Debates of June 10th, 1999

First Nations Land Management Act

[Mike Scott, Reform, Skeena, BC]

I am sorry, Mr. Speaker. You are absolutely right and I will try to refrain from doing that. It was a slip.

In opposing Bill C-49 the member from Essex Kent accused the minister of Indian affairs and her department of intentionally trying to avoid public consultation on land claims and self-government matters across the country. The evidence suggests he is right.

I have many articles from which I could read. I have another one from the Vancouver Sun of March 3 headlined “Liberal raps bill to boost native power: An Ontario MP says Bill C-49, which is sure to pass its final vote next week, is excessive”.

The article indicated:

Open dissent is appearing within Liberal ranks over the federal government's legislation to give 14 native Indian bands in Canada, including five in B.C., greater powers over their land, including the ability to expropriate.

Southern Ontario Liberal...who plans to vote against Bill C-49 next week, said the bill is excessive and he criticized the government for imposing closure to limit debate in the House of Commons this week.

He also accused the Indian affairs minister...and her department of intentionally trying to avoid public consultation on land claim and self-government matters across Canada.

According to the article the member from Essex Kent said:

Their position is to keep the dummies in the dark.

According to the article the hon. member from Essex Kent:

—was the only Liberal to join Reform MPs in voting against Bill C-49 during report stage Monday, and intends to rise in opposition in the House of Commons next week when the bill returns for third and final vote.

However, concern is growing among some B.C. Liberal MPs and senators who met Tuesday evening with the minister.

The member for Vancouver Quadra, according to the article:

—voted with the government Monday but said he is working behind the scenes to ensure there is a thorough Senate committee study, including public hearings and possible amendments.

The member for Vancouver Quadra said that he did not support the bill. The article continued:

Some concerns that have been felt by B.C. MPs on the fast track procedure are being resolved by what's emerging as an understanding that the Senate will study and hold public hearings and will possibly consider amendments and changes for the House.

“The details were to be worked out in a few days”.

The member for Vancouver Quadra said:

—the bill, along with the media coverage of the 7,000% rent increase imposed on non-natives living in Musqueam Park in Vancouver, was fuelling more public concern over broader and more crucial native issues such as the $490 million Nisga'a treaty, the first modern comprehensive land claim struck in B.C.

The member for Vancouver Quadra said that Bill C-49 was poorly drafted and supported concerns expressed by the member from Essex Kent and B.C. Liberal leader Gordon Campbell who said that the expropriation rights for Indian bands were excessive.

The article continued:

The bill permits bands to expropriate interest in their land, such as leases held by residents or businesses, if council deems it “necessary for community works or other first nation purposes”.

“Some critics say natives and non-natives could be removed from their land in order to build casinos and condominiums”, but the minister “insists expropriation will only take place to build hospitals, sewers and other services”.

According to the article the member for Vancouver Quadra and the member from Essex Kent also cited:

—the bill's lack of protection for native women who often lose their right to marital property after a divorce, and the omission of any mechanism requiring consultation with surrounding municipalities on development matters.

The member for Vancouver Quadra said that the public's concern is correctly focused on the bill. He said that the legislation, which had breezed through its second vote on Monday by a 170 to 35 margin, was sure to pass the third and final Commons vote, which was expected early the next week.

I have been laying the groundwork. I have been trying to apprise members in the House and anybody who might be watching that not only was the Reform Party, the official opposition, saying there were problems with the bill, but the independent member from the Toronto area, at least two Liberal members on the government side and Liberal senators were saying there were serious problems with the bill and they identified those problems.

The member for Vancouver Quadra identified those problems publicly and said that the bill was poorly drafted. He said that the public's concern was correctly focused. He said that the bill needed changing. He said that he would work behind the scenes to see that it was changed. He must have had some opposition from the minister of Indian affairs because she was publicly quoted in the same articles saying that she thought the bill was fine.

Against that backdrop, the bill was sent over to the Senate for consideration, deliberation and debate and apparently there was some kind of a deal cooked up in the backrooms between Liberal backbenchers and senators that this bill was to be amended by the Senate and sent back to the House.

When we found that out we were somewhat encouraged because we believed it meant that we were actually going to have the concerns addressed that were brought to us by mayors and city councillors from the Vancouver area and from aboriginal women living on reserve, particularly the Squamish reserve. We received a number of concerns expressed by these women.

We were starting to believe that those issues would be resolved. I think the House may be aware that there is a young lady from the Squamish reserve who actually had a piece published in the National Post . Her name is Wendy Lockhart Lundberg. I think that she is an absolutely courageous woman who has done a great deal to move this issue into public debate, and that is the issue of native women's rights or the lack of native women's right.

She published an article in the National Post . It is really important that the House understands how she feels and how many of her fellow band members feel, native women such as Maizy Baker. I hope these people are watching because I know this issue is very important to them. They have expressed their concerns over and over again to all members of the House, particularly members of the Standing Committee on Indian Affairs and Northern Development.

I believe that all members of parliament from British Columbia have received mail from these people and they have made their point very well.

Wendy Lockhart Lundberg, a member of the Squamish Band in the Vancouver area, in her article that was published in the National Post earlier this spring, said that native women feel threatened by the federal bill. She said that while media attention focuses on the formal treaty process, federal actions are attempting a legislative end run around treaties by offering bands powers over land management. Native women will bear the brunt of these legislative provisions and will be denied the protections that could be afforded through treaties.

She continued to say that a little publicized government bill, Bill C-49, the first nations land management act, was scheduled for third reading in parliament the next week and poised to become law. Bill C-49 would give legal effect to land management agreements which have already been signed by 14 bands. These included her band, the Squamish, as well as Vancouver's Musqueam Band and bands across the country and would be open to other bands in the future.

Bill C-49 grants participating bands almost unlimited powers over the ownership, management and expropriation of band lands. The implications of Bill C-49 for the rights and position of native women are large and the B.C. Native Women's Society, supported by three major native organizations, has lodged a court case against the federal government to require that the issue of native women's rights be properly addressed before enactment.

When the marriages of native women fail, as all too many do on account of poverty and related conditions, they and their children typically lose the family home. There ex-spouses typically get possession of the family home based on decisions of the band council. Often the women have nowhere to live on the reserve and many end up in the worst circumstances, in urban ghettos. Unlike all other Canadian women, native women on reserves do not have the protection of property division laws.

Bill C-49 contains two provisions which are particularly worrisome for native women. First, it states that rules and procedures regarding the use, occupation and possession of land upon the breakdown of a marriage will be determined by the land codes of each signatory band. Yet there is little assurance that these future provisions will be any less tilted against the interests of women and their children than the results of the current system.

Second, Bill C-49 offers band councils draconian powers of expropriation which must concern native women as well as other native people living on reserves and non-natives with leasehold interests. Specifically, a first nation may expropriate any interest in its first nation land that, in the opinion of its council, is necessary for community works or other first nation purposes.

The band need give at most 30 days notice to expropriate and it is obliged to pay fair compensation that can be disputed only under the rules set by the band itself.

Not only may these powers be used against native women, they may also be used against band members outside the governing elite. For example, the Squamish nation has valuable waterfront property in North Vancouver which is rumoured to be the subject of band council plans for commercial redevelopment. These plans could displace many band members living there to a reserve area up the coast, thus making expropriation powers very useful to the band council.

In addition, any party having a leasehold interest on reserve has reason to fear the strong expropriation powers for bands in Bill C-49. With the sword of quick expropriation hanging over their heads, current leaseholders will find few parties willing to buy their leasehold interests and their property values will plummet. A band can then expropriate their property by offering fair compensation at the depressed market values.

A band council's expropriation powers will be unlike those of a municipal or senior government. The band will be able to expropriate for any other first nation purpose, not limited to the need to build schools, highways and the like. Many bands see their lands as a major means for economic development so that leaseholders can expect their land to be expropriated. Whenever a band finds a more valuable use the band will fully control the zoning. With this ever present threat, how many non-natives will want to make the investments needed for development or leasehold arrangements with bands?

Wendy Lockhart Lundberg's mother lost her native and band status when she married a non-native many years ago. Her status was restored following the 1985 amendments to the Indian Act, but her father's property was never returned to her. The Squamish Band allows someone else to occupy the property and uses its diverse powers to block her mother's efforts to regain her family home. Under Bill C-49 her land could be permanently lost through expropriation.

The Squamish nation has sent a council member to Ottawa to support Bill C-49, while not informing the general band membership of the existence of the bill. The Squamish nation has intervened on behalf of all signatory bands on the side of the federal government and against the B.C. Native Women's Society on the Bill C-49 lawsuit.

Ms. Lundberg said that she believed her mother's rights and those of many other native women would be lost forever if Bill C-49 passed in its present state. Their chances of obtaining legally binding provisions that restore their human and property rights would be much better served through an openly debated treaty process.

A registered status native and member of the Squamish Band, Wendy Lockhart Lundberg, said that Bill C-49 was introduced into parliament by a female minister of Indian affairs and its passage would be enacted by Her Majesty in right of Canada. She said that she doubted whether either of those women share native women's concerns about their lands, homes and families.

It is beyond us to understand why the minister and the government have not bothered to listen to the pleas from these women who are very concerned about their lack of property rights which all other Canadian women enjoy in the event of marriage breakdown.

I have another example that I can share with the House and that is the example of Maizy Baker. She tells me that there are many, many more like her.

Maizy Baker is a member of the Squamish Band. She is an elder in the band and she has a property that she would like to be able to pass along to her children. We all do that as Canadians. This is a matter of—

[The Acting Speaker (Mr. McClelland)]

If the hon. member for Skeena would forgive me, I need to interrupt twice before 5 o'clock, once for the adjournment proceedings. This seemed like a good moment to interrupt because I need to make an announcement on behalf of the Speaker before time gets too far along.

This is for members who are watching the proceedings from their offices. The Speaker's reception, to which all members are invited, is currently going on in the Speaker's chambers.

Again, I apologize for interrupting the hon. member.

[Mike Scott, Reform, Skeena, BC]

Mr. Speaker, I appreciate that there is other business that needs to be done.

I want to focus for a minute on Maizy Baker because I think her story is important. It is important in the context of how we see ourselves as Canadians and how we see our fellow Canadians and their rights.

Maizy Baker is a status member of the Squamish nation who is living in the Vancouver area. She is an elder. She has children. She has property that she wants to pass on to her children. She has lived on that reserve all her life. That is what she knows as her home. It is her family home. It is where her children grew up.

Many of us have these same circumstances. We grow up in families and even in our middle years and later life we identify with the family home as the home where we grew up. It is our place. It is no different for Maizy. Maizy has found out that she is living in that house by permission of the band council. She does not own it. There is no heritability. There is no ability for her to pass that property along to her children and their children.

I would argue strongly that is contrary to Canadian values and everything that we believe in and stand for in this country. Where are Maizy Baker's rights? Where are her property rights? Where are the rights of her family? Will they find at some point in time when Maizy has gone, and hopefully it will be a long time before that happens, that the family home in which they grew up is arbitrarily assigned to another band member and no longer has any meaning or value for them as family members?

I would argue not. I would say that the biggest flaw we have in the reserve system is related directly to land and land management. Let us face it, land is a very, very important instrument in delivering individual rights to Canadians and to all people.

Maizy Baker does not have those rights. She does not have that ability. She cannot pass her property along to her children. The biggest flaw in the reserve system, and there are many, is that there are no property rights.

I am not suggesting that Bill C-49 or any other legislation that might be brought down in this House in the near future would provide exactly the same kind of fee simple property rights that all other Canadians enjoy, although that is what I would like to see; I am suggesting that the bill was an opportunity to address that issue. There could have been private property rights of some kind assigned under that legislation. There could have been protection of some kind because without some kind of property right it is impossible for the whole issue of division of the marital home to be addressed in any meaningful way. Without a private property right, we are left with always is an arbitrary decision by somebody else, most often the band chief and council, as to who is going to end up with possession of that home once the marriage dissolves.

These issues were raised by Maizy Baker and Wendy Lockhart Lundberg with the House standing committee on aboriginal affairs. They were also raised in the Senate committee hearings that took place a month to five weeks ago. These ladies, and many others, travelled great distances, all the way from British Columbia in the case of Wendy and Maizy, to tell their story and to put their concerns forward with the senators who were studying this bill and who were supposed to be working behind the scenes with Liberal MPs to make amendments that would provide the kind of protection and address the kinds of concerns that were being raised.

The groups made very forceful presentations. I have copies of the minutes of the Senate committee meetings, I sat in on some of those meetings. After the Senate committee listened to all of those presentations and after hearing the expressions of frustration and deep concern these women were telling, at the end of the day the committee sent the bill back to the House with a couple of amendments.

While the amendments are a small step in improving some of the expropriation concerns expressed by myself and others in the House, they do not go anywhere near the issue of aboriginal women's rights. They do not go anywhere near the issue of the concerns of municipalities over mutual consultation when adjacent lands are to be developed. On the issue of compensation, the only real change is that the bands must adhere to the Expropriation Act, which we do agree is an improvement. However, it does not require the bands to expropriate only for the public works or public services that may be required by the band. It still says that it is anything that the band council may deem to be in the band's interest.

I have the May 14 minutes of the Senate committee on aboriginal people. When the minister appeared before the Senate committee on Bill C-49, she said:

Thank you, honourable senators, for allowing me to be here to speak about an extremely important piece of legislation. I have been following your work and I recognize the attention and diligence that you have brought to Bill C-49.

I would start by positioning the bill and its importance from my point of view. As honourable senators are aware, the bill ratifies and brings into effect a framework agreement that was signed on February 12, 1996, by the 14 First Nations and the former Minister of Indian Affairs and Northern Development. Together with the signatory First Nations, Bill C-49 is a product of over 10 years of work that sought to find a meaningful way of restoring land management jurisdiction to the signatory First Nations.

I would suggest that if this is the best they can do after 10 years I am absolutely nonplussed. I cannot understand how anybody can say that this is a good bill. After 10 years, I would have expected something much more refined, something that would have addressed the issues and the concerns that have been expressed.

The minister went on to say:

The framework agreement and this legislation provide the signatory First Nations a legitimate, organized and controlled means of taking back the authority to manage their lands and resources at the community level and pass laws regarding how their land is developed, conserved, protected, used and administered.

We can already see the major difference between the Squamish Reserve, for example, or any reserve that might be covered under this bill, and any non-aboriginal community.

I live in a non-aboriginal community. Some members of the House live in communities, but I think most members probably live in communities, municipalities, cities or whatever. The municipality I live in collects property taxes from me and has some say in what I can and cannot do with my property. I believe that is based on consideration for my neighbours who may not want me to put up a barn in my front yard. However, it certainly cannot tell me where I can live, where I cannot live, who can live in my house and so on, because I own my property not the community. The municipality does not own that property.

[An hon. member]

You can raise money on your property, too.

[Mike Scott, Reform, Skeena, BC]

Yes, I can pledge my property for security if I want to raise money for a mortgage, to start a business and for a whole variety of uses.

What the legislation before us does is it transfers the administration of lands which, incidentally, are lands that are legally held in the title of the crown of Canada. This is also a big flaw and a big mistake. Why should the land title for Indian reserves be held by the crown? That is totally inappropriate, but that is how they are held. What the crown is simply saying is that it is not going to administer those lands any more, that it is going to turn them over to the local chief and council.

We all know that in a democracy that expresses itself to be concerned about the individual rights of people and tries to give individuals as much freedom and opportunity as possible, we recognize that fundamental to that is, as I said earlier, creating a private property right. This does not do that. The bill just simply transfers the administration of these lands from one government jurisdiction to another, from one body of government to another and from one bureaucracy to another.

The Reform Party is on record as supporting the notion that decisions made with respect to most aspects of community life are better made at the community level than they are in Ottawa or in the legislatures in the various provinces. We believe that the more we devolve the decision making the more likely it is that better decisions will be made. It is very likely that as a result of this legislation there will be better decisions made with respect to the business of the band and the business of land development, but, from an individual point of view, I would argue that it is more likely that individual rights will be prejudiced as a result of this legislation rather than enhanced.

I will now continue to quote the minister. She said:

This means that First Nations can undertake projects without having to turn to me for their approval.

We would agree that is a good thing. She continues to say:

They will have the flexibility to move quickly when economic opportunities arrive or when partners approach them. In that way, they can get on with the task of creating jobs and encouraging economic growth in their communities.

I should also like to welcome my parliamentary secretary. We spoke about the importance of (him) being with us today, as well. I am glad he is able to join me.

The notions and philosophy in Bill C-49 are in keeping with our government's efforts to increase self-sufficiency in First Nations communities. The bill is a major component of the goals that we outlined in “Gathering Strength—Canada's Aboriginal Action Plan”, which was the federal government's response to the Royal Commission on Aboriginal Peoples.

Members will recall that the government tabled a response to RCAP of January of last year. I remember that it was during the ice storm because I came back here for the minister's announcement and almost had to stay here for a week before I could get a plane to leave again.

The minister, in referring to that, was saying that these legislative initiatives were a response to the RCAP report. I would remind the House that there were many people present at that announcement of the minister, including Mr. Daniels who represents off-reserve natives, and Marilyn Buffalo who represents Native Women's Association of Canada. They were not particularly enamoured with the minister's announcement and made presentations very much in opposition to what Bill C-49 is all about.

The minister goes on to say:

In previous opportunities that I have had to meet with the Senate, we have had a lively and informed discussion on how appropriate it is that we move to a new and modern relationship with First Nations in Canada.

I will now turn to the issue of the land codes. Let us remember that the bill and the framework agreement provide for the creation of land codes that will set out the specifics of the new land management regime for each First Nation. Community members, not chiefs and council, will approve these land codes. A land code will be the basic law that will govern lands and resources, after the land provisions of the Indian Act are withdrawn from the community. The land code will include the rules and procedures that will apply to the use and occupancy of First Nations land, the sharing of revenues, accountability to members, the enactment of laws, conflict of interest, and the establishment of alternative dispute-resolution mechanisms. The land codes are to be ratified by on- and off-reserve adult members in each community. First Nations will establish a specific process for ratification within the parameters of the framework agreement.

I want members to remember that what the minister is essentially saying is that the band members themselves are going to be the ones to adopt these land codes and they will be the ones who determine how land is to be managed on the reserve after Bill C-49 is enacted.

The aboriginal women who testified in front of the standing committee on aboriginal affairs and the senate standing committee had some very pointed things to say about that very issue. They are deeply concerned that this will not be the case. I want members to recall that. I will come back to it through the testimony of the aboriginal women who came to Ottawa and gave us their views.

The minister goes on to say:

I would note that this bill is really a win-win opportunity for all parties.

We only wish it were so. She goes on to say:

The First Nations win because they can include their land and resources in decisions that shape their future. The First Nations and their neighbouring communities also win because increased economic development on First Nations land will mean a healthier economy for the region. They will be able to deal directly with the First Nation on business matters instead of having to go through my department.

Again, we think that is a good thing. We are not opposed to that. As a matter of fact, the Reform Party worked very hard trying to negotiate amendments to the bill late last fall that would have seen us supporting Bill C-49, except we could not get the government's agreement to support those amendments.

Now, at this late stage, we find ourselves in this unfortunate situation of not being able to support Bill C-49, and we do it on behalf of these people who have approached us. It is not our issue anywhere near as much as it is theirs. They are the ones who have asked to do this.

The minister goes on to say:

I should like to turn now to three particular issues that have been the concern of this committee and others, not the least of which is the issue expropriation.

The issue of expropriation deals with the First Nation expropriation powers. Members of the committee have raised the issue of whether First Nation expropriation powers here differ from those provided to other entities. At the outset, I would remind you that expropriation powers already exist under the Indian Act.

They do, but those expropriation powers are currently in the hands of the federal government and not in the hands of the band. The federal government is currently bound to the Expropriation Act.

She goes on to say:

On request of First Nations, I can exercise expropriation powers for the general welfare of First Nations under section 18(2) of the act.

With this bill, we are seeking to replace the powers under the Indian Act and to ensure that the signatory First Nations have the tools they need to manage their land. The power to expropriate of the signatory First Nations is similar to the expropriation power afforded to federal and provincial governments and the public and private organizations such as municipalities, school boards, universities and hospitals.

It is important to recognize that this bill does not allow for arbitrary expropriation.

All of the people we heard from, including band members, are saying exactly the contrary. If members read the wording of the bill, it is easy to see that the minister is incorrect. I want to repeat this. She said that it is important to recognize that this bill does not allow for arbitrary expropriation. It says in the bill that the band can expropriate for any purpose it deems to be in the band's interest.

If the band council has a meeting one night and decides it is in the band's interest to expropriate a piece of property to build a community hall or to build a sewer and water project and so on, that is fair ball. What happens if it decides it is in the band's interest to expropriate and take a number of band members or non-native leaseholders out of their homes because there would be a higher return on that property if there were multi-family residential apartments for rent? That is the kind of concern people have been expressing.

The minister is quite wrong when she makes that statement. She knows she is wrong. It is very clear. Words mean something. Words are not put into agreements because they have no meaning. I am not a lawyer but I do know from long and sometimes painful experience that we have to take agreements at face value. We cannot read into them things that are not there and we cannot read out of them things that are there.

It says very clearly that the band can expropriate for any purpose it deems to be in the band's interest. Any purpose. It does not say it has to be a water project or a sewer project. It does not say it has to be a road or a hydro project or anything like that. Any purpose. By the way, no municipality or province can expropriate under those kinds of conditions. Canadians would never stand for it.

Expropriations do happen from time to time in Canada but they happen when there is clearly a public good at stake and most of the time there is fair compensation. Too many times government drags its feet and does not want to pay fair compensation, but for the most part there is reasonable compensation paid as a result of an expropriation that may take place.

In this instance for the appeal process, if they do not like what the band offers for that expropriation, it is for the band itself. That is clearly unfair. We are not going to suggest that bands are going to be unfair, but it is part of any reasonable process that a disengaged, unbiased third party would arbitrate a dispute if there was a dispute over what fair compensation should be for an expropriated parcel. Every other Canadian would want to be entitled to that and every other Canadian is entitled to that. That is the reason we have arbitration processes. It is the reason we have our courts. Courts are disengaged, unbiased parties who are supposed to arbitrate a decision when two parties are in dispute.

When two parties are in dispute I do not think many people would find it very acceptable that one party would go to the other for a resolution of that dispute. Mr. Speaker, if you and I are in dispute over an issue of monetary compensation, I hardly think it would be fair that I would have to go to you to have that dispute resolved, that you would be the decision maker. That is the way this legislation is written. I do not think that is acceptable at all. I do not think that is the Canadian way of doing things. I do not understand why the government is not willing to make changes.

I apologize if I am taking time, but I want to clearly articulate the serious flaws with this bill. I want to say it is not appropriate for a minister of the crown to say that she has a fiduciary obligation to aboriginal people, which she does and we accept that, and then to be the arbiter herself of these very serious questions. We need to have an opinion from justice.

We need to have an opinion from some other area that can give us an unbiased, fair interpretation of what this all means without the burden of the fiduciary obligation of the minister attached to it. She has her job, she should do her job. But we should also have another party. I would suggest it should be the Minister of Justice, the justice department that provides us with the kind of direction that we need.

[The Acting Speaker (Mr. McClelland)]

Order. This may well be a good opportunity for the member to catch his breath, as I have to read the adjournment motion.

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Winnipeg North Centre, Health; the hon. member for Markham, Government Contracts; the hon. member for Skeena, Aboriginal Affairs; the hon. member for Dewdney—Alouette, Immigration; and the hon. member for Davenport, Kyoto.

The hon. member for Skeena has unlimited time on debate.

[Mike Scott, Reform, Skeena, BC]

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—

[An hon. member]

The Bloc is supportive of what you are saying.

[Mike Scott, Reform, Skeena, BC]

I am glad the Bloc is supportive. We always appreciate support when we get it.

[An hon. member]

You are going to miss your flight, Mike.

[Mike Scott, Reform, Skeena, BC]

I am not concerned about my flight at the present time.

The senator goes on to ask:

Are you comfortable enough with those amendments that we as a committee can proceed to final ratification on them?

The minister states:

As I said in my opening comments, I fundamentally believe this is a very good bill on all counts. In receiving testimony from the 14 First Nations, I know you feel that way as well.

She completely ignored the testimony of the Aboriginal Women's Association of British Columbia, Maizy Baker, Wendy Lockhart Lundberg and others. She just wanted to focus on the testimony of chiefs and councils that appeared before the Senate committee.

The minister continues:

Having said that, there may be opportunities for us to clarify the particular language used on expropriation.

The minister was telling the senators that the only area where she was prepared to entertain any amendments was expropriation. There is nothing on the issue of aboriginal women's rights. There is nothing on the issue of property rights. There is nothing on the issue of consultation with neighbouring municipalities. The only area where the minister was prepared to entertain any amendments at all was on the expropriation powers.

The Senate dominated by Liberal senators is nothing but a puppet for the government. Lo and behold we get amendments back from the Senate. Do we have anything on aboriginal women's rights? No. Do we have anything on consultation? No. We have a couple of small baby steps on expropriation.

As a parliamentarian I am so frustrated with this process and the fact that the Senate, which had an opportunity to address these issues, would not do it. It is is essentially controlled by the Prime Minister's Office as is everything else around here.

In reality, the Prime Minister's Office and cabinet members make all decisions. The House of Commons is a necessary inconvenience for them and they treat it with contempt. They know they have to come in here. They come in here as a matter of ceremony more than anything else. The way the Senate treated the bill is a very clear indication of that.

If it were truly an effective elected Senate, a Senate that had credibility and that was not a puppet of the PMO, I believe there would have been amendments this party would have supported. The bill would have been amended properly. It would have passed through the House with all party consent and everybody would have been happy.

We did not get that because the other place has no credibility. It is only doing the handiwork of the PMO. It only dances to its tune. The Senate committee continued:

Senator Chalifoux: Thank you, Minister...for appearing before us. It is important to have many things clarified.

You state you are willing to develop a process to address the issues of women, especially women living on reserve, and including the consideration of the matrimonial property laws, et cetera.

You have spoken to representatives of the NWAC and I understand that you want them to participate. Do you have any funding to assist that organization to participate? That is a big issue. That organization does not have that kind of money. They really need funds to participate properly. Have you addressed that issue?

The minister said:

Senator, I thank you for your work in this particular regard. I recognize that you have taken a keen interest and a keen responsibility.

Matrimonial property is a huge issue for us.

Those were warm words. Is it a huge issue? There are no changes to the bill. She continued:

I was approached first and foremost by the native women's association in B.C. This involves not only the national association; the British Columbia native women's association really addressed this in the first instance. Clearly something has to be done in the context of Bill C-49 to begin to deal with this problem. The resolution in Bill C-49 is appropriate in my opinion. It means that, community by community, women will be participating in the creation of codes—

We see the minister is ducking the issue. She does not want changes to the bill but she says that she will rely on the codes. No one has written a code as yet. She will rely on the codes, which no one can read, to deliver on these issues.

The people we are hearing from, Wendy Lockhart Lundberg, Maizy Baker, the Aboriginal Women's Association of Canada and the Aboriginal Women's Association of British Columbia are saying there is no way they want that in the legislation. They want a guarantee. They are asking us why they cannot have the same rights as all other Canadian women. Why do they have to be dependent on the good graces of a band council to come up with a land code? Especially after I described the ratification process on the Nisga' treaty, we can see how the results of referendums and ratifications can be skewed.

Why do they have to rely on that process? Why could the minister and the government not put that protection in the legislation for them and make sure it was there now? It is a flawed process. I suggest the reason it is not there is that the minister and her government care more about the collectivities than they do about individuals. They put collective rights ahead of individual rights when it comes to aboriginal people.

I submit that has been the bane of aboriginal people from the beginning of the country. It is time we ended that. It is time we recognized that these are real people. They are individuals and they deserve the same individual rights as all the rest of us.

She went on to say:

NWAC can play a broad role. I would note that their funding comes primarily not from my department but from Canadian Heritage.

Imagine that. Its funding comes from Heritage Canada. Referring to the Minister of Canadian Heritage she said:

I will take the representations and relay them to my colleague...Having said that, we do provide money to NWAC for particular project work, not the least of which was included last year and again this week—the symposia on the important issue of Bill C-31. We have provided funds to NWAC so that they can begin to have broad discussions. They have invited many chiefs and individual members and other experts on this issue. We are supporting them.

We can see what she was saying there. The senator asked if she would provide funding for these women so that they could put together a reasonable package or proposal that would address important issues such as the issue of the matrimonial home in the event of a marriage breakdown. The minister in effect said that it was not her responsibility but the responsibility of the Minister of Canadian Heritage and that she would have a word with her some time. That is exactly what the minister was saying. Where is the concern on the part of the minister when that is how she treats this very important question?

Then Senator Austin intervened:

Minister, you, of course, are welcomed by all members of this committee and we thank you for your work in this important area.

He must be a Liberal senator. He continued:

I wish to begin by echoing comments of Senator St. Germain with respect to the high level of interest that this legislation has provoked in British Columbia.

We can see from the discussions that took place the high level of concern expressed about British Columbia. It is not as if this is a meaningless bill. It has been well covered in the press in British Columbia and it has been such a subject of debate because people are very concerned about it.

The senator went on to say:

I know you are quite familiar with what is happening in British Columbia. The reason for the high level of interest is the perceived link between the issue of the Musqueam leaseholders under this bill and the Nisga'a treaty, and the link is not always rational. People tend to link things because they appear in a certain order, whether that is realistic or not.

This committee, in hearing its evidence, has heard a great deal of concern with respect to two nuances of clause 28 of the bill, relating to expropriation. As there is a good deal of concern and because I think—and believe my colleagues agree—that it would lessen the tensions that exist in the political system of at least my province, I have developed, with the stakeholders, some language that I am just having put before the members of the committee here. The language has now been seen by both sides and, I believe, by your officials. I should just like you to consider that language, be aware of it, and be aware that I will be proposing this amendment when they come to the clause-by-clause consideration.

We can see that obviously the senator is a Liberal senator. He quite rightly identified that the concern with Bill C-49 had been linked to the Musqueam situation and the Nisga'a treaty. He then pooh-poohed this by saying that people should not be concerned because they are completely unrelated.

I suggest they are related in some fundamental ways. As I have already identified, there was absolutely no consultation on the part of the minister. They negotiate agreements in back rooms that affect large numbers of people without even giving people notice that they are doing it. That is exactly what happened with the Nisga'a treaty. That is exactly what happened with Bill C-49. That is exactly what happened with the Musqueam leaseholders.

In 1965 the Musqueam leaseholders signed a lease with the federal Government of Canada. In 1980 the minister of the day, John Munro, assigned the government's authority in that lease over to the band without notification, without consultation and without an as you may please to the leaseholders who lived on that land. Until 1993 they went under the assumption they had a lease with the federal Government of Canada. They found out 13 years after the fact that was not the case, that the lease interest had been assigned over to the band.

This is not to take anything away from the Musqueam Band, but when a Canadian citizen or taxpayer signs a lease with the Government of Canada, it is expected that the federal government will honour the lease and treat the leaseholder fairly. Is it treating someone fairly when a deal is made and the leaseholder is not notified that the interest in the lease has been assigned to somebody else? That is the common link between government aboriginal policies in a whole range of areas.

The member from Essex Kent has it right. The minister and her department's policy is to keep the dummies in the dark, in their view we being the dummies. Anybody who is not in the PMO or in the cabinet room, as far as they are concerned, do not need to know. When legislation such as this comes into the House, we are just a thorn in their side, somebody that they have to deal with.

As far as they are concerned, they think the Parliament of Canada is irrelevant. They think that all government operations should be run out of the PMO and the cabinet room. At some point I think they would like to see the House of Commons completely eliminated as a relevant institution altogether.

The senator went on to say:

The amendment essentially deals with subclause 28(1)...There was a good deal of concern that the disjunctive “or” with “other first nation purposes” was a broader power than that which was reserved by the federal government for itself, in terms of the items which could be made subject to expropriation. The amendment would add the word “community”.

Is that not something? Now we have a real safeguard in the legislation. The Liberals are patting themselves on the back and saying “weren't we great?” They amended the expropriation powers to recognize or reflect the concerns that were expressed. How did they do it? They included community purposes. Other than first nation purposes, they included first nation community purposes.

[An hon. member]

A meaningless amendment.

[Mike Scott, Reform, Skeena, BC]

Exactly, a meaningless amendment.

The senator went on:

A number of intervenors who were concerned seemed to be comfortable that adding that word would bring the wording within the normal concept of expropriation.

The people to whom we have talked, the people who made interventions to the Senate and to our committee, in no way believe that is satisfactory or addresses the problem. He went on to say:

The second amendment is to subclause 28(5). At lines 42 and 43, the amendment would remove the phrase “shall take into account the rules set out in the Expropriation Act” and would replace it with “shall apply the rules set out in the Expropriation Act”.

We would agree that this amendment is strengthening the bill. It is one small step. For my hon. colleagues who may not understand what this means because they are not familiar with it—

[An hon. member]

You mean the Liberals do not understand it.

[Mike Scott, Reform, Skeena, BC]

Exactly. This is for the benefits of the Liberals. I know they are interested. I can see them over there paying rapt attention to every word that comes out of my mouth.

This means that the first nation can expropriate for any community purpose. If it wants to build a casino or put up a multi-residential structure, it can expropriate people's residences in the process because that could be deemed a community purpose. This requires the first nation to abide by the rules set out in the Expropriation Act.

On the one hand they have increased protection. On the other hand they have not given any sense of increased protection at all. This effectively means that the expropriation powers of the 14 bands covered under the agreement are much stronger and much broader than expropriation powers anywhere else in Canada.

The amendments that have been moved are not nearly sufficient to level the playing field and make the expropriation powers similar to other communities, other provinces or even the federal government.

The minister responds and says:

There are a number of things I should like to say. First, there has been a very direct focus on ensuring that third-party interests are considered and managed appropriately as a result of this bill. As honourable senators are aware, any kind of third-party interest that exists now will continue to exist until its expiration, even after the passage of this bill.

The other thing to note is that the 14 First Nations have gone to considerable lengths to engage and consult third parties and must, with final agreement of their individual agreements, ensure that all third parties are aware of what is happening and what the circumstances of the land codes as developed will be. The focus on third parties is a real one.

We want to ensure that we pass good legislation.

Frankly, I find that a bit of a joke. I will continue with the quote.

That is the priority for all of us, including First Nations who will be among the beneficiaries. I believe it is a win-win-win situation for all parties.

I have followed the debate and discussions you had around new language that may add clarity while not changing the intent of the bill. I want to reiterate that the intention of the bill as presented is consistent with what now exists in the Indian Act and with what will be available, and what is available, to other expropriating bodies. However, if we can get a clearer product and, from the point of view of the table, a better piece of legislation by clarifying the language, we must consider it.

With regard to that issue, I just wish to say again that it is vitally important that we get Bill C-49 completed and enacted into law. We have communities within the 14 First Nations who are stymied now, waiting for jobs and economic development. I am thinking, for example, of the Scugog First Nation, who have other lease arrangements that are in limbo because we are waiting for this legislation.

The minister is going to the emotional appeal rather than addressing herself to the technicalities of this bill. She, as the minister, should understand those technicalities. She should understand the importance and significance of them and she should be able to speak to them. She was not prepared. She danced all around the issue.

I have heard this minister speak many times. She is very good at emotional appeal. She is very good at talking in generalities, but she is not very good at talking about specifics. I believe the reason she is not is that she fundamentally does not understand this language herself. I believe that she is acting at the behest of her own department and that her department is the one that formulates the legislation. I also believe it is the department that pushes the agenda and that the minister is there as a mouthpiece for the department to do its bidding.

This minister has shown over and over again, whether we are debating Bill C-49, the Nisga'a treaty or other issues, that she does not have a fundamental understanding of what she is talking about.

Here is another example of the minister not wanting to speak to the specifics of this bill. She continues:

Getting this done must be a priority. I recognize that there are issues. In that regard, making these clarifications may allow us to move forward with a good product. I am hopeful that the table will encourage swift passage through the Senate and state loudly and clearly that they understand and appreciate how significantly important it is for the 14 First Nations to get on with it and for us to prove that, in fact, we can change the relationship and recognize, with courtesy, respect and dignity, the capacity and capability of First Nations to govern themselves.

There we have a clear, emotional appeal for courtesy, respect and dignity. She is calling on us to have that, which we all have and want to have, but that is not the point. It is not a matter of discourtesy or disrespect or a lack of appreciation for these 14 bands that leads us to this point. It is a concern for the technicalities in this bill. The minister does not want to address the issue so she dances all around it.

Senator Austin says:

We should like your assurance that the bill will be dealt with expeditiously in the House of Commons when sent there.

The minister says:

To the extent that I have any kind of influence, believe me, it will be made clear that this bill is a priority for me. I would ask the senators, in their report and at third reading, to clarify that it is an important undertaking for them as well.

Senator Austin said:

Mr. Chairman, the minister tabled a letter. With the agreement of colleagues, The letter should be appended to the report as well as to the proceedings.

Senator Tkachuk said, “We have not seen the letter”. The chairman said, “Well, it is being copied now”. Senator Austin said, “We will need to come back to that”. Senator Ghitter said “Minister, I congratulate you on this legislation”. Who is Mr. Ghitter? Would Mr. Ghitter be a Liberal Senator?

[An hon. member]

He is a Tory hack, that is what he is.

[Mike Scott, Reform, Skeena, BC]

Oh, he is a Tory? Apparently the Tories like this legislation as well.

Here is what Senator Ghitter had to say:

I am also very respectful of the comments you have made with respect to Senator Austin's comments and the need for more clarity on expropriation.

We support the amendments that Senator Austin has proposed. We also feel that there is a lack of clarity within the expropriation provisions.

It appears that Senator Ghitter is playing the minister's tune as well. He is not prepared to take her on, on the aboriginal women's issue. He is dancing to her tune. He is not prepared to take her on, on the issue of consultation. He is having a very nice conversation with the minister saying that they really appreciated her being there, that they really liked her words and that they agreed with the need for some clarity in the legislation. He was not prepared to deal with the hard issues. We can see that this very mutual adoration society, I suppose, continues ad nauseam through this entire process.

For the benefit of my colleagues, because I do not want to put them through much more of this kind of painful experience, I will go on to talk a little bit more about the presentations that were actually made by the presenters as opposed to the senators. I think members might hear a slightly different tone and a slightly different set of concerns. I can assure members that it was not a mutual admiration society when these people were presenting.

I will start with Mrs. Marilyn Buffalo, who is president of the Native Women's Association of Canada. She attended an evening session of the Senate standing committee on April 27 and presented the position of her association very clearly. She said:

I wish to thank you for providing the native women of Canada with the opportunity to give you a presentation here this evening. As a non-profit organization incorporated in 1974—25 years ago—the Native Women's Association of Canada is an aggregate of native women's organizations and is an association that is formed like a grandmother's sacred lodge. In this grandmother's lodge, we, as aunties, mothers, sisters, brothers, relatives, collectively recognize, respect, promote, defend and enhance our native ancestral laws, spiritual beliefs, language and tradition given to us by our creator.

The Native Women's Association of Canada is founded on the collective goal of enhancing, promoting and fostering the social, economic, cultural and political well-being of First Nations and Metis women with First Nations and Canadian societies.

The principles or objectives of our organization, as stated in our constitution, are as follows: to be the national voice for native women; to address issues in a manner that reflects the changing needs of native women in Canada; to assist and promote common goals towards self-determination and self-sufficiency for native peoples in our roles as mothers and leaders; to promote equal opportunities for native women in programs and activities; to serve as a resource among our constituency in the native communities; to cultivate and teach the characteristics that are the unique aspects of our cultural and historic traditions; to assist native women's organizations, as well as community initiatives, in the development of their local projects; to enhance and advance issues and concerns of native women; and to link with other native organizations with common goals.

The Native Women's Association of Canada is not opposed to Bill C-49. We are well aware of the time, diligence and hard work that the signatory chiefs, their supporting staff and their lawyers have put into the realization of this legislation and we have great appreciation and respect for this fact.

This is the same thing as the Reform Party of Canada has said. We are not opposed to the legislation. We recognize the amount of work that has gone on here. We recognize the good aspects in this bill.

She then goes on to say:

This bill will give the signatory band the authority to manage its own reserve lands and resources without having to obtain approval from the Minister of the Department of Indian Affairs and Northern Development. We will celebrate this level of autonomy if the membership of the First Nations concerned enjoys and provides their informed consent.

Under the Indian Act, there are no provisions offering protection of matrimonial property for native women in cases of divorce from Indian men. Native women, unlike other Canadian women, cannot obtain orders for possession or for partition and sale of reserve land under provincial legislation, according to the Supreme Court of Canada case Derrickson v. Derrickson.

According to the B.C. Native Women's Society, typically, a native woman lives on her husband's reserve. This is likely due to the fact that previously the woman was legally bound to live on her husband's reserve. If the marriage ends, the woman and her children have no place to live because the husband usually keeps his house.

This was Marilyn Buffalo, president of Native Women's Association of Canada, who was stating this. It was not some Reform MP. Why does the woman not understand this? Often the woman cannot return to her old reserve unless she is divorced and she does not usually get support from her husband's reserve. This creates a desperate situation for the woman and her children.

Ms. Buffalo continues to say:

Although the federal government has been aware of the deficiencies in the Indian Act, it has failed to provide a remedy. Considering the serious implications for native women, and the failure of the federal government to take action on their behalf, the B.C. Native Women's Association launched a court case against Canada. In that action, the B.C. Native Women's Association seeks two declarations: first, that the federal government has a constitutional responsibility under section 15 of the Constitution Act to correct the inequality that exists in the Indian Act regarding matrimonial property; and, second, that the federal government cannot pass its fiduciary responsibility to correct the inequality deficiency on to the First Nations.

In other words, they are saying that the federal government has the responsibility. They cannot delegate that. That is what we are saying of the Nisga'a, they cannot delegate. These are constitutional obligations that belong to the federal government. They cannot be delegated.

Ms. Buffalo goes on to say:

The federal government answered the action by applying to the court to strike out those parts of the B.C. Native Women's Association statement of claim that relate to the framework agreement. On December 15, 1998, the signatory First Nations obtained intervener status in the case. On December 22, 1998, the judge announced that he would reserve his decision on the federal government's application. As of this date, the judge has not returned his decision.

We can see what has happened. The Native Women's Association has launched a suit against the federal government and the 14 first nations that are signatory to Bill C-49, and are to be covered under it, have applied for intervener status. They are trying to stop these women from achieving their goals. It appears that the minister is taking the side of the leaders in these 14 bands rather than looking at this in a fair and unbiased manner.

She continues to say:

The Native Women's Association of Canada certainly cannot blame the signatory chiefs for the fact that the Indian Act ignores the human equality and property rights of native women. It is the federal government that must answer for this particular breach of its fiduciary responsibility. It is the Native Women of Canada's responsibility to bring forward the concerns of native women regarding this bill. That is why we are here.

NWAC, as it is sometimes referred to, has already expressed very strenuously its great concern about this legislation to the Minister of Indian Affairs and Northern Development, to the Standing Senate Committee on Aboriginal Peoples, and to the chiefs who support this bill, including the national chief himself. There has been no meaningful response to our efforts. Despite NWAC's discussion with the departments of Justice and Indian Affairs, there has been no serious commitment by the federal government to act on this matter.

This was the presentation that was made in April of this year. No meaningful response to our efforts. On June 9 at the National Native Women's Association annual general assembly the minister of Indian affairs announced her commitment to act on the concerns expressed by native women in regard to their equality and matrimonial property rights in cases of divorce.

The minister announced that she would establish an independent fact finding process to examine native women's rights to matrimonial property when a marriage breaks down. It would appear that this was meant to be just a smokescreen. As the minister introduced Bill C-49 just two days later into the House of Commons she was well aware of the concerns that native women have with this legislation. Almost a year later there has been very little action taken by the Department of Indian Affairs and Northern Development regarding the fact finding process.

It is our great hope that this bill will not become law before the serious and obvious gaps are filled. A provision was added to Bill C-49 that is supposed to address the issues that concern native women. This provision is clause 17 which states:

A first nation shall, in accordance with the framework agreement and following the community consultation process provided for in its land code, establish general rules and procedures in cases of breakdown of marriage, respecting the use, occupation and possession of first nation land and the division of interests in first nation land;

The first nation shall, within 12 months after its land code comes into force, incorporate the general rules and procedures into its land code or enact a first nation law containing the general rules and procedures.

The minister described the third provision which is:

The first nation or the minister may refer any dispute relating to the establishment of the general rules and procedures to an arbitrator in accordance with the framework agreement.

The minister went on to say “However, this provision does not adequately address the concerns of native women. In its current form the bill presents the following issues of concern. First, there is no indication of how cases of divorce and division of matrimonial property are to be dealt with within the 12 months following the community ratification of the land code. As each first nation is to predevelop its own land code, in the absence of any clear underlying principles, native women will not have any access to any consistent application of law concerning protection of their property rights as all other Canadian women have and all other native women have”.

The bill states that the first nation or the minister may refer any dispute to an arbitrator but native women who may be victims of inequitable practices have not been given standing in the dispute resolution processes. Moreover, who will pay for the native women's involvement in this process particularly when it is clear that native women are the poorest of the poor?

Under clause 12 of Bill C-49, signatory first nations can obtain community approval for the adoption of their land code and an individual agreement by any process agreed upon by the first nation and the minister with a minimum approval of 25% plus one eligible voter. This threshold is so low that it provides no assurance that the will of the community will be behind the new regime.

Imagine instituting a land code with 25% plus one of the eligible voters in support of it. Besides the lack of protection of native women's equality and property rights, another issued raised by Wendy Lockhart Lundberg causes great concern to native women. This has to do with the extraordinary expropriation powers given to the chief and council under clause 28 of the bill.

I want to remind the House this is a native woman on behalf of the Native Women's Association of Canada appearing before a Senate standing committee saying that the expropriation powers, which I talked about, are far too powerful and far too broad for the band council. They do not need that kind of expropriation power. She is also intimating that it is not only bad for non-native leaseholders, but it is also bad for native people and she goes on to explain why. I will cover that in just a minute.

Wendy Lockhart Lundberg uses the example of her own mother to illustrate her concern about these extensive powers of expropriation. Her mother's status was reinstated in 1985. However she has not been welcomed back to the Squamish nation although she is a member. As a status Indian she receives only health benefits.

Ms. Lockhart Lundberg's grandfather had a certificate of possession for two lots which he bequeathed to his daughter, Ms. Lockhart Lundberg's mother, in his will which was properly executed in accordance with the Indian Act. These lots are still in his name but are occupied by other people and have not been referred to Ms. Lockhart Lundberg's mother.

I ask is that fair? Is that what we in Canada want to see happen? The band could easily expropriate those lots with minimal compensation because compensation need only be fair, whatever that means. The first nation need only take into account the provisions of the Expropriation Act.

Ms. Lockhart Lundberg is quick to point out that the expropriation powers can be used against all band members. She was quoted in a House of Commons debate as saying that the Squamish first nation chief and council is rumoured to have plans to commercially develop valuable waterfront reserve lands in north Vancouver. These plans could mean the displacement of band members to reserve lands further up the coast.

Ms. Lockhart Lundberg is saying that the band could in fact expropriate band members who are sitting on valuable waterfront property where their homes are. They could be expropriated further up the coast to much less desirable land so that the band could build some kind of resort or multi-residential condominiums and so on for lease or for rent on the basis of where it thinks it will get the biggest revenue stream for band activities.

Another of Ms. Lockhart Lundberg's complaints is that the Squamish first nation's chief and council did not have a community mandate to sign the framework agreement. Clause 45 of the act stipulates that any band may sign on to the framework agreement on behalf of the band if it has been duly authorized to do so. Ms. Lockhart Lundberg believes this means duly authorized by the community following consultation and a referendum.

A likely response from the signatory chiefs would be that duly authorized means the authorization comes with being elected by the community and that they are not only authorized as elected chiefs to act on behalf of the band, but they are obligated to do so. It sounds a lot like the Prime Minister who says “I was elected with 38% of the popular vote two and a half years ago which means I can do virtually anything I want for the next five years”.

We would have to say that some of the band leaders who think this way have come by it honestly because they have had a lot of contact with prime ministers and governments who think precisely that way. That is one of the reasons we have a real problem with accountability. If there is a problem with accountability on reserves today, and there certainly is on many reserves, there is a real problem with accountability as we have seen in the last few weeks in the House of Commons when the Prime Minister is not willing to be accountable for his actions. These bands come by it honestly.

In an effort to create awareness in the community, Ms. Lockhart Lundberg has a core of about 10 women who have started a petition in opposition to Bill C-49. The petition and the signatures were sent to Ted White, Reform Party member of parliament for North Vancouver. As of April 6, some 262 signatures have been received.

[The Acting Speaker (Mr. McClelland)]

I need to admonish the hon. member for Skeena not to use the surnames of any members presently sitting.

[Mike Scott, Reform, Skeena, BC]

My deepest and humblest apologies, Mr. Speaker. I know that you admonished me once before. It was an error, I can assure you. I will try not to do it again.

The national Native Women's Association of Canada supports Ms. Lockhart Lundberg in her outstanding efforts. In keeping with the commitment of the Native Women's Association of Canada to advance issues and concerns of native women and in a spirit of co-operation and compromise, the association submits the following proposals to amend Bill C-49.

Here we have people who are testifying before the Senate committee, because the Senate has not been able to come up with any worthwhile proposals for amendments, making their own suggestions for amendments. They are hopeful the Senate is going to adopt them.

The first proposal is that into clause 6(3) there should be inserted a provision related to the division of matrimonial property which meets minimum recognized standards to serve until affected first nations implement a land code that includes division of matrimonial property on divorce provisions.

The second proposal concerns clause 12. It is that an approval rate of a minimum of 51% of eligible voters for land codes and individual agreements should be required.

The third proposal regards clause 17, incorporated by reference into clauses 21(2) and 22(2), to add a minimum standard to guarantee that native women's rights to matrimonial property in divorce are no less than the rights of other women and to ensure consistency, equality and natural justice.

What could be more fundamental in a democracy than equality, consistency and natural justice? What member in the House would dare stand up and speak against those principles? What member in this House would dare suggest that these women are not entitled to these?

[An hon. member]

Sit down and give me a chance.

[Mike Scott, Reform, Skeena, BC]

Why are the members who are making all the noise over there opposed to amending the bill to reflect those qualities, to give these women what they are looking for?

The fourth proposal regards clause 20, to add a provision specifying that the lawmaking powers would include the use, occupation and possession of the first nation land and a division of the interest in the first nation land in case of a marital breakdown.

The fifth proposal is to add a provision specifying what happens regarding matrimonial property when a first nation law passed pursuant to Bill C-49 is inconsistent with provincial laws of general application.

That is interesting. Mr. Speaker, I am sure you are very familiar with the Nisga'a treaty. You have probably read it several times by now. In the Nisga'a treaty when it comes to land management, this is the direction the federal government is going in.

In the event of an inconsistency or conflict between a Nisga'a law and any federal or provincial law, the Nisga'a law will prevail. That is the direction the minister and the government are going in, not in the direction the aboriginal women's association of Canada is asking for. I use the Nisga'a as an example because I think it does point to the underlying philosophy and attitude of the Government of Canada under the Liberal administration.

The seventh proposal recommends that clause 28 be amended to limit the powers of the expropriation provisions by adding a requirement for a community approval process calling for no less than a 51% approval rate of eligible voters. Add a provision requiring that an appeal process be available to first nation members. Add a requirement for all proposed expropriation orders and a subsequent community consultation process to be verified by an independent verifier jointly appointed by the first nation and the department of Indian affairs, and amend clause 28(5) to ensure that first nations must apply the rules for determining fair and full compensation as set out in the Expropriation Act.

This is the one area where the Senate made some concessions. It has put the band under the Expropriation Act. It has not gone to the extent of saying that the powers of the expropriation be limited by requiring a 51% approval rate in the community. It has not required that an appeal process be available to first nation members, but it has required by the amendments that we have before us, and we do agree that these amendments are a small step in the right direction, that the Expropriation Act provisions apply.

The eighth proposal regards clause 45. It recommends that “duly authorized” be defined as meaning supported by at least 51% of the community as indicated in the community referendum.

She went on to say that it would appear that the two greatest weaknesses of Bill C-49 are its lack of provisions protecting native women's aboriginal equality and property rights, and the extraordinary powers of expropriation accorded to signatory first nations.

NWAC is concerned mainly with the provisions and issues affecting native women and consideration for making the legislation more acceptable to them.

In her opinion the amendments presented are reasonable. Some of the chiefs of the signatory first nations have sent letters to NWAC members giving them assurances that the concerns of native women can and will be adequately addressed in the individual land codes. It is my strong belief that if it is the chiefs' intention to adequately address the concerns of native women anyway, then the chiefs should have no objection to the proposed amendments.

That seems to be pretty simple to me: do not wait for the land quotes, put it in legislation. If the chiefs are being upfront and genuine in saying that they want to see the issue addressed as well, then it should be in everybody's interest to incorporate it into the legislation and our concerns on this side of the House would be largely alleviated.

She went on to say that she wanted it clearly understood that NWAC does not imply that the signatory chiefs have any intention of perpetrating discrimination against native women in their communities. This submission is merely intended to point out potential problems with this legislation. The fact is that any and all first nations will be able to sign the framework agreement, perhaps with the sole intention of abusing the substantial power contained within the legislation.

We can see that Marilyn Buffalo was saying the same thing that I have said. We are not accusing the chiefs of trying to make a power grab so that they can take advantage of people; we are saying that words mean what they mean. The reason we have laws, the reason we have constitutions, the reason we have these protections called the charter of rights and freedoms is not because we necessarily expect that somebody will take them away from us, but we want to guarantee that nobody ever can. We want to make sure that we are protected. These women are fighting for that same assurance. They want to make sure that their rights are protected in the legislation.

She continued by saying that members of the aboriginal community had asked not only at this committee but at previous committees whether or not NWAC had a mandate to address this issue. The fact that they have been around for 25 years is an indication that there needs to be a voice, an independent voice, one that is not dominated by males and male dominated organizations. That is the reason this organization was founded, not by them, but by their aunts and their grandmothers.

For the purposes of the record, as she said before, NWAC is only one of the five national organizations that own real estate in Ottawa. They are completely mortgage free and they do not spend money unless they have it. They do all the work on a pro bono basis.

They are contributing their time. It is not like some of the other organizations that there are around here, in a wide variety of areas, where people are being paid big salaries. These people are doing it out of a sense of commitment, not for the sake of a paycheque.

She said that they have many friends and are prepared to go to the full extent of the law to be involved and to assist in any way they can. She also said that the backgrounder that was developed and sent to every member of parliament and senator was done in-house by volunteers.

Senator St. Germain then went on to thank Miss Buffalo for her presentation. He said that he had a question which zeroed in on one particular incident in regard to Ms. Lockhart and the Squamish Band. He asked if there were any other incidents in other parts of the country. He indicated that perhaps she would not not want to explain why they zeroed in on this particular case. However, he said that they were dealing with huge numbers of these situations and he wanted to know if they were isolated.

Miss Buffalo said that her answer was twofold. First, neither NWAC nor any other women's group was informed as to what was going on here in Ottawa. Many of their women did not know about this legislation.

Senator St. Germain said “That happens to many of us”.

Miss Buffalo said that should not be an excuse. That is not acceptable. Because they are poor they do not read the Globe and Mail . It does not hit their reserve. Nor does the National Post . By the time they receive information it is by luck or through the native newspapers and many of them do not cover this issue. By the time native women read this it is ready to become law. That is the unfortunate reality. She said that this was also not being debated in open public forums.

Senator St. Germain asked: “How are you funded? Are you funded by the government?”

She responded by saying that they receive funds of $300,000 a year from Heritage Canada. That is their core funding from the national office, which they run through.

The senator asked if there were several incidents which she could enumerate. She said that there were, which is why at one point they were excited about the task force that was going across Canada, the proposed fact finder. They were excited by the announcement that the minister made at their annual meeting. Unfortunately, she had made an—

The House resumed consideration of the motion in relation to the amendments made by the Senate to Bill C-55, an act respecting advertising services supplied by foreign periodical publishers.

Foreign Publishers Advertising Services Act

[The Acting Speaker (Mr. McClelland)]

Order, please. It being 6.06 p.m., the House will now proceed to the taking of the deferred recorded division on the amendment to the motion to concur in the Senate amendments to Bill C-55.

Call in the members.

(The House divided on the amendment, which was negatived on the following division:)

Division No. 561

[The Speaker]

I declare the amendment defeated.

The next question is on the main motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.