Thank you, Mr. Chair.
Thank you to the members of the committee for allowing me to appear again, this time on Bill C-27. As was stated, I am the regional chief for British Columbia and the national portfolio holder for first nations governance at the Assembly of First Nations. I am glad to be joined here today by Karen Campbell, who I work closely with within the assembly.
As I have said here before, and as the committee is well aware, I think first nations are in an exciting period of transition and are moving towards increased autonomy and self-government. This is good for first nations and good for Canada.
Increased autonomy is occurring in those nations that are considering and supporting the foundations of good governance, in order to transition our nations from essentially administering federal programs and services on behalf of Canada, or self-administration under the Indian Act, to self-government, with appropriate accountability to our citizens.
There is no issue that the governing bodies of our nations must be transparent and accountable. The vast majority are, of course, and they continue to demonstrate this to their citizens. In December 2010, the chiefs, in assembly, passed a resolution affirming the commitment to transparency and accountability, in part in response to a private member's bill, Bill C-575.
Chiefs were clear in their assertion that these proposed measures—in Bill C-27—are both heavy-handed and unnecessary, and they suggest that first nations governments are corrupt and our leaders are not transparent and consequently need to be regulated by Ottawa. It is not surprising that many of our chiefs have resented this approach and are turning the lens back on Canada, suggesting that it is Canada that needs to develop more stringent accountability frameworks for their governing bodies, that it is Canada that needs to be held more accountable for the treatment of first nations.
However, rather than getting into an unproductive debate on whose government is more accountable to those whom they are supposed to serve, our collective task is to ensure that all systems of government in Canada are accountable and are meeting certain standards, while understanding that there is more than one way to skin the proverbial accountability cat and, with respect to our nations, to ensure appropriate political, legal, and financial accountability as part of nation-building or rebuilding.
The bigger question before you today is really not about accountability at all; rather, it's about who should be responsible for determining the rules that apply to our governments and our governing bodies. The simple answer is that our nation should be; however, the answer to this question is more complicated, given the evolving relationship in Canada between first nations and the crown under the current Indian Act reality.
On Monday, this committee heard from the minister of AANDC, and my MP, Minister John Duncan, who was asked if he thought it was appropriate for the minister to be telling first nations how to be accountable to their own citizens. It was pointed out to him that Canada does not do this for other provinces, so why does Canada do it for first nations? In response, the minister suggested that as a senior government, it was the government's responsibility, but added that when a first nation is self-governing, it is different—first nations control accountability themselves.
Herein lies the dilemma for you as lawmakers. Whether it be with respect to financial transparency and accountability, matrimonial property, or safe drinking water, and so on, what rules and laws—if any—should you be making for our people until such time as our nations are once again self-governing? Also, if you do legislate, how do you ensure that such laws are appropriate, have our consent, and support the long-term vision of self-government and do not in fact hinder it?
It is troubling during this period of transition, as we move away from governance under the Indian Act, that the federal government seems to increasingly want to design our governance for us, in spite of the fundamental need for our nations to undertake this work ourselves in order for it to be legitimate. In my own community of We Wai Kai on northern Vancouver Island, when Bill C-575 was introduced about a year and a half ago, we had a discussion about it. We had discussions about the piece of legislation addressing only one aspect of accountability. It really highlighted the need for my own community to take back control of the agenda and to establish our own laws with respect to financial administration and accountability to our citizens.
From my work in my own community as a council member, it was clear that it was not well understood among our citizens that in the absence of our nations taking control of our own financial administration and establishing our own rules, there is very little, if anything, governing the financial administration of our nations. There is nothing in the Indian Act, as you know, that speaks to first nations government budgeting processes and accountability and/or reporting to our members on how we invest, borrow, and use our moneys and so on. For sure, when our communities sign funding agreements with Canada, we contractually agree to audits, reports, and so forth, but there is nothing above this or nothing governing our own sources of revenue unless we take control.
As a result of this conversation in my community, we chose to develop a financial administration law, or FAL, under the first nations fiscal management act. Our law is as directed and ratified by our nations, it is far more comprehensive than Bill C-27, and, more to the point, it is legitimate in the eyes of our people. Similarly, for Indian Act bands that have implemented sectoral governance arrangements, the accountability framework is built into those arrangements.
Moving further along the continuum of governance reform, for those former Indian Act bands that are already self-governing, the accountability framework is typically built into the nation's laws, as developed and ultimately approved by their citizens. The accountability framework varies from nation to nation depending on a nation's conventions, types of government structures, and the range of jurisdictions exercised.
What we really need to do is increase the options or the tools for our nations to develop their own governance, including accountability frameworks, so they can build their own future within Canada rather than being legislated from above. We need to speed up this process so that where a nation is ready, willing, and able to proceed with reform, it can move, and Canada does not act as gatekeeper.
If Canada insists on pursuing and passing Bill C-27, notwithstanding the strong objections of many first nations leaders, there are some specific questions that must be answered and responses that are needed for problems that have been identified with it. On this note, it is unacceptable that there have not been any consultations—that I am aware of—with our first nations on this bill.
First, I would like to reiterate the commitment to accountability and transparency demonstrated by first nations. Most of the accountability measures in the bill are similar to those found in any first nations constitution or its laws. In fact, first nations are already required to report on matters covered in the bill, through contribution agreements with the federal government. Whether an Indian Act band or not, our nations follow the handbook respecting public sector accounting, as prepared by the Canadian Institute of Chartered Accountants.
This does not negate the fact that there are serious issues with how this bill has been drafted, specifically, one, in the treatment of government business enterprises; two, in disclosure to non-members; three, on enforcement of provisions; and four, on conflict with other statutes and first nations law-making authorities.
First, while public sector accounting standards do deal with government business enterprises, Bill C-27 seems to go further by adding definitions of “consolidated financial statements” and “entity”, as well as its own interpretation of what it means for an entity to be controlled by a first nations government under subclause 2(2). It is not clear what the intention is here. Why not just make the public sector accounting standards apply? We would like clarity, and we need to ensure that this bill does not inappropriately modify the rules that currently apply to other governments in Canada with respect to government business enterprises
Second, a bigger but related issue for many of our first nations is the proposed new disclosure requirements, which would require the audited consolidated financial statements of each first nation to be made public by posting them on a website. This is not the case today unless a nation has chosen to do so. There is, of course, no concern where those receiving the audited consolidated financial statements are our citizens. This is, however, not the case where there is a requirement for public dissemination.
This is a material departure from what was proposed in Bill C-575 and the precedent set under the first nations fiscal management act. For some first nations, and in particular those with significant government business enterprises, this poses a number of concerns.
As we understand, Chief Darcy Bear will be here to speak about those concerns and potential amendments to this bill.
Third—and I'm getting close to finishing—with respect to enforcement, the provisions seem costly, and it's mostly unnecessary legal proceedings wherein the minister is authorized to apply to superior court for enforcement. Within their own accountability frameworks, first nations use different enforcement mechanisms, including the first nations law that my community has developed. These include calling community meetings, internal appeal processes or other alternative dispute mechanisms, as well as, in some cases, recall provisions for officials who breach a nation's law. Where outside courts are used, our nations may choose to use a superior court. In some cases, it is a provincial court or the Federal Court.
Fourth, with respect to the conflict of the laws, the bill correctly does not apply to first nations that are self-governing. However, it appears, perhaps unintentionally, that it does apply to first nations with financial administration laws made under the first nations fiscal management act. To have Bill C-27 apply will create issues if there is ever a conflict between a FAL and the bill. Politically, it also sends the wrong message to a first nation such as my own, which has developed a financial administration law, that it will still be regulated by Her Majesty. Nations that have enacted FALs or land codes need to be recognized and respected for the hard work they have done, which represents a level of community engagement resulting in political legitimacy of their institutions and their laws. It should be made clear what happens in the event of a conflict between the proposed legislation and any other federal legislation or laws of a first nation developed in respect of the sectoral governance initiative.
Finally, I want to remind the committee of work that was conducted by the AFN and the Government of Canada in 2005, the “Accountability for Results” initiative. This led to promising work that was halted in 2006. As part of this initiative, the AFN and Canada agreed to a number of common principles for furthering the accountability relationship. These were: one, the primary accountability is to our citizens; two, for policies, programs, and services to first nations, the primary objective is to improve results for first nations citizens; three, accountability is a shared responsibility, a mutual responsibility; four, there is a shared vision of adopting and adapting the five principles for accountability of the Auditor General of Canada as part of a collaborative process to develop a new model accountability for results that support the aspirations of communities while assuring everyone has effective management of resources.
In light of the reviewed commitments for actions stemming from January's crown-first nations gathering, particularly the review of financial arrangements as part of pursuing a renewed relationship, there is an opportunity to revisit and move forward on these principles as we support our nations. The solutions that are working are being found by working together, by creating the space and tools for communities to rebuild and to move beyond the Indian Act, to decolonize, and to rebuild government.
I would urge you to pursue approaches that truly support first nations governments. One proposal, as directed by our chiefs, is to create an office of the first nations auditor general.
I would encourage you to continue to visit first nations communities directly to understand how their governments are struggling with and addressing the constraints under the Indian Act, and how those communities are moving beyond it and are accomplishing this by taking a classic community development approach. They are the ones who have the solutions, and I urge you to consider how you can support those mechanisms. Instead of further sandbagging or shoring up the archaic and inadequate framework that is the Indian Act system of governance, such an approach lets us build a bridge together and support first nations in the work towards self-determination and what I hope is our collective vision for Canada.
Gilakas'la.
