Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 11 - Evidence - February 15, 2012


OTTAWA, Wednesday, February 15, 2012

The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-6, An Act respecting the election and term of office of chiefs and councilors of certain First Nations and the composition of council of those First Nations, met this day at 6:52 p.m. to give consideration to the bill; and to examine and report on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada (topic: status of the British Columbia treaty process).

Senator Lillian Eva Dyck (Deputy Chair) in the chair.

The Deputy Chair: Good evening. I would like to welcome all honourable senators and members the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or on the web.

I am Senator Lillian Dyck, from Saskatchewan, and I am the deputy chair of the committee.

The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. Today we will be hearing from witnesses on two topics. First, we will be starting our consideration of Bill S- 6, an act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations. Second, we will be continuing our study on the status of the British Columbia treaty process.

Before hearing from our witnesses, I would first like to introduce the members of the committee who are present this evening. They are Senator Nick Sibbeston from the Northwest Territories, Senator Sandra Lovelace Nicholas from New Brunswick, Senator Charlie Watt from Nunavik, Senator Salma Ataullahjan from Ontario, Senator Nancy Greene Raine from British Columbia, Senator Dennis Patterson from Nunavut and Senator Don Meredith from Ontario.

We will begin our meeting this evening with Bill S-6. The Honourable John Duncan, Minister of Aboriginal Affairs and Northern Development, will offer us a presentation on the content of the bill. With Minister Duncan are his officials who will assist in responding to questions from senators. They are: from Aboriginal Affairs and Northern Development Canada, Brenda Kustra, Director General, Governance Branch, Regional Operations Sector; and from the Department of Justice, Tom Vincent, counsel.

I would like to welcome our first witness, the Honourable John Duncan. Please proceed,

Hon. John Duncan, P.C., M.P., Minister of Aboriginal Affairs and Northern Development, Minister of the Canadian Economic Development Agency and Federal Interlocutor for Métis and Non-Status Indians: Thank you for the invitation to appear before your committee. I would like to begin by acknowledging the work that this committee has undertaken in the area of First Nation elections. Your 2010 report, and in particular the recommendation for my department to work with interested First Nations organizations, set the stage for collective efforts, the result of which is the bill before you today. The First Nations elections act is generated within the spirit of true collaboration to address the weakness of the election provisions that are found in the Indian Act. It might be instructive to indicate that there are currently 240 First Nations that operate their elections under the Indian Act, 341 that are under what is commonly called custom code or community code, and 36 First Nations that are self-governing. A good number, 240 of 617, are currently under the Indian Act.

Collaboration on developing this bill took place over a number of years. It involved many leaders from respected First Nation organizations, primarily in Manitoba and the Atlantic region. It was supported by the federal government. It was reinforced by the work of this committee on First Nation elections in 2009 and 2010, and it reached into First Nation communities.

I would like to highlight the contribution of the two First Nation organizations at the centre of this collaboration: the Atlantic Policy Congress of First Nations Chiefs and the Assembly of Manitoba Chiefs. With the support of my department, these organizations propelled the initiative that has led to the First Nations elections act.

One could ask what the changes are that make Bill S-6 a vast improvement over the way elections are held under the Indian Act. First, members of band councils will hold office for four years instead of the two years set out in the Indian Act. Doubling the length of the mandate of band councils is a significant advance. As a result of this change, First Nation governments will be in a much better position to carry out long-term plans, take action on important priorities and ensure that long-awaited progress on critical issues is achieved.

Second, Bill S-6 will enable groups of First Nations to line up their terms of office so they can hold their elections on the same day. Synchronizing their election days means that First Nation communities in the same region or province will have, for four-year periods, stable leadership working in collaboration with one another and negotiating with other levels of government. This kind of coherent, logical setup is simply not possible under the provisions of the Indian Act election system.

Third, Bill S-6 clearly defines election offences and outlines penalties similar to those found in the Canada Elections Act. In First Nations elections held under the Indian Act, allegations of corrupt practices, such as vote buying, are one of the principal grounds put forward in election appeals. Unfortunately, no legal deterrent to such practices exists because the Indian Act does not outline any penalties. By having these activities clearly defined and by attaching penalties, Bill S-6 will act as a strong deterrent.

Fourth, Bill S-6 shifts appeals of First Nations elections from my office to federal and provincial courts, the same place where disputes that arise from provincial and federal elections are decided. This shift will not only end ministerial oversight and decision making in the appeals process but will also bring enhanced rigour and transparency to the process. It will also discourage frivolous allegations that sometimes place First Nation governments under dark clouds of uncertainty and in some cases suspicion for extended periods of time. They can be completely spurious.

Fifth, Bill S-6 brings greater rigour to the nomination of candidates. In particular, the bill prohibits individuals from being nominated as a candidate for both chief and councillor in the same election. The bill also limits the number of candidates any one person can nominate and requires that nominees accept their nomination before they actually become candidates. Under the Indian Act, these circumstances — single candidates for multiple offices, candidates who are nominated but have no desire to run, candidates who are nominated to run and do not know it — are not only possible but actually occur.

At this point, I should make clear that the election system offered under this bill is optional. Along with the First Nations leaders who drove this initiative, I believe Bill S-6 presents a vast improvement over the Indian Act. Nevertheless, First Nations will decide for themselves whether the system under the bill represents a better alternative for the election of their leaders than the current Indian Act system or their own custom election code.

The benefits of the First Nation elections act in fact go well beyond the establishment of a smoothly functioning electoral process. Bill S-6 provides the framework for politically stable First Nations governments.

Madam Chair, I would also like to clear up four concerns that have been raised about this bill since its introduction in December. These comments might save us some time by addressing questions members of the committee might have with regard to the bill.

The first is the concern regarding ministerial power. Clause 3 provides me, as minister, with the power to bring a First Nation under this legislation if I am satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation. The minister is currently authorized under the Indian Act to order a First Nation to hold an election under that act. This authority has only been exercised three times in the last 10 years for the purposes of solving extended community governance disputes and was done so only after all other reasonable efforts to reach a resolution within the community had been exhausted.

I also want to make clear that Bill S-6 does not give the minister any additional powers to order the holding of a legislated election in a First Nation over those powers found in the Indian Act. In fact, the First Nations elections act makes explicit the conditions that must exist for the minister to exercise any powers of intervention.

The second concern centres on random draws, which will be used to break ties and determine elected candidates in a fair and expeditious manner. Some may suggest that by-elections are a more appropriate way to break tie votes between one or more candidates. While ties are more common in First Nation elections than in provincial, territorial and federal elections, by-elections are costly alternatives that force First Nations into another election that must last an amount of time to allow for mail-in ballots to be cast and counted. This delay may not seem like much to federal candidates and people in federal ridings, but it may prevent First Nation governments from taking immediate steps on important matters without a full complement of elected leaders.

The third concern surrounds election appeals. As I am sure all committee members know, our courts are well equipped to decide disputes that arise from federal, provincial and municipal elections, and are therefore ideally positioned to deal with appeals related to First Nations elections. Many First Nations that hold elections under community-based systems or custom election codes refer disputes to the courts, either when their codes identify the courts as the appeal mechanism or when community resolution mechanisms are unable to resolve disputes to the satisfaction of all parties. As I said earlier, election appeals cause uncertainty in First Nation governments. Given the potential for this negative effect, the process for engaging an appeal will benefit from having the rigour that the courts require of any action.

The final concern centres on the bill's opt-in and opt-out clauses. A First Nation moving from holding its elections under the Indian Act to holding them under Bill S-6 is not making a fundamental change in how it elects its leaders. For this reason, a band council resolution is an appropriate vehicle to make the change. Of course, many First Nations leaders will engage their communities in discussing such a move before making the final decision and adopting the band council resolution to this end.

If a First Nation wishes to withdraw from Bill S-6 at a later time, it must first develop its own community election code. In this context, fundamental changes could be brought to how leadership selection is made. Examples include mandating additional qualifications for candidates, altering band council frameworks to include proportional representation for families, clans or elders, and instituting additional criteria to govern the removal from office of band officials. Therefore, it makes sense for Bill S-6 to require that these fundamental changes receive the support of the community as a whole.

In closing, Madam Chair, the approach to this initiative is a creative and collaborative way in which the government and our First Nation partners have developed a sound alternative to the Indian Act. If we are committed to making the most of this historic period of the modern relationship between the Crown and First Nations, I urge committee members to adopt the bill.

The Deputy Chair: Thank you, Minister Duncan.

We have a list of senators who wish to ask questions. Before we begin with Senator Sibbeston, I would like to ask you a very general question.

You were indicating to us that 240 First Nations hold elections under the Indian Act, 341 go via the custom code, 36 under self-government, and I believe there are 10 or more with a traditional or hereditary system which you did not mention tonight; so there are already at least four systems of elections and this bill would create a fifth system. Does this create confusion at the individual First Nation level? I know of a couple of examples, which I will not name, where there are appeals. They will say, for instance, that the hereditary chief is challenging the chief who has been elected under either the Indian Act or a custom code. Do you think that offering another option will make the matter more confusing? Why would we add a fifth system when we already have four?

Mr. Duncan: The primary target of the fifth system, as you have described it, which is Bill S-6, would be the 240 First Nations that are operating under the Indian Act. That was the presumption that drove the initiative.

I do not think there would be confusion for those First Nations. There is still a very familiar electoral process; it just happens less often. I like that it takes my ministerial power away and gives it to an arm's length body, which is the courts.

The Deputy Chair: What would be the advantage to those First Nations who are under the Indian Act going to Bill S-6 versus going the custom code method? Why would they not just go to the custom code and introduce the same sort of provisions that you have outlined in Bill S-6?

Mr. Duncan: It is not really for me to illustrate that. Every First Nation would probably have a different set of constraints or reasons. First Nations have had the choice to go to custom code for a long time, and 240 have chosen to stay under the Indian Act. Elections under Bill S-6 would be more familiar to those 240 than custom code because it takes quite a bit of work to create a custom code election.

As to whether there are technical reasons beyond that, I do not think so. It is just a choice for the First Nations.

Senator Sibbeston: Minister, I commend you and your department for bringing forth this bill. I see it as an incremental step forward. I certainly do not feel that it is the whole package, as it were.

Our Senate committee studied the matter of First Nations elections fairly thoroughly. We heard many witnesses. There was a general desire to see changes made. One of the big aspects of interest was having some kind of a commission to deal with elections and appeals therefrom.

While I think it is a positive step to have the courts deal with appeals, the witnesses that we heard, particularly the lawyers who have had many years of experience in this area, said that the Federal Court system was cumbersome, that judges did not have a great deal of knowledge of First Nations and they saw it as a bit of a bother, or were not really enthusiastic to deal with the issues. While they did the job, they seemed to feel that it was a matter that could be dealt with much better by a body like a board.

While I commend you for bringing forth this legislation, are you open to making further incremental improvements in the future so that eventually we could have an established electoral and appeals commission to deal with all the elections and appeals?

Mr. Duncan: You are speaking beyond Bill S-6 and including all five systems?

Senator Sibbeston: Yes.

Mr. Duncan: The reference to the courts that we currently have would still happen with a commission. They would not have ultimate authority. It would still very often end up referred to the courts. That has to be taken into account.

That would be establishing another institution, another bureaucracy, which is another cost. There are significant costs to do that. How much would it be utilized given that most elections are run quite appropriately?

It would be nice for me to just say that I am open but, on the other hand, I am very concerned about setting up another institution. We have many institutions, and one may wonder how much some of them actually accomplish. Having been around Parliament for about 16 years now, I am aware of several that would fall into that category.

It is a concern. I do not think it is appropriate for Bill S-6. I would be foolish to slam the door on the broader view that you are talking about.

Senator Sibbeston: I think it is generally recognized that where First Nations have self-government, they of course have all of the powers to run their elections, and the next best thing is to have their own custom adoption provisions rather than having to come under this act or the old Indian Act. However, department officials and First Nations who appeared before us said there were limited resources to help First Nations achieve their own custom elections.

This is not really a question related to this bill but more a departmental, policy and administrative one. Would your department be open to providing more resources in the form of personnel and money so that First Nations can develop their own custom election provisions? That desire has been expressed to us.

Mr. Duncan: I do not know our current practice. Ms. Kustra could speak to this.

Brenda Kustra, Director General, Governance Branch, Regional Operations Sector, Aboriginal Affairs and Northern Development Canada: Thank you very much for that question, Senator Sibbeston.

The current practice in the Department of Aboriginal Affairs and Northern Development is to provide some financial support to First Nations who are interested in moving out of the Indian Act into a community custom or a community election system.

We also conduct workshops and information sessions with First Nations who are interested in moving into community custom to share best practices from other custom election codes that we are aware of. First Nations who are in this process also call on the department for advice and referral to other First Nations who may have developed similar kinds of systems in their election code. We do provide a fair bit of support to communities who are interested in pursuing a community custom code.

Senator Ataullahjan: Thank you, Minister Duncan, for your presentation. Would you tell us about the types of consultations that you did with the First Nations? Were you able to engage First Nations from all over the country, and what kind of feedback did you receive? What were their major concerns? Were the First Nations concerned with violations to their right to self-governance?

Mr. Duncan: I am sure we have all the consultations listed here somewhere.

Ms. Kustra: We do.

Mr. Duncan: We do so many consultations on so many fronts that it is sometimes difficult to remember. You will recall in my speech I talked about how this was primarily an initiative from Manitoba, the Assembly of Manitoba Chiefs, and the Atlantic Policy Congress of First Nation Chiefs, and they did extensive consultation activities in their regions. At the request of the department, they undertook a national engagement to collect feedback on their recommendations, and that became the content of the bill.

These groups made presentations to First Nations political organizations in every province where there was interest in legislated electoral reform. I have a list of those. I do not think I want to read through that, but there was a significant consultation in that way, and there was also website consultations, and copies of that website content was sent as a document to all First Nations who hold their elections under the Indian Act system. They were invited to share and discuss the document with their membership. It was a pretty full consultation.

What was the other part of your question?

Senator Ataullahjan: What kind of feedback did you receive and what were the major concerns with regard to this electoral framework?

Mr. Duncan: I think the major concerns were the ones that I described in my speech which dealt with opting in and opting out, dealt with the power of the minister, which dealt with the appeal process. I think those were the main concerns that were expressed.

Ms. Kustra has a longer history with that than I do, so she may have a more fulsome description.

Ms. Kustra: The minister has highlighted the concerns. There was a lot of support in the consultations that took place across the country, particularly chiefs were very supportive of the stability that would be provided through the four-year term of office. They were also interested, in some regions, in the opportunity to be able to actually have all of their elections on a common day. This way First Nations could come together in a province or even in part of a province and agree to have one election day to provide greater stability within their area.

They were also very supportive of a more robust process for the nomination of candidates, and I believe the minister spoke to some of the elements there.

They were also very supportive of the fact that the legislation would identify specifically corrupt practices within the confines of this legislation and also identify penalties that would be imposed for those corrupt practices. This is one area on which the Indian Act is totally silent, and it is an area which has been the result of many appeals, but they were very supportive of the idea of having these subject matters very explicitly identified in the legislation.

Senator Ataullahjan: Were they concerned with violations to their right to self-governance?

Ms. Kustra: We did not hear that issue at all mostly because the legislation is optional. It does not impact First Nations which are currently operating within self-government regimes or those that are currently operating under community custom, and it is the prerogative of the nation to choose the election system that they would like to be governed by, and so they did not raise that issue of any violations.

Senator Meredith: Minister, thank you so much for appearing before us this evening. Along the lines of what Senator Ataullahjan was asking, Ms. Kustra, you indicated there was a lot of support. I am always curious as to those who write to you and those who oppose this new electoral reform. Was there any opposition and how did you deal with that to allay their fears?

Mr. Duncan: I am not aware of any opposition, and the reason why is because it was largely a First Nation initiative. It was driven by those two organizations: AMC and APC we call them. The legislation is optional, so nobody's arm is being twisted. It is voluntary. I am not aware of any First Nation opposition. Was there any?

Senator Meredith: No letters came into your office or through the department to say this is not the way we want to go? No chiefs opposed this?

Mr. Duncan: No, not at all, and as a matter of fact, the day we tabled the legislation I held a press conference with Chief Candice Paul from the Atlantic Policy Congress and John Paul who is the executive director of the Atlantic Policy Congress. They were very anxious and willing and happy to be out there presenting the fact that they were happy this bill was being tabled.

Senator Meredith: Minister, you indicated that this piece of legislation does not affect those who hold elections under their custom codes; is that my understanding? Is that correct?

Mr. Duncan: That is correct.

Senator Meredith: In terms of moving forward here, should we adopt this piece of legislation, what is your time frame for implementation in terms of the rollover with these new reforms?

Mr. Duncan: We need Royal Assent on the bill, so we have to get it through the Senate; we have to get it through the House of Commons. I am not aware that there is an implementation date in the legislation, so it would come into effect basically right away.

I should clarify. When this exercise started under the initiative of the Assembly of Manitoba Chiefs and the Atlantic Policy Congress, the Grand Chief of the Assembly of Manitoba Chiefs was Ron Evans, who is now the chief in Norway House, and he was a big fan. He was a big part of the initiative. Since that time, he has gone back to his home community and has been elected chief there. He vacated the chair, so Grand Chief Derek Nepinak is now the Grand Chief of the Assembly of Manitoba Chiefs and he is not so favourable to this legislation. He has expressed concerns that this legislation gives new powers to me to force an election.

Senator Meredith: Are you saying there is some opposition then?

Mr. Duncan: There is some opposition. I do not think that opposition would have expressed itself except for the fact that he is with the Assembly of Manitoba Chiefs and they were so much in favour so he was forced to take a public position.

Senator Meredith: You brought this legislation in with great consultation and with great engagement from the chiefs, and you have seemingly wide support for this legislation. What would be your top three benefits from bringing this in at this juncture?

Mr. Duncan: I believe I have described them: the four-year term, common election dates and, from my perspective, taking me out of play.

Senator Meredith: Do they want to take away all your powers?

Mr. Duncan: Among my worst movements as minister in a year and a half now is the fact that I have been asked to intervene in three elections after there has been an investigation and so on. There is nothing worse than me having to sign something that says,  "Guess what, you are not a councillor, " or,  "Guess what, you are not a chief and here is why. " In this day and age that is not appropriate.

Senator Meredith: Are you saying you want to give the power back to the people, so to speak, and for them to make their own decisions and vote for the leadership they want to see?

Mr. Duncan: We are giving the power to the courts, which is the same place it resides for other elections.

Senator Lovelace Nicholas: Minister Duncan, how do the penalties and offences listed in Bill S-6 compare to those provided under the Canada Elections Act?

Mr. Duncan: I know it is pretty consistent but I do not know the specifics. I will ask Ms. Kustra to answer the question.

Ms. Kustra: In working with the First Nations from the Atlantic Policy Congress and the Assembly of Manitoba Chiefs, they did look carefully at the Canada Elections Act and the penalties and offences there. The penalties that you see in Bill S-6 are very closely mirrored to those penalties that are in the Canada Elections Act.

Senator Lovelace Nicholas: The penalties are not in the Indian Act at all?

Ms. Kustra: That is correct.

Senator Lovelace Nicholas: If chief and council are found fraudulent, will nothing happen to them?

Ms. Kustra: The election can be appealed in the case where there is an election, as Minister Duncan had indicated. Where there is an investigation of an election and there has been fraudulent activity to be determined, so the allegations have been founded, then under the current Indian Act the minister is required to make a decision as to overturn that election, so requiring a new election to be held. There are no financial penalties. There are no other penalties to dissuade people from undertaking fraudulent practices.

Senator Lovelace Nicholas: What if a chief and council are found to be fraudulent after an investigation by the RCMP and nothing happens? Can the ministry not do anything about that?

Mr. Duncan: We contract someone to do an investigation. If they were to turn up evidence of actual fraud then they would be under an obligation to deal with the law enforcement authorities locally. I can tell you that most often what we are talking about are allegations of trying to influence people through small bribes, to vote a certain way or buying a mail-in ballot. There were no specific penalties and sometimes these allegations would be spurious. They were not actually true, but we would have to go through a full investigation and there was no onus on the part of the complainant. Now I think there is a fee, is there not, for someone to lodge a complaint?

Ms. Kustra: There is the possibility that a fee can be imposed by a First Nation.

Senator Raine: I personally think this is wonderful legislation. Having travelled with the committee and heard stories about how the current two-year term is really holding up the stability required for economic development, I think this is a very good move. It is good that it is optional, of course.

Moving forward, regulations will be developed. How will they be developed and what will be included in the regulations?

Mr. Duncan: Our Justice Department official will talk about the regulations.

Tom Vincent, Counsel, Department of Justice Canada: We are actually anxious to work on the regulations. We need to wait until we actually have Royal Assent to see what the final edition of the bill looks like. We will start with the regulations that are currently under the Indian Act and beef them up and match them to the legislation that we will have under Bill S-6. That is so the regulations will deal with the entire process for nominations, conducting the election and for the appeal process to send it off to the Federal Court and the superior courts of the provinces.

Much of the detail will be found in the regulations. We have a fair amount of expertise at headquarters, and we will also seek to augment that from electoral officers and from investigation officers who have looked at Indian Act elections and found some of the shortcomings there.

Senator Raine: Will you be working with First Nation stakeholders in the development of the regulations?

Mr. Vincent: Yes, we will. I have one who is very anxious to work with me and cannot wait until we start on the regulations. I can report that there is some enthusiasm there.

Senator Raine: It will be a four-year term, but I would imagine, like in other elections, not all of the council would be elected at the same time so there would be rotating of terms. You would not have four years and then suddenly a whole new council. Would it be every two years that there would be an election? Is that something that would be covered in the regulations?

Mr. Vincent: It is currently not something considered in the regulations. We would call that a staggered term where some would initially have an election period of four years and some would have an election period of two years. The staggered term provides a great deal of consistency within the First Nation. However, the appeal of not having staggered terms largely appeals to provincial organizations that want to have the common election day, so that there will be the same councils from the same First Nations that are working together on larger projects as a tribal council or as a provincial organization. That is something that could be considered to go into the regulations.

Senator Raine: Is this something that the First Nations involved could decide amongst themselves?

Mr. Vincent: I am not sure if that would become an optional provision or not.

Mr. Duncan: There has been no discussion or contemplation in that regard to which I am aware. Our primary group that will be working on the regulations with us is the Atlantic Policy Congress.

Senator Raine: I commend you for moving forward. This is an issue that has held up economic development in many places. I look forward to this bill passing.

Senator Patterson: Senator Raine has touched on the question I was going to ask, but I would like to ask the minister if he might elaborate about economic development. I believe that the Atlantic Policy Congress, when they pushed for reform of the First Nations elections, talked about sound governance and the possibility of increasing opportunities for economic development. Could you explain, please, how this bill will help advance economic development in First Nations communities or regions?

Mr. Duncan: First and foremost, I think there are about 70 First Nations in Manitoba, and 10 or 11 in Nova Scotia. Every time you get a group of chiefs together to talk about a joint project, it would not be everyone, but if a significant number are elected on two-year terms and if there is turnover, which there quite often is, if you hold a meeting every three months, you will end up with new people at the table. They have to be brought up to speed. This became very problematic. As economic development has become a bigger and bigger driver of First Nations initiative and focus, and where they want to put their priority, this became contrary to doing business. It is pretty simple equation. This is primarily what is driving the change.

I am very hopeful that with the four-year term and with the common election dates, we will see some real changes. We will see, I think, some strong mentorship start to happen as well. Those who have been around for a while and have demonstrated real progress in their communities will be able to mentor the new chiefs.

Hopefully, that illustrates an answer to your question.

The Deputy Chair: As a supplementary, you were saying that you believe that having a longer term of office will lead to greater economic development. With those 341 First Nations that are under custom code who have I think at least a three-year term, is there evidence that they have been able to succeed economically more so than those under the two- year Indian Act elections? Is there any evidence of that?

Mr. Duncan: That is a fair question. It is not one I have thought about. One thing I have noticed is that very often where we have high functioning First Nations communities, the chief has been there for quite a while and it never occurs to me to ask what election code he or she is under. I think good leadership does not worry about two-year cycles or four-year cycles because they have the confidence of their people and they are going to be re-elected anyway. That question is probably worth some analysis. I am not sure that we have done it.

Ms. Kustra: No, we have not.

The Deputy Chair: Could it be done?

Mr. Duncan: We have not done it, but we will.

The Deputy Chair: Could you provide us with those numbers?

Mr. Duncan: That would be interesting. I do not know how we define success versus non-success.

The Deputy Chair: It is where you see, however you decide, some measure of economic independence or business ventures.

Senator Watt: Since the Inuit are also under your responsibility to a certain extent, will this legislation that you are promoting have some impact on the Inuit of the North like Labrador, Nunavik and Nunavut?

Mr. Duncan: The answer is no.

Senator Watt: During the Standing Senate Committee on Aboriginal Peoples hearings on the First Nation elections 2010 — I am not a member of the committee, so I have to read the materials to ask you the questions — it was widely acknowledged that there are many problems associated with the Indian Act elections. It is currently possible, however, for the First Nation to revert to custom or community-based election from the Indian Act electoral regime without requiring any legislative change.

What is your answer to that? They are basically saying it is already there; the exercise has already taken place. Why is there a need for a legislation change?

Mr. Duncan: The Indian Act is very specific about two-year terms and it is very specific regarding penalties and so on. What enables the development of custom code or community elections is the will of the community, but is there a statutory basis?

Ms. Kustra: No, there is not.

Mr. Duncan: There is no statutory basis for it. It is policy. When we have an act as old as the Indian Act, it is like the Fisheries Act; many things tend to happen by policy rather than by statute. It is difficult to get consensus to make change, which is why many of the changes happen through optional legislation. I like to use the example of the First Nations Land Management Act. Twenty-five per cent of the Indian Act started off as optional legislation for 12 or 13 First Nations in the 1990s and has now grown to 55 First Nations, and is likely to expand again fairly soon.

We can read several lessons into that. One is the mentorship I was referring to earlier on economic development. There has been mentorship provided by the First Nations land management groups. They control their own lands and they control the monies that are generated from those lands. I do not have to sign off on anything. I love it because right now I spend too much time signing off on land use or land designations, not so much in the North but in the south on First Nations. It all takes incredible amounts of time to happen, so they cannot operate at the speed of business. Everything needs to allow for greater urgency. Bill S-6 will allow for greater urgency in many ways. I think it is the right thing to do.

Senator Meredith: Thank you for bringing that up. We just heard from several chiefs last night with respect to, again, additions to reserves.

There is a colossal bureaucracy that prevents economic development from moving. We heard about people waiting for 17 years. They are going through the courts. We heard about a $25 million project in western Ontario. The provinces approved it, a regional director needs to sign off, and that is not done. This is holding back the First Nations people.

Minister, you know I am passionate about youth and about youth getting jobs, talking about mentorship and so forth. How can we reduce the timelines currently in the system with your department to ensure that these lands are freed up quickly so that these natural resources can actually get out to the people so they can be free to move on with their lives? I am sorry; I had to jump that in there. You talk about the fact it will expedite things, but I think the machine has ground to a halt.

Mr. Duncan: I do not mind the question at all because, once again, we have an old process that does not operate at the speed of business.

Senator Meredith: How can we blow this up?

Mr. Duncan: We are doing our best. What the Senate is doing with its study is, to me, groundbreaking. It is no different from what the Senate did on addressing specific claims.

We had specific claims that were 20 years old and not going anywhere. The Senate made some strong recommendations, worked with the Assembly of First Nations, government adopted new procedures, and we have made major progress on settling specific claims, especially the unresolved, very large claims. I could put some numbers to it, but I do not know if that is useful.

What you are suggesting on the addition to reserves policy, we all recognize there are far too many steps involved. Every step takes bureaucratic time. There are impediments and waiting periods, and we need to streamline it.

Whenever I hear of a very egregious case, whenever my staff hears of it, we try to expedite. I have had some success, but it is not the way to do business in the longer term. Part of the joint action plan with the Assembly of First Nations is to work jointly on the ATR process as well. What the Senate is doing, we are working with the Assembly of First Nations as well.

Senator Meredith: Thank you for that response, because the chart is as long as the desk that you are sitting at.

Mr. Duncan: I know; I have heard about it.

The Deputy Chair: Could we get back to Bill S-6?

Senator Meredith: My apologies, sorry.

Senator Raine: I have a question about the financing of elections. My understanding is that under the Indian Act elections there is funding available for people to hold elections. Under this new legislation will there continue to be funding available for those First Nations that opt into the process?

Ms. Kustra: The funding that supports First Nations elections comes from the band support funding, which is provided to every First Nation. That funding would still be provided to the same First Nations, and they would be conducting their election under a different legislative regime. There would be no change in funding. The nation would identify what it needs to conduct its election. Of course they would only be holding elections every four years, so the nation itself would be achieving some economies in not having to financially support an election every two years.

The Deputy Chair: With regard to resources, I believe, minister, that you said that under the appeals process, where you are in charge, that you contract out to investigate the appeal. Under Bill S-6, if there is an appeal process, then presumably the First Nation would be paying because they would have to go through a court system. That would be an additional cost to them that they would not incur under the other system.

Mr. Duncan: I suppose that might be true, I do not know. There is no cost to talking to the enforcement people, dealing with enforcement. It is only when it would get to the courts.

What I am finding now is when I make a decision as minister it usually ends up in the courts in any case.

Senator Lovelace Nicholas: My main concern about Bill S-6 is the elections appeal process and the offences and penalties. I live in a First Nation and I know how elections are run. That is my main concern.

Will there be easier access to complainants for appeals processes and offences and penalties? Will there be easier access to government or whatnot?

Mr. Duncan: The complaint would be lodged with local authorities, essentially, not with me.

Senator Lovelace Nicholas: Under Bill S-6?

Mr. Duncan: Yes, under Bill S-6.

Senator Lovelace Nicholas: There will still not be easier access for people to complain about fraud going on in the election appeal processes under this bill?

Mr. Duncan: It depends. Is it easier to deal with me or to deal with local enforcement officials?

Senator Lovelace Nicholas: It is harder to deal with you because we cannot get to your office.

Mr. Duncan: There you go. Then it is easier to deal with local enforcement officials.

Senator Watt: Minister, I will have to take you back to the point I was beginning to raise in order to have a clear understanding of where we are going with this legislation. I am not that critical. I am not saying that I do not like this legislation, but I do have some serious questions about it because I think it could be dealt with in another way.

I believe you asked your assistant if there was a statute that could be utilized to make that happen. From what I understand, many First Nations have exercised this option, for example by lengthening their terms of office, creating appeal bodies and establishing recall mechanisms and tightening up the nomination procedures. If that has already taken place, why is it required to put it in the form of legislation when it can be dealt with in another fashion?

That is my dilemma in terms of understanding this legislation. What does it really do? I think the four-year term is a great improvement. I also see other provisions that are great improvements, but I am not too sure when it comes to the point of relinquishing your ministerial power to a certain extent with this legislation, if I understood it correctly.

The argument that you are laying out is that they have to be able to make immediate decisions, not prolonging it and asking for second layers of decisions, because the economics dictate where that community should go, if I understood you correctly on that. That is where I see it going.

I am still questioning myself to the point where there is a need for legislation.

Mr. Duncan: There are communities that do not want to go with a custom code or a community code because they have faith in the Indian Act. They have faith in a statutory. They know the rules. The rules are there because that is the way the legislation reads. They can be convinced to go to another piece of legislation that resembles the Indian Act in many ways, but is a vast improvement. If the community really wants to go to a community code, fine. However, you will not convince every community that they want to do that.

We are offering another option. There is a degree of comfort attached to the fact that it is a statute as opposed to something more nebulous, which is policy. I believe that is the case, but I will ask my justice expert here if that is your understanding.

Mr. Vincent: Yes, that is my understanding. Some First Nations are quite reluctant to adopt a custom code because they see that some of their neighbours with custom codes end up with prolonged leadership problems going to the courts. They prefer to have a process that is enshrined in legislation with defined appeal processes. One of the major problems with the custom codes is that they are accepted by the courts to have changed by practice as opposed to changed by amendment, community consultation, and community agreement as to what those changes are. People end up in court saying the custom code is this, and other people saying the custom code is that. The court has to sort that out. If there is only one legislative process, then it is quite clear to everybody what the rules are. For First Nations that do not have a large capacity to build their own custom code, this is a good stepping stone. As well, it gives them a mandate that they can work on their own custom code over a four-year period of time rather than try to squeeze it in within two years.

Mr. Duncan: When you have the stability that will come with a four-year term under Bill S-6, if the community then says,  "We would like to go to a community code or a custom code, " they are in a better place to be able to develop that because they have that four-year window. There is nothing preventing them from going there. They can opt back out of Bill S-6 and go to a community code as long as the community ratifies the community election code.

Senator Watt: Even though they have already opted in? It will be much more difficult to opt out than opt in.

Mr. Duncan: Opting in requires a band council resolution. Opting out —

Senator Watt: A referendum.

Mr. Duncan: A referendum. That was in my speech.

Ms. Kustra: That is the current situation as well.

The Deputy Chair: One final question from the chair: Minister, if you decide that you have to add a First Nation into this act, Bill S-6, and that First Nation objects, can they appeal to the courts? You were saying your decisions are now appealed by courts. If you decide to add someone in, can they appeal it to a court?

Mr. Duncan: I think the answer is yes. I would never do that, but the answer is yes. At least I do not think I would ever do that unless it was an intractable situation.

The Deputy Chair: Right. Thank you very much for your presentations. That completes our study of Bill S-6 for this evening.

We will now turn our attention to the topic of the British Columbia treaty process. On October 25, 2011, this committee received a brief from the British Columbia Treaty Commission on issues related to the implementation of the British Columbia treaty process. On November 1, 2011, the committee decided to produce a short report on the status of the process. In view of this objective, the committee agreed to conduct one or two further meetings to hear testimony from the three parties responsible for the creation of the process.

Today, we will hear from the last of those three parties, the First Nations Summit.

Members of the committee, please help me in greeting our witnesses from that organization. We have with us tonight Grand Chief Edward John, Member, Political Executive; Mr. Dan Smith, Member, Political Executive; Chief Douglas White, Member, Political Executive; Howard Grant, Executive Director; and Nancy Morgan, Legal Counsel.

Witnesses, we look forward to your presentation, which will be followed by questions from the senators. Please proceed.

Grand Chief Edward John, Member, Political Executive, First Nations Summit: Thank you, Madam Chair. I always have wondered what happens in Ottawa on Wednesday nights. Now I know.

Senator Meredith: We work hard.

Mr. John: Respected members of the Senate, thank you for this invitation to present to your committee. Chief White and I will make some introductory remarks, and then we are open to questions.

I would like to advise you that my chieftainship name is Akilech'oh. I was interested in listening to the discussion here because that system is under our hereditary system, hereditary chief, Tlatz'en Nation, in the northern part of British Columbia. I was also referred to as Edward John. I was one of ten children born to my parents, born in one of my villages at home. I was raised on the land like Charlie — Senator Charlie Watt, I should say — my dear friend.

Senator Watt: Just call me Charlie; that is fine.

Mr. John: I was raised by my parents and elders and others in the community; I went to an Indian residential school, as a child to a Catholic high school. I have a bachelor of arts from the University of Victoria, a law degree from the University of British Columbia, and an honorary doctorate degree from the University of Northern British Columbia, which I had the honour of helping organize in its initial phases.

I want to acknowledge, firstly, the Algonquin peoples on whose ancestral lands we gather. It is important for us to make these acknowledgements always.

I have been a member of the executive of the First Nations Summit since its inception in the early 1990s but involved in land rights issues in British Columbia from very early on as a child and a teenager.

You heard from the B.C. Treaty Commission, the body that facilitates, under legislation, treaty negotiations in British Columbia. The word  "facilitate " is in the federal legislation, the provincial legislation and the First Nations Summit resolution, all three of which breathed life into this institution. The word  "facilitate " is key to the role of that commission. It has other roles as well.

You heard also from Minister Polak recently, from the Province of British Columbia, on certain issues relating to its mandate and role in this.

I wanted to begin by saying that the 2011 special report of the Canadian Council of Child and Youth Advocates to the United Nations Committee on the Rights of the Child states the following:

The disparities among Indigenous and non-Indigenous children are alarming. Aboriginal children experience higher rates of malnutrition, disabilities, drug and alcohol abuse, and suicides than other children.

Across the board you are aware as senators of the socioeconomic disparities which exist in First Nations communities, Aboriginal communities across this country. Treaties or final agreements should not institutionalize or entrench this depth of poverty, nor should these be mere real estate transactions to get rid of annoying, unsubstantiated, unproven and anachronistic land claims by First Nations.

In the 1858 Act to Provide for the Government of British Columbia, the British Parliament referred to our territories as the  "certain wild and unoccupied Territories on the North-West coast of North America . . . to be named British Columbia. "

On February 14, 1859, Governor James Douglas issued a proclamation which asserted that  "all lands in British Columbia, and all mines and minerals therein, belong to the Crown in fee. " No notice to, no agreement with, no consent from and no compensation to indigenous peoples.

Unfortunately, Crown policies even now reflect this same underlying obnoxious and racist view that indigenous peoples and their inherent rights do not exist until and unless indigenous peoples prove these in the courts, that section 35 of the 1982 Constitution, notwithstanding that it affirmatively recognizes Aboriginal and treaty rights is an empty box.

Senator Watt, you are acutely familiar with this section as being one of the Inuit leaders when this provision was inserted in the Constitution.

Further, even where some of these rights are proven, in Sparrow, for example, the Aboriginal right to fish, or in Gladstone, the Aboriginal right to collect herring, roe and kelp for commercial purposes, these rights have yet to find their way into any agreement between First Nations and the Crown, and this approach of denial is also reflected in Canada's negotiation strategy. That includes the Province of British Columbia.

However, the courts have taken a vastly different approach. As the Supreme Court of Canada notes in the Haida case:  "Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, " and calls for good faith negotiations reflecting the honour of the Crown.

Canada's greatest source of wealth comes directly from the lands and resources in and on these lands, while the First Nations' greatest source of poverty is the dispossession of the same lands and resources within our respective territories. These are the same lands and resources which Canada and British Columbia call  "abundant, " and which they market in foreign countries in their various respective trade missions.

In our respectful opinion, the fair, just and equitable resolution of the B.C. land question must ensure First Nations are self-sufficient as British Columbia and Canada are. Of course, the greatest source of this self-sufficiency is generated from the wealth, the lands and resources. It is, in our view, in Canada's national interest and priority to ensure that the land question is resolved fairly, equitably and expeditiously, and that it provides for real self-sufficiency for First Nations.

Unfortunately, in the last 20 years, we have witnessed that these negotiations, handled very much by an indifferent bureaucracy, without any real mandate and premised on the Crown's denial based and predetermined template and formula-driven policies, are not in good faith and fly in the face of the honour of the Crown. These fixed, unilateral and self-serving policy standards come on a take-it-or-leave-it basis. This federal framework of policies must be scrutinized and substantially revised in light of new standards established in many court decisions and those contained in the various United Nations human rights instruments including the UN Declaration on the Rights of Indigenous Peoples.

In Canada's national interest, the conduct of these negotiations should be in the Prime Minister's offices with negotiators who are given flexible and realistic mandates to ensure negotiations proceed expeditiously and that real and genuine self-sufficiency is achievable.

Finally, on the issue of recommitment — I understood that to be the word that the chair has been using — to negotiations in British Columbia, we want to confirm that we have always been committed to good faith negotiations. Our problem is the revolving door of federal and provincial politicians and bureaucrats and their ever-changing levels of awareness and commitments. Every election federally or provincially and the constant change of ministers makes this an incredibly challenging process for First Nations.

We have a much more extensive presentation that we have submitted to the clerk that outlines many of these issues. We attended meetings on January 23 to 24 with the Prime Minister and his cabinet members to talk about this policy framework that urgently and desperately calls for review and revision. We make this submission and are open to questions. We have been involved at the centre of these negotiations in British Columbia since its inception and we have this framework for negotiations. We know that negotiations are, at the end of the, day the best way to resolve these very complex issues.

With that, Chief Doug White.

Chief Douglas White, Member, Political Executive, First Nations Summit:

[The witness spoke in his native language.]

Good evening, senators. It is an honour to be here in front of you. My Coast Salish name from my father's family is Kwul'a'sul'tun; from my mother's family on the Nuu-chah-nulth side is Tlii-shin.

I would like to begin by giving recognition and respect to the Algonquin peoples whose territory we are gathered on this evening. I am the chief of the Snuneymuxw First Nation on the east coast of Vancouver Island, British Columbia, and I am a member of the First Nations Summit task group since June of 2010.

I wanted you to know why I agreed to put my name forward to be a member of the task group that is sitting in front of you today, one of the three principles of the treaty process in British Columbia. One simple idea rests at the foundation of the decision of mine and it is this: Respectful, good faith negotiations are the only way to achieve meaningful reconciliation of pre-existing Aboriginal sovereignty with the assumed sovereignty of the Crown.

About 20 years ago, when I was a teenager, I sat at the elbow of my late uncle Chief Robert Thomas when this process was created. I was called as a witness in the Coast Salish ceremony conducted in September 1992 at the outset of this process, when I witnessed Prime Minister Brian Mulroney, along with Premier Michael Harcourt, together with the leadership of First Nations in British Columbia, commit to address the serious and long outstanding business between us.

My First Nation, the Snuneymuxw First Nation on Vancouver Island, is one of the few First Nations where a treaty was made in the pre-Confederation era. There Governor James Douglas, in the early days of his government, acted in recognition and respect of Aboriginal title. The treaty made with the Snuneymuxw in 1854 was the last treaty made in British Columbia until the Nisga'a treaty in 2000. Governor Douglas's approach at the time was guided by and consistent with British law, namely, that Aboriginal title must be respected and recognized prior to any settlement or development. Unfortunately for all of us, in the years following 1854, the Crown made a critical decision in the history of British Columbia when they decided that Aboriginal title was too complicated to address and too expensive to respect and recognize.

It is this ugly policy which has such deep roots in British Columbia history that gives First Nations an even deeper resolve to uproot this unfortunate policy of denial. I am very cognizant of the fact, being present in front of the Senate today, that it was 85 years ago that Chief Andy Paull and Chief Peter Kelly of the Allied Indian Tribes of British Columbia appeared before a joint committee of the Senate and Commons to address the very same issue that, 85 years later, we are here to address with you today when they were here in 1927.

I want you to know that, while I remain firmly committed and believe that negotiations are required to properly and fully achieve meaningful and respectful reconciliation, the patience of First Nations that they have shown over the past 20 years is nearing an end. For the majority of First Nations in this process, the approach of the Crown, both federal and provincial, has not matched the expectations of 20 years ago, when we embarked on this process.

Last fall, we heard from Chief Commissioner Sophie Pierre of the B.C. Treaty Commission that it is time for the parties to take steps necessary to get this process on track, or, in the alternative, to consider shutting it down.

Echoing the decision of Governor James Douglas in the mid-1850s to turn away from dealing with Aboriginal title, last fall we heard from the Premier of British Columbia that treaties were taking too long and that her government would deepen its focus on non-treaty agreements with First Nations. This is not a long-term solution.

The Supreme Court of Canada has stated that where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims. So there is no question that we must negotiate in the context of Aboriginal title in British Columbia and reach just settlement and understanding about what Aboriginal title in British Columbia means for all of us living together in a new relationship of mutual respect and recognition.

Twenty years into this process of negotiations, we must ask ourselves the obvious questions about what needs to be different. The impoverished mandate of the Crown, a mandate that is not aimed at reconciling sovereignties, must be changed. No one expected this work to continue for 20 years. Without substantive change to the federal and provincial mandates, there is no likelihood of further success. We ask that the Crown consider what is required to achieve just and meaningful reconciliation and to build a strong and just future for all of us together.

[Mr. White spoke in his native language.]

The Deputy Chair: Thank you very much.

Is anyone else from the table going to do a presentation? We will proceed with questions, then. Perhaps I will start off as the chair of the committee.

I listened to your story of the long, involved process of negotiating these treaties and can sense the frustration. From what you have said, especially Grand Chief John, I believe you said that the First Nations Summit certainly is committed to the B.C. treaty process, but it seems like the other parties involved maybe do not share that same level of commitment because of the changeover in the political partners that you are dealing with. However, you yourselves are committed to the process. Would that be a fair statement?

Mr. John: It is part of the statement, but it is not the main concern around that. Of course, there are elections. Every time there is a federal or provincial election, the process slowly grinds to a halt in British Columbia. Negotiators are advising their counterparts in First Nations communities that, given the uncertainties of the election, they have to take a step back. That has been the pattern. Both federal and provincial elections are held at different periods of time, so everything comes to a halt. That is a significant issue, but not the main issue.

The main issue that we were very much concerned about is the approach of negotiations that we see for both Canada and British Columbia. We have some 60 tables in British Columbia, 53 that could be moving forward. Many of these have been put on the back burner. First Nations community would, for example to protect a parcel of land from being alienated because they cannot find the government to put aside that land for negotiation purposes, end up in the court. The government says,  "Well, you can either litigate or negotiate. You are litigating, so you are off the table. " It goes on.

If a First Nations community alleges that the government is not negotiating in good faith, the government negotiators pack their bags and say,  "Sorry, but until you apologize and withdraw your statement, we are not at this negotiating table. " The pattern consistently goes on like that. If you disagree with the policy framework that they come to the table with, they say to us,  "It is a political process. You can take it or leave it. " So many First Nations communities, despite the fact that they borrowed funds, end up leaving the process.

At the end of the day, as the Crown's statement that came out of the Crown First Nations gathering talked about self-sufficiency as the end goal of these treaty negotiations, with the limited cash land offers that are being made, it is impossible to achieve the degree of self-sufficiency that is necessary for those communities to survive into the future.

The Deputy Chair: If you were to make a recommendation as to how, from your perspective, things could be improved, what would you say?

Mr. John: Process. There is a commitment in the outcome statement from the January 4 Crown meeting to review this. We want to commend this committee for undertaking this study. We also are aware and have been participants in a process set up by the Minister of Aboriginal Affairs and Northern Development Canada. On the appointment of Jim Lornie as the minister's special representative to review negotiations in British Columbia, that report has been completed and was tabled with the minister by the end of November, and that report speaks to many of the issues. He did meet with and talked to pretty much all of our tables across the province to identify the concerns that they see at their respective negotiating tables, and we are hoping that that report will be available to the Senate. I am not sure. We have requested to have access to that report in its entirety. We have not seen it. We are meeting with the provincial and federal ministers as part of the principals' meetings. We are meeting next week, and hopefully that report will be made available to us.

On the common table that we have in British Columbia, so-called, all of the tables came together and identified six common issues which they see to be at the centre of the policy framework that is there and become problematic. One of those is the issue of certainty. How do you achieve certainty while respecting the recognition of Aboriginal rights and Aboriginal title to continue on into the future? On issues like compensation, for example, you cannot raise compensation as an issue at the table. Yet, at the same time the agreement calls for you to abandon that compensation claim even though you have not had an opportunity to raise that issue and discuss that at the table. These are past infringements, for example, and it is a common pattern we see at every table across the province.

Senator Lovelace Nicholas: I heard you mention, Chief John, that you went to the meeting with the Prime Minister's summit. Would you say it was a success? If so, why; if not, why not?

Mr. John: The fact that the Prime Minister met with the leadership the evening before for two hours, combined with the fact that he stayed the entire day, notwithstanding that he had commitments to speak in Davos, Switzerland, about economic matters, to me showed a sign of respect on his part. In that regard, I think it was an important educational process for himself as well as members of his cabinet who attended that. In that regard, I would say it was constructive, and it was very useful that it happened.

There were no significant commitments except to a process saying we will look at these areas, so we are looking at some of the next steps now. How do we engage in this? We have gone through this exercise in British Columbia at least on one occasion with a previous prime minister leading up to the Kelowna Accord dealing with these very same issues, and we have not been able to make any substantive progress at all.

Senator Raine: Chief John, you mentioned six issues that the common table had identified as common issues, and you just gave us two. Could you give us the other four as well so we could make a note of that?

Mr. John: The six topics that were identified for discussion were recognition and certainty, recognition being the recognition of the existence of Aboriginal rights and Aboriginal title, but certainty that the government has this concept called modification of constitutional rights and non-assertion. On the question of certainty, this issue was examined by the United Nations committee on the elimination of racial discrimination, and they came to the conclusion that they did not see a perceptible difference between extinguishment and modification, so it remains a very big issue.

The other issues include overlapping claims and shared territories between neighbouring tribes. As you can understand, we have over 203 First Nations communities and at least eight major language families in British Columbia. There are historical overlaps between tribes, and that is an issue.

With respect to the constitutional status of lands, what happens to these lands that have negotiated? Now the approach is that existing Indian reserve lands, for example, become fee simple lands within the context of British Columbia, and some First Nations choose to move in that direction and that approach, and certainly that is their decision to make.

Matters relating to governance, co-management including shared decision making, fiscal relations including own source revenue and taxation: The whole fiscal package is an important one. The approach right now on that is of course we have seen that in many agreements the tax exemption that is under the Indian Act. Over a period of time, those exemptions are eliminated under the agreements, and the question is what is the nature of this fiscal arrangement? This has become the source of significant problems as we understand with the 24 modern-day land claims agreements that are in place. There is a coalition of those First Nations who have completed those agreements, and those agreements, the own-source revenue, taxation and the funding mechanisms are problematic, at least from what we gather.

The last one of course is fisheries. Given that the Cohen commission is inquiring into the missing sockeye in the Fraser River system, the Department of Fisheries and Oceans has decided that the fishery component of negotiations is off the table, notwithstanding that the Cohen commission's inquiry into the missing Fraser River sockeye salmon in a particular year, and all other fisheries including coastal, groundfisheries, any matter relating to fisheries is off the table. It raises many concerns. For some First Nations, that becomes a deal breaker completely.

Senator Raine: The negotiations are very complex, and I can understand how frustrating it must be that you obviously feel there is not enough urgency and enough of a task force attending to this from the federal government's side. I can hear you on that.

I would like to come back on a second round, if I could.

Senator Meredith: I have three questions that I will quickly ask and then you can answer them in turn.

Chief White, as I understand it, the B.C. summit was evolved for the treaty process. However, you seem to be focusing on other issues. Have you moved away from the treaty process in a sense, or are you getting back to your original mandate of the treaty process?

Mr. White: Are you speaking of the First Nations summit itself?

Senator Meredith: Yes.

Mr. White: The treaty process was established 20 years ago, and so much time has passed. A generation has passed. The First Nations Summit organization has continued to be committed to the negotiations all through that time, but with the passage of time, there are a lot of unexpected outcomes, political, financial, legal and otherwise. Life progresses and society progresses but we are still in a 20-year-old process that has not made significant progress. There have been so many different ways over the past 20 years that we have been advocating to correct and get this process back on track.

There are many recommendations from the original task force report from 1990. One of the key ones is recommendation 16, I believe, in relation to interim measures, which we are seeing at the outset by the three parties as a key part of the overall process of negotiations. Prior to final treaty being agreed to, there would be steps along the way where First Nations and the Crown could come to some kind of agreement on an interim bases where resources would be made available earlier.

One of the biggest developments in the past 20 years has been the Haida Nation decision in 2004, which for the first transformed the legal relationship and framework in relation to Aboriginal title between First Nations and the Crown. That has caused a significant shift in attention and focus for all of us.

Senator Meredith: Does this pertain to economic development?

Mr. White: It pertains to Crown decision making in territories of First Nations where rights have yet to be established either by negotiations or by litigation. It was meant to be an interim framework. The issue before the court was whether the Crown should be constrained in any way in its decision-making processes, such as the alienation of potential Aboriginal title lands to third parties through tree farm licences and things like that, while negotiations are ongoing. The court said that the Crown cannot run roughshod over First Nations while they are negotiating with them.

It gave real teeth for the first time to the notion of Aboriginal title, notwithstanding Calder and Delgamuukw and all the other cases that describe the concepts of Aboriginal title in theory. For the first time, the decision in Haida Nation put teeth to that idea and constrained the Crown. That has lead to the reality that the primary reason for First Nations and the Crown to engage these days is related to the duty to consult that arises out of the Haida decision. For every Crown decision that comes forward that might impact upon the potential rights and title of our peoples, the Crown must engage with First Nations.

That has been a significant shift in terms of the capacity of First Nations to engage with the Crown. There is certainly a lot of opportunity to address case-by-case issues. In my opening remarks I talked about the premier's shift away from addressing the real substance of the issues between us and trying to seek reconciliation of Aboriginal title, of Aboriginal sovereignty and Crown sovereignty. That is the work that we have to focus on. We cannot have our attention turned away from these case-by-case issues. We have to be able to do both at the same time.

It is a great concern. I have had one basic question as a leader at the First Nation Summit since 2010: Is the Crown willing to refocus, renew and refresh its mandates to address the obvious reality of the treaty negotiations that we have been in over the past 20 years? A generation has passed. As a chief, I have expressed that my willingness to negotiate is clear. I am committed to that idea, but I think the patience of First Nations is drawing to an end if we are not able to get the right substance and the right mandates in the room to deal with Aboriginal title.

Senator Meredith: My next question is to Chief John and the matter of recommitment. I had the privilege of attending the Crown-First Nations gathering with Minister Duncan, the Prime Minister and other leaders. There is a sense that there is a strong commitment on the part of the government to move things forward. In your view, what does this recommitment to the process mean from the Summit's perspective?

Mr. John: It is the opportunity to discuss the standards that we see reflected in the federal policies dealing with these negotiations. These policies inform the mandate of their negotiators: First, how the negotiators receive their mandates to negotiate; and second, what these mandates are. We see many shortcomings in these. The discussion you had earlier with Minister Duncan on Bill S-6 is important because in British Columbia these issues dealing with land rights and self-government rights are collapsed into one table. Any federal initiatives that impact on those are the very same kinds of issues that are being negotiated and dealt with at the treaty negotiation table in British Columbia.

Treaty negotiation is the number one priority in British Columbia for the First Nations Summit. These First Nations have come together to find a mechanism so they can work together in advancing in a collective way those issues that are not able to move at the local level. The Crown-First Nations gathering and the commitment to review this area are important for us. We have been down this path on several occasions. Certainly, the last one was leading up to those discussions with the former Prime Minister on these issues. We are ready, willing and able.

At the First Nations Summit, the mandate is driven not by the executive elected here but is decided by the chiefs. As these issues of negotiations proceed, the quality of life of our communities is still important. We have worked with all the chiefs in British Columbia to develop plans. Like that old saying goes: You cannot fix a flat tire by yelling at it. In British Columbia, we have developed significant plans in education, health, children and families, economic development, access to technology for our communities, high speed Internet access, across-the-board energy and mining, fisheries, and matters relating to justice in a collective way and in a proactive way to help improve the overall performance of our communities.

In 20 years, we have managed to bring the graduation level rates from about 30 per cent to about 54 per cent in high school. Mind you, not all of those graduates are at the highest standard in British Columbia. Students receive the Dogwood Diploma for graduating from grade 12. Many of our children are also pushed through the system and do not have that certificate. Even though we are making progress, we have a long way to go. We are not just sitting idly by hoping that something will happen in negotiations; we have been active on the litigation front, on the international front, the Hul'qumi'num Treaty Group, for example, has filed a petition with the Inter-American Commission on Human Rights around land rights issues in the southern part of Vancouver Island.

Senator Meredith: Is there a sense that maybe some of the chiefs are holding up the process of these treaties going forward with their various demands or entitlements because there is no consensus around the table? How do you think that we can go through these challenges and ensure a smoother process? What is the role of the Summit in all of this?

Mr. White: I do not think there is a sense of that at all. The leadership of First Nations has been very diligent and committed to the good faith negotiations. They have been there for 20 years. The amount of time and effort, the opportunity costs associated with the participating in the negotiations, are significant.

Following up on what Chief John said about commitment, the expectations of the First Nations leadership and all of us 20 years ago were that the real issues between us would be sorted out. Some of the recommendations that we are setting out, the issues that the common table addressed, are all aimed at trying to get back to the original idea behind these negotiations.

It is our firm belief that the mandates that the federal and provincial Crowns are bringing to the table do not meet in any way the original expectations of the process. Two things need to take place. Process adjustments are required, but there are also substantive adjustments to mandates required.

Senator Meredith: How are you dealing with overlaps in terms of the actual process?

Mr. White: Overlaps are a very interesting aspect of all of this, because the resolution to overlaps between indigenous peoples lies firmly in the indigenous law, the indigenous relations, the pre-existing relations of indigenous peoples in British Columbia. It can be a very complicated process, but it is firmly within the purview of the First Nations. Certainly there is a need for assistance, capacity in different ways to address that, but I do not think it is something that cannot be overcome. It will require time and assistance with resources and other things.

The task group report clearly identified that the process for resolution should be in place before the conclusion of the treaty, so in some instances it is a sequencing issue, I suppose.

Senator Meredith: Thank you for that.

Senator Greene Raine has highlighted the frustrations that are sometimes presented to us here, but we wish you all the best with this process as we move forward. Again, for me it is all about the economic development that can take place once these treaty claims are settled. Much resource sharing can take place for the benefit of, especially, young people and their families.

Senator Raine: On the issue of overlap, could you comment on the situation with regard to the Sto:lo and the Yale?

Mr. John: We are aware that that agreement has been ratified in the community. We are very much aware that it was ratified expeditiously by the B.C. government for the Yale people as well as the Sto:lo people. We have heard concerns that have been expressed by the Sto:lo First Nations communities, and I think you should hear them directly on this.

It is a very complicated issue historically as well as in modern terms, in terms of relationships between families, communities and territory. I encourage you to look at this report of the British Columbia claims task force, June 28, 1991. It reads:

In exceptional cases, the parties may agree to implement the provisions of a treaty in all but the disputed territory.

The commission, where requested by First Nations, will provide advice on dispute resolution services available to resolve overlap issues.

Of course, the ultimate is for those communities to resolve these overlaps between themselves. As we have seen in the situation of the Nu-chu-nulth First Nations communities, in particular relating to the Maa-Nulth final agreement, at the eleventh hour they were able to come to some agreement regarding their respective concerns about what other people called overlap or shared territories.

In British Columbia, many First Nations are not involved in any negotiations whatsoever. They choose not to be because they are not at all confident that the government will change, through the negotiation process, their policies regarding negotiations of land rights in British Columbia. They will never participate unless the so-called comprehensive claims policies are revised and fall in line with what the Supreme Court of Canada, at the very least, is saying about what are the standards.

Some 40 cases have gone to the Supreme Court of Canada, and the position of the Government of Canada is that those cases have absolutely no bearing on these negotiations, notwithstanding the fact that you are talking about Aboriginal rights in these negotiations. The government's policy position is that regardless of what the court cases say, at the table this is our policy, this is our mandate, take it or leave it. They say it is a political process. We wanted a voluntary process for First Nations to enter into negotiations. They are taking it to a different level, saying that if you do not like it, you know where the door it.

Senator Ataullahjan: Senator Meredith touched on my question. We keep hearing about the inherent rights of First Nations being tied to realizing their economic potential. How have the delays in this process impeded your economic development?

Mr. White: Thank you for the question, senator.

The economic development of the whole region is dependent upon the resolution of this question. It is not just on the Aboriginal side that the economy is suffering for lack of resolution. You were talking earlier about Bill S-6 and the minister was talking about the economic development benefits of this statutory approach. Many analyses and studies have been done, primarily in the Harvard Project, that illuminate clearly the fact that the greatest foundation for economic development success for First Nations can be realized in the context of self-determination and reattachment to the resources that they have depended upon.

There are 203 First Nations in B.C. and they are all in very different situations in terms of their economic opportunities. They know best where the potential and opportunities lie, and the sooner we are able to address the fundamental issue of Aboriginal title and Crown sovereignty, the better for the economy of the whole province.

With the project-by-project approach, when all the stars line up there may be certain opportunities that are beneficial. It is not a long-term solution. We can see the complexity of things like the Enbridge pipeline in a context where Aboriginal title has not been recognized and resolved. It causes significant uncertainty. We need to shift out of this temporary way station of the duty to consult that is only meaningful in a context where we have not yet determined Aboriginal title. We need to shift out of that place of great uncertainty into a framework of proper relations founded on the recognition of Aboriginal title. When we get there, the economic potential of the province for First Nations, the province and citizens of Canada will be unlocked and unleashed.

The Deputy Chair: With regard to title, what percentage of land in B.C. is involved in these negotiations? Is your title to land based on traditional territories? I know that in the numbered treaty system it was based on so many acres per family of five. In your negotiations, what is the argument used to define what is First Nation land?

Mr. John: We take the view, substantiated by court decisions, that Aboriginal title has never been extinguished in British Columbia, that it exists throughout except where it has been dealt with by way of treaty. Then it is modified to exist in a certain way, the Nisga'a treaty being an example, as well as the Maa-nulth and Tsawwassen final agreements. Aboriginal title, otherwise, exists in British Columbia. Treaty 8 was extended into British Columbia in 1899, and we find throughout history that, whether it is the Vancouver Island treaties in Southern Vancouver Island because of the coal deposits that were discovered in the mid island area that were used to fuel houses and industry on Southern Vancouver Island or something else, there was a necessity on behalf of the Crown to enter those agreements as was the extension of Treaty 8 and the gold rush in the northeastern part of British Columbia. That is why we are making this connection.

We have heard the Prime Minister say that the proposed pipeline by Enbridge through northern British Columbia is in the national interest. Therefore, the concern expressed by those First Nations is, you are going through our territories and we have rights. The Supreme Court of Canada says that Aboriginal title has never been extinguished, but it is a legal interest in land wherein First Nations can make decisions about those lands. We are talking about the entire territory. We are not talking about small parcels of reserve lands here and there; we are talking about the entire territories. These decisions will have impacts.

If the Prime Minister says that one pipeline is in the national interest, surely to God that Aboriginal rights and Aboriginal title of those First Nations in the pipeline route, together with the proposed tanker traffic routes on the coast, are as important in the national interest as that one pipeline. If the government is serious about the national interest issue, then it must also resolve the land question of those First Nations in this area.

Coming back to the point that my colleague Mr. White made about certainty, it creates a whole lot of uncertainty for our First Nations communities when we cannot exercise the rights. If we go out to catch fish to feed our families or we go out hunting, we have to look over our shoulders to see whether or not the government is watching us and that we are able to do that.

How many other people in this country, when they go fishing or when they are going to get firewood to heat their homes or to have a reasonable or moderate livelihood have to go to the Supreme Court of Canada for the court to determine, yes, you have access to the resources in your territory? No one else has had to do that, but we constantly have to.

The Deputy Chair: Yes, you made it very clear. Thank you very much.

Senator Patterson: I would like to thank the presenters for a very eloquent description of the major dilemma that seems to be in place as we approach the twentieth anniversary of the B.C. treaty process, which I think is next September.

I am fortunate to have been involved in a land claim over a very large area of Canada, the largest land claim in history involving the Nunavut territory and also some other settled land claim negotiations.

One of the things that I believe drove a sense of urgency — and Senator Watt would know this better than anyone being involved in the first comprehensive settlement — was development. It was hydro and James Bay and Northern Quebec. The Inuvialuit were next with oil and gas in the Beaufort. There was a lot of resource potential in Nunavut, which is now being realized, hopefully. In Labrador, they say the Voisey's Bay nickel mine was what finished it or drew it to a conclusion after years of negotiation.

You mentioned the Enbridge project, Chief White and Grand Chief John, which has been declared to be a project of national interest. I know it does not affect all of the 61 nations that are involved in the treaty process, but it is a very big chunk of land. Does this major project and the looming threat, it seems, of litigation or conflict, confrontation of one kind or another, present an opportunity similar to what we saw driving other major comprehensive land claim settlements, an opportunity to develop that sense of urgency to reform and revamp the negotiation mandates of at least the federal government, which we will be reporting to, revamp the comprehensive claims policy? Can this looming challenge be turned into an opportunity? I would appreciate your comments on that.

Mr. John: That particular project runs directly through the territories of my people. There are assurances that have been given, political assurances that the technology is great and damage not likely to happen. The problem is that we have had assurances in the past about other projects.

In the territory where I come from, we have the W.A.C. Bennett Dam. You are all too familiar with the downstream impacts of that particular dam in the Northwest Territories and the consequences of that particular project. Then there is Rio Tinto Alcan at Kenney Dam in the Nechako River and the impacts upstream and downstream to my people from that in those areas. Together with innumerable impacts that continue and suggesting to our communities not to worry about this particular project, we will take care of it, is a concern.

Therefore, when we hear that it is in the national priority or in the national interest, we are concerned as to whether it is politically how you trigger that national interest argument in this country and what are the consequences of declaring a particular project in the national interest.

The concern from our communities is the tone. The tone at the top is always important, and if the Prime Minister says something is in the national interest, how do you take into account those interests of First Nations communities along the pipeline route?

There is an environmental assessment panel considering this proposal now. We do not know what that panel will conclude or recommend at the end. We have been through this experience; we have seen it with Taseko Mines, for example, in the Chilcotin territory. That panel recommended that there would be severe and negative impacts on fisheries and First Nations, and at the end of the day, the Minister of the Environment, then Jim Prentice, I am sure with the support of the cabinet decided that project should not go ahead. However, a revised proposal has now been submitted by that same company on that same project, and we are not sure what is going to happen with regard to that.

Yes, there are opportunities, but take care of some of these issues that should have been taken care of before. There are ways and means to address First Nations issues. The Crown, together with First Nations, as the Haida and the Tlingit people have done, they have come to strategic level land use agreements so that the First Nations communities have a say in what happens in their territories. The Tlingit, for example, have a say in the kind of development and the magnitude of development that happens in their territory. The Crown also has a say. Together, they are able to make decisions, but they are also able to benefit. This is a tool that could be used in a more dramatic way and in a greater way, but it requires resources at the front end for the governments and First Nations to come together to find those long-term, strategic-level plans by way of agreement.

Senator Raine: I want to ask you about the agreements you mentioned with the Haida and the Tlingit. Are these the type of agreements that are taking place now ahead of treaties, outside of the treaty process? Those sort of incremental agreements, I guess mostly bilateral provincial First Nation agreements, is that working or is that just delaying what you have to do in the end?

Mr. White: This is an important distinction to date between the provincial and the federal approach in terms of interim measures. It is a remarkable thing to me that if Enbridge is in the national interest, as has been discussed by the Prime Minister and others, that they have taken such a minimal approach to the duty to consult with the First Nations that would be impacted by this project of such enormous scope that it is of national interest. The idea that the duty to consult can be fulfilled by a National Energy Board process is, in my mind, ludicrous. We are dealing with significant potential impacts in the lives and in the way of life and the territories of the First Nations people at issue.

How, in this context, the federal government has not taken up the opportunity, as Senator Patterson discussed, to see this as an issue to drive a new approach of more thorough and meaningful engagement with First Nations of projects of this scale and scope is a mystery to me. I really think that if they turned their mind to that issue, they would see that coming up with agreements such as the province has put forward with the Haida Nation or the Tlingit is one potential pathway to go down, where prior to the establishment of treaty we come up with a different, more clear way of engaging about major decisions and territories.

Are they successful to date? I think they are an important first step. How they will play out over the course of time, we need to watch carefully, because I think they are an important first initiative of shared decision making throughout territories that needs to be replicated and considered by the federal government on projects such as this.

Certainly, relying upon an environmental assessment process or a National Energy Board process, through the particular lenses that those processes are aimed at, in my view, is not sufficient to deal with the reality of the potential impacts on title and rights that are represented by projects of this scale.

Senator Patterson: I was intrigued to learn that there was a special representative appointed by the minister to tackle this very same issue that we are discussing tonight. It is the first time I had heard about it. I believe you talked about Mr. Jim Lornie. We are hoping to come up with recommendations to the federal government, and this sounds like a most useful endeavour.

Was it a comprehensive consultation, in your view? We do not know what is in it, and I am not asking you to endorse it holus-bolus, but could you tell me a bit about the special representative's work and whether he engaged with all stakeholders meaningfully? If I am not going too far, I guess what I am after is this: Is this report likely to have credibility, from the calibre of the individual and the nature of the consultations?

Mr. John: The minister appointed a special representative, and it is a useful mechanism that ministers can use. In this case, the minister used that. In the earlier case dealing with specific claims, for example, which is another important issue, the minister of the day appointed me to have that discussion with communities across the country. It was very extensive.

However, in this particular case, we recommended that the special representative meet with every table — those who are in negotiations, those who have abandoned negotiations, those who have concluded negotiations — as well as to talk to the treaty commission, the B.C. government and the federal government to obtain a sense of these negotiations and where the stumbling blocks are.

As I said, we have not seen that final report. We are hoping it will be shared with us by the minister. We are not sure what it says or how comprehensive it will be. At the end of the day, we are not sure how wide he cast his net and whether or not he talked to all the parties. However, that was the recommendation we made to him.

In addition to his report, I would encourage you to take a look at the report of the Auditor General of Canada and the Auditor General of British Columbia, who undertook a similar review and exercise around 2005 or 2006 and have come up with reports. They conducted this exercise jointly, but they separately provided reports within the mandate of their role as auditors general.

Those are a couple of the key issues. I would take a look at the UN Third Committee report that was delivered several years ago. Canada is appearing again before the United Nations Committee on the Elimination of Racial Discrimination on February 22 and 23. That is on its human rights records. Of course, these matters relating to lands, territories and resources are human rights issues and ought to be dealt with within the context of these international standards.

There are a number of local bodies, and the courts, of course, have continuously examined these within the confines of what they are able to do with regard to this. We are expecting a decision from the B.C. Court of Appeal on a very important case involving Aboriginal title in British Columbia, and that relates to the Chilcotin case that was decided a number of years ago by the late Justice Vickers, which was appealed by the government to the Court of Appeal. It has been 14 or 15 months now. The court has heard the appeals and we awaiting their decision.

Senator Watt: Thank you for appearing in front of the committee. It has been a long time.

Listening to you people making your case reminds me of the land battle we had together leading up to 1982, constitutional battle.

I hear you. I also understood clearly, I believe, in terms of the difficulties you are going through. If I understood correctly, one of your largest stumbling blocks is that you feel you are not necessarily dealing with the right people because they mostly represent the government and there is no real in-between person, no referee between the two parties. I am not sure whether you have ever tried that, but in the field of accelerating your negotiations, if you could find something that you can latch on to, as my good friend Senator Patterson was indicating, that if there is a huge development that is taking place within your territory, it will be impacting your rights and your title. I guess the only thing that is understood very well by the government — or any government, for that matter, or the developers — is to pinch them where it hurts, that is, take them to court. That is an avenue, and I believe that is still available to you. You are the only one who can decide the time to take those actions. The time may be beyond your control.

However, at the same time, I have gone through this process. I have lived through the litigations, negotiations, implementations and the revelation, after the fact, after the negotiations,that certain things are not necessarily in the right place to be implemented.

As an example, what you seem to be worrying about is the question of title, access to the land, having a say in the matter that is related to your life. That is all you are standing on, it is your soil and your resources. I can understand that.

However, as you know, the government also has a policy. I had to live through that policy, and I did not like it. I did not want to go through it, but I had no choice because it was a government policy. It still exists today.

At that time in my negotiations, more than 30 years ago, it was an  "extinguishment. " Even before you sign the agreement in principle, you have to write down the fact that you intend to extinguish your right and surrender your rights in the agreement in principle, let alone in a final agreement.

When you finally reach the final agreement, they also call upon extinguishment. Today, sometimes they call it  "quick claims. " Sometimes it is called  "certainty. " However, in a sense, when you look at it and analyze all of the aspects, the way that I have proceeded and the way that you people are proceeding is not a very comfortable thing to go through, especially when you are answerable to your own people.

At times, your own people also question the validity of your decisions, especially when it comes down to the point of extinguishing your right, whatever the word that is normally used might be. They do not know what it is, but they do not mind putting it down in writing and making sure that it sticks.

I guess what I am trying to say here is that if you do manage to find an edge to use as leverage to get the negotiations moving forward, you still are going to be facing the question of clarity. That is, in a sense, extinguishment. I, for one, still do not have the clear answer for you on how we can deal with that issue.

As you are probably aware, and have been informed by your legal people, I have been working with the Library of Parliament in terms of trying to move forward in getting section 35 implemented, I have already tabled second reading. I am at the stage of second reading now on the Interpretation Act. The Interpretation Act also attaches with mandatory clarification provision. That would be sort of the beginning. That is in the hands of the government today. They have adjourned it, and I am still waiting for them to bring it back and get down to a committee level so that they can begin to start dealing with that because that is not the only instrument that we will need if we are going to get serious implementing section 35.

Implementation mechanisms have to be thought of. Timetable mechanisms will also have to be thought of. There are many different mechanics that we have to look at. You also have to ask yourself, after so many years of going through this process, do we also need to make an adjustment within, let us say, the Department of Justice? We need sensitive enough people placed in the Department of Justice to look after the concerns of the Aboriginal people. If you leave it only up to the Department of Justice people, they are not necessarily going to be representing your interest.

That is one of the issues that I thought I would transmit to you.

The Deputy Chair: Senator Watt, thank you so much for sharing your wisdom. I am wondering if you had a direct question that you wanted to ask the witnesses.

Senator Watt: I do not.

The Deputy Chair: I saw them all taking notes as you are speaking, and I am sure they are going to corner you after the meeting and ask you to continue.

Senator Watt: I hope that they will do that.

The Deputy Chair: We have gone well over our time. I want to thank the senators for asking questions and, especially, our witnesses for the frankness with which they shared their frustration and also for bringing to us the current critical situation with regard to economic development and the pipeline and how all of these things are tied together. Thank you very much for appearing before the committee.

(The committee adjourned.)