Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 12 - Evidence - February 28, 2012
OTTAWA, Tuesday, February 28, 2012
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-6, An Act respecting the election and term of office of chiefs and councilors of certain First Nations and the composition of council of those First Nations, met this day at 9:33 a.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on either CPAC or the web.
I am Senator Gerry St. Germain from British Columbia, and I have the honour of chairing this committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. Today we will be continuing our consideration of Bill S-6, respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations.
Appearing today are representatives from the Atlantic Policy Congress of First Nations Chiefs Secretariat and the Assembly of First Nations.
[Translation]
Before going to our witnesses, I would like to introduce the committee members who are with us this morning.
[English]
We have Senator Dyck from Saskatchewan, who is vice-chair of the committee, Senator Campbell from British Columbia, Senator Greene Raine from British Columbia, Senator Brazeau from Quebec and Senator Demers from Quebec.
Senators, if you would be so kind, please join me in welcoming our witnesses.
Senator Campbell: On a point of privilege, excuse me for horning in here, but I think it should be brought to the attention of all who are watching that last Friday night Senator St. Germain received the Lifetime Achievement Award at the nineteenth annual National Aboriginal Achievement Awards. I will not go into the 40 pages that they read out on his achievements in life, but I would like it acknowledged. Members of the committee were there, as was Chief Wilson-Raybould. I want to bring that to the attention of everyone who is viewing. It is an incredibly prestigious award and one that is most assuredly well deserved.
Honourable senators: Hear, hear.
The Chair: Thank you. It is the most humbling experience I have had in my lifetime. I think the tribute to me just reflects the good work that this committee has done and all senators from all sides in the entire institution working with our Aboriginal peoples right across the country. Chief Jody Wilson-Raybould was there, as were others. It was a great evening for the Aboriginal community and our youth. That is what it is all about. If we can inspire them, it will be mission accomplished.
Thank you Senator Campbell. Join me now, senators, in welcoming the Atlantic Policy Congress of First Nations Chiefs Secretariat. We have Co-Chairs Chief Candice Paul and Chief Lawrence Paul. They will be making presentations.
Joining them from the Assembly of First Nations is Chief Jody Wilson-Raybould, British Columbia Regional Chief of the AFN, and with her is her senior analyst, Karen Campbell.
Witnesses, I believe it has been decided that the Atlantic Policy Congress of First Nations Chiefs Secretariat will go first.
Candice Paul, Chief, Co-Chair, Atlantic Policy Congress of First Nations Chiefs Secretariat: Thank you and good morning, senators. I would like to send our congratulations on the award. I am Chief Candice Paul. I am the chief of the St. Mary's First Nation in Fredericton, New Brunswick, and I am also the co-chair for the Atlantic Policy Congress of First Nations Chiefs Secretariat. I have had the honour to serve my community for the last eight years as chief and as the New Brunswick co-chair of APC for the last two years. With me today is Chief Lawrence Paul, the chief of the Millbrook First Nation and also my colleague as co-chair of APC. We also have the executive director, John G. Paul, and Krista Brookes, our senior policy analyst and legal advisor.
We are here today to speak on behalf of the Atlantic chiefs regarding our support for Bill S-6.
Our member chiefs do support Bill S-6 as it currently stands. We feel it reflects the recommendations in a resolution we adopted in January of 2011, asking the minister to draft legislation that would present a strong alternative to the Indian Act election system.
One reason we decided to champion electoral reform is because, at 75 per cent, Atlantic Canada has the highest percentage of First Nations who hold elections under the Indian Act system. We believe that if we could build a better election system, the majority of our First Nations would benefit immediately.
We first became interested in election reform in October of 2008, when we passed a resolution asking the minister to amend the term of office under the Indian Act election system from two to four years.
As we continued to discuss this change, both among ourselves and with the then Department of Indian Affairs, we realized that the Indian Act election system had other fundamental weaknesses that needed to be addressed. The department's willingness to support further discussions on this matter presented an opportunity to elaborate a more extensive reform.
At the current time, approximately 40 per cent of First Nations in Canada hold their elections pursuant to the Indian Act. These election provisions are outdated and problematic. Not only did we hear this when we were engaging with our own constituents on this question, but we also heard it when we were discussing our recommendations with First Nation groups in other parts of the country.
Specific issues centre around the following: The term of office for elected band councils under the Indian Act is two years. This short length of term places First Nation communities in an almost continual state of electioneering, and it undermines the band council's stability as well as their efforts to develop long-term projects. The weak process for the nomination of candidates can result in a nomination of many candidates, sometimes over 100 for one election. The mail-in ballot system is open to abuse. The appeal process to the Minister of Indian Affairs and Northern Development is paternalistic, complicated and often takes too long to produce findings and a final ruling. The absence of defined election offences and associated penalties under the Indian Act allows alleged cheating and other related activities such as the selling and buying of votes to go unpunished.
As I said earlier, the Atlantic Policy Congress of First Nations Chiefs Secretariat has taken a keen interest in looking at ways to stabilize and improve upon First Nations governance through a stronger and more modern election system. With the support of Aboriginal Affairs and Northern Development Canada, the APC undertook research on the issues of band council elections. After having heard from First Nation leaders, governance technicians and community members in their respective regions, we came forward with our recommendations. I would like to outline for you how we went about developing these recommendations.
We struck a working group to conduct research and develop options. We published articles in widely circulated First Nations magazines and we developed a Facebook page, all of which invited First Nation members in the whole region to share their views and complete a survey. The working group presented their research options and all the feedback to the group of governance experts and electoral officers and, of course, to the chiefs themselves. With all the discussions and feedback received, we arrived at the definitive recommendations that we submitted to the minister.
The APC recommended the development of brand new opt-in First Nations election legislation and further provided recommendations for its content. For the most part, these recommendations are reflected in Bill S-6. Bill S-6 contains some of the same rules as the Indian Act election system along with some important differences. These are the following: The term, the length, is four years instead of the two-year term that exists under the Indian Act system; there are defined qualifications for candidates for chief and clear rules around the nomination process; there are clearly defined offences and penalties that will deter questionable election activities, especially those that take place around mail-in ballots; and the minister is not involved in the election appeals.
Although the APC did not recommend that a new election regime allow for a common election day among First Nations, it appears that the provision in the bill that allows a minimum of six First Nations to line up their terms of office is gaining interest among First Nations in New Brunswick.
I will now describe the key elements of Bill S-6 in more detail and explain our rationale for making the recommendations that are reflected in these elements.
First is the new opt-in legislation by band council resolution. The APC recommended that individual First Nations, if they so choose, could opt-in through a band council resolution. We debated a great deal on whether it would be preferable for the opt-in mechanism to be a referendum. We reached the conclusion that, although it is certainly an effective way to determine the will of the community, it is simply not cost-effective to consult the community in this fashion on all issues. Moreover, our experience with community votes is that First Nation voters tend to favour the status quo. Therefore, requiring a referendum to move to the new election regime would in fact act as a huge barrier for First Nations to reap the benefits of the four-year term, which is what we are trying to achieve.
Even though a referendum is not required, our chiefs have told us they would not make this type of decision without first engaging in some substantive way with their community members on this question. The APC recommended that the new election legislation provide terms of office of four years, making them comparable with most other governments in Canada. The Indian Act, in requiring election every two years, has created conditions of instability and has fostered divisions in First Nation communities. Most often the two-year term of office is too short to provide political stability for First Nation governments to plan for and implement long-term initiatives and to build a proper foundation for community development before they face re-election. The two-year term is especially difficult and challenging for those elected to a band council for the first time. New councillors need time to learn their responsibilities and the various projects that require their attention. Projects are often put at risk by the two-year election cycle and by the related high turnover of elected officials.
Under the Indian Act election system, anyone who is registered on the band list and is 18 years of age or older can vote. To be a candidate, to nominate or to second a nomination of a candidate for a councillor position, a person must be a qualified voter. We did not see the need nor did we recommend any changes here, and Bill S-6 imports these same qualifications. However, there are issues with the nomination and the eligibility of candidates under the Indian Act that we believe need addressing. Under the Indian Act provisions the qualifications for councillor candidates are not mirrored for candidates for chief. In fact, there are none. Furthermore, one person can be nominated for both the chief and a councillor position and there is no limit to the number of candidates that one person can nominate.
Frivolous candidates, individuals without the serious intent of running, can also be a problem. No one is discouraged from letting their name stand for election once they are nominated. In fact, their name will automatically appear on the ballot unless they withdraw in writing. Names may appear on the ballots without the person even knowing they were nominated.
To deal with these issues, and based our research of other election systems including those of First Nations, we recommended that the same qualifications for councillor positions be applied for candidates for the position of chief and their nominators. In other words, only First Nation band members aged 18 or older may nominate and be nominated for the position of chief. We also recommend that no person could run for both a chief and a councillor position in the same election and that no person can nominate more candidates than there are positions available for election.
With respect to the nomination process itself, we recommended that persons who are nominated be required to accept their nomination in writing or their name will not appear on the ballot, and that individual First Nations be provided with the option of charging a candidate fee up to $250.
It appears that Bill S-6 encapsulates all these recommendations. It is now my honour to pass on to my co-chair, Chief Lawrence Paul.
Lawrence Paul, Co-Chair, Chief, Atlantic Policy Congress of First Nations Chiefs Secretariat: My name is Chief Lawrence Paul from the Millbrook First Nation in Nova Scotia. Good morning senators, ladies and gentlemen and other government personnel. It is an honour to be here today to express our opinions on new election procedures.
I would like to start with item 4, mail-in ballots and advance voting. Through research and discussion, the APC heard there have been abuses with the mail-in ballot system. Since no one sees the voter cast his or her vote on a mail-in ballot, it is often difficult to ensure that the person filling and mailing the ballot is indeed the proper voter. A number of off-reserve voters who have little interest in their First Nations election process but have received a mail-in ballot because their name and address are kept by the First Nation are alleged to have sometimes sold their ballots to others. This type of abuse could be reduced if the new legislation allowed for greater control of the distribution and return of mail-in ballots. The rules could also place the responsibility on the interested voters to contact the electoral officer to have a mail-in ballot sent to them. This would ensure that ballots are sent only to interested voters. To reduce the number of electors who would need to vote by mail-in ballot, we also recommend that the holding of advance polls be permitted.
Although the mail-in ballot scheme and advance polls are not outlined in Bill S-6, there is a regulation-making power, and we are optimistic our suggestion will be seriously considered at the time the regulations are drafted.
Appeals of band council elections: Under the Indian Act, election appeals are received, reviewed, investigated and decided upon by the minister and his department. Numbers given by the department show that 30 per cent of all elections under the Indian Act have been appealed, which amounts to 40 elections per year, give or take. Each year, usually no more than five of the appeals result in the overturn of election, very few of which occur in the Atlantic region. These numbers illustrate a fundamental problem with the way appeals are currently dealt with.
In close to 90 per cent of the appeals launched, the allegation of wrongdoing is either unfounded or is deemed to not have affected the outcome of the election. The problem is that it usually takes months, if not over a year, for these conclusions to be reached. While an election appeal is outstanding, it is very difficult for a band council, whose very election is called into question, to govern effectively, make long-term plans and key decisions, and initiate projects. We think the problem lies in the fact that the appeal process is simply too easy to engage by community members whose motives may be questionable. Other issues with the appeal process under the Indian Act are that it lacks rigour, transparency and procedural fairness. The role of the minister in investigating and deciding upon election appeals is paternalistic and an inappropriate intervention in the internal affairs of the First Nation.
The APC initially recommended that the role of the minister and his department in election appeals be eliminated in favour of the establishment of a new independent tribunal that would have powers set out in the legislation to investigate and decide upon appeals. The APC also recommended that time frames for conducting investigations and issuing decisions on appeals be established, and persons wishing to launch an appeal be required to pay a fee up to a maximum of $250.
However, we recently became aware of the fact that the federal, provincial and municipal elections courts handle these appeals and have the power to impose penalties and overturn election results. The APC is comfortable with this alternative option for addressing election appeals.
Election offences and penalties: As previously noted, the Indian Act election system does not set out election offences or attach any related penalties. This is a major weakness because people who engage in dishonest and corrupt election practices are not called into account. We recommended that this new election legislation define offences — such as buying and selling mail-in ballots and offering gift or favours for individual votes — and attach penalties to the defined offences. This arrangement exists in federal, provincial and municipal elections laws, and even allows prosecution to be launched outside of the election appeal process. We are pleased to see that Bill S-6 defines election offences and penalties similar to those found in the Canada Elections Act for vote buying, intimidation and interference. Finally, First Nations elections will be accorded the same importance in Canadian law as federal, provincial and municipal elections.
Recall of elected band council members: Under the Indian Act and its regulations, there is no provision for First Nation voters who have lost confidence in their leaders to take action to recall elected council members and have them removed from office. However, in British Columbia, and in many community or custom election systems, voters are able to recall their elected officials.
The APC recommended that the new First Nations elections act allow for the majority of a First Nation's voters to recall one or more elected council members during the four-year term of office, for reasons such as excessive absences from council meetings, poor performance, conflict of interest or disreputable behaviour. We recommended that petition for the recall and removal of an elected official from office be allowed only at the two-year point of a four-year mandate, and only within 30 days of that two-year point. This will ensure that the stability a four-year term could achieve is not ruined by leaders constantly being recalled. Although this kind of mechanism does not exist in most municipal, provincial or federal election systems, it was thought to be a good way to address the concerns of some individuals who feel that four years is a long term for a leadership that is not doing a good job.
Although the bill does not provide a recall mechanism outright, proposed section 41 provides a regulation-making power for the Governor-in-Council to address recall.
This submission on Bill S-6 to the Standing Senate Committee on Aboriginal Peoples is based on our analysis of how well Bill S-6 responds to the recommendations put forward by our organization when we engaged our First Nations members on the issue of elections. We have called for the design and implementation of a new opt-in First Nations election act and resulting regulations that would provide an effective and modern system for governing elections for the opting-in First Nations. As evidenced by the recommendations, First Nations are interested in having free and fair band council elections that support stable, effective and accountable First Nations governments, as well as supporting the individual rights of their members.
Thank you for providing us with this opportunity to voice the reasons we support this bill. We ask that you lend your support as well. We strongly believe that all First Nations in Canada need other options for addressing these important and pressing governance matters that currently face their communities.
Jody Wilson-Raybould, British Columbia Regional Chief, Assembly of First Nations: Thank you, Mr. Chair and honourable senators. It is my pleasure to be back here to present on Bill S-6. Before I start I wanted to also extend my congratulations to the senator for the Lifetime Achievement Award. It was a pleasure to be there in person to see you accept your award, senator. It was a great night.
I am speaking on behalf of the Assembly of First Nations in my capacity as chair of the governance portfolio as well as being the regional chief for British Columbia, and being able to answer questions with respect to the situation with our 203 First Nations in British Columbia. I also have the ability and sit here as a council member in my own community, a council member elected under a custom election code.
Where First Nations or groups of First Nations lead federal legislative initiatives that are optional for First Nations, which is the case with Bill S-6, the First Nations election bill, it is appropriate for the AFN to support such initiatives. I want to acknowledge the Atlantic Policy Congress for their practical approach in the development of this bill and acknowledge the submissions made today. I also recognize that the Assembly of Manitoba Chiefs have some challenges with respect to this legislation, but they will be presenting their views in the next number of days.
We therefore speak in support of Bill S-6 and those First Nations that want to take this step, but do so with a request that an amendment be made to clause 3, where subclauses 3(1)(b) and (c) permit the Minister of Aboriginal Affairs to add the name of a First Nation to the schedule without its consent; this is not appropriate. First Nations are in a period of transition and moving towards increased autonomy and self-government. Our approach to governance reform, our collective strategy, is to create the foundations for good governance that will support the transition of our nations from essentially administering federal programs and services on behalf of Canada or self-administration under the Indian Act to self-government where appropriate accountability is to our citizens.
During last month's Crown-First Nations gathering, much was said about getting rid of the Indian Act and the challenges we have had in doing so. These challenges were expressed in a number of varying metaphors — the Prime Minister's Indian Act tree with deep roots and the national chief's boulder to be pushed aside. In my province, Chief Geronimo Squinas from the Red Bluff First Nation used a different metaphor at a recent B.C. First Nations meeting. As we were discussing the continuum of governance options that are available to First Nations as they move away from the Indian Act, Chief Squinas, remarking on the fear that exists in our communities, likened the Indian Act to an inflated balloon. If you take a pin and pop the balloon, it explodes, and what you are left with? The Indian Act is gone. The question is, what takes its place?
The answer and the work that we are all engaged in, to continue the metaphor, is to untie the Indian Act balloon and slowly let the air out at a nation's own pace based upon their own priorities and directions from their citizens so that eventually the air is let out of the balloon and what replaces it is self-government.
In letting the air out of the balloon, there are a number of options or incremental steps towards governance that can be taken. These are the continuum of governance options. These options are expanding, and Bill S-6 is one example, one aspect of governance, the selection of the governing body. To date, every First Nation that has moved along the continuum of governance and is self-governing has eventually taken over full control of its own elections and developed an election code or an election law. Election laws are quite varied.
There are, of course, many ways to design a government. Research and experts tell us that the quality of governance much more than its specific form has a huge impact on the fortunes of any given society. Ultimately, as all First Nations will be self-governing once again, they will, as part of their self-governing arrangements, adopt election rules. Some will use the rules set out in custom election codes, some may use Bill S-6 rules and others will follow different rules altogether.
No matter the content, these election rules will be set out either in the nation's constitution or in an election law made pursuant to the constitution and their inherent authority to govern.
I say this because it is very important for this committee to understand how "stepping stone " legislation such as Bill S-6 that comes before you and addresses aspects of First Nations' governments fits into and supports a vision of moving along the continuum of governance so that once, to use our metaphor, all the air has been let out of the Indian Act balloon, we are and have strong and self-determining First Nations.
Unfortunately, the power set out in subclauses 3(1)(b) and (c) of this proposed bill does not support the view of the continuum and is actually an example of an inappropriate use of federal legislation, an inappropriate use of federal legislation I referred to at the First Nations-Crown gathering.
These subclauses allow the minister to force a First Nation to come under the election rules set out in the act if either there is a protracted leadership dispute or the Governor-in-Council has set aside an Indian Act election because there was a corrupt practice.
These provisions essentially give the minister the ability to impose core governance rules on a First Nation, which, if ever used, would be resented by that First Nation, would not be seen as legitimate in the eyes of that nation, and would probably add fuel to an already burning fire.
Ultimately, each nation must, and will, take responsibility for its own governance, including elections.
At this point, one thing I would like to say is that there may be an unintended consequence of the bill that could lead to political and perhaps legal problems for a First Nation and Canada. This is the fact that Bill S-6 makes no distinction between a First Nation that at the time of scheduling follows the Indian Act election rules and a First Nation that has enacted and follows a custom election code. This could mean that a chief and council, by resolution only, could overturn a community-approved custom election code. This raises some flags, and it might be seen as a step back along the governance continuum in empowering community.
No doubt there will be some questions in our communities about whether there should be a local referendum to change the election rules, whether under the Indian Act or custom, and it would not surprise me if some communities, though not required under Bill S-6, will hold referendums.
Getting back to clause 3 and the minister's ability to add the name of a First Nation to the schedule without its consent, it is not just a political problem. If there is one aspect of the inherent right to self-government that I think we can all agree on that must be constitutionally protected under section 35 of the Constitution Act, it must be the ability of our nations to determine their own method of selecting leadership. Otherwise, section 35 is meaningless. If First Nations have this right, the ability to legislate this matter, we have to ask ourselves if Canada can, however well intentioned, legislate in this area and potentially infringe the right.
While practically some nations want such legislation, they need it to be part of a continuum towards full implementation of self-government.
We must all ensure the chances of successful challenges to the legislation are minimized. First and foremost, the legislation must be supported by First Nations as transition legislation that is not intended to be definitive of the right to govern but, rather, implementing aspects of the right to govern. Second, the legislation must be optional.
I believe Bill S-6 meets this test, with the exception of subclauses 3(1)(b) and (c), which I think may be successfully challenged as an unjustifiable infringement on a nation's right to govern.
Going back to Chief Squinas' balloon metaphor and taking it one step further, we must ensure that Canada, whether through legislation or policy, is not empowered to refill the Indian Act balloon. Part of the reason some First Nations may in fact be facing election challenges and facing protracted election disputes is not simply because of deficiencies in the election process but, rather, is symptomatic of more deep-seated governance problems of governing under the Indian Act. Selecting the governing body, elections, is only one aspect of core governance.
Among the fundamental building blocks of getting past the Indian Act are the hurdles we have to overcome, starting with rebuilding core governance in our nations. While this includes the rules for how we select our governing bodies, elections, it also encompasses how governing bodies make laws and consider them, including determining who our citizens are and their rights and, equally important, their responsibility; accountability of our governing bodies, however so constituted, back to our citizens; political as well as financial accountability; and some fundamental principles about how our nations view the world and approach governance, taking into account their distinctive cultures and traditions.
For our nations, answering many questions about core governance is part of the decolonizing process that must be take place within our communities. What is missing from our tool box to move beyond the Indian Act is an effective and simple mechanism for a First Nation to remove its core governance out from under the Indian Act when it is ready, willing and able to do so. Many of our nations, particularly in my region, have looked to develop a community constitution to provide for core governance. This includes selecting the governing body, political and financial accountability, determination of citizenship, and other matters fundamental to ensuring strong, appropriate, accountable government. However, short of negotiating self-government with Canada or going to court, there is no practical way to implement a nation's constitution.
What we need as a fundamental building block, perhaps the first building block for many First Nations along the continuum towards full self determination, is enabling or governance recognition legislation that would recognize that where a First Nation has developed and ratified its own constitution, it can remove itself from a substantial portion of the Indian Act. This is of course not a new concept for the people around this table as such legislation has been introduced in the Senate before. We look forward to seeing such legislation reintroduced in the near future.
In conclusion, for nations that want to use them, there is no question that the election rules that have been developed in Bill S-6 and that will be expanded in regulations are superior and more thought through than those under the Indian Act. Finally, I want to say how important this governance work we are collectively undertaking is to our nations. Our success depends on it, culturally and economically. Ultimately, our peoples will once again be self determining. Until such time, your role as lawmakers in this period of transition is critical. Thank you for the opportunity to present. I look forward answering questions along with my colleagues.
The Chair: Thank you. As you know, Ms. Wilson-Raybould, the question of self-governance goes back quite a while. In 1985 I was a member of Parliament and I was standing in the Prime Minister's office. The Prime Minister said, "Gerry, you are an Aboriginal person. I have had the biggest disappointment in my life. " He said he offered the First Nations self-government and they rejected it.
Then came our Senate colleague Chief Walter Twinn, who was seeking to bring success to his people through economic development and various other aspects. He brought forward a piece of legislation that was pursued by him, then Senator Tkachuk and later by myself.
What I am leading up to is that at the time, First Nations people in this country were fearful of touching the balloon. It appeared they did not want to go close to it. This is my read on it from having worked on this piece of legislation. Unfortunately, we lost Walter Twinn. He died at quite a young age before he retired. He was a strong proponent of it, and there were accusations that this was a self-interest thing on his behalf.
Do you think that the First Nations people of this country are now prepared to accept the fact that we have to do something with the balloon sooner rather than later?
Ms. Wilson-Raybould: Thank you for the question. I recognize the enormous efforts made over the past 20 to 30 years in this area. I would submit that we have arrived in a place in time where we as First Nations are, in our own ways and to varying degrees, advancing governance reform in our own communities. That governance reform is looking at the core institutions of First Nations governments and, based upon the priorities of our communities and how we want to move forward and when, is engaged in varying degrees of governance reform, whether it be taking advantage of provisions under the Indian Act or sectoral governance initiatives to do so, in land management or otherwise, to negotiating comprehensive self-government arrangements.
For my province, approximately 70 per cent of our First Nations are engaged in some form of governance reform. The number decreases as you go across the country. However, the conversation at the Assembly of First Nations with our chiefs is about finding new ways to move away from the status quo. Yes, there is still that fear that exists among our communities about changing the status quo, but the status quo is not good enough anymore. Led by our communities, I believe we are moving in that direction, and it is different than what it was 20 years ago. We have gained a lot of experience in our communities; we are sharing the successes in governance reform and are supporting one another to move down that continuum of governance, not to pop the balloon but to build up that strong governance reform and support legitimized by citizen in our communities to actually let the air completely out of that balloon.
Senator Ataullahjan: Thank you, chair. My question is for Ms. Paul. We know there was an intensive national engagement process with the Atlantic Policy Congress of First Nations Chiefs Secretariat as well as the Assembly of Manitoba Chiefs.
I am concerned about the level of feedback received from the First Nations in Ontario and Quebec. What type of feedback have you heard from these regions, if any? Do you feel there was substantial engagement of First Nations in those provinces?
John Paul, Executive Director, Atlantic Atlantic Policy Congress of First Nations Chiefs Secretariat: I can answer that because I presented the bill and proposals at the Chiefs of Ontario assembly during the winter when we were doing the engagement. We went across the country to different events where we were invited, based on the availability of Assembly of Manitoba Chiefs staff or myself and my staff. Between the Manitoba chiefs and ourselves, we split the country up.
The Chair: Could you identify yourself?
Mr. J. Paul: My name is John Paul. We did not do the Quebec region.
The Chair: Chief Paul, if we are going to have these people comment, we would like them to come to your microphone so they can be covered on television. The cameras are unable to pick them up from the location they are in.
Senator Ataullahjan: Did you say you did or did not have consultations in Quebec?
Mr. J. Paul: We did not.
Senator Sibbeston: My first question is to Ms. Wilson-Raybould with respect to clause 3 that she raised. I have been involved in elections as an MLA and I won by 85 per cent, and also by 17. What are otherwise very rational people can become very irrational as a result of elections. It is an emotional process. It seems to me that these provisions are there where the minister sees that there is a protracted dispute. I know these things can go on for years in some cases. The lawyers who appeared before us and who have experience in this area say any dispute between band members regarding an election is very costly. I am somewhat sympathetic with a process of ending a protracted dispute. The alternative to that would be having some kind of a tribunal deal with it.
If you could respond to that, recognizing in this setting we are rational, but out there in elections things become crazy, emotional and irrational. This is an attempt to deal with that silly and crazy situation.
Ms. Wilson-Raybould: Thank you for the question, and congratulations on getting elected by 85 per cent of the vote. That is excellent.
As I indicated in my presentation, of course we recognize that under clause 3 it is optional for a First Nation by way of passage of a band council resolution to enter into the provisions of Bill S-6. What is objectionable is subclauses 3(1) (b) and (c). Subclause (b) particularly takes away that optional component in that the minister can compel or order a First Nation into these provisions.
My view, and the truth, is that whether it results in a difficult situation or emotions running high, this is something First Nations need to sort out for themselves. Currently, the minister has options under the Indian Act to address these issues, but simply being able to impose on a First Nation is not an option.
Senator Sibbeston: My other question deals with Chief Candice Paul raising the idea of a tribunal. Our Senate committee, when studying the issue of First Nations elections, recommended in our report that some kind of a tribunal be set up to deal with elections, election appeals and so forth. I am certainly sympathetic to that. When the minister was here a couple of weeks ago, I raised that with him, but he did not really respond in a positive way.
Do you feel strongly that this is still something that should be pursued with a future amendment perhaps or something that, inasmuch as it is not in this legislation, should be in the legislation in the future?
Ms. Paul: Yes. Definitely we feel that a tribunal is an important part. Currently, an appeal system takes too long, and in order for healing to take place in your community, a tribunal system would hopefully be quick, have people who know First Nations culture and deal with things in a timely manner.
Senator Patterson: I would like to thank both presenters. I think there is clear advice and recommendations from the Atlantic Policy Congress of First Nations Chiefs Secretariat.
I would like to ask Chief Wilson-Raybould about her strong comments with regard to clause 3. I would not want to be part of promoting colonialism — we have had enough of that, including in the North — but I must ask you a couple of specific questions.
In clause 3(1), you said the problem with the minister adding the name of a First Nation to the schedule in certain circumstances is that it is done without the First Nation's consent. Have you skated over the fact that under subclause 3(1)(a), the First Nation council must have provided the minister with a resolution requesting that the First Nation be added to the schedule? Is that not getting the consent of the First Nation for the minister to act?
Ms. Wilson-Raybould: Thank you for that clarification. Certainly, in looking at clause 3(1)(a), it is the option of a First Nation by way of resolution to enter into or become scheduled to the act. Subclause 3(1)(b) is different in terms of the minister's looking at protracted disputes, which is not a defined term in the act, so it leaves a lot of discretion to the minister in scheduling that First Nation without their consent in this particular clause to the provisions of Bill S-6.
In my view, and picking up on the previous question, that goes against the consent of the First Nation. Certainly solving the challenges that we face, not in an overwhelming number of communities, but solving the challenges by providing a different option does not necessarily solve the problem; it could potentially create more of a problem.
Senator Patterson: At the risk of putting words in your mouth, are you saying that clause 3(1)(a) may be okay, but it is clauses 3(1)(b) and (c) that are the offensive provisions?
Ms. Wilson-Raybould: That is exactly what I am saying in terms of subclauses 3(1)(b) and (c). We would look to an amendment to strike these subclauses.
In reviewing Minister Duncan's testimony before this committee, he had indicated that he would never invoke these clauses unless there was a very intractable situation, and then he repeated he would never do that. Certainly we want to ensure that no subsequent minister would do that, either.
Senator Patterson: One final supplementary question. Thank you for that answer. You answered a question I was going to ask, which is what you are recommending; you are recommending that subclauses (b) and (c) be struck.
I was intrigued that you did say, if I understood you rightly — and I am not trying to give you a hard time — that there are options under the Indian Act that allow the minister to deal with these situations. I am not sure what you are referring to; I am not familiar enough with the Indian Act to know.
I guess I am curious. You have spoken eloquently against continued colonialization and for moving along the road to the continuance of governance, but are there provisions in the Indian Act that could be used to fix up problems like a protracted leadership dispute or corrupt practices? Are those less colonial than what is proposed in subclauses (3)(1) (b) and (c)? Is the minister not acting under other provisions of the Indian Act with the same kind of colonial approach that you have eloquently criticized?
Ms. Wilson-Raybould: Thank you for the supplemental question. The Indian Act as a piece of legislation certainly has created enormous challenges within our First Nations.
In working to move away from the Indian Act, First Nations are seeking alternatives in developing their own custom election codes, which are codes that take a significant amount of time to develop in communities and are legitimized by their citizens, or looking to alternatives to improve certain provisions that are contained within the Indian Act system. Those are reflected in the APC's submissions here today, in terms of expanding the election term to four years, looking towards a common election date, and looking at nomination processes and mail-in ballots.
In response to your question around colonialism and the minister injecting or imposing upon First Nations, we are looking to move away from that. We are looking to eliminate the minister from imposing provisions in our lives, but to support First Nations in developing their capacity. Of course we look to our Crown partners to support First Nations in doing so and to support our First Nations in developing what is appropriate for them in their own elections, and even beyond elections, fundamentally developing their core institutions. We are looking to First Nations — and this is a challenge that all governments face — to develop rules to resolve disputes in appropriate ways when they are encountered in our communities. That could be, as was suggested in the Senate report and as was suggested by the AMC and the APC, looking to traditional ways or alternative dispute mechanisms to resolve issues when they arise in and around elections, whether that be in a tribunal setting that is supported by First Nations and developed by First Nations, commissions or otherwise. In any case, we look to eliminate the role of the minister in imposing systems on our communities.
Senator Dyck: You made very clear presentations about the advantages of Bill S-6. I particularly liked the analogy of the Indian Act being like a balloon. I might propose that perhaps that balloon is overinflated or even twisted. You get those balloons that you twist into odd shapes. It is not really a workable piece of legislation in modern times.
I was curious about the clauses with regard to the appeal processes looking at whether there should be a tribunal versus the court system as outlined in the bill. When the minister was here, I believe he indicated that, in any case, even if he were the person involved making the final decision, that decision could still be appealed to the courts.
Under the Indian Act, if there is an appeal, apparently it takes a long time and the minister is responsible, so you get a protracted dispute. Do you think it is any shorter by going directly to the court system? In terms of time, is the provision in Bill S-6 better than going through the minister or going through a tribunal? Would a tribunal decision also be subject to an appeal through the courts? Is the court system really the final option no matter which way we go?
Ms. Wilson-Raybould: I would submit ultimately the court is the last point of clarification or for seeking declaration, so there is always the option to go to the court. I can speak from my own community's perspective regarding appeals. We have our own custom code, and when we have disputes around elections, which has never happened, we go to our council of elders. The procedures of our council of elders are enshrined in our election code.
I have heard from First Nations, whether in Manitoba or in discussions with my friends here and in hearing their testimony, that there should be the potential to look at options other than necessarily going directly to the courts, to look to First Nations-driven solutions and options to create an intermediary or tribunal or commission to be able to aggregate First Nations, if possible, for looking at elections, building capacity and providing overview for disputes that may arise. There should be that potential for First Nations to do that of their own accord, to seek to resolve elections disputes much like First Nations have done who have developed custom election codes. They have put in place alternative provisions, based upon culture, tradition and priorities, to ultimately going to the courts.
Mr. J. Paul: The ultimate goal that we are trying to achieve is to improve the election process, including the appeal process. At the end of the day, whatever it is, someone can still end up taking you to court, whether it is through what is identified in the legislation, or if they do not agree with the tribunal, it could end up in the court system again. Our perspective is trying to be sensitive and respectful of our communities, their needs and their aspirations to come up with the elections and the appeal process that work. We know now that under the Indian Act it does not work, and we are trying to fix it.
As she said about the custom approaches, they have mechanisms in those custom appeal processes that do include dispute resolution, but even with those custom systems they could end up in court as well if it is not resolved. If someone still does not agree, they could still revert to the courts.
Senator Dyck: Chief Wilson-Raybould, you mentioned that Bill S-6 makes no distinction between those First Nations who hold elections under the Indian Act versus those who hold custom code elections. Why is that a problem?
Ms. Wilson-Raybould: I alluded to that briefly in my opening comments. From my reading of the bill and all the information around it that has come out, a First Nation can, by way of a band council resolution, apply to become a schedule to the act. There is no distinction between nations under the Indian Act or those under custom codes. In my thinking and view around that, coming from a custom election community, we went through years and years of discussions around our custom code and community engagement. Ultimately, our code was legitimized by our citizens by way of a referendum.
In reading the act, the concern that I had was, for example, and I have great respect for our chief, a chief and a council that came in that wanted to become scheduled to Bill S-6 would be able to do so and pass a band council resolution, which has a much less onerous procedure than a referendum. I believe in our custom code there are provisions around that that prevent a First Nation from being able to do that, but the chance still exists out there of having a resolution trump a referendum.
It was perhaps an unintentional consequence of the drafting, but I just wanted to point that out as a concern.
Senator Dyck: Chief Paul, why would you prefer Bill S-6 as opposed to going the custom code route? You did an excellent job of saying why this is superior to the Indian Act provisions, but why would you not go the custom code route?
Mr. J. Paul: We did talk to the people about custom codes in our region, which are about 25 per cent of the communities, and other communities that have the custom codes. When they created the custom codes, they went through the rigorous process they went through. The problem we found or that was identified in some cases is that these codes, to some degree, have not been updated since their origin and are now falling behind as legal doctrine changes over time.
A big issue that we saw is that the custom codes and the hard work communities do try to cover all possible angles when they are preparing those codes. They cover every possible angle. However, the problem is that, in our region, since the first number of communities went into custom codes, nobody has followed. We tried to figure out what was going on with the other ones and why they did not go. Getting a custom code is an onerous process, and the council and the community had to be committed, because it takes months and years to go through the process to allow the 100 per cent engagement and 100 per cent participation. Everyone is involved in the understanding of the custom code.
I believe that at the end of the day we must respect those things, but one thing that the custom code communities are telling us, with the Charter and new changes in the law, is that some of them are concerned that there will be challenges relative to the custom codes based on legislation that has changed over time. That puts some of the custom codes at risk where some communities may have not updated in a systematic way over time.
Ms. Paul: To add to that, we face seriously low participation in communities to get people out to talk about these things and the work that needs to be done. That is a big problem, too.
Senator Raine: We appreciate your support for the intent of the bill, and we also believe that moving from a two- year term to a four-year term will make a huge difference.
To the Atlantic Policy Congress people, do you think that moving to the four-year term will assist First Nations in going the next step and having their own code, recognizing that some of advantages of a custom code are in the appeal process and setting up an elders' council to look after appeals? Do you see the four-year term as a stepping stone to eventually going to full custom codes?
Mr. J. Paul: Our intent is the same as everyone else's, moving on the continuum toward self-government and self- determination. We look at this as an incremental step. I believe that moving from a two-year to a four-year time frame for the election process will have fundamental changes in the way the community does things. The changes that will occur through this are quite fundamental in communities, and we will only see it as it plays out in the communities. When we talked about some of the things that were proposed in the legislation, our own leaders and members could not believe there were no penalties under the Indian Act election regime for doing anything wrong in an election. People were shocked. I think that going to a longer term of four years will help ensure that communities do build the capacity and, if they so choose, will have the knowledge, the expertise and capacity to develop a custom code. If that is the end plan for the community, they will get there. We are trying to support incremental steps to help them move in that direction. The bill will help do that in a wide range of aspects and hopefully will get our young people thinking about a long-term vision and get our young people to think about a future beyond 730 days, which is the current election process.
Senator Raine: Are you concerned about subclauses 3(1)(b) and (c)? I personally think that probably a very small group of First Nations would fall into that "something has to be done about this " situation. I do not think anyone feels 100 per cent comfortable that the minister should decide. However, is there another mechanism that could be put in place? With the two-year term that exists, issues are probably more prevalent, so is it acceptable to force people to go to a four-year term?
Mr. J. Paul: I would say that imposing an external will on a community has consequences. We have learned over the years that if anyone imposes their will upon them, communities are very negative about that kind of stuff. We really do have to garner the support and engagement of all our citizens to make these changes for the betterment of the communities for the long run.
Senator Raine: Do you think it would be possible to rephrase (b) and (c) so that the minister can request that a referendum be held to go this route so that there would be a mechanism where the people in the community can have a voice that may be different than what their council would choose? Is that an option?
Mr. J. Paul: I think it goes back to the individual communities. In this type of stuff, the will of the people is paramount in terms of what you do. If there were a mechanism to do that that made sense, I am sure people could consider it.
Ms. Wilson-Raybould: To follow up on that question, I was alluding to that in my comments regarding another mechanism and how those around this table and the Government of Canada can support First Nations in moving down that continuum, as we have been talking about. Support nation building. Support First Nations in developing their governance capacity. Support First Nations in being able to establish their own core institutions, including elections. Any imposition by the minister, whether a referendum or otherwise, is seen as being contrary to nation building and supporting First Nations' governing capacity.
First Nations, like other governments, must be responsible for their own governments. The truth is, as I have said, First Nations have to work these issues and challenges out for themselves, whether it be in elections or otherwise. This is not just particularly a question about elections; more broadly, it is about supporting First Nations moving down that continuum and developing their core institutions and not having the minister or the Government of Canada stand in the way but supporting that effort.
Senator Raine: I presume the Assembly of First Nations is aware of First Nations who are experiencing governance problems and that the Assembly of First Nations has programs in place to also assist those First Nations to learn from the ones who are being successful in their governance models. Would that be fair to say?
Ms. Wilson-Raybould: It is a fair comment. The national chief and the Assembly of First Nations right across the country are looking to and working with communities to support one another, to share our experiences and our successes as well as our challenges and to learn from them. For my part as the regional chief, coming from British Columbia, we have sought to share those experiences and what our communities are doing and are engaged in around governance by way of a governance report that we put together that reflects the situation in all 203 of our communities.
In my region, 109 First Nations have custom election codes, 77 are still under the Indian Act and 13 have election laws that are contained for the most part in constitutions. Those First Nations are all self-governing.
There are experiences to be drawn from all First Nations, no matter where they are on the continuum. Nationally we support this sharing of information, but at the same time, we look to our Crown partners to support capacity building in our communities and to support our First Nations in developing their own core institutions.
Senator Meredith: Thank you so much to the presenters. I apologize for my delay.
Chief Wilson-Raybould, it is so good to see you again. I caught the tail end of your presentation. Correct me if I am wrong, but did I hear you say that this legislation is not necessary as you are moving forward with respect to the bands developing their own election codes or the process of running their own elections? Or are there amendments you are recommending should be made to this legislation but you support it overall? Can you clarify that for me?
Ms. Wilson-Raybould: Thank you. It is nice to see you again as well.
In terms of this piece of legislation, Bill S-6, we of course support the Atlantic Policy Congress, and we support the development of tools that are led by First Nations to enable them to improve their election systems. As my friends have indicated and as I look at the bill, there is substantial improvement to some of the provisions under the Indian Act.
Regarding what I was speaking about with respect to recommendations or amendments to this bill, I would recommend that this committee look at removing subclauses 3(1)(b) and (c), as those give the minister the authority to add or schedule First Nations to this act.
I think that answers your question, senator, unless there is a follow-up.
Senator Meredith: Yes. You also talked about the appeals process. In your opinion, do you not feel that this bill addresses the concerns of timeliness, frequency of appeals and transparency to the overall process?
Ms. Wilson-Raybould: In terms of appeals, removing the appeal mechanism from the minister to the courts is certainly an option. It is an option that some First Nations in my province have undertaken and agreed to, citing that it is potentially cheaper and has been reflected as being such.
With that said, I know there are First Nations across the country that look to have some other body, when supported by First Nations or when First Nations want to aggregate as such, to develop an institution to assist in elections, whether it be in terms of developing capacity around election codes, developing a point wherein there can be a shared person to monitor elections or having alternative appeals to the courts, to be able to establish appropriate mechanisms where there is a dispute within an election, so that the First Nation can go to a body that they assisted in constructing, which is more appropriate for resolving these disputes.
I mentioned that in my own community, our alternative dispute mechanism is our council of elders who will decide, based on strict provisions that we have set out in our own code, whether or not they would overturn an election in our community.
Senator Meredith: I am always tying this back to economic development. I think Mr. John Paul spoke about the future of our youth seeing a four-year term as opposed to a two-year term. I always tie this back, Chief Wilson- Raybould, to the fact that First Nations need to begin applying economic development as part of the overall success of the First Nations people.
Regarding a protracted or longer, drawn-out process within the court system, how do you think that will impact upon the decision making regarding land development and jobs that are being created when it comes to not having those decision makers to make those decisions? How do you think that will impact the community?
Ms. Wilson-Raybould: There is no question that in any government where there is a protracted dispute around elections, that impairs the operation of the government and creates uncertainty around creating an environment conducive to economic development.
I again go back to the same point I raised in terms of protracted disputes, which are very infrequent, from my understanding and certainly my knowledge of what happens in British Columbia. They do not happen very often. Anyone who purports there are protracted leadership disputes across the country in First Nations communities, that is simply not the case.
However, when there are — and they will potentially arise — it has to be the First Nation that seeks redress or that provides the solutions in terms of resolving those disputes. The imposition of an external body into the First Nations has negative and debilitating effects in terms of First Nations being able to be self-determining and move down that continuum of governance reform.
Senator Meredith: Chief Paul, I did not catch your presentation, but I read quickly where you indicated that you believe that if we could build a better election system, the majority of you First Nations would immediately benefit.
Can you highlight for me some of the benefits that you see right off the bat, the top five, top seven or top ten, as many as you want to list, in terms of reform to this piece of legislation?
Ms. Paul: Definitely, just from your words earlier, economic development is one. You also talked about youth stability in the communities. There is also creating leadership codes and good governance codes. The four-year length would allow us to do that. It is important to bring economic development into our communities. You would attract better partners and better contracts with a four-year term, and there would be more stability.
Senator Meredith: What are youth saying about this process?
Ms. Paul: I think the youth support it. They do not agree with the problems that the two-year time frame brings about, but I think they are supportive.
Senator Meredith: Thank you.
Senator Brazeau: Good morning to all of you. I have one procedural question, and I will throw it out there and have any one of you answer it.
In essence, can you describe what the consultation process was by the department towards yourselves on the one hand and also describe what the consultation process was on behalf of your organization to members of your different communities? For instance, were information sessions held or town hall meetings? Who was consulted? Were both on- and off-reserve members consulted? You might not have the information with respect to how many people actually attended those sessions, but I am sure you can provide that to the clerk so we can get an idea of who exactly was consulted in your communities and to see what level of buy-in was out there.
Mr. J. Paul: I can start from our perspective. I think an important thing to remember is that when we started the process, our former co-chair was at the Senate here a couple of years ago arguing to erase two years to four years.
That original decision, taken almost three years ago, started the discussion on how we would talk about elections with communities. That started the momentum, and our chiefs agreed to work closely with the department, with the department highlighting issues that came up in election processes across the country. We created a discussion paper and a Facebook site, and we held meetings with any interested chiefs and councils in the region. We did an online survey that was open to anyone. It was on our website for the entire duration of the process. Our Facebook site allowed anyone, First Nations and non-natives alike, to provide input about the work we were doing. We went wherever we were asked to go to talk about this, whether to youth groups, community meetings, chief and council meetings, or regional or provincial meetings.
Once we finished that work, we produced and provided to the government a discussion paper that highlighted some of our findings. We met with the chiefs from Manitoba, who had simultaneously gone through the same kind of process with their communities and people. We met in Ottawa with the department and decided to talk to other people across the country about the work we were doing in order to share our findings and the proposals we had developed from the feedback we received with other regions, including the Assembly of First Nations.
The consultation, report and participation had been put on our website, and all that information was shared with anyone who asked.
After we met the Assembly of Manitoba Chiefs in Ottawa and with INAC, we went across the country to regional and provincial forums to present our ideas and ask questions and get input from anyone who wanted to participate. I forget how many months we spent doing that. At the end of it, we submitted a final report to the government from both Manitoba and the APC. We went to our chiefs, adopted a resolution, and submitted a report to INAC.
We worked closely in many cases with the government to develop some of the issues, but the discussion was really from a First Nations perspective. The department played only a support role. They waited for us to come up with our proposals. A critical part of the discussion about elections was that we were presenting it and we were explaining the issues and concerns that we dealt with through the election process, be they concerns of women, youth or elders. Everyone had different concerns. We told everyone, with the chiefs' agreement, that we would ensure that, whatever we produced from this work, it would be up to the community to decide whether to participate.
This is stand-alone legislation. You do not have to participate in the First Nations election act. That is a fundamental principle that we communicated throughout the consultations with our fellow First Nations people. We knew that everyone has different ideas about what to do and that we were only putting this idea out there in an effort to formulate solutions to a range of problems that were identified by everyone we talked to, and that is the outcome of what we presented.
Senator Brazeau: I am glad that the APC is supporting this legislation. I would like to understand how the consultation process by the department with the APC differed from consultation on other pieces of legislation, leading to more buy-in into this draft legislation.
You mentioned that you attended meetings wherever you were invited. Do you have a ballpark number of how many face-to-face meetings you had? Were those meetings just with chiefs and councils of the communities in the Maritime provinces, or did members of communities attend these information sessions in order to get feedback?
Mr. J. Paul: We did all the above. We were very open in the process. In our region in particular we extended an open invitation to any group in any province to talk about it.
When we went across the country, we worked closely with the regional organizations in the other parts of Canada. Out of respect for our colleagues across the country, either I or a representative from the Manitoba Chiefs presented to them on whichever area they were interested in.
Senator Brazeau: I do not mean to be difficult. I am trying to understand the process. Were these face-to-face meetings between band councillors and the chief, or were they with community members? If you have a ballpark idea of how many meetings were held in the Maritimes, I would appreciate hearing it. If you do not have the number now, I would appreciate if you could provide it to the committee.
Mr. J. Paul: We can provide the details of all the sessions we held. I am sure that when our colleagues from Manitoba attend here they will be able to describe how many sessions they conducted. We produced a report with all of those details, and we would be happy to provide it to the committee.
Senator Brazeau: That would be helpful.
Were the sessions conducted by chief and council or with community members?
Mr. J. Paul: It was both.
Senator Ataullahjan: Following up on my previous question, Mr. John Paul, if there were no consultations in Quebec, do you feel that there was adequate national engagement on this legislation?
Mr. J. Paul: As I said earlier, we did not present in Quebec because our organization has three Mi'kmaq communities and one Maliseet community who are members from the province of Quebec and it became apparent that most communities in Quebec are in custom elections. Many of them were not going to jump out of the Indian Act into this legislation.
Ms. Wilson-Raybould: I can follow up on that and touch on Senator Brazeau's question as well. For our part at the AFN, we had a meeting with the department this past fall to speak about the legislation. We had a national policy and dialogue forum wherein we invited members of the APC and the Assembly of Manitoba Chiefs to discuss the proposed legislation. For our part from British Columbia, we had representatives from the AMC come and present at our chief's meetings in British Columbia.
I will say this with respect to something my colleague had said: This is not necessarily stand-alone legislation, and as I indicated for subclauses 3(1)(b) and (c), those provisions are not optional. If it was entirely opt-in, those provisions would be eliminated.
In terms of consultations whether in Quebec or otherwise, there were not any other than a couple of chiefs' meetings in British Columbia. The reason is this is one potential tool in a tool box that First Nations can draw upon. In British Columbia, for the most part our communities have chosen to engage and ratify custom election codes or pursue governance arrangements, either within or outside the treaty process. I am not speaking for Quebec, but this was an initiative led by the APC and to a certain degree AMC. For my own region — and it is the only one I can speak to with any authority — it is not something of interest to our province because we are engaged in using other tools that we have available to us to reform our electoral system. Having said that, we support the development of this particular tool that will address a lot of the challenges that are faced in the election system, and support our colleagues in the Atlantic region that are looking to have another tool available to them.
Senator Ataullahjan: Even though there were no consultations, did you get any kind of feedback from Quebec?
Mr. J. Paul: We got feedback from the communities that were part of organization. They were engaged as part of the process that we did. I think a couple of them are custom, but we said even if you are custom you can still have comments or input. We did not care. If you had ideas, present them. We left them that way to be open and transparent to everyone in the process. We were trying to take great ideas and put them forward. We accepted criticisms, support and ideas from a wide range of stakeholders and communities, whether they were in custom or self-government agreements. It did not matter for us. We were trying to work to improve our process.
Senator Ataullahjan: Thank you.
Senator Demers: Good morning and thank you very much. I thought the presentation and questions on both sides were appropriate.
Legislations will not help. The question is how will you work this to make it as true, honest, and fair as possible? In the hour and a half we have been speaking, you spoke about a lot of major problems, corruption, and dispute. How will you be able to have people accountable to have an election, and elect the right people who will make your people stronger?
I am not trying to embarrass anybody. I have a lot of respect for what was said today.
Ms. Wilson-Raybould: I will try to answer it briefly, likely with a reflection of comments that I have already made here today. However, in terms of how we worked to make it more honest and as fair as possible, our First Nations are engaged in these activities and are developing their institutions of government. In a concrete way, they are addressing challenges around accountability, transparency, how we select our leaders, and how they make rules around the decisions and the laws they have to make.
Challenges that exist in terms of lack of transparency or lack of accountability are, in my view, significantly exaggerated. Our First Nations communities are developing laws and rules. They are looking to our Crown partners to support this development, to support us moving down that continuum wherein we have the ability — when we develop our constitution or core institutions of government — as First Nations to be able to enforce that, move away from the Indian Act when we are ready, willing and able to do so based upon our own laws, and thinking around these issues.
Right now, as I indicated, we do not have an effective mechanism to support First Nations moving away from the Indian Act when they have developed these laws that are contained in the constitution or otherwise. Short of a court deeming the Indian Act does not apply, or going through lengthy negotiations with the Government of Canada by way of self-government agreements, there is no mechanism. We are looking for that mechanism so that when the First Nation is ready to move, the government can back out of the way and enable a community to do so.
The laws around accountability and what our communities are doing in terms of governance reform are recognizing that accountability and transparency are to our citizens, as opposed to another government. That is the most important accountability measure, and those mechanisms that we develop will be legitimized by our citizens. As governments of First Nations, we will be responsible to our citizens.
Ms. Paul: Under the present Indian Act elections, that has created more problems, especially in the area of mail-in ballots. I agree with Ms. Wilson-Raybould; it has to be from the First Nations. They have to develop the rules and the mechanisms for how they will deal with these irregularities.
They are not rampant throughout the country, and when they happen they need to be dealt with.
The present state of the Indian Act elections created this. In the Atlantic, we felt we needed to do something to correct this, have say and control of what will take place, and be held accountable by our own people.
Senator Demers: Thank you very much. I do believe what you are saying, and I trust what you have said.
Senator Dyck: I would like to go back to the comment made by Ms. Wilson-Raybould about the unintended consequences in clause 3(1)(a) that a custom code First Nation might be added. I was reviewing the notes that Minister Duncan read from when he appeared before the committee. In most of what he said, he was referring to First Nations under the Indian Act and how Bill S-6 would be an improvement.
I believe custom code elections remove a First Nation from the Indian Act.
However, he did state that Bill S-6 presents a vast improvement, and First Nations will decide for themselves whether the system under it presents a better alternative for the election of their leaders than the current Indian Act system or their own custom election code.
There is an inconsistency there. If you look at clause 42(1) of the bill, which deals with removal of a First Nation, it says that in order to be removed from Bill S-6 you must have developed your own custom code.
The bill is inconsistent in its own provisions, so I am wondering whether you would recommend that clause 3(1)(a) be amended so that it makes it clear that the First Nation being added is one that is under the Indian Act election provisions. That would exclude custom code First Nations, self-governing nations and those nations that have their own traditional or hereditary means of electing their chief and council. That would make it crystal clear.
Ms. Wilson-Raybould: I appreciate the question and certainly recognize the challenge in terms of drafting. My commentary on the unintentional consequence was not to exclude any First Nation that chooses to become scheduled to Bill S-6.
My comment was reflective of the potential reality that the threshold required in order to approve a custom election code based upon community engagement may be compromised if there is no distinction made between Indian Act elected chiefs and councils who choose to pass a resolution or custom elected councils that pass a resolution. I was presenting to ensure that that threshold is not compromised or changed or that there was a lesser threshold that could change something that has been established within a community.
Having said that, there are provisions in custom codes that require any amendment meet the same threshold and, of course, politically, a First Nations chief and council who would pass a resolution to do away with a community code would face repercussions at the next election date.
There is some clarity that could be provided within the bill to allow for any First Nation to become scheduled to the act but also recognizing that there are differing First Nations out there, whether they are under self-governing arrangements or custom election codes. The point is well taken.
Senator Brazeau: My question is for Chief Wilson-Raybould. You talked a lot about subclauses 3(1)(b) and (c) and I believe you have a valid point in terms of, again, having too many minister's powers into deciding with respect to governance issues on reserves or in First Nations communities.
Would you also agree, perhaps, that with the legislation as is, in terms of opting in, not requiring a referendum from community members in deciding if they would like to opt in, rather having a band council resolution passed because, to play devil's advocate or hypothetically, what could happen is that you can have a small community with a small number of counselors and the chief getting together, passing a band council resolution, where they potentially and obviously may have a vested interest in increasing their term of office from two years to four years? Because this band council resolution was passed, it is almost — and I say "almost " — an automatic buy-in into this piece of legislation. Would you also agree that perhaps band chiefs and councils may have increased powers if this bill is passed?
Ms. Wilson-Raybould: I am trying to think about your question. It is a lengthy one. This goes to previous comments that you had indicated in questions you had asked around consultation. In terms of clauses 3(1)(b) and (c), I believe that if those clauses remain in the bill, the consultation of which you are asking for clarity and the depth of consultation you are seeking would be greatly increased if those clauses remained, or the obligations would be greatly increased if those clauses remain in this bill. If those clauses are removed, it is simpler. The bills become simpler and the consultation would not be required in that this is a First Nations-led initiative and it is entirely optional, which it is not right now.
In terms of the latter part of your comments, again, I think this goes back to my comments to Senator Dyck in this regard. Again, I must stress that this is not a circumstance that is rampant among our communities. I have a healthy regard for our First Nations leadership right across the country in terms of doing what is appropriate in their communities. If a First Nation were to pass a resolution to become scheduled to the act and that was not something that their community liked or their citizens did not support, certainly they would again face those repercussions at the next election date.
I will say, and this is based upon my own experience in my own community and coming from a region that has a large number of custom election codes, the fundamental basis upon which our communities in British Columbia are moving forward in a solid way is that we have that community engagement. Our communities have supported advancements, whether in elections or otherwise, fundamentally by legitimizing the decisions that are made by our communities.
I entirely support the APC in terms of wanting to fix or improve provisions that are in the Indian Act right now that will assist their communities in moving forward, whether it be in the procedural aspects of elections and ensuring whether it be uncertainty around mail-out ballots to off-reserve members, or certainty around nominations processes or extension of terms or common election dates that these procedural matters are significantly improved by way of Bill S-6. We support that effort. I am not sure if that addresses your question.
Senator Brazeau: I appreciate your answer and thank you for that. I am well aware of a lot of the good governance practices out there in our communities all across this country, but sadly there also perhaps a handful or two or maybe three communities that do not govern themselves as they should. Certainly one of my roles is to protect the interests of those community members who, unfortunately, do not have the luxury of having the leaders they should.
I am hoping you will agree with this, in respect to your comments. Hypothetically — and again they are all hypotheticals — if a community or a band council passes a resolution to opt into this legislation, you said that they would suffer the consequences at the next election. Again, I am sure you will agree that instead of waiting for two years those community members would have to wait four years.
Ms. Wilson-Raybould: In response to Senator Brazeau's comments, again, corruption and lack of accountability is highly exaggerated in our First Nations communities. To think that the imposition of an external government's piece of legislation will solve those challenges is somewhat, in my respectful view, misguided.
The way First Nations will move forward in a positive and constructive way is when their citizens become empowered and engaged in the fundamental decisions about how we advance our communities, which goes beyond leadership and elected chief and councils. That cannot come from the imposition of the will of the Minister of Aboriginal Affairs. It has to continue fundamentally from basic community development work that our communities are engaged in and need to be supported in undertaking.
Thank you for the questions.
Senator Brazeau: Would you also support an amendment that would allow for community members to decide and hold a vote in order to buy into this piece of legislation? I believe that would empower community members to make decisions regarding better governance practices.
Ms. Wilson-Raybould: I am not sure that is actually required or needed. For First Nations wanting to advance custom election codes, the fundamental component of community engagement and empowerment and, at the end of the day, legitimization of custom codes is a tool that is already available. We do not want to expand a new tool that has been advanced by APC to mirror something that already exists.
The Chair: As I listen to the closing questions this thought comes to mind: If we are to empower the citizens, we have to do it through a self-government process. I hope that the congress concurs with that thought process because I know that Chief Wilson-Raybould certainly is a proponent of that.
I would like to thank you all for your excellent presentations.
Ms. Paul: As we are acknowledging people, and I think it is great to build up our people, I would like to acknowledge Chief Lawrence Paul. Chief Lawrence recently lost his election after serving 27 years in his community. He has provided long-term leadership for First Nations in Atlantic Canada and also as a co-chair. His community, Millbrook First Nation, is on the map in Atlantic Canada, and he is what good leadership is about.
I just wanted to recognize Chief Lawrence Paul.
Hon. Senators: Hear, hear!
The Chair: We are certainly aware of his work because many of the committee members have visited the communities and the economic development projects that evolved under his leadership. Congratulations to you for your long service and dedication to your people, and to all of Canada, because many Nova Scotians and other Canadians have benefited from what you have done in your community.
Senators, I thank you. With that, there is no urgency to anything. We will adjourn until tomorrow.
(The committee adjourned.)