcing is institutions such as a First Nation electoral commission that could provide them with expertise, assistance and resources to help them move in that direction.
I believe, senator, we probably would agree on the core direction that we need to go here. I am proposing one particular set of institutions and a strategy to get there. I have not seen anything else on the horizon that takes us in that direction, frankly.
Senator Brazeau: That is my final question, I guess. We both agree and most of us around this table agree that the status quo is somewhat unacceptable, but the question becomes how we get there. Given your experience and your knowledge with clients whom you work on behalf of, how do we convince the leadership across the country that making changes to the governance systems and the election system will benefit the community throughout? If we are seen as imposing, it will be rejected at every turn. Even though I fully, 100 per cent agree with the potential creation of an independent institution, again a fear is then created over what we will do for housing and education and the allocation of some programs and services in terms of health. Will we start creating independent institutions for the delivery of all of those programs and services similar to the election system?
Mr. Slavik: I am here to address one issue tonight, senator. Believe me, First Nations affect many complex, difficult issues, but I come back to my main point: To address those, you need to address governance; to address governance, you need to address the electoral system.
Canada, in my mind, must begin by addressing this issue more forcefully and effectively in conjunction with First Nations. If you floated these ideas with First Nations, you might get a significant take-up. I would not assume that First Nations will oppose the types of ideas set out in this paper. I am convinced most First Nations, from the grassroots up to the leadership, want better governance institutions. They see the need for them, and they suffer the consequences of not having them.
Some new ideas and some new thinking are needed here, senator. I would not underestimate for a second the political difficulties or perhaps the legal difficulties. However, I would urge the Senate to be bold in its recommendations on this regard.
Senator Peterson: Thank you, sir, for your presentation and excellent recommendations obviously reflecting your years of experience with this issue.
You are very clear that INAC should not be in the First Nations election business. If we were to make that recommendation and go down that road, do you think INAC would embrace that or push back?
Mr. Slavik: I think, if properly approached, the department would see the merit in these ideas. They have to work within the policy, legislative and regulatory framework they have, but they are not self-serving here. They see clearly the limitations and problems inherent in the situation. I do not think anyone in the department, if they looked into their hearts and looked at their experience, could endorse the status quo.
The second thought I would have is that many of the people that may be required to help establish these new institutions would draw upon the expertise, many of them Aboriginal people, from within the department. A large body of expertise there can be moved into a more effective institutional, legislative and policy framework. If you read carefully, even the submissions from the departmental people reflect the need for change.
The department really, at the end of the day, might welcome this initiative. It is one less political issue with which they have to deal.
Senator Peterson: If that was carved out and this First Nations electoral commission was set up, funding could be transferred over. We would not need new funding.
Mr. Slavik: I do not know. I cannot speak to all that. However, in my mind, the investment in new institutions to create stronger First Nation governments is one of the best investments we can make. As I said in the start of my paper, sir, Canada is one of the leading countries through its Foreign Affairs and International Trade branch to invest in the development of democratic institutions in other parts of the world, for example Haiti and Afghanistan. We are a world leader in doing that in other parts of the world. We are investing a mere fraction of those resources to enable and strengthen the development of stronger First Nation governments in this country. I think this, at the end of the day, is a very low-cost, high-return initiative.
The Chair: Honourable senators, during a major disaster, as a result of the INAC system, a First Nation was put into third-party management. Literally, they had no leadership at the community level for over a thousand people. A major flood took place. The lack of leadership was a result of the cumbersome, unworkable Indian Act scenario. I bring that to your attention. I was sitting here thinking of that. When this flood was happening, the chief, who ultimately was the chief and ultimately stayed the chief, could not do anything. He was powerless during this period of time, and his community should have been taking certain steps, but they were in this third-party management. I give you that for information.
Mr. Slavik: If I could just jump in; with respect to the number of First Nations either under third-party or co- management in this country, you should ask the department for the data, and then ask them for the amount that those third-party managers are being paid. It is unbelievable.
I just met with a chief last week who comes from a poor band in Northern Alberta. They are paying a third-party manager $60,000 a month to work in Edmonton.
The Chair: A month?
Mr. Slavik: To do five days work up there, most of which is writing cheques.
I know another First Nation where the bill was a million dollars a month. The real costs of having ineffective First Nation governments are not only with lost opportunities and lack of effective programs but real payments to private sector third parties to step in and run these communities.
I could go on, senator, but I will not.
The Chair: I could as well, but I have Senator Dyck with a question.
Senator Dyck: Welcome, Mr. Slavik. You have been here on several other occasions, and I have always listened to your wise counsel. I noted, I think it was several years ago that you mentioned in your testimony that a move from a two-year election to four years or thereabouts would be a vast improvement.
I really do not have a question because the question I had was concerning section 35 of the Constitution, which you answered with Senator Hubley. However, I wanted to follow up a little about the cost. You also just mentioned the cost of changing the electoral process for First Nations. Canada does spend millions of dollars in other countries. It is really important to put it in perspective, to recognize that, if there are about 300 First Nations that need to undergo this process and if the cost was $35,000, it works out to about $10 million, which is not a huge amount of money. However, when we talk about changing the electoral system for Senate reform, do we worry about how much money that could cost? That will cost us millions of dollars, too. Therefore, it strikes me as very odd that we worry about the money that we spend on First Nations but not for the other elections. That is something that we really need to wrap our heads around.
You have made it very clear that you believe it is a worthwhile investment. I wonder if you would like to make a few other comments with respect to that.
Mr. Slavik: The cost of lost opportunities is very difficult to measure, but for every month or year that goes by that a First Nation does not have an effective government, huge opportunities are lost, not only economic and social opportunities but those in childhood education, family development and others.
Where do these get factored into this system? I could make the cost argument many ways, and when I said $35,000, that was just a ballpark. However, these are costs that the Government of Canada incurs on an ongoing basis. For the other 300 First Nations, they will still be under the Indian Act, unless this changes, for a long period of time, and those costs will continue to be ongoing with no improvement in the quality or effectiveness of governance.
These are broad arguments for these types of expenditures, but I want to make just one final point, senator, of which you reminded me. I read this on the weekend in The Globe and Mail. Do not hold it against The Globe and Mail. I was reading Mr. Simpson's column about the costs of always being in election mode in a minority government. All of you are political veterans and knowledgeable people, and you see the cost of minority governments that are constantly in election-readiness mode because they are a minority government.
Mr. Simpson said to this effect on the weekend that good governance requires a term of office of four to five years. Democratic accountability says that, after more than four or five years, governments need to take themselves to the people. He also said that, likewise, when you have terms of office of less than two years, you get dysfunctional, short- sighted, politically expedient government that is not that effective and does not really serve the best interests of its community. That is the situation that many First Nations find themselves in under the two-year electoral system with no effective appeal system.
Would it be acceptable for Canada to have elections every two years?
The Chair: It seems that way.
Mr. Slavik: What would that look like?
Senator Dyck: It depends.
Mr. Slavik: I am not saying whether that is desirable, senator, but would you want it legislated?
Senator Raine: Thank you. I am really enjoying your comments and listening to your expertise. First, because I am very new to this, how did it get to be two years in the first place? Do you have any idea why they put that number in the act? There must be a history there somewhere.
Mr. Slavik: As I said in my opening remarks, senator, I was 23 years old when I began working for First Nations, and it was in place then. William Bull, who told me about this and its implications and the consequences, was 55 at the time and had lived most of his life under that regime. You can check the archives, and go back and look at the previous editions of the Indian Act, but I do not know how it got there.
Senator Raine: Therefore, it is fair to say that this poor legislation has held back our First Nations from progress for many years, and to me it is unconscionable that it continues.
In your experience, does anyone want it? If the cost of customary elections was borne by the federal ministry's budget, would any First Nation choose to keep their Indian Act election with its two-year term?
Mr. Slavik: They may. In other words, people may design customary election regulations with two-year terms, but it would be the community's choice. Then they would be in a position to assess the implications and consequences of a two-year term.
I have not seen one community yet, when they have had a choice or really wanted to pursue alternatives, put a two- year term in their customary election regulations. I am just speaking of the ones I know, senator. That is not to say customary election regulations with two-year terms do not exist. However, most of them understand extremely well the problems of a constant, repetitive two-year cycle.
Let me just step out on a limb here and say that there may well be First Nations leadership who do not want to move beyond the two-year cycle out of self-interest. Let me just leave it at that. That does not mean that their community should not have an option or a means to change that.
The Chair: One of the questions has come up around Manitoba. It has tried to do a regional initiative in trying to establish an electoral system. Do you think that it would work on a regional basis?
Mr. Slavik: I am not all that familiar with the Manitoba proposal, but, as I understood it, they wanted First Nation elections held on a province-wide basis on the same date every so many years, and a First Nation organization would help facilitate that happening. That is my understanding of the Manitoba situation.
If the chiefs and communities in that region want to do it that way to improve the governance of their communities, we need to try as many different approaches as possible. I put forward one. That is another. They are not incompatible.
The Chair: I, too, would like to thank you, Mr. Slavik, for always being prepared to share your expertise with us. You have appeared before this committee as a witness on various other issues and at various other times, and you have shown a great amount of patience with the committee in that we had to cancel on you a few times, as I said earlier.
I would really like to thank you on behalf of all the senators for always being there and being so forthright in dealing with such an important issue.
If there are no further questions, I will suspend for five minutes before we go in camera. Is there anything else? Is everyone in agreement?
(The committee continued in camera.)