Indigenous and Northern Affairs Committee on April 16th, 2013

[Harold Calla]

Respectfully, I want to say that I think we're losing sight of the fact that, as I see this bill, a lot of it is undoing decisions that were made by previous governments on administrative matters that are no longer relevant. We weren't consulted when they were brought in. We hated them. But the fact of the matter is that they were brought in, and I applaud the effort. Do I wish it had come from a broader spectrum? Absolutely, I do, but at least somebody is taking some action and saying that these things need to be done away with.

I think what is going to be required in the future is for you to understand what's required. A lot of good work was done by the royal commission that has fallen on deaf ears. There was a lot of good work resulting from many court decisions that have defined some of the new relationship issues we're facing. Instead of hiding from those things, we need to embrace them in a modern-day context, in my view—everybody does.

What does it look like, and how do we become involved in the process? You have to become involved with those people who are able and willing and have the capacity to move beyond where they are today. You can't force this on anybody, so it has to be enabling. It's going to require Treasury Board and Finance and the whole discussion around how first nations raise revenue, how they pay for the services they receive. It's not an easy topic.

That's where the consultation in all of this needs to come in. This legislation actually calls for somebody to report to Parliament on the progress towards replacing the Indian Act. I've never, ever seen a piece of legislation that says somebody should report. Because of the constraint of its being a private member's bill, there isn't the body of work behind this bill to say how it should be done. Respectfully, it's your challenge as parliamentarians—all of you in this room—to develop the process and to make reference to this piece.

Nobody has been willing to take up the challenge. We do little things, and the issue more or less goes away. But it's not quick enough now. We need to be in a position in which everybody demonstrates good faith and we need to get rid of some of the things that today are irritants to first nations.

As you read the Canadian Bar Association document, you'll start to see some of their position and that of the aboriginal law society.

I'm not saying it's the best solution. I'm disappointed, quite frankly, that it took this long and that it takes a private member's bill to do some of this stuff. But don't prejudice the initiative because it is a private member's bill in and of itself, I respectfully ask you. Somebody is doing something, and something is better than nothing.

[The Chair, Conservative, Chris Warkentin]

Thank you.

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

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Thank you for your testimony.

In your opening comments you indicated that in your opinion first nations ought not to be held to a higher standard of accountability than other levels of government. I'm inclined to agree with that statement, but I'm curious. There are two ways to remedy the situation. One is to bring other levels of government up, or, alternatively, if this piece of legislation were to hold first nations to a higher level of account, to lower them.

I wonder whether you have an opinion as to where the bar ought to be set with respect to all levels of government, agreeing with your proposition that first nations ought to be held to the same level—not higher or lower—of accountability as other government levels.

[Harold Calla]

Wow. It's like I'm taking a poison pill here.

First of all, I don't think you can ask first nations to lead. Initially, first nations need to be held accountable at the same level. Does the bar need to be raised? I think if you asked every Canadian...yes, the bar does need to be raised. We have auditors general, we have budget officers, we have all kinds of people who provide oversight to first nations governments, and we see all kinds of challenges that are being raised as a result of that oversight.

Having spent 20 years of my life in and out of Ottawa, and I've been here probably about two months a year since the early nineties, I've had the opportunity to observe our process, unlike most Canadians. I wish it could be less adversarial, because if it were less adversarial we might be able to get some things done.

If there's a problem here, it is that if anyone were to come forward and acknowledge that there needed to be improvements, I wouldn't want to be the government sitting in question period.

This is a matter that everyone has to embrace—saying we want to improve accountability. It can be, but it has to be done in the context of a cooperative effort among all parties in the parliamentary system. Then, as that bar gets raised, other orders of government should also be required to rise to that level. But you can't ask first nations to lead something other orders of government aren't leading, because we don't have the capacity or the resources to do it.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, and I agree with that.

In your answer you mentioned, and I think it's fairly well appreciated, the adversarial nature of aboriginal-federal government relations. Would you also agree that there are adversarial relations within first nations communities themselves, and that they are a significant obstacle to meaningful reform to the Indian Act and to first nations governance generally?

[Harold Calla]

Yes, there are differences of opinion. We're no different from any others. The fact that in this country we're all called Indians is a bit of a misnomer. I'm Coast Salish. I'm not Mohawk. There are different traditions, cultures, and approaches. No, we don't all agree. Some of us have treaties; some of us don't. Some of us have different visions of what those treaties were intended to be than others who have treaties. Those of us who don't have treaties have a completely different perspective, so it's always going to be a challenge to create unanimity on any of those issues.

But that doesn't mean you can't move forward with those who can. That's what I say. You can't wait for 633. You have to begin to work with those who have expressed desire, those who have the capacity and the experience to move forward. These matters will eventually find their way. I look at the Land Management Act and the Fiscal and Statistical Management Act. In 1988, when the amendment to the Indian Act on taxation was there, everybody said this would not benefit anybody. Four or five first nations might deal with this. Well, there are 100 first nations in this country now with section 83 laws. There is $60 million to $70 million a year going into first nations communities as a consequence of these actions, and it's not seeing a demand being put on the federal government for transfers.

Not everybody in this country has the opportunity to level the property tax or to engage in economic development, and that's the issue we have to deal with. We have to make it in their interest to deal with these issues. I think we're starting to make inroads. The issues between first nations will always be there. If you get to the point in this country where all the provinces are agreeing with one another, I would then hold out hope for first nations, but not today.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

You said a deficiency in this bill is that it doesn't set out a process for bylaw development. That was 633 first nations. Can one size fit all, or should the bylaw development mechanism be left to first nations to develop? As you said, there is not necessarily unanimity among those 633 nations.

[Harold Calla]

As I said before, I would like to see first nations empowered to pass laws that are consistent with standards. That's what we do on the financial management board. There is no reason why you couldn't have standards around governance. Up until a year ago we had a governance institute. There may have been some issues on how it was being managed, but we do need the ability for first nations who are seeking advice on how to develop a governance structure to get that advice. I think that's a matter that we'd like to address in the future.

Certainly if you were to look at our standards at the financial management board, we deal with some of those issues, but not all of them. They do need to be dealt with. We do need to provide the capacity for first nations who want to move to a process for making laws that reflect best practices to be able to do so.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you very much, sir.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Rathgeber.

Mr. Genest-Jourdain, we'll turn to you for the next five minutes.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good morning, Mr. Calla.

Mr. Calla, one thing you said during your presentation really struck me. You mentioned by-laws being developed and passed behind closed doors by six or seven people. Has that kind of thing happened before? Have legislative measures and restrictive measures affecting all first nations members been passed without any real involvement from community members?

[Harold Calla]

Certainly for those who have self-government agreements, those who have entered into treaty, much of this does apply. There is no ministerial approval required. So yes, there are first nations who have opted into those arrangements that currently are functioning. If you look at Tsawwassen First Nation in British Columbia, as an example, if you look at Westbank, if you look at the Naskapi Cree, if you look at their whole process, it's moving towards this.

What's absent in this is the ability to say—just as you do in the parliamentary system—if I'm going to consider a law, how do I make it known that I'm considering a law? I think we need to have that in this process. I agree with moving the minister outside, but there are stakeholders, many of whom may have financial interests on reserve land, who can be impacted by these laws, and that fact needs to not be ignored. I'm not saying it is, but it needs to be recognized as a potential. For those individuals, in their relationship with that first nation community, it would be beneficial for them to be aware.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Calla, you also said it was mandatory for by-laws to be published in a medium other than just written newspapers. It is important to take advantage of the Internet and Web sites and other methods to let people know that consultations are being held.

To your knowledge, does this private member's bill, Bill C-428, specifically provide for such measures to ensure optimal participation by communities?

[Harold Calla]

The First Nations Gazette has been in existence for quite a number of years. It is not unlike the Canada Gazette in many respects, in that it is a place where people can go to determine which laws have been passed. Initially, it was for property taxation laws.

This bill proposes that bylaws be published in that same First Nations Gazette , in French and English, and that people will be made aware of it. So, yes, there is an ability for the Canadian public to be made aware that this is a place.... The First Nations Gazette is also on the website. It has its own website and it does publish a hard copy. So there is a place to go for these laws to be passed that is not inconsistent with the way other orders of government are published.

There is an unintended consequence here as a result of the fact that if you opt into the fiscal management act, as it is now called, your section 83, all laws come under that. One of the things we have to be certain of is that we're not asking people to go back and publish laws already there. It's a technical issue we can deal with.

The big issue is if you look at my community, Squamish, our zoning bylaws, for example, are about 64 pages long. Are we going to publish those in a newspaper? No, and I don't think anyone intended them to be here. So I think this whole concept of publishing the text of it, giving notice that it might be passed is okay, but publishing that in a newspaper is not reasonable. That needs to be changed. If you have to publish that a law has been passed, okay, but really, most first nations have a website. Having it there and having it in the First Nations Gazette should suffice. You shouldn't need anymore.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll now turn to Mr. Rickford for five minutes.

[Greg Rickford, Conservative, Kenora, ON]

Thanks, Mr. Chair.

Thank you for coming today. It's always a great opportunity to talk to you specifically on the important work your board is doing.

I have five minutes here, so I'm not going to get very far, quite likely, but I am compelled to make some broad observations on the basis of your presentation and some of my colleagues' questions from both sides, which I appreciate very much.

I find this whole debate across the piecemeal versus incremental spectrum, if you will, interesting, probably more as a legal matter but also as a practical matter. As somebody who has spent close to 20 years practising law in first nations communities, this whole notion of a blanket approach within a specified period of time, even if the consultation process is clearly laid out, could spell trouble, given the socio-economic range we're talking about here among the 632 chiefs. As you rightly pointed out, lawyers, doctors, and first nations chiefs have a lot in common. If you put everybody in a room, you're not likely to walk out with one particular perspective—and for very good reasons, I might add.

I obviously side on the piecemeal approach that some sorts of substantive steps have to be taken before major changes occur to the Indian Act, which take a look at the residual conditions that exist so that you know and understand what the Indian Act could or would look like. What, in fact, by default, is it covering? I feel very strongly about that.

My predecessor in my riding, the former Minister of Indian Affairs, Bob Nault, took some important steps with the first nations governance act. Perhaps, unfortunately, major pieces of that—which I really supported in its totality—didn't end up going through, because of the conditions and political dynamics of the day.

I would also add an interesting point that I haven't heard so far, and that is, the provinces do play a role in this. Some of the discussion around own-source revenue and certain kinds of what one might call legal activities necessarily depend on full cooperation with the provinces, I would say particularly on own-source revenue.

For this idea of things to work, whether the Indian Act exists in part, it is modernization. Rob has taken some important steps I think with respect to residential schools. As a person who negotiated on behalf of more than 900 survivors at the table, I think it is important that we have a first nations person taking that important symbolic step on the residential school piece. I would add, Harold, that there are some pieces of this bill, as it is, on which the government is certainly open to amendments, so some of my questions, as we heard earlier today from across the floor, are chipping away at that, and I think we'll arrive there.

That's a fairly long introduction, but I can see you nodding with some general consensus. You may want to add to that, but before you do, Harold, I would like to put this question to you. In addition to your thoughts on what I've said, and given the strong possibility that this will advance through the process and will become a useful piece of legislation for us, what does your board think is an important next step? You alluded to some of them in your opening presentation, but for practical terms, what do you think would be some important measures?

Perhaps since you've consistently said you want to defuse and depoliticize this, put those thoughts out there.

[Harold Calla]

I'd like to see the Financial Management Board, because we exist, or another entity be able to provide certification that a first nation has a government structure in place that is consistent with the principles of modern-day government. That's what I'd like to see.

In terms of your comments, I do agree with you. Sometimes we say a word and we take different meanings from that word. We worked on the legislation of the fiscal management act for 10 years, and we sat down in little back rooms and decided that we thought this would work. We consulted with everybody. Then we implemented it. Now we have to make some amendments, because we found out where it doesn't work. Nothing is ever going to be perfect. That's just the world we live in.

We have to have pieces of an integrated approach, not piecemeal, and pieces of an integrated approach ask what we want this to look like in 10 years and whether we are measuring this action against that intended outcome. That's what I would like to see.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn now to Mr. Bevington for five minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Mr. Chair.

Thank you for the very sage comments you made here today on many of these issues.

The problem with this bill is that some of the things that are quite obvious to do away with are supported generally, and I think they're not all that important in that they're not used that much as well, so there are parts of legislation that are antiquated and not likely to be used.

Having read this Canadian Bar Association presentation, it's clear to me that they're not supporting the work on wills and testaments in this bill, and that I think is one of the major elements of this bill. Do we strip this out of the bill, to get rid of some antiquated parts of legislation that aren't really used? Do we go ahead with something that's not going to work quite right in order to change some things that might work okay? What do we do here?

I appreciate the idea of taking the minister out of approving bylaws. I come from the Northwest Territories, where we're desperately trying to get the federal government out of our face completely, so I appreciate the struggles of reserves in having to get bylaws approved through the minister now.

If we don't want to move ahead with wills and testaments because they may upset the apple cart in a greater way with this bill not providing replacement, yet other elements may have some merit in them, how would you suggest this be accomplished?

[Harold Calla]

I do have some suggestions, not surprisingly. I think you need to look at point 2 on page 12 of their brief, looking at the coming-into-force provision. It would accomplish the objectives. You would need to establish some opt-in provisions in that clause, to develop the standard for a capacity to be able to deal with these issues.

I think you have to deal with it in this legislation, not strip it out, because in my experience, since 1988, it takes on average 10 years to move an aboriginal issue through the parliamentary process. Go back through every piece of legislation that's ever been done—it takes years. We've got an opportunity here to deal with this in a way that is an irritant to first nations. We haven't got it right today, maybe, but we have the ability to make the kinds of amendments being proposed. Look at the Canadian Bar Association's position in their conclusions and recommendations in their point 2:

If s. 7 is not removed from Bill C-428, that a transition or “coming into force” clause be added stating that s. 7 will not come into force until Parliament has introduced companion legislation to fill the gaps....

Let's get moving on it. Let's not just say, oh, we're going to get rid of this and we're not going to deal with this issue. Put the burden on yourselves to begin to deal with the issues.

[Dennis Bevington, NDP, Western Arctic, NT]

By the same token, as long as there's this coming into force, governments can sit on it as long as they want. Would you propose that there be a timeframe attached to the coming into force? This could sit on the books for years in this form.

[Harold Calla]

It could, but I have the greatest confidence in the royal opposition’s being able to raise the issue with government to encourage them to act.

[Some hon. members]

Oh, oh!

[Dennis Bevington, NDP, Western Arctic, NT]

They may be the loyal opposition soon, so—

[Some hon. members]

Oh, oh!