Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 9 - Evidence - October 21, 2014
OTTAWA, Tuesday, October 21, 2014
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, met this day at 9:38 a.m. to give consideration to the bill.
Senator Dennis Glen Patterson (Chair) in the chair.
[English]
The Chair: Good morning. I'd 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.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. This morning, we will continue our study of Bill C-428, An Act to amend the Indian Act (publication of by- laws) and to provide for its replacement. I'm pleased we will be able to hear from a legal expert, Mr. Paul Chartrand, via video conference this morning. Welcome.
Before proceeding to his testimony I would like to go around the table and ask the members of the committee, please, to introduce themselves.
Senator Dyck: Good morning, Professor Paul Chartrand. I am Senator Lillian Dyck from Saskatchewan and I'm looking forward to hearing from you.
Senator Watt: Senator Watt from Nunavik.
Senator Beyak: Senator Lynn Beyak from Ontario. Welcome.
Senator Wallace: Good morning; John Wallace from New Brunswick.
Senator Enverga: Tobias Enverga from Ontario.
Senator Raine: Good morning; Nancy Greene Raine from British Columbia.
Senator Tannas: Scott Tannas from Alberta.
The Chair: Colleagues, I'm pleased to welcome our witness who is appearing from Winnipeg, Mr. Paul Chartrand, retired professor of law. Mr. Chartrand, we look forward to your presentation, which will be followed by questions from the senators. Please proceed.
Paul Chartrand, Professor of Law (retired), as an individual: Thank you, Mr. Chairman. I can say from Winnipeg that the volume of the sound is rather low, so I'm hopeful that I will be able to hear the questions following my presentation. I will now proceed with my comments on the proposed Bill C-428.
Looking first at the objective of the bill, I can note that the intention of the private member, Rob Clarke, to recognize the ability and the authority of First Nations to decide what is in their best interests is certainly a good and laudable objective. Today, I would like to go over some of the main points in Bill C-428 and offer some comments on what appear to me to be some aspects of ambiguity in the bill. Ambiguity invites disputes on interpretation, application and litigation, which we wish to avoid.
I'd like to make my comments in the order in which the provisions appear in the bill. I will be starting with the preambular paragraphs. There are not as legally important as the substantive paragraph, which follows it. The more significant matters appear in the substantive paragraphs. Nevertheless, I should comment on some aspects of the preambular statements, based on the notion that when making laws that are binding, Canadians ought to expect nothing but the highest standards from Parliament.
First, with respect to the first preambular paragraph:
. . . the people of Canada's First Nations being subjected to differential treatment;
What is this being compared to? How is it different? If the idea is that First Nations are being treated in a manner different from other Canadian citizens, then the response to that is that there are good reasons for it. A lot of the Constitution in Canada recognizes and affirms particular rights that are held only by Aboriginal people, and that certainly includes the First Nations. This is one ambiguity.
Second, although it's not expressed in this next quote, presumably the focus is economic:
Whereas the Indian Act does not provide an adequate legislative framework for the development of self- sufficient and prosperous First Nations' communities;
Does this not imply that Bill C-428 would provide a remedy? In the preamble, if you make a reference to economic prosperity, then one would expect that this bill is going to do something about it. Later on, I'll have a comment to make, because in this regard, we find that one of the effects of Bill C-428 would be to remove the provisions that outlawed free trade from reserves with the rest of the world. That's a good thing, but I can't see anything that suggests that there's anything positive being done to promote prosperity and economic self-sufficiency. Along with this bill, if it's passed, I would suggest that the government consider a program to promote economic prosperity by agricultural means on First Nations reserves. Otherwise, what is the purpose of the preambular assertion?
Looking at the third preambular paragraph, I mention the reference to the modern relationship between the Government of Canada, which is presumably the executive arm of government, and the people of Canada — not the First Nations, but the people of the First Nations. What is the character of this modern relationship? One might think it's the opposite of a colonial statute, which is mentioned in the first preambular paragraph.
It is not a matter of fact that the Indian Act is a colonial statute, because it was first enacted in 1876. We know that Canada was not a British colony in 1876. Therefore, the colonial character of the legislation is in its origins. The Indian Act was actually a consolidation of earlier legislation that included colonial legislation.
The point I wanted to make about this third preambular paragraph is the distinction in the relationships between: the First Nations and the government on the one hand and the relationship between the people of the First Nations and the government on the other. I'm not sure what is behind that thinking that the reference is only to the people of the First Nations rather than to the people themselves.
In the preambular paragraph two, there's an unwarranted apostrophe after the "s" in First Nations there. That should be removed.
Preambular paragraph four has ominous connotations, which when we examine the substantive paragraphs, we find that we didn't really mean what we said in the preambular paragraphs. Let me explain.
Judging from the plain meaning of the words in preambular paragraph 4, the intention is that the consultations on the amendments to the Indian Act in the future would take place not with all First Nations, but only with those First Nations that in the past have demonstrated an interest in this work. If, in the past, a First Nation had not demonstrated interest, then they would be excluded from future consultations.
Looking at the substantive paragraphs later on, we're able to presume that this isn't the intention. However, back to my first point that I think that Canadians have a right to expect the highest standards of expression from the Parliament of Canada.
I now refer to the report by the minister and I want to make a very short point here. I'm not in favour of the recent habit of parliamentary draftsmen using the word "must" when it appears they intend that something is imperative or is required to be done. It has long been accepted in the courts and in legal argument that the word "shall" is imperative, and that the word "may" is permissive. Why use another word? I notice that the federal Interpretation Act does provide that the word "shall" is imperative. If we know that the word "shall" is imperative, then why not use the word "shall"? I don't think that we can ever be too clear. I don't see the reason for the shift. In a lot of legislation these days, I've seen a shift from the word "shall", which is quite clear, to a new word "must."
I move on to clause 5, which proposes to repeal sections 32 and 33 of the act: the sales from Indian reserves to the rest of the world. This provision has not been operative for quite some time. By order-in-council, it has been concluded that no First Nation is now hampered by these particular provisions. This has been a dead letter for some time. So, it's difficult to believe that anyone would find good reason to oppose the repeal of these particular sections.
However, I would recall my previous comment that, according to the preambular paragraphs, one of the intentions in this proposed legislation is to promote economic self-sufficiency. Well, if that is so, then it would appear to invite the government to consider the establishment of a companion program to this proposed legislation that would promote economic self-sufficiency of First Nations in the agricultural sector. That would be true to the apparent intention in the preamble.
Looking at what might be viewed as a technical matter, I think it would be better drafting if this bill would separate the repeal of the sections from the repeal of the heading before the sections — otherwise, they're all thrown into one. Two different things are being repealed. One is the heading and the second is the substantive sections, themselves. My point is that greater clarity would be established by two different expressions. First, the heading is repealed; and, second, the sections are repealed. One can never be too clear.
I comment next on the seventh paragraph, which has been deleted from the original, if I may call it that. These would be sections 42 to 47 of the act which deal with matters of intestacy and wills. I had appeared before the house committee considering the original bill and suggested that there were problems with this particular repeal. It's mainly because it seems to be a fair bet that First Nations have particular constitutional rights that potentially would be affected by provincial wills legislation if the original wording of the bill had been allowed to proceed. The proper approach, it would seem to me, is to follow the one that has been adopted in some of the modern treaties, which is to recognize the authority and the ability of the First Nations, themselves, to pass laws having to do with family life and the related property interests in reserve lands.
However, I want to emphasize in this regard that recent Supreme Court of Canada jurisprudence invites everyone to reflect on the changes that might be made to this wills and estates legislation, as well as other legislation, with respect to any legislation having to do with reserve lands.
The case that I have in mind is the Chilcotin decision and the view taken by the court about the authority of a First Nation having Aboriginal title of control to exercise administration and control of Aboriginal title lands. I say that because there is judicial authority. In particular, late Chief Justice Brian Dickson said in the Musqueam case that the incidents of Aboriginal title are the same as the incidents of reserve lands. I simply point out here a matter of legal ambiguity that ought to be considered carefully in dealing with the deleted section 7 on wills and estates. I would think that would apply as well to the recent legislation on matrimonial property.
I comment next on the repeal of section 82, which provides that bylaws made under section 81 would be effective only upon approval of the minister and the minister could disapprove them. Of course, this relates to one of Mr. Clarke's objectives, which is that other governments in Canada are not subjected to this sort of oversight and First Nations should not be subjected to this ministerial oversight.
There is a resultant ambiguity in this repeal, which has to be read along with clause 10, which is the amendment to section 86. We have to look at the repeal of section 82 and the amendment to section 86 together. Section 82 simply does away with the requirement that the minister approve bylaws; and section 86 would provide for the publication of bylaws and that the bylaws would take effect. Proposed section 86(4) states:
A by-law made by the council of a band under this Act comes into force on the day on which it is first published under subsection (1) or on any later day specified in the by-law.
The point is: There are still provisions in the act that give authority to cabinet and the minister to approve or disapprove bylaws made under the act. The former section 82 pertained only to section 81 bylaws. The one in proposed section 86(4) would pertain to all bylaws. It says every "bylaw made by the council . . . under this Act." This would include, for example, the money bylaws under section 83. Section 83(4) provides that the minister may approve the whole or a part only of a bylaw made under subsection (1) of the money bylaws.
We find also that the Governor-in-Council — cabinet — pursuant to subsection (5), may make regulations respecting the exercise of the bylaw powers of bands under this section. The question, then, is this: How is that disapproval when it comes to be expressed? Would the minister be required to give notice of the disapproval? Presumably because the bylaw comes into effect upon publication, then, it ceases to have effect upon the disapproval. Currently, a low-level authority in case law decided that under section 82 pertaining to section 81 bylaws the minister did not have to give notice. Indeed, that the minister didn't have to express disapproval and that it could be done by a delegate.
My point here is that there seems to be some ambiguity. Certainly the objective is to do away with, in a sense, the inappropriate oversight of the exercise of governmental authority by First Nations, but it seems to me that the manner in which the continuing approval of the government, expressed either through the minister or by regulations made by the executive, is not clear. There is no reference to those procedures in Bill C-428.
I'll move now to my final comments which pertain to the repeal of the schools provisions. I think everyone would be familiar with the general objective to do away with the archaic provisions that govern the administration of First Nations schools on reserves and under which the well-known Indian residential school system operated. I doubt if there will be any opposition to the repeal of those aspects of the legislation, but I do have one question. I think there is one question which might fairly be asked, and it pertains to the repeal of sections 120 and 121.
Sections 120 and 121 engage rights of religious minorities, whether Catholic or Protestant minorities, on reserve and give them an entitlement, subject to there being sufficient numbers of students involved, or the right to have two things: to have a school operated in accordance their religious preference and, in section 120, their right to have a teacher of their same religion as that religious denomination on the reserve. These have been done away with.
It's not up to me to offer any suggestions as to whether these are good or not good things. I point it out because the question of religious rights is a very important one in our constitutional history, and it continues to be a very important issue. There are constitutional rights held by religious minorities pertaining to the operation of their schools. I've seen quite a bit of commentary in public media, particularly in Ontario, about those religious entitlements. I've noted that some journalists have overlooked the constitutional foundation for these rights.
These rights are rights that have been long held by religious minorities. It seems to me that where the Indian Act is dealing with things that have been thought to be so important that they should be included in constitutional guarantees, that one should be quite circumspect about doing away with them. My question is how much circumspection and consultation have been involved. I don't know. I don't know what the view of First Nations on that is, but it seems to me it's a point worth making.
With that, Mr. Chair, I conclude my initial commentary and thank you for your attention.
The Chair: Thank you, Mr. Chartrand. Is the volume okay now? Can you hear me okay?
Mr. Chartrand: I can hear you. We have someone here trying to help out. Could we have some sound from your side, please, all the away from Ottawa so I can see if things have improved?
The Chair: Yes. We have a —
Mr. Chartrand: Yes, that's better. Thank you very much.
Senator Raine: I'm following with great interest your comments on the bill. When you appeared in the Standing Committee on Aboriginal Affairs and Northern Development to talk about the bill, you said the Indian Act is an archaic law that must be done away with one way or the other. How do you see the changes proposed in this bill helping First Nations on and off reserve?
Mr. Chartrand: The question is about First Nations on and off reserve. I didn't quite get the gist of it.
Senator Raine: I want to know if you see the changes that are proposed in this bill helping First Nations people on and off the reserve.
Mr. Chartrand: Are there changes between them? Changes between people on reserve and off reserve? This bill pertains to matters on reserve.
Senator Raine: Okay.
Mr. Chartrand: Just as the new First Nations education legislation, for example, which has been the subject of consideration, replacing those particular provisions in Bill C-428, all have the intention of applying on reserve. The policy of the government, as you would know, has been to have the administration and control of affairs on reserve, by and large.
The Chair: Professor Chartrand, I wanted to be clear about your comments on the wills and estates matter.
As you know, and perhaps it was due to your testimony, the House of Commons committee did delete clause 7 of the bill in an earlier version. That would have repealed sections 42 to 47 of the Indian Act pertaining to wills and estates of status Indians who were ordinarily resident on the reserve. I wanted to be clear from what you said about those clauses that you agree with the deletion of the clause in the original bill. Did you feel that there were still problems with that area?
Mr. Chartrand: My comments were directed primarily at the significance, as I see it at the moment, of the implications that would flow from that Chilcotin decision, because there is judicial authority that decides that the character of reserve lands is the same as the character of Aboriginal title land, which was the case in Chilcotin. Those comments were directed at the provisions, as you have said, that are now gone.
In response to what you have asked me now, I would say that the answer would lie in an examination of section 81 bylaws. The council of the band may make bylaws and so forth, and then there is quite a long list that goes up to subsection (r). The point here would be to consider whether any of these matters might be matters that involve the constitutionally protected right of First Nations as Aboriginal rights to control the reserve lands themselves, and so that might be affected.
I will give an example here at section 81(1)(f) and section 81(1)(g). It states that bylaws may be made pertaining to:
(f) the construction and maintenance of watercourses, roads, bridges, ditches, fences and other local works;
(g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings . . . .
— and so on and so on. So the question is where any bylaw pertains to the administration and control of the lands of the reserve, then my suggestion would be that a careful review of the implication from the Chilcotin decision would be appropriate, which I haven't done.
The Chair: The Chilcotin decision should permit —
Mr. Chartrand: Could have some implications.
The Chair: And it could permit bands to develop bylaws, or it should permit bands to develop bylaws relating to land. Is that what you're saying?
Mr. Chartrand: Yes. In addition to that, one of the implications may be to place limits on the authority of the minister or the cabinet to impose limitations on the making of these bylaws.
The Chair: In this case, the bill might be contrary to the interests of the Crown? Is that a question you're asking?
Mr. Chartrand: It raises the possibility that portions of the Indian Act, as they are now, might be too limiting because they might infringe upon the rights of the First Nations, which they have as a matter of constitutional law. The consequential effect would be felt upon the approval or disapproval of the minister of those particular bylaws. It could be the case that there would be limits on the ability of the minister to impose limitations on the bylaws. The same would go for regulations made by cabinet.
The Chair: Okay. Thank you. That is most interesting.
Did you have a question on that matter, Senator Watt?
Senator Watt: Yes, I have a supplementary question on the same topic that we're discussing. First, though, I would like to say thank you for your presentation. It makes things clear in terms of what we have to watch out for.
My question is this: If that is the case, the possibility of ambiguity could arise out of this piece of legislation. Would it help if we put in a non-derogation clause if that's the only thing we can do? Would that be acceptable to you as a legal scholar?
Mr. Chartrand: Your question, if I understand it correctly, is whether a non-derogation clause in Bill C-428 would help.
Senator Watt: Yes.
Mr. Chartrand: I think that might be helpful. On the other hand, it wouldn't remove the possibility of disputes about the interpretation of the act and the question of whether the act imposes undue limitations on the exercise of the control of reserve lands by a First Nation. That would be a matter which would still have to be decided by a court.
If my memory serves me right, I believe that the federal Interpretation Act already directs judges to interpret legislation in a way that does not derogate from constitutional rights.
Senator Dyck: Thank you for your presentation this morning, Professor Chartrand.
One of the things you said was because the bill is ambiguous it invites disputes and litigation. For instance, you referred in clause 2 that the word "must" has no legal definition whereas the word "shall" does have the imperative for the federal government to act.
With regard to clause 2, there is the word "collaboration." Does the word "collaboration" in clause 2 have any legal definition or legal force compared to the word "consultation"?
Mr. Chartrand: Is the question does the word "collaboration" invite dispute about its meaning?
Senator Dyck: Yes.
Mr. Chartrand: I don't think so. The reason I made the point that I tried to make about words that are permissive or words that are imperative on the other hand is because these distinctions are particularly important in resolving legal disputes. There is a well-established authority for the use of the word "shall," whereas the word "must" is a recent habit of draftsmen. At my age I'm asking why they do this. If we already know "shall" is the right word to use, why introduce a new word? By introducing new words like that people say if you use this other word you must mean something other than "shall."
I don't see any problem like that with the word "collaboration." A court would look at the word in the context of clause 2 and on its ordinary meaning. Offhand, I can't see any undue difficulty with its interpretation.
Senator Dyck: What is the ordinary meaning of "collaborate"? Certainly in my mind, and I may be mistaken, "consultation" has a very different connotation from "collaboration." As you know much better than I, "consultation" and "accommodation" is something that is a constitutional obligation whereas "collaboration," as you said, has another meaning. Would you describe the distinction between the two? Would you not think that "consultation" would be a more binding word that would be more advantageous to the processes that First Nations would like to see happen?
Mr. Chartrand: Well, it seems to me that the word "collaboration" has a fairly broad meaning and that the word "consultation," as you've pointed out, has a particular legal meaning or, to be more precise, a particular meaning as interpreted by the courts and I don't want to go into detail on that.
The general term "collaboration," if it means "to work with," I think would include the constitutional meaning of consultations, and I can't see that a reference to "consultations" itself would assist very much because the constitutional doctrine of consultations, if I may call it that, is still in an early stage of development. It contains a lot of ambiguities itself, but these would be resolved in the courts in any case.
My point would be that new legislation such as Bill C-428 should be sufficiently clear so that it doesn't invite litigation, but we can't do more than that. I can't see any difficulty with "collaboration." In my view, there are such difficulties with the doctrine of legal consultation, if I can call it that, which I don't really think would assist in this regard.
I would just point out one of the issues and that is whether or not consultations of the kind that I think you had in mind in your question, senator, are required in respect of the task of Parliament. There are scholarly and judicial views on both sides of the fence. Some would say yes, if there is a constitutional requirement for consultation, then it should be interpreted as a limitation on the authority of Parliament to decide on legislation. Others take a different view and emphasize the distinct roles of the legislative and judicial branches of government. Those questions haven't been resolved yet.
Senator Dyck: The sponsor of the bill, Mr. Clarke, believes that this bill will mandate the minister to sit down with First Nations to come up with a process to repeal the Indian Act. Other witnesses have said to us that they believe the bill requires the minister to report but that there is no legal requirement in the bill for the minister to actually initiate a process to repeal the Indian Act because it's mentioned only in the preamble.
What is your interpretation of the legal force of the bill with regard to setting up some kind of process to repeal the Indian Act?
Mr. Chartrand: We look at the terms of clause 2, whereby it's provided that the minister must, and I would say "shall," report to the house on the work undertaken by his or her department to develop proposed legislation to replace the Indian Act. It is simply a duty. What is the duty? The duty is to report. If the report is that nothing was done, then that's the substance of the report. I don't see any words in here that require that the minister do anything other than report to the house on what he has done or not done.
Senator Dyck: For clarification, if the intention were to legislate a process, should there not be a subclause, say 2(a), to say something like "the minister shall sit down with the First Nations and develop a process whereby the Indian Act would be repealed or amended?" Would that accomplish the intention of the sponsor?
Mr. Chartrand: That's a difficult call. The Indian Act has been around since 1876, which is a long time, and there is no consensus that I have ever been aware of on what to do with it. Some would say that amending it must be based on the belief that one can indeed make a silk purse out of a sow's ear. Different views have been taken on what to do with the Indian Act.
The federal Royal Commission Report on Aboriginal Peoples, for example, proposed that it be done away with and replaced with a different process of negotiating new treaties or renegotiating historic treaties and doing away gradually with the Indian Act. However, we can still hear First Nations leaders and still take the view that amendments to the act must be done very carefully.
As you know, there are well over 600 First Nations, so it's not surprising there are many different views on that. Offhand, it seems that the only way one might succeed in getting a complete view of what to do with the act would be to consult with each and every First Nation, which would be quite a process. If you consult on that, you would have to have two or three general approaches, the details of which would have to be filled out anyway.
What to do with the Indian Act is a tough nut to crack. At the moment, I can't see that trying to legislate a duty on the part of the minister to aim at amendments might be all that beneficial. It could be that the best way to deal with it would be by way of policy.
The Chair: If I may, professor, my colleague suggested that maybe "consultation" might have been a better term to use in clause 2. Would you agree that, in some views at least, "consultation" does not mean "consent" and does not give a veto; and, in fact, that the sense of collaboration is more like a process where two or more organizations work together to realize shared goals. Would you have any comments about whether the word "collaboration" might result in more engagement and more partnership, rather than the word "consultation," which seems to be so charged with strong views in the courts and otherwise these days?
Mr. Chartrand: Yes, I tried to suggest in my earlier comment that I didn't see any significant reason for changing the word "collaboration" as it is now. There is very little to compel Parliament to respond directly to the views of First Nations on this, although certainly one would see it as wise policy to take that into consideration. As you said, there is no legal requirement for consent. Of course, some strong democratic principles are at play here, in particular the one that in a democracy, legislation ought to take seriously into consideration the views of those most affected by that legislation. We have some important political principles, but there is no legal compulsion to do any of that; and I see no difficulty with the word "collaboration."
Senator Beyak: Professor Chartrand, that was helpful and informative. Could you share your thoughts with the committee and citizens watching the telecast on the following:
As you know, over the years there have been many attempts to reform the Indian Act, and most have been unsuccessful. There is widespread agreement among First Nations that the current framework doesn't adequately meet their needs. However, there is division on how to fix it and whether we should have piecemeal legislation, which many call this, that just opens the door and starts, or whether that's a failed attempt to do anything and we need broad, one- time reform of the Indian Act. Do you have thoughts from your past experience in this field that you could share with us on how you would reform the Indian Act, if you could?
Mr. Chartrand: I have thoughts but I'm not sure that they would be particularly helpful, unfortunately.
As I said, I've been involved in making some policy proposals to the federal government to do away with the Indian Act and to replace it with a number of other institutions and with other legislation. By and large, all governments have ignored those recommendations.
There is no consensus on what to do with the act. On the one hand, governments are pressured to eliminate the obviously wrong proposals, like this one. On the other hand, it's almost impossible to get consensus on the side of First Nations because naturally there are so many political entities that you can't expect them to have the kind of consensus that other political entities don't have. It's a tough nut to crack, as I suggested before. Certainly, ongoing consultations are important.
The underlying issue is for a government to do things that establish an atmosphere of trust, because the issues are very complex. One of the results of piecemeal legislation like this legislation, and even some of the other legislation that has been very beneficial from the views on all sides, some of it being promoted by First Nations, is the making of the legal regime on Indian reserves a thing of great complexity. That's not a good thing. We need a reasonable degree of legal certainty so that people can organize their affairs appropriately and First Nations can govern securely in the understanding of the legal framework under which they are operating. One of the disadvantages of piecemeal legislation is that it increases that complexity. It's a very difficult issue.
I think the thing to do for a government wishing to do the right thing would be to engage in widespread consultations and to do that which would engender that relationship of trust. I did suggest something today that might go some way to accomplish something like that, and that would be the establishment of a federal program to enhance economic self-sufficiency in the agricultural sector on reserves, at the same time that it does away with those terrible provisions that outlawed free trade from reserves formerly.
Senator Beyak: That was very helpful. Do you think a piece of legislation like this opens the door and doesn't do any harm, but could be helpful? Your presentation was thorough on the issue, but our general feeling from witnesses is that it opens the door. It's a start. The member of Parliament has good intentions. I wondered if you would agree with that.
Mr. Chartrand: That Bill C-428 opens the door, did you say? I'm sorry.
Senator Beyak: Yes. That's what we've heard from the MP and other witnesses.
Mr. Chartrand: Well, it's public action. It's legislation. The difficulty with policy decisions or legislation is that they have their expressed objectives, and they're expressed in particular ways, but these objectives are not always understood in the way that they are expressed. This is a big problem. It's a big problem for governments to make policy decisions. It's a big problem for people proposing public bills or private member's bills. In fact, the question of private members' bills is a contentious issue.
This is a political process. Making laws is a political process. Adopting policies is a political process. One thing I know surely is that, regardless of the intention and the expression, many people who see their interests affected by the proposal will react in particular ways. I can't see any way of doing away with that.
The Chair: Seeing no further questions, I do have one very persnickety question. I'm a former English student. Professor, referring to the second preamble, I understood that when you have a plural modifier like "First Nations," more than one, such as "First Nations' governments, First Nations' communities," when you have more than one First Nation, you put the apostrophe after the "s." Where you have a singular modifier, like "Joe's house," you put the apostrophe before the "s." Can you explain why you don't think there should be an apostrophe there?
Mr. Chartrand: Mr. Chairman, I learned the English language from French-speaking Catholic nuns in my home community. I believe I perhaps learned the English language in its written form particularly by osmosis, by reading many books in the English language. I always found it to be much easier than French, actually, or Latin, for that matter.
I wouldn't be able to do well in debating the elements of the grammar or the rules that apply here. Nevertheless, I can say this in my own defence: The apostrophe indicates a possessive relationship. As someone said in a humorous context one time, some people believe an apostrophe has the purpose of announcing the impending arrival of an "s." In this case, there is no possessive relationship between "First Nations" and "communities" that I can see. "Development of self-sufficient and prosperous First Nations communities." "First Nations" qualifies "communities." What kind of communities are they? They are First Nations communities. There's no possessive relationship that I can discern, but I will defer to anyone who is able to demonstrate that there is a rule that is intelligible to someone who has learned English from the Franciscan nuns.
The Chair: I think you are saying it's an adjective, not a possessive. That's helpful.
Your testimony has been very helpful, sir. You've been before our committee previously and other committees, and your experience and clarity is much appreciated.
Senator Dyck: I'm impressed with your level of knowledge of English grammar, Mr. Chair. My high school English teacher would give you an A plus plus.
I'm wondering about the differences in that clause with respect to an apostrophe or not. Comparing that to the French version, there's no apostrophe there. My knowledge of French isn't good enough to know whether or not you would need an apostrophe in the French version. The two versions, English and French, may or may not match up. Mr. Chartrand, I'm not sure whether you're fluent in French, but if you looked at the French version of that clause, is it consistent with the English version, then?
Mr. Chartrand: I'm sorry. A fan has come on here, and I have a bit of difficulty understanding the question. Is it still with regard to the —
Senator Dyck: With regards to the apostrophe.
Mr. Chartrand: Oh, in the preamble?
Senator Dyck: Yes. In the English version, there's an apostrophe, which, as you've said, implies ownership or possession. In the French version, there is no apostrophe. Does that imply an inconsistency in the drafting?
Mr. Chartrand: My understanding is that English and French work on different rules. I've just had a look at the French version here, and I don't see anything that conflicts with my attempt at an explanation earlier on. We can all take some measure of satisfaction in knowing that the preambular paragraphs, as I said initially, don't carry that much weight, anyway. They are only aids to the identification of the objectives of the legislation. The objective of the legislation is a guiding principle for the interpretation of the substantive paragraphs. These are much less important.
Senator Dyck: Thank you.
The Chair: Thank you very much, sir. With that, this meeting of the Standing Senate Committee on Aboriginal Peoples is adjourned.
(The committee adjourned.)