Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 31 - Evidence - February 12, 2013
OTTAWA, Tuesday, February 12, 2013
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-27, An Act to enhance the financial accountability and transparency of First Nations, met this day at 9:34 a.m. to give consideration to the bill.
Senator Vernon White (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 CPAC or the Web.
I am Vern White, from Ontario, and I am the chair of the committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada in general.
Today we will begin examination of Bill C-27, an Act to enhance the financial accountability and transparency of First Nations.
This morning we will hear from Sawridge First Nation, represented by its chief and executive officer. Before hearing from our witnesses, I would like to take this opportunity to have the members of the committee introduce themselves.
Senator Dyck: Good morning and welcome. I am Senator Lillian Dyck. I am deputy chair of the committee and the critic of the bill. I am from Saskatchewan.
Senator Munson: I am Senator Munson from Ontario.
Senator Meredith: Senator Don Meredith from Ontario.
Senator Patterson: Dennis Patterson, senator from Nunavut.
Senator Raine: Nancy Greene Raine from British Columbia.
The Chair: Members of the committee, please help me in welcoming our witnesses from Sawridge First Nation, Chief Roland Twinn and Michael McKinney, Executive Director. We look forward to your presentation, which will be followed by questions from senators. Please proceed.
Roland Twinn, Chief, Sawridge First Nation: Good morning honourable senators, ladies and gentlemen. Thank for your invitation to appear before this committee. I believe that the Sawridge First Nation is in a position to make a significant contribution to your deliberations based on our actual experience. I have a 20-minute presentation, but I will respect your wish to have a shorter presentation at this time. I present to you the balance of my presentation so that it may be translated into French and distributed to members of the committee.
We are opposed to the passage of this bill because we believe it will be counterproductive to your goal of increasing accountability and transparency in First Nations governance.
If the bill is to be passed, we have suggested amendments that might improve it somewhat. We are suggesting that Parliament encourage the government to take a different path leading to improved governance.
The Sawridge First Nation is part of Treaty 8. In addition to being elected chief of this nation, I am also the Grand Chief of Treaty 8 First Nations of Alberta, which encompasses all of northern Alberta. Pursuant to our right of self- government, the Sawridge First Nation is governed by its constitution. It was adopted after several years of very hard work by the members themselves. The constitution was adopted by a referendum in which 65 per cent of all adult members participated. Over 90 per cent voted in favour of adopting the constitution.
Legislatively, we are governed by a general assembly. Every adult member of the nation is a member of the legislature.
Your committee was sent a copy of business before the assembly in recent months, so you will see our approach to good governance. Our executive branch is our chief and council. It reports to the assembly and answers questions raised by members.
Our constitution calls for an elected Audit and Compensation Committee, which makes recommendations to the assembly regarding compensation and benefits for all officials and staff of the First Nation. These are set by the assembly.
Our constitution calls for a Financial Management Act, which was passed through three readings by the assembly. It calls for council to table a budget for approval. Financial reports are also reported. All financial records are available for review by any member.
We have a Governance Act that has conflict of interest provisions. As an example of how stringent they are, the limit for gifts to the chief and council is set at $200. I had to provide our assembly with disclosure that a company had offered me two hockey tickets to the Edmonton Oilers. I presented them, and after I had made the disclosure, the assembly passed a resolution authorizing the gift and wishing me a good game.
The members of the First Nation have provided themselves with standards of accountability and transparency that go far beyond those available to the people of Canada. It is ironic that the representatives of the Canadian people are now going to impose requirements telling Sawridge how to provide good government.
Our chief, council and officials are paid from the First Nation's own money, not so-called taxpayers money. No so- called taxpayers' money goes toward our governance. I say "so-called taxpayers' money" because our businesses generate far more tax revenues, which go to both federal and provincial governments, compared to the much smaller amount we receive from them.
Proud as we are of our accomplishments, we have done nothing that any First Nation cannot do. The potential is there. The realization of that potential is the real accountability that we, as leaders, owe to our people. The way the federal government can enhance that potential is not by requiring disclosure. It can help reverse the history it has caused over the decades by providing encouragement, rewarding initiatives and promoting best practices. The approach taken by Bill C-27 simply reinforces the great-white-father-knows-best syndrome rather than releasing the potential of our people. It will cause great resentment rather than build relationships. Worse, it would place us at a serious competitive disadvantage. The bill would make legal something that the courts have ruled illegal. This bill before you is not a step toward accountability and transparency but rather a regrettable step backward in having good governance by First Nations.
What is the basic assumption behind Bill C-27? It is that if the members of a First Nation have information, they will be able to do something with it. However, if members are not able to have a government that provides them with accountability, what will they be able to do even if they have information? Information is not accountability. Being able to hold a government accountable is accountability. There is the further assumption that if the Canadian public has this information and finds exaggerated remuneration, they will do something about it. What can they do? They can do nothing except pass even more intrusive legislation and complain about lazy Indians.
This bill is headed down a road that will lead to repression, conflict, accusations of racism and, at the end of the day, loss of incentives for members of a First Nation to provide themselves with accountable governance. This is a dangerous road to take. Disclosure of information to members is only part of good governance. To deal with just one aspect of governance is to deny people the opportunity to do what is the only answer: provide themselves with good governance.
They ask for information and do not get it, so an application is made for a court order and an order is granted. Then what? The problem does not go away. All the people get is some information. Then what happens? Again, this does not lead to good governance. If they do not get the information they want, the only thing the bill does is provide draconian sanctions and penalties, none of which will improve governance. Now what? Where do we go from here? The only way to avoid this unacceptable situation is to avoid taking this road in the first place.
The source of this problem is the Indian Act, which Parliament imposed in 1876 as colonial masters "for the better civilization of Indians." It has left an ugly, corrosive and unmanageable heritage. This committee has the opportunity to avoid giving the screws of the Indian Act another tightening, hoping that it will make it work better, and then walking away from it believing the problem has been solved. In the least, this committee can urge the government to take a positive, constructive approach to encouraging good governance outside the Indian Act — good governance that is under the control of the members of each nation. A stick with no carrot will not make this happen.
We recommend a new paragraph 13 as an amendment, something along the lines:
When 33 per cent or more of the members of a First Nation indicate an interest in obtaining assistance in improving governance of the First Nation so as to lead to increased accountability and transparency, the Minister shall provide appropriate financial support.
There is a problem with forcing First Nations to disclose financial statements to the public. We do not mind consolidating our financial statements. This means that all of the companies, partnerships and other businesses that a First Nation controls have to be included in financial statements. Fine, but if in addition we are required to make this information public, it could lead to the release of information that could be of use to business competitors of the First Nation. Our competitors are not required to make such disclosures to us or to anyone else. Bill C-27 would put the First Nation at a disadvantage in its businesses.
Sawridge First Nation has no issue with providing transparent accountability to the public in respect of the public funds, tax dollars, it receives. The First Nation has provided audits of these funds to the government consistently in the past. The First Nation has no issue with the disclosure of its financial information to its members on a confidential basis. This policy was adopted by the members when they adopted a constitution, which they worked on for many years. Sawridge believes that it is constructive for its members to be informed of the First Nation's finances and to be in a position to discuss them confidentially with other members and advisers. The Sawridge First Nation believes that it is not constructive for their financial information to be available to the world at large. There is no benefit to the First Nation having its financial information in the public domain.
I will turn it over to Mr. McKinney to deal with the legal aspects.
Michael R. McKinney, Executive Director, Sawridge First Nation: I will provide a brief history of Sawridge's legal battles in this area.
In 1986, a Calgary Herald reporter made a request to the Government of Canada under the Access to Information Act for financial information on seven Alberta First Nations, Sawridge being one of them. The matter resulted in seven Federal Court actions that made their way up to the Federal Court of Appeal. Written reasons were rendered in the Montana Band decision. The decision confirmed that the financial statements and audits of First Nations are confidential information and, therefore, are protected from disclosure under the Access to Information Act.
Bill C-27 would require First Nations to disclose this confidential information. This would create a double standard for First Nations. Subsection 20(1) of the Access to Information Act provides that:
Subject to this section, the head of a government institution shall refuse to disclose any record requested under this act that contains
(b) financial, commercial, scientific, or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party.
It also provides protection for information that is disclosed that "could reasonably be expected to result in a material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party."
We submit that this bill will override that section and put First Nations at a disadvantage. The financial information of First Nations was found to fall within this prohibition. While other Canadians and Canadian organizations are still the subject of the prohibition, First Nations would not be subject to this prohibition under Bill C-27.
During the years when the access to information case was making its way through the courts, Sawridge stopped providing its financial information to the government. They provided audits of taxpayer dollars and audits of capital and revenue funds, which are held by the department — special audits to the government. They fulfilled their obligation to provide audits. They allowed officials from the department to review the audited financial statements in their entirety on a confidential basis. This was facilitated at first by our auditor and later by me. The government reviewed the financials and ascertained that everything was in order and that they had fulfilled their duties. They did not retain any copies, undertook to keep the information confidential, to not take any notes and to respect the confidential nature of the audit.
After the decision in 1989, Sawridge First Nation agreed to give the complete audit again to the federal government under a written agreement including conditions that the government keep the financial statements confidential, retain them in the regional office in a secure location and not disclose the information. In 2003, Sawridge formalized its financial disclosure policy, which had been in place in an informal sense. The written policy allowed Sawridge First Nation members to access the financial statements on a confidential basis.
In that same year, a member who did not want to adhere to the confidential statements made an access to information request to the government for those financial statements. The Federal Court Trial Division agreed that the financial statements of the First Nation were confidential and would not be released to the member without the confidentiality, but the Federal Court of Appeal decided the department could release the information unconditionally.
After the department indicated its intent to release the Sawridge information unconditionally, Sawridge stopped providing the information to the department and, again, continued providing special audits of all taxpayer dollars as well as special audits of the capital revenue account showing that they had spent the money provided by the Government of Canada in accordance with the terms of those dollars being provided. They did allow the department to review the financial statements on a confidential basis under the same conditions as earlier.
In 2009 the members of the Sawridge First Nation adopted a constitution through a referendum. The constitution incorporated the principles of the financial disclosure policy and, as you heard earlier, was ratified by all of the members the First Nation in a referendum.
We are confused about what justifies Bill C-27. It seems to be a tremendous intrusion and very paternalistic and colonial. We think it is based upon some erroneous misconceptions.
The first misconception is that First Nation money all comes from taxpayers. In fact, First Nation money may come from several sources. Some is from taxpayer grants, some may be from the sale of resources from First Nation lands, some may be from First Nation businesses, from First Nation taxes and from other fees and charges collected by First Nations. While we agree that all accounting for the expenditure of tax money or public monies can and should be made public, we submit that there is no justification to require public disclosure of the full consolidated financial statements of First Nations.
The second misconception is that the public disclosure of First Nation finances is an efficient and effective way to disclose that information to members of a First Nation. The members of the Sawridge First Nation, through its constitution, have adopted a system of disclosure and approval of financial information to the members that maintains the confidentiality of that information. In fact, members of the assembly of the Sawridge First Nation are presented with a budget and the audit in an open meeting, where they can ask questions and provide feedback to their government.
The third misconception is that there is no harm in public disclosure of the information. This ignores the harm caused when competitors and those who do business with a First Nation may use that information to their own advantage to the detriment of the First Nation. We do not require other private organizations or businesses to disclose information to the public about their own finances. Why do we require First Nations to do so?
Another justification we have heard is that the department receives requests for information from First Nations. We understand this to be about 250 requests in a year. It seems hardly to be an overwhelming number of requests. We believe most First Nations are capable of providing the information to their members and being accountable.
We have a number of potential amendments. First, we do not believe this bill is necessary. We understand that there are already regulations and rules in place that fulfill the objectives sought by this bill, but if it is the wish of this Parliament to pass this bill, we would propose amendments. The first relates to clause 2 of the bill and the definition of "First Nation." We submit that if a First Nation already has an approved mechanism for disclosure, they should be exempt from this bill. At the end of the definition of "First Nation," we recommend adding the following words:
. . . or where a majority of whose members have demonstrated satisfaction with mechanisms to provide them with transparency and accountability.
This would exempt the members of that First Nation that have already adopted a mechanism.
We would also insert a new definition for the word "public."
"public" means the membership of a First Nation.
We really believe that the accountability of First Nations is to their members.
Another possibility is to define "remuneration" by adding, at the end of the definition, a provision that only requires reporting of such funds when they "are paid for by monies provided by the Government of Canada." In other words, if taxpayer dollars are paying for First Nations' remuneration, then, yes, that should be disclosed to the public; if not, it should not.
In clause 3 of the bill, we submit that the word "public" should be deleted and after "disclosure" and the following words should be inserted: "to their respective members." Disclosure would be required to the members and not necessarily to the public.
We believe that clause 5 is overkill. These requirements should be part of a contribution agreement setting out the conditions under which the contribution is being made. We submit that this clause should be deleted in its entirety.
Clause 6 could simply state:
A First Nation shall, upon request, provide any member, on a confidential basis, information regarding the remuneration paid by the First Nation or by any entity that it controls, as the case may be, to its chief and each of its councillors, acting in their capacity as such as and in any other capacity, including their personal capacity.
Clause 7 has two problems. First, it is contrary to the principles and the right to self-government and it does not provide for confidentiality beyond the First Nation itself. This could be fixed by having subclause 7(1) read:
A First Nation must, on request of any of its members, make available for review any of the following documents.
Then there is a list.
We submit that clauses 8 and 9 should be deleted in their entirety.
Clauses 10, 11 and 12 provide the courts with powers that should be retained by the members of the First Nation to provide themselves with good government. Disclosure of information to members is only a part of good governance. To deal with just this one aspect of governance is to deny the people the opportunity to do what is the only answer — to provide good governance for themselves.
These paragraphs are ill-advised. Application is made for an order and an order is granted. Then what? The problem does not go away. All the people get is information. Now what happens? Again, this does not lead to good governance.
If we are to take this road to provide positive change, the only thing we can do is to provide draconian sanctions and penalties, none of which will improve governance. The only way we can avoid this unacceptable situation is to avoid taking this road in the first place.
Mr. Twinn: We believe we have the constitutionally protected right to self-government. We believe we are exercising that right in a very responsible, non-confrontational manner. We believe the bill the government has placed before you is in conflict with the Constitution because it interferes with our right to govern ourselves. We know we cannot stop Parliament from passing a bill that is in conflict with the Constitution and therefore, pursuant to section 52 of the Constitution, it is invalid. This puts us in the position of having to file a legal action, with all the money and delay this involves.
Subsection 52(1) of the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
We believe taking this route is not the way to uphold the honour of the Crown. With respect, this honourable committee should not be putting itself in the position of sending a bill back to the Senate for third reading until it is satisfied by an opinion of legal counsel to the Senate that the act being passed is not in conflict with the Constitution.
We have been hearing a lot these days about consultation. We agree with what the Supreme Court of Canada says about that word in the Haida Nation and Sparrow decisions. It never stands alone but, rather, is part of a phrase. As neighbours, if either of us is going to do anything that may infringe upon the rights of the other, we have an obligation to consult for the purpose of understanding what we might do to accommodate the other, to lessen the impact.
The purpose of accommodating is to achieve reconciliation of our sovereignty by virtue of our prior occupation, says the Supreme Court, with the assumed sovereignty of the Crown; so it is consultation to find accommodation for purposes of reconciliation.
This is a process, the Supreme Court says, and Canada is required to engage in it by Canada's Constitution. If that process had been followed with regard to Bill C-27, our proposed amendments might have been accommodated and we would be enjoying reconciliation. Unfortunately, that has not happened and that is why I am here today on behalf of the Sawridge First Nation and the Treaty 8 First Nations of Alberta.
Consultation merely for consultation's sake is meaningless.
The Chair: Thank you very much, chief. Thank you, Mr. McKinney. We will start with questions.
Senator Dyck: Thank you for your comprehensive presentation this morning. I must admit it is confusing when we hear different perspectives with regard to the privacy aspects. I think you made it clear, but I just wanted to go back to that, because I believe you said that one of your major concerns was that this bill would be contravening the Privacy Act, and that within your own First Nation, you have had a lot of experience dealing with it in terms of legal actions and what you do with respect to releasing information to your band members.
The bill itself has probably two major categories, one being provision to the band members of the salaries of chief and council. I think most people would agree that a band member should have access to that. Is that impinged at all by the Privacy Act?
The second major category of financial information has to do with band-owned entities. My understanding is that that information should probably be confidential and would be covered. Is that correct or could you expand upon that?
Mr. McKinney: The bill would infringe the privacy rights of the First Nation. In your first example, the remuneration of chief and council, it is not just the members it would be made available to but all Canadians, all the public, the whole world. There is nothing in this bill that would restrict that to members. We do not see any purpose for that disclosure of information beyond the members of the First Nation, unless of course it is entirely paid by taxpayers' dollars; or if any portion is paid by taxpayers' dollars, that part certainly is of interest to the people who have paid that money. Otherwise, that would be an infringement of the privacy rights of the First Nation.
As I said earlier, the Sawridge First Nation already provides that information to its members and in fact has an audit and compensation committee that makes a recommendation to the assembly, which is all of the adult members of the First Nation, who then approve the compensation to the chief and council. They have gone far beyond disclosure.
With respect to the other portion, the competitive information for the businesses of the First Nation, First Nations under this bill are required to consolidate all of their finances into one statement, which would include all the businesses controlled by them. This bill would make that information available to any competitor who wanted it and went on the Internet and found it.
Senator Dyck: I believe you said this bill would make legal what is now illegal. Could you explain that again?
Mr. McKinney: In the Montana decision, the court found that it was illegal for the federal government to release the financial information of the First Nations — and in that case there were seven First Nations — to the public, or to the Calgary Herald in that particular case. This bill is saying: No, not only do you have to make it public, but you have to put it on the Internet and leave it there for 10 years. It is making First Nations do something where, right now, the law of Canada is that that information is private and cannot be disclosed by the Government of Canada.
Senator Dyck: Is there nothing in the legal world that says we are not allowed to pass a bill that contravenes another act, or can this just sail forward?
Mr. McKinney: We believe the Constitution would be in the way because for First Nations that exercise self- government, and in this case Sawridge has exercised its right of self-government and has its own laws, this bill would contravene that law. We submit that this bill is ultra vires the Constitution.
Senator Dyck: I believe you also said — and I did not quite get the whole phrase — that there are already rules and regulations in place that the department utilizes that essentially accomplish what is in the bill. Could you expand upon that?
Mr. McKinney: Sure. The Indian Band Revenue Moneys Regulation requires a First Nation to post its financial information on reserve, so basically provide it to its members, and requires the First Nation provide a schedule of remuneration that is paid to its chief and council. That information under the current regulations is already available to the membership of the First Nation.
Senator Raine: I am interested to hear your experience with self-government and how you think this bill either undermines or could assist other First Nations in moving toward self-government. I appreciate that Sawridge First Nation is well advanced along the path of self-government. I would like to know how you think other First Nations across the country can move in that direction.
Mr. Twinn: In our experience, it is a long, hard road, but it is something that has to be done. It takes a lot of courage; it actually encompasses a little bit of healing and allows the voice of the people to come up.
With us, it started with just a general meeting of all the members and asking them if they wanted to take control of their destiny and what they thought. We operate under section 35, the inherent rights, and the definition of an inherent right is the right of a peoples not granted by another. We looked at it and went through self-government negotiations and discussions from 1985 until about 1991. We had negotiated a framework, which was passed. We negotiated an agreement in principle, which was passed by the House of Commons, as well as the First Nation by way of referendum. However, the government did not take the next step of passing legislation enacting that agreement in principle. We decided just to go ahead with it. Section 35 says we have the right; we will. The people are the ones who wrote the Constitution. It was not a chief and council. It was not a lawyer. We did drafts, we brought it to the people, and they made the amendments they wanted. That is why in our Constitution and our financial management act, governing act, everything is reliant upon the people. They set my salary.
Other First Nations can definitely go down the road. It may take a little more effort. It might take a little more organization for much larger nations, but it is not impossible. The Kapawe'no First Nation, on the other side of the lake from us, in 1995 went through their own governance-building process with a pilot project under then Minister Nault, who brought a financial accountability pilot project on. They accepted it and came up with their 11 codes of governance.
Other nations have built their constitution and their laws. It has not been recognized by the Government of Canada, but at the same time, before anyone else will recognize our laws, we have to live by our laws.
We are by no means done. Our governance will never end. We will have to make amendments to laws as we move forward. We still have our institutions to build. We need to build our own courts, our justice system. We understand that. We need our education systems to be built. However, at the same time, there is a possibility that if more nations move in this direction we can work together as a collective and build some of these institutions for all. I do not think it is impossible for any First Nation to do what we have done. It might be a little more cumbersome, but it is totally possible. It is for the betterment of all.
Senator Raine: Sawridge is fortunate that it has outside revenue sources available. Do you think it is possible to move as you did if you are totally reliant upon taxpayers' funding?
Mr. Twinn: Yes, it is possible, but from a taxpayer's perspective we have to look at it as an investment. It might cost a little more now, but in the long run it will be much more cost effective.
As First Nations take control of their governance, it will bring more stability and confidence to that nation, which will attract investments within the nation. When the big companies are looking at developing resources in our territories, if you have strong governance and strong accountability, they are much more willing to come and invest, with the community, in new ventures to bring economic development. We need to build our economies for First Nations. We have had 25 years of economic development and it has not really gotten us anywhere. What is not recognized is how much of a driver First Nations are to the economies around them. The government funding given to First Nations does not stay at the First Nations. We do not have grocery stores at home. We do not have banks. That goes to the outside. If we are able to, with the governance, bring that stability and economic investment in and to build these economies, there will be less and less reliance on tax dollars.
In Alberta we have talked a lot about resource revenue sharing. Get a piece of the resource revenue before it goes into general funds, and therefore it is no longer tax dollars. The taxpayers' dollars can go where they believe it should go, to the roads and infrastructure of the communities around us.
The Chair: I want to mention that we have been joined by Senator Ataullahjan and Senator Seth from Ontario, and Senator Sibbeston from the Northwest Territories.
Senator Munson: Thank you for being here. There was strong language at the beginning of your presentation about the great-white-fathers-know-best syndrome. It is regrettable in your view, a step backwards.
You referred to amendments, and they are interesting to look at. How many First Nations do you think are in the same category as yourself across this country, ones that you believe would have been accountable, like you have claimed to be and, according to your website, which is good, seem to be and will be? I am curious to see how far that exemption would go.
Mr. Twinn: I always like to think that we are unique, but I think there are several that have already exercised their accountability practices at home, such as the Kapawe'no First Nation. Through their codes, they have a similar process where budgets are presented at the end of a fiscal year for the following fiscal year, and then audits are presented after they are completed, usually in May or so, as the fiscal year ends on March 31.
I have talked with several chiefs and councils from other nations across the country that have similar practices. I could not give you an exact number, but there are a lot of First Nations that are interested in the process into which we have entered. I have had several chiefs or counsellors from the nations ask if I can bring a presentation to them. The biggest hurdle right now, as has been said, is the financial portion of such an endeavour, but no one seems to be against moving forward in that direction. I think many more are doing it and want to go in that direction.
Senator Munson: The government has stated that this legislation will provide First Nation members with the tools they need to move forward with economic development and good governance, which will create jobs and economic growth and improve the overall quality of life for community members.
You sort of put a stop sign there, talking about the confidentiality and dealing with competitors. Could you explain to us specifically how that would take away from competitors who deal with First Nations in terms of contracts? What might or might not happen?
Mr. Twinn: As an example, we have started a company at the First Nation called Sawridge Resource Development Corporation, through which we do vegetation management for utility companies, right-of-way clearing. Our competitors are multinational conglomerates. Some of them are huge — Asplundh, Davey Tree. If they are able to look at the financial information from our corporations, they might be able to look at it and get an understanding that we are not as strong as we might seem. If we can bid lower and lower, we will eventually push them out. The utility business is competitive procurement. Contracts are not granted automatically because you have the right to consult. You still have to bid on the projects and come up with your proper rates. That is one of the examples I could give you today.
Senator Munson: We are supposed to be called the house of sober second thought. If some respects, we have become the house of last resort. Your amendments in front of us today are intriguing, but in the situation that we are in, I do not think they will go very far based on the prevailing mood and the support there is from the government side. We do have questions in dealing with this bill. We are down to the last strokes. I would like to get your view. It is interesting to put the amendments there, but the likelihood of them passing is probably nil.
Mr. Twinn: We feel the same way. This seems to be the area of last resort. We were invited to go present before the House of Commons standing committee on the same bill. However, because of what was happening, instead of having the table to Sawridge, there were three other witnesses. We were rushed through quickly and were not able to do anything. We get the same feeling that this bill will just be rammed down our throats, as always, without any consultation, which is sad; it will create a further divide between First Nations and the Government of Canada.
When you look at the Indian Act as it was written and passed in 1876, we were considered wards of the government, children, uncivilized. We were not considered men until 1956. It is 2013, and you would think that this type of paternalistic view would have diminished by now.
It is strange how, as First Nations, we are painted so quickly with broad strokes, the paintbrush that government likes to paint with. It is akin to being a minority. You kind of get used to it, but it does not make it right. We have exercised our rights, we believe, in a very thoughtful manner here. We are not trying to butt heads with anyone. We live our constitution and our laws.
I have no problem telling anyone my salary. The community has decided to give me a raise. I went from $60,000 a year to $84,000 a year. I do not believe that is exorbitant. That is all in. I do not get a big prepaid travel expense account. I get reimbursed with receipts. That is the way our nation has been.
When I started as chief 10 years ago, I was making the same salary that my father was before me. I believe there are a lot of leaders out there in the same position, with the same place in their heart with the First Nation, and to be painted with that same broad stroke and paintbrush because of a few chiefs out there that might be going a little overboard is just sad. You could not get away with that view for any other race within this country other than the Indians.
It is time to step beyond that and take into consideration what the members want, not what the chief and council want. This is not my constitution that we passed but the constitution of the people. It was written by the people, who have entrusted me and made me swear to protect that constitution. If it comes down to it, we will take it to court. If we have to do that, we will.
Senator Meredith: Thank you, Chief Twinn and Mr. McKinney, for appearing before us today. The question that Senator Munson raised was the first question I have.
You talk about competitiveness and about being disadvantaged. As an entrepreneur, my company prepares financial statements not only for the Canada Revenue Agency but also for necessary disclosures in terms of contracts and so forth. We have those records. Can you explain how this bill would put you at a disadvantage in terms of your competition? You talked about it briefly, but I would like you to give more detail about how that would put you at a serious disadvantage. I clearly do not see how that is, for example if you were a public company, although I know you are not a public company. In terms of disclosures, what would make you less competitive in your dealings?
Mr. McKinney: The Sawridge First Nation is not a public company, so its financials are not currently public. Its revenues and expenses are not made public. What it spends in any particular area is not made public. It would be at a disadvantage with its competitors, many of whom are private companies, if those companies could look at the Sawridge First Nation and see what the revenues are from a particular business, and Sawridge is involved in several businesses. They would be able to see from the financial statements how the revenues and expenses break down by business sector.
It would also put Sawridge at a disadvantage when dealing with suppliers because suppliers could look at the financials, which also contain the budget, and say, "This is how much you have to spend on this so we will bid accordingly," instead of bidding in a competitive fashion.
There are a number of ways in which providing the information to other people would provide them with an advantage that they would not have otherwise.
Senator Meredith: The numbers that are released are usually one-liners. They do not go into full details and break down what you pay for parts and so forth. That is where I could see you raising the price on a certain piece of machinery that you are buying, for example. Usually this is for purchases such as equipment, which could mean anything from widgets to maintenance. It just says "equipment" as a one-liner. I do not see how that puts you at a disadvantage.
Elected officials across this country number approximately 3,200. Mr. Twinn, you spoke about the fact that some have gone overboard. How do we make those individuals accountable to the Canadian taxpayers who basically pay their salaries? You indicated that you are unique in your band in terms of your economic development, which I applaud, and your efforts to see how young people can be employed and not dependent on government funding. Clearly, there is still that sense of transparency and accountability that Canadian taxpayers are saying that they need to see from these First Nations who are being funded. Can you explain that for me?
Mr. Twinn: First, I did not say we were unique in the sense of accountability or how the leaders are being compensated, but rather unique in the sense that we are small and have some own-source financing to do what we have done.
As far as the few leaders who may be paid exorbitant amounts are concerned, Bill C-27 does not have a remedy for that. It is just about information. The way to do it is to empower the people to deal with that. How will they do that? In our case, we have a recall provision within our constitution and our governance and a commission of elected elders. If the chief and council were to get exorbitant salaries — play a little "backdoor politics couple" as they were called in past BCRs — it would be made apparent within an audit or a budget. The elected elders' commission can call an assembly, and by a petition of 50 per cent plus one of the membership, the chief and council can be recalled. That is the remedy for that.
They do not see such remedies in Bill C-27, which is the subject matter today. As was said in the presentation, you can tell the public that they are making $400,000 a year, more than the Prime Minister, which is an outrage. Now what? Wait until the next election.
The best to do it is to allow First Nations to empower themselves to say, "No, we the people will not stand for that." That is the answer. If the public is paying for that position, they have a right to know. However, in our situation, no government money goes to my salary.
Senator Patterson: Mr. Chair, I believe that Senator Meredith mentioned it, but I understand that concern was expressed at the House of Commons committee about precisely the point you have mentioned: The disclosure of detailed information about private enterprises and own-source revenues could make a First Nation-owned corporation uncompetitive. However, was there not an amendment to address that very issue by requiring the reporting to be "in aggregate?" That is what Senator Meredith was saying. Has that issue of concern that you mentioned not been taken care of through an amendment that was suggested, I believe, by one of the chiefs who appeared before the House of Commons committee? Has it not been looked after?
Mr. McKinney: The financial statements generally summarize financial information, but they have to break it down to some extent. You cannot just say our revenues are X. You have to break it down by where those revenues come from, whether from land rental or particular businesses. The information that is provided in a financial statement, in order to be useful to the reader, has to provide some detail. Furthermore, with the notes that are required in financial statements by general accounting principles, further information is provided that could be of use to people.
For instance, they could see how much financing you have on your equipment, because that would be in a note. It would say how much your interest rate was because that kind of detail is provided in financial statements. We cannot control what the accountants will say is required; and those requirements typically are being increased over time as opposed to decreased because people want to know the information so they can make some use of those financial statements. Yes, you can water down a financial statement and make it totally meaningless, but then why are we making financial statements in the first place? Unfortunately, the financial statements will provide some information that could be of some use to competitors.
Senator Sibbeston: I certainly have been influenced by our witnesses today. In fact, when we first received information from the department, I was concerned about this area. I thought it was fair to have disclosure of funds received from the government, but funds that the bands earn through their own initiatives ought not to be made public. I am convinced about that.
Mr. Chair, I am sure that these witnesses came here today with the view that their opinions would be considered. If they knew that the process was such that despite what they said there was no opportunity for change or amendment, I have a feeling they would not have come.
In that spirit, Mr. Chair, I make a motion that, first, we defer consideration of Bill C-27, with the view to seeking legal advice, as they suggested, as to whether the bill is constitutional; and, second, that we examine the proposed amendments to determine whether they are reasonable and whether they are amendments that we could also adopt.
The Chair: We will move into debate on the motion.
Senator Patterson: We value the recommendations of the witnesses and their comments on legal issues, which probably none of us are qualified to analyze on the floor of this committee today. I do not think that the motion is helpful and will recommend that the committee vote against it, not because I do not think it is a good idea to get legal advice, but we have the ability as a committee to seek legal advice.
When I heard the point about the bill being unconstitutional vis-à-vis self-governing nations, I immediately thought that it would be interesting to see what Department of Justice lawyers have to say about that. Undoubtedly they could provide advice to the committee on that question and I would be happy to see such a witness called to this committee and perhaps another viewpoint as well. However, to stop the proceedings when we have witnesses lined up to appear and be helpful to us, as these witnesses were today, is not making the committee process in the Senate work as it is intended.
With all respect to my colleague, I will not recommend we support the motion.
Senator Dyck: It is a very interesting motion.
I read an article in the newspaper, but I do not have it with me today. I was saving it and had not yet put it on to my iPad. Strangely enough, the article stated that the department does not let parliamentarians — they were talking about MPs mostly, but it would probably include senators — know when a bill is contravening the constitutional rights of people.
This suggestion by my colleague is very timely because most of the bills put forward usually come from the House of Commons. If it is unconstitutional, people are not advised of that. It makes you think we are doing things backwards.
I understand the comments with regard to the committee process. Today we have received very interesting and valuable information from our witnesses, but why do we have to force them to go to court at some point in order to make those decisions?
I am open to what other people have to say.
Senator Meredith: I also made a note when Mr. Twinn indicated that this was in conflict with the Constitution. It raised a red flag for me. I have been on this committee for the last couple of years and have heard the various issues that have come before this committee. I have heard about the long, drawn-out battles with the provinces, and so forth, that I believe is causing great economic constraints on First Nations people, especially on the young people. Again, I look at them not only in relation to being the future of this country but also at the challenges they face.
When the witness first said there could be a conflict with the Constitution, I started to see the dollars that lawyers will now be getting. These are funds that will be diverted from programs that could be used for First Nations. That concerns me.
My colleague has put forth a motion. I believe there is information that could help this committee further, Mr. Chair. The drafters of this bill could give us some sort of clarification as to whether it contravenes the Constitution. I would want to know that as well, because I am looking at the economic limitations and fiscal allocations that would have to be put forth for such a challenge within the courts. There could be a lengthy time as well in terms of some resolutions that may come out of this.
I would be in favour of looking at how we can invite those witnesses. It is possible they are to appear before this committee. I do not know the list of witnesses who are coming to give clarification as to whether it contravenes or not. I would hope that it does not, but again, I do not know, so I would be in support of us looking to further witnesses.
The Chair: Honourable senators, we do have the Canadian Bar Association and the Assembly of First Nations, from whom I anticipate we will hear legal discussion at least, if not argument, in relation to the legislation.
Senator Seth: I wish to add a point here. Should the motion be presented in both official languages to all the members? We have not received this motion that we are talking about.
The Chair: We are not required to have a written motion actually. It is not required in both official languages at this point.
Senator Seth: I wanted to speak to something else.
Bill C-27 is simply asking for accountability and transparency of First Nations. Is it not the case that federal, provincial, and municipal jurisdictions have legislation that requires the disclosure of salaries and expenses? Therefore First Nation members are entitled to the same standard of financial accountability from their government. What is wrong in that?
My answer is here as well. We have a lot of benefits with passing this bill in showing our accountability and transparency.
The Chair: Senator Seth, for clarity, we are debating the motion only at this point in time.
Senator Seth: All right; thank you.
Senator Munson: I support the motion.
The Chair: I am surprised.
Senator Patterson: Mr. Chair, I cannot let a statement stand on the record of this committee that would suggest our government or any responsible government would knowingly advance a bill in violation of the Constitution. I find that astonishing and the provenance of that view has not been provided to us.
In my experience as a legislator there is a rigorous process to review legislation vis-à-vis the Charter of Rights and Freedoms. It is called "Charter proofing." I want to put on the record that I object to the suggestion that our government would have knowingly advanced a bill in violation of the Constitution.
Senator Dyck: I will bring you the news article.
The Chair: I am not going to suggest that a news article would be conclusive evidence though.
Senator Dyck: No, but that is what I was referencing.
The Chair: Is there any further debate?
Senator Sibbeston: Mr. Chair, I think we should seriously consider the motion and not just push it aside. I am asking that we take a bit of time to look at the situation. We have been given good information here today. It has certainly convinced me. I had up to now thought that the primary purpose of the bill was really so that members can have access to information. On that basis, I thought it was extremely relevant so I was prepared to support the bill, but I still had concerns about the information, the mischief and the harm that can be done in providing financial reports. I was always concerned about that and have been convinced again of the importance of that.
The amendments that the witnesses propose are worth considering, but it need not be for months and months. We are just about finished for the day anyway, so it would not hurt to simply defer the bill and have our Senate legal adviser look at this. What does it cost? What does it amount to? It is not a big deal to get the Senate lawyer to look at it and tell us. If he says it is fine, that will satisfy me. It is just a day or two of work for him to do that.
Most important, is there a change? Is there a spirit of openness? Given all the activities of Idle No More, will there be a change in spirit — a spirit of willingness to accommodate Aboriginal people? Is there that? Have we been influenced in any way by the activities of First Nations over the last few months? I am searching for and trying to see that there has been a small change because of their actions.
First Nations will be consulted much better in the future, and there will be a new spirit in our country. If we can show that, it will help a lot and persuade First Nations in our country that at least the Senate is a place of sober second thought. We can provide that and give them some comfort that there is a new spirit of change and that we are willing to take the time. It is nothing more than that. We could defer the bill for a few weeks on that basis to have that examination. This is all I seek.
The Chair: Senator Sibbeston, I appreciate your comments. We have lined up witnesses for the next couple of weeks. I am not presupposing where the vote on the motion will go but, to be fair, we have heard from one group of witnesses outside of the minister and staff. It is important for us to hear from those witnesses and hear some arguments, in support of or not, that reference the lawfulness of this proposed legislation. I do not know that for us to delay would change anything because we still need to hear from these witnesses, which is important.
If you wish, I will put the motion to a vote.
Senator Sibbeston: In response, we have meetings lined up with witnesses. There can never be an argument over such a fundamental issue. You will have supper tomorrow and then you will have a meeting. Well, it is okay to put these aside on this big issue of providing a little more time for consultation.
The Chair: Thank you.
Senator Patterson: In response to Senator Sibbeston, I have no problem with examining the issue of the constitutionality. Do not forget that there was another amendment suggested by the witnesses that would solve the problem by exempting self-governing nations. That would make the issue of the constitutionality of the bill go away without an expensive lawsuit, so we should examine that suggested amendment as well. I would like to say that I have an open mind about those suggestions.
However, we will not get anywhere by stopping our consideration of the bill. We can examine those issues without deferring the bill. We should call witnesses who can help us consider those issues. As the sponsor of the bill, I am willing to give those suggestions careful consideration. Stopping the proceedings by delaying our consideration of the bill and our hearing other points of view that might be helpful will not be responsible to our duties as legislators to give these important pieces of proposed legislation careful consideration.
Senator Dyck: I want to put on the record one sentence from an article in The Globe and Mail on January 16, 2013:
The opaque world of the Department of Justice was laid bare in open court this week as senior lawyer Edgar Schmidt, 60, said he and his colleagues have been receiving "illegal" instructions from superiors for years.
The reference is to Charter rights. Honourable senators could look at the article by Bill Curry, reporter.
The Chair: There being no further debate, we will vote on the motion. I announce ahead of time that I will vote against the motion.
Senator Sibbeston: You do not have to.
The Chair: I choose to. Thank you senator, I appreciate that.
Senator Sibbeston: We know where you stand and what your instructions are.
The Chair: All in favour of the motion? Contrary to the motion?
The Chair: No abstentions. The motion is defeated. We will carry on with questions to witnesses.
Senator Patterson: I observe that the witnesses are exceptional in that, first, they are self-governing; and, second, they have set a standard of governance with an independent process for setting remuneration and dealing with conflict that is exemplary and democratic. They suggest that every band can do this.
I would like to ask you about the assumption that you say is wrong: If members have information, it is not accountability. You ask what members can do if they have information. Well, they can do what every other electorate of every other municipal, provincial, territorial and federal government can do in Canada: make changes through the democratic process. That is not an idle suggestion. It happened with the Government of Canada probably over the revelations of the Gomery inquiry, which was a factor in a change of government at the national level. It may have been a factor in the last Quebec provincial election, and it will be a factor in municipal elections in Quebec.
Is knowledge not power? Is giving information to band members about how monies are being spent in their community the best way of requiring accountability, which would lead to change? Do you not believe in the electoral process?
Mr. Twinn: Of course I believe in the electoral process. However, sometimes it is a long process. If the First Nation has a three-year term and the membership is being informed that their chief and council have given themselves 400 per cent raises, then three years is a long time to wait to remedy it. By that time, the bleeding has happened. If they have taken half a million dollars a year out of the revenues of that First Nation, is that not 10 or 15 students in school? Is that not two houses that could have been built? That is why I do not think it is the best answer. That is why in our nation we have a recall provision. I do not see a recall provision in the Indian Act. Most First Nations that have their customary election act are under the Indian Act.
I do not think it is the best. It is better than nothing, but I do believe that First Nations are deserving of the best governance that they want for themselves and not to be dictated by someone in Ottawa as to what their best remedy is. They know their best remedy.
I would like to touch on your comment about the Department of Justice Charter-proofing any legislation that is being passed. I am not suggesting that Bill C-27 violates the Charter. I believe it violates section 35, our inherent rights as First Nations in this country to govern ourselves. I do not think the Department of Justice gives one rat's you-know- what about that. I do not think they even reviewed it from that perspective.
Senator Patterson: I want to comment on the allegations that this bill is paternalistic, father knows best, Big Brother watching you. It seems to me that the honourable chief was suggesting that the bill should prescribe remedies in situations where there is abuse of office, like prescribing recall provisions, prescribing an independent process for setting remuneration, prescribing conflict provisions as your band has done. To me, that would be Big Brother and father knows best. Instead, the act has let the light shine on disclosure and given the bands, as your band members have done, the power to take matters into their own hands as they see fit.
As I understand it, you suggest that the bill is not necessary but, if it is necessary, there should be a provision that basically says when a certain percentage of members express an interest in good governance, then the minister will provide financial support. The bad bands are the exception, I acknowledge. We do not want to dwell on those because there are many progressive bands, but with a band that is abusing its process, you are recommending we throw good money after bad and throw money at the problem by asking the minister to provide more financial support.
How will the members find out that they need good governance if that same band council does not provide information, which they will not be obliged to do publicly if we do not pass this bill?
Mr. Twinn: First, I am not suggesting that the bill be amended with some remedies in place. Those remedies should come from the people who have put that government in place. We have a different view of justice when it comes to First Nations. We are not an arrest-and-detain type of justice system. We are a reconciliation justice process and that should be made available, because maybe you do not need to remove your chief and council. Maybe they just need to be put in place by the membership or the elders of the community, as their culture dictates.
When I say give money, I am not saying throw a blank cheque. As with any agreement given out there, there are strings attached. Maybe the funding is for governance, financial accountability; maybe the money is not to go to chief and council but to a committee of the membership to start the process and develop their fundamental principles to develop these accountability practices for themselves.
There is not just one way to do things, but to allow the people to take from their heart what they need to put on the table for themselves, to be free-thinking come up with thinking outside the box. Sometimes that outside-the-box thinking is the right way to do things. We cannot always live in a box such as the reserves. We need to be able to expand and develop as a culture, as everyone else in this country is allowed to do.
Senator Meredith: You mentioned the Indian Act. With respect to the direction, how do you feel that First Nations should go beyond the Indian Act with respect to accountability and transparency? You alluded to the fact that some bands are not being strictly transparent, not being accountable, and there is a capacity issue as well. They have solicited your support, and you indicated at the outset of your presentation that you do not have the resources to be sharing your best practices with these other bands.
How do we go beyond the Indian Act in terms of developing full transparency and accountability that is being requested by Canadians who are supporting some of these bands?
Mr. Twinn: A very long answer, I guess, is the only thing I can give you. The reality is that the youth will be the answer. There are many well-educated youth that are coming up and will take the bull by the horns.
We cannot force First Nations into governance. We need them to come at their own pace. That is why legislation such as Bill S-212 is a nice bill, where you opt in when you are ready. Let us not force everyone. Councils that are misspending money, if they are out there, let them be dealt with by the full extent of the law, but at the same time, let us give the people of that nation the ability to empower themselves and they will bring in the accountability they want. They just need to know that it is available.
For Treaty 8, after 112 years under the Indian Act, it is hard to break free. There is a feeling of desperation. That is why we have an Idle No More movement. The grassroots people are waking up. They are seeing. All we are asking is for a light at the end of the tunnel. Do not snuff it out with legislation such as Bill C-27 and all the other legislation that is coming down that seems to be ill thought out. We have Bill S-8, for safe drinking water. Everyone wants safe drinking water, but the federal government will put the liability on chief and council with no funds to provide safe drinking water. How is that helping?
We need to take a step back and look at First Nations and ask: Are they really as backwards as we believe they are? I do not think we are. You have a First Nation such as ours leading the way; others are starting to follow. I have requests from the Wesley band to make a presentation to their council. They want to go down this self-government route. I will go there on my own dime, I believe in it so much.
I have made presentations to the Swan River First Nation. The answer is from the First Nations, and I want to be a part of the answer. I do not want to be in the way. As that young man said, "Chiefs, do something or get out of the way." I am not getting out of the way. I will be there for him. That is the only way I can answer that.
Senator Ataullahjan: I apologize for being late; we were at the mercy of an airline. Many of my questions have been answered.
Chief Twinn, as Grand Chief of Treaty 8 First Nations of Alberta, you must have spoken to other First Nations about this issue. Do you feel there is a common consensus among the Treaty 8 First Nations of Alberta?
Mr. Twinn: Absolutely. We are developing our strategic plan to move forward so Treaty 8 Alberta can be an organization to facilitate these practices, to develop good governance for the people. I have had many comments. I have had former chief Joe Whitehead Jr. from Woodland Cree and also from Chief Arthur Noskey, who said, "I have seen your constitution and like it: Can I just take "Sawridge" off and put my First Nation's name on there?" I said, "I do not know. Can you? It is not up to you, chief; it is up to your people."
Section 35 inherent rights do not belong to an Indian Act chief and council. An Indian Act chief and council is a delegated authority from the minister. You go to your people and ask them if you can do it. If they say yes, then yes, you can do it, but I guarantee they will want some changes because every First Nation is unique. A large First Nation such as the Blood tribe, the assembly being every adult member, might be too cumbersome. Allow them to use it as a framework, a guideline, to help them develop this good governance that they want.
I think there is a great possibility that a majority of the First Nations in Treaty 8 are willing to step down this road, but there are no funds made available. That is why we are asking about the amendment to say that if a majority of the members of that nation want to go down that way, make some resources available so that it does not take away from kids going to school, putting roofs over their heads and providing infrastructure. I think that is the best way I can answer that question.
Senator Dyck: Thank you for this great discussion. I wish to follow up on what Senator Patterson was talking about.
We know that some First Nations do not follow best practices as they are now and will not provide financial information to their band members with regard to salaries or band-owned enterprises. I think that is a reality that we have to face. My reading of the bill is that it is supposed to force them to provide that information to their band members.
As I understood your presentation, you said that there are already policies, procedures and regulations that say that those bad bands have to post that information, and they are not. What will this bill do that will make them comply? Is there anything different in the bill that will make them comply and follow the regulations, or are the regulations any different? What is it about this bill that will make those bad bands adopt different behaviour?
Mr. Twinn: I do not know. That is the problem: We do not know.
Senator Dyck: I thought you had said that there were policies and regulations. I think you referred to the Indian Bands Revenue Moneys Regulations, which say that the band is supposed to put that information about salaries and about band-owned enterprises up. They are supposed to post it somewhere. Is that not right?
Mr. McKinney: Yes. The regulations, as well as the handbook for accounting for First Nations, require not only the posting of the information but also the provision of the financial information to the minister or the department. The consequence, currently, is that if a First Nation does not provide appropriate audit requirements, the government will refuse to provide funds. I do not know how this bill changes that, other than that this bill now makes it public to the whole world and provides for a court order, which is very likely possible under the regulations in any event. If there is a regulation that you are not complying with, someone can go to court and seek a mandamus order or some kind of order requiring you to comply. I do not see how this bill fixes that problem. If someone does not want to follow the law, they are not going to follow the law.
Senator Dyck: There is really no difference in terms of compliance, then. The same remedies would be available. The band member could apply for a court order or the department could apply the penalties that are within the bill. Is that correct?
Mr. McKinney: Yes. I do not understand how the bill changes the remedies from what they are currently.
Senator Raine: As I see it, the biggest problem you have with the bill is the need to disclose private financial documents to the general public, publishing them so that anyone, not just the First Nation, can see them. There are two things, really. If you had self-government, you could then decide, in your own laws, what you do, and everything would be fine. However, as you said, not everyone is ready for self-government at the same time. Do you think that, with the amendments that you have suggested, this legislation could go forward to assist in the evolution, if you like, of those First Nations who are not yet ready for self-government?
Mr. Twinn: I guess the answer is that it could not hurt. However, again I think the remedies and solutions have to come from the people. You have to allow the people the ability to do so, and this takes away that ability. This will keep people suspicious of the true path that this government wants to take when it comes to the First Nations and our treaties.
We had a meeting in January with the Prime Minister to talk about implementation of the treaty. What is a treaty? A treaty is an agreement between sovereign nations. Only nations can enter into treaties. We were sovereign nations prior to contact, and all we are saying is allow us to go back and evolve as peoples, to provide our own governance to our peoples.
I do not believe it is the right of every Canadian to look at the corporate financials of our First Nation, which would have to be put out there for 10 years on a public website. There are extra costs for us to do this, when we are already accountable to our membership. I think self-government is the way to go.
Will it happen? Maybe. However, we are self-governing, but we are not recognized as a self-governing First Nation by the Government of Canada. It will take some negotiation and probably the House of Commons passing legislation recognizing our self-government and our constitution, which is kind of sad when you look at section 35. If we have the inherent right to govern ourselves, why do we have to go through a big brother in Ottawa for them to tell us what our self-governing practices should be? These are our inherent rights, and we are sovereign. We should be allowed to move forward. Canada asserts its sovereignty. It does not ask the Queen of England how to pass a law or what laws it should pass. We are just asking to be treated the same.
Senator Raine: Our colleague Senator St. Germain tabled Bill S-212 on his last day here. Under "Financial accountability," subclause 5(4) of that bill states:
(4) The proposed constitution must provide that
(a) The First Nation must maintain its accounts and prepare its consolidated financial statements annually in accordance with generally accepted accounting principles; and
(b) The financial statements must
(i) be audited, in accordance with generally accepted auditing standards, by an independent auditor who is a member in good standing of a corporation, institute or association of auditors incorporated under an Act of the legislature of a province,
(ii) include a statement of the remuneration and expenses paid to each member of the governing body and
(iii) be made available to citizens of the First Nation within six months after the end of the fiscal year, and a copy provided to any person requesting one on payment of a reasonable fee.
In that outline of financial accountability, it does give the opportunity, as does, I believe, a private corporation, for anyone, on payment of a reasonable fee, to find out the financials of the organization. Have you looked at that clause? What do you think of that?
Mr. Twinn: I guess it would be open to interpretation. If it was any person of that nation, no problem. In fact, we would not even charge a fee. Should it be any person in the general public? I do not believe so, but I am not the writer of the bill. I am not in control of passing the bill. I am just saying that the bill is an instrument that First Nations can move toward. It is that light that says, "We will not oppress you forever. If you come up with your own good governance, we will recognize that and let you live your life as the treaties have promised."
Senator Meredith: I have a point of clarification for Mr. Twinn and Mr. McKinney. Self-governing First Nations are exempt from this disclosure, correct?
Mr. Twinn: Recognized self-governing.
Senator Meredith: Recognized?
Mr. Twinn: They must have a comprehensive self-government agreement with Canada.
Senator Meredith: Will you negotiate one?
Mr. Twinn: I would love to, but we have done that. Canada has not stepped up to the plate to enact our agreement and has not shown a willingness to enter into discussions as of late. However, if the opportunity were to arise, I would be here with bells on.
Senator Meredith: In terms of clarification on that, going forward — with respect to those who are recognized or exempt from it and those who are not — in your opinion, to whom and in what ways are First Nations accountable for their financial management? Who are you accountable to?
Mr. McKinney: The First Nations are accountable primarily to their citizens and members. Certainly in the case of Sawridge, the Sawridge council is accountable to its citizens. They are also accountable to Canada for public funds. If they receive tax dollars, they have to account for those. If they receive funds from other sources, they have to account for those funds. That does not mean they have to account for all of their accounting to those other parties.
Senator Meredith: That is a point of contention here. You want to be accountable for the taxpayers' funds that are paid to the bands. However, you feel that you should not have to disclose any band generated funds
Mr. McKinney: Yes.
Mr. Twinn: To the public.
Mr. McKinney: Yes. That has been the First Nation's practice in the past. They have always accounted for taxpayer dollars. If we receive money from the government, we provide an accounting of what we did with those funds. However, that does not include an accounting of funds we receive from other sources that were used for other purposes.
I just wanted to clarify the first question about comprehensive self-government. The bill as it currently stands not only requires a comprehensive agreement, but it has to be given effect by an act of Parliament. It has to be an actual act of Parliament in respect of that self-government before they are exempt under the current drafting of the bill.
Senator Patterson: I think this has been a good debate and I am glad we did not stop our proceedings. I would like to ask about the disclosure to the public. I believe your constitution, if I understand it correctly, prohibits information being provided to anyone but band members. I would like to ask you two questions. First, why do you feel this is necessary? Second, if you could put yourselves in our shoes as legislators in the Parliament of Canada, would you not understand that hard-working taxpayers have some interest in seeing where their money goes in respect to all aspects of government, including the expenditures of departments and monies that flow to First Nations governments through the Department of Aboriginal Affairs and other departments? What would you say to regular taxpayers who want to know that their hard-earned money is being used wisely and to good effect?
Mr. Twinn: First, I would say that we are accountable to your taxpayers' dollars. It is a very small percentage of our total budget and revenues. We do account for that. We give the department the full financial information on what funds we receive. We are not opposed to the general public seeing that. That is their taxpayer dollars.
However, what business is it of the general public to see our private financial information, derived from our own resources and not the federal government or the taxpayers? We have no problem with that. In fact, it is not mine; it is the First Nations people, the members of the First Nation, who keep their information confidential. We are a very private people and always have been. That is why we are a very small nation and have been since time immemorial. That is our customary way.
Senator Patterson: Thank you for that answer.
This follows up on Senator Dyck's question. I think you agree that members of the public have an interest in seeing at least government monies that go into First Nations. Does Bill C-27 not just make it easier for members of the public to get this information by requiring it to be posted online? Is it not simply a mechanism that is a lot better than the present approach of posting on the reserve?
Mr. McKinney: The law says you are supposed post the financials, but the real practice is that people are provided with hard copies to look at. In the Montana decision, which was in the 1980s, the court recognized that no one actually posts them and puts them up on a tree on reserve. They have them in their office. People come in and see them. There is a mechanism, but this bill goes much beyond providing the information to the members. It is providing it to the general public and to the world. That would be tantamount to Canada.
Canada's finances are relatively public, but do Americans or people from Britain or France look at our financials and do we respect what they say about them? There is no relevance to them. They may look at them. We may see it as spying or something. They have no say in what we do as Canadians with our money. The same goes for our First Nation. The general public does not need to have a say in what a First Nation does with their money. They have a say in what they do with the public funds, the tax dollars, which are not the issue here. It is the First Nation's own funds.
Senator Meredith: I am always curious as to the response of the band members to government legislation. What is the general feeling given all the news around Attawapiskat? What are the members saying in terms of whether this a direction the government should be going in? I know there is some opposition to it, obviously, from where the chief stands, but what are the members saying in terms of those who has requested information and has not received it?
Mr. Twinn: I am not privy to those discussions within other First Nations.
Senator Meredith: Generally. You have your ears to the ground. What has been the response?
Mr. Twinn: There is not a singular response. Several members are asking why? I do not have a problem with my chief and council. Why is this happening? We are doing our own thing.
There will always be disgruntled people. They may have a very good reason and they may not. There has been a lot of trauma dealt to First Nations people over the centuries. It is intergenerational. Some of these people are hurt and will lash out at any opportunity they can. We have a couple of members who will come to the assembly and lash out every time. However, because a couple of members lash out, does that mean we stop everything? No. We have to move forward.
Senator Meredith: What are they lashing out at with respect to the requests for information? Do they see funds being spent that are not going into the community, and where chiefs or band leaders are being paid exorbitant salaries? Is this what they are lashing out at, and does this bill address their concerns as to how they can remedy that situation?
Mr. Twinn: I have not heard of anything in Treaty 8. I do not think I have heard anything from any of the members of Treaty 8 lashing out in this fashion on specifically exorbitant amounts to chiefs and councils. I do not think there are that many well-off First Nations that can afford to supplement. The exorbitant numbers I have heard are maybe from the eastern side of the country.
I do not know if you understand what chiefs do, but I really do not have the time to go to every area and listen to people. I have other things I have to do. I have a meeting tomorrow. I have to rush out of here, get on a plane and meet with an oil company that wants advice on a proposal. I do several things. I wear a trustee hat. I am a president of a corporation. I do not have the ability to talk to every one of the 2 million Aboriginal people in Canada, so it is kind of hard to answer that question.
Senator Meredith: I was not saying that you would know exactly what each member is saying, but for the members of this committee, I am interested in the general feeling on this particular legislation. Thank you so much.
Senator Seth: Chief Twinn, I keep repeating the same thing: financial accountability and transparency are very important. Transparency will increase confidence in First Nation members and with other governments and with investors, et cetera. This can in the future build a stronger relationship and ultimately a better environment for development and investment for First Nations.
This is what we are discussing here, over and over, the same thing. How does a First Nation member access information if it is not provided by the chief and council? How should we get it if it is not audited once a year, not posted on the web, et cetera? How should we get the information?
Mr. Twinn: We are not suggesting that audits be thrown out and not adhered to. Audits have to be part of the governance. However, access to the information should be developed by the people, how they want that information to be accessed and what their requirements are. Just putting it on a website is not an answer. If you were to come and visit northern Alberta, you would find that many of the reserves do not have Internet access, so that is an exercise in futility.
As far as access is concerned, it can be by request, as our Financial Management Act and our constitution state. You make a request, and then the council is under an obligation to provide that and to bring it out. Within our constitution, we even allow members to bring accountants or lawyers to help them go through the numbers. Financial statements are not the easiest things to follow, so we allow that.
It should be up to the nation, not to someone in Ottawa saying, "This is how you report." We are not children anymore. We are not wards of the government. The Indian Act should be abolished, but it cannot be just abolished so that we are left with a vacuum. That is where self-governance and negotiations come into play.
The Chair: I thank you very much, Mr. McKinney and Chief Twinn. I truly appreciate your attendance today and the information you provided. Obviously, it is fodder for great debate, probably the best one I have seen. I want to thank both of you very much for being here today.
(The committee adjourned.)