THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, June 6, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9:01 a.m. [ET] to examine Bill C-45, An Act to amend the First Nations Fiscal Management Act, to make consequential amendments to other Acts, and to make a clarification relating to another Act.
Senator David M. Arnot (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, I would like to begin by acknowledging that the land on which we gather is the traditional ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.
I am Senator David Arnot from Saskatchewan, and I am the deputy chair of the Senate Standing Committee on Indigenous Peoples. I will now ask the committee members in attendance here to introduce themselves by stating their names and the province or territory from which they come.
Senator Martin: Yonah Martin, British Columbia.
Senator Hartling: Nancy Hartling, New Brunswick, the unceded territory of the Mi’kmaq people.
Senator Sorensen: Karen Sorensen, Alberta, Banff National Park, Treaty 7 territory.
Senator Coyle: Mary Coyle, Nova Scotia, Mi’kma’ki.
Senator Greenwood: Margo Greenwood, British Columbia, Treaty 6 territory.
Senator D. Patterson: Dennis Patterson, Nunavut.
The Deputy Chair: Thank you.
Welcome to our panel of witnesses, in particular we have with us the Minister of Crown-Indigenous Relations, Marc Miller; Christopher Duschenes, Director General, Indigenous Institutions and Governance Modernization; Philippe Bertrand, Manager, Fiscal Policy and Investment Readiness; Andrea Dixon, Senior Policy Analyst, Fiscal Policy and Investment Readiness; Andrew Ouchterlony, Legal Counsel, Department of Justice Canada; Joanne Wilkinson, Senior Assistant Deputy Minister, Regional Operations, Indigenous Services Canada; Lynne Newman, Director General, Fiscal Arrangements, Indigenous Services Canada; and Jessica Sultan, Director General, Economic Policy Development, Indigenous Services Canada. I would like to thank you all for joining us today. Minister Miller will provide us with remarks for about five minutes or so, followed by a question-and-answer session with the senators. We are advised the minister must leave no later than 9:45 this morning, but the cadre of officials will remain to answer questions. I now invite Minister Miller to give his opening remarks.
Hon. Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations, Crown-Indigenous Relations: Kwe Kwe, tansi, hello. Thank you, Senator Arnot, for recognizing the land that we are on today, and thank you to the committee for the invitation to appear before you to talk about this important legislation to amend the First Nations Fiscal Management Act.
We have been engaging with Indigenous partners, some of whom are present today, for some time on this particular legislation, and the main message we hear is to hurry up and get it done.
This act came into force in 2006, and to date 348 First Nations have chosen to participate, providing them with a framework to assert their jurisdiction in financial management, taxation and access to capital markets. The key word here is choice. First Nations participating in the act have better access to capital, more fiscal powers and better financial management systems. As a result, they’re growing their economies and improving socio‑economic outcomes for their community members.
Over time, First Nation signatories and the First Nations-led institutions established by the act — namely, the First Nations Financial Management Board, also known as FMB, the First Nations Tax Commission, or FNTC, and the First Nations Finance Authority, also known as the FNFA — have identified numerous ways to improve the act.
[Translation]
The proposed amendments would expand and modernize the mandates of the First Nations Tax Commission and the First Nations Financial Management Board to better reflect their current and future activities. They would establish a First Nations Infrastructure Institute that would provide First Nations and other interested Indigenous groups with tools and support to implement and manage their infrastructure. They would also provide First Nations who are participating in the act with the power to make laws to regulate services provided by or on behalf of the First Nations.
These amendments are being proposed during an important moment in Canada’s process of decolonization. As you know, the United Nations Declaration on the Rights of Indigenous Peoples Act came into force in June 2021, following this committee’s thorough study of Bill C-15. Our government as a whole is working with First Nations, Inuit and Métis to implement the United Nations Declaration, and consultations with Indigenous partners have led to the development of a draft action plan.
Some action plan measures identified for my department to work on with partners, such as the FNFMA, include amendments to the Fiscal Management Act and implementing the right to self-determination.
The proposed amendments we’re talking about today are key to this work. They would align with the United Nations Declaration, and the Truth and Reconciliation Commission Calls to Action, since they support a fiscal relationship that promotes economic development and Indigenous governance through institutional development.
[English]
Before I finish, I’d like to provide some examples of how this act promotes social change with some stories about First Nations in British Columbia.
Neskonlith First Nation financed a daycare centre that offers Secwepemc cultural activities as its core programming and is open to children of all backgrounds. The circular design is like a traditional winter house, a kekuli, but it acknowledges how children are in the middle to nurture and to be raised in a good way.
’Namgis First Nation achieved Financial Management Systems certification in April 2021, which strengthened their governance capacity. By developing their financial administration law, ’Namgis has more flexibility in regard to meeting the financial and social needs of their community.
Communities are also using financing to build renewable power projects. For example, Sts’ailes First Nation and Taku River Tlingit First Nation have constructed run-of-river electricity generation stations. This will help these communities transition to a more sustainable economy.
These are just a few examples, and they exist across Canada of the ongoing work supported by FNFA. It is clear that updating this act will accelerate social change because it puts a number of these instruments directly into the hands of First Nations, as you’ll hear from the folks behind me. The proposed amendments we are discussing are an important part of supporting the self‑determination in order to build an economy that works for Indigenous communities. In order for Canada to work for everyone, we need an economy that allows prosperity for all, and often that word is used in exclusion of First Nations, Inuit and Metis. In this case, it isn’t.
Meegwetch. Thank you.
The Deputy Chair: Thank you, Minister Miller.
I was remiss in not introducing Karine Tremblay, Senior Policy Analyst, Fiscal Policy and Investment Readiness, Crown‑Indigenous Relations and Northern Affairs Canada. It is nice to see you.
I will now invite questions from the senators.
Senator D. Patterson: Thank you, minister, for your presentation. I think we all know that this is the end of a very long journey with the FNFA, and this committee has been part of the progress over the years with good support from your government. This bill is very welcome in my view.
I know the good work that has been accomplished. The FNFA has issued over a billion dollars in debentures helping facilitate. You gave some examples, but it helped facilitate the purchase of Clearwater by the Mi’kmaq and empower Indigenous communities to manage their own finances, as you have said.
However, I also know that stable, long-term, dedicated core funding has sometimes been an issue, and there have been concerns about timelines between negotiating for, receiving and needing to spend that money. My question is this: Has your government committed to five- or ten-year core funding agreements for these institutions, A-Base funding?
Mr. Miller: This is a very important question. I think the conclusion and answer to that is that these institutions aren’t going anywhere, and their success is proof of that. I know I noted at the beginning that 348 First Nations have been scheduled to the act, and 77 of those have accessed that $1.6 billion in financing that has put Indigenous big business on the map, which is nice to see across the country.
We’re dedicated as a country and as a government to support all of these institutions with regular, recurring funding. They are often subject to periodic financing reviews. That is work we need to continue on an ongoing basis.
I’ll allow Chris Duschenes, perhaps, to add to that. The total funding is about $66.7 million currently. I think, importantly for the institution, the most important part of this new legislation is the First Nations Infrastructure Institute, also known as FNII, and $12.4 million over three years.
In terms of A-Base funding, I don’t think we are there yet. That is the case for many institutions across government, but I would let Mr. Duschenes qualify that.
Christopher Duschenes, Director General, Indigenous Institutions and Governance Modernization, Crown-Indigenous Relations and Northern Affairs Canada: Thank you, Mr. Chair and Minister Miller. Thank you for the question, Senator Patterson.
We have secured three years of funding for the launch and operation of the First Nations Infrastructure Institute and five years of funding for the First Nations Financial Management Board, or FMB, and the First Nations Tax Commission, or FNTC. As you are probably aware, the First Nations Finance Authority is, essentially, self-funding.
Those numbers have increased over the years as the mandate of the FMB and FNTC have broadened, so as Minister Miller said, there is periodic review of those numbers to ensure that their operational needs are met. As more First Nations become scheduled to the act, obviously the workload, especially for FMB and FNTC, increases.
Thank you.
Senator D. Patterson: Thanks for that answer.
The act also meets a long-standing request to establish the First Nations Infrastructure Institute, and I’m very pleased to see this. I know it has been a long-standing aim of the folks who are leading this initiative.
My question is this: We have a Canada Infrastructure Bank with an Indigenous component, which has been added recently, and I would like to know how you see the First Nations Infrastructure Institute launching with this other source of Indigenous infrastructure funds in the Canada Infrastructure Bank. Has the government figured out who’s going to do what, I guess, to be crude about it?
I think the creation of an Indigenous infrastructure component in the Canada Infrastructure Bank is welcome, but I’m just wondering if it needs to be clarified how that funding will work, who will be eligible and what the mandate of the infrastructure institute created by this bill will correspondingly be?
Mr. Miller: How these two institutions work together will be a test of their individual successes. In the past, we’ve seen the focus of the Canada Infrastructure Bank, I think, unfortunately be on larger projects, and, by their own definition, that has excluded Indigenous projects. Over the last few years, you’ve seen the Canada Infrastructure Bank adapt — and there are a number of examples that we could provide — to support smaller Indigenous-led projects.
I think the fact that the First Nations Infrastructure Institute — I know Manny Jules behind me is probably jumping to answer this question, so perhaps one of you will ask the same question to him. How they work, really, is not up to the Government of Canada, but I think seeing the need for an infrastructure institute that is focused on Indigenous projects, whether they are ones that are viable on the market or not, is important, because what we’re trying to do is not replace but offer alternatives to a grant-based model, which in and of itself cannot close the infrastructure gap that we see across the country.
Always in these projects, the issue of trust is important, so people seeing themselves in the members of the First Nations Infrastructure Institute that will be supported here is important; whereas, they would not, perhaps, see that with respect to the Canada Infrastructure Bank, regardless of their different and diverging mandates. Frankly, I think, as an editorial note, the current Canada Infrastructure Bank could do a better job at tailoring their needs to Indigenous realities. There is room for cooperation, and hopefully they won’t be tripping over themselves, but I think fundamentally at the base, they do have different mandates.
It would be important for Manny Jules or Harold Calla to pick up on that. There are, sadly, across the country a number of projects with millions of dollars in assets that are just sitting on the ground, so that trust component and the ability to manage projects could be one of the areas where the First Nations Infrastructure Institute could play an important role.
Senator D. Patterson: Thank you.
Senator Sorensen: Thanks to everyone for being here today. We don’t always see this full of a committee room, and it’s certainly a testimony, I think, to the importance of this legislation.
My question is going to be pretty basic, but it is something that I don’t personally know the answer to. In our notes, as I understand it, a First Nation must request to be added to the schedule. Minister, I think you said it is by choice; you pointed that out.
I’m curious to know what the process is to request to be part of this. Is there any criteria, other than making the request, in order to be named to the schedule, and how long does that process take?
Mr. Miller: Senator, that’s a great question. I’ll pass it over.
Senator Sorensen: I thought you might pass it over.
Mr. Miller: I’ve never had to apply.
We want to make it not burdensome, obviously, and there are criteria that apply. “Choice” is the key word. The suite of tools offered by these important institutions are not for everyone. There are philosophical differences that a number of communities do have. They are not necessarily based on capacity, and some just don’t want to be part of it. A lot have, and a lot are striving to, and it is important that we support them. I wanted to underline that before I pass it over to Chris Duschenes, because it isn’t for everybody, but it is a matter, fundamentally, of choice. No one is being forced.
Senator Sorensen: Thank you. That’s helpful.
Mr. Duschenes: Thank you very much, Mr. Chair, and for the question, senator.
It is a very simple process. Once the community has decided, the Indian Act band submits a band council resolution to the department, and then it goes through the process to be scheduled. For the band council itself, it is not burdensome at all.
Senator Sorensen: Thank you.
Senator Martin: Good morning, minister.
One of the biggest issues that First Nations communities have grappled with and are grappling with is the inability to have their bylaws enforced. Can you explain how Bill C-45 attempts to address this concern for those communities that have signed on to the First Nations Fiscal Management Act?
Mr. Miller: As a general point, there is actually a very important summit in Ottawa taking place specifically on bylaw enforcement across Indigenous communities. I think the general conclusion — or, at least, the working premise of people going into these meetings — is that apples to apples, Indigenous community to non-Indigenous community with the same type of bylaws, one will be enforced robustly, more often than not in the non-Indigenous community, and less so in the others, for no particular reason. There is nothing in theory prohibiting enforcement under the Indian Act that is a cause for this.
It is jurisdictional wrangling. It is solicitors general tripping over each other and refusal of local enforcement bodies to enforce bylaws.
This is a financial subset of bylaws that are encompassed in this suite of legislation, ones which people are voluntarily subscribing to because they are driven by the communities themselves under the tools that exist under this body of legislation; it allows better enforcement and better efficiency of the actual bylaws. We’re talking about financial instruments. There are recourses if you fail to follow bylaws for the benefit of the institutions that are advancing the money.
In my mind, this is a very small example of how self-determination works, because it is voluntary. It is choice-based. You have a suite of predictable bylaws that are, again, financial in nature that people are voluntarily agreeing to. If it is not followed, there are consequences that exist under any financial institution in its ability to call loans or to make sure that provisions are adhered to.
Again, it is a small example of the problem of enforceability of bylaws across Indigenous communities. I wouldn’t suggest that this could work for every single situation where a bylaw is not being enforced. For example, there are issues in and around policing that will be the greater subject matter of the conference that is happening this week. It is a very large one. It is a huge issue in Indigenous communities.
Senator Martin: That will be very important.
Another area of concern is clean drinking water. Given the Government of Canada’s direct obligation to ensure clean drinking water for Indigenous communities, and given the establishment of the FNII in Bill C-45, how can Canadians and, more importantly, Indigenous communities rest assured the federal government is not downloading that responsibility to the FNII?
Mr. Miller: When it comes to clean drinking water, there is not only a moral imperative, as you said, but a legal one. We have said to Indigenous communities that we are going to get the job done.
What we’ve seen over the course of the last few years is how complex water is. It may seem simple in a lot of people’s mind. You cannot fly in with the army a reverse osmosis machine, and magically things are done. It requires real work within the community to go in and say what is the problem?
There are a variety of examples where simply lifting the boil‑water advisory does not address the issue of clean water in the community, whether it’s hook-ups to individual homes, real fear of the actual clean drinking water that is coming out, which is not to be understated.
There are communities that have had decades and decades of fear toward the water because they’ve been on boiled drinking water. Simply lifting it over a period of a year doesn’t change the fact that people still revert to bottled water.
It is multifaceted. It is complex. The reality of all this, you’ve seen it in the various Auditor General reports, is that you can dedicate the capital to building new water plants; it doesn’t, by virtue of that same statement, guarantee the lift the boil-water advisory, which is a choice and a decision made by communities.
It is why, for a number of reasons, we have expanded the infrastructure envelope, to make sure that we are having a more comprehensive approach to lifting boil-water advisories, which includes training and properly funding Indigenous water operators.
There was an 80-20 model that we used previously that is now 100% fully federally funded. It is expensive, but it is the right choice, because those people are the pride of their communities. They can easily be poached by a non-Indigenous community to work in their plant for a much higher salary, and why wouldn’t they? It shouldn’t be a question of water poverty and forcing people into a particular situation; this is about making sure there is a comprehensive approach to getting clean water coming out of the taps.
One of the largest class-action settlements in Canada that is seldom talked about is the safe drinking water class action that provides a multi-billion-dollar settlement for those who have been affected by not having clean water in their communities, but also provides a multi-billion-dollar investment over a number of years, speaking to that resting reassured that there will be investments in the communities.
As part of that settlement, there is an envelope that is forward-looking for communities who are looking for infrastructure and investments into their communities for safe drinking water. We’re down to the short strokes in and around northern Ontario with about two dozen communities who still have boil-water advisories.
Since the beginning of 2015, there have been 130 boil-water advisories lifted. It is something that is significant. Again, we won’t be happy until it’s all lifted.
Senator McCallum: Welcome to the Senate.
Under the First Nation Land Management administration, land administration is transferred to First Nations once their land codes come into effect. This includes the authority to enact laws with respect to land, environment and natural resources. Is that true?
Mr. Miller: Yes, it is.
Senator McCallum: I’m going to go back to a question that was presented by Senator Martin.
The committee has frequently heard about the challenges First Nations face in enforcing their laws and bylaws. Bill C-45 would provide that a First Nation that has adopted a land code or a First Nation law may use any enforcement measure to enforce a local revenue law, other than a measure to investigate or prosecute a summary conviction offence that is provided in the land code.
At present, there is no nation-to-nation relationship with the First Nations. There is a lack of clarity around natural resources. I had raised in December the issue of the two laws that need to be changed to make bylaws enforceable, and you wouldn’t know those; it’s the Royal Canadian Mounted Police Act and the Director of Public Prosecutions Act, to make this truly seamless. Otherwise, you have what the Manitoba Keewatinowi Okimakanak, also known as the MKO, calls stranded regimes, which I’m starting to realize happens a lot more than people realize.
I also have a letter from Chief Robert Louie that he is in agreement to clarify federal law based on uncertainty over legal authority. He said that he supports legislation that would include a reference to enforcement of First Nations laws recognized under the authority of self-government agreements which have been approved by acts of Parliament, including the Westbank First Nation’s self-government agreement.
When you have that, how will the enforcement work with this group?
Mr. Miller: Senator McCallum, it’s an excellent question. I think when people talk about enforcement, they can mean a number of things. Is it the court system that underserves Indigenous peoples that cannot enforce the issuance of a summons or of a citation under a particular band council bylaw?
Is it the local police of jurisdiction, which is often provincially administered, that refuses to go into a community, sometimes with respect to the grave violation of a quasi-criminal or criminal-type bylaw, even criminal enforcement for that matter which is not an issue for bylaws?
Is it the ability to enforce and give teeth to the laws that exist under a particular set of legislative tools like this one? The team can speak about how that would work, other than those that start to look like quasi-criminal or criminal-type summons. Some of the modifications you have proposed, I wouldn’t suggest being the only ones if we were to make changes, because a lot has to do with that jurisdiction overlapping and these grey areas that have been created and are often not the fault of Indigenous communities.
I sometimes think it’s quite clear where enforcement can occur and should occur, and it doesn’t because people refuse to do that. This is work that we need do with the solicitors general in the provinces, and work that will we’ll be discussing this week at the summit, in fact, dealing with enforcement of bylaws and enforcement generally.
How this would work under the act, as I mentioned earlier in my response to Senator Martin, is that there are a number of recourses that the institutions or the band council could take if there is an inability for individual members to comport themselves according to the terms of the bylaws.
Mr. Duschenes: This is quite a small tranche, but very important. It gives the authority to apply to the courts of competent jurisdiction equivalent to any other level of government but for very specific purposes under the First Nations Land Management Act, as you mentioned, and now under the First Nations Fiscal Management Act. It is an important step in that direction, but as Minister Miller mentioned, there is a large conference going on this week about enforcement that will be dealing with a much broader range of issues that eventually we hope to have addressed as well through other means.
Senator McCallum: I think my concern is that people aren’t made to expect that the system will work, and they came across with what happened with COVID in that the chiefs couldn’t enact their bylaws. We don’t set up that expectation that they’re enforceable. Really, there are gaps that exist.
Mr. Miller: Often the argument has been that when it comes to banishment or preventing people from going into the communities that there are constitutional issues around that. It’s a gross mischaracterization of the scope of the problem.
What we saw during COVID is that you could impose a curfew — whatever you thought about it — in downtown Montréal, but you couldn’t necessarily have band council bylaws that were creating access points into communities or a systematized way of screening people be enforceable and you had to rely on a few burly people standing on the road going into the community essentially saying that we’re the local community members who are trying to protect our own people. That’s not an ideal way of making sure people respect it.
It wasn’t only just the risk of COVID or people passing through for whatever reason, it also had to deal with drugs and supply of drugs as well. That’s a larger issue that is actually resulting in deaths in communities, which is in part due to the inability to enforce bylaws. It is a serious issue.
The Deputy Chair: Thank you, I want to get all the senators in on first round if we can.
Senator Greenwood: Thank you to the witnesses for being here this morning. It’s great to have you and all the folks that are here.
I have a general question. I know this piece of legislation went quickly through the House and came to us. I am wondering, as this was being created, there had to have been some thinking about potential challenges or pitfalls as we move through it. It could be conceptually or in implementation, just thinking through those. I am wondering about what some of those challenges are.
As a supplemental question, what are some of the reasons that a First Nation might choose not to participate in this act?
Mr. Miller: There’s a small one and a big one. The small one is actually also a big one, because I have been a big cheerleader for the First Nations Infrastructure Institute for years and I’m also disappointed. There are reasons for that, the historic response to COVID and priorities that financially go in different directions, but it was frustrating not to see a dedicated First Nations Infrastructure Institute supported by the government until a few years ago. I was happy for Manny Jules and for the team who put so much work and thought into it. There’s a role here to — not move away from it, because the grant-based model is not going to go away, there is too much of an infrastructure gap in Canada to support any argument to the effect that we have to keep investing, and some projects aren’t viable without a direct infusion of cash and they are game‑changers in communities. But there is a role for a First Nations‑led institute to be part of this and be driving this. If closes that lack‑of‑confidence gap so that there is a little more trust in getting projects done in the sense that these aren’t federal government ideas of the day but one’s coming from communities. I am really happy for that.
Conceptually, when you talk about these — and I’ll joke a bit about it — the leader of the opposition said this was the first common sense set of legislation the government had done, which immediately made me question whether we’d done the right thing. Anyway, I think you all know what I am talking about. It’s nice to have the endorsement of all of the parties, frankly, and for this to be a less partisan thing.
The reality is that this is not something for everyone. This is very much a western-based form of leveraging capital, and when you talk about some of the challenges that we face as a government on profound issues — even the Supreme Court of Canada has struggled with this. They have said the title exists but not what it consists of, other than broad brush strokes. When you talk about reconstituting Indigenous laws, identities and ways of being, there are few examples where that has congealed into an enforceable set of laws that is truly Indigenous-led and Indigenous-based that is different and distinct from the Western model, because we have spent our entire historical existence trying to crush those models with various levels of success.
I think reconstituting those laws and supporting communities that are reconstituting their own idea of land, identity and title, with some cutting-edge work being done to the credit of Indigenous communities in B.C. and, frankly, across Canada. Communities know what the land is, they know who the custodians of the land are, but legal enforceability as we would use in our models has been non-existent and to the detriment of the communities.
There is real suspicion that this is an attempt to municipalize, for example, the type of relationship and move away from a nation-to-nation relationship. I think when you realize that this is an issue of the fundamental choice of communities, it has to remain an element of choice. I deeply respect those communities that choose not to do so, and I also respect those who have put a lot of work into making sure that they are trying to advance their communities and the prosperity of their communities. Trying not to shove a square peg into a round hole has been, I think, the real challenge in making sure that we are putting together a suite of legislative options that don’t have to be followed, but if they are, can contribute to Indigenous excellence and there are some really neat examples of Indigenous prosperity around the country.
In my job, I have to spend a good chunk of it questioning every single choice I make and every decision I make, wondering whether I am not recreating a social model that has been designed to oppress. Obviously, you always have to, but it’s a reflection anyone in my position needs to have as a sanity check.
Senator Coyle: Thank you, minister, and to the officials for your testimony and for being with our Senate committee this morning. We welcome this next step on the decolonization journey, as you have identified it, and accelerating the government’s response to that road map toward self-determination that was forged by Indigenous leaders is so important. I really see this First Nations Infrastructure Institute as a welcome milestone, so I will start there.
I’m going to ask you a question in an area that we haven’t delved into too much yet. If passed, Bill C-45, as I understand it, would add new data collection and analysis and publication authorities for the First Nations Tax Commission, the First Nations Financial Management Board and the new First Nations Infrastructure Institute. Could you elaborate on the data collection aspect mentioned in the proposed amendments? What additional data is expected to be collected, and how would you see this data contributing to evidence-based decision making and planning?
I will probably ask the same question to the next panel, but what do you see this as?
Mr. Miller: To paraphrase my predecessor, Carolyn Bennett, it’s hard to mend what you can’t measure, and, clearly, in a lot of these so-called evidence-based approaches, the evidence is often quite thin.
I think the constant gathering of data — and there is a very important overarching discussion on Indigenous data sovereignty and the ability to control your own data over your own people that is an important element of it, but this, I believe, will enhance it.
The measures in these proposed amendments will allow more gathering of information to see whether these measures are truly efficient and whether they are working. We have certainly seen in taxation areas where things work, and things work less. That will be important for people to have that information and to gather that information with the tools that are in the proposed amendment so that they can measure and reassess, as the case may be.
In Indigenous communities, more so, perhaps, than — although, you hear it in non-Indigenous Canada that taxation is a hot issue, and it is something that we have to constantly measure to see its efficiency and desirability.
Senator Tannas: Thank you for being here, minister.
I’m sure members here and senators, in general, work hard to get the law passed and into the books as quickly as possible. This particular institution has been an incredible success. In my ten years here, it’s probably one of the most heart-warming things I can look back on and say I watched the progress of this institution, being led by the dream team from British Columbia, in all the efforts of Mr. Calla, Mr. Jules and others. It is just remarkable to see.
We have an institution now that is really looking at governance and the economic matters like finance, infrastructure, taxation and land use. My question to you, minister, given the success of this, what are you thinking about, and what are you and your folks looking to initiate in other areas where Indigenous-led institutions are sorely needed, such as education, health and justice? Are there any green shoots in those areas that you could share with us, or is this some kind of a one-off miracle that won’t easily be replicated, and there is nothing on the horizon?
Mr. Miller: I think calling it a “miracle,” with all the work that has been put into it, it has been a lot of hard work, like you said, over almost two decades to get to a space where we are celebrating — as mentioned by Senator D. Patterson — Indigenous big business. There is a tendency to talk about Indigenous small and medium business in an almost belittling fashion, but Clearwater has put Indigenous big business on the map. There have been a couple of others. There are probably a couple that preceded it, but I have forgotten.
With record revenue and profit in Clearwater this year, you see Indigenous peoples can exceed non-Indigenous businesses, and that’s kind of cool to see, and I think it has been an inspiration to communities that don’t have fishing as part of their own livelihood, because they see some of their brothers and sisters across Canada that are really succeeding.
It’s not for everyone, but when you ask me about where I see green shoots, you see them in areas that you wouldn’t necessarily expect as government, and nor should you, because the government dictating the pace has had repercussions that have been measurably poor.
For example, when we make large legal settlements with communities for historic harm, I have often heard — and you expect to not talk to people for a few weeks as they celebrate something that is really transformational for their community, but sometimes the next thing you hear is, “Well, how do we move on self-governance, and how do we move on a modern treaty to really embody our relationship and move forward?” Because that historical trust gap has been bridged through a settlement of a claim, for example, that has sometimes been unresolved for a hundred years.
So there are offshoots. When you see these large sums of money being resolved for years and years of harm, these aren’t one-offs, and they do spring trust in a relationship, and they do propel discussions about self-governance and about autonomy, which is at the heart of this, people taking care of their own. And we’ve seen as a proof point through COVID that when Indigenous communities have the resources, they can have better results in fighting something like a historic pandemic than we have for the rest of Canada, and that is demonstrably proven by statistics when you look at mortality rates.
They are occurring all over the spectrum of Indigenous engagement. Where I would like to see more work being done — and I think the Minister of Justice would agree with me — is on Indigenous justice, and that’s something where you see a lot of demand and a lot of work being done.
I think you described it well; you do see shoots popping up.
The Deputy Chair: Minister, I have two senators that have questions if you can indulge two more questions. One is from Senator Hartling, and one is from Senator Klyne.
Senator Hartling: Minister Miller, I’m fine. I think you had to leave.
Mr. Miller: I have a cabinet meeting, so I may get in trouble.
Senator Hartling: There are other people, I am sure, who can answer the questions, if you need to go.
Mr. Miller: Thank you.
The Deputy Chair: Senator Klyne, would you like to get a chance, since you are leading this bill in the Senate?
Senator Klyne: While we have him here, and I know you’re in a rush, and I apologize for being late, but welcome.
I have a broad question, and it’s with some breadth, but I want to get into a little bit of depth on it, so the question is for you, Minister Miller.
Bill C-45 furthers economic reconciliation going hand in hand with rights recognition, economic and social equity rights included under the United Nations Declaration on the Rights of Indigenous Peoples, also referred to as UNDRIP. Can you please speak a little bit about how you envision economic reconciliation proceeding in Canada in the years ahead, going together with UNDRIP, and there are particularly exciting aspects for all of us, such as critical minerals for mission net zero?
Can you comment on that but also speak to the links between Bill C-45 restoring self-determination, including trade and commerce, and how in the process it will benefit not just Indigenous peoples but lead to shared opportunities and benefits for the entire country?
Mr. Miller: That is a good question, and I think we could probably spend a couple of hours on this, Senator Klyne, but this is self-determination in action. When you talk about a partner, and we talk about a nation-to-nation relationship and a partner like the Government of Canada, in the work that I do on a daily basis, paying bills that have been due for about a hundred years is very important in bridging the trust between Canada and a number of Indigenous communities. Indeed, this is something that we’re doing in record amounts, but it needs to be seen in that optic, because how do you trust a financial partner who doesn’t pay their bills? And that has been the story of Canada since the beginning of, in particular, the signing of the numbered treaties and with all the treaties that we have signed. It is something that has contributed to the undercapitalization of communities and their maintenance in poverty.
So when I talk about economic reconciliation, I am very conscious of the fact that it can’t be used as a catch phrase. For someone to walk into the most prosperous community in Canada and say, “This is how everyone else needs to behave,” it really has to be driven by communities themselves and work with the Government of Canada in an atmosphere of trust with the tools that are available and the tools that are being built by communities themselves.
It would be odd to see everything even across the country. People would probably scratch their heads as to why that is. There is a lot going on that, first and foremost, starts with Canada recognizing its historical duties to Indigenous communities, but also making sure that they do have, apples to apples, the levers available for them to thrive, whether that’s breaking down barriers or truly respecting Supreme Court decisions when you talk about moderate livelihoods or all of the instruments that are available to them under treaties that have not been respected; also, financially with respect to instruments where they do not have access to capital that would be available to people simply by virtue that they are non-Indigenous.
That is some of the discussion we have had in and around the Canada Infrastructure Bank, and how it would mesh with the First Nations Infrastructure Institute and how that is perceived, generally, in the public eye. You touched on that when you asked your question.
A number of communities in and around Canada are drivers of economic activities for the non-Indigenous communities around them and not the reverse. That is important to know. They are large employers of non-Indigenous people; that is no truer than in the Clearwater case that we have talked a lot about today. The more we do that, the more we see the interconnectedness of our economies and opportunities for communities to thrive.
In the role that I play, and the role that Minister Hajdu plays, it starts with basic notions of a just and fair country. When we’re talking about what Minister Hajdu’s role is in Indigenous Services, making sure that the education levels are those that are at or exceeding those of non-Indigenous communities in Canada. They are profound socio-economic issues that can’t be separated for the general discussion about simply economic reconciliation.
The Deputy Chair: Thank you, Minister Miller. I know you have to leave. Thank you for coming today. I appreciate your testimony. We look forward to working on this act as expeditiously as we can. Thank you.
On second round, I will let Senator Hartling ask the first question. Mr. Duschenes or any of the witnesses can help answer.
Senator Hartling: Thank you for being here, everyone. It is wonderful to have a bill that sounds like a win-win. Enthusiastically, I know some of the people whom I spoke with earlier, they are excited about this.
As we have heard many times here, trust was always a factor with First Nations, how to build trust. Can you give more detail on the process, the co-development process? What were some of the steps and challenges? Senator Greenwood talked about that. I’m curious to hear more about that because, as we go forward, it sounds like other First Nations have an opportunity to join in at any time. Is there any limit to the time they can join in, or not? A little more about the process of the trust building and how this went, thank you.
Mr. Duschenes: Thank you, senator. Yes, it is a pleasure for us also on the bureaucratic side to be associated with a winning piece of legislation. That certainly makes our job easier and much more fun.
On the trust process, what has been exceedingly successful and gratifying here is taking the cues and the leadership from the distinguished First Nation leaders sitting behind me, whom you will get a chance to speak to in a little while. The trust is generated between them and us, as civil servants, but probably more importantly between them and the communities they serve and work with.
I’m sure some of the leaders will make reference to the way they interact with the communities, but also that they have held a series of annual gatherings called First Nations Leading the Way, which bring together the scheduled nations to this act and also the communities that are under 10-year grant and the communities who are signatories to the First Nation Land Management Act, where 200 to 350 representatives come together to have discussions about institutional development, this piece of legislation and build that trust and confidence, so that by the time the leaders are interacting with us that trust has been built within many communities.
Chief Allan Claxton is here as well; you will get a chance to speak with him, and Jason Calla from the First Nation Infrastructure Institute’s Development Board. That is an interesting example, before the institution was created, the development board of distinguished First Nation leaders has been going coast to coast meeting with communities, other infrastructure organizations — meeting with the First Nation Water Authority, for example, in the Atlantic — building that trust and having those discussions.
The trust has been generating on FNII for many years through putting in place of that development board very effectively.
Senator Hartling: Can people join in? There is no cap on time? They can continue to join in?
Mr. Duschenes: Or cap on numbers. One of the expansions in the act here will permit non-Indian Act bands, other organizations, eventually to join as well, to create regulations for them to join. There is a process already with regulations being developed for self-governing First Nations and modern treaty holders to join.
There is not only not a cap but the tent is growing as more organizations become eligible to benefit from the services and advantages of the act. The First Nation Infrastructure Institute services will be available to anyone, any interested group, whether they are scheduled to the act or not.
Senator Hartling: Thank you. It’s a wonderful way to celebrate National Indigenous History Month.
Senator D. Patterson: Mr. Duschenes thank you for your clear answer to my question about long-term funding, A-Base funding. The source of this funding is stable, federal funding sources. Your minister said the grant-based model won’t go away.
You might agree that for the significant projects that we hope will come out of these progressive amendments, 10-year commitments would be more appropriate for long-term strategic planning purposes. You have been clear. There are three- and five-year commitments. Could those not be extended further, with the stability that this act will provide, for 10 years?
Mr. Duschenes: Those decisions are not ours to take. We are always open to that discussion. Lynne Newman and others are here from Indigenous Services Canada, who have led a successful process for First Nations band councils to be under 10-year granting. Having those discussions internally, and with the institutions — and with the minister as to how that could be expanded to others — yes, we are interested to have those discussions.
The Deputy Chair: Thank you. If Ms. Newman, or anybody else, would like to amplify on that in writing, that would be helpful.
I want to thank everyone. That brings this panel to a conclusion. Thank you to all witnesses for coming. As was mentioned, it is good to see so many witnesses on such an important bill.
We have four groups here this afternoon for the second panel from the First Nations Finance Authority, Ernie Daniels, President and Chief Executive Officer; Steve Berna, Chief Operating Officer; and Jody Anderson, Strategy and Partnerships Advisor. These folks are online. We also have, from the First Nations Financial Management Board, Harold Calla, Executive Chair. We have the First Nations Infrastructure Institute represented by Allan Claxton, Development Board Chair; and Jason Calla, Technical Team Lead. And from the First Nations Tax Commission, Manny Jules, Chief Commissioner.
Thank you to all witnesses for joining us on this very important bill. Each organization will have five minutes to make an opening statement. I would invite people to be succinct, because I’ll have to use the five minutes. I sense that there is a lot of support for this bill in the room, so the most important thing will be the questions that follow. I will let you guide yourselves accordingly.
Ernie Daniels, President & Chief Executive Officer, First Nations Finance Authority: Good morning. Thank you. I apologize for not being there in person. With the board meeting yesterday morning and major delays in my travel, I would have gotten there at 3:00 in the morning. I experienced that already, and I don’t like it. Please excuse me for that.
I would like to thank Leane Walsh and her team at CIRNAC, the First Nations Tax Commission, the First Nations Financial Management Board and the First Nations Infrastructure Institute’s Development Board for working collaboratively on these amendments to the First Nations Fiscal Management Act, also referred to as the FMA over the last several years.
The First Nations Finance Authority is a non-profit organization whose mandate is to provide financing, investment and advisory services to those First Nation governments across Canada that voluntary schedule to the FMA. The FMA obtained Royal Assent in 2005 with all parties’ support, and the FNFA has been providing services to First Nation governments across Canada ever since.
To date, there are 342 First Nations that have been scheduled to the First Nations Fiscal Management Act, and the FNFA has loaned over $1.8 billion to its membership of 151 First Nations through nine provinces and the Northwest Territories. This has resulted in the creation of over 20,000 jobs and an economic output of $4 billion, which demonstrates that we are stronger together, but certain economic and social needs of our member communities can only be met through amendments to our act.
The FNFA strongly supports Bill C-45 in principle. It brings significant, positive change that will lead to enhanced opportunities for First Nations and Indigenous governments across Canada. There are several amendments that are most relevant to the FNFA, for example, the financing secured by other revenue regulations will be incorporated directly into FMA. Bringing the provisions of other revenues directly into the FMA will result in a comprehensive FMA that is much easier to follow.
Another example is that the definition of a “borrowing member” is expanded in anticipation of eligibility being expanded to Indigenous governments and non-profit organization, or NPOs, though other regulations will still be required. These important entities provide essential economic and social services to First Nations.
With 634 First Nations across Canada, it is important to note that there is not a standard method for planning needed infrastructure or for undertaking economic development. Some First Nations make all community decisions at the council level. Other First Nations utilize not-for-profit authorities, for example, health, water, housing and education, and some utilize tribal councils, where many First Nations work together for economic opportunities. The proposed amendments will have significant positive impacts for First Nations.
Thank you and mahsi’cho for your time and consideration.
The Deputy Chair: Thank you, Mr. Daniels.
Next we’ll hear from the First Nations Financial Management Board, Mr. Harold Calla, Executive Chair.
Harold Calla, Executive Chair, First Nations Financial Management Board: Thank you for receiving us here today. It was an unexpected surprise to wake up with smoky air. I’m from British Columbia, and I’m accustomed to it, I guess.
Thank you for considering this bill. Sometimes I hear the words, “Wow, this is really rushed.” We’ve been working on this since 2005. These amendments have been discussed among us and among those communities. There are now 348. When this bill was contemplated, it was talked about 35 or 40, maybe. People are now seeing a line of sight to economic development and opportunity. They see the need for access to capital, and the challenges they face in trying to engage in business. I’ve spoken to you before about some of those challenges.
I’m not saying that you’re not being rushed, but that’s not of our doing. It’s your process. We respect your process, but at the same time, we don’t want to lose this opportunity, because it will be years in the making coming back. We have communities who need the services that we are now about to provide. You’re not going to bridge the infrastructure gap with the existing delivered program that you’ve got. We’ve got to change it.
I think the big thing that we want to see here is where the bridge between colonization and self-government is? I believe it’s with institutions like the ones that we’re building, and I thank Senator Tannas for the comment about what’s coming next, because you have to ask the questions, and I appeal to you to ask those questions about what’s coming next.
As we move into self-government, which means the existing colonized governments have to back away; we have to be empowered. This government and governments that succeed it has to invest in the capacity development of our Indigenous governments. We have to be afforded the time to learn to come together again, like we used to be, instead of being divided up into 600 Indian Act bands. My community is celebrating 100 years of amalgamation on July 23, because we were divided up into 17 different Indian Act bands in the beginning, and from 1919 to 2023, we entered into negotiations and came back together as the Squamish Nation. Those kinds of steps need to take place again and again, so we can be in a position where we have the ability to act as governments, and we need to be supported.
It is much better to invest in our capacity development than to pay the price of poverty that you are continuing to have to pay. Let us get to the point where we have the capacity to develop wealth, and let us also understand that it’s time to stop trying to avoid Aboriginal rights and title through extinguishment but to embrace them in a way that allows us to contribute to the Canadian economy. That’s what this act is all about.
We need to reconstitute our governments. We need to reconstitute our ability to raise revenue, and we need to be in a position like other orders of government to raise capital through the finance authority in ways that other orders of government do.
What other entities in this country allow a small community in Northern Canada to borrow money through the financial authority at the same price as the province of Ontario? It is a huge success.
I also want to share with you a remarkable achievement. I’ve spoken to you before about Attawapiskat. Well, the board approved their financial administration law last week. They approved their financial performance certification last week, and they declared them eligible for ten-year grants last week. It’s progress. It’s taken time. The benefit of First Nation institutions is that you can take the time as a First Nation to develop those things. You move at your pace. That’s really critical.
Sometimes it takes communities years to get through our certification process, and that’s okay. They have to do it at their pace when they’re ready. Our goal is to provide them with the capacity they need to be ready, and only when they’re ready and they’re comfortable.
We always say when we go into the First Nation community, “We’re not here to do the work; you’re going to do the work, because when we leave, you have to do the work.” We help build that capacity, but we’re not going to abandon them. We’re going to continue to come back and support them as they need to.
The thing to remember about this legislation and the amendments that we are talking about is that they’ve been years in the making, we’ve been in conversations with First Nations for years, and we did a direct consultation with all scheduled First Nations leading up to this.
I want to repeat what the minister and some of you observed: People and First Nations come here when they’re ready to do so, when they see opportunity that they couldn’t have otherwise seen. We’re patient, and we allow people to come forward when they’re ready. Hopefully incentives will be provided by government so that people can see why these kinds of institutions, why this is a bridge to true self-governance and recognition of rights, but it takes government to continue to act.
Just because you created us doesn’t mean you get there. A fundamental change has to take place in how government views the UNDRIP, and the ability to create self-government. What it means is you need to have the fiscal capacity, the capacity development needs to occur, and there needs to be support for the institutional framework we’re going to need to co-exist in this country. That is what this legislation does, and that is a success.
Thank you.
The Deputy Chair: Next we’ll hear from the First Nations Infrastructure Institute, Mr. Allan Claxton.
Allan Claxton, Development Board Chair, First Nations Infrastructure Institute: Thank you, Mr. Chair and members of the committee.
I certainly didn’t ever think I would be presenting to the Senate in all my life, so I’m happy to be here. It’s an honour. My name is Allan Claxton, as you can see, and I was the chief of my First Nation for 20 years, the Tsawout First Nation, which is on Vancouver Island. I’m currently on council. I’ve got two more weeks left on council, and through my years as chief, I could see and understand the infrastructure needs of our First Nation.
Early on in my years as chief I met Manny Jules. My First Nation took over property tax, and then we took over the GST, and just recently we initiated the property transfer tax. As a chief, as a community, we do have these tools at our disposal, but we have to use them. We have to put them into action, and help create revenues for my nation.
We understand that the infrastructure gap is huge. That is a big job and a big challenge in front of us, but by working with other institutions, we feel confident that we can get in and connect with the First Nations. We will work with all First Nations and all First Nations organizations to deal with that infrastructure gap.
The system that’s in place now, the infrastructure is extremely expensive. It takes a very long time to get the infrastructure, and that infrastructure doesn’t last very long.
We’ve been working with Jason Calla for the last five years, and we make a very good team, and we have a lot of respect for each other. It’s exciting times working with other institutions and being the new kid on the block. We are excited, though, at the challenges ahead of us, and we all have to work together to move things forward.
With that said, I’m going to ask Mr. Calla to say a few words.
Jason Calla, Technical Team Lead, First Nations Infrastructure Institute: The idea for the First Nations Infrastructure Institute, or FNII, is to support communities to advance their infrastructure projects and work, as Allan Claxton mentioned, with any Indigenous organization or First Nation to advance those projects and build a solid business case, a robust business case, to manage risks associated with the projects moving forward. They are complicated projects, as you know, such as water, waste water, roads and connectivity. They can take several years to develop. Sometimes you even have project planning that goes over election cycles, so having some support and stability through those is important. We know the infrastructure needs are great across the country. We have been talking to communities, as Allan Claxton mentioned, for the past several years, right across Canada. We have done a couple of proof-of-concept projects to think it through as to how FNII will be able to support the projects, and we’re looking forward to getting to work.
Thanks.
The Deputy Chair: Thank you, Mr. Calla, and thank you to the First Nations Infrastructure Institute.
Now we will hear from the First Nations Tax Commission, Mr. Manny Jules, Chief Commissioner.
Manny Jules, Chief Commissioner, First Nations Tax Commission: Honourable senators, good morning. My name is Manny Jules, and I’m the Chief Commissioner of the First Nations Tax Commission, one of the three institutions created by the First Nations Fiscal Management Act, better known as the FMA. I was also Chief of the Kamloops Indian Band from 1984 to 2000. Thank you for the opportunity to appear before this committee to speak in support of Bill C-45.
Canadian history has shown that practical proposals to increase our self-determination and implement economic reconciliation move slowly unless we design and lead the changes. The proposals are optional, and First Nation institutions support their implementation. I know this firsthand, as I have spent most of my adult life working on proposals to renew the fiscal means for our self-determination.
This includes the Kamloops Amendment to the Indian Act in 1988, which gave First Nations the ability to generate wealth from lands leased on designated lands; the creation of the First Nations Gazette in 1997, which supports the legal voice of First Nations; the First Nations sales tax in 1998; and, the passage of the FMA in 2005. In each case, I worked to ensure that we had all-party support in the Senate and the House of Commons.
In February 2005, I appeared before this committee in support of the original FMA. I said that we are seeking to build an institutional framework for First Nation governments that will allow First Nations to assume powers as they develop capacity, create investor certainty and build infrastructure. Most importantly, I said this framework has been developed by First Nations who participated in it. This is our legislation.
Looking back, I think it is fair to say that by any measure, we have succeeded. FMA First Nations have realized billions of dollars in investment, and the assessed value of reserve lands now exceeds $15 billion. Thousands of FMA laws have been passed, and 150 First Nation administrators have graduated from the Tulo Centre of Indigenous Economics.
Perhaps most importantly, with the success of the FMA, we have created a formula to speed up the process of self‑determination and economic reconciliation, passed federal legislation to open jurisdictional space for interested First Nations and occupied that space with our own laws to fully respect our right of self-determination. For those First Nations that choose to opt in, they will be supported by First Nation institutions, standards and accredited training to increase the benefits.
Bill C-45 is the next step in this process, and it reflects what we have heard from FMA First Nations: We need our own infrastructure institution, we need to expand our fiscal powers, we need to take control of our fiscal information and we need to expand our capacity support within the Tulo Centre for Indigenous Economics.
I should note that these amendments reflect what the FMA institutions told the House of Commons Standing Committee on Indigenous and Northern Affairs in 2022 as part of their study on Barriers to Indigenous Economic Development. There were also recommendations in the committee's report to the House of Commons.
The FMA is the most successful First Nation-led legislation in Canadian history, with more than half of all First Nations now using this act. We know that with these improvements, that number is only going to grow. We have moved beyond simply recognizing First Nation rights to implementing First Nation jurisdiction.
Working together with the support of all parties in Parliament, the FMA institutions and First Nations have provided an optional legislative path to complete one part of the unfinished business of Canada, finding a place for First Nation governments within the federation and the economy. Our work will continue down that legislative path; for example, on the development of a First Nations resource charge to ensure we benefit from resource revenues derived from our lands and the creation of a First Nations assessment authority, which will provide an accessible and reliable institution for the valuation of First Nation lands.
All-party support for Bill C-45 will demonstrate Canada's commitment to our self-determination and economic reconciliation. I believe that the legislation is a continuation of the work my father started in 1965. His words then still resonate today: We must be able to move at the speed of business.
Your support for these amendments demonstrates that my ancestors were right when they wrote in a letter to Prime Minister Wilfrid Laurier in 1910: By working together, we can make each other great and good. Thank you.
The Deputy Chair: Thank you, Mr. Jules. Thank you to all of the panellists. This is probably one of the most important panels we’ve heard. So much to say, so little time to deal with this.
Senator Tannas: It’s cool to be talking infrastructure with some of the great bridge builders of our time.
I want to ask a question, though, of Mr. Daniels, Mr. Berna and potentially Ms. Anderson about the next generation of the $1.6 billion. What’s the next generation of loans? We know there are some very large transactions in the resource base coming, such as Trans Mountain, I suppose, being one that everybody talks about, but lots of others.
Maybe you’re already doing this, but within your powers and loan book, are you doing hybrid types of things cooperatively with the federal government, provincial governments and others where they’re providing full or partial guarantees? Is there anything that kind of takes it to the next level of simply satisfying yourselves that the own-source revenue is there issuing the bonds on a one-to-one basis? Have you moved into a more sophisticated area and found a willing partner in the federal government for partial loan guarantees to help First Nations — like what happened with Clearwater — capture or reclaim what was rightfully theirs in terms of economic opportunities?
Mr. Daniels: Thank you for that question, Senator Tannas. It’s a really important one. It starts to look at the future, where we’re going and what else we need to do in terms of further amendments coming down the road or even institutions that need to be created.
I know there’s been a lot of talk about Clearwater Seafoods. That is a prime example where you had the involvement of the federal government. I’m talking about fisheries here. The fishing licences needed to be in the ownership of First Nations. They needed to be transferred from owners who were probably not First Nations. We worked collaboratively with the nations, private industry and fisheries to get this done to the point where it’s been very successful and they’ve had record profits in the past few years. That’s a prime example.
The other thing is we’ve actually started working with a number of provinces. We’ve been meeting with different provinces about different ways of getting First Nations involved in large resource projects. The B.C. government has shown some willingness to help First Nations during the construction phase, such as paying the interest on loans, which is really a key part of that. We’ve recently met with the Quebec government, with Ontario, and we’re planning to meet with Saskatchewan and a few other governments.
The key underlying component here is in order to get involved in a lot of these projects — it takes financing to do this — you need a revenue stream. When we talk about the infrastructure gap and the enormous size of it, it takes willingness on the part of the federal government to really step in and make a difference. We are having some discussions with the federal government right now.
But by and far, there hasn’t been a lot of solutions coming forward from the federal government, but that is the ingredient missing right now for the success or the further increase of organizations involved in this. If we look at the eligibility expanding, there are at least 400 not-for-profit organizations that could benefit from these amendments. I don’t know how much time we have.
The Deputy Chair: It’s four minutes and 50 seconds. I’m going to have to go to the next question, sir.
Senator Hartling: Thank you to everyone for being here. It’s such an honour to have you here. Your brilliant leadership and your patience — you think 1910, my goodness. You weren’t here then. I thank you for that. As Mr. Calla said, this didn’t happen yesterday. We’re at the other end of it, but you built the capacity.
I asked the other panel the question that it sounds like a win-win, but there must have been issues and areas like building the trust and capacity. Can you talk a little more about that, what you went through and some of the things that might have been difficult to build that trust?
Mr. H. Calla: The access to capital is a huge one. We’re not going to get out of the challenges we face without the use of the federal balance sheet through federal loan guarantees. That’s a reality and Canada needs to accept that and bring it forward, in my view.
We need fiscal powers. If we’re going to move down the path toward the recognition of the inherent right to self-government, we need to have those powers. There needs to be room at the fiscal table made for First Nations.
The topic taking place today about the enforcement of First Nation laws is absolutely critical as we move forward into the next generation of the evolution of this relationship.
As I mentioned in a speech I gave in Toronto, it was clearly historical that the Catholic Church renounced the Doctrine of Discovery, but I asked the assembled crowd in Toronto whether or not we should all do the same thing, because unless we’re all prepared to do that, we will not get a transition from a colonial system to an inherent rights system. You have to be patient and move in that direction.
When you talk about what are some of the challenges, the bureaucrats need to be in power to make some decisions, and the government has to be prepared to make those decisions. You are going to not continue to pursue the extinguishment of rights. You have to realize that in 1982, we passed the Constitution and spent 40 years in the courts arguing over what it means. How much opportunity have we lost? How many more multi-billion-dollar settlements does Canada want to have to face until they give us the reins to our own destiny? Thank you.
Senator Klyne: Welcome and congratulations to everyone on this panel for your vision and hard work that has led First Nations in Canada to this vital legislation for economic reconciliation.
My question is for Mr. Calla. You have previously stated:
. . . A huge part of this success lies in the FMA’s optionality for first nations that choose, on an individual basis by band council resolution, to be scheduled to the act. There are no financial enticements to do so, just an individual nation’s desire to have good financial management that is recognized to meet international standards, to be able to borrow from the First Nations Finance Authority or to levy local revenues to fund first nations government services.
Towards that end close to 350 First Nations have chosen through band council resolution to be scheduled to the act and to participate therein. Together they constitute over 60% of the First Nations that are part of the Indian Act.
Can you please elaborate on how the feature of opt in contributed to trust and relationship building ensuring the bill’s success in building its positive momentum for economic reconciliation?
Mr. H. Calla: It’s one of the first times that we’ve had the ability, as an Indian Act band, to make a decision as a government. Up until this act — and things like the First Nations Land Management Act — it was always top down. We were always told. I think the fact that First Nations had the opportunity to consider this in their own right was attractive to them. As more and more economic opportunities started to come on to their radar screen, they became more interested in what we were doing. But it’s the first time, in my view, we had the opportunity as a government to make a decision and to move into some areas of government that we historically had.
Senator Klyne: I do have a second question if there is time.
My question is about the First Nations Infrastructure Institute. I understand this Centre of Excellence in Infrastructure planning will not be limited to First Nations, but also open to Inuit and Métis requests for advice on infrastructure projects. Could you tell us more about how it will work in practical terms and the value that it will bring to diverse Indigenous communities across Canada?
Mr. J. Calla: That’s a great question, senator. The FMA has been very successful, as has been mentioned, but I think other Indigenous groups across Canada expressed their frustration with not being able to participate, whether they are self-governing nations or, as you mentioned, Inuit or Métis.
The idea for FNII is to be able to respond to any interested Indigenous organization, not just Indian Act bands. It is the methodology and the rigour that we would be bringing to supporting and assisting those groups with their infrastructure projects on their land. That methodology will work. They may have tools of taxation under a treaty or other tools or powers as Indigenous organizations. We think the planning methodology will work for them as well. So FNII is prepared to work with any organization.
Senator McCallum: Thank you for your presentation. Thank you for all the work you have done and thank you for the conversations that we’ve had. I am concerned about the organization being another level of colonization.
Many of our scholars have looked at legislation as termination, assimilation or another colonization because our own people can be colonizers. When we look at the regulation of infrastructure services, it’s only a part of self-determination. When I met the Assembly of Manitoba Chiefs at their conference two weeks ago, they said it takes away the work that chiefs need to do on nation‑to-nation treaty relations, the Natural Resource Transfer Acts, the land claims, land back, all those issues that I think would be deeply tied to that.
With this organization, would there be a creation of a two-tier system, where some join and others can’t? Who makes you accountable as an organization? Do you use a pan-Canadian model? My concern is that people tend to see us as all First Nations.
Mr. Jules: Just for the record, we work with over 50% of all of the First Nation communities in Manitoba. We’ve worked on setting up a template for municipal First Nations service agreements with the Kapyong Barracks land. That sets a precedent not only in the Province of Manitoba, but nationally. We have protocol agreements with the southern chiefs and with a lot of the Treaty 2 chiefs as well. We do extensive work right across the country.
One of the things I was telling the senator as part of her question was how we arrived at this state. In 1927 — and all of us are familiar with the name of Duncan Campbell Scott, he was the inventor of residential schools, but he was also instrumental in taking away our fiscal powers. You’re senators, you hear many hearings. He was granted 15 hours of presentations to the House of Commons. My ancestors were allowed 15 minutes. In the course of deliberation, they took away two things: Our fiscal powers, which meant we could no longer raise money on our own, that we had to be forever dependent on the federal government; and, we couldn’t deal with the land question in British Columbia. We were on the verge of resolving that issue in the 1910s and the 1920s, and until that happened — and the first time we started to move away from the dependency model was the legislation I headed up in 1988. For the first time, it gave us the ability to be able to raise money on our own, not from ourselves but from those who do business with us.
When we talk about economic reconciliation, that is fundamental to how we are able to move forward independent of government. Until we move beyond rhetoric, we will always be stuck in that process.
I have been involved in constitutional discussions right from the very beginning, as a council member and as a chief. Some of those discussions happened in this very complex, so I know full well the debate around section 35 of the Canadian Constitution Act. Is it a full box; is it an empty box? From my perspective, we have a full box, but the dilemma is how to get to resolving those issues. Because you still have to deal with the reality of the Canadian state, which is, in my view, indefeasible. You have to deal with both the federal and provincial governments.
We have uncovered a process from our community’s perspective to deal with that, and that’s getting the federal government to pass enabling legislation so that our First Nations would be able to occupy that space of jurisdiction. We use that to deal with the provincial governments to get them out of the way so that we will fully occupy that jurisdictional space. That’s our way that we have chosen, and that’s why this legislation is optional.
The Deputy Chair: Thank you, witnesses, for that. That’s a very fulsome answer, if there are others who want to contribute to that answer, it’s an important question. It would have to be done in writing, I believe.
Senator Coyle: Thank you and welcome back to our witnesses here today. You’ve talked about the amendments being years in the making, let alone the whole institutional change and relationship change that you have achieved and are continuing to strive for.
Mr. Calla, you mentioned that we have to change the infrastructure gap, we have to address that significantly and that is one of the key things we are talking about here. I believe you said we can’t do it with the tools we currently have or something to that effect, and therefore we need these amendments and this new institute. Could you speak, Mr. Calla, to the limitations of the current tools, those constraints that are there, and the advantages that these amendments will bring and what you see concretely? Let’s say we’re five years into the future, we passed this and we’re five years out, going from a point of constraint of existing tools to new tools and our tool kit as a result of these amendments. What’s the advantage, and what will we see concretely?
Mr. H. Calla: I think the biggest challenge we face in Indigenous communities is we are a pay-as-you-go government. Perhaps some Canadians wish that all orders of government in Canada were pay-as-you-go, but none of us are, and we all fund. We all go to capital markets and raise debt, and there is a reason for it. How many people pay cash for their house? Does it mean you don’t get a house until you can pay cash for it? I think that’s the biggest issue, the whole funding model has to change. There has to be long-term commitments from the federal government in that capital. One thing we have realized is that we’re not going anywhere as Indian people and Canada is not going anywhere. Let’s establish a more reasonable approach that reflects modern‑day principles of finance and government. That’s the biggest thing.
The second-biggest thing is that we need to look at a completely different procurement model that provides capacity support, looks at public-private partnerships, looks at the ability to blend capital monies with other orders and other money. To give an example, in my nation, Squamish, we had a large infrastructure project for housing but we could only get a quarter of it funded because that was all the money that they could give us in this fiscal year. I asked, what if we pay for the rest of it and you just give us the money when it becomes available? We can’t do that. It cost us 25% more to space it out over six years. It doesn’t make any sense. We have to have ourselves open to those kinds of concepts. That will be another significant step, but the biggest step is working with communities to bring a technical capacity that many of them can’t have themselves. We simply can’t have 600 different sets of administrations with a capacity that can deliver. We need to aggregate and provide institutional support.
That’s what I believe would have happened had colonization never occurred. We would have emerged — in keeping with the times — and developed the institutional frameworks, and we would have established treaties and working relationships among ourselves, that would have permitted us to engage in the world as it is today. That’s what I think will happen with infrastructure. We will bridge that gap by bringing the capital markets into it in a meaningful way, by providing revenue streams for fiscal powers and other revenue arrangements, and it’s starting to happen. Natural Resources Canada is looking at resource revenue sharing, for example. Increasing the tax table is another example that we’re talking about.
I think if you do those three things, that’s the kind of systemic change you are looking for. It’s a 90-year program to do it this way. I was in Attawapiskat, as I may have said. They are drinking water out of bottles. I bought a case for nine dollars in Vancouver. I went up to Attawapiskat and that same case is $48. Why do they have a drinking water advisory? Because their water intake is 100 yards from the landfill. Where is the engineering and planning to do that kind of stuff? The whole system has to change, and that’s how we will get there.
Senator Sorensen: Thank you all very much for being here. I found all of your comments informative, emotional and very inspiring. I appreciate all your comments. I have said this before in this room, but I learn so much every time I am in this committee, regardless of the topic, and it is certainly my privilege to be here.
My question will be directed to the First Nations Infrastructure Institute. I’m curious as to what extent are First Nations today empowered to choose and direct their own contractors when it comes to infrastructure development, and will your organization be able to empower them to do so more? Does this bill have an influence on that?
Mr. Claxton: I believe so. Our initial goal is to go in and — they may have some infrastructure that’s ongoing. We want to get them shovel ready. Our next is to build their capacity, so FNII will be up there, but to build their capacity and then it will go like that. They have to be able to work with them to pick whoever they want to do their infrastructure, and Jason Calla is more involved in that than I am. I used to go in as the chief and connect with the politicians and the leadership and then hand it over to Jason Calla and his team.
Senator Sorensen: I’m a previous mayor, so I feel you.
Mr. J. Calla: Mr. Claxton’s experience dealing with CP holders and with different localities is helpful in talking to communities.
One of the purposes of FNII is to assist in the procurement of projects as well, so that would be established in the way of tendering and contracting the project. I think under the current system with ISC it tends to be restricted to one procurement model, the design and build approach. We’re proposing that there be a number of models out there. There are advantages and disadvantages to these models, depending on your objectives and your project, so supporting the community to work through these different models and figure out what’s best for them.
Senator Greenwood: My question follows up on what Senator Sorensen just asked. First of all, thank you for all the work that you have done and the generations before you and the work that they’ve done to bring us to this place.
I know there are just under 300 First Nations who are not part of this group. What happens for them? Other groups may have alternative ways to go toward self-government. I guess I should have asked this of government. Will they continue to support those ways as well for those nations who want to achieve this self-government in a different way?
What options or opportunities are there that you offer First Nations who may not necessarily be part of your group but who want to achieve self-government? I think we are all going toward self-government, but it may be different.
I was born and raised in Treaty 6 territory, so I come from a treaty space, and I wonder how this act impacts treaty relationships and relationships of nations with government. I know that’s a bit long-winded, but just thinking about that because not everyone will be the same.
Mr. H. Calla: I worked with a lot of First Nation communities who are in the treaty process or have treaties, and particularly the modern-day treaties. The question you asked is what happens the day after you sign the treaty. You have been so focused on getting to a treaty. You don’t have the administrative capacity, and you have to start to build it. We’re tools for those groups. We need to be looked at as tools for those groups of people to help them.
We also recognize government. I mean, we’re not always here to slam government. Government has been very supportive of some of the initiatives that the First Nations Financial Management Board has proposed, including providing support services to smaller communities, particularly in remote locations where we’re doing the back office functions for them, in the same way that FNII will do that with infrastructure. But we’re doing the bookkeeping and reporting through technology. When I was in Attawapiskat, they were on Starlink. I had as fast an internet connection in Attawapiskat as I did in downtown Toronto. That technology leap is there, so we will provide that support to First Nations.
We don’t exclude anybody. We’ll talk to anybody, whether they are scheduled or not in hopes of getting them to the point where they will consider it because there are no obligations. The reason that some are taking so long is that they want to be part of it, but they want to take their time and get through it, and we’re happy to do that. We need some of these amendments, though, so we can deal with self-government and treaty First Nations. Some of the things we are doing will facilitate some of these communities being able to consider these pathways where they couldn’t before.
Mr. Jules: One of the things also critically important about the legislation is there is a non-derogation clause that doesn’t affect treaty or self-government agreements. One of the reasons we want the legislation expanded is so we can provide services like the British Columbia Health Authority as an example, so that we’re not going to just build one health facility but 20. Those are the discussions we’re having in B.C. We’re not going to build one water system for the Mi’kmaq; we’re going to be building 25. It expands the rate at which we can deal with the $300 million infrastructure gap. We’re going to try to do our bit. It doesn’t solve all of the problems, but without institutional support and centres of excellence, we won’t be able to have the standards or the training for individuals operating these facilities 24-7, 365 days a year.
Senator D. Patterson: Minister Miller invited me to ask Mr. Jules the question about how you see the First Nation Infrastructure Institute mandate working alongside the Canada Infrastructure Bank and its Indigenous component.
Mr. Jules: Firstly, we help create our own First Nations infrastructure, our finance authority, so that’s one option available for First Nations. But it doesn’t preclude First Nations from working with the infrastructure bank. It’s going to be their choice. I think that with the work that needs to be done, we need to be able to work with all financial institutions, and that’s going to be at the local First Nations level to make that choice.
We’re open, hopefully, after the legislation is passed. We want it to be able to come into force as quickly as possible so we can get into business and provide direct services for First Nations.
That doesn’t preclude us from working with all the financial institutions, but our primary focus here is with the operation that Ernie Daniels heads up, which is the finance authority. Again, when the Canada Infrastructure Bank is looking at setting aside about $3 billion, you have to be able to take advantage of that also.
Also, I think for the first time, we’re going to be able to have true public-private partnerships with First Nations to build infrastructure in our communities. The irony of ironies that I always like to point out is that the only public-private partnership is in British Columbia, and that was to build a provincial jail. We want to move beyond building jails, senator.
Senator D. Patterson: Thank you.
The Deputy Chair: Are there any other senators who would like to ask a question?
Manny Jules would like to make a statement.
Mr. Jules: I didn’t want to let this day pass without recognizing the sacrifices our veterans made on this day many years ago. I had my uncle fight in North Africa, up the boot of Italy, into France and then in Germany, and the fighting by our veterans in the First and Second World Wars, which opened up the discussions we’re having today. Thank you for this opportunity.
The Deputy Chair: That’s a fitting note on which to end the panel. The panel has been very compelling and very helpful to the committee. I want to thank all the witnesses for coming and the good work that you have done. Hopefully, this bill will move quickly through the Senate in due course.
Before we adjourn, I would like to take a short moment to remind everyone that tomorrow we will be hosting our annual Voices of Youth Indigenous Leaders event with two meetings during the day, one at 11:30 and the other at 6:45, for two hours each. In anticipation of that, I’d like to ask the committee: Is it agreed that the committee allow electronic and photographic media coverage of its public meetings on Wednesday, June 7, 2023, with as little disruption of the meetings as possible?
Hon. Senators: Agreed.
The Deputy Chair: Thank you.
Thank you, everyone, the meeting is now adjourned.
(The committee adjourned.)