Bill C-27 (Historical)

First Nations Financial Transparency Act

An Act to enhance the financial accountability and transparency of First Nations

This enactment enhances the financial accountability and transparency of First Nations.

First Nations Financial Transparency Act

[Some hon. members]

Agreed.

No.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I know the member has done a tremendous amount of work on this legislation.

Back to the January 2006 accountability for results position paper that was put forward by the Assembly of First Nations, this paper not only set forward a framework for moving forward around accountability for first nations, but it also talked about the challenges that first nations chiefs and councils faced in the burden of reporting that was already required by the government.

Many nations produce 168 to 200 reports every year. When the Auditor General looked at the overall reporting, there were 60,000 reports produced by first nations on an annual basis. It is shocking how much time and energy has to go into reporting.

The other piece that was really important in this position paper was about accountability and relationship for the first nations chiefs and councils to the first nations members who elected them, which everybody would agree is rightly so. There was also the relationship of the government being accountable to first nations for how it spent its money and for the results that the government achieved in spending its money. That accountability relationship is simply absent.

With regard to Judith Sayers' letter, I am happy to share it with any members who wish it since we were denied the ability to table it in the House.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I would like to take this opportunity to thank my colleague, who is doing great work in this area. She really explained in detail the bill currently before the House. I do not necessarily want her to go into even more detail since she already did such a good job, so instead, my question is about the process.

We know that this bill was introduced, that it is now at third reading, and that it is subject to time allocation. We thus have only one day at third reading to debate this bill, which, in my opinion, will have a significant impact on first nations communities.

Can the hon. member comment on the Conservatives' approach, which always involves introducing bills and then imposing time allocations on them—if I am not mistaken this is the 30th time they have done this—so that there is as little debate as possible?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, the member for Sherbrooke is absolutely correct. I believe it is the 30th time we have had some form of shutting down debate in the House of Commons.

It is interesting that it is in the context of openness, transparency and accountability. Surely part of our responsibility as members of Parliament, if members want to talk about accountability, is to be accountable to our constituents, the people we represent across the country, to ensure we do not pass legislation that is flawed.

It is our responsibility, as the official opposition, to take that position very seriously. Because it links into consultation, one of the things I heard the parliamentary secretary say was that consultation in the context of first nations' rights constituted talking to constituents. That flies in the face of any number of Supreme Court decisions that talk about what constitutes consultation.

Consultation is not just talking to constituents. Consultation is not just simply having people appear as witnesses before the aboriginal affairs committee. That is a very narrow look at what constitutes consultation and is simply not a widely recognized mechanism for consultation.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, I would like to attest to the fact that the member is an undisputed expert on the matter. When she goes through a bill, we know that it has been thoroughly examined.

However, as I am not an expert on this issue, I can only ask the following question: does she not find this reaction a bit embarrassing after 16 reports from the Auditor General's office in response to our report on first nations' living conditions?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, it is very interesting. The government, as it likes to remind us, has a majority and this is the bill that it has chosen to bring forward to address an issue that it sees as relevant in first nations communities.

What we also know from a number of auditor general reports is that child welfare services are underfunded. In fact, there is a human rights tribunal going on about discrimination against first nations children. We know education is underfunded. We know many first nations have boil water advisories or have no access to clean drinking water. We know the houses are full of mould in many communities. We know the child poverty rates in first nations communities are the highest in the country. Yet what the government chooses to bring forward is a bill about accountability and transparency that does not, again, meet any of the requirements of consultation. Therefore, we have to wonder where the priorities of the government are.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, first of all, I would like to congratulate my colleague on her speech and remind the House that the government moved a 29th time allocation motion, and it concerns this bill. The time allocation motion will again muzzle the House and, consequently, first nations, who have continually asked to be consulted. This consultation has never really taken place. However, the duty to consult is entrenched in our Constitution. It is a constitutional duty, but unfortunately something that the first nations have not been entitled to.

We are talking about a lot of issues, including access to water and access to education, which are basic rights of any people. But we have not had any real action on these issues.

I would like to ask my colleague to speak further about the need to ensure that first nations are consulted at least to some extent if not fully.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, the member is absolutely correct. When I started my speech, I talked about the government-to-government relationship. Back in January at the Crown-first nations gathering, the Prime Minister indicated there would be a change in that relationship and people quite optimistically thought that perhaps there was going to be an improvement in that relationship, that the government would consult in a meaningful way before it brought forward legislation.

Consultation is a very complex matter, and a number of tests must be in place in order to ensure that the requirements around the duty to consult are met. Consultation does not just mean going out and gathering information and then coming back and going behind closed doors and developing a bill that does not reflect what was heard from first nations across this country. We have seen that in a number of other bills. Matrimonial real property is an excellent example.

Consultation needs to be a closed loop. Resources and information and context need to be provided. We need to make sure first nations have the ability to engage, that there is enough time for them to engage in that process. There are going to be challenges when all of the information is gathered, because we are talking about nation-to-nation and governments. They are not all going to agree with the outcome of it, so then we need to figure out a process about how to take these disparate views and come up with a consensus position. Then when the legislation is being drafted, first nations need to be included. That would constitute a consultation process, and that has not happened with respect to this legislation.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, as I have stated in the House before, transparency and proactive disclosure are important goals for all governments, including first nations governments, and goals that the Liberal opposition supports. However, the Conservatives have a duty to work with first nations to improve mutual accountability, not just impose made-in-Ottawa legislation.

First nations are willing partners on the issues of governance. However, the government must stop treating them as adversaries; it must stop the paternalism; it must stop the raining down of legislation on first nations without any prior consultation; it must stop treating first nations as though they are children in need of discipline or adult supervision. The government must go back to the original understanding of a government-to-government relationship, as was stated in the Royal Proclamation, which will be 250 years ago next year.

The total lack of consultation on this bill is an insult. The government signed the UN Declaration on the Rights of Indigenous Peoples, which insists upon free, prior and informed consent. The government now sees that as aspirational in nature and has put in absolutely no mechanisms to implement this declaration across government departments or even within the Department of Aboriginal Affairs and Northern Development. It is very sad that again we stand in the House having to fight back against the kind of paternalistic approaches that do nothing to enhance the capacity of first nations in the country. Yet again, this is a tremendous example of insulting behaviour.

We are very concerned about the genesis of this legislation and its predecessor, which seems to be linked to the controversial report published by the Canadian Taxpayers Federation detailing salary figures of first nations chiefs. We say “misleading” salary figures of first nations chiefs. Then again, as we came to understand in the amendments, linking salary, expenses and the remuneration for band-owned businesses is actually a purposeful sticker shock that has fed into the stereotypes and is extremely damaging to the reputations of all first nations. It is particularly insulting to the first nations who are moving out and leading in terms of successful business enterprises.

The sensationalist report was shown to have contained inflated numbers and misleading calculations of remuneration for first nations elected officials. It reminds me, as a physician in Ontario, of the time when people were listing the fees taken by physicians, not bringing into account that we had to pay our rent, pay our staff, pay the costs of doing business out of that remuneration. It was misleading, as though it was income going directly to physicians.

The Canadian Bar Association has expressed concern that:

...debates that focus on such matters make an informed discussion about the realities of first nations governments difficult.

It has also stated that:

Rather than focusing on legislation that diverts attention from more pressing challenges facing First Nations governments, we encourage a nation to nation dialogue held in the light of constitutional principles.

The AFN has expressed concern that the federal government seems increasingly focused on designing first nations governance from Ottawa despite the fundamental need for first nations to undertake this work for themselves for it to be legitimate. As the member for Nanaimo—Cowichan articulated, this was beautifully done in the Assembly of First Nations discussion on governance and accountability in January 2006. We share those concerns about Bill C-27.

Unfortunately, the government's decision to cut the National Centre for First Nations Governance and to slash the funding for tribal councils and other institutions, which are focused on building first nations capacity, is further undermining the ability of first nations to develop and implement accountability measures. The NCFNG will now be closing its doors early next year. It is hypocrisy to legislate accountability and transparency while cutting funding to the organizations, like the NCFNG, whose mandate is to support the process of nation rebuilding and self-government. How can the government justify imposing additional reporting duties, while at the same time cutting the resources first nations have to comply with these requirements?

While Bill C-27 is intended to improve the accountability and transparency of first nations governments to first nations citizens, the government failed to carry out its constitutional duty to consult with first nations on the drafting of this legislation or regarding government amendments during the committee stage. Unfortunately, this lack of consultation has resulted in a number of fundamental problems with this bill. The government must work with, not simply on behalf of, aboriginal peoples, as we promised to do in our original treaty relationship and as expressed to us by the United Nations Declaration on the Rights of Indigenous Peoples.

Beyond its legal duties to consult, the government also has a moral duty to ensure that first nations are a part of the process to develop good policy that will work for them. However, with this bill the Conservative government would impose major changes to first nations financial reporting requirements with no significant prior consultation with those who would have to implement these proposed changes. One of the most shocking things we heard during the committee testimony was the fact that when the government went to the Whitecap Dakota First Nation to announce this bill, Chief Darcy Bear and his council were not permitted to see the bill in its final form. Chief Darcy Bear even wrote to his local Conservative MP and minister, expressing his concerns on December 11, 2011, stating:

I do wish to point out that when we were asked to endorse the new Bill we were only provided with the backgrounder on November 22, 2011. We did not receive a copy of the actual draft Bill until it was introduced in Parliament on November 23, 2011, which was after our press conference of that same day. We did not have the opportunity to review and analyze Bill C-27....

The chief went on to say:

I do wish to emphasize that we provided our endorsement of the new Bill C-27 based on our support for the former Bill C-575, for the reasons stated above.

The Whitecap Dakota First Nation went on to raise serious concerns about the scope and application of Bill C-27. How does this kind of bait and switch approach, on an accountability bill of all things, facilitate trust and partnership with first nations?

The government has used the same flawed approach to manage the issues of drinking water and matrimonial real property. It does not consult the stakeholders, let alone the opposition, about the details of these bills before introducing them.

The government's approach violates its constitutional duty to consult first nations before making any changes to legislation and policies that affect first nations peoples, institutions and rights.

The government continued this pattern at committee, rejecting all opposition amendments out of hand and refusing to consult broadly on the few government amendments brought forward.

The previous Liberal government worked with first nations to develop a broad-based and comprehensive mutual accountability framework. This framework was included in the Kelowna accord, which Conservatives tore up in 2006. It was creative. It was built on collaboration and it was the way forward in terms of building accountability and transparency.

First nations funding arrangements are currently subject to annual allocations, changing program parameters and reporting obligations as well as unilateral realignment, reductions and adjustments. Any effort to improve accountability and transparency must be mutual and should include a commitment by the federal government to be accountable for its spending on first nations programs.

As I have indicated, Liberals fully support the principle of proactive disclosure of financial information from first nation chiefs and councils to band members. Clearly, cases of first nation citizens being denied access to this information are unacceptable. However, we must look at the appropriate accountability relationship for the disclosure of this information.

First nation governments must be accountable to the members of that first nation, the people who elect them. Reporting requirements should be focused on making sure the members of a first nation have access to the appropriate information to hold their elected leaders accountable. Therefore, the proactive disclosure provisions in the legislation should apply to first nations alone. There are existing models from first nations that already have strong governance models, which can be adopted. For instance, there are examples of bands that already proactively disclose financial statements on password-protected websites. These are the types of creative solutions that result from thorough two-way consultation.

The bill also applies to first nations with financial administration laws made under the First Nations Fiscal and Statistical Management Act and this could lead to conflicting reporting requirements. The reporting of salaries and expenses, which the government admitted would have created confusion, was amended but still requires first nation leaders to include compensation in their personal capacity. This not only creates serious privacy concerns but also the possibility of misleading information being disclosed regarding first nation leaders' compensation.

Again, the government refused to listen to the expert testimony at committee and rejected opposition amendments on these issues out of hand.

Bill C-27 does nothing to reduce the current overwhelming reporting burden, especially for small first nations with limited administrative capacity.

The Auditor General has repeatedly called for meaningful action to reduce unnecessary first nation reporting requirements that shift limited capacity from community programs. In her 2002 report, the Auditor General recommended that:

The federal government should consult with First Nations to review reporting requirements on a regular basis and to determine reporting needs when new programs are set up.

As recently as June 2011, the Auditor General reported government progress toward achieving this needed rationalization as unsatisfactory. The government has failed to make meaningful progress on this issue.

First nations provide a minimum of 168 different financial reports to the four major funding departments: INAC, Health Canada, HRSDC and CMHC. That is three per week. The majority of these communities have less than 500 people. AANDC alone receives over 60,000 reports from first nations annually as a requirement under existing funding agreements.

Legislation that adds additional reporting requirements for first nations must also deal with the overwhelming and often outdated and unnecessary burden of existing reporting requirements. The practical requirements of the legislation have the potential to be unduly burdensome to first nations. For example, many communities are in remote areas, which impacts both their service delivery and operating expenses. Most communities do not have funding to build the infrastructure necessary for Internet access or the resource to create and maintain their own websites. Again, the government rejected opposition amendments to provide for alternative reporting options to band members.

I would also like to point out that paternalistic lectures about accountability are particularly insulting coming from the Conservative government. The Parliamentary Secretary to the Prime Minister is facing a serious investigation by Canada's independent election authority for spending irregularities and the Minister of Intergovernmental is under a cloud regarding questionable election expenses during the last election. Both still have their jobs and so much for accountability.

What about transparency? Bill C-38, a 425-page omnibus bill that amended over 70 different acts was rammed through Parliament last spring with no amendments and minimal debate. This fall, the government introduced yet another massive 443-page omnibus bill, tucking in changes to everything from exempting the Detroit-Windsor bridge from environmental laws, to changing the list of navigable waters, to changing the definition of aboriginal fisheries and rules for aboriginal land ownership. All indications are that the government will ram this mammoth bill through completely unchanged as well.

First nations have little to learn about accountability and transparency from the government when the Parliamentary Budget Officer, who the government enshrined in the 2006 Federal Accountability Act, now has to go to court to get the information he needs in order to do his job of reporting back to Canadians, members of Parliament and senators on what is going on with the government's spending.

The bill is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples and the Prime Minister's commitment at the Crown-first nations gathering to reset the relationship.

It is inconsistent with the new approach to managing relations between the Government of Canada and first nations that was supposed to have resulted from the residential schools apology in 2008.

As I have stated, Liberals support the underlying goal of the legislation, but we are very concerned about how it was brought to the House and how the lack of consultation and collaboration in its development has resulted in a fatally, fundamentally, flawed legislation.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I thank my hon. colleague for her speech. I would like to begin by pointing out that I also think it is appalling that Bill C-27 is the object of the 29th time allocation motion.

That being said, I would like to ask my colleague the following question. First of all, first nations governments are among the most transparent and accountable in all of Canada, and they are in favour of continuous improvement with consultation. However, the real problem is that they have suffered decades of paternalism, which has placed first nations chiefs in a position where, under the Indian Act, they are responsible for implementing decisions made by the federal government. Not only is that clearly inappropriate, but it is still a recipe for poor results. I wonder if my colleague could comment on these remarks from a first nations chief.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I thank my hon. colleague for this excellent question. It is so sad that this government does not understand how important it is to avoid paternalistic approaches. The federal government is the one that needs to be more transparent and accountable. First nations exemplify transparency and accountability. I think this government could learn a few things from first nations and follow their lead, and not the other way around.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my colleague for her very interesting comments. Does she agree that this government is not in a position to be lecturing us on transparency? When I saw that this bill was calling for transparency from the first nations, I was flabbergasted. This bill calls for transparency from the first nations, yet this government is the perfect example of a lack of transparency.

Could the member comment on the Conservatives' double standard?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I completely agree.

We here are also flabbergasted.

It is a bit rich for this government to preach to the first nations, when the Auditor General said many times that the real problem was the lack of transparency and accountability from the department, not the first nations.

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Speaker, my colleague seemed to be alluding to the fact that Chief Bear is somewhat in the dark on the legislation. That is just not the truth. We did extensive consultation, including in the previous incarnation of this legislation by the member for Saskatoon—Rosetown—Biggar. The two concerns that were raised by Chief Bear about separating out certain types of expenses have been addressed in the bill. When the member talks about some kind of lack of transparency that is just not the truth. Chief Bear is now fully supportive of the legislation.

The member was at committee and she heard from individual members who begged our government to do something because when they ask for remuneration from their band council, there is sometimes threats and intimidation. What does my colleague have to say to members of the community who are begging for this legislation, when she is opposing it? How is she going to help them?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I would encourage the member to view the testimony of the Minister of Aboriginal Affairs when he was at committee. He and his officials had to admit that there was no consultation on the bill. Consultation was conducted on the previous bill. Chief Darcy Bear supported the previous bill. This legislation reaches far beyond the scope of the previous private member's bill and has created all of the problems that Chief Darcy Bear put in the letter to that member and the minister.

The minister already has the power to request a first nation to release data to a member of a community that has complained. It is appalling that the minister and his officials have literally no data on those complaints. They said they had around 200 complaints a year but they had no data as to whether all of those complaints came from the same person or whether they were all with respect to the same band. There was absolutely no data to support this kind of legislation coming forward. They had no excuses as to why no consultation took place with respect to the huge difference between the original private member's bill and this government bill.

Government amendments had to fix that difference because of the very clear speaking of Chief Darcy Bear and the first nations who were appalled at the bait and switch of support for the principles of a private member's bill. The government bill exceeds the intent of the original private member's bill and first nations find this totally insulting.