I’ve never had to apply.

We want to make it not burdensome, obviously, and there are criteria that apply. “Choice” is the key word. The suite of tools offered by these important institutions are not for everyone. There are philosophical differences that a number of communities do have. They are not necessarily based on capacity, and some just don’t want to be part of it. A lot have, and a lot are striving to, and it is important that we support them. I wanted to underline that before I pass it over to Chris Duschenes, because it isn’t for everybody, but it is a matter, fundamentally, of choice. No one is being forced.

Thank you. That’s helpful.

Thank you very much, Mr. Chair, and for the question, senator.

It is a very simple process. Once the community has decided, the Indian Act band submits a band council resolution to the department, and then it goes through the process to be scheduled. For the band council itself, it is not burdensome at all.

Thank you.

Good morning, minister.

One of the biggest issues that First Nations communities have grappled with and are grappling with is the inability to have their bylaws enforced. Can you explain how Bill C-45 attempts to address this concern for those communities that have signed on to the First Nations Fiscal Management Act?

As a general point, there is actually a very important summit in Ottawa taking place specifically on bylaw enforcement across Indigenous communities. I think the general conclusion — or, at least, the working premise of people going into these meetings — is that apples to apples, Indigenous community to non-Indigenous community with the same type of bylaws, one will be enforced robustly, more often than not in the non-Indigenous community, and less so in the others, for no particular reason. There is nothing in theory prohibiting enforcement under the Indian Act that is a cause for this.

It is jurisdictional wrangling. It is solicitors general tripping over each other and refusal of local enforcement bodies to enforce bylaws.

This is a financial subset of bylaws that are encompassed in this suite of legislation, ones which people are voluntarily subscribing to because they are driven by the communities themselves under the tools that exist under this body of legislation; it allows better enforcement and better efficiency of the actual bylaws. We’re talking about financial instruments. There are recourses if you fail to follow bylaws for the benefit of the institutions that are advancing the money.

In my mind, this is a very small example of how self-determination works, because it is voluntary. It is choice-based. You have a suite of predictable bylaws that are, again, financial in nature that people are voluntarily agreeing to. If it is not followed, there are consequences that exist under any financial institution in its ability to call loans or to make sure that provisions are adhered to.

Again, it is a small example of the problem of enforceability of bylaws across Indigenous communities. I wouldn’t suggest that this could work for every single situation where a bylaw is not being enforced. For example, there are issues in and around policing that will be the greater subject matter of the conference that is happening this week. It is a very large one. It is a huge issue in Indigenous communities.

That will be very important.

Another area of concern is clean drinking water. Given the Government of Canada’s direct obligation to ensure clean drinking water for Indigenous communities, and given the establishment of the FNII in Bill C-45, how can Canadians and, more importantly, Indigenous communities rest assured the federal government is not downloading that responsibility to the FNII?

When it comes to clean drinking water, there is not only a moral imperative, as you said, but a legal one. We have said to Indigenous communities that we are going to get the job done.

What we’ve seen over the course of the last few years is how complex water is. It may seem simple in a lot of people’s mind. You cannot fly in with the army a reverse osmosis machine, and magically things are done. It requires real work within the community to go in and say what is the problem?

There are a variety of examples where simply lifting the boil-water advisory does not address the issue of clean water in the community, whether it’s hook-ups to individual homes, real fear of the actual clean drinking water that is coming out, which is not to be understated.

There are communities that have had decades and decades of fear toward the water because they’ve been on boiled drinking water. Simply lifting it over a period of a year doesn’t change the fact that people still revert to bottled water.

It is multifaceted. It is complex. The reality of all this, you’ve seen it in the various Auditor General reports, is that you can dedicate the capital to building new water plants; it doesn’t, by virtue of that same statement, guarantee the lift the boil-water advisory, which is a choice and a decision made by communities.

It is why, for a number of reasons, we have expanded the infrastructure envelope, to make sure that we are having a more comprehensive approach to lifting boil-water advisories, which includes training and properly funding Indigenous water operators.

There was an 80-20 model that we used previously that is now 100% fully federally funded. It is expensive, but it is the right choice, because those people are the pride of their communities. They can easily be poached by a non-Indigenous community to work in their plant for a much higher salary, and why wouldn’t they? It shouldn’t be a question of water poverty and forcing people into a particular situation; this is about making sure there is a comprehensive approach to getting clean water coming out of the taps.

One of the largest class-action settlements in Canada that is seldom talked about is the safe drinking water class action that provides a multi-billion-dollar settlement for those who have been affected by not having clean water in their communities, but also provides a multi-billion-dollar investment over a number of years, speaking to that resting reassured that there will be investments in the communities.

As part of that settlement, there is an envelope that is forward-looking for communities who are looking for infrastructure and investments into their communities for safe drinking water. We’re down to the short strokes in and around northern Ontario with about two dozen communities who still have boil-water advisories.

Since the beginning of 2015, there have been 130 boil-water advisories lifted. It is something that is significant. Again, we won’t be happy until it’s all lifted.

Welcome to the Senate.

Under the First Nation Land Management administration, land administration is transferred to First Nations once their land codes come into effect. This includes the authority to enact laws with respect to land, environment and natural resources. Is that true?

Yes, it is.

I’m going to go back to a question that was presented by Senator Martin.

The committee has frequently heard about the challenges First Nations face in enforcing their laws and bylaws. Bill C-45 would provide that a First Nation that has adopted a land code or a First Nation law may use any enforcement measure to enforce a local revenue law, other than a measure to investigate or prosecute a summary conviction offence that is provided in the land code.

At present, there is no nation-to-nation relationship with the First Nations. There is a lack of clarity around natural resources. I had raised in December the issue of the two laws that need to be changed to make bylaws enforceable, and you wouldn’t know those; it’s the Royal Canadian Mounted Police Act and the Director of Public Prosecutions Act, to make this truly seamless. Otherwise, you have what the Manitoba Keewatinowi Okimakanak, also known as the MKO, calls stranded regimes, which I’m starting to realize happens a lot more than people realize.

I also have a letter from Chief Robert Louie that he is in agreement to clarify federal law based on uncertainty over legal authority. He said that he supports legislation that would include a reference to enforcement of First Nations laws recognized under the authority of self-government agreements which have been approved by acts of Parliament, including the Westbank First Nation’s self-government agreement.

When you have that, how will the enforcement work with this group?

Senator McCallum, it’s an excellent question. I think when people talk about enforcement, they can mean a number of things. Is it the court system that underserves Indigenous peoples that cannot enforce the issuance of a summons or of a citation under a particular band council bylaw?

Is it the local police of jurisdiction, which is often provincially administered, that refuses to go into a community, sometimes with respect to the grave violation of a quasi-criminal or criminal-type bylaw, even criminal enforcement for that matter which is not an issue for bylaws?

Is it the ability to enforce and give teeth to the laws that exist under a particular set of legislative tools like this one? The team can speak about how that would work, other than those that start to look like quasi-criminal or criminal-type summons. Some of the modifications you have proposed, I wouldn’t suggest being the only ones if we were to make changes, because a lot has to do with that jurisdiction overlapping and these grey areas that have been created and are often not the fault of Indigenous communities.

I sometimes think it’s quite clear where enforcement can occur and should occur, and it doesn’t because people refuse to do that. This is work that we need do with the solicitors general in the provinces, and work that will we’ll be discussing this week at the summit, in fact, dealing with enforcement of bylaws and enforcement generally.

How this would work under the act, as I mentioned earlier in my response to Senator Martin, is that there are a number of recourses that the institutions or the band council could take if there is an inability for individual members to comport themselves according to the terms of the bylaws.

This is quite a small tranche, but very important. It gives the authority to apply to the courts of competent jurisdiction equivalent to any other level of government but for very specific purposes under the First Nations Land Management Act, as you mentioned, and now under the First Nations Fiscal Management Act. It is an important step in that direction, but as Minister Miller mentioned, there is a large conference going on this week about enforcement that will be dealing with a much broader range of issues that eventually we hope to have addressed as well through other means.

I think my concern is that people aren’t made to expect that the system will work, and they came across with what happened with COVID in that the chiefs couldn’t enact their bylaws. We don’t set up that expectation that they’re enforceable. Really, there are gaps that exist.

Often the argument has been that when it comes to banishment or preventing people from going into the communities that there are constitutional issues around that. It’s a gross mischaracterization of the scope of the problem.

What we saw during COVID is that you could impose a curfew — whatever you thought about it — in downtown Montréal, but you couldn’t necessarily have band council bylaws that were creating access points into communities or a systematized way of screening people be enforceable and you had to rely on a few burly people standing on the road going into the community essentially saying that we’re the local community members who are trying to protect our own people. That’s not an ideal way of making sure people respect it.

It wasn’t only just the risk of COVID or people passing through for whatever reason, it also had to deal with drugs and supply of drugs as well. That’s a larger issue that is actually resulting in deaths in communities, which is in part due to the inability to enforce bylaws. It is a serious issue.

Thank you, I want to get all the senators in on first round if we can.

Thank you to the witnesses for being here this morning. It’s great to have you and all the folks that are here.

I have a general question. I know this piece of legislation went quickly through the House and came to us. I am wondering, as this was being created, there had to have been some thinking about potential challenges or pitfalls as we move through it. It could be conceptually or in implementation, just thinking through those. I am wondering about what some of those challenges are.

As a supplemental question, what are some of the reasons that a First Nation might choose not to participate in this act?

There’s a small one and a big one. The small one is actually also a big one, because I have been a big cheerleader for the First Nations Infrastructure Institute for years and I’m also disappointed. There are reasons for that, the historic response to COVID and priorities that financially go in different directions, but it was frustrating not to see a dedicated First Nations Infrastructure Institute supported by the government until a few years ago. I was happy for Manny Jules and for the team who put so much work and thought into it. There’s a role here to — not move away from it, because the grant-based model is not going to go away, there is too much of an infrastructure gap in Canada to support any argument to the effect that we have to keep investing, and some projects aren’t viable without a direct infusion of cash and they are game-changers in communities. But there is a role for a First Nations-led institute to be part of this and be driving this. If closes that lack-of-confidence gap so that there is a little more trust in getting projects done in the sense that these aren’t federal government ideas of the day but one’s coming from communities. I am really happy for that.

Conceptually, when you talk about these — and I’ll joke a bit about it — the leader of the opposition said this was the first common sense set of legislation the government had done, which immediately made me question whether we’d done the right thing. Anyway, I think you all know what I am talking about. It’s nice to have the endorsement of all of the parties, frankly, and for this to be a less partisan thing.

The reality is that this is not something for everyone. This is very much a western-based form of leveraging capital, and when you talk about some of the challenges that we face as a government on profound issues — even the Supreme Court of Canada has struggled with this. They have said the title exists but not what it consists of, other than broad brush strokes. When you talk about reconstituting Indigenous laws, identities and ways of being, there are few examples where that has congealed into an enforceable set of laws that is truly Indigenous-led and Indigenous-based that is different and distinct from the Western model, because we have spent our entire historical existence trying to crush those models with various levels of success.

I think reconstituting those laws and supporting communities that are reconstituting their own idea of land, identity and title, with some cutting-edge work being done to the credit of Indigenous communities in B.C. and, frankly, across Canada. Communities know what the land is, they know who the custodians of the land are, but legal enforceability as we would use in our models has been non-existent and to the detriment of the communities.

There is real suspicion that this is an attempt to municipalize, for example, the type of relationship and move away from a nation-to-nation relationship. I think when you realize that this is an issue of the fundamental choice of communities, it has to remain an element of choice. I deeply respect those communities that choose not to do so, and I also respect those who have put a lot of work into making sure that they are trying to advance their communities and the prosperity of their communities. Trying not to shove a square peg into a round hole has been, I think, the real challenge in making sure that we are putting together a suite of legislative options that don’t have to be followed, but if they are, can contribute to Indigenous excellence and there are some really neat examples of Indigenous prosperity around the country.

In my job, I have to spend a good chunk of it questioning every single choice I make and every decision I make, wondering whether I am not recreating a social model that has been designed to oppress. Obviously, you always have to, but it’s a reflection anyone in my position needs to have as a sanity check.

Thank you, minister, and to the officials for your testimony and for being with our Senate committee this morning. We welcome this next step on the decolonization journey, as you have identified it, and accelerating the government’s response to that road map toward self-determination that was forged by Indigenous leaders is so important. I really see this First Nations Infrastructure Institute as a welcome milestone, so I will start there.

I’m going to ask you a question in an area that we haven’t delved into too much yet. If passed, Bill C-45, as I understand it, would add new data collection and analysis and publication authorities for the First Nations Tax Commission, the First Nations Financial Management Board and the new First Nations Infrastructure Institute. Could you elaborate on the data collection aspect mentioned in the proposed amendments? What additional data is expected to be collected, and how would you see this data contributing to evidence-based decision making and planning?

I will probably ask the same question to the next panel, but what do you see this as?

To paraphrase my predecessor, Carolyn Bennett, it’s hard to mend what you can’t measure, and, clearly, in a lot of these so-called evidence-based approaches, the evidence is often quite thin.

I think the constant gathering of data — and there is a very important overarching discussion on Indigenous data sovereignty and the ability to control your own data over your own people that is an important element of it, but this, I believe, will enhance it.

The measures in these proposed amendments will allow more gathering of information to see whether these measures are truly efficient and whether they are working. We have certainly seen in taxation areas where things work, and things work less. That will be important for people to have that information and to gather that information with the tools that are in the proposed amendment so that they can measure and reassess, as the case may be.

In Indigenous communities, more so, perhaps, than — although, you hear it in non-Indigenous Canada that taxation is a hot issue, and it is something that we have to constantly measure to see its efficiency and desirability.