Mr. Speaker, I am pleased to rise to speak to Bill C-23 and even more pleased to speak to the amendment put forward by my hon. colleague from the Bloc, the member for Saint-Hyacinthe—Bagot. To be clear, I understand the debate is on the amendment at this time.
I agree with my colleague. I have long admired his particular sensitivity to this issue. I think perhaps part of that comes from his own background as a sovereignist. He can identify with the right to self-government of aboriginal people perhaps with a sensitivity that others only aspire to.
Bill C-23 is vehemently opposed by the overwhelming majority of more than 600 first nations across Canada. There are over 633 first nations who are affiliated with the Assembly of First Nations. The overwhelming majority are opposed to Bill C-23, just as they were opposed to Bill C-19.
Frankly, that is where the debate should properly stop. That should put an end to this debate because that is all we really need to know. This bill has not been developed with the cooperation and input from the 633 first nations of the Assembly of First Nations, the parliament of the first nations community. It was resoundingly rejected.
Let me begin with a bit of history. In Halifax in the summer of 2001, I was at the Assembly of First Nations gathering where the first draft resolution in support of this concept was voted down. The people were upset. A great deal of work took place at that assembly. With a fair amount of generosity, the chiefs at that assembly, even though they voted down the original resolution, agreed to allow it to carry on under the explicit condition that any draft bill had to come back to the Assembly of First Nations to be reviewed, accepted or rejected. That never happened.
In classic, unilateral, arrogant, and colonial fashion, the government, even after having heard from the legitimately elected leadership of first nations across the country, went ahead in complete opposition to the directives given, that the Assembly of First Nations would cooperate in the development of this bill if the draft was brought back to them for their review, input and cooperation. That never happened. We have to begin from that basic premise.
Let me also state another fact which is somewhat at odds with the presentation by the parliamentary secretary. The hard core support for this bill is probably in the range of 30 first nations, mostly from British Columbia. These first nations seem closely aligned both philosophically and otherwise to INAC.
Let me raise another point. It seems that those who are in favour of this bill, those who are promoting these four fiscal institutions, have unlimited money and funding to fly around the country and promote this bill, and the formation of these four institutions. I raise that as a concern right from the beginning because it seems to me, first of all, those four institutions are up and running.
We are debating here the enabling legislation to create those institutions and they exist. They have offices, staff, CEOs, high priced help and seem to have an unlimited amount of money to fly around the country and lobby me to support this bill. Many of us in the House have had personal visits from people who identify themselves through their business cards as the salaried officers of these institutions. I know the money to create them comes from the aid-based budget of INAC, money that could have and should be more properly directed toward meeting the basic needs of aboriginal people, I would think, rather than fly around the country as high priced lobbyists to convince me that I should vote for this bill. I raise that as a concern, but let us be honest about this.
The parliamentary secretary said that about 100 first nations support the bill. There are about 30 first nations that actively support the bill and another 70 first nations that have expressed some interest in availing themselves of the services that the institutions would provide at some later date, for a total of 100 first nations.
It is an exaggeration and, in fact, it is misleading and disingenuous to say that a full 100 first nations support the bill.
Bill C-23 as it stands is national legislation that negatively affects the rights and interests of all first nations across the country. Even though there are only 30-some first nations that vehemently support the bill, it adversely affects all first nations. Let me elaborate and explain somewhat because I think it warrants an explanation.
The bill is being promoted as a first nations driven piece of legislation, which is utterly misleading. If first nations driven is meant to imply that the bill is supported by most first nations across Canada, let me say again that it is vehemently opposed by most first nations across Canada.
The national fiscal and statistical institutions created by Bill C-23 affect the rights of all 600-plus first nations, even though it is supported by only a few. The institutions would be funded on an indefinite basis from the federal envelope that is allowed for all first nations. In other words, even those first nations that do not support these institutions would be inadvertently paying for them by money that would have otherwise been spent in their communities, possibly meeting basic needs. Yet these institutions are actively opposed by the majority.
At this very early point in my remarks let me say that this is not only bad public policy but it is bad law if it is overwhelmingly opposed and those who oppose it are forced to pay for it. How unfair can that be? It offends doubly, in a sense.
It is true that there are a handful of first nations, mostly in B.C., that are driving the legislation forward. However it is also true that the overwhelming majority that are opposed to the bill are opposed in both principle and text.
Quite apart from the disrespect to Parliament that this misinformation serves, the misstatement of the level of first nations support raises a constitutional issue as to the very validity of the bill. Bill C-23 affects the rights and interests of all first nations, not just those that sign on to the optional schedule.
The Supreme Court of Canada, in leading cases such as Sparrow and Delgamuukw, has been clear that first nations are entitled to full and reasonable consultation when there is proposed legislation that is likely to affect their rights. In some special cases the consent of first nations may be mandated.
Therefore, if the consultation record is insufficient, as I argue it has been given the level of opposition and the failure of the government to bring back a draft to the Assembly of First Nations for ratification or approval prior to coming to Parliament, I argue that the consultation obligation has not been met. The most basic, fundamental test put to us by the Supreme Court in terms of legislation that may affect inherent aboriginal and treaty rights has not been met in this case again. This is a pattern that we have seen since I have been here as a member of Parliament, a disturbing pattern, a deliberate pattern, a colonial imperialist pattern.
It is not overstating it to say that because of the government's unwillingness to give meaning and definition to section 35 of the Constitution, it has allowed the courts to interpret time and time again what inherent and treaty rights mean. Time and time again the government loses at the Supreme Court.
The Supreme Court is now telling us that if we are going to introduce any future legislation that may affect inherent and treaty rights, consultation is required. Again, the government has chosen not to consult because consultation means more than just informing people what will be done to them. Consultation requires a meaningful exchange and accommodation of the points put forward by the other party. True consultation means bringing the issue forward, putting it on the table, getting the other person's point of view and accommodating some of the points raised, not imposing one's will on someone else. That is a basic, fundamental principle and the government has ignored it.
If passed into law, Bill C-23 will surely be challenged in the courts. There is a strong likelihood that the statute will be held unconstitutional because of the failure once again of INAC to follow the consultation standard laid down by the Supreme Court of Canada in numerous landmark decisions, numerous court rulings that actually took place during this 37th Parliament and during the 36th Parliament.
The duty to properly consult first nations is a key aspect of federal fiduciary obligation. It is protected by section 35 of the Constitution but we would never know that from the government's attitude and approach to it.
I want to raise the issue of optionality again. All the government can think of to try to allay the concerns brought forward by the majority of first nations is to say that it will make it optional; that it will only apply to those people who choose to avail themselves of it. That is a lie, or to put it another way, that is misleading. This new schedule mechanism is a parlour trick.
I made the point earlier and I will say it again. For the government to say that the bill is optional is like saying a driver's licence is optional. It is optional unless one wants to drive a car. As soon as one wants to drive a car, a licence becomes mandatory. Smaller first nations will find themselves in that trap because if they do not sign on and become one of the member nations on the schedule, they will not be allowed to set up any other type of financial bylaws within their own first nations unless they meet the approval of this new institution.
If they are not on the schedule and they want to seek outside financing for some project in their community, instead of the government meeting its fiduciary obligation to that first nation, it will simply say that if the first nation needs the development in its community it should go join the new fiscal institutions and join the pooled effort of financial activity.
Those are some of the fears put in a very simplistic way. This new schedule mechanism is a carnival trick. It is meant to deceive. It conveys the impression that three of the institutions in the bill, all but the statistical institute, are optional and therefore not prejudicial to first nations that choose not to join.
I note in passing that once on the schedule it seems that a first nation becomes subject to those institutions and getting out is in fact more difficult than getting in because once on the schedule the first nation cannot get off the schedule without the approval of all those other first nations that are on the schedule.
That may seem like a fine point but any time we have rules and conditions under which we can join something, at the same time we have to factor in rules and conditions by which we can leave. In other words, it is more difficult to leave than it is to join and we get pulled in.
The pretence of optionality fostered by the schedule amendment is not maintained in the case of the statistical institute. This part is imposed on all first nations and bands in Canada, whether or not they add their names to the schedule. There is nothing optional at all about the statistical institute. In fact, it can gather sensitive, private information on all first nations in the country, no matter whether they want that information gathered or not. There is a serious privacy issue associated with this question. This should be alarming to the overwhelming majority of first nations that are voting against the bill.
I ask all members to take note that under clause 105 the federally appointed institute can indefinitely collect and use the most sensitive data about all bands in Canada without their consent. Where is the optionality there?
The alleged optionality of these three institutions is completely misleading. In fact, they are statutory national bodies that will affect the rights and interests of all first nations in Canada, whether or not they are added to the schedule.
If anything, the schedule model, I would argue, actually makes things worse. This is because the schedule model perversely guarantees that these important national institutions will be perpetually controlled by the small number of first nations that are strongly in support and which have aligned themselves with INAC. If anything, this schedule would have a perversely negative effect on people. I do not think the minister and his INAC officials have thought this through.
The tax commission, which is really the Indian tax advisory board on steroids, is one of the institutions said to be optional. Again, nothing could be further from the truth. The tax commission is a federally appointed body and it will become the czar of all future on reserve property taxation bylaws or laws. This is what I was getting at, and I hope people will listen to this carefully.
If this law is passed, in the future all first nations in Canada that want to develop on reserve property taxation laws and systems will have to seek the approval of this federally appointed commission, whether they signed on to it or not. All such first nations will have to submit their annual property tax budgets to the commission for approval. That is in clause 9. People can check that if they do not believe me. I do not make up this stuff. There is no optionality here. This affects the rights and interests of all first nations therefore, whether they are on the schedule or not.
The unilateral nature of the tax commission is made even more problematic by the many upfront restrictions on first nations property taxations contained in Bill C-23. First nations will not be free to spend their tax revenue as they please. Instead, they will be forced to spend their money on local infrastructure and the like, and therefore lightening the burden on INAC. I get back to one of my basic problems here, which is that the bill is more about the desire of the federal government to offload its fiduciary obligations, its financial obligations.
First nations cannot just use their tax revenue for any purpose they see fit. No matter what the need and demand is in their community, they have to use it for things that the federal government approves.
Unfortunately, I cannot make all the points I would like to make because my time is running out. However, again, the impression of optionality, stoked by the tricky schedule amendment, is misleading. People saw through that right from day one. The first nations that read the bill saw that. Many of us are only just beginning to see that.
The most disturbing, strong armed component to Bill C-23 is directly linked to the management board, clause 8 of the bill. I urge people to refer to that. Communities that do not voluntarily join the bill are not permitted to pass bylaws or laws dealing with the critical area of financial administration. Even if they are not on the schedule, the management board, they are not allowed to pass comparable bylaws and financial bylaws. This is contrary to the inherent right of self-government, plain and simple.