First Nations Governance Act

An Act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other Acts

This bill was last introduced in the 37th Parliament, 2nd Session, which ended in November 2003.


Bob Nault  Liberal


Not active, as of May 28, 2003
(This bill did not become law.)


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.

First Nations Fiscal and Statistical Management ActGovernment Orders

January 30th, 2003 / 11:05 a.m.
See context


Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, the Foundation for Individual Rights was established in B.C. by Greg Hollingsworth, the staff representative of the member from Okanagan who left his job on the Hill to go to British Columbia to set up this racist organization. It is well known to have links with the Heritage Front. It can be seen from FIRE's website that it has a direct link to the Heritage Front which no one can argue is the racist, white supremacist neo-Nazi organization in this country.There are direct links, so I am not making any comment on the Canadian Alliance party directly or the member of Parliament who used to employ Greg Hollingsworth. I am simply pointing out that there is a connection that one cannot deny.

More specifically, we can look to comments from previous critics on aboriginal affairs from the Reform Party. I do remember the famous quote by a former member of Parliament, the Reform Party critic for aboriginal affairs, who said that living on an Indian reserve was like living on a south sea island and being supported by one's rich uncle. That is a statement from the Hansard of this place. I only point it out to say what a contrast it is for me to hear the current critic for aboriginal affairs trying to sell the Canadian Alliance as being committed to the best interests of the aboriginal people when the track record of that party is so shameful on this subject.

The current member for Athabasca made the comment that just because we did not have the defeat of aboriginal people in Indian wars in this country like they did in the United States does not mean that they are not vanquished people. Otherwise, as he mentioned, why would they be living on those God forsaken reserves if they were not vanquished to those reserves.

It is that Eurocentric mindset that has become associated with the Canadian Alliance. When we dig a little deeper into the speech that we just heard from the current aboriginal affairs critic, the member from Portage--La Prairie, we can see that he really is opposed to the idea of self-governance. He really is opposed to moving forward with the true moves that might lead to the self-determination. He is more committed to the assimilation model that we saw either in the 1969 white paper, which really spawned a generation of activism among aboriginal people, or this current suite of legislation.

I think that they will really be able to embrace what we believe is the underlying tone of this current suite of legislation, which is to see through to its final end the initiative that was in the 1969 white paper. The current minister seems so committed to ramming it through, even though he is meeting stiff opposition at every turn with the legitimately elected leadership of the Assembly of First Nations right across the country.

The standing committee on aboriginal affairs is currently listening to witnesses coming before it on Bill C-7, the first nations governance act. We cannot talk about Bill C-19 in isolation because it certainly constitutes a key and integral part of the suite of bills that constitutes a package which, as I say, is meeting strong resistance across the country.

One of the problems, other than the top down imposition of this legislation that is being cited by the leadership of the assembly and one of the underlying apprehensions that the leadership has is that it leads to the municipalization of first nations. It contemplates a third level of government that is comparable to the incorporation of a municipality.

There was a witness before the standing committee yesterday who is an authority on this subject and has researched examples in the United States where this led to great difficulties. A first nations community incorporated essentially as a municipality would then of course have the power to borrow money on the open market because it would then be identified as a legal entity.

That sounds all very well and good except for, let us say, if a community borrowed $10 million to build a sewage and water treatment plant and somehow defaulted on the loan. The equity it used for that loan may have been its own land base. The fear is the gradual erosion and deterioration of the historic land base of the aboriginal communities and the inherent risk in that measure.

This is one of the things that has been cited as a major concern regarding not just Bill C-19, the institutions we are dealing with today, but again the entire package.

Two days ago we also heard Matthew Coon Come, the national chief of the Assembly of First Nations, comment on Bill C-7 but he did not limit his remarks to Bill C-7. He spoke very broadly again of the inherent risks of this general package. He pointed out a number of the concerns regarding specifically the first nations fiscal and statistical management act. In the form of questions and answers, I would like to deal with some of the questions that have been dealt with at the national assemblies of the Assembly of First Nations when this subject has come up.

There are some misconceptions that they would like addressed and made clear in the House. I am glad the minister is here to hear them.

Some people would ask whether the proposed fiscal institutions act already has been approved by the chiefs of the Assembly of First Nations. To listen to some people speak, one would think that were true, but the answer is no.

What the chiefs originally approved and what they are interested in talking about is the development of new fiscal arrangements with Canada, nation to nation negotiations between first nations and the Government of Canada. Unfortunately we are further away from that than we ever have been before. The heavy-handed tactics of the current minister of aboriginal affairs have so alienated, so offended and so upset the leadership that I would say that relations have been set back 50 years in terms of true negotiations on a nation to nation basis that they contemplate.

The chiefs' committee that was formed, the Implementation Committee on the Protection of Treaty and Inherent Rights, and which concentrated on this issue, made it very clear that they needed to deal with this in a detailed way and with the fullness of time, so it was not approved. In fact the contents of the bill were not known by them until August 2002. When dealing with sweeping reform to a complex act like the Indian Act, that is not a great deal of time.

I attended the Halifax assembly of the Assembly of First Nations in 2001 where there was a misconception that there was broad interest and acceptance of this fiscal institutions bill. The support for the bill was not established at that convention. It was put off until the Ottawa assembly on November 20, 2002. I have the resolution from that assembly here and I will enter it into the record at a later moment.

Here is one of the key concerns, one of the common themes, throughout the three pieces of legislation that constitute this suite of bills. Does the proposed bill guarantee first nations that it will not diminish or change treaties, aboriginal rights or the federal government's fiduciary responsibilities? That is a key and paramount question. The fact is no, there is no guarantee in this package because there is no non-derogation clause.

Those of us who have been dealing with legislation as it pertains to aboriginal people in recent years know that every piece of legislation dealing with aboriginal people must contain, and there was agreement on both sides that there would be present, a non-derogation clause to assure the parties that nothing in the bill would diminish or derogate existing rights. The very absence of a non-derogation clause in this bill, in Bill C-7 and in Bill C-6 leads us to believe that there is a strategy here, a systematic effort to diminish and erode established current treaty rights or the federal government's fiduciary responsibility.

Adding to and fueling that fear of the absence of a non-derogation clause was the fact that the First Nations Land Management Act that passed in the last Parliament was the first time we noticed this trend. There was an attempt on the part of government to alter the wording in the non-derogation clause. It was not bold enough to eliminate it altogether because that would be seen as a flash point and people would notice what was going on. However it did attempt to alter it. We raised it in the debate at that time. After years of consistent, common language in a non-derogation clause, why was the government seeking to alter the language? We choose our language very carefully in legislation. There had to be some motivation or reason why the government would seek to alter it. That was the first hint.

We now learn that the Standing Committee on Aboriginal Affairs in the Senate is dealing with an omnibus bill that will delete completely the non-derogation clause from all pieces of legislation as it pertains to aboriginal people and instead assume that such a non-derogation intent is deemed to be a part of every bill.

Why would we take that positive, proactive step to diminish the very clause that gives comfort to those people on whose behalf we are passing legislation?

I have proposed language here that would not only satisfy those who are concerned about a non-derogation clause. It actually enhances the existing non-derogation clause. I would be happy to read that into the record at a later time.

How can we blame people for being apprehensive or suspicious of the motivation of government when it takes the active step to delete the non-derogation clause?

This is a question that I have addressed. Some people assume that the fiscal institutions act stands separate and alone from the minister's governance act. I have made it clear that none of these bills can be dealt with in isolation. They are integrally linked as a package and they are not the package with which aboriginal people want to be dealt.

I should perhaps back up for a moment and make it abundantly clear that I do not think there is a political party in the House of Commons that believes the status quo is acceptable and believes the Indian Act should not be substantially amended with the goal of ultimately eliminating it. We have heard the minister himself indicate that the ultimate goal is the elimination of the Indian Act because it is an evil document. It is a document that has been responsible for 130 years of social tragedy. It is incumbent on all of us to do everything we can to find an alternative way of relating to first nations people and allowing them their self-determination and self-governance.

None of the issues dealt with in the first nations governance suite of legislation deals with the fundamental problems, the urgent, pressing social problems facing aboriginal people today. When there was a round of consultation to supposedly get input from aboriginal people, those people who showed up at those meetings did not show up to talk about accounting practices or whether their audits were directed to this person or that person. They showed up to talk about health care, housing, clean water on their reserves and education. They wanted to talk about basic needs, which are so lacking in these communities. Instead, the minister in his wisdom, decided to address administrative details and tinkering with a flawed Indian Act instead of going at issues of substance that would have meaningful impact on the lives of aboriginal people.

I link it to the Canadian Alliance. I link the whole package with which we are dealing and its skewed priorities to the fact that for two years straight the Canadian Alliance launched a campaign to try to link together isolated incidents of financial problems on certain aboriginal reserves into a common theme that aboriginal communities were corrupt, or incompetent or both, and it tried to sell this package. I had to sit as a member in the House of Commons and listen day after day as Alliance members scoured the countryside until they found some misuse of funds or some band council that failed to submit its audit on time. They would stand up as if this was outrageous, that all aboriginal communities were corrupt, that we had to do something to clean up this terrible thing and that we were flushing billions of dollars down the drain and wasting it on aboriginal people who were squandering it and misspending their money. It was not based on fact.

As a member of the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources we get the facts. We know that 96% of all first nations communities, of which there are 633 first nations, submit their audits on time, keep their bookkeeping in accordance with the Indian Act, post those audits so that all band members can see them and have no problem whatsoever at managing their funds.

This is the first time we have opened the Indian Act for 50 years. Why are we dealing with issues of financial accountability and how people elect their officers when those are not the priorities with which aboriginal people want dealt? Because we have been sold a bill of goods and the public has been pulled around and led by the nose by this campaign on the part of the Canadian Alliance to try to convince people that aboriginal people are unaccountable or not transparent in their financial dealings. ay, It simply is not true and is not based on fact.

We are disappointed to be standing here. When the minister presented this to the standing committee on Monday, I made it clear to the him that as the member of Parliament for Winnipeg Centre, with the highest aboriginal off reserve population in the country, many of them concentrated in my core area riding, that there was nothing that would make me more pleased, in what short time I have as a member of Parliament, than to deal with meaningful amendments to this fundamental evil that we knew as the Indian Act. I would love to enthusiastically support amendments to the Indian Act. It would be very satisfying for me on a personal level and on a professional level because I owe it to the people that I represent.

Unfortunately, we are not being given the opportunity to address meaningful amendments. We will be tinkering with a flawed document. This is not a step toward social justice. This is administrative tinkering and administrative details that are not based on fact.

When people went to the consultations across the country, they did not show up to complain about how they elected their band council. They did not show up to complain about their accounting practices or their auditing practices. They came out to express the desperation and the desperate, abject poverty under which they lived and they wanted a meaningful change to their lives. I am disappointed to have to use this speech to address bills that I do not think are of great consequence.

There are misunderstandings about this bill, the financial institutions act. Some people think that the fiscal institutions act will be optional. In fact, the proposed bill does not state that it will be optional, that first nations communities can opt in or out. Neither is there any protection for a first nation against being forced into the act.

The other bills that are a part of this suite have these default positions. People can choose to change the way officers are elected and the way bookkeeping records are kept. If people do not choose to do so in compliance with the standards that are set out, these standards will be foisted upon people, imposed upon their communities. It is not much of a choice. We can say it is optional but if they do not opt to do it in two years, it is imposed upon them anyway. I do not know who would understand that as being truly optional.

The fiscal institutions act could, for example, be made a condition of a funding arrangement that a deduction would be made if a first nation did not acquire its own source of revenues through taxation under the proposed bill. In other words, if a band has the ability and the opportunity to impose its own taxation regime within its community and it chooses not to for whatever reason or fails to implement it, there could be deductions dollar for dollar in the revenue streams in the current fiscal relationship from the federal government to the community. This is certainly one of the reservations that has been raised.

I should also point out, and the previous speaker did mention quite rightly, that many first nations communities are 100 or 150 people. They are already over-audited and over-bureaucratized. This will be a further level of bureaucracy, a further level of financial expertise that, without a lot of training and resources allocated to them, a lot of first nations communities would find it really difficult to avail themselves of these new fiscal institutions. When the Auditor General came before our standing committee just the other day, she made the point quite rightly that, if anything, first nations communities are over-audited.

A first nations community has to file approximately 168 forms per year to keep the revenue stream coming from the four or five different federal agencies that provide funding to a community. The Auditor General recommended streamlining these things so as not to put such an onerous task on first nations communities. There is so much room for error in there. No wonder the Canadian Alliance could find cases where papers were not filed on time or people were in arrears filing their documentation. Over three official documents have to be filled out correctly and submitted every week to add up to 168 per year. With the new provisions of Bill C-7, the first nations governance act, there will be more accounting and it will become more onerous.

The Auditor General of Canada commented that first nations communities were over-audited as it was. The real problem lied with the lack of accountability of those who accumulated the data and did nothing meaningful with it. They were supposed to jump through hoops every week and submit these forms into this vortex that was the bureaucracy of INAC and DIAND. Those were her observations and her criticism, and we share that view.

A common question that is asked of people dealing with this fiscal institutions act is whether first nations will be able to handle their own revenues as an inherent right even if they do not opt in to any of these institutions. No. By our understanding, if the proposed bill becomes law, it will mean that Parliament intends the inherent right of self-government not to include the collection and management of first nations revenue.

Is this not an infringement or a derogation of the status that aboriginal people enjoy today? Perhaps that is why the government had to eliminate the non-derogation clause. Perhaps that is why the government and its advisers felt that, in all good conscience, they would have to eliminate it or they would be subject to a challenge even if a non-derogation clause was part of the preamble of the legislation and then they made this fundamental change to take the inherent right away from them. Even if it is one minor detail of an inherent right, it is the diminishment of an inherent treaty right.

When the national implementation committee on the protection of treaty inherent rights, a standing committee of the Assembly of First Nations, dealt with this, to its credit and with its reduced staff and resources, it identified this as a serious concern.

I referred earlier to the heavy-handed punitive retribution that comes down from the minister to any organization that will not fall into line with his view of the priorities and amendments to the Indian Act. The Assembly of First Nations has suffered the worst. The minister cut its funding by 50% because it would not play ball and would not hop on the bandwagon with this legislation. At the very time it was facing the most complex and detailed amendments to the Indian Act in 50 years, the minister cut its funding by 50%. This forced the assembly to lay off 70 to 80 researchers and staff who were authorities on this subject. This is like sending a person to court and denying them legal counsel.

This one bill alone is a thick document. It is an overwhelming amount of legalese. At the very time first nations need to defend themselves or at least represent themselves adequately in the face of this bombardment of legislation, the minister has undermined its ability to do so substantially by cutting its budget and forcing it to reduce its staff by 70 people. It is to the credit of the Assembly of First Nations that it can still do its research to defend the interests of the people it represents.

Can a first nation opt into one institution and not another within the fiscal institutions act? The answer again is no. The proposed institutions are interlocking. Each one functions in conjunction with the others. For instance, the statistics institute collects data about a first nation for the use of the other institutes.

A first nation cannot borrow money from the finance authority without the consent of the tax commission and a certificate of good management from the management board. In other words, it is a whole package deal. It is all or nothing, so first nation communities could not avail themselves of one of these, set up a board and establish one and not the other because they cannot operate in an independent way.

It makes us wonder how a small first nation community could do this. We are not dealing with municipalities in the Eurocentric western sense. We are dealing with a small village of 100 people or dealing with a place, as in the case of Buffalo Point, where there are 12 residents who live on the reserve and another 100 who live off the reserve, and only have their input by virtue of the Corbiere decision to be able to participate. How does the new fiscal institutions act benefit them in any way? Where would they get the administrative capacity to establish and operate these complex legal institutions?

It is mind boggling to me and it certainly must be to the many people to whom this is happening. I say “to whom this is happening” because it is being imposed in a top down manner. It is the House of Commons of Canada that will change the way aboriginal people live, not the input of aboriginal people who are deciding how they should establish and conduct their own affairs.

It begs the question then, with all these new institutions in place, will at least a first nation be free to pass bylaws and laws of its own choice? The answer again is, no. A first nation would not be able to pass certain kinds of laws and bylaws without obtaining the approval of the proposed tax commission. Band councils would see their authority diminished and relegated to the establishment of some of these new commissions.

I should also point out that it has been a recurring theme throughout this whole suite of legislation, Bills C-6, C-7 and now C-19, that the discretionary authority of the minister, instead of being diminished, would actually be enhanced. It is a pattern, a theme, of which I have been taking note ever since I came to Ottawa five years ago. Virtually every piece of legislation we come across actually enhances the discretionary authority of the minister and diminishes the authority of the executive or of Parliament. We are critical of that.

It is not a realistic and legitimate step toward self-governance and independence. If anything, Parliament and DIND would still have an active role to play in all the real decision making. It is like the joke we used to hear in the lunchrooms of warehouses and workplaces. We might get to decide what colour to paint the lunchroom, but the boss will still decide the speed of the assembly line. That is a good analogy here.

With the new institutions in place, will the first nations be able to pass bylaws regarding licences and other locally raised revenues without getting approval? In other words, as it is hoped that we would be passing over more control over natural resources et cetera to first nations communities, would they then, in a hypothetical situation, be able to pass bylaws regarding licences without getting the approval of the new commissions?

No, first nations laws regarding the collection and expenditure of revenue, especially where non-Indians may be involved--an American tourist who may want to fish on a lake in a community--would not be able to make that choice without the approval of the proposed tax commission whose members are not elected by the band council. The members of the tax commission would be appointed by the minister or by Indian Affairs, but essentially by the minister.

This opens the door for a whole raft of jobs. There would be a board, a commissioner and a bureaucracy set up. It is the germination of a civil servant, I suppose. It adds a whole level of bureaucracy. There are people who want more red tape, I suppose, and may see a personal benefit to being one of those commissioners or members of the board of directors, but ultimately it would choke and strangle the legitimate intentions of the first nations community and the elected band council. The commission, in a case like this, would have to have the power to ensure that the rights of non-Indians were protected.

This is established within the acts. In making its rulings, the commission would have to take into consideration the well-being of the non-Indian over whom it would have taxation rights. The commission would also ensure that first nations tax laws are in harmony with those of surrounding municipalities. In other words, what kind of independence is that if the newly established tax commission is in charge and has the authority to dictate tax policy within the first nation? It cannot exceed or go beyond what exists in the surrounding municipalities. Is that not harmonization? It is the very assimilation in practice, if not in name, to which first nations pointed and found so abhorrent in the white paper of 1969.

We keep coming back to this. It almost seems like the government, or at least the Prime Minister, left one job undone in 1969 with the catastrophic failure of the white paper on Indian affairs and it wants to finish that job now in the twilight of this career, and the current Minister of Indian Affairs and Northern Development has been charged with the responsibility to see that through.

I pointed out earlier that the white paper of 1969 was met with such derision and opposition that it spawned a whole generation of aboriginal people to rise up and protest. It spawned a generation of activism and that activism is still there today. The only difference is that there are a lot more people who are trained legally and who have been to university who can put up a genuine fight-back campaign now in the courts, if not in the streets by conventional activism.

It begs the question, if the newly formed tax commission has the right to generate revenue, can a first nation then do whatever it wishes with the revenue that it raises? Is it free to spend in accordance with its needs? The answer is no again.

Under the proposed legislation a first nation would be constrained by the proposed governance act, the twin sister, the other side of the coin and the proposed new institutions bill, to spend local revenues only on local infrastructure as approved by the tax commission whose members are appointed by the federal cabinet. What kind of independence is that?

First nations would be allowed to be the tax collectors, but would not be free to spend the taxation any way they want. Any other level of government would be furious. It would be taking to the streets objecting to this heavy-handed imposition, really the will, of the minister. It is a model of which I just cannot imagine anybody approving. First nations would not even be free to spend as they see fit the revenues without the approval of the tax commission, and the commission could veto any bylaw passed by a first nation. Let us remember who the commission is: 12 people hand chosen and appointed by the minister.

First nations would also be required to ask the tax commission for approval of their annual budgets and expenditures. They would be held to a higher standard than the federal government. They would be held to a higher standard than any level of government in the country because as we know, the federal government does not even operate on estimates and expenditures. It is only accountable to what it spent when the Auditor General has time to review the spending pattern of the previous year.

Some provincial governments, to their credit, operate by submitting estimates first, getting them approved and then having their expenditures reviewed. That is the standard to which the federal government would hold first nations. They would have to go before the commission to approve the budget or estimates first, and they would also have their expenditures reviewed and audited by the same tax commission who are appointed by the minister. It is a striking denial of the right of first nations to govern themselves.

It is the antithesis of self-government. It is instituting a Eurocentric colonial view of managing affairs for them because the legislation finds its origins in the premise of the argument established by the Canadian Alliance, that first nations cannot and should not be allowed to do it themselves, that they need the great white father to supervise them because they are incompetent or criminal in their activities, corrupt. That was the pattern being painted by the Canadian Alliance and unfortunately it was bought by the government.

I will close by saying that Bill C-19 cannot be dealt with in isolation. It must be viewed in the context of the whole package of first nations governance legislation that has been coming at aboriginal people like a whirlwind. It has been an overwhelming bombardment of changes to the way they live and do business, and it is all being done from here. It is not being done in cooperation and in conjunction with their needs and legitimate demands. It is being imposed on them. It is the same mistake; it is history repeating itself once again. And the government will not listen.

If the minister was sincere about garnering support, I would be willing to join him to make meaningful change if he would take one step back and start over. Let us move forward with meaningful amendments to the Indian Act, not this language we are dealing with today.

First Nations Fiscal and Statistical Management ActGovernment Orders

January 30th, 2003 / 11:05 a.m.
See context


Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, I am pleased to add the point of view of the New Democratic Party regarding Bill C-19.

I begin by saying that we really cannot address Bill C-19 in isolation. It forms part of a suite of bills that have been introduced lately to amend the Indian Act and which are now being dealt with by the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources. They are Bill C-6, Bill C-7 and now Bill C-19, all of which really are interrelated and form a package to address certain problems with the Indian Act which, in the minister's opinion, have priority.

I should point out that this opinion is not shared by the leadership of the aboriginal community, by the Assembly of First Nations and by the legitimately elected leadership of first nations in this country. In fact in garnering support for this package of reforms to the Indian Act, the minister has had to go to extraordinary measures, some would say heavy-handed and even bullying measures, to try to solicit support. This has been done by either punishing those who would not co-operate with the amendments, who felt that they were not the priorities that needed to be dealt with and by rewarding those who were willing to participate in consultations and development of the bills, even though many of them have expressed reservations about the misguided prioritization of the minister. We have really seen financial and political retribution used as an instrument by the government to try to sell this reform package to the Indian Act.

I would also like to preface my remarks by saying it was galling for me to listen to the previous speaker from the Canadian Alliance citing Martin Luther King in a very romantic and grandiose style. In my opinion, the Canadian Alliance and the former Reform Party lost their right to quote Martin Luther King when they hired the Heritage Front to be their security at their conventions, et cetera. They certainly have no moral authority on this subject to quote the Reverend Martin Luther King.

I sat in this House while the Canadian Alliance launched a campaign to stop the Nisga'a people from achieving self-governance. It was a comprehensive and longstanding, vicious, bitter campaign to try to withhold that first nation from achieving independence.

They also lost the moral authority when they sent one of their staffers, Greg Hollingsworth, to British Columbia to establish the organization Foundation for Individual Rights and Equality. It sounds like a reasonable organization except it is the anti-Indian movement of British Columbia. The movement has been pulled together by citizens groups who are vehemently opposed to any form of self-governance for aboriginal people. It is a racist organization. It is an anti-Indian organization. Unfortunately, that poison has spread to Ontario now in an equally vile organization called On FIRE.

Yukon Environmental and Socio-economic Assessment ActGovernment Orders

October 21st, 2002 / 5 p.m.
See context


Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, I am very pleased on behalf of the NDP to join the debate on Bill C-2 and, unlike the previous speaker, I welcome the opportunity to speak to the bill because the NDP caucus is very much in support of Bill C-2.

We have watched with great interest and great care as we have gone through the various aspects of Yukon governance for aboriginal people, the first nations communities in Yukon. We see this as a logical next step as we implement the first nations self-governance in Yukon and give them greater control over their resources, their land base and the issues for which they very much deserve to have a voice.

Bill C-2, otherwise known as the Yukon environmental and socioeconomic assessment act, is a proposed federal statute that has been developed pursuant to chapter 12, the development assessment process, of the Yukon first nations final agreement, the umbrella agreement that was arrived at in the process of negotiating first nations self-governance. This is something we have been looking forward to and welcoming for quite a number of years.

The purpose of the Yukon environmental and socioeconomic assessment act is to ensure that the potential environmental and socioeconomic effects of projects are assessed prior to any level of government, federal, territorial or first nations, deciding whether it should be or should not be allowed to proceed.

For clarity we should know what we are talking about. I am not sure that the previous speaker from the Canadian Alliance actually ploughed through the very lengthy briefing book that we have here. He seemed to be raising issues that had very little to do with this important bill.

The process of assessing the effects of a project will be referred to as the assessment process while the process of deciding whether a project should go ahead will be referred to as the regulatory process. We should have those two avenues clear in our mind as we go into greater depth in our analysis of the bill.

It is actually critical to note that the leadership of the Council of Yukon First Nations wholly supports the bill at this time. This should be all that we need to know as parliamentarians in the federal House of Commons. Once we are satisfied that broad consultation took place among the stakeholders and once we are satisfied that the very people who would be most directly affected by the bill are satisfied with it, who are we to stand in the way of the bill moving through the various steps and being implemented into law? We could view it as arrogance to do otherwise and certainly as cheap politics to score political points for things that are entirely unrelated.

We would do a great disservice to the people of Yukon and certainly the first nations of Yukon if we were to ignore the representations they have made and the work they have done to put together Bill C-2 and to get it to the stage where we find it today.

I mentioned that we wanted to be satisfied that there has been broad public consultation, which is something I will deal with in more depth later, but we are satisfied in this case. In fact we could almost use this as a template model for how consultations should take place if we are serious about garnering real input and real representation from various groups. If we look at what they have done in Yukon over the past five or six years leading up to this particular bill, that is a process that we should be using for other legislation as well.

I note that there were two major rounds of complete touring consultation throughout Yukon. There was one for 90 days that went to every community and first nations village throughout the whole Yukon. Every first nations community not only had an opportunity to send in written submissions on draft one but each community had an opportunity to have an open public hearing in its community.

Taking what they had heard in that initial consultation process, the drafters of the legislation, the tripartite committee that was struck to put this together, took back what they heard, implemented those changes and went for another exhaustive tour around the whole territory two years later with draft two, which I believe was a 60 or 70 day exhaustive tour.

I do not think anyone here could safely say that there was not adequate consultation, nor that the input during those sessions was disregarded or not treated with the respect that it deserved. We are satisfied in this case that genuine consultation did take place and led to what we think, as I have said at the outset, is a very worthy document.

As I mentioned earlier, we have two separate routes here. We are dealing first with the regulatory process and the assessment process. Dealing with the assessment bodies, as to who will make the assessment, the Yukon environmental and socioeconomic development act would establish the Yukon environmental and socioeconomic assessment board. It would also establish six designated offices located throughout Yukon. Again, what could be viewed as a model of decentralization, this board would not be concentrated solely in Whitehorse. There would be an opportunity to have fully staffed offices spread throughout the Yukon in the regions of the north.

The board would be made up of seven members, three of whom would make up the executive committee. The Council of Yukon First Nations and Canada would each nominate one member to the executive committee. The hon. member from the Canadian Alliance, the Indian affairs critic for the Canadian Alliance, said that this could make room for patronage appointments, that there may be an opportunity for abuse in the composition of this board. This was dealt with in the early stages. How this board will be struck will be critical for the ongoing success of the operations of the board and how it will be constituted has been set out in Bill C-2.

The CYFN, the Council of Yukon First Nations, and Canada would each nominate one member of the executive committee. The Minister of Indian Affairs, after consulting with the two other executive committee members, one of which, as I have said, would be nominated by the Council of Yukon First Nations, would select the third executive committee member who would be the chair of the board. I do not see room for abuse in this process unless the hon. member from the Alliance sees something that I am not seeing.

Two of the four remaining board members would be appointed also by the Council of Yukon First Nations, while the others would be appointed, one by Canada and one by the government of Yukon. If there is room for abuse or a patronage appointment, it would be for one member of the seven member board. I am not here to say that kind of patronage appointment never happens. Maybe the Government of Canada or the ruling party of the day will use some kind of a patronage appointment but it will only be for one board member because the possibility has already been contemplated and it has been nipped in the bud. It has been eliminated given the structure of the committee that is laid out in Bill C-2.

I admire the Alliance member for raising the possibility of patronage appointments but our caucus is satisfied that there is no such room for abuse in this particular process. Therefore that is not one of the justifiable grounds for trying to block or to stall this important bill.

Under the Yukon environmental and socioeconomic development act, the board may establish panels to conduct panel reviews. These panels must be made up from board members. Again, I do not understand where the room for abuse comes from.

One of the features that I particularly like about the bill is that six small communities would have designated offices, although I am not sure which six communities would have them. I presume Dawson City would be one and possibly Old Crow, Teslin, Tagish and Mayo the other ones. I am not sure which communities would get these various offices but they will be located in each of the assessment districts.

It is easy to say that Ross River and area could be considered one development area. Certainly the Dawson City area and the gold fields, et cetera, is another with the mining interests in that area. Haines Junction and the far western part of Yukon might be considered another area. However the boundaries of the assessment districts and the location of these designated offices would be worked out in the implementation phase of the YESAA.

On the board's recommendation, the number of designated offices and the assessment districts can be increased or decreased to meet operational requirements. In other words, flexibility is built into the bill so that we can increase or decrease the number of regional offices to meet the various application demands that may be put forward.

The logical question is: What sort of activities would be subject to assessment? I believe the Alliance member was fearmongering when he said that some business venture may come forward and have its project nipped in the bud by this new authority in Yukon that may scare away investors and turn down their applications. If the member had read the briefing book or perhaps listened he would know the sorts of projects that would be subject to assessment and what project's assessment would be waived, deemed unnecessary or exempted from the assessment process.

The project list regulator will be the body that will determine which activities are subject to assessment and which ones are not. The goal of the PLR is to catch those projects which pose a potential risk to the environment and/or socioeconomic impacts while ensuring that activities which do not pose any risks are exempted.

In other words, if there is no environmental or socioeconomic risk to the activity that is being proposed, it does not have to be subject to an assessment review. It is only activities or enterprises which do pose an environmental risk or a socioeconomic impact on Yukon that would be subject to the assessment. I do not see how that differs from the current status quo, which is the Canadian Environmental Assessment Act as it stands today, which this bill will supercede once it is implemented.

Under declarations, the parties recognize that there may be some activities that do not pose any risk under normal circumstances but, because of special conditions, the risk may be increased and therefore the activities should be assessed. The type of things they are getting at there are culturally sensitive issues, issues that have a social impact as much as an economic impact and as much an environmental impact.

To address that, Bill C-2 provides for exempted activities to be declared where any level of government with authority for the activity is of the opinion that there is a risk of impact. This again is contemplated and a clear course of action is laid out within Bill C-2 that might be dealt with if necessary.

If several governments are decision makers for a project, they must all consent before an activity is declared to be a project. This is intended to allow an activity that would not normally require an assessment to be assessed if there are particular concerns. For example, if it were to be carried out in a sensitive area or if there were issues of cumulative impacts that were not part of the original activity or enterprise.

The entry point also is pointed out or itemized and assessed in Bill C-2 that most projects will enter the assessment process at the designated office level in the region in which the enterprise will take place. A small number of large or complex projects will enter into the assessment process directly at the executive committee and will not undergo any assessment by a regional office. This would have seemed logical, quite straight forward and easy to follow had the people debating the bill today actually gone through the briefing notes.

When the designated office makes an evaluation on a project, it will be subject to further review from the central board as to whether it should immediately go ahead, whether it should go ahead with specific terms and conditions, whether it should be barred or whether it should be referred further to the executive committee for its recommendation as well. The executive committee has an alternate screening role. The projects that are submitted to the executive committee will be screened again for the same four tests. The committee ultimately can order that perhaps the project should go to a public panel review or some other form of public consultation review.

As members can see, this is perhaps why the bill took a number of years to get to this stage. It is very complex and it is difficult to foresee all the possible implications or possibilities that might come forward and to deal with those eventualities.

The boards and the bodies can issue documents allowing a project to go ahead without any further review. I do not think I will deal with those technical aspects any longer because I am aware of the time limitations.

I will try to answer the question in which most people in the House should be interested, which is this. What will the Yukon environmental and socio-economic assessment act mean for Yukon first nations? That ought to be the ultimate question with which we should be dealing today and with which we should be seized.

We believe that Bill C-2, or the YESAA, will fundamentally change the role of first nations in environmental assessment in Yukon. Perhaps that is really more to the point to which the member from the Canadian Alliance was objecting. We have noticed a pattern with the aboriginal affairs critics from the Canadian Alliance systematically opposing every move toward true self-governance for aboriginal people and systematically trying to cite reason after reason why aboriginal people should not be given the next stage in their own self-determination.

We believe this will change the role of first nations in environmental assessments in Yukon because under the current assessment regime, the Canadian Environmental Assessment Act, first nations have had very little opportunity to participate in any meaningful way with these environmental assessments. Under Bill C-2 they will play a much larger and more significant role.

Some of the issues of serious concern to first nations such as the socioeconomic and cultural effects, which were not given any consideration under the Canadian Environmental Assessment Act, will be a very important part of every assessment under the new YESAA.

For further clarity, under the YESAA, assessments will now be conducted by neutral assessment bodies rather than by self-assessment by government alone. This is a fundamental change. This will be an independent board made up by stakeholders nominated by first nations and the other players, the federal and territorial governments themselves. These issues will be dealt with by the board rather than by the government itself, which obviously led to a certain conflict of interest.

The assessment bodies must seek the views of any first nation that will be affected by the project. In other words, the mandatory consultation process is built in here. It will not be left subject to the courts. It will not be required to be heard. A first nations community would have to seek legal redress and demand to be heard. That process is built into Bill C-2, much to the satisfaction of the people involved.

Also integral part of Bill C-2 is that every existing project must consider as an aspect of going ahead the need to protect first nations rights under the final agreements, under the umbrella agreement. In other words, there can no longer be any doubt, and we do not have to go to the courts again, that any developer must consider first nations' rights when they undertake an enterprise.

We have had recent court rulings like the Haida ruling in B.C. dealing with forestry issues. For the government to do any development affecting first nations and treaty rights, the consultation process is necessary. However up until today third parties, business enterprises, did not necessarily have to take into full consideration treaty rights of first nations people that might be affected by the economic enterprise being undertaken. Now, under Bill C-2, for any future development of Yukon, it is mandatory and binding that the need to protect first nations' rights under final agreements, or first nations' special relationship with the wilderness environment or first nations cultures, traditions, health and lifestyles must be taken into consideration before a permit will be issued for that development or that enterprise within Yukon.

Also within Bill C-2, one of the biggest changes for first nations people in Yukon, is that both assessment bodies and other bodies must give full and fair consideration to traditional knowledge. The words traditional knowledge show up in Bill C-2, as do references to culture, tradition, health, lifestyle and first nations' special relationship with their wilderness environment. There has never been a document so culturally sensitive when it comes to first nations people as this bill, so it is shocking to me to hear any major party in the House of Commons speak openly that it cannot support it.

This is breaking new ground. This is forging a whole new path for our relationship with aboriginal people and economic development. If we hear every party in the House of Commons saying that the answer to the atrocious conditions is economic development, well here is the acceptable road map as negotiated between the affected stakeholders in Yukon by which such economic development can and shall take place with sensitivity toward the special relationship to the wilderness environment, the cultural, the economic, the traditional, the health and the lifestyle issues that any such enterprise might affect.

As well the assessments of every project and existing project must consider the potential environmental and socioeconomic effects which include effects on economies, health, culture, traditions, lifestyles and heritage resources of the project. In other words, if a mining enterprise might interfere with a traditional fishery, even if one is of a much larger magnitude than the other, the traditional enterprise must be taken into consideration before the new economic development enterprise is given a permit and allowed to go forward. That was not the case.

That might seem like common sense but up until today, until we pass Bill C-2, that has not been the case. That is why we have a backlog of 200 such cases before the courts today. The only redress aboriginal people have, if they want consideration of those cultural issues, is to go to court and fight for it, unless someone voluntarily recognizes their right to have those traditional issues recognized.

Another effect of Bill C-2 is that the participation of Yukon Indian people in the assessment process is guaranteed. It is not something that will be granted when it is not an inconvenience and be withheld when it is inconvenient. It will be guaranteed.

Federal and territorial decision bodies much consult with the first nations without final agreements. In other words, those first nations within Yukon that are not members of the Council of Yukon First Nations, and there are some, must be satisfied as well. They are being folded into this umbrella deal. Maybe that is the wrong term because we refer to the Yukon self-government act to this day as the umbrella framework agreement. However those first nations who are not currently members of the Council of Yukon First Nations will have their concerns dealt with as well. I think they are the Kaska and the Kwanlin Dun, and there may be others. I believe that 9 out of the 14 first nations are members of the Council of Yukon First Nations.

Some, for whatever reasons, are not currently members of that plenary organization. They may be in the future but in the interim federal and territorial decision bodies must consult with the first nations that are not part of any final agreements so far, before issuing decision documents for projects that will affect their traditional territories. In other words, some activity or enterprise could take place on areas where current claims are in effect. That would be wrong and might jeopardize future negotiations and the settlement of those claims. We all believe that it is in everyone's best interests to have those claims settled and nothing that takes place should interfere with the progress being made as we work to finish those negotiations.

Self-governing first nations will be decision bodies with respect to projects on settlement land. This is a whole new status. This contemplates that we have to get our minds around a whole new way of dealing with economic development on first nations land, and that is where Bill C-2 breaks new ground. It really shows us a template, a model, which has been arrived at through an exhaustive consultation process and it shows us perhaps a template for future settlements in other parts of Canada. Maybe it is a good thing.

Earlier today I met with the representatives of the Council of Yukon First Nations and said that perhaps the reason that we arrived at such a civilized, thorough, comprehensive and almost unanimously accepted document is that Yukon is kind of a nice, manageable size. Yukon is almost a microcosm of the rest of Canada when it comes to relationships between first nations and the federal government. Maybe because the population is small and manageable enough we have done it here as a template, as a pilot project, and perhaps this model will work in future negotiations as well.

The implementation of the Yukon environmental and socio-economic assessment act or Bill C-2 is structured in such a way that part 1 will come into force on royal assent while parts 2 and 3 will come into force up to 18 months later. This will allow the parties to make appointments to the board early on so that the board can begin to develop and put in place rules and bylaws, hire staff for the board in designated offices, et cetera. After 18 months or less the actual assessment process will come into place. Therefore, it is fair to say that no new projects will be developed in Yukon under the rules of the new assessment act until some time in 2004.

I began my remarks by saying that Bill C-2 finds its origins in chapter 12 of the umbrella framework agreement. It is instructive to those who perhaps have not dealt with this bill very much to realize what tests have to be met for Bill C-2 to truly reflect the details of chapter 12 of the umbrella framework agreement. The chapter was to provide for a development assessment process that recognized and enhanced, to the extent practicable, the traditional economy of Yukon Indian people and their special relationship with the wilderness environment.

The directive was to put in place a development assessment process that provided for guaranteed participation by Yukon Indian people and utilized the knowledge and experience of Yukon Indian people in the development assessment process. Does Bill C-2 meet that test? I argue, upon reading the bill, that yes it does.

Does Bill C-2 meet the test that we need a process which protects and promotes the well-being of Yukon Indian people and their communities, of other Yukon residents and the interests of other Canadians? Does it meet that test? Again we are satisfied that, after an exhaustive consultation process of all stakeholders, there is unanimous consensus virtually that yes in fact Bill C-2 does promote and protect the well-being of not only Yukon Indian people and their communities but of other Yukon residents as well and the interests of other Canadians in general.

Does Bill C-2 protect and maintain environmental quality and ensure that projects are undertaken in a manner consistent with the principles of sustainable development? That is what the bill is about. The very substance of the bill is that it must be in keeping with the principles of sustainable development but with special consideration of the cultural, traditional and unique relationship that first nations have with the land.

Does Bill C-2 protect and maintain heritage resources? Bill C-2 specifically refers to heritage resources. Again, it is groundbreaking and precedent setting legislation that takes into consideration those intangibles, things that do not necessarily have a large market economy value, but have value in the traditional lifestyles of aboriginal people.

Does Bill C-2 provide for a comprehensive and timely review of the environmental and socio-economic effects of any project before the approval of the project? Contrary to what the member from the Canadian Alliance was saying, yes it does. It has guidelines and time frames. We will not have cases where a development application is held up for years and years. That is the status quo. That is what we have now. We might have a mining enterprise that wants to start an operation 60 miles outside of Dawson City and it might wait five years for all the various assessments to take place such as the water surface assessments, the transboundary assessments and the exhausting assessments that need to take place.

What would take time, what would bog down and bury a number of economic development projects in Yukon is if Bill C-2 were to wind up in the courts. What if the first nation community that is close by says that this enterprise fails to take into consideration its historic right to have input into this project and it takes two or three years for the courts to deal with that case?

That is when venture capital runs scared because venture capital seeks stability and a process that it can trust and rely on, with a known timeframe to get an answer of whether the project will be reviewed or not.

Bill C-2 would give that satisfaction and that comfort to investors, that at least there is a mechanism in place that would not be challenged in the courts and that within a specific timeframe they would get an answer as to whether the project should or would go ahead or not.

Does Bill C-2 provide for a comprehensive and timely review of the environmental and socio-economic effects of any project before the approval of the project?

Again, to meet the tests of finding its origins in chapter 12 of the umbrella framework agreement it has to. The experts in the field, many of whom are in the gallery watching today, the people who have spent the last seven years developing this, are satisfied that Bill C-2 would meet this test, that it would provide for a timely review of the environmental and socio-economic effects of any project before the approval of the project.

Will Bill C-2, upon its introduction, avoid duplication in the review process for projects? This is an issue that was put forward on behalf of the developers and business interests that may be affected.

Does this avoid duplication in the review process for projects and, to the greatest extent practicable, does it provide certainty to all the affected parties and project proponents with respect to procedures, information requirements, time requirements and costs?

These are key questions that need to be answered before economic development venture takes place in Yukon.

We are satisfied again that Bill C-2 is comprehensive enough in its scope and its mandate that these pressing questions would be addressed, the business community can feel comfortable that these issues are addressed and that all affected parties and project proponents would be satisfied that the duplication of procedures, information requirements, time requirements and costs would be of be avoided with Bill C-2.

Will Bill C-2 require project proponents to consider the environmental and socio-economic effects of projects and project alternatives and to incorporate appropriate mitigative measures in the design of projects?

I will leave that one up to the experts who have reviewed these cases. They are satisfied that Bill C-2 would address that concern and that those are the objectives of chapter 12 of the umbrella framework agreement that must be met in order to call Bill C-2 an accurate reflection of that chapter.

We in the NDP caucus believe that a large part of the success of reaching consensus with Bill C-2 is due to what we are pleased to point to as the most comprehensive consultation process that we know of in issues dealing with aboriginal affairs.

It is a point of legislation that with any government legislation implemented that may affect or may have an impact on treaty rights, or traditional rights, or the constitutional rights, or even the common law rights of aboriginal people, there must be a round of consultation. However the confusion has come, and it has again come to a head under the first nations governance act, or as the aboriginal affairs standing committee deals with the first nations governance act, just what is broad consultation? What is the definition of broad consultation? What satisfies the tests of having been fairly and adequately consulted if that is what is mandated in the legislation?

I would like to speak to that briefly because we believe if the fruit of genuine consultation is a quality piece of legislation, such as Bill C-2, then what can we anticipate with Bill C-7, the first nations governance act, with a consultation process that all parties agree is largely flawed, incomplete and less than comprehensive?

It is instructive to look at the principles of consultation and see if they were met in the consultation leading up to Bill C-2. Can we look at the methodology used for consultation in Yukon and find the formula, the recipe, and the methodology that could be implemented elsewhere?

I should start by saying that aboriginal people, through their first nations plenary organizations, such as the Assembly of First Nations, have some specific and definite thoughts as to what constitutes genuine consultation. In their view it is key and paramount and fundamental, in a true consultation process, that there be no predetermined agenda brought to the table. In other words if it is a genuine consultation, if one is really seeking the input of the people that one is asking their opinion of one does not put an agenda on the table and say, “How do you like it?” The agenda is developed jointly. The parties, together, fashion the agenda.

I believe that is one of the things that was met in the Bill C-2 consultation process because they did not shop a finished document around. They took draft documents to the people, they listened to the input that they received, they took that input back and they implemented it into draft 2, draft 3, et cetera.

Another basic tenet for fair consultation is that the parties comprise federal and first nations governments meeting on a nation-to-nation, government-to-government basis. In other words, the historic imbalance in the power relationship between those two parties must be set aside for the consultation to be viewed as genuine, sincere and meaningful.

A third basic tenet would be that the parties exchange information, views and comments as equals and conduct their business with mutual respect and in good faith. There have been books written on what it means to negotiate in good faith. I do not have to cite the leading authorities on those legal definitions. In the House we all know what good faith means.

With regard to Bill C-2 and the consultations leading up to it, I have not heard anything in my experience after meeting in Yukon with the Council of Yukon First Nations and now meeting today with representatives from the Council of Yukon First Nations that would indicate that there was anything but good faith in the consultation process.

These consultations should be open and agreements be openly arrived at. In other words, there should be no selective or private side meetings, for example. If we are comparing a good consultation process with a flawed consultation process, like we saw in the first nations governance agreement, that is exactly what happened.

When the minister was finding that he was not hearing what he wanted to hear at the open consultation meetings, a bunch of side deals were made and groups were split off and hived out of communities. They were offered financial incentives to cooperate with the consultation process or even threatened with financial punishment if they failed to cooperate with it. That should stand as an example of what we do not want to see in present or future consultation processes.

Another basic requirement should be that first nations obtain and be given the fullest information to enable them to make sound and reasoned judgments.

The NDP caucus is satisfied that Bill C-2 is a bill that is worthy of our support. We see it as another step toward the realization of a dream for aboriginal people, for first nations communities in Yukon who are seeking self-determination and true self-government. The management of their own land and resources is key and integral to true self-government. Bill C-2, by putting the board in charge of the environmental assessment of developments, would go a long way to putting them in charge of the actual development of those resources.

First Nations Governance ActRoutine Proceedings

October 9th, 2002 / 3:10 p.m.
See context

Kenora—Rainy River Ontario


Bob Nault LiberalMinister of Indian Affairs and Northern Development

moved for leave to introduce Bill C-7, an act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other acts.

Mr. Speaker, this bill is in the same form as Bill C-61 from the first session of this Parliament. In accordance with the special order of this House of October 7, I request that it be reinstated at the same stage that it had reached at the time of prorogation.

(Motions deemed adopted, bill read the first time and printed)