Thank you, Mr. Chairman.
Good afternoon to the honourable members of the committee, and thank you for the invitation to appear before you. I'll keep my remarks brief in the interests of my colleagues sharing our time.
I am an external adviser to the Assembly of First Nations. I have been providing them with legal counsel on the issue of additions to reserve and the reform of that process, as well as the specific claims reform.
I appear before you today to share the view of the Assembly of First Nations on the amendments. Our view is tempered by the process under which the amendments have come forward, but let me first share with you the view of the amendments themselves.
On the technical amendments to the Indian Act, we've read through the transcripts and the appearance of the minister before the Senate standing committee introducing the bill and the amendments in division 8 that are intended to streamline the designation process. It is a lengthy, costly, and oftentimes complex process to designate land, which is not the surrender of land, but the leasing of land. By all accounts, at the time at which it was introduced in 1988 it was, and is, commonly referred to as the Kamloops amendment, after the first nation that actually advocated for the change back in 1988. It is a process by to make lands for leasing purposes available to non-band members.
The amendments in the bill that speak to the separation of “designation” from “surrender” are a change that would do two things. First, it would improve the high threshold vote that is required by the provisions as they are currently written. Our colleagues who spoke from the department prior to this panel explained the two-tiered threshold of a majority of a majority on a first ballot, and if first nations are unsuccessful in securing that majority of a majority, that triggers a second vote. The separation of “designation” from that threshold would, in all likelihood, bring some efficiency and cost-effectiveness, frankly, to what is, as I say, an otherwise complex process.
The other elements that are far more technical in nature in this division 8 of Bill C-45 relate to the recommendation of the minister upon the vote having taken place.
Voting under the Indian Act must take place in accordance with its regulations. In the course of those regulations, there is the appointment of an electoral officer. The duties of an electoral officer are explained and detailed in the regulations themselves and include the giving of notice and the overseeing of the entire referendum process. It is after the results of the vote are known that the electoral officer is to sign a statement as to the validity of the vote, and that statement must also be signed by a representative of the first nation. What's technically changing in this amendment is that after that process the community must recommend to the minister to accept the results of the vote.
It was explained by our colleague, Mr. Kris Johnson, when he appeared before the Senate committee on November 7, that the amendment is intended to introduce a stopgap measure in terms of the community being in a position to signal to the minister that they are not prepared to recommend the designation result.
What's interesting about that, and I'm not suggesting anything hinges on it in this amendment, is that there are no amendments being introduced to the regulations themselves, so there is no displacement of the electoral officer in the process.
In fact, the referendum regulations do provide a review process that can be initiated by any community member who wants to challenge the referendum. They have seven days to do so. None of that process is being displaced in this amendment, but the minister can still disregard the designation vote, as it were, even by a simple majority.
The final change introduced by this amendment, again technical in nature, is the replacement of the Governor in Council approval of a designation vote by a ministerial order. We have seen this tool, the use of a ministerial approval in a designation process, through the use of pre-reserve designation in the claim settlements implementation acts that are available in the Prairie provinces of Alberta, Saskatchewan, and Manitoba. Those pieces of legislation were introduced purely to address the number of outstanding treaty land entitlement claim settlements that were occurring in those provinces in 2002.
The Auditor General of Canada has reviewed many elements of the implementation of those settlement agreements, but in the context of the use of designation under that legislation, it incorporates by reference the designation procedures of the Union Act, so in consequence that legislation will be equally impacted by the amendments that are introduced by Bill C-45.
What's important about that, which leads me directly into my remarks about the process—