Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 7 - Evidence - June 17, 2014
OTTAWA, Tuesday, June 17, 2014
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-25, An Act respecting the Qalipu Mi'kmaq First Nation Band Order, met this day at 9:33 a.m. to give clause-by-clause consideration to the bill; and to study challenges relating to First Nations infrastructure on reserves.
Senator Dennis Glen Patterson (Chair) in the chair.
[English]
The Chair: Good morning, everyone. I would like to welcome all senators as well as members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples, either here in the room or via CPAC or the Web.
I'm Dennis Patterson from Nunavut. Our mandate is to examine legislation and matters generally relating to the Aboriginal peoples of Canada. This morning, we will continue our study of Bill C-25, An Act respecting the Qalipu Mi'kmaq First Nation Band Order. That will be followed by witnesses on our study on housing and infrastructure on reserves.
Before proceeding to testimony, I would like to go around the table and ask the members of the committee to introduce themselves.
Senator Moore: Good morning. Wilfred Moore from Nova Scotia.
Senator Dyck: Good morning. Lillian Dyck, senator from Saskatchewan.
Senator Lovelace Nicholas: Good morning. Senator Lovelace from New Brunswick.
Senator Baker: George Baker from Newfoundland and Labrador. I'm replacing Senator Sibbeston today.
The Chair: Welcome.
Senator Ataullahjan: Good morning. Senator Ataullahjan from Ontario.
Senator Wallace: John Wallace, New Brunswick.
Senator Beyak: Senator Lynn Beyak from Ontario.
Senator Ngo: Senator Ngo from Ontario.
Senator Tannas: Scott Tannas, Alberta.
Senator Raine: I'm Nancy Greene Raine from B.C.
The Chair: Colleagues, we have heard at two recent meetings witnesses who are in favour of and who are critical of Bill C-25, and we have had an opportunity to question them thoroughly. The next step, if members are ready, is to begin the clause-by-clause process. I want to make members of the committee aware that we have officials from Aboriginal Affairs and Northern Development Canada and the Department of Justice Canada available to answer questions during clause by clause.
I may take the liberty of inviting the witnesses to come forward. I'd like to ask some questions before we start that may assist the committee in dealing with issues that were raised at the last meeting. So, if it's agreeable, I would like to invite forward Mr. Andrew Saranchuk, Assistant Deputy Minister, Resolution and Individual Affairs Sector from Aboriginal Affairs and Northern Development Canada. He was a witness previously. From the Department of Justice Canada, we have Martin Reiher, Acting General Counsel and Acting Director, Operations and Programs, Legal Services.
If it's agreeable, honourable colleagues, I would like to ask some questions that I think arose from the last meeting.
There is reference in the preamble to enrolment criteria for all applicants for membership in the Qalipu Mi'kmaq First Nation. Mr. Saranchuk, does this bill change the eligibility criteria for membership in the Qalipu Mi'kmaq First Nation?
Andrew Saranchuk, Assistant Deputy Minister, Resolution and Individual Affairs Sector, Aboriginal Affairs and Northern Development Canada: No. The eligibility criteria for membership in the Qalipu Mi'kmaq First Nation are not changed in any way by Bill C-25. They are set out in the 2008 agreement, the original agreement, and are not modified by the bill.
If I may, it is important not to conflate the bill with either the 2008 agreement or the 2013 supplemental agreement. As part of this, it's important to understand that both of these agreements have been validly executed and are legally in force, and the bill doesn't approve either agreement or give them force of law.
Regarding the supplemental agreement in particular, it has already been legally entered into between Canada and the Federation of Newfoundland Indians. It is currently in the process of being implemented and has been since last summer, using the enrolment committee that was previously described — representatives from Canada, representatives from the Federation of Newfoundland Indians, and one independent chair.
It is true that this supplemental agreement clarified and tightened the documentary requirements relating to the criteria, and some applicants don't agree, or have difficulty with that. However, the Federation of Newfoundland Indians had the authority to enter into that agreement in the same way it did with the 2008 agreement. Both parties deemed it was a necessary agreement in order to clarify and give effect to their original intentions.
To come back to your question, this bill cannot and does not change or modify either agreement, and in particular, it does not change the eligibility criteria set out in the 2008 agreement.
The Chair: I guess we could call those "enrolment criteria" or "eligibility criteria."
Mr. Saranchuk: Correct.
The Chair: To refresh members of the committee, could you go over the enrolment and eligibility criteria used to decide membership in the Qalipu Mi'kmaq First Nation? What are those criteria, please?
Martin Reiher, Acting General Counsel and Acting Director, Operations and Programs, Legal Services, Department of Justice Canada: Essentially, applicants must demonstrate that they are of Canadian Indian ancestry and that they are descendants of members a pre-Confederation Newfoundland Mi'kmaq community; and they must demonstrate a current and substantial connection, which is divided into, on the one hand, self-identification as a member of the Mi'kmaq group of Indians of Newfoundland and, on the other hand, acceptance by the group as a member.
These two latter elements are really the substantial connection with the Mi'kmaq Group of Indians, which must be present on the date of the recognition order and not be of recent vintage. They must have been present for some time before the date of the recognition order and be current on the date of the recognition order.
The Chair: I understand there are four criteria: ancestry, descendants of pre-Confederation Mi'kmaq, substantial connection, which has two parts: self-identification and acceptance by the band. That would be four in all.
Mr. Reiher: Correct, Mr. Chair.
The Chair: The preamble of the bill refers to the supplemental agreement providing that the enrolment committee consisting of representatives of both parties and an independent chair jointly selected by both parties will assess enrolment applications in accordance with the agreement and the supplemental agreement and will provide the parties with a new and final founding members' list, which will form the basis for a recommendation to the Governor-in-Council to amend the schedule to the Qalipu Mi'kmaq First Nation Band Order. I am quoting pretty well from the preamble. The bill refers to the process for the assessment of enrolment applications by an enrolment committee.
Could you describe what was the original intent of the enrolment agreement, please?
Mr. Saranchuk: The overall original intent of the enrolment agreement, for the 2008 agreement, was to create a landless band for the Mi'kmaq Group of Indians of Newfoundland, which was located on the Island of Newfoundland. As part of this, the agreement set out an enrolment process and set it in motion, and the criteria were those that Mr. Reiher just identified.
The original intent of the parties about enrolment and membership was that founding membership in this group which was being recognized would be granted to individuals with a current and substantial connection with the Mi'kmaq Group of Indians of Newfoundland prior to the band's being created.
It was not just the case of establishing blood quantum or some Aboriginal ancestry with the Mi'kmaq of Newfoundland. There were four criteria to be fulfilled, which were based largely on the Powley decision of the Supreme Court of Canada, which Mr. Reiher just set out. Ancestral connection was one criterion, but applicants also needed to have self-identified as and been accepted as members of the group around the time of negotiation and up until the time of the recognition order.
With respect to group acceptance, which was one of the critical elements of membership, the parties intended the persons living in or around the Newfoundland Mi'kmaq communities specifically identified in the 2008 agreement and who met the other criteria would be assumed to belong to the group. While non-residents could also become members, they would need to demonstrate and have maintained a current and substantial connection to the current Mi'kmaq Group of Indians of Newfoundland, including a sustained and active involvement in the community and not just a connection of recent vintage.
The intent of the parties was never to recognize individuals who only had ancestral or bloodline connection to the Mi'kmaq community or those who did not have a strong, ongoing cultural connection with the group. Instead, it was, as I said, to enrol and recognize those with a current and substantial connection with the Mi'kmaq Group of Indians on the Island of Newfoundland prior to the band being created.
The Chair: My last question, which I hope expresses concerns of some members at the last meeting, is this: With reference to the process and the panel, will every person, including founding members, the first applicants, whoever applied for membership, be reassessed according to the same eligibility criteria or enrolment criteria for membership in the Qalipu Mi'kmaq First Nation? Will they all be assessed, and will they all be assessed according to the same enrolment criteria?
Mr. Saranchuk: The short answer, Mr. Chair, is that, yes, every individual who applied for membership in the Qalipu Mi'kmaq First Nation and who met the application deadline and who submitted a valid application will have their application assessed pursuant to the same four eligibility criteria listed in section 4 of the 2008 agreement.
Senator Dyck: You state that you're using the same eligibility criteria for those in the first batch who were part of the founding members, and that they will then be reassessed according to the same criteria that are in the supplemental agreement. Will the same level of documentation be required?
Mr. Saranchuk: I'll let Mr. Reiher, who is more familiar with that, answer.
Mr. Reiher: Thank you. Indeed, the same criteria will apply to all applications. With respect to the documentary requirements, every situation is unique and the individual has to bring forward the best evidence for their case.
As you know, the supplemental agreement clarified the documentary requirements with respect to self-identification and group acceptance. A period of 110 days, I believe, has been provided to all applicants in order to be able to provide additional documentation if they so wish.
Therefore, for example, with respect to self-identification or group acceptance, individuals who were members of an organization advocating for the Mi'kmaq interests on the Island of Newfoundland prior to the signing of the agreement in 2008 would be able to point to that and use documentation in respect of that membership in order to establish self-identification or group acceptance. Others will be able to resort, for example, to the 2006 Census if they had the opportunity to fill it out.
As you know, it's been debated before this committee that application forms could be used with respect to self-identification to establish self-identification by applicant under the 2008 agreement. That is indeed possible evidence. Because self-identification and group acceptance must be present leading up to and on the date of the recognition order, signing the application form after the recognition order cannot serve the purpose of demonstrating prior self-identification. Therefore, other potential documentary evidence has been identified in the supplemental agreement for individuals to establish that element.
Senator Dyck: The date of recognition was September 22, 2011, when the band was actually created; correct?
Mr. Saranchuk: Yes.
Senator Dyck: The supplemental agreement uses that date and says, as I understand it, that the supplemental agreement will apply the criteria with regard to the community and group acceptance, which is those things like showing that you were part of the original pre-Confederation and that somehow you have a link with the community; so you need to provide evidence, such as pictures in local newspapers, et cetera, that you are actually part of the community and that you practise your culture. From what I understood, the criteria with regard to self-identification in the supplemental agreement do not apply to those people who had a signed application up to September 2011. If there are criteria that are different or different documentation required for self-identification, then those that had a signed application prior to 2011 wouldn't be subjected to the same level of documentation as those who didn't have a signed application prior to September 2011.
Mr. Reiher: Thank you for the opportunity to clarify.
I think what you said is correct in the sense that individuals who signed their application form before the date of the recognition order, September 22, 2011, are able to rely on the statement that they signed on the form with respect to self-identification, whereas those who signed that form after need to provide additional documentation because it was signed after the fact. It cannot serve as objective evidence of self-identification on the date of the recognition order.
Senator Dyck: You're saying those who signed after September 2011 had signed after the fact; after what fact?
Mr. Reiher: After the establishment of the band, after the recognition order of September 22, 2011.
Senator Dyck: From what you've just said, it sounds to me still as though we have two different standards being applied based on whether or not you had a signed application prior to September 2011. It's the same criteria but a different level of documentation, so the same standard is not being applied to the whole group. It was either Senator Tannas or Senator Wallace who said the ideal situation would be that the same standards, same criteria, same level of documentation should be applied to everyone regardless of the date of the recognition order. That would be the fairest situation.
Mr. Reiher: The situation of every individual is different. With respect to each and every criterion, they have to provide the evidence required to establish the criteria. With respect to any of the criteria, the evidence or the document put forward by an individual may be different.
I would not say that there was a different level of documentation required. There are just a number of possible documents available to individuals to establish criteria. With respect to self-identification, a form signed after September 22, 2011, is not considered by the parties to the supplemental agreement and the 2008 agreement as a document that provides objective evidence.
The Chair: I think that's been helpful.
The criteria are the same, but there is a different level of documentation required on the self-identification criteria, one of four, after the enrolment order. Thank you, Senator Dyck
Senator Wallace: Mr. Saranchuk, as you point out, there was the original 2008 agreement and then the 2013 supplemental agreement. As I understand it, the 2013 supplemental agreement was agreed to by the Federation of Newfoundland Indians and the government because it was felt further clarity was needed regarding how applicants could establish they met the four criteria of the 2008 agreement.
What occurred that caused the Federation of Newfoundland Indians and the government to feel that this additional or further documentation was required so that members would have a current and substantial connection to a Mi'kmaq group?
Mr. Saranchuk: I think, senator, the parties had a number of shared concerns that led them to enter into the 2013 supplemental agreement. The first shared concern was the huge number of applications that had been received, which were far beyond the expectation of either party. You had, for example, 46,000 applications being received in the last three months, for a total of 101,000 applications, approximately, being received over the four-year process.
The reality is that under the original 2008 agreement, the enrolment committee was to cease functioning at the end of that agreement. In 2012, the parties knew they had approximately 70,000 applications, which, if that were the case, would go unprocessed. I think that was the first shared concern that led the parties to come together to discuss what needed to be done and what their other concerns were. Related to that, there were obviously insufficient timelines to deal with all those applications.
The parties also were concerned that a many of these applications were from applicants not residing in the 67 communities which were identified in the original 2008 agreement. There was also a concern shared by the parties about the insufficient level of detail provided in terms of the evidence supporting the applications. For example, there was a sense that there was a need for greater precision and proof about the group acceptance criterion, in particular, and there was also a sense that there was a need to assist the enrolment committee in providing guidance to them in how to assess criteria such as group acceptance. In other words, there was a sense that the original guidelines for the assessment of applications did not provide sufficient clarity and detail to the joint members on the enrolment committee, and both parties felt there was a need to ensure that their original intentions about membership should and could be respected.
All of that, I think, led to concerns about the overall credibility of the process and ultimately led the parties to agree on the terms of the supplemental agreement.
Senator Wallace: You mentioned that when a number of applications were received, many of them were from individuals who were outside, as you referred to it, the 67 communities. Are those 67 recognized Mi'kmaq communities on the island of Newfoundland? And because these applications were outside of those areas, did it raise some concern that there may not be a substantial connection to the Mi'kmaq culture, to the Mi'kmaq people?
Mr. Saranchuk: Yes, that's correct. That largely was one of the concerns. I will let Mr. Reiher add about the communities.
Mr. Reiher: Actually, it's not so much a concern, but these communities are communities identified as part of the negotiation with the Aboriginal group as Mi'kmaq communities on the island. The parties agreed that, for individuals residing in or around these communities, the connection would likely be present.
With respect to those not residing in or around these communities, the strong current and substantial connection could not be derived from a physical presence there; it had to be established differently. That's why non-residents of these communities must demonstrate their strong cultural connection through other means.
Senator Wallace: When you say that, when I read the 2008 and 2013 agreements and when you consider what was the intention — that is, what was in the mind of, in particular, the Federation of Newfoundland Indians who were representing the Mi'kmaq of Newfoundland in those negotiations — their desire was to create a band of individuals who had that connection to the Mi'kmaq people, who understood the Mi'kmaq ways and who could further the culture of the Mi'kmaq people. It wasn't simply a matter of having a card to have membership. It required that act of knowledge, involvement and connection on a continuing and a present basis. That's what I understood from it. That's what the Federation of Newfoundland Indians wanted to achieve. That's why they required further documentary evidence, namely to ensure that individuals would meet that requirement. Is that fair to say?
Mr. Saranchuk: Yes, senator, that is fair to say. As I said before and as you said, it wasn't a case of publishing blood quantum or ancestry. There were four criteria to be fulfilled. Ancestral connection was one of those criteria, but there was also this need to have self-identified and been accepted as a member of the group around the time of negotiation and leading up to band creation. That meant that there had to have been this current and substantial cultural connection not of recent vintage with the group on the island.
Senator Moore: Thank you, witnesses, for being here. I have a couple of questions. I think you might have partially answered them, but I want to go over them again.
On the eleventh of June, we heard from Ms. Jamie Lickers, Counsel for the Mi'kmaq First Nations Assembly of Newfoundland. She raised a couple of points. One point was in the form of a question: Is it fair that if Qalipu Band members and status Indians have their status revoked, they will be deprived of their right to access the protest provisions of the Indian Act, which other status Indians have access to?
If persons consider themselves to be members of the Qalipu Band or are status Indians and their status is revoked and they're not approved as being acceptable to join this band, what is their right to protest?
Mr. Reiher: Within the enrolment process, there is a right to appeal available to the individuals. Of course, individuals have access to the courts should they want to challenge their non-inclusion on the enrolment list through judicial review application, for example. I'd like to make a quick comment on the protest provisions that were mentioned. Bill C-25 does not have any impact on the application or non-application of the Indian Act provision, especially the protest provisions.
The protest provisions are available to individuals who have been the subject of a determination by the Indian registrar under the Indian Act, and there is no such determination in this process. It's actually an independent committee that assesses the applications based on the criteria that were negotiated as we described. Once individuals are enrolled, added to the schedule to the Qalipu Mi'kmaq First Nation Band Order and, thereafter, registered, these individuals will have access to the protest provision or any other Indian Act provisions.
Senator Moore: Okay.
The Chair: Did you understand that, Senator Moore?
Senator Moore: Just that this bill does not impact on the protest provisions of the Indian Act and that persons who may have the right to protest whether or not this process was going on still have that right.
The Chair: I think you said there was still a right to appeal, Mr. Reiher?
Mr. Reiher: That's correct. There is a right to appeal within the enrolment process.
Senator Moore: We were told that there would be an appeal period, that there would be an appeal master who will make the decisions with regard to the appeals made. How long a period is planned for the hearing of appeals? Has that been established?
Mr. Reiher: Currently, it is planned that, first of all, there is a 30-day period for individuals to provide a notice of appeal once they receive their decision. It is expected, at this time, that it will take six months to deal with the appeals.
Senator Moore: So the 30 days begins to run when? Once the bill becomes law or is passed?
Mr. Reiher: Once the individual receives the decision with respect to the enrolment.
Senator Moore: Who will issue that decision?
Mr. Reiher: The enrolment committee.
Senator Moore: The enrolment committee.
There was one other wrinkle that I thought was interesting. I don't know how it's envisaged it will be dealt with. Ms. Lickers said it is quite conceivable that siblings could end up with different status, depending on when they applied and the completeness of their application.
Is there consideration for that so that a family group could have a consistent enrolment or lack thereof?
Mr. Reiher: Thank you for the question. As we mentioned before, the criteria includes both an ancestral and cultural connection.
It is quite possible that siblings have a different connection with their Mi'kmaq community. Therefore, it is possible, on that basis, that siblings have different entitlement.
That being said, once an individual is registered following this process, the Indian Act provision will apply to determine entitlement to registration, and children of an individual registered in accordance with this process would have the same entitlement.
Mr. Saranchuk: If I could maybe go back to your original question, it is possible that there will be different results for siblings, but that's inherently the case in a process like this. So the whole press of applying is voluntary and individualistic. You might have some siblings who have always identified with the First Nation who choose to apply and others who never did identify and choose not to apply. So you will, under the framework, potentially have that result.
There was a process here that allowed people four years to make their decisions about whether to apply. I think the point Mr. Reiher was getting to at the end is that, once the Indian Act rules take over, if your father or mother had applied and was accepted, you will still have a chance to have the Indian Act registration provisions take over, if I got that right.
Senator Moore: Ms. Lickers, when she was summing up her brief before us, made the point that all applicants should be assessed on the basis of the original agreement. I understand that the supplementary agreement has more specific provisions with regard to the documentation required, but I think, Mr. Saranchuk, you said at the start this morning that the bill does not change the original agreement. Is that right? Did I hear you correctly?
Mr. Saranchuk: That's correct. The bill does not modify the original agreement and, in particular, does not modify the enrolment criteria set out in the original agreement.
Senator Moore: And in the supplementary agreement?
Mr. Saranchuk: Correct. I would, again, go so far as to say that it's important to understand that both those agreements are already validly enacted and have force of law. They are, in fact, currently being implemented, and the bill does not change them.
Senator Moore: Thank you.
The Chair: That was very helpful, I think, Senator Moore.
Did you have a supplementary, Senator Dyck?
Senator Dyck: Yes, I had a supplementary to one of the questions, I think probably one of Senator Moore's first questions with regard to the court challenge. Bill C-25 allows the minister to take someone off the registry through the Governor-in-Council, and I believe you said the person could appeal to the courts if that happened. Is that correct?
Mr. Saranchuk: Yes, there is recourse to the courts. It is important to be accurate on this point. It's true that in the bill there is no ability to obtain compensation from the government or the FNI. However, legal actions can still be brought, and people are not losing their legal rights to bring legal challenges.
For example, under the agreement, individuals can still appeal the decisions of the enrolment committee pursuant to the terms of the agreement. Individuals can also challenge the agreement or agreements in court if they wish. They are also free to bring judicial reviews of any decision to leave their names off the list, so legal actions can be brought to challenge the validity of the process, based on principles of administrative law, contract law, or the provisions of the Canadian Charter of Rights and Freedoms.
What cannot occur, according to the bill, is that individuals cannot receive damages from the government or the FNI — the Federation of Newfoundland Indians — or any other party if they are determined not to be members once the enrolment process is complete.
If you don't mind, I will ask Mr. Reiher to supplement that answer.
Mr. Reiher: I think this is largely correct. I just want to emphasize that we're not providing legal advice and we cannot assess individual situations here. We're saying that Bill C-25 does not prevent individuals from accessing the courts.
Senator Dyck: Could I ask a follow-up question? From what Ms. Lickers told us, she said your chances of getting redress through the courts was virtually nil because if the Governor-in-Council has ordered this, it seems as though, and perhaps you can clarify this, the case law is such that there would be no chance. The court wouldn't even accept the challenge. They wouldn't even hear it because it was through a Governor-in-Council order.
Senator Moore: The Etches case was her reference.
Senator Dyck: Even though you're saying that a court challenge is possible, the legal precedent is saying it's possible but it won't do you any good because of the Etches case and other cases that have appeared before. It's really a false promise.
Do you have a comment?
Mr. Reiher: If I may, Mr. Chair, in terms of false promise, I would like to emphasize I didn't hear anyone promise anything here. We're saying that Bill C-25 does not prevent individuals from accessing the courts. It is not possible for us, I think, to assess the chances of success of a specific situation.
The Chair: Okay.
Senator Lovelace Nicholas: Can I ask a supplementary question on that?
You said people could go to court and apply for their status, but how can these people afford a lawyer to go to court? It's not your problem?
Mr. Saranchuk: Again, without providing legal advice to anyone, I think the first step any applicant would likely take is to appeal under the terms of the agreement.
Senator Wallace: I have one further question.
The Chair: I think we want to canvass this fully.
Senator Wallace: Mr. Saranchuk, for the individuals who are ultimately accepted as members of the Qalipu band and would be included on the enrolment list, could you describe what benefits, if any, those members would be entitled to? Their Indian status would obviously be confirmed if they are recognized as members of the band. Are there certain benefits and entitlements that they could receive if they chose to apply and, if so, what would they be?
Mr. Saranchuk: I think it's important to note that what this process does is confers membership in the group and status under the Indian Act at the same time, so for those members who are not confirmed as enrolled through this process, it's open to the band to make them members or to have their own membership criteria later. This is about the founding members of this group to whom the Indian Act will apply. Based on that, I would say that, generally speaking, the sorts of benefits that are available depend upon the nature of the First Nation in question. This First Nation is and will be a landless First Nation, which means that there will not be some of the same benefits, if you will, in terms of certificates of possession and things like that that attach to a reserve.
There will, however, be the benefits provided by Health Canada in the Non-Insured Health Benefits that apply and are provided to all status Indians under the Indian Act.
There will also be administered via the band post-secondary educational benefits. I might ask Mr. Reiher if I'm missing anything here.
Mr. Reiher: I think this is correct, so essentially post-secondary education, Non-Insured Health Benefits and possibly tax exemption for goods received on-reserve, which would be a reserve of a different First Nation, of course, because this First Nation does not have a reserve, and possibly some provincial benefits that I couldn't speak to.
Senator Wallace: Thank you very much.
Senator Lovelace Nicholas: I'm looking at the voters' list here when they voted in favour or not in favour. There are 615 registered voters; 318 voted in favour and 235 voted against.
My concern is, what is the percentage of women that voted for or against, and when there was voting being done, were there any non-First Nations women who voted?
Mr. Saranchuk: I'll let Mr. Reiher supplement. I'm afraid I'm not familiar with the list that you're referencing, senator. There have been band elections whereby the chief and council have been elected. I wonder if that's what you're referring to.
Senator Lovelace Nicholas: I'm sorry. I didn't hear you.
Mr. Reiher: You may be referring to the ratification vote that occurred prior to the signing of the 2008 agreement. The numbers that I'm aware of are that 90 per cent of the FNI members who voted were in favour of the agreement.
With respect to your question about women, we do not have numbers about that, but I would point out that none of the voters would have been Indians or registered Indians or First Nations because that pre-dated the process of band creation and therefore the registration of the eligible applicants. I'm not sure whether that answers the question.
Senator Lovelace Nicholas: Were any First Nations women's organization groups involved in this agreement, and were they consulted?
Mr. Saranchuk: To the best of my knowledge, senator, taking us back, this was an agreement that came out of a court action that was brought by the Federation of Newfoundland Indians, and there was a settlement by the government with that group who represented the other Mi'kmaq in that area of the province, in terms of coming to what ultimately was the 2008 agreement.
Senator Lovelace Nicholas: I'm just a little bit concerned because with the witnesses we had last week, the women weren't happy with the results.
The Chair: I would encourage members to relate their questions to the bill. I've allowed some latitude, but we are about to look at it clause by clause.
Senator Tannas: I'll be very brief. I wanted to see if I could sum up a couple of things.
First, we all take comfort in the fact that you have clarified that reassessment will take place up to and including the founding members — some 20,000 — who were on the original list. In addition, there is work to be done with the 70,000-some applications.
I think there was a little bit of confusion on the appeal. The folks who were on the original list who ultimately wind up being removed through this reassessment would have some course of appeal through the Indian Act. Is that right?
Mr. Saranchuk: They would have an appeal under the terms of the actual agreement itself.
Senator Tannas: Under the agreement itself?
Mr. Saranchuk: Correct.
Mr. Reiher: If I may complement that response, first, they would have a right to appeal under the agreement itself. If they lose their entitlement, the result will be that they will be removed by the registrar from the Indian Register. At that point, they will have access to the Indian Act provisions to protest and appeal.
Senator Tannas: So the people on the list right now have two routes of appeal if they are removed from the original list, correct?
Mr. Reiher: Yes.
Senator Tannas: The 75,000 who are yet to be processed will have a right of appeal through this master of appeals under the agreement. Is that right?
Mr. Reiher: Correct.
Senator Tannas: The 6,000 who have been rejected because they didn't file properly have no right of appeal. Is that right?
Mr. Reiher: That's correct.
Senator Tannas: Good. Okay.
On the reassessment of the 20,000-some, is there anything in this bill or is there anything that exists in current agreements that would prevent the committee as they reassess the 20,000-odd from asking for more documentation if they felt that was necessary to help that applicant be reassessed?
Mr. Reiher: There is nothing in this bill or in the agreement that prevents the committee from doing that.
Senator Baker: Mr. Reiher and Mr. Saranchuk have done a great job in answering the questions of the committee; I think you've been spot-on with every single question that was asked.
However, I would like to ask you a question relating specifically to the bill that's before us. The bill that's before us has four clauses and a preamble. We know that the preamble has no force in law; the preamble can give us a direction as to what is contained in the bill, but it has no force in law.
The actual substance of the bill is confusing to a lot of people. We've heard witnesses here who have referenced what is actually in this bill, and they say there is no appeal process for somebody who is removed from the list by the minister.
I can understand that position. We've already had it mentioned. I think Senator Moore mentioned the case of the Ontario Court of Appeal in which it says that an order-in-council directing as to whether somebody is registered or not cannot be then reviewed; it can't be appealed.
That refers to the specific wording of the bill. You've clearly outlined what's in the original agreement, which you call the 2008 agreement — I always call it the 2007 agreement — and the supplementary agreement. That's a code in and of itself. That's completely agreed to and is in the process of being enacted.
As I see it, this bill provides for the minister to actually enact the provisions of the agreement and the supplementary agreement, which is already in process.
The supplementary agreement says that the Governor-in-Council will substitute the new list instead of the original list of persons who are considered to be the founding members. The list that will now be decided prior to 2016 — at a certain date of all this will be decided; no one will know their status until 2016 — and that new list will supplant what is already in the original agreement as being the list of the founding members.
One would think that would be in the bill in exactly those words that were in the supplementary agreement — something like "the list will replace the list." But that's not here. To some people who understand the Indian Act very well, what's here is a rather offensive provision that says that the Governor-in-Council can remove names and add names, not that the Governor-in-Council will supplant this new list with the original list.
That's why some of the witnesses told the committee there is no appeal to this, because the minister is removing names. There is no appeal; look at the Ontario Court of Appeal and every other court that says section 6 of the Indian Act gives the registrar and the appeal procedure there the sole right to add and subtract names from the registry.
I don't know if you can answer the question. It would have been up to the drafters, but I imagine you can answer it. You both appear to be very competent in your legal capacities.
Why was this worded in this way — namely, that the Governor-in-Council can do something to remove names and add names, which is an affront to a lot of people in relation to the Indian Act? Why wasn't the wording, as is the case in the supplementary agreement, that the minister will replace the old list with this new list? I don't know if you can answer that question. It is a drafting question.
Mr. Reiher: I believe I'm able to answer the question.
It is quite right that the supplementary agreement for clarity purposes, I suppose, used the word "substitute" to make it clear that once the parties receive the new founding members list from the enrolment committee, the minister would take this list and recommend to the Governor-in-Council that all the names on these new lists be added to the schedule — to the order — and that all the others be removed. So it's substitution; that's correct.
That being said, again, for clarity and simplicity, the net effect of this exercise for individuals will be that names will be added or names will be removed. Drafters, with their techniques and conventions, must be very precise and describe what's going to occur. What is the power of the Governor-in-Council? The power of the Governor-in-Council is to add names and remove names, whether it's as a bundle or differently. I believe that is why the act is drafted in this way.
But in the end, I submit to this committee that it's the same, and it's probably clearer, because it's very clear for individuals that, two or three years down the road, it's likely that certain names will be removed from the schedule to the order with the consequences that we know about.
Senator Baker: I can understand for clarity, and chair, you're a lawyer of some renown, and also Senator Wallace is sitting there as a critic of the bill, and one can understand that a draftsperson would word things in such a way if you were given it as a draftsperson, but don't you agree that as a stand-alone piece of legislation it gives the minister the power to do something that the Indian Act forbids him from doing according to established case law?
That appears to me to be the affront, because what one of the lawyers said to the committee was this is the offence she was taking. Look, there is no appeal to this; you're allowing the minister, for all time, the power to remove names from this band list and not from the other.
I think you've done a great job in clarifying matters. I guess it's a disagreement we have with the actual wording and the effect that the bill would have, and that is the main reason why I'm going to have to vote against the bill, because it's a declaratory provision that gives power to the minister that is not allowed under the law in the country. I can see what the effect is and I understand your answer.
The other provision, which perhaps you can't answer either — well, you've answered my question on the first one — but the second one is to relieve the government from any liability. That is setting a precedent. I know you're going to quote two sections of the Indian Act where it's been done before. Where it was done before was for persons who were not registered prior to September 4, 1951.
In the two provisions that you can cite where this has been done in the Indian Act, two pieces of legislation which are historical in nature, 1984, and the other one was shortly thereafter, there is no precedent for this in any act of Parliament that I know of. It was attempted when all of the appeal divisions for immigration and citizenship were fired; everybody was fired and replaced with people. You remember that case, and a bill was brought in, but then it had to be dropped; it was amended in the Senate. The Senate amended the bill, but in the meantime the minister had made separate agreements with those people displaced.
It's a provision that in its totality, in its broadness, is a precedent in Canadian law, in my opinion. I don't know if you have any comment on that. It's not similar to the two previous examples under the Indian Act.
Mr. Reiher: I would like to provide a few comments on this. It is not uncommon when legislative changes are made to benefits or entitlements to have such a clause. As you know, in 1985, Bill C-31 included a similar clause. Bill C-31, in particular, restored entitlement to Indian registration to women who had lost, up until then, their entitlement because of marriage, for example.
The bill restored their entitlement to registration but at the same time prevented them from suing the government for lost benefits during the time they were not entitled to registration.
Similarly, in 2010, Parliament adopted the Gender Equity in Indian Registration Act, which granted a new entitlement to registration to the grandchildren of these same women.
Section 9 of that act prevents these individuals from claiming damages because they were not entitled before. The situation with the Qalipu Mi'kmaq First Nation is that individuals were added to the schedule to the band by error, so to speak, because the process was not conducted in accordance with the original intent of the parties, which led to the need for the clarification provided in the supplemental agreement. Once all applications have been reviewed in accordance with the original intent of the parties, certain individuals will likely be found not to be entitled.
Clause 4 is there to prevent these individuals who do not have a legitimate claim to membership in the Qalipu Mi'kmaq First Nation to be compensated for being removed from the Indian Register.
Senator Baker: I have looked carefully at those two provisions. I was a member of Parliament when the first was brought in, and I was here when the second one was brought in. When you go back and look at the applicability of that provision that you've just referenced, in both cases it references the date, September 4, 1951. If the registration was not done by that date, then those people so affected by the legislation that you just referenced would not have the right to sue the government.
It would be an interesting exercise for you, and anybody else who is listening, to look at those two provisions that changed the Indian Act and see what the actual consequences were. I have looked at it carefully, and in my opinion it dates back to the date of September 4. I remember that, because it is my birthday. In fact, 1951 was when the Indian Act was recognized in Newfoundland and Labrador, not in 1949.
That's my opinion on it, and I don't think it bears any resemblance whatsoever to this, which is a blanket provision that applies into the future and doesn't refer to somebody not registering or their ancestors not registering prior to September 4, 1951. That is my personal opinion on it, but I respect your official position.
The Chair: Senator Baker, you have been of significant help in clarifying the issues.
Senator Wallace: Senator Baker has been a great help, as he is with every committee he serves on, so we are pleased you're here this morning.
Senator Baker, I believe, suggested that clause 4 of the bill that would prevent a claim for damages or compensation was unprecedented, and you gave a couple of references in the Indian Act context. My understanding is that that type non-liability provision exists in a number of federal acts. Could you comment on that and give us some indication of what those acts may be?
Mr. Reiher: Thank you for the question. Indeed, there are several clauses to that effect in the federal statute books. In particular, in 2013 Parliament adopted Economic Action Plan 2013, which had the effect of reorganizing a company called Ridley Terminals. In that context, the minister, with the approval of the Governor-in-Council, had the authority to take measures such as sell or otherwise dispose of some of the securities of Ridley Terminals, including procure the dissolution of Ridley Terminals. One provision, section 208 of that act, indicated that:
No action or other proceeding, including any action or proceeding in restitution, or for damages of any kind, that is based on or is in relation to any agreement in relation to Ridley Terminals Inc. that existed on or before the coming into force of this section lies or may be instituted by anyone against Her Majesty in right of Canada or any minister or any employee or agent of Her Majesty in right of Canada, or any person engaged to provide advice or services to Her Majesty in right of Canada in relation to such an agreement, for anything done or omitted to be done or for anything purported to have been done or omitted to be done, in the exercise of their powers or the performance of their duties or functions, under this Division.
I could give many examples. In 2011, the Protection of Residential Mortgage or Hypothecary Insurance Act was passed and included a provision. That legislation provided the possibility to terminate certain agreements. Section 44 said:
The agreements are terminated and all obligations and liabilities arising out of the agreements and all rights acquired under them are extinguished.
Section 45 states:
No action or other proceeding, including any action or proceeding in restitution, or for damages of any kind, that is based on or is in relation to any agreement, lies or may be instituted by anyone against Her Majesty or any minister or any employee or agent of Her Majesty, or any person engaged to provide advice or services to Her Majesty in relation to any agreement, for anything done or omitted to be done or for anything purported to have been done or omitted to be done, in the exercise or performance of their powers, duties and functions.
Section 46 states:
No one is entitled to any compensation from Her Majesty in connection with the coming into force of section 44.
These are two examples. We could provide a list of examples to this committee if that is helpful.
Senator Dyck: Thank you for all your answers this morning. I will follow up with regard to the 1985 and 2010 amendments to the Indian Act. Of course, 1985 was Bill C-31; 2010 was Bill C-3.
The intention of these bills was very different with respect to what they were doing. In fact, with those two bills, it was to correct a discriminatory feature of the Indian Act. It was restoring status to descendants of women who had lost their Indian status because their mother had married someone who was a non-status person. For the government, then, to put in a clause referring to not being able to claim any compensation is a very different situation from what we have here.
I would submit it really isn't a fair comparison to say we had it before under those two bills. You gave some other examples just now that have nothing to do with loss of First Nation citizenship. I would submit that those kinds of clauses are also very different in nature. I'm not sure that they apply because citizenship is a fundamental right, whereas the agreements that you signed are very different.
I don't think you can make the argument that they're the same. Perhaps you wish to comment on that.
Mr. Reiher: These situations are different. We're dealing with a unique situation, indeed. The goal of this initiative is to recognize the Mi'kmaq of Newfoundland, which is an entity that existed before the recognition in 2011. The goal of the 2008 agreement and the supplemental agreement is to identify the individuals who belong to this existing body of Indians. This is the existing group.
I think it's a novel goal as well. To the extent that the renewed process conducted in accordance with the original intention of the parties leads to the conclusion that certain individuals do not belong to the Mi'kmaq group of Indians of Newfoundland, then clause 4 is there to prevent these individuals from having access to compensation for benefits that are not meant for them.
Senator Dyck: What about any compensation that might be due from the provinces? I don't know whether there would be any, but I'll share this story to lighten our mood a bit.
The Chair: We need that.
Senator Dyck: Under Bill C-31, in 1985, of course, our champions were Senator Sandra Lovelace Nicholas and Senator Noël Kinsella, our Speaker. They took this case all the way to Geneva to prove that there was gender discrimination under the Indian Act. Through that, in 1985, I was able to gain my Indian status.
As far as I was concerned, there was nothing that I was going to get by suing, but what I did was write a letter to the provincial Minister of Education, or whatever. I had bought a car in 1985, a nice little Toyota Corona, I think it was. At that time, as a registered Indian in Saskatchewan, you did not have to pay provincial sales tax. I bought this car in March and I got my status in July. If I bought my car in July, I would not have had to pay PST on it. So I wrote a letter to the minister in the province and said, "I have just received my Indian status. I bought my car in March. I should not have had to pay provincial sales tax. That's not fair." They cut me a cheque. Isn't that amazing?
The moral of the story is this: It is about not only the intention of the bill but also setting something right. The provincial minister did not need to reimburse me for that, but he understood it was the right thing to do, so they sent me a refund. Essentially, that's what I think this boils down to: What is the right thing to do? It's up to us to decide.
Senator Meredith: Thank you for appearing before us today.
Most of my questions have been answered — to great satisfaction, I would say no. I was going to sing, actually, to lighten the mood, Senator Dyck, but I would run everybody out of the room.
I have a positive observation with respect to what's been raised in terms of those individuals who felt that by coming forward, they would be discriminated against. They no longer have to hide behind their ancestral rights or in terms of being able to speak their language and to be able to understand that they're accepted as a people. I wanted to comment on that as a positive thing going forward.
Although some of the questions were not answered as explicitly as I would have liked them to be, I think that's one positive we can take away from this, namely that the people will be recognized. There will be those individuals — and it's quite unfortunate — where court challenges will not be successful. However, I think we need to move forward as a nation. In going forward, we also need to look at legislation that we bring to the table, Senator Baker, which is not offensive in any way to the people of this country.
I think that is a lesson learned for all of us, including the drafters, so that things don't become somewhat contentious when they don't need to be. It's important that we begin to look at how we can improve things in this country and ensure that we are transparent and accountable, as those are the words that we're touting not only as a government but also as parliamentarians. I think that all of our people across this country deserve that. That's all I have to say going forward. Thank you for your time.
The Chair: Thank you very much, colleagues. I believe this has been a thorough canvassing of all the issues. I thank all members for their thoughtful questions. I would like to thank the witnesses for their helpful responses.
I believe we are now proceeding to clause-by-clause consideration with our eyes open. The witnesses can be excused. I would now like to ask the committee, is it agreed that we proceed to clause-by-clause consideration of Bill C-25, An Act respecting the Qalipu Mi'kmaq First Nation Band Order?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: That's agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: That was agreed.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried on division. Thank you.
Shall clause 4 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried on division.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried on division.
Does the committee wish to consider appending observations to the report?
Some Hon. Senators: No.
The Chair: Colleagues, is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, colleagues. That concludes the discussion of this bill.
Those who have been following the work of our committee will know that we are well into a special study regarding housing on reserves. In this next portion of the meeting, we have the opportunity to hear testimony on a specific order of reference authorizing us to examine and report on the challenges and potential solutions relating to infrastructure on reserves, including housing, community infrastructure and innovative opportunities for financing and more collaborative strategies. With agreement of the committee, I'd like to welcome witnesses who have been asked to address certain issues that have arisen previously in our hearings. I'm expecting that we will have short presentations, which I trust members of the committee would like to get on the record as part of our housing study. I think we have time to do that, although there may not be time for a lot of questions.
Members of the committee, would you please help me welcome, from Aboriginal Affairs and Northern Development Canada, Sheilagh Murphy, Director General, Social Policy and Programs Branch. She is joined at the table by representatives of Canada Mortgage and Housing Corporation: Charles MacArthur, Senior Vice-President, Regional Operations and Assisted Housing; and Carla Staresina, Executive Director, Assisted Housing.
Witnesses, we look forward to your presentations, which may be followed by questions from senators if we have time. We do have to adjourn promptly at 11:30 to make room for another event.
Who will start? Thank you, Ms. Murphy.
Sheilagh Murphy, Director General, Social Policy and Programs Branch, Aboriginal Affairs and Northern Development Canada: Chair and honourable senators, I want to thank you for the opportunity to speak today about the on-reserve National Shelter Allowance policy. Aboriginal Affairs and Northern Development Canada funds First Nations, through transfer payment agreements, to administer the Income Assistance Program on-reserve. Shelter allowance is one component of this program.
A few quick facts about shelter allowance: It's part of the basic needs benefit under income assistance, which is a base amount provided to all income assistance beneficiaries. Other components of basic needs include food and clothing.
Shelter allowance may be paid to individuals directly or indirectly. This is done through individual beneficiaries or on behalf of a third party such as a landlord or utility company.
It is the policy of Aboriginal Affairs and Northern Development Canada to align benefit rates with those of the reference province or territory. As such, the exact definition of shelter allowance may vary across jurisdictions, depending on the legislation and program regulations of the province. Regardless of the jurisdiction, amounts included under the shelter allowance component are generally intended to cover costs for a beneficiary's principal residence and may include rent, principal interest on a mortgage or loan, occupancy cost paid under a purchase agreement, taxes, utilities such as heat and hydro, and insurance premiums.
Current expenditures on shelter allowance are approximately $126 million or 18 per cent of the total budget for the Income Assistance Program on-reserve.
AANDC first received authority to fund income assistance on-reserve in 1964, in alignment with provincial standards and procedures. Adhering to this requirement of alignment with provinces is key to the government's objective of ensuring that basic social supports are available to all Canadians.
However, implementation of provincial standards and procedures can be challenging given the different context and environmental circumstances present on-reserve. This is especially true in the case of housing and shelter allowance. In 2003, the Auditor General reviewed federal government support to First Nations for housing on-reserve, including shelter allowance. In that report, the Auditor General included a table contrasting key elements of the housing environment on-and off-reserve. I will not repeat the table line by line but highlight some of the key areas of difference that are relevant to our discussion today.
Ownership: Off-reserve land and houses are owned privately. On-reserve, it's collective ownership in common.
Financing: Off-reserve access to private financing is the norm. On-reserve, access to private financing is limited.
Legislation and regulations: Off-reserve, provincial legislation and regulations apply and are enforced by designated agencies and the judicial system. On-reserve, the legal powers of band councils to define and enforce rules are imprecise, and enforcement is limited.
Housing supply: Off-reserve, owners or their occupants are responsible for any required maintenance, repairs or renovation. On-reserve, few individuals own their homes, and occupants of housing on-reserve carry out very little maintenance, repairs and renovations.
In terms of housing allocation, off-reserve individuals can buy, sell and rent housing within a private market environment. On-reserve, chiefs and councils often decide on the number of constructions and renovations each year.
In terms of geography, based on the 2003 Auditor General's report, off-reserve, 80 per cent of the population is in urban areas. On-reserve, 65 per cent of the population is located in rural, remote and special-access areas.
These key environmental and contextual differences make the implementation of provincial shelter allowance rates and eligibility criteria on-reserve challenging. It is not as simple as looking at the provincial rate schedule for shelter allowance and applying it to benefit rates on-reserve. There is a translation piece that needs to happen to account for the different circumstances that exist on reserves. In terms of the evolution of our policy, provincial eligibility criteria and rates for shelter allowance are tied to the ability to demonstrate actual cost associated with individual beneficiaries' principal residences. Given the tendency, on-reserve, towards collective ownership, the ability to demonstrate actual shelter cost at the individual level is a key challenge hindering alignment with provinces. To address this challenge and to ensure that the Income Assistance Program does not duplicate funding that First Nations receive through complementary housing programs, in 1990, Aboriginal Affairs and Northern Development Canada established an interim policy to define the conditions required to fund shelter allowance on-reserve.
The intent of this policy was essentially to translate what is required to demonstrate actual shelter costs on-reserve. This policy was updated in 1997 but was never formally approved and implemented because of broader considerations associated with the department's income support funding envelope and First Nations' readiness. In many First Nations, there is not the same market-based approach to managing the housing stock that results in housing being viewed and managed as both an individual and a collective asset. The degree of alignment with provincial shelter allowance rates and implementation of the policy varies across the country. Ontario and Quebec are more or less fully aligned with provincial practices. British Columbia is moving toward increased alignment through the use of pilot projects and interim funding agreements between First Nations and the department. Seven out of the proposed 30 agreements are already in place.
Ongoing challenges with alignment are most prevalent in the Prairie provinces, as well as in Maritime First Nations, due to insufficient funding, primarily in the Prairie provinces, and the degree of First Nation readiness.
In terms of the progress we've made since the 2003 Auditor General's report, Aboriginal Affairs and Northern Development Canada has taken several steps to improve its shelter allowance policy and increase alignment with provinces.
In 2010, an evaluation of the program was conducted, building off the findings of the Auditor General's report. Almost all recommendations from this evaluation have been addressed by the department to the satisfaction of the audit and evaluation committee.
Reform of the income assistance and compliance is another activity under way to keep pace with the evolution of the provincial approach and specifically increased emphasis on pre-employment supports and case management approaches. We are reforming our Income Assistance Program in that vein. The department's emphasis is on efforts to move from a passive, cheque-cutting approach to a more active approach focused on transitioning youth 18 to 24 to employment.
The department has invested resources to improve its compliance efforts with respect to oversight and monitoring of the program. Through these efforts, there may be an opportunity to reduce current expenditures in some areas, which would help to offset the estimated funding pressure for shelter allowance mentioned earlier.
We've also reviewed the policy in 2012 for shelter allowance and established a working group including representatives from the Canada Mortgage and Housing Corporation and Health Canada. A decision was taken through that work to incrementally work with First Nations to improve readiness for alignment to provincial reforms. We have undertaken a series of pilot projects in 2013-14 aimed at working with First Nations to establish community rental regime models. In British Columbia, a funding agreement approach has also been taken to encourage the adoption of community-wide rental regimes. As I said before, seven out of the expected thirty agreements have been signed.
Aboriginal Affairs and Northern Development is committed to improving the alignment of its Income Assistance Program with provincial practices to ensure that basic social supports are available to all Canadians, including shelter allowance. This will require time, money and a fundamental cultural shift in the approach to the management of housing on-reserve. It is not an easy task, but the department is confident that it is taking the appropriate and incremental approach required to improve the use and understanding of shelter allowance on-reserve and is committed to continuing in its current efforts.
Thank you for the opportunity to present this short portrait of shelter allowance. I look forward to answering any questions you may have.
The Chair: Thank you, Ms. Murphy. You can see why we asked you to come back on this subject.
Colleagues, I suggest we hear from the Canada Mortgage and Housing Corporation and then we'll have some opportunity for questions.
Charles MacArthur, Senior Vice-President, Regional Operations and Assisted Housing, Canada Mortgage and Housing Corporation: Thank you, Mr. Chair, members of the committee. I am pleased to be here on behalf of Canada Mortgage and Housing Corporation to help inform the committee's study of Aboriginal housing.
[Translation]
My predecessor, Debra Darke, appeared before the committee last fall to discuss CMHC's role in supporting the housing needs of aboriginal people in Canada. As she noted, CMHC provides housing assistance for aboriginal people both on- and off-reserve.
In the case of aboriginal people living on-reserve, CMHC works closely with Aboriginal Affairs and Northern Development Canada and with First Nations leaders and organizations to assist First Nations in addressing their housing needs. Through AANDC and CMHC, the federal government currently invests an estimated $303 million in housing on-reserve.
[English]
CMHC's portion of this annual federal investment is $157 million. This funding is delivered through two main programs: the On-Reserve Non-Profit Housing Program, which assists First Nations in the construction, purchase and rehabilitation, and administration of suitable, adequate and affordable rental housing in First Nations communities; and the Residential Rehabilitation Assistance Program On-Reserve, which offers financial assistance to repair substandard homes to a minimum level of health and safety and to improve the accessibility of housing for persons with disabilities.
I will be focusing my remarks today on the On-Reserve Non-Profit Housing Program, also known as the section 95 program. A new documentation requirement under this program has been the source of some misunderstanding among certain First Nations, which I would like to clarify for the committee today. By way of background, the section 95 program provides a subsidy to assist First Nations with the financing and operation of their rental housing projects over a period of 15 to 25 years. In 2013, subsidies were provided for some 28,800 households on reserves. More than 500 new units were also committed in 2013, and these units will eventually receive ongoing subsidies once completed and occupied.
It's important to note that these housing units are owned, operated, managed and maintained by the First Nations. The First Nations are also responsible for the governance of housing on reserves, including building code compliance. First Nations are recognized authorities having jurisdiction and have been acknowledged as such by the Assembly of First Nations.
As I mentioned earlier, CMHC provides ongoing subsidies to housing units committed under the section 95 program under long-term operating agreements for up to 25 years. CMHC also offers access to construction financing for units under its direct lending program.
CMHC and the First Nations sign a project operating agreement outlining the conditions under which the project will be operated in order for the First Nation to continue to benefit from the subsidy. The agreement is effective from the date of the project completion to the maturity of the loan. In addition, where CMHC is the lender under the direct lending program, a loan agreement for construction is also signed.
Before loan funds under the section 95 program are provided, CMHC requires a declaration attesting that all of the housing units being constructed or renovated meet or exceed the requirements of the National Building Code of Canada. This is a long-standing requirement under the section 95 program. As the jurisdiction with authority, the First Nation is responsible for ensuring that the project meets the building code requirements and that the units are built according to the approved plans and specifications.
As I noted at the outset, CMHC has recently enhanced its documentation requirements in order to further strengthen assurances that houses we fund on-reserve are built to code.
For section 95 program agreements signed after April 1, the First Nation must now submit two documents. One is the usual signed declaration, under which the First Nation confirms that funds have been used for the construction and the project is on track and complies with building codes. And a certificate of building code compliance must be completed and signed by the qualified professional who conducts the inspection on behalf of the First Nation and is required at three stages of construction: the pre-backfill stage, in other words when the foundation has been completed; the pre-drywall stage, when the framing, rough-in and insulation and vapour barriers are installed; and a final inspection stage. This new requirement is a direct result of the housing crisis in Attawapiskat, which, as the committee knows, led to an independent audit of AANDC and the Attawapiskat First Nation's management control framework. The audit report was released in January 2013; among other things, it recommended that CMHC strengthen assurances that the houses we fund on-reserve are being built to code. We acted on this recommendation by introducing the certificate of building code compliance requirement.
As I have noted, inspections must be completed by a qualified professional or one who has been certified to perform building code inspections by a recognized professional association. Once the inspection is complete, the building inspector provides a signed certificate of building code compliance to the First Nation, which in turn provides this certificate to CMHC. For section 95, agreements signed after April 1, funds for a project will not be advanced until CMHC has received the certificate of building code compliance.
I should make it clear that the obligation for First Nations to ensure compliance with the National Building Code of Canada is not new. This is something First Nations should already be doing. The certificate of building code compliance is simply supporting documentation for the declaration already provided to CMHC by First Nations; in other words, it is an extra level of assurance that the section 95 program requirements are being met.
First Nations were advised of the new certificate requirement earlier this year. Last week, in response to questions from several First Nations, CMHC hosted a webinar to further explain and discuss the certificate of building code compliance. More than 60 First Nation representatives from across the country participated on the webinar. One of those concerns is the perceived additional cost of doing the inspections. As I just noted, the requirement for First Nations to arrange for building code compliance inspections is not a new requirement — they should already be part of any building process for section 95 housing, so there should be no additional cost associated with the new requirement for a certificate. As well, building code inspection costs are an eligible expense under the section 95 program.
I would like to offer the committee one further clarification and it relates to the role of technical service providers hired by CMHC under the Native Inspection Services Initiative, or NISI. This is an ongoing initiative that is in no way affected by the new requirement for a certificate of building code compliance.
NISI was created in 1995 to support CMHC's lending to First Nations under the section 95 program. NISI's technical service providers are hired specifically to conduct reviews to verify the progress of projects for the purpose of advancing funds based on the percentage of construction completed. They also do physical condition reviews of houses built under the section 95 program.
These progress advance reviews are quite distinct from building code compliance inspections. Having said that, some technical service providers may also be qualified building inspectors and may be directly engaged for this purpose by the band council. This is a separate relationship between those parties and does not involve CMHC. Progress advance reviews will continue to be required by CMHC going forward.
[Translation]
I hope my opening remarks have provided some clarifications on issues that have been before the committee in recent weeks. Thank you again for inviting me to be here today. I would be happy to answer any questions you may have.
[English]
The Chair: Thank you very much, witnesses. I'm going to take the chair's prerogative and get a few questions on the record first, given the short time we have.
To Mr. MacArthur, we've just travelled to First Nations communities in Nova Scotia, and we heard that delays in funding made it very difficult for them to meet deadlines for building houses. In fact, some communities needed to hire security guards to protect unfinished houses against vandalism and theft of materials.
The additional certification requirements and the need to provide evidence of these to CMHC before funding is released are understandable. But I would like to ask if this might not result in more delays in the construction process. If so, have you considered any measures to be put in place to mitigate this possible outcome?
Carla Staresina, Executive Director, Assisted Housing, Canada Mortgage and Housing Corporation: I'll answer that one.
This is not an additional requirement. This would have been in place throughout all of the section 95. The required inspections that the First Nation needed at the three stages were signed declarations. All we're requiring now is additional documentation.
Regarding the inspections the First Nation was doing, as the authority with jurisdiction, we're requiring the backup documentation for that — the certificate of code compliance. It shouldn't add any length to the process.
The Chair: Okay. We'll certainly hope so. Thank you.
I'm going to ask this question of CMHC, and it's a bit of a detailed question, so I will ask you to follow up with the committee if you could, please. I just want to get it on the record, with the committee's indulgence.
This is about the Native Inspection Services Initiative program, NISI. It was developed in 1995 "to provide greater First Nation involvement and inspections for CMHC programs, and to help build First Nation inspection capacity." That is according to CMHC documents. It was designed to transfer the on-reserve housing inspection function from CMHC to First Nation inspectors.
I have a list of questions here that I would like you to follow up with the committee about.
First, please describe the history and current status of the NISI program. Second, in your view, did you achieve a successful transfer of on-reserve housing inspection functions from CMHC to First Nation inspectors? Please explain that.
Third, how much funding is currently allocated to NISI on an annual basis? Four, is the current level of funding expected to change in the near future, and if so, why? Fifth, what services, if any, is NISI currently providing to First Nations communities? Finally, are there any plans to extend, modify or discontinue the program? Please explain your answer.
Please follow up through the clerk on those questions.
Senator Baker: Thank you, witnesses, for your excellent presentations.
I would like to ask my question of Ms. Murphy. You did an excellent job of outlining a very serious problem that exists in this country, the requirement — it appears to be a requirement; I don't know where the requirement came from — in the block funding that a First Nation receives — the amount of money for education, then social and then infrastructure. Generally speaking, it is those three categories.
You're responsible for a section of the second category on social. The standard must meet the provincial standard, as you've outlined. The Treasury Board standard is not exactly a representative of the provincial standard but is reasonably approximate. Your national policy was always approximate. I forget the exact word that's in your national policy — it always was, perhaps, up to the Auditor General's report.
But it appears to me that we now have a policy to try to mirror the provincial standard, which as you've just pointed out to us is extremely hard to do. It is apples and oranges. Your heating bills on-reserve — a person living in a place that has holes in the wall will be different than someone who lives in a provincial housing unit in a city. These things are subtracted from the social assistance given to that person.
Over the years, I read some case law on this. One of the most recent ones was Simon v. Canada (Attorney General). I see that you recall that case. In Simon, the Federal Court said that extreme damage or undue harm would be done to those people living on reserves if the provincial standard was followed in the province of New Brunswick. You recall that case?
What is the policy of the department now? You appear to give the reasonable approach that we can't mirror something — that you can't compare to for people who live on reserves. So what is your current policy? Are you still pursuing the policy that it's got to be what the Auditor General said — it has to mirror the provincial standard — or not?
Ms. Murphy: We don't use the word "mirror" in our policy.
Senator Baker: No, that was my invention. Sorry.
Ms. Murphy: The policy that we operate under in the Income Assistance Program, which includes shelter allowance — and this goes back to 1964 — was to meet and align to provincial standards. That includes rates and eligibility. The department can't mirror all the provincial programs, because the department does not have all the tools and all the programming that provinces offer. Some of the things that would go to support an income assistance recipient, or programs that New Brunswick might offer, for example, would come out of other ministries.
So we have a set suite of benefits we can pay through the income assistance portfolio.
The term I think you're referring to is that there has been the notion of "reasonable comparability."
Senator Baker: That's the term.
Ms. Murphy: That term entered our policy lexicon in the late 1990s or the early 2000s. We use it because we could not expect First Nations in the delivery of income assistance to completely mirror everything that is in an income assistance program under regulation and legislation within the province in which they reside. We don't have all of the tools and the programs within our program suite.
That's where the notion of "reasonably comparable" came from. A perfect example is that the provinces over the last 15 to 20 years have been moving from a passive to an active assistance approach, whereby if someone is eligible and capable of working, they put them into a mandatory action plan and support them to transition to employment.
We could not ask First Nations, at the time that provinces were making this change, to do the same, for funding reasons, for their capacity reasons, for other supports not being there to help actually support that new sort of approach that provinces were adopting. We said, "You need to be reasonably comparable."
There was never, though, the policy decision to not have alignments to rates and eligibility. When you talk about the Simon case in New Brunswick, it was about matching rates and eligibility, and not necessarily that whole suite of programming that might be offered.
In terms of how we got into the discussions on program management in the Simon case, it was about trying to make sure that income assistance benefits were paid to eligible recipients, and that recipients were receiving benefits that aligned to provincial rates.
There has been, over a number of years, derivation from that in the Maritime provinces, less so in the rest of the country, where First Nations were more aligned to the provincial rates and eligibility. The court action ensued, which has had a ruling and is under appeal. We continue to work with First Nations in the Maritime provinces to see how we can transition them and improve income assistance programming in those Maritime provinces.
Senator Baker: They have that under the appeal, the Department of Justice.
Ms. Murphy: That's right. It has been appealed.
Senator Baker: But you've just given a great defence. Congratulations; excellent presentation.
Senator Raine: It's a very complicated issue, housing on reserves, and the way it's financed and the way it has evolved over many years.
We have been listening to testimony from various stakeholders in the process. In their testimony before the committee, the Atlantic Policy Congress and the First Nations National Building Officers Association raised questions about the need for liability insurance for compliance inspections.
Do you agree that liability insurance is necessary for compliance inspections, and if so, why? Who would need to be insured for liability arising out of compliance inspections? Will it be the band and council, the inspectors or both? Who currently assumes the liability for housing deficiencies arising out of housing that does not meet basic code requirements?
Mr. MacArthur: The First Nation is the jurisdiction with responsibility for the housing on-reserve. As the jurisdiction, they are the ones who are responsible. The First Nations are responsible for hiring services of qualified inspectors, and they should assure themselves that the services they are receiving have the appropriate insurance in place. It's a good business practice. Our expectation would be that the First Nation would be making sure that they're satisfied that the appropriate insurance is in place.
Senator Raine: Do you have a template for that kind of procedure? I think in some First Nations there might be a lack of capacity for managing the inspection process. Are there provisions of templates and guidance provided by CMHC?
Ms. Staresina: A template for the inspection process and what would be required for liability, we have always worked with First Nations on Aboriginal capacity. As mentioned, we'll get back with all the written questions on the NISI and the history. But we definitely could, and have, explained what inspections are required, at what stages of construction, that sort of thing. Liability insurance and what is required by the professional, those are typically set by the industry. As Mr. MacArthur said, the First Nation has the jurisdiction and would be responsible for making sure that, for code compliance, they have the necessary liability insurance.
The Chair: I'm going to jump in and quickly ask a follow-up to AANDC. It's about your statement in your June 2013 follow-up to the evaluation of the Shelter Allowance Program about the considerable inconsistencies in practices across regions and fundamental challenges with comparability between on-reserve and off-reserve regimes.
You've addressed this this morning to some degree, but could you follow up with the committee, through our clerk, and please describe the regional differences in the Shelter Allowance Program and what accounts for these differences, please?
Colleagues, we just have a few minutes. I have Senator Meredith and Senator Moore. Maybe you could put your questions on the record. We may not have time to get them answered.
Senator Meredith: Thank you so much, Mr. MacArthur and Ms. Murphy.
Ms. Murphy, my question is to you. On page 8 of your presentation, you talked about transition to employment in youth 18 to 24. Can you talk to us about the programs that are involved to get these young people working so they can contribute to the housing needs on-reserve? How many youth have been involved in this program or are going to be involved in this program?
Mr. MacArthur, with respect to the rates being charged under section 95 in terms of CMHC lending rates, please explain that.
Then you talked about AANDC, and our chair asked pretty much all the other questions. But with respect to the compliance, in the absence of codes, what is CMHC doing? You talked about NISI, the group that is tasked with ensuring that there is full compliance, but in direct compliance of the code. We've heard the horror stories of doors not being hung properly, shingles not being put on properly and sewage being backed up and so on. If you are funding these homes, what exactly are you doing to ensure there is compliance? Are you physically going out and looking at these homes?
The Chair: Thank you, Senator Meredith.
I'm going to ask, because of the time frame, if the witness would kindly follow up with the committee with written information, please. I thank you for your indulgence on that. I did ask detailed questions on the NISI program.
I do want to give Senator Moore an opportunity.
Senator Moore: Mr. MacArthur, in your presentation, you make it clear that the obligation for First Nations to ensure compliance with the National Building Code is not new. This is something First Nations should already be doing. When did it become a requirement for First Nations to meet the National Building Code of Canada?
With regard to NISI, we heard from John Paul of the Atlantic Policy Congress of First Nation Chiefs. He's the secretary there. He said there is no funding available to train First Nations peoples to become NISI inspectors. I'd like to know why not, because it would obviously provide jobs and self-reliance for the individual First Nation.
Ms. Murphy, you talked about the current status of housing, and you repeated the term "First Nations readiness." I would like to know what that means and how it carries across the country.
There is one other thing: In 2013, subsidies were provided for some 28,800 households on reserves. More than 500 new units were also committed in 2013.
I would like to know the breakdown of those, how they were decided and what provinces they were allocated to.
The Chair: Thank you for waiting for that answer, Senator Moore.
I have one last question in closing, for CMHC, please. Again, this would be for follow-up, please.
According to your written brief, building code inspection costs are an eligible expense under the section 95 program. Does this include potential travel costs to bring in a certified inspector in rural and remote communities? Will the certified inspector have to visit the community three times during the building process? If so, is this a realistic expectation for remote communities?
Thank you to the witnesses for following up.
Thank you, colleagues, for keeping this short. I think we've covered a lot of ground, or will when we get to follow-up. Colleagues, thank you very much, all of you. We got a lot done this morning. The meeting is adjourned.
(The committee adjourned.)