Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 5 - Evidence - April 1, 2014
OTTAWA, Tuesday, April 1, 2014
The Standing Senate Committee on Aboriginal Peoples met this day at 9:38 a.m. to study the challenges relating to First Nations infrastructure on reserves; and to give clause-by-clause consideration to 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.
Senator Dennis Glen Patterson (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome to this meeting of the Standing Senate Committee on Aboriginal Peoples all honourable senators and members of the public who are here in the room or watching us via CPAC or the Web. My name is Dennis Patterson. I'm from Nunavut and chair of this committee.
Our mandate is to examine legislation and matters relating to the Aboriginal peoples of Canada, generally. This morning we are hearing testimony on a specific order of reference authorizing us to examine and report on the challenges and potential solutions relating to infrastructure on reserves, including housing, community infrastructure, and innovative opportunities for financing and more effective collaborative strategies.
We will hear from Roxanne Harper from Turtle Island Associates Incorporated, an Aboriginal business committed to supporting the efforts of Aboriginal communities by providing housing advisory and training services, housing research, and program and policy development. The association offers services such as help with developing housing proposals; designing housing policies and programs; coordinating and conducting community consultations and meetings; providing advice on organizing and operating a housing authority; preparing multi-year housing plans; and evaluating existing housing practices.
In the second half of the meeting, we will continue our 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.
Before proceeding to the testimony, I would like to go around the table and ask the members of the committee to please introduce themselves.
Senator Moore: Thank you, chair. Good morning. My name is Wilfred Moore, and I'm a senator from Nova Scotia.
Senator Dyck: Good morning. I'm Lillian Dyck, a senator from Saskatchewan.
Senator Sibbeston: I'm Nick Sibbeston from the Northwest Territories.
Senator Ngo: Senator Ngo from Ontario.
Senator Meredith: Senator Don Meredith, Ontario.
Senator Beyak: Senator Lynn Beyak, Ontario.
Senator Wallace: Good morning. John Wallace from New Brunswick.
Senator Raine: I'm Senator Nancy Greene Raine from B.C.
Senator Tannas: Scott Tannas from Alberta.
The Chair: Thank you, members of the committee. I know you'll all help me welcome our witness from Turtle Island Associates Incorporated, Roxanne Harper, Vice-President. Ms. Harper, we look forward to your presentation, which will be followed by questions from the senators. Please proceed.
Roxanne Harper, Vice-President, Turtle Island Associates Inc.: Thank you very much. Good morning, senators. I am a member of the Eel Ground First Nation, which is located in the heart of Mi'kmaq territory in New Brunswick. It is both an honour and pleasure to spend time with you here this morning. I'm encouraged by your interest in infrastructure and housing on reserve. I will be speaking specifically about housing issues. I have worked in the Aboriginal housing industry for 28 years, with the majority of that time focused on First Nations housing on reserves.
As mentioned, Turtle Island is an Aboriginal-owned business. We work directly with First Nation communities who are interested in improving the delivery and administration of their housing programs and services, while increasing their capacity to do so. We have been fortunate to have travelled across the country. I can say that Turtle Island Associates has been to every province and territory several times. We have been privileged to have spoken with elders, Aboriginal leadership — being our chief and councils — the administration, housing committees and, most of all, First Nations members themselves who are affected by housing programs and services.
When we received the invitation to speak to the Senate, my first thought as a witness was to share information with you regarding the challenges that we face as First Nations people, specifically the conditions such as overcrowding, increasing demand for housing services and long waiting lists. But then I thought to myself: As senators, you must already know this. As I look around the room, I see that some of you also have personal, direct experience with life in Aboriginal communities.
That knowledge is there. I decided to try something a little bit different, which was to share information on two items that at Turtle Island Associates we've been able to be a part of. They may seem so insignificant compared to the challenges that we face as First Nations people, but these are positive things and they've actually made a huge difference in our communities.
The first issue is capacity development of our communities and of First Nations people themselves. Capacity development is a term that refers to giving our people the skills and the knowledge that they need to deliver their own programs and services, and, in doing so, they are able to administer their own housing portfolios. They develop policies and procedures that reflect First Nations values, traditions and customs, while still protecting our people and our property.
It is commonly understood by us and all of you, I'm sure, that many First Nations struggle with human resources in all areas, including infrastructure and housing. Efforts have been made by the federal government through Canada Mortgage and Housing Corporation and Aboriginal Affairs and Northern Development Canada, who have sponsored workshops, training sessions, networking opportunities and special initiatives every now and then. In addition to the federal government, the First Nations Market Housing Fund has also offered support to enhance the financial management, government and community commitment to housing, and the development of policies and procedures. While all of this is positive and certainly commendable, more must be done.
To truly develop capacity in a First Nation community, we must all acknowledge and understand that there are barriers. One of those barriers is that First Nations often struggle with access to training for capacity development. Given the location and the remoteness of many of our communities, it's not always possible for them to physically attend a training event or they lack the financial resources to attend that training event.
In addition to that, there are very limited local human resources in some communities to be able to put together a housing team who can manage the millions of dollars' worth of real estate that exist in First Nations territory; we don't always have the local labour.
There's also a lack of ongoing financial support to develop the skills, to transfer the information and, most importantly, to encourage change in order to improve our infrastructure and our housing portfolios.
To help you understand such barriers, I would like to share with you and ask you to consider one example of capacity development that took about 20 years to begin to see some results on. For a moment now, think about housing off reserve, anywhere in Canada. It's a common practice for people who live in a house, an apartment or a residential dwelling to contribute toward the cost of that home. Off reserve, charging rent is a way of life. All of us are aware of it; we understand it. In First Nations communities, this is often a new approach that requires us to develop new skills.
In 1997, Turtle Island Associates pioneered the delivery of a capacity development workshop that encouraged sharing the cost of housing between the federal government, the First Nations community and the occupant themselves. The concept was initially met with tremendous resistance across the country, but today, in 2014, it is now supported in many First Nations communities.
When we look at that span of time, we often wonder: Why did it take so long? It took so long because we have so many barriers in our community. We have the comprehension of trying a new approach. We had the lack of staff resources. We sometimes had lack of political support. Sometimes our membership wasn't ready to try a new approach or didn't understand the need for an economically sustainable approach. But in almost 20 years, we have now turned the corner.
This small change — and I know it looks really small in comparison to all the challenges we face — has made a huge difference for First Nations communities. It would not have been possible without the financial support of Canada Mortgage and Housing Corporation, the courage of our housing staff to try a new approach, and the vision of our leadership, being our chief and councils on reserve, as we all had to work together to achieve a new approach to housing.
The second success I'd like to talk to you about is that the need for market-based housing has now been acknowledged in some communities. In 2008, the First Nations Market Housing Fund was launched. This created an opportunity for First Nations to access financial arrangements for on-reserve members who were willing and able to afford the cost of market-based housing. An important aspect of this approach that is used by the fund is that First Nations must meet specific qualifying criteria to ensure that they are ready and able to support market-based housing. Additionally, the fund offers extensive support and capacity development opportunities, which helps to build skills and knowledge of First Nations people as they prepare to accept the responsibilities and obligations that come with a market-based housing approach.
We need more of this type of approach to capacity development. It results in a better qualified and experienced First Nation housing provider, a stronger community, and a leadership who understands the importance of economic development and economic sustainability in housing.
I understand and will acknowledge that market-based housing will not work everywhere and it is only part of the solution. First Nations also require support and assistance in addressing all housing needs. Right now in Canada there is a need for additional social housing, housing for our elders, disabled, special needs, youth and student housing, as well as housing off reserve for First Nations people. Based on my experience, I believe it is time that the federal government begins to rethink their current approach to dealing with these housing challenges. I believe there is an overwhelming need to develop a Northern strategy for our North and remote communities, which have needs and challenges that are very different from those found in the south. A strategy should be developed for the North that addresses things like a higher cost of construction, higher cost of maintenance and repairs, limited access to skilled labour, increasing cost of utilities, high unemployment or social assistance rates and, most of all, shorter life expectancy of a residential property in the North.
The current level of financial support from the Canadian government is insufficient to address First Nations infrastructure and housing needs. First Nations are required to find other sources of financing. That is easily said but not always possible. It sometimes results when a First Nation has to use its own financial resources. It results in their having the challenges of other budgets. One thing that's important to understand is some First Nations are not in a position to borrow additional money and may not be able to leverage external financing, so they use money that was meant for other programs and services to support infrastructure and housing. This seriously jeopardizes other programs and services in our community.
In closing, I would like to say that these issues are not just a First Nations problem; they are a Canadian problem and require an urgent solution. Maintaining the status quo is not enough. We must build on our successes — approaches such as the two that I've shared here — and we need to develop new ways to respond to infrastructure and housing challenges in order to improve the quality of life for First Nations across the country.
Thank you very much.
The Chair: Thank you very much, Ms. Harper. I think you're correct that the committee is aware of the need. We've canvassed that so far in our studies. Thank you very much for focusing on the challenges and your useful suggestions.
Senator Raine: Thank you very much. I really appreciate your experience in having travelled across the country; I'm sure you've seen different things in different places. We on this committee truly understand that when it comes to First Nations, they're all different and they all have strengths and challenges.
Ms. Harper: Absolutely.
Senator Raine: You mentioned that First Nations, in order to qualify for market-based housing, need to meet specific standards in terms of capacity. Could you share with us or give us a document listing those standards? I think we know that the standards are out there, but I haven't seen anything that's quite defined as to what those standards are. Are they the same in the south and in the North and remote communities, or are they different?
Ms. Harper: I would first refer the Senate to contact the First Nations Market Housing Fund, who does specify their requirements. My understanding of that is in the qualifying process, when a First Nation expresses an interest in market-based housing, they contact the fund; the fund makes an appointment and an arrangement to meet with them. They look at what we believe at Turtle Island are progressive things. The first thing they want to do is sit down with the government and ask: Is there a genuine commitment to market-based housing? Market-based housing does bring challenges with it and it's often different in many First Nation communities, not something tried in most First Nations. So they meet with the council to assess that the political will and interest are there.
They also look at three years of financial statements to make sure that the First Nation is in a position to accept the financial responsibilities. As all of us in this room know that market-based housing isn't just about market rentals; it's also about supporting home ownership in First Nation communities. Because the houses will be built on reserve, all of us have to assume that there will be a default at some point in that mortgage. It's no different than it is off reserve. The reason they're looking at the financial statements is to assess the band's ability to deal with a default, both financially and administratively, and also making sure that the will exists in our communities to deal with the default.
Senator, I would encourage you to contact the fund, or even visit their website. There's a lot of information there.
Once they go through that process, a capacity development plan is put together and the First Nations Market Housing Fund has a number of service providers across the country who will work directly with the First Nation community, dealing with them individually and looking at the capacity development needs. All of that is done, from my understanding, well before a First Nation ever breaks construction on any market-based products. It could be two to three years of capacity development.
Senator Raine: From what you've seen, then, this process that the market-based housing authority has put in place is working.
Ms. Harper: Absolutely.
Senator Raine: Is it the same everywhere or are there varieties, a template?
Ms. Harper: It will be different just about everywhere we go, because the fund recognizes and embraces the uniqueness of First Nation communities. What we have been seeing is that in some communities, a First Nation will go through it very quickly and within three to five years be looking at actual construction.
We also all know in this room that the First Nations Market Housing Fund is only six years old. In terms of its age, it's the newest player on the block for our people to access housing, but certainly, in my opinion, in the last six years it has gained a lot of credibility and success. The truth is, though, that market-based housing will not work everywhere and we need to accept that. I believe the fund has embraced that. All of us have to recognize that there might be a First Nation community who, though they want it, will not qualify for a number of reasons.
The Chair: On this same point, Senator Meredith.
Senator Meredith: Yes. Ms. Harper, thank you very much for your presentation. To follow up on Senator Raine's question regarding the market-based housing fund, RBC and BMO have appeared before us and they're not very supportive of this. Why has there not been an uptake within the community with respect to this initiative? This program is six years old, but no one has jumped to the table, so to speak, to take advantage of this particular way of funding housing on First Nations.
Ms. Harper: Senator, I would respectfully disagree with you. To our understanding —
Senator Meredith: I'm just asking you, because this is what they've said to us, that there hasn't been that uptake. I'm just relaying information we've received.
Ms. Harper: To our understanding, there are about a hundred starts now. There are houses on the ground with the first house under the fund being built in the Mi'kmaq territory of Membertou First Nation. There are active renovation loans on the ground. Things are changing in our community. There are a number of First Nations who, though yet to go to actual construction of a home, are benefiting from the capacity development approach that the First Nations Market Housing Fund uses.
That's really what makes them unique compared to any other lender out there. First of all, the fund is not a lender. They have a list of approved lenders who will work with the band at a preferred rate, and also without the use of the ministerial loan guarantee. That makes the fund attractive to a number of First Nation communities, and their numbers have really begun to shift in momentum.
My understanding, from the last time I've seen a presentation, is that there were well over a hundred First Nation communities now signed up under the fund. That doesn't mean all 100 have built or renovated something. What it means is that they are a fund community benefiting from capacity development and support.
Senator Meredith: You indicated this is not going to work for other First Nations.
Ms. Harper: Absolutely not.
Senator Meredith: Why do you think that is? The basic need is to create a home among these First Nation reserves. Why do certain communities have a stronger appetite to look at this fund than other communities?
Ms. Harper: The whole thing about market-based housing is that it does depend on the economy to be there. We have to be looking at communities where members can actually afford and are willing to make the higher market-based payments, whether it's a mortgage or rental property. That market doesn't exist everywhere in Canada. We still, on a regular basis, see First Nations communities that are running an 85 per cent social assistance rate. That would mean market-based housing is not the answer for that community.
We also honestly are still working with communities who have not yet wanted to embrace fully the concept that housing could be a shared responsibility between the federal government, the First Nations government and the individual members themselves.
I think over time we may see that change, but at the end of the day, we all need to be honest about a country as big as Canada. We have remote and isolated Northern communities where the economy to make a mortgage payment or to pay a market-based rent is not going to exist any time soon.
Senator Tannas: Good morning, Ms. Harper. Thank you for your presentation.
I appreciate these will be estimates — guesstimates — but you're an expert. As we've listened, it's clear and you've helped delineate that there really are three areas here, as there are in the broader country. There's social housing, where there's practically no revenue and just cost. Then there's rental housing, where there's cost and some rent or revenue coming against some or all of that. Now there is the new idea of private housing — market-based housing — where really the individual builds a house they want, pays for it, looks after it, et cetera.
Could you give us an idea what you think the split is, percentage-wise, across First Nations in social housing versus revenue, and rental housing versus private housing? What percentage would be in each one of those three categories?
Ms. Harper: I would be reluctant to give a number. I can tell you that, of the existing homes on reserve, the majority of them are considered either CMHC section 95-funded homes, which at one point were social housing but are now considered affordable. Across the country, that represents approximately 25 per cent of the portfolio.
The majority of the homes in our communities are considered band-owned homes. That means they have been constructed using First Nation's own-source revenue, a First Nation's other budgets, and the subsidies available from AANDC have been combined in some cases. That is the majority of the portfolio.
We are beginning to see — and in some First Nations, it's important to note there have always been for whatever reason some people who own their own home and manage their own property on reserve with little or no support from anyone else, and that's great.
What the number would be on private home ownership, I don't know.
Senator Tannas: What percentage do you think of the existing housing on reserve would be attracting no revenue in that no one would be paying rent?
Ms. Harper: I would say 20 years ago, it was 100 per cent. We've turned the corner now. Again, I need to point out to you that it does vary across the country; there are some parts of Canada in which First Nations have been quicker to embrace economic sustainability from housing, specifically in the rental housing programs.
What the number is now, again, I can't say. I can say that I think we are improving. I wish I could promise or indicate that it is a national picture, but it is not. There are a number of First Nation communities that, at this point in time, continue to only charge and collect for those homes that have an occupant on social assistance. That is a challenge many First Nations are having to overcome and address, but we're getting there.
The goal we can look at in the future would be such that each First Nation person who is able to contribute will contribute what they can. That's not a finite number, it's not a magic number, and I can't say that it will ever be like it is off reserve, because we realize the economy is simply not there in some of our communities. That is one of the reasons we will feel strongly that there needs to be a Northern strategy developed for First Nations, taking into consideration the unique aspects of Northern and remote communities.
Senator Dyck: Thank you for your presentation this morning. It's very nice to have someone here who has had so many years of experience to be able to come and give us some very good ideas.
One of the things you said was that the federal government needed to rethink its housing strategy, and you've talked about remote and Northern communities. Would it be part of your suggestion that things need to be looked at in a different way?
Ms. Harper: Absolutely.
Senator Dyck: Are there other suggestions you might have that haven't been implemented or haven't been considered that you might wish to share with us?
Ms. Harper: I don't know if we have enough time, but yes. At Turtle Island Associates, we do feel very strongly about the Northern issue. It has always saddened and disappointed me that in a country as big as Canada, we have one approach to Aboriginal housing. That worries me greatly when we know for a fact of the differences that exist.
Again I have to qualify that it is not just in the North. But there are interesting things happening in the North now. Not all Northern communities are equal anymore, either; some have been able to prosper in terms of economic development and their people are doing better. But there are a number of communities that struggle with the day-to- day existence. Asking in those communities, ``Can you also pay $300 of rent on top of your $500 hydro bill and your $1,200 grocery bill?'' is probably an impossibility for the average Northerner.
So, we would look at and encourage all people to consider a housing approach that is truly affordable in the northern remote communities. It must be an approach that looks at affordability from the construction of the home but also the ongoing operations of that home.
The First Nations National Building Officers Association estimates that the cost of building the home is about $130,000 nationally, but the cost of maintaining that home over its 25 years is closer to $900,000. That is where our communities struggle: the ongoing commitment to managing the asset once it's on the ground.
Since I have the opportunity and you asked, as a First Nations person myself, I'm quite aware of the other limitations that exist in our communities. Even if we could provide a First Nations house for every member of the community, we might still lack other resources like land or infrastructure.
Or perhaps First Nations are just not interested in returning to their home community. I would encourage the federal government to consider an off-reserve housing approach. Doing so would allow First Nations a little bit more flexibility in where they would like to live, as all of us in this room have. We sometimes take for granted the idea of ``I would like to live over here now.'' That is not always possible in our communities. But it would be embraced in our communities because it would accept the reality that if some First Nations people can do more for themselves, we should encourage that. If that means that they acquire housing off reserve with some support from either the federal government or a First Nations government, so be it.
Some of you might remember that there was a time where there was an off-reserve housing program for First Nations. Now, some of you may not know this, but the program that existed back in the late 1970s or early 1980s was immediately cancelled or suspended when Bill C-31 was passed. There might be a link there.
Perhaps look at something like that.
We can all keep an open mind. It doesn't necessarily mean it would have to be ``here's all the money to buy a house if you're a First Nations person.'' One of the biggest barriers — and there have been studies done on it — to off-reserve First Nations is that they lack the down payment. It's not that they lack the income to sustain the mortgage or the ability to borrow the money; it's that they don't have the down payments that are readily available to most of us. Things that we take for granted in everyday Canadian society are not always a part of our Aboriginal society.
The Chair: While we're talking about the federal strategy, I'd like to ask you a question. There are two departments or agencies that contribute to housing for First Nations: CMHC and Aboriginal Affairs and Northern Development Canada. Do you understand what each department does?
Second, do you think there's a good reason for there to be two major funding sources within the federal government?
Ms. Harper: Wow. That is a very interesting question. I am aware of the differences between the two agencies, and I will speak honestly and say that we are much more familiar with the approach CMHC has used. That is primarily because CMHC has taken a progressive position in capacity development. At Turtle Island Associates, we are first and foremost trainers and facilitators, so we are actively involved on a daily basis in the capacity development side and have a great deal of appreciation and respect for the work that CMHC has done.
Now, the truth of the matter is that CMHC programs and services are also limited in terms of the number of building starts and renovation loans they have been able to do across the country with our communities.
Aboriginal Affairs and Northern Development Canada provides subsidies. We hear lots of criticism that the subsidies are insufficient for the cost of constructing or renovating homes. When we start to look at some of the conditions of our assets on reserve and at the funding available through either department, it is often insufficient.
Is there a need for two departments? I honestly can't say. I'd really need some time to think about that. Is there an area of duplication and overlap? Perhaps there is. I'm uncomfortable because this is when I would like to have a couple chiefs to turn to and say, ``What do you think?''
But equally important to our communities is the relationship that First Nations have with the federal government. Is one department perceived as better than the other? I don't know. And that may be something, as a Senate, you want to think about. What would an average First Nation community like to have? Chances are it might streamline some of the bureaucracy that we face. It might expedite us getting access to things, such as ministerial loan guarantees, which at this point in time are quite extensive and lengthy. It might introduce new standards; I'm not sure.
The Chair: I know it is a difficult question. That is something we'll probably be thinking about in the course of our study.
Ms. Harper: Thanks. Now I will, too.
Senator Sibbeston: I'm interested in the first item you raised, that since 1997 there has been a sharing of cost between the federal government, the band and individuals. What form does that take? How does that come about?
Ms. Harper: It's actually quite exciting. What typically happens on reserve is that when First Nations are building or renovating a house, some of the funding will come through one of the federal departments, AANDC or CMHC. If it's a new house and if it's funded under the CMHC program, it receives an ongoing subsidy to help cover the construction cost and the mortgage payments of that home.
Now, the First Nation has to contribute to the cost of these homes as well. Their contribution is generally in the area of the land, the infrastructure, preparing the lot and, in some cases, over and above any funds that may have been available from either one of the departments.
So, the First Nation makes a contribution to it. For the longest time that was it, then a band member would be chosen to move into the home. What First Nations very quickly began to struggle with wasn't the construction cost; it was the actual cost of managing the asset, making sure the home was insured, making sure the home was repaired, maintained and kept at a minimum standard. It is much easier said than done in many First Nations communities.
That is when, in the late 1990s, First Nations started to think about whether it was possible for the occupant to contribute. They were recognizing that the cost of each home on reserve was exceeding any federal government subsidies coming in either through AANDC or CMHC. The bands had to make up that difference using their own source revenue. As I mentioned, that was impacting other programs and services. Money that might have been meant for this project over here was redirected to the housing department to cover off loan payments, insurance, maintenance repairs, et cetera.
As First Nations began to think about a new approach to on-reserve housing, they started to wonder if the occupant could contribute even a small amount. Today, that contribution can be anywhere from $20 a month. It doesn't sound like a whole lot, but if a hundred of us are doing it, it becomes a budget the band has access to. In some communities, it can be as high as $300, $400 or $500 a month.
That's the contribution the occupant makes. The simple act of having the occupant make that contribution not only helps them solve their own housing problem, but it also generates a new budget line that the First Nation didn't have access to before. This creates three streams of income: the federal government, the First Nations government, and the occupant themselves.
Senator Beyak: Thank you very much for a very excellent presentation. I share Senator Raine and Senator Dyck's appreciation for your vast knowledge and 28 years across Canada.
I wonder if you could share thoughts on something we have heard far too often. No matter how much money flows, there seem to be dollars going under the table, poor construction standards, no standards at all, and money not going to the schools, housing, insulation, foundations but to contractors and others who are less than reputable. Do you have thoughts on that and any way the committee could recommend to change it?
Ms. Harper: Absolutely. All too often when we talk about First Nations or Aboriginal people in Canada, there's this immediate shift to the negative things that happen in our community. I will tell you, yes, that has happened. I'm not going to deny that. We all know for a fact it has, but it's certainly not the majority of our communities. I could have talked about many of the successes.
One of the successes was a number of years ago when the federal government decided to support the First Nations building inspectors through the NISI approach, which is the Native Inspection Services Initiative. One of the things we were doing was training our own people to become qualified building inspectors so we didn't have to wait any longer for somebody off reserve to come and inspect our construction or renovation loans. Our own people could be readily available in the community so that construction didn't have to be halted. Sometimes you'd wait a week or two for an inspector to come from off reserve. If the tribal councils or band offices had their own inspectors, it expedited construction and renovation time. It was a cost saving for many of our projects, but there was a little side benefit that a lot of people didn't talk about, except maybe our elders. It was neat to have native inspectors who understood our culture, our language. When they were on the job site talking to our own people, they were able to explain basic home maintenance things, and that was a huge bonus. They could say to an elder, ``You need to do this.'' That improved a lot of things in our communities.
The other thing that started to happen, through some of the capacity development approaches that did exist in the country, is that First Nations were learning how to tender and contract for their own contractors. This meant they no longer had to take anyone who was willing to work on reserve.
There have been challenges for some First Nations where there is not always a readily accessible source of skilled labour, and that's the truth in a lot of northern communities. We may not be able to bring in a construction firm to build these homes in some of the remote communities right away. There has always been a limited access. It certainly did result in some communities where we don't have the best contractors; we accept what we have. That sometimes translates into an inferior product being built. It's not unusual and it has gotten better, but years ago, when our people would go to buy building materials, we didn't always get the best building material. That's been documented across the country more than once. I can't say there's a rationale behind it, but I think some people simply said, ``It's a First Nations project, send this over there. That's okay.''
Has money gone missing? I would say probably no more so than for any other residential property that's being built in the country. I would never criticize our community for mismanaging funds that were probably insufficient to start with at the community level. I do think we've made great progress in terms of accountability, our contract management practices and using our own people in regard to designing, constructing, inspecting, and managing a house on reserve.
Senator Beyak: Thank you very much for sharing that. I was appalled how many times we heard issues like that. It's good to know there are positive sides as well.
Ms. Harper: Thank you for asking, because we felt really strongly with the opportunity to come here. I really didn't want to dredge up all those things we hear.
As senators, I encourage you to think about the positive things that have moved our communities forward and to celebrate those when we can, and perhaps we can do more of that.
The Chair: Ms. Harper, the training initiative that you referred to, training building inspectors, you called it an acronym. Can you tell us a bit more? Does it still exist?
Ms. Harper: NISI, from my understanding, was a CMHC initiative and it started a number of years ago in the early 1990s. It actually identified Native inspectors across the country and developed their capacity to be qualified building inspectors who are now qualified to do inspections under the NBC, which is the National Building Code.
How many there are across the country I don't know, and I would dare say today that number may have fallen. I say that out of respect for our communities, because many of them worked for tribal councils that took a serious cut in their budgets. When their core budgets were cut effective today, April 1, we may have some native inspectors who are now looking for work. This is kind of unfortunate when you think about the 20 years of capacity development that went into that and encouraging that particular service in our communities, and that it may be lost that quickly.
The Chair: This is a valuable insight. I think the committee is going to want to look into that further, because we haven't heard about that to date, even though we have heard from CMHC, so thank you for that.
Senator Moore: Thank you, Ms. Harper, for being here.
Just to follow up on the chair's question, would you have any idea how long that NISI was program in place, and do you know how many First Nation members were trained? Do you have any of those numbers?
Ms. Harper: You know, I'd be just guessing, and I would encourage you to contact CMHC who would know more about that. I think the numbers, in its heyday, were impressive. Again, I would reiterate that it was a great extension of Aboriginal skills, knowledge and services available to our own people.
Senator Moore: That is very important.
Ms. Harper: Absolutely.
Senator Moore: Where is your home in New Brunswick?
Ms. Harper: Eel Ground First Nation.
Senator Moore: And where is that? Give me a town or a city that you're close to.
Ms. Harper: Out on the Miramichi. I was going to tease you a little bit, because I see some senators are here from British Columbia and I was going to remind you that Eel Ground sits on the Miramichi River, which is home to the best salmon run in the country.
Senator Moore: I know.
Ms. Harper: No disrespect to the B.C. crowd here.
Senator Raine: We could have a little contest on that.
Ms. Harper: Senator Greene Raine, allow me to tell you what you an elder once told me. There is a reason in British Columbia they have four or five different types of salmon and we only have one on the East Coast: because the creator gave you quantity and us quality.
Senator Raine: We are growing Atlantic salmon in British Columbia.
Ms. Harper: And you'll be happy to know we disagree with that.
The Chair: Let's get back to our mandate.
Senator Moore: Spoken like a true Maritimer, chair.
With regard to your Turtle Island Associates, where is it based? Is this based on your reserve?
Ms. Harper: No, we are based in Akwesasne, but we do travel all over the country.
Senator Moore: And it's been going for 28 years.
Ms. Harper: No, Turtle Island Associates has been in existence since 1997. I have worked in Aboriginal housing for 28 years, starting off back east. I worked for the Aboriginal Peoples Council which managed the rural and native housing program off reserve for Aboriginal people. I then spent seven years with CMHC, working on training and development, and the last 17 years I have been a partner in Turtle Island Associates.
Senator Moore: When you were with CMHC in training and development, is that where you had contact with the native inspectors program?
Ms. Harper: It started back then. I personally was not involved with developing the native inspectors, but of course I knew about it going on. Since then I've had more involvement with them by having them out at capacity development workshops and by being with some of them in our communities and on job sites and trying to raise the profile of First Nations building inspectors, too.
Senator Moore: Senator Tannas was asking you about the categories of housing, and you mentioned a figure of 80 per cent, and I didn't know what that applied to. Can you tell me what that is, please?
Ms. Harper: Eighty per cent is the commonly understood number of the homes that exist in First Nation communities that have not been under the CMHC section 95 program. What that means is those homes were constructed using only the subsidy that's available from AANDC and any funds that the First Nation can contribute toward that cost.
Senator Moore: So these would be the band-owned housing units?
Ms. Harper: Yes, technically they are band-owned units. More and more communities are beginning to manage them like a rental unit, but unfortunately the majority of First Nations that built the home said to the member, ``You can occupy the home,'' but it didn't necessarily create a policy that transferred any responsibility to the occupant for things like maintenance, repairs and insurance.
Senator Moore: You said that the administration is an aspect that's very difficult because of the cost. What's included in that administration that makes it so costly? I take it it's not just the manager, if you will. Maybe you could tell me what that is.
Ms. Harper: The thing about on-reserve, in terms of the budgets that we receive and the positions that are funded and not funded, is that the position of a housing manager has never been a position that the federal government has funded. It is a position that, if a First Nation chooses to have a housing manager, then they have to find the money within their own capital budgets or own-source revenue to fund this position.
If a First Nation is already struggling with financial challenges or deficits, they may not have the money to put into hiring a housing manager, or they end up hiring a manager who isn't always the best qualified for the job. In some First Nation communities where they don't have the money to hire a manager, it ends up, believe it or not, with the band manager or the chief and council doing the job, and that results in a lot of other challenges for our community.
So we're looking at administrative challenges with things like having appropriate dollars to pay qualified individuals to protect both the people and the property that exist on the ground. We're looking in some First Nation communities, and it's as simple as they don't even have the space for a housing coordinator to work out of because the band offices are already overcrowded. We don't always have equipment.
I work with a lot of First Nation communities that, when I send them an email, it could be two or three days before we get a response back. When we ask them why, they say, ``Well, the computer was locked up.'' The First Nations at the band offices are dealing with such limited administrative resources that there might be only two or three computers that have Internet access and they are very much controlled by the administration: who is using it today and who is using it tomorrow? That is a reality in a lot of First Nation communities.
Senator Moore: Since the creation of Turtle Island Associates and its beginning in 1997, how many First Nations have you been able to positively help to set up the housing management that you know is needed?
Ms. Harper: Wow.
Senator Moore: Is it half of them, a quarter? We were told there are a total of 617 First Nations in Canada. How many have you been able to really touch and make a difference with?
Ms. Harper: I would say, just off the top of my head, we have probably been to at least one third of all First Nations in the country, maybe even as high as 40 per cent.
Have they all been positive? I can't say that, because we deal with the reality in our community of things like — back to the administration — high staff turnover. Being a housing manager on reserve is an incredibly stressful job these days. In those communities we are confronted often with high staff turnover. We are confronted with a frequently changing government, which I understand you're talking about later today. That's the reality for First Nations.
We might be making progress with the current government and actually working with them to say, ``What type of policies and procedures do you want? How far do you want to go with this? How many responsibilities do you want to share with your occupant?'' All of that can come undone at the next election.
Senator Moore: You mentioned the word ``stress.'' What elements or things are most stressful to a housing manager on a First Nation reserve, and what would you recommend to the committee that we might do or put in our report to help relieve that stress and achieve the balance and the quality of effort that you're hoping for?
Ms. Harper: I'll answer first. I don't want to forget what I think you could do, but what makes it so stressful is that in our communities we literally own millions of dollars' worth of residential assets and often are so understaffed that it's not unusual for the staff to say, ``I can't do this anymore. This is just too much.'' It's a challenge when one person is solely responsible for a couple of hundred homes.
The next challenge is we are conditioning our people to accept a new approach. That's much easier said than done. When I mentioned the issue of charging and collecting for housing services, it took almost 20 years to get to that point. Today, it's okay. We can talk about it. We can turn to one First Nation and say: Can you teach them how to do this now, because it obviously has worked for you? Twenty years ago, when I said a tremendous resistance was encountered, I was being very polite. There were people who were angry; they were walking out of meetings; they didn't like the change. They didn't like the thought that we had to try a new approach, because it hadn't been done on reserve.
The other big challenge we have is so many First Nations staff became landlords without proper training behind them. They took on a lot of these housing commitments 30 or 35 years ago, because we are talking about programs that in our communities are 35 to 40 years old. In the early days of Aboriginal housing and social housing primarily, there was little support for the administration or capacity development, or even ensuring that our chief and councils understood the agreements that they were signing with the federal government. We've made great progress in that area in the last 20 years, but those challenges still exist. We also still deal on a regular basis with housing staff — not always, but every now and then it does happen — who are not qualified to be managing millions of dollars' worth of real estate. That speaks to the fact that there are very few classifications for these jobs on reserve. There's no emphasis on having accreditation. There's no emphasis on having any experience. That again speaks to a shortage of staff resources or human resources in many First Nations communities.
We could all take a look at what are the minimum competencies that people should have in a housing position. The challenge with that will be, when we all start looking at standards and regularization, our communities can't afford that. I think if we all wanted to make an impact, we would make a strong argument that perhaps the position of a housing coordinator should be cost-shared with the federal government. The federal government provides funding for things like social assistance worker and, in some communities, a drug and alcohol worker. I think that maybe they're looking at us with the wrong lens. If we were to provide financial support to fund a housing manager's position, it could only benefit the nation by allowing the community to embrace economic sustainability, to share the responsibility of housing between our community and our occupant and, at the end of the day, to have overwhelming success for all of us.
Senator Moore: You know this business, Ms. Harper. Do you personally sit down with the elders or the council of a First Nation when they decide that they really need a housing coordinator or manager, and do you run through this step by step, point out and try to sort out at the beginning whether they have the qualifications? If not, is there some place they can get those qualifications so they can do the job that you know has to be done? Is that part of what Turtle Island does and what you do personally?
Ms. Harper: To an extent. We work directly with First Nations to develop their capacity. One of the realities we have to confront early on is: Do you have the resources? All too often people think the resources are just money to build more houses.
Senator Moore: You mean to pay for the manager? Is that what you mean by ``resources''?
Ms. Harper: To hire appropriate staff, yes. It might be more than a housing manager. It might be hiring maintenance staff to manage the asset.
One of the interesting trends we're watching right now in the country, which has come as a result of First Nations starting to charge and collect, is those bands who are doing it have recognized they need to extend their human resources to include what we're calling a ````tenant relations officer'' to deal with the issues of defaults and non- payment. First Nations are recognizing that they need more housing staff, basically, but are now being able to say: Perhaps we can fund that through our own revenue stream of having charged and collected for the house. That's kind of interesting.
Yes, we spend a lot of time talking to the elders, the chief and council, the administration that does exist and the membership, trying to get a better understanding that increasing human resources is truly an investment in our own communities, especially when those human resources become our own people working for their people. It's not always possible, and in some First Nations we're encouraging even a part-time job, a job-sharing approach to housing, but actually looking at getting somebody in the office who is qualified to deal with these housing issues.
Personally, as a First Nations member, I have always said to our chief and councils: If we can find a way to fund and create this position, it allows our chief and councils to step away from the day-to-day management of housing and to deal with real governance issues that our government should be dealing with, as opposed to dealing with property management issues.
Senator Moore: Do you go to the First Nations ,or do they have to come to you to Akwesasne?
Ms. Harper: We go to them. To give you a sense of how much we're travelling, I've already had 42 flights this year. I could almost be a senator, except I think you guys have more excitement than I.
The Chair: Colleagues, we are due to look at Bill C-9. I have Senator Wallace, Senator Meredith and Senator Raine. Then we'll probably have to wrap up, reluctantly, perhaps.
Senator Wallace: Thank you, Ms. Harper. Something you said interested me. Everything you said interested me, by the way. One thing in particular caught my attention.
You suggested that the federal government should rethink its strategy on Aboriginal housing. When you said that, it reminded me — and you referred to much of this today — that throughout the country, there are unique circumstances in the various reserves throughout the country. There doesn't seem to be a one-size-fits-all approach that will deal with that and solve those issues; and that within the Aboriginal communities themselves, the bands and councils have their own authority and autonomy and want to make their own decisions on behalf of their people. That's understandable.
When I hear that, and I think of all of the information that we've heard while we've had these hearings, it seems like a series of bits and pieces of what the issues are, what the solutions could be, and what different agencies and groups are contributing to that. When you speak about the federal government rethinking its strategy, do you sense there's anything that's close to a comprehensive national Aboriginal housing strategy in this country, a comprehensive strategy that tries to bring all of us together?
Ms. Harper: I think people might envision such a strategy. I, myself, in previous jobs have been involved in some of these national strategies and I can tell you, from an Aboriginal perspective, what usually happens when we're developing a national perspective of a problem is that we talk to a whole bunch of First Nation communities; we look at a bunch of regional authorities.
For instance, I know recently you spoke with the Atlantic Policy Congress. That's a regional authority. I also know you spoke with TSAG, so other examples of regional authorities that are out there. But then what happens is that we talk to them all across the country and then throw them all together in one national approach. Even though we took the time to listen and acknowledge the uniqueness in regions, then it becomes one.
This is just my opinion, but I think we need to go back and look at what makes those regions in Canada, a country as big as this, so different and what really is in the best interest of First Nations in each of those regions. I think we might be surprised that there might be some uniqueness that our communities would like to celebrate, to support and to do more of. You might also find there might be some initiatives that First Nations want to do less of. It's possible.
Senator Wallace: But if there isn't somewhat of a comprehensive approach towards the issue, how do we move from what seems now to be a series of one-offs, dealing with each situation separately? Although what you say makes sense, that each community is different, in terms of the solutions, wouldn't it make sense to have some comprehensive — call it a ``menu'' of what solutions could be available; the contribution the federal government could make financially from a resource point of view to providing those solutions; and the Aboriginal communities could choose what they want?
Ms. Harper: Absolutely.
Senator Wallace: Does something like that exist today?
Ms. Harper: Not to my knowledge. Even a lot of the housing initiatives or programs that exist today are proposal driven. For instance, if I want to apply for a program from CMHC, I have to write my proposal or my expression of interest and hope to be selected. It's not a given; it's not a guarantee that I can do that, so I have to go through this proposal-driven process.
Perhaps if there were some way to say, ``Every community gets a minimum of this'' and then people could build on it, that might make a difference in all of our communities, I would think.
It's a really interesting question. Should there be minimum standards? In a lot of areas, yes. However, I would encourage you always consider that when we talk about minimum standards, it's important to remember that we need to engage and connect our communities in what those minimum standards will be.
I would challenge all senators to be mindful that sometimes new standards are not affordable in our community. It would be easy to say, ``We're going to implement a new standard on a building code,'' but what do we do about the thousands of homes already out there? Do they apply? Can we afford to address a new code? Can we afford to change our approach in our communities right now? It's easy to say this could be the minimum going forward from this day on, but what do we do about the reality of an existing program or portfolio?
Senator Wallace: But that challenge exists for everybody in the country.
Ms. Harper: Yes.
Senator Wallace: The codes may not have been applicable to 1950 construction in Ottawa. Those issues apply everywhere. But I understand your point, and that's helpful. Thank you.
Senator Meredith: Ms. Harper, going back to Senator Tannas's question regarding a government strategy or a Northern strategy, what about the chief and councils? Rather than the government saying, ``This is what we want to implement with the First Nations'' — we know there's a crisis; we know there's a shortage; we know there are no codes; we know there are buildings in disrepair on these First Nations — then they make headline news and so forth.
Rather than a top-down approach or a government-imposed strategy, to my colleague's point and my question: What are the chief and council proposing? This is coming up from the grassroots and from the community. This is community driven. You're saying to the federal government, ``We need you to support this. Not just on a one-off. But here are those unique communities across this country. This is our proposal here — to address the crisis that is in our communities.''
Ms. Harper: Absolutely.
Senator Meredith: Can you elaborate on that for me in terms of your discussions with them?
Ms. Harper: Absolutely. In a lot of First Nation communities, more and more we see what some people call a new approach but what many of us call going back to how we used to govern, which was more of a community consensus being involved.
On a regular basis, we work with First Nations who take the issue, once it's identified and clarified, to the membership and say, ``What direction are we looking at?'' Those housing issues can be anything. How does the community want to address the housing shortage? How does the community want to address the issue of overcrowding? How do they want to address the issue of mould and indoor air quality? How do they want to address the issue that many of their people are leaving the community?
Those kinds of issues, once identified by a chief and council, are actually taken to the membership to have a dialogue and say, ``What can we do? What is in the best interest of our community, and what works for us?'' Then, together, as a community, they come up with a solution that works for them.
The problem is that it's very time-consuming. It can be costly, because often First Nations need resources to help them through that dialogue process. Sometimes they just want a third, objective point of view, who isn't critical or condescending to their community, who is comfortable with the issue but able to open up the dialogue with the membership.
To put it in perspective of some of the issues in the North that we came across, recently there was a First Nation community that wants a palliative care unit. It's really that simple. They're tired of their people ending their journey outside of the community. In many Aboriginal cultures, absolutely the worst thing that could happen is for you to die in a territory that's not your own. Yet, it's not even imaginable that they could have a palliative care home that meets standards today.
So that community, like many First Nations, would be forced to bring their people back home and have them complete their life journey in probably less-than-desirable and sometimes substandard conditions that would shock many of us in this room. That's what they want as a community.
Personally, I think there's nothing wrong with that. If that's your goal in housing — that you feel you need these types of special care homes — then we need to find ways to support and encourage that.
In fairness to everybody, most First Nations recognize that they will be part of the solution. They're not looking to the Government of Canada and saying, ``Do this for us.'' They're looking for assistance with finding a solution. A genuine need to want to work together has definitely resonated across the country in recent years.
Senator Meredith: Just to follow up with respect to a question asked before in terms of resources. Everyone who has appeared before us has always said we need more funding and in terms of which department it comes out of — and you talk about the certain lines of revenues that can be generated by First Nations contributing to their housing needs.
You talked about the progress that has been made. However, it appears to me that certain progress that has been made somehow is eliminated sometimes because of budget cuts and legislation. We talked about Bill C-31.
Can you elaborate for me how we maintain the progress that has been made, and how do we sustain that going forward, from the community perspective and also with government support, obviously, in terms of financial support?
Ms. Harper: There are some immediate things we could do, and then there are some long-term things that need to be done. I hate to be like everybody else who probably says to increase the budgets; but it's true, not just in terms of increasing budgets to construct and renovate homes but to increase capacity development budgets, to look at ways in which we can bring the skills and knowledge to the community, and to look at ways in which First Nations can begin to develop their own network. That's seriously in jeopardy now with the hits the tribal council just took. With the financial cuts to tribal councils, we will be losing First Nations and Aboriginal skills and knowledge. That's a reality for us.
If we can look at how we can bring our people together and maybe look at the development of a centre of excellence for First Nations housing, where people can go looking for solutions and tools and resources that have been developed. Whether that would be regional or national, I don't know; I've never really thought about it until just now.
We need to have more of an opportunity for the over-600 bands in the country to come together. Maybe long term we could say, ``If you have a success over here in terms of First Nations housing, how do we take that success and share it with the rest of the country?'' Is it something that can be shared? Maybe it doesn't work everywhere, but is there an opportunity to highlight and celebrate our successes?
Nothing would please me more than to turn on the news tonight and see a successful First Nations housing initiative being highlighted on the national news. But the chances of that are pretty slim, aren't they? Chances are I will hear about another crisis in our communities. I'll hear about things that don't necessarily move us forward and that also change how the rest of Canada looks at us. I would imagine there will be just as many people who say, ``Stop giving money to these Indians. That's enough.''
Maybe we could all try to celebrate our successes and spotlight them. If you have a friend at CBC, I can help you find a community. It really could be that simple — to talk more about what has worked.
The one thing we really wanted the senators to know is that, in spite of all the things you hear, there are successes, and they should be celebrated.
The Chair: I can tell you the committee is planning to look at some of those successes. You mentioned Membertou. We're hoping to visit that community and others.
Ms. Harper: Excellent.
The Chair: We hope to follow your advice.
Senator Raine: I was going to ask you a question that would go down a different path of conversation entirely, so I will not ask that question now. But I do hope that when you come back to Ottawa, as I'm sure you must now and again —
Ms. Harper: I actually live here.
Senator Raine: That's good. We can call on you again.
Ms. Harper: Absolutely.
Senator Raine: What you've shared today has been really great. I'll save my question for another evening. Thank you.
The Chair: Thank you, Senator Raine, for expressing the views of our committee in expressing gratitude to you, Ms. Harper, for sharing your experience, being candid with your views, dealing with our sometimes challenging questions and, perhaps most important, for communicating your optimism about the challenging subject we are studying. It's much appreciated.
With that, we will excuse Ms. Harper in order to examine Bill C-9, the ``First Nations elections act.'' Thank you for being here.
We will now go to clause-by-clause consideration of Bill C-9. I'll just say that the steering committee has worked on observations, as we discussed, and we'll get to that later.
First, I'd like to ask you to turn your attention to Bill C-9. If anyone needs a copy of the bill, we have it here, but you should have copies; it should be in everyone's binder. I'd like to ask, then, that we proceed to clause by clause.
Is it agreed that the committee proceed to clause-by-clause 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?
Hon. Senators: Agreed.
The Chair: Thank you. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Please intervene if you have any comments.
Shall clause 3 carry?
Senator Dyck: I'd like to make a brief comment about clause 3. There were some objections to clause 3(1)(b) and (c) that we received. I wanted to put on the record that we did receive written briefs from the Assembly of First Nations and Treaty 6 that outlined their objections to that particular clause, and unfortunately we haven't heard oral testimony from them. Of course, when we hear someone speak to it, it's much more engaging, much more impactful. It's unfortunate we didn't get an opportunity to hear them, although they were heard previously when we dealt with this bill as S-6. Of course, they also would have been heard in the House of Commons previously.
I just want to put on the record that they did have objections, which were to some extent taken into account in our observations.
The Chair: Thank you, Senator Dyck. Are there any further comments on clause 3?
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 15 carry?
Hon. Lillian Eva Dyck: Why don't you do them in a block by section?
The Chair: Okay. If that's agreed that they be done in a block —
Senator Dyck: According to the sections.
The Chair: — I will do so, beginning with clauses 15 to 19.
Shall clauses 15 to 19 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 20 to 22 carry?
Hon. Senators: Agreed.
The Chair: That was carried. Thank you.
Shall clauses 23 and 24 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 25 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 26 and 27 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 28 and 29 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 30 to 35 carry?
Senator Dyck: I would like to make a brief comment.
The Chair: Please.
Senator Dyck: One witness suggested that clause 33 could cause some confusion if there was a dispute about which court to go to, whether it be the Federal Court or the superior court of a province. That's all I wish to say.
The Chair: That was the Canadian Bar Association.
Senator Dyck: Yes.
The Chair: Thank you. That's noted.
Shall clauses 30 to 35 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 36 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 37 and 38 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 39 and 40 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 41 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 42 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 43 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 44 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the schedule carry?
Hon. Senators: Agreed.
The Chair: Carried.
Now, back to clause 1. Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
Senator Dyck: Subject to observations or including observations?
The Chair: I think we've agreed that there will be observations, and we'll consider them after this.
So, on that basis, shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Does the committee wish to consider appending observations to the report?
Hon. Senators: Agreed.
The Chair: Agreed. I would propose that we move to consider the observations.
We will then turn to the observations. I believe everyone has copies in both languages. We've prepared them in both languages. How shall we handle them, Senator Dyck? Do you want to read them out?
Senator Dyck: Is it normal practice to read them into the record?
Marcy Zlotnick, Clerk of the Committee: You don't have to.
The Chair: I think for the record we should. There was some work and some thought put into them since our last meeting. If it's agreed, I'll ask our deputy chair to read the observations, please.
Senator Dyck: Okay. Observations, 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.
Bill C-9 would give First Nations a new option for a comprehensive and a modernized elections process in addition to the three principal election systems presently available under the Indian Act: elections pursuant to the electoral provisions of the Indian Act; community-based leadership processes held according to custom; and elections conducted pursuant to provisions of self-government agreements.
The Standing Senate Committee on Aboriginal Peoples, in its review of Bill C-9, agreed that there is significant and long-standing support for the legislative framework that addresses several of the observed deficiencies inherent in the Indian Act electoral regime, including extending the terms of office, establishing penalties for electoral offences, and tightening up the procedures for the nomination of candidates and mail-in ballots.
The committee, however, heard significant concerns from a number of witnesses about clause 3 of the bill, which gives the Minister of Aboriginal Affairs and Northern Development the authority to order that an election be held in a First Nation, including a First Nation which operates under a custom elections code: `` . . . where the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation . . .'' The committee noted that the minister already has this power under s. 74(1) of the Indian Act. However, clause 3(1)(b) of Bill C-9 provides the Minister with a more limited authority than the Minister presently holds under the Indian Act, where the authority to order an election in any First Nation is allowed: ``Whenever he deems it advisable for the good government of a band . . .''
Both s.74(1) and clause 3(1)(b) confer similar powers, however, whereas the former would bring First Nations into the Indian Act — there's a typo there; there are two the's — which outlines an outdated and ineffective electoral system for First Nations, the latter would hold First Nations to the more modern and robust system of Bill C-9.
The key observation made was that any ministerial action taken pursuant to clause 3(1)(b), could, on application potentially be subject to scrutiny by the courts. Further, the wording ``protracted leadership dispute . . . [that] has significantly compromised governance,'' would set a high bar for the minister to justify the use of this power.
Finally, the committee heard objections from witnesses that clause 3(1)(b) perpetuates the power of the minister over the affairs of First Nations. In examining this concern, the committee noted that the vesting of the power of dissolution of government of all types is a common and necessary feature in Canada (including federal, provincial, and municipal governments.)
The Committee agreed that situations have developed on rare occasions in First Nations in the past and may develop in the future, where the absence of a functional government due to a protracted dispute can only be resolved by ordering the holding of an election. However, the Committee agreed that the wording in clause 3(1)(b) confirms past practice that this significant measure should only be exercised with great caution in the rarest of circumstances when all other democratic reforms and dispute resolution options have been fully exhausted, especially when it comes to applying clause 3(1)(b) to First Nations that operate under a custom election code.
The Chair: Okay. Thank you, Senator Dyck.
There may be some need to fine tune this. There was a typo Senator Dyck pointed out, and I'm told we may have to insert italics into this draft where there's reference to a bill.
So, I'm going to ask, then: Is it agreed that the Subcommittee on Agenda and Procedure — the steering committee — be empowered to approve the final version of the observations being appended to the report taking into consideration today's discussion and with any necessary editorial, grammatical, or translation changes as required?
Hon. Senators: Agreed.
The Chair: Thank you. That's agreed.
Then, finally, is it agreed that I report this bill, with observations, to the Senate?
Hon. Senators: Agreed.
The Chair: I will endeavour to do that today.
With that, colleagues, thank you very much. I think we've had quite a good consideration of this important bill, and good discussions, and I thank you for that. With that, I will declare this meeting adjourned. Thank you.
(The committee adjourned.)