Indigenous and Northern Affairs Committee on April 16th, 2013

[The Chair, Conservative, Chris Warkentin]

Colleagues, I will call this meeting to order.

This is the 66th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we continue our study on Bill C-428, a private member's bill.

We have Mr. Harold Calla with us this morning. He's back with us on this study, as he's been with us in previous studies. Mr. Calla is chairman of the First Nations Financial Management Board.

Mr. Calla, we thank you for coming. We appreciate your testimony and your willingness to come today.

We'll turn it over to you for the first 10 minutes. Then we'll have some questions for you.

[Harold Calla, Chairman, First Nations Financial Management Board]

Thank you, Mr. Chairman.

It's a pleasure to be here again.

I want to start by acknowledging each of you who has the courage to stand for public office and serve this country. I thank you for that.

I'm particularly pleased to have the opportunity to speak to this issue today, because I think we hear a lot of discussion across the country. As an aboriginal person and a member of the Squamish Nation, I've understood the need to move beyond the Indian Act. I think the Indian Act is a document that does not reflect the current state of the law, or the current times, so how we choose to do that is problematic, but I think we have to start. I applaud the effort to begin to look at making changes, many of which need to be made.

I have reviewed the brief of the Canadian Bar Association that was presented to you in April. I can support much, or almost all, of what they say. I will have a look at making some comments in regard to some of those things.

As we look at moving beyond the Indian Act, I think we need to recognize the needs of many different stakeholders. It's not just the first nations community. It's not just the first nations members. It's the regional impacts that decisions made by first nations may have.

I know in eastern Canada it's not as prominent, but in western Canada many first nations communities are in urban areas, and many first nations communities have significant numbers of non-aboriginal members residing on their lands. As we look at how we're going to make changes in section 81 laws, I think we do need to understand that fact.

The other thing we need to appreciate is that first nations governments should not be required to be held to a higher standard than other orders of government in this country. First nations governments need to have the capacity, both human resources and financial, for systems of governance that reflect best practices and that, to the greatest extent possible, reflect the historical perspectives of traits that first nations wish to see themselves governed under.

The ability to sustain the governing model will be fundamental in any changes we want to contemplate. It will create chaos in our communities if we don't have the ability to sustain the governance models that we're proposing. Most importantly, I think it's in the interest of all Canadians, not just aboriginal Canadians but all Canadians, that we look at some systemic change in the relationship that promotes self-reliance and promotes the ability to support building the Canadian economy.

There has been a presentation prepared for you. I'm not going to recite it verbatim, but I think you should appreciate the many section 81 laws. If you look at the scope of section 81 laws in the presentation, they do have impact on those who reside on reserve lands.

What I don't see in this is a process by which bylaws will be developed. Is it a circumstance where five or six of us get together one day at council and decide that we're going to develop and pass a bylaw? I think most systems of modern governance provide for some consultation, some input, and some process by which these laws are proclaimed. I would respectfully suggest that you consider these principles of governance as you look at this legislation.

Those also need to conform to standards. What we're moving to, and what the Financial Management Board is all about, is creating standards so that all stakeholders can appreciate the basis on which they're being dealt with. Notice publication, consultation through public meetings, and those kinds of things would also be very important in the process to developing laws, with several readings. I mean, look at the way you conduct your business. How should it be any different?

We can look at some of the provisions that will undoubtedly be controversial. I want to draw your attention to section 85.1. I have read the Canadian Bar Association's submission to you, and I'm in support of the position they put forward.

I'd just like to remind you all that it is appropriate in this country that other orders of government determine these matters for themselves in terms of where liquor and drugs are to be served. If a first nation community is of an opinion by the majority that they don't want alcohol on the reserve, we should not preclude them from doing that.

One of the things that I think is very burdensome, and perhaps you weren't aware of it, is this concept of publishing laws in a newspaper. Do you do it? No. Is there a place where I, as a Canadian, can go and find out what laws are made and published? Yes. But to put the notion forward that a bylaw, which in some cases can be pretty substantial in terms of its content, needs to be published in a newspaper I think is onerous and unnecessary. Having it available on a website and having it published in the First Nations Gazette should deal with all of the matters that need to be dealt with in terms of the public being informed.

I would respectfully suggest that you look at that provision and understand that in that particular case, in my view, you're asking first nations governments to do something that no other order of government is required to do in this country, to my understanding.

I think the matter around trusts and estates is a complicated one. While I appreciate the effort here to start to try to deal with it, I would respectfully request that this is the type of provision that I think needs to be dealt with in the manner that's being proposed by the Canadian Bar Association. You need some enabling position, you need some alternative in place, you need to function under some sort of standard before we make these carte blanche changes, and I think we do have to deal with the reality of many first nations citizens dying intestate. This provision doesn't even remove the responsibilities completely from the minister, in my view.

I would therefore respectfully request that you look at the proposals that have been suggested by the Canadian Bar Association, but that you do move forward. This issue of estates is as difficult as getting a GIC appointment these days.

A little humour, people, come on. I mean, this is 3:30 in the morning for me. I'm from the west coast, so if I can laugh, you can.

[Voices]

Oh, oh!

[Harold Calla]

I think we have to find a more appropriate mechanism to deal with trusts and estates, so I would encourage you to continue to develop that. I'd encourage you to look at some of the provisions that have been suggested by the Canadian Bar Association.

I want to conclude by saying that I applaud the effort to begin to deal with the need to amend the Indian Act. The issues around truancy officers and all of those kinds of things...where it's antiquated, it should be gotten rid of, and I applaud that action. There are some matters that have been raised with you that I ask you to consider, and that you appreciate that you're starting to develop a modern-day first nation government. When you make these decisions you need to be aware of the requirements for a first nation to be able to successfully undertake the responsibilities that are being put upon it. That means human and financial resources. We eventually have to get to the point in this country where we are discussing a revised fiscal financing arrangement between first nations and other orders of government in Canada. Unfortunately, it doesn't matter what you do here in this legislation; if there isn't a capacity or the resources to be able to do it, it's going to fail, and then we'll all be seen as having failed.

We have to bite it off one piece at time, whatever we can chew, but we can't lose sight of a much broader objective. I will ask the question I asked the last time I was here. It's really important that we begin to develop a vision of what we want this file to look like in 20 years. We have to take incremental steps to move that, and every incremental step has to be measured against an outcome that we see in 20 years, which I would hope would be more self-reliant first nations contributing to the Canadian economy and having a much better opportunity to be self-governing than they have today.

With that, Mr. Chairman, I'll conclude. Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Calla.

We'll turn it over to our colleagues.

I would only inform you, Mr. Calla, that you have seen a document that we haven't yet seen. The Canadian Bar Association will be coming in a week's time to us. I haven't seen the document formally at the committee level. You may have given it to us, so we'll get that distributed as soon as we possibly can.

We'll turn now to Ms. Crowder to begin the questioning for the first seven minutes.

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

Thank you, Mr. Chair.

Mr. Calla, we don't have your brief or the document. I think it was likely because it was submitted in English and needed to be translated, so we have not yet had the benefit of either.

[The Chair, Conservative, Chris Warkentin]

Ms. Crowder, I've been informed that apparently it has now been posted on the Canadian Bar Association's website, so we will all have access. The Canadian public has access, so I guess we'll have access in that form. It's less conventional than usual, so I thought I'd inform folks of that.

Thanks, Mr. Calla, for drawing that to our attention. We appreciate it.

Ms. Crowder.

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

Unfortunately, we haven't had the opportunity to review either of those documents in order to pose questions in the context of what you presented, so we may be asking you to repeat some of what was in your document.

Just a point. I think everybody agrees the Indian Act needs to either go or be radically revised. What we've been hearing from a variety of people is around the process. Grave concerns have been raised about the fact that what we have is a private member's bill before the House, a bill that hasn't been brought forward from government and that hasn't had consultation. When you talk about needing to take incremental steps, do you have suggestions on how we can move forward on those incremental steps?

[Harold Calla]

I'd just like to ask, why does it take a private member to initiate the action?

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

That's a very good question. For example, on the section on residential schools, the minister promised to come forward with a government bill to remove those sections of the legislation. So that's a really good question about why it's a private member and not the government.

[Harold Calla]

Mr. Chairman, I have been working in this field for 25 years. I've seen and worked with many governments, and I've worked with many good people who have served various parties. This is not a partisan political issue. It is a matter that requires all parties to seize and to support, because in the absence of that all-party support for a change, it doesn't happen.

In the legislation that I've had the opportunity to represent my community as a proponent of—the Land Management Act, the Fiscal and Statistical Management Act, FNCIDA, and FNOGMMA—we never got anything done if we didn't get all-party support. Even in the years of a majority government we couldn't get legislation passed.

So I would say to you, yes, there does need to be a process. But there are some administrative matters the government has imposed that are onerous and unnecessary, that government has the responsibility to change and Parliament has the responsibility to change. I would encourage you to look at it from that perspective. Is there a much broader discussion around self-government? Absolutely. Do we need to define a process for that? Absolutely.

We also need to recognize that we cannot wait until 600-and-some-odd first nations in this country move lockstep. It has to be enabling and it has to be a process that people feel secure in, and I think all parties need to contribute to that.

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

Yes, I don't disagree with you on that. And I also don't disagree with you that there should be any expectation that 633 first nations should move lockstep. I think the challenging point always has been that there still needs to be a process where first nations are engaged when significant changes are happening.

I think you rightly point out that of some of the other legislation that parties have supported, the First Nations Oil and Gas Act is a really good example of opt-in legislation. It wasn't legislation that was mandated for every first nations to engage in. The First Nations Land Management Act is another good example: first nations choose whether they're going to participate in that. We've supported that legislation in the past.

We're having difficulty supporting this piece of legislation, again because of the way it was brought forward. You rightly pointed out that there are no resources attached to it, because a private member's bill cannot do that. It can't compel the government to spend money. We know a number of these are going to have impacts on first nations' ability to manage. The issue around newspapers is a good point. You have to pay for the newspaper.... There are all kinds of assumptions around that. So we're being challenged by a piece of legislation that, first of all, has some grave errors in it and, secondly, doesn't have much support out there, as far as we can see.

When you talk about administrative matters, are there some key administrative matters that you think could be expedited?

[Harold Calla]

Well, I think the whole concept and the time it takes to engage the minister in the approval of bylaws is problematic. You're putting the burden on an individual in the government, regardless of party stripe, which I would find difficult for anyone to fully administer. You could easily get 633 laws a week. So the burden of the minister having this responsibility, in my review, is unreasonable.

Because you've not had the opportunity to review the Canadian Bar Association briefing, you'll find, when you do read it, that in the main it is supported. There are the areas I have discussed in which the Canadian Bar Association feels there needs to be some further work done on this.

Generally, the concept of removing the Minister of Indian Affairs as the truant officer over Indian children...that's a matter that was brought on and imposed by government.

I view this legislation as an initiative by an individual within the parliamentary system to look at some antiquated provisions that no longer apply and to say, as an administrative matter we're going to clean these things up. And I support that.

What I would also support is everybody around this table engaging in a really positive discussion about what you want this file to look like in 20 years and how we start to get there. That's what needs to happen. It is the piecemeal approach to dealing with these things one-off that has created a problem for centuries, and that needs to be addressed.

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

We would agree that the piecemeal approach is a problem, and we would like to see a more comprehensive approach to dealing with these administrative matters.

Thank you, Mr. Calla.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Crowder.

We'll turn now to Mr. Clarke for seven minutes.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

I'd like to thank the witness for coming in from British Columbia to provide testimony. I'm sure it's got to be very difficult with the time changes.

Mr. Calla, your organization strives to provide the tools and guidance in first nations financial management to reporting systems in order to support economic and community development.

I have a couple of questions. One, how does the Indian Act hinder economic development?

[Harold Calla]

I can best describe it by saying that in 1990, when I went to the Bank of Montreal to ask to borrow money, I was asked where the minister was. It was the first time I had ever been addressed that way. I jokingly said I didn't think I was coming to church.

The fact of the matter is, Indians and first nations governments need to be empowered. We don't have the same abilities. It's starting to change. There's been legislation developed that first nations can opt into that is helping do that. But I think the biggest challenge in dealing with the ability to develop an economy is the ability to create regulatory harmony between on-reserve and off-reserve economic development opportunity.

The First Nations Commercial and Industrial Development Act is designed to do some of that, but it deals with the harmonization of laws. It doesn't necessarily deal with the process by which laws are made that a first nation government is going to make. That's one piece that I think we need to pay some attention to.

I see the impediments being the inability of the first nation, as a government, to engage with the mainstream economy without having to deal with the bureaucracy—the minister—being problematic. Access to capital has been a problem. We're in the chicken and egg thing. Where's the money? How do you support capacity development? How do you engage with the mainstream economy? We need to invest in getting first nations to the point where they have an understanding of what it takes to engage with the business world in a global economy as it functions today.

All you need do is look at the $500 billion in resource and energy initiatives that are implicated by consultation and accommodation in this country to understand the problem, and everybody's trying to find a solution on how to do that.

There's no quick fix. You're going to have to deal with first nations that have an interest, because of opportunity existing within their territories, to engage in processes where that capacity is being developed, and that's what we do at the Financial Management Board with the other institutions under the fiscal management act.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

What we're seeing here with the First Nations Land Management Act is how it's taken the Indian Act or gotten rid of a third of it for first nations communities that are willing or actively participating in that program. We see the economic benefits that are affecting them or those individual first nations. With Bill C-428, some of those communities cannot participate under the First Nations Land Management Act. Do you feel that this bill can also assist those first nations that don't readily qualify to participate in the economic developments?

[Harold Calla]

Certainly, the ability to pass your own bylaws and not involve the minister will be a help. But at the end of the day, the issue, whether you're waiting 40 days or not, is not going to substantially change that. I think it's the other aspects of your land code and the internal processes that are a strong factor in influencing economic development in aboriginal communities.

I've always been disappointed, as a proponent of the Land Management Act, that we've been challenged in getting first nations, since the inception of the act, to be eligible to become part of it. At some point in time in this country, I say to everybody around this table, because it's not a partisan issue, you have to bite the bullet on the cost it's going to take to get people there. You have to start looking at the benefit. You need to start doing the research on this study. What are the economic impacts of not allowing first nations communities into the system?

I see an announcement in the budget. Well, we now have enough money, and thank you, for another 33 first nations to come under the land management system. Thank you for that, but what are we going to do with the other 90? Why are we waiting for those other 90? What are the fiscal impacts of not moving on those things today? That's the kind of cooperation that I'm saying we need to start to look at. There has to be a rationale. I know it's tough; I'm an accountant. I can appreciate the difficulties we have in this country today, and you, as parliamentarians, need to be prudent in how you utilize scarce resources, but you can't be afraid to make an investment that you know will yield a result. You just have to make sure that result is forthcoming.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

You mentioned the First Nations Land Management Act and seeing additional funding for additional willing partners. There have also been individuals out there in our first nations communities who want to participate, and they want to foot the whole cost themselves to participate, but they haven't been accepted. Will this bill be able to allow them, in any way, to participate for economic development, by forming their own bylaws or by removing these outdated sections so they don't have to wait to participate for economic development, such as growing their own crops or selling their own produce? There are just so many different opportunities out there. Sometimes, waiting for ministerial approval up to a year or two years...you get the investors walking away rather than coming to the table.

[Harold Calla]

Unless we are able to eliminate the need for the minister and the department to participate in land leasing arrangements, I'm going to say that the answer is no. It's not going to help, because those are some of the more substantive issues that have to be dealt with.

The other is understanding what regulatory harmonization needs to take place to get the highest and best use out of the land. The example I want to use is this: if you're developing market housing on reserve land, you would want some provincial rules of general application around the tenancies act to apply. I don't see this legislation being able to do that in and of itself. Will it improve the opportunity to do some economic development? Absolutely. Will it fill all of the voids? No.

[The Chair, Conservative, Chris Warkentin]

We'll turn now to Ms. Bennett for seven minutes.

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

Thanks very much, and thanks for coming.

I think we all know that the way forward.... I was very grateful to your 20-year view, that if we don't keep our eye on that strong common purpose of an economy and a self-government that allows for the potential of first nations, we're going to get this wrong. I guess I am concerned, like my colleague from the NDP, that the piecemeal approach, and coming from a private member, is actually distracting us from getting on with a government approach that would receive, I believe, the support of all parties—if the government put in place a process.

The name of the bill is the Indian Act Amendment and Replacement Act, but I don't see any work being done on how it's actually going to get replaced. What you describe is the revised fiscal financial relation between the crown and first nations; it is a piece of work that has to get done.

I hear you saying that biting off one piece at a time is okay to get rid of some of this administrative nonsense, but I also hear that the piecemeal approach hasn't worked in the past and that we've actually got to get going on the big picture.

I guess I'm worried that without that 20-year plan...this bill, which had no consultation before it, which has serious errors—failure faults. Whether it's intoxicants or whether it's posting in newspapers without resources, there are serious errors in this piece.

I think we're going to have to agree to disagree. We don't like this bill and this approach and this kind of time being spent at a parliamentary committee when we think it's something the government should be doing in a proper fashion.

Could you tell me what it would look like in terms of...? Bob Rae tabled a motion giving two years for a first-nations-led process, to figure out what the process would look like to get out from under the Indian Act.

What would be your way to get to that 20-year vision between the crown and first nations?

[Harold Calla]

We don't have enough time.

[Some hon. members]

Oh, oh!