Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 33 - Evidence - March 6, 2013
OTTAWA, Wednesday, March 6, 2013
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-27, An Act to enhance the financial accountability and transparency of First Nations, met this day at 6:47 p.m. to give clause-by-clause consideration to the bill; and for the consideration of a draft budget.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Welcome to all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or on the Web. I am Vernon White, from Ontario, and I am chair of the committee. The mandate of the committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. This evening we will continue our examination of Bill C-27, An Act to enhance the financial accountability and transparency of First Nations.
Before proceeding, I would ask members of the committee who are present today to introduce themselves to the observers in the room and to those watching on television or on the Web.
Senator Dyck: Senator Lillian Dyck, from Saskatchewan.
Senator Watt: Senator Watt, Nunavik.
Senator Lovelace Nicholas: Senator Lovelace Nicholas, New Brunswick.
Senator Hubley: Elizabeth Hubley, Prince Edward Island.
Senator Campbell: Larry Campbell, British Columbia.
Senator Demers: Jacques Demers, Quebec.
Senator Seth: Asha Seth, Toronto, Ontario.
Senator Beyak: Lynn Beyak, Dryden, Ontario.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Raine: Nancy Greene Raine, British Columbia.
Senator Ataullahjan: Salma Ataullahjan, Toronto, Ontario.
The Chair: Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-27, An Act to enhance the financial accountability and transparency of First Nations?
Hon. Senators: Agreed.
Senator Watt: May I have a copy of the bill? We do not have one.
The Chair: Certainly.
Senator Dyck: I have a motion. All committee members have a copy of the motion and other materials that I submitted this afternoon. I will read the motion first. It is moved:
That Bill C-27, An Act to enhance the financial accountability and transparency of First Nations, be withdrawn by the sponsor in the Senate and the Minister of Aboriginal Affairs and Northern Development; and
That the Minister of Aboriginal Affairs and Northern Development initiate a process agreed to by the Assembly of First Nations to consult and accommodate First Nations who will be affected by this bill.
The Chair: Do members wish to debate this motion?
Senator Dyck: Yes.
The Chair: Carry on.
Senator Patterson: If I may, Mr. Chair, are we in clause-by-clause consideration?
The Chair: No, we are not in clause by clause. A motion was presented before entering clause by clause.
Senator Patterson: Thank you.
Senator Dyck: I will give some background to this motion before honourable senators today. Yesterday at our committee meeting, Regional Chief Jody Wilson-Raybould of the British Columbia Assembly of First Nations supported withdrawal of Bill C-27. I will quote from the transcript. She stated:
. . . I want to make it clear that the Assembly of First Nations and First Nations' governments had no involvement in the development of this bill. There are obligations on Canada for consultation, and it is unfortunate that we do not have a clear process or agreed-to mechanism to ensure First Nations' involvement. The AFN welcomes calls from honourable senators and previous witnesses for this bill to be withdrawn. In its current form, Bill C-27 will do little to practically support true First Nations accountability or nation rebuilding and will simply further impose federal rules upon our governments. In addition, there is the real potential for legal challenge if Canada continues to impose legislation on First Nations without meaningful consultation.
It will not increase accountability and transparency. This bill has been considered quite substantially. There is an opportunity with the new Minister of Aboriginal Affairs, Minister Valcourt, to reflect on the evidence before the committees and to reflect on Bill C-27 and consider, given all the policy discussions and rationales, whether or not the purpose of Bill C-27 is in fact actually achieved. I think that is an opportunity for the new minister.
I agree that Minister Valcourt should be given the opportunity to review the deliberations that have taken place in this committee and come to his own conclusions about the important issues of consultation and effectiveness of the bill. In addition, last week the Grand Chief of the Confederacy of Treaty 6 Nations said:
We have just returned from Geneva where we made two urgent action appeals before the UN Committee on the Elimination of Racial Discrimination. One appeal was to complain about the current tsunami of legislation that has been launched contrary to our treaty relationship and in fact causing great damage to that relationship. As treaty peoples we have the right to be involved in decisions related to our rights, especially as it relates to decisions on our lands and resources.
We believe this committee should obtain legal advice from Parliament's own legal advisors as to whether Parliament has satisfied its own obligations to ensure that Bill C-27, if passed, will not interfere with the inherent right, guaranteed by treaty, of First Nations self-government. It cannot rely upon the government lawyers to provide this advice.
Recently, when sections of the budget implementation bill, Bill C-45, were in front of this very same committee, our committee unanimously agreed that simply sending a letter to First Nations after the legislation had been tabled did not meet any requirement for consultation. I will read from the observation that we unanimously supported less than four months ago. Our committee observed:
The committee further notes with extreme concern that the Minister of Aboriginal Affairs and Northern Development sent a letter informing First Nation Chiefs and Councils of these amendments only after the bill had been introduced. This, in the opinion of your committee, is insulting to First Nations and is unacceptable. The committee is very concerned that the manner in which these amendments were introduced represents a missed opportunity to meaningfully engage with First Nations people and to achieve consensus on an issue of importance to all First Nations with reserve lands governed by the Indian Act.
Honourable senators, if we are parliamentarians of our word, we cannot let this insulting and unacceptable pattern of non-consultation continue. It is clear from the testimony from witnesses that First Nations were not consulted on Bill C-27. This committee has worked to achieve great things for First Nations people over the years; and there is some precedent on the issue of withdrawal due to lack of consultation. Some honourable senators will remember that when the first iteration of Bill S-11, the safe drinking water for First Nations act, was introduced, this committee passed a motion to withdraw the bill so that consultation with First Nations could be achieved.
That motion was introduced by Senator Dallaire, who used to sit on this committee. The motion passed with support from both sides.
Therefore, I urge all honourable senators to be consistent with our past actions of withdrawing Bill S-11 and our strong words in our Bill C-45 observations regarding lack of consultation. I ask for your support to pass my motion to withdraw Bill C-27 so that Minister Valcourt can study what our witnesses have recommended and undertake any necessary actions deemed appropriate in the spirit of this year's recently renewed Crown-First Nations relationship. By passing this motion, we will provide Minister Valcourt and the department the opportunity to meaningfully engage with First Nations people and to achieve consensus on the issue of importance to all First Nations with reserve lands governed by the Indian Act.
The Chair: Further debate?
Senator Patterson: As sponsor of the bill, I must recommend to the committee that we oppose this amendment. The committee has received evidence that a number of requests have been received by Aboriginal Affairs and Northern Development Canada each year from First Nation individuals looking for basic financial information relating to their community that they want to be able to access directly and have not been able to acquire. First Nation members have gone to the department to make formal requests for that information.
We have also heard testimony from individuals who talked about their frustrations in attempting to get information relating to their community from their chief and band council, and they have not been able to get that information or, indeed, have been discouraged from even asking.
I do believe that this is probably a sensitive matter in that it deals with the salaries of chiefs and band councils — at least it deals with reporting on the salaries of chiefs and band councils, and financial statements — and I would submit that because of this sensitivity and the resistance of some leaders — certainly not the majority but the resistance of some leaders — it probably is a bill on which it would be difficult to fully engage grassroots First Nations members.
Also, I note that Senator Dyck referred to the Geneva initiative and to the last piece of legislation that this committee addressed and that those matters had an impact on lands and resources of First Nations. This bill is not about land and resources; it is about governance. Therefore, I think it is significantly different from the other situations that Senator Dyck quoted.
I would just add one comment about the observation the committee made with reference to Bill C-48 and the duty to consult. I do know that the minister stated that a letter was sent to chiefs and band councils on the proposals to change the process for getting band approval for the leasing of lands on reserves the day that the bill was introduced.
One point that had not been brought to my attention when this matter was discussed by this committee was that, in fact, that piece of legislation was part of the budget. It was part of the budget implementation bill. Therefore, there is an argument to be made that the minister was constrained from revealing or releasing information about the content of that bill due to the well-established parliamentary tradition of budget secrecy. I am not sure that that particular example is a good one to recite tonight with respect to consultation.
The bill itself is aimed at removing the minister from a situation in which he or she plays a role in policing what should be matters of local accountability. The current approach, which this bill would improve, is outdated and prevents clear lines of accountability from developing more organically at the community level.
I respectfully do not agree with Senator Dyck, or even Chief Wilson-Raybould, when they say this bill will not increase accountability and transparency. This is precisely what the bill is aimed at doing. It is about increasing accountability and transparency. It will put into the hands of individual members the tools they require to hold their own governments to account; and in doing so, it would lessen the role of the minister in refereeing local disputes about access to basic financial information. It will give First Nations community members the information necessary to make informed decisions about their leadership and the financial situation of their community and will create a better environment for private sector investment, which could lead to greater economic development opportunities and, we hope, improve the quality of life for First Nations communities.
I also want to note that the intention behind this bill was not unknown to the public. In fact, it responds to a commitment made by the Government of Canada in the Speech from the Throne to ``support transparency for First Nations communities by requiring their chiefs and councillors to publish their salaries and expenses.''
That was a simple statement of the government's intentions. In essence, that is what the bill does, and it is only five pages long. It requires chiefs and councillors to publish their salaries and expenses.
The government gave notice of its intention to the public. It is proceeding with that commitment. The matter has received extensive review by a committee in the House of Commons, and we heard from significant, representative witnesses in this committee as well.
I do want to say in closing, Mr. Chair, that the lack of support for the bill, or the suggestion that the bill should be tabled, made by the Assembly of First Nations, would seem, on the face of it, to fly in the face of their resolution in December 2010, which says the chiefs ``choose to lead by example and demonstrate to other orders of government processes for accountability,'' including itemizing and publicly disclosing salaries, honoraria and expenses associated with the operations of chief and council, and ``ensuring information about community finances and decision making is easily accessible and available via the Internet, where applicable.''
This is the Assembly of First Nations' resolution back in December 2010. That is what the government has done.
Therefore, Mr. Chair, for all these reasons, we should not support the withdrawal of the bill. I do believe that it has widespread grassroots support from First Nations members, not all of whom were willing to stand up and be counted. We saw a courageous few who did come. They talked about intimidation. I know that is an exceptional situation and not the norm, but it does indicate to us that consultation and winning support from grassroots First Nations is a challenge. However, I am confident that this bill is widely supported by grassroots First Nations members — perhaps not by all the leadership, whose salaries and expenses may be exposed, to their regret — but I believe it has strong support from First Nations grassroots members, and I also believe it has strong support from members of the general public.
This bill has been before the public since the Speech from the Throne and since it was introduced in Parliament in the fall, and I believe that MPs have received strong indications that this bill should move forward and that it is a priority for members of the general public.
For all those reasons, I recommend that we not support this motion and that we go ahead and deal with the bill clause by clause.
Senator Campbell: For starters, any changes that come within a First Nation have to come from the First Nation. We cannot find ourselves in the position where we are the conquerors and they are the vanquished. I have been on this committee for eight years and I have been listening to the same garbage, the same stuff, year after year. There is no consultation. It is always after the fact. There is a right that we have to stand up for. We have to stand up as a government in dealing with First Nations. Rights are always a struggle.
Democracy is a messy, messy process, and we know that. This idea of stand up and be counted — I do not know who this majority is that Senator Patterson talks about. Is it the Congress of Aboriginal Peoples? I would suggest the committee go out and look at who backs CAP, who actually is affected by CAP. I would submit to you that the AFN is the legitimate representative of the majority of Aboriginal people. I think there is an opportunity here for the new minister. I had great respect for the old minister, but I have great respect for the experience of the new minister. I believe that if the new minister had the opportunity to take a look at this, and the opportunity to sit down with the AFN, we would be in the process of forging a way of going forward. Have we learned nothing from what went on previously this year? Was everyone just with their heads buried in the sand?
There is some idea that this is a grassroots initiative. I know many, many First Nations in British Columbia — Senator Raine, we can go down to Osoyoos — that operate on democratic principles, on the basis of clarity and on the basis of letting the people know what is going on. Are there some that do not? Yes, there are, but this idea that people are afraid to come forward is something that we as a committee should be dealing with. If you believe strongly enough in something, then you have to step up and you have to make a difference. It is not up to me as a senator to pass onerous legislation, to cover what? I have never seen this majority, and I would like to know where it comes from. They deserve consultation.
This is not a big deal. I do not understand why governments and minister after minister mess up on this issue. It is a matter of saying, ``Hi. We were thinking of doing a bill.'' You send it out and say, ``We would like to have your ideas on it. Here is what we were thinking of. Take a look at it and let us know what you think.'' Is that something that we as senators would not normally expect? Is that something that we find ourselves, that we are always asking for consultation? No. We are brought into the process, and we have gone outside of that.
Let them lead. Let the First Nations lead. In 2010 they came out with this statement that Senator Patterson gave, and I agree with it; I understand it. Have we reached it? No. Are we moving toward it? Yes. Is there a timeline on it? No. Let them lead. Let them pull out in front.
I will tell you what this is like. It is like us. It is like the position that we find ourselves in right now: a little here, a little there. The general public thinks that the Senate as a whole does not do a job and does not know why we are here. Why is that? It is because there is a little problem here, a little problem there. Is there a problem overall? No. Are there things that can be changed? Yes. That is why we should be allowing them to lead this, and that is why I support this motion to withdraw.
I would also support a timeline on the motion that within a month it can come back to this committee without any problem. We withdraw, give it to the minister and let the minister come back. If nothing happens, then I say, fine, we have done our part; we move forward on it.
At some point, we have to think about nation to nation. I know it is not an easy concept to have, but it is what it is. We are dealing with a nation to a nation. Any time you lessen the respect between the two parties, you have trouble. I will guarantee you that, under section 13, the first time the government holds back money because a First Nation is not doing this we will have war. I guarantee you that we will have war. I do not want a war. I think it would be much simpler to just withdraw this, bring it back within a month, or whatever it is, and move forward. If we go on this, the first time the minister pulls this, we are in real trouble. Canadians are in real trouble.
The Chair: Further debate?
Senator Patterson: If there is no one else.
Senator Lovelace Nicholas: I have a comment. I support the motion as well. I blame the government, Aboriginal Affairs, for not dealing with this problem years and years and years ago. People have been complaining to Aboriginal Affairs and to the government. Like I said, it has been going on for so many years, what is another month to make sure that this bill is right?
The Chair: Further debate?
Senator Patterson: With respect to the comments made by my colleagues, I think we have to be clear about this bill. I do not think it is a radical departure from the status quo. Some members of this committee have even suggested that it does not really do anything that is not already required. I do not agree with that, but we should be clear about this: First Nations bands are now required to disclose all the information that will be required to be disclosed publicly in this bill to the Department of Aboriginal Affairs and Northern Development. By and large some are late, but I understand that they all do provide the information to the department. It is a condition of their funding agreement.
Senator Campbell says the first time funds are withheld there will be conflict. Well, the department already has the power to withhold the funds under the present funding agreements and very rarely exercises that power because there is a whole host of interventions that are available to try to get the First Nation's financial affairs in order before that drastic step is taken.
We are not talking about some radical imposition of new reporting or new disclosure requirements. They are already there. In fact, the paperwork burden will not increase at all. They will just be required to publish information they are already preparing. By the way, it will not cost anything to do this because it is already being done and it is already being reviewed by officials in the department.
I hear the suggestion that we should treat First Nations with respect as nation to nation. These are governments we are dealing with, the same as municipal, territorial, provincial and federal governments. Mr. Chair, the bill does exactly that: It treats them as governments by requiring the same level of accountability that municipal, territorial, provincial and federal governments have. They all have to report the salaries of elected persons. They all have to report expenses. They all have to table financial information, in fact, more detailed financial information than this bill is requiring under the generally accepted accounting principles. It is not an imposition of something that is a terribly big change such that it would require a lot of consultation. It is already happening. The difference is that the minister will now have the authority that he does not have presently to table the information publicly, and there will be a vehicle to do so by the Internet, which is the modern way of disclosing information.
I do not believe that we will gain anything by withholding a bill that has been well examined. I wish notice was given. I will note that if the bill passes before the end of this fiscal year, there will be a full year of transition period and notice to all concerned before there is any reporting requirement whatsoever. There will be a full opportunity for First Nations to adjust to the bill, inquire about the bill and prepare for dealing with the bill before it even comes into effect. We have a full year, into June of the following fiscal year, which would be 2014, before the bill even comes into force, and I think that gives everyone lots of notice to prepare for it.
It is not that much different from what is in place now. A lot of work has been put into it. I think we should go ahead, and I do not think it will cause the protests that are forecast. Jody Wilson-Raybould talked about other initiatives to advance self-government and nation-to-nation relations. I am all in favour of that. I am in favour of our giving serious consideration to Bill S-212, which is a holistic approach to self-government and which is on the Order Paper in the Senate. I am all in favour of the high-level discussions that are going on in Canada between First Nations leaders and the highest levels of our government to discuss the nation-to-nation relationship, renovating and modernizing treaties and dealing with resource revenue, issues that are of major concern. Bill C-27 will not deal with those issues, and withholding Bill C-27 will not deal with those issues. Those are for another forum.
We cannot resurrect and expand on self-government through this bill or through the clause-by-clause consideration of this bill.
For all of those reasons and with respect to the comments just made, I think we should go ahead, and I think that passing this bill will be part of a new, respectful relationship between the Government of Canada and First Nations' governments because they are being treated like any other government in the country with this bill.
Senator Watt: I wonder whether we can stay on the topic, please, instead of jumping into the other areas.
The Chair: I have allowed other people to stretch where we are going. If you do not mind, I would like to let Senator Patterson finish.
Senator Patterson: I am done.
The Chair: No influence, I hope. Senator Dyck?
Senator Dyck: Yes, thank you, Mr. Chair, and thank you for those comments.
I would like to focus on the motion. The essence of the motion is the main issue, which was lack of consultation, and, in Senator Patterson's comments, he talked about imposing the bill. Imposing a bill does not involve consultation, and so the essence is that there has not been consultation. He also talked about how this bill treats First Nations like governments, like provinces, like territories. That is not a nation-to-nation relationship. Those are levels of government. If it was a nation-to-nation relationship, which it should be, we would not talk about provinces and territories. It is not the kind of relationship that First Nations are asking for. They are asking for nation to nation, not level of government.
Senator Patterson also said that this bill is short and that it would not need a lot of consultation, so I do not understand why we cannot withdraw it for another month or whatever time it takes because he himself said it would not take a lot of consultation. I do not understand why we cannot do it. That is all I have to say.
Senator Hubley: From what I have heard from the discussion, I would like to support the withdrawal of this bill at this particular time. Probably the one thing that stood out most clearly to me was that this is, again, a top-down and not a bottom-up bill. We will not be respecting the First Nations and their ability to govern themselves if, in fact, we bring in bills that say that certain disclosures will be required.
However, we do have a new minister now. He is not up to speed yet. I would think it would be critical for this committee to perhaps wait until he has been given time to reflect on this bill and see if, in fact, this is within his vision of what his relationship should be with the First Nations.
I think my colleague did say that it is not much different than what is in place, which suggests that the urgency of this bill is not paramount, so, again, I would say that consultation has to be the one consideration. If I am not satisfied that consultation has taken place and that all stakeholders feel comfortable with it, then that is the reason that I would support the withdrawal of this bill at this time. I would suggest a timeline be presented at the same time.
The Chair: Thank you, senator. Senator Raine?
Senator Raine: Thank you. I appreciate the comments from my colleagues tonight. I listened very carefully to the various witnesses we had. It is obvious to me that there are many First Nations who are running their affairs very professionally. There are organizations now to assist them with accountability. I was very taken by the comments about the lack of consultation, but, at the same time, I really did respond to the pleas of the individuals who came forward and discussed how it was in their communities where there was no accountability and where they were not able to get the information they needed, how desperate they were for this information and how important they felt this is.
While Senator Hubley is saying that it is a top-down imposition of legislation, I see this legislation as a freeing up of the bottom up and the people in all of those First Nation communities who have not been able to get the information that they so desperately want. That is why I do not support the withdrawal of this bill and do support the passage of it.
Senator Dyck: Could I just make a quick comment?
The Chair: Please, Senator Dyck.
Senator Dyck: I think Senator Lovelace Nicholas also said that it could be deemed the fault of the department because the department, as you said, Senator Patterson, already has the information. Yet, the department is not willing to give it to the band member. It is really a two-edged sword, you could say. We were also told that the band member felt intimidated because his or her identity had to be released, but it is the department that holds the official Indian Register. If you look up the Indian registry, you will find my name there. They do not have to call my band to find out if I really am a member of Gordon First Nation. They already know. If I am not on that list, I am not a member or not an Indian.
Senator Raine: I would add a little comment to that. I am hoping that this legislation will also force a little bit more transparency on the department. That is something that will come of it as well. Thank you.
Senator Dyck: Yes.
The Chair: Senator Watt?
Senator Watt: In what we have learned over the weeks, there was definitely a mixture of feelings coming from the witnesses, and I think we all admit that. In terms of counting what side was for and what side was against, it is pretty hard to nail it down. I do realize that.
Senator Patterson indicated yesterday, during deliberation, the fact that the minister could not release information because of the Privacy Act.
Senator Dyck: To the public.
Senator Watt: To the public. So what has changed now? What is the change now, in regard to the Privacy Act, that would allow us to feel comfortable moving forward and approving this proposed bill?
I am not sure that the general public of Canada is fully aware that the Privacy Act also applies to the Aboriginal people. They are people in the same sense as everybody else. The Privacy Act has to apply to everybody.
Is this interrupting or countering what already exists? Will it have to be dealt with somewhere down the line, in court? That is another issue and one of the reasons we have to withdraw this proposed bill. There are so many unknown answers that have not been given. The other day I also raised the question of who will pay for this. How much will it cost? Is there appropriation in the bill itself that states the government will provide the X number of dollars that goes with it? How about the individuals who came before us saying, ``We are not getting information from our chiefs,'' and so on? How will that be done better? How will they get the information? Will they need to go to court and spend a lot of money to get the information? If the minister already has the authority to provide the information to the individuals, why do they not? Why do we need this bill?
I am under the same impression as my colleagues here on my left and right. They are saying withdraw, and I really believe this is what we have to do. It is the only good thing to do because I do not think we know what we are doing here. Why do we have to force it down the throats of the people? As senators, we are supposed to provide a second sober thought.
The Chair: I think we have a general understanding of where most people are on this.
Senator Watt: Sometimes we have to repeat ourselves in order to be understood.
The Chair: I get the feeling you do feel that way, senator.
Senator Patterson: Maybe I could respond to Senator Watt's concerns.
Yes, the minister does not have the authority to release information now because there is no statutory authority for the minister to release information. This bill gives the minister the statutory authority to release information that is now held within the department, which means there is no violation of anyone's right to privacy.
As far as the costs are concerned, there are no new costs. The chiefs and band councils are already required and funded to provide financial statements. They are going to continue to provide those financial statements. There is no extra burden required. They will continue to do what they already have to do if they want to get money from the Government of Canada.
There is no cost associated with publishing the information. If the band does not have a website, it will go up on the department website, which is already being maintained and run. In fact, for every band that complies, the information will be posted on the department's website. There are no cost implications to this bill.
I would like to make one other point, and that is in response to Senator Hubley's suggesting that we should hold the bill because there is a new minister. All I can say is, and I certainly do not want to speak on behalf of the minister, this is an initiative of the Government of Canada. This was put into the Speech from the Throne. This was passed by the cabinet. This was passed by the House of Commons. The fact that there is a change of minister or deputy minister does not change that. This is a government initiative, and, may I say, it is a high-priority initiative of the government. Whether it is right or wrong, this government, whether you agree or disagree —
Senator Campbell: It is right or wrong, or agree or disagree. Sorry.
Senator Patterson: Whether it is right or wrong in your view, this is about transparency and accountability, which our government stands for. To me, the fact that there is a change of minister is irrelevant to this discussion.
The Chair: There is no new information coming out. I understand Senator Campbell might have a new piece of information.
Senator Campbell: I do not have any new information, but I think that the key points here, right or wrong — that is good — but if it is already there, why are we doing this?
We do not normally get into politics here, but I would submit we are doing this to keep the nice little far right wingers out there happy within government. This passed the House of Commons on a split. Conservatives on one side, the rest of the government on the other side. As for the idea that this does not cost anything, some First Nations are there. They are doing that; we know that. Some of them are close, and some of them will never get there without our help. When you do not have drinking water or toilets, the last thing I worry about is audited statements. That is the level we are on. It is not one or the other; it is on this scale.
I am with you: I want accountability; I want this to happen, but I want to be able to do it where we end up with everybody coming to a consensus, or at least the majority. I do not think we have the majority yet.
I apologize sincerely to Senator Patterson for interrupting him. I am sorry. I do not know why it would hurt to step back from the edge here and to see what the new minister has to say.
The Chair: On this motion, we have sufficiently debated this.
Senator Dyck: As the sponsor, could I say a short amount?
The Chair: Yes.
Senator Dyck: The key issue in the motion is regarding the duty to consult and accommodate, and we have talked about many other related issues, but the fact remains there was not consultation and accommodation. You mentioned it — right or wrong. In my opinion, the right thing is to honour the duty of the Crown to consult and accommodate First Nations, and to withdraw the bill for a period of time in order for something to happen to accommodate that. That is what the motion is about.
The Chair: Just so there is no misunderstanding for those watching at home, you are the critic of the bill, not the sponsor of the bill.
Senator Dyck: Sorry, yes. It is late in the evening.
The Chair: I want to thank everyone for the comments. I truly appreciate it.
Senator Dyck has moved that the committee not proceed further with the bill. It was moved by Senator Dyck That Bill C-27, An Act to enhance the financial accountability and transparency of First Nations, be withdrawn by the sponsor in the Senate and the Minister of Aboriginal Affairs and Northern Development, and That the Minister of Aboriginal Affairs and Northern Development initiate a process agreed to by the Assembly of First Nations to consult and accommodate First Nations who will be affected by this bill.
Is it your pleasure, honourable senators, to adopt the motion?
All in favour, please say ``agreed.''
Some Hon. Senators: Agreed.
The Chair: All opposed? Please say ``not agreed.''
Some Hon. Senators: Not agreed.
The Chair: I would suggest it is not agreed.
Senator Dyck: Could we have a recorded vote, please?
The Chair: Absolutely.
Honourable senators, we will now proceed to a roll call. The clerk of the committee will call members' names, beginning with the chair, and then going in alphabetical order. Senators should orally indicate whether they vote for, against or abstain. The clerk will announce the results of vote. It is my duty as chair to declare whether the motion is carried or defeated.
I will start by saying I do not agree with the motion.
Marcy Zlotnick, Clerk of the Committee: The Honourable Senator White, ``no.''
The Honourable Senator Ataullahjan.
Senator Ataullahjan: No.
Ms. Zlotnick: The Honourable Senator Beyak.
Senator Beyak: No.
Ms. Zlotnick: The Honourable Senator Campbell.
Senator Campbell: Yes.
Ms. Zlotnick: The Honourable Senator Demers.
Senator Demers: No.
Ms. Zlotnick: The Honourable Senator Dyck.
Senator Dyck: Yes.
Ms. Zlotnick: The Honourable Senator Hubley.
Senator Hubley: Agreed.
Ms. Zlotnick: The Honourable Senator Lovelace Nicholas.
Senator Lovelace Nicholas: Yes.
Ms. Zlotnick: The Honourable Senator Patterson.
Senator Patterson: No.
Ms. Zlotnick: The Honourable Senator Raine
Senator Raine: No.
Ms. Zlotnick: The Honourable Senator Seth.
Senator Seth: No.
Ms. Zlotnick: The Honourable Senator Watt.
Senator Watt: Yes.
Ms. Zlotnick: Five yeas and seven nays.
The Chair: The motion has been defeated. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-27, An Act to enhance the financial accountability and transparency of First Nations?
Some Hon. Senators: Agreed.
The Chair: We will walk through this.
Shall the title stand postponed?
Some Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Some Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Some Hon. Senators: Agreed.
The Chair: Is it agreed?
Some Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Some Hon. Senators: Agreed.
Senator Dyck: I want to make a comment. Senator Patterson has already said that with respect the disclosure of information listed there, it is already possible by policy and regulations that that information is collected by the department. In fact, it is a condition for receipt of the contribution agreements that First Nations have to sign off. Therefore, the requesting of information is already given to the department without the bill. Some pieces of information, such as band-owned entities and own-source revenues, can be released to band members. Therefore, that is why we are debating the need for this bill because band members can get access to that information. If the First Nation agrees by a band council resolution, then all pieces of information can be released. Policies are already in place to do what this bill does. That is it.
The Chair: We will move on to clause 8.
The Chair: Did we do clause 7? Shall clause 7 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Senator Dyck: I have one amendment to clause 8.
Senator Dyck: I move:
That Bill C-27 be amended in clause 8(2), on page 4, by replacing ``public'' on line 10 to ``member.''
The Chair: Are there any amendments that any other member intends to move on this clause? If so, we should deal with them before taking up this amendment. If there are no other proposed amendments to this clause, we will move to this.
Senator Dyck: The intention of this amendment is to restrict the online posting of financial information to band members rather than to the general public. Band members will be able to access all the information they need on the Web. Public disclosure is already possible. This particular paragraph says that it is not just to be posted in a physical place but posted on the Internet. This is the best option because it does not allow just anyone to look at the information. Someone in Saskatoon does not have to see what is happening at Membertou First Nation, for example. It should be available only to the members of the particular band.
We also heard from witness that public disclosure of their financial information might impact negatively on their economic opportunities, which is contrary to the intention of the bill, so that should be taken into consideration. That was the intention of the amendments.
The Chair: Further debate?
Senator Patterson: In limiting the access to this information to members of the First Nation, the amendment goes directly to frustrate the purpose the bill. The purpose of the bill is to provide for the public disclosure of the audited consolidated financial statements and the schedule of remuneration and expenses. This bill would bring the public disclosure requirements of First Nations governments in line with other governments in Canada. These are First Nation governments, the only governments in Canada that are not required to reveal their financial statements and their remuneration and expenses.
I would like to see this clause as recognition of First Nations governments as equivalent with other governments. The other problem with the amendment is that it could result in the documents being made available only to a select group in the event of differing views of who is a First Nation member, which would also frustrate the purpose of the bill.
With all respect to the amendment, this would frustrate the bill's purpose, which is public disclosure.
Senator Dyck: Do I get to say anything else?
The Chair: If you wish.
Senator Dyck: It comes down to the opinion of some of the witnesses that the general public does not have a right to see the information — that it is confidential information. The way it works now for some of that information to be released is that the minister has to get a band council resolution from the First Nation to release it. The Sawridge decision says that the minister can release all information to band members. If the bill is intending, as you said, to do what is already done but in a bill form, then this amendment would make it consistent with what is being done presently.
The Chair: In the amendment to the motion that clause 8 carry, the Honourable Senator Dyck moves:
That Bill C-27 be amended in clause 8(2), on page 4, by replacing ``public'' on line 10 to ``member.''
Is it your pleasure, honourable senators, to adopt the motion? Agreed?
Some Hon. Senators: Agreed.
The Chair: Those who do not agree say ``not agreed.''
Some Hon. Senators: Not agreed.
Senator Dyck: Could we do a show of hands?
The Chair: Those who are agreed, please.
Those who are not agreed, please; and I will state now that I do not agree.
Ms. Zlotnick: Five to seven.
The Chair: The amendment is defeated.
Resuming debate on clause 8, if there are other amendments honourable senators would like to propose, this is the appropriate time to bring them forward. Seeing none, shall clause 8 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Senator Dyck: I have an amendment. I move:
That Bill C-27 be amended in clause 9, on page 4, by deleting lines 16 to 22.
The Chair: Are there other members who wish to propose amendments? Seeing none, we will deal with this. Is there debate in relation to this clause?
Senator Dyck: It is similar, the explanation being that it removes the ability of the department to post the information and, therefore, the financial information would not be available to the public. The same purpose.
Senator Patterson: Mr. Chair, I would not recommend this amendment. We did hear from smaller bands, and perhaps less rich bands, that they might not have a website; they might not have the ability to pay for a website. Therefore, the purpose of this clause is to lessen the burden on First Nations who do not yet have their own website by posting on the department's website. It will facilitate easy access to the documents and is in keeping with the purpose of the bill, providing for public disclosure. If the amendment is passed, it would undermine efforts to make this information easier to access by all users. It also gives the First Nations members alternatives. If they do not want to go to the band office for one reason or another, then they can get the information from the departmental website.
Senator Dyck: Could I add one more piece of information?
The Chair: Please, senator.
Senator Dyck: I believe the argument for information to be released to the public is based on the misconception that it is taxpayer dollars that are funding First Nations. I would like to read from the transcript what was said to the committee by Ms. Sharon Venne:
One little comment I wanted to make was about you saying 'Canadian taxpayer dollars.'
That may have been to you, Senator Patterson. I do not recall completely.
Government monies come from the lands and resources of our nations. We made peace and friendship treaties with the Crown that allowed settlers to access our territories and to use some of our resources. We were supposed to receive benefits at the same time. Actually, it is not taxpayer dollars; it is our money that you are returning to us from our resources.
To summarize that, what one of my friends said to me is that it is like rent. It is money that is legally owed to First Nations. It is not taxpayer dollars.
The Chair: Thank you.
In amendment to the motion that clause 9 carry, the Honourable Senator Dyck moves:
That Bill C-27 be amended in clause 9, on page 4, by deleting lines 16 to 22.
Is it your pleasure, honourable senators, that the motion in amendment carry? Those who agree?
Some Hon. Senators: Agreed.
The Chair: Those who do not agree?
Some Hon. Senators: Not agreed.
The Chair: Would you like a show of hands?
Senator Campbell: It is pretty much five to seven.
The Chair: Fine. The motion is defeated.
Resuming debate on clause 9, if there are other amendments that senators would like to propose to this clause, this is the appropriate time to bring them forward. Seeing none, shall clause 9 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Senator Dyck: I move that Bill C-27 be amended in clause 11, on page 4, by deleting ``any person, including'' on line 30.
The Chair: Do you have an explanation as well?
Senator Dyck: I thought I had to wait for a minute.
The Chair: You do. Sorry.
Are there any amendments that a member had planned to move earlier in this clause? If so, we should deal with them before taking up this amendment. Are there any other amendments?
Senator Dyck: Again, the purpose of the amendment is that to delete ``any person'' makes it such that any person from the general public does not have the right to access the financial information, so it is restricting it to access by the band members or by the minister — sorry, court order.
The Chair: Thank you, senator. Debate?
Senator Patterson: Just maybe to explain the purpose of the provision, Mr. Chair, as it is currently worded.
This gives any person the ability to seek a court order to publish information. At the moment, a First Nation member who is unable to access basic information must appeal to the minister. This bill would give a person another choice, and that would be that if they did not want to appeal to the minister, they could apply to a court to get an order to disclose that information.
Its objective is to move away from requiring a First Nations member to go to the minister. It is interesting that the provision also allows the minister to take the court action. Therefore, it is still an option for the department. We heard some concern that maybe people will not be able to afford to take court action, although it might be possible for them to seek costs. If they are concerned about the cost of court action, then the minister could, on their behalf, apply to the court as well.
Taking away the ability of First Nations members to go to court would frustrate the basic purpose of the bill, which is to ease the public disclosure of financial statements, remuneration and expenses. It frustrates the purpose of bill, and I do not recommend we support it.
Senator Lovelace Nicholas: I just want to let the committee know — I have said this so many times — that the minister does not always answer to the people and they get bounced back. One of the witnesses mentioned this. If the minister does not want to contact this person, this person has to go back to the band, and then the band sends him to the minister. It is like a bouncing ball. That is my comment.
Senator Dyck: With all due respect, senator, clause 10 allows the band member to apply for a court order. My amendment to clause 11 would restrict the application to the minister, and not the minister and any other person, so the band member can still apply for a court order. This amendment says that not anyone, not any person just off the street, can apply for a court order.
For example, the Canadian Taxpayers Federation, which I do not think has a right to all this information, should not be allowed to go in and get a court order. This amendment would restrict them from doing that; it is only the member or the minister.
Senator Patterson: I take the member's point and stand corrected on that. I guess the fundamental question, though, is this whether there is there a public interest in the disclosure of these amounts. I heard the honourable senator's argument that this is not taxpayers' money; it belongs to the First Nations. However, it is also true, I think Senator Dyck would agree, that the monies that are transferred to First Nations do come from the treasury of Canada. Whether they are there because of treaties or because of the seizure of First Nations lands, as is suggested, they are in the treasury of Canada; and just like other governments, it could be argued that the public has an interest in seeing where those monies go.
I respect that the amendment would eliminate that right for individual citizens, but the bill stands for disclosure to First Nations members and the general public.
Senator Dyck: I still believe the relationship they are talking about is from one level of government to another level. This is nation to nation. For example, if for some reason Canada had to pay $1 million to France, we would have no right to go and ask France to post all their financials to see what happened to the money that we owed them. That is the point. It is restricting it to the band members and to the minister rather than to the public because it is a nation-to- nation relationship.
The Chair: Thank you, senator. In amendment to the motion that clause 11 carry, the Honourable Senator Dyck moves:
That Bill C-27 be amended in clause 11, on page 4, by deleting ``any person, including'' on line 30.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chair: Those not in agreement?
Some Hon. Senators: Not agreed.
The Chair: The motion is defeated seven to five.
Shall clause 11 carry?
An Hon. Senator: No.
The Chair: On division.
Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Senator Dyck: I have amendments for clause 13 as well. I move:
That Bill C-27 be amended in clause 13(b), on page 5, replacing lines 7-15 with:
(b) withhold discretionary moneys payable within an existing grant or contribution to the First Nation, including but not limited to the Band Support Funding, under an agreement that is in force on the day on which the breach occurs and that is entered into by the First Nation and Her Majesty in right of Canada as represented by the Minister, solely or in combination with other ministers of the Crown, until the First Nation has complied with its duty.
The Chair: Further debate?
Senator Dyck: By way of explanation, this amendment will restrict the withholding of funds from a First Nation to only the funds that are considered discretionary funds. We heard from the department and from the minister that under no circumstances would they ever terminate funding or withhold essential service funding to a First Nation, that they have not done that and would not do it. Therefore, I do not see why we should not put in the bill that it is only discretionary funds that they are allowed to tinker with and withhold. Withholding big chunks of funding like that seems like an unnecessary financial burden to the First Nation. Therefore, I think that it should be limited.
Senator Patterson: We did hear from the department that their practice would be to withhold funds as a very last resort and that if they did withhold funds they would, as a matter of policy, not withhold funds that are related to essential functions in the band, such as housing, education and income support.
The clause in the bill reflects the current practice under the existing funding agreements between Aboriginal Affairs and First Nations governments. The proposed amendment introduces a new, undefined term, ``discretionary monies.'' While I understand the intent behind the amendment, it is a vague term that would be extremely difficult to define, would lead to uncertainty and undoubtedly uneven applications of the measures intended because there is no standard definition of ``discretionary monies'' that could offer any guidance. We cannot support an amendment for a concept that is not defined and is difficult to define.
Senator Dyck: If you think the idea is correct, then perhaps we could get the department to give us the correct terminology or phraseology, because you stated that this was essentially mirroring what the current administrative practice is anyway. I do not understand then why the department could not provide us with the correct terminology.
I certainly shared this motion with you this afternoon so that you could have a look at it. If you were aware of the problem, then in the spirit of collaboration it would have been a good idea if you had objections to see if you could rectify them if the concept is acceptable, and it does seem to be that the administrative procedure is mirrored by this motion.
Senator Patterson: I would like to thank the honourable senator for providing notice of the amendment. I did have a chance to get briefed shortly before the meeting tonight.
I guess what I am saying is that the object of the amendment, which is to protect the essential services, is already covered in the policies of the department. We did get a briefing from the department, which was offered to all committee members, where they explained that there are categories of funds called essential and non-essential. In the rare occasion where monies must be withheld, the department's policy is to withhold them so as to still protect essential services.
My main point is that this amendment is not necessary. The matter is covered in policy already and does not need an amendment to the legislation to come into effect.
The Chair: Brief response, Senator Dyck?
Senator Dyck: You said it is already covered in policy. The rest of the bill is already covered in policy, yet we have the bill before us as a legislative measure. Therefore, I submit that if the policy is such that they will not restrict funding, it should also be part of the bill. We cannot use that argument for the rest of the bill and not for this portion of the bill.
The Chair: I think that was part of your motion in the beginning, Senator Dyck, if I may.
Senator Dyck: Was it?
The Chair: I think so. That is what I took from it. No further debate.
In amendment to the motion that clause 13 carry, the Honourable Senator Dyck moves:
That Bill C-27 be amended in clause 13(b), on page 5, replacing lines 7-15, with:
(b) withhold discretionary moneys payable within an existing grant or contribution to the First Nation, including but not limited to the Band Support Funding, under an agreement that is in force on the day on which the breach occurs and that is entered into by the First Nation and Her Majesty in right of Canada as represented by the Minister, solely or in a combination with other ministers of the Crown, until the First Nation has complied with its duty.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chair: Those contrary signify by saying ``not agreed.''
Some Hon. Senators: Not agreed.
The Chair: Again, seven to five, I would suggest.
Senator Dyck: One final amendment to clause 13. I move:
That Bill C-27 be amended in clause 13(c), on page 5, by deleting lines 16 and 17.
The Chair: Are there any amendments senators plan to move earlier in the clause? If so, we should deal with them before taking up this amendment. Seeing none, explanation?
Senator Dyck: It is along the same lines. It is eliminating the power of the minister to terminate funding for non- compliant First Nations. During testimony by the minister and the department it was stated that they would never do this. Therefore I submit, since it is their administrative policy and we are legislating other parts of their policy, we should delete this clause because it is a threat, and a threat that is being held over First Nations as a way of making them comply. Yet you are saying you never use it, so it is an empty threat. Just get rid of it.
The Chair: Thank you, Senator Dyck. Debate?
Senator Dyck: It is getting late and my language is getting less —
The Chair: That is okay. It is getting short, concise and clear. Seeing no further debate, in amendment to the motion that clause 13 carry, the Honourable Senator Dyck moves:
That Bill C-27 be amended in clause 13(c), on page 5, by deleting lines 16 and 17.
Is it your pleasure, honourable senators, that the motion in amendment carry? Signify by saying ``agreed.''
Some Hon. Senators: Agreed.
The Chair: Contravening? Say ``not agreed.''
Some Hon. Senators: Not agreed.
The Chair: That was louder, and it is still seven to five. Defeated.
Shall clause 13 carry?
Senator Dyck: No.
Some Hon. Senators: Agreed.
The Chair: Agreed, on division. Shall clause 1, which contains the short title, carry?
Senator Dyck: No.
Some Hon. Senators: Agreed.
The Chair: On division. Shall the title carry?
Some Hon. Senators: On division.
The Chair: On division. Shall the bill, as amended, carry?
Some Hon. Senators: On division.
The Chair: On division. Does the committee wish to consider appending observations to the report?
Senator Watt: Do we have one prepared already?
The Chair: We would go in camera to discuss if there is consideration for observations.
Senator Dyck: I still think the issue of consultation is a big one.
The Chair: Is it agreed that observations be appended?
Senator Dyck: Yes.
Senator Watt: Senator Patterson, as to the point that I raised the other day concerning whether this bill would have an impact, I think you made an attempt to satisfy me that it would not have an impact on the full land claim region. Have you done any more checking on that to see whether that is the case?
Senator Patterson: Yes, I can say with confidence that the bill does not apply to comprehensive land claims agreements now in place or comprehensive self-government agreements now in place, which have been given effect by an act of Parliament.
Senator Watt: That means that even the self-government notion is still far from being completed in terms of where the original people want to go with the question of self-government. Do you feel that that will not be hindered in the future?
Senator Patterson: I do not believe that this bill will prevent further progress in dealing with self-government. No, I do not believe it will imperil that at all. It will not apply to new self-government arrangements in the future, and I hope that there are more and more of them.
The Chair: Seeing no further debate, I will ask the question again: Does the committee wish to consider appending observations to the report? Those who agree that we should consider observations please signify by saying ``agreed.'' Those who do not, signify by saying ``not agreed.''
Some Hon. Senators: Not agreed.
The Chair: Is it agreed that I report this bill to the Senate?
Some Hon. Senators: Agreed.
Senator Watt: On division.
Senator Dyck: On division.
The Chair: On division. Thank you.
(The committee continued in camera.)