Bill C-6 (Historical)
An Act to amend the Canada Elections Act (visual identification of voters)
This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.
Peter Van Loan Conservative
Second Reading and Referral to Committee
(This bill did not become law.)
First Nations Financial Transparency Act
November 23rd, 2012 / 1 p.m.
Michelle Rempel Parliamentary Secretary to the Minister of the Environment
Mr. Speaker, it is always an honour to rise in the House and today it is an honour to rise to debate Bill C-27, the first nations financial transparency act.
Over the last six years, our government has consistently demonstrated our commitment to creating the conditions for a healthier, more self-sufficient aboriginal communities. Fundamental to achieving that are strong, stable and accountable first nations governments. Bill C-27 would strengthen first nations governance by increasing accountability and transparency, giving first nations community members the information they need to make informed choices about their leadership.
Bill C-27 complements Bill S-6, the first nations elections act, which we introduced in December 2011. Together, these pieces of proposed legislation demonstrate democratic practices and would empower first nations people.
First nations residents expect to know how funds are being spent in their communities. Like all Canadians, they want assurance that these funds are being used to improve their quality of life. Bill C-27 would improve their access to the financial statements of their governments and provide information on the salaries and expenses of their elected officials.
Indeed, democracy depends on citizens being able to call their leaders to account and ensure they represent the community's best interests.
Currently, community members may ask for financial information related to their band but unless their leaders choose to release it, it can be difficult for them to access the information required to make informed decisions about their leadership and the direction of their community. There are still community members who have no other option but to contact the Department of Aboriginal Affairs and Northern Development each year seeking assistance in obtaining this information.
A real or perceived lack of transparency and accountability from first nation leaders can also erode investor confidence and impede a community's ability to take full advantage of economic development opportunities. Ultimately, this delays or can destroy job opportunities and economic progress for the first nation and its members.
I also point out that parliamentarians already have a duty to inform Canadian taxpayers of how their tax dollars are spent, including for first nations.
A question was raised during the second reading debate of the bill on whether public disclosure of financial statements of band-owned businesses would undermine their competitiveness. It is important to note that Bill C-27 would not require each individual business owned by the band to publish its detailed financial statements. Instead, it is only the consolidated financial statements of the first nation that are covered under the proposed legislation. Some of my colleagues, in their speeches in the House today, have reiterated this point. These statements would not, in most cases, reveal any proprietary information that would undermine their competitiveness. There seems to be some misunderstanding on this. I understand that during the committee stage amendments were made to clarify these concerns.
Members of first nations are ultimately the owners of any businesses owned by the band and they have a right to know the financial position of those businesses, just as other Canadians have the right to know about businesses owned by other levels of government. The bill would ensure that this occurs.
Although some first nation-owned businesses may have concerns about providing financial information to the public, it is important to point out that these reporting rules are not our rules but the rules set out by the Public Sector Accounting Board of the Canadian Institute of Chartered Accountants. In other words, these are the exact same rules that apply to businesses owned in other governments in Canada. To be absolutely clear, the proposed legislation would not create any additional paperwork for first nation governments. They already produce audited financial statements each year as a requirement for their funding agreements with the department, and this bill would not require anything new in that regard.
Similarly, what we are asking of chiefs and councillors is no more than what we ask of ourselves as parliamentarians. For example, the Government of Canada posts its financial statements on the Internet and each of us, as members of Parliament, now disclose our salaries and special allowances to the public as required under the Parliament of Canada Act and the Salaries Act.
Furthermore, Canadians can easily find all of these facts and figures, and much more, since we introduced the Federal Accountability Act. This act has also increased the public's access to information about government activities and spending.
Provincial and territorial governments have adopted similar practices and the vast majority of them have legislation that requires municipal governments to make these documents public, as well. In addition, some provinces, such as Manitoba and Ontario, have extended beyond the legislature to require public sector bodies to disclose the public amount of compensation it pays to its employees over a certain threshold.
In short, under the Indian Act, first nation governments are the only governments in Canada that do not currently have a legislated requirement to make basic financial information public. Again, the bill would address this gap.
Some have noted that not all first nations have websites. This came up in debate in the House today. This is true, and Bill C-27 addresses this point. A first nation will not be required to have its own website as a result of the bill. If a first nation were not able to publish the information electronically, it could ask another organization to post it on the community's behalf. Alternatively, the first nation could ask the department to post the information on its behalf. However, we should be clear that having these documents published on a website does not fulfill a first nation government's obligation to make copies of financial statements available to its members.
Many first nations members do not have easy access to the Internet, a fact the department is also addressing through its connectivity efforts. As a result, first nations will need to continue to find ways to make this information available to their members who do not have Internet access. Many already do this by distributing printed copies to households, or making the information available in readily accessible locations in the community, including band offices.
As I mentioned at the outset, the department receives many requests each year for assistance in obtaining basic financial information from their own first nations government. Enhancing the accountability of band councils more directly to its members would be achieved by making more tools available to its individuals.
All that the bill changes is that first nations government will now join other Canadian governments in sharing basic financial information with its members and other Canadians. Once passed, the bill would also help assure potential investors that they could safely enter into joint financial agreements and business undertakings with first nations. This could and should contribute to social and economic improvements in the lives and livelihoods of first nations members.
I know members will agree that Bill C-27 is a necessary step for empowering and improving the lives of first nations members, and I urge all members of this House to vote in favour of the bill.
I will close with some of the statements I have heard in the House today. There has been some implication that requiring transparency that is similar to other levels of government is somehow paternalistic. I would disagree with that characterization. It is very positive for the bill to undertake the step of moving first nations members in the same direction as other levels of government when it comes to the transparency in the disclosure of financial records to its members and to other Canadians.
I want to note that the proposed legislation is asking that first nations use generally accepted accounting principles, which is consistent with expectations of governments from all other levels. We are not trying to prescribe salaries or the spending habits of first nations communities with Bill C-27. It is simply to move the financial reporting requirements and transparency requirements into alignment with other levels of government across this country.
July 15th, 2008 / 10:05 a.m.
Marc Mayrand Chief Electoral Officer, Elections Canada
Good morning, Mr. Chair and members of the committee.
I am accompanied today, as the chair indicated, by Mr. François Bernier, the legal services director at Elections Canada.
I was requested by the chair of this committee to assist members in the study of the review and treatment of election financial returns and the key considerations involved in the review of these returns. In discussions prior to my appearance, the chair requested that I provide a detailed explanation of the aspects of the legislative and administrative framework that relate to political financing under the Canada Elections Act and, more specifically, of the treatment of election expenses.
This will be the subject of the first part of the presentation. I hope it will provide the committee with a better understanding of the operating context in which decisions are made regarding reimbursement of electoral expenses. I will then turn to the subject of particular decisions of interest to the committee and explain how they relate to the legislative and administrative framework.
The mandate of Elections Canada is to administer the Canada Elections Act in a fair, consistent, transparent and impartial manner. As an officer of Parliament, my first duty is to serve Parliament and Canadians. While the committee is reviewing the activities of public office holders, I trust it will understand that in my capacity as Chief Electoral Officer of Canada, I can only speak to electoral matters. I will not comment on ongoing investigations of the Commissioner of Elections Canada, or the specifics of the case currently before the Federal Court. As well, I will not deal with any individual cases.
Mr. Chairman, with your concurrence, I will now proceed with the first part of my presentation. The committee has already received a presentation that extends to a number of pages—42 pages, I believe. So I won't read each of those pages, but I will simply make the main comments on the essential aspects of the presentation.
The presentation will contain four parts: first, the objective itself, as well as a part dealing with the key principles underlying the legislation and the administration of that legislation, the key aspects of the legislation, and, lastly, the aspects of the administration of that legislation. I will also provide a brief conclusion.
I think it's fair to say that the first hundred years of federal democracy in Canada have been focused almost exclusively on the conduct of elections and on progressively expanding the franchise--the right to vote--to all Canadian citizens. In fact, the right to vote became a fundamental right protected by the Constitution and the Canadian Charter of Rights and Freedoms in 1982.
This focus continues today, as the agenda of the 39th Parliament attests. For example, Bill C-2, the Federal Accountability Act, dealt with the appointment of returning officers, who are now the responsibility of the Chief Electoral Officer. It also dealt, under Bill C-31, with the integrity of voting. It also dealt with the issue of proof of residence, under Bill C-18. And it is considering, currently, Bill C-6, which deals with visual ID; Bill C-16, which deals with advanced polling; and Bill C-20, an important piece of legislation that deals with the appointment of senators. This is all to show that there is still a focus on the electoral process and the conduct of elections.
However, over the last 40 years, growing concerns have been expressed with regard to the influence of money in the electoral process. These concerns have led Parliament to incrementally design a regulatory regime to govern the use of money during electoral campaigns. We are now at the point at which Canada is at the forefront among mature democracies in how it regulates the influence of money in election campaigns. This regulatory regime of political financing was initially built in the seventies, and it has since witnessed repeated legislative reform that continues today. Again, this Parliament passed Bill C-2, which deals with contributions and gifts and which banned contributions from corporations and unions. It is also considering another important aspect of the financial regime, under Bill C-29, with regard to loans.
My purpose today will be to deal with a particular and key aspect of our political financing regime, that of election expenses and their treatment by Elections Canada under the Canada Elections Act. More specifically, I will touch on the legislative framework, the administrative framework, and the compliance and enforcement program.
There are certain principles underlying the legislative and administrative framework. First, to maintain public trust, are transparency and fairness. These principles are expressed through various provisions in the act that deal with public disclosure, expense limits, public funding, compliance and enforcement, and, something that is often forgotten, the distinctiveness of political entities. Each has its own regime, with distinct rights and obligations.
Transparency is about disclosure. It's about providing information to electors on candidates, parties, and other entities. It involves, with regard to financial matters, reporting revenues and expenses and the sources of those.
Fairness is the key principle of a healthy democracy. In our democracy, fairness is about allowing political parties' candidates to have an opportunity to present their visions, their policies, and their values to electors. What those are and how they are communicated to electors is the exclusive domain of political parties and candidates. However, legislation seeks to ensure that the competition among political parties and candidates to secure the vote of electors be conducted within certain rules designed to create and maintain a level playing field. One area of legislation, again, over the last 40 years, has been the adoption of rules that will foster this level playing field. These rules deal specifically with how money can be raised and how it can be spent in order for them to present ideas and reach out to electors.
The Canada Elections Act passed it to the CEO to administer these complex rules, with a view to ensuring that key principles are maintained at all times. In doing so, Elections Canada must act fairly and impartially and exercise due diligence at all times. When it finds evidence of non-compliance and possible offences, it must exercise the authorities provided by the legislation in accordance with all the requirements of fairness and due process, within the strict limits of the law. To do otherwise would undermine not only Elections Canada as an institution but also the democratic process itself.
Let me turn now to the key aspect of the legislative framework as it relates to the treatment of election expenses and the role these key principles play in the electoral law.
The relevant aspects of the legislative framework involve key definitions, a brief discussion of duties of official agents, the notion and concept of election expense limits, the concept of transfers among political entities, reporting requirements for those political entities, entitlement to reimbursement, and key differences between parties and candidates. Note that some misunderstand the system and tend to view parties and their candidates as a single entity, yet the law makes clear distinctions and establishes distinct responsibilities, benefits, and obligations for parties and candidates. For the most part, these are treated independently of one another. This is particularly true in disclosure and reporting requirements, which are different for parties and candidates. Access to public funding is different. Spending limits are set differently for candidates and parties. To some extent, rules governing the raising of contributions are different for candidates and parties.
Let's first look at key definitions. Under candidate electoral campaign expenses, there are three key definitions that need to be considered: candidate electoral campaign expenses; candidate election expenses; and candidate personal expenses.
Electoral campaign expenses are expenses reasonably incurred in the election and include election expenses themselves and personal expenses. There are electoral campaign expenses that are neither election expenses nor personal expenses. An example is the audit expense in excess of the subsidy. It is an electoral expense, but it is not an election expense. There is also the rent of an office outside the rent period. For example, when a candidate rents an office before the writ is dropped or carries the office after the polling date, these are electoral campaign expenses, but they are not election expenses.
An election expense includes any cost incurred or non-monetary contribution received to the extent that the property or service for which the cost was incurred or non-money contribution received is used to directly promote or oppose a candidate during an election period. The expression “directly promote” does not refer only to expenses incurred to expressly urge voters to vote for or against a particular candidate. It has a much broader meaning that encompasses all expenses that directly assist in getting a candidate elected. For example, it includes the rental of office space, equipment in that office, the computers, the supplies, and the remuneration of campaign workers during the election period. All such expenses directly promote the candidate and are thus election expenses for the purpose of the act.
The third definition has to do with personal expenses. Personal expenses of a candidate are his or her electoral campaign expenses other than election expenses reasonably incurred in relation to his or her campaign. Personal expenses include travel and living expenses, child care, and similar expenses.
It's important to note that there are three categories of expenses, each with its own definition and standards. Election expenses must generally be disclosed. They are subject to a reimbursement, and they are subject to spending limits. Personal expenses must be disclosed, and they are subject to a reimbursement. Residual expenses that are neither personal nor for an election must be disclosed, but they are not subject to a reimbursement. Again, I mentioned previously the subsidy for audit.
Another key concept in looking at election expenses is the notion of transfer. The act allows specific political entities of the same political affiliation to move resources amongst themselves without being subject to the restriction on the source and amounts of contributions set out in the act. A contribution is the amount of money received that is not repayable; otherwise it would be a loan. It is the amount of money received that is not repayable, or the commercial value of a service or a property, or the use of property or money to the extent that it is provided without charge or at less than commercial value.
Again, this is a new, essential concept--commercial value. How is commercial value defined? It's the lowest amount charged for a property or service by the person who is in the business of providing that good or service. Alternatively, it's what another commercial provider charges for the property or service who is not in that business.
At the end of the electoral campaign, candidates must file an electoral campaign return. That return is an account of all financial transactions for an election. It consists of a form that has 15 pages and is divided into four parts. It's a bit longer than even a tax return, so there's a level of complexity attached to filing those returns.
Let me give you an example of how these concepts can come together. Let's assume that a party pools the purchase of lawn signs for its candidates and offers those lawn signs to candidates. They have the option of accepting the package or turning it down. Let's say one candidate agrees to purchase 1,000 signs for his campaign and that those signs have a value of $10,000; however, the candidate can only afford $2,000. Provided the signs are used during the campaign to promote the candidate, the return will have to show the transaction as follows. First of all, the election expense will be $10,000 for the candidate, because he received those 1,000 signs and used them during the campaign. That's the amount shown as the expense. Within that he will show the paid expense as $2,000. He will show a non-monetary transfer of $8,000, which is the commercial value of the signs that were transferred from the party to the candidate. The amount shown as the expense will be counted against the spending limit and it will be eligible for reimbursement. The amount shown as non-monetary will count against the spending limit, but it will not be reimbursed since nothing was paid for that amount.
This is a very simple example of how those transactions have to be reflected in the return.
To emphasize the critical role of money and the need to rigorously control inflows and outflows and ensure that financial activities are strictly within the constraints of the legislation, the legislation provides or requires that each candidate appoint an official agent. In fact, a candidate cannot officially run as a candidate without having appointed an official agent. This is a must under the legislation.
An official agent is much more than a bookkeeper. In fact, if we can do an analogy, he or she could be seen as a treasurer or a financial comptroller. You have on slide 9 the key duties of an official agent.
Generally, the official agent is responsible for controlling all electoral campaign expenses; that is, for a candidate's campaign, only the official agent or the candidate or someone authorized in writing can incur an electoral campaign expense. So you will understand that to fulfill his or her duties, the official agent must of course be familiar with all the concepts and the definitions I mentioned earlier and must develop a good understanding of the underlying principles of the legislation.
Let me talk briefly about expense limits. The first point to note is that there are separate limits for parties and candidates and that those limits apply to election expenses, whether paid or unpaid, and include the commercial value of non-monetary contributions or transfers.
Elections Canada calculates those limits for each in accordance with a formula set out in the act. I will not go through the specifics of the formula, except to say that, for candidates, that formula takes account of the number of electors, the population density in the riding, and the geography of the riding, and provides an adjustment for inflation.
Spending limits for parties are a little bit simpler to calculate. It's the number of electors in the ridings for which candidates are presented by the party.
For the 39th election—that's slide 13—the average expense limit for candidates per electoral district was a bit over $81,000, and for a registered party that endorsed a candidate in all 308 ridings, the limit was set at a bit over $18 million. What does that mean? One may be tempted to say that in total a party having 308 candidates could spend altogether up to $18 million for the party and up to $24 million, almost $25 million, given the limits of each and every candidate, for a total of $43 million. However, to look at it in this manner would be mistaken, as the law does not consider the political family as one entity but rather, in this case and this example, as 308 distinct, separate entities with their own rights and obligations.
Let me talk briefly about transfers. The Canada Elections Act recognizes the organic link that exists in the family of political entities, allowing them to move funds, goods, and services among themselves without treating those movements of resources as contributions. The provision of resources from one political party to another, which is not specifically provided for under the act, constitutes a contribution and is subject to the eligibility and limits set out in the act.
Transfer of expenses is not permitted, as this would render the distinct limit of parties and candidates meaningless. As you can see, it is absolutely essential to keep all those definitions and concepts as we look through various returns provided at the end of electoral campaigns.
You will find on slide 15 a table showing the transfers, what is allowed and what is not allowed. Clearly, you will see that transfers between parties and candidates are perfectly allowed by the Canada Elections Act. It has some standards, but they can move resources freely between entities.
You will note that for candidates, these movements of resources can start only after they've been officially declared candidates, meaning that their candidacy has been registered with the returning officer. You will also note that transfers to candidates after polling day are allowed only to pay for unpaid claims and for nothing else.
You will find again at slide 16 another way of looking at it. There is a triangle on that slide that shows the relationship between the party, the candidates, and the EDAs, and the respective rights and obligations for each. You will see clearly that the transfer of money, goods, and services among all three entities is allowed. You will also note that the transfer of expenses is not allowed, and you will see that Elections Canada is overseeing, through various programs, how the money flows among entities.
I should point out that for the 39th election, Elections Canada dealt with 15 registered parties that had over 1,200 electoral district associations, and with over 1,600 candidates, each with their respective agents.
On page 17 you will find a table of the transfers reported in Canada through returns for the 39th election. You will see that all parties represented in the House have transferred resources with their affiliated entities. These have taken place between candidates and parties, between candidates and EDAs, and between parties and EDAs.
Motions in Amendment
Canadian Human Rights Act
May 16th, 2008 / 1:05 p.m.
Nancy Karetak-Lindell Nunavut, NU
Mr. Speaker, I am pleased to speak to Bill C-21. This has been very contentious legislation, as short as it is.
We have said many times that the Liberal Party supports the repeal of section 67. It is how the bill was drafted, how it was put forward without including the amendments that were proposed by the many witnesses who came before our committee. We have a great deal of trouble with that.
We have made many attempts in the years that I have been here to try to repeal section 67 of the Human Rights Act. Maybe part of the difficulty was that it was put in with other items, for example, in Bill C-6, with which the communities had great trouble. I want it to be on record that we were never against the repeal of section 67, as some of the press coverage has made us out to be.
The two pieces of legislation we are dealing with in the House today brings to light again the very statements of many aboriginal members. We tend to forget there are basic rights that we take for granted in our country, to which people in aboriginal communities do not have access. However, our party will support the two motions that have been put forth.
The point I want to make is there should have been a non-derogation clause in the legislation in the first place. If the Conservative government had put forth this legislation in the same way it did with the specific claims, with cooperation from the Assembly of First Nations, the bill would have been passed in the House by now and would have been put into practice already.
When the minister introduced Bill C-30, he talked about the great cooperation between the Assembly of First Nations and the government to put forth that bill. Again, if the Conservatives had that same kind of consultation and reaching out, the bill probably would have been in better form. As I said, our party will support both Motion No. 1 and Motion No. 2.
Judging by the questions I heard in our committee from some of the government members, they seemed to have great difficulty with understanding collective rights versus individual rights. We asked opposition members that there be some consideration of collective rights. Some people have interpreted that to mean we are giving the bands and, in some cases, the chiefs an out from what repealing section 67 would do.
I beg to differ. As I said in committee and in an earlier speech today, we are quick at looking at the negative of these initiatives, instead of looking at the positives. There could be different considerations that would actually be more beneficial and more appropriate to the people whom this legislation will serve.
One example I used was how we treated our elders. Because I come from a different community, I am not first nations but one of the Inuit from the first peoples of our country, we have very stated understandings in our culture. We respect the elders and we do certain things that cater to elders, which might not be considered in other cultures.
I remember giving one example at committee. When we check in at the airport we see all these different aisles for business class, for people with no baggage and for the regular lineup. I could see in one of our communities that we would have a lineup specifically for elders so they do not have to wait for 20 people ahead of them when they are trying to check in at the airport.
I give that example to show that when we look at different cultures and different ways of doing things it does not always have to be in a negative light. We do have some practices that I think would bring about better communities across this country if they were practised.
We have not survived as a people in some of the harshest climates in this country by not working together. We do many things that are good for the whole community. I know that is a very different understanding from that of a municipality divided into lots where everyone individually owns the lot their house is on. That is not always the case in our communities.
We have to understand that in many ways we think of ourselves as one group of people, not as individuals. Of course, we have come to appreciate the individual rights that we are learning along the way, but again I am stressing that when we look at situations that concern individual rights versus collective rights, all we are asking for is a certain understanding.
We are not saying that we should always rule in favour of collective rights. What we are trying to point out is that there should be some consideration when people come before the tribunal such that the tribunal tries to fully understand the makeup of the community, the customs of the people and the way things have been done traditionally.
I have stated before, and I will state it again, that just because we extend certain rights to people it does not mean they will all exercise them. There needs to be a transition phase that is respectful. In this case, I am very pleased that we were able to see the 36 months. The transition phase needs to educate people on what this means for them.
I live in a community where we can put cases before the tribunal, but we do not always see people taking advantage of that because we have not fully educated the people to let them know what their rights are. That is an ongoing process.
I am very supportive of people being given that opportunity in the first nations communities, just as we are trying to do with other pieces of legislation we are putting forth in the House to improve lives on reserves and in other aboriginal communities to get them to a level playing field.
In the other debate that I was talking in, I could not stress enough that in most cases we are looking for basic needs. We are looking for very basic things that other people take for granted. We want to make sure that first nations are able to participate in those same democratic processes that we have in this country.
I would very much like to see this legislation pass. I know that our party will be supporting it.
April 30th, 2008 / 6:35 p.m.
Karen Redman Kitchener Centre, ON
Mr. Speaker, in February I asked a question in this House about election expenses. The Conservative government has always been quick to brag about its accountability, but we rarely see that rhetoric in action. One only has to watch the proceedings, or the lack thereof, in the Standing Committee on Procedure and House Affairs, of which I am a member, to realize that the government really has no interest in opening itself up to public scrutiny.
Those of us in the opposition are anxious to put aside partisan interests and resume the meetings of the procedure and House affairs committee. This committee has not met in over a month because the Conservative government members have refused to hold additional meetings to investigate their party's alleged scheme to subvert election spending in the 2006 federal election and go over the limits that are set for all parties. This was revealed by the Chief Electoral Officer. As a result of the stubbornness of the government, regular committee meetings have ground to a halt, and even government legislation has been left sitting idle.
Members of the procedure and House affairs committee, and this includes whips of all three opposition parties, have urged the government to return to the work on Bill C-6, An Act to amend the Canada Elections Act (visual identification of voters). This is just one of many important pieces of government legislation that have been left sitting idle and are not being dealt with by the committee because of the Conservative government's stalemate.
The official opposition is determined to make this minority Parliament work and to have the work of the committees be useful. The Conservative government's fear of accountability should not be allowed to paralyze Parliament. Earlier this year, the three opposition parties united to remove the chair of the procedure and House affairs committee because he was using obstructionist tactics to prevent the parliamentary investigation of his party's in and out scandal. Unfortunately, the new chair who was elected subscribes to the same book of dirty tricks compiled by the Conservative Party.
The Conservative Party has been under investigation by the independent elections commissioner since last spring for allegedly funnelling over $1.2 million in national advertising costs down to regional candidates during the 2006 federal election. This was done in order to circumvent federal election spending limits.
In January, Elections Canada filed an affidavit pointing out examples of how Conservative candidates booked widely different amounts to claim expenses for broadcasts of the same national party ad. It indicated its concern that this scheme was designed to make use of unused local campaign limits to book national campaign expenses rather than to actually fund local campaigns for local advertising.
The Conservative government has literally written the book on how to disrupt democratic operations and to grind parliamentary business to a halt.
Canadians want Parliament to work, and we as Liberals are committed to doing the work that we were elected to perform. Liberals even told the committee chairperson that we were willing to temporarily postpone an examination of the in and out election financing in order to enable the procedure and House affairs committee to make progress on other issues, yet this committee continues to be locked out.
Why is the government going to such great lengths to block an investigation by Elections Canada? When will this important committee get back to work on behalf of Canadians?
April 16th, 2008 / 4:05 p.m.
National Chief, Assembly of First Nations
Mr. Chairman, I made the point as clearly as I could on the matter of consultation. We make a very concerted effort to consult with our people on any and every issue. On this particular issue, you have to remember, we're dealing with a matter that's been 60 years in the making. There have been many and varied attempts by different governments to resolve this issue, and in each attempt there's been some discussion and consultation with our people.
I mentioned that in 1998 we came forward with the joint task force report. Up to that point, that was the best example we could point to of a joint undertaking between government and us. The result of that work, I believe, reflected as accurately as possible what we felt and believed was necessary to bring about a fair and just resolution of the many outstanding claims in the country. That particular undertaking was based on extensive discussions and consultation with our people.
When we were offered an opportunity to do something better, to improve what was on the table at that point--I'm referring to Bill C-6, which was never brought into force, because it didn't reflect the work of this joint task force, and it's good that it wasn't brought into force--we accepted the challenge that was put to us by the government.
We understood that it was not going to address every single issue or concern that had been advanced over the years by various claimant groups. For example, the particular legislation doesn't deal with treaty rights. It doesn't deal with land. It deals with financial compensation, and there's been a threshold included of $150 million. We were comfortable with the offer. We knew that the parameters advanced by the government would, in the main, be acceptable to most claimant groups.
In those areas the legislation would not address specifically, such as large claims, for example, we insisted on another parallel commitment to deal with those issues on the part of the federal government. When you put the two together, we felt it represented the best interests of claimant groups in different parts of the country.
I make the point again: We just didn't have time to do the kind of consultation a number of witnesses have suggested. I don't know if the outcome would have been any different from what we have now if we'd had more time, given what we were presented with. This is a vast improvement over what we have now. I'm pleased to support Bill C-30. There's no question about my support for the bill.
April 9th, 2008 / 3:55 p.m.
April 2nd, 2008 / 3:35 p.m.
Professor Bryan Schwartz Professor, University of Manitoba
Thank you very much, Mr. Chairman.
I'm appearing here as an independent academic, which I have been for 26 years. Intermittently in the last eleven years, including in this round, I have been an adviser to the Assembly of the First Nations on the creation of the new specific claims bill. I have some practical experience from that, but any views I express are my own. The Assembly of First Nations is not responsible for them and is certainly free to take a different position on any of these points, but they have graciously permitted me to appear here in my own capacity.
The last time I appeared before a parliamentary committee, it was a Senate committee. It was the committee that produced the Senate report Negotiation or Confrontation: It’s Canada’s Choice, which made a very valuable contribution to this round. Believe me, I had no inside information that anything actually was going to happen. But I did say at the time that in my entire life I had never seen a convergence of elements such as would permit a longstanding and intractable problem to finally be solved. It just seemed to me at the time that everything was coming together.
A lot of work had been done in the past. Some of it had come to naught, but we knew a lot of the pieces that were needed for an independent claims body. Bill C-6 was not a success, but the opposition parties had engaged with the issue and they made a lot of constructive suggestions that were eventually incorporated into this bill.
The basic issue of specific claims, I think, was increasingly recognized--as I colloquially call it--as non-theological. It really doesn't depend on your philosophy, as long as you accept that lawful obligations should be addressed. No matter which party you belong to, most folks think it's the duty of the government to honourably pay its lawful obligations within the larger context of paying down the Canadian national debt generally. All the elements seemed to be right, and here we are a year and a half later, and everything did go right.
I believe that the new specific claims bill that is before you is a tremendous achievement. That doesn't mean that it meets the platonic ideal of what the absolutely impeccable first nations specific claims bill would look like, but I think it is the best agreement, the best piece of legislation achievable, at this point in history. It represents, finally, a successful conclusion of efforts to achieve something like this that has literally taken over 60 years. It would be a great accomplishment to now see it passed into law and passed into law quickly.
My concern, frankly, is that I have a real sense of urgency here. It's a minority Parliament, and anything can happen. I would greatly regret to see this achievement lost and somehow relegated to one other issue in a future Parliament, when we are now so close to finally succeeding after so many years of frustration.
Very briefly, I'll deal with some of the positive features of the bill.
Independence has always been at the core of the debate. The concern was that the federal government had the last say, for all practical purposes, in claims against itself. This bill provides for an independent body. It will be staffed by judges, people trained and expert in making independent decisions. There will be a voice for the Assembly of First Nations in discussing which particular sitting judges will be appointed to the tribunal. That will be done discreetly and according to the terms of the political agreement, because we must respect the dignity of sitting court judges. We don't want public debates about who's good and who's bad for this job. But very significant progress has been made on that issue.
Delay has been a tremendous problem throughout the entire system. Bill C-6, unfortunately, had too many obstacles, too many unilateral choke points for the minister. A creative idea that was made during the Bill C-6 round was to put in fixed timelines, and now we have them. This new bill says that certain stages can only take so long, and then a first nation can move a claim to the next stage. A claim cannot be delayed at the consideration stage by the minister indefinitely. After three years, the first nation has the ability to move it to the tribunal. It is the same thing with a claim that's been stuck in negotiations for more than three years.
With respect to criteria, Bill C-6 made some progress, but there were still some points of very serious omission. One of them was the issue of unilateral undertakings, which had been recognized as a potential source of specific claims in the Guerin case by Chief Justice Dickson. It is very clear now, in the drafting of criteria, that unilateral undertakings that give rise to a legal obligation can be a specific claim.
I know there have been concerns from British Columbia, for example, about Wewaikum claims, a promise by the federal government to carry out a treaty commission report. In my interpretation of this legislation, those are very clearly covered. We were also concerned in the Bill C-6 round about whether pre-Confederation claims were adequately addressed, and there is adequate language in the new draft to address virtually any pre-Confederation claim issue.
Monetary jurisdiction was a very serious concern with Bill C-6. It was sometimes referred to derisively as a small claims commission. The $150 million means that the overwhelming majority of specific claims can be addressed. No federal government to this date has been prepared to proceed without an individual claims cap. Perhaps after a confidence-building process with this new tribunal that can be achieved.
The just treatment of large claims continues to be an issue that I hope will be closely attended to, including by parliamentary committees like this. It is addressed in the political accord, and there's a lot of work still to be done in that. That work in the short run will have to be done outside of legislation, because the $150-million cap means it will not be dealt with. Access to the tribunal will not be provided within the legislation.
One criticism that has been made of the new bill is that the remedial authority of the tribunal is confined to giving money damages. The new tribunal will not have the authority to say “This was your land. It was unlawfully taken away and it's yours again.” No proposal for a new system that has had a buy-in from the federal government over the last eleven years has gone beyond providing for money jurisdiction. Successive federal governments of both stripes have thought that it would be too complicated, too problematic to have an administrative tribunal deciding who owns real property rights, particularly since the federal government doesn't own most of the land to which claims would pertain.
I do want to say that it would underestimate the value of this new bill to have a tunnel vision about the remedial jurisdiction of this new body. Yes, it can only give money damages--that's all the tribunal can do--but before the tribunal makes a decision you have a long process of the claim being considered and opportunities to negotiate. There will be an alternate dispute resolution body to help the parties negotiate. At the negotiation stage the first nation and the federal government are not confined to settling up on the basis of money only. They can be as creative as they wish. The potential that there will be a money award gives an incentive to the federal government to try to negotiate seriously and arrive at creative solutions.
Indeed, after an award is given there is still an opportunity for creative solutions. A band could say, “Well, you gave us our award for $100 million, but actually we would be happier if it was some money and revenue-sharing, or some money and you can find a way where we can get access to some land”. And creative negotiations are possible after an award as well.
So yes, it's a limitation on the jurisdiction of the tribunal. It's a limitation that has never been transcended, even in the model bill, in the 1998 joint task force report. I think one has to recognize that it is a limitation for one specific purpose--what a tribunal can do. It does not limit what the parties can do by way of negotiating a creative settlement before a decision of the tribunal, or afterwards.
Some concern has been expressed about adjudication and adversarial processes. The new system as a whole, not all of which is contained in the bill--some of it will be worked out under the political agreement--will provide for alternate dispute-settling mechanisms, and these will be available at the tribunal stage, not only at the initial filing stage. The rules of the new tribunal do provide for case management and they do provide that a judge can oversee references to mediation, for example.
Sometimes we do a post-mortem when things go wrong. We do it less frequently when things go right, but it's worth doing it in this case. What went right and how can we do it again? In 1998 the joint task force report produced a model bill full of good ideas, many of which are now going to become law if this bill is passed. It was very successful at the technical level: what was missing was sufficient engagement at the highest levels of government.
So officials came up with a really powerful proposal, but government was not ready to seriously move with it at the time. It showed that officials working together can not only engage at the level of concept, but can sit down and wrestle with all the fine details needed to make a functioning system.
The 2003 bill, which is still on the books but hasn't been proclaimed, went off the rails when the dialogue ended even at the technical level. At some point the federal government said, “Consultation is over. Now you're in listening mode. We'll tell you what's happening.” The bill was worked on internally through the federal system. A lot of people in the federal system in good faith said, “This is my problem, that's my problem.” It was sort of an internal negotiation, with the federal government talking to itself. Maybe none of the individual changes seemed to be too bad. You added them all up and ended up with a bill that was simply not acceptable to any significant first nations' constituency.
This time things went right at both the technical and political levels. We had a very successful engagement at the technical level. My colleagues at AFN with whom I worked on this—Candice Metallic, Roger Jones, Tonio Sadik, Vice-Chief Atlee, and so on—at the technical level had a very positive and constructive relationship with federal officials like Sylvia Duquette from INAC, Diana from INAC, Bob Winogron from the Department of Justice, and Jean-Sébastien Rioux, the chief of staff to Minister Prentice.
I can tell you without going into details that there were times of frank and candid exchanges of opinions; it wasn't all group hugs, but it was a very positive engagement in which people were trying really hard to solve technical problems in an honest and forthright manner. I think we were very successful in that respect.
What also made it work was liaison with the highest levels of government. The Prime Minister's staff member, Bruce Carson, was involved in a joint task force committee that oversaw the technical negotiations. That meant when we got stuck on certain points and needed direction, the liaison that was needed between the technical level and the political level worked.
We had commitment at the highest levels of government, and commitment at the technocratic level of government. You need both. It's surprising, but it's a truism of political science that just because the senior levels of government want something doesn't always mean it happens; you need support from the technocrats as well. Technocrats can't make it happen without engagement from the highest political levels. Both happened here.
We had a process of partnership, not only over a few months, but all the way back to the joint task force eleven years ago. I know there's been some criticism that some first nations thought, when they saw the product, they hadn't been consulted enough. I can certainly understand that when you get a new technical bill and have only a few weeks to comment on it, of course you're going to have concerns about whether you've had adequate time to assimilate it.
In fairness, one of the reasons people couldn't see things earlier was because there was a joint agreement that negotiations would work better if they were done confidentially; that it was easier to be candid and try out ideas in a confidential fashion. The federal government has legitimate constitutional sensitivities about sharing legislation in drafting form with outside constituencies. So we had to work under some conditions of confidentiality. It wasn't out of any desire to exclude anyone; it was a necessary part of having the kind of highly detailed engagement in every aspect of the bill that has made it the success I think it is.
I haven't heard all the testimony or seen all the submissions, but it's my understanding from talking to people who have that while there are some conceptual points that people may not agree with—like the $150-million cap—considering the complexity of this bill, there have been very few if any points where people have said “this is just technically wrong”, or “this doesn't make sense”, or “this doesn't add up”.
People on the first nations side don't think there should be an individual claims cap of $150 million; they would like to see no claims cap, and that's a policy disagreement. But if you get to the technical working of a highly complex bill like this, the fact that it seems to have stood up so well to scrutiny and criticism is a real tribute to the process that preceded it.
This process gave the Assembly of First Nations not only an opportunity to vet it, but an opportunity to contribute creatively to the content of the bill.
You can look at the bill and see some creative, innovative features that I think have added to the feeling among first nations that on the whole, while not ideal, this is a fair and legitimate new system. The preamble of this new bill reflects an AFN creative contribution. The idea that there will be an advisory committee to the tribunal in the making of its rules is another AFN contribution.
I've read some of the testimony here. People wonder how elders get a role in this. Well, that will be one opportunity. When the tribunal adopts its own rules, there will be opportunities for all kinds of people to give the benefit of their insight and experience and expertise into contributing to the rules of this tribunal.
We've recognized all along that if all you do is cut and paste the Federal Court rules, this isn't going to work. You need rules of this tribunal that are flexible, expeditious, more informal, so that you can actually get claims settled and not spend eight or ten years litigating or getting caught up in pretrial processes.
The political agreement was a creative contribution from the Assembly of First Nations. It contemplates an ongoing liaison and oversight committee, a forum where the dialogue can continue. It will tackle some of the points on which the first nations believe the current bill is short of the ideal. It will tackle the question of claims above the cap, claims over $150 million, will begin the discussion on what to do about claimants who can't bring a claim under this system because they don't have band status, will deal with the question of additions to reserves, when bands get monetary judgment but want to buy their land back and have it recognized as a reserve.
In 1787 Benjamin Franklin emerged from a drafting convention and was asked by a citizen, “So what did you give us, a monarchy or a republic?” He said, “A republic, if you can keep it.”
The reason I cite that is that, yes, this is a tremendous bill, in my view—and in terms of what's practically achievable here now, not in terms of some kind of theoretical absolute ideal—but even a very sound bill like this will only work in practice if there's follow-up. There's no point in having a system, for example, where claimants have the theoretical ability to access the tribunal but are in no financial situation to do their research, to advocate their claim, or to appear before the tribunal. This liaison and oversight committee is supposed to look at issues such as principles and access to funding. Absent that, the whole system could turn out to be a great disappointment.
For the tribunal rules, you need commitment on both sides, the federal government and the AFN each making their own suggestions as to how these tribunal rules will work. We're hoping that perhaps we can make a joint submission to the tribunal that will contribute to the tribunal's deliberations on how this will work.
I feel a sense of urgency about passing the bill now, before anything can go awry, not because of the bill itself but just because of the macro-politics in which it's located.
The parliamentary process has contributed in a great many ways to its success, from the Senate committee report to the amendments that were made by opposition parties to bills introduced by earlier governments. I think this process has been very useful in giving people a chance to scrutinize and discuss the content of this bill.
But with the greatest respect, I would suggest that the primary and perhaps exclusive focus, unless you can find some technical errors that we made, should be on trying to move the bill through the House of Commons and the Senate stage, say by the end-of-May break, and focusing the attention on what happens next: the “republic, if you can keep it”.
What role can a parliamentary committee make to ensure that this isn't just a Potemkin village kind of statute, but one that makes a real difference? We have the agenda and the political accord. We note what kinds of issues have to be addressed in the months and years ahead: recommendations about this committee supporting the importance of those steps being addressed; supporting the need for the federal government to continue to engage and to provide whatever resources it needs to the Assembly of First Nations and other first nations partners, so that they can consult and contribute; perhaps continuing to exercise an oversight function, having hearings six months or a year from now and asking, “Is this actually working in practice?” That would be a continuation of the very positive role that the parliamentary process has played in the creation of this bill to date.
I'm sorry if I went a little over time, but that's my overview of where we are, from my perspective, on the bill.
Thank you very much.
April 1st, 2008 / 12:25 p.m.
Ed Fast Abbotsford, BC
Thank you, Mr. Chair, and thank you to the witnesses.
There was a suggestion earlier here at the committee that the report proves that SMS doesn't work. But my reading of the report brings me to quite a different conclusion. The report actually says that SMS is highly desirable. In fact, recommendation 17 specifically states the high desirability of maintaining SMS and making sure it's implemented properly. That brings me to the question.
Implementation appears to be a big part of the problem here. The report actually distinguishes between organizations such as VIA Rail, CP, and CN. It speaks in glowing terms about VIA. It also speaks favourably about CP, and refers to it making great strides. But when it comes to CN it's highly critical. In fact, it refers to there being a culture of fear within CN, and that employees are afraid to report.
If we're going to get to a point where employees are reporting more often about some of the concerns they have, do we not have to address that culture of fear? I ask that because the report touches briefly on the issue of immunity, and Air Transat has adopted a provision for immunity for its employees when they report incidents. Under former Bill C-6, now Bill C-7, we're legislating that for the aviation industry.
I asked Mr. Lewis that question and didn't get a satisfactory response. So do you see imposing a legislative requirement for immunity as being helpful in moving forward? If not, why not?
Standing Committee on Procedure and House Affairs
March 12th, 2008 / 2:55 p.m.
Karen Redman Kitchener Centre, ON
Mr. Speaker, for seven months the procedure and House affairs committee has been trying to study election law violations by the Conservative Party while the government members did every procedural trick in the book to stall that committee. Frustrated committee members recently elected a new chair.
My question is for the member for Elgin—Middlesex—London. When will the chair call a meeting to study the elections violations of the Conservative Party, as well as voter identification Bill C-6, which was passed in the House on November 15?
March 6th, 2008 / 11:50 a.m.
Pierre Lemieux Glengarry—Prescott—Russell, ON
Thank you very much, Chair.
I first joined this committee in the fall, and since my arrival I've been really disappointed in the manner in which the committee has operated. There was an understanding that we would move forward with legislation. Legislation is of primary importance to Canadians, and in fact to this committee, and that should take precedence, particularly as bills have moved through the House and they must be reviewed by this committee.
Instead I've seen extreme partisanship on behalf of the opposition. They keep coming back to this election financing, and they simply will not let it go. They want to win this point, and they've brushed legislation aside.
I spoke at length about Bill C-6 and how important it was to the last by-elections, how important it is in the upcoming by-elections scheduled for March, and how important it would be in full federal elections. They simply will not move on legislation. They have a partisan issue they want to pursue and they're not going to let it go.
They're trying to hijack the committee. That's basically what it comes down to. To give credibility to this argument, I point out what my colleague, Mr. Lukiwski said: when the law clerk provided his non-partisan, professional advice to the committee, the opposition overruled him. That's remarkable. It's amazing. This is the manner in which they act. They want to hijack the committee. They will use strong-arm tactics in the committee to get their way. When they don't get their way, they get upset; they have a little temper tantrum.
We've seen that again with Monsieur Guimond, even today, raising points of order. In my view, raising a point of order is a privilege that's accorded to MPs. You're actually interrupting debate. You're cutting a member off to make a point of order. I've lost count of the number of times Monsieur Guimond has interjected with a point of order, ground the debate to a halt, and all attention focuses on him. It's not a point of order; it's a point of debate. Then 30 seconds later there's another point of order that's another point of debate.
I don't know how many times your patience has amazed me in the manner in which you have accommodated Monsieur Guimond and these types of, I'll call them, irregularities. I think you should respect the privilege that goes with making a point of order.
I was talking about the opposition hijacking the committee to their own partisan ends, and this is simply the next step. They're unhappy because they haven't had their way yet, so they're going to run roughshod over the committee once again and use strong-arm tactics to force their will upon the committee by ejecting the chair.
I, too, wish that many more of our meetings had been televised. I think Canadians would have seen, Chair, how well you managed this committee in very difficult and challenging circumstances. You've always been professional. You have actually been very careful to recognize people on both sides of the floor. The person who gets his hand up first and has the opportunity to propose a motion has that opportunity to start the debate. That's quite a thing.
Yet I noticed today that you recognized Monsieur Guimond first. You have not always recognized this side. You've recognized Ms. Redman first. There are all sorts of times that you've actually recognized both sides equally and fairly. You've managed the debates in a fair manner. You've corrected people when they've veered into repetition. When they've moved into irrelevance, you've pulled them back and said get back on the point. I think you've been equally firm with all members from all parties.
As I said, the opposition is not happy. All we're seeing here is a little juvenile temper tantrum, because they aren't happy. They're not getting their way. The only reason they're able to get away with it is because they happen to outnumber us on the more rational side.
I think this is a great disservice to Canadians, what's going on here. I will say that taxpayers' money is being used to serve partisan ends instead of studying and moving legislation. I think that is a great shame, and yet the opposition couldn't care less.
Now they're going to chew up more time, more effort, by forcibly ejecting the chair. I am completely opposed to that.
As I said, Chair, I've been on several committees myself, and I have been very impressed with the manner in which you've conducted these meetings in what I call difficult circumstances. I actually think your actions are a model to other chairs.
The opposition, in pulling this tactic today, is simply showing Canadians again that this is a partisan move, that it is a hijacking of this committee, and that it's their way or no way. That's basically the way they're framing this.
You have my full support, Chair, and I thank you for the good work you've done.
We do need to bring this to a vote because I think it's fair that you know where the committee stands with respect to this issue.