Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 5 - Evidence - March 25, 2014
OTTAWA, Tuesday, March 25, 2014
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations, met this day at 9:30 a.m. to give consideration to the bill.
Senator Dennis Glen Patterson (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, either here in the room or via CPAC or the Web. I'm Dennis Patterson from Nunavut, chair of the committee, and our mandate is to examine legislation and matters relating to the Aboriginal peoples of Canada generally.
This morning we will begin consideration of Bill C-9, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations.
This morning we'll hear from two departments — Aboriginal Affairs and Northern Development Canada and the Department of Justice — as well as from the Canadian Bar Association.
Before proceeding to testimony, I would like to go around the table and ask the members of the committee to please introduce themselves.
Senator Moore: Good morning. Wilfred Moore from Nova Scotia.
Senator Dyck: Lillian Dyck, Saskatchewan.
Senator Tannas: Scott Tannas from Alberta.
Senator Beyak: Lynn Beyak from northwestern Ontario.
Senator Meredith: Senator Don Meredith, Ontario. Welcome.
Senator Wallace: Good morning. John Wallace, New Brunswick.
The Chair: I know the members of the committee will join me in welcoming our first panel, from Aboriginal Affairs and Northern Development Canada, Brenda Kustra, Director General, Governance Branch, Regional Operations Sector, who is not unfamiliar to this committee; and from the Department of Justice, Tom Vincent, Legal Counsel, Operations and Programs (Legal Services).
I believe, Ms. Kustra, you are beginning and we look forward to your presentation, which will be followed by questions from senators. Please proceed.
[Translation]
Brenda Kustra, Director General, Governance Branch, Regional Operation Sector, Aboriginal Affairs and Northern Development Canada: Mr. Chairman, thank you for inviting me to appear today before the committee.
Bill C-9, an Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations, was before this committee almost two years ago under its former number Bill S-6. While there has been much debate on the bill, it has not changed since that time. I am here today to offer you an overview of the bill and describe for you how it will go a long way towards stabilizing the governance of first nations who choose to opt in.
[English]
It is important for committee members to remember that this bill was drafted based on recommendations provided to the Minister of Aboriginal Affairs and Northern Development by the Atlantic Policy Congress of First Nations Chiefs and the Assembly of Manitoba Chiefs, under the leadership of the former grand chief, Ron Evans.
These organizations approached the department back in 2008, asking us to come to the table and work on building an alternative election system to the one under the Indian Act. From the Assembly of Manitoba Chiefs' perspective, they saw a lot of benefit if First Nations in the province had the opportunity to line up their terms of office, hold their elections on a common day and if all councils held office concurrently for four years. The Atlantic Policy Congress was interested in having longer terms of office.
Shortly after the joint work began with these organizations, it became clear to all that this could be an opportunity to not only address the specific issues raised by the organizations, but also to build a solid, open and transparent election system for First Nations.
The short two-year term of office is one of the provisions of the Indian Act that is most often criticized. Two years is simply not enough time for a band council to develop comprehensive plans, build important partnerships with industry, other levels of government and other nations, and launch and implement projects that will improve the well- being of their community. As soon as a band council sets its priorities, begins exploring possibilities and launching projects, it faces another election.
Beyond the limitations imposed by the two-year term of office, the Indian Act election system has a loose process for the nomination of candidates, where an individual doesn't even have to accept a nomination before their name is added to the ballot and where the same individual can run for and actually be elected to office for both chief and councillor in the same election.
Recently you have probably read about a First Nation in British Columbia where one of the candidates for chief is not even a member of the First Nation. Under Bill C-9, candidates for all positions will have to be members of that First Nation. Add to this a mail-in ballot system that is open to abuse and where there are no defined offences and penalties to deter corrupt election practices, such as vote buying and offering bribes.
Finally, election appeals are investigated and decided upon by the Minister of Aboriginal Affairs and the Governor- in-Council, which is cabinet, and cabinet has the power to set aside elections. For any other level of government, only the courts have this power.
With these weaknesses identified, and consensus that they needed to be addressed by all parties, we worked jointly with the Atlantic Policy Congress of First Nations Chiefs and the Assembly of Manitoba Chiefs to fully explore these issues and develop solutions.
These regional First Nations organizations developed their recommendations after having held extensive engagement and consultations in their own parts of the country with First Nations leaders, governance experts and First Nations community members. Before going forward with the legislation, we asked these organizations to jointly lead a national engagement effort. They were very happy to do so. They presented their recommendations to First Nations organizations and leaders in other parts of the country. As an example of these efforts, Ron Evans, the former Grand Chief of the Assembly of Manitoba Chiefs, made presentations to the Federation of Saskatchewan Indian Nations, the Alberta treaty chiefs and at four individual forums in British Columbia.
[Translation]
At this point, it would be important for me to tell you that, of the 617 first nations in Canada, 238 hold elections under the Indian Act, 343 hold their elections under their own community-based election rules, and 36 are self- governing first nations with election rules that are in their constitutions.
This legislation will be of primary interest to the 238 first nations who hold their elections under the Indian Act. First nations who hold their elections under their own community rules could choose to opt for the election system under bill C-9 if they see it as offering solutions to some of the challenges in their own election system.
[English]
The first recommendation both organizations made was for the development of a new piece of legislation and not a modification to the Indian Act. This way, First Nations who prefer the Indian Act election system, because it works for them, can continue to use that election system. Bill C-9 is a stand-alone piece of legislation which offers an alternative to First Nations who want to shed another piece of the archaic Indian Act.
The other recommendations of the organizations were very specific as to the content of the legislation, and those recommendations are reflected in the bill. The Atlantic Policy Congress has made this assertion to a number of parliamentary committees on more than one occasion.
First and foremost, Bill C-9 affords four-year terms, which is comparable to federal, provincial and most municipal governments. The Assembly of Manitoba Chiefs saw obvious advantages for several band councils to hold their elections on the same day and hold office concurrently. The bill contains provisions that will allow a minimum of six First Nations to line up their terms of office and hold their elections on the same day.
This bill also provides a more robust process for the nomination of candidates where nominees have to accept their nomination before becoming a candidate and where no person can be a candidate for both a chief and councillor position in the same election.
The bill contains defined offences and penalties surrounding corrupt election practices similar to those found in the Canada Elections Act, where people who offer bribes or purchase mail-in ballots could face fines and imprisonment.
The bill does not afford any powers to the minister or the Governor-in-Council with respect to election appeals. Just as in other electoral legislation, the bill places these powers with the courts.
I think it's also important to point out that this bill contains provisions that allow a First Nation to remove itself from this legislation at a later time should they decide to develop and ratify a community election code.
In closing, I hope my introduction here today has allowed you to gain an appreciation for the collaborative work that has gone into the development of this bill and has further allowed you to understand the purpose of the bill, what it will do and, most importantly, how it will support and underpin strong First Nation governments.
[Translation]
Thank you once more for having given me the opportunity to appear before you. It will be my pleasure to answer your questions.
[English]
The Chair: Thank you, Ms. Kustra. I think there's at least one member of this committee here this morning who remembers the previous bill, Bill S-6, and our review of it almost two years ago, so thank you for your testimony.
I will defer to the deputy chair, Senator Dyck.
Senator Dyck: Thank you for your presentations this morning. As our chair has indicated, we were through this process about two years ago and a number of us were at the table then.
I have a number of questions for you. I'm going to start with a general question.
Could you give us a general statement with regard to the scope of the problem with First Nation elections? That would be: How many First Nations do you think there are that have serious election problems? What percentage would that be of the total number of First Nations? Can you identify them by type of elections they hold, for example, Indian Act elections versus the two types of custom codes versus hereditary? Do you have that information?
Ms. Kustra: Yes, I can provide that information to committee members. Thank you for that question, Senator Dyck.
We do track the number of Indian Act election appeals that are made because a very specific process in the Indian Act must be followed. From 2013 to the present day, there have been 126 elections held under the Indian Act and 17 per cent of these have been appealed; that's 21 appeals out of 126 elections held. We currently have eight election appeals in progress.
Concerning the data with respect to community custom elections, we don't keep that data in the department. Those elections are held under a community-specific code. Each code may have its own appeal mechanism. Members of the community would be aware of what that appeal mechanism is and would follow it. Some could be a community-based tribunal; others could actually be a reference to the court.
Similarly, with the electoral provisions of self-government agreements, there is no role for the department and we don't have any statistics. We only have those that relate to the Indian Act.
Senator Dyck: Following along with that, with regard to custom code First Nations, how many are in the type that reverted to custom?
Ms. Kustra: The conversion to custom policy has been in place, I think, since 1996. For First Nations that made a request to the department to move out of the Indian Act into custom, I don't have that number at my fingertips, but there are a majority of those custom First Nations that never were under the Indian Act. They have always had a community custom, so they did not go through the conversion process to move out of the Indian Act and into their own community custom.
Senator Dyck: I know at one point, certainly in the report that this committee produced several years ago, it was suggested that the department pursue the option of reverting to custom for those custom code First Nations that haven't gone that route, that there should be a push to move them towards that route. Why are we choosing the option of having Bill C-9 versus pushing people towards developing their own custom code?
Ms. Kustra: Thank you for that question.
The department continues to respond to First Nations who themselves identify that they wish to move out of the Indian Act into community custom. It really is not a matter of the department pushing First Nations in that direction. We respond to First Nations who approach the department, sometimes with a draft code. We work with them through the preparation of their code to ensure that it is compliant with the Charter of Rights and Freedoms and it has amendment processes included in their particular code.
I believe right now we have close to 20 active files. I might be off on the number, but I believe there are about 20 First Nations who have engaged the department in information-gathering and work on a community-based code which could eventually see them move out of the Indian Act and into their community custom code. That process is ongoing.
Sometimes, when there is an election in the community, if the reversion to custom has been started by a previous chief and a new chief and council comes in, they may not wish to pursue it so it kind of sits idle for a little while, and sometimes it comes back for continued discussion.
Senator Dyck: How many First Nations do you expect will actually opt in to this legislation, considering that you might say that the better route — perhaps the ideal route — would seem to be the custom code reversion? That's perhaps debatable, but it seems like the better option is to design your own code. How many do you expect will actually opt in?
Ms. Kustra: We have had very strong indication from the Atlantic Policy Congress that a majority of the First Nations in the Atlantic region that elect their leaders under the Indian Act are interested in opting in. I believe representatives from that organization will be appearing as witnesses before the committee, and they could probably give you a more precise number.
We still have the interest from Manitoba chiefs who are interested in lining up for a common election day. I don't know how many that is right now. I think we're going to need to be in a position to actually have a piece of legislation so that First Nations can open the discussion and determine whether or not this is a way to go, but it will be an option for those First Nations who want to take advantage of it. I don't have a specific number.
Senator Dyck: As you know, when we dealt with this bill last time, there was a lot of discussion and concern with regard to paragraph 3(1)(b), allowing the minister to impose Bill C-9 on First Nations. Looking at the legislative summary, when the Atlantic Policy Congress and the AMC did their consultation and developed a report, one of the things included in the report was allowing no role for the minister in election appeals and the possible creation of an independent appeals tribunal. It focused on the part of allowing no role for the minister in election appeals. Paragraph 3(1)(b) actually allows the minister to make a First Nation come under the umbrella of Bill C-9. I believe there's a lot of resistance to that amongst many First Nations, and I guess we'll hear that from the witnesses. Can you explain why the minister needs that type of power?
Ms. Kustra: The power of the minister to bring a First Nation into the legislation already exists in the Indian Act. The minister currently has the power to bring a First Nation, operating under a community custom election code, under the act when he deems it advisable for the good governance of the community. Those are the words in the Indian Act.
The power of the minister to bring First Nations into Bill C-9 exists to afford an opportunity for the minister to resolve protracted leadership disputes that significantly compromise the governance of a First Nation. In looking at this power, in fact the way the authority for the minister is written in this bill is more restrictive than it is under the Indian Act. Under the Indian Act, the words are when the minister ``deems it advisable.'' Under Bill C-9 the words are very specific, when he ``. . . is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation. . . .''
Also, in terms of looking at the power, I hope folks would agree that if a First Nation is in a leadership dispute situation, it doesn't really make a lot of sense to bring that First Nation into an Indian Act system, which is far from ideal and has many weaknesses. Providing that authority to the minister under the new legislation would bring that troubled community into a very robust election system, and that's why this authority exists.
Senator Dyck: Could I ask a quick supplementary to that? Currently the minister could not order a custom code First Nation to undergo Bill C-9, but the minister could order them to undergo an Indian Act election?
Ms. Kustra: Yes, because Bill C-9 is not legislation yet. But right now, if there was a leadership dispute that had been going on for a long time, compromising the governance of the First Nation, the minister could deem it advisable and could bring a custom First Nation under the Indian Act. That power to bring a custom nation under the Indian Act has only been used three times in the last 12 years, so it's taken very seriously. It's a serious action, and there are many steps that the department goes through in working with the First Nation to try to resolve the issues before that final step of bringing the nation into the federal legislation actually occurs.
The Chair: Just before I turn to Senator Moore, I'd just like to ask a couple of questions following up on Senator Dyck's questions.
First of all, she spoke about custom code reversion, I think she described it as, and suggested that this option should be perhaps encouraged. I understand that the department doesn't get involved in custom code elections and maybe doesn't know a lot about how they work. Maybe I'm overstating that.
Is it true that custom code elections that might be encouraged or, as has been suggested, should be encouraged, may not contain protections of the Charter of Rights and Freedoms and may not contain some of what you describe as the more robust provisions in the bill before us against corrupt election practices or contain penalties against violating accepted democratic processes? I guess I'm asking: Do we know whether there would be protections and guarantees of fairness in custom code elections if we were to push that option?
Ms. Kustra: Thank you for that question, Senator Patterson.
When a First Nation comes forward requesting removal from the Indian Act to adopt their own community custom, the code they come forward with must contain provisions that respect the Charter of Rights and Freedoms and that include things such as amendment clauses and appeal mechanisms.
In the very first instance, the department is assured that the code that will guide the community elections does have those protections, as you have indicated. However, after that date, going forward into the future, the community can use the amendment process in their community code to change the code, and they could perhaps put in clauses that could limit some of the rights of individuals or could bring that particular code into a position where we would say it does not respect the Charter of Rights and Freedoms. However, there is absolutely no role for the department after that initial review of the code and the initial decision by the department to remove that First Nation from the Indian Act.
So it is compliant in the first instance but, after that, changes could be made that could bring it into a situation of non-compliance and infringement on the rights of some people.
The Chair: I wonder if I might also follow up on one of Senator Dyck's comments. It relates to the previous committee's recommendation that there should be an independent elections tribunal to deal with elections in dispute. I know the government, in its response to the committee report, rejected that recommendation. I wonder if you could describe why that recommendation was not accepted by the government of the day or the minister of the day.
Ms. Kustra: Yes, I can certainly provide some information in that regard.
The creation of an independent First Nations election appeal was reviewed, and it was not incorporated into the legislation, as you have indicated. There are some reasons around that decision. First, the offences and penalty provisions of this bill provide that corrupt practices would be responded to and addressed by law enforcement, Crown attorneys and the courts. So no matter what powers could be afforded to a First Nations or an independent election commission, any decision they would make would ultimately be subject to review in the courts.
Third, we felt, as did many others, that the courts already offer a transparent appeal mechanism that is open to public scrutiny and used by many levels of government. The First Nations Election Act creates a comparable election system for First Nations and, as such, the appeal process in this particular piece of legislation would mirror that in other election legislation.
Finally, I believe that the minister, in his answer to this question before one of the committees, indicated that significant resources would be required to support such a commission and that it was difficult to justify those resources in the fiscal environment.
Also, given the fact that at this point in time we don't know how many First Nations may opt into this legislation — and basically the question that Senator Dyck posed — we could potentially have a commission that might not have any business for a number of years.
For those reasons, it was felt that the establishment of an independent commission was not appropriate and that the more appropriate appeal mechanism was to the courts.
Senator Moore: Thank you, witnesses, for being here. I, too, would like to follow up on a couple of Senator Dyck's questions.
Ms. Kustra, you mentioned that from 2013 to date, 126 elections have been held under the act and that there are 21 appeals resulting from those elections. What was the nature of those appeals?
Ms. Kustra: There are a number of categories of appeals that come in. Some are based on technical breaches of the Indian Band Election Regulations, so it could be things like the polls not opening and closing in an appropriate period of time. It could be not providing appropriate facilities for people to cast their vote. It could be in terms of how ballots are treated.
So there are perceived technical breaches that are often the subject of appeals, and then there is the category around corrupt practices and vote buying. And there are quite a number of allegations that are the subject of the appeals that relate to those corrupt practices.
Senator Moore: Of the 21 appeals, how many were technical and how many dealt with corrupt practices?
Ms. Kustra: I don't have that number with me, senator.
Senator Moore: Could you get it and provide it to the clerk of the committee?
Ms. Kustra: Yes, I can.
I now have an answer to Senator Dyck's question on the number of communities that have converted to custom since the 1996 policy, and the number is 75.
Senator Moore: Okay. I thought somewhere along the way I heard you say 20 or so are working on this. Is that in addition to the 75?
Ms. Kustra: Yes. Seventy-five have already been removed from the Indian Act into their own community custom since 1996. About 20 First Nations that expressed an interest in being removed from the Indian Act, and we are working with those communities right now in the development of their code.
Senator Moore: How many First Nations make up the Atlantic Policy Congress of First Nations Chiefs Secretariat?
Ms. Kustra: There are about 35.
Senator Moore: And the Assembly of Manitoba Chiefs?
Ms. Kustra: There are 64.
Senator Moore: So we've got about 100. Are those 100 all currently conducting their elections under the act, or are some of them — or all of them — under the community custom code?
Ms. Kustra: Of the 64 or 65 First Nations in Manitoba, 37 of them conduct their elections under the Indian Act; there are a couple of hereditary chiefs, and the residual are under community custom.
In the Atlantic, I believe 27 of the 35 conduct their elections under the Indian Act.
Senator Moore: So dealing with the Assembly of Manitoba Chiefs, 37 of the 64 currently conduct their elections under the act. For the remaining 27, in terms of the position that came forward from that assembly, was that position the majority? Were the other 27 agreeable to that position? Do you know?
Ms. Kustra: I really can't answer that question. The decision ultimately to opt into the act will be made by the individual First Nation. While we have 37 communities in Manitoba that elect their leaders under the Indian Act, I think it would be presumptuous for me to say that we expect all 37 would come in because it will be an individual decision by the leaders in those communities as to where they want to go.
In the position that the current grand chief, Derek Nepinak, has come forward with, he has definitely expressed some concerns with the legislation, but he has also said that it is up to the individual leaders to make the decision that makes most sense for their communities. We still think that there is an opportunity for the Manitoba leaders to come forward, especially those that were looking to have a common election day, to be able to have the same leadership in place for four years, elected at the same time, so that they could negotiate with provincial governments, with other partners and resource development industries. We think that if there is an opportunity for First Nations to consider that, should this bill be passed into law, we'll see that interest come forward.
Senator Moore: I understand that, but in your comments here it looks like your department is certainly relying on the position taken by the Atlantic Policy Congress and by the Assembly of Manitoba Chiefs. I'm just wondering what the basis was of the positions put forward by those two groups. Was it just a majority? Was it a majority of the 30? I don't know how that position was arrived at, and I think it's important to know. Of the 64 in Manitoba, how many of the 37 under the act agree with this? How many of those not under the act agree with this? I think the same information should be forthcoming with regard to the Atlantic Policy Congress. If you could get that information, I think it would be instructive. Could you get that and provide it to the clerk, please?
Ms. Kustra: We don't have the information with respect to how many of the 37 chiefs would be supportive of the act. The leadership changes in those 37 communities. It may change every two years. We started on the development of this legislation in 2008 and we're in 2014 now, so six years have gone by. We could have had three different leaders in some of these communities. We don't have the numbers to be able to provide to the committee in terms of the individual support in the Manitoba leadership community.
Senator Moore: You mentioned 2008. That was the benchmark date when you say these two organizations approached the department. What was the support or the basis for the position put forward by those two organizations that they would have the authority or the mandate? I want to know what support they had at that time to bring this forward. I would think you must have something on that, because that's very important stuff. Maybe you could check your records and get back to us.
Ms. Kustra: We can certainly go back. I know resolutions were prepared by some of the organizations at the time. We do respect the position of the provincial leaders when they bring forward positions on behalf of their province or territory and bring forward opportunities to work with the federal government. Even if I went back to 2008 when we started this, I don't think I would have an actual tally nation by nation of how many of those 37 thought this was a good idea.
Senator Moore: Of the total 64, you're saying you don't know whether the position that was brought forward was a result of a 50 per cent plus 1, a simple majority, or whether it was roundly thought to be a good idea? Wouldn't you want to know that?
Ms. Kustra: It was the Grand Chief of the Assembly of Manitoba Chiefs who came forward with a representation from the folks. He's elected by the 64 leaders in the Manitoba region, and he came forward as the provincial leader of that organization to present views. We didn't go back and challenge exactly where he got that mandate. We respected what he brought forward to the table.
Senator Moore: Did you presume that he had the majority of the First Nations within his organization?
Ms. Kustra: We took him at his word, senator. He came forward as a provincial leader with a proposal to work with us. As I think we have said a number of times in various committees, one of the things that's really important is that we work with willing partners. When we have First Nations and First Nations leaders who have indicated that they want to work with us on opportunities to improve the conditions in their community, that's something that we're very interested in doing and we work with those leaders.
Senator Moore: I understand that, and I appreciate it.
The Chair: Senator Moore, maybe I can help you. The then grand chief, Ron Evans, will be appearing before the committee tomorrow, so you can pursue that then.
Senator Moore: Thank you.
Senator Lang: I would like to go back to the custom code elections. At the outset, the concern is that whatever process is laid out, it's laid out clearly and concisely for those who have to administer it and that it be as clear as it possibly can be in order to prevent any type of corruption or unfairness. I think that has to be the paramount reason for any change, and I know that's why this has been brought forward.
The concern I have is the question of the custom code elections. I was quite interested in your comments that the initial custom code approved by the First Nation and the department ensured that the Charter of Rights applied to that particular code, but then you went on to say amendments could be brought in by that First Nation to narrow, if I could use that word, the question of whether or not the Charter applied to that particular First Nation's election practices. First of all, can you maybe tell us how many First Nations who have custom code elections have actually amended their legislation, which then in turn narrows the responsibilities as far as the Charter of Rights is concerned?
Ms. Kustra: The department doesn't have the answer to that question because there is no responsibility for the First Nations who operate under a community custom to report back to the Minister of Aboriginal Affairs or to the department. Once they have been removed from the Indian Act, there is no role for the department. Amendments that may be done to those codes are done within the confines of that code, and there is no reporting.
Where we find out things are perhaps going a little awry is when there's an article in the newspaper that suggests that people who live off reserve can no longer vote. That very clearly, for Indian Act First Nations, was a decision that was taken by the courts, that all eligible voters, no matter where they live, should be able to vote. Therefore we have a mail-in ballot system.
If a First Nation has put in place residency rules or they don't provide for a mail-in ballot system, which essentially prohibits people who live outside the community and maybe as far away as Florida, Hawaii or Vancouver to come to northern Manitoba to vote in an election, it essentially takes away their right to vote.
The way that is challenged, it is the people of the community, the eligible voters, who need to challenge that particular code either through the challenge process available in their code or take it to court for a ruling that their rights have been negatively impacted by a code that has been put in place.
Senator Lang: It does cause some concern. What concerns me is that any organization can make these amendments that narrow down the responsibilities and the rights of Canadians arbitrarily.
Are these amendments to the election practices, which are put in after they've been approved and worked out between the department and the First Nations, public documents?
Ms. Kustra: There is no requirement for the First Nation to publish its community election code. It should be available to people who are subject to the code, but that is strictly within the purview of the First Nation.
Many First Nations who do operate under community custom have their code on their own individual website. That's a decision they make in terms of how public they want that code to be.
Many community members actually have trouble getting copies of their code. Sometimes the code isn't written down. It is an oral code. It's really hard to know whether it has been respected if it's not actually written down or publicly available.
Again, those are decisions of those individual governments, and there is no role for the department once they are outside of the federal legislative framework.
Senator Lang: I want to pursue this a little bit further. What I don't quite understand is now we can have an oral election practice, and that's acceptable if a First Nation decides that's the way they want to operate. Isn't that of some concern to the department, especially in view of the responsibilities vested with the First Nation and the financial resources provided by the federal government? Isn't that a huge concern to an organization such as yours, if election practices are not written down and we have no idea whether or not a mandate was properly received?
Ms. Kustra: It is a very good question. When you look at how a First Nation government works, we hope that it is the community that is holding the leadership accountable.
I will go back to my comment on oral codes. Those communities with oral traditions of leadership selection were never part of the Indian Act. Those existed and communities did not move out of the Indian Act into an oral tradition. As I said, they always have to have a written code to move from the Indian Act into a community custom. The communities that still have an oral tradition are certainly encouraged to write those down. Community people who want to know how leadership selection will be conducted in their community request of their leaders that they write those codes down. There is no requirement to do it, but we assume that there are processes that elect legitimate governments in these First Nations, and those governments are the parties that do business with the federal and provincial governments.
It's not a widespread issue in terms of the confidence that our department has in leadership across the country. There are over 600 communities, and we deal with over 600 chiefs and councils across the country. We negotiate funding agreements with them every year. Provincial governments and resource industries negotiate with them as legitimate leadership.
While there may be concerns from time to time when things go a little sideways, there is a lot of self-policing that does take place at the community level in terms of keeping the leadership accountable to the membership in the community and reinforcing that accountability between the First Nations government and its members, as opposed to between the First Nations government and the department.
Senator Dyck: In response to what Senator Lang was bringing up with First Nations who have custom code elections, who have amended their custom code so that they're no longer Charter compliant and so on, in your answer you did clearly state that the community members can then go to the courts; therefore, it's not cast in stone.
It would seem to me that a community member being able to go to court to challenge what is going on with their own elections is pretty much equivalent to what we do in provincial or federal elections, or even in the fair elections act, that ultimately it's the court that decides rather than a minister.
To me it seems more sensible that the court should decide rather than the minister coming in and surveying. In fact, at one point the previous minister had said he no longer wants to have a role in First Nation elections. He wants to devolve himself of the role. I'm curious as to why there's this need for ministerial control when there still always is the court, which is the independent system, so you're not having someone come in who has a vested interest.
Ms. Kustra: In situations where there is a protracted leadership dispute, we are sometimes in a situation where we have two factions in a community that have each declared that they have been elected according to the community code. We've got two sets of election results that come in to the department and each faction is alleging that they are the legitimate leadership.
In situations like that, we don't really know who the legitimate leader is because we don't analyze the custom code to determine whether it has been followed or whether the process has taken place according to the code. We have that kind of situation.
In that case, one faction or the other often does go to court to challenge the legitimacy of the other faction, and those situations are sometimes one-off situations and they get resolved. Each party makes their presentation to the court and the court will proclaim in terms of which party is the legitimate leadership; but often these leadership disputes go on for years and years and there is no consistent good governance in the community. There could be third- party managers in place actually managing the financial affairs of the community, but there is no governance. There is no leadership.
It's only in those situations of long-term, what we say in the legislation ``protracted leadership dispute,'' that the minister would exercise the power to actually bring that community into the Indian Act now as he has the power and would have the power and the authority under Bill C-9 to bring that nation into the legislation.
As I say, in the last 12 years that power under the Indian Act has only been exercised three times and only after a very long period of due diligence in terms of trying to work with the community to get the issue resolved at the community level before the minister has to intervene and make that final decision.
We always use all of our efforts and all of the tools available to us to try to get the community to resolve the issue itself. Maybe in some cases it's actually to rewrite their custom code to clarify the inconsistencies or the competing clauses in their code so that it's very clear in terms of what the election regime is for that community. When all else fails, when we've exhausted all of those opportunities, the minister then takes the decision to bring the nation under the Indian Act.
The Chair: Colleagues, we have another panel of witnesses appearing from the Canadian Bar Association. I have three more on the list, Senators Wallace, Meredith and Tannas. Could I ask you to be brief with your questions so we can hear from the next witnesses? I'm going to suggest that Ms. Kustra and Mr. Vincent remain after the Canadian Bar Association presentation in case there may be questions directed to you also.
Senator Wallace: Senator Tannas, of course, is the sponsor of the bill. In view of the time, I would be prepared to step aside. I want to make certain that he has full opportunity to ask whatever questions he has. I would suggest that.
The Chair: That's good. I have Senator Meredith next on the list and then Senator Tannas.
Senator Meredith: Ms. Kustra, it's good to see you again.
Of the 20 communities you've spoken about that you're working with, what are the challenges you face with those who want to opt in to this legislation? What do you see as hurdles for them, if any?
I will ask two questions quickly and then you can answer both at the same time. What are the economic benefits to these First Nations coming into this stand-alone legislation?
Ms. Kustra: With respect to the first question, Senator Meredith, around challenges, I think it's really trying to blend what the community wants to do in terms of their election system with some of the requirements we have for conversion; that is, Charter compliancy, an amendment formula and the community engagement process to ensure the community is fully informed of the changes. Those are not insurmountable challenges by any stretch of the imagination.
We also have template custom codes. We have what I would call kind of a draft that has all of the major headings that should be included in a community custom code, and then it's really up to the leaders and the community to decide exactly how they want to implement those various provisions. That's what I would say on challenges.
In terms of economic benefits, certainly longer term stability, leadership that's in place for four years and can negotiate and implement change in the community, is a real benefit. Where we have resource industries trying to negotiate impact benefit agreements with First Nations, they could be in the middle of a negotiation and there's a leadership change. All of a sudden, you've got new people at the table and you're starting over again. Many of these resource developments are, of course, time sensitive because of the markets. I think the stability that the First Nation can bring to those negotiations will be very important.
I think once we actually have an opportunity to test this four-year term of office, then we will be able to see some metrics around the economic benefits that may result from some of the robust provisions of this particular bill.
Senator Meredith: Thank you.
Senator Tannas: I wanted to get to the three ministerial interventions in the last 12 years and the worry that once that happens in the future and a First Nation is plucked out of their custom code and into this particular framework, how do they get back? Could you use the example of the three First Nations over the last 12 years to help highlight the migration back to the traditional ways?
Ms. Kustra: Thank you for that question, Senator Tannas.
The three First Nations in the last 12 years that were brought into this Indian Act from custom are Dakota Tipi in Manitoba, in 2002; Sandy Bay in Manitoba, in 2003; and the Algonquins of Barriere Lake in 2010. These First Nations have been holding their elections under the Indian Act since those dates. Those First Nations have the opportunity to convert to a community custom at any time by making a request of the minister and by preparing and presenting a community custom code that would be in compliance with our conversion to custom policy.
There is no impediment to these three First Nations going back to their community custom. I think it's interesting, though, that these nations have not approached the department and the minister to go back to a community custom that they are operating under the Indian Act. Who knows, these First Nations may actually decide to opt in to Bill C-9.
Senator Tannas: Thank you.
The Chair: Thank you very much.
I'd now like to invite our next panel of witnesses from the Canadian Bar Association. As I said, if you could kindly make yourselves available, I think there would be room for everybody. If you could perhaps stay at the table, we will welcome, from the Canadian Bar Association, Aimée Craft, Past Chair, National Aboriginal Law Section; and Gaylene Schellenberg, Lawyer, Legislation and Law Reform.
Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you for the invitation to present our views on Bill C-9 today. I'm Gaylene Schellenberg, a lawyer with the Legislation and Law Reform Directorate of the CBA. The CBA is a national association of over 37,500 lawyers, academics, law students and notaries. Our mandate includes seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us to you today.
With me is Aimée Craft, Past Chair of the National Aboriginal Law Section. The section consists of lawyers who specialize in Aboriginal law from all parts of Canada, and Ms. Craft is a lawyer with the Public Interest Law Centre in Winnipeg. She will address our submission and respond to your questions.
The Chair: Please go ahead, Ms. Craft.
Aimée Craft, Past Chair, National Aboriginal Law Section, Canadian Bar Association: Aniin, boozhoo. Good morning.
[Translation]
I am pleased to be here to represent the Canadian Bar Association as the past Chair of the National Aboriginal Law Section.
[English]
I appeared before this committee over two years ago and commented on this bill when it was in the form of Bill S-6. My comments today will echo some of the concerns and recommendations put forward by the section at that time.
We understand the goals of this legislation and the bill's intent is to improve stability, effectiveness and transparency of First Nations elections. It also codifies many of the election issues that have been litigated in Canadian courts of law in relation to fair election practices for First Nations chief and council elections. However, we caution that these efforts must not interfere with the constitutionally protected rights of First Nations to determine their own systems of governance.
In my submission today, I plan to address three concerns and recommendations for improvements to this legislation relating to, first, customary systems of governance; second, ministerial discretion to include First Nations in the schedule of participating First Nations; and, third, election appeals. We have also made additional recommendations in our written submission, which we would be pleased to clarify if you have any questions in that regard.
First, on the question of customary systems of governance, I know this has been a hot topic already this morning. Subclause 3(1) of the proposed legislation allows both bands that conduct their elections under the Indian Act and those that have customary election codes or practices to be captured under the exercise of ministerial discretion, to add First Nations to the schedule or to become, as the proposed legislation refers to it as, ``participating First Nations.'' This can be either at the request of a First Nation or at the minister's determination.
The application of the bill to First Nations with customary systems of governance potentially infringes on constitutionally protected rights of self-governance, particularly when custom First Nations are placed on the schedule rather than requesting to be on the schedule.
Rights of self-governance are recognized and affirmed in section 35 of the Constitution Act, which you will be familiar with. Further, the UN Declaration on the Rights of Indigenous Peoples recognizes this right of self- governance.
In addition, I'd like to note that paragraph 3(1)(a) requires only a band council resolution — a resolution of the chiefs and councils through a duly convened meeting of the First Nation council — for that First Nation to be included in the schedule and captured under the purview of the act and regulation. This could result in a breach of customary practices of the First Nation for their forms of collective decision making and might add a First Nation to the schedule without the consent and agreement of the citizens of that First Nation.
Therefore, the Section makes the following three recommendations in relation to subclause 3(1) generally: that the bill be amended to limit the scope of the bill to First Nations currently operating under an Indian Act electoral system; that it exclude First Nations currently operating under customary systems of governance, unless their consent is obtained in accordance with their customary practices or, in absence of a clear customary practice, by a double majority vote. This is employed in the Indian Act for major decision making of other forms. In other words, it would be to include First Nations on the schedule only where there is demonstrable consent. We would also recommend explicitly excluding First Nations with self-government agreements.
With respect to paragraphs 3(1)(b) and (c) of the bill, I'd like to note the following: The level of ministerial discretion to include First Nations in the schedule of participating First Nations changes the proposed opt-in nature of the legislation. These proposed paragraphs allow for the exercise of ministerial discretion over First Nations governance, making First Nations the subjects of the legislation rather than participants that opt in.
As mentioned, this exercise of discretion would extend to both Indian Act election bands and customary election bands, as both are contemplated in the definition of ``First Nations,'' which is provided in the interpretation section of the bill.
Furthermore, the bill at 3(1)(b) lacks clarity as to the standard that the minister will apply in making determinations about what constitutes ``. . . protracted leadership dispute has significantly compromised governance of that First Nation. . . .'' Both ``protracted leadership dispute'' and ``significantly compromised governance'' are undefined concepts in the legislation, and their determination is discretionary to the minister.
There is also a lack of clarity in paragraph 3(1)(c) in the following sense: It's uncertain whether only future findings of corrupt practices will engage the minister's discretion to add a First Nation to the schedule or whether this section allows the minister to include recent or even historical elections that were set aside in accordance with section 79 of the Indian Act.
This being said, the Section makes the following recommendations: In relation to paragraph 3(1)(b), the language be clarified and the standards applied to determinations made by the minister in terms of what is a ``protracted leadership dispute that has significantly compromised the governance'' of a First Nation; in relation to paragraph 3(1)(c), to confirm that only current or future findings of corrupt practices will engage the minister's discretion to add First Nations to the schedule; and to include First Nations on the schedule or as ``participating First Nations,'' as defined in the act, only where there is demonstrable consent of the First Nation through a double-majority vote.
I note that paragraph 42(1)(b), which provides for a First Nation's voluntary withdrawal from the act, requires a double-majority vote. This would provide consistency both for entering and exiting the purview of the legislation.
On election appeals, currently customary elections can be challenged by an application for judicial review at the Federal Court, whereas Indian Act election appeals are directed to the minister. Litigation of election disputes under customary codes can be time-consuming and costly. I've experienced this firsthand.
I would like to note for this committee, based on my personal experience on the Federal Court liaison committee on Aboriginal law matters, that the Federal Court has developed a pilot project for judicial review of First Nations governance disputes. This pilot project adopts the goals of efficiency, cost savings and aims to ensure dispute resolution in a manner that is meaningful and appropriate for the First Nations who participate, including by taking into account indigenous legal principles and dispute-resolution processes, while ensuring that matters can be resolved in time frames that do not prejudice the governance of First Nations.
Although this is not part of the CBA's submission, I want to note that the Federal Court liaison committee, and myself personally, have considered the potential issues that may arise from having concurrent jurisdiction over election disputes for the Federal Court and the Superior Courts of the provinces, as provided for in clause 33 of the bill.
In my view, this may result in the unequal application of the law and differing interpretation of the provisions of the legislation amongst jurisdictions and potentially within the same province as between the rulings of the Federal Court and the rulings of the Superior Court of that province.
This bill attempts to remedy the delay associated with Indian Act election appeals to the minister by streaming those contested elections into the courts. Although courts may provide efficiency over administrative appeals to the minister, a specialized and independent tribunal would achieve these same goals of transparency, efficiency and cost savings; goals that were identified by this committee. Arguably, an independent tribunal could provide a more cost-effective, accessible and culturally appropriate method of dispute resolution.
Similarly to the recommendations of the Royal Commission on Aboriginal Peoples and of this Senate committee, the CBA Aboriginal Law Section recommends that, rather than resort to the Federal Court and/or Superior Courts of the provinces, one or more independently constituted tribunals take on the role of adjudicating election disputes, tribunals that recognize experience and expertise in Canadian law, First Nations elections and indigenous dispute resolution.
We also recommend the further development of existing and new internal and indigenous dispute resolution mechanisms for First Nations themselves, some of which are provided in the custom codes that have been adopted by First Nations, which of course would be subject to the judicial review powers of the Federal Court.
In conclusion, the CBA has cautioned in the past against legislation that purports to fix the Indian Act problems in a piecemeal fashion. The CBA supports fair and just election processes and the many sections of this act aimed at achieving just that.
However, procedural fairness cannot come at the expense of other fundamental rights, including the protection and preservation of autonomy and self-governance. The CBA supports the preservation and enhancements of internal political structures of governance and of dispute resolution of indigenous people in accordance with Canada's Constitution and international obligations.
These and additional recommendations are in our letter to you, Mr. Chair. I would be pleased to answer any questions in French or in English that you may have, or provide any further detail regarding our submissions and recommendations.
Meegwetch.
The Chair: Thank you for your presentation.
I'd like to start off with a question. You recommend that the bill be amended to explicitly exclude First Nations with agreements. I must say that I did not believe the bill applied to First Nations with self-government agreements. I look at clause 3 that says the bill applies to a First Nation that can be added to the schedule. Then I look at the definition of ``First Nation'' in the bill and it says ``. . . has the meaning assigned by the definition 'band' in subsection 2(1) of the Indian Act.'' I understood that the election rules of self-governing First Nations are included in this specific self- government agreement, so all this means is that they won't be able to opt in. Is that not correct?
Ms. Craft: That's my understanding from reading multiple pieces of legislation as well, Mr. Chair. We're suggesting it be made explicit in this legislation — that self-governing First Nations are not affected — instead of having to refer back to other pieces of legislation, which may or may not be amended at any point in time.
The Chair: But it's probably true that self-governing First Nations, with their own elections code, would not be able to opt in.
Ms. Craft: I understand that is the reading the department has put forward.
I anticipate this could be the subject of litigation. So in the interests of avoiding litigation on that particular issue, our recommendation would be to make it explicit in the bill.
The Chair: I thought lawyers liked litigation.
Ms. Craft: Our first duty is to our clients, to avoid litigation.
The Chair: Certainly. I don't mean to be flippant.
If I may, before I turn to Senator Dyck, I was curious about your recommendation that the bill should only apply to First Nations currently operating under an Indian Act electoral system and that it should not apply to the custom code First Nations. You've spoken in your presentation against the minister having authority to order an election in the case of a protracted dispute — that such should be more specifically defined, and there should be a very high threshold to allow a band to agree to opt in.
I think most people agree that this bill is progress in that it was widely consulted and widely accepted as having some overall benefits. Is it our place as parliamentarians to decide that 343 custom code bands should not have an option — or an easy option — of modernizing their provisions, prescribing corrupt practices and the like? Isn't it a bit paternalistic to limit the scope in that way? It would take out more than half of the bands in the country.
Ms. Craft: I would argue quite the reverse, Mr. Chair. Any of the First Nations that currently operate under custom election codes could choose to include any similar provisions that are provided for in order to prevent corruption in elections and to govern the elections of their communities and custom codes by very similar provisions to those provided for in this particular bill. If they chose any of these particular measures as being safeguards for efficient, effective and transparent elections, they could, by the process of amendment of their customary election codes or their traditional customary elections, adopt some of these measures for themselves, thereby exercising their governance and not having the discretionary imposition. They would, in effect, be exercising their governance.
The Chair: If the bill has been well consulted and has been carefully crafted, you would still deprive them of the option, in one easy step, of taking on these more modern provisions?
Ms. Craft: In all fairness, our submission relates primarily to the ability of the minister to discretionarily place First Nations into the schedule.
The Chair: Okay. Maybe this is now the time to turn to Senator Dyck. I know this is her concern as well.
Senator Dyck: Yes. Thank you.
When the bill was before us previously as Bill S-6 — and now it's back to us as Bill C-9 — as a critic, my focus has been on paragraph 3(1)(b), which gives the minister the discretion to add a First Nation into Bill C-9. You were suggesting that it be amended so that there's demonstrable consent or a double majority from a custom code First Nation before they're added into it, so that there is some indication the custom code First Nation has actually requested it or has given consent. Is that what your position is?
Ms. Craft: Yes. Various decisions within communities require a double majority, which means a majority of voters and the majority voting in favour. That's important to consider, both in terms of voluntarily bringing First Nations into the schedule and also where the minister may make a determination that there's a protracted leadership dispute that's affecting the governance of the First Nation itself — that that could also apply.
In these governance dispute situations that have been mentioned, many of which we are familiar with, the First Nation's voice and the community citizens' voice is one that's important and needs to be heard in the process. At least having the option to put this to the community for a vote to resolve their own internal dispute is an important principle that we would suggest applies in these circumstances.
Senator Dyck: To some extent, we may have been left with the impression that some custom code First Nations may amend their laws so they're no longer Charter compliant, or they may have a code that's not written down; therefore, we have situations where the community members are kind of at a loss. I understand that that certainly is not an acceptable situation, but at the same time, they're not left helpless, because they can still appeal to the courts.
I wasn't very clear on the answer as to whether, in those situations, the appeal to the courts has resolved this situation — at least, it should resolve this situation to some extent. Could you respond to that, namely, that in situations where it seems like we have something that's clearly not what we would consider a modern democracy, why would we ask the minister to intervene rather than have those people go to a court? I think that's kind of where that quandary is still sitting.
Ms. Craft: A band moving from the Indian Act, that has confirmed their customary election code in writing, is required to be approved by the minister, following the 1996 policy. One of the particular requirements is that there not only be an appeal mechanism but also that there be an amendment mechanism that is endorsed by the minister before the custom election code is returned to the First Nation and approved by the minister. That amendment mechanism must be followed in order to amend the custom code.
Now, if the code is being amended in a way that is non-Charter compliant, presumably it has had an amendment process that was ratified by the First Nation and has gone through that process, and that was a process deemed to be acceptable to the minister at some point.
That all being said, there is still the judicial review power of the courts to ensure Charter compliance. So there are mechanisms in place to try and ensure that non-compliance with constitutional principles is safeguarded against, in the case of customary elections in First Nations.
Senator Dyck: I'm still a little confused. You're saying that the amendment process of these custom codes or the amendment process at one point has been approved by the minister.
Ms. Craft: For those custom codes that have been written and subject to the approval of the minister; so this is in accordance with the 1996 policy, First Nations that are moving from Indian Act to custom codes, yes.
Senator Dyck: So those are the ones that are so-called reverted, but what about the custom code First Nations that have operated outside of what happens there? Is that different? Is this sort of the group that they're trying to get at? I'm confused.
Ms. Craft: If you're referring to those First Nations that operate by custom, senator, that maybe have oral traditions that predate the policy and have never been under the Indian Act election system, the elections by those bands are also subject to the judicial review powers of the Federal Court. So if there are breaches of procedural fairness or natural justice, those can be brought on judicial review, and we have seen that exact example happen through the court processes.
I mentioned the Federal Court initiative on this pilot project to try to resolve disputes within the community, and that links up with the idea of an independent tribunal, an alternative dispute resolution process that would be meaningful to the communities. Appealing or judicially reviewing decisions at the court level can sometimes take longer than the period of elections itself. So the Federal Court has been sensitive to that issue and has said it would like to resolve these issues in the communities, find long-term workable solutions. That's definitely something that First Nations have indicated to many of our practising lawyers, that it is to their benefit to try and resolve matters within the community, and to continue to exercise governance both in terms of the processes of dispute resolution in the community but the forms of governance that they will take on going forward as First Nations in exercising their self- governance and determination.
Senator Dyck: In those First Nations where they had been essentially operating under a sort of traditional custom code practice which might incorporate election procedures that are not written down, to your knowledge is there a higher percentage of leadership disputes that might come under the vague umbrella of protracted leadership dispute that has significantly compromised their governance? Is there, to your knowledge, a higher incidence of problems there?
Ms. Craft: Senator, I don't have the statistics for that. But I am from Manitoba, so I know by simple involvement with many of the election disputes in our province that those can arise in custom election First Nations. However, many of the custom election First Nations that I've personally worked with have some sort of dispute mechanism within the community, whether that be resorting to an elders council or other processes of dispute resolution.
I accept those are different for all communities and we're dealing with First Nations across Canada, but generally, and this is what the Federal Court pilot project is picking up on, in many circumstances the First Nations have the tools within their communities to deal with these election disputes. In some cases they may resort to courts for judicial review and assistance or for that assistance with the dispute resolution itself, but there are mechanisms within the communities and those should be fostered in order to have a meaningful resolution that can be culturally appropriate and that will last in the long term.
The Chair: Senator Meredith, did you have a supplementary question on this point?
Senator Meredith: Yes, I did.
Ms. Craft, just clarify for me paragraph 3(1)(b):
(b) the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation;
What you're saying is that if there is this protracted dispute, the minister should still make some provisions of consultation with the First Nations before they're added to the schedule.
Ms. Craft: That's right. There is an opportunity, and this is what the Federal Court project is about, doing some remedial work within the community. Rather than simply bringing a First Nation into a set election process, there is the idea of getting to the heart of the issue, which may actually be less about the elections themselves than they are about internal community politics or family issues. There's an opportunity there to have a dispute resolution process that will be meaningful for the First Nation itself and resolve broader issues than simply the electoral process.
Senator Meredith: What happens if those issues are not able to be dealt with by the community? What happens then?
Ms. Craft: If there is no ability to have a double-majority vote and a voluntary opting in, there is still the option for the minister to bring those First Nations under the purview of the Indian Act election sections, so that the elections will be conducted under the Indian Act.
Where our concern lies is that there is that discretionary power to exercise discretion over the governance of First Nations in the Indian Act. We certainly wouldn't want to see perpetuated in a new piece of legislation some of the problematic and what have sometimes been referred to by First Nations as paternalistic powers of the minister in relation to governance exercised by First Nations.
Senator Tannas: I just want to carry on with this theme, because this is interesting to me, your last comment particularly.
In your view, if a minister was in a situation where we've been through the courts, been through all the councils and elders and we still don't have for practical purposes a government, you would rather see the minister use the Indian Act and the current election process within the Indian Act than what is being proposed here. Is that right?
Ms. Craft: I don't think our Section has a firm position on that. I'm just pointing to some of the concerns that have been raised in and around that issue. Personally, the exercise of discretion by the minister should be limited and tempered. And if it's to be exercised based on the historical relationship under the Indian Act, I do have concerns about that discretion and authority being perpetuated in new forms of legislation.
Senator Tannas: That's interesting. For me, this comes back to this issue that I keep hearing, about the minister should not be involved; we'd rather the minister was not involved at all.
I look at the modern forms of governance in Canada from municipalities and hospital boards and school boards, provincial governments and federal governments, where, notwithstanding the courts, there is a ``who.'' There is a person who is actually embodied with the power where, when all else fails, somebody could step in for the good of the citizens, the country, whatever, and make a decision.
I'd be interested to know if there is another ``who'' that you think ought to possess this power, or is this the only place, the only kind of governance where there is no ``who,'' there are only courts and tribunals and gridlock.
Ms. Craft: As a personal answer to the question, maybe not representative of the entirety of our CBA section, I would say the ``who'' is the First Nations themselves.
Senator Tannas: That's not a ``who''; that is not a person.
Ms. Craft: First Nations are considered as moral persons. There is an ability to sue and be sued in law.
Senator Tannas: One person who can take that responsibility in extraordinary circumstances and take action. We have it for every other form of government that I've just listed. Who would that ``who'' be? I would be interested to have a dialogue about that, because this is a clause that is practical and should only be used in those situations and has been demonstrated to be used in those situations where it's practical and a reset button needs to be hit.
I know I'm probably engaging way over the line, but that's what I'm struggling with as I listen to this and hear the concerns.
Ms. Craft: In response to your comments senator, I think two things are engaged. One is that some of the answers lie within the First Nations themselves.
Another thing that the CBA section has recommended is an independent tribunal that would assist with the adjudication of those matters. There are also the courts that have been called upon.
But in terms of a specific ``who,'' I think that question should be posed to First Nations themselves in terms of determining who the final authority or decision maker is in a situation where the solution can't be found in one of those other mechanisms.
Senator Dyck: I appreciate your comments and questions. We're having a very good dialogue this morning, so we're getting to understand this clause better from different perspectives.
With the situation you describe, I guess the Governor General, in a sense, is the ``who'' when it comes to federal elections. The Governor General can intervene. But the difficulty here is that I think most people see the Governor General as being independent — and maybe that's naive; I don't know — whereas the situation among many First Nations is they don't necessarily see the minister in that same light. I think the problem is identifying a mechanism whereby the person who has had ultimate authority is seen as being independent and neutral.
I don't know whether you can conjecture or postulate whether there should be a new person appointed who could sort of replace the minister, because I don't necessarily think that the majority of First Nations would see the minister as being neutral.
With all this talk about economic development, of course, nobody is neutral, but you want to pick somebody who has the least bias towards whatever. Can there be that type of person, like the Governor General?
Ms. Craft: I think, senator, you're pointing to the historical relationship and a legacy of interaction between the minister and First Nations that is important to acknowledge in these circumstances. In the same way that the CBA section is talking about not interfering with the governance of First Nations, I don't think it's appropriate for us to say who that independent ``who'' would be.
I'm not trying to pass the buck, but I am trying to practise what we're preaching by saying that is a good question that should be asked of some of the First Nations that will be presenting before you.
I thank you both for those questions.
The Chair: Would you expect, given the need for ultimate accountability under our democratic system, that an independent tribunal would be appointed by a minister of the Crown, the kind of tribunal that you speak about?
Ms. Craft: I think an independent tribunal, and most dispute resolution processes, will require appointments that are jointly agreed upon. That would be the model that we would suggest in these circumstances.
Senator Moore: Thank you for being here. You may not be able to answer this question, because I think Senator Dyck might have alluded to it.
We heard from the previous witness that from 2013 to date, 126 elections were held under the Indian Act, and there were 21 appeals, some technical breaches and some of a corrupt practice nature. Would you know how many elections have been held in that period of time under the community code process and whether there have been disputes or appeals, and how many?
Ms. Craft: I do not have that information. I'm sorry, senator. I know that there are some appeals. They would be judicial reviews of custom elections that go to the Federal Court, and I've been involved in some of them.
I do want to note for you, though, that of the 126 elections under the Indian Act, and the 21 appeals, not necessarily all of them would be investigated by the minister. Maybe that's a follow-up question for my friends that presented earlier this morning in terms of whether or not those were investigated and whether or not they resulted in a reversal of the decision, a reversal of the election result.
Senator Moore: Yes. Inasmuch as those witnesses are sitting behind you, maybe you could take note of that matter and come back as well with an answer, Ms. Kustra, because it's important. I would like to know about the numbers with regard to the elections held under the custom code. I think that's significant.
That's all I want to know, chair.
Senator Lang: I just want to go back to the custom codes and the election practices thereunder. Perhaps you can share some of your experiences with us. We were told that amendments could be made to their election codes once they have been accepted, and subsequently not necessarily Charter compliant.
I just want to say, before I go any further, that I don't really subscribe to the notion that all our problems should be solved by going to court, because most people can't afford to go to court. For an individual who has been denied the right to vote, in most cases, when it comes to having to go to court, they would probably stand aside and go about their business at the end of the day because they don't have the wherewithal or the finances to do it, nor the time. I think it is a simplistic way to look at an electoral system to say that's the way to resolve it.
I want to ask this: In your experience with the custom codes that have been adopted in the area that you come from, have you found, where perhaps there are no appeal procedures in place, whether there is a dispute? Has that ever been done?
There is another aspect I would like you to address, if you could: Does it cause you some concern that the electoral procedures may well be denied access by some members of that First Nation? Secondly, do you think they should be public documents like they are for school boards or societies, that type of thing, in the normal course of events when it comes to elections? Perhaps you could comment on that.
Ms. Craft: I will comment, senator, on some of my work, without giving specific details; of course, it's privileged.
Working with First Nations, I've always encouraged that as much information about the code is made available to the membership but also publicly. Of course, to move from the Indian Act election system to a custom code, there's a requirement that amendment procedures be listed, be provided for in the custom code itself, and that an appeal mechanism be made available.
In terms of what First Nations can practically do, I think we've seen circumstances where the First Nations require that double majority to amend their own custom code. That's one safeguard, but of course there's also the ability for judicial review.
If a First Nation is putting forward a custom code and looking at it as an exercise in good governance, then obviously they would receive advice from legal counsel as to how to effect good governance, transparency and all those principles.
I don't know if that answers your question or helps to clarify.
Senator Lang: For the record, is it the position of the Canadian Bar Association that these documents should be made public, as opposed to in some cases they are and in some cases they aren't?
Ms. Craft: Our Section doesn't have a position on that.
The Chair: I took the liberty of suggesting that Mr. Vincent be available. You've raised some important legal points, Ms. Craft, and I would like, for the record, to get the view of the Department of Justice.
The first one would be the suggestion that there are potential problems or incoherence, because clause 33 of the bill gives two courts concurrent jurisdiction over election disputes.
Mr. Vincent, do you have any comments on the concern just expressed by the witness?
Tom Vincent, Legal Counsel, Operations and Programs (Legal Services), Department of Justice Canada: I'm looking at clause 33, and the purpose of that clause is to make courts abundantly available to First Nations. In many cases, it will be more convenient for First Nations to retain counsel who can represent them in the local Superior Court of the province rather than attending at one of the Federal Court offices. So the intention there is to have courts that are available to First Nations and to be used.
That clause uses the word ``and,'' so they both have jurisdiction to deal with the matter. In practice, I would fully expect that if one party were to go to one court and the other party were to go to the other court, they would soon find out that they're each in different courts and would combine into one court to be adjudicated. It makes no sense to seek adjudication in two different courts.
The Chair: I think Ms. Craft's point was, though, that with two different courts having concurrent jurisdiction you might have different interpretations of the law, if I'm explaining that right. Would you have a comment on that?
Ms. Craft: That's correct. So the interpretation of the provisions and the application of the provisions may be decided differently even within the same province by the Federal Court and the provincial court, but also across provinces by the different Superior Courts of the province.
I would just note that the Federal Court does sit across Canada, and the pilot project that I was referring to actually provides for the Federal Court to conduct dispute resolution within the communities. The Federal Court has identified itself as a movable court, so I think that the idea of accessibility to the courts is captured under the current Federal Court jurisdiction and practices.
The Chair: So you'd rather have one court named in clause 33?
Ms. Craft: That's correct.
Mr. Vincent: The federal position would be that provincial courts would be more accessible than simply having the Federal Court, and so far we haven't been invited to participate in the pilot project, as far as I know.
The Chair: Okay. Well, that's helpful, I think.
Mr. Vincent, the CBA presentation is that the terms ``protracted leadership dispute'' and ``significantly compromised governance'' are undefined, lacking clarity and should be better spelled out. Would you have a comment on that?
Mr. Vincent: These terms are somewhat like art, where people can disagree upon it until they see it. It will be a matter for the courts to determine if a minister has overstepped his boundaries in concluding that there has been a protracted leadership dispute that significantly compromises the governance of the First Nation.
These are terms that the courts will apply to particular situations, and since the minister is really quite loath to exercise these powers and, in practice, supports First Nations in arriving at solutions within the First Nations, it will arise quite infrequently.
The Chair: Would you have a comment on the other concern expressed about paragraph 3(1)(c), and I'm quoting from the CBA presentation just given:
. . . it is uncertain whether only future findings of corrupt practices will engage the minister's discretion to add a First Nation to the schedule or whether this section allows the Minister to include recent or historical elections that were set aside in accordance with s. 79 of the Indian Act.
Do you think the clause is unclear?
Mr. Vincent: I would agree that the clause could be interpreted with that ambiguity, that it doesn't constrain the minister as to when the section 79 action was taken. I expect that the courts would interpret this proactively and into the future so that the courts wouldn't rely on historic occurrences of section 79 having been applied.
Senator Dyck: I am just interested in your answer, Mr. Vincent. You were saying that when it comes to the phrase ``protracted leadership dispute has significantly compromised governance,'' it would be up to the courts to decide if the minister has overstepped his discretion. So it would seem to me that if I were in a First Nation that was under a custom code and the minister said our nation had to go under the provisions of this bill, then I would most likely want to take the minister to court.
In the end, it seems like it still has to go to the court, no matter what.
Mr. Vincent: Not necessarily, and in fact the situation arises that the minister intervenes where people have not gone off to court to settle the dispute resolution. In typical fashion, there are two different factions that are competing for leadership and one takes the other to court. Sometimes neither runs off to court, and that's the invitation in that gap for the minister to be the one person who comes forward to re-establish leadership in the communities; but, ultimately, the minister's decision is reviewable by the court as well.
Senator Dyck: This idea of two competing factions for leadership has come up on a couple of occasions, yet I don't see anything in here that talks about competing factions. Could you give us an example? Perhaps Ms. Craft could also answer a bit of this as well. What sort of situation are you alluding to where there are competing factions for leadership?
Mr. Vincent: I can give the example of the most recent exercise of the ministerial power under section 74 of the Indian Act, which was the Barriere Lake First Nation in the province of Quebec where the minister made an order to bring them under the Indian Act. In fact, they had been to court a number of times. There had been, I believe, three court rulings, but none of the court rulings provided a satisfactory basis for establishing a leadership process. So the minister provided an ultimatum and gave several months and offered mediation services to be made available to the First Nation. When ultimately those failed, the minister made an order and brought the First Nation under the Indian Act, and there was no challenge to the minister's decision.
Senator Dyck: So when the minister put the First Nation under the Indian Act to hold an Indian Act election, that was successful?
Mr. Vincent: That was successful.
Senator Dyck: So the minister now, even if we got rid of paragraph 3(1)(b), could order a First Nation to go under the Indian Act. Why wouldn't we do that rather than impose Bill C-9 on them, which may lead to sort of reactive decision making whereby the First Nation challenges that and takes you to court?
Mr. Vincent: I think the decision for the minister is if he has a power on the one hand to bring a First Nation under the Indian Act and a power with the other hand to bring a First Nation under the new First Nations elections act, it's a decision that will always be to bring a First Nation under the First Nations elections act because it is a better system.
Senator Dyck: It's debatable.
The Chair: I think we're going to have to leave it at that, colleagues. I've been asked to be strict about ending our committee at 11:30 because the room has to be used otherwise, but we will be resuming debate on this bill at our meeting tomorrow.
Thank you very much, senators. I'm sorry we didn't have more time. Thank you to the witnesses.
(The committee adjourned.)