Canada's Original Think Tank

Second Reading of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures

Second Reading of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures

Second Reading of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures

Hon. Lillian Eva Dyck: 

Honourable senators, I rise today to speak to second reading of Bill C-86. As you know, the Standing Senate Committee on Aboriginal Peoples conducted a pre-study, and today I’m going to read into the record the fourteenth report from that committee, tabled on Monday, December 3. It begins:

Your committee, which was authorized to examine the subject matter of those elements contained in Divisions 11, 12 and 19 of Part 4 of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures, has, in obedience to the order of reference of Wednesday, November 7, 2018, examined the said subject-matter and now reports as follows:

On November 20, 21 and 27, 2018, your committee heard witnesses on the subject matter of Divisions 11, 12 and 19 of Part 4 of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures. Division 11 proposes amendments to the First Nations Land Management Act (FNLMA), Division 12 proposes amendments to the First Nations Fiscal Management Act (FNFMA) and Division 19 proposes the enactment of the Addition of Lands to Reserves and Reserve Creation Act. Your committee notes that the timelines associated with reviewing Divisions 11, 12 and 19 meant that consideration of these amendments was rushed.

Your committee recognizes that the amendments contained in Divisions 11 and 12 are First Nations-driven; they are developed by, and for the benefit of, First Nations. In particular, your committee was pleased to see options in both divisions that could provide First Nations with the opportunity to access their capital and revenue moneys held in trust for First Nations by the Crown. Facilitating First Nations’ access to their moneys has been a topic explored by your committee in the past, as part of your committee’s study on housing and infrastructure on reserve and at a meeting held on February 16, 2016.

Given that the Lands Advisory Board (First Nations Land Management Resource Centre), the First Nations Tax Commission and the First Nations Financial Management Board have emphasized the importance of these amendments for their institutions, your committee supports Divisions 11 and 12. Your committee commends the government for its close working relationship with these institutions.

Your committee wishes to highlight, however, that witnesses identified the need for future amendments to both laws. With respect to the FNLMA, your committee heard that it should be replaced with legislation that simply ratifies the Framework Agreement on First Nation Land Management, as opposed to the existing legislation that restates the Framework Agreement’s provisions. Your committee was told that this would better reflect the reconciliation and recognition approach of the Framework Agreement and would make it clear that it is the language of the Framework Agreement, and not the language of the FNLMA, that prevails. While your committee understands the importance of moving the proposed FNLMA amendments forward at this time, it urges the federal government to expeditiously consider the replacement legislation proposed by the Lands Advisory Board.

With respect to the FNFMA, your committee was encouraged by the evolving relationship between the First Nations institutions and the federal government as reflected in the several amendments to the FNFMA over time. On a previous occasion, your committee examined amendments to the FNFMA contained in Bill C-59, An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 and other measures. Those amendments were reported back without observations. While Division 12 of Bill C-86 contains many of the First Nations institutions’ proposed amendments, your Committee recognizes that more work may be required, including expanding the mandate of the First Nations Tax Commission.

While the process relating to amendments to the FNLMA and the FNFMA demonstrate close collaboration and consultation, your committee heard that the consultation process in relation to Division 19 was flawed. Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) and Indigenous Services Canada (ISC) advised your committee of the steps taken to inform First Nations and organizations, such as the Treaty Land Entitlement Committee of Manitoba Inc., on the proposed Addition of Lands to Reserves and Reserve Creation Act. However, your committee heard from witnesses that engagement with them on this issue was inadequate, and that they had not had time to properly consider the impacts of the proposed new act. One official implied that a lack of a response from a community was consent. Your committee believes that the lack of a response from a First Nation in response to information that is sent out by the department does not mean that the community is consenting. Your committee wishes to emphasize that achieving meaningful consultation and engagement requires ongoing and continued effort by CIRNAC and ISC, in particular, as the dissolution of Indigenous and Northern Affairs Canada may have complicated what is already a complex engagement process. Communities may require financial and other support to fully participate in the consultation process, which should take place in the context of adhering to the United Nations Declaration on the Rights of Indigenous Peoples principle of free, prior and informed consent.

Finally, your committee received a letter from Minister Petitpas Taylor and Minister Philpott dated June 6, 2018, in which they committed to a new fiscal relationship with Indigenous communities, including discussions about revenue sharing and taxation arrangements. While your committee was informed that discussions are taking place with the First Nations Tax Commission, the Assembly of First Nations, and others, your committee was alarmed to hear that First Nations continue to be excluded from benefitting from cannabis excise tax revenue.

As a result, your committee urges the Department of Finance and the Department of Health to engage with First Nation communities and organizations on this matter in a meaningful, and expeditious manner.

Respectfully submitted,

Lillian Eva Dyck, Chair.

I wanted to put that report into the record, and I’ll now say a few more words.

Senator Pratte, thank you for referencing our report in your speech. You spoke about the First Nations Land Management Act, the concerns raised in regard to the Additions to Reserves and the issue with consent, and you basically said the bill will allow for enhanced Indigenous autonomy. That is true, but I think one of the main intents of these sections of the bill was to increase the speed by which financial decision-making can occur on First Nations so that it moves with what they said was at the speed of business rather than the speed of bureaucracy and red tape. These amendments are compatible with that.

I would like to add a few more words with respect to the First Nations Land Management Act, which was referenced in Division 11.

As you heard, the committee supports the request of the First Nations Land Management Resource Centre’s Lands Advisory Board that, while these amendments to the First Nations Land Management Act should be passed, they would also urge the federal government to expeditiously consider the repeal of the First Nations Land Management Act and instead enact legislation that would ratify the Framework Agreement on First Nations Land Management because it has created a situation that is very complicated.

We heard that the framework agreement that was signed in 1996, at that time with 13 signatory First Nations, is a document that best reflects the agreement with participating First Nations and the federal government; and while this framework agreement has been amended several times since it was signed, it’s still the best reflection of the agreement. But in 1999, to give legal effect to that agreement, the federal government passed the First Nations Land Management Act. However, having done that, it has created great confusion for First Nations operating under the act.

As Mr. William McCue, Lands Advisory Board, First Nations Land Management Resource Centre, stated:

The FNLMA is fairly lengthy legislation which attempts to restate selective terms of the framework agreement but not all of it. Unfortunately, this has caused many government officials, professionals, businesses, non-members residents on First Nations land and even some First Nation members to misunderstand the central importance of the framework agreement.

Mistakenly, many think the technical language of the FNLMA governs instead of the framework agreement. This is highly problematic, because it suggests to some that Canada, through Parliament, is delegating authority for self-government on terms dictated by Parliament.

He also said:

Looking beyond Bill C-86, we have proposed that the FNLMA be replaced with the shortest possible federal legislation that would serve only to meet the original purpose: federal legislation that ratifies the framework agreement according to its terms.

This kind of manœuvre would be akin to self-governing legislation, where you have self-governing agreements and then we pass a self-governing piece of legislation. We need the same thing for First Nations land management.

At committee, department officials indicated they were in discussions with the First Nations Lands Advisory Board to move on this recommendation in a two- to three-year window. It’s important to note that the Lands Advisory Board has already developed their own replacement legislation, entitled “First Nations land management and governance act.” As such, we would urge the government to move more expeditiously on this request and cease tinkering with the First Nations Land Management Act, which is not the best way forward; it only serves to confuse the issue. Thank you.