Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 12 - Evidence - February 29, 2012
OTTAWA, Wednesday, February 29, 2012
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-6, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations, met this day at 6:45 p.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good evening. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or the web. I am Gerry St. Germain from British Columbia, and I have the honour of chairing this committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally.
Today we will be continuing our consideration of Bill S-6, an Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations.
We have appearing today representatives from the Assembly of Manitoba Chiefs, the Canadian Bar Association and the Lac La Ronge Indian Band.
[Translation]
Before hearing from our witnesses, I would like to introduce the committee members who are in attendance this evening.
[English]
On my left is Senator Larry Campbell from British Columbia. Next to him is the deputy chair of this committee, Senator Lillian Dyck from Saskatchewan. Next to her is Senator Lovelace Nicholas from New Brunswick. Next to her is Senator Sibbeston from the Northwest Territories.
On my right is Senator Ataullahjan from Ontario. Next to her is Senator Stratton from Manitoba. Next to him is Senator Raine from British Columbia. Next to her is Senator Demers from Quebec. Last, but not least, we have Senator Patterson from Nunavut.
Senators, please join me in welcoming our witnesses. I have spoken to the panel and I have come to the conclusion, after talking to them and discussing it with them, that the first presenter will be from the Lac La Ronge Indian Band, Chief Tammy Cook-Searson.
Please proceed.
Tammy Cook-Searson, Chief, Lac La Ronge Indian Band: Thank you, Mr. Chair and committee members. I would like to acknowledge and pay my respect to the Nishnawbe Nation, on whose traditional territory we are conducting our discussions today.
Thank you for inviting me to speak today on the topic of Bill S-6, First Nations elections.
The release by Aboriginal Affairs and Northern Development stated that Bill S-6 was done through collaboration. To my knowledge, this bill was discussed neither at our council chambers, nor at the Prince Albert Grand Council, nor the Federation of Saskatchewan Indian Nations.
I was invited by your clerk to testify on February 20, 2012, regarding Bill S-6. I have only had a few days to prepare for today's meeting, and to me this is not a good example of meaningful collaboration.
Our First Nation, the Lac La Ronge Indian Band, is signatory to the adhesion of Treaty 6, signed in 1889. We have treaty and inherent rights to First Nations governance. Our elections are based on our custom code.
In Canada, the election of a chief and councillors can be held in three ways, with a fourth option being introduced through the proposal of Bill S-6. The three systems we currently have are: the Indian Act Band Election Regulations, custom code election, and self-government agreements. Bill S-6 presents a fourth option.
First let me say that I strongly support the change to four-year election terms. All levels of Canadian democracy and federal and provincial governments have four- to five-year terms. We are, in essence, playing catch-up with other democracies that already have four-year terms.
I think most First Nations will support the idea of four-year terms, but sometimes there are major problems attached to a positive change. More often than not, as is the case with this bill, the devil is in the details.
My main objection to this bill is the lack of positive change from the old Indian Act. Neither the Indian Act nor Bill S-6 incorporate the constitutional principles of the inherent right to self-determination and governance. The authority in this bill remains with the cabinet and the Minister of Aboriginal Affairs and Northern Development Canada instead of moving towards a greater responsibility with First Nations for our governance.
The four main points I would like to address are: one, the removal of chief and council by petition; two, dispute resolution by the courts; three, lack of development of democratic processes; and, four, excessive power of the cabinet and the minister.
The first point I would like to address is clause 36, which deals with removal of chief and council by petition versus democratic election. No one in Canada is removed by petition. When we look at our Prime Minister, premiers, MPs and MLAs, they are removed through the election process. Why is it that everyone else can only be removed by elections and democracy but First Nations can be removed by petition? Even appointed senators cannot be removed by petition.
This takes me to my second point of using the courts to settle disputes. In clause 33, the new recommendation is to go to the Federal Court or the superior court of the province. I do agree with many others who have come before this committee saying that what is needed is an independent First Nation electoral commission or a First Nations tribunal to settle any election disputes. The federal government and all the provinces already have this as a regular part of democracy. If it is good for the feds and the provinces, why is it not good for First Nations? Why not have an option for a truly independent electoral commission? Why are First Nations left with costly court procedures when other fellow Canadians have the option of a democratic institution to resolve election disputes?
My third objection to this bill relates to the lack of consistent democratic processes. In order for a First Nation to opt in to Bill S-6, all you need is a band council resolution with no vote of the band members, but if a First Nation wants to opt out of Bill S-6, you have to go back to the people. This does not make sense. Democracy should be practised at the beginning and end of the process. Opting in and opting out of Bill S-6 is a major decision regarding governance that could impact the First Nation band for many generations.
With that in mind, the clause regarding the band council resolution should include the vote of the majority of the First Nation. In our custom election code, this is what we have to do; we have to take our changes to our election code to the people so they are involved in making an informed decision.
My final point is in regard to the excessive decision-making power of the minister. Clause 3(1)(b) gives the minister authority to act when "the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation. " In effect, this clause prevents the right of First Nations people to oppose it. It means that when the First Nations have protracted debates in opposing each other's positions, the minister can come in there and take control and responsibility from the people or put us under Bill S-6, with no democratic input from our people.
I am also very concerned with the wording in the consequential amendment portion of the bill regarding the definition of a "band " in clause 43 that include bands under the new option, and subclause 43(d) which states that "in the case of any other band, the council chosen according to the custom of the band . . . . " Why were self-government bands not included in this consequential amendment? Again, does this mean that paragraph 3(1)(b) can be used by the minister to throw out and terminate democratic elections through the band custom?
Similarly, in clause 41, the regulatory decision-making power is left to the Governor-in-Council who is advised by the cabinet. The cabinet, through the Governor-in-Council, therefore has the legal and final authority to make decisions regarding all aspects of the First Nations elections. It is my understanding that the Governor General is there to make decisions about dissolving Parliament on the advice of the prime minister, but not the termination of governments when there is a strong debate.
Problems arise when a regulatory authority for elections lies outside any decision-making authority of the First Nation. I had personal experience with this in the last provincial election in Saskatchewan. The provincial cabinet went ahead and made changes to the procedure of attestation or confirming voter identity. These changes were done without our involvement. They made it so that the voter needed to have a fixed address on their identification.
The changes made by the provincial cabinet meant we, as a First Nation, could not confirm our voter identity of our own band members because many of our band members live off the land and many do not have fixed addresses on their identification. This was a major barrier to participation in voting. Fortunately, the province of Saskatchewan has an independent electoral commission. Working with the chief electoral officer, we managed to come up with an innovative solution that worked for us in our situation. The voting process was improved for all our people and for all First Nations members in Saskatchewan.
Again, we need an independent electoral commission.
We have only had the right to vote since 1960, and rather than working with outdated systems or practices, we should be dealing with the best in modern-day democracy.
In closing, I was elected as a band councillor for three terms and this is my third term as chief. I know that a strong Canada requires strong First Nations. We cannot fall back to the old colonial strategies of the past. I have come here to make suggestions on how to strengthen our democratic roles and strategies. I certainly hope that the senators and the government take our recommendations seriously for the betterment of all First Nations and all Canadians.
Thank you.
[The witness spoke in her native language.]
I wish you success in your deliberations.
The Chair: We will now go to the Canadian Bar Association with Aimée E. Craft and Tamra Thomson.
Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Thank you, Mr. Chair and honourable senators. We are pleased to have this opportunity to speak to you tonight on Bill S-6 on behalf of the National Aboriginal Law Section of the Canadian Bar Association. The CBA is a national association representing over 37,000 lawyers across Canada. The members of the Aboriginal Law Section are lawyers with expertise and experience in all matters of Aboriginal law and related issues.
One of the major objectives of our association is improvement of the law and improvement of the administration of justice. It is in that optic that we have prepared the letter that you have before you and in which we make our presentation tonight.
I would like to ask Aimée Craft, Chair of the National Aboriginal Law Section, to comment on the substantive matters in the letter.
[Translation]
Aimée E. Craft, Chair, National Aboriginal Law Section, Canadian Bar Association: Good evening, honourable senators. I am pleased to be here to represent the Aboriginal law section of the CBA.
[English]
This bill is intended to lead to improved stability, effectiveness and transparency for First Nations elections. It also codifies many of the election issues that have been litigated in the Canadian courts of law, as you may know. However, we caution that these efforts must not interfere with the constitutionally protected rights of First Nations to determine their own systems of internal governance. In my submission today, I will address three concerns and recommendations for improvement relating, first, to customary systems of governance; second, to ministerial discretion to include First Nations in the schedule of participating First Nations; and, third, to election appeals.
First, the application of the bill to First Nations with customary systems of governance potentially infringes on constitutionally protected rights of self-governance. CBA therefore makes the following recommendation: that the bill be amended to limit the scope to First Nations that are currently operating under Indian Act electoral systems; and that it explicitly exclude First Nations with self-government agreements and First Nations that are currently operating under customary systems of governance, unless their consent is obtained in accordance with either their customary practices or, in absence thereof, by a double majority vote.
Second, dealing with the level of ministerial discretion to include First Nations in the schedule of participating First Nations, this changes the opt-in nature of the legislation. It continues minister discretion to exercise control over First Nations governance and it would result in some First Nations being subjects of the act rather than participants. In addition, the bill lacks clarity as to the standard that the minister will apply in making determinations about what constitutes a protracted leadership dispute that has significantly compromised the governance of a First Nation. It also leads to some uncertainty as to which First Nations will be included in the schedule because an election has been set aside under section 79 of the Indian Act. Does this include recent, future or past section 79 settings aside?
In addition, it has been discussed at this committee and mentioned again in Chief Cook-Searson's submission that clause 3(1)(a) requires only a band council resolution from the chief and council so as to be able to include a First Nation in the schedule of the act. This could potentially be done in breach of customary practices of a First Nation or even without the consent and agreement of the citizens of a First Nation.
The CBA therefore makes the following recommendations: to include First Nations only where there is demonstrable consent or, in the alternative, to clarify the intent of the language and the standards to be applied to determinations made by the minister under clauses 3(1)(b) and 3(1)(c).
Finally, you have heard from legal counsel in the past that litigation of election disputes is time consuming and cost prohibitive. The bill attempts to remedy the delay associated with appeals directed to the minister. This committee has recommended that clear transparent, efficient and low-cost election appeal processes take place. Although courts may provide efficiencies over the existing system of appeals, a specialized and independent tribunal would achieve the same goals.
Similar to the recommendations of RCAP and of this Senate committee, the CBA recommends that, rather than resort to courts, one or more independently constituted tribunals take on the role of adjudicating election disputes — tribunals that recognize experience and expertise in Canadian law, First Nations elections and indigenous legal traditions, including indigenous dispute resolution. We also recommend the further development of existing and new internal and indigenous dispute resolution mechanisms.
I would like to note for this committee that the Federal Court has taken an approach to election disputes recently and seeks to resolve election appeals through dispute resolution mechanisms at the community level rather than through litigation. This is something that is in a test and pilot project at the Federal Court. The court is championing a project to suggest front-end mediation to First Nations parties on internal disputes which take into account both indigenous legal principles and indigenous dispute-resolution processes.
In summary, the CBA has cautioned in the past against legislation that fixes or purports to fix Indian Act problems in a piecemeal fashion. Further, the CBA supports the protection and preservation of autonomy, self-governance and the preservation and enhancement of internal political structures of governance of indigenous people in accordance with Canada's Constitution and international obligations.
These and additional recommendations are in our letter to the chair. I would be pleased to answer any questions in French or in English that you may have or to provide any further detail regarding our recommendations.
Merci. Thank you. Meegwetch.
The Chair: Thank you, Ms. Craft.
Grand Chief Nepinak, please proceed.
Derek Nepinak, Grand Chief, Assembly of Manitoba Chiefs: Thank you, Mr. Chair. Good evening ladies and gentlemen, members of the Senate. It is an honour to be here tonight to make a short submission respecting the bill before us, Bill S-6.
The Assembly of Manitoba Chiefs has been variously involved in this discussion over the last couple of years and came out with a position speaking directly to a four-year term, which we support. We also spoke to the development of tribunals that are regionally based and reflective of the normative and moral standards of our people.
Coming here as the Manitoba Chief, I represent a unique geography and unique demographic of indigenous people. We come from a land where thousands of years of tradition and institution of governance once stood and we are dealing with the aftermath, I think, of Indian Act policy and the development of law that has been detrimental to our success as independent nations of people.
We live in a time where there is recognition of a difficult history, including residential schools. Many of our communities are living in the aftermath and the consequences of the residential school experience. Many of the challenges that we see today reflected in our elections and in the way we govern ourselves I think find their genesis in the policy applications of a previous generation.
That is, I think fundamentally, the premise of my commentary. I come here in the spirit of cooperation and respect for the institutions of governance here in Canada, recognizing that this bill is not beyond amendment. It is with that understanding that I will reflect briefly on some of the specific provisions in the bill that I think require further reflection and possibly amendment.
Regarding clause 3(1)(a), we know already that the development of custom codes in our communities and the passages of them requires a double majority vote, meaning that we need to hold a referendum which includes a majority of the electors, as well as a majority passing the customary code. That double majority is reflective of the ability and willingness of our community members to participate in governance processes. I think that this bill undermines that somewhat in allowing a chief and council to move a resolution to opt into this new legislation. I think that is problematic because it excludes members of the community.
I have concern with respect to the phrase "protracted leadership dispute. " I am not quite sure what that means. I find the term overly ambiguous. It opens up a broader discretion for the minister to impose Bill S-6 on a community that might not otherwise wish to be part of the new legislation.
I am also speaking with respect to a significantly compromised governance. What exactly does that mean and what are the standards that will be set in place? Perhaps by way of regulation, we may find what the standards or thresholds will be under these terms. However, that would require us to be part of the development of the regulations. I think if I could make a recommendation on the development of regulations that is what I would say.
Clause 9 is a good piece of the legislation, as it removes the standard set by the Goodswimmer decision, allowing non-electors to run for the role of chief. I support that particular term in the legislation. That said, I believe at some point in the future the provision could potentially be subject to a Charter challenge for those individuals who will not fit within the electoral category. This is of concern to us because we know over a lengthy period of time we will have more of our individuals not fitting the criteria to become band members and therefore not fitting the criteria to be an elector under the act.
I believe clause 18, the secret ballot process, to be somewhat rigid. The provision should open up and be a little more flexible to allow for customary election processes that reflect some of the customary ways in which leaders have been selected in the past in some of our regions.
One of the processes historically among the Anishinabek is for the electorate to stand behind their leader at election time. Although this may not be common within elections at the community level, at the higher leadership levels it is still common that people will stand behind their chosen leader. That runs in the face of the concept of secret ballot, but nonetheless I believe there should be flexibility to allow that type of provision to survive and be incorporated into this new concept.
Speaking broadly with respect to clauses 30 to 35 on contested elections, the chiefs in Manitoba supported the resolution to move forward in the discussion on the basis that we would discuss a process of tribunals or regional tribunals to engage the challenges resulting in our elections. I think it is fundamental to the self-determining efforts of communities to be able to engage their conflicts, be able to engage conflict, and to make difficult choices. I believe it is in the form of a tribunal — the form of a decision-making body with authority — that our values and our systems of decision making really come to the surface. We can really show, and once again redevelop, those systems that were once there. I believe we need to be shown the respect and given the room to develop these tribunals so that we can adjudicate these matters within our systems. I believe that is a critical piece of the legislation that is missing.
Not to say there are problems with concepts of competent courts of jurisdiction. In many ways, I believe there is a place for courts in terms of adjudicating judicial reviews and rules of natural justice and so forth. Rules of procedural fairness may need to still be adjudicated in courts of jurisdiction. That said, there should be a tribunal process in place.
Clause 42 is problematic in that it is inconsistent with clause 3. If a community can opt into the legislation by way of resolution, why is it that to get out of the legislation they need the double majority and all of the other criteria listed under clause 42 of the legislation? To me, that is a problem and needs to be revisited.
Those are some of the highlights. I am happy to answer any questions. I do know that the Manitoba chiefs have been involved and I commend the work of the previous grand chief in advancing this discussion. I am open for any questions that might follow.
The Chair: Thank you very much, presenters. Are there any questions, senators?
Senator Lovelace Nicholas: Welcome. My question is for Ms. Craft.
In situations with mail-in ballots, it has been problematic with the previous elections because of fraudulent activities. What would you suggest for the community that has to deal with these fraudulent elections? What would your suggestion be?
Ms. Craft: I think there are provisions that deal with mail-in ballots here, and I believe there is also a fair amount of litigation that has taken place in judicial determinations on the appropriateness. Of course, as Grand Chief Nepinak has pointed out, concepts of procedural fairness underlie all of these electoral processes. Whether it is contained in the legislation here or something that comes up on judicial review to a court based on a custom elections system, the Canadian Bar Association has always been in favour of very clear, transparent processes for elections. Whether that is covered through the purview of this act or through a judicial review to a court on customary code systems, I think we can say we are in favour of that and protecting those electoral and democratic interests.
Senator Lovelace Nicholas: Do you think the elections on First Nations should be held at the same time as the federal elections? Would that be a possibility?
Ms. Craft: That is an interesting question, senator. I do not believe the Canadian Bar Association has a position on that. That is a question that would be likely better answered by First Nations in respect to their capacity to have elections, or their will to have elections concurrently with federal elections.
Senator Lovelace Nicholas: Would the chief be willing to answer or comment?
Mr. Nepinak: I would be happy to provide a comment on that. I do not think we have advanced a formal position on that. Speaking on the matter, I do believe there has to be recognition of concurrent governments in place. I think with respect to the elections, and whether or not the First Nation times its election to fall in line with the federal election, there would be practical value in the fact that new governments can work together, develop work plans together and so forth. However, I do not see it as a necessity because a First Nations government will push its mandate and its issues. Chief and council need to do that, regardless of the state of the federal government in terms of its election timing and so forth.
Senator Lovelace Nicholas: It seems to me that self-governance is heading towards the federal government we have, and it is going towards that era. Would it not mean that we should hold our elections all at the same time?
Mr. Nepinak: I do not necessarily think that would be a criterion we would pursue. As I mentioned, First Nation governments will develop their mandates at the will of their people, and they will pursue them regardless of the state of the federal government and its election timing.
Senator Lovelace Nicholas: Ms. Craft, would you suggest that there should not even be mail-in ballots since it is so problematic, or should I ask the chief?
Ms. Craft: I have the beginning of an answer to that. There is a significant proportion of First Nations population that lives off reserve. To exclude them wholly from the democratic process that affects their First Nation by not allowing them to participate at a distance, which we do allow for both provincial and federal elections. It would be an undue hardship placed on those particular individuals, especially in the case where they are remote First Nation reserve where elections would be held, and again cost prohibitive to attend for election purposes.
Mr. Nepinak: I believe that mail-in ballots are currently a necessity because we do have a vast number of band members who are unable to reside on the reserve due to housing limitations or limitations related to the accessibility to health services or income supports. This problem is partially alleviated by advance polls, which I believe there is provision for in the current bill as it stands. Off-reserve polls are a good opportunity where there is a large number of band members — such as in the city of Winnipeg, for example — able to come out and vote in an election that is happening in their community. I think that is something that needs to be maintained, and I am for mail-in ballots at this time.
Senator Stratton: The fundamental question underneath what was asked is: Do you believe in the credibility of the mail-in ballot? Is there abuse? If there is, to what degree? I think that is the fundamental question we are getting at here. If you agree with the system that is being used now, how do you prevent fraud? That is the basic question.
Ms. Craft: I think we are all in agreement that additional safeguards should be put in place.
Senator Stratton: Do you have ideas as to what they should be?
Ms. Craft: I think one first step that this legislation does address is the prohibitions and penalties that result from tampering with or buying mail-in electoral ballots. I am not sure that the legislation goes far enough, but I think that, at some point, there should be some discussion on what the precautions or methods should be at a regional level. Maybe the grand chief would speak to that.
Mr. Nepinak: I think the bill adequately addresses the concerns regarding mail-in ballots by providing prohibitions and sanctions against individuals who would undertake fraudulent activity. I am not one who dwells on whether or not an individual is prone to purchase mail-in ballots or to do whatever activity is done to compromise the process. I think it is incumbent upon the electoral officer to ensure that any standards that can be put in place to create a legitimate election are in place.
Senator Patterson: Thank you for the presentations and for coming on short notice, in some cases.
I was curious about the comments about the bill possibly infringing on customary practices. There was a comment made by the Canadian Bar Association presenter that the application of the bill potentially infringes on customary practices. I would like to ask you about that.
Also, if I understood Grand Chief Nepinak, he said that the bill seemed to threaten or conflict with customary codes, and he cited clause 19.
The reason I want to question you both about that is that, as I understand this bill, it is optional. If a community or a band wishes to choose the custom, to develop its own custom code, or to remain with the custom code it has adopted, it can do so. This is just an option alongside the Indian Act process, which is still in place and still used by a number of bands.
I am curious as to why you would feel that this choice, Bill S-6, would infringe, when bands do not have to take that route.
I believe the CBA also said the bill should exclude self-governing bands or bands that follow custom codes. Again, it is optional, so it probably does not need to be said that they are excluded, at least as I understand the bill. It does not replace them; it is just a choice.
I would appreciate it if the two presenters could respond.
Ms. Craft: I would be happy to address that. I know this bill has been promoted as optional, and I think that was the original intention when the discussions were taking place with First Nations organizations. In my reading of the bill, in paragraphs 3(1)(b) and(c) the minister does have the discretion to bring First Nations into the schedule of participating First Nations, without their consent, in two particular circumstances. We have talked about the language around 3(1)(b), which is, in our view, unclear and allows the minister to bring a First Nation into the schedule.
There is nothing in the legislation that says that this affects First Nations that are currently governed under the Indian Act only. Therefore, the implication is that bands that govern themselves in accordance with custom or that have custom elections would fall under the purview of this act. There is nothing that excludes them from being captured under clause 3(1)(b) or clause 3(1)(c), and 3(1)(c) notes that this can include First Nations that have had an election that has been set aside. Some of the First Nations that are currently under custom election codes have, in the past, been governed by Indian Act elections and may have had elections set aside under section 79. Again, that unclear language may bring in First Nations that are currently under custom code but were previously under Indian Act elections and had elections set aside. Now, the third issue is really with clause 3(1)(a) and First Nations, by band council resolution, requesting to be included under the schedule of participating First Nations, without obtaining the consent of the First Nation or necessarily having a referendum amongst its membership in order to be included within the schedule of the act. For those reasons, there are potential infringements on constitutionally protected rights to customary governance within First Nations.
I hope that answers your question.
Mr. Nepinak: I would concur with Ms. Craft. The legislation is being marketed as opt-in legislation, and certainly, under 3(1)(a), there is option to opt in. However, I believe that discretion is removed under 3(1)(b) and(c), which reverts the discretion back to the minister under ambiguous terms, such as "protracted leadership dispute " and "significantly compromised governance. " Furthermore, 3(1)(c), in the event of an election being set aside, opens the door for the minister to bring a band under the purview of the legislation. I think that discretion goes beyond the intent of our participation, in Manitoba, in the process.
Senator Patterson: I am wondering to myself if you think that the definition of a protracted leadership dispute that has significantly compromised governance is vague or ambiguous. Why do you say that? To me, it is pretty clear. In the past, they have been rare situations, and, hopefully, they would be rare in the future. "Protracted " means that there is a long-standing, unresolved leadership dispute and that it has significantly compromised governance, which to me means that there is no one there to make decisions. The government has been paralyzed because there is a dispute about an election; there is no authority in place, and decisions are not being made about education, water, et cetera. To me, it describes a clear situation.
With regard to (c), there has to be a finding that there were corrupt practices in connection with an election, and I would think that those would be very clearly understood. Now, for the first time, I think, in this act, we have a definition of corrupt practices that are not in place or are not clearly in place in the Indian Act, including such things as buying ballots, selling ballots, printing ballots, interfering in polling and obstructing an election. They are outlined here.
I guess I am kind of challenging you. Without writing a lot more words, how do you find those terms to be unclear or ambiguous? To me, on the face of it, they have pretty plain meaning, and they would be in kind of exceptional circumstances. I would appreciate your comments. I think both the CBA and Chief Nepinak have referred to the inadequate wording of those clauses.
Ms. Cook-Searson: I wanted to reiterate my point regarding subsection 3. It gives the minister authority to act when the minister is satisfied that a protracted leadership dispute has significantly compromised governance of the First Nation. This section, in effect, prevents the rights of the First Nations people to oppose. It means that when First Nations have a protracted debate in opposing each other's positions, that the minister can come in there and take control and responsibility from the people to put us under Bill S-6 with no democratic input from our people. There are many times when I watch Question Period, whether it is the federal or provincial governments, and a lot of debate happens, and that happens in our First Nations, too. Not everyone agrees with the governments that are chosen by the people, but it is the majority of the people who have voted us in to represent them. Yes, we do have debates from time to time, and we are able to resolve them.
I am very concerned about the wording in the consequential amendment portion of the bill regarding the definition of "band. " It is in clause 43(d), which states that "in the case of any other band, the council chosen according to the custom of the band . . . . "
I question why self-government bands were not included in the consequential amendment? Again, does this mean that 3(b) can be used by the minister to throw out democratic elections through band custom? That was my question. I think that needs to be answered.
The way the act is written, it gives excessive decision-making power to the minister. Even with the regulations, you read the regulations, 41, it says, "The Governor in Council may make regulations with respect to elections, including regulations respecting " and it lists 8(i), and (i) is a catch-all: "anything else that by this Act is to be prescribed. "
It takes away from the First Nations. That is why I mentioned having our own tribunal. The federal government has its own. If there are election disputes like there is right now, and it is all over the news, then they have an election body that looks after that. Even in the province of Saskatchewan, we have an independent election body that looks after the elections. Why not First Nations? Why force us to go to the courts? That is my comment. Thank you, senators.
Senator Meredith: Thank you, chiefs, for your presentations. I was not here to hear them all, but you just brought up a critical point with respect to Elections Canada and the commissioner having been empowered to look at wrongdoing when there is a federal election. That is a valid point that you raise. You mentioned the possibility of a tribunal. What would be the mandate of this tribunal, and how would this tribunal be governed if this were to be adopted as part of this legislation, amended going forward? Currently, it does not have that mechanism of appeals that a tribunal or Elections Canada has currently.
The Chair: Does anyone wish to comment to what Senator Patterson asked as well?
Mr. Nepinak: Yes.
The Chair: We will get back to that. Did you want to answer his supplementary with regard to the tribunal?
Ms. Cook-Searson: Thank you, senator.
This bill says that we have to use the courts to settle disputes as First Nations governments. In clause 33, the new recommendation is the Federal Court or the superior court of the provinces. I know that many others have come before the commission saying that we need an independent First Nation electoral commission or a First Nations tribunal to settle any election disputes. The federal government and all the provinces already have this as a regular part of democracy. If it is good for the federal government and the provincial government, why is it not good for First Nations? Why not have an option for a truly independent electoral commission? Why are First Nations left with costly court procedures when other fellow Canadians have the option of a democratic institution to resolve election disputes?
The Chair: Would you like to go on Senator Patterson's original question, grand chief?
Mr. Nepinak: Certainly. I appreciate the question. I will comment as briefly as I can on the language. I maintain that I believe it to be ambiguous. I speak from the perspective of someone who has been a chief back home and someone who knows my families back home and the structure of family clans. I could say right now that in many of our communities there is an intergenerational state of protracted leadership disputes occurring right now. I would also say that, for generations, we could argue that we have been operating within significantly compromised governance. I can say that because of many factors and policy applications that I alluded to in the early part of my presentation.
Keep in mind as well that sometimes the application of Canadian law and the English and the French language that we use is not the language of the communities and that we have communities that operate their councils strictly within the Ojibwa language or strictly with the Cree languages. Trying to contextualize or to interpret English sometimes is difficult, but when you add ambiguity into it, it becomes that much more difficult.
If we are talking about a significantly compromised governance in terms of putting people's health at risk, when it comes to safe drinking water or a matter of housing and the mould that exists in so many of our homes in Manitoba, the process that we have been subjected to is the intervention policy of the department. In cases such as that, what happens is the intervention policy becomes applied, and we find ourselves in a state of co-management in terms of financial administration or in a state of third-party management where we lose complete control over the finances at the band level. That calls into question what it means to govern at the community level. What is it that a chief and council are governing? Are they administering a contribution funding agreement, or is there something much more substantial to taking on a leadership role at the community level? Those are questions that are yet to be clearly articulated. However, I do believe it has to be at the community and grassroots level in terms of how people determine the state of governance that they are in. I hope that provides a little bit of clarity.
The Chair: Ms. Craft, did you want to comment?
Ms. Craft: I would echo a lot of what the grand chief has just stated. On the issue of protracted leadership disputes, I think that is a subjective term. Myself, having represented First Nations and individuals involved in electoral disputes, I can say that it is very subjective. In an election that has a two-year electoral term, we have faced many situations where, on judicial review or on an appeal to the minister, the issue has not been resolved until after a new election has taken place or a by-election has taken place. At the same time, there are issues around the availability of services and the good management of a community. In some cases, a First Nation is not able to respond in a timely way within a question of a few days, for example, in a state of emergency — in Manitoba, a good example is forest fires in the North — if there is no chief and council in place when an emergency event of that nature is taking place. That can significantly compromise the governance of a First Nation and its ability to manage the health and safety of its citizens.
On the second point relating to clause 3(1)(c), our lack of clarity is not so much with the idea of a corrupt practice. That is something that is resolved in the case law and its interpretation. The question is when the specific action is alleged to have taken place so that there was a reversal of the election by the minister. Can that go back to past elections that have been disputed?
That is a real concern based on a plain reading of this legislation. A First Nation that, many years ago, has fallen under a section 79 situation would be held to this standard and where the minister would again have a very broad discretion, without the consent of a First Nation, to be placing it on the schedule of participating First Nations.
The Chair: As I understand this, are you saying that there could have been corrupt practices in the past that the minister could theoretically act on and invoke Bill S-6 on the band?
Ms. Craft: The standard listed here, senator, is that an election has been set aside but it could have been an election that took place 30 years ago. The language is not clear. This could theoretically also be a band that has now moved to a custom election system, is no longer governed under the Indian Act, but meets this particular criterion as listed.
The Chair: I understand what you are saying.
Senator Dyck: The more I hear, the more confused I get.
I will go back to the paragraphs 3(1)(a), (b) and (c). Under (a) there is no definition of which type of First Nation that adding to the schedule applies to, so essentially you are saying this bill could apply to not only First Nations that hold elections under the Indian Act, but it could also apply to those First Nations that have custom code elections, self- government elections or even those that have their own traditional or hereditary methods. However, in the information that was presented to the committee by the minister and his staff, and from what we heard from the Atlantic policy chiefs, it sounded as though the bill was geared towards only those First Nations that were governed under the Indian Act, and certainly in the Atlantic provinces that appears to be the majority.
If we amended 3(1)(a) so it specified that it only covered those First Nations that hold Indian Act elections, would that be helpful?
I will start with that one question and follow up with a couple of others related to that section.
Ms. Craft: That is one of the recommendations made by the Canadian Bar Association.
Senator Dyck: Would the chiefs agree that that would be reasonable?
Mr. Nepinak: Yes, I would agree.
Ms. Cook-Searson: Thank you for the comment. One of the things I noticed about Bill S-6 was the inconsistency in the democratic process, so having that consistency of the democratic process in Bill S-6 would make sense. I was confused too when I was reading through the different sections of the acts and I think it would make sense to have consistency in the democratic process.
Senator Dyck: If we then look at the 3(1)(b), the minister can decide that he will add someone in. There is a debate as to whether or not "protracted leadership dispute " is precise enough, but I do not think it is. In that case, the minister could add a First Nation that is self-governing under a hereditary system or under a custom code. Would that be your interpretation from the CBA?
Ms. Craft: That is my reading of the bill as drafted.
Senator Dyck: In a sense it is an odd clause. Why then would the minister not just say go back to the Indian Act? The Indian Act is the one that is supposed to be the worst of all and where he or she has the most control. With this, if you have a protracted leadership dispute, let us say someone who is now under a three-year system under custom code, why would you make them go to a four-year term of election where theoretically you are giving them a longer term of office?
Does that make any sense? Would that happen if we had a custom code First Nation? The minister then could take them from a three-year cycle of elections and say that you are not doing your job well, you have had too many protracted disputes, therefore I am going to put you under Bill S-6 and now you will have four years. Actually, it is an improvement instead of a penalty.
Ms. Craft: My current reading is that the minister would have the option to include First Nation under this particular section. A self-governing First Nation might not fall under the purview of the Indian Act, but for a customary election the minister could choose to either bring them under this particular legislation or add them to the schedule of participating First Nations, or have that First Nation included and run their elections under the current Indian Act regime. There would be a dual regime.
Mr. Nepinak: I would concur with Ms. Craft on that. I believe that, in the way I read it now, it takes the minister into another playing field, and that is amongst the self-governing communities that hold their elections outside of the Indian Act. Therefore, to me, the only alternative the minister would have would be to draw them into Bill S-6 under the provisions of 3(1)(b). As I said before, I believe the discretion to be too broad and I disagree with it in its entirety.
Ms. Cook-Searson: I wanted to add to Senator Dyck's comments. Under clause 43, a consequential amendment to the Indian Act, that is what I was referring to when I said there is lack of consistency in the democratic process in this bill. I was very concerned with the wording in the consequential amendment portion of the bill regarding the definition of "band. " In clause 43 that includes bands under the new option and clause 43 states, "in the case of any other band, the council chosen according to the custom of the band . . . . "
You asked the question whether this means self-government bands, but in this clause I question why self- government bands were not included in this consequential amendment. Again, does this mean that 3(1)(b) can be used by the minister to throw out and terminate democratic elections through the band custom?
Senator Dyck: That is a good question. I was going to ask you to explain it more because I do not really understand your concern. I was hoping the representative of the Canadian Bar Association could add to what Chief Cook-Searson said if she has further insight.
Senator Raine: My understanding is that clause 43 is replacing the clause that is an amendment to the Indian Act. Now, those First Nations that were under self-government are not in the Indian Act so they would not be affected by this clause at all.
My understanding of what we are trying to do here is provide an option for people to move from a two-year Indian Act, very poorly defined governance system, to a system that is still under the legislation of the Government of Canada. It is not pretending to be self-government or to be custom code. It is a steppingstone, if you like, that takes First Nations into a situation where they can go from a two-year election cycle to a four-year election cycle on their way to being masters over their own lands and having their own codes and eventually self-government.
There are so many good reasons to go to four years. When I look at all the issues we are talking about, I see very clearly that this is not where First Nations want to go. It is only part of the way; it is not meant to be the full step. In that sense, I think it is very important that the Governor-in-Council, the cabinet, have a fallback position when there are circumstances that require them to look after — paternalistically, I suppose — the bands that are having trouble, but that is not where they want to be. Does that make sense?
Ms. Cook-Searson: To my understanding, custom election bands are still under the Indian Act. We are giving the authority under the Indian Act to have a custom election code. On the consequential amendment to the Indian Act, 43, that includes custom election bands, according to my understanding.
Mr. Nepinak: With respect to the comments made by Senator Raine, if you believe that to be the intent of the bill, then perhaps a non-derogation clause at the beginning of the bill is a recommendation I would make.
I think it is also important to consider that the current standard that exists for many communities is not a standard that can be met in terms of the double majority required in order for a band to opt into a custom code system, simply because of the fact that our communities are designed in a way that we have a number of individuals living at home on the community, but we have a very broad disbursement of our members living in many parts of the country. To be in a situation where you are able to meet that first requirement of getting the majority of electors out is almost impossible in some cases.
Speaking from my experience back home in Pine Creek, we opened a polling station in Winnipeg. While it increased voter turnout, we did not approach 50 per cent in our elections. To ask people to come out and vote on a speculative code is a difficult standard to be met.
Although I agree with your comment, the double majority is prohibitive insofar as it is very difficult to get people to come out. However, if the intent of this is to be a steppingstone towards the realization of self-government as an expression of Aboriginal treaty rights, then there should be a non-derogation clause in the bill.
Ms. Craft: For clarification relating to the issue of self-governing First Nations and Senator Dyck's question, the reason I believe that self-governing First Nations do not appear in the consequential amendments, as pointed out by Senator Greene Raine, is that this is a definition of council of the band under the Indian Act, and those self-governing First Nations do not fall under the jurisdiction of the Indian Act.
In reading the legislation, Bill S-6, it is not as clear that subclause 3(b) in particular could not affect a self-governing First Nation because it does open up the jurisdiction of the minister to a situation where there is a protracted leadership dispute that we have been talking about relating to a First Nation and not a council of the band, which is the wording in the Indian Act. That is why we see a difference between those two sections. I hope that helps to clarify.
The Chair: I am not sure whether it clarifies. I apologize; I am not being facetious or sarcastic. I am just saying that it becomes more and more convoluted as we look at it from a legal point of view.
Senator Ataullahjan: Thank you for your presentations. My question is for the grand chief.
We heard previously from the Atlantic Policy Congress that one of the major reasons they decided to champion for electoral reform was that Atlantic Canada has the highest percentage of First Nations who hold elections under the Indian Act system, at 75 per cent.
Does the Assembly of Manitoba Chiefs have similar reasons for wanting reform? What is the percentage of First Nations who hold elections under the Indian Act in your province?
Mr. Nepinak: To address the last part of your question first, in Manitoba I believe there are 27 communities that hold Indian Act elections. I am not entirely certain because I do not have those statistics directly before me right now. There are a number of Manitoba First Nations, I believe 64 in total.
Our reason for getting involved in this discussion is simply the aspirations of the Manitoba chiefs, as I said earlier, to revisit empowerment and to revisit opportunities in order to take back the self-determining nature of governance, including how we choose our leaders. I believe that is a reflection of the grand chiefs by way of resolution.
I refer back to the former grand chief and his efforts to advance this discussion to the point where we submitted a report and were in support of specific provisions that I had referred to in my presentation.
Senator Ataullahjan: When this bill was tabled in Parliament, you stated that you would not support Bill S-6 since the proposed reforms do not adequately reflect the position of the AMC. Can you comment on that?
Mr. Nepinak: The position of the Assembly of Manitoba Chiefs has been consideration of a four-year term, a common election day — and I will admit that perhaps within the crafting of regulations pursuant to this law, there may be room to develop a common election day, that we may be able to realize that — as well as the creation of an independent tribunal for election processes. Those were the three pieces that were being advanced by the Manitoba chiefs.
I made reference to the fact that the tribunal process has been left out of the bill and left for the courts of competent jurisdiction. To me, that is problematic. It does not reflect the resolution that we passed in our assembly within our governance processes, and if it does not reflect what the will of the chiefs is, then I cannot support it.
Senator Sibbeston: Yesterday when we heard from the representatives of the Atlantic Policy Congress dealing with paragraph 3(1)(a) requiring only a band council resolution, Mr. John Paul in particular said that this was not an oversight in any way; it was the result of a deliberate, well-thought-out plan. He said there would be more likelihood a band council requiring change. It would be easier to get that because generally people support the status quo, and it would be difficult to change. You also just said that it is prohibitive to get the double majority vote.
With that said, can you at least understand or see why this was done, to make it possible for Indian Act bands to make changes without going through an ordeal of trying to get the double vote referendum that it would require?
I think it is not intended in any way to give the minister more power, but it is intended to make it as easy as possible to make the changes from band councils that presently exist under the Indian Act.
Mr. Nepinak: Thank you for the commentary. I can understand the reasoning very well as to why it would have been thought out and proposed in the format that it has been. Insofar as the BCR, I am well aware of the processes to establish a binding BCR from my time as a community chief. However, if I did not have the discretion as a community chief prior to the introduction of this bill to move a custom election code on behalf of my community by way of resolution, why is it that draft legislation or legislation coming out of Ottawa does have that discretion now, pursuant to this law?
Prior to this bill being created, I can say that in my home community we had developed a custom code. We had developed the law using our language, and we put it on paper. We did take it to a referendum, where I think we had about 30 per cent voter turnout. When the paperwork was submitted to the department, it did not get passed because our voter turnout was not high enough. Now the new bill in place allows it by way of band council resolution.
I understand the reasoning behind it. However, as I said before, it is problematic because it denies the grassroots community the opportunity to be part of the process.
The Chair: In the same breath, if the council were to pass the resolution and they did not have the support of the community, they would be turfed out in the next election. Is that not correct, in all likelihood? That option always rests with the people, the First Nations people.
Mr. Nepinak: I think that would be a correct statement to make. However, there are many dynamics happening in our communities that add complexities to the discussion. Activities of the chief and council are constantly called into question back home by grassroots people. To make that generalized comment may be applicable in certain circumstances.
The Chair: I think it is oversimplifying the situation, what I have just asked, but I feel we had to ask it.
Do you have a supplementary?
Senator Campbell: Anytime you are elected you will be passing something that people do not like. You always will be in the position that if enough people do not like it, they do not re-elect you. I do not understand why there is a hang- up on the two to four, why you cannot just go to four years. Two years is ridiculous. You cannot get anything done. I do not know why there is a difficulty in that. I do not know why there would be a difficulty, for instance, in holding a common election date. Every municipality in British Columbia has their election on the same date, at the same time.
I think one of the problems is that there is not a consensus on this bill. There is not a consensus on how it moves forward or on what amendments would make it work for all of the people we hear before us. I cannot seem to get a picture here of where we are going with regard to the bill. I understand what you are saying, but should we start all over again? Should it be started all over again?
Ms. Cook-Searson: Thank you, senator. I had a comment for Senator Sibbeston and his comment on the band council resolution. That was one of my objections to the bill as it relates to the lack of consistent democratic process.
Also, in relation to Senator St. Germain's comment on if a band council makes a resolution and says we will opt into Bill S-6, and then if the people do not like it they can vote them out. Then, on the next election, they can go back to custom elections. Right now we have three different options, with the fourth option of Bill S-6 to conduct our elections.
However, it is not that simple, according to the act, to opt out of it. One of the objections I had made was that in order for a First Nation to opt in to Bill S-6, all you need is a band council resolution and no vote of the band members. However, if a First Nation wants to opt out of Bill S-6, you have to go back to the people. That is what I was saying; it does not make sense to me to do that. Democracy should be practised at the beginning and the end of the process. Opting in and opting out of Bill S-6 is a major decision regarding governance that could impact the First Nations for many generations.
With that in mind, the clauses regarding the band council resolution should include the vote of the majority of the First Nation, and no disrespect to the others who have presented to the commission. These are our own views that we are presenting here today.
In our custom election code, this is what we have to do. We have wanted to change some things in our custom election code, so now we have to go out to our people and ask them if this is what they want. If someone objects to the custom election code, we have to put it to a vote. We usually do it on treaty day, when a lot of our members come out for treaty payments. That is when we usually hold a vote on any major decisions, such as the band custom code.
In your question about the BCR, if a band council were to make a motion to say we will opt into Bill S-6 and they get voted out because the people are not happy under Bill S-6, then it is hard to opt out because of the section that is in the act to opt out of the bill.
Mr. Nepinak: If I may respond to Senator Campbell. I agree there may be issues of consistency in terms of what we are speaking of here in relation to recommendations and so on. I believe they are written into the record based on our presentations. I have come here in the spirit of collaboration, and I do not look at the bill today in its current format as a take-it-or-leave-it proposition. I hope there is room to consider some of the considerations that we have put forth here today.
I do agree with the four-year term. I stand behind that. I also believe in some of the provisions, such as the fact that it is only an elector who can run for chief and council. I agree with that provision as well.
I do hope that there is room within this discussion. We pondered in Manitoba, sitting around our table, the recommendations that we were coming forward with, will they take the form of a new regulation or will they take the form of an amendment to the Indian Act or would they take the form of brand new legislation? We had questions.
Around those questions, I believe, and within each of those considerations there are processes. I trust that the process I am engaged in here tonight is informative, and hopefully some of these ideas, from not just our panel but other panels that have been here, can be incorporated as recommendations that will enhance the legitimacy of this bill. That is what I am hopeful of, senator. I am in the same situation as everyone else, hoping we can create something that is good here. That is what my contribution is based on.
Senator Sibbeston: It might seem like I have been at it for a long time, but I only asked one question when everyone intervened, so I am still good for about half an hour.
The Chair: You have always been patient, so carry on.
Senator Sibbeston: With respect to 3(1)(b) and (c), there was a suggestion yesterday by Atlantic policy representatives that we should just delete these. Is that your general view? Do you think it gives the ministers too much power and discretion, as it were?
In a sense, it is like the situation long ago, where Indian people are squabbling or having a fight or disagreement, and the big father, the Indian agent, has to intercede to settle the dispute amongst his children. This smacks a little bit of that.
What is the solution? If we were to delete that, then there is just no more thought of that situation of the disputes.
The band would just have to settle it one way or the other. Also if there is corruption, then again the First Nations people are left to deal with it by themselves. Is that a solution?
Mr. Nepinak: If I may, I would agree with the recommendation that 3(1)(b) and (c) be severed from the legislation. I agree with your characterization of those provisions to be reflective of a time that has come and gone, a paternalistic approach to management of the relationships within our communities. There is no room for that in today's society, and I agree that that should be severed.
Ms. Craft: Senator, the recommendation the Canadian Bar Association put forward is that if that language of 3(1) (b) and (c) is to remain in the bill, it still needs be approved by a majority of the votes of the First Nation; so that retains the decision-making power and discretion of the First Nation to exercise its self-governance within the confines of the existing situations where there can be the protracted leadership disputes and past situations where there were setting aside of elections.
One thing that is not in our submissions and I think has come out of the discussions of this committee is related to 3(1)(a). Just to reiterate, it is becoming clear that 3(1)(a) gives a chief and council of a First Nation the power to do something they are not empowered to do under the Indian Act and that most are unable to do with the custom of their First Nation, and so that should be approached with caution as well. I add that the CBA does not have an official position on that, but again that is another caution within section 3 and a potential amendment to the wording of the legislation.
Ms. Cook-Searson: I just wanted to comment on the question that Senator Sibbeston commented on. One of my points was that we should have an independent First Nations electoral commission or a First Nations tribunal to settle any election disputes because it is afforded already for the federal government, the provincial governments. You have mechanisms in place where it is part of the regular part of democracy. If it is good for the federal government and the provincial governments, why is it not good for First Nations? Why not an option for a truly independent electoral commission? I do agree there will be disputes and you do need a mechanism to deal with them. However, rather than go through the minister or the cabinet or through the courts, we could have this independent First Nation electoral commission or First Nations tribunal to settle any election disputes.
Senator Sibbeston: If I could comment on that, this Senate committee studied this whole area of First Nations elections, and we also, at the end of a very exhaustive study, came to the conclusion that there should be an independent tribunal set up to deal with not just election disputes but also the whole business of promoting democracy. The federal government has a minister who promotes democracy. Promoting elections, educating, that whole realm of elections is a big area, so it is something that I think the First Nations in our country can benefit from.
Our Senate committee made a report which says we should have a tribunal, so it will be interesting. The next time we meet, I will advance that as an amendment to this legislation to see whether senators will support this, that and also deleting 3(b) and (c). I will certainly advance that in support of what you say, and we will see what happens, whether senators support it. We made a report saying we should, and now we have the opportunity. It will put the senators to the test. Are you just talking or do you just mean well or are you serious in what you say in reports? That is my contribution to the cause.
Ms. Cook-Searson: I have a supplement to Senator Sibbeston's comments. Also take into account clause 33 where it recommends that we go to the federal court or the superior court of the province. Rather than having that in the act, we have that independent First Nations electoral commission or the First Nations tribunal to settle election disputes rather than having the First Nation, if they have an election dispute, go through the costly process of the courts. Right now that is afforded for other fellow Canadians to have the option of a democratic institution to resolve election disputes, so it should be afforded to First Nations also.
Senator Patterson: With the greatest of respect, I believe that what happens in Canada now is that we have Elections Canada and provincial election authorities that administer elections and deal with complaints, but they do not resolve complaints. They do not settle problems. Only the courts can rule to have a new by-election or invalidate a vote.
I think the committee's concept of a commission or a tribunal would be a body that would try to deal with complaints, but the final resolution of a problem would still end up getting referred to the courts.
Grand Chief Nepinak was talking about regional commissions which would, I guess, exist or work where there was a problem. I have to ask myself: Would we have commissions all across Canada, for regions, and who would pay for this? Would it not be costly and cumbersome? Are we talking about another layer of process or administration where we might rather put our money into education? I am wondering how you see this actually working and who would pay for it. Would it be national or would there be these commissions all over the country? That is what I am wondering.
Mr. Nepinak: Thank you for your question. I believe what was advanced by the Assembly of Manitoba Chiefs was a provincially based commission in Manitoba. With that said, I do believe that it is still a matter of discussion. Within Manitoba we have distinct societies of indigenous peoples cohabiting within the boundaries of what is Manitoba.
We have Anishinabek, of which I am part. The elders who come from my communities hold the knowledge and the old teachings. To convene a tribunal or a commission comprised of our elders, as well as our professional people who have formal legal training, for example, I believe would provide an opportunity where decisions can be made, binding decisions that invigorate our unique identities as the indigenous people from the neighbourhoods that we come from.
The costs are obviously practical consideration. As it is right now, we consider barriers to the courts. When we talk about barriers to the courts, we consider that to be also cost prohibitive for individuals. There is no real easy answer to that. Obviously there are costs associated, but I believe that in order to recreate or to further along self-determining processes, which are the will of our people, we need to consider these constructs as a step in the right direction.
Senator Dyck: I wanted to follow up on the issue of paragraphs 3(1)(b) and (c), and that is to say if we deleted those, would it really have any significant impact on appeals or disputes? We have all these provisions under clauses 30 to 35 on what happens if there are contested elections. Would that not sort of take over? The related question is: Would this not lead to First Nations actually being able to take the minister to court to appeal the decision, saying: How can the minister make this go under? It is just adding more complications to what should be a good bill. It will end up making it worse if we leave them in.
Senator Sibbeston: I have a comment on something Senator Patterson said — the less the impression is given and thought to be true that every dispute invariably ends up in the court. I think if there is provision for a tribunal, obviously its decision would be final. Otherwise, what is the purpose of a tribunal? Its decision on the merit would be final, but it is only with the question of jurisdiction, abuse of power or procedure that the tribunal may be questioned and so taken to court.
Would you agree that a tribunal would definitely be useful in that regard, particularly if you had native people from our country sitting on these tribunals? Would not the First Nations accept their decision much more readily than otherwise? I do not want Senator Patterson to foreclose the possibility of a tribunal. Let us be open to it, because that is what our Senate committee recommended.
Senator Raine: I have found this to be extremely interesting. Some of what I was going to ask has already been asked, but I have one question for Chief Cook-Searson. You mentioned that you have been on your council for three terms and mayor for three terms, and that you have your own custom code, so you know from experience. Was the custom code there before you started serving on your council?
Ms. Cook-Searson: Yes.
Senator Raine: You know the value of a custom code. If you would not mind, I would like you to comment on how your custom code deals with election dispute resolutions?
Ms. Cook-Searson: Right now, with our election code, we have been making changes to it. We have not made any changes, because it has to go back to the people, but we have been working on the different changes and the wording, and adding to it and making sure it is inclusive. It will go back to our people to make sure they are satisfied with it. If they are not, they can put in an appeal. It will then go to all our members for a vote on treaty day. Right now the way it sits, we have an appointed chief who is a current elected chief, who is the appeal officer. Their decision is final — whatever the decision is. They will have a hearing and hear both sides. Either party, if they wish to bring a lawyer, can do so, whatever the dispute is. Then the current chief, whoever it is that we appoint at the beginning of the process to be the electoral officer, and the council can overturn the decision of that chief as the appeal officer. In the case where someone is not happy with what decision, they can take it to the federal court.
Senator Raine: To make changes in your custom code, do you need a double majority?
Ms. Cook-Searson: Yes. You have to take it back to the people. I have our custom code here, so I will read the section. In our custom code, we have to take it back to the people. The custom code says at section 64, on revisions and amendments, that any changes or additions must be delivered to all families in which one or more electors reside three months prior to their adoption. Any elector having reason to challenge such changes shall do so in writing and direct such challenge to the band council, attention chief and council, within the three-month period. If a challenge is received, then the council shall place a proposed change or addition by way of plebiscite at the next treaty day of the band. If no challenge is received, then the changes may be approved by the Band Council Resolution, BCR.
Section (b) of the act says that chief and council may approve by Band Council Resolution regulations establishing the procedures, forms and other administrative rules for administration of this act.
Senator Raine: I have to say that I really do view this bill as a steppingstone towards custom codes such as you have developed, which really fits each individual First Nation. Right now, to go from the Indian Act two-year terms to custom code is almost impossible.
Ms. Cook-Searson: Right now we have three-year terms, and we have fixed election dates. We have an election at the beginning of the fiscal year. Our elections are at the end of March. That way whoever gets elected chief and council starts with a new budget.
Senator Raine: I must say, for someone who has come to our table without much preparation, you have been an amazing witness. Thank you for being here.
Ms. Cook-Searson: Thank you very much.
The Chair: Does the panel have any comments with regard to the comments by Senator Sibbeston and Senator Patterson? Senator Sibbeston was speaking to the values of having a tribunal or a commission, whereas Senator Patterson was pointing out that this is an added level of bureaucracy that could amount to a huge expense that could possibly go towards education or other worthwhile causes amongst our First Nations. Is there any final comment by you, Ms. Craft or Grand Chief Nepinak? I think Chief Cook-Searson has responded.
Ms. Craft: I do have a comment, Mr. Chair. Allowing a tribunal to undertake the election appeals would allow for recognition of experience and expertise in various fields, including Canadian law, First Nations elections, and indigenous forms of governance and dispute resolution. That is not to be found as easily within the superior courts of the provinces and the federal courts at this time. It would allow access to those important resources that would ultimately help to resolve those disputes in a more efficient, timely and cost-effective manner.
Mr. Nepinak: I believe there is a jurisdiction in place amongst our people that reflects the values and systems of governance that are not being heard right now. Much of the traditional knowledge regarding how we operate as governments rests with our elders. I believe that a tribunal designed to empower the voices of our people towards a new recognition of that jurisdiction that exists, including the value systems and the laws that are attached to it, is a critical step forward for us. In and of itself it would provide a valuable source of education for anyone, including our children. I believe it is a valuable endeavour and would be a cornerstone of any law that Manitoba chiefs would support.
The Chair: I would like to thank all three presenters, from the Canadian Bar Association, the Assembly of Manitoba Chiefs and the Lac La Ronge Indian Band. Thank you for your presentations and your responses to senators' questions.
Honourable senators, we will suspend for five minutes and then continue in camera.
(The committee continued in camera.)