John Duncan

[Question No. 56, April 28th, 2004]

With regard to the Southern Chiefs Organization in Manitoba, how much and what type of funding has the government provided, for each fiscal year since the organization's inception?

Return tabled.

[First Nations Fiscal and Statistical Management Act, April 26th, 2004]

Mr. Speaker, the public is perhaps wondering what we are talking about here. Bill C-23 is designed to strengthen first nations real property tax regimes, create a first nations bond financing arrangement and in the process would create four institutions: the first nations tax commission, which would replace the Indian Taxation Advisory Board; a first nations financial management board; a first nations finance authority; and a first nations statistical institute.

There were 18 amendments tabled by the minister. We are speaking to one grouping of the two groupings that were created by the Speaker.

They accomplished several things. One thing they did not accomplish was that they did not separate the statistical institute from the rest of the bill. That was a significant request that had been made by a broad range of interests, including the Conservative Party. I find that somewhat unfortunate.

We will be supporting Group No. 1 amendments because there was widespread concern and desire to have this act ascertained as an optional exercise for the band level governments and this clearly specifies that. We are in pretty good shape that way.

I have been speaking about private property and have been looking at quite a bit of literature in relation to private property on reserves in Canada. There has been some very good literature produced recently. I will specifically make reference to a publication called Masters In Our Own House , published by the Skeena Native Development Society in May of last year.

The book talks about three cornerstones that are required in the way of bringing success and prosperity to first nations. We are making great progress on this front from the standpoint that there is some real leadership that is starting to be exhibited. Sometimes this cannot be one gigantic step but a series of smaller steps.

It is worth referencing that we have had taxation power available to bands across the country for about a dozen years or so. Today, 25% of the bands in British Columbia are exercising the authority and about 10% nationally. When we include the fact that British Columbia has almost a third of the bands in Canada, we can see that very few of those bands that are taxing are outside British Columbia. It is something that has led us to things like the bill we are discussing today.

The authority has been delegated to the bands under section 83 of the Indian Act and it would allow them to carry out this taxation scheme.

There are three cornerstones of successful governance; first, the market system must be allowed to function, it must be enabled; second, there must be an ability for the people to control the use and development of their lands to enable capital formation; and third, entrepreneurial thinking needs to be enabled for effective entrepreneurship to flourish.

I found this publication, produced by the Skeena Native Development Society, to be pragmatic and practical in terms of pursuing those three cornerstones within the context of the Indian Act and the other sort of albatrosses that have pre-empted that from occurring. The Indian bands are trying to go somewhere important, and I think we went somewhere important last week when we talked about Bill C-11 in the House, the Westbank first nation self-government agreement. This publication talks quite a bit about that and I want to shed a little light to that whole subject at this time.

When this group looked at the problems inherent in developing the first nations, they actually talked about going from a command economy to a market-based economy. The Indian Act has created a command economy where the Government of Canada, through the Department of Indian Affairs and Northern Development, has been the one that was entrusted with all of the decision-making in almost every way. One can view that, as they did, through the lens of communist China. I will quote right from the document which states:

They were struck by the parallels between the economic development problems experienced during theChinese transition to a market-based economy, and those presently confronting native communities.

This brought them to some not startling but pretty important conclusions because they were coming to those conclusions themselves. They were not conclusions that some academic or someone else in some other community was imposing upon them. These were conclusions they arrived at themselves and it was leading to major progress that would have major economic consequences downstream. They went so far as to quote from Hernando de Soto that:

The single most important source of funds for new businesses in the United States is a mortgage on the entrepreneur's house.

They went on to say:

Without this fundamental capability, will the financial institutions continue to avoid providing mortgage funds to First Nation entrepreneurs? In many ways, the ability to mortgage is the litmus test of property rights.

The irony is that in Canada we now have many native individuals with the earning power to afford to carry a mortgage and build a home off reserve, but they cannot get the banks to lend them funds because they cannot collateralize the loan on the reserve because of the lack of simple title. There is a clear recognition about the concern about clear and enforceable property rights, which is compromising transactions both on and off reserve.

I would like to conclude by saying that this concern has been addressed partially by the first nations land management act, more wholly by the Sechelt agreement in British Columbia, more wholly again by one small part of the land allocation to the Nisga'a, and almost completely by the Westbank agreement, Bill C-11, before the House.

[First Nations Fiscal and Statistical Management Act, April 26th, 2004]

Mr. Speaker, I thought you were reading a separate intervention and then you were going to call for resumption of debate. I never heard you resume debate, so that is why I did not stand up.

[International Transfer of Offenders Act, April 26th, 2004]

Mr. Speaker, I think I said what I needed to say, which is that this is third reading with no amendment and we have heard nine government speakers. I think we have heard enough.

[International Transfer of Offenders Act, April 26th, 2004]

Mr. Speaker, we have had one opposition member and nine government members speak to a bill at third reading that has no amendments. I have been expecting, for over three hours now, to speak to Bill C-23, which I hope is coming up very soon. I can go back to last week where the government was filibustering bills also. This is going back to more than Friday. I can go back to last Thursday.

I would like to get on with the government agenda, which last week was that aboriginal bills would be upcoming, and that was what it wanted to serve up, and Bill C-23 is an aboriginal bill.

[Petitions, April 23rd, 2004]

Mr. Speaker, I would like to present petitions from the Canadian Alliance For Social Justice and Family Values Association which contain over 22,000 signatures. This is the largest petition I have delivered in my 10 and a half years as a member of Parliament.

The association has a large and growing membership whose principal purpose is to redress social injustice, protect constitutional charter and social rights, traditional family values and parental rights and to promote the establishment of traditional schools. This group, based in Vancouver, is 80% Canadian Chinese and has worked tirelessly on important family and social issues in British Columbia and nationally.

The petitioners ask Parliament to preserve the definition of marriage as the union of one man and one woman to the exclusion of all others. The petitioners also ask Parliament to acknowledge their opposition to the incorporation of the wording “sexual orientation” in the Criminal Code of Canada for several reasons. In particular the charter rights of freedom of speech and freedom of religion will be significantly eroded once the bill becomes law. Sexual orientation is a vague term as it could include all conceivable types of sexual gratification.

[Westbank First Nation Self-Government Act, April 22nd, 2004]

Mr. Speaker, reference was made to voting at the band level and the ratification process. I have a comment which I am sure will invite a response from my colleague.

The Westbank is no different from other democracies from the standpoint that the band council in this case has to balance some competing interests. It is obvious, but I will state it anyway, that a very identifiable group in opposition to this agreement at the band level consists of people who think that Westbank should be sovereign. That is certainly much more than I or this Parliament would probably be willing to accept.

There is identifiable opposition who believe that the Westbank First Nation should remain under the Indian Act because they are concerned about losing those apron strings. There is another identifiable group who oppose this and are all over the map.

From the standpoint of ratification and divisions within the Westbank First Nation, they are no different in respect to this initiative than they would be in any other community on any other initiative. That is what democracy is all about.

[Westbank First Nation Self-Government Act, April 22nd, 2004]

Mr. Speaker, I never did hear the question. He was cut off on his question.

I think the member wanted me to make a quick reference to the businesses operating on the Westbank First Nation. My understanding is there are 200-plus businesses operating very successfully.

It is not only residents of the Westbank First Nation who are expressing confidence in the property regime and the stability of governance, but it is the business community as well. Yes, I think that is an important ingredient to this whole exercise.

[Westbank First Nation Self-Government Act, April 22nd, 2004]

Mr. Speaker, the parliamentary secretary has provided me with the opportunity to speak for a few more minutes, which I appreciate.

There are some fundamental areas in which federal laws will always prevail. It is good to set that table. Those areas deal with peace, order and good government. This totally embraces the criminal law of Canada.

There have been suggestions that somehow Westbank can legitimize things that cannot be legitimized in other parts of Canada. That is simply not correct. Westbank has embraced and adopted the criminal law of Canada.

Other areas are the protection of health and safety of Canadians, intellectual property, broadcasting and telecommunications, national defence, security and public safety. Some of the areas I did not talk about over which Westbank has jurisdiction relate to the wills and estates of members ordinarily resident on Westbank lands. This ties in at times with what I was talking about in terms of marital assets, obviously in the case of death. That is important. That whole area is very significant.

Westbank First Nation has jurisdiction in relation to public works, community infrastructure and services. The way it reads in the agreement is that Westbank law shall prevail over federal law to the extent of any conflict so long as Westbank First Nation health and safety standards and technical codes are at least equivalent to federal health and safety standards and technical codes.

It is the same thing in terms of traffic and transportation. The Westbank First Nation has jurisdiction, but for greater certainty, this shall be designed to be at least equivalent in effect to federal and provincial regulations, safety standards and technical codes. It is the same thing with business licensing regulations.

One thing that Westbank wants to make very clear is that federal and provincial laws apply in respect to the accreditation and certification of professions and trades, including the education professions. This agreement has been very careful in many areas.

On the enforcement of Westbank law, I already mentioned that the enforcement procedures can be comparable to but not greater than those set out in similar federal or provincial legislation. The agreement specifies that the RCMP shall render these services. Basically they are already doing that, only they are doing it under memoranda of agreement that were signed by Canada, British Columbia and the Westbank or the First Nations Community Policing Service dating back to 1992 and 1993. Those are some of the areas.

On health services, Westbank has jurisdiction in relation to the regulation of the practice of traditional Okanagan medicine and the regulation of practitioners of traditional Okanagan medicine.

For culture and language it is the same thing. A very important and significant area is the environment, where they have jurisdiction. The qualification is that these will be at least equivalent in standard to those set out in the federal and provincial laws of general application. In the event of a conflict dealing with protection and conservation of the environment, federal law shall apply. The same goes for environmental assessments. These are important things for people to realize.

There have been some questions about financial accountability. The Westbank First Nation agreement is very precise on financial accountability. The standards will be those recommended by the Canadian Institute of Chartered Accountants.

Another area which some people have expressed questions about relates to people's rights to access the court system. This is covered in that the agreement specifies that the judicial review procedure act of British Columbia applies to the Westbank First Nation. This allows individuals to go to the provincial court system independent of any appeal mechanism. Prosecutions for violation of Westbank law are heard in the B.C. provincial court using summary conviction procedures of the Criminal Code of Canada.

Those are the mains topics that I did not cover in my initial 20 minutes.

[Westbank First Nation Self-Government Act, April 22nd, 2004]

Mr. Speaker, it gives me pleasure to speak to Bill C-11 at third reading.

I will paint a little picture for members. The Westbank First Nation is adjacent to the city of Kelowna in the Okanagan Valley of British Columbia. As a band, it has rightfully gained a reputation as one of the most progressive bands in the country. There is some opposition to the self-government agreement. However, that opposition flies in the face of the evidence.

There are 7,500 non-band members, and one-quarter of all non-band member residents in Canada who live on reserve live on the Westbank reserve. These residents, as well as 200 businesses, have chosen to locate on Westbank land because they view the Westbank First Nation government as being competent, predictable and stable and, therefore, is a very secure place to invest.

The Westbank First Nation has been collecting property tax since 1990, and non-band members have full access to the financial reporting of these property tax accounts. Westbank has implemented a system of independent property assessment and assessment appeal mechanisms similar to off reserve municipalities. The B.C. assessment authority has been contracted to carry out these functions and this has made it very easy to translate for the real estate industry. Therefore, it has a very simple process. It can recommend Westbank investments, and it does.

The implementation of this taxation policy 14 years ago, under the provision of section 83 of the Indian Act and the subsequent opting into the First Nations Land Management Act, was instrumental in the rapid growth of non-band members residing on Westbank land. None of this property tax regime under section 83 of the Indian Act will change as a consequence of this agreement. The self-governance will actually improve the ability of individuals to manage these transactions under that self-governance because it will not require the extra step and impediment of the Department of Indian Affairs.

Elsewhere in British Columbia we have a shining example. The Sechelt Indian band achieved self-government and taxing power in the 1980s. Virtually, without exception, it is held up as a successful model for self-government and economic development. The Sechelt and Westbank agreements share a provision that non-native residents are represented by an advisory group to chief and council.

Critics of the agreement also like to point to the Charter of Rights and Freedoms, claiming that the Westbank agreement will change this application as it applies to the Westbank government and residents.

We have had some debate in the House on this and it is the full intent of this agreement that the charter apply. It is my very strong opinion and the opinion of many in the legal profession that any difficulties there might be in that area are due to the Canadian Constitution and the charter, certainly not due to a piece of legislation such as Westbank. We all know that our charter and our Constitution are supreme, so I need say no more.

The net effect for non-band members living on Westbank lands is that the application of the charter is the same whether the Westbank First Nation is operating under the provisions of the Indian Act, as it is now, or operating after this agreement receives royal assent.

The Westbank band is on course to be responsible for its own governance and its own future. The bill creates a government which is a legal entity that can sue or be sued. In contrast, Indian Act chiefs and councils are protected from legal liability. To me, it is quite surprising that the democratic and financial accountability provisions and the private property provisions so central to the Westbank agreement have virtually been ignored by the critics of the bill.

Critics also complain that Westbank laws may prevail over federal and provincial laws. In reality, current chief and council bylaws across Canada prevail over provincial legislation as a consequence of section 88 of the Indian Act. The Westbank agreement adopts the same provision. Westbank laws prevail over federal laws only in some specific areas.

We have to recognize also that because these are federal lands there is a vacuum in some areas that are normally under provincial jurisdiction, such as landlord tenancy and some other areas. The Westbank band, either prior to now or as a consequence of this agreement, has taken care of those vacuums in the law, and this has added to the certainty and security for investors.

I find it very interesting that the Westbank band has done very enlightened things because of a vacuum in the law, yet it has been criticized for occupying that vacuum. However, the real reasons were never associated with the criticism. I thought I would point that out.

One example that people should be aware of deals with the area of intoxicants. Westbank may create a dry reserve. It has priority over federal law in relation to Okanagan language and culture, K to 12 education, the practice of traditional Okanagan medicine and Westbank law enforcement procedures, as long as they are comparable but not greater than those set out in federal or provincial legislation on similar subject matters. Business licensing, traffic and transportation, public works and wills and estates of Westbank members are all areas that are largely without criticism.

Once again, it seems to be the principle that is attacked but the specifics are not attacked. I think once we look at the specifics, that these are actually areas that are non-controversial.

In addition, the Westbank First Nation has jurisdiction over the renewable resources on Westbank lands, excluding fish and fish habitat. Jurisdiction is also extended to non-renewable resources such as minerals and gravel. The Westbank band can manage resources on Westbank lands as if it is a private property owner, although ownership resides with Canada. There is some difference between the Westbank and Sechelt. In the case of the Sechelt band, its lands were transferred in fee simple title. They are no longer federal lands.

The adjacent city of Kelowna, British Columbia's third largest city and according to many of the residents, British Columbia's most important city, and the regional district that encompasses Westbank First Nation have endorsed the agreement.

The Westbank agreement should be looked at in its entirety. It should be supported and encouraged as the model for other bands.

I have had some significant history with self-government and other legislation. This bill was tabled in the House last November, I believe. In January I had meetings with the regional district representatives, the mayor of Kelowna, the chief and council from the Westbank, and the Westbank advisory group. This gave me a very good feel not only for the legislation but for the communities.

As part of my background in aboriginal affairs, I will go back to 1997, two ministers ago. At that time, the Minister of Indian Affairs and Northern Development had been minister for the entire 1993-97 Parliament. As that Parliament was winding down, there was a First Nations Land Management Act for which, in typical government fashion, an attempt was made to rush it through at the last minute. I resisted that. That bill did not pass until 1999.

I would like to say at this time that I was wrong about that piece of legislation. That legislation has turned out to be very important and progressive legislation. It has brought many of the merits of self-government, without necessitating self-government, to the leasing of lands. Fourteen first nations were part of that, I think, and Westbank was a signatory. This ability under the First Nations Land Management Act was responsible for a significant amount of the growth of non-native residency at Westbank.

Also as a part of my history I did represent the Sechelt area on the British Columbia coast for that 1993-97 Parliament. That was prior to a rearrangement of my riding as a consequence of the 1991 census. It was very clear when I represented the greater community there that there was great support for the Sechelt Indian band self-government agreement, which has been in place since 1986. I am sure that this will be mirrored in the experience with Westbank in the Okanagan.

There is one area that I think is very significant for many people. They have very strong feelings that this area needs to be addressed. It is another one of these vacuums in legislation. The question relates to matrimonial property. Matrimonial property law in Canada is a provincial jurisdiction. Each province deals with this in its own way.

In the case of federal reserve lands, there is no matrimonial property legislation. There is no legislation dealing with marital assets after death or divorce or marital separation. This is an area that has been brought forward repeatedly over at least the last 20 years in the House of Commons Standing Committee on Aboriginal Affairs and in other venues. I know the Senate is looking at this issue and has been for quite some time. We have had native women's organizations tackling this area and pushing for change. I think everyone wants to see it fixed, but it is a difficult area and it has not been fixed.

I want to say that the first people living on reserve in Canada who will be covered by matrimonial property law will be the Westbank, almost undoubtedly, because another part of the agreement specifies that within 12 months of the agreement coming into effect this area must be covered off. There must be law brought into place to cover the Westbank membership and that law must not discriminate on the basis of gender.

I know that there has been some preliminary work done and some consultation has been done and that will proceed. I think that whatever occurs with the Westbank on that front will be very useful as a model for others to look at and perhaps will expedite the resolution of that issue for the other 632 bands in Canada. I am certainly hopeful that this will be the case.

Recently there has been a suggestion that because the Westbank First Nation ratification vote required three attempts in order to locally ratify this agreement, it somehow means that we have a community divided unto itself and it taints this whole exercise. I want to make it clear that if we want to form a municipality, for example, and incorporate in the province of British Columbia, what we require in order to express that will is 50% plus one of those who turn out to vote yea, by referendum or by ballot.

In the case of the Westbank, there were three votes. All three have expressed a clear majority who want to see this ratified, but in their idealism in the first attempt they wanted a super majority, in other words, 50% plus one of people on the voting list, thinking that it would be very achievable. Of course it did not happen. And on one of those first two occasions, it did not happen by two ballots, I think.

What it means is that everybody who does not show up or is incapacitated or cannot get to the ballot box is counted as voting no. Westbank basically has put its voting system in line with what everybody else does. It is a simple majority of those who vote. So I do not think this process it tainted at all, quite the contrary.

My time is up, so I will wrap up by saying that this is a very enlightened agreement. It is an attempt to achieve all of those things that will be good for the people and good for the residents of Westbank. I think they have valiantly succeeded.