An Act to amend the Corrections and Conditional Release Act and the Criminal Code

This bill was last introduced in the 37th Parliament, 3rd Session, which ended in May 2004.

Sponsor

Anne McLellan  Liberal

Status

Not active, as of Feb. 23, 2004
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Criminal Code
Government Orders

May 5th, 2010 / 4:50 p.m.
See context

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, I want to congratulate the member on an excellent speech. He is absolutely right when he says that Steve Sullivan has criticized the government. After all, Steve Sullivan was the government's choice as the first Federal Ombudsman for Victims of Crime.

The wheels are coming off this tough on crime bus that the government is driving because, in the last week Steve Sullivan criticized the government. One of the ministers had to admit that rather than a $90 million cost on the two-for-one sentencing the cost was going to be $2 billion. Now we have information that perhaps the cost for Bill C-19 might be as high as $783 million if we add an extra 15,000 people into the prison population. That is a cost that is going to be borne by the provinces, by the taxpayers in those provinces.

In its budgetary documents, has the government budgeted for these projections? The government knows what the cost item is going to be for bills like this one. Could the member tell us whether the government has any plans for adding these amounts into its budget for next year?

First Nations Fiscal and Statistical Management Act
Government Orders

May 10th, 2004 / 3:35 p.m.
See context

NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, I welcome the opportunity to join in the debate on the subamendment put forward by the member for Davenport. I am pleased that he moved it because he took the words right out of my mouth. This issue should be re-debated and a new round of genuine consultations should take place if we are to move forward with the so-called new fiscal relationship with first nations and aboriginal people.

The subamendment to the motion specifically speaks to full consultation with first nations leaders. I disagree with the parliamentary secretary who cited some examples. That consultation has not taken place.

The parliamentary secretary said that drafts of what the government was going to do had been sent out to all kinds of first nations leadership. Consultation, in its strictest definition, does not mean telling people what we are going to do to them. The word consultation in Webster's includes some accommodation of what we have heard. It requires an exchange. It would not meet the legal definition. To simply announce to people that this is what we are going to do to them as of April 1 or as of the new fiscal year and then ask them what they think about it would not meet the test of consultation. To be considered genuine consultation, there has to be accommodation of the other party's concerns.

My hon. colleague from Lac-Saint-Louis cited Sparrow, a recent Supreme Court ruling along those lines, that speaks about what full and reasonable consultation is. He also mentioned Delgamuukw, which was another recent precedent setting authority from the Supreme Court of Canada. I for one was very pleased to see the reference to full consultation in the subamendment from the member for Davenport.

To perhaps clarify what the chronology was in the lead up to the introduction of the bill, there seems to be some misunderstanding and I would go as far as to say some misinformation put out by the parliamentary secretary and those promoting the bill. Let us back up a bit and review the chronology. Then people can judge for themselves whether they really consider that true consultation has taken place.

The concept of enshrining these four fiscal and statistical institutions into federal legislation was first considered at the Assembly of First Nations annual assembly in Halifax in the summer of 2001. I was there as was the then leader of the New Democratic Party, the member for Halifax. The draft resolution supporting the concept was voted down at the convention. The idea was floated around and voted down at that assembly. It did not garner 60% of the vote at the time.

The small group of first nations who were in favour of the concept made various procedural threats, and I was there to witness this. They included the removal or the impeachment of the assembly chairperson. They were challenging the chair because they were disappointed that their initiative failed on the floor.

In the interests of good relations, some chiefs generously agreed to let the concept on the institutions carry on, but with a very strict proviso that consent was given subject to the explicit condition that any draft bill had to go back to the Assembly of First Nations assembly for acceptance, rejection or modification.

The idea was voted down. A small group of chiefs felt so strongly about it that other chiefs said that they would take the concept further on the condition that nothing would be put in place and no legislation would be approved until it came before the assembly again and was ratified and approved.

That is an accurate chronology of how it was introduced and how it came about at the Halifax assembly, and I was a personal eye witness to that. Sadly, there has been a marked reluctance to honour that commitment to bring the draft back to the assembly for an up or down vote.

Various procedural moves have been made since the summer of 2002 to prevent first nations from having their say on the bill. The supporters of the bill, who apparently have been financed very well by INAC to promote the bill, have embarked on a cross-country campaign to push the merits of the bill and to make it look like there is broad national support.

I am critical of that. I am critical of the fact that funding has been taken out of the core aid budget of INAC to create these four new financial institutions without the enabling legislation ever being passed. I am further critical of the fact that the employees of those four new fiscal institutions are being paid to travel the country to lobby MPs to support the bill. Talk about the cart in front of the horse in this case.

The enabling legislation was never passed to create these institutions. The Minister of Indian Affairs went ahead and created them anyway. Then he let the new staff of these institutions travel the country promoting the creation of the various institutions. It really is an insult to any kind of due process that one might expect.

Let me talk again about the level of support across the country. We have heard all kinds of statistics and figures about what percentage is in favour and what percentage is opposed. Let us be clear that the hard-core support for this bill is probably in the range of 30 first nations, virtually all from British Columbia.

I was at the Squamish assembly to which the parliamentary secretary made reference. The member for Saint-Hyacinthe—Bagot, the Bloc Québécois critic for aboriginal affairs, mon frère autochtone, as we call each other, and I went to Squamish and attended the assembly with the express request to the assembly to give us some direction. We told the chiefs assembled there to please give us some direction, yes or no, did they or did they not support Bill C-19, as it was called then, Bill C-23 as it is called now.

It came up for debate on the assembly floor. We sat in the observer section and watched a very passionate and fulsome debate. I wish we had that standard of debate in the House of Commons sometimes because there was a legitimate exchange of strongly held views. In the final analysis, for the third time the Assembly of First Nations voted down Bill C-19, which is now Bill C-23. We had our direction.

In October 2003 the Assembly of First Nations met and dealt specifically with this issue and once again rejected it on the basis as cited by my colleague from Lac-Saint-Louis. I have the resolutions here. They are complex and I would be happy to table them to be entered into the record after the fact.

Basically the “whereas” clauses point out that the proposed bill is flawed and cannot be corrected by mere amendments. It is inconsistent with the previous mandates of the Assembly of First Nations resolutions 596 and 4998. These are making reference to previous years when there were efforts to revisit the fiscal relationship with the federal government. These resolutions were still in full force and effect. The bill does not recognize first nations' inherent right to self-government. If anything, it interferes with the unilateral right to self-government and imposes the will of the state on first nations in contrast, we believe, to the inherent right concept of section 35 of the Constitution. The provisions contained in the bill violate and infringe upon aboriginal and treaty rights and will worsen the status quo, in the opinion of the Assembly of First Nations. The proposed bill violates historic nation to nation, and Crown and first nation treaty relationships. Furthermore, it violates the core essence of this relationship, et cetera.

It is abundantly clear that the parliamentary secretary is either mistaken or misinformed about the level of support for this bill and the actual historical fact about how the bill was introduced, debated and rejected summarily, not once but three times, at legally constituted gatherings of the Assembly of First Nations.

Having said that, I can only speak to the subamendment in the context of this speech. Let me make it abundantly clear that there is such misinformation abounding about this bill that it is incumbent on us to send it back for further review and consultation.

There are very serious implications regarding the constitutionality of the bill. What would be the point in our moving forward with the bill if we thought it was going to be challenged and ultimately struck down on the basis of constitutionality?

One of the aspects of the bill that most offends first nations is the alleged optionality of the bill. My colleague from Churchill moved I believe it was no fewer than 72 amendments to the bill when it was Bill C-19. All but two of them were rejected by the House. There were efforts made to remedy and correct the bill by amendment at the committee stage and at third reading stage until the session ended and the bill had to be reintroduced in the new session.

The federal government, or INAC, the government side, made some amendments. One of them introduced a schedule at the back of the bill saying that those first nations who choose to avail themselves of the aspects of the bill may sign on to the schedule. The government thereby tried to imply that this was optional and it would only apply to those who signed on to the back of the bill.

The alleged optionality of these three institutions is completely misleading. In fact, they are statutory national bodies that will affect the rights and interests of all first nations in Canada whether or not they are added to the schedule. If anything, the schedule model makes things worse. It is important that we have a chance to revisit this because the schedule model perversely guarantees that these important national institutions will be perpetually controlled by the small number of first nations who are strongly in support of Bill C-23 and who sign on. It affects all first nations.

Let us not ignore the budgetary aspect of it. The financing of these institutions will come from the A-base budget of INAC. I believe it is $25 million a year to start with. This would come right from money that could have been spent meeting the basic needs of other first nations that are not signatories. Whether or not they are signatories, it is money that would have otherwise been spent, hopefully, improving the quality of life of first nations on these institutions.

Let us look at the tax commission. This federally appointed body would become the czar of all future on reserve property taxation bylaws or laws. In the future, if this bill is passed, all first nations in Canada that want to develop on reserve property taxation laws and systems will have to seek the approval of the federally appointed commissioner.

How can it be said that they are not affected by it? Even if they are not signatories to this bill, any move they make in terms of property taxation will have to be approved by the federally appointed commission. It is a myth to say that it is optional. Whether they choose to stipulate themselves to this specifically by signing the schedule or not, they are certainly affected by this new institution. All such first nations will have to submit their annual property tax budgets to the commission for approval, et cetera. There is no optionality at all. It affects the rights and interests of all first nations.

I hope we are making that clear. I hope the parliamentary secretary is listening and furthermore, that he understands. There seems to be a wilful blindness on the part of the government members to listen and to hear what they are being told not just by me, and I almost expect them to not listen to me, but they are not listening to what they are being told by the very people whose lives will be affected by this bill.

Earlier I said there are none so blind as those who will not see and none so deaf as those who will not hear. There seems to be a deliberate wilful blindness by those who are so determined to ram this bill through that they will not listen to reason, logic and compelling arguments to the contrary. They will not listen to the most compelling argument of all, that first nations people are vehemently opposed to this bill. The overwhelming majority of them are vehemently opposed to this bill.

I cannot express strongly enough how disappointed I am that in this day and age in the year 2004, the House of Commons of Canada is seized of a bill that seeks to impose our will on sovereign nations, or what we view as sovereign nations, independent nations, first nations. This is not the actions of an enlightened House of Commons in 2004. This smacks more of something of the last century and in fact, the century before that.

The most disturbing strong arm component of the amended Bill C-23 is directly linked to the financial management board. This component is found in clause 8 of the bill. Communities that do not voluntarily join the Bill C-23 schedule are not permitted to pass bylaws or laws dealing with the critical area of financial administration.

Again, how is this optional? This is the analogy we used about a driver's licence. A driver's licence is optional until a person wants to drive a car and then it is not optional any more. This bill is optional unless a community wants to pass bylaws and laws dealing with the critical area of financial administration.

Non-believer communities, those that do not sing hallelujah and sign on to this will be restricted to the narrow list of bylaw topics that are currently under section 81 of the Indian Act, which list does not include financial administration.

If a first nation wants to exercise what we believe is a sovereign right as an independent first nation in matters regarding financial administration, it has to join the club. It has to sign on. It has to put its name on the schedule. Where is the optionality in that?

Local financial administration is a matter of intimate local government. We believe it has to be customized from community to community. Communities should have the right to have that local government authority. Yet the effect of clause 8 of the amended Bill C-23 is clear: only opt in or scheduled first nations can pass financial administration laws. These scheduled first nations then become perpetually subject to the federally appointed opt in institutions. First nations that do not opt in effectively forfeit a key area of local jurisdiction, that is, their financial administration. Again, where is the optionality?

One of the fears that has been brought to our attention is we have all been critical of this new burgeoning industry of third party management where Liberal friendly accounting firms get the contracts to handle the affairs of first nations that overspend by as little as 8%. We heard examples today of the gun registry that overspent by 50,000%. Yet, if a first nation overspends its budget, if it runs into financial difficulties by 8% in the deficit, the federal government can swoop in and put it under trusteeship under what we call third party management.

One of the fears now with the establishment of this management board is that the government will assign the third party management duties to the appointed board. A federal government institution appointed by the minister will now be in control of all of those communities that are under third party management. We might as well go back to the days of the Indian agent because the minister of Indian affairs will be the ultimate Indian agent as more and more communities fall into third party management because they cannot meet the basic needs of their constituents with the paltry budgets they get. They overspend. They rob Peter to pay Paul because they are tired of saying no to everyone who comes to them with a legitimate concern for new housing or to send their children to university.

Some chiefs and council do overspend their budget by 8% and boom, down comes the heavy hammer of the government to put them under third party management. Now that third party management can and may be directed to the newly constituted management board, an instrument of the minister.

How fair is that? It is a catch-22 for first nations who will swallow their pride and join the Bill C-23 schedule in order to obtain from Canada the rare privilege of being able to pass their own financial laws.

It is an extension of the Indian Act. It is an extension of the colonialism that we find so offensive to begin with. The acquired jurisdiction will be very restricted. They will still be limited as to what financial administration laws they will be permitted to institute.

All financial administration laws will be subject to the unappealable veto of the federally appointed management board. There is no appeal process. If the federally appointed management board says that it does not think a certain type of financial administration bylaw should be introduced, there is no avenue of recourse. There would be no appeal. It is fascist.

Some of the most draconian measures of Bill C-23 are designed to prop up the credit worthiness of the authority, apparently at almost any cost.

In closing, from a legal point of view, Bill C-23 has fundamental constitutional flaws. From a policy point of view, the tax and borrow obsession of the bill is unresponsive to the fiscal and program reality of all but a handful of first nations. That is why there are only a small number of first nations who wish to avail themselves of these institutions.

First Nations Fiscal and Statistical Management Act
Government Orders

May 10th, 2004 / 3:30 p.m.
See context

Liberal

Clifford Lincoln Lac-Saint-Louis, QC

Mr. Speaker, it seems to me that it is a reverse argument to say that because there have been no votes since previous resolutions, then the resolutions do not have force any more. It seems to me, if there had been a change, surely the first nations would have passed a resolution to say that they accepted the bill today. Everyone I have spoken to, my information is they are totally opposed.

The member mentioned Chief Roberta Jamieson. We can ask her and she will say that she is as vehemently opposed today as she was then. The many chiefs who I have spoken to tell me exactly the same thing. Their minds have not been changed by the amendments. In fact they suggest that the amendments are purely, in their own words, window dressing.

As I see it, the resolutions still stand. There have been resolutions duly passed. The special chiefs assembly on November 19, 2002, and it concerns the draft legislation on fiscal and statistical institutions, not anything else, said:

  1. the proposed Bill is flawed and cannot be corrected by mere amendments; and--

Those were their own words.

  1. the proposed Bill is inconsistent with the previous mandates of the Assembly of First Nations, Resolutions 5/96 and 49/98; and does not recognize First Nation Inherent Right to self-government, and the nation-to-nation relationship; and

  2. the provisions contained in the Bill violate and infringe upon Aboriginal and Treaty Rights and will worsen the status quo; and

  3. the proposed Bill violates the historic Nation-to-Nation; Crown-First Nation Treaty relationship; furthermore, it violates the core essence of this relationship...

This resolution was carried 81 for, 10 opposed and 2 abstentions.

There was a further resolution of the Special Confederacy of Nations, Resolution No. 1/2003 on February 20 and 21, 2003. This one carried 37 for, only 2 opposed and zero abstentions. It said:

FINALLY BE IT RESOLVED that the AFN Special Confederacy of Nations hereby direct the National Chief to make a clear, unequivocal public statement to the media opposing the Fiscal and Statistical Management Act (Bill C-19).

It is very obvious that these resolutions still stand, unless they have been counteracted or withdrawn. They have not been withdrawn.

As I said, I spoke to some of the chiefs who took part in these deliberations, as I am sure my colleagues from Winnipeg Centre, Churchill River and others have done. They say that their minds are still exactly at the same stage as they were when these resolutions were passed.

One of the resolutions clearly said that mere amendments would not fix the problem, that the bill was flawed in its very core and substance. This is how they feel. They are totally and adamantly opposed in their great majority, and we should take this into account. We should renew our negotiations with them. We should speak to them again. We should listen to them more intently. By going ahead regardless, we might have a bill but it will be a bill that will not be accepted by the very people it is designed to impact.

That is totally wrong for us to do as parliamentarians. We do not have the final answers on the rights of people who are not there to speak for themselves. This is why they speak through resolutions and the media. We have to listen to them. I beg my colleagues on all sides of the House to listen and adopt the subamendment presented by my colleague from Davenport.

First Nations Fiscal and Statistical Management Act
Government Orders

May 10th, 2004 / 1:50 p.m.
See context

Liberal

Don Boudria Glengarry—Prescott—Russell, ON

Mr. Speaker, I never suggested that the number was that which the hon. member said. I only suggested that the basis for the argument in the previous speaker's comments was not applicable. The hon. member can always review what I said. He does not have to believe it. He only has to read Hansard , which presumably he will do later.

The hon. member was asking implicitly, why are we advancing with this bill given that some first nations are not supportive of it? The answer is that delays in approving this bill will be at a significant cost for those communities that are anxious to use it to advance the development of their communities. They have prepared for this; they have been working for this. It places quite a burden on them.

Given that it is elective, the hon. member is not, in my view, correct in his failure to support the legislation. But of course, he is entitled to his opinion, as I am entitled to mine. I will recognize that. Additionally, the government is honouring its commitment to first nations, which have worked long and hard to remove the barriers of development in their communities.

In addition, I want to say to the hon. member that it is not an either/or proposition because it does not preclude the government from working cooperatively with different groups of first nations in order to advance other initiatives.

I want to get back to the resolutions of the AFN in respect of the proposed first nations fiscal and statistical management act since its introduction. There has only been one resolution in which Bill C-23 has been mentioned since introduction in December 2002, and that is the vote that took place on October 8, 2003--perhaps that is the one the hon. member was referring to--at the Special Chiefs Assembly at the Squamish Nation.

He referred to the fact that it had been held in B.C., so presumably that is what he was referring to. It was an omnibus resolution meant to deal with Bills C-6, C-7 and C-19, now modified as Bill C-23.

The resolution called for the Chiefs and Special Assembly to, first, reject Bill C-6. In other words, they themselves produced a motion to reject Bill C-6, reject Bill C-7, and support Bill C-19. The three elements combined were in the same motion.The results of the vote were: 109 opposed; 65 for; two abstained; and 52 did not vote. But that had to do with rejecting two items and supporting one, in the same motion.

For the hon. member to state that all this is somehow equated with Bill C-19, now Bill C-23, is not totally factual. Neither he nor I can speculate as to the exact quantity of votes that there were for each item that we have here.

First Nations Fiscal and Statistical Management Act
Government Orders

May 10th, 2004 / 1:50 p.m.
See context

NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, there is an old saying of great wisdom, which might even be from the scriptures: there are none so deaf as those who will not hear and there are none so blind as those who will not see.

That thought came to mind as I listened to the speech of the member for Glengarry—Prescott—Russell. It would seem to me that his job today, as sent in by the government, the ruling party, is to ignore the appeal from first nations in regard to their wishes pertaining to the bill and to force through the government's wishes, to once again impose the will of government on first nations who have vehemently and clearly opposed this bill time and time again and found it to be unsatisfactory.

The hon. member misrepresented the amount of opposition there is to this bill when he tried to imply to the House that while there is not 60% support for this initiative among first nations there is at least broad support. Then he asked if 50% plus one should not be enough. It may be argued that it would be enough, but in actual fact there is not 50% plus one support for the bill. There are approximately 30 out of 633 first nations that support this bill. By my mathematics, that is 5% in strong support of the bill.

In fact, at two recent Assembly of First Nations assemblies, the vote was 81 against and 10 in favour. There was a vote in November 2002 about Bill C-19, as it was then called, and then, at a special confederacy called in February 2003, the same motion was put forward, with 37 opposed and 2 in support.

Even when a special assembly was orchestrated in British Columbia, where the base of the support for this bill resides, the government failed to achieve support. I believe it was 30% at that assembly; the 202 first nations from British Columbia did not even come out to support this initiative.

I am not going to take the entire time I had planned to because I know there are other speakers who would also like to confront the member for Glengarry—Prescott—Russell and make the same comments.

First Nations Fiscal and Statistical Management Act
Government Orders

May 10th, 2004 / 1:20 p.m.
See context

NDP

Judy Wasylycia-Leis Winnipeg North Centre, MB

Mr. Speaker, I would be happy to address some of the specific concerns with respect to the bill. To begin, it would appear, in terms of our analysis, that Bill C-23 is hardly different from Bill C-19, around which we had some discussion and considerable input. It was recommended that some drastic changes had to be made to that bill to make it acceptable in terms of the first nations community and what constituted good public policy.

I would also point out to the member that, as I far as I understand it, the concept of enshrining the four fiscal and statistical institutions in federal legislation was considered by the AFN at its annual assembly in Halifax in 2001. There was good discussion and debate, but it did not garner the 60% of support required by the AFN charter. We are still a long way from having the first nations community as a whole on-board with the legislation.

I will not have time to go into all the specifics, but let me reference just a few of the major concerns. This is from documents from the chiefs in Ontario, with which I think the member may be familiar. It is indicated that the most disturbing strong-arm component of the amended Bill C-23 is directly linked to the management board. As the member knows, this component is found in clause 8 of the bill.

Communities that do not voluntarily join the Bill C-23 schedule are not permitted to pass bylaws or laws dealing with the critical area of financial administration. Non-believer communities are restricted to the narrow list of bylaw topics under subsection 81(1) of the Indian Act. The list does not include financial administration. That is one point. Another is that some of the most draconian measures in Bill C-23 are designed to prop up the credit worthiness of the authority, apparently at almost any cost.

I will quote from the document that was provided to the chiefs in Ontario where it states, “There is a gross surrender of sovereignty by first nations that get caught up in the scheme. A single missed payment can trigger the takeover of local financial affairs by the management board”.

Those are a couple of the major concerns. The most fundamental constitutional problem with Bill C-23, even as it has been amended by the schedule attachment, is its broadside attack on the inherent right of all first nations to self-government.

I come back to the first point I made which is when we try to correct historical wrongs or address our failures of the past, we must do so with full cooperation and partnership of the first nations community. If there is any sense to the inherent right of self-government being bypassed, if there is any refusal to deal nation to nation with first nations, then we will have failed and only made the situation more difficult than it already is.

I truly hope that the member for Yukon, who is genuine in his pursuit of justice in this regard, listens to those in his house who have made strong appeals, and they are not just dumping all over the bill, to hold off and get it back to committee in the new Parliament. That is the message of the member for Lac-Saint-Louis. He has said that we should give it more thoughtful consideration, that we should involve the first nations in a true dialogue and come up with a financial statistical management package that is truly reflective of the needs of everyone in our country today.

First Nations Fiscal and Statistical Management Act
Government Orders

May 10th, 2004 / 12:40 p.m.
See context

Liberal

Clifford Lincoln Lac-Saint-Louis, QC

Mr. Speaker, the least we can say about the bill is that from its very inception it has been subject to constant controversy as well as a consistent and profound opposition by the majority of first nations. This is why I strongly endorse the substance of the motion proposed by my colleague from Churchill River to refer Bill C-23 back to committee for re-examination and new hearings. I realize that you have ruled, Mr. Speaker, that the motion as it is framed is not receivable. You have also opened the way for some other procedure to be adopted that would come to the same result, in other words, to refer the bill to committee for new hearings and consultation.

It is clear to me that the systematic opposition that the bill has faced on the part of a large majority of first nations has been compounded by what first nations rightfully contend as inadequate consultation.

I listened to the debate on the bill. I am happy to recognize the broadmindedness of my colleague from the Yukon who backed the bill, naturally as he is the parliamentary secretary. At the same time he expressed a degree of fairness and openness and is ready to listen to arguments on both sides. This is why my colleague from Churchill River and I are speaking from a different viewpoint.

Perhaps we could find it in ourselves to express this feeling of openness and conciliation, that we should listen and hear the voices in opposition that have been expressed on the bill and send it back to the committee for review and re-examination. Nothing would be lost in doing what is proper, right and fair.

The Supreme Court of Canada in such leading cases as Sparrow and Delgamuukw has been clear that the first nations are entitled to full and reasonable consultation when there is a proposed measure likely to affect their rights. Certainly this measure is there to affect their rights. In special cases first nations' consent may be required and if the consultation record is insufficient, the legislative measure may be deemed invalid. This is what the Assembly of First Nations in several resolutions and many first nations acting on their own have contended right from the start.

I am convinced that if the bill is passed into law, it will surely be challenged in the courts. There is a strong likelihood that the statute would be held unconstitutional because of the failure to follow the consultation standard laid down by the Supreme Court of Canada in numerous landmark decisions.

Recent initiatives by the Prime Minister and our government have given fresh hope that a new climate of mutual trust and understanding may be pointing itself on the horizon as between government and our first nations.

Sadly, Bill C-23 conflicts with this new spirit of hope and of a true dialogue and understanding with our first nations. It stands out as an important irritant in a context of what was just yesterday and the day before renewed hope by our first nations spirited by the recent, and I would say courageous, statements and initiatives by our Prime Minister.

When the bill was briefly before the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources in 2003, the committee heard from Mr. Fred Lazar, an economist with the Schulich School of Business at York University in Toronto. Dr. Lazar said that he was “adamantly opposed to Bill C-19”, which is now Bill C-23. He said:

So we have taxation, devolution, and control, which is the essence of this proposed bill, all wrapped up in the federal government's limited and historically and legally incorrect view of aboriginal self-government.

Dr. Lazar pointed out that if first nations received their fair share of revenues from resources, the situation would greatly improve.

For several years I have been acting as a volunteer, as a friend, and for two years as a special representative of an Algonquin band not far from here. In 1991, 13 years ago, the band signed a trilateral agreement with the federal government and the Quebec government about the integrated management of the resources on the band's land.

The trilateral agreement happened because suddenly, one day, forestry companies, acting on a management mandate from the Quebec government, started to cut trees on a vast scale on the band's land, which its people have occupied for thousands of years. They rebelled. They blocked the roads and forced the advent of the trilateral agreement, expressing the view that under the Brundtland report, sustainable development was endorsed by all our governments.

The trilateral agreement is viewed by the Royal Commission on Aboriginal Peoples, by the United Nations itself, as a landmark agreement of its kind. It has been 13 years since its inception and we are still arguing whether or not resources should be shared. We are still arguing about where this first nation will find the resources through grants and subsidies to repair its schools, to build adequate housing, which it badly needs, to find revenues with respect, without having to beg from any governments to have what we take for granted in our lives: that every person has a right to a decent living, to quality of life, to education and to proper health care.

Where do they find these resources? If they are on their own territories, they are not allowed a share of these resources, which they own and which treaties recognize as their own. This is really what the bill is about.

Dr. Lazar rightly said:

The first nations view of the verbal commitments made by both sides was that the lands were to be shared so that both groups could live and prosper together.

This implies at a minimum that the first nations should have received at least half of the revenues and wealth generated by the land and the resources on or below the land. They have not even asked for 50%; they have asked for a share. In the case of the people I know well, the Algonquins of Barriere Lake, they would be satisfied with any share of the revenues on their land. They would be satisfied with control of some of their resources so that people would not abuse them, both ecologically and in regard to their long term sustainability.

Dr. Lazar asked whether the bill would provide first nations with the access to capital markets that is available to other governments.

The federal government sees securitization of tax and other long term revenues as a means for the first nations to build up their infrastructure on reserves. Undoubtedly, there is a need for significant investments to upgrade the infrastructure on reserves, but the onus remains on the federal government to fully underwrite these costs. What we ask is not for the federal government to give grants forever, but to give to the people a share of their own resources which belong to them by treaty.

The proposed bill highlights the potential for control over almost all financial affairs on reserves. It appears to be the Trojan horse, enabling the eventual takeover of all spending decisions on reserves by the independent institutions to be created by the bill.

I would like to quote one of the chiefs. Chief Stewart Phillip is president of the Union of British Columbia Indian Chiefs. He told the committee that 60 first nations who belong to that organization are opposed to the bill. He is the chief of the Penticton Indian Band which is a member community of the Okanagan nation.

The Union of British Columbia Indian Chiefs is the oldest political organization in B.C. Chief Phillip told the committee that Bill C-23 fails to meet the conditions set out in various AFN resolutions--and which have been successively carried out--saying the bill is flawed. I have a set of these resolutions passed over a whole year, time after time in Ottawa, in B.C., and in various parts of the country, repeating again and again that the bill is flawed, that it has not been subjected to adequate consultation and that it should be re-examined or it should fail.

Indeed, a special AFN assembly was convened in Ottawa in November of 2002, two years ago now, for the chiefs in the assembly to make a decision on the first nations financial and statistical management act. It rejected Bill C-23 in its entirety. I will again quote Chief Phillip, who said:

As for the contents of Bill C-19, it is our submission that legislation, especially national legislation, is not necessary for these four institutions to function.

The Indian Taxation Advisory Board and the other boards are already in existence and operating, as far as we know.

I strongly believe that Chief Phillip and his organization express the views of a substantial majority of first nations and that his recommendation is reflected in the very justified motion of my colleague from Churchill River. I hope that somehow I will find a way to implement the substance of his motion.

Let me now review certain of the modifications of the bills which proponents tout as justifying support for it. The new schedule of the bill conveys the impression that three of the institutions in the bill, all but the statistical institute in part 5, are optional and therefore do not prejudice the first nations that choose not to join.

In addition to the deceptive information that the bill has the support of first nations, the so-called opting in feature is touted as another important measure favouring the bill. The implicit message is that even if most first nations do not like it, they should not interfere with the opportunities of those who choose to opt in.

This is clearly misleading.

First, the so-called opting in provision introduced by the schedule amendment does not apply in the case of the statistical institute under part 5. This part is imposed on all first nations or bands in Canada whether or not they are added to the schedule. This is clearly unfair to the overwhelming majority of first nations who oppose the bill. It should be noted that under clause 105 of the bill the federally appointed institute can indefinitely collect and use the most sensitive data about all bands in Canada without their consent.

What about the other three institutions: the tax commission, the management board, and the financial authority? Again the alleged opting in regarding these three institutions is very misleading. In fact, these statutory national bodies will affect the rights and interests of all first nations in Canada whether or not they are added to the schedule. Indeed, these important national institutions will be controlled for the long term, and in fact forever, by a small number of first nations strongly in support of Bill C-23 and aligned with the Department of Indian Affairs and Northern Development.

The tax commission, which is a federally appointed body, will become the overseer of all future on reserve property taxation bylaws or laws. If the bill is passed, all first nations in Canada that want to develop on reserve property taxation laws and systems will have to seek the approval of this federally appointed commission. All such first nations will have to submit their annual property tax budgets to the commission for approval under clause 9. Surely this affects the rights and interests of all first nations, which belies the argument about the opting in feature.

Clause 13.1, an amendment to Bill C-23 tabled by the minister, may seem to suggest that current property tax provisions in the Indian Act--namely, sections 83 and 84--will continue to be available to communities that do not enlist in the tax commission. However, I question whether, if Bill C-23 is passed into law, two parallel systems will be maintained into the long term.

It is very improbable to think that communities will be permitted to operate for any length of time under the Indian Act regime whilst a new tax commission operates the new, chosen instrument adopted by the federal government.

Perhaps the provision which most significantly disturbs those first nations that oppose Bill C-23 is that of the management board. According to clause 8 of the bill, communities that do not join Bill C-23 are not permitted to pass bylaws or laws dealing with the critical area of financial administration.

Thus, non-opting in communities are restricted to the narrow list of bylaw topics under section 81(1) of the Indian Act, which list does not include financial administration, the very core of local government. In other words, first nations that do not opt in effectively forfeit a key area of local jurisdiction: financial administration.

I referred earlier to the constitutional aspects of the bill which are likely to lead to legal challenges. No doubt the most fundamental problem in this connection is its conflict with the inherent right of first nations to self-government as protected by section 35 of the Constitution Act of 1982. Surely the powers granted to the tax commission and to the management board under Bill C-23 are a direct interference with an inherent right of self-government protected by the Constitution and cherished by all first nations as a centrepiece of their fundamental rights as our first citizens.

Supporters of the bill will argue that the recent introduction of a non-derogation clause relating to section 35 of the Constitution Act of 1982 will fully protect all constitutional rights of first nations. However, there still remains the serious risk that the bill might still infringe the fiduciary duty of Canada to appropriately consult under section 35, which the majority of first nations contends has not taken place, as well as the protection against discrimination under section 15 of the charter, and, most important, the inherent right of self-government of all first nations protected under the Constitution.

I consider that the motion by my colleague from Churchill River--or a substitute for it that he is now negotiating with the Table--is fair and makes eminent sense in the circumstances. It seeks to replace controversy and consistent opposition with consultation, fairness and conciliation. I would like to support its substance most convincingly.

In the time that I am allowed I would like to appeal to all sides of the House for fairness and for conciliation. Surely all these first nations that oppose Bill C-23--and there are hundreds of them reflected in those resolutions that I have read, a great majority of them--represent a voice that cannot be ignored. Surely they have a right to express their position, and surely also they must feel in their heart that something is wrong with the bill.

Who are we here to decide for them as to measures that they themselves do not accept or agree with? Who are we here to say that we know best what is good for them when they tell us that it is not good enough for them? Who are we here to dictate and legislate when such a position is there?

I strongly recommend that we support very actively the substance of the motion of my colleague from Churchill River and send this bill back to committee. We must take time to produce a better bill, one that is acceptable to the people most concerned, the first nations of Canada.

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May 10th, 2004 / 12:35 p.m.
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NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, the people of the Nishnawbe-Aski Nation of the treaty nine district of northern Ontario have sent me a question via the magic of e-mail.

They point out that in 2002 when Bill C-19 was first introduced by the then minister of Indian affairs, the member for Kenora--Rainy River, the right hon. member for Calgary Centre asked how the minister could be tabling the legislation when the four institutions were already up and running. They had offices, staff, salaried officers, boards of directors, and CEOs. The enabling legislation had just been introduced and was being debated but the institutions had been up and running for two years, if not longer. Where did the minister get the spending authority to hire those people and create the four institutions without the enabling legislation having been passed?

Does the member believe that this is the reason for the urgency of ramming the bill through even though no one in Indian country wants it?

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May 10th, 2004 / 12:30 p.m.
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Liberal

Rick Laliberte Churchill River, SK

Mr. Speaker, in large part, the other reason I recommended that this be considered for consultation was that last year, Bill C-6, Bill C-19 and Bill C-7 were considered as a suite of bills in the standing committee that went through public consultation. However, the focus of that consultation was Bill C-7, the governance bill. Bill C-19, now Bill C-23 moved in the shadow of the consultation of Bill C-7. A lot of the consultation took place in Parliament.

Bill C-19 was not taken to community consultation. In the Bill C-7 hearings, some people wanted to talk about Bill C-23, or Bill C-19 as it was, but were not allowed to because the mandate of the standing committee in the community hearings was limited to Bill C-7 only. If we are so proud of this bill and it stands the test of community consultation and first nations leadership consideration, it is time to take it to the communities. Let us make sure that everybody thoroughly understands that this search of fiscal relationship deals with a domestic market. There is an opportunity for borrowing members, and there is a definition of borrowing members among the first nations band councils.

There are also definitions of taxpayers. I find them very amusing because there are different categories of taxpayers. There are commercial taxpayers, residential taxpayers and utility taxpayers. I do not know of any other act, federally or provincially, where these different definitions and categories of taxpayers exist.

There is also an issue of a different type of first nation, a first nation member. First nations members are the Indians of Canada, as defined in the Indian Act. However, there is this other category of first nation member and that is a member who agrees with taxation of land. A first nation member who agrees with taxation can sit on the tax commission and on the fiscal institution.

It defines different types of first nations as well. If we are going to define different types of first nations and different types of taxpayers, why can we not define the different nations and tribes of Canada and allow these first nations, as orders of government, to be part of the security of a first nation? Lets say a first nation member wants to borrow money, say a Cree community in northern Saskatchewan in my riding. However, because of fiscal relationships, member does not pay taxes and cannot pay the debt. Why can the Cree nation, or the Prairie Cree or the Woodland Cree not come in and help the member, instead of the third party management or the co-management provisions in the bill?

That co-management and third party management is delegated to the different institutions: the financial management board, the tax commission, and the finance authority. These authorities will be created because of the risk management when dealing with market realities of borrowing money. Why can we not recognize the nations, the tribal councils that have been created across the country, in the bill as having a significant role in this new fiscal relationship?

Also, I cannot miss the opportunity to say that this is a bold vision by our Prime Minister, who wants to have a relationship with the first nations of this land. Allow that relationship to exist first before we define these in stone, in legislation. Once a first nation opts in, it will be difficult to opt out of the fiscal institution. It will be hard for first nations to redefine themselves as a non-borrowing member because the consensus of the borrowing members will be required before they do that.

There are many strong measures that need to be carefully looked at. Proper consultation and understanding by the first nations and their leaders needs to take place. The government should recognize true aboriginal governance first as nations and tribes. Then this legislation will provide them with security for the future. It is the wrong sequence of events.

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May 7th, 2004 / 1:20 p.m.
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NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, I think it is useful to back up a bit and look at the chronology of the evolution of this bill. It did begin life as Bill C-19 as part of a suite of legislation that the former minister of Indian affairs pitched as his vision of the first nations governance act, I guess, or the fist nations governance initiative, as he called it, because it was really three acts.

Bill C-19 was one of the most controversial aspects of that. Bill C-7 was shot down almost unanimously across the country. However, when Bill C-19 went before the committee, no amendments were successful. The committee did not tour and embark on any consultation with communities.

However, what we do know is that the Assembly of First Nations passed resolutions opposed to Bill C-19. A small group of bands and chiefs in British Columbia were in favour of Bill C-19 and are still in favour of this bill, but that numbers approximately 30 first nations that stand in support of the bill. There are 633 first nations that are members of the Assembly of First Nations. There are valid current and recent resolutions at the Assembly of First Nations that oppose this bill.

In my view, that is all we really need to know. For us to go ahead and pass a bill that would affect the lives of aboriginal people without their full consent and without even full consultation with them is, in my view, the height of imperial arrogance, a colonial style imposition of our views as to how they should conduct their affairs.

The optionality issue is key and fundamental to this because the government's only answer to the many criticisms about this bill was to try and convince people that it would have no general harm to the inherent recognition of inherited aboriginal and treaty rights because it would apply to only those first nations that sign on and that it is completely optional.

I heard the minister say that first nations could sign on and sign off. I think that is completely incorrect. Our legal opinion suggests that one cannot simply sign on, drop in and drop out willingly. In fact, as I pointed out, as far as the lending authority, the finance authority, once a first nation has signed on, it cannot leave without the unanimous consent of all the other signatories, and that is a rare thing. If there are 30, 40 or 50 first nations that have signed on, they would have to all agree to allow another first nation to opt out and, arguably, weaken their organization. Therefore, the freedom to come and go is severely limited, if not impossible. I argue that this is not an optional bill. This affects all first nations.

First Nations Fiscal and Statistical Management Act
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May 7th, 2004 / 1:20 p.m.
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Liberal

Rick Laliberte Churchill River, SK

Mr. Speaker, I would like to ask the hon. member to maybe enlighten the House on the parliamentary process that the bill has taken. It is now Bill C-23, but in the previous sitting of Parliament it was Bill C-19.

Bill C-19 was taken into consideration by the Standing Committee of Aboriginal Affairs. Could he maybe enlighten the House, myself and maybe Canadians and first nations who may be listening, on the extent of that review of clause by clause and on the level of witnesses? Did the standing committee travel extensively to economically diverse communities, some of which may have been economically progressive, or geographically or economically challenged, in the far north geographical regions? I just wanted to know what level of activity took place during the standing committee's study of Bill C-19.

With regard to optionality, the member used the example of a driver's licence. I would refer him to something that is more near and dear to us as members, and that is the option program for us to get into our pension funds. A certain group in a certain party opted out of the MP pension plan.

Maybe the member can explain and enlighten the House a little bit more on why all members here are now part of the pension fund. There was a point in our history when members could consider opting into this pension fund as members of Parliament. I think that is a better example of this opting in program for first nations to buy into Bill C-23.

Maybe the hon. member could enlighten us on the Bill C-19 parliamentary process and on the option program that we have experienced as members of Parliament in this House.

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May 5th, 2004 / 5:10 p.m.
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NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, I am pleased to rise to speak to Bill C-23 and even more pleased to speak to the amendment put forward by my hon. colleague from the Bloc, the member for Saint-Hyacinthe—Bagot. To be clear, I understand the debate is on the amendment at this time.

I agree with my colleague. I have long admired his particular sensitivity to this issue. I think perhaps part of that comes from his own background as a sovereignist. He can identify with the right to self-government of aboriginal people perhaps with a sensitivity that others only aspire to.

Bill C-23 is vehemently opposed by the overwhelming majority of more than 600 first nations across Canada. There are over 633 first nations who are affiliated with the Assembly of First Nations. The overwhelming majority are opposed to Bill C-23, just as they were opposed to Bill C-19.

Frankly, that is where the debate should properly stop. That should put an end to this debate because that is all we really need to know. This bill has not been developed with the cooperation and input from the 633 first nations of the Assembly of First Nations, the parliament of the first nations community. It was resoundingly rejected.

Let me begin with a bit of history. In Halifax in the summer of 2001, I was at the Assembly of First Nations gathering where the first draft resolution in support of this concept was voted down. The people were upset. A great deal of work took place at that assembly. With a fair amount of generosity, the chiefs at that assembly, even though they voted down the original resolution, agreed to allow it to carry on under the explicit condition that any draft bill had to come back to the Assembly of First Nations to be reviewed, accepted or rejected. That never happened.

In classic, unilateral, arrogant, and colonial fashion, the government, even after having heard from the legitimately elected leadership of first nations across the country, went ahead in complete opposition to the directives given, that the Assembly of First Nations would cooperate in the development of this bill if the draft was brought back to them for their review, input and cooperation. That never happened. We have to begin from that basic premise.

Let me also state another fact which is somewhat at odds with the presentation by the parliamentary secretary. The hard core support for this bill is probably in the range of 30 first nations, mostly from British Columbia. These first nations seem closely aligned both philosophically and otherwise to INAC.

Let me raise another point. It seems that those who are in favour of this bill, those who are promoting these four fiscal institutions, have unlimited money and funding to fly around the country and promote this bill, and the formation of these four institutions. I raise that as a concern right from the beginning because it seems to me, first of all, those four institutions are up and running.

We are debating here the enabling legislation to create those institutions and they exist. They have offices, staff, CEOs, high priced help and seem to have an unlimited amount of money to fly around the country and lobby me to support this bill. Many of us in the House have had personal visits from people who identify themselves through their business cards as the salaried officers of these institutions. I know the money to create them comes from the aid-based budget of INAC, money that could have and should be more properly directed toward meeting the basic needs of aboriginal people, I would think, rather than fly around the country as high priced lobbyists to convince me that I should vote for this bill. I raise that as a concern, but let us be honest about this.

The parliamentary secretary said that about 100 first nations support the bill. There are about 30 first nations that actively support the bill and another 70 first nations that have expressed some interest in availing themselves of the services that the institutions would provide at some later date, for a total of 100 first nations.

It is an exaggeration and, in fact, it is misleading and disingenuous to say that a full 100 first nations support the bill.

Bill C-23 as it stands is national legislation that negatively affects the rights and interests of all first nations across the country. Even though there are only 30-some first nations that vehemently support the bill, it adversely affects all first nations. Let me elaborate and explain somewhat because I think it warrants an explanation.

The bill is being promoted as a first nations driven piece of legislation, which is utterly misleading. If first nations driven is meant to imply that the bill is supported by most first nations across Canada, let me say again that it is vehemently opposed by most first nations across Canada.

The national fiscal and statistical institutions created by Bill C-23 affect the rights of all 600-plus first nations, even though it is supported by only a few. The institutions would be funded on an indefinite basis from the federal envelope that is allowed for all first nations. In other words, even those first nations that do not support these institutions would be inadvertently paying for them by money that would have otherwise been spent in their communities, possibly meeting basic needs. Yet these institutions are actively opposed by the majority.

At this very early point in my remarks let me say that this is not only bad public policy but it is bad law if it is overwhelmingly opposed and those who oppose it are forced to pay for it. How unfair can that be? It offends doubly, in a sense.

It is true that there are a handful of first nations, mostly in B.C., that are driving the legislation forward. However it is also true that the overwhelming majority that are opposed to the bill are opposed in both principle and text.

Quite apart from the disrespect to Parliament that this misinformation serves, the misstatement of the level of first nations support raises a constitutional issue as to the very validity of the bill. Bill C-23 affects the rights and interests of all first nations, not just those that sign on to the optional schedule.

The Supreme Court of Canada, in leading cases such as Sparrow and Delgamuukw, has been clear that first nations are entitled to full and reasonable consultation when there is proposed legislation that is likely to affect their rights. In some special cases the consent of first nations may be mandated.

Therefore, if the consultation record is insufficient, as I argue it has been given the level of opposition and the failure of the government to bring back a draft to the Assembly of First Nations for ratification or approval prior to coming to Parliament, I argue that the consultation obligation has not been met. The most basic, fundamental test put to us by the Supreme Court in terms of legislation that may affect inherent aboriginal and treaty rights has not been met in this case again. This is a pattern that we have seen since I have been here as a member of Parliament, a disturbing pattern, a deliberate pattern, a colonial imperialist pattern.

It is not overstating it to say that because of the government's unwillingness to give meaning and definition to section 35 of the Constitution, it has allowed the courts to interpret time and time again what inherent and treaty rights mean. Time and time again the government loses at the Supreme Court.

The Supreme Court is now telling us that if we are going to introduce any future legislation that may affect inherent and treaty rights, consultation is required. Again, the government has chosen not to consult because consultation means more than just informing people what will be done to them. Consultation requires a meaningful exchange and accommodation of the points put forward by the other party. True consultation means bringing the issue forward, putting it on the table, getting the other person's point of view and accommodating some of the points raised, not imposing one's will on someone else. That is a basic, fundamental principle and the government has ignored it.

If passed into law, Bill C-23 will surely be challenged in the courts. There is a strong likelihood that the statute will be held unconstitutional because of the failure once again of INAC to follow the consultation standard laid down by the Supreme Court of Canada in numerous landmark decisions, numerous court rulings that actually took place during this 37th Parliament and during the 36th Parliament.

The duty to properly consult first nations is a key aspect of federal fiduciary obligation. It is protected by section 35 of the Constitution but we would never know that from the government's attitude and approach to it.

I want to raise the issue of optionality again. All the government can think of to try to allay the concerns brought forward by the majority of first nations is to say that it will make it optional; that it will only apply to those people who choose to avail themselves of it. That is a lie, or to put it another way, that is misleading. This new schedule mechanism is a parlour trick.

I made the point earlier and I will say it again. For the government to say that the bill is optional is like saying a driver's licence is optional. It is optional unless one wants to drive a car. As soon as one wants to drive a car, a licence becomes mandatory. Smaller first nations will find themselves in that trap because if they do not sign on and become one of the member nations on the schedule, they will not be allowed to set up any other type of financial bylaws within their own first nations unless they meet the approval of this new institution.

If they are not on the schedule and they want to seek outside financing for some project in their community, instead of the government meeting its fiduciary obligation to that first nation, it will simply say that if the first nation needs the development in its community it should go join the new fiscal institutions and join the pooled effort of financial activity.

Those are some of the fears put in a very simplistic way. This new schedule mechanism is a carnival trick. It is meant to deceive. It conveys the impression that three of the institutions in the bill, all but the statistical institute, are optional and therefore not prejudicial to first nations that choose not to join.

I note in passing that once on the schedule it seems that a first nation becomes subject to those institutions and getting out is in fact more difficult than getting in because once on the schedule the first nation cannot get off the schedule without the approval of all those other first nations that are on the schedule.

That may seem like a fine point but any time we have rules and conditions under which we can join something, at the same time we have to factor in rules and conditions by which we can leave. In other words, it is more difficult to leave than it is to join and we get pulled in.

The pretence of optionality fostered by the schedule amendment is not maintained in the case of the statistical institute. This part is imposed on all first nations and bands in Canada, whether or not they add their names to the schedule. There is nothing optional at all about the statistical institute. In fact, it can gather sensitive, private information on all first nations in the country, no matter whether they want that information gathered or not. There is a serious privacy issue associated with this question. This should be alarming to the overwhelming majority of first nations that are voting against the bill.

I ask all members to take note that under clause 105 the federally appointed institute can indefinitely collect and use the most sensitive data about all bands in Canada without their consent. Where is the optionality there?

The alleged optionality of these three institutions is completely misleading. In fact, they are statutory national bodies that will affect the rights and interests of all first nations in Canada, whether or not they are added to the schedule.

If anything, the schedule model, I would argue, actually makes things worse. This is because the schedule model perversely guarantees that these important national institutions will be perpetually controlled by the small number of first nations that are strongly in support and which have aligned themselves with INAC. If anything, this schedule would have a perversely negative effect on people. I do not think the minister and his INAC officials have thought this through.

The tax commission, which is really the Indian tax advisory board on steroids, is one of the institutions said to be optional. Again, nothing could be further from the truth. The tax commission is a federally appointed body and it will become the czar of all future on reserve property taxation bylaws or laws. This is what I was getting at, and I hope people will listen to this carefully.

If this law is passed, in the future all first nations in Canada that want to develop on reserve property taxation laws and systems will have to seek the approval of this federally appointed commission, whether they signed on to it or not. All such first nations will have to submit their annual property tax budgets to the commission for approval. That is in clause 9. People can check that if they do not believe me. I do not make up this stuff. There is no optionality here. This affects the rights and interests of all first nations therefore, whether they are on the schedule or not.

The unilateral nature of the tax commission is made even more problematic by the many upfront restrictions on first nations property taxations contained in Bill C-23. First nations will not be free to spend their tax revenue as they please. Instead, they will be forced to spend their money on local infrastructure and the like, and therefore lightening the burden on INAC. I get back to one of my basic problems here, which is that the bill is more about the desire of the federal government to offload its fiduciary obligations, its financial obligations.

First nations cannot just use their tax revenue for any purpose they see fit. No matter what the need and demand is in their community, they have to use it for things that the federal government approves.

Unfortunately, I cannot make all the points I would like to make because my time is running out. However, again, the impression of optionality, stoked by the tricky schedule amendment, is misleading. People saw through that right from day one. The first nations that read the bill saw that. Many of us are only just beginning to see that.

The most disturbing, strong armed component to Bill C-23 is directly linked to the management board, clause 8 of the bill. I urge people to refer to that. Communities that do not voluntarily join the bill are not permitted to pass bylaws or laws dealing with the critical area of financial administration. Even if they are not on the schedule, the management board, they are not allowed to pass comparable bylaws and financial bylaws. This is contrary to the inherent right of self-government, plain and simple.

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May 5th, 2004 / 5 p.m.
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NDP

Pat Martin Winnipeg Centre, MB

Madam Speaker, I am particularly interested in the intervention by my colleague from Saint-Hyacinthe—Bagot. I know he has demonstrated an exceptional interest in this issue for not just this incarnation of the bill but, in fact, when the bill was called Bill C-19.

For those of us who have been involved in this bill since the very beginning, we see Bill C-23 as a fraud, an illusion, that there is no appreciable difference in tone or in content from the basic flaws that we pointed out in Bill C-19.

My hon. colleague cited a number of problems that he had with this bill and, I think in great detail, tried to share with the House what his reservations were as to what might be really motivating the government in introducing this bill.

One of the key things he pointed out, and what I would ask him to expand on, is the whole issue of optionality.

The federal government seems to mitigate the downside of the bill by saying that people should not worry, that it is only optional and that they do not have to use it if they do not want to. However we have had first nations come to our caucus and tell us that the bill is optional in the same way that a driver's licence is optional. A driver's licence is optional unless we want to drive a car and then we must have one.

Would the member agree that the same logic applies to the bill? People do not have to avail themselves of the details of the bill unless they want to institute some financial bylaws in their community, or build a sewage treatment plant and go outside for financing, or they want to actually implement their right to self-government. If they want to do any of those things, then they have to join. Would he agree with me?

First Nations Fiscal and Statistical Management Act
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May 5th, 2004 / 4:15 p.m.
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Canadian Alliance

John Duncan Vancouver Island North, BC

Madam Speaker, it gives me great pleasure to speak once again to Bill C-23, the first nations fiscal and statistical management act, which has been before Parliament for a long time under other monikers. It was previously Bill C-19. This was a bill that was tied very closely to Bill C-7, the first nations governance act. The government tied those two together so tightly that when Bill C-7 was finally buried by the minister, Bill C-19, now C-23, wore a lot of that.

There was a great attempt by the government to try to address concerns that were brought forward in terms of making C-19, now C-23, more palatable. There were a series of amendments tabled and discussed with the opposition critics. The opposition critics, including myself, agreed that tabling could occur.

One of the difficulties that all of the opposition parties are having is that those amendments were amendments that improved the bill. However, for all of us, those amendments did not improve the bill to the point where we are willing to support the bill.

My single biggest complaint with the bill, which I discussed with the previous minister, was the fact that the statistical institute was not decoupled from the fiscal institutes. Everyone agrees that the statistical institute is not essential to the workings of the other three institutes or boards that are enabled by this legislation.

I was expecting those amendments that would decouple the statistical side to be tabled. It did not happen. What we now have is a contradiction in the legislation. I do not see how a statistical institute for first nations can operate on an optional basis. I do not really want it to either because all of this is basically duplicating what Statistics Canada already does.

We already have a report from the Auditor General from December 2002 which clearly states that the amount of paperwork that the federal government demands of first nations at the administrative level far exceeds what is realistic or reasonable. Most of that information is never used by the federal government in any case. Therefore, it seems to me we are piling a problem on top of a problem for no rational purpose.

Even the president of the first nations finance authority agreed with the statement that the statistical institute is not essential to the workings of the other three institutions.

There has never been any attempt on the part of the non-government proponents to say that this is essential or necessary, yet the government, for whatever reason, has made a conscious decision that it is going to keep this in an omnibus fashion within the bill rather than let that other institution stand or fail on its own merits. I fail to understand that. I empathize very much with the criticisms that here is an institution to collect first nations statistics, but if it is not being done on anything more than an optional basis, the statistics are going to be meaningless in any case. This seems like some kind of swamp country that we just as well might avoid. That is my single biggest criticism of the bill.

This has brought a great deal of polarization to the first nations community, and a lot of it is unnecessary. A great deal of it relates to the fact that it was tied so closely to the first nations governance act. We do have about 25% subscription within the province of British Columbia to taxation by the bands in British Columbia and they have endorsed this. However, many of the other groups certainly have not, in a very strong sense of the word.

The parliamentary secretary talked at great length about the endeavours within the House of Commons since the aboriginal summit that was held in Ottawa not too long ago. That hastily prepared $350,000 summit excluded some native leadership. It certainly excluded the Union of B.C. Indian Chiefs and I am sure it excluded others.

The parliamentary secretary was putting great focus on the amount of aboriginal legislation that has been in the House since that moment. I have quite a different point of view in that really there has been almost no agenda from the government in this place on any subject.

The aboriginal agenda included Westbank, which the government side ended up filibustering, and there is Bill C-23, and not much else has happened in this place. I think one of the reasons even these two bills have progressed along the path to the extent that they have is that the government does not have any other legislation on the agenda that it wishes to pursue.

We can look at this many ways, but the way the government is choosing to look at it is certainly very constructed. It is certainly not the way those of us who have been in this place for many years are viewing the current goings on in the House of Commons.

Unfortunately, some of the difficulties that are inherent in this legislation, and I have given the background, ended up being worn by the proponents of, for example, the Westbank legislation. The Westbank legislation creates the strongest individual property rights on reserve anywhere in Canada, yet it took a lot of heavy criticism. I think a lot of that criticism would have been avoidable had it not been for the baggage that was brought forward as a consequence of the first nations governance act, this bill, and other goings on with the government.

Westbank is a band with significant taxation revenues, revenues that it has been collecting since the early 1990s. It has a strong record on taxation and it has a legitimate ability to use this suite of legislation in a very constructive and productive way.

We know that the bands that are in a good financial situation or have the ability to be there quite readily are very supportive of this legislation. I think it is unfortunate that the government delivered a package that was not much more straightforward and clear right from the beginning. The major criticisms it hastily tried to address after the fact could have been addressed months earlier, but they were not. To this date, all of the criticisms have not been addressed.

I think that covers most of my points. The parliamentary secretary is busy looking through his notes. I will give him the opportunity to ask me questions or to make comments.

First Nations Fiscal and Statistical Management Act
Government Orders

May 5th, 2004 / 4:10 p.m.
See context

Liberal

Larry Bagnell Yukon, YT

Madam Speaker, it is too bad that the members from the NDP and the Bloc know so little about this bill. First, in relation to the Assembly of First Nations, if the member were listening, she would have heard that we took those concerns and placed them in the amendments. Now the bill is totally optional, and the eligible items are still in the Indian Act. I will read a passage from the website of the Assembly of First Nations. It states:

We also raised with the Minister our concerns about Bill C-23 (formerly Bill C-19), the First Nations Fiscal and Statistical Institutions Act, which was re-introduced on March 10, 2004. Our preference was that the Bill not be re-introduced until the concerns of First Nations were addressed.

The indications I received were to the effect that the government will introduce amendments to the Bill--

We have done that.

--to clarify that the legislation will be optional. Once the information is received it will be shared with First Nations as soon as it is available. We will keep First Nations informed on this and any and all developments related to Bill C-23. We also recognize that some First Nation communities are interested in participating in one or more of the institutions created under the Act.

If the proposed amendments achieve optionality, in accordance with the principles of the AFN Charter, the AFN should not stand in the way.

In relation to the number of first nations, she suggested 50 or 60. First, even if we were only helping one first nation of people, I would be pushing for this bill, just like I did for Westbank, just like I did for Tlicho. If I talk--