Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 8 - Evidence
OTTAWA, Tuesday, May 17, 2005
The Standing Senate Committee on Aboriginal Peoples, to which was referred the subject matter of Bill S-16, providing for the Crown's recognition of self-governing First Nations of Canada, met this day at 9:34 a.m.
Senator Nick G. Sibbeston (Chairman) in the chair.
[English]
The Chairman: I will call this Senate meeting to order. We are continuing our study of Bill S-16, An Act providing for the Crown's recognition of self-governing First Nations of Canada. We have two witnesses before us today, Professor Patrick Macklem and Professor Donald Laverdure. I will allow the deputy chairman, Senator St. Germain, to introduce them.
Senator St. Germain: Welcome to you both, gentlemen. Thank you for coming. I understand that Professor Macklem will make his delivery first with a short statement, and then he will be prepared to answer questions.
The committee should know that Patrick Macklem is a Professor of Law and a Fellow of the Royal Society of Canada. He joined the faculty in 1988. He holds law degrees from Harvard and Toronto and an undergraduate degree in political science and philosophy from McGill. He served as law clerk for Chief Justice Brian Dickson of the Supreme Court of Canada and is a constitutional adviser to the Royal Commission on Aboriginal Peoples. He was a Visiting Scholar at Stanford Law School in 1988 and at UCLA School of Law in 1992. In 2003, he was selected as a Fulbright New Century Scholar, taught at the European University Institute and was a Visiting Scholar at Harvard Law School. He is a Visiting Professor at Central European University, where he teaches comparative federalism and international human rights law. Over the years, he has advised numerous First Nations, Aboriginal organizations and governments on the legal and constitutional dimensions of Aboriginal and treaty rights.
Professor Macklem has authored numerous articles addressing Aboriginal peoples and the law, human rights, constitutional law and international minority rights. He has also authored and edited several books. The last publication received the Canadian Political Science Association's 2002 Donald Smiley Prize for the best book in 2001 relating to the study of Canadian government. He also received the Canadian Federation for Humanities and Social Sciences' 2002 Harold Adams Innis Prize for the best English-language book in the social sciences. Professor Macklem, your credentials are impeccable.
I will introduce Professor Laverdure after Professor Macklem has made his presentation and answered our questions.
Mr. Patrick Macklem, Professor of Law, Faculty of Law, University of Toronto, As an individual: Thank you, Senator St. Germain. Thank you for boosting my book sales. I have an opening statement. It may be a bit longer than expected. If it is, please interrupt me and we will go to question-and-answer period.
I will speak to the significance of the bill. Were Parliament to enact Bill S-16, First Nations across the country would be in a position to immediately assume substantial and real law-making authority over their affairs. You will likely hear from my colleague, Professor Laverdure, about how intimate the relationship is between self-government and self- sufficiency. I will not spend too much time on this point, but self-government, appropriately defined and contained, is a critical component of sustainability and sufficiency of Aboriginal communities. Many Aboriginal communities are faltering precisely because of the fact that they have little control over their destiny.
Self-government is not sufficient. Education, job opportunities, access to resources — there are many other goods that First Nations need to achieve self-sufficiency. Self-government certainly is necessary. It empowers community. It provides communities with options of their own design. It provides a community with a sense that they have a future and a sense that what this future will look like is their responsibility. It enables a community to take ownership of and responsibility for its future.
Self-government empowers individuals as well. It enables individuals to participate in decisions affecting their future. It enables individuals to claim a stake in what happens in their community. It recognizes the fundamental democratic right of the individual to participate in the formation of laws that govern his or her life. Aboriginal communities and Aboriginal people for too long have been unable to assume responsibility over their futures. Bill S-16 would change this, change this right away and change this for the good.
There are other ways of achieving greater self-governing authority. The first is by litigation. The federal government's inherent right policy recognizes the fact that the Constitution affirms an inherent right of self- government. First Nations have been litigating to try to obtain recognition of this right. Litigation has its benefits. If a First Nation wins, governments have to listen. Litigation rearranges the bargaining power a First Nation has to secure greater capacity to control its future. However, litigation is timely, costly and full of risks. It produces outcomes of uncertain application: Does one decision only apply to this First Nation or to all First Nations? What are the details that flow from a declaration of abstract right?
Another route is by negotiation. Trilateral treaty talks are in various stages of completion in British Columbia. The Nisga'a Final Agreement is up and running. The federal government has negotiated bilateral agreements with Westbank and Tlicho First Nations. There are about 20 land claims agreements in place across the country. Negotiations are also costly and untimely. They take years of time and a significant amount of investment. They also require negotiating partners. Although there have been some successes, we should be frank about the extent to which the federal and provincial governments are aggressively seeking negotiated outcomes and about the extent to which they are truly willing to fundamentally alter the status quo, on the ground, for Aboriginal communities.
The third way of achieving greater self-government is through legislation, which is the route, obviously, that Bill S- 16 takes. Bill S-16 enables First Nations to draw up a constitution and to draw down federal authority to make law. It is optional. No First Nation is required to take this step. It can draw down law-making authority that is suitable to its particular circumstances.
It is important to see that these three ways of achieving greater self-governing authority are complementary. Each offsets risks and drawbacks of the others. Negotiations can clarify uncertainties associated with litigation and legislation. Litigation and negotiation produce legislation. It is not an either/or choice. It is not a zero-sum game. Bill S-16 is a good illustration of this point. It constitutes a consolidation, a codification of approaches that have been adopted in treaty talks, proposed in federal policy, most notably the federal inherent right policy, and other approaches acquired and required as a result of litigation.
I have had the opportunity to review the testimony of Ms. Maureen McPhee, Director General of the Self- Government Branch of Indian and Northern Affairs Canada and Mr. Allan Cracower from the Department of Justice Canada. Some of their concerns I can address in answers to questions from committee members, should you so desire.
One statement by Mr. Cracower stood out. He stated that the importance of legal certainty and predictability cannot be overstated. In my opinion, he is dead wrong about this. The importance of legal certainty and predictability can be overstated. The need for certainty needs to be balanced against the need for flexibility. Bill S-16, by being enabling as opposed to mandatory, does not adopt a ``one size fits all''; it provides flexibility. Bill S-16 is far less uncertain and unpredictable than it has been made to appear.
Let me touch briefly on two areas of concern in particular: jurisdiction and membership.
With respect to jurisdiction, there is no doubt that Parliament can authorize a First Nation to enact laws in relation to matters that appear to fall within provincial jurisdiction. Bill S-16 appears to do this in schedule 2 by including the following items within the potential authority of a First Nation to enact laws: the administration of justice; the establishment of minor offences; marriage, divorce and matrimonial property; health and hygiene; welfare and other social services; wills and trusts; and natural resource management, among other provisions.
These look like matters that fall under provincial authority, and concerns have been raised that Bill S-16 would interfere with provincial authority and matters that fall within provincial jurisdiction. However, the constitutionality of vesting a First Nation with the authority to make laws in relation to these and other subject matters listed in schedule 2 flows directly and non-controversially from section 91(24) of the Constitution Act. Schedule 2 is no more constitutionally controversial than existing provisions already in the Indian Act that enable a First Nation to enact bylaws in relation to matters that appear to fall within provincial authority. The point is that these matters appear to fall within provincial authority, but they do not. Section 91(24) gives Parliament jurisdiction over matters that deal with Indians and lands reserved for the Indians that otherwise fall within provincial jurisdiction.
Professor Peter Hogg, now a Justice of the Ontario Court of Appeal, wrote that if section 91(24) merely authorized Parliament to make laws for Indians which it could make for non-Indians, then section 91(24) would be unnecessary.
The list of subject matters in schedule 2 is consistent as well with the federal government's inherent right policy, which, generally speaking, states a federal willingness to negotiate an agreement that would see a First Nation, should it so desire, assume the authority to make laws in relation to virtually all those subject matters that schedule 2 of the bill lists. In an important respect, Bill S-16 is much more modest than the inherent right policy. The inherent right policy indicates a willingness to see law-making authority over these subject matters in terms of entrenched constitutional rights, whereas Bill S-16 does not go down the constitutional road; it is only legislation.
With respect to the interaction between federal, provincial and First Nation law, as opposed to the interaction between these governments' law-making authority — the interaction between actual laws passed by these governments — the bill would render the First Nation law paramount in the event of conflict with federal and provincial law in most circumstances. It thus enables a First Nation to displace federal and provincial laws by enacting its own law.
With respect to provincial law and the displacement of provincial law, this is how the Indian Act already operates. There is nothing new here. An Indian bylaw under the Indian Act is paramount in the event that it conflicts with a provincial law. With respect to federal law, there is a little that is new, but less than it might appear. Section 35 stipulates that existing federal laws that serve compelling and substantial legislative objects in a manner consistent with the Crown's fiduciary obligations cannot be displaced. In other words, the bill enables a First Nation to displace the application of some existing federal legislation by enacting its own law on the topic. This is self-government legislation, after all, which means that the community will be governed, generally speaking, by its own laws and not by federal or provincial laws. This is not a blank cheque. The jurisdiction is limited. Important and necessary existing federal laws would continue to apply.
In regard to future federal legislation, Bill S-16, once enacted, is only federal legislation. This is not constitutional law. Parliament remains supreme. Legislation can be enacted in the future that is paramount over First Nation law. Generally, when two federal statutes conflict, the more recent one is deemed to have repealed the earlier one, to the extent of the inconsistency. As it has only statutory force, Bill S-16 does not take the dramatic step that the Nisga'a Final Agreement takes, which is to render Nisga'a law paramount, generally speaking, over existing and future federal and provincial law as a matter of constitutional right.
I will now turn to the subjects of status and membership. Bill S-16 does not alter the Indian status of individuals. Status is a function of federal law. The bill does enable a First Nation to determine who is and who is not a member for the purpose of participating in First Nation government. Individuals who are members of an Indian band, whether because of Bill C-31, federal law, a membership code that governs the band or a court decision, are members of the First Nation and are entitled to vote on a proposed constitution. Once a First Nation is up and running under the auspices of Bill S-16, it can enact a membership code to deal with future issues. There is nothing new here either. Some First Nations already have membership codes, as you know. Such membership codes, including those contemplated by Bill S-16, must respect the constitutional rights of existing and potential members of the community and be consistent with judicial decisions respecting the rights and responsibilities of membership. This is true with all laws, and not simply membership codes, that a First Nation might enact under the authority of Bill S-16. These laws must be within the law-making authority of the First Nation and they must be consistent with the Constitution and with the Charter.
Bill S-16 cannot answer all the questions lawyers might want to throw at it. It cannot specify in detail and ex ante what federal laws fall within the category of ``compelling and substantial.'' It cannot specify in detail and ex ante how specific federal and provincial laws will coexist with First Nation laws in the future. It cannot tell us what might happen 15 years from now, what might be the effect of a particular membership code on individuals. It is legislation, not a treaty. This is the way legislation operates. It balances generality with specificity. It balances certainty with flexibility. Legislation obtains life by becoming part of the law of the land. When the BNA Act was adopted, it did not tell us a lot of things. Our understanding of it has evolved and become more nuanced over time. This is the case with all statutes, whether it is family law legislation or the Criminal Code.
Bill S-16 codifies, in a modest and realistic way, most of the best practices on Aboriginal self-government that have emerged as a result of litigation, negotiation and legislation. It offers those best practices to First Nations that might not have the capacity or the resources to litigate or to negotiate. It respects the federal and provincial distribution of legislative authority. It operates within the demands of the Constitution and the Charter. It provides for extensive democratic checks and balances. It ensures the utmost in fiscal and financial accountability. On this score, it is much stronger than Bill C-7, introduced with little enthusiasm in the House of Commons some time ago. Bill S-16 provides for more consultation than Bill C-7 did. It offers real democratic participation to Aboriginal people to alter the way they are currently governed for the better. It would break the log-jam of study after study, report after report, negotiation session after negotiation session. It offers real self-government to First Nations across the country. It is a very good bill, and it merits serious discussion in both the Senate and the House of Commons.
Senator Watt: I think there are two fundamental areas that need some attention. One is a question of jurisdiction. That falls under section 35 of the Constitution Act; from time to time, it also falls under section 91(24).
The way this member's bill has been drafted is supposed to be movement in the direction of enabling legislation; in other words, law-making authority. The instrument is being examined to see how far this would go and what area of jurisdiction this would cover. Is there a possibility for the Aboriginal people to end up with an instrument that is so broad and ill-defined that interactions between the two government authorities will only be triggered after being initiated by either the territorial, provincial or federal governments or from the Aboriginal people?
How do you mitigate the conflicts that arise out of the movements of those three governments? Is there a possibility of looking at this innovatively to broaden this legislation, to not have it too defined, to have the ability to move forward in terms of wanting to sit down to negotiate? I am not sure I am making myself clear.
What I am saying is that you pointed out that there is an avenue to go to the courts at times, that that is helpful. Yes, it is true; it is very helpful at times, depending upon the nature of the issues that you are dealing with.
Is there another way to build a bridge between Aboriginal and governing institutions — the federal and the provincial governments — rather than constantly, year after year, having conflicts between them? How do we correct that conflict? The conflict will always remain there, but how do you get to that point of dealing with that conflict?
I think this is where the actual problem is, unless you want to go to the courts and have that point clarified. I wonder if you could cover that area for me. That would be helpful.
Mr. Macklem: Let me preface my answer by noting that Mr. Cracower's testimony highlighted the unpredictability and the uncertainty that he saw in Bill S-16. Any potential uncertainty and unpredictability embodied in Bill S-16 has to be viewed against the backdrop of existing uncertainty and unpredictability about the nature and scope of First Nation government now.
Litigation has rendered those questions highly uncertain. The courts have not come out and stated explicitly that there is a broad, inherent right of self-government recognized by section 35 of the Constitution. They have also come out and stated that were there to be a right of self-government, it would proceed case by case, subject matter by subject matter, in a very detailed and specific way. They have indicated, to a certain extent, that they are willing to contemplate that section 35 does recognize governance rights, but they are saying we need to proceed very carefully and incrementally. That careful, incremental approach produces a great deal of uncertainty across the country. First Nations do not know, nor do governments know, what is the nature and scope of First Nation government.
There is a high degree of uncertainty and unpredictability that Bill S-16 would clarify by codifying, through the constitution that the First Nation would enact, the nature and scope of the powers that First Nation would have in relation to its law-making authority. It would also clarify the nature of this law-making authority. It would not, at first blush, be constitutional in nature. It is law-making authority that is drawn down from the federal statute. In many respects, it is like the bylaw-making authority that an Indian band currently has; it is akin to delegated legislation.
There is an alternate way of understanding this bill that we might want to get into. It is different from delegated legislation but this would be its dominant understanding right now. It provides clarity on the nature of the law-making authority as well.
Having said that, schedule 2 has a list of very detailed subject matters that are not open to a lot of debate and interpretation about their scope and some more broadly worded subject matters, which are open. In this respect, it is like sections 91 and 92 of the BNA Act.
Some of those heads of power are quite specific and some are quite open-ended. Those open-ended clauses in particular have fuelled a jurisprudence asking: What about the nature and scope of federal and provincial authority that has been with us since 1867? My estimate is that if Bill S-16 were to be enacted, there would be an ongoing role for the courts to clarify the relationship between these three levels of government, to clarify the scope of the heads of power in schedule 2. Most of the clarification would come from First Nations drawing down these powers and exercising them, testing their limits.
A First Nation that would draw up a constitution and draw down some of the schedule 2 powers — the fact that a First Nation has the capacity to do that — would create incentives for neighbouring jurisdictions — provinces and the federal government — to come to the table and negotiate suitable arrangements for the harmonization of legislation. It alters the bargaining power and the distribution of bargaining power among the three actors. The First Nation now has the ability to draw down power and exercise that power, which creates an incentive for the provinces and federal government to come and negotiate suitable arrangements for that eventuality.
Senator Watt: To take it a bit further, if I may, surrounding the question of jurisdiction, this legislation is trying to get government to act on initiatives brought forward by Aboriginals, unless they go through the courts. It does not really acknowledge that, in a sense, or consider it as an actual item. That will always remain a problem unless we clarify the role of Aboriginal governing institutions and, by the same token, the role of the Government of Canada and of provinces.
The problem is still there. How to overcome that hurdle has always been a problem. The way I understand it, if real self-government were to materialize in the future, I think a lot of movement has to take place, in three parts: There is the Aboriginals' willingness to sit down and negotiate, the provincial government's willingness to sit down and negotiate and rectify the problem, and the same for the federal government. That will always remain as a problem until we find a way to deal with it.
Will this business of Aboriginals waiting for their time, their issues, and their bread and butter ever be dealt with unless we develop a mechanism to force the government to sit down and listen to us? Even if we go to court, government does not listen most of the time, even if the ruling is quite clear in giving instructions to government to do certain things. At times the government is unwilling to move forward, and that is a hurdle that sets back the Aboriginal people economically, socially, culturally, whatever you want to say. That is the problem.
Regardless of the instrument we come up with, we must deal with that and have a clear understanding, once and for all, of what the rules of the game are here in Ottawa, dealing with the government as an Aboriginal person.
Does section 35 have any meaning in the eyes of the bureaucrats, the politicians and the legal people? Because the unwillingness to implement section 35 is always the big problem. This is one of the big hurdles we have.
You mentioned Bill S-16, which has become stand-alone legislation, not flowing from section 35. I am not sure that is the way it should be read. I think it should flow from section 35 rather than flowing from 91(24), because that is where the inherent right to self-government is. If this is what is meant to be, let us move in a direction to implement section 35 to deal with things like this and to correct them if need be.
Mr. Macklem: Bill S-16 is drafted, as I understand it, in a way that would enable a court to interpret it as implementing legislation, implementing an inherent right that section 35 recognizes. Whether a court would interpret it that way is something to be left to the future, but it is certainly a plausible construction of the bill.
At the same time, it is also consistent to a certain extent with more traditional federal approaches to Aboriginal self- government, which is it adopts some of the techniques that the Indian Act adopts with respect to band government and section 83 and the provisions under the Indian Act with respect to the authority that bands have to make bylaws. It is purposefully going around this debate, whether it is inherent or delegated. As I read it, it is trying to go around that debate and provide a model and instrument for First Nations to either draw down or draw from their own inherent right of greater law-making authority that would be recognized in the Canadian constitutional order.
Senator Watt: Are you saying that this piece of legislation, in your interpretation, seems to go around on the issues when it should be hitting the issues head-on?
Mr. Macklem: Absolutely not. I think it is wise to have drafted this legislation in this way.
Senator Watt: In a sense, one is excusing oneself. The reason one is trying to go around those issues is because one cannot deal with them directly? Does that create a problem?
Mr. Macklem: I do not think it creates a problem. It creates a lot of solutions because it does not get hung on the distinction between inherent and delegated law-making authority. It delivers law-making authority. People can characterize it the way they want to, but it provides First Nations the ability to draw down and draw up law-making authority from the bill, from their inherent right, recognizes that law-making authority through the bill and coordinates that law-making authority with federal and provincial laws.
It is not an excuse. It is not ducking an issue. It is moving through that distinction to the other side. To go back to some of your earlier questions and comments, there are two ways of looking at the bill. One is on its own merits. Is this normatively the right thing to do? Does it provide for a balanced measure of law-making authority for First Nations? Is schedule 2 the appropriate list of powers that a First Nation should have, that a First Nation might need? Does it provide sufficient flexibility? There are a whole set of questions that go to that dimension of the problem.
Another way of looking at the bill, which is not to exclude the first but is complementary to the first, is to ask: If this bill were to be enacted, how would this bill alter the dynamics that exist among the three levels of government? What incentives or disincentives would it create by establishing the authority of a First Nation to draw down certain law- making authority? I think you are right; that is, the real task for all three governments is to implement section 35 rights, is to move toward greater self-governing authority in ways that are consistent with other constitutional obligations. The question is how to kick-start this process.
Bill S-16, from this angle, does kick-start this process because it does enable a First Nation to assume some law- making authority, which would then create certain incentives for the federal and provincial governments to start talking.
Senator St. Germain: The main opposition to this bill started with the work on it well before Bill C-31. There was always a question of membership. Membership has always been the boogeyman: ``Do not touch this because this will deny people their rights'' and what have you. The other question that has been brought up regards matrimonial rights. This has been raised by members of this committee, even as recently as our last hearings.
Obviously, you have studied all the existing legislation, regarding the Nisga'a and the various other self- governments. Tlicho self-government has recently passed but there is also the Westbank, the Sechelt and other self- government agreements that have been made with various Aboriginal peoples.
Is there anything that you can see in Bill S-16 that is inconsistent with those other pieces of legislation? As the proposer of the bill, I ask that the accepted pieces of legislation passed in regard to self-government be mirrored in this piece of legislation. We heard from Ms. McPhee from DIAND, who laid out what the department has always laid out in the past. Is there anything inconsistent with Bill S-16 in regard to other legislation that has already been passed?
Mr. Macklem: In many respects, Bill S-16 is more modest than other pieces of legislation. There are two categories of legislation with respect to governance. One category would be legislation implementing treaties and land claims agreements. Some of those land claims agreements — the Nisga'a Final Agreement, most prominently — provide for First Nation governing authority as a constitutional right. There is federal and provincial legislation implementing those treaty arrangements.
The Nisga'a law-making authority by treaty is established as a matter of fundamental constitutional law. There are treaty rights within the meaning of section 35 of the Constitution.
Bill S-16 does not state and would not be interpreted as holding that it, by itself, establishes that any law-making authority in schedule 2 is the result of treaty and automatically assumes constitutional stature. It is more modest than the Nisga'a Final Agreement. It is simply legislation. It is not a treaty and it does not possess immediate constitutional significance. There is no conflict in that respect, but it is not as transformative as the Nisga'a Final Agreement and some of the other land claims agreements and legislation that implement those agreements.
The other category of legislation that your question raises would be legislation like Bill C-31, which essentially involves amendments to the Indian Act and changes to the relationship between bands and members and that sort of thing. It was enacted primarily in the name of gender equality. There is nothing in Bill S-16 that threatens those commitments that I can see, whatsoever.
First, Bill S-16 is very clear, on my read, that the existing lists for membership are to be respected by First Nations that seek to opt out of the Indian Act and into this regime; that a First Nation would not be able to strike individuals from their membership lists or their codes who were members before the First Nation opted into this regime. Those members are protected as a result of Bill S-16.
Now, the bill does state that a First Nation can pass a membership law in the future. While it might not be able to interfere with the existing membership rights, it can pass a membership law in the future, which raises the spectre of a First Nation passing a membership law that might have a discriminatory dimension to it. The question is: What would happen were a First Nation to pass a membership law that discriminates against women or some sub-component of the Aboriginal community?
The law-making authority of a First Nation, whether it is over membership or over anything else that is scheduled to lists, would be subject to the Charter. A First Nation, like both the federal and provincial governments, cannot exercise its law-making authority in ways that violate equality rights or other Charter guarantees. Therefore, in that respect as well, Bill S-16 recognizes the law-making authority of a First Nation, but that law-making authority must be exercised in a manner that is consistent with constitutional obligations.
Senator St. Germain: The department stated that Bill S-16 makes no accommodation for the fact that provinces have jurisdiction over most lands that could be affected. Yet, we state that these are clearly Aboriginal lands as defined under Canadian law. Could you elaborate on that? This does not make sense.
The department's presentation stated that, ``Bill S-16 makes no accommodation for the fact that provinces have jurisdiction over most of the lands that could be affected. Again, provincial and federal relations would suffer the consequences.''
I do not happen to be a lawyer. That is why we are relying on people of your profession. My understanding is that if it is reserve lands, the province has no jurisdiction over it anyway. Why would they be saying this? Is there something there that I do not know and we should know about? This is not a loaded question. It does not make sense to me. People wanting to use this legislation would have a clearly established Aboriginal land base as designated to that respective nation, or band, or whatever. Why would they come up with this? This is mysterious to me. Ms. Hurley did not have that in her questions and I am befuddled as to why they bring it up. Maybe you can comment.
Mr. Macklem: The major reason why provincial laws of general application apply to status Indians on reserve land is because Parliament permits them to apply. Most provincial laws of general application apply to reserve lands and to Indians on reserve lands mainly because Parliament permits them to apply. Parliament permits provincial laws to apply when they otherwise would not apply because of the Constitution and because of federal authority over Indians.
Parliament permits some provincial laws to apply by section 88 of the Indian Act. That section incorporates provincial laws that would not apply as a matter of constitutional law, but it incorporates them anyway. It is as though Parliament says, ``We know that you on your own cannot regulate these certain subject matters because you do not have the authority to regulate these subject matters. We do, but we will let you do it. We will exercise our authority to let you regulate these subject matters.''
Provincial jurisdiction here is not really provincial jurisdiction. Provincial jurisdiction exists in most of these questions by virtue of federal permission.
Currently, those provincial laws give way when there is a bylaw passed by a First Nation that conflicts with them. This is the model here. This is why I said earlier that there is no real change here in the relationship between a First Nation and a province, although schedule 2 lists more subject matters that a First Nation can make laws in relation to than the Indian Act does. The same principle applies. When an Indian band passes a bylaw under the Indian Act regulating something on the reserve and there was a provincial law before the bylaw that regulated it differently, the Indian bylaw is paramount and the provincial law gives way. It is not something we are unaccustomed to. It is not something provinces are unaccustomed to.
The bill, as I understood the definition of Aboriginal lands, was to try to cover off situations where a reserve, technically understood under the terms of the Indian Act, would not be solely the basis of the territory of the First Nation after it opted into this regime because that First Nation might have other legal interests by treaty, by arrangement, by purchase, by restitution — technically speaking, not imagined as the reserve. There is a broader definition of Aboriginal lands to ensure those other kinds of legal interests are included within the land base of the First Nation as it opts into the new regime. My reading of Bill S-16 does not enlarge dramatically in any way the land base of the First Nation as already understood.
Senator St. Germain: Thank you. I want to apologize to Ms. Hurley. She did have the question in, and very clearly.
The Chairman: We need to move on to the next witness. Perhaps, Senator St. Germain, you would not mind introducing the witness.
Senator St. Germain: The next witness, senators, is Mr. Donald Laverdure, Assistant Professor of Law and the founding director of the Indigenous Law Program, Michigan State University College of Law. He is a faculty member of the board of the American Indian Studies Program at MSU. He is the Chief Justice of the Crow Nation, serving since July 2002. He is the Chairman of the Crow Nation Judicial Ethics Board and is an Appellate Judge of the Keweenaw Bay Indian Community. Professor Laverdure has provided expert testimony, written and verbal, before the Crow Tribal Legislature concerning local government compacts — water rights and tobacco taxes — land use and zoning, federal allotment acts and tribal land reacquisition programs, tribal tax legislation, judicial impeachment standards and processes, qualifications of tribal judges and separation of powers within tribal government.
Born on the Crow Indian reservation, Professor Laverdure writes and speaks frequently throughout the country on tribal court systems, taxation in Indian country, indigenous identity and political participation, Indian treaty rights and the legal and political status of indigenous peoples. More specifically, Professor Laverdure is an expert in taxation by, and of, indigenous peoples, the structure of tribal governments and the creation and operation of tribal court systems. He has published A Historical Braid of Inequality: An Indigenous Perspective of Brown v. Board of Education and is currently writing several other papers, including Selection and Regulation of Judges in Indian Country, Tribal Government Land Trusts and The Source and Scope of Tribal Government Tax Powers. In addition to indigenous law courses, Professor Laverdure teaches constitutional law, property, and state and local taxation.
Prior to his arrival at MSU, Professor Laverdure was a Lecturer in Law of Federal Law and Indian Tribes, William H. Hastie Fellow and Executive Director of the Great Lakes Indian Law Centre of the University of Wisconsin Law School. While in private practice, he served as tax counsel, including tax planning and representation in controversy matters, to numerous tribal governments, businesses and non-profit clients. In the fall of 2000, Professor Laverdure participated in President Clinton's White House initiative on tribal colleges and universities. He is an LL.M. candidate and received his J.D. at the University of Wisconsin Law School. He has also obtained a Bachelor of Science in Civil Engineering at the University of Arizona.
Mr. Donald Laverdure, Assistant Professor of Law, Director of the Indigenous Law Program, Michigan State University College of Law, As an individual: In the interests of time, I will go ahead and synthesize my remarks. I have part report and part statement listed in the document that I provided for the translators. I will instruct on the pages that I will discuss briefly.
First and foremost, thank you, Senator St. Germain, for that introduction. Thank you for the invitation, honourable senators, to provide testimony here today. I appreciate the invitation because you are addressing legislation that greatly impacts historically marginalized or forgotten first communities. By providing a comparative analysis of indigenous governments in the United States and evaluating some provisions of the First Nations Act, I hope to illuminate your discussions on this bill.
I direct the Indigenous Law and Policy Center, which was created to help provide experienced legal and policy services to tribal governments primarily in the United States, although that is growing, in an effort to assist them to attain their judicial, community and government goals. To date, the Indigenous Law and Policy Center has worked with approximately 20 tribal governments in the United States on a variety of self-governance issues.
I am here to provide some comments on the proposed legislation, which provides a recognition process for the self- government of First Nations.
I will skip through some of that report and give a couple of paragraphs on the context of the background about the Canadian Supreme Court.
The Supreme Court of Canada, as many of you know, has issued a series of decisions strongly affirming the rights of First Nations. Just to mention a few of the cases: the Guerin v. The Queen case with the federal trust responsibility to First Nations; the R. v. Sparrow case, which held out an analytical framework for legislation that affects First Nations' rights; and the Delgamuukw v. British Columbia case, which upheld indigenous oral histories as acceptable evidence in proving their Aboriginal title and self-government claims.
The Aboriginal and treaty rights of indigenous peoples in Canada now have constitutional status and are protected by express language in section 35 of the Canadian Constitution.
Aboriginal claims to land and self-government are increasingly asserted, as Mr. Macklem has detailed, in a number of ways: litigation, negotiations and now, potentially, legislation.
Against this backdrop of favourable court decisions for First Nations, in my opinion, the Canadian Parliament is uniquely positioned to provide a more efficient path toward a third order of government that includes First Nations with the federal state of Canada, the provinces and the territories.
I will move forward through the analysis of the Indian Reorganization Act, but I do think there are many parallels to what Bill S-16 provides. The IRA is a 1934 federal statute by Congress that also changed the ordering of various governments and it will, hopefully, provide some analysis of the jurisdictional conflicts between First Nations, other local governments and the national government.
I will skip through the land part of this report because I wish to open up the discussion to questions. However, I do wish to mention tribal courts, in particular, because of the role I serve as Chief Justice of the Crow Nation, and also the creation of many tribal courts in the United States today.
Moving to page 5 of the handout, under the subject of the judiciary, the Indian Reorganization Act model constitution lacked a separation of powers for each tribal branch of government. Most of the governmental power was vested in a tribal council or its equivalent, with little internal oversight of council decisions and often no tribal judicial system. Today, tribes continue to deal with the consequences that flow from this lack of separation of powers. Despite efforts to create legislative judiciaries, tribal governments are often criticized by non-Indians and even their own citizens for not operating an independent court system.
There have been recent efforts by several tribal governments to revise these old constitutions to create a separation of powers within tribal governments to provide the legal certainty and predictability that oftentimes businesses need, to foster and encourage an economic development climate. However, it has taken over 60 years to implement these changes by the tribal governments, and the long sought-after IRA decolonization process has just begun.
Moving forward to the judiciary part of the First Nations bill, on page 6, like the IRA model constitution, the First Nations self-governance model constitution does not call for a separation of powers or an independent judiciary. The bill does allow the First Nation to pass a law ``establishing a court or tribunal of criminal or civil jurisdiction.'' The bill also requires First Nations to provide justices enough tenure to ensure independence and ``the appearance of independence from the governing body.'' There are also other mechanisms provided for payment and impartiality. In particular, I have a significant amount of experience over internal impeachment processes of tribal judges and the selection and regulation of those judges within tribal courts in the Lower 48.
One area of concern is that the bill gives jurisdiction to federal and provincial courts to enforce the laws of a First Nation, subject to its constitution. In addition, if the First Nation decides not to prosecute an offender, the federal government can prosecute. Deviating from this report briefly, the decision to allow provincial courts to potentially review tribal court decisions in the future if this bill is passed will be problematic. That would defeat the purpose of having an independent judiciary, which is the hallmark of a stable sovereignty and one that typically provides the counter-majoritarian perspective on safeguarding individual rights within various orders of government.
Bill S-16 is generally positive legislation because it will initiate the process for First Nations in Canada to obtain a measure of autonomy in an efficient manner that they will need to develop their own federally recognized governments. However, like the IRA, the model constitution does not provide the flexibility that each tribal community needs to adequately create a government that reflects each community's norms. Moreover, each indigenous community must play a role in creating its own government; otherwise, it may be viewed as another federal tool. Most importantly, the act should be amended to require the creation of independent tribal courts — a central task and component to obtain true indigenous self-governance or, in the international framework, self-determination.
As demonstrated by Indian tribes with experience regarding the Indian Reorganization Act, changing tribal constitutions from boilerplate language to governing documents that reflect indigenous community norms can take decades — over 60 years in many cases. Moreover, federal officials have repeatedly abused administrative discretion when implementing federal policies and programs, including the Indian Reorganization Act — and possibly the First Nations Act — and the subsequent constitutional amendment process. Federal oversight, in general, is inconsistent with current international norms that support indigenous self-determination. Canada, as its Supreme Court has shown repeatedly, can prove to be a leading nation-state with respect to its treatment of its indigenous peoples by purging unnecessary federal control, by facilitating the creation of independent indigenous court systems and by providing a mechanism to efficiently pave the way for First Nations to become a third order of government.
I would be happy to take any questions on the experiences in the U.S. and my preliminary reading of Bill S-16.
Senator Tardif: On page 6 of your report you indicated that the model constitution appears concerned with the monetary affairs of the First Nations but devotes less attention to the creation of a balanced government. In that, you cite a report by Professor Cornell in which he concludes that neither cultural match nor legitimacy receives significant attention and that the legislation pays a great deal of attention to accountability and almost no attention to legitimacy. Could you elaborate on what is meant by this notion of cultural match vis-à-vis accountability?
Mr. Laverdure: Professor Cornell and Professor Kalt founded the Harvard Project on American Indian Economic Development. One of the hallmarks of a number of the elements that they provided essentially is that any form of governance must come from the ground up in order to receive this so-called cultural match. Oftentimes, providing model constitutions without enough flexibility can prevent the local community from revising or providing their views of how the government should be put forth. That is mainly a critique from a 2002 report that they had provided, perhaps on an earlier version of the bill.
Nonetheless, this bill, as I have seen it, not only provides a model constitution and opt-in process, but also says that a First Nation can pass their own constitution, but it must also have certain components in order to be approved by the Auditor General. In that way, that second ordering mechanism of providing the community to draft and take part in that process helps ameliorate any effects that might happen from a model constitution.
Senator Tardif: Do you see the implementation of this bill as having huge financial consequences? That is always the critique, that the implementation of this will carry a huge financial burden for the public. How do you see that?
Mr. Laverdure: In the United States, for example, tribal governments operate financially in primarily two ways. The first major component is from natural resource development in regard to ownership. A 1938 case provided that for all effective and practical purposes, the Indian tribes own the natural resources under the ground where they are at. The extraction component allows for independent fiscal mechanisms with which to operate their governments. The second major component to funding comes from federal grants and money set aside for the Bureau of Indian Affairs, which plays the same role as DIAND does here. They have various applications for court systems, such as drug court projects and other federal monies where the Indian communities apply for these grants and are competitive with other local governments. In that way, one could view it as a financial burden, perhaps, on the public at large. I view it as the indigenous communities taking their historic form of government and operating it in a way locally that responds to their concerns. They are typically the ones who are accountable to their own members or citizens. By virtue of that self- governance, when people make erroneous or poor decisions with financial issues they will ultimately be held accountable. In that way it is consistent with self-governance as imagined. I do not know how it would play out here once they have a constitution, how the financial component of that would occur. I would assume there would be some budget that is provided by the community to submit to the federal government for potential review and revisions and then the money would flow down for whatever program they are trying to take self-governance over. That is what we have today in the United States self-governance program.
Senator St. Germain: Professor Laverdure, you say in your conclusion that ``each indigenous community must play a role in its own government — otherwise, it will be viewed as another federal tool. Most importantly, the act should be amended to require creation of independent tribal courts — a central task and component to obtain true indigenous self-determination.''
In a lot of cases, this would be putting quite a financial burden on a smaller community that may seek self- governance through this enabling legislation. I could be wrong in this, but while we have been working on this legislation my understanding has been that most of the nations that would be taking advantage of this would be doing so to improve their economic viability, and they would be economically viable, either at the present or by virtue of this legislation. If we were to set up an independent tribal court system, that would be quite onerous as far as a financial burden on these tribes. Have you any suggestions as to how this could be mitigated?
Mr. Laverdure: In the Lower 48, we have a number of different situations with various tribes. For example, in California some of the smaller ones do not have tribal court systems. They opt into the larger court system ordering, typically state and federal courts. Many of them have decided not to create their own court systems, for whatever reason. In that way, it could be consistent with communities that have governed, found economic stability, but do not have their own court system.
There are some 560 tribal governments and I know there are 630 communities here, so in that way there are some similarities from the numbers themselves. With the Crow Nation, where I serve as the Chief Justice, we found that having our own court system and implementing our own laws and interpreting those laws is a way of preserving our culture and language and providing its own form of stability for economic development.
Because the court systems are vastly underfunded, problems have resulted from that. Some of them may be that the financial sector does not feel as comfortable having to answer to a tribal court system, for example, that is under- resourced. What we have found is that many companies have now negotiated to have any court of competent jurisdiction decide an issue. That seems to facilitate the economic investment and stability that you are looking for with this bill.
I put it out there as saying that Bill S-16 is modest in saying First Nations do not have to have an independent court system, but we found positive reasons for that to be there. That being said, perhaps that is just an illustration of the differences that occur between the two countries.
Senator St. Germain: Mr. Macklem, the question has been brought up of the involvement of the Auditor General. We put this into the piece of legislation for transparency, accountability and creditability. Have you any criticism or comment on the utilization of the Auditor General in examining the constitution of the legislation? It was brought in because, logically, our Auditor General in Canada is the watchdog as far as government expenditures and government departments, and we thought this would be a positive item. It has been questioned as to whether or not this is a legitimate move on the part of those of us who were involved in the drafting of this bill. Could you comment on that, please?
Mr. Macklem: I think it is a great idea. The more transparency and accountability is promoted, while at the same time acknowledging the need for indigenous forms of government coming from the ground up, the better. Whether it is some form of secretariat that approves constitutions and fiscal and financial arrangements, which is what the Penner report way back initially recommended, or whether it is some more contemporary office, the Office of the Auditor General looks over proposals and constitutions — I was familiar with earlier versions of this bill, and when I came across the provisions dealing with the Auditor General, I was pleasantly surprised. I thought it was an excellent idea. My response was, why not? It is optional, as I understand it. That is, a First Nation is not required to obtain approval from the Auditor General, but the mechanism is there. It struck me as a good idea.
Senator Watt: A straightforward question. When law is being passed, either by the federal or provincial governments, knowing that law will be impacting on us culturally, socially and economically, what would you suggest? How do we deal with that as an Aboriginal people if we do end up with governing institutions? How do we conduct transactions between the two governments? What mechanisms do we need within the system so that action can be taken on both sides?
Let us say the Government of Canada passed a law called a gun law, impacting Aboriginal people throughout the country, because their livelihood is going out to the country to bring the bread and butter to their table. Knowing the fact that we are being impacted so badly economically, socially, culturally and everything else, how do we react? How can we deal with the government, the authorities on the other side, on our own rights? Our own rights are not being looked at seriously enough, even though they are putting us at an economic disadvantage. That happens every day.
Mr. Macklem: That is a great question, senator. Let me attempt to answer it with two different scenarios: What would be the outcome today of that kind of initiative under the existing arrangements, and what would be the outcome under Bill S-16? Try to compare the two situations. Imagine if, let us say, a provincial law is passed that interferes quite dramatically with a First Nation's interests — cultural, economic, whatever. What can the First Nation do in response to that —
Senator Watt: If they have government institutions at their disposal.
Mr. Macklem: Right. The governing institution that the First Nation has at its disposal under this scenario would be the band council. It has four options: It can litigate; it can argue that it interferes with some section 35 rights; it can try to negotiate a suitable compromise; or it can rely on the statutory framework within which it exists. If that provincial law interferes with the bylaw that the Indian band has already enacted dealing with that subject matter in a different way, that bylaw would be paramount in the event of conflict.
Bill S-16 enlarges the options, because it enlarges the space for governance. It increases the subject matters in relation to which First Nations can make laws. If a provincial law in a Bill S-16 world were to interfere with a First Nation's fundamental interests, that First Nation could still litigate under section 35. It could argue that it is unconstitutional for the province to do what it is doing. It could try to negotiate some sort of arrangement, or it could exercise its law-making authority to displace the application of that provincial law. Whether it has that law-making authority would depend on the scope of powers that it drew down from schedule 2 and whether those powers interact with the jurisdiction upon which the provincial law is founded. Bill S-16 enlarges the set of opportunities available to a First Nation in your hypothetical question.
Senator Watt: Does that go far enough in terms of being able to initiate a bill that does not come into force until the two parties rectify the matter? You may be able to assist in this with your knowledge of the American experience. In the United States there are no problems with jurisdiction, powers and things of that nature as there are in Canada. How do you deal with it?
Mr. Laverdure: We actually do have a lot of conflict over jurisdiction in the United States. We have a couple of rules and various cases that apply in legislation. First, general federal statutes do not apply to tribes or tribal members unless it expressly says in the legislation that they do. Second, when the Constitution was passed, the states delegated their power to deal with Indian affairs to the federal government. Therefore, unless the federal government specifically says in a statute that the state can legislate over Aboriginal lands or tribal members, they simply cannot, and it would go to litigation if they attempted to do so.
Senator Watt: This is only based on delegation authority?
Mr. Laverdure: Local governments would have no power in the area; it would be only a tribal issue. That being said, are there areas where they cannot quite fulfill the self-governance by being able to provide the services locally to themselves? Often the mechanism is through local compacts or agreements between the First Nation — the tribal community — and the local government, saying that they want water and sewer services and, as a government, they will enter into negotiations under their constitution in a compact for those services. They may say that they want to run their own program, but will ask us to make our system available to them.
Those types of things are available whenever you have legislation that may affect this.
Mr. Macklem: Your question points to a very deep dimension of the Canadian federal system. Taking First Nations out of the picture for the moment, a simple definition of Canadian federalism is that we have two orders of government, each relatively sovereign within its sphere of authority, with certain rules to deal with conflict. A richer definition of the Canadian federal system would include all sorts of arrangements, conduits and conversations that the two levels of government have because they have sovereign spheres of authority, i.e., federal-provincial negotiations, opportunities for consultation and discussion and federal-provincial agreements that are not strictly speaking law but, nonetheless, facilitate the operation of the federal system.
The fact that First Nation governments have not been recognized as part of the federal order has meant that these less formal, more substantive arrangements between the federal government and the provinces, on the one hand, and First Nations, on the other hand, have not had the opportunity to develop. We are at the very beginning of understanding First Nations as possibly comprising a third order of government. The federation has not had the time yet to develop informal, more substantive relations, trilateral relations, that would enable consultation and discussion between these various political actors before law is passed. Because we are very early in this evolution, we do not have these other aspects of the federal system, which I think your question highlights.
Senator Watt: Does that mean that we will be waiting another 100 years before we get to the crux of the issues with which we need to deal?
Mr. Macklem: No. It means that progress on securing a certain legal status for First Nations in terms of law-making authority will take us on the road to a much more sophisticated constitutional and legal relationship among the three orders of government, which will produce the practices, conventions and norms that are needed for a rich understanding of the federal order that would include First Nations.
Senator Watt: So we have our work to do.
Mr. Macklem: Absolutely.
Mr. Laverdure: In the United States, we do not have a constitutional provision that recognizes tribal governments. Despite not having this constitutional recognition, we have operating governments on many levels, and they do have legal and political recognition, and that has been preserved largely by the Indian Reorganization Act of 1934. I think that Bill S-16 could potentially trigger the same types of presumptive legal and political status of players in the orders of government as has played out over the past 70 years in the United States.
The Chairman: I appreciate that, with regard to First Nations achieving self-government, you look probably only at the legality and constitutionality of the provisions in the act. However, from a First Nation's point of view it is very cumbersome. Under clause 4(5) we see that a proposal shall contain the identity of the First Nation, the name proposed for the First Nation, a description of the lands of the First Nation, details of the treaties and agreements previously entered into, a description of the tribal patrimony and, eventually, a copy of any report received from the Auditor General.
It seems to be a cumbersome process. As I recall, one of the criticisms of Bill C-7 by First Nations was that it was a cumbersome process.
It also might be said that there is an attempt by government to make us like the Canadian government. I appreciate one of the big points, or one of the provisions, of self-government is the accountability factor. The federal government is very concerned about the accountability factor, so I am wondering if you want to comment on that? Have you looked at that aspect of whether maybe it is too cumbersome, an attempt to box in First Nations and make them just like the rest of Canadians, taking away their individuality, their uniqueness as First Nations?
Mr. Macklem, I look to you because you are the Canadian expert in this area, in a sense, and may have some thoughts on this.
Mr. Macklem: It has been a while since I have reviewed Bill C-7 and the debate surrounding it, in particular the argument that it is cumbersome, rule-bound and top-heavy.
My view about Bill C-7 is that its problems did not lie so much in what it proposed to do, but more in what it was not talking about, what it was not doing. It was proposing relatively very little but with a lot of cumbersome requirements, whereas Bill S-16 is real, substantive change.
For a First Nation to move out of the Indian Act and establish a constitution with law-making authority over the items listed in schedule 2 is a dramatic change for the community. It has a degree of permanence to it that calls for a high level of procedural attention. Therefore, it is technical; it is cumbersome. There are many technical requirements and hoops and measures that a First Nation has to go through before opting out of the Indian Act; but that is a serious decision with serious consequences, so I think the procedural intensity of that process is warranted.
Imagine a First Nation that is contemplating this move. It will have to collectively debate the merits of the opting out; it will have to look at itself very closely. It will have to look at its resources and its financial base and the monies that would be transferred to it, which the Crown currently holds in trust. It will have to ask itself: What can we afford? Can we really afford to do this? What powers can we truly afford to exercise? What powers do we truly need to draw down from schedule 2? What will be the face of our future in terms of governance?
These are very serious questions, and there are strict super-majority rules dealing with the enactment of the Constitution, and certainly some fiscal and financial accountability requirements there that I think are entirely justified, given the gravity of the decision.
The Chairman: I notice that the bill also introduces a couple of definitions, which are unknown or not part of the current Canadian court definitions that we know. I refer to the definition of ``Aboriginal title'' and it reads: ``Aboriginal title with respect to land means a First Nation's permanent interest in the land.''
On the next page, it says: ``First Nation means any body of indigenous people who have Aboriginal lands and are recognized as a nation, tribe, band or other body of Aboriginal people.'' Also: ``First Nation means any body of indigenous people,'' — that term, ``indigenous people,'' is new. I am wondering whether these new words may cause difficulty. I can imagine courts spending a lot of time defining what is ``permanent'' and what is ``indigenous.'' Do you see that as a problem at all?
Mr. Macklem: I notice that similar questions were asked by Ms. Hurley and they are good questions.
Let me deal with the ``First Nation'' definition first. That definition would capture, as I understand it, First Nations that are operating under unique governance arrangements produced by that first-cut agreement. I am thinking in particular of the Sechelt First Nation in British Columbia, which formed the basis of another question by Ms. Hurley: How would the Sechelt First Nation fit within Bill S-16? Does Bill S-16 deal only with Indian bands that are uncontroversially regulated by the Indian Act, or what about First Nations that have some sort of treaty or special governance arrangement? Unless there are provisions in the legislation dealing with those First Nations that have unique arrangements, my understanding of this definition is that Bill S-16 would be available to a First Nation, like the Sechelt First Nation, were it to want to exercise greater law-making authority. The first dimension of that definition is to enlarge it beyond those First Nations that are uncontroversially under the Indian Act to other special situations like that of the Sechelt.
The use of ``indigenous people'' would key to international law and international indigenous rights and definitions that are emerging in international law concerning the rights of indigenous peoples. It would key to that jurisprudence to deal with problems domestically for First Nations or Aboriginal communities that may, for one reason or another, not be completely recognized as an Indian band under the Indian Act or as a First Nation or as an Aboriginal people under section 35. It would try to link international conceptions of indigenous peoples to deal with these sorts of ambiguous problems that we might have on the ground.
One dimension of this definition is that it is land-based, so it does restrict the application of Bill S-16 to First Nations that do have some kind of land base. Therefore, built into the definition of ``First Nation'' is this requirement of any body of indigenous people who ``have Aboriginal lands''; Bill S-16 does not address an Aboriginal community that has no territorial base. That may be a problem for some First Nations across the country but is not one that Bill S- 16 tries to answer. It is really aimed at First Nation communities that do have a territorial base.
With respect to title, it struck me as odd that the definition of ``Aboriginal title'' would be in this bill. My explanation for its presence is that a First Nation may have constitutional rights to certain territory by virtue of section 35 of the Indian Act that might not be treated as reserve lands, strictly speaking, within the meaning of the Indian Act. However, that First Nation wanting to opt out of the Indian Act to then come under the regime of Bill S-16 would be able to claim not only its reserve but also lands to which it holds Aboriginal title as a matter of constitutional right. It would be able to claim those lands as a territorial base for their new governance structure under Bill S-16.
My guess is that the drafters tried to make the definition of ``Aboriginal title'' as close as possible to the definition used by the Supreme Court of Canada under section 35. It tracks closely with the definition that the court has given in Delgamuukw v. British Columbia about the nature and scope of ``Aboriginal title.'' Any changes, modifications or elaborations of the definition of ``Aboriginal title,'' under section 35, would have to be taken into account in implementing and applying this particular definition. Therefore, this legislation would have to respect the evolving definition of ``Aboriginal title'' in constitutional matters. It would work hand in hand with the court's jurisprudence.
Senator Tardif: I was taken by Mr. Laverdure's comments that any decision made by a First Nation could be appealed both federally and provincially, that this was a significant limitation of the First Nations Act and that the way to proceed would be with an independent tribal court system.
Would Bill S-16 allow the flexibility for that in the future, because we might not want to move in that direction now? This is a work in progress but if it were adopted, would it be flexible enough to move to an independent tribal court system in the future? You said that it is modest in some respects.
Mr. Macklem: My understanding of Bill S-16 is that it creates a right of appeal to either a provincial or a federal court, depending on the issue in question. Therefore, provincial courts of superior jurisdiction, such as the Ontario court system, would hear an appeal of a First Nation's court decision. Eventually, such appeals could be heard by the Supreme Court of Canada if leave were granted. Were Bill S-16 enacted, you would have to amend the legislation to close the route of appeal to provincial courts. That would require legislative changes in the future. I am less concerned about these different routes of appeal than my colleague is. We are starting from a position where we have no First Nation court system, whereas the United States has quite a history of tribal courts.
As well, we are starting from a different system of courts in Canada than in the U.S. where they have state and district court systems. We are accustomed to having provincial courts of superior jurisdiction deal with certain matters and the federal court deal with other subject matters. We also have appellate courts, although I am not saying the United States is not accustomed to appellate courts that show a degree of deference to findings of lower courts and rulings on certain questions of law. Even though there would be appeals from First Nation courts, were they to be established, those appeals would look quite similar to the existing system of courts. It would be entirely appropriate to have the Federal Court of Appeal and the Supreme Court of Canada oversee the decisions of a First Nation's court. There is a risk of fitting First Nations government too closely into the constitutional order but there is also a risk of excluding it from the constitutional order. A balance must be struck between autonomy and integration, and whether there are one or two routes of appeal does not concern me as much as it might concern my colleague.
Senator Watt: I have one question on an issue that you raised — ``scoped down for the reserve.'' In this draft of Bill S-16, it might be in the interest of the reserve and adjacent to the reserve, although it would not be within the boundary of reserve law-making authorities. Does the bill take adjacency into account? Does it take into account the economic and social purposes of the surrounding areas, such as fishing, that are adjacent to the reserve? Does the bill cover those interests or is it scoped down too much for the reserve? How do we make improvements if that is the case?
Mr. Macklem: Generally speaking, the law-making authority of a First Nation under this bill is territorially restricted in that there is territorial jurisdiction. A First Nation can make laws governing activity on the lands of the First Nation.
Senator Watt: Do you mean on the reserve?
Mr. Macklem: They can make laws governing activity on their territory. It would not state the term ``reserve,'' which is why I am being resistant to using it.
Senator Watt: In a sense it is a reserve.
Mr. Macklem: In a sense it is a reserve. A First Nation law would not have extraterritorial effect, although there are one or two exceptions. One is with respect to certain family law matters and the other is with respect to education, where the jurisdiction is personal and can extend beyond the reserve in certain circumstances. Generally speaking, it is territorially restricted.
Senator Watt: If a provincial minister of education normally has a disallowing power under the Constitution, how would that be dealt with by this proposed legislation? Would the reserve or the band government have the power rather than the minister having the disallowing power in respect of language of instruction? What would happen in that case?
I live with a modern treaty. In many ways the Inuit are different from natives on the reserve in that the Indian Act applications do not necessarily apply at times to the Inuit. I am from the Arctic and that is why I raise these questions on the territorial aspects of the bill. I come from a large piece of territory rather than from a reserve. This bill could have implications for daily life if it were enacted without taking that into account. It could be harmful to the Inuit.
Mr. Macklem: Current provincial laws dealing with educational activities on a reserve could be displaced by the exercise of a First Nation's law-making authority over education.
Senator Watt: Could that be done only by a side agreement?
Mr. Macklem: Schedule 2 authorizes a First Nation to draw down law-making authority with respect to education on the lands of the First Nation.
Senator Watt: The power would be in the hands of the First Nation in question.
Mr. Macklem: Yes, but it does more than that. With respect to provincial laws that deal with educational matters within the territory, the First Nation in question could enact its own laws dealing with education, which, if it so chooses, would displace those provincial laws. In that case, the minister would have no more authority over education matters on the reserve.
Education is one of the few areas where the exception governs such that there is some extraterritorial dimension to a First Nation's authority to make laws in that respect. Clause 22 of schedule 2 also states that a First Nation can make laws in respect of education of members within or outside those lands. This is an example of where there would be a need to have the processes of harmonization arise. If a First Nation does pass a law in respect of education of its members off territory, then that law would need to be harmonized with provincial laws that might also govern that activity.
Bill S-16 sets up a default rule whereby a First Nation's laws, when a conflict occurs, would be paramount over provincial laws. That rule would be only that and would most likely create incentives on both sides to sit down and negotiate some appropriate arrangement to harmonize the competing interests.
The Chairman: I thank Mr. Laverdure and Mr. Macklem for their testimony today, which will help the committee in its deliberations. The committee has dealt with numerous First Nation self-government bills over the last few years, and certainly there will be more.
The committee adjourned.