Mr. Speaker, I want to go back to the minister making her comments and observations with respect to the expropriation powers in the bill. She said:
I understand that specific concerns have been raised about whether these areas have been treated with sufficient clarity. From my point of view the bill does deal with expropriation appropriately.
Again, from the minister's point of view she said the expropriation issue has been dealt with properly. But from her own backbench, the member for Vancouver Quadra, the member from Essex Kent and members of the Senate have said clearly that it has not been dealt with. They have said very clearly that the bill is poorly drafted. How can we accept the minister's words? I do not think we can.
I am trying to paint a picture of a minister who seems to have a very strong inclination to defend this legislation in its present form rather than to seriously consider the critique that has been levelled against it, rather than consider the changes that would be appropriate and that have been suggested by the Reform Party and others. She said:
Having said that, it is important that we make our intentions clear, I would welcome your further attention to these aspects of the bill.
She goes on to identify the second major issue with respect to this bill, that being matrimonial property.
In terms of matrimonial property, I recognize that we have another important issue: the management of real property upon marital breakdown. This is a significant issue that we must address. There is a legislative gap regarding matrimonial real property rights upon the marital breakdown on reserve. In cases of marital breakdown the Indian Act does not provide guidance on the use, occupation and possession of the matrimonial home or on the division of the interests in land on reserve.
The minister herself identifies the problem under the Indian Act and says that there is no redress, there is no solution, there is no way of ensuring fairness and equity at the present time under the Indian Act. She goes on:
The courts have been asked for guidance. However, the Supreme Court of Canada replied in Derrickson v Derrickson that reserve lands are under federal jurisdiction and provincial laws respecting the division of matrimonial lands do not apply. Clearly, this is an issue that needs resolution.
This legislation is a significant step forward as it would enable the 14 signatory first nations to resolve the matter.
I would say to that, without the land codes and without the benefit of being able to look at them, we have no way of knowing whether this is a step forward, a step backward or a step sideways. We do know for sure that the minister has identified clearly what I have just been saying, that there are no private property rights for aboriginal women on reserve. That leads to the problem where in the event of a marriage breakdown, there is no ability to divide the matrimonial home or to assign the matrimonial home under the laws and jurisdiction of provincial guidelines which exist for all other Canadian women.
The minister went on to say:
The first nation members are required to vote on a community process for the development of rules and procedures for matrimonial property. This process must result in rules and procedures to be adopted within, at a maximum, 12 months from the date the land code takes effect. An arbitration process has been set up in the framework agreement to ensure that this delay be respected. The rules and procedures cannot discriminate on the basis of gender.
Again, the minister is saying that the land code is the way to address this issue. What we are saying and what the people who appeared before our committee to testify are saying is that they do not believe that is the case. They do not believe that the requirement to develop a land code is any guarantee that we will actually see property rights for aboriginal women, and families for that matter, introduced in any real and meaningful way with the enactment of Bill C-49.
She went on to say:
As hon. senators can appreciate, for those first nations who remain under the Indian Act, we have a continuing issue and problem. For those who will be part of Bill C-49, we are taking a bigger step.
The larger issue remains significant. The issue of matrimonial real property upon marital breakdown affects all first nations that remain administered under the Indian Act. We must look beyond the first nations land management act and determine what can be done to resolve the current vacuum in the Indian Act concerning the division of real matrimonial property.
She is absolutely right. We keep referring to 14 first nations bands that are going to be covered under this bill at the present time. That is quite true. It is incumbent upon every member of this House to realize that any band that decides it wants to be covered under this bill simply has to elect to do so by band council resolution and it will automatically come under the umbrella of Bill C-49, the first nations land management act.
It is not quite correct to say there are only 14 bands. Potentially every band in Canada will be under this first nations land management act in the future. It is very likely we will see more and more of these bands electing to be covered under the umbrella of this legislation in the very near future once the bill is enacted.
The minister went on to say:
Matrimonial property is a significant issue. It needs to be dealt with more thoroughly as do the issues facing aboriginal women generally.
A good statement.
We need to address the concerns that have been raised by witnesses whose testimony reached beyond Bill C-49 and we need to assess as well the work of the Special Joint Committee on Child Custody and Access and your special study on aboriginal governance which I am looking forward to receiving. I congratulate the committee on the work that you have done to date.
The minister is clearly acknowledging that this issue is a real and important issue and it is an issue which affects aboriginal women and needs to be addressed. If the minister recognizes this and says so in testifying before a Senate committee for all Canadians to see, then why does she bring in legislation which does not deliver? Why does she bring in legislation that does not provide the assurances that these women are looking for? Why does she not do that?
These are legitimate questions. We are not trying to be spoilers. We are not trying to frustrate the process. We are trying to ensure that the rights of these people are finally recognized which they have not been for 130 years. We are trying to make sure that it is done in a real way and in a way that will make them feel secure about their future.
The minister says:
In that regard, I should like to table a letter in both French and English that formally requests the assistance of this committee in that particular regard. I will not read it. However, I should like it to be considered because this is an area that has broad application and through which the work of the Senate would be useful.
The minister is asking the Senate to address the issue.
A third area that has been of interest to a number of people regards the consultation with municipalities. A few municipalities near some of the 14 first nations have raised concerns that they have not been consulted on the framework or on the development of land codes. There are those who say the provisions in the bill must be more specific and that the legislation must require that consultation will occur. I am not sure that one can actually legislate the quality of consultation. What is truly effective for first nations and municipalities is to build a consultative partnership based on mutual respect and individual autonomy. The signatory first nations and nearby communities have the option, if they so choose, to create their own consultative process. In fact, this is what has been happening. For the government's part we have been keeping municipalities informed of the process of creating a first nations land management regime and have left it to first nations and nearby municipalities to decide for themselves what further discussions would be useful between them.
I can tell the House with absolute certainty that what the minister said here is incorrect. We have met with municipalities on the lower mainland of British Columbia who say they are appalled that the federal government would attempt to enact this kind of legislation without consulting them. They have not been consulted.
Once they became aware of this bill, and they became aware of it largely through media reports that started to surface in late December of last year and January and February of this year, they became deeply concerned and they started contacting members of parliament, and members of the committee in particular, asking why they had not been consulted.
The minister is trying to lead us to believe in her testimony that all is well with the views of municipalities. I can say that is just not true.
Then the minister goes on to say that this bill and the framework agreement put land management powers back in the hands of first nations and remove the minister from the decision making process. Again, this is a step that we would support wholeheartedly. We do not think that it is appropriate that a minister in Ottawa, regardless of which minister or which political party might be in power, should be making day to day decisions about the use of land on reserves, or anywhere else in Canada for that matter, thousands of miles away from Ottawa.
This bill and the framework agreement pave the way for a better understanding and a closer relationship between first nations and neighbouring municipalities. They remove some of the previous constraints that impeded the building of partnerships between first nations and neighbouring communities and now various land and resource management initiatives will be able to proceed.
The minister said that the 14 first nations who signed the framework agreement are leaders in land administration. This initiative was brought forward at their request. They worked co-operatively and in partnership, not only with each other, but with the federal government, with the affected provinces and with third party stakeholders. Now they are waiting for parliament to pass this bill so they can get on with the building of their communities.
Again, we would take our hats off to these band leaders and say “Good on you for trying to get the decision making power wrested away from Ottawa and brought to your own communities”. Again, the flaw is that the federal government continues to see aboriginal people as collectivities rather than as individuals. When that is done it undermines the individual rights that those people would like to have. It certainly takes away the opportunity to address issues such as the disposition of the marital home, the ability to inherit property, the ability of people to feel like they have their own place which they can call theirs, that belongs to them, their family, to their children and their children.
After 130 years why do aboriginal people not feel that they have the security of owning their own home? Why does the federal government continue to turn a blind eye to the property rights of aboriginal people? This legislation makes no attempt to redress that. It sees aboriginal people as collectivities.
Many aboriginal people see themselves as collectivities as well from a cultural point of view, from a language point of view and so on. That is legitimate, but they are also individuals. I can tell the House from a lot of experience, and I know many other members of the House have a lot of experience, that if we go to virtually any reserve community in this land and talk to individuals, if there are 2,000 people living in that community we are going to get 2,000 points of view virtually on every issue, just like there are 301 points of view in the House of Commons on every issue that we debate.
Why does the government insist on seeing these people as homogeneous groups who all think and act the same way and who all want the same thing? Nothing could be further from the truth? I say that it is insulting to see these people in that light. I say that it is insulting not to see these people as individuals with their own lives and desires, dreams and aspirations. They are individuals, not collectivities. That is the failure of this bill. It sees people as collectivities and does nothing to address individual rights, property rights.
The minister further testified before the Senate committee, saying that this bill deals with something much broader than land management. It is about self-reliance. It is about economic opportunity and accountability to members. It speaks to the new relationship that we are building with aboriginal people, one based on the principles of mutual respect, recognition, responsibility and sharing.
Those are great words, but again she is saying self-reliance. Without private property ownership they will never have self-reliance. It cannot happen. The two are mutually dependent. We have to have both of them together or neither one.
That is one of the main barriers that aboriginal people have to self-reliance in Canada. There are no property rights. If they have no property rights, how can they raise money? How can they raise capital to start a business? If they do not have property rights, how can they pass their property along to their children when they pass along? If they do not have property rights, how can they have any sense of security about where they are going to live the rest of their lives and how they are going have personal security?
I am sincere when I say that I am absolutely shocked that the federal government and the minister of Indian affairs do not understand that. I would ask her how she would like it if the private property which she owns all of a sudden became communal property. She would be living in her house at the pleasure of the municipality. She would not have the ability to take a mortgage on her property or to pass it along to her children. How would the minister feel under those circumstances? How would any of us feel? That is important.
The minister goes on to say:
I would be pleased at this point to answer questions that you have with regard to Bill C-49.
Then Senator St. Germain states:
Thank you, Madam Minister, for appearing and for covering most of the issues which were controversial during our hearings.
I will not confuse the day but, being from the province of British Columbia, I would be remiss if I did not bring up an issue that has generated a lot of concern; that is the issue concerning leaseholders and one particular band in my province. It is not necessarily appropriate to discuss this here today because it is a different issue, but Bill C-49 is viewed as having a possible impact on the situation in some way, shape or form.
As a member who represents that region, I wish to alert you that we must find some type of resolution on behalf of our native people and on behalf of the leaseholders and on behalf of every person in British Columbia. Therefore, I will ask at a later date for your assistance in resolving this unacceptable situation.
The Senator of course is referring to the very unfortunate Musqueam situation.
He goes on to say:
In regard to Bill C-49 and the land code, I have a technical question. Do you have officials with you?
The minister states:
I have some officials with me.
Then the senator states:
In the event of a vote on the establishment of a land code, how would alleged voting irregularities or alleged denial of voting rights, perhaps by off-reserve natives, be resolved? The minister will be at arm's length from those 14 bands. What method or tribunal would be used to resolve that dispute?
The minister answers:
Your earlier comments, Senator St. Germain, are noted. I appreciate the significance to you of the issues raised in your province. I continue to hope for a satisfactory resolution to those issues.
In the process of ratification, certain steps involve a verifier who is jointly selected between the federal government and the First Nations. Indeed, once the process of verification has been approved and once I have been party to signing an individual agreement—and I must sign an individual agreement to bring a First Nation into the process—the ratification process on the First Nation occurs. The verifier continues to have the responsibility to examine the ratification process and to ensure that the appropriate electors participated. If there are challenges to that process, the verifier will analyze the disputes and allegations that may be brought forward and will make a determination as to whether the process of ratification has been followed acceptably. If it has not, then we do not have an agreement.
I want to give members the minister's comments against the backdrop of what happened with the ratification of the Nisga'a treaty because I think it is important that the House understand this.
When the Nisga'a treaty was presented to the Nisga'a people for ratification, and part of the ratification process was written right into the agreement itself, it was the Nisga'a people who were of voting age who were going to have the opportunity and the right to vote in a referendum to accept or not to accept the agreement.
This took place, I believe, in November of last year. The Nisga'a people live not far from where I live. They are in the riding which I represent. I was contacted by many of those people, who expressed real concern over the voting process because it was the Nisga'a Tribal Council that was the enumerator of the voters. It was the Nisga'a Tribal Council that decided whether or not people were on the voters' list. It was the Nisga'a Tribal Council that put the voters' list together, that put the polling stations together, that manned the polling stations and that oversaw the vote, which took place over the course of two days.
I ask members of the House how we would feel if we had an election process in a province or in Canada where the sitting federal government was the one that enumerated all the electors, was the one that set the rules for the vote, was the one that manned all the polling stations, was the one that scrutinized the results and counted the ballots. Would we accept it if the Prime Minister was the one setting up the process? That is the process that was followed.
The minister is basically saying that there will be a verifier. I want to tell members that in the case of the Nisga'a ratification the federal government had one observer to cover seven polls over a two-day period. There was one observer for all of the polls, not one observer for each poll, which included Vancouver, four stations in the Nass Valley, as well as Terrace and Prince Rupert.
I am not suggesting that the Nisga'a Tribal Council did anything underhanded; I am just saying that it was not a fair vote and a vote that people felt confident in. One party oversaw it which had a vested interest in the outcome of the vote. That is what will happen under Bill C-49.
The minister is saying that there will be a verifier. What does that mean? The government will have the same thing it had up in the Nass Valley when the Nisga'a ratified their agreement. It will have one person overseeing all of the polls, but it will essentially be the band council that will put the voters' list together, decide who can vote and who cannot, where the polling stations will be, what time they will open and close and who will staff them.
This is just unacceptable in a democracy. At great expense we send people from our parliament all over the world to oversee elections in other countries, such as South Africa and South America, to make sure that a fair process is followed and then we see this kind of process taking place in our own country, and our own government thinks it is fine. It does not see anything wrong with it. It feels that this is the right way to go about it.
I hear a lot of noise behind me—