THE SIZE OF THE FONT)
Extract from the Journals of the Senate, Wednesday, April 12, 2000
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, An Act to give effect to the Nisga'a Final Agreement,
And on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Andreychuk, that the Bill be not now read a third time, but that it be read a third time this day six months hence.
After debate,
With leave of the Senate,
In amendment, the Honourable Senator Sparrow moved, seconded by the Honourable Senator DeWare, that Section 3 of the Bill be amended by adding the word "not" following the word "is".
The amended Section 3 will therefore read:
"3. The Nisga'a Final Agreement is not a treaty and a land claims agreement within the meaning of Sections 25 and 35 of the Constitution Act, 1982."
After debate,
With leave of the Senate,
In amendment, the Honourable Senator Sparrow moved, seconded by the Honourable Senator DeWare, that Section 27 of the Bill be amended by adding the following:
"which day shall not be earlier than the date upon which the Supreme Court of Canada pronounces on the validity of the Nisga'a Agreement."
The amended Section 27 will therefore read:
"The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council, which day shall not be earlier than the date upon which the Supreme Court of Canada pronounces on the validity of the Nisga'a Agreement."
Debate.
-----
With leave of the Senate,
The Honourable Senator Hays moved, seconded by the Honourable Senator Kinsella:
That all Senate Committees scheduled to sit at 3:30 p.m. today have power to sit while the Senate is sitting, and that Rule 95(4) be suspended in relation thereto.
The question being put on the motion, it was adopted.
-----
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, An Act to give effect to the Nisga'a Final Agreement,
And on the motions in amendment of the Honourable Senators St. Germain, P.C., and Sparrow.
After debate,
The Honourable Senator Kinsella for the Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator DeWare, that further debate on the motions in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Extract from the Journals of the Senate, Tuesday, April 11, 2000
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, An Act to give effect to the Nisga'a Final Agreement,
And on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Andreychuk, that the Bill be not now read a third time, but that it be read a third time this day six months hence.
After debate,
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator LeBreton, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Extract from the Journals of the Senate, Monday, April 10, 2000
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, An Act to give effect to the Nisga'a Final Agreement,
And on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Andreychuk, that the Bill be not now read a third time, but that it be read a third time this day six months hence.
After debate,
The Honourable Senator Carstairs for the Honourable Senator Christensen moved, seconded by the Honourable Senator Wiebe, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted. WEDNESDAY, March 29, 2000
The Standing Senate Committee on Aboriginal Peoples has the honour to present its
FOURTH REPORT
Your Committee, to which was referred Bill C-9, an Act to give effect to the Nisga'a Final Agreement, has, in obedience to the Order of Reference of February 10, 2000, examined the said Bill and now reports the same without amendment, but with the observations appended to this report. OBSERVATIONS During the course of its hearings on Bill C-9, your Committee heard testimony concerning the potential impact of the Nisga'a Final Agreement on unresolved overlapping land claims of the Gitxsan and Gitanyow Nations in the Nass Valley region of northern British Columbia. Your Committee recognizes that the parties have attempted to address this question by including provisions in the Nisga'a Final Agreement that aim to preserve and protect the rights of Aboriginal peoples other than members of the Nisga'a Nation. Your Committee is nevertheless deeply concerned about the implications of outstanding overlap issues, not only in relation to the Nisga'a and neighbouring First Nations, but also in the broader context of the ongoing British Columbia treaty process involving over 50 First Nations. Your Committee therefore strongly urges the federal government and its negotiating partners to pursue vigourously all means at their disposal to ensure that overlap issues are resolved to the satisfaction of concerned First Nations prior to the conclusion of future land claim agreements.
Speaker calls:
Presenting Reports from Standing or Special Committees
Senator Austin rises and says:
Honourable Senators, I have the honour to present the Fourth Report of the Standing Committee on Aboriginal Peoples which deals with Bill C-9, an Act to give effect to the Nisga'a Final Agreement.
Senator Austin gives Report to Page. Clerk at the Table reads Report. Sponsor of the Bill (Senator Austin): THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Tuesday, March 28, 2000
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, to give effect to the Nisga'a Final Agreement, met this day at 6:00 p.m. to give consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: Honourable senators, I see a quorum. I therefore call to order this meeting of the Standing Senate Committee on Aboriginal Peoples to give clause-by-clause consideration to Bill C-9 and to consider whether the committee should also attach opinions to the report of the committee.
Senator St. Germain: Mr. Chairman, I should like to deal with a couple of matters before we begin with that business.
Ms. Wendy Lockhart-Lundberg previously tabled a submission with us. It was incomplete and I wish to submit the complete submission to be attached to the record.
The Chairman: Certainly.
Senator St. Germain: As well, a petition was sent to me from non-native permanent residents of the Nass Valley. I do not know these people, Mr. Chairman. The petition says:
We, the non-native, permanent, residents of the Nass Valley and the Irene Meadows Community, would like it to be known to the members of the senate that Mr. Bill Young, not a permanent resident (owner of Tillicum Lodge and Nass Camp, a business operation) does not represent our feelings or opinions on the Nisga'a treaty and lands claims. We would appreciate the chance to have the Senate hear our views.
I should like to have this petition attached to the record of the committee.
The Chairman: You have read it into the record. Could you read the names of the petitioners.
Senator St. Germain: They are Larry Nord, M.K. McIntyre -- I cannot read the next one -- Marty Cox, a Jepson, I think. The names are not printed beside the signatures and they are very difficult to read. Their addresses and the date they signed the petition are included. The signatures were affixed to the petition beginning on March 20 and ending on March 28.
(Take 1810 follows - Senator St. Germain continuing: Two petitioners are from Aiyansh and the rest are from Nass Camp…) DC/Aboriginal/36169/March 29, 2000
(Senator St. Germain: continuing.)
Two petitioners are from Aiyansh and the rest appear to be from Nass Camp.
The Chairman: We will circulate the petition to all members of the committee.
Shall we proceed to clause by clause consideration of Bill C-9?
Senator St. Germain: I would like to raise a point of privilege or a point of order.
The hard copy transcripts that have been provided are not complete, according to one of the senators on this side. In view of that, I think we should deal with it. I do not know why they are not complete. I personally have not perused them, but Senator Andreychuk has and feels that some of the questioning that transpired between she and the minister is not part of the record.
That being so, Senator Andrechuk feels that her privilege is being violated in view of the fact that this has been presented as a complete transcript. We stand to be corrected on this. We brought this to your attention this morning, and we have been going through the tapes since that time. The only possible way to reconcile this would be to go to the CPAC recording that took place during that portion of the hearings.
I beg the indulgence of the chair to deal with this immediately, if we can, sir.
The Chairman: It is remarkable that Senator Andreychuk does not speak to the point.
Senator St. Germain: She will.
The Chairman: Is this Senator Andreychuk's point or your point, Senator St. Germain?
Senator St. Germain: It should be everyone's concern, not only hers. However, since I am the deputy chair, I brought this matter forward. I now yield to Senator Andreychuk.
Senator Andreychuk: As you know, I raised some points this morning that were significant to my concerns and deliberations. I have gone through the transcripts, as you notice.
I indicated last week that it was very important and that I wanted to go through all the evidence to ensure that I weighed properly and adequately all the evidence that had been put forward. I went through the evidence from Thursday, March 23, 2000, and some of the questioning that I put to the minister does not appear in the transcript. That is rather germane to my assessment. I do not want to go on recollection on that evidence because it is very crucial to me.
I would prefer and I think it is my right to have the transcript so that I can review the evidence and it appears to be missing. How that has come about, I do not know. There must be some way of rationalizing with our main recording and this transcript, because there is certainly a piece missing.
The Chairman: It is an interesting issue that you raise. What makes it interesting is that the Senate does not provide transcripts that have been edited, they provide an instant electronic reprocessing of what was said. The accurate transcripts are probably not available for some days and this is the normal course of Senate process.
The committee's consideration of issues does not to rely on transcripts; we are to rely on evidence given, the notes that we take and the impressions that we have of cross-examinations.
We endeavour to assist senators by producing these electronic transcripts overnight. However, the transcripts are not necessarily totally accurate. I cannot see your argument, based on every committee which wishes to look at transcripts of evidence given by witnesses waiting for the two or three weeks in the process that is taken here.
However, there is a CPAC "transcript", and we have made a request to compare it to the electronic transcripts which were taken for this committee. That evidence, to assist you, will be available shortly.
Mr. Michel Patrice, Clerk of the Committee: The evidence should be ready within 24 hours.
The Chairman: There is no precedent for a Senate committee not proceeding with clause-by-clause consideration in the absence of a minor amount of material in the evidence.
It may be very significant to you, Senator Andreychuk but it is a few minutes out of hours and hours of evidence that has been given in the committee. If there is a precedent, I would like to know it. I have not heard of one in a case like this. Thus, I am proceeding as a matter of normal practice here. If any committee has ever interrupted its consideration of a bill to await a transcript at the request of one or two senators, that is something new to me.
I would be happy to hear from any other senator on this issue.
Senator Andreychuk: I have never been put in this position before. I have been put into two positions, either the transcript was not necessary to my deliberations, or second, when I have said that they were, we have adjourned to allow the transcripts to come forward so that we could incorporate them into our consideration.
To be in a position to move ahead and particularly on something as fundamental as this proposed legislation, without what I believe are the very germane questions -- it is curious, many of the other questions that are here I think are important questions, but do not necessarily go to the nub of what I need to determine how I vote on this issue.
The Chairman: Are there other senators who wish to address this question?
Senator Nolin: I am new to this committee and I was informed of that little problem this afternoon. I understand that Senator Andreychuk has asked, with the full agreement of the committee, to review the transcript and the committee agreed to that.
Do I understand that even if this were a correct transcript of what took place, of the hearing of this committee, it does not matter? I find that preoccupying. We will need to understand what happened exactly. It may be minor, even if it is only one page that is missing.
I was not there, but if the minister admitted something to a question, if it is only one paragraph of a one-inch thick document, it does not matter, that admission from the minister, and according to what Senator Andreychuk just said, it can change her mind. We must respect that.
Mr. Chairman, you must suspend the work of this committee to ensure that the full transcription of what the minister said is available to all the members of this committee. Then, when you will be satisfied as chairman that what took place in your committee is properly transcribed in the documentation of the committee, then your committee will be able to proceed properly. That is my opinion.
The Chairman: Would Senator Andreychuk tell us what evidence is missing?
(Take 1820 commences, Senator Andreychuk: This is the dilemma I have.)
Victoria Aucoin /March 28, 2000/Aboriginal Peoples #36169
(Following Take 1810, The Chairman, what evidence is missing. TAKE 1820 begins here.)
Senator Andreychuk: The following is the dilemma that I have. I remember not the exact words of the question I put to the minister, and that is the difficulty. It was in the line of questioning as to minority rights with the Gitanyow and the Gitxsan. There was a series of questions about whether the minister -- and this is where my memory fails me in exactly how it was phrased. I asked him whether he thought and believed that the Nisga'a claim was valid on the disputed lands, and was he therefore taking the position of the Nisga'a in the land dispute, to which he answered that he was.
I want to be absolutely certain how the question was phrased and what the answer is. It seems to be very germane to me on that issue. Unless my eyes are failing -- but I also have had some researchers look at it -- I cannot find that portion of the transcript.
The Chairman: Actually, I read that evidence when I reviewed Minister Nault's testimony. I have just asked the staff here to see where it is in the transcripts we have provided.
Senator Gill: If we are able to get something that was missing right now, who will decide that we will get what we want to get? Who will say, "This is the thing that we are looking for?" Who will decide about that?
The Chairman: Me. Anything I decide can be appealed by this committee.
Senator St. Germain: In the full Senate?
The Chairman: In the committee to begin with. Of course, a question of privilege can be raised in the Senate tomorrow on this item.
Senator St. Germain: If you can find it, Mr. Chairman, it will resolve the entire problem.
The Chairman: Senator Andreychuk asked the question on page 46 of the transcript. It is marked 46, but this is not the page.
I will read it and then we will put it on the other pagination. Senator Andreychuk asked the minister:
Senator Andreychuk: Is it your position at the table that the lands in dispute, but covered by the Nisga'a agreement, are legitimately within the purview of the Nisga'a?
Mr. Nault: Yes. If it is proven otherwise, through a process outside this treaty, then we will make the necessary changes. That is the protection we allow in the treaty. We certainly would not be going ahead with this treaty if we did not have an opinion, or the belief, that this was the process in which we believe.
Senator Andreychuk: I believe it follows in that sequence.
Senator DeWare: Was there another question?
Senator Andreychuk: I believe there was another question.
The Chairman: What we have next is Mr. Molloy speaking to the issue as follows:
Mr. Molloy: Under the British Columbia Treaty Commission process, First Nations define their traditional territories, as the Gitanyow did and the Gitxsan, did and we were negotiating based on the territories that they described. We recognized that there is a overlap issue between the Gitxsan and the Gitanyow and the Nisga'a. That is why we put in those three sections.
There, he is referring to sections 33 to 35. He goes on to state:
That is also why, over a period of time, we tried to bring the parties together.
Mr. Molloy then goes on:
Mr. Molloy: With respect to the area where there is overlap, we have provided the rights to the Nisga'a in respect of matters that are affecting them. It is their wildlife rights that they are managing in the wildlife area, and it is their hunt and so on. We are not dealing with other people's rights. There is no reason in the world that other rights cannot be negotiated in that overlap area with the Gitanyow and the Gitxsan.
Senator St. Germain then asks: "What about the fee simple?" Mr. Molloy answers that question. I then say, "Senator Andreychuk, are you done?" Senator Andreychuk says, "I have just one more question." And the question is not too long. Mr. Nault answers it. It is a question on a reference that Mr. Estey gave in his evidence. There is then more testimony between Senator Andreychuk and Mr. Nault. The last sentence states:
Mr. Nault: … I would not be prepared to wait until the courts decide for us because we would then go back to the same problem we have had for a number of years, namely, letting the court define "political relationship." Let us define a relationship that needs to be done in a modern context by us, as parliamentarians.
I have several pages that seem to be knit together. I think you got your answer on the record, namely, that the minister believes that the lands do belong to the Nisga'a, based on the evidence that was submitted to the department.
Senator Andreychuk: My difficulty is that I have a recollection of slightly different questioning than just this point. I do not know what your page is, but it fits into page 34 and on to page 35 such that I am wondering whether it is complete. That is why I was asking for that reassurance.
The Chairman: I will say that it is it is not, in my view, appropriate that, on one or two senators' recollections that are vaguely different, that the committee stop its work. There are two remedies for the senators who are dissatisfied: one is a question of privilege in the Senate and the other is debate on third reading.
Senator Tkachuk: Before we got into this general discussion that we just completed, I was there when Senator Andreychuk was questioning the minister. The question was put that lands agreed to in this agreement were those of the Nisga'a and he said "Yes." There was then another question.
I do not know whether they changed the blues in the minister's office -- I do not think so -- but that is not what happened there or, at least, it does not follow that that is what happened.
The Chairman: I am bound to see the record and ask Senator Andreychuk what is missing. She told us what she thought was missing. I believe it is there. She has her answer. If her question to the minister was, "Do you agree that these are Nisga'a lands", he made it very clear that that is his view.
Senator Rompkey: There are no blues, as I understand it, for electronic transcript. All we get in committee work is an electronic record, unedited. If you were to wait for the final Hansard, it could be weeks down the road. I understand that committee Hansards are the last thing that we get. The priority is with he Hansard in the chamber. If you were to see the actual record that has been edited by the Hansard staff, it would be weeks down the road. That means that this committee's work would be hung up for weeks.
In 27 years, I have never seen committee work interrupted by means of an electronic Hansard question. As in all discussions, we bring our questions, we get our answers and we make up our minds individually as to what we believe. This is an unusual occurrence for me; I have never encountered it before. I agree with the position that the chair has taken.
Senator St. Germain: Mr. Chairman, in the spirit of getting on with the program, I would ask the clerk to pursue the CPAC tape and make it available. I have talked to Senator Andreychuk. She can speak for herself, but if she is correct, then she could bring up the point of privilege in the Senate and we will deal with it in that manner. How is that?
(TAKE 1830 follows, The Chairman: That is acceptable. That is my view of how to proceed...)
The Chairman: That is acceptable, thank you. That is my view of how to proceed.
Senator Andreychuk: Mr. Chairman, I just want to put this on the record. It may not have been brought up in 27 years, as Senator Rompkey says, but if a senator feels that there was a certain line of questioning -- I want to be absolutely certain, before I use the evidence before me as full and complete, that in fact it actually is. I do not want to taint anyone or their judgment, particularly a minister, until I am absolutely certain that I have the record full and complete. What I was asking for was to be assured that the record is full and complete. I think that is a request that has been made before, and is properly made at this time.
The Chairman: The Senate provides these electronic transcripts for the convenience of the senators. The clerk has advised me that he will review the CPAC transcript with the electronic transcript and compare the two and show the comparison to Senator Andreychuk. He hopes to do this sometime in the next 24 hours.
Senator Andreychuk: I want to make another statement on that fact. We sat in almost deplorable conditions on Wednesday night in this room, with the heat and the length of the hearings, and then we proceeded immediately into the full-length day. It was not the usual hearings that we have in this Senate. I know some senators had to leave because it was too difficult for them to sit through.
I sat through it all, and I want to be absolutely certain that it was complete. There was also a lot of back and forth and questions being put to other questioners, et cetera, so it was not as clear-cut in my mind, and I wish to be absolutely certain.
It is not to cast aspersions on anyone, certainly not from my point of view, but electronic equipment fails as human beings fail, and I want to be absolutely certain before I take what I call a very momentous step in this process. This is not a bill, as you have pointed out, that is amendable. It is a very significant piece of legislation, and I do not take it lightly.
The Chairman: I think no one here takes it lightly, and we will try to complete the electronic record of your cross-examination at the earliest time. The clerk has it as his first priority.
I would like to say anecdotally that there was a time in the Senate -- and I think, Senator Andreychuk, you might have been here, although you are a bit young -- when the Hansards could not be produced the next day, and there were days when the Senate sat and Hansards were three and four days late. The precedent set in the Senate that I recall was that following a question of privilege there was ruling that said the Senate's business and public business moves on whether there is a Hansard there or not.
However, we have agreed to proceed, so let us do it and your rights are held in reserve.
We will proceed to clause-by-clause consideration of Bill C-9, to give effect to the Nisga'a Final Agreement.
In the customary way, I would propose that the preamble stand postponed, that the title stand postponed, that clause 1 stand postponed. I am following our normal custom for clause-by-clause approval. Is that agreed?
Hon. Senators: Agreed.
The Chairman: Then we move to clause 2 of the bill, and this is the definitions clause, interpretation.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 3 refers to the Constitution Act, 1982.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 4, the Nisga'a Final Agreement, rights and duties and saving clause.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 5, the Nisga'a Final Agreement is binding on and can be relied on by all persons, agreement binding.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 6, the conflict between agreement and laws.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 7 is next. Need I read them all or can I carry them all? With the unanimous consent of the committee, I do not have to read these paragraphs, paragraph by paragraph. Would that be agreeable?
Senator Tkachuk: Instead of going clause by clause?
The Chairman: Shall all clauses carry save and except the preamble, the title and clause 1, or would you like me to go clause by clause?
Senator Tkachuk: On division.
The Chairman: Thank you. We will move, then, to the preamble.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: The bill is carried.
Now we move to the question of observations. I have circulated a document with an observation that some senators are prepared to support. Should we discuss our observations? Is there any senator who wishes to lead off?
May I propose that we meet in camera to discuss our observations, or is there no interest in the committee in any observation, just the bill to be carried on division?
Senator Rompkey: By "observations", do you mean the paragraph that we discussed earlier today?
The Chairman: This is correct.
Senator Rompkey: That would have the force, as I understand it, of recommending that the federal government pursue the overlap issues and that these be resolved to the satisfaction of the First Nations concerned. I certainly can support that myself.
The Chairman: I see no need to have this in camera. Perhaps I could read the observation that was tabled, and consider it tabled now on our part.
During the course of its hearings on Bill C-9, your Committee heard testimony concerning the potential impact of the Nisga'a Final Agreement on unresolved overlapping land claims of the Gitxsan and Gitanyow Nations in the Nass Valley region of northern British Columbia. Your Committee recognizes that the parties have attempted to address this question by including provisions in the Nisga'a Final Agreement that aim to preserve and protect the rights of Aboriginal peoples other than members of the Nisga'a Nation. Your Committee is nevertheless deeply concerned about the implications of outstanding overlap issues, not only in relation to the Nisga'a and neighbouring First Nations, but also in the broader context of the ongoing British Columbia treaty process involving over 50 First Nations. Your Committee therefore strongly urges the federal government and its negotiating partners to vigorously pursue...
That is a split infinitive; we may change that.
…all means at their disposal to ensure that overlap issues are resolved to the satisfaction of concerned First Nations prior to the conclusion of future land claim agreements.
Is there any discussion or comment with respect to that observation?
Senator Pearson: I support it.
The Chairman: Would you move that the observation be included in the report of the committee as I have read?
Senator Pearson: Yes. I so move.
The Chairman: Is there any further discussion? No?
Senator Tkachuk: I have a point of order. We voted on this on division, but it is five and five.
The Chairman: You said, "On division," and therefore it was carried on division. You are a little late in the day to raise that issue.
Senator Tkachuk: It is okay. I just wanted to make a point.
The Chairman: I miss you, Senator Tkachuk. I enjoyed you so much in the Banking Committee. You keep a chairman on his toes.
Senator Tkachuk: Since it is really important to the government side, I just thought you would have your full contingent here.
(take 1840 follows, The Chairman: There is a procedure for voting on the overlap…)
36169/Aboriginal/March 28, 2000
The Chairman: There is a procedure for voting on the overlap which allows me to vote. I have to announce it before a vote is taken, or at the same time. I will ask those who support the observation being included to raise their hands. Any opposed? Therefore it is carried.
Senator St. Germain: I would like to abstain.
Senator Tkachuk: I would too.
The Chairman: How many abstentions are there? Four. Is it agreed that the motion to report the bill to the Senate with the proposed observation be carried?
Some Hon. Senators: Agreed.
The Chairman: On division? On division.
There being no further business, I thank all members of the committee for their undoubted service. Many of us have been here throughout. My deputy chair has been here from the beginning to the end, and he has been very actively engaged in the debate of the issues, as have other senators. I think it is the finish of a work as a committee. We report to the Senate, and what happens in the Senate will undoubtedly be of much interest. Thank you very much.
Senator St. Germain: I wish to thank you, Mr. Chairman. It is a very difficult piece of legislation, a very difficult issue, very complex and historical in many ways. I know that during the course of the debate you indicated that you had given especially me a lot of time for questioning. I wish to thank you personally for having given me that opportunity. As I said earlier, I would have gladly relinquished my questioning position to other members, but it seemed that I had more interest. Basically being from British Columbia, I would like this resolved. There is no question my concern about the overlap is first and foremost. I will be pursuing it in whatever way I possibly can in the Senate. I thank you for your understanding and patience and, hopefully it will be a better day for our native people right across Canada.
The Chairman: Thank you very much. I believe it will be a better day. You and I both come from British Columbia, Senator St. Germain, and we understand how deeply significant this in our province and, I believe, in other parts of Canada in time.
Thank you, honourable senators.
The committee adjourned.
THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES OTTAWA, Thursday, March 23, 2000.
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, to give effect to the Nisga'a Final Agreement, met this day at 9:00 a.m. to give consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
(Take 0900 begins--The Chairman)
The Chairman: We have a quorum of senators. Our order of business is to continue with the appearance of Glen Williams, Chief Negotiator for the Gitanyow Hereditary Chiefs. Mr. Williams will be assisted by his counsel.
Mr. Peter Hutchins, Chief and Legal Advisor, Gitanyow Hereditary Chiefs: Thank you Mr. Chairman, Honourable Senators. Last evening, we gave you a list of items that are covered in the brief. We believe these items are of considerable importance, not only for this particular bill that is under study by the committee, but also for the modern treaty process itself. I will begin with that particular subject, which is dealt with briefly in the Gitanyow submission.
There are structural, or systemic, problems in the modern treaty process, and in our opinion, the process is in big trouble. There are numerous examples of problems across the country. We can further explore these during questions later. Some of the problems that we see and that we have identified in the brief are as follows:
First, the failure of Canada and the provinces in the process to deal with the practical issues of overlap, not just the strict extinguishment of rights, but rather, the exercise of the rights and the frustration of that exercise that Glen Williams mentioned that last evening.
Second, there is a tendency to identify one aboriginal group, or one aboriginal people, and to proceed with that people whatever the cost to the neighbours. There are various reasons why this is done. We have referred in the brief, to the first-come first-served principle that we see across the country. For whatever reason, if one aboriginal group is in a position to start negotiating, the federal government tends to latch on to that, proceed with them, and ignore the problems of others, or stonewall people who are trying to get into the process.
There is a place of residence test that seems crazy when you think of traditional territories and provinces. Take the position in Newfoundland, for example, where you cannot possibly have aboriginal rights or title in Newfoundland if you do not live there. There is the question of who is best organized and financed. There is also the question of external political considerations that were touched on last night. That is a problem as well.
Third, there is a tendency to hide behind standard non-derogation provisions. I am certain that you have heard this mentioned during your study of the bill. The federal government seems to believe that as long as you put something in the treaty that implies, "Do not worry, other people's rights are not affected", then everything is taken care of, all the problems are solved, and you can do anything you want and say anything you want in the treaty instrument.
Well, it just does not work like that in the real world. In consideration of the non-derogation provisions in the Nisga'a treaty, you will notice that section 33 is basically redundant because it suggests that we are not extinguishing aboriginal rights and title. Since 1982, you have not been able to do that without Gitanyow consent.
Section 34 is an invitation to litigate and therefore does not seem exactly on all fours with the directions of the Supreme Court of Canada to try to negotiate, not litigate.
Section 35 is an interesting opening and should be explored but it is a little vague. It states that if treaties with other aboriginal peoples are concluded, or are in conflict, or incompatible, something will be done. Will that happen? Is the Government of Canada committed to negotiating those substantive treaties?
Fourth, is the tendency to treat treaty-making as a political matter and not rights-based. We hear this coming from the BC treaty process that it is discretionary and political. That is hard to take for an aboriginal people who are negotiating an instrument that is to secure and recognize aboriginal title and aboriginal rights into the future.
For all those reasons, and many more, there is a problem across this land with the way modern treaties are being negotiated by the Government of Canada and the provinces, and this is one good example.
Last night I dealt with what the courts have said. The Luuxhon judgment is interesting and important, and is under appeal. The other matter that I mentioned last night is that there are two parts to that appeal. The first one before the courts is whether there is a duty to negotiate in good faith, and the second one, which has not yet been argued, is whether Canada has breached that duty. There were suggestions from the senators that, perhaps, the judge in this case had said that Canada has conducted treaty negotiations in a manner of sharp dealing and bad faith. That has not actually been determined yet. Justice Williamson said that there is a legal obligation to negotiate in good faith, and that seems to have certain content that includes no sharp dealing. We must decide whether or not there is a breach.
We put forward several solutions in the brief. We refer to the James Bay and Northern Quebec Agreement that sets a precedent in that very complicated overlaps that involve three aboriginal peoples, were negotiated and included in the treaty.
The treaty did not say that it would be dealt with it later somehow. The parties actually dealt with it. That is important.
I will mention the James Bay Agreements, because I am sure someone will. The James Bay Agreement, not the agreement itself but the bill, but the federal bill bringing it into force, did extinguish the rights of certain third party aboriginal peoples. That was the solution of the federal government in 1975 to these complicated matters. We are well beyond that.
It was in the context of a period where Parliament purported to be able to extinguish these rights, and every one was under threat. I can tell you that the James Bay Cree and the Inuit of Quebec did not support that. They did not want it. The federal government and Quebec absolutely insisted. That was the context.
We are pointing you the provisions in the James Bay agreement that deal with joint management between the Crees, Inuit ands Naskape, joint sharing of territory, and reciprocal rights. It was complicated, but it can be done. In that instance, it was done in two to three years. It did not take 17 years.
There has been in the last 25 years, virtually no litigation between those parties. There has been plenty of litigation with Canada, but those three parties have lived with that arrangement. Thus, it can be done.
Gitanyow have attempted to put forward practical solutions during this process. You will find that in appendix 5 of the brief where the Gitanyow put forward proposals for joint management and various other matters.
Finally, we come to the amendments that we are suggesting for the bill. I gave to the clerk copies of the proposed amendments this morning. They basically reflect what is already in our brief.
If I may just comment on it, to explain, there are essentially two types of amendment. I do not know if honourable senators have this in front of them. It is a two-page document.
Senator Grafstein: Entitled "Gitanyow Heriditary Chiefs, Proposed Amendments to Bill C-9"?
Mr. Hutchins: That is correct. The first grouping of amendments deal with non-derogation. We are proposing, as I think I mentioned last night, to simply take the non-derogation provisions in the Nisga'a treaty and put them into this bill. In other words, have Parliament explicitly acknowledge and direct in regard to that matter. Thus, 20A, 20B, and 20C are the non-derogation provisions from the Nisga'a treaty, 33, 34, 35, with their imperfections. We are at a point now where we are trying to suggest certain minimal measures to mitigate the impact.
Amendment 20D is a new one, but was in our brief and we talked about it last night. That is an amendment simply to direct the Government of Canada not to invoke the Nisga'a treaty as a reason for not concluding with other aboriginal peoples comprehensive treaties. That, as far as we are concerned, is what section 35 of the Nisga'a treaty says. It would be important, and it is certainly reasonable, to have a clarification in that regard.
We suggest suspension of the coming into force of certain provisions of the treaty pending either a settlement between the parties as to how overlaps are to be dealt with or the conclusion of a final Gitanyow treaty. It should be understood that Canada and B.C., for the last three or four years, have undertaken to the Gitanyow to accelerate the treaty process and bring it into synchronization with the Nisga'a treaty process. It did not happen. We are faced with a treaty that is about to be, presumably, ratified by Parliament and the Gitanyow are still working towards an AIP.
Finally, we suggest in the brief that this committee, the Senate of Canada, send clear directions to Canada to make representations and to give undertakings to Gitanyow and to the other Nisga'a neighbours that section 35 of the Nisga'a treaty says what we believe it says. That is, there should be clear message that not in the unlikely event that a treaty with the neighbours is concluded that might conflict, Canada remains committed to negotiate comprehensive treaties and to make the adjustments to the Nisga'a treaty if necessary as provided in section 35 of the Nisga'a treaty. That is very important. I do not think that Canada should be allowed to hide behind language that ends up being essentially empty language.
Senators, that would conclude the brief summary of our submissions. Mr. Williams and I welcome questions. Thank you.
The Chairman: Thank you, Mr. Hutchins. I will ask senators for questions. I usually turn to Senator St. Germain on overlap issues. Are you ready to go?
Senator St. Germain: I hope you guys are with me this morning.
First, Mr. Chairman, as you have quite adeptly pointed out, my real concern about this legislation has been the overlap situation. First, I must complement the Nisga'a on being excellent negotiators. Based on the way they negotiated this agreement, I believe that they will provide excellent governance, at least those that are here today, for the Nisga'a people.
If we look at what Mr. Sterritt asked us to look at last night regarding the tribal boundaries in the watershed, the original claim that was put in by Mr. Calder, who happens to be a distinguished British Columbian and with us today, the Nisga'a land claim area was a certain size and has grown to over twice as large as the original claim that was put in 1969, I gather. It is quite a bit larger than the Nisga'a petition of 1913, also.
Obviously, our government negotiators either were out-negotiated by the Nisga'a, or there is something here that we still have not learned, Mr. Chairman. I hope before these hearings are over that fairness will be brought to the fore.
My question will be to Mr. Williams. Is it true that at the negotiating table, that the government negotiators had said that they would refuse to negotiate with the Gitanyow once a land deal was negotiated with the Nisga'a? Is that correct? Can you explain why this would have been said?
Mr. Glen Williams, Chief Negotiator Greg Rush, Treaty Negotiator Harry Daniel: The government has indicated to us that they want to continue to negotiate. The government negotiators at our table have been very clear to us, both governments, they will not touch and they will not amend the Nisga'a Final Agreement. In fact, when they delivered the offer in October, November 29, that offer was deliberately designed in such a way as to not touch the Nisga'a Final Agreement or make any amendments to it.
Senator St. Germain: You stated in your testimony, I believe last evening, Mr. Williams, that you concurred fully with the position taken by Mr. Sterritt. Is that correct?
Mr. Williams: On?
Senator St. Germain: In regards to his description of traditional lands of Gitanyow, Gitxsan, and the Nisga'a. Is that correct? I am not trying to put words in your mouth, if that is not correct. Is it close to being correct?
Mr. Williams: I have been on that territory. I have been on the boundary nearly every year. We have cabins in our territory on the Lower Cranberry. I have been up in Maziadin. My grandfather and mother grew up at Maziadin Lake. We have numerous cabins and fishing sites on there. I talked for a number of years with our elders, and I totally agree with what Mr. Sterritt said yet.
All the evidence, the maps that he provided, the clarification on the Calder map, the petition of 1913, yes, I agree with him fully.
Senator St. Germain: Do you also agree with the statement he made that this was driven by a political agenda by the then-premier of British Columbia?
Mr. Williams: I fully agreed with Mr. Sterritt when he stated it was driven by Mr. Clark.
Senator St. Germain: You have been the head negotiator for considerable years for the Gitanyow nation. In your negotiations, were you there when Tom Molloy, the head negotiator for the federal government, was also negotiating land claims on behalf of yourselves, the Gitanyow, and the Gitxsan?
Mr. Williams: Yes, I was.
Senator St. Germain: Do you feel that Mr. Molloy would have had information, in being moved to the Nisga'a table, for negotiations that would have put him in conflict, that would put your people at a disadvantage and give the Nisga'a an advantage, by having someone that had information and confidences, possibly, that you would have shared with him, that he would have been able to take to the other table and use against you?
Mr. Williams: I would have to agree. We have had numerous discussions with Mr. Molloy, briefing him with our concern at almost every meeting that we had with provincial and federal government representatives. We made sure that we alerted them about our concerns regarding the fact that there were negotiations going on and that they may include parts of our territory.
Yes, Mr. Molloy was there. He was well aware of our territory. The federal government and BC Treaty Commission confirmed to us when we submitted our statement of intent map, they accepted that. They agreed to a framework agreement with us.
Yes, I would agree that Mr. Molloy would be in a conflict.
Senator St. Germain: Honourable senators, I want to couch my words, because we have more evidence to hear. The fee simples that have been granted -- and I have spoken to Earl Muldoe, who is Delgamuukw, basically, and also to the Gitanyow, and the strategic fee simples that have been granted on the management lands look very close to being, I was about to say "sinister" in the way that they have been strategically chosen. It makes it impossible in some ways to resolve future land claims with the neighbours of the Nisga'a.
Can you explain these fee simples? They are in the Gitanyow, the blue outline here is the Gitanyow, and there are five. They all seem to be in strategic locations.
This is the one on Kwinageese Lake, which Mr. Muldoe or Delgamuukw pointed out was where his particular cabin is and which is the disputed area of the Gitxsan. The area circled in the blue here where the five fee simples are is the area of the Gitanyow.
I do not want to put words in your mouth. I look at this, and I look back then at the original claim. I compliment again the Nisga'a on being excellent negotiators. It seems as if it is either going to be bound up in litigation for 1,000 years or else it will never be resolved in a suitable fashion. Have you any comments on that?
The Chairman: This is your last question, Senator St.-Germain.
Senator St. Germain: Is it going too well?
The Chairman: You have colleagues who also have the right to ask questions.
Mr. Williams: My understanding of the fee simple sites and what we have been informed is that there was a study conducted by our neighbours and government to look at the highest and best use lands in what they indicated was their land claim area. There were 75 sites that were identified, and five of those sites are in our territory.
If you look at the area up in the Kinskuch area, in Jade Lake, I believe there are two fee simple sites. There is a huge back country recreation tenure along with those two fee simple sites. You can look at the Meziadin area; the fee simple site they identified earlier was right in our own traditional village that we had there at one time. That has since been moved.
There is another fee simple site on the lower Nass or along Highway 37 which has now been moved to Grizzly Lake. Those are business opportunities.
Senator St. Germain: Is this Grizzly Bear Lake?
Mr. Williams: Those are our understanding of what was the highest and best use lands identified.
Senator Andreychuk: I want to be sure this is correct. You indicated that either the government negotiators or government officials have said to you that they will not negotiate anything that is the subject matter of the Nisga'a agreement.
Mr. Williams: That is correct.
Senator Andreychuk: Does that include, therefore, the disputed part of the lands? Have they addressed that directly in any way?
Mr. Williams: There is a small area of the Nisga'a core lands or settlement lands that impact right on the boundary. They have indicated to us that they will not change that part of that core land that impacts or that includes our fishery. They have indicated that. We had a major interest in that area.
They indicated they will not change the management area for wildlife or the fishery wildlife management area. They indicated that we could work together on that particular area.
The question was, how do we work together? How do you envision that operating on the territory when you have undefined rights of the Gitanyow versus the constitutionally protected treaty rights? Please explain to us how you envision that working and how we can capture that into an agreement that we may negotiate with you? They could not explain that answer.
Senator Andreychuk: When you say "they"...
Mr. Williams: The government negotiators.
Senator Andreychuk: Who were they at that time?
Mr. Williams: That would be the chief negotiators for the federal government and the province.
Senator Andreychuk: You indicated that Mr. Molloy at one point was your negotiator, then he was no longer negotiating for you. Can you tell us how you came to know he was no longer your negotiator?
Mr. Williams: There was an announcement made by Canada that he was now appointed to the Nisga'a table.
The Chairman: If I may, for clarification, Mr. Molloy has always acted for the Crown. He was never acting for any aboriginal community.
Senator Andreychuk: I appreciate that. I used my words loosely. I want to know how they found out Mr. Molloy was no longer negotiating on behalf of the Crown with them. You say you found out from an announcement?
Mr. Williams: Yes, an announcement.
Senator Andreychuk: In the Nisga'a agreement, the disputed lands -- and we spent some time yesterday in the heat here talking about that -- if they are not successful in retaining those lands, they will get some compensation. Have there been any discussions with the federal government about what happens to you if you are successful in regaining those disputed lands? That is one situation. If you do not regain then, is there any discussion about compensation for you?
Are you being provided any resources, both financial and otherwise, to pursue this disputed land?
Mr. Williams: We have not been provided the resources. We have tried over the last several years to get resources. We inherited the problem, and we were always willing to attempt to bring it to the attention of government and our neighbours to engage in a process to attempt to work this out. It was borrowed money that we had from a process that enabled us to attempt to bring this to the attention of government. It was our own resources.
Senator Grafstein: I am curious about a question that has not arisen but is referenced in appendix 11 of your submission. I will read you this and perhaps you can just give us a brief comment. This has been of particular interest to me in these hearings. You say in section 7:
Our model, has been presented to both the federal and provincial negotiators and politicians is one based on recognition of aboriginal rights, title and governance and a reconciliation of this with the rights and interests of non-aboriginal Canadians.
What is your position on minority rights for non-Gitanyow on Gitanyow lands? What is your position? For the purposes of the record, what is the recognition of minority rights for those who are non-Gitanyow on Gitanyow lands.
Mr. Williams: We are in the process of developing some internal laws, getting to that particular point that you are raising, on how we look at our traditional laws and how we look at the Canadian law, the Charter of Rights, and the democratic principle. We are just getting to that point in our internal discussions and part of our negotiations to advance that. We are looking to accommodate those interests and identify exactly what minority rights interests would be. We want to capture that and involve the Charter of Rights and Freedoms and the principles of democracy. For the time being, without having that yet, those people are accommodated in our system now.
Senator Grafstein: How?
Mr. Williams: We mentioned yesterday that we have house groups. A lot of these people that are not Gitanyow, that may be Cree or non-aboriginal people, are accommodated in our Feast hall. They are given names, not very high names, but they are built in and a part of a decision making body for that particular house. Certain privileged rights apply to them.
Senator Grafstein: Privileged rights?
Mr. Williams: Yes, privileged rights.
Senator Grafstein: Effectively, you have not come to grips yet with the question of equality of rights for Gitanyow and residents who are not Gitanyow on Gitanyow lands.
Mr. Williams: We are working on that in our traditional system, as I explained, we accommodate people like that.
Senator Grafstein: Let me deal were another topic of your amendments. Item 20 (a) is the law any way, is not? We do not have to provide an amendment for that. Is that not the law in any event?
Mr. Hutchins: Senator, I mentioned that when I was going through the three provisions in the Nisga'a treaty, 33, 34 and 35, that yes, in effect, 33 is redundant. It is the law, to the extent Gitanyow have aboriginal rights, not treaty rights yet, they are entrenched.
Senator Grafstein: Item 20 (b) is the law. Is it not? We do not have to say for greater certainty, this is the law. Is this not the existing law?
Mr. Hutchins: Certainly, anyone can go to court. I assume that the parties put this into the treaty probably with respect to (a), the provision will operate and have effect to the extent it does not adversely affect those rates, to clarify during a court challenge what the ongoing situation is.
Senator Grafstein: I do not mean to cut you off. I am just trying to get a fundamental understanding of it. I read this, and say that is interesting. That is the law. I do not know why, whether one agrees with the treaty process or not, one has to put a gloss on the law that already exists that the law. Items 20 (a) and 20 (b) seem to be the law. We can incorporate the law by a whole appendix, but the law is the law. Why should we further complicate our life? I would like to get to the real substantive. Do not tell me what the law is for greater certainty. Tell me what it is that is different in your amendments.
For instance, 20 (c) seems to me to be a little different. It seems to say that an aboriginal nation can make a claim as Senator Tkachuk says for greater lands, and then receive less than greater lands and compensation for the greater claim. This seems to be a reiteration of that principal. Is that what you are saying in 20 (c)?
Mr. Hutchins: First, 20 (a), (b) and (c) are word for word from the Nisga'a treaty, with the exemption that the treaty reads "this agreement" and we put "the Nisga'a Final Agreement". We are replicating those. In fairness to the parties, we are negotiating presumably as a package, the three should go in.
Items 35, 20 (c) reflects paragraph 35 of the treaty. That is different. That is an idea, and as I said, senator, we read 35 as a commitment by Canada and by British Columbia, incidentally, to the Nisga'a neighbours, to negotiate treaties with them and not to invoke the Nisga'a treaty as a bar, as a reason not to conclude comprehensive treaties. That is the way we read it. We think that it would be important for the Parliament of Canada to put that into the bill. We think, also, it is important for Canada to confirm that clearly to the Gitanyow and the other neighbours by way of a letter or other means. That is important. It is not just repeating the law. It is an important idea.
The Chairman: It may be a question to the minister when he is here. I am sure that would interest you. Thank very much. Senator Grafstein.
Senator Grafstein: One last question. I take it, I heard it all, but really, the heart of your objection is 27.2 and 27.3, which essentially says to not proclaim until the overlap is settled.
Mr. Hutchins: Yes. Items 27.2 and 27.3 deal with the idea of suspending not the entire treaty, but parts of the treaty that impact on the Gitanyow and the other neighbours, but we are here representing the Gitanyow. There is a great deal of that treaty that can be brought into effect. As Glen Williams has said and Neil Sterritt has said, this is not an initiative to block the Nisga'a treaty holus-bolus, and stop it. It is to say, let them immediately have the benefits of their treaty, to the extent that those do not impact adversely on the neighbours, suspend the provisions of the treaty that do impact on the neighbours, until such time as there is a chance to deal with the overlap or that Canada has come true with its commitment under section 35 and negotiated a comprehensive treaty with the neighbours, in this instance, the Gitanyow.
The Chairman: Thank you very much.
Senator Gill: I would like to ask a question regarding the James Bay. If you do not mind, I will go in French.
(Take 0940 Follows - Senator Gill: Il est important...)(French follows)
(après anglais) Le sénateur Gill continuing:
Il est important de clarifier le fait que les négociations entre les instances fédérale, provinciale et autochtone pour la Convention de la Baie-James, qui ont eu lieu entre les années 1970 et 1975, se sont tenues dans un contexte différent. Il y avait eu extinction de droits au préalable. C'est différent du contexte actuel des négociations.
(Mr. Huhchin: The question was dealing with the climate if you will or the context of négocations of the James Bay Agreement...)
(anglais suit)
(Following French--Take 0940--Mr. Hutchins)
Mr. Hutchins: In respect of the climate, or the context, of the negotiations of the James Bay agreement in 1975, there was not an extinguishment already in place. However, there was a threat of extinguishment through the Parliament of Canada if the James Bay Crees and the Inuit of Quebec did not come to an agreement. That agreement was negotiated in the light of James Bay One, the first major hydro electric project, and in the light of an injunction that the Crees and Inuit had obtained.
To a certain extent, the James Bay agreement was a settlement out of court. However, the threat hung over the table that, if there was not an arrangement, or an agreement, the solution would be provided by the government of Canada. That solution was to ask Parliament to extinguish the rights.
Parliament, at that point, purported to have that authority. Those were the conditions under which the parties negotiated the James Bay agreement.
Senator Gill: I have a question for Chief Williams. Thus far, the Indian bands or aboriginal people can negotiate and sign contracts, but, according to the Indian Act, there must be endorsement, as a chief or a band, by the Minister of Indian Affairs in all instances. Perhaps some are signing agreements without the endorsement of the minister, but according to the Indian Act, that is illegal.
For most of the aboriginal people who have been negotiating, their purpose is to provide the opportunity to make decisions in respect of their destiny and future. Much of this can be articulated differently, but I believe that most of the bands are looking for the capacity to do things for themselves and for their people.
If you are in a position to negotiate with other nations without Indian Affairs or non-aboriginal people as a co-signature or a referee, do you think that it would be possible for the aboriginal people to come to an agreement? What is your feeling on that?
Mr. Williams: I believe we can, and we have attempted to do that over the last two decades. We have tried to identify specific problems and issues and create solutions without the involvement of government. Certainly, I think that that is possible. However, there must be a level playing field for both parties. The current situation involves attempted negotiations, interim agreements that were in place in the early 1990s, and an agreement in principle in 1996 and 1998 that compels all parties not to amend a particular agreement. Despite all of this, I believe that it is possible. We have had agreements with our neighbours, the Gitxsan, and some understanding in certain areas, but there has to be a level playing field.
The Chairman: Thank you.
Senator Lawson: Mr. Chairman, I have an extension to Senator Andreychuk's earlier question. Mr. Williams, we understand that under the treaty, if you mount a claim for the return of your lands against the Nisga'a and are you successful, the Nisga'a will be compensated in cash or kind. However, we did not hear your answer. What happens if you are unsuccessful in mounting a legal challenge and you do not get your lands and they are lost forever? Has any undertaking been given to you by the government or anyone as to how they will compensate you or the Gitanyow?
Mr. Williams: Our people, as I said yesterday, are there on the lands. We relied on that territory for our food, for fishing and for hunting. We have cabins and smoke houses out there, and we have the Gitxsan aboriginal law playing out on that territory. There will be a clash between the Nisga'a treaty right and the Gitanyow undefined right. The Gitanyow yoke, or the law, has been there for thousands of years. We pay great money to hold traditional names. In respect of the poles that I referred to yesterday, one house group and a chief may invest up to $100,000 to erect that pole. My grandfather and our elders have always said that the territory is like a bank to us, and like a table where we get our food. What will happen? Our people are very committed and determined to continue to uphold the system that we have and the law that we have on the territory. We will probably be forced off the territory, and we will probably be charged and restrained from continued access to the territory. Again, there will be confusion on the territory as to whose rights will play out first on the ground.
Senator Lawson: Specifically, you have been given no undertaking from the federal government for compensation if you loose your lands.
Mr. Williams: We have been given no compensation from the federal government.
Senator Lawson: Why would you be treated differently from the Nisga'a? If we are talking about fairness and application throughout the whole treaty, on which the whole system is supposed to be based, why would you not be given the same undertakings that the Nisga'a received?
Mr. Williams: I do not know.
Senator Lawson: I do not either.
Senator St. Germain: It appears that it is aboriginal minority rights that are in the process of being trampled on. My colleagues are sensitive to these rights, as is Senator Chalifoux, because of their direct involvement in relationships with natives, or being native or part native. This sensitivity dictates that we must explore all the aspects of, what appears to be, the will of the government of British Columbia, to force something through at the expense of the Gitanyow and the Gitxsan.
To me, in all fairness, this is the most egregious error possible that could be part of the process. I should like to have that prerogative. I now ask Mr. Williams and the Chairman and the committee members whether it would be possible to have the witnesses reappear on the basis of the importance of the situation.
In the emotions of this meeting, people said things before understanding the whole process, and before fully understanding some of the issues that we, as British Columbians, knew firsthand. Mr. Williams, is there anything that you would like to tell the senators at this time? Mr. Chairman, would you like to rule on that as to whether or not we can have them back?
The Chairman: Let us defer that to the evidence of all the other witnesses, and then we will take a decision.
(Take 0950 follows--The Chair continuing: The Gitanyow have been...)
(TK 0940 ENDS--The Chairman continuing--Then we will take a decision.)
The Gitanyow have been before us for a hour and three-quarters. This is the longest appearance by any witness. I agree that the issue is one of great interest to senators, but I believe we have heard their submission in full.
I am quite willing to defer the issue to a future time. If they want to come back after they have heard the minister and Mr. Molloy and other witnesses, , they can advise me at that time.
Senator St. Germain: Will you make this decision arbitrarily or will the committee make the decision?
The Chairman: I am always subject to the committee's wishes. I resent the suggestion that I would act arbitrarily. I am getting quite a temperature at your interventions because we have given you hours of time compared to every other senator. You have virtually questioned about as much as all the other senators put together. I do not think I deserve an accusation that I am not treating you fairly.
Senator St. Germain: I apologize if that is the situation, but I do not believe that an issue so important to British Columbia and to Canada should be restricted by a time allocation decided by you or by the government.
The Chairman: No, you should decide it.
Senator St. Germain: We should decide it. That is what I am saying. I appreciate the fact you have given me the time to question, sir.
The Chairman: This committee has business to do. Senators have other issues about which they are equally passionate, Senator St. Germain. We have not denied your witnesses time for examination.
Senator St. Germain: They are not my witnesses. They are our witnesses.
The Chairman: You have had every opportunity to make your case.
Senator Chalifoux: Point of order. We are wasting time in the debates and arguments between the chair and the deputy chair. I would rather hear the witnesses. Thank you.
Senator Grafstein: Mr. Chairman, as a non-voting member of the committee, I want the witnesses to know I found the evidence last night and this morning very informative and very precise. It is very clear as to what the issues are. We will hear from the minister and Mr. Molloy later on and we will be able to make a judgment on factual matters. For myself, as someone that who has deep questions about this process, the evidence to my mind is becoming very clear. It is a question of credibility on some points.
We have questions of law and questions of constitutional law and questions of credibility. The witness are making the issues clear. Rather than the chair and the deputy chair debating this, I agree with Senator Chalifoux. Let us get on with it. We are here. We have witnesses and are anxious to draw other information from other witnesses.
The Chairman: Mr. Williams, I invite you to make a last comment.
Mr. Williams: Thank you for hearing us. As I said yesterday, our people at home may be small in number, but we are a people in this country. We are now at the eleventh hour before you will pass this bill. By next Friday, you will have it done. The new fiscal year is the timing chosen by this government to implement this bill. We have put forward to you our evidence to prove that we exist and that we have a territory. Our people are quite concerned. Our elders sit in silence and watch this process as it plays out. They are very concerned.
The fishery will take begin in the next few months. We are not certain if our constitutional rights will be protected. These may be undefined aboriginal rights; that is why we are pleading with you to make some minor amendments as we proposed last night and again this morning. These are very minor amendments. We would like to see Bill C-9 passed with the exception that our territory is not included in it. It is a small request to make to you today to give us calm and some certainty, to give us some peace on the ground. Thank very much.
The Chairman: Thank you, Mr. Williams and Mr. Hutchins.
We will now hear from Willard Estey. I doubt whether anyone can remember a former justice of the Supreme Court of Canada appearing before a Senate committee. I have been here 25 years and I cannot recall that.
We are very much looking forward to your appearance here. I do not know whether Senator Grafstein in this case is willing to take judicial notice of who you are. With the other witnesses, he has been asking for their background. If he feels compelled to ask you for that background, I will let him do so.
Senator Grafstein: I want to declare a former conflict of interest. Mr. Estey and I were co-counsel on a very important matter for the federal government some 30-odd years ago. That will in no way, shape or form, inhibit me from asking crucial and miserable questions.
Mr. Estey: I am afraid that contaminates you and you have a conflict of interest.
The Chairman: Please proceed.
Mr. Willard Estey: Honourable senators, you are about to be regaled by quite an informal presentation. We do not intend to try to transform this committee into a law school and a debating house discussing how the constitutional judgments of the Supreme Court and other courts really add up.
(tk 1000 follows--Estey follows--I would like to first tell you that I am not here)
(Take 1000 Begins -- Mr. Estey continuing)
I would like to first tell you that I am not here as a witness primed by some client to say whatever the client wants said. You will hear from me what I believe. I emphasize that because occasionally the press think that all lawyers at all times talk only when someone puts money in the parrot's back. That is not the case.
The second issue is that we represent a kind of rag-tag homogeny of Canadian citizens -- people who have a vested interest in the welfare of our nation. The group Canfree is not oriented in any formal way to any cause or any undertaking of which I am aware, but rather has come here with a very simple pitch. That is this: We recognize section 35 and welcome section 35. It is high time we started its implementation.
We are not here to derail anything going through this process vis-à-vis the Nisga'a and section 35, or any other provision. We simply point out the obvious, and that is that we are toying here not with a who-hit-who-accident case, or even what the Landlord and Tenant Act means, we are dealing with the backbone and nervous system of the nation of Canada. We have struggled a long time to get to this point. We have come through what the Americans had to go through a rebellion and a civil war to get. We have not had either. Perhaps we suffer from that.
We have reached a new threshold in Canada's organization. The steps of our creation can be ticked off quickly. One step was at Versailles, when Canada came out from under the British umbrella. We benefited from that umbrella, rather than being oppressed. However, the time had come to spread our wings.
The next big jump was the crisis created by the originally European conflict, World War II, where Canada really showed its muscle. The odd thing about it historically, if you look back, is that we had the stupidity, or the gall or the courage, to declare war without even phoning Washington. We have gone downhill a long way since then. We would now need to phone the New York Stock Exchange.
The essence of that is by the time we came out the other end of World War 2, we were a full-blown, large trading power on this globe. We have come a long way since in the 50 years that have gone by. Our history is one of a nation of complete balance in capacity and experience, and a financial strength, despite what we say about ourselves. If we lack any talent at all, it is the talent of bragging. We do not want any secrets let out, such as how much oil we have and how much more oil we have than OPEC, or anything like that. That is a complete breach of faith in our country.
Now we are facing something new. This is the third plateau -- section 35 in the Canadian Constitution, 1982. It is high time we activated that section, and we all welcome this process in the Senate as one important lifeline, going back to the community, as to what section 35 is all about. You will not find much about it in the newspapers.
We think that the progress to be made on behalf of Nisga'a and people in that same category can be better experienced and more quickly achieved if we do not waste our strength in fooling around with litigation and the slow process of climbing the ladder to get authoritative rulings en route to our destiny. Our destiny is to finally equate the consequences of a heavy, intense European immigration after World War I and the arrival of another great avalanche of immigrants into our country after World War II.
Our simple plea today is that there are many ways to achieve the success heralded by section 35. The best way, in our humble submission, is to get a grasp on what can be done constitutionally without furore, and what must be done only after we find out from the high court what the limitations are in the operations of section 35.
To be practical about that, it means that if we take away power from the provinces or the federal government to put into some other body -- Nisga'a being one of them, but there are many more -- then there is a change in balance of the Canadian Constitution. It is a welcome change, but it must be directed according to law. It is wasteful for us to prowl out and explore the alleys and byways. We wish to get on the highway.
It is our humble submission that the legislative process, now in the hands of this committee and the Senate, should be long enough to allow us to get the blessing, or the advice for change, to the process so fully set forth in the documentation with which you are confronted. If anything, that documentation is overpowered. We have lost sight of the main track in a flock of alleys and criss-crossing tracks going to the same destination.
Our pitch is very simple. It is so simple that it is illusory. There are at least five actions in the tube now in the British Columbia courts, all of which could lead to the advice which I am talking about. Alternatively, and in parallel to that, we have the reference power which is for the national government to invoke and not for the citizenry, such as we are.
You will appreciate that I should have said something at the start. There are three people who have come together to put the wheels on this locomotive. We have 150 years of experience amongst the three of us, in presenting the law to the courts and in deciding the law in the courts. If we are wrong, God help us, but we think we are right because we have been there before many times.
Someone phoned me a few days ago from the press. The upshot of the phone call was that we are just like all other hack lawyers, we get a big fee to come down here and spin some kind of a yarn that sounds good and then leave. The three of us decided, when we put the finishing touches on the huge amount of work done on all sides here, that we would trim this down to the essentials and everyone would sign that. This is the argument we will put forward. That gets me down to where we are going.
The simple truth of the matter about constitutional law is that it is unbelievably simple and pure, and my profession owes much to the public for cluttering it up with non-essentials. Here, all we will need to do is add together section 91 and section 92 of the old British North America Act, amended now as the Canadian Constitution. You add those together and you get 100 per cent of governmental power. The whole sovereign shebang is all there in those two sections.
In law school as we considered constitutional law to be an easy course because you only needed to learn two sections, but that was the biggest mistake I ever made in my legal life. Those two funnels come together and from that we must extract, lawfully, the power necessary to fuel the idea of section 35. That idea is simple. We have the early civilizing process of settling land and turning it into farms. We have gone through that. Now we have gone into the secondary industry, and we are heavy in trading. We have gone through that and we have innumerable treaties, and those treaties bind all parts of the nation.
(Take 1010 Follows -- Estey continuing: Anything we do here now must reflect...) (Mr. Estey: continuing.)
Anything we do here now must reflect the existence of those 40 odd treaties. It is amazing how those have flourished since we had a simple tax treaty with the United States. We have trade treaties all over the place.
There is 100 per cent sovereignty between the two sections. Section 35 causes us to weld together the original settlers, who now manage the affairs through sections 91 and 92, with the aboriginals who have been ignored for a century and a half. Their rights must now be sifted out of sections 91 and 92.
That takes me to the only rule you will hear me talk about this morning, that being the difference between delegate, derogate and abdicate. Those three verbs are all the same, according to the cases.
We suggest that the detail of the bill, the detail of the agreement appended to it, and the massive detail and studies that back it all up, must be viewed with the simple reality that we are trying to put muscle into section 35 creatures without destroying the power in sections 91 and 92, except to the extent it is found necessary, and when it is found necessary, we have to amend the act. That is no big deal. You would not do it to change a white line in the middle of a highway, but you do not have to wait until you repeal at the banking legislation. Those complexities are not encountered here.
We must now decide what part of this agreement is clearly within the bounds recognized in the Supreme Court in surveying the impact on sections 91 and 92 on section 35. That has never been before the court. It is new ground that must be explored.
Again, I think the result will be simple. Clearly, the aboriginals do not need a sealing off at the altitude of a municipality. On the other extreme, assuming that we will all continue to live in Canada, we do not wish to violate sections 91 and 92 unnecessarily in order to get the principles of section 35 off the ground. That is the delicate balance we are discussing this morning.
The way out of the woods on that, in my humble opinion, is to assign -- "assign" being a neutral word -- to the new unit sufficient domestic powers to allow it to exercise its new found existence in section 35 without abusing the provincial and federal jurisdiction under sections 91 and 92, except where necessary, and that will require an amendment.
We see no provision requiring an amendment which would attract debate. There are some obvious things that could be settled by agreement and then backed up by the amending process. However, it requires a slight lapse in time to get a judicial guideline.
By coincidence, two or three days ago fate put a newspaper in my path. Unlike most newspapers, it was quite useful. In it, the Honourable David Collenette, Minister of Transport of Canada, is reported to have said that the one-and-a-half-year delay in the merger of railway companies caused by the necessity of bringing the matter before the Surface Transportation Board in the United States is reasonable because that is a big decision. I suggest that that decision is peanuts compared to this.
Our pitch is simple. The action before the court is a motion on a point of law, not a trial, and can be fast-tracked through the courts. In case of appeal, there is not an enormous amount of evidence. The whole process can be compressed. It will not take very long. It is all practicality. It is the product of 150 years of experience of how to stick handle through the forest of the courts. We welcome that.
The minutia that falls off the main agreement is not very important. I had to read about 500 pages to discover that. What is important is the goal of section 35, and that will not be solved by battles over minutia. The question is how many sovereign powers will be disturbed in sections 91 and 92 if a minimal but successful operation in constitutional law is undertaken. I say that it will not be many. There are things in the minutia such as paramountcy. That word has given us more trouble constitutionally than any other single word in our vocabulary. It is a swamp that we do not want to get into. You do not need paramountcy unless you have legitimate conflict between equally empowered powers that collide, and that does not happen very often. Sections 91 and 92 are examples of that. The law books of the Supreme Court of Canada used to be laden with decisions on allocation of power between the federal and provincial levels. There is not much of that any more. In the United States federal system there has not been an allocation of powers appeal in the last century. We are moving into that zone of maturity.
Paramountcy can be avoided here if, in creating the government for the aboriginals, we give them, rather than something akin to a municipal structure, something akin to a province, but not akin to a nation state. It would be a horrible complication to try to operate a nation state inside the geography of Canada. There would be endless problems.
(TAKE 1020 begins here, Mr. Estey continues: That will not solve any problems...)
(Following Take 1010, Mr. Estey… geography of Canada. TAKE 1020 follows, Mr. Estey continues)
**That will not solve any problems the Nisga'a might have. What will solve their problems is to live within the federal system -- a system which Canada has made to work much better than anyone else, including the Americans. That system can accommodate section 35 with little or no problem.
We may oversimplify, Mr. Chairman, when we say that the first step is also simple. That is, put down your gavel on the legislative process of Bill C-9. Do not throw it in the waste paper basket, just adjourn the matter and, perhaps, consult with the executive branch of government to see if they want to do a reference. I do not advocate that. I would sooner see it roll through without any further political intervention. It can roll through, if the lawyers decide they will do it.
I have only a few things left to say. There is a size problem here from the Nisga'a point of view. It is a small unit with about 5,500 people, according to the information I saw. They do not have much industrial capacity on the surface in the sense of manufacturing automobiles and the geographical location is such that it will not happen tomorrow. We must take into account our treaty obligations, but a lot of them do not apply to the level of operations and the locale of operations which we have in Nisga'a. I do not think we should suffer nervous frustration worrying about theoretical library problems. Get down to the street level and solve the problems you need to get along the street.
We have prepared an 11-page typewritten document which contains the points that I have been talking about. We will leave that behind as our brief. It speaks for itself. I do not want to take the time of committee to go through it. If you have any questions that I am capable of answering, or my colleagues wish to help me answer, I would like to have them at this time.
The Chairman: Thank you very much, Mr. Estey. I have a number of people who would like to question you. Often, however, that includes comments.
Senator St. Germain: Do we need a motion to append Mr. Estey's report?
The Chairman: No; I will include it as part of the evidence before the committee. We do not need a motion.
Senator Beaudoin: It is a pleasure to see you. My question is on section 35 and paramountcy. That is the only point that worries me. The rest is all right.
This is an accord, and it will obviously have great importance. In 20 areas, however, the bill stipulates a paramountcy. That was not strictly necessary, in my opinion, but it is there. It reactivates the whole debate about whether we could construe section 35 as meaning a third order of government or whether the power of the aboriginal peoples is protected by that section 35. Obviously, it is. There is a controversy with that. Some people say that we already have a third order of government under section 35 and some jurists say "No". The Supreme Court has not ruled on that yet, but Chief Justice Lamer has said, "Let us face it. We are all here to stay." That is the way the Supreme Court sees the problem now.
I am inclined to think that if we stipulate a paramountcy, it will deal directly with the division of powers. In that sense, it may be unconstitutional. Yesterday, we heard from Professor Ryder, who said, "No. It is only the application of section 35, paragraph 3. It is an accord. It deals with aboriginal rights. We do not change the division of powers for everyone in Canada, except for the Nisga'a." It is done by an accord, and subsection 3 of section 35 says that "Treaty rights may include the rights to be acquired." Some rights are acquired by that accord, under section 35. That is the end of it. It is not a constitutional amendment. It is an accord with the Nisga'a. It comes directly under section 35 and it is protected by the current Constitution. That is his argument.
His argument is strong, in my opinion, because it is an accord. The Government of Canada has the right to make accords with the aboriginal people. We have the right to legislate for the aboriginal under section 91(24). We are paramount in that, but we accept a certain paramountcy in 14 areas.
If it comes under section 35, it is probably perfectly legal. However, if it does not come under section 35, then I see a problem. That is my starting point on this issue.
Mr. Estey: When people do this to me, I always like to ask: Is that a question? It is a question, and I understand you. I recognize your background from my long association with you. You are steeped in constitutional law and I will not insult the knowledge that you have by starting at A and going down to Q in the alphabet, starting with you.
First, we must remember that the Constitution is the real wall between chaos and civilized progress. No community on the face of the earth has ever made it into the higher standard of living to which we all aspire without a set of rules, which are called a constitution. The reason for that is that you must have consistency -- consistency between master and servant, between employer and employee, between the municipalities and the provincial government, and with the competitiveness of provinces now in our world trade hunt. We are out wooing the other fellow's customer. Quebec and Ontario are trying to bribe the same foreign manufacturer to come into the country. You need rules to keep our impulses subdued.
Section 35 is not one of those generators. Section 35 is an embarrassing confession of the vast majority of Canadians, most of whom are second generation émigrés themselves. That body became dominant in our way of life somewhere after World War II. We had to recognize and did recognize the problem. I do not think it is solved by creating a vehicle which, itself, calls for a treaty which is ex contractu from the Constitution.
The treaty that we are talking about is probably a misuse of the word, but whatever the agreement is, it must conform to then existing law. That is part of the Constitution and part of the stability brought to our community by a constitution. It is not a design to tire the Nisga'a out and slow them down and lead them around as the wolf is led around, in the Peter rabbit bedtime stories, by smart old granny fox. It is not that.
(1030 starts here -- Mr. Estey continues: Section 35 is opening a door...)
(Mr. Estey continuing -- granny fox. It is not that.)
Section 35 is opening a door which has been shut for a long time but has been in our demographic structure for a long time. It confuses me, and I think probably others, when we approach the exercise of this liberated right. It is not a new right; it is a liberated right. When we do that, we tend to bring our paraphernalia with us, because it has got us through the past. That is not the right way to do it. Here we have to sit down and give the new body such muscle, such nerves and blood streams as necessary to make it survive as a governmental unit.
As well, survival is not good enough. It has to succeed competitively as a governmental unit. The populations are at different levels of materialistic demands, but the goal is the same: a higher standard of living, security in employment, peace at home, peace on the streets. That is civilization, and that cannot be achieved with a rolllng-stone Constitution.
You need an anchor in the Constitution, and that anchor is that you can do what you want as to have a third order of government. Incidentally, I think that for me is a self-illusory term. It is not necessarily a third order of government any more than carving out Saskatchewan was creating a third order of government. Some people say we did not create a government at all. You find a lot of value in Saskatchewan because it illustrates everything, and it is simple. It is like looking through a pane of good glass. When it was carved out in 1903, sections 91 and 92 were there. Saskatchewan inherited the powers of 92 and the limitations of 91. A statute came with it which modified some things temporarily on a timetable, but it did not subtract anything. All of section 91 is there. The burden of there, including the right to Parliament, the right to vote and everything else. All of those things are almost biblical. It is embedded in us that we must all have the right to vote, and anything that discounts that value or blocks it is, amongst everything else, unconstitutional. If third order of government means you create an element of civilization which is new, you have to clothe it with power, but if you do it under the Constitution, you must obey the Constitution.
I will not descend into the minutia. The room is full of people who have forgotten more about this document than I know. However, I am clear on the fundamentals, and that is that we have to carve this thing and set it up under the existing paraphernalia or get an amendment. There is nothing wrong with getting an amendment. It is not meant to slow things down it should not. In the long run, it pays off like a savings account. If you deposit things in it, it accumulates.
So no, I think that we have all we need in here, and about three-quarters of what is in that agreement is things that attract friction and burden and expense and make it difficult for the Nisga'a. I think simplicity is a way of life. You are not in the courts long before you realize simplicity is a road to survival. You cannot think if you get off the simple track. Maybe Einstein could, but I doubt that. He got EM=MC2 into one paragraph. We cannot put anything in one paragraph in our court system. We have to go back to first principles.
Senator Andreychuk: Thank you for bringing us back to the simple message and also for reminding us that your roots were in Saskatchewan. Coming from Saskatchewan, I guess I need a simple answer. Professors have come and said to us that section 91 and section 92 are not 100 per cent of governmental power. When our Constitution was created -- I think this is where Professor Ryder was going -- there were these other powers because the other nations were there. Somehow they had been dormant, and now section 35 resurrects them.
I want to make it very simple. We have an act before us. We have a parliamentary responsibility to determine, I think in this sense, whether it is constitutional. Whether it is a practical arrangement and whether it could have been done differently is something that we can ponder at a later point. In our system, the executive has the right to negotiate treaties. It is our parliamentary responsibility, in my opinion, to ensure that that piece of legislation does not violate any fundamental principles and that in fact it meets the constitutionality test.
I do not know whether you are prepared to answer me or not. Do you find this bill constitutional? If not, our conundrum is that we unravel an agreement between three parties if we interfere at this point. We have been told strongly by the federal government that we cannot do so. It would be our right to amend the bill, if we wanted, but in essence we would be collapsing the entire agreement. Treaty-making powers are not within our purview.
Mr. Estey: That is a mouthful to answer. I pondered that. I was a professor at one time in Saskatchewan -- for one year. I remember a student got up and asked me, "What about that Saskatchewan Act? Does that give us complete run of government?" That is essentially what you are you are talking about. The 1905 act does not seem to be a God-given power to get airborne here and erect a new community in the world and a profitable province. The only thing I could think of telling the young fellow, who was a smart kid and went on to become a great lawyer, was, "All I know is that when I look out the window and I see the horizon 8,000 miles away and not a tree in sight, that if it is God given, why does God not come back and finish the job." I think that is my answer now.
I do not know that we need to solve that riddle that you pose. The executive branch of government is the servant and semi-master of the legislative branch, without which neither one can function fully. It is not unlike an atomic reaction. You need the two electrodes and things moving around to generate the heat we need. That is the same here.
You have a duty. I thought pretty hard about this before coming here. The Senate has a senior duty to perform. It has to perfect the process of legislation. That duty must clearly entail, on occasion, an amendment or a refusal or an automatic approval. All three are within your power. Not only are they within your power, they are within your duty. You have to scrutinize this thing and see what is good and bad and purify it. That is why you are here. The second house invariably around the world is set up as a brake on the first level of legislation, but the executive branch tags along all the way up the ladder.
In the United States, the executive branch there is much more active. If they wish to interrupt the process of a Congress, they do it. We do not have that separation of powers. Many people say, "Thank God," and I am probably one of them. Our system is not simple, but it probably is a lot easier to live with than the presidential system.
You have to listen to the executive when it presents a statute, but you are not bound. You are probably bound to think about it, but that is an untraceable performance. Here, you have those three choices, and your conscience will have to guide you as to where you come in.
Certainly, one of the driving factors, I recognize, and I think everyone does, is that the Nisga'a waited a long time to get here. They did not come here just this morning.
(1040 follows - Mr. Estey continuing -- I read the submission of 1913)
(Mr. Estey: continuing.)
I read the submission of 1913 when they were here trying to get justice. I thought twice about saying we should have another delay. We have all suffered this other delay business. Anyone who has dealt with national revenue knows how long that takes.
I do not know the answer to your question, but my strong feeling is that it is for the Senate to simply bear down and exercise their conscientious duty and pass, amend and send back. Do what you have to do, to do justice and do it on time. Time is a big quantum that we waste so much now. I do not think it is a waste here.
I think that surface transportation thing is a waste of time. A railroad is a railroad. You cannot make it very complicated. A year and one-half is appalling. I am not proposing that. We do not take a year and one-half to do that in Canada, perhaps that is why we survive.
Senator Andreychuk: You said that time is the issue. I agree. You seem to have said that you do not prefer a reference as your first choice. You were saying that the parties should proceed to the court and the court should act expeditiously.
I am a touch more cynical. Having watched the process, particularly on aboriginal cases, that is simply not happening. I have no idea why. Everyone comes and says it is the other guy's fault, but I have great hesitation in putting my faith into a timely resolution through the courts. I have great faith in having a good resolution at the end, but not a timely one. Where does your optimism that it can be expeditiously handled by the existing cases come from?
Mr. Estey: I have the same trouble struggle as you have. I was a bencher for some years of the law society in Toronto and a big struggle of my time was how do we speed up the courts? We brag about our past, we solved that. Today it is far worse than it ever was. It is the bar's fault, and the judges' fault. They lose control of the trial.
In B.C. they have a thing called "rule 34". In Ontario, there is a similar rule. It allows you to take out of a complicated record, an issue that you have to have answered and you can have that answered first. There is a lot of verbiage that goes behind it, but that is all there is to it. You go there with no witnesses and no evidence, except affidavits, and it does not take very long to go. I prefer that partly because I am a denizen of that jungle, and I profited by that experience.
The reference is a tricky thing. First, the executive government has to be aroused to the need, and then you have got to rouse about what the reference consists of -- what is in it and not in it. The lawyers abuse a reference terribly because they have a client who sits back at the back of the hall and cannot bother them. They say that is going to have to do. I would not turn down a chance of a reference. I just prefer the thing I am accustomed to.
Senator St. Germain: From your experience, sir, as Chief Justice in the courts, do you believe that it make a difference in the eyes of the court, or put undue or different pressure on them, if they are dealing with a reference, I believe you said a section 84, rather than a piece of ratified legislation in trying to arrive at a decision on an issue like this?
Mr. Estey: I do not know the answer fully to articulate that. It was different in different places we sat. I found that the strength of the reference is that the lawyer does have an informal avenue to help round out the terms of reference. That is a big improvement. An experienced lawyer can push them pretty hard in getting the thing expanded or contracted.
The downside is that it takes forever to get people in this city moving on a problem somewhere else. The reference gets delayed and kicked around and all the members of staff have input, and it gets complicated.
To answer your question, I do not think that the presence or absence of an articulated piece of legislation is very influential in the amount of attention you get. I think the issue attracts the attention. If you get a good issue on our banking industry, it is attended. If the issue is some environmental cause, a 50-year damage proposition or the smokestack is 800 feet high and cannot be taken down anyway, it will drag, no question about it. International questions drag. I think that railroad example could go forever. However, I do not think that this would fall into that evil. I like taking what you got because you are closer to the court. The lawyers are closer to the provincial courts than they are to the animal in Ottawa, the Supreme Court. You can push the registrar to get the thing tried. You can pick your judges, and all judges are not the same. It is like athletes at the Olympics. You wait and time them to see how fast they are. It does not matter a heck of a lot, but I would prefer, if I had my choice, to take what we got and get on with it.
The Chairman: We have Senators Grafstein, Joyal and Sparrow.
Senator Grafstein: I am glad you reminded us once again of our constitutional duties. As I see them, our constitutional duties are very simple in the Senate.
First, we must decide if legislation is constitutional or not. You are providing us with an escape clause. I am not sure we can take that escape clause. It might be neat, but we have a primary responsibility to decide whether or not legislation that comes from the other place, that popular place, is consistent with the Constitution. Second, we must represent as best we can regional and interests and minority rights within that.
We had a very interesting exposé by two professors at Osgoode Hall last night that reminded me of the first question I was asked when I attended to apply for law school at age 19 . The question was, "Grafstein, do you know the difference between what the law is and what the law should be?" Nobody had ever put that question to me before, and that reverberates today.
I first have to decide what the law is, and then hopefully, perhaps persuade people about what the law should be. However, we are here today to decide what the law is. I say that by way of preliminary because you very kindly and very succinctly summed up our constitutional responsibilities, about which some people neglect to remind themselves.
Let me turn to the two subject matters that concern me. You are clear on one subject matter. You said this in paragraph 15 of your brief, and that is the question of powers, and whether or not we can evolve self-government or devolution of powers from the federal government beyond the reach of the federal government, in effect not a delegation but a transfer. I just want to read this to see if this sums up your position. This is paragraph 15 of your brief.
From the foregoing it is clear that the Agreement provides for the transfer from the governments of Canada and British Columbia to the Nisga'a nation very significant sovereign powers presently possessed by Canada and British Columbia in accordance with the Constitution of Canada. This transfer is by itself unconstitutional;…
I do not want to debate that. However, I want the committee to clearly understand that that is your view. If it is, I will leave that alone and deal with a more delicate matter on which I want your views.
We have heard conflicting views. We heard from Professor Sanders from British Columbia who says that once we constitutionalized these rights in 1982, the older idea of a simple division of authority between the two levels of government is gone. In other words, he says that section 35 complicated the simplistic position. Please give me your view about paragraph 15 and your view about the position of Professor Sanders.
(Take 1050 Follows -- Senator Grafstein continuing: I am intrigued…)
(Following Take 1040, Senator Grafstein, the second question. TAKE 1050 begins here, Senator Grafstein continues.)
** I am intrigued by what we have heard from two of the nations that are represented here. We have heard it from the Nisga'a earlier, and now we have heard it from the witness today from the Gitanyow. I asked them and I also asked Chief Fontaine of the Assembly of First Nations this very simple question: Do you believe in minority rights as it affects the lands and the governance that you will be granted by this legislation? The answer is, "Well, sort of." Last night we heard "sort of." The Nisga'a go on in their agreement to call themselves Nisga'a citizens. I asked them: What about what about the right to vote for non-Nisga'a on Nisga'a lands? I was told, "Not quite, but they will have the right to be heard and participate, sort of."
There are two fundamental issues here that are quite simplistic. First, can the government fetter its discretion this way by delegating these sovereign powers under this treaty without a constitutional amendment? Second, within that context, does the Nisga'a nation, or any aboriginal nation or any aboriginal group, have the right to grant "sort of" rights respecting the right to vote of residents within their lands?
Mr. Estey: I should tell this august audience that Senator Grafstein and I have had more sidewalk debates than any two people in the city of Toronto on most of the issues he raises. I had the unhappy experience of being in competition with him once. Since then, I have adopted that old saying, "If you can't lick 'em, join 'em." The competition is furious.
Those are wonderful questions. That is why constitutional law is a great subject of study. My own feeling -- and I was not able to sell it to a majority of the Supreme Court on one occasion -- is that section 35 does not disturb the bedrock position of our country. Sections 91 and section 92 are Precambrian rock, Canadian style. You cannot have a successful country and shift the basement like that.
With all due respect, I learned a lot more after I became a practitioner than I learned becoming a professor. The scars are there to prove it. I am a strong believer, Senator Grafstein, that we must conform to the Constitution until you can demonstrate a need to change. We went through a need to change in my life time, as a student, during the Depression, which paralyzed eastern Canada and rubbed out western Canada. My father was Attorney General of the province at that time and I remember listening in on Sunday afternoon meetings in his den. The big issue usually was: Do you think the Bank of Montreal will lend us enough money by Tuesday to pay Friday's salary? They were talking about the University of Saskatchewan. We got through that Depression by the support of the other provinces. Western Canada and even Alberta would have gone down the tube without the support of everyone east of Winnipeg. That taught me a lesson I never forgot: If we weaken the accord that is represented by Confederation, you weaken everyone's life. There is no question about it.
We are not now isolated. When we bring in the Nisga'a, you must think hard about bringing them into a circus instead of a peaceful climate of political progression. They can make all the changes they need once they are included. If there is something fundamental, you should amend the agreement before. There is no question about that. It is not a deferral sensitive item to get into the game and learn the rules not from the penalty box but from centre ice. I find that question easy to answer.
I cannot answer your other question. I do not think anyone can answer it. There is a mysticism about political union which is not unlike chemical union, when the radical meets the positive, the H2SO4 combine, the result is a molecule much more dangerous and less to be fooled with than either ingredient. That is what you get if you shove someone into a constitutional framework where they do not fit. A shoe horn will not help. It may get you into a tighter spot than you want.
I am an optimist on this. I think we can live with section 35 and prosper with it and prosper more quickly if it is implemented within the framework of the Constitution, subject to the amendment where the circumstances shout for it. There must be a loud shout.
Senator Joyal: I was involved in the implementation of section 35 in the drafting of the Charter of Rights and related articles of the Constitution in 1982. There was no doubt in our mind at that time, 18 years ago, that the issue of land claims was outstanding. In other words, we knew that we were entrenching an objective for which borders were not defined and that it would be defined through time. I have always stood by that objective.
What you have said to us this morning is somewhat helpful. I will take some of the concepts that you defined for us this morning. You said something that would not be a nation state, not akin to a province, but certainly not a municipality. You referred to domestic powers within sections 91 and 92. In other words, we must define the attributes of nation states that are included in sections 91 and 92 and, fundamentally, the concept of citizenship, because there cannot be different definitions of "citizenship" if we are one country. This is very fundamental in the definition of the parameters of what is included in section 35. You will understand that what we are doing here with this bill will have an impact on all the other land claims negotiations because it will be seen as a further step toward the understanding and implication under land claims to section 35(3) of the Constitution.
I would like to try explore further your statement about what is not akin to a province and a nation state, whereby, in the definition of "self-government" included in land claims, we have a better understanding of what we are doing in accepting the bill as is. On the other hand, you have stated in your paragraph 15 that the transfer of power between sections 91 and 92, provincial, federal, is, "by itself, unconstitutional." You referred to the 1983 case of McEvoy v Attorney General of Canada. That is a pretty strong statement on the nature of the bill. As my colleagues have said, one of our major roles in the Senate is to ensure that we are abiding by the Constitution, by the Charter of Rights. Some people have thought that the Charter of Rights was not totally included in the land claim, and I remember stating in 1991 that the Charter of Rights was for general application all over Canada, whatever your background as an ancestor, First Nation or, as you said, WWI, WWII, 17th century, 18th century, 1,000 years ago. We live on this land, as Justice Lamer said. We are here to stay and we share some fundamental rights as individuals in this country. If you are telling us this morning that the transfer of powers between sections 91 and 92 to the new Nisga'a authority is unconstitutional, I will have to wrestle with the decision of how I will vote on this bill very soon or later on, when it comes back in the Senate.
(TAKE 1100 follows, Senator Joyal continues: That debate is fundamental...)
(Senator Joyal: continuing.)
To me, that debate is fundamental because what we are doing with this bill, as I mentioned to you, is a step further in defining the overall implications for all the other tribes and land claim settlements in Canada. If we do it right in this bill, we are doing it right for other negotiations and settlements with other tribes that have pending land claims in Canada. As you know, there are many and there will be many more to come, especially on the basis of the way we settle the Nisga'a issue.
The Chairman: I think you are finished.
Senator Joyal: Yes.
The Chairman: It is another challenge for you, Mr. Estey.
Mr. Estey: I wish we had unlimited time to answer that textbook question. That is a good one.
I do not have the answer but I can get near the answer.
First, the nation state on our planet is dying. Germany, the most powerful nation state we had after the United States, almost ceases to be one. Why is that?
Second, the federal system is under attack everywhere but the United States. The United States has a magic formula. They can live with it and make a fortune out of it.
When we come to Canada, it is more difficult than the U.S. because, first, we are spread out. We are a long string of pearls and we do not have much in common between Cape Breton and Esquimalt. They do not meet, they do not talk, and it is difficult to govern. Therefore, political balance is essential to Canada's survival. It is not essential to the survival of the compact United States or the United Kingdom where you can work it out. You cannot here. You operate by long-distance telephone.
Second, I do not believe, in my own opinion, the nation state is the answer to the problem of the Nisga'a. They do not have a long spectrum of human activity within their population. They are not big enough and the natural resources they are staking out is not varied enough.
That does not mean they cannot go independently and survive. They can. It would be difficult because you could not emulate Denmark. You have everyone around you; you are sealed and you cannot do international trade unless you transgress over Canada. I do not think that is the answer.
That drives us back to federalism. Coming to us like the Nisga'a people, it will not work unless they get all the powers under section 91 and 92 and a lot of executive assistance from the whole of the panoply of federal power and federal taxation.
The first time I ploughed my way through this elaborate agreement, I could not help laugh, going back in my memory to the times I sued the Municipality of Metropolitan Toronto, or defended them -- I did both. The apparatus described in those two operations, one was the old City and one was the new Metro, was far less complicated than what is appended to that agreement. You do not get four pages into it before you start thinking, who is going to pay for all this?
It is a horrendous shot in the arm for the law profession. The litigation will be endless, overlapping, duplicative, expensive and time-consuming.
You are right. Whatever you do now is put into a printing press and rolls around and prints out 47 a minute down the road. The question is, how far can we take this without wrecking the whole Constitution? That brings me back to your core question.
The fault, if there is a fault, in the agreement is that it is neither fish nor fowl. You get into the paramount, not paramount thing, which is totally digressive and friction row-creating kind of talk -- again, good for the litigious lawyer. If you say there is going to be a lot of litigation, then you say yes because there is an arbitration clause in there, compulsory.
You have to remember arbitration is only good against A versus B. C can sit up on the curb and laugh at it and not be bound by it and live by it. Third party issues do not get stamped out. You have to arbitrate three times to catch everyone. It is not the answer.
The answer is to set up a smooth, simple member of a federal nation, an equal member. If they are short of money now, you have to be sustained by the rest of them, the same way the prairie provinces were sustained.
Alberta now is a great donor. In my lifetime, Alberta was a basket case economically and we looked down our nose at them.
The answer is federalism, but there has to be some stimulus added to help someone coming in through section 35 by definition, almost axiomatically. Nobody quarrels with that, that I have heard. Thank God for that.
Therefore, the question is, how much do you have to bend things to bring it in as a workable state? The less you bend it the better, but if, in the fullness of time, the students of this whole thing decide this has to be amended, let us get on with the amendment.
My own semi-educated version of knowledge of this thing, municipal law, is that if you went through that complex schedule to chapter 11 and combed out all the superfluities in it, then you are way down the road to success. You are not getting there if you allow the thing to be encrusted even before it is born with all manner of expensive, time-consuming gadgetry appended to a simple form of government on a confined area to a confined population.
Yet, a population needs economic support, and that should be facilitated more in the agreement. You have to read it very carefully to see where the support is going to come from, and when and how much.
It is not up to us to criticize whether it is a good or bad deal. We are not going to do that. We are all for you going ahead with your responsibility and we confirm it, but as citizens of Canada, it is our view that everyone, Nisga'a included, are better served if we do not introduce something which is going to be challenged successfully.
No one is going to thank us for allowing this to go down the road, money spent organizing this, that and the other institution, and the whole thing collapses because of a court order. That is why I think you should get one by the fastest route.
The Chairman: That was a very good summing up of your position. Thank you again for appearing. We are happy to have your contribution here today.
I am going to call now on Dave Merz, Chair of the Aboriginal Affairs Committee and Treaty Negotiator for the B.C. Cattlemen's Association. He will be followed by Jack Ebbels, the Deputy Minister of Energy, Mines and Resources for the Government of British Columbia.
Mr. Merz, we recognize that you have been involved for a long time in treaty negotiations and the treaty process in British Columbia. Perhaps you could give us your background in that experience.
Mr. Dave Merz, Member of the Regional Advisory Committee, B.C. Cattlemen's Association: {BOff}Thank you. I am past president of the British Columbia Cattlemen's Association and I am currently Chairman of the Aboriginal Affairs Committee for the province.
I have also participated on the Northern Interior Regional Advisory Committee providing federal and provincial treaty negotiators with advice for the past four years.
I am a rancher. My wife and I operate a ranch west of Prince George and have operated it for 35 years. We are surrounded on all sides by aboriginal people and the reservation system as we now know it. We have a knowledge of what is going on and how things are working out.
On behalf of the cattlemen of B.C. , I thank you for the opportunity to appear before you today. I believe you have a copy of our brief concerning Bill C-9.
What I would like to do in my presentation this morning is touch on some of the highlights of that brief and leave time for some questions.
(Take 1110 continues: Mr. Merz continuing: "Let me begin with an introduction to the B.C. Cattlemen's Association...)
(Mr. Merz continuing.)
Let me begin with an introduction to the B.C. Cattlemen's Association. In the 150 years since the Gold Rush days, beef cattle production in British Columbia has grown to become an important part of agriculture in the province. The cow-calf sector is the mainstay of the industry. In 1998, an estimated 322,000 head of cattle and calves were sold, worth $252 million, and these were raised on 1,900 ranches. The B.C. Cattlemen's Association has been the official voice of ranchers throughout British Columbia since 1929.
Most of the deeded land owned by ranchers is used for the production of forage to sustain their herds over the winter months. Ranchers in the interior regions of the province are totally dependent on assured access to Crown lands for spring, summer and fall grazing. Security of the tenures, which are leases, licences and permits, over those lands is critical in the continuing viability of the industry. Access to water for livestock and crop production is equally important.
Ranchers have a unique perspective on aboriginal claims and treaty negotiations. Many ranchers are located adjacent to Indian reserves. Indian people are friends and neighbours and are often actively involved in cattle ranching. We do not dispute the legal, social and economic reasons for treaty-making in British Columbia. We hope to see treaties negotiated which will make Indian people better off, both economically and socially, and which will leave us in business, living and working harmoniously with all of our neighbours. The settlement of treaties without displacement of aboriginal people is the objective of livestock producers, one we share with other resource users and rural British Columbians.
Turning to the Nisga'a Final Agreement, you may ask why the B.C. Cattlemen's should care about Bill C-9 and the Nisga'a Final Agreement. It is easy to say the Nisga'a Final Agreement includes few members of the B.C. Cattlemen's Association within its scope. It was also negotiated outside the B.C. treaty commission process.
The B.C. Cattlemen's Association has three general concerns about the Nisga'a Final Agreement. Our first concern is that there is confusion about what the agreement really means.
As was mentioned several times this morning, at least in part, the agreement becomes a template or a model for future treaty settlements. As I sit on the advisory committee to the treaty negotiators, we are continually referring back to the Nisga'a agreement, and so we see this as a template. The agreement establishes a precedent for settlement, as no other group will want to accept comparatively less than what has been negotiated with the Nisga'a. Therefore we must look at the implications of the Nisga'a Final Agreement for other treaty settlements.
I will comment first on resource issues raised by the agreement, and then on the broader social issues on which all Canadians should state their views.
The Nass Valley has forest resources but little if any range resource. Range tenures -- where we run our cattle in the summertime, spring and fall -- are much like forest tenures. We look at how forest tenure holders are treated in the Nisga'a treaty as an example of what to expect from settlements elsewhere in the province. Some 1,930 square kilometres of provincial Crown land subject to forest tenure will become Nisga'a land. That represents approximately 250 acres per Nisga'a citizen. If similar settlements or settlements of similar magnitude are made in the British Columbia interior, there is no question that ranch families will be seriously affected. Think of the Nisga'a settlement in terms of city blocks rather than acres and contemplate that impact.
Treaty negotiators, native people and the general public often think of Crown land with no buildings on it as available for treaty settlement. In fact, Crown land in the interior is not vacant. Through a series of overlapping Crown tenures, it is as developed for resource use as city blocks are for residential use.
Land subject to agricultural lease and woodlot licences will be excluded from Nisga'a lands. Since these tenures will be interspersed throughout Nisga'a lands, access provisions of the treaty are of fundamental importance. No single issue has created more ill will towards Indian people in British Columbia than difficulties with access.
The Nisga'a Final Agreement relies on the existence of a substantial volume of unlicensed water. This water is reserved for the Nisga'a, who can then apply for water licences. In much of the rest of British Columbia, water bodies are fully recorded and have no excess capacity. This element of the Nisga'a agreement will not be transferable to regions of the province where water is scarce, and we hope that the negotiators will realize this. Water for livestock and irrigation is life's blood to every ranch family, whether their operation is large or small.
The agreement describes treaty rights off settlement land, primarily dealing with wildlife harvest. As a rule, the B.C. Cattlemen's Association believes treaty rights off settlement land should be very limited. Such rights will not contribute to certainty over the use of land and resources. Treaty rights have constitutional status. Other rights to use of land and resources do not. This unequal status makes resolution and accommodation between conflicting or competing treaty rights and other rights to the use of the land and resources complicated if not impossible.
From a resource user's perspective, a major flaw of the Nisga'a negotiations is the fact that compensation for displaced third party interests was not addressed up front. We understand that Canada will provide B.C. with a contribution of $3 million in 1993 dollars to assist those who may be negatively impacted by the Nisga'a treaty. Canada and B.C. will share the cost of purchasing third party interests, estimated to be $30 million. We believe these figures greatly underestimate the value of lands and resources and subsequent third party compensation.
I will now comment on some of the broader social issues. Although the B.C. Cattlemen's Association rejects an inherent right to self-government, we do accept that native people in British Columbia should be able to govern as many of their affairs as possible in ways which are chosen by themselves and which mesh easily with non-native government. The Nisga'a must be responsible not only to their people but also to other Canadians for the results that they achieve. We do not see the issue of accountability adequately addressed in the final agreement. It is our observation that financial accountability may be even more important than additional lands and resources and furthering the progress of our aboriginal communities.
One of the most confusing aspects of the Nisga'a Final Agreement to us is its relationship to the Canadian Constitution. Does it create a third order of government without amending the Constitution? The agreement must not become part of the Constitution and therefore impossible to amend. Challenges to past treaties show that circumstances change and that all possibilities cannot be contemplated when a treaty is negotiated.
Throughout the Nisga'a Final Agreement, there are statements about whether or not provincial or federal laws on a particular subject apply on Nisga'a lands and which order of government overrides the other. The agreement is said to supersede federal and provincial powers in 14 areas in the event of an inconsistency or conflict, even if only in matters internal to the Nisga'a people. This precedent is unsettling. The result is jurisdictional complexity and confusion which we believe will make provision of services exceedingly difficult.
We have qualms about the economic suitability of the level of government proposed by the Nisga'a. It was mentioned here that there would be 5,700 people involved.
(1120 follows -- I sit on a RAC where some)
(tk 1110 ends--Mr. Merz continuing ---- be 5,700 people involved.)
I sit on a RAC where some of the nations that are under discussion for treaty settlement have under 500. When those are settled, how will this come forward? We do not believe that Nisga'a government should be the economic mainstay of the Nisga'a economy, nor should this be the case with any other treaty settlement.
Although the final agreement states the objective of phasing out reliance on transfer payments over time, the fiduciary duty of Canada remains. What is to prevent modern-day treaties from being an open-ended financial commitment on behalf of the Canadian taxpayer?
We are alarmed at the growing separateness between native communities and the larger non-native society around them. In the Nisga'a treaty, there will be a separate fishery, separate school system, separate post-secondary education, separate health care, separate justice system, separate government administration, and so on. We accept the need of Indian people to maintain their culture and tradition. We accept that some separation is needed for that purpose. We do not accept that there must be a separate system for every purpose. That is not the direction Canadian society should take.
The negotiation of the Nisga'a Final Agreement is a remarkable achievement. We hope it truly represents a final settlement of Nisga'a claims. We are apprehensive about moving away from a language of cede, release and surrender used in historic treaties and recognized by the Supreme Court. We hope the certainty provisions found in the Nisga'a Final Agreement are proven effective when tested over time.
Let me now outline the B.C. Cattleman's Association views on how aboriginal claims and treaties should be approached. Our members are very fearful about the outcome of treaty negotiations. Many of these fears stem from the failure of governments to communicate a clear vision for post-treaty British Columbia that all residents can understand and support. We do not know what the province will look like when the province is broken up into these small states, and I do not think the federal or the provincial governments know either.
The courts appear to have a clear vision. Ranchers do not know how or where they will fit in or how their needs will be met. There is no vision to guide negotiations. The courts appear to have a clearer vision of a post-treaty reality than do our political leaders. This does not reassure our members as we attempt to cope with and resolve the current uncertainty. A vision for post-treaty British Columbia must include a means to achieve certainty of jurisdiction and ownership and finality to claims of aboriginal rights and title that is acceptable to all residents.
Our members continue to believe that aboriginal claims should be settled primarily with cash. Some have been offended by this position. We believe there are sound reasons behind this approach. First, money allows aboriginal people the freedom to enter the mainstream economy through the same channels as everyone else. They may purchase any number of land- and resource-based interests. We believe strongly that inclusion in the economy should be through existing not new and unique methods.
Second, it must be recognized that sustainable, environmentally-friendly resource development cannot occur without adequate capital. Many interior Indian reserves already have a significant land base. Additional land and resources may result in land-rich, cash-poor rural ghettos. Without capital and skills to effectively utilize resources in the modern economy, aboriginal people will not be better off.
Third, cash provides for economic opportunities that are not necessarily tied to treaty settlement land. We are concerned that in many areas where Indian people now live, the area will not provide a decent living for the number of families involved, no matter how many local resource-based businesses are transferred. I look at some of the isolated areas where settlements are to be completed. There is no way that I can see that they can become economically viable in the area where they are located.
We continue to see education and development of off-reserve opportunities as the primary way in which Indian people will become economically more advantaged. The last reason we believe in cash settlements is for the equal distribution amongst all Canadians. The current land selection model used for the B.C. treaty negotiation places an undue burden on rural British Columbians and on those who rely on land and resources for their livelihoods.
I want to mention in this line right now that I am approaching the age of retirement. When it comes time to sell my ranch, I know this will have a very large impact on the value of my ranch.
It is not certain that this large-scale reallocation of land and resources will meet the needs of the aboriginal people. What is certain is that user groups such as the B.C. Cattleman's Association members may lose their livelihoods and will bear a disproportionate share of the cost to resolve land claims relative to Canadian society as a whole.
This is not an equitable way to achieve a societal goal. In order for treaties to gain the acceptance of British Columbian society, it will be necessary for the issue of compensation to be dealt with openly before entering into treaties. Canada has a cost-sharing agreement with B.C. for third-party compensation. This is of no comfort if the basis for compensation does not exist. Governments must establish a fair and timely compensation policy for affected third parties.
The B.C. Cattleman's Association supports the B.C. Treaty Commission's process as one which native people, provincial and federal governments have accepted. However, we would like to see it replaced with a simpler procedure. To the extent that there is legitimacy in referring to an aboriginal group as a nation, we think treaties should be negotiated with recognized aboriginal nations. We see groups breaking off from established aboriginal nations so that they can carry out their own negotiations. I can name them but I will not. This will create tremendous costs to society to set up these different groups.
Self-identification of a First Nation under the B.C. treaty process has no legal basis and it may not stand up in court. It creates many inefficient overlapping sets of treaty negotiations. Perhaps the process could be shortcut by having governments outline the overall financial resources that are attributed to each negotiating entity and have them decide how these resources will be used.
The negotiating group could then decide on the amount it wants to use for negotiation costs, self-government costs, and compensation for displaced third parties.
We believe treaties should include only "forever" stuff, the principles which will govern and shape the new relationship. This complex and detailed agreement about implementation on which we are working right now should be contained in renewable implementation agreements to allow for evolution in the working relationship between federal/provincial governments and the governments of the native people.
Ottawa must acknowledge the need for broad public support of treaties and seek out ways to secure it. In the case of the Nisga'a, the provincial governments passed the treaty because, "It is the right thing to do."
This may be so but those same governments -- neither elected by a majority of voters in British Columbia -- also have a duty to address the concerns of other British Columbians. They have failed in this regard. Many of our aboriginal neighbours are not participating in the comprehensive B.C. Treaty Commission process and that is approximately 30 per cent.
(tk 1130 follows--Mr. Merz--On an ongoing daily basis our members are affected)
(Mr. Merz: continuing.)
On an ongoing daily basis, our members are affected by specific claims and other Department of Indian and Northern Affairs policies, such as the addition to the reserve policy. One of my cohorts was in here yesterday, or the day before, to talk about the tremendous impact that this is having on ranchers and citizens that live in those areas.
These policies direct negotiations over not only the Crown land base upon which our members rely, but also they often involve fee simple holdings. Early involvement of the ranching community in discussions regarding the land base is therefore essential.
Last, we wonder if carefully crafted federal legislation could help define the nature and scope of aboriginal rights and title. The Supreme Court of Canada has clearly stated that the federal government has the authority to regulate aboriginal rights. We believe that there is an opportunity to complement negotiation processes with legislation and regulation.
In conclusion, British Columbia ranch families hope to see treaties concluded with aboriginal people that advance their interests in ways acceptable to non-aboriginal people.
Perhaps more than others, ranchers can appreciate the connection of aboriginal people to the land. It is something that we share. However, we firmly believe that a reallocation of land and resources is a simplistic solution to the plight of B.C.'s Indian people, and that to reallocate land and resources without compensating those who now have rights to them is profoundly wrong.
It is our sincere desire that the outcome of treaty negotiations will be strengthening of rural British Columbia. This strength will come from finding the balance between aboriginal and non-aboriginal interests, and from finding the balance between recognized differences and providing equal opportunities.
We hope to once again live in communities where a spirit of acceptance, cooperation and friendship can prevail. Our comments regarding Bill C-9 are intended to direct governments towards this objective. We do not expect the Senate to stop the Nisga'a Final Agreement. We do hope that you will hear our concerns and that the information we provide will serve as background and knowledge to aid new your future deliberations.
It has been very frustrating for third parties in British Columbia to express their views, especially those with interest in land and resources. Governments have a "we know what is best" attitude. Critics label us as racists, and aboriginal people often perceive our intents as an attempt to thwart their interest in land. In fact, our interest is simply to be treated fairly by our government and our neighbours.
Thank you.
The Chairman: Thank you Mr. Merz. You have certainly given us a strong brief on behalf of your association.
Senator Rompkey: I have just a brief contextual question first. On page 1 of the text that we were given from the B.C.C.A. you refer to no displacement of non-aboriginal people, but in your remarks I think you said aboriginal people. I assume you meant to say non-aboriginal.
Mr. Merz: Yes.
Senator Rompkey: You questioned the self-government, and you also questioned the control of schools and other institutions. How can a First Nation preserve its culture without the control of schools? I would think that that would be a key institution for preserving culture. It seems to me that there is a pattern across the country for that.
As a matter of fact, in my own Province of Newfoundland, although we are moving slowly in terms of settlement that was the first order of business with regard to the Innu. The government moved to jurisdiction by the Innu over schools and other local institution, health care and so on. How do you preserve your culture unless you can have control over those institutions?
Mr. Merz: I look at our area. I live west of Prince George. There are schools being set up that do work very well on the reserves. As these people are growing and getting older, they are working into the public school system. They have people sitting on the school board that help work the language and customs into the school system, so they are available in the public school for these people that are coming from the reserves. I think that it is important that these people understand how the country operates and how things are carried out, but still be able to carry on their own traditions and keep up with their own traditions. I cannot see them becoming totally isolated.
Senator Rompkey: There must be some middle ground between total isolation and assimilation.
You also said that we do not know what the future is going to look like. Can it look any worse than the past? We know what the past looks like. We know that there is a much higher rate of incarceration among aboriginal people than among the general population. We know that there is a much greater rate of alcoholism. We know that there is a greater rate of family difficulty. Those facts are as a result of isolation and not being able to control their own life or future. We may not know what the future looks like but we clearly know what the past looks like. Can the future look any worse than the past?
Mr. Merz: I guess that comment was headed more towards the non-aboriginal people, such as the ranching community in Williams Lake the Caribou, and my area where rangeland is currently being used. We know that this is going to be under direct competition when the claims are being settled. What is our industry going to look like? That is my concern. Where are we headed? Are we going to lose a little portion of our range year by year? Are we going to lose all of our range?
That has a direct impact on the viability of our ranching operations throughout the Province of British Columbia. What happens to us? Where are we going? We have had meetings to try to discuss this with negotiators, and they say they do not know. They have not talked about it yet. We know that the negotiations are being carried out in these different areas, including my area, and I do not know what is going to happen.
I am more looking at the non-aboriginal aspect and the aboriginal when we say this. What about the people in Vancouver, how do they see the province looking? What is going to happen with the claim on Stanley Park? What is going to happen to these different areas? There is a research station in Prince George currently owned by the federal government. I understand that that is one of the places that is up for negotiation. What will it look like? What is going to happen?
Senator Chalifoux: I must complement the Nisga'a on their negotiation because when by ancestors negotiated land they only got 160 acres, and the Crees only got 140 acres. I must compliment them on their negotiating skills.
The amount of land that they have negotiated is smaller in area than some of the ranches in B.C.
(Take 1140 Follows - Senator Chalifoux continuing: I do not know...)
(Take 1140 begins--Senator Chalifoux: continuing.)
I do not know whether you are aware of that or not. It is interesting that you are worried about your land when the land that they have negotiated is smaller than the Douglas Ranch, for instance. I would like your comment on that.
In "A Separate Nation", on page 6, you state that in the Nisga'a treaty there will be a separate fishery, separate school system, separate post-secondary education system and a separate health care. It is interesting that the other reserves across Canada have separate health care systems under the Indian Act. They have secondary or separate school systems on the reserves, and I find that students are beginning to learn the culture. We have been discriminated against. We are the most discriminated against nation of people in Canada and that has been verified in studies. I cannot understand your position in respect of those areas. Many years ago, our ancestors helped your ancestors survive. They worked together as human beings to ensure that all were able to survive. The aboriginal people taught the newcomers about the hardships of life in this country and how to survive in this harsh land of ours.
Do you communicate with your neighbours? Do you have meetings with them? The Nisga'a have attempted to meet and negotiate. We heard from the Mayor of Terrace and from the people that work within the Nisga'a lands, that they are happy and satisfied with the relationship that they have developed with their neighbours. I would like your comment on that.
You have stated that native people have withstood cultural integration. I do not believe that, Mr. Merz. When the history of our people, and what has happened throughout the centuries, is examined, it is only with a great sense of survival that we have been able to retain even a small amount of our culture. It is coming back now. There again, as Canadian citizens, we must look at our neighbours.
The last item that I will put forward concerns the cash. You suggest that no land should be exchanged, just cash. Our people have never been cash wealthy. A good example of that is evident on some of our reserves in Alberta where the suicide rate is 10 times greater than elsewhere in Canada. I would like your comments on the deaths, the terrible suffering, and the repercussions of throwing cash at a person who has never had cash. Thank you.
Mr. Merz: The first comment will be on the size of the lands in question. It is unfortunate that you look at Douglas Lake and two or three other ranches, because they are certainly the exception. There are 1,900 or 2,000 other ranches that are much smaller. In order to look at Douglas Lake and some of the others, you are also looking at not only deeded land but the leased land that is used for grazing permits and leases. They do not own that land as it is leased and they pay by the animal unit for the grazing rights on that land. The land size itself is derived from those figures when they look at the Crown land that is under tenure to a particular ranch. It is a matter of interpretation of ranch size and what the perspective is.
The land is important to us because our livelihoods are tied into this grazing land. What will happen during the negotiations if we lose those grazing lands? What will happen to our livelihoods? I understand what will happen to the land claims if there are land claims on those areas. Our proposal is that they receive cash, they buy the land on a fee simple basis, operate the ranch as they choose, buy any other business that they want, and use all of that for their economic viability.
I agree that culture integration is a problem, and we do not see a solution to it. We do not know how it will work. However, I know that in our area, they have their own health systems and school systems that are working well and must continue to work well. I do not understand how they will work if they have their individual entities. How or where will they derive revenue from taxes to operate these systems? They have brand new, beautiful schools in our areas that are working, but without that source of revenue, they cannot continue successfully.
In respect of the cash only issue, I have referred to that and why we believe that cash only or cash in conjunction is one viable solution. We recognize that when land is taken away in order to enter into the agreement, the rural property owners will bear the brunt of these land claim issues. You are looking at the people that will be involved in that.
We worked very hard to obtain this land. What will the compensation be if someone has to go out of business because of lost grazing rights or leases? No definition has been set up to cover that. Therefore, we are concerned. If I choose to sell my place, who would want to buy my ranch right now because I utilize Crown range for the development and grazing of my cattle? This system is in place through a proper tenure, or lease system, that has been around for years and years in British Columbia. These new suggestions are quite different. Where do we fit?
The Chairman: Thank you.
Senator St. Germain: I have lost grazing rights without being able to defend myself, thus I know what you are talking about and I know what your concerns are.
I am concerned with your simplistic view of the solutions to these native issues in our country. Assimilation has been attempted through the residential schools and in other manners and it has not worked. It has created some of the most horrific situations in our society. I continually hear people saying that we have got to do something for our poor natives. Now we are trying to do something for them, but we have various people in our society suggesting that we should do something but "not this" and "not that" and "not really". You have come up with money as part of a solution. I do not believe that it is the answer because you cannot buy back dignity. The Nisga'a, the Gitanyow and the Gitxsan are responsible people. I have taken issue with some of the aspects of the negotiation process and others have questioned the constitutionality of the whole thing. In real terms, it maybe the only way we can proceed in order to restore their dignity, because we have destroyed it. When I was a police officer in Vancouver, I worked undercover for seven months. What I saw was a horror story of conditions for our native people, adults and children alike, who were forced there possibly because they did not have a place such as the Nisga'a will develop for themselves. I say to you, sir, in all fairness, I believe your third party involvement in the negotiations is critical.
(Take 1150 begins-Senator St. Germaine continuing: I believe that you must be at the negotiation table...)
(Senator St. Germain: continuing.)
** I believe that you must be at the negotiating table in some way in order that your interests can be dealt with fairly, openly and properly.
However, hearing the Cattlemen's Association advocating assimilation by way of cash reminds me of residential schools, and this may emanate from my background. I am part native and grew up in Manitoba where I was told that "half breeds" are thieves. However, I do not think that your recommendations in that area are very constructive. I say that in all sincerity as a land owner and cattle rancher in British Columbia. However, I do think that third party involvement is critical in order that we do not rectify one problem by destroying someone else.
You may comment in response to that if you desire.
Mr. Merz: Our entire paper deals with not destroying others, being present, and looking after third party interests. Mr. Newton's point was basically the same, although he spoke of a different procedure than what we advocate. He has been totally excluded, as have entire portions of the province. Fortunately, my area falls under the regular negotiating procedure and we have had an opportunity for input, which is critical.
The Chairman: The B.C. Cattlemen's association has been a long-serving member of the Treaty Negotiation Advisory Committee. You may not have found that to be as satisfactory as you wished, but at least, on a more or less contemporary basis, you know what is going on.
Senator Sibbeston: Mr. Chairman, I wish to make a comment which may offer some hope. I agree with others that cash alone does not solve the problem. I do not agree with Mr. Merz's contention that reallocation of land resources is a simplistic solution. For any group of people to succeed and flourish, they need money, land, resources, and government, and that includes non-natives. As non-native people came to this country, native people were pushed onto reserves, and we are trying to deal with that.
In the Northwest Territories, where I live, through land claims and the involvement of native people in government, people are beginning to flourish. As an example, in the 1970s, when native people in the NWT had no control or involvement in government and no ownership of land or money, they opposed a big pipeline which may have been beneficial to our country. As a result of their opposition, the Berger inquiry eventually suggested a moratorium. Now in the 1990s, after the land claims by the native people, they are the ones promoting a pipeline. That is only because they have resources and ownership of land and involvement in government. All of those things have given native people confidence and strength to take part in Canadian society. If the Nisga'a achieve what they are asking for, it will result in them becoming contributing members of Canadian society.
I appreciate that the NWT is not as populous as B.C. and therefore native people may have a better chance of achieving successes. Nevertheless, in northern parts of Alberta and B.C. it is still possible for native people to accomplish what native people in the NWT have done.
I say that to give some hope that all of this will not end up in disaster for native people.
Mr. Merz: I appreciate those comments. Our real concern is our livelihood. The biggest reason we are talking of a cash settlement is that perhaps it will keep the pressure off of us a little more than it may off of someone in Vancouver.
As I stated earlier, when Vancouverites drive by a piece of vacant land, they think that it could be used, but they do not realize that it is under tenure to many people. It is a very serious problem for rural people in British Columbia.
The Chairman: Thank you, Mr. Merz, for your presentation, which evoked much interest. We appreciate hearing your point of view.
(Take 1200 follows -- Our next witness....
(Following Take 1150, The Chairman, point of view...TAKE 1200 begins here, The Chairman continues)
Our next witness is Robert Nault, Minister for Indian Affairs and Northern Development, who is accompanied by Mr. Tom Molloy and Mr. Andrew Beynon. We thank you for returning, Mr. Minister. We know that you have been following the evidence and the issues that we have been discussing. Rather than preventing you from starting immediately, I would invite you to provide your comments. A number of senators have questions for you. Please proceed.
The Honourable Robert Nault, P.C., M.P., Minister of Indian and Northern Affairs: It is an honour and a pleasure to be back with my colleagues in the Senate and to speak about Bill C-9, to give effect to the Nisga'a Final Agreement. This being my fourth hour of testimony, I hope I can elaborate a bit on the comments I made in my first appearance.
A number of weeks has passed since we last met, and I understand that you have had the opportunity to hear from a significant number of important witnesses. You have certainly undertaken what I consider to be a thorough examination of the Nisga'a Final Agreement. I think you would agree that the input you have received from stakeholders and others clearly illustrated the needs for the parties to effectively balance all interests in a careful drafting of the agreement. As I stated in my previous submission to this committee, I think that we have achieved that necessary balance in the agreement before you. Moreover, I believe that the Nisga'a treaty is in keeping with the values of cooperation, decency and respect for others on which we pride ourselves in this country.
In my return appearance today, I thought it would be worthwhile to address five key issues that have received considerable attention in these many days of hearings. I am sure you are aware, as any committee would be, that my office has been following your deliberations very closely. We are very much aware of what witnesses are saying and the questions that senators are asking. I have chosen these five key issues because they have been raised over and over again. There are other issues, but I think these are five very important ones. The first is how the Nisga'a Final Agreement operates within the Canadian legal and constitutional context.
I wish to emphasize that this treaty was clearly designed to function within that legal and constitutional framework. The treaty defines Nisga'a rights under section 35 of the Constitution Act, 1982. In doing so, it also reconciles those rights with the rights and interests of others.
The relationship of the final agreement to Canada's Constitution, Canada's laws and the Charter of Rights and Freedoms is fundamental. Canada's full legal and constitutional framework is reflected throughout the Nisga'a Final Agreement. No constitutional amendment is required to give effect to the Nisga'a Final Agreement. Nor does the Nisga'a Final Agreement alter the Constitution of Canada. Nisga'a law-making authorities will operate concurrently with existing authorities, including the self-government provisions of the final agreement.
Perhaps Peter Hogg, Dean of Osgoode Law School, and a recognized authority on constitutional law in Canada, said it best when he stated:
It is true that once the Nisga'a treaty has come into effect, it will be constitutionally protected by section 35 of the Constitution Act, 1982, which recognizes and affirms aboriginal and treaty rights, but this occurs automatically by virtue of the language of section 35. Section 35 is not amended when a treaty is entered into. Nor does the treaty become part of the Constitution of Canada.
I would respectfully draw the attention of honourable senators to the many ways that the Nisga'a Final Agreement has been negotiated within the constitutional framework of Canada. In the general provisions chapter, paragraph 8 on page 17 of the English text expressly states that the Nisga'a Final Agreement does not alter the Constitution. This reflects our intentions that the final agreement should be interpreted in a manner consistent with the Constitution.
The general provisions chapter, paragraph 13 on page 18, also expressly confirms that federal and provincial laws apply to the Nisga'a and to Nisga'a lands. Moreover, the preamble of the Nisga'a Final Agreement act states that the Constitution is the supreme law of Canada. It also restates that the Nisga'a Final Agreement does not alter the Constitution.
This language in the preamble can be used by the courts when interpreting the Nisga'a Final Agreement act. Finally, consistent with the Nisga'a Final Agreement, the Nisga'a themselves have adopted an internal Constitution which expressly states that their Constitution is subject to the Constitution of Canada.
Honourable senators, before I leave this matter, I wish to refer you to paragraph 9 of the agreement's general provisions, where it provides that, "The Canadian Charter of Rights and Freedoms applies to the Nisga'a government in respects of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a government as set out in this agreement."
This makes it clear that the Charter will apply to all activities of Nisga'a government, including its law-making authority, and that the protections of the Charter will be available to all persons -- and I stress "all persons" -- affected by Nisga'a government decisions.
The second of these is the matter of Nisga'a citizenship. Webster defines "citizen" as "an inhabitant of a city or town, especially one that is entitled to its privileges of franchise." The Nisga'a will no longer have Indian Act bands under the final agreement, as I am sure all honourable senators are now aware.
(TAKE 1210 follows, Mr. Nault continues: Therefore, the concept of a Nisga'a band membership...)
(Take 1210 Begins -- Mr. Nault continuing)
Therefore, the concept of a Nisga'a band membership will no longer apply. Having said that, the Nisga'a right to determine Nisga'a citizenship would be similar to the authority of the many Indian Act bands who currently control their membership. The defined term "Nisga'a citizen" will be used instead to identify those who have the rights set out in the final agreement.
The Nisga'a Final Agreement clearly sets out the criteria for determining who is eligible to be enrolled as a Nisga'a citizen. In plain language, these include people of Nisga'a descent, their adopted children, and aboriginal spouses who have been adopted by a traditional ceremony.
Canadian citizenship, or permanent residency in Canada, are also prerequisites of Nisga'a citizenship. The Nisga'a law making authority would not prevent the Nisga'a from providing citizenship to non-aboriginals and, in fact, this possibility has been publicly discussed for longstanding members of their community who are deeply immersed in Nisga'a culture and community life. It is also worth noting that the Nisga'a law making authority cannot be used to take away citizenship from those persons who have successfully enrolled under the treaty.
No Nisga'a law can impose obligations on Canada or British Columbia to provide rights and benefits beyond those set out in the final agreement. That is, Nisga'a authority cannot confer Canadian citizenship, interfere in immigration matters, or deal with Indian Act status or rights.
Honourable senators, the third matter I wish to mention is the matter of minority rights. I believe that the presentation you received from Bill Young -- the owner of Nass Camp, the site within what will become Nisga'a lands -- shows how we have protected those rights in the Nisga'a treaty. It is useful to review a few of those points which he emphasized.
First, with respect to property rights, privately owned land are expressly excluded from Nisga'a lands. To ensure real protection of these property rights, the treaty provides guaranteed rights of access for property owners, and that the main Nisga'a highway will be a public one. As an extra measure, members of the public will have access to Nisga'a public lands for recreational activities. These, senators, are the terms of the treaty.
Second, nothing in the treaty takes away the political rights of Mr. Young, or any other non-Nisga'a citizen. All existing private landowners will continue to vote in federal, provincial and regional district elections. However, even though he is not a Nisga'a citizen, the treaty guarantees political rights to participate in Nisga'a institutions which could affect Mr. Young, such as health, or social services. As Mr. Young noted, the existing Nisga'a Valley Health Board already provides services to non-Nisga'a persons, and this has worked well. There is every reason to expect that the system which has worked well will continue to work well.
Honourable senators, the treaty provides a practical arrangement to provide real protections for the minority population. Most Nisga'a laws will deal with issues that only affect Nisga'a citizens. As an example, decisions on how to spend money obtained under the treaty. Consequently, the treaty will ensure that those Nisga'a citizens have control over their government on these matters. At the same time, this is balanced with provisions to protect the political rights of non-Nisga'a on matters that affect them.
Not only are these rights of political participation for non-Nisga'a, but there is also an obligation on the Nisga'a to consult in respect of the activities of Nisga'a public institutions. This is a very substantial protection because the treaty defines consultation as including a guarantee of a reasonable amount of time to present views on a proposal, and an obligation on the Nisga'a to provide a full and fair consideration of any views. This is the kind of protection that those people asked for, and that is appropriate and fair.
The fourth matter I bring to your attention concerns the fishery that is contained within the treaty. The Nisga'a treaty does not provide for an exclusive fishery; but, rather, the very opposite -- a shared salmon fishery in the Nass area for the benefit of all Canadians. The treaty is consistent with Canada's broad goal of promoting healthy fish stocks on the West Coast. Their first priority is the Nass River fishery. All other rights, including Nisga'a fishing rights, are provided for only in the context of the fishery itself as a priority.
The very first provision of the Nisga'a fisheries chapter says that all Nisga'a fishing rights are subject to conservation and laws enacted for public health and safety. Conservation measures can be applied for the benefit of all Canadians, and all persons who fish on the Nass River. In fact, the Minister of Fisheries and Oceans, will have full authority to impose conservation requirements and the Nisga'a have agreed to this in the treaty.
Conservation measures will apply to the Nisga'a and the other fishers who share in the Nass River fishery and apply even more strictly than they apply to aboriginal rights to fish today. The Nisga'a treaty clearly provides for sharing -- sharing the bounty and sharing the pain of conservation measures.
For chinook salmon, the average treaty allocation is less than their current harvest. If the Minister of Fisheries decides to shut down commercial or recreational fisheries which target any particular species of Nass salmon, then the Nisga'a commercial fisheries for these fish will also be shut down. This is clearly set out in section 33 of the fisheries chapter.
Some try to say that the Nisga'a treaty creates exclusive fishery rights because only the Nisga'a have the rights to fish set out in the treaty. It should hardly be surprising that the Nisga'a treaty deals with Nisga'a rights. The rights of other Canadians are already found in the ordinary law. The treaty was negotiated while taking into account the rights of other Canadians, such as existing property rights, the protection of the Charter, rights of other aboriginal groups, and the fishing rights of other Canadians, including those of non-Nisga'a commercial and recreational fishers.
The treaty does not deny or take away fishing rights from non-Nisga'a fishers. The Nisga'a will not have any property right to fish. The public right of navigation on the Nass River will continue. The Nisga'a cannot prevent public, commercial or recreational access to the fishery, nor fishing by other aboriginal groups under their aboriginal treaty rights to fish. It is clear that this is not an exclusive fishery.
Please note, senators, that the Nisga'a fish allocations are set out as a percentage of the allowable catch. Here is the key: A percentage must, by definition, be a share of the fishery.
I should now like to make some brief comments on the matter of overlaps. As you know, the position of the Government of Canada is that in negotiating modern treaties it is always preferable for aboriginal groups with overlapping traditional territories to reach agreement amongst themselves on their future use of the overlap areas. We recognize that sometimes groups may find it difficult to reach agreement and to address such situations in a way that resolves them. As you know, over a number of years, attempts have been made to facilitate a resolution of the overlap issue between the Nisga'a and the Gitanyow. The federal government has arranged meetings between the parties and supported mediation. Unfortunately, resolution has not yet been possible but we remain optimistic that it is still achievable.
Let me be clear. The federal government is prepared to move forward in the absence of an overlap agreement if, and only if, the following criteria apply: The group that is ready to settle has negotiated with its neighbours in good faith; measures taken to resolve the impasse have proven to be unsuccessful; and the treaty contains an explicit statement that it will not affect any aboriginal or treaty rights of any other aboriginal group.
(Take 1220 Follows -- Mr. Nault continuing: The federal policy on overlaps recognizes...)
(Mr. Nault continuing -- rights of any other aboriginal group.)
** The federal policy on overlaps recognizes that, in the face of unresolved impasses on overlap issues, the only solution may be to negotiate a treaty with each group in turn while respecting the rights of other affected aboriginal groups.
It is important to note that, in the case of the Nisga'a Final Agreement, the Nisga'a and the Gitanyow are both signatories to the 1991 Northwest Treaty Accord that addresses common property. In addition, the Nisga'a have entered into bilateral overlap memorandums of understanding with both the Tsimshian nation and Tahltan peoples. The Nisga'a Final Agreement contains an explicit statement in the general provisions chapter, and thus prevailing over other chapters, that its provisions will not affect the aboriginal treaty rights of any other aboriginal group. This, I respectfully submit, is the appropriate way to deal with this difficult issue.
Mr. Chairman, honourable senators, this concludes the remarks I will make to you. I thank you very much for your attention and this second opportunity to come before you to give the views of the Government of Canada and the Department of Indian Affairs and Northern Development.
I am now prepared to take questions.
The Chairman: Thank you, minister. Certainly your response covers the key topics that we have been reviewing. Senator St. Germain has particularly focused on the overlap issue, and I will ask him to lead off.
Senator St. Germain: Thank you, Mr. Minister. No doubt there are other questions besides the overlap, but that has been my main interest in these entire negotiations. If you followed the witnesses carefully, Mr. Minister, were you apprised before you made this statement today of the Gitanyow's presentation last night as well as that of the member from the Gitxsan, Neil Sterritt?
Mr. Nault: Yes, I have. They were gracious enough to give me copies of their presentation a few days ago.
Senator St. Germain: What they say in their presentations, minister, basically flies in the face of what you are saying, namely that the government has negotiated in good faith.
Another issue has arisen. On your right is Tom Molloy. I think the government has placed him in an untenable position as federal negotiator. They asked him originally to be at the negotiating tabling as the negotiator for the Gitanyow and the Gitxsan, and then they moved him over to the Nisga'a table where we know there was a definite conflict and a difference of opinion as to which land was which and what belonged to who. He went over to the Nisga'a table, and I believe there possibly could be information that would be detrimental to the Gitxsan and Gitanyow. Why would the government do that? Do you not see a conflict there, sir?
Mr. Nault: No, I do not think so. This is all knowledge that is made available to all parties. We, through the BCTC, make information available to all sides. As a matter of fact, we make the information available to the general public. Whether it was Tom Molloy or anyone else, they would all have the same information. It is perceived to be an open process. I do not quite understand the whole issue of conflict of interest.
Mr. Malloy wants to deal with this, because he has been made aware of it. I would like him to elaborate on the role of negotiators in this process to enlighten you, senator, as to how it might work.
Mr. Tom Molloy, Chief Federal Negotiator, Department of Indian and Northern Affairs Canada: Thank you very much. The issue of conflict arose at the previous hearing and at the hearing last evening and again today, and that was really the first time that the issue has ever been raised to myself or the government. I act on behalf of the federal government. Any knowledge that I have is within the domain of the federal government. I do not act independently or secretive of the federal government. It is like being part of a corporation where the knowledge of one officer is the knowledge of the entire corporation.
Originally, I started off with 33 files for which I was responsible at the beginning of the British Columbia treaty negotiation process. There are 51 negotiations presently going on in British Columbia. I believe there are something like eight negotiators representing Canada. I would fully share any knowledge that I have within the federal system, as do other negotiators. There is no such thing as taking what might be called secret knowledge and using it to the advantage or disadvantage of other groups. As the minister said, it is a very open process. The knowledge I have from whatever tables I am at must be passed on. Ultimately, the decisions with respect to mandating and so on are made by ministers and also, ultimately, by cabinet. Thus, all the parties within the system would be in the same position as I am in terms of the knowledge that I get at one table or another.
Senator St. Germain: Why are negotiations, then, not held in the wide open public? They are not. The accusation is that they were done secretly. Whether they were secret or private or whatever, the perception is that you were the defence counsel and then you became the prosecutor.
Mr. Molloy: That is not my role. I am a negotiator. I am charged with negotiating a number of agreements with different people. I see it no differently than a negotiator within a corporation who is negotiating with three or four or five different unions spread out across the country. I do not see how the information that you get at one table could be used to prejudice the other. Canada does have an obligation to negotiate with First Nations in good faith, recognizing the honour of the Crown. Those are the things that all the negotiators take to the table. We do not seek to get information from one group that can be used to the detriment of that group.
Senator St. Germain: Mr. Minister, we were given these publications. I have seen them before and have had one for quite a while. The original Nisga'a claim was a certain size, and it ended up being twice as large, encompassing the Gitanyow lands and some of the Tahltan lands in the North and some of the Gitxsan land. A core land was established, and then these fee simple parcels were given within the disputed area. These are described to us as being the highest and best use sites within the disputed areas. It seems that the negotiators failed to negotiate.
I have not been able to ask the Gitanyow, and hopefully I will be able to ask them after you leave, as to whether or not they would accept an arbitrator. If I remember correctly, Mr. Chairman, I think Mr. Derrick, who represented the Gitxsan, said that he would have accepted arbitration. I do not want to speak for the Gitanyow, but they clearly stated that they felt that their case was strong enough that it would face the test of public scrutiny or the scrutiny of an arbitrator and that they would be successful. In the spirit of that, these questions are being asked.
Mr. Minister, I stand to be corrected, and I am not here to be confrontational, but it seems we are treading on the minority rights of aboriginal peoples in this area. Others have said that this has gone through because of political reasons in the province of British Columbia, which is my province. Everything is political to a degree. I ask you, minister, do you think in all fairness that we should not take some further steps before we enshrine this agreement?
(1230 follows -- Senator St. Germain -- professors at law were here yesterday.)
(Senator St. Germain: continuing.)
Professors of law were here yesterday, and they said that litigation was not the answer, but yet, in the final analysis, litigation would be the only way of dealing with these problems. We are forcing this minority group, Gitanyow and Gitxsan, into litigation, which is very costly.
Do you agree with proceeding in this manner? Why are we not going to an arbitrator? If we are not, will you give them the money to defend their position?
Mr. Nault: There are days when I put my labour negotiating hat back on, but I try not to do that because we have people like Mr. Molloy who negotiate on behalf of the Government of Canada. It is unfortunate that the Gitanyow have left the impression that somehow things are not working, because they are still at table with us. I have a list of all of the meetings we have had in the last few months -- and I am prepared to share it with you - at which we have made significant progress on working toward a treaty with that group as well. It seems passing strange to me that they would come to the committee and suggest otherwise, because we are there right now at the table.
I am not prepared, however, to take this opportunity to have them negotiate some changes to what we are talking about by suggesting to senators that they are being mistreated. We have protected their rights in this treaty, as we will protect other rights of other First Nations, as we work out the overlap issues that occur all across the country. I mentioned when I last appeared before you that we have worked hard in places like the Northwest Territories and Yukon, and we are doing the same in British Columbia. I mentioned a few in my presentation.
The issue here, senator, is that we have to be careful that we do not get the impression that somehow we are pushing the Gitanyow to go to court. If they were being pushed to go to court, what are they doing still at the table with me? If they are accusing me of negotiating in bad faith, I take that seriously, with my labour background. I have written a few letters to a few First Nations in the last couple of months since I became minister that went something like this: "If you were accusing me of negotiating in bad faith, shut the table down and go to court." I take it as an insult when they say that we as a fiduciary are not negotiating in good faith. It is unfortunate that some First Nations use this word loosely. I take it seriously. I received a letter back, just so you know, that basically said, "We did not mean that, we were just suggesting that your mandate is not as flexible as we would like it to be." Yes, I have a mandate from cabinet.
Senator St. Germain: But they have gone to court. They have gone in the Luuxhon case and Delgamuukw. In the Luuxhon case, you have been instructed by the judge to desist from sharp dealing. I am not a lawyer, and you have legal counsel beside you where I have not. You have appealed this decision. The judge has told you to bargain in good faith with these people, yet the federal and provincial governments have appealed rather than accepting the judge's recommendation that you bargain in good faith. It is Chief Justice Lamer who said that, as quoted here by several witnesses. We are all here to stay. It is not a question of who is going.
Why is it that you are appealing what we have asked the judge to decide? We are forcing these people into litigation. I do not think there is anything wrong with staying at the table. They are looking for a resolution, not a problem. If they were looking for a problem, they would say, "Sure, let us scrap it and we will go to court."
Mr. Nault: Before I let Mr. Beynon give you the legal reasons why we are at court, let me make something clear. There have been a number of First Nations who have accused this government -- and this minister, I suppose -- of not bargaining in good faith because they do not like our mandate. They think the mandate is not strong enough, that there is not enough land on the table, or enough cash on the table. I have said that, because I come to a particular negotiating position, it does not mean I am negotiating in bad faith. When I was a labour negotiator and put something on the table and the company said to me, "We have no intentions of accepting that," I did not say, You are negotiating in bad faith. We were just being given the bottom line. If our bottom lines are not to the liking of some of the First Nations, then they have two options. They can try to convince us to change those bottom lines, which we have done in British Columbia where we have made some changes over the last number of months, or they can walk away from the table and take a different route, which is litigation. That is perfectly within their right.
I will let Mr. Beynon give you the legal reasons for our appeal, but it is in essence because there is some strong suggestion that we have to adhere to a principle that is not conducive to negotiation. In fact, you just agree on what a particular other side of the table wants. I will let Mr. Beynon give you the details as to why we are there because it is not as has been presented in the submission that I understand you heard.
Mr. Andrew Beynon, Department of Indian and Northern Affairs: Maybe I can add a few words. As Mr. Molloy said, the Government of Canada accepts the notion that it should be negotiating in good faith. In the Statement of Defence that is filed in the Luuxhon case, we say that there is a political commitment of the Government of Canada to proceed in that manner, but it is precisely that. It is a matter of a political commitment. It is a matter of an agreed upon approach to negotiations. Our reason for appeal is that we are suggesting to the courts that the courts should not dictate the procedure for negotiations and dictate exactly how it is done. It is better left to the parties to negotiate themselves.
The other comment I should make is that you were suggesting, senator, that the court in the Luuxhon case had accused the Government of Canada or, perhaps, the Government of British Columbia, of sharp dealing. I would offer the comment that the issue of whether or not there is any breach of good faith, if that is a legal duty, is not an issue that has been tried by the court yet. That awaits determination.
Senator St. Germain: We have those who say that this is an act of aggression against the people on the ground there, Mr. Minister. What your legal counsel has said is that litigation is not the answer. Yet, according to the professors who came here, and who do not want anything changed, these people will be forced into litigation.
Based on the history of the area, do you not think that an arbitrator should be brought in, if the federal and provincial negotiators cannot deal with these people, if these people are prepared to accept an arbitrator?
Mr. Nault: There is always that option, senator. However, it is our preference to have the First Nations deal with themselves. They know best their history. Certainly, I am of the view that we will be at the negotiating table with these two groups and that we will be successful. There will be a meeting of the minds between themselves and the Nisga'a. Contrary to the position they have taken in front of you, we are still at the table and we are still making significant progress. Without getting into the details, because we are not there yet, we made an offer in November. They are still mulling over that offer and we are now in the process of looking at land selection. We are making significant progress.
Thus, I find it strange that someone has come to the committee and suggested somehow that we are not making progress. We are. Without make things too public, I am prepared to brief honourable senators on the details of where we are with this. I find it a bit disappointing that people would come to the committee and suggest that we are in the process of going to court with these groups when we are not. We think we are making good progress.
Senator Tkachuk: I hope that on Tuesday we can take you up on the briefing of the overlapping land claims.
I want to follow up the questions asked by Senator St. Germain with a question to the minister or Mr. Molloy. Approximately when was the issue of the territory that we find in the final agreement resolved?
Mr. Molloy: The actual lines on the map would have been agreed to some time after the agreement in principle.
(Take 1240 Follows - Mr. Molloy continuing: The boundary had been agreed...)
(Mr. Molloy: continuing.)
The boundary had been agreed to prior to my joining the negotiating table. The core lands had been agreed to prior to my joining the negotiating table. The issue with respect to the fee simple lands had received some general agreement as to where they might occur. The province is more involved with it than the federal government, there were changes made to the fee simple parcels as a result of representations that were made with respect to them.
Senator Tkachuk: In what year would that have been?
Mr. Molloy: I was not there at the time. It was done prior to my joining the table in 1996.
Senator Tkachuk: Yesterday, we heard representation from either the Gitxsan or Gitanyow who gave us this book entitled Tribal Boundaries in the Nass Watershed. It was Mr. Sterritt's group. They had asked for a reply from the Nisga'a. If this was arranged around 1996, the Nisga'a really had no self-interest in negotiating the land out of their agreement at all, did they?
Mr. Molloy: I am sorry, I do not follow you.
Senator Tkachuk: If the boundaries were organized in 1996. The book was sent in 1995 and they asked that the Nisga'a come back to them and object to whatever they objected to in this particular boundaries book. However, since 1996 the Nisga'a would have had no self-interest in negotiating these boundaries whatsoever because they were set and they had them.
Mr. Molloy: As far as I am aware, discussions had been going on between the Nisga'a and Gitanyow for many, many years. I am sure that many of these issues were discussed between them.
In terms of the boundary for the Nisga'a claim, we were satisfied that with the non-derogation clauses that appear in the treaty, as well as the fact that in terms of the wildlife area and those kind of things being non-exclusive, that we were not in a position to be interfering with the rights of the Gitanyow. There were mechanisms put into the treaty to accommodate in the event that there was some unintended interference with Gitanyow rights.
Senator Tkachuk: I think every one in some way acts in their own self-interest. I will try to put it in other terms.
According to this agreement, the Nisga'a are compensated for whatever land they lose under the agreement in future negotiations.
Mr. Molloy: There is provision to renegotiate, whether it is compensation or additional land.
Senator Tkachuk: Since 1996, they may have gone to the negotiating table but they have absolutely no self-interest in settling the boundary dispute because if they go to court and they win, then they get to keep the land. If they go to court and they lose, they get cash. The only way they get cash is if this agreement passes, therefore, I cannot see any self-interest for the Nisga'a.
It is no wonder the other groups are frustrated. They have come to the table but why would anybody in their right mind, and I know the Nisga'a are in their right minds, want to negotiate this?
Mr. Molloy: As I mentioned, there were negotiations around the fee simple parcels that changed as a result of some of the representations that were made. We negotiated other fee simple parcels with the Nisga'a.
Senator Tkachuk: Let us say that this passes. They go to court and the Nisga'a lose. What estimate does the federal government have on what it would cost the Canadian taxpayers, whose interests we also must protect, because of what I would consider to be negligence by the federal government? How much money would it cost the Canadian taxpayer to pay to the Nisga'a to satisfy the agreement they would have lost in court when we could have resolved it earlier?
Mr. Nault: Mr. Chairman, there are a lot of hypothetical there -- what if, what if, what if. The fact remains that we are not in court. We do deal with overlaps. It is not as it is being perceived. The Gitanyow and the Nisga'a from the Nass Valley happen to be very close. You have probably heard that in the submissions.
This is not about whom wins and who loses. Certainly, we have not arrived at an agreement yet. However, we are comfortable that we will arrive at one. To suggest or ask the Government of Canada what happens if a meteorite hits us, maybe I could make up an answer, but I cannot tell. I do not know what will happen in the future. I do know that if we do not get treaties signed in British Columbia, and if we do not get modern day treaties and bring certainty to our relationship, it will cost us a heck of a lot more money than may be suggested in your comments, senator, because we will then have to deal with a lot of loss of economic opportunity in a changing relationship.
The Chairman: You have one more intervention if you need it, Senator Tkachuk.
Senator Tkachuk: Minister, you claim that I am asking hypothetical questions. We have the Gitxsan and the Gitanyow here, as well as the Nisga'a agreement, which everybody has said, has to pass. These are not hypothetical questions. Certainly, you did not want hypothetical answers because in this agreement it says that if they lose they will get compensation for the land they lost, which was claimed when this all could be resolved before this bill is passed. I will state that and you can comment after, but I have one other area I would like to cover which is taxation.
My understanding is that at eight years and 12 years, they will pay provincial tax and federal tax. I believe it is eight years from the time of the this agreement coming into force. I also understand that there is an exemption to that. I would like you or Mr. Molloy to help me through this. There is an exemption to that, I do not know in what instance, perhaps it would be because another Indian band in the treaty process in British Columbia would get a tax-free exemption, and then this would be open to negotiation. Is that not correct?
Mr. Molloy: There is provision in the tax agreement to provide certain exemptions to Nisga'a governments so that they are treated in the same way in which the federal government income tax laws apply to other governments in Canada. There is also a provision that deals with, again, government treatment of governments, so that if there are other provisions that are negotiated with other First Nations after effecting the way in which the governments are taxed, then we would relook at that in terms of the tax agreement. The tax agreement is outside the treaty. However, the eight years and 12 years to which you refer, personal tax exemption is within the treaty and, therefore, is not subject to change.
The Chairman: This is definitely your last question, Senator Tkachuk, in this round.
Senator Tkachuk: If the eight year and 12 year provisions are not in the treaty, which will fall under section 35, it can probably never be changed unless there are changes in the federal laws on taxation. Is that right?
Mr. Molloy: Under the treaty at the end of the eight year and 12 year period, the individuals will be treated in exactly the same manner in which other taxpayers are treated by the Income Tax Act.
Senator Tkachuk: That will be protected under section 35, will it?
Mr. Molloy: Yes.
Senator Andreychuk: Mr. Minister, thank you for coming back before us today. I have no self-interest in saying this but I think that, perhaps, if you had been in the negotiations at the start with your attitude, perhaps there would be a different conclusion to the Gitanyow, the Gitxsan and the Nisga'a.
(Take 1250 Follows -- Senator Andreychuk continuing: I am not sure that...)
(Take 1250 begins--Senator Andreychuk: continuing)
I am not sure that your position, as you are stating it, has always been your government's position. That is why we are in such a conundrum. Let us hope the future is better for all of us.
In the interests of the fine reputation of the negotiator and the neutrality and impartiality of the government, I suggest that moving a negotiator from one side of the dispute to the other, may not be a conflict, but it does have the perception of one. It would be like the Crown moving a prosecutor halfway through a case. There must be a good reason and I doubt whether you would move a negotiator to another party in the proceedings. For future reference, it is for the benefit of people like Mr. Molloy, as well as for the parties involved, that it not be done.
I want to turn to page 6 of your brief, minister. You indicate that the federal government will move in the absence of an overlap agreement, and you set out three principles. One principle is that you would not move if the group that is ready to settle has negotiated with its neighbours in good faith. What if the other groups are negotiating in good faith? The third statement indicates that the treaty contains an explicit statement that it will not affect any aboriginal or treaty rights of any other aboriginal group. In this case, you believe that the Nisga'a negotiated in good faith and so you move ahead in the disputed area; you put that disputed area within the agreement. You then put the management and the process that you have negotiated with the Nisga'a into that disputed area. After that, you then say, "but, if somewhere down the line there is a different conclusion" -- in other words it could be Gitanyow land or Gitxsan land -- "then they will get it and you will deal by way of some sort of compensation for the Nisga'a". Have you not really lost your impartiality by doing that? You have already said that you think it is Nisga'a land because you have included it in the agreement. Is that not a clear signal to everyone that that is your preferred interpretation of the dispute? That is what troubles me in respect of your chosen approach.
Continuing on page 6, you suggest that, "there will be some sort of methodology for compensation for the Nisga'a". However, you put the Gitxsan and Gitanyow and anyone else who is in dispute in the future, in a difficult position. They do not have any money, except what they can borrow or have from their own means, to negotiate their side of the dispute and they have no guarantee of outcomes if they do not win. You have lost your neutrality. You have preferred one group of aboriginals to another. You have set up a hierarchy of aboriginals. It seems to me that that is the most troublesome thing in this agreement.
Mr. Nault: I am a little concerned and I am being careful, which is not normally my style, only because we are in serious negotiation with these people, contrary to what they have told you. I do not want to make comments that would jeopardize negotiations, despite my annoyance with some of the comments that have been made about our efforts and about what we are trying to achieve.
It would make absolutely no difference if Tom Molloy were at the table or not. The information that he has is common to all the negotiators in British Columbia. There are no differences. As a matter of fact, one of the best negotiators in Canada is at the table, because that is what Tom is, and I do not mind telling you that. For the Gitanyow to suggest that I took the best negotiator away from the table and put someone with less experience in that place, seems rather strange to me. I will ask them directly if that is what they want, and if that is what they want, I will do that.
However, I find it strange because,as Mr. Molloy knows, every one of my negotiators in British Columbia knows. There is no difference. We have a common mandate, to some extent, about some positions, and we have certain principles in common. I do not go into these negotiations with a blank piece of paper, but rather I go into them with a mandate from cabinet, as the Government of Canada, that states our bottom line. For example, when I state that the Charter will apply, I would never suggest that we would withdraw or forget about the Charter if they said that they did not like it.
The second issue is that if we, as a government and governments, were held, to some extent, hostage by the particular political interest of one group over another, we would never get the job done. Thus, we have built in a process of protection so that we can move forward. Are we convinced that we have done the right thing and the suggestion that you are making is that somehow we are not impartial?
Of course the Government of Canada has a position as does the Government of British Columbia. It must be remembered that this is a negotiation. I believe that people sometimes forget we are negotiating aboriginal rights. We are not coming at this from a Supreme Court that has said: "Here is what you should give people". We are saying that you have aboriginal rights and now we will define those rights in the modern context and come up with an agreement. That is what the treaty does.
I have difficulty understanding why some people think the Government of Canada would not have a position at the negotiating table. Of course we do.
Senator Andreychuk: Is it your position at the table that the lands in dispute, but covered by the Nisga'a agreement, are legitimately within the purview of the Nisga'a?
Mr. Nault: Yes. If it is proven otherwise, through a process outside this treaty, then we will make the necessary changes. That is the protection we allow in the treaty. We certainly would not be going ahead with this treaty if we did not have an opinion, or the belief, that this was the process in which we believe.
Mr. Molloy: Under the British Columbia Treaty Commission process, First Nations define their traditional territories, as the Gitanyow did and as the Gitxsan did, and we were negotiating based on the territories that they described. We recognized that there is an overlap issue between the Gitxsan, the Gitanyow, and the Nisga'a. That is why we put in those three sections. That is also why, over a period of time, we tried to bring the parties together.
There was fallacious talk about me moving from prosecutor to defender. I did not move from one side to the other; I still represented Canada. Our role was not to take sides against one First Nation over another. We tried to facilitate, arrange meetings and set up the mediation process in order to bring the parties together to work out these issues.
With respect to the area where there is overlap, we have provided the rights to the Nisga'a in respect of matters that are affecting them. It is their wildlife rights that they are managing in the wildlife area, and it is their hunt and so on. We are not dealing with other people's rights. There is no reason in the world that other rights cannot be negotiated in that overlap area with the Gitanyow and the Gitxsan.
Senator St. Germain: What about the fee simple?
Mr. Molloy: That is a question of negotiating. The Nisga'a received the core land and they also received some small parcels of fee simple lands outside the core area. I have seen the offer that was made by the federal government and by the province to the Gitanyow that involved parcels of land. Now, it is a question of the parties negotiating what those parcels will actually be.
The Chairman: Senator Andreychuk, are you done?
Senator Andreychuk: I have just one more question.
There have been two points of view, but all points of view seem to say that section 35 has to be given meaning and that we must move toward giving the rights to the aboriginal people. Some suggest that that can be accomplished without a constitutional amendment, where others say a constitutional amendment is needed. We heard from Mr. Estey that if we do not seek some reference from the court, or if we do not allow the court processes to evolve, and if we should happen to be wrong by saying that we do not need a constitutional amendment, that that will wreak more havoc than perhaps delaying and taking the obvious step of the constitutional amendment.
(Take 1300 follows--Mr. Nault: You may recall...)
(Following Take 1250, Senator Andreychuk, obvious step of the constitutional amendment. TAKE 1300 begins here )
Mr. Nault: You may recall that the court ruled that they would stay the case with Mr. Campbell until the bill passed. If you did not proclaim this particular treaty, then the courts would have nothing to work with. What would you give them as a reference? The bill has not passed.
Senator Andreychuk: There could be a reference to the court.
Mr. Nault: You cannot send a reference to a court on a bill that has not passed.
Senator Andreychuk: Yes you can.
Mr. Nault: We are not complete with our work. You are saying: Do all the work, agree to everything but do not proclaim the bill. Is that your argument?
Senator Andreychuk: The argument is to get greater certainty so that we can move ahead with clear and definitive instruction on this issue so that we get rid of the grey areas. I can be done by either a reference or an amendment.
Mr. Nault: With the greatest respect, the highest court in the land is the one in which you are sitting. I, for one, have been told, by every single Supreme Court ruling that I have read in the last 10 years or more, that the courts are telling us to get on with negotiation and to create a relationship with First Nations, not the reverse. That is to say, "Please do not send it back to me." The courts are not asking for that.
I find it rather strange that Mr. Estey, who sat on the bench himself and has had the opportunity to read all the cases since his retirement in 1988 - and, there have been a number of them, for example, Sparrow, Delgamuukw, and so on -- would make the statement that he did here. In those cases, the court made it clear not to continue to send these things to them but to get on with it because this is not only a legal matter but also a political matter. That is what a relationship is. It is my opinion and the opinion of the Government of Canada that this is the appropriate way to proceed. If the courts decide or someone wants to go to court, as they do on all sorts of matters that come before this place and legislation that we pass, then so be it. However, to suggest that we would hold up legislation or implementation of what we believe in politically in order for someone who is not elected to decide for us is difficult to accept. That is not the courts' indication to us, if you look at all the rulings. They are telling us the reverse. They are saying: Get on with the job of negotiating a relationship with First Nations. That is what this objective is.
There are differences of opinion, I agree with that. Certainly, that matter will be dealt with. However, that is the learned opinion that has been given by our justice people and many learned scholars -- some who are in this room -- who think this is not a constitutional amendment. I would not be prepared to wait until the courts decide for us because we would then go back to the same problem we have had for a number of years, namely, letting the court define "political relationship". Let us define a relationship that needs to be done in a modern context by us, as parliamentarians.
Senator Grafstein: Minister, you have summed up my position quite well. Mr. Estey's approach and others which are to delegate our responsibility to a court begs the question. On the other hand, when I sum up the evidence, it is not very complicated. We have two former at Attorneys General of British Columbia, one former Supreme Court Judge of Canada, one law professor from McGill, and at least three senators who have serious reservations as to whether or not the powers allocated here and the way they have been allocated exceed sections 91 and 92 and go beyond the purport of 35. Thus, we have serious doubts about it.
We are now in a position to proceed, since you have ruled out a reference to the Supreme Court to decide whether or not this bill in its current form is so egregious that it exceeds the Constitution, notwithstanding your brilliant argument in your paper today. We will leave that, because it sets out the issue clearly.
Let me deal with a matter that is a constitutional and a political question that continues to reverberate with me. I appreciate greatly your careful references to the issue that I raised with you at our first hearing, where you felt it was an incidental matter . I think you understand now that there is more weight to it. Let me put a proposition to you to see if I can convince you both constitutionally and politically.
Under the model presented by you, we now have a governance model that places it beyond the reservation of the federal power -- not beyond the courts -- as it applies to the Charter. There are anywhere from 11 to 14 to 20 powers granted to the governance model of the Nisga'a that will govern the lives, as Mr. Estey put it, at the street level of the people who reside on the Nisga'a lands. You referred to Mr. Young, who I was not concerned about, who has his own property. He has his own rights and his own taxation methodology and has full rights to appeal his taxation powers and his rights to the provincial government. He is not really included. My concern remains the minority of minorities within the boundaries of the Nisga'a lands. This has been accelerated, frankly, in the last two days, because we have now heard from both the Gitxsan and the Gitanyow that it may well be that other members of other bands may continue to reside on Nisga'a lands.
We then go back to Webster -- and, I wish to thank Mr. Webster. Your statement is that, "Mr. Webster defines "citizen" an as inhabitant of a city or town, especially one that is entitled to privileges and franchises."
We have now moved beyond the first proposition that was made here, namely, that the only rights and powers we are dealing with for these residents, these non-Nisga'a citizens, are things that deal with their local affairs. They are cultural items. We are talking about anywhere from 14 to 20 items. I have not parsed the powers, but look at them. They are very broad. They are not minor. They do not just relate. All that the non-Nisga'a residents have is a constitutional right, under the Nisga'a constitution, to be heard and participate. You are quite right, Mr. Minister, they have said that they have the right to change and allow these non-Nisga'a residents to become citizens. They have the power to do that. I asked Mr. Gosnell and Chief Fontaine that question, namely, have you solved the problem of minority rights? The answer is "No; sort of; we will; we will think about it; not yet; not quite; by the way, it is not important."
I leave you with this proposition: Constitutionally, it is not desirable. However, is it a politically desirable situation to transfer 11 to 20 powers to a body of good men and women and not allow the residents within the ambit of their power not to have the right to vote? In no way shape or form would that threaten them in terms of their culture, lifestyle or day-to-day life. How do you feel about that? Mr. Minister, and what are we to do?
Mr. Nault: You are asking me a very political question, senator, and one that I have asked myself on a number of occasions as it relates to a definition of a First Nations person or an aboriginal person, for that matter. The law of the land now is such that non-natives have decided to define, for native people, what an Indian is under the Indian Act. I find that to be completely unacceptable. People should be self-defining. Therefore, we must give aboriginal people the opportunity to self-define themselves over time. We have not done that up to now. That is what this is about.
I agree with Mr. Gosnell and Phil Fontaine that, over time, that will change, because we are at this point in time working on a proposal with First Nations people to allow them to self-define themselves and to look at the whole issue of registration and defining what a citizen is or a band member.
(TAKE 1310 follows, Mr. Nault continues: If we stay with the present system we have now it is defined under the Indian Act.)
(Take 1310 Begins -- Mr. Nault continuing)
If we stay with the present system, it is defined under the Indian Act. It was created by us, as non-natives, as to what is your culture and whether you can define yourself to be a status Indian based on those things.
My political preference is to allow people to make those decisions and to include a non-native person as a citizen if they are involved in the culture and not just a passerby. I know there have been suggestions that if you have a teacher or a nurse that happens to come for a few years they should have the same rights as a Nisga'a person. I would say no, that is not the case. However, if you are a lifelong person, living there for your whole adult life or your whole childhood, then I believe there is room for them to be part of the democratic process.
Senator Grafstein: We have a five-year rule in Canada.
Senator Lawson: I wish to refer to one of the presentations yesterday from the B.C. Wildlife Federation. I will start with a small thing because sometimes they are the most upsetting and the most offensive when they appear to be so blatantly unfair.
In the presentation there was indication that the participation of non-Nisga'a people on the wildlife committee board will be hampered by the fact that the Nisga'a participants will receive $20,000 annually, plus expenses, for their participation. Non-Nisga'a will receive nothing and will need to cover their own costs. Is this contained in the treaty or in non-treaty documents?
Mr. Beynon: If you look at paragraph 46 of the wildlife chapter, page 141 in the English text, it deals with the composition of the wildlife committee and it identifies the split between federal, British Columbia and Nisga'a representatives. As far as I am aware, the treaty does not speak at all to the question of costs of participation.
Senator Lawson: Someone spoke about it, and we examined that issue carefully and we were told that this was the deal. I think that person will be the nominee.
Mr. Beynon: I am not aware of the provision in the treaty to which he referred.
Senator Lawson: Minister, I wish to get an undertaking from you. Surely, in the face of the multi-billion dollar lawsuit on pay equity and so on, someone has learned the lesson that this is not the thing to do. Fairness must apply. If there are nine people they all get paid the same, you do not have one rate for those on the Nisga'a committee and a different rate for someone else.
Mr. Nault: Are you talking about a non-native now?
Senator Lawson: I believe he was a non-native. He was the nominee.
Mr. Nault: We will give you an undertaking to get back to you with that information. We are not aware of this $20,000 issue. I certainly can find out for you and let you know.
I will tell you this, senator: The Government of Canada and this minister's fiduciary responsibility is vested with an obligation to give provincial like services to First Nation people. I do not have the mandate to give non-native people that. That is done through another ministry, or department or the province or whatever. Unless this is a board created specifically to deal with Nisga'a lands and issues, I would think that we would not be funding a non-native person who is put on the board to deal with wildlife in the whole Nass Valley. We would be dealing with the First Nation people, as we have done on numerous occasions. I am not quite sure of the details but I certainly will get back to you, senator, and give you the information.
Senator Lawson: He did tell us it was a provision of the agreement and they had made a case to have participation, on behalf of the wildlife federation they would be there. I do not care whether it was $20,000, or $2 a year or $1 a year. Whatever it is, everyone should get the same dollar. All I want is fair treatment.
You said earlier, minister, that as far as the Gitanyow are concerned you were protecting their rights. I must ask how are you protecting their rights by ceding a large portion of their ancestral land to the Nisga'a?
Mr. Nault: Senator, as I said before, that is a difference of opinion, and so you can accept their opinion over the Nisga'a, if you like. We have decided not to decide one or the other, to a point of saying that there may be the opportunity to revisit this in negotiation and come up with a solution. That is why we have protected them in the treaty, in order for their rights not to be trampled on.
You senators will need to make this decision for yourselves, as to whether you want to choose sides on whether someone is telling you the truth or not, or someone has had a difference of opinion with someone else. We have tried to go to the negotiating table with the notion of bringing people together and come up with solutions, and the overlap will include some of the Nisga'a lands.
Senator Lawson: You and I have both been negotiators and I have negotiated for the Province of British Columbia, for the construction industry as a whole. The process was very simple. We would agree on an issue, we both signed it, it went into the agreed box. If we had a technical or complex issue it went in the hold basket. Then, at the end of the negotiation, there might be three or four items in the hold basket, perhaps it was less important then, or if we could not settle we would arbitrate. However, you are not doing that. You are taking sides. You decided in favour of the Nisga'a, you turned the land over to them, you have severely prejudiced the Gitanyow in their position in my opinion, and what troubles me is what Mr. Molloy said a few minutes ago.
You make a case that the land belongs to the Nisga'a, therefore, I wish to ask the question. Tom Molloy said that you made an offer to the Gitanyow on these fee simple parcels. The only reason you made an offer, which is obvious to me, is that you assumed they owned the land, or why would you bother making them an offer? Is that correct?
Mr. Molloy: As I said, under the British Columbia treaty process they defined what they considered to be their territory and the Government of Canada has been negotiating. As I say, Canada and British Columbia made an offer to them with respect to parcels of land, as the Government of British Columbia did with the Nisga'a, as Canada and British Columbia have done with several other First Nations in British Columbia.
You used the phrase, "ceded a large portion of land," and I do not accept that statement.
Senator Lawson: What did you do? Give me your words. You are a lawyer and I am not. Did you give it to them? Did you put it in their boundaries? How did you arrive at that? I do not care if you ceded it to them or gave it to them, but the Gitanyow lost the land.
Mr. Molloy: You said "a large portion" of their territory. When I look at the maps I see the five parcels.
Senator Lawson: I am not talking just about the five parcels, I am talking about, according to the map, what we saw from the Gitanyow. There is a large portion of their land on the map, at least to my layman's eye, which went to the Nisga'a. That was in addition to the five separate parcels, and at least three of the five separate parcels came from former territory claimed by the Gitanyow.
Mr. Molloy: It was in an overlap area where we recognize both the Gitanyow and the Nisga'a and, in some cases, the Gitxsan, Tahltan, and Tsimshian have interests.
Senator Lawson: You also concluded that a large portion, ceded or whatever, belonged to the Nisga'a because you have it in the treaty. You must have concluded, in order to make an offer to the Gitanyow, that some of these fee simple parcels in their former claimed land, you were making them an offer because you believed it to be owned by them or it would be their property.
Mr. Molloy: We accept that that is the area they are claiming and we are willing to negotiate on the basis of those boundaries.
Senator Lawson: The Nisga'a are obviously outstanding negotiators. I think this should go in the hold basket. You should settle that issue separately, adopt the treaty for the rest of it, but what is in conflict settle it after the fact and try to negotiate. If you cannot negotiate then arbitrate. However, you made provision that if the Nisga'a lose whatever additional lands that are being claimed by others, they will be compensated.
My second question is: What arrangement have you made? Let us assume the Gitanyow fail by court action and they lose the land. What compensation are you prepared to give them?
Mr. Molloy: I believe you answered that yourself. If they go to court and lose, they obviously have no aboriginal right or interest in the land so obviously there would be no compensation. If they went to court and proved that they had an aboriginal right, and that that aboriginal right had been somehow interfered with, then they would be entitled to compensation. To ask that if they lost, what compensation would they get, obviously they lost the lawsuit and do not have an aboriginal right.
Senator Lawson: Do you not accept that you prejudice their position when you take what they claim is theirs and give it to someone else? You will not finance their lawsuit, will you? There is no provision to give them any financial assistance.
(Take 1320 Follows -- Senator Lawson continuing: That seems to me to be unfair...)(Senator Lawson: continuing.)
That seems to me to be unfair. You are asking me, as a senator, in voting in favour of this agreement, to join with the federal government, the B.C. government and the Nisga'a in a conspiracy to take lands claimed by others without giving them a fair hearing.
Mr. Nault: Senator, it is unfortunate that you made that conclusion based on, I suspect, one submission by a group who has a vested interest in promoting their negotiating strategy here at this table. Frankly, that is what it is.
I have no difficulty in telling you that I am not prepared to negotiate with the Gitxsan or any other group at this table. We are prepared to sit down with them. We have continued to negotiate with them.
We are of the view that we can arrive at quantums of land that will meet their needs. It is, frankly, not the whole territory, as some people are aware, if they look at the map. There is lots of wiggle room with regard to which land will be accepted for offer.
I cannot go much further than to say that if you think there is some sort of conspiracy, I beg to differ.
Senator Lawson: Maybe that is a bad choice of words. The federal government, the provincial government and the Nisga'a have a position and you are asking me to support it. Where I come from, that is a conspiracy. It can be a gathering together. It was not just one. You are asking me to accept your proposal, that you were right in what you did with the Nisga'a.
Mr. Nault: Yes, you are right, we are asking you to accept the proposal and to move on to building a relationship without having one group or another hold back the aspirations of the Nisga'a people. That is what this policy is about. I am not a big fan of non-native people deciding on arbitrating issues. We did that for a long time.
Senator St. Germain: Why not use the native sources?
Mr. Nault: I would much prefer that the First Nations groups get together themselves. We will do everything in our power to do that.
Our policy is not to make arbitrary decisions, which is something we used to do. It was a very ineffective way of doing things because it left a sour taste in people's mouths to have the federal government making those decisions. We are doing everything we possibly can to have the First Nations governments come up with a solution to these overlaps.
Senator Beaudoin: My colleague, Senator Grafstein, has summarized the legal situation.
If I may use the term, we are stuck.
There are two points of view. Some people are of the opinion that there is a doubt about constitutionality in one area only, which deals with the paramountcy. The rest may be of great importance, but I have no problem with that.
The other thesis, of course, is the one put forward by you, sir. I have the greatest respect for that opinion. As a matter of fact, yesterday, Professor Ryder and some other professors were of the opinion that everything comes under section 35. If they are right on that premise, then I agree it is the end of the matter and it is constitutional.
Having heard the pros and cons of this, I cannot see how the problem will not go to the Supreme Court. If it has not right now, it will one day in the future.
Those two points of view are clashing. Either it is constitutional or it is not. No one is entirely sure, but when you have a doubt, a very serious doubt, usually you go to court.
You say the Supreme Court has said to negotiate that, settle this in the political area. They agree with the point. I agree with you when you say we have to negotiate this. I have the greatest respect for that, but it is not going to solve the problem in the long run.
It is obvious, because of this controversy, that the final arbiter here will be the Supreme Court of Canada. If it is not now, by virtue of a reference, then it will be later by virtue of a challenge. I cannot see how it will not be challenged one day.
I must say that section 35 is very important. It is not too precise, but it is very important nonetheless.
The Supreme Court has not settled everything in this area, at least not yet. They will not do that until they have the obligation to do it.
In using one word, it was not necessary to have that word in the agreement. What is supreme in our country is the Constitution itself. What is supreme is the federal in its sphere and the provinces in their spheres.
We have now the question of a third order of government, nation state, et cetera. I do not want to invade that. If it has to come one day, then it has to be done very clearly, because federalism is a system of two orders of government.
I am entirely in favour of giving to the aboriginal nations very generous powers. I am all in favour of that, because we have not been fair to them. We have to repair that situation.
Is this the best way to open the door to a new kind of federalism, with three orders of government in 14 or 20 areas? I have my doubts about that.
Can we do that without a constitutional amendment? Perhaps we can, if it comes under section 35, and the Supreme Court may rule that way. I am not sure. The only institution that has the final word in a case like that is the court. We cannot escape that.
This being said, we are here in the Senate. We have to take our responsibility and we have to vote. If there is a challenge after we vote, then the court will decide. There is no other way to go, because the clash is too obvious.
I always say that aboriginal law is a very difficult field because it is unique in our country. We have been used to federal and provincial problems for over one century. We have many decisions of the court. Even with the Charter of Rights, the court is doing fantastic work.
When we are dealing with aboriginal rights, it is more difficult. It is probably the most important thing, because they were here before the Europeans and we have to take care of this.
I understand the government will not consider the possibility of making a reference case. I do not criticize that. The government may do that. It may say "yes" or "no".
Do you consider that the problem is already settled by section 35 and that the best thing to do is to vote for the bill? I am sure you will say yes. I do not think it solves the problem.
The Chairman: I think your statement helps us to understand the issues and the choice, Senator Beaudoin. Does the Minister want to respond or not?
Mr. Nault: I will make one quick point, Mr. Chairman.
It is not unusual for members of Parliament to tend to focus on the opposite side of an issue. There are many learned scholars who have come before you and many who have not. I was disappointed to hear Mr. Monahan had to cancel, because he has been very involved in aboriginal law and would have been able to give you our view, the view of the Government of Canada, that this is not a constitutional amendment.
There are both sides to the issue. My point has always been that this is a political discussion as much as a legal one.
(Take 1330 follows: Mr. Nault continues: Defining a political relationship is very important...). (Mr. Nault: continuing.)
Defining a political relationship is very important, and that is what we are doing at this table. I take our work as representatives of the people very seriously. I would be disappointed if the Supreme Court of Canada would continue to define my relationship with aboriginal people in this country. I do not see that as their job but as ours. If it does go to court, then we will have to deal with specific items relating to it. It may make it more difficult for us to succeed in building a relationship that has not gone well over the last couple of hundred years if the courts try to dictate what that relationship should be. That is a political question.
The Chairman: Senator Sibbeston, you are the last questioner.
Senator Sibbeston: I always feel when I speak that I will be cut off the moment I become a little emotional. I will take the chance anyway and say that I will give this my sober second thought, which we must do as senators, and ask the question: Is this legislation going to improve the lot of the Nisga'a people? We can get involved with all the technical questions but, in the end, I think the issue that is most important is the answer to that question. What we are dealing with here, is it the answer? Does it advance the state and cause of native people in our country?
I believe it does. I am convinced this is the right approach. I am convinced that what the Nisga'a are seeking and what we are dealing with is the answer for native people in the country. We are delving into new ground, talking about a third order of government. Sometimes I get a bit impatient with the academics and the technical questions raised, primarily of minority rights for the non-Nisga'a people who live amongst the Nisga'a people. My experience of non-native people who live amongst the native people is that they are generally treated like kings and queens. I do not think non-native people need to fear. Non-native people would be among the Nisga'a because their services are needed. There would be professional people, policemen, social workers, doctors, teachers and so forth. Generally, these people do very well, particularly if they have a good relationship with the people. They are the ones in power. They are the ones who have the money. They are the ones who have the education. They are the ones who have the power and who are making decisions all day and throughout their lives.
I am not worried about the rights of non-native people amongst native people. Generally, they have been treated well. I am sure that the Nisga'a people will continue in that vein. I think sometimes we get too hung up on the academic questions but the reality on the ground is that non-native people have been treated very well, and they are very involved in the life of the communities. We need not fear their plight.
The Chairman: Thank you, Senator Sibbeston. It is now past 1:30 and I believe the minister must leave.
Senator St. Germain: I want to ask Mr. Molloy a question.
The Chairman: You have had time.
Senator St. Germain: We have discussed this before, Mr. Chairman.
The Chairman: This is not solely for your benefit, senator.
Senator St. Germain: I have gladly listened to Senator Sibbeston and all the others. It is a question of trying to resolve this.
Senator Sibbeston: Every time I try to say something --
The Chairman: Stop it, stop it. Senators, I am going to thank the minister on our behalf. He has stayed half an hour beyond his time. Mr. Molloy will stay, I am sure, as will as Mr. Beynon.
Mr. Minister, we are grateful for your contribution which I believe has been important to our deliberations.
Mr. Nault: I certainly leave my learned colleagues here with you for a few more minutes to answer a couple more questions. I appreciate the opportunity to make some comments and put the government's position on the record. I want to take this opportunity to thank you very much for what I think has been a job well done. There has been a lot of good questions and lot of work done here in your committee. Certainly, there will always be differences of opinion. I accept that with the greatest amount of respect. However, I want you to know, senators, that we have been at this now for over 100 years, and it would be helpful if we could finally make a decision. There will be those who say we have made the wrong decision and others will say we have made the right one. However, I think we should make a decision and get on with what we believe is the right thing, as far as Parliament is concerned.
I would agree with Senator Beaudoin that we will be in court many times to define these things, unfortunately, but we certainly want to encourage negotiations instead of litigation because we find that to be much more conducive to building respect and cooperation and of course building that kind of relationship I was talking about earlier.
The Chairman: I would now like to pursue an item that Senator St. Germain raised, which is the question of the witnesses from the Gitxsan and Gitanyow. I simply would like to ask them, Neil Sterritt and Glen Williams, whether there is anything they would like to contradict in the evidence that the minister or his associates have given us, or is there anything they would like to change in what they have said to us or is there anything they would like to add to what they have said to us.
I see Mr. Sterritt nodding his head. Would you come forward, please? Before we get to that, though, Senator St. Germain has a question for Mr. Molloy.
Senator St. Germain: Taking into consideration this documents and the Calder claim, the claim of the Nisga'a increased virtually twofold or even more. If we go back to the 1913 petition, it was a little larger than the Calder claim. It all includes the lands that are in contention. Can you say that the Gitanyow did not have enough historical data to justify their claim?
Mr. Molloy: We are dealing a bit with apples and oranges. Let me make a comment about the issue raised around the Calder map, and I am sure that the Nisga'a will address it. It is my understanding from reading the court documents related to the map that, at the beginning of the trial, the lawyer for the Nisga'a stated that the map that they were using at the trial was without prejudice to their claim for a larger territory, and that for the purposes only of the trial and the issues around the Calder case were they relying on that map. That is my understanding from having read the court documents.
Senator St. Germain: Does this apply as well to the petition?
Mr. Molloy: I do not know. With respect to the question about the evidence, senator, as I mentioned during the course of my evidence, the British Columbia Treaty Commission process does not require an aboriginal group or a First Nation to prove or to provide evidence with respect to their traditional territories. They file a map that outlines the area that they consider to be their traditional territory. When the Nisga'a entered into the negotiations with the Government of Canada, there was a different policy in effect and they were required, in order to be accepted for negotiations, to file evidence with respect to their use and occupation of their traditional territory. Their claim was accepted for negotiations back in the 1970s, I believe.
(take 1340 follows, Mr. Beynon: Could I add a small point to that?)
DV/March 23, 2000 - Aboriginal - 36165
Mr. Beynon: Could I add a small point to that. I think it is an important one. The settlement of the Nisga'a treaty identifies areas of land to be held by the Nisga'a and fishing rights, et cetera. Those decisions do not amount to a recognition of aboriginal title or rights. It is what is decided to be the terms of the treaty rights without any admission or denial as to the scope of aboriginal rights or title.
Senator St. Germain: Are you talking about the management area, sir?
Mr. Beynon: That is correct.
Mr. Molloy: Talking about the whole area, the whole treaty.
Senator DeWare: Did I understand today that you, Mr. Molloy, referred to the fact that there were some extra land claims, small portions, that were presented to the B.C. negotiating team that were accepted for the Nisga'a agreement?
Mr. Molloy: I said there were a number of fee simple parcels outside of their core lands.
Senator DeWare: That were presented?
Mr. Molloy: That were originally presented by the Nisga'a as being parts of the land that they wished to own in fee simple. As a result of representations and so on, there was a renegotiation, and some of the parcels were not agreed to and other parcels were offered in their place.
The Chairman: Thank you very much. I will now call on Mr. Sterritt to respond to my earlier question. Thank you very much Mr. Molloy and Mr. Baynon. Mr. Sterritt I will ask you to respond to my question.
Mr. Neil J. Sterritt: I want to clarify a few things that the minister said, and also a couple of points that Mr. Molloy made. There was a question about an undertaking on our part.
First, the minister repeated in his presentation the fact that he understood there was a Nisga'a -- Tahltan agreement. Actually there were 2 agreements, one in 1977 and one in 1992. The 1977 one was a flawed agreement. New leadership came in 1992 that was not aware of what happened in 1986 or 1987 between the Tahltans and us. That is explained in an appendix of Tribal Boundaries in the Nass Watershed. By the Nisga'a claiming the entire Nass watershed, they nullified what they claim to be an agreement.
By the very fact that they claim 21,150 square kilometres in the Nass watershed, it would nullify any agreement they are saying they might have with the Tahltan. They created an overlap after the fact. Their current leader was there in 1977. He knows what the situation was right after that undertaking with the Nisga'a. It is also elaborated in detail in Tribal Boundaries.
Mr. Molloy mentioned that the issue of a possible conflict on his part was never raised. That may be true. I would have to review the letters. After we got to a certain point, the Gitxsan wrote a letter to both ministers and raised the issue of the federal government exercising due diligence with respect to the overlap issue. I am not sure whether we raised the issue of and the appearance of a conflict or not. However, that letter was there and the negotiators certainly received all the correspondence that went to the ministers.
Who decides goods faith? I believe that naturally the issue of conflicts would come up. I would not want to swear to it, but definitely it had the appearance of a conflict, if not a real conflict. They end up being the same thing; you have to declare yourself.
The issue keeps coming up about what went on the in Yukon in terms of dealing with overlaps. I do a lot of work in Yukon. There is the Umbrella Final Agreement in the Yukon. The Council of Yukon Indians negotiated the broad issues. It was left to the 14 First Nations to negotiate First Nation final agreements. A First Nation that had an overlap with another First Nation could not conclude a band final until they resolved the overlap. In other words, they were compelled one way or another, by compromise or whatever, to conclude that. I was witness almost exactly a year ago to where that was done. Mr. Molloy is right. It was dealt with in the way that he describes it, but not in situations where there was not good will at the table.
When was the issue of the territory the Nisga'a federal agreement resolved? The fee simples and the wildlife management and fisheries management were arranged in the AIP. We have the correspondence from Dr. Gosnell in which he said that there would be no further discussions -- - this was the 1996 letter which is in the hand-out I gave you yesterday -- until they had reviewed and provided an answer to tribal boundaries.
I would be surprised if they did not have their technical people review tribal boundaries. If they did not, they are negligent on that front. Clearly, they acted in their own self-interest because it was not their interest to do that. That was in 1996. To this day, the only response that we have is that they own the whole thing. The issue of trap lines appeared in the submission yesterday. The Nisga'a say that the Gitanyow came into the valley in the 1930s with the trap lines. The fact is everybody ended up doing their trap lines in the is the 30s including the Nisga'a, who had trap lines which almost exactly corresponds to their territory, as with the Gitanyow and the Gitxsan. Trap lines can be a shadow of what aboriginal territory is.
The evidence is that back in the 1875 that the Gitanyow were speaking to their ownership of that territory to a traveller who went through. It is in the evidence I gave yesterday.
The Chairman: It was particularly on what the Minister had to say that we are asking for your response.
Mr. Sterritt: Another point that the minister made was that he takes exception that we are at the table and trying to leaver a position at the negotiating while here in the Senate. I can state categorically that is not my position. I am here an individual. At the same time, I do have the full support of the hereditary chiefs who were affected by the Nisga'a in the overlap area.
We are not at the table at this time and we have not made any commitments to go to the table. There have been some letters to see about doing it. That has not happened.
The Chairman: That is a direct contradiction. The minister said you were actively negotiating.
Mr. Sterritt: We are not negotiating by any means.
The Chairman: It may be true of the Gitanyow but not the --
Mr. Sterritt: It is untrue of the Gitxsan. We went to court. We got money from the province. We sought duly bilateral. The federal government would not bring money on that basis. We were never at the table and we have not been negotiating.
The Chairman: Thank you very much. Mr. Williams?
Mr. Williams: One point I want to make with respect to Mr. Nault who indicated these were Nisga'a lands. The evidence put forward by Mr. Sterritt yesterday and in Tribal Boundaries carefully looked at our oral history, documented that, and documented the earliest documentary record available. It is Gitanyow land all the way up past the Bell Irving. It is also true that it is Gitxsan land to the east and north of us. We went through tribal boundaries yesterday.
We heard from the minister and his staff that section 33 and section 34 will protect us. I gave evidence yesterday and this morning that section 33 of the Nisga'a Final Agreement is not adequate to protect the interests of Gitanyow exercising their constitutionally protected aboriginal rights on the territory.
I told you about how our system works. It is strongly intact. We have laws that are in play up there now. If this bill is passed, we will see continued conflicts on the territory by treaty rights versus undefined aboriginal rights.
That is why we are putting forward those proposed amendments that we tabled this morning.
The Chairman: Are you in active negotiations?
(Take 1350 Follows -- Mr. Williams: Yes, we are...)
(Take 1350 begins--Mr. Williams)
Mr. Williams: Yes, we are in active negotiations.
The last point I want to make is that we are here to leverage our negotiations. We did not come here with that intent, but rather, we came with the intent of making sure that our concerns on the ground with respect to our chiefs and relationship to that territory, be heard and to make the committee aware of the issues that will play out on the ground. That is why we are here. As well we are here to offer some solutions, some comfort and some protection for our people in the next months.
The Chairman: Thank you.
Mr. Hutchins: I have two points. The minister mentioned that he was disappointed at the prospects of the courts directing the relationship, or giving the Government of Canada direction. We have to be reminded that virtually since the Calder case in 1973, which, of course, greatly assisted the Nisga'a case, the Government of Canada and the provinces have absolutely required court direction before they made any move. If there are active treaty negotiations taking place in Canada, and if there is any semblance of a recognition of aboriginal rights and aboriginal title in Canada, it is because the courts, starting with Calder, have directed it. If Canada is saying that we have a fiduciary duty, it is because the court, in Sparrow, directed it. Now the courts, as we say, are directing good faith negotiations. The courts themselves have said that they have a role to assist people in negotiations; it is not an either-or situation.
The minister said that they can either negotiate or litigate. Our position, and I believe that the courts are saying this, is that we can complement the negotiation process. We can help the parties while they are in negotiation. Therefore, it is unacceptable that the Government of Canada would force aboriginal peoples to make that choice between either negotiate or litigate. It is more nuanced than that.
The final point is that I do not think the minister responded to, or addressed, our proposal about deferring the coming into force of certain aspects of the treaty. Senator Lawson referred to it as the resolved box and the unresolved box. We are suggesting that certain matters in the treaty be put into the unresolved box, create a system, or a process for resolving those rights that are in our amendments to section 27, and do it rationally. Senator Beaudoin is correct when he says that the chances of this thing going to the Supreme Court -- not necessarily the Gitanyow -- are great. There are too many issues involved to suggest that there will not be a court challenge. I am always amazed by the possibility that politicians and the Government of Canada would not make, at least, best efforts to solve these problems before forcing people to go to the courts.
I do not believe that he addressed that question. I think it is a concrete and positive suggestion that the Gitanyow are making. I hope that the committee will consider it.
The Chairman: Thank you. I was not thinking this would be another round of questions as all the questions have been asked. I simply wanted to hear, because I assured the witnesses I would want to hear, a comment on the minister's evidence. Mr. Sterritt, did you have one more comment to make?
Mr. Sterritt: Yes. This issue should never have come to this table. I said that to Jack Ebbels, the negotiator for the province, as well as to the deputy minister who is a good friend of mine. This should never have come here. It should have been dealt with in 1996. If it was not dealt with, then it should have been dealt within 1997. If we could not deal with it ourselves, we needed to have an independent third party. We proposed that. It should never have happened. These kinds of issues should not get to this table. It indicates a problem.
I want to thank you. I am leaving on a plane at five o'clock and I regret that I cannot hear what other people will say.
The Chairman: This is the case with a number of witnesses who are eager to be heard. I thank the three of you, Mr. Williams, Mr. Sterritt, and Mr. Hutchins.
I would now ask Mr. Ebbels, who is the Deputy Minister of Energy, Mines and Resources, and his colleague to now proceed.
Mr. Jack Ebbels, Deputy Minister, Energy, Mines and Resources, Province of British Columbia: Thank you for inviting us. As the Chairman said, I am currently the Deputy Minister of Energy and Mines for the province of British Columbia. From November 1996 to November 1998 I was Deputy Minister of Aboriginal Affairs for the province. Prior to that, since August 1992, I was the province's Chief Negotiator in these treaty negotiations. I have with me Patrick O'Rourke, who was my Assistant Chief Negotiator and is now Assistant Deputy Minister of Aboriginal Affairs in British Columbia.
I would like to read in a presentation to this committee by the Honourable Dale Lovick, Minister of Aboriginal Affairs for British Columbia. Unfortunately, he could not be here today. The Honourable Dan Miller, Minister of Energy, Mines and Northern Resources and former premier of British Columbia, and whose constituency includes the Nass area, also sends his regrets for his inability to attend today. I believe this paper has been distributed to the senators. I will read it in on Mr. Lovick's behalf.
As Minister of Aboriginal Affairs for British Columbia, I regret I am unable to appear in person before this committee to give support on behalf of the Province of British Columbia for the passage of the Nisga'a Final Agreement but I am pleased that Jack Ebbels, the former Nisga'a Chief Negotiator for the Province, and my former deputy minister of Aboriginal Affairs, is with you to discuss issues of concern to you and to answer your questions. He is accompanied by Patrick O'Rourke, Assistant Deputy Minister in the Ministry of Aboriginal Affairs, and a former member of the Nisga'a negotiating team for B.C.
The Nisga'a Final Agreement represents an important point in the history of British Columbia and Canada -- it represents our reconciliation with the Nisga'a people and establishes a new relationship with them. We look forward to the passage of the Nisga'a agreement so that we can begin the work of implementation of the treaty provisions, which will create self-reliance for the Nisga'a Nation and certainty for the regional economy.
As you have heard, the Nisga'a Final Agreement was achieved after many years of negotiation. The Nisga'a have been trying to negotiate a treaty for 112 years. Tripartite negotiations took more than eight years and since the achievement of an agreement-in-principle in March of 1996, the agreement has been the subject of the most intense debate and consultation that any piece of legislation in British Columbia has ever seen.
· More than 450 meetings with advisory groups and the public were held before and after the signing of the agreement-in-principle in March 1996.
· A legislative committee held 31 public hearings in 27 B.C. communities from September 1996 to March 1997.
· More than 20,000 people called the Ministry of Aboriginal Affairs 1-800 line for information and tens of thousands of copies of the final agreement were mailed to British Columbians. There were more than 250,000 visits to the ministry website in a nine-month period.
· The Nisga'a Final Agreement Act was debated longer than any other piece of legislation in the history of B.C. and was passed by a free vote in the B.C. Legislature.
(Take 1400 follows--Mr. Ebbels continuing: I am pleased that the...)
(Jack Ebbels, continuing.)
I am pleased that the Senate has taken this time to gain some detailed knowledge of the Nisga'a agreement, so instead of attempting to summarize the contents of the treaty, I will focus on a few key arguments against the treaty and some of the myths that have been circulating for the past months since the conclusion of the final agreement. I encourage you to question Mr. Ebbels on these and other matters.
The first argument concerns overlap, an issue your committee has been examining. The Nisga'a Final Agreement clearly states that it does not affect the constitutionally protected rights of any aboriginal people other than the Nisga'a. There are also provisions and remedies in the agreement to address aboriginal rights of other First Nations under the general provisions section. Section 33 and 34 state that if the courts were to find the treaty does affect the rights of other aboriginal peoples under section 35 of the Constitution Act, then that section of the treaty will no longer be operative. Best efforts will be made to amend the treaty to remedy or to replace the provision.
I would also point out that in 1998 the Gitanyow sought a court declaration that the province and Canada could not enter into a final agreement with the Nisga'a prior to the conclusion of negotiations with the Gitanyow. However, the court dismissed that claim last June.
The province's position on overlap is consistent with the 1991 B.C. Claims Task Force, which recommended that the First Nations should resolve overlap issues among themselves. It is worth noting that the Nisga'a Tribal Council has a long history of good faith efforts to resolve overlap issues with neighbouring First Nations, and has signed agreements with the Tahltan and Tsimshian, and actively worked with the Gitanyow in attempts to resolve overlap issues during the pass 10 years.
B.C, for its part, has been actively involved in an ongoing effort to facilitate discussions between the Nisga'a and Gitanyow and has supported mediation efforts. We remain committed to Gitanyow negotiations and, with Canada, we presented a land and cash proposal to them late last year. Negotiations are ongoing in hopes of reaching an agreement in principle with the Gitanyow in the next few months.
The second issue I want to address is one of governance. I know you have heard several witnesses who believe this agreement will create a race-based enclave and those who say the treaty is unconstitutional. The Province of British Columbia strongly refutes that claim. We have sought legal opinions from leading constitutional experts and they say the powers being granted to the Nisga'a in this treaty are within the framework of the Canadian Constitution.
With this treaty, provincial and federal laws will prevail in the event of a conflict in most areas. We have agreed that in some areas, including those integral to Nisga'a language and culture, as well as Nisga'a lands and treaty entitlements, Nisga'a laws will prevail. In all areas, including these powers, the Nisga'a government will not have exclusive jurisdiction. Rather, the jurisdiction will be concurrent with federal and provincial laws.
In fact, the treaty gives the Nisga'a the usual powers of any municipal government -- traffic, land use, zoning and police. Any laws created by the Nisga'a authorities must conform to federal and provincial standards. If there are problems, federal and provincial laws will take precedence.
Nor is B.C. giving up any powers; just the opposite. For the first time, important provincial laws, such as the Wildlife Act, Highways Act and Schools Act, will now apply to people who used to be exempt, because they were governed by the federal Indian Act. The only real difference is that the federal Indian Act will no longer tie the Nisga'a to the federal government's apron strings. The agreement allows them to manage their own local affairs and maintain their culture. That leads me to a general argument in support of self-government, the sticking point for many opponents of the treaty.
Let us be clear that the existing system has not worked, for aboriginal people and the rest of society. One of the key indicators of health and well-being of aboriginal people and their communities is the incidence of suicide. As I am sure you well know, suicide rates for status Indians, especially youth, are as high as six times the rate for non-native persons.
I want to refer the committee to a paper published by Michael Chandler and Christopher Lalonde of the University of British Columbia, entitled "Cultural Continuity as a Hedge Against Suicide in Canada's First Nations". It offers the premise that increased control by aboriginal communities over their own social and economic affairs can lead to improved health and well-being.
Here is a quick summary of the study's conclusions. Some First Nations control over policing and fire services resulted in a 20 per cent reduction in the relative risk of suicide. Some First Nations control over health care resulted in a 29 per cent reduction. Community-based land claims initiatives resulted in a 41 per cent reduction. Some First Nations control over education resulted in a 52 per cent reduction. Most important, some form of self-government resulted in an 85 per cent reduction in the relative risk of suicide.
The message is clear. If we want to assist aboriginal people in undoing the damage of the past, we must get out of the way and let them take charge of their lives, their communities and their futures.
Finally, I want to touch on the claim that the Nisga'a agreement is a template for all treaties in the province. Every First Nation community is different and has very different local interests and needs. As each community's circumstances are different, so too will each treaty be different. The proof of this is in the text of the Sechelt agreement in principle signed last year, and the five land and cash offers the province and Canada have tabled since then. An examination of these agreements and offers will show that, although there are areas of similarity, each of them is adapted to the unique circumstances of the communities involved.
In closing, I urge the Senate to give their support to this agreement, which gives the Nisga'a the opportunity to manage resources and services on their own lands, subject to B.C. and Canadian laws, and offers them a real opportunity to build an economic base, become self-reliant and to participate on an equal footing in Canadian society.
British Columbia is already paying the price of doing nothing about land claims issues. We are paying the price by marginalized communities and systemically high rates of unemployment. We are paying in lost investment, lost employment and lost opportunities, which is costing us billions of dollars.
The Nisga'a want this treaty. It is the product of over 20 years of long and difficult negotiations. The provincial government has been at the table for eight years. The agreement has been carefully crafted and it has been molded to accommodate the needs of all three parties. It is a compromise in the best sense of the word, in the sense that Chief Justice Lamer spoke of when he spoke of give and take, and when he reminded us that at the end of the day "we are all here to stay".
The Nisga'a Nation and British Columbia have ratified the Nisga'a final agreement. I urge the Senate to now pass this agreement as it stands.
I will end my remarks by posing two questions to the committee.
If not after 20 years this treaty, then what treaty?
If not now, after all this time, then when?
The Chairman: Thank you very much.
Mr. Ebbels: If I may, Mr. Chair, having spent so much time at this and having traipsed around the province to so many different places, so many times, I felt it might be helpful to the committee if I referred to a several things. I would appreciate a chance to set the record straight on a few things I have heard over last couple of days. Thank you.
There are two other pieces of paper that I believe have been handed out to the members. One is a list of all of the advisory committee meetings we had prior to the signing of the agreement in principle in March of 1996. Then it goes on to list all of the advisory meetings we had between the agreement in principle and the final agreement.
Prior to the agreement in principle, there were some 220 or 230. After the agreement in principle, there were another some 230. We stopped counting after the final agreement became public, but there were hundreds and hundreds more prior to the bill being introduced into the legislature.
When people talk about the agreement being negotiated in secret, I would refer them to the list of all of those meetings. Patrick and I attended probably two-thirds or three-quarters of them, in addition to many, many private meetings with people of all walks of life throughout British Columbia. I would refer them to the list of the Provincial Treaty Negotiation Advisory Committee members, which I believe is before the members in this chamber. You will note that it includes virtually every umbrella organization, lobby organization or interest group organization that exists in British Columbia.
In addition to that, we had six regional advisory committees, a number of them listed before the members, that we met with on a regular basis. I am sure that the Nisga'a will attest to how often we had to not show up at the table or leave the table in order to discuss the treaty, not just in general but in great detail.
(Take 1410 follows: Mr. Ebbels: I would also remind...)
(Mr. Ebbels: continuing.)
I would also remind the members, I believe there has been evidence of this before you already, that there was this select standing committee that travelled around the entire province between the agreement in principle and the final agreement.
I will speak to the contention that no changes were made to the agreement in principle or to put it another way, even if you consulted, you did not listen. The certainty provisions, which were far and away the most controversial, most high profile issue everywhere we went in the province with every advisory group we ever spent time with, were changed dramatically. You need only refer to the final agreement to see how they were changed. We had very detailed and lengthy meetings with the Business Council of British Columbia. We reviewed all the options in great and painful detail with the treaty negotiation advisory committee. As a result, you have a product before you, which has been I think it is fair to say, widely acceptable as a solution to the problem.
Those provisions were not in the agreement in principle. There is a brand new title on land titles that makes it crystal clear that Nisga'a lands are fee simple lands within the Province of British Columbia.
There is an entire about face on the provisions regarding highways, and a whole new chapter has been included as a result of consultations we held widely around the province. It is assured that the highway into the Nass Valley and through the Nass Valley is a provincial highway.
Contrary to what I thought I heard yesterday from the representative from the B.C. Wildlife Federation, there are very significant changes to the wildlife chapter because of the Wildlife Federation. The final agreement, and I hate to bore you with the details, includes a cap on the amount of moose that can be harvested. That was not in the agreement in principle. Grizzly bear entitlement are included. That was not in the agreement in principle. We expanded the wildlife committee at the urging of the wildlife committee, so there were enough provincial members. I am sorry Senator Lawson is not here, because I would be happy to answer his question about the $20,000.
The Chairman: We will tell him what your answer is.
Mr. Ebbels: That money was spent to assure that we had enough seats, so that we could put a member of the B.C. Wildlife Federation on our team at the committee. That was a deal we struck with the B.C. Wildlife Federation, and you will see that in the final agreement.
The Chairman: Could you explain the deal you struck with the Wildlife Federation?
Mr. Ebbels: Would you like me to?
Senator St. Germain: Yes, quickly.
Mr. Ebbels: First, the negotiations were with the Nisga'a between the province and Canada and the Nisga'a, we are negotiating the reconciliation of their rights and entitlement with ours and Canada's, not with the B.C. Wildlife Federation. That is first.
The deal we struck with the wildlife federation was very painful, and I am sure I got accused of negotiating in bad faith a number of times over there, we had to go back and change what we had agreed to tentatively in an agreement in principle to expand it. The deal was that we would expand it enough so that we have a place for the Wildlife Federation and you on our team, but we are not paying you. That was the deal.
The Chairman: They accepted that arrangement?
Mr. Ebbels: Yes. The $20,000 that the witness was referring to is not specifically for Nisga'a's attendance on that wildlife committee. It is for wildlife management purposes. It is not in the treaty. It is not treaty entitlement forever. The $20,000 is in the fiscal financing agreement that is in place for, I think, five years. It is like a contribution for start-up costs.
I will speak to the regional government relations. We negotiated with the representative of the regional district of Kitimat-Stikine at the table, and precisely parroted what they wanted to see in the final agreement.
There is an entire chapter on forestry transition. A portion of Nisga'a land comprises TFL number 1, which is held by Skeena Cellulose. There will be a gradual ramp down of Skeena Cellulose involvement in that area of Nisga'a lands, and a gradual wrap-up of engaging Nisga'a contractors. There are very detailed provisions in the treaty that were not in an agreement in principle. We discussed these provisions extensively and in painstaking, boring detail with Skeena Cellulose, contract loggers, IWA representatives. I think it is fair to say they were generally pleased with the transition provisions.
I will stop there. The list is actually fairly endless, but I wanted to get that on the record because I have heard comments a couple of times over the last couple of days.
I do not know if anyone has mentioned this, there was an ombudsman's report done in 1997. The ombudsman in British Columbia is an officer of the legislature appointed by an all-party committee. The ombudsman was asked to look into and determine whether there had been an adequate opportunity for public consultation and input into the treaty. The ombudsman concluded, I do not have the exact date before me, that there was in fact adequate and ample opportunity for the public to have input into the treaty, and that they were adequately consulted.
I would bore you with a little bit of detail. You heard this from the representative of the B.C. Cattleman's Association. They are alarmed about impact on private tenure holders and private interests in an area of a treaty. I can tell you that there is not one existing tenure, except the one that was in majority owned by the Crown, that is Skeena Cellulose, not one tenure that is adversely affected by this treaty. In fact, the opposite is true. No fee simples were affected. There is an existing agricultural lease and a woodlot lease that are completely unaffected.
When you get into rural British Columbia, those who are familiar with it, you know that access is terribly important. There is only so many ways you can go through the mountains and valleys. There are not a lot of provincial bureaucrats out there, and for a century or so, governments have not paid much attention to the First Nations out on the land. There are a lot of unperfected access routes into fee simple parcels, into B.C. Tel repeater sites, things like that. We in fact negotiated, and put in appendices to the treaty, detailed provision that secured access that did not heretofore exist.
I hate to use this word "template" because it is not a template, and the cattlemen are afraid of that. If Nisga'a were a template for the impact of treaties in other parts of the province, it would be a fabulous template.
The issue of water rights was raised with some concern. I want to tell you how much water is in the Nass. I have the figures but it is something like 233 million cubic decametres per year, I think. The Nisga'a's water allocation, which by the way is for the possibilities of future small power projects, kind of an economic opportunity, is I think 300,000. It is a tiny, tiny fraction of the unrecorded water available on the Nass River.
(Take 1420 Follows -- Mr. Ebbels continuing: You do have a very different...)
(Mr. Ebbels: continuing.)
You do you have a very different situation when you get into the interior of British Columbia where there is no unrecorded water. That means that basically all the available flow is licensed, it is all taken up.
That means there will have to be a different solution in the interior, particularly over an issue like water rights. As the senator from Alberta and Senator St. Germain admonished the witness, the way to solve is it to get in there with your neighbours and come up with a solution that we are not inventing for you in Victoria or Ottawa, something that will work on the ground. However, there will have to be a different solution.
One other thing before I turn it over to Mr. O'Rourke. We wanted to get into paramouncty. There has been lots of discussion about the 11 or 14 or 16 areas where Nisga'a laws trump federal or Canadian laws. I think it is worth some elaboration from our point of view.
With respect to Mr. Macdonald, who is a distinguished British Columbian, I want to correct the record on at least one thing. He was expressing some concern on the policing and administration of justice, and the inability of the attorney general to manage policing in British Columbia. I will refer you to section 19 in the administration of justice chapter. It is on page 189 of the document I have before me.
If the Minister is of the opinion that:
a. effective policing in accordance with standards prevailing elsewhere in British Columbia is not being delivered within Nisga'a Lands, or,
b. it is necessary or desirable to ensure effective delivery of policing in accordance with standards prevailing elsewhere in British Columbia,
the Minister, on terms approved by the Lieutenant Governor in Council, may provide or reorganize policing within Nisga'a land by appointing individuals as constables, using the provincial police force to provide policing, or by other means.
The minister referred to is the attorney general. If you look closely, is a recitation of the attorney general's power over municipal policing in the British Columbia Municipal Act. It is the ultimate hammer that the attorney general has over policing in a municipality in British Columbia. It is protected in this treaty.
Again, I cast no aspersions, but I sometimes get a little bit frustrated when there is very factual detailed addressing of some of the concerns that people have. I know that it is a complex and huge document. It is a complex topic on its own. I think that is the answer to Mr. Macdonald's concern.
If I could, there has been so much discussion around this concurrency and paramountcy, I will ask Mr. O'Rourke to give you our take on it.
Mr. Patrick O'Rourke, Assistant Deputy Minister, Negotiations Support Division, and Ministry of Aboriginal Affairs, Province of British Columbia: Thank you. The starting point in understanding this issue around paramountcy is to recognize that in this agreement the Nisga'a do not have any exclusive powers, all of their government powers are concurrent. That means that they operate together with federal or provincial authority. I should mention that I am a lawyer, but I will try not to talk too much like a lawyer.
When that happens, in order to allow an individual on the ground to understand what law applies, if there are two laws that would appear to govern the same event, there are rules of paramountcy. Sometimes those are judicially imposed rules; sometimes those are rules that are set out in legislation or in this case in the treaty.
I will give one very simple example. Right now, both Canada and the province can legislate. While sections 91 and 92 are in theory exclusive, in practice, both governments legislate in the same areas. If you are convicted of impaired driving under the Criminal Code of Canada, you lose your driver's licence for a set period of time. That is under the Criminal Code. The B.C. Motor Vehicle Act, which is the statute that provide licensing and drivers licences to people, says if you are convicted of impaired driving, you lose your licence for a longer period. There are two rules, is there a problem? The courts say no that is not a conflict, that is just a case with your there are two laws the people have to obey both of them. In this case, you lose your licence for the longer period, 12 months.
Sometimes the laws can conflict. There can be a case where one law says you must do this and another law says if you do this, that is illegal. In those cases, you need a rule of paramountcy. In the Nisga'a treaty, we negotiated rules of paramountcy that cover every area of Nisga'a law-making authority. In some cases, we agreed that Nisga'a laws would be paramount. That means in those rare cases where the laws are saying different things, that it will be the Nisga'a law that would be the deciding law, at the margins is one way to put it.
We did that in two general areas. One group of law making powers where in the provinces view it was not the government's job to have the last say -- Nisga'a language, Nisga'a culture. When the governments had the last say about aboriginal language, they passed rules forbidding aboriginal people from speaking their language. We did not think that the Nisga'a should ever have that risk again. In the past, the federal government has enacted laws that ban aboriginal culture. Potlatches in B.C. were illegal; people went to jail over it. We thought, in the future under the Nisga'a treaty, the Nisga'a should never face that risk again. We solved that not by saying they had exclusive authority over their culture but concurrent, yet it prevails in the event of a conflict. They have paramountcy for matters internal to them.
Similarly, where they are treaty benefits -- money and lands provided under the treaty -- it is the Nisga'a who ought to have the final word on how to use it. They ought to have the final word on how to organize their government. We agreed to paramountcy in those areas.
The other broad area, and this is probably more concern to the province because it related to areas of provincial jurisdiction, were things like education and child welfare. We built in conditions to Nisga'a la- making authority that protect fully protect, critical provincial interests.
Let me use as education as the example. I am talking about the education of Nisga'a people on Nisga'a land -- not of me, not of you, not of my children. However, those laws must contain standards equivalent to provincial standards in terms of curriculum content, examination, teacher qualifications and an objective test. Those standards are to allow Nisga'a students to transfer into other provincial schools and to gain entry into provincial universities.
If they do that, then the law is valid. If the law is inconsistent with a provincial law in some area, the Nisga'a law prevails. What are those other areas? The province says school year starts on September 15 and ends June 26. Perhaps the Nisga'a decide to start September 18 and end June 29, for whatever reason. The province could say that that is okay, as long as your system educates students to our standards and your teachers have our standards and qualifications. Other differences would be acceptable.
I will not go through every one of the powers. Of the 14 that have been listed, each and every one falls into one of those two general areas, areas where we did not think it appropriate for governments to have the final say or areas where government interests were adequately protected by the limits built into the treaty. We were prepared to allow the Nisga'a to have other variances in areas that simply were not critical to proper education or an appropriate education.
The Chairman: Thank you very much for that presentation.
Mr. Ebbels: I want to add one thing. I would like to try to give you a feel for the concern relating to this paramountcy subject. You have heard many presentations that say on the one hand we have sections 91 and 92 and they exhaustively eat up all the legislative authority there is in Canada. That is it, there is not any more. It is argued that therefore, if you are going to have a self-government arrangement, it must be delegated.
(Take 1430 Follows -- Mr. Ebbels continues: On the other hand...)
(Take 1430 begins--Mr. Ebbels: continuing.)
On the other hand, you have heard many submissions that the aboriginal rights that are protected under section 35 of the Constitution, include the inherent right to self-government and thus, there is something that you can negotiate. If you do, it is protected by the Constitution.
Now, for the purpose of the argument and without taking sides, someone is right and someone is wrong and a court will determine that some day, likely. It is very important in British Columbia that treaties get negotiated and that we show some progress. Minister Lovick touched on a number of these points in his submission. They are: legal reasons, such as those that you have heard here before, and exhortations by the Supreme Court of Canada and many other decisions to get on with it and negotiate resolutions; social reasons, such as consideration of the conditions on reserves as they generally are absolutely appalling -- I believe that no one would disagree with me; and economic reasons that are urgent and not just for the benefit of the non-aboriginal population, but rather all British Columbians. I am in the Energy and Mines portfolio and I spend a lot of time with companies trying to raise capital. There is a discount for doing business in British Columbia because of unresolved aboriginal land claims. There are estimates out there that we are losing $1 billion in investment annually -- money not coming into British Columbia because of the uncertainty on the landscape.
In consideration of these facts, it is important that we settle treaties in British Columbia, as soon as possible. In terms of the legal disagreement, there was no way that the Nisga'a were going to sign a treaty that contained a delegated form of government, for the very reasons that Mr. O'Rourke just told you. As an example of what can occur, in the past a delegated government could leave a Status Indian who went into a bar, with no status. You could not speak your own language, you were taken off the residential school, and you could not partake of the homestead legislation which provided settlers with about 100 acres per person. Indian people were not entitled. That is what happened and that ability of delegated government to unilaterally change things resulted in a perspective that was eventually brought to the negotiating table: "No treaty if it is going to be delegated. It ain't on". Thus, we needed to figure out a way around it, and that is the solution we came up with.
It was, in my view, a very practical way to get through an extremely difficult situation.
The Chairman: Thank you. You have covered a lot of ground that would have had to be covered in questions because, as you were well aware from the evidence, many questions were raised in these areas.
Senator Rompkey: I will make some general comments because I am a newcomer to the committee and I am running very hard to get up to speed on the details. I am not thoroughly familiar with the details of the Nisga'a agreement but I have listened very carefully to what has been said.
I want to make some general comments. First, I wish to congratulate these two witnesses on what is obviously hard work, intense work, profitable work, and successful work. Work that has not only involved ability but courage and that can be expressed to the Government of British Columbia as well. These things are never easy, and it not only takes determination, but some courage.
I will comment on one of the remarks about the template. The comment was made that perhaps Nisga'a will be a template. The comment was further made that each First Nation is different and has different interests and needs and so treaties will be different. In fact, Nisga'a will be a template. That is not a bad thing, it is a good thing. I can tell you that at the other end of the country, in Northern Labrador, while Nisga'a was being negotiated, there was a great deal of attention being paid to it. Indeed, you will see this summer, when the agreement-in-principle is voted on, that the self-government agreement contained in that agreement in Northern Labrador will be very similar to the Nisga'a agreement. The Nisga'a agreement, in fact, has set a bar and it is a good thing that we have something to aim at, that we have a standard and that it is a substantial standard. Hopefully, it will be an effective one with the same concepts of concurrency and paramountcy will be included there.
I will make a comment on that point of the template. Indeed, it will be the template and I believe that it is having a very positive effect.
The Chairman: I will comment that both Minister Nault and representatives of the province of British Columbia, as well as others, do not see the agreement as a template. They see it as a stand-alone type of agreement in a very particular circumstance. You may be correct, in time, but certainly the government is not seeking to push the agreement as a template. Mr. Ebbels, would you speak for the province of British Columbia?
Mr. Ebbels: Thank you for those kind remarks. It is not a template in the sense that it is a cookie cutter. If the names and numbers are changed, you have another deal. It is necessary to deal with the cards that you are dealt in a particular area of the province that is as diverse as British Columbia. However, there is no question about the fact that we spent thousands of hours trying to solve the certainty problem. In other words, is there other language that you can use that brings some certainty and finality to treaty-making, rather than in exchange for what is in the treaty, or having the rights and title extinguished. Thousands of hours were spent on that and thousands of hours on the dispute resolution system. We believe that we have got it right and that we have done a good job. There are numerous such aspects, that we will be promoting at other tables, such as whether the Charter applies, or the Constitution applies, and the fact that we want parks to be parks at the end of the day and so on. I look more toward the asset side of the treaty that will be dramatically different, depending on where you are. There will be some completely different solutions to the example that I gave before which was water rights.
Senator Rompkey: I was not referring to the intention of the Government of Canada -- perhaps it was not the intention of the Government of Canada that this be a template--but rather I am talking about reality, and models, and people examining those models. It is like union contracts in that one union will sign a contract and you will follow suit throughout the industry. The same thing is happening in aboriginal communities. People in aboriginal communities are watching what is happening in this country, and they are drawing and concluding from the efforts of other people. That was what I wanted to say, not that the Government of Canada wants to implement this. You said that in your paragraph and I agree with it. Every circumstance is different. Naturally, there will be models as that is the reality of the game.
Senator St. Germain: I phoned former premier Dan Miller and he said, "Jack Ebbels is coming". I understand his enthusiasm as you are well versed on the agreement and the surrounding issues, Mr. Ebbels. You have delivered that information well.
The Chairman:
Senator St. Germain: You spoke of delegated authority being a non-starter with the Nisga'a. In discussions with Mr. Aldridge, we determined that this entity continues based on economics. With transfer payments, it would be like a municipality. I asked this because there are agreements such as those with Yukon, Gwich'in, Sahtu and others out there on a delegated basis. I do not see that those are in jeopardy in any way, shape or form.
(Take 1440 follows--Senator St. Germaine continuing: These are cast in stone...)
(Senator St. Germain: continuing.)
These are cast in stone as to what Nisga'a will be and yet have not triggered the controversy, yet they have brought the end results where these people seem to be happier than happy. Could you comment on that?
Mr. Ebbels: That is a legitimate point. I tried that one on the Nisga'a and failed. We will pursue a delegated model, if all parties are willing, at a table, and the Sechelt is an example. It is a form of double delegation. They are happy, have been heretofore happy with it, and the Province and Canada is, and there is no desire among those parties to change it. We will not force the Nisga'a approach down their throats.
Senator St. Germain: I agree with you that we must have the stability. We had Gustafsen Lake in British Columbia. You know better than anyone, having sat as a deputy minister, of the problems there.
The question I have, if you have been sitting here and if you have had to put up with the proceedings here or you have enjoyed them, is the question of the overlap. If I am misreading this, I would like you to correct me.
I look at the documentation that I have been supplied and have to believe that it is correct, that the Calder claim and then the 1913 petition claim were considerably smaller in size, and they certainly did not include any fee simple claims on lands that are now in contention.
The Minister came here today and he said that these people were in negotiations. He is partly right but he is not totally right, because the Gitanyow are at the table, whereas the Gitxsan are not.
We look at what we have to deal with. We have minority rights being trampled on. You are a professional. You will be there. One thing I found, being a minister and being a member of Parliament, is that you people last forever and we come and go.
Mr. Ebbels: In British Columbia, I think the lifespan of a deputy these days is about two and a half years.
Senator St. Germain: I know things do change.
We have a horrific situation to deal with. I do not know if you listened to the evidence. It is not veiled threats but it is veiled statements that they will protect their territory on the ground. We could end up, in theory, sir, with huge confrontational situations within our own aboriginal peoples, which would be a horrific situation for everyone to deal with. It would exacerbate the situation to the point that I do not know where it would go.
Mr. Ebbels: I will start, and you stop me if I go on too long.
It is a very difficult problem.
I want to, for the record, take exception to some of the opinions or points of view regarding former Premier Clark or other government members barrelling ahead with the Nisga'a treaty with the intention of steamrolling over Gitanyows' or anyone else's aboriginal rights.
I cannot, as you know, disclose cabinet caucuses, but I spent hundreds and hundreds of hours there while we were developing positions and there were very serious, very lengthy discussions on this issue for many years.
I can try to encapsulate the problem. Dispute between First Nations has been going on for who knows how long, decades, hundreds of years, maybe. The power of a community waxes and wanes and there are many reasons for that.
Please do not forget this imperative in British Columbia to try to bring more certainty to the landscape by resolving treaties for those three general reasons that I spoke of: legal, social and economic. They are behind us all the time, together with a fair amount of expectation on First Nations' part, given various cases like Delgamuukw and Sparrow that have affirmed various kinds of aboriginal interests, that they will get resolved.
You are faced with an overlap that is not resolved. The Province of British Columbia, and Minister Nault said the same thing earlier about Canada as well, do not want to go in and decide whose claim takes precedence over the other. That could be an impossible task at the outset. We want to see it resolved by First Nations.
What do you do when you have tried? There were efforts by Canada that Minister Nault referred to, and numerous efforts by the Province. There have been efforts by the Nisga'a and Gitanyow themselves.
What do you do when they are not resolved, and the processes that everyone has tried have not resolved them? Both you and Senator Andreychuk were getting at the nub of one side of the problem when you were suggesting that by proceeding with the Nisga'a treaty we were favouring the Nisga'a to the alleged disadvantage -- I do not mean that in a mean-spirited sense -- of the neighbouring First Nation. That is a legitimate point of view.
The other point of view is by not proceeding with the Nisga'a treaty, because of this unresolved overlap, that is to their prejudice. Why should they be held up because of the positions taken by the neighbours? Conversely, why should the neighbours feel aggrieved because of the position of the Nisga'a?
Senator St. Germain: Why is it then that you would not go to an arbitrator? It could be a native arbitrator. At one time, the B.C. Treaty Commission produced a document that there would be no treaties or agreements signed unless overlaps were resolved.
Mr. Ebbels: You hear that a lot. The recommendations of the B.C. Claims Task Force does not say that. I might not have it quite verbatim, but it reads that no treaties should be concluded unless there is a process for resolving overlaps. It does not require that overlaps be resolved before treaties are concluded.
Senator St. Germain: Is that the revised one?
Mr. Ebbels: No, that has been there since day one.
Senator St. Germain: Okay.
The Chairman: May I move to Senator Grafstein and leave to Senator St. Germain the opportunity to come back.
Senator Andreychuk: I have a supplementary on that.
The Chairman: Certainly, Senator Andreychuk.
Senator Andreychuk: Your point of view had been to say that perhaps the Gitanyow and Gitxsan are disadvantaged by the way you went. If you had not gone, the Nisga'a would have. I agree with that. My difficulty is that you change the game when you put the compensation part in. Had you said, let us proceed with the Nisga'a, let us talk about the disputed area and then let us leave the options open as to who has that right; but you seem to have weighted it in favour of one party. That is the point I would like you to explain.
(Take 1450: Mr. Ebbels: I will make two points...):
Mr. Ebbels: I will make two points on that. The Government of B.C. believes, as does the Government of Canada, that sections 33, 34, 35 and the general provisions are the best solution to enable us to proceed with treaty making in the absence of unresolved overlaps. We believe that they are the best protection imaginable still allowing us to proceed with treaty making, considering the imperative in British Columbia that we must get on with it and show that we can do it.
Second, the negotiating team spent hundreds of hours considering that. We talked about putting certain areas into some sort of limbo, or deferring the implementation of part of it, however big or small that part might be. The problem is how to unpack that. You cannot deal with access rights as thoroughly and as definitively as the rural public in British Columbia in particular demands that it be dealt with without having pinned down the land quantum. You cannot pin down the cash quantum without pinning down the land quantum because there are notional values attached to the land. It is very difficult to pin down the wildlife management regime, for example, with part of it in limbo.
We came to the conclusion that it was extremely difficult to do. You may disagree with that, but this is the solution we arrived at. I would love it if they were all resolved. Arbitration is usually preceded by mediation, and we have been in mediation. I believe that mediation was put on hold while we tried to speed up the negotiations. Those negotiations are going on, albeit not very well according to the Gitanyow, but they are in negotiations.
Senator Grafstein: Thank you for your evidence. I want it get back to a central point that you raised, that being the choice of models of governance. You have heard my position on this, so I will not repeat it. You have given some answers and obviously we will look at that.
There were really two models of governance. One is the delegated model which, as we have been told, works very well. This model of governance was, in a way, not unlike the establishment of new provinces. Historically the federal government was concerned that the establishment of a province might intervene with abuse of the Royal Prerogative or sovereignty rights. Therefore, we had under our Constitution the disallowance provision.
As you know, as constitutionalists we have been told more recently that the disallowance provision, which was a check on errant provincial legislatures, has atrophied over the years. It is my understanding that in the United States, the Navaho nation, as an example, has full powers to explore their identity, to clarify their rights, to be independent, to self-determine their issues and so on, yet the American Congress has never ceded its powers. It is my understanding that since 1888 there has been a devolution of activity so that the Navaho nation now has a court system. They even have courts that are appointed, contrary to the other provisions. Yet, at the end of the day, the American Congress has always sustained its override without interfering with the so-called right of determination to generate its rights under the federal umbrella.
We have been told that there are 51 negotiations yet to go -- although we have heard various numbers on that -- in British Columbia alone. We have heard the chairman and the minister say, in contradiction of Senator St. Germain, that this is not a template, that this is a one-off.
Does this not present a real problem in future negotiations? The delegated model would ease the concerns of many senators, a lot of Canadians in general, and a lot of people from British Columbia who object to this from a constitutional or policy standpoint. Where do we go from here? We have evidence that the delegated model works. We have evidence on the other side that the fettered model has serious constitutional issues. We have heard you on that about concurrent powers. There is still some concern about that. Section 35 is not as clear as you say you would like it to be. Where do we go from here?
Mr. Ebbels: There are 197 Indian bands in British Columbia. There are approximately 600 all across Canada. Therefore, one-third of them are in British Columbia. They are all operating under delegated models under the Indian Act. Subject to what the band council resolutions say, hardly any provincial laws apply. It is state administration and they are a disaster, as evidenced by the social problems. We hope to get rid of that.
One of the problems with the current process is that there are so many bands in it. Some are very tiny and arguably should be part of a larger tribal or linguistic group, but that is for the treaty commission to sort out.
At the end of the day, I would like the 197 delegated forms of local government that are disasters to be gone. I heard it said here earlier that we are creating mountains of consultative obligations with 40 or 50 Indian bands and that that brings the province to a standstill. That is what we have now. The Supreme Court of Canada is telling us that we must consult, that we cannot impact aboriginal rights. Who do we consult with? In dealing with the Nisga'a, we had to deal with at least four village governments, and a bunch of clan chiefs or family heads. That costs the province an incredible amount of money and takes an incredible amount of time.
That is one of the reasons that there is a discount for doing business in British Columbia. If you want to put in a new mine or highway there are always questions about who has been consulted, whether the consultation has been adequate, and whether the bands have sufficient capacity to properly assess the project. After this treaty comes into effect, we will only have to consult with the Nisga'a central government, and the treaty specifies precisely what we must consult on. If it is not in the treaty, we do not have to consult.
(Take 1500 follows: It will save us mountains of time and money...)
(Mr. Ebbels: continuing.)
It will save us mountains of time and money; it will save the Nisga'a mountains of time and money. The province believes that this solution is worthy and too late in coming. It is not going to be a plethora of consultation obligations. It will have the opposite effect.
The Chairman: Senator Grafstein, can I thank you and thank the witnesses. Are there any other senators who would like to ask a final question?
Senator St. Germain: This agreement was outside of the B.C. Treaty Commission process, was it not?
Mr. Ebbels: That is right. The negotiations were not conducted under the auspices of the B.C. Treaty Commission because the negotiations were started in 1976 and the commission got up and running in 1991, I guess.
Senator St. Germain: In response to Senator Grafstein's question of delegation versus constitutionalization, or whatever you want to call the process that we are going through now. The Sechelt are delegated with a self-government. Their plight has improved by virtue of what they have. I do not think it is fair to say if you delegate you will relegate these people to abject poverty and the social dilemmas that they are facing now. I wanted to clarify that.
Mr. Ebbels: I did not mean to leave that. That is a good point.
Senator St. Germain: Okay.
The Chairman: Thank you very much, Mr. Ebbels and Mr. O'Rourke. We greatly appreciate your being here and speaking for one of the parties to the agreement.
We have, as an individual witness, Mercy Thomas.
Ms Mercy Thomas: Honourable senators, ladies and gentlemen, my name is mercy Thomas. I am also known as Nisibilada, a matriarch from Nee'is'lis'e'yans Wilp. Wilp means "house" in the Nisga'a language. Nee'is'lis'e'yans Wilp is part of the Wolf Clan of the Git Gingolx and the Nisga'a. My crest is the howling wolf. I am married; I have four sons and one daughter, 16 grandchildren, four great grandchildren, and I do not know how many more on the way.
I started to work when I was 10 years old. presently, I work as an aboriginal cultural worker in the Surrey school district. This is to create an awareness and bridge other cultures to the aboriginal culture. Now that I am 65 years old, I will be retiring in June. I would also like you to know that I am one of the survivors of the residential schools.
There were eight siblings in my late mother's family. I have two sisters living. There are approximately 600 people, or more, in our Wilp. I come from Kincolith, which is accessible only by air and water. Kincolith is part of the other Nisga'a villages of Greenville, Canyon City, and Aiyansh. It is a part of the upper Nass.
Our way of life is distinctly different. Under the Indian Act, I am a member of Kincolith band. I am a Canadian citizen.
Honourable senators, as a matriarch, I have direct responsibility for the people in my Wilp and our lands. Each Wilp, under the guidance of the chiefs and matriarchs have exclusive control over certain areas of land that cannot be infringed upon by other clans. From that land, the members of the Wilp gain the right to sustenance, like hunting, fishing, and gathering of food. This is our way of life in Kincolith.
To make my point quite clear, I would like to add that the people from Canyon City, Aiyansh, and Greenville do not have rights to use these Ango'askws, which are ancestral lands in Observatory Inlet, Anyox, Sandy Beach, Alice Arm, Portland inlet and Stewart on the Alaskan border. The upper Nass River people have their own Ango'askws in the upper Nass River to which the Kincolith people have no rights and cannot infringe.
It was easy for the negotiators to bargain the Kincolith lands away to achieve this treaty as the majority of the negotiators are from outside Kincolith. I noticed today, senators, that there is not a Kincolith representative sitting with the Nisga'a who are here.
A Wilp and its Ango'askws, its land, are intricately intertwined. The history, the foundation, and the future of a Wilp is its land. Without land, there is no Wilp or entitlement to ancestral names, songs, stories, dances, and history. Our way of life will be damaged forever because the Nisga'a Final Agreement excludes land related to my ancestral Wilp, the other Wilps, and the other Wilps from Kincolith. Furthermore, the Kincolith people will have no land for development in order to be self-sufficient.
Honourable senators, in the late 1800's, or early 1900s, my father and his brother-in-law accompanied the government surveyors to Aiyansh, Canyon City and Greenville to survey their lands. They were turned away at gunpoint. My father said that they surveyed only the Kincolith land. These are registered in the department of Indian Affairs and the Land Registry Office in Ottawa.
All landowners in Kincolith have a certificate of possession as a legal document to their lands. These were the Kincolith lands that the negotiators used to achieve this treaty.
The upper Nass will be the beneficiaries of increased lands while the Kincolith lands were decreased. We almost fell off the negotiated map. Is this a fair, just, and equitable treaty? In all appearances, it is not. We, the Kincolith people, have too much to lose, and this is unacceptable.
Under the Indian Act, the elected band councils must gather all band members to inform the members that a piece of their land is to be sold, leased, released, or given away. A referendum or a plebiscite must be conducted. A majority vote of all members is required to release any of our lands. This did not take place. The Kincolith chiefs and matriarchs did not sign any release documents to their lands. We are losing our Ango'askws and our lands. We will be lost.
Honourable senators, by way of the agreement, most of the services we previously received from Canada and British Columbia will be received through the Nisga'a tribal councils, the future Lisims government.
(Take 1510 Follows -- Ms Thomas continuing: If we want to benefit...)
(Ms Thomas: continuing.)
If we want to benefit from any of these essential services, we will be subjected to the authority of the Nisga'a tribal council's future lisims government, therefore validating the surrender of our lands and the destruction of our wilps, our way of life, and the genocide of our people in Kincolith.
Honourable senators, I have read that the Charter of Rights and Freedoms is there to protect us as Canadian citizens. I have concerns of inequity under this new treaty. I am concerned that the non-Nisga'a aboriginals outside the Nisga'a culture who marry Nisga'a will not be protected, that the non-Nisga'a spouses outside of the Nisga'a culture will not be protected. For example, my daughter-in-law, an aboriginal, married to my son for over 25 years, voted in the treaty ratification. Her vote was taken and put in an envelope. They wrote her name on the envelope, which was supposed to have been a secret ballot. She received a letter from the ayuuk committee, which is the Nisga'a law, seven months later telling her that she was not eligible to vote because she was not adopted into a tribe or wilp. My husband, a Canadian citizen of Welsh descent, was legally adopted under Nisga'a law into Nisga'a eagle wilp, yet he was denied the vote in the treaty ratification because he is not a Nisga'a aboriginal.
These are only two examples, and there are many inequities of similar circumstances in this treaty process. The Nisga'a say that they practise the Nisga'a law and yet they do not recognize and uphold the absolute essence of that law, the decisions of the wilps and chiefs.
It is my opinion that this treaty is a dictatorship-structured treaty. Those who have concerns are left on the outside looking in. A structure is not in place to ensure that the future lisims governments are credible administrations, with proper protocol and equality rights.
I am not alone in these concerns. There are many like me who do not have access to the funds lent from the federal and provincial governments to the negotiators for this treaty, to make our concerns heard, making it look as if we all agree with this treaty process -- and we do not all agree. Hence, our concerns are excluded. We are the poorest of the poor. As always, our concerns are not heard.
I would like to divert from the text and tell you that I am also here as a representative for Frank Barton, who could not be here because he did not have the money to come with me. However, I do have his letter saying that I can represent him.
We the Nisga'a are a matrilineal society and it is quite evident that the negotiators did not make room for a female representative on the negotiating team, which defies the laws of our wilps and the Canadian Charter of Rights. My concerns are not only for myself, my wilp and other Nisga'a women, but also for other First Nations women who are likely to suffer under similar provisions in other treaties. I worry about the loss of fundamental gender equality and other rights provided by the Canadian Charter, the Constitution and common law.
My late husband was Judge Anthony Robinson, who, under the Calder case, was one of the plaintiffs. His and my participation at that time was never to surrender Kincolith, Ango'askws and our lands to achieve this kind of treaty.
The potential harm, which extends to the termination of my wilp, leads me to ask that this treaty first be reviewed by the courts before it is implemented. The court cases of those who feel their lands are infringed upon should be heard before the final decision is made. This is only fair and equitable.
There are many other deficiencies that need to be reviewed and rectified before Royal Assent is given to this treaty. I seek a fair, equitable and just decision from the Senate. This is a request from me and the wilp that I represent.
At this time, I would like to express my gratitude and thank the committee for giving me time to express my concerns, the concerns of Wilps Git Gingolx, and for listening to the plight of the many who have been left out of this historic process.
The Chairman: Thank you very much for your evidence.
Senator St. Germain: Do you want that Mr. Barton's letter to become part of the record?
Ms Thomas: Yes, please.
The Chairman: Is that agreed?
Hon. Senators: Agreed.
Senator St. Germain: How many people are in your particular wilp?
Ms Thomas: Our wilp is increasing at every moment.
Senator St. Germain: I noticed that.
Ms Thomas: At this moment I can probably say approximately 600, and that is only the one house.
Senator St. Germain: Have you filed suit in the court in regards to your grievances? Have you taken legal action?
Ms Thomas: Yes, and I am tabling for the Senate the Statement of Claim.
Senator St. Germain: On the question of women, you are correct, I have not seen many women around.
Ms Thomas: There is none.
Senator Grafstein: I see a lot of women around.
Senator St. Germain: I mean with the Nisga'a. Is there a member on the team that represents Kincolith?
Ms Thomas: This is where I find that the chief councillors and councillors from each of the bands are wearing two hats, and I think this is a conflict of interest. There is supposed to be one, but I do not see him here today. I do not know the reason for that. There are no women on the negotiating team.
Senator St. Germain: You brought up the question of how this new government will be held accountable. It is a concern that many of us have had, and I addressed this in my initial speech in the Senate. We often hear that this compares to a municipal system and that transfer payments will go to these people, but under a municipal system, since the municipality is a creation of the province, if the municipality is misbehaving, it can be denied its transfer funds or the act that created it can be revoked. In this case, by contrast, we are creating something that cannot be changed other than with the approval of the three parties. We are virtually casting this in stone. As I have said, I have no reason to distrust these people who are here, they are excellent people, but it is what happens down the road that creates the problems.
Is one of your concerns that there will not be any accountability to the rank and file in the Nisga'a nation, and that people like yourselves, who are possibly in outlying areas, with suffer even more because of the inability to properly represent yourselves at the government lisims?
(take 1520 follows, Ms Thomas: You took the words right out of my mouth.)
(Following Take 1510, Sen. St. Germain, the government listens? TAKE 1520 begins here)
Ms Thomas: You took the words right out of my mouth.
Senator Andreychuk: How many Wilps are there in the Kincolith area?
Ms Thomas: There are four clans and there can be a matter of two, three or four Wilps in one clan.
Senator Andreychuk: Do they all feel like you do? Have you had discussions?
Ms Thomas: The majority do, but they are afraid to speak up. They are not like me.
Senator Andreychuk: I should, perhaps, know this, but will all the Kincolith land then be under the jurisdiction of the Nisga'a treaty or are some outside?
Ms Thomas: The only lands that Kincolith will receive are the lands they are living on right now. There is no room for development. We went into this treaty with 42 reserves. From what I understand, the Upper Nass has been increased by 23 reserves and Kincolith has 19 fee simple lands that can be bought and sold. Once we go broke, they can sell those lands and we will not have anything left of the Kincolith lands.
Senator Andreychuk: Are you saying that your lands are not part of the Nisga'a lands and that they are only represented in the fee simple portion of the Nisga'a land?
Ms Thomas: We are not in the core land. The lands that were left were put in fee simple land.
Senator Andreychuk: If we were to trace all the Kincolith bands, would we have to look at these fee simple packages?
Ms Thomas: Yes.
Senator Andreychuk: For further clarification, none will be outside the Nisga'a agreement? That is to say, geographically, none are left to negotiate or dispute?
Ms Thomas: Once the treaty is signed, there is nothing to negotiate.
Senator Andreychuk: They are all inside the tent?
Ms Thomas: That is right.
Senator Andreychuk: Do you know how many people in your Wilp voted?
Ms Thomas: That is one of the discrepancies that I feel is wrong. According to the records, we are 6,000 Nisga'a; 5,000 voters. There were 2,395 who registered to vote. I feel that there were 2,605 from that number. At one time, we were told that those who did not vote would be counted as a "No" vote, but that did not happen. A lot of the Kincolith members are outside the village right now, either with employment and/or getting an education. Those who were in Kamloops, Prince George or Vancouver Island did not receive any information about the vote. Therefore, they were left out. Some of them are from Kincolith. As a matter of fact, perhaps the majority of them were.
Senator Andreychuk: With respect to these new structures and governmental structures within the Nisga'a, do you know if any of the Kincolith have been approached to be part of the formulation establishment and to have membership on these panels?
Ms Thomas: We are quite a distance from Aiyansh, where Government House will be situated. We are right at the very mouth of the Nass River. That is why I said we are distinctly different. We are sea-bearing people who eat all the different sea foods found in the Upper Nass. The fishers must do a lot of travelling, and I presume that is why a representative from Kincolith is not here.
To answer your question, I believe that some are included in the membership of some of these institutions, but it is very difficult to do so. Kincolith can only be reached by air or by water.
Senator Andreychuk: Finally, did you approach the federal government or the British Columbia government at any time, protesting the process and the procedure?
Ms Thomas: Yes.
Senator Andreychuk: What response did you get?
Ms Thomas: We approached the provincial government before it was passed through Parliament. When we started approaching them, they barrelled it through. We sent letters to the ministers in Ottawa, at their offices the Parliament buildings, and we were referred from one person to another. We do not have the kind of funding that many other Nisga'a have. We do not have a loan from either the federal or the provincial government to travel. That is the why we have not been heard.
Senator Grafstein: You said that you protested. How have you protested to the provincial government?
Ms Thomas: We have written letters. As a matter of fact, I have all the letters that we wrote, for example, to the Minister of Aboriginal Affairs, and so on. We have tried every way to be heard -- not only from the provincial government but also from the Nisga'a themselves. We tried to tell them that we do not want to lose our lands, but it is my understanding that Kincolith will always be out voted. We have letters as proof that we have written to these people.
Senator Grafstein: You have protested to the provincial government and you received no response? Have you received a response, or what?
Ms Thomas: Yes, Frank Barton received a response from Ujjal Dosanjh, when he was the attorney general. He said that if Mr. Barton found there was any criminal negligence, he should go to the RCMP. Mr. Barton did, and it is still in the hands of the RCMP in Prince Rupert.
Senator Grafstein: About what, the electoral process?
Ms Thomas: That is part of it, yes.
Senator Grafstein: What steps did you take to protest to the federal government?
Ms Thomas: We wrote letters to them. Would could not travel. It was too expensive.
Senator Grafstein: I understand. That was to whom, to the minister, Mr. Nault?
Ms Thomas: To different ministers, yes.
Senator Grafstein: You received no response from them either, I take it, or did you receive a response from them?
Ms Thomas: The responses were quite curt. They referred it to another department. Frank Barton has all those backup letters, which I do not. Unfortunately, he is not here to bring all this evidence.
Senator Grafstein: This is the first time you have been in court on this issue?
Ms Thomas: For me, yes. Frank Barton, James Chief and Chief Mountain filed a claim against the Nisga'a tribal council, which was heard in Kamloops.
Senator Grafstein: What happened?
Ms Thomas: The judge said that the Nisga'a tribal council had spent a lot of money. Therefore, there was nothing that they could do. Also, under that case, they did not prove that there was anything wrong. Not too long after that, James Robinson and Frank Barton received letters from the Nisga'a tribal council asking them to put on a feast, disrobe in front of the public and bathe. That is their form of inflicting shame on those who took them to court.
Senator Grafstein: Let me understand your rights as they presently exist and as they will exist. You are a Nisga'a?
Ms Thomas: Yes.
Senator Grafstein: The 600 people that you talk about in the four clans that you mentioned as part of the Kincolith are all Nisga'a?
Ms Thomas: Yes, but first we are GitKincoliths. We come from Kincolith.
Senator Grafstein: Will you be able to vote under the new governance provisions under the Nisga'a Charter or the Constitution?
(TAKE 1530 follows Ms Thomas: We will be able to vote…)
RC/Aboriginal 36161/Mar23/00
Ms Thomas: We will be able to vote. The irony, however, is that there are three other villages in the Upper Nass that will always out vote us. It does not matter what we do. We have been classified as the dissidents.
Senator Grafstein: You a right to vote, but you say you will be outvoted because of your location or different positions on various issues; is that right?
Ms Thomas: No, it is a case of the numbers. The three Upper Nass villages will always outvote Kincolith no matter how we look at it.
Senator Grafstein: You would have the right, if you could persuade others to be part of the governance structure, to be a member of the government?
Ms Thomas: If it was a free vote it would be possible, but it is not a free vote. What happens to each of the reserves is they choose their chiefs and council and they are the ones who automatically become part of the NTC.
Senator Grafstein: It is block voting, something with which we are familiar in other places.
Thank you, witness.
Senator Sparrow: Your comments illustrate that it took a great deal of courage for you to appear today. You referred to the fact that there are many in your 600 who have shown -- and you did not use the word "intimidated" -- but who at least have shown indications of intimidation for taking a stand in opposition to what is happening. Can you explain some of the repercussions that you have faced or which you or your people are afraid of facing?
Ms Thomas: To be honest with honourable senators, it took a great deal of courage for me to stand up for the rights of those who have not been included in this process, especially for my people in Kincolith. They feel intimidated. We had a meeting in Kincolith and Kincolith was going to withdraw from this treaty process. People put up a resolution whereby they would withdraw because they felt they were losing too much. We were meeting as Kincolith citizens. The Nisga'a Tribal Council then came to Kincolith, and although I am not too sure of what happened, I understand that the council, under much pressure from the NTC, withdraw the resolution. The resolution to withdraw was done by the people of Kincolith, not by the council. They had no right to withdraw the resolution. It belonged to the people. It still has not gone back to the people to this day. We would like to see it come back to the people.
Senator Sparrow: What is the answer to your problem? Is it that the agreement as proposed be dropped? What changes do you want to see in that agreement? Would you rather go back to the status quo? If things were to remain as they are, do you see a future for your people?
Ms Thomas: I do not want the status quo. I would like to see changes. As I said earlier, we participated in the first court case, but it was not to give away our lands, especially the Kincolith lands. I would like to see this process delayed. We have no alternative but to go to court. There is no other way at this very late date. There is no other alternative.
As I said earlier, we are the poorest of the poor. It will be a miracle if things change. I realize my appearance today might not change anything for the senators. However, on the other hand, I cannot see us working under the Department of Indian Affairs because we were suppressed.
I feel that the only thing that is left is the courts and that this be brought before the courts to be determined.
Senator Sparrow: You are suggesting a delay. What would the delay accomplish? What would be the benefit of a court case for your 600 people?
Ms Thomas: Hopefully, senators will look at this a little more deeply because our side has not been heard. Those who disagree with the process should be heard. The only thing I can see is that the delay would help us bring out a lot of these discrepancies. The court case, of course, would say one way or the other what our rights are. I know what my rights are. I am a Canadian citizen. However, as I see the situation today, the alternative to what we have been trying to do all this time is to go to court. Hopefully, they will listen to our concerns and define what our rights are as far as this treaty is concerned.
Senator Sparrow: Do you mean including land as well as other issues?
Ms Thomas: Yes, that is right.
Senator St. Germain: When the Nisga'a Tribal Council came to Kincolith, were you there physically when this position was overruled and the people voted to remain outside this agreement?
Ms Thomas: When the resolution was read to the people of Kincolith and the Nisga'a Tribal Council, two chiefs stood up and said to the Kincolith people, "If any of you feel, as I do, that we are losing too much of our land, please walk out with me." The majority of the Kincolith people did just that. The only ones who were there, those who were in a conflict of interest, were members of the general executive council. They voted to be the council of the village and to become part of the Nisga'a Tribal Council. The only ones left were the elected chief and council, and we all walked out.
Senator St. Germain: How many were you there approximately?
Ms Thomas: There were quite a few who walked out. During that time, many people were brought into the back rooms to pressure the councillors. They told us later that they were taken into the back rooms and told to withdraw the resolution to withdraw from the treaty.
(take 1540 follows: Senator St. Germain: Thank you, Mr. Chairman. That is excellent evidence.)
(Ms Thompson continuing...to withdraw from the treaty.)
Senator St. Germain: Thank you, Mr. Chairman. That is excellent evidence.
The Chairman: For my clarification, you were present at that meeting where Chief Robinson rose and asked members to walk out with him?
Ms Thompson: Yes, I walked out with him.
The Chairman: Thank you for your evidence. It is much appreciated.
Ms Thomas: It is unfortunate that I could not sing with my drum because I did have a song for you to hear.
The Chairman: No, no. Our rules are that there are no placards, no flags, no demonstrations, just evidence. I don't want to abuse those rules.
Senator Sparrow: If it is a short song we should hear it.
Senator St. Germain: We have done it before.
Senator Andreychuk: When this committee travelled on hearings, we always had ceremonial input.
The Chairman: We can always vary our rules by practise.
Senator St. Germain: Go ahead, if you wish to sing.
Senator Sibbeston: Yes, sing us a song.
Senator Andreychuk: Will we hear from Mr. Monahan?
The Chairman: If Ms Thomas would excuse us for a moment, Mr. Monahan does not wish to give evidence and has asked that his evidence before the House of Commons be taken as read. He and Justice Estey served the same law firm and it was felt by Professor Monahan that it was not appropriate for him to appear.
Senator Andreychuk: In other words, he has withdrawn. You have given me the reason; they were in the same office. It appears, therefore, that he has deferred to Mr. Estey.
The Chairman: No, he is not deferring to his arguments.
Senator Andreychuk: I do not know that because he is not here to tell me.
The Chairman: I am telling you that he advised me that he would like us to take his evidence as given in the House of Commons as evidence before this committee. Under our rules --
Senator Andreychuk: Are we doing that?
The Chairman: Yes, of course, we will do that. I intended to speak to that at the end of our hearings and at the end of the witnesses, rather than get into procedural discussions at this stage. I am trying to accommodate the witnesses. There are time schedules and airline flights to be considered.
Senator Andreychuk: There is no cross-examination.
The Chairman: You give it the credibility you wish to give it because there is no cross-examination.
Ms Thompson, please proceed.
Ms Thompson: Thank you. This song came after the agreement in principle first came out. This song states exactly some of the things that I expressed today. We will lose our ancestral lands. I think of my great-grandfather and great-grandmother, my uncles' hunting grounds, my mother's stories.
Our negotiators were paid a lot of money and now we will lose our lands. What will happen to our children? Our great grandchildren will be no more. In the Nisga'a, there is a word called ayuu'waa; it is a term of distress. If an accident happens, we say ayuu'waa. If something is going wrong, we say ayuu'waa. This is my song and it is called Ayuu'waa.
[Witness performed song in native language.]
The Chairman: Our next group of witnesses are from the Nisga'a Tribal Council. They are appearing again with a supplementary submission and to answer your questions resulting from evidence you have heard from other parties.
Dr. Joseph Gosnell, Sr., President, Nisga'a Tribal Council: Mr. Chairman, we will not read our presentation into the record, recognizing the time and also that we have provided our views and our thoughts in other submissions to this particular committee.
(tk 1550 follows--Mr. Gosnell start: I would like to start from the back)
(Mr. Gosnell continuing -- made to this particular committee.)
I would like to start from the back, from the tail-end of the hearings that we just witnessed here and heard within the last few minutes. A note was passed to me, and it states, "If this is a matriarchal society, where are the women on your committee?" I wish to respond, as briefly as I can, to the question that was posed.
Over the many years, we have had women who have sat on our respective band councils at the will of their constituents. They are voted in and out just like members of the House of Commons, members of federal-provincial governments or any governing body. It is at the will of the electorate. We do not just appoint people at will. It does not happen that way. However, we do periodically have women on our band councils.
We have a majority of Nisga'a women who operate our Nisga'a Valley Health Board, and I am very pleased with their participation within our structure. School District 92, not only the teaching staff, but the personnel who operate school District 92, Nisga'a, are women. The majority of them are women. The personnel on each of our respective band councils, and there are four in the Nass, are mostly women.
One of the most important historical events that happened in the history of the Nisga'a nation was the ratification vote of the treaty. We set up a separate committee to oversee this very important aspect of the work that was done. That committee was formed not by the Nisga'a Tribal Council but by names that were submitted from each one of our four communities and three outlying locals. I am very pleased to say that the majority of that committee was women. The commissioner who looked after the entire process was a woman. Her co-chair was a woman. I am pleased with the participation of Nisga'a women on the things that we do within our society.
Mrs. Thomas is quite correct. Frank Barton did approach the RCMP with allegations that fraud was taking place within the Nisga'a Tribal Council. The RCMP from the Prince Rupert detachment reviewed the documents that he had submitted and came to the conclusion that there was nothing amiss. We have a letter to that effect. The allegations that were made by Mr. Barton were dismissed by the RCMP. If you so wish, we can provide you with a copy of that letter.
I must correct Mrs. Thomas in one of the most important requirements of our culture. When a wrong has been done, an apology is required. We do not oversee that. That is not handled by the executive board of the Nisga'a Tribal Council. We have a committee that oversees and interprets the laws of our people. They clearly indicated to Mr. Robinson the committee's view of what had transpired and what he must do under the laws of our nation. There was no such thing as requiring to be disrobed in public to show the shame of the man. An apology would have been sufficient. I believe things here within this committee room are being over exaggerated.
If there is anything that I miss, Mr. Chairman, my colleagues will fill in any other aspects. We have set out many times, not only to the standing committee here but to committees in the province of British Columbia, the views and the comments of the Nisga'a nation. We have made submissions to you, and we will not regurgitate or repeat those submissions that we have provided to you. I am sure you can read them and reread them at your pleasure.
March 22, 1996, is the anniversary date of our signing of the agreement in principle in the city of Vancouver. Our fourth anniversary date was yesterday. It has been four years since we signed that historic document in Vancouver. Within that four-year period, up until today, we have heard many views from people from all walks of life. We heard some of them over the past few days: judges, mayors, and ordinary people from all across this country. My colleagues and I go on television and radio talk shows. We do interviews. We speak to universities and colleges and high schools to try to get our story across as to what this treaty means for the future of the Nisga'a nation and to move away from this Department of Indian Affairs rut that we have been in for over 130 years. We are trying to get out of that. We believe that the contents of this treaty over a period of time will enable our people to do that.
Few people are aware of the compromises that have been made to enable us to be seated here before you in the very last stages, requesting the final approval of our treaty -- compromises that we made to be able to be seated here before you. Hopefully you are the last group that we will sit before. You will make a determination based upon what you have heard and the evidence provided to you as to whether or not this treaty deserves your approval. You can do either one of two things. You can approve this treaty and send us on our way to, in my view, a brighter future, or you can say "no" to this treaty and we will remain under the Indian Act. That is what you could do. Our future literally is in your hands. You will make that determination based upon what you have heard.
I indicated the vote that was taken, and we have provided you with the results of that ratification vote. Collectively, the Nisga'a nation made a decision to accept the contents of the Nisga'a treaty and the Nisga'a constitution. That is what they did. I will not tell you what the numbers are, because you have it somewhere in your possession.
We did not force people. We did not go and solicit votes. We indicated very clearly, "You will make that decision yourself based upon what you think this treaty will do for us." They did that, and the majority of our nation accepted the contents of the Nisga'a treaty along with the Nisga'a Constitution. Certainly, as we have heard here this afternoon, there are those individuals who hold very strong views, and they express those views and comments in whatever shape or form that they will. However, at the end of this exercise, honourable senators, the will of the majority of our nation must be respected -- the will of the majority, not the will of the few.
(1600 follows - Mr. Gosnell continuing - I believe that if the vote had turned out the other way)
(Mr. Gosnell: continuing.)
I believe that if the vote had turned out the other way, that if there had been a total rejection of the treaty, the negotiating team would have been given instructions to take a different route. Such was not the case. We were given instructions to proceed and finalize the treaty, which we have done.
During the vote also, federal and provincial representatives were also present to ensure that everything was done above board. There were no underhanded happenings that occurred. How could they occur? The process was overseen by representatives from Canada and the Government of British Columbia.
I shall now turn to the subject of minority rights. Much has been said about the minority rights of those individuals who will work within our communities following the effective date. At the last committee meeting that we attended, I listened to Senator Grafstein. He said that never in the foreseeable future could this minority ever overwhelm the majority. This is a question of minority rights.
Mr. Chairman, my views differ from Senator Grafstein. History has taught the aboriginal people across North and South America well. I recall several centuries ago, 500 years or so ago, a group of so-called explorers, the so-called discoverers of our lands, stumbled upon North and South America and they ventured onto the shores of this great country of ours.
I believe that the view of the aboriginal people then were the same views that were expressed by the honourable senator: That we were never be overwhelmed by these people coming off these ships. However, here we are, in the year 2000, 500 years after the discovery of North and South America and we are completely overwhelmed. I need not remind you of the statistics of Canada that indicates we form 2 per cent of the population. We are completely overwhelmed in our own country.
That is what we fear, honourable senators, with respect to the total recognition of minority rights within our lands.
Aboriginal people of both North and South America paid a devastating price for this march that we know today is a march toward progress. We paid a terrible price for that.
Why have we not gone that extra distance the honourable senator indicated? Why did we not go 100 per cent and grant everyone within our lands the right to vote and participate in our government? I just indicated to you one of my views. However, by way of comparison, would any one of you seated across this table in this room allow strangers or individuals who stay with you temporarily decide how your families' internal assets would be handled? Would you do that? That is the problem that faces us, those people who come into our communities maybe for a year, two years, three years and then they are gone. Would we allow that to happen? I ask you the same thing: If you were in our shoes, would you do that? Would you allow someone to handle your family's personal assets? I do not think so.
Honourable senators, we left the door open for the government of the future to have the ability to make a decision after reviewing some of our people who have been married to non-Nisga'a, how well they have fit into our society, how well they abided by the laws of our people and participated in our culture. They will have the ability to grant the right to those people at some time in the future. I cannot make that determination. It is not for me to do that. I will leave that topic at that point, I am sure there may be further questions.
I shall now turn to the overlap situation. All sides have expressed their views with respect to the situation that faces us. Some honourable senators may be aware of what the federal requirements were to deal with the so-called overlap situation.
Mr. Chairman, after hearing some of the comments that were made yesterday, we categorically reject the accusation made that we misled or that we acted in bad faith to our neighbours, to the House of Commons and to this Senate. We reject that sentiment outright.
I wish to point out also the remark that was made with respect to one of the documents that were printed a number of years ago under the heading "Lock, Stock and Barrel." My late brother James had a role to play in that, because that was a quotation that he made during the constitutional debate quite some years ago. This is not the only document that we have. One of the requirements of Canada, right at the outset, before negotiations began, was that we must do a land use and occupancy study. We had to prove that we owned this land. We did that. We have volumes and volumes of the land use and occupancy study that proves that the land we talked about belonged to us.
There have been several references to court cases of the future that could or may possibly be launched against us. I wish to point out very clearly that we, too, are prepared to go to court based on the information we have now compiled and have in our possession in the land use and occupancy study.
Glen Williams stated yesterday that their claim is unproven in court. I would have to agree with the man. A requirement of the Delgamuukw decision is that a group laying claim to territory must prove exclusive use and occupancy with other tribes totally locked out. No doubt, some time in the future, we may get into that situation and we are prepared for it.
(Take 1610 follows -- Mr. Gosnell continuing: Representatives from both Canada and British Columbia...)
(Mr. Gosnell: continuing.)
Representatives from both Canada and British Columbia were present when we agreed to utilize the services of a mediator. We have that on paper and we are still prepared to stand by that statement, provided certain conditions are met.
It was also stated yesterday that the offer Canada and British Columbia made to our neighbours the Gitanyow were the crumbs that fell off the Nisga'a table. In my view, that is false. You may be aware that a cost sharing formula was initiated by both the Government of Canada and the Government of British Columbia with regard to how much land tribal groups will get and how much cash transfers will be made. The formula is based on population.
The opening paragraph of the 1913 petition says that we will decide the terms and conditions upon which we will deal with our territory and that, if certain conditions were met, we would take a reasonable and moderate position. Having fulfilled that commitment made by our forbearers, we are attacked from all sides. Some people said that the Indians were getting too much land and too much money. Other said that we were not getting enough. Still others said that the situation was unconstitutional. The courts must decide on this.
We hear threats of violence and war, even here in this Senate committee room. I remind honourable senators that we live not in the 18th century but in the 21st century, and the rule of law is applicable to every citizen of this great land.
Mr. Chairman and honourable senators, we negotiated the Nisga'a treaty in good faith. Are the rules to be changed by the Senate at this late hour? Will the goal posts be moved once again after this 25-year process?
We must all recognize that the Nisga'a treaty is not a perfect document. The Senate gives sober second thought to legislation which emanates for the house next door. Can you show me a perfect piece of legislation, either provincial or federal? Can you show me a perfect international treaty? There are none, just as this treaty is imperfect. However, we agreed to its contents. Our people voted in favour of it. That is what negotiation is all about. Compromises must be made at the negotiating table, and that is precisely what we have done.
Mr. Edmond Wright, Secretary Treasurer, Nisga'a Tribal Council: Honourable senators, I have been involved for quite a number of years with the Nisga'a Tribal Council. I was first involved as an elected trustee in the early 1970s and have been involved as an elected member of the Nisga'a Tribal Council continuously since then.
It has been asked why certain individuals from some of our villages are not here. Our group decided that the three representatives who are elected by the entire nation would attend here to make the presentation before you. Next week and the week after, we will bring four elected people from the villages with us. We have as well brought a couple of our very senior people who have been involved in this for many years.
I am proud to say that this spring we will have the forty-third annual assembly of the Nisga'a nation. That assembly rotates among the four villages and the two urban locals which are near the villages, Prince Rupert and Terrace. This year the assembly will be in Prince Rupert.
The executive members only participate in those assemblies when asked. The grassroots people give us direction there. We play no major role. We are simply part of the membership.
I wish to touch on some issues that were dealt with yesterday. Spokespersons of the Gitxsan and Gitanyow hereditary chiefs continue to assert that the Nisga'a treaty will somehow infringe on their rights. We do not believe that is true.
On the November 25, 1999, we made a supplementary submission to the House of Commons committee, that after our initial submission to that committee on February 22. We stand by that submission.
As well, we rely on the chairman's statement that this committee will not be playing a dispute resolution role.
The Chairman: I said that we are not mediators, arbitrators, judges, or a dispute settlement institution, although would love to facilitate a dispute settlement.
Please proceed.
(Take 1620 follows -- Mr. Wright: We want to state…)
DV/March 23, 2000 - Aboriginal - 36165
Mr. Wright: We want to state to the committee that the Nisga'a did agree in 1998 to utilize the assistance of a federally appointed mediator to help resolve the dispute with the Gitanyow. We look forward to possibly continuing with that process.
One of the obstacles that we had at that particular time was that Gitanyow had not received an offer from Canada and British Columbia yet. They now have received an offer, and most likely they will be having discussions. When we are sure of what rights and jurisdictions they would have, it would accommodate the talks we would have in mediation. We will stand by our word that we wish to continue with that if we are able.
There are other issues that sometimes infringe on this process, and that is legal actions that are taken by the parties that I have mentioned. It is very hard to try to have mediation and have an exchange of information when courts are also being used. Even though I stated that we do not want you to rule on any disputes, I wish to let you know that as I have stated I have been involved with the Nisga'a since the early 1970s.
Yesterday, I heard a fourth description of a southern boundary of the Gitanyow. They told us yesterday that they owned a territory 800 metres lower than before. That is the fourth description that I have heard over the past 24 years. The first description, which certainly hurt my feelings way back when was when, was that they owned up to the mouth of Susqwanich. Our president owns that creek. It is his house territory. I reacted strongly to that because my father was in his house. I remembered that area as a child.
The second boundary that I saw over these last 20 some odd years was just north of Somanwelisk, which is at the mouth of the entrance of the first canyon. It was halfway up that first canyon. I have a copy of that map at home.
Then the eight chiefs signed a letter to us and told us that their boundary was right at the mouth and including the river, which we abided by. Yesterday I heard it was 800 metres below it.
Over the years we have developed maps. We were one of the first Aboriginal groups to have a GIS process. We can make pretty glossy maps, too. We choose not to do that because we do not want you to be dealing with these issues. We will deal with that in our own process.
I wish to mention that we believe, although it has been rejected by our neighbours, that paragraphs 33 to 35 of the general provision also take care of the problems in the disputed area.
Also, it is very clear that through the submissions of Neil Serritt and the Gitanyow Hereditary chiefs that they do not want us to have any rights in any of the areas.
I want to go a little further beyond what our president stated when he described Delgamuukw. That case also spoke of shared exclusivity. That is a funny term shared. How do you have shared exclusivity? I think they meant that we shared the area, and that is what Delgamuukw said. There is a lot of that all across Canada.
It is not right that when we sit down to mediate or discuss that is all or nothing for the other sides and nothing for us. We have rights too, and we know that. After all, our position has been very consistent since the coming of the surveyor. We have not deviated at all. We have been consistent and gone on. As our president stated, we have acted very patiently.
The areas that they are very concerned about do not have exclusive hunting and fishing rights. There are rights for our membership. They were calculations made by DFO and Fish and Wildlife British Columbia that there would be enough for everyone, for the non-aboriginal and aboriginals who have claims there. A formula and a rationale were developed for allocations in order to accommodate everyone. That is very important to note.
The Gitanyow have claimed that we have five fee simple areas in their area. They are very small, as we state in our other submission, 1.5 square kilometres in total. There are many other non-aboriginal fee simple sites throughout that whole area, but somehow if an aboriginal gets something the other aboriginals get mad at them. If the white man gets it, it seems like we are quite content. There are many up there who feel that way.
We still believe that we are the owners of the entire area that we have set out, as our president stated. The Gitanyow and Gitxsan believe that there are portions of their territories in the areas that we claim. That will hopefully be resolved in the future.
We want to coexist. We started a process with Gitanyow quite a number of years ago without outside interference. We tried to get a memorandum of understanding to give them fishing rights so that younger people and others do not misunderstand the relationship we wanted to strike with them. Even though they were not at the stage of the treaty talks, we were close to the AIP stage. We knew where our lands were. We said that we had no problems if others wanted to come onto Nisga'a lands to hunt and fish. We offered that they could set up their fishing camps on the boundary. That offer was rejected. We hope to continue to do that. We want to coexist; our people have coexisted for many years.
I noted with great interest that you did not question the model that I heard the Gitanyow and the Gitxsan representative Neil Sterritt saying yesterday. I think he was telling you that they had a different model. I did not hear anyone follow up and ask what was the model.
We heard them state earlier that they would prefer a lengthy process of reconciliation, a process that would take 100 years. We are very different; of course, we want to go on with the agreement that we have concluded with Canada and British Columbia.
It is not something that is new. Four years ago we completed the agreement in principle. Canada and British Columbia joined us on January 12, 1976 and said, "let us now begin". Two months later, they were saying that they did not mean it, they just wanted to be observers.
We have continued. We have worked a long time. Many people have scrutinized the document, and we want to continue with the document.
(Take 1630 Follows -- Mr. Aldridge: Mr Chairman, the executive…)
Mr. James Aldridge, Legal Counsel, Nisga'a Tribal Council: Mr. Chairman, the executive has asked me draw your attention to a couple of things from the previous submission. You have indicated, Mr. Chairman, that the submission entitled, "Facts about the Nisga'a-Gitanyow Dispute," filed originally with the House of Commons, has now been distributed to senators, and it speaks for itself.
Due to the lateness of the hour, it will not be necessary to go through that but we would implore senators to review that document in light of the evidence of the last few days, because, in the view of the Nisga'a, it provides a complete answer to many of the things that you have heard.
However, there are two things from that document to which I wish to specifically draw your attention. If you do not have it, that is fine, I will read it.
One thing is something that Senator St. Germain has referred to frequently, and accordingly it is incumbent upon the Nisga'a to respond directly.
The allegation has been made repeatedly, as recently as last night -- and it has been referred to several times today as to what Senator St. Germain has been told -- that when the Nisga'a when to the B.C. Supreme Court in 1968 in the Calder case, their claimed territory was much smaller than what they subsequently told you is the true size of their claim. That is simply incorrect. It is necessary for honourable senators to be aware that the Statement of Claim in the Calder case, way back 32 years ago now -- and I might say that predates my involvement with the file -- quite clearly set out the meets and bounds of the Nisga'a traditional territory verbatim from the 1913 petition. It was the entire territory as described by the 1913 petition, including all of the waters flowing into the Nass watershed. I am not quoting the petition exactly correctly, but it is there for your reference.
There was indeed, at that time as there is now, a dispute between the Nisga'a and their neighbours, the Gitanyow, so in order to avoid having that lawsuit turn into an issue between First Nations, when the Nisga'a really sought to get a declaration as against the Attorney General of British Columbia, the Nisga'a instructed their legal counsel, Tom Berger, to proceed on the basis of the undisputed territory only, for the purposes of that lawsuit only. On the first day of trial and in the previous submission facts about the Nisga'a Gitanyow dispute, we have attached a photocopy of the transcript of the trial. I know that some of you have this and I remember going over it with Senator St. Germain sometime ago in his office. He will recall that Mr. Berger said to the court on the very first day of the trial:
"My Lord, I should add in this connection that in the Statement of Claim, paragraph 8, I don't want your lordship to refer to it, is simply an explanation, the plaintiffs have delineated the area that they claim constitutes the Nisga'a tribal territory."
That is the 1913 petition description.
"The plaintiffs have delineated the area that they claim constitutes the Nisga'a tribal territory, the territory that they have occupied since time immemorial by meets and bounds, by reference to landmarks well known in that part of the North Pacific coast. The area delineated by Professor Duff's map, signed by my learned friend and by me, is a limited area and I simply want to say that the plaintiffs do not give up their claim to the larger area referred to in paragraph 8 of the Statement of Claim but are limiting their claim, for purposes of this action only, to the area delineated on the map."
The court responded:
"Paragraph 8 does not coincide with the map? The map is smaller? As far as this action is concerned I am examining the title to the area delineated on the map?"
Mr. Berger replied:
"Yes."
The court said:
"Again so there will be no doubt, for the purpose of this action, the description in paragraph 8 is abandoned?"
Mr. Berger replied:
"That is right."
They then proceeded on the basis of the smaller map that Senator St. Germain has referred to, but it was absolutely clear on the record that that was for the purposes of that lawsuit only, while the plaintiffs retained the 1913 description as set out in the 1913 petition.
The second very specific point -- and this is not to understate the importance of the balance of the submission, which we implore you to read -- is one I raise because it was evident to us there was misunderstanding among certain honourable senators. Perhaps Senator St. Germain could do me a favour and make that map visible to all members of the committee.
Senator St. Germain: This was supplied to me by the department.
Mr. Aldridge: We have the same map and we will give the same statement. It is a departmental map but we believe it is accurate about these matters.
Honourable senators will note the dark green area in the lower part of the Nass River. That is Nisga'a lands. We must be careful of the use of terminology here. For senators' reference, it is at the very back page. You will see a larger example of that very large green area.
That is so-called 2,000 square kilometres of Nisga'a lands, and what is meant by that is the land that is owned as an estate in fee simple by the Nisga'a nation under the treaty. The large green area around the outside is what the Nisga'a assert is their traditional territory, and there are different lines on the map that show what the Gitanyow have claimed and what the Gitxsan and Tsimshian have claimed.
During negotiations prior to the agreement in principle -- and it is worth noting that this was back in 1996, some time before Glen Clark became premier -- the position that the Nisga'a had at the bargaining table would have had Nisga'a lands quite some distance further upstream into that part of the territory, which they believe is theirs.
On January 17, in a letter attached to the previous submission from the Gitanyow hereditary chiefs, addressed to the president, they said among other things:
"We are requesting your assurance by return letter that AIP will not encompass any territory or resources on the Nass watershed upstream of the mouth Kinskuch river.
Senator, again, if you could hold it up. The Kinskuch River is in fact the northern boundary of Nisga'a lands. As a result of this letter in which the Gitanyow said to the Nisga'a, "We want your assurance that you will not go upstream of the mouth of the Kinskuch River," the Nisga'a decided, "Okay, let us make a decision and avoid the problem." Indeed, the northern boundary of Nisga'a land was defined as the mouth of the Kinskuch River. That is not to say that this was complete acquiescence to the request, because when the president wrote back in a letter dated January 29, 1996, the president advised the Gitanyow chiefs that indeed Nisga'a land, which is that portion of their traditional territory which shall be wholly owned by the Nisga'a nation will not be located north of the Kinskuch River nor upstream on the Nass River about the mouth of the Kinskuch.
Reference was made earlier today by Senator Lawson that suggested there was a massive grant of land in the disputed territory. It did not happen. In fact, as the president pointed out in his January 29 letter, there would be some non-exclusive rights of hunting and fishing upstream, and there would be a number of small, fee simple sites. That is what the president assured them of. I do not suggest they acquiesced in it. The Nisga'a at least accommodated the Kinskuch as the border beyond which there would be no Nisga'a land, and that is the case today.
I will not address the proposed amendments that the Gitanyow chiefs put before you unless there is some serious consideration to be given to them or you wish to hear from us and ask a question.
(take 1640 follows, Mr. Aldridge continuing: The second part of the supplementary submission simply refers to the numbers on the Nisga'a support for the treaty.)
(Following Take 1630, Mr. Aldridge...serious consideration to be given to them or you wish to hear from us and ask a question. TAKE 1640 begins here, Mr. Aldridge continues)
The second part of the supplementary submission simply refers to the numbers on the Nisga'a support for the treaty. Senators should have received this press release, which provides a detailed breakdown on it. You will see for yourself when the statistics are in.
The next section of the supplementary submission deals with the topic of citizenship and minority rights. I do not want to repeat arguments made previously. This has gone around a great deal. I do not know if this next point has been made clear, so we feel that it is incumbent upon us to bring it to your attention. Parliament has already recognized use of the word "citizen" to refer to someone who belongs to a First Nation. This is not one the things on which the Nisga'a are first.
The Yukon First Nations Self-Government Act, as passed by Parliament, including the Senate, provides that:
"citizen", in relation to a first nation, means a citizen as determined in accordance with the constitution of the first nation.
Section 8 of that act requires simply that a Yukon first nations constitution provide for a citizenship code that includes the requirements for citizenship in the First Nation and the procedures for determining whether a person is a citizen. That code must entitle all persons enrolled to become citizens of the First Nation. The Yukon act does not require First Nations to grant citizenship to other individuals, regardless of residency or whether those individuals are affected by Yukon First Nations laws. Indeed, the citizenship provisions of the Nisga'a treaty are virtually identical to these provisions which Parliament has already enacted and which are in force today. We thought it was very important that senators understand that.
As others have said - and, this is found on page 7 of the supplemental submission -- the starting point must be to understand that the primary function of Nisga'a government is to make decisions about Nisga'a peoples' shared assets. The land, the trees, the fish and the wildlife are owned collectively by a group. The primary function of the government is to deal with their own stuff. The point that the Nisga'a simply make -- and, this has been made by others -- is: Why would someone who has no share in those assets and someone who does not participate in the language and culture but merely comes to live there to work as a police officer or nurse, or whatever, for a period of time, have a say on how those assets are distributed or managed or protected or used or sold?
We attempted to list the things that we say address minority rights. It would not be correct to suggest that the Nisga'a treaty does not address minorities rights, it does. Whether it addresses them adequately, however, is something for each of you to consider and, ultimately, for whomever to consider. It addresses them first and foremost in the same way as they are addressed to every other government in this country, and that is through the application of the Charter of Rights.
Forgive me if I do not voluntarily go into the argument about sections 25, 35 and 9 and their application. You have heard it enough. I have been over it a million times. All I can say is: It applies. If anyone suggests that the Charter does not apply, then I challenge anyone to come up with a clearer way in which it can be made to apply. Some have suggested that, because of section 33 of the Charter itself, which refers to the House of Commons and legislative assemblies, the Charter prohibits it from applying to other governments. With the greatest of respect, it does no such thing. The Charter applies.
The other limitations are set out in my brief. I will not repeat them, but I would like to draw your attention to the following, namely, that the fact that non-Nisga'a do not have the right to demand Nisga'a citizenship had a consequence at the negotiating table. The consequence was the restricting of Nisga'a jurisdiction to Nisga'a citizens and Nisga'a lands in almost all cases. Where there are significant facts -- and, they are unavoidable -- means of participation are provided for.
If the parties had gone the other way and said that every resident has the right to Nisga'a citizenship even they though no ownership exists, Nisga'a jurisdiction would have been broader. That is to say, either we would have negotiated a broader set or we would not have been driven by government negotiators to narrow the jurisdiction as much as we did.
Everyone agrees with the fundamental principles of democracy. No one is trying to oppress minorities. We wrestled through what meant sense to the three parties, after difficult negotiations. The governments negotiated the provisions that are there on behalf of their constituents; the Nisga'a agreed. It would be wrong to reopen the negotiations at this stage.
There is a page in my brief which deals with fishery issues. I will not read it, but it responds to Mr. Eidsvik's presentation. I hope it is clear that conservation is paramount here. The authority of the minister remains in place. We have given you the page, chapter and verse that applies. You should also be aware of a document that was tabled some time ago. It was a memorandum from me to the chairman, addressing the narrow technical legal issue of Magna Carta application.
The Chairman: That has been circulated to the members of the committee and we have it as an exhibit.
Mr. Aldridge: I now wish to comment on the big subjects of Nisga'a government. We have a few comments about Mr. Estey's presentation this morning.
Concerning the Nisga'a government, we were here at the beginning and we made a number of points. We have read through the transcripts of what various people have said and, with the greatest of respect to all, we think there is still conceptual confusion about some very important concepts. Professors Ryder and McNeil also made these points last night.
It has been often said around this table that our problem is that the power is not delegated. If it was delegated, we would love that. However, it has constitutional protection. That set up is in opposition. I implore you keep the concepts separate. Delegation versus inherence is about the source of the authority, not about the protection of the authority.
An honourable senator said at one point that we decided not to give you the inherent right. With all due respect, I gasped when I heard that. Listen to the language. That is what the word "inherent" means. It means it cannot be given because it inheres. The point is simply this: Why is it that some people are so troubled by the concept that First Nations have a right to govern themselves that arises from their original occupation of this soil as organized society since time immemorial? Why is there an obsession which says that if it does not come from the Crown, it does not the exist? Why would anyone say to a First Nation that before a treaty, either they never had the inherent right to govern themselves; or they did have it and it was extinguished; or the price they must pay to enter into a treaty is to come before you and say, "Whatever we have had has been extinguished and in future all our authority comes from the Crown." Why should that be the price of entering into a treaty? With respect, the source of the authority is not really the important question. What is important is what senators have said is the other side, namely, constitutional protection. It is not whether it is delegated or inherent. It is whether it is constitutionally protected. That seems to be the issue.
You heard from witnesses last night and this morning who seemed to think that constitutional protection of a right in a treaty to govern oneself shakes the fundamental foundations of Canada's constitutional structure. What is the assumption that is implicit in that? Is it that a fundamental aspect of Canadian constitutional structure is ultimately non-native governments running Indians' lives? That has been the case up to now as a matter of fact but not as a matter of law.
(TAKE 1650 follows: Mr. Aldridge continues: You need to understand that the issue of whether or not...)
(Mr. Aldridge: continuing.)
You need to understand that the issue of whether or not the self-government provisions would be constitutionally protected was specifically negotiated on the table. It was not something that came about by happenstance. We did not stumble or blunder our way into it. It was not done without a great deal of consideration and thought, not only by those of us who were federal and provincial Nisga'a negotiators, but the batteries of Department of Justice lawyers, Attorney General department lawyers, whatever additional assistance they got and we got. This was looked at very carefully and compromises were made to achieve it.
No one should think that it is possible now to deny constitutional protection without rejecting the treaty in its entirety. It cannot be done.
Senators are also, by the discussion that has gone on, perhaps being led to believe or perhaps mistakenly believe of their own information there has never been constitutionally protected self-government before. We are the first. We tried to indicate in our previous submission it is not a huge leap, it is an evolutionary step.
The court has ruled in a case I am referring to on page 12 about a band operating under the Cree-Naskapi Act, a statute enacted pursuant to the James Bay and Northern Quebec Agreement. The court said:
"That being the case, it seems that the federal Parliament cannot adopt laws encroaching upon the rights conferred upon the Crees and the Naskapis under the Cree-Naskapi (of Quebec) Act, without violating the Constitution. Such laws would be inoperative as they would be inconsistent with the rights guaranteed the Natives by s.35(3) of the Constitution Act, 1982 (s.52). Any change to the Natives' existing rights would be legal only if brought about by a constitutional amendment."
That decision, a Provincial Court decision, was referred to with approval in Tawich Development Corporation, in which the Court of Quebec Civil Chamber referred to the earlier case and relied upon it in finding that a band exercising powers under the Cree-Naskapi Act is not a municipality. The court said:
"Contrary to municipalities, the Band does not exercise delegated, subordinate powers. It derives its powers from a treaty, i.e. the Agreement."
The James Bay and Northern Quebec Agreement was negotiated and agreed to back in the 1970s. What is the suggestion that this has never happened before? People have said many times, and I am sorry the Deputy Chairman is not here, what about the Yukon? What happened in the Yukon? It is good enough for them.
Senators are perhaps not aware that the Yukon umbrella final agreement, and hence all the individual final agreements, includes this provision that starts on the bottom of page 12, 5.5.0. I have taken the liberty of reproducing it in its entirety.
This section that you see on page 12-13 is not from a self-government agreement. It is not from the Yukon self-government agreement. It is from the land claims agreement.
It says:
"...each Yukon First Nation...may exercise the following powers of management in relation to its Settlement Land:
5.5.1.1 To enact by-laws for the use of and occupation of its Settlement Land".
That is a very broad power.
"...to develop and administer land management programs related to its Settlement Land".
A very broad power.
Further, to charge rent or other fees, and establish a system to record its interests.
Since subsection 33(3) of the Constitution applies to the Yukon First Nation Final Agreements, these law-making authorities today have constitutional protection.
The point we are making is that the Nisga'a treaty should not be seen as a completely new initiative. It is the next logical step. The important difference between this and the previous agreements is the extent. All the self-government provisions are in the land claims agreement with the Nisga'a.
I have sat here and listened to some people suggest, but back in 1982 and 1983 it never occurred to anyone that protecting land claims agreements meant we would give constitutional protection to self-government agreements. It is astonishing for those of us who have been around as long as some of us have.
I had the privilege to attend my first meeting in front of a Senate committee in 1983 with the delegation of the Nisga'a Tribal Council. That was on September 22. We attended before the Standing Senate Committee on Legal and Constitutional Affairs, which was considering the motion to amend the Constitution to include section 35(3).
During that testimony, the Nisga'a delegation, and I was privileged to be with them as counsel then as now, was testifying about what would happen. After describing the purpose of the Nisga'a land claims agreement, that was even then under negotiation, as a process to define the way in which Nisga'a aboriginal rights would be recognized in the future, the Nisga'a made it clear that self-government was one of those rights and that they would negotiate an appropriate governmental structure and relationship with the rest of the Canada.
Of course, the amendment was made, and we respectfully urge that our treaty does what we said it was intended to do.
We were not the only ones to give that testimony to the Senate at that time. It was clearly understood that part of land claims agreements would be working out constitutional protection.
That leaves us here. When people, whether it was the witnesses last night or today, or senators, have said we are here in favour of all of this if only self-government did not have constitutional protection, what they are really saying is that they want federal and provincial governments to be able to infringe the Nisga'a right, in a way that is not in pursuit of a valid legislative objective and is not justifiable in accordance with the honour of the Crown.
In other words, they wish to be able to infringe Nisga'a rights whenever governments decide to do so, without any requirement that they do so in accordance with the constitutional standards set out in Sparrow. Why would the Nisga'a or anyone else ever agree to that?
The Nisga'a believe, and it is a view shared by virtually every aboriginal group in the country, the Royal Commission, all the legal academics that you heard, that the inherent right of self-government is already in section 35(1).
People might disagree with that view, but if you take it that it is a view held universally by First Nations, with academic and judicial support, why would they ever enter into an agreement in which they would give up that constitutional protection as the price of an agreement?
Senator Beaudoin is not here and I was prepared to have a paramountcy discussion with him.
It comes to the same point. I will simply say this: The notion that paramountcy amounts to an abdication, cession, transfer or reduction in section 91 and 92 powers is wrong. Section 91 and 92 remain intact. The treaty says it does not alter the Constitution of Canada. Are there limitations on the exercise of section 91 and 92 powers by virtue of the treaty?
Of course, there are. There are limitations on the section 91 and 92 powers by the fishing provisions, by the land provisions, by the wildlife provisions.
Your power has not been absolute since 1982. There are constitutional limitations on your authority.
However, the courts have said section 35 is not absolute. It is not like section 91 and 29. Therefore, if governments within their valid areas of jurisdiction feel the need for disallowance, feel the need to say, "We know we agreed, Nisga'a, that your laws would prevail but we have changed our mind", pass the legislation. Say "Notwithstanding the Nisga'a Treaty, federal law prevails in this instance."
That is a breach of the treaty. But a breach of the treaty does not mean it is ultra vires like section 91 and 92. A breach of the treaty means the Crown must show that it is acting in pursuit of a valid legislative objective in a manner consistent with the honour of the Crown and it is justified. That is all.
When everyone says, "Today's Nisga'a leadership, wonderful folks, no worry about you, but we do not know about the rogues who might come in the future", the Nisga'a say, "We are getting to like you senators and the House of Commons pretty well, but we do not know about the rogues who will come in the future, too." The Nisga'a say, "Well, if the rogues appear and do something really wonky, abuse minority rights, attempt to do something so bad that the Crown needs the disallowance power -- it is an analogy but a useful one -- then act. If it is justified, it will be upheld. There is no cession, abdication or transfer.
In light of that, what are we to make of the comments made by former Justice Estey and Mr. Weston?
(Take 1700 follows -- Mr. Aldridge continues: The theme of the last two days....
MA March 23, 2000 36165 Aboriginal
(tk 1650 ends--Aldridge cont---on behalf of Mr. Mel Smith.)
The theme of the last two days seemed to be, "The treaty is pretty good but you should not let it come into force for…" whatever reason was on the agenda of the particular witness who was speaking.
What are we to make of the suggestion, at page 17, that the implementation of the Nisga'a treaty should be delayed until the Supreme Court of Canada has ruled? That is a period of three years according to Mr. Smith and five years according to Mr. Estey.
Five years would have the effect of a hoist, pending the outcome of the lawsuit commenced, ironically, by the provincial Leader of the Opposition Gordon Campbell and his colleagues. The Nisga'a disagree profoundly with this suggestion. With the greatest of respect, it is somewhat distressing that Mr. Estey would make this suggestion at this late date, more than four years after the publication of the agreement in principle, more than two years after the final agreement, and as the last stage of parliamentary consideration is about to conclude.
This is not a new suggestion. There was nothing novel about it. The Senate should be aware that the court has already ruled on the effort by Gordon Campbell and his colleagues to have the court determine the validity of the treaty prior to its enactment. The court ruled that the litigation should not proceed until the settlement legislation has passed.
Echoing some of the comments made by Senators Grafstein and Beaudoin earlier today, I refer you to Mr. Justice Williamson's decision of February 1999:
Under our system of government, it is essential that the courts respect the right of Parliament and of the legislative assemblies to exercise unfettered freedom in the formulation, tabling, amendment, and passage of legislation. This obligation is no less than that of the duty of the legislative and executive branches to respect and defend the independence of the judiciary. These are matters fundamental to our democratic beliefs, our history and our constitution. They should not be impinged upon lightly, if at all.
The result is that the legislative branch must be given free reign to introduce bills and to explore in debate the ramifications of proposed legislation. Legislatures are, nonetheless, bound by the rule of law. Should they pass legislation which the courts subsequently find to be unconstitutional, they are bound to respect such a ruling.
The plaintiffs did not appeal that decision. With respect, you should not -- as Senator Grafstein pointed out earlier today -- abdicate your decision to a court saying, "We are all right; you decide." You should not do through the back door something the courts have already rejected.
The Reform Party tried the same or a similar thing last spring. The majority of members of Parliament rejected it.
Senators should also know that, under paragraph 19 of general provisions, it is provided that if, despite the view of the three parties, a court determines any provision of the treaty to be invalid, the parties will make best efforts to remedy the provision, but the important point is the provision is severable from the treaty to the extent of its invalidity or non-enforceability. The remedy of invalidity is not to set aside or suspend the whole treaty. You sever that which needs to be severed and carry on. Why would we need to wait for five years to have any of the treaty, if the remedy in the case of a lack of success is as I have said?
With the greatest of respect, I address the reasons advanced by Mr. Estey, and all we had before today was the news release, as reflected in his submission as well. With the greatest of respect to someone of his stature and seniority, it is appears to us that his arguments evince a lack of accurate understanding of the treaty and of the nature of the constitutional protection afforded by section 35 of the Constitution Act as that section has been interpreted in the last 10 years.
The committee should note that while Mr. Estey, we understand, met with the so-called CANFREE organization, a group apparently organized to oppose the Nisga'a treaty, he at no time made any effort to contact the Nisga'a Tribal Council to discuss his concerns or to hear our sides of the issues. If he was appearing as counsel for CANFREE, why should he meet with them? However, I was left unclear as to his status as counsel. I did not meet with the other side either, but if he had heard our side, we would have explained that the Nisga'a treaty can in no way be construed as creating, in his words, an "independent state."
I say with respect that his use of that phrase in his submission -- creating an independent state -- is so over the top as to make one wonder whether any regard was paid to the clear contents of the treaty and so on. These matters have all been discussed.
When Mr. Estey appeared before you this morning -- and I believe when Mr. Weston spoke on behalf of Mr. Smith last night -- the constitutional orthodoxy, if I can use that term, was advanced as follows: All legislative jurisdiction is exhaustively distributed between the federal and provincial governments under sections 91 and 29; nothing is left over; sorry, First Nations, but when the fathers of Confederation got together in 1867, all the powers got split in half; we were not thinking about you; there is none left over; how about a delegated power?
That is the constitutional orthodoxy. It is wrong, with respect. The British Columbia Court of Appeal actually ruled just that in Delgamuukw. The Supreme Court of Canada set that decision aside. The Supreme Court of Canada did not make a final decision. As Professors Ryder and McNeil pointed out last night, you cannot deal with the right of self-government in excessively broad terms. That means you cannot prove it but you cannot deny it either.
They set the Court of Appeal decision aside. The Court of Appeal ruled -- I repeat for emphasis -- exactly what Mr. Estey said and the Supreme Court of Canada set it aside and said to go back to trial and start again. The professors last night told you the challenge which is then presented to First Nations, having to prove each power one at a time.
The Campbell case is scheduled to commence on May 15, 2000, a little over six weeks from now. The process of exchanging documents between the parties has already commenced. Mr. Justice Williamson said he would hear this case as soon as possible after the bill is in force or proclaimed.
That hearing is going ahead on May 15. We do not need to suspend anything or wait. These arguments will all be made, and perhaps others, in front of the Supreme Court of British Columbia, starting a month and half from now if the bill has been passed. The courts will hear the arguments and make decisions. In the meantime, it would be completely unjustifiable to impose financial and other costs of another five years' delay on the Nisga'a people.
It is a little ironic that, after all the courts have said over the last umpteen years -- "Negotiate; do not litigate. These problems are not appropriate for judicial resolution. Go and negotiate" -- the Nisga'a did.
The Nisga'a have been at it since 1976. They have played by the rules of the game as the rules were dictated to them.
Now, on the last couple of days of Senate consideration, the Senate is asked to consider, and the Nisga'a hear from all these learned people, this comment: Well, that is good, Nisga'a, that you negotiated, but, before you get to reap the fruits of your negotiation, you must go and litigate. You must wait until you have litigated.
If those are the rules of the game, which is to spend 20 years negotiating and be required to go to court before the treaty can be implemented, why would anyone bother?
Senator Grafstein: I cannot match the eloquence of Mr. Gosnell so I will not try. I must say that I will take a fresh look at the positions I have tried to enunciate here. I will take the weekend to do that.
In that sense, as the Senate is a chamber of sober second thought, I give myself an opportunity for sober second thought. In that sense, I wish to assure him that this has been, for me, a very intriguing and interesting and informative hearing. I came to this as an orthodox person. I am not sure I am about to change my orthodox stripes, but, having said that, I will certainly give it due consideration.
I have one question. The witnesses have answered, as best they can, my fundamental issues and I then must wrestle with those.
Would you please read for me section 35 of the Constitution of Canada?
(tk 1710 follows--Mr. Aldridge should be quoting: Mr. Aldridge: The existing aboriginal and treaty rights)
36156/Aboriginal/March 23, 2000/DM
Mr. Aldridge: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. In this act, the aboriginal peoples of Canada include the Indian, Inuit, and Métis peoples of Canada. For greater certainty, in section 1, treaty rights includes rights that exist by way of land claims agreements or which may be so acquired.
Senator Grafstein: Thereon hangs the tail. I do not want to suggest to you that these submissions were not made to Parliament or the aboriginal submissions took the strong position that is outlined here. I will go back to Hansard and the debates, because for me it is a crucial issue. Those words were carefully parsed, as I recall, and the question of self-government could have been included in that for greater clarity. Again, it is all for speculation, but I think that the review of Hansard will show this.
This is a supposition that I may have made, perhaps wrongfully: Had the words "self-government" been included in that for greater clarity, it would not have carried. I leave that not as a conclusion but as a thought, and hence, the problem that we have with how far land claims have evolved from land claims to constitutionally protected self-governance, which is the issue with which we have been wrestling.
Again, there is the problem with subsequent interpretation and the living tree doctrine of the Constitution. Things evolve. Things change. You have been fair to say there has been evolution here, as did Professor Ryder and the other gentlemen yesterday.
We must, quite frankly, measure the Constitution through two distinct prisms. One prism is the circumstances of today. They cannot put us into a straightjacket, because that would not be effective. We must bring practical things to bear. Also, we must look at the intent at the time, and we must be fair to that.
Your submissions were correct, but had those words be parsed differently, as I say, I would have concluded that that would have not carried. The proposition that was put forward was to allow land claims to evolve in a constitutionally protected way which in no way diminished the inherent rights argument. I leave that as not a conclusion but as another view.
I wish to say in conclusion that I feel that your brief, the previous brief by the provincial government, has been immaculate in its conception, hopefully immaculate in its persuasion, but I am not about to yet take that second, second, second sober thought until I have a drink to help me through the week.
The Chairman: I wish to supplement, if you like, I hope helpfully, what Senator Grafstein was saying, though I am convinced absolutely that there is an inherent right of self-government within the definition. For greater certainty, in the famous Charlottetown Accord, the government of the day including, Mr. Mulroney's government, sought the Constitution to be be amended to recognize that the aboriginal peoples of Canada have the inherent right of self-government within Canada and that right be placed in a new section of the Constitution Act, 1982, section 35.1(1). If you are a political scientist and also a lawyer, your growing tree doctrine would be well served by that political consensus. It was referred, of course, to the people, but who knows on what basis the people defeated it.
Senator Grafstein: You beg the question of what was the will of Parliament and the public at that time.
The Chairman: The will of Parliament and the legislatures of Canada was clear, but the question was referred to the public at large and, as lawyers might say, went off on another issue.
Senator Andreychuk: The professors argued that it was there in 1982.
Mr. Aldridge: I was going to refrain, but in fairness to the professor, but more importantly in historical fairness to the aboriginal organizations of this country: Everyone has been talking about their qualifications, so forgive me. I was at every single first minister's conference during the 1980s. I was at virtually every preparatory conference for those meetings with officials and politicians with the Nisga'a, and for some time with the Council of Yukon Indians as well. On every occasion that the subject of an amendment to explicitly entrenched self-government was put forward by any of the organizations, it was always done knowing that some day history would come back and say, "Well, you must have thought you didn't have it or you wouldn't have been proposing it." People were alive to this. On every occasion, they said, "We wish to make it clear. It is there already, but we know that there will be people with the opinion that it is not there. We know there are people who disagree about that. We think it is there, but in order to be sure we want it to be made express." It was always done under reserve that it is already there.
Last night, the conversation went a little sideways, with respect, about whether or not RCAP recommended that the amendment was necessary. I thought there were cross-purposes there. My recollection of RCAP is that they said the inherent right is already protected in section 35.1, but, to put the matter beyond doubt, there should be an explicit amendment to that effect. Unless I am very much mistaken, that was precisely the view of the Beaudoin-Dobbie committee in 1992.
It is not fair to aboriginal people or to the history of the debate to suggest that by asking for the express reference to the right of self-government they were somehow conceding that it was not already there.
Senator Andreychuk: In fairness to me, that was not the argument I was making. You were making a rebuttal to something I did not say.
Mr. Aldridge: I apologize.
Senator Andreychuk: The words speak for themselves in 1982 and 1983. We were referring to words of the Charlottetown Accord. I was referring back to the professor. I think it is a needless debate, however, at this late hour. You are attempting to put forward when you believed were the negotiations leading up to 1982. I think the point that Senator Grafstein made was the correct one. In interpretation, you look back to the words at the time, and then you look beyond that to the attempt. That is for us to reflect on the evidence, not to resolve here, because otherwise we would have to call all the witnesses who were there in 1982, to be fair.
The Chairman: I was one of those, and I have already stated my conclusion. I served on the joint Senate-House committee on the Constitution for six months. I will decline your non-invitation to dance.
Senator Pearson: I have followed this debate with enormous interest, and I have not asked many questions. There seems to be plenty of others who have plenty of questions to ask.
I want to express my appreciation for your patience. Generally speaking, I, like the chair, have no reservation whatsoever on the issue of inherent self-government. It is something in which I believe very strongly.
I appreciate what you have done in your table here, giving us the jurisdiction in a nice neat way, partly because I felt that much of the discussion has become so abstract. They started talking about all these areas of jurisdiction, and somehow you had all the powers in the world. In fact, when you look at them, you are looking at very straightforward powers that relate entirely to the management of your Nisga'a community.
(1720 follows -- Senator Pearson continuing -- I do not have a problem with any of that.)
(Senator Pearson: continuing.)
I do not have a problem with any of that. You have done an admirable job of combining federal-provincial and your own jurisdiction.
Mr. Aldridge: We had asked the table for senators' reference. I did not refer to it. We wanted to spare any unnecessary parsing. We have broken down the list of powers with the appropriate paramountcy rule to the best of our ability.
Senator DeWare: I was in provincial politics in the 1980s with the New Brunswick government. At that time all the premiers in Canada agreed with the prime minister to attend the Meech Lake meetings. Our premier at the time was Richard Hatfield who was very interested in constitutional matters.
Our premier was convinced at the time that Meech Lake was the right way to go. Unfortunately, they got off the track over three years.
We asked our premiers at the time about the aboriginal people. Aboriginal people were not included in Meech, as you know. Our premier told us explicitly that he had been told that if we get Meech then we can sit down and negotiate with our aboriginal people.
Do you feel that if Meech had been ratified that this negotiation would have been finished before now?
Mr. Aldridge: Remember that the reason that Meech did not go through was because it failed to include concerns of aboriginal people and Mr. Harper in Manitoba, of course, was the one who ultimately withheld his consent.
Part of the frustration was, as you will recall, there had been by that point four first ministers conferences dedicated to aboriginal rights which, since the first one had not resulted in a single amendment, and then look what happens, get together to discuss everyone else's concerns and right away you have an accord.
One of the concerns at the time was why is it that it takes us four without getting anywhere and everyone else's concerns get dealt with immediately? If things had evolved differently and Meech had gone through? I do not know.
Senator DeWare: It is almost 20 years ago.
The Chairman: Senators and witnesses, let me pitch a commercial for the Senate. I would like to make everyone aware that this Senate committee was in session from 9:00 in the morning until 5:30 without a break. We were all awake listening to all witnesses including your summing up. We thank you very much. .
Mr. Gosnell: Thank you, Mr. Chairman. Honourable senators, today I think we stand on the brink of a new threshold, something totally new for the Nisga'a nation. I ask you, as the members of this committee, to walk with us, to join us. I ask all members of the Senate to join us in this new journey of reconciliation. Thank you Mr. Chairman.
The Chairman: Thank you very much, Dr. Gosnell. With great pleasure, I adjourn this committee.
The committee adjourned.
THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, to give effect to the Nisga'a Final Agreement, met this day at 5:45 p.m. to give consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: Honourable senators, we are resuming consideration of Bill C-9. We had as a witness yesterday before us Mary Dalen, and while she presented her brief, she did not have an opportunity to be questioned by senators. If I could ask Ms Dalen to take a seat at the witness table, we will continue.
I will ask Senator St. Germain to ask the first question.
Senator St. Germain: Ms Dalen, I apologize on behalf of the committee that we have had to ask you to stay on because we did run out of time yesterday at the hearings. We have received your presentation to the committee, and I would like to thank you again for having travelled this far to make this presentation.
One thing that you brought up was the question of your family trap lines. How is this agreement going to impact the ability to utilize these trap lines, if it is going to at all? Can you explain that to the committee?
Ms Mary Dalen: I will present to you a map. My father has a letter dated 1947 and it says that the trap lines were handed down to them from generation to generation and that meant that it was long before the missionaries or the Indian agents arrived. It looks very small.
Senator St. Germain: Is it this shaded area in green?
Ms Dalen: Yes.
Senator St. Germain: It is that area that part of your trap line is in?
Ms Dalen: Yes, it is not only a trap line. It is used for sustenance purposes -- hunting grounds and basic food sources.
Senator St. Germain: That small area, it is small on the map, is one of the areas of overlap that concerns you and the aboriginal people that live in Cedarville, I gather?
Ms Dalen: Yes, and the surrounding neighbourhood.
Senator St. Germain: Mr. Chairman, I do not know how many questioners there are for Ms Dalen. I will only pose one more question. My question is with respect to accountability.
You spoke in your delivery yesterday of accountability in regards to the administration of bands. Your people have basically been off reserve for a number of years.
Ms Dalen: All our lives.
Senator St. Germain: Is your concern for other people mainly? Is this why you brought up the question of band leadership possibly not being accountable to the rank and file or the members of the band?
Ms Dalen: That is part of it. All my life, I have lived in Cedarville, and my grandparents and parents lived off reserve. They leased their land and this is how it went. They agreed to have Robert Tomlinson, senior take all the lands on both sides of the river, and then they cleared the land. This land I am pointing to on the map was not unoccupied before. It was occupied by my father's people -- my father's paternal ancestors. My father's family was there already.
Senator St. Germain: And Mr. Tomlinson was the minister.
Ms Dalen: He was the Anglican Church minister. This is the way they set it up to avoid living on reserve.
Senator St. Germain: To avoid living on reserve?
Ms Dalen: Yes.
Senator St. Germain: For what reason? Was this the accountability reason, or was it that they just sought out to live off reserve as a different way of life?
Ms Dalen: Robert Tomlinson said was that he did not want the people to be treated the way Indian Affairs was treating people. On the map, this is where my father's family were. The people that were left lived here. They had 16 houses of assembly and the black measles wiped them out. The people that were left lived on the island here. Robert Tomlinson and my grandfather came down, and they cleared all this land here, sectioned them off, five acres each across the river. Indian Affairs was always around them. They had their own band. I have been working on this since 1979 trying to get somewhere with Indian Affairs. That band had numbers, and they seem to be in denial today that there ever was such a band.
Senator St. Germain: Are these the people they declared all deceased?
Ms Dalen: They thought we were all dead. The band office that I belong to now were the ones who declared us all deceased, because of my father's trap lines. The trap lines are on the Seven Sisters Mountains. I will show you. This is on the Seven Sisters Mountains.
Senator St. Germain: Are the Seven Sisters Mountains in this area here?
Ms Dalen: No, that is the North side.
The Chairman: Shall we include the maps as part of the evidence?
Senator St. Germain: Yes, especially the overlap situation. I think we have a copy of the maps that were tabled yesterday as part of the proceedings.
The Chairman: Fine. I notice in one of the maps that you submitted to us, your land, if I understand it correctly, is on both sides of the Skeena River. Is that a correct understanding?
Ms Dalen: Yes. There was two families --one was my grandfather and another who married into my father's family. There were two families because my father's uncle liked my father's name, so he took the name. There were two huge families with the same name. They had Indian names before that. I am registered on my father's trap lines that I was talking about yesterday, which we finally got back last year.
The Chairman: Are you status under the Indian Act?
Ms Dalen: Yes.
The Chairman: And what is the tribal community that you belong to?
Ms Dalen: I belong to my father's village band, the Gitanyow band.
The Chairman: And they are?
Ms Dalen: Gitxsan people.
The Chairman: I would like to ask the same question that Senator St. Germain asked in order that we can understand clearly.
(Take 1800 Follows -- The Chairman continuing: You came to talk to us...) 36161/Aboriginal/March 22, 2000/DM
(The Chairman continuing -- so we can understand clearly.)
You came to talk to us -- I do not want to put words in your mouth -- because your concern about the Nisga'a treaty is what?
Ms Dalen: I am afraid that it will to act as a template for the Indian people, especially individuals like myself. My father acted as an individual. He abided by the laws of Canada and British Columbia, and so did my grandfather.
The Chairman: Could I put this to you, Ms Dalen? Your fear is that if the Gitskan entered into a similar agreement, it would give powers to a tribal council to take rights away from you.
Ms Dalen: From individuals, yes.
The Chairman: Thank you. If there are no other questions, I thank you very much for appearing both yesterday and today and assisting us with your evidence.
Honourable senators, our next witness is Alex MacDonald, Q.C. I might say, as he is coming forward, that by my recollection he served as Attorney General for British Columbia from 1972 to 1975.
Mr. Alex MacDonald: That is when I gave myself my Q.C.
The Chairman: That is not an unprecedented thing for politicians to do. When you are ready, I would ask you to proceed.
Mr. MacDonald: Honourable senators, I come to speak to you about the constitutionality or lack of it of the Nisga'a agreement. I do not want you to think for one minute that I do not believe in negotiations with native bands or that I do not believe in affirmative action programs on the basis of need -- not the legalities, if I may say so, but on the basis of need. As Attorney General, when I had the honour of being in the legislature with Frank Calder, one of the first things we did was to --
Senator Grafstein: Mr. Chairman, I know of Mr. McDonald's background. Would not it be appropriate in the circumstances for him to give us a line or two or three about his background? We know him in several capacities, but I think for the purposes of the record it would be appropriate for all the committee members to have his record. I have not heard or seen him for a long time.
Mr. MacDonald: I am a former member of Parliament, and I served time in the B.C. legislature for 26 years, which is quite a long time to serve. I have been a practising lawyer. I have been in the Supreme Court of Canada many times. I taught children at the University of Simon Fraser for 10 years, among other things, on the Constitution of Canada. I had, incidentally, native children there, native young people, in my classes. I established a law school when I was Attorney General and insisted that there should be native applicants. Some of them did extremely well, and we have had a distinguished judge as a result. I set up, as Attorney General, a native court worker system. I knew all about Frank Calder's case in 1976, and I was pleased with it in the sense that it would bring the problems of native communities to the table. They were being ignored.
Nevertheless, when you have a treaty like this, honourable senators, of 252 pages, and you entrench them in concrete -- I do not think I would have to go further than that. I think you have already heard enough to know what I am talking about. When you make it unchangeable except for a constitutional amendment or agreement, and agreements come at a price, then you have made a grave mistake, and what you have done is in violation of the Constitution.
I know that the agreement says that it is not changing the Constitution. It is. It is allowing a sovereign entity to make laws. They may be minor, or they may be sufficient to send someone to jail on breach of a by-law -- I do not know -- but that is changing the Constitution.
It says that the Charter of Rights shall apply, and if I was speaking more slowly I would read the section about that, but then it says that the Nisga'a government is a free and democratic government. That comes from section 1 of the Charter, and that section therefore is of no effect. That section allows the limitation of rights like freedom from discrimination, but it says it is subject to limits that are justifiable in a free and democratic society. When this agreement says that the government structure is free and democratic, you have eliminated, for all practical purposes, the Charter.
Because I have to push right along, let me give the main reasons. This is the first time this has happened, and it is almost unbelievable. When Parliament makes a treaty by its legislation that gives power to a group of Canadians -- and I do not mind who they are, whether a very deserving group like the Nisga'a people or a Scottish community or anyone else -- and surrenders some of its own power to a group of other Canadians and cannot retrieve that power because it is cast in constitutional stone under section 35, it is making a grave mistake. We can delegate. Had we done this, I would not be here today. Had we given municipal status to the Nisga'a people, they would be the majority, and they would make the by-laws and so forth, and it would be a delegated power. However, to kiss power goodbye is not only a mistake for a Parliament or legislature to commit, but it is unconstitutional. You are part of the Parliament of Canada. You can delegate your law-making powers. That happens all the time. You cannot abandon them.
Some English judge -- perhaps he was an Irishman, but nevertheless, what he said was true -- said Parliament is omnipotent in all except the power to destroy its own omnipotence. You are doing that in this treaty. Once it is passed, the 252 pages are cast in stone. If there are problems with their implementation, there is nothing you can do about it.
If it were a municipal act passed by a provincial government, then you know perfectly well, as experienced people, that in three or four years there would be problems with that act and a committee of the legislature would meet and make amendments to the act. You cannot amend this agreement except by a constitutional amendment. The lawyers will take over, and there will be an infinite number of cases as to how far this applies and how far that applies. It is a meal ticket for the legal profession, and not at McDonald's.
The first point I make is that you cannot abandon your power under the Constitution. You can delegate, but this is an entirely different thing.
I have a written brief in here, and you can read it, but someone asked me about the administration of justice because I was an Attorney General. If you look at page 81 of the treaty, you find that, temporarily, law enforcement officers can go in to enforce the law.
(1810 follows -- Mr. MacDonald continuing -- However, there is a section)
Lp /March 23, 2000
(Mr. MacDonald: continuing.)
However, there is a section on page 185 which establishes the right of the Nisga'a council to have its own police force and, in effect, its own police board, because the appointees to that can only be recommended by the Nisga'a band, as well as a limited court system.
As Attorney General, I was charged with the administration of justice in the entire province. That is mandated in section 92(14). That mandate has now been clipped. The ability of police forces to go in and investigate is severely limited, if it exists at all. The ability to manage police forces is severely limited. If you gave an ethnic community of any kind, not municipal power, but power of this kind, misbehaviour would creep in to city hall one time out of 100, but that is very serious.
In any jurisdiction, when someone who was assaulted believes that the powers that be are not investigating the case properly, or are favouring someone, the Attorney General has the responsibility to correct that. The Attorney General controls police boards. He or she can direct the RCMP to take over investigations in a municipality. In the justice section, the ability of the Attorney General to administer justice in the province has been severely clipped, and that is unconstitutional.
As clearly stated in section 17, I believe it is, of the BNA Act, the Government of Canada consists of the Queen, the House of Commons and the Senate. The provincial legislatures are similarly constituted. Every law that is passed, even innocent by-laws, derive through that, which I call the Royal prerogative. This bill gives a body sovereignty to make some laws itself without the Queen's assent or Parliament's assent, without it being changeable, which is a violation of the Constitution of Canada or the Royal prerogative.
Section 15 of the Charter of Rights and Freedoms says that everyone is equal under the law, and entitled to equal benefits and treatment under the law. Does that apply to this treaty? It certainly applies to the legislation you are now considering. The Charter says "without discrimination". It is inevitable that there is discrimination in this. The most glaring example, but not the only one, is that people ordinarily resident on Nisga'a lands would not have a vote. That is a violation of section 15 of the Charter. That is unequal treatment under the law. In the case of some other native bands, such as West Bank, 1,000 or 1,500 people would be affected. That is a very dangerous precedent to set. A person may be arrested, fined and jailed pursuant to a by-law, yet have no voice in the government that made the by-law. That surely is a violation.
Recently, the Supreme Court of the United States, in a case emanating from Hawaii, said that discrimination under the law in denying a vote in a public body is unconstitutional. That was a seven-to-two decision. I say that this special status offends section 15.
Section 15 goes on to speak of affirmative action programs, with which I totally agree. The native court workers program was affirmative action based on temporary need. You cannot call this treaty affirmative action under section 15(2) of the Charter of Rights.
I will talk for a minute about the law that has been decided by the courts of Canada. The famous Delgamuukw case cast a claim cloud over all the lands of the Province of British Columbia. It was for self-government and for lands. It went to the Supreme Court of Canada, which dealt only with the land claim and referred it back for further litigation. It did not touch on the question of self-government. However, the British Columbia Court of Appeal did. In that case, it ruled very carefully on whether sovereign self-governing powers could be granted to any group or community in Canada. The leading judgment in that case, that of Justice Macfarlane, said that in the Constitution there is no room for a third level of government, which this is. It may be limited, but it is there. There is a section in here which says that when any laws of Parliament or the legislatures are inconsistent with this agreement, the agreement prevails. That is a third level of government, and there is no room for it. That was the decision of the B.C. Court of Appeal, the highest current judicial decision in Canada. No other Court of Appeal has touched this question, including the Supreme Court of Canada, and the Court of Appeal of British Columbia has said that it is unconstitutional.
Forget that we are talking about the very fine people of the Nisga'a band and think of doing this for any other group in Canada. This bills says that everyone shall have rights, but some shall have more rights than others. If you had tried that out on Pierre Elliot Trudeau, how far would you have gone? You would have been laughed off the stage.
I am sorry to say that that is what is happening in this agreement. It provides for special rights that people in other municipalities do not have, and that is unconstitutional. There is no room in the Constitution to allow that.
Another thing in here that I think is rather cheeky is the provision which says that once the treaty is enacted, a door slams shut. It says that the Government of Canada cannot challenge the validity of its terms or support a challenge to the validity of its terms. There can be a change of government in Canada. It is extraordinary to say that the new government could not launch a court reference or support a challenge to a certain aspect of this agreement. This is a trap that will slam shut.
Is strongly suggest to this committee that the Senate should not reject this but that it insist that there be a reference on the constitutionality of the treaty to the Supreme Court of Canada.
(Take 1820 follows -- That fight is going to come anyway.)
36161/Aboriginal/March 22, 2000/DM
(Mr. MacDonald continuing -- to the Supreme Court of Canada.
That fight will come anyway. There are citizens who will launch that case, and it would reach the Supreme Court of Canada perhaps in five or six years. It should not wait that long. The chance to make a reference is now, because once the treaty has been agreed upon, as I say, the trapdoor slams on a reference. That is the logical thing to do. You then carry on with your debate on the merits and the justice and the social justice of what we see before us, but you do it in the light of the opinion of the Supreme Court of Canada. That opinion is coming sooner or later; better sooner. Thank you, Mr. Chairman.
The Chairman: Thank you, Mr. MacDonald.
Senator St. Germain: Thank you, Mr. MacDonald, for attending. For clarification, the government you served and have supported in the past is obviously the same government that is now in power in British Columbia. This is just for clarification so that people know the background of your political past.
Mr. MacDonald: I know, senator, but I am an unreconstructed socialist.
Senator St. Germain: I do not happen to be a law professor or a lawyer or have the experience that you have, but I understand that the agreement clearly states that the Nisga'a people will abide by the Constitution and the Charter of Rights in this country. Yet, you are putting it in question under section 15. The agreement, in my understanding, says this, and yet you are saying something different. I have asked the Nisga'a people about this, and they have clearly stated that the Charter and the Constitution apply to everything that they do. Yet, when you talk about section 15, you would say that it does not apply.
Mr. MacDonald: If you look at page 18, section 9, it says:
The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement.
The exception is if they are justifiable. They have used the same phrase. The Charter is being snookered in this case. "Justifiable in a free and democratic society." It is the same words. They have said that breaches of rights in the Charter by the Nisga'a government are all right because they are acceptable in a free and democratic society, and this is one.
Do not take that -- I should not talk like that. Do not think that the Charter of Rights will apply. If it applies, how could you deny people the right to vote? I know the voting section in the Charter section 3 applies only to provincial, municipal, and federal elections. I know that. However, the equality, the right of Canadians to equal treatment and benefits under the law, is in section 15, and I am sorry to say it is being violated in this case. It does not get violated when you have good programs to help people, particularly in those native communities where the needs are terribly great for land, for cultural protections, and for social advancement.
Senator St. Germain: I thank you for appearing. Thank you for explaining. Do not restrain yourself in any way, shape or form in answering any of the questions. I am sure you will not.
Mr. MacDonald: I am not retained by anyone. I think it might be too late for that.
The Chairman: It is not often we have an unreconstructed socialist before us. We will not ask you your opinions about the Senate.
Senator Chalifoux: Good evening, sir. It is an honour and a pleasure to have you here before us.
Mr. MacDonald: It is my honour.
Senator Chalifoux: I am from Alberta and have been involved with aboriginal issues in Alberta and somewhat across Canada for many years. I would like you to explain to me a little bit about policing. In Alberta, several of the reserves have their very own police force. They have been trained by the RCMP, and they are totally controlled by the band councils. They are working quite well. In one reserve in Hobbema, they have a jail which is totally controlled by the band council, working within the Solicitor General's rules and regulations. It seems to be working very well.
If these are used as examples of possible good, regulated police forces within the organizations and within the aboriginal nations in Alberta, why would it not work with the Nisga'a?
Mr. MacDonald: The Nisga'a should have their own police force. The City of Vancouver has its own police force. However, it is under the general law. In the last resort, when things go wrong -- and they will with any community -- the Attorney General and the government under the Constitution have a duty to correct those wrongs. The Province of Alberta retains that today.
I am not objecting to the separate police force in the slightest. I am just objecting to the lack of oversight and superintendence in the general public interest, including those of some of the people of Nisga'a ancestry and some members who are not.
Senator Chalifoux: I have one more comment about the Nisga'a court. We just had one aboriginal judge appointed in the Tsuu T'ina nation, and there is also one in the Peace River country. They are holding court within the reserves and appear to be doing very well on that. They are able to take and make appeals.
I am reading just a brief on the agreement here, but it indicates that the final decisions by the Nisga'a court may be appealed to the Supreme Court of British Columbia on the same basis as decisions made at the Provincial Court of British Columbia. There are safeguards in this brief. I would like your response on that.
Mr. MacDonald: In terms of court appeals, the safeguard is there. However, if you are trying to protect people through law and order, if you want it put it in that way, the investigations are very important. Will they be done properly? The police forces are very important. They are the ones who initiate charges if they are warranted. The prosecutor is very important. The police board is very important, as it has the superintendence over the police. If there is any misconduct or they are lax about prosecuting a particular person, the police board is there. However, over all is the Attorney General of the province with a responsibility. If things fail, that responsibility is there.
I am not objecting at all to the separate police forces or the courts. That is a very creative thing that Alberta is doing. Certainly you should have native judges. However, the Constitution demands that you have a general, final oversight by the elected representatives of all the people.
Senator Grafstein: Welcome, witness. I found your testimony interesting and stimulating. I was not here the other day when Mr. Doug Sanders from the University of British Columbia gave his evidence, but I have reviewed that evidence and find it distinctly different from yours. I will just point to one or two issues to get your view. Let me read a short paragraph:
1982, then, does represent, I think, something of a watershed, in that we come to terms in constitutional language with the fact of our colonial history and the continued existence of Indian communities within the country who have not assimilated and who are determined to continue as distinct communities within the Canadian society.
(1830 follows - Senator Grafstein continuing --Here is the sentence that is of interest I think: Once we constitutionalized these rights in 1982), the older idea of a simple division of authority between the two levels of government is gone.)
(Take 1830 Begins -- continuing with Senator Grafstein)
Here is a sentence that is of interest, I think:
Once we constitutionalize these rights in 1982, the older idea of a simple division of authority between the two levels of government is gone.
Mr. Sanders goes on to say:
We have also abandoned another fundamental principle in 1982, which is the idea of parliamentary supremacy, that the Constitution simply divided authority between two levels of government. The Charter represented a major change in Canadian constitutional life by creating limitations on the powers of both federal and provincial governments, something totally different from the scheme of the Constitution Act of 1867.
I take it that Professor Sanders is arguing the traditional position -- and I am not characterizing them fairly -- but the argument that you made has been diluted by 1982, in the Constitution.
Could you give us your thoughts about that?
Mr. MacDonald: In 1982, whether it was wise or not to say that future treaties will be constitutional is another question, but no court has said that you must make a treaty. It is there, you can make a treaty. It does become cast in concrete, you can do that, but no court has said you must. As a matter of fact, I believe the former chief justice of the Supreme Court, Antonio Lamer, said that you need not make treaties.
There are other avenues. In British Columbia we have the Sechelt band, where the Government of Canada and the province have united to confer municipal status on a native band. It needs joint legislation. That is fine. It is that extra step. Back in 1986, in attempting to warn my own party, I wrote an article for the Vancouver Sun. It is that final step that is so serious. Do not embed the Nisga'a accord in constitutional controversy.
Senator Grafstein: Much of what you say commends itself to me, but I am trying to put it fairly for myself while I deliberate about this.
What you are saying is that if errant governments -- provincial and federal --decide to proceed by a treaty by agreement, does that agreement not take it out of section 15 in this example and move it to section 25 and 35? Therefore, it may be politically incorrect, it may be politically undesirable, but one legislature and the other side has come to the conclusion that this is what they choose to do. I do not wish to hear the political arguments. We have heard political arguments. I am trying to wrestle my mind around the constitutional basis of what you are saying.
Mr. MacDonald: Do you think that by crafting into a treaty something that is clearly a violation of human rights the legislation that authorized the treaty does not need to conform to the constitution? That is what we are talking about here. We have not reached the treaty stage. That must be constitutional. That is what is being tested here and that is what we tested in court. When it gets to that later stage, you are right.
Senator Grafstein: Let me take it the next step. I have agreed, prior to this evidence being presented, that it seems that the Nisga'a constitution and the treaty is deficit in the fact that non-Nisga'a residents on Nisga'a lands do not have the vote. They do, very clearly, have the right to fully participate in making their views felt and to present their viewpoints. They have a right of strong representation. Their views must be at least considered, if not agreed with. We have been told by the Nisga'a representatives that, in effect, that is almost equal to, if you will, rights under section 15.
Mr. MacDonald: Is that equal protection under the laws?
Senator Grafstein: I am not agreeing or disagreeing, I am saying that is the argument that has been made. I want your thoughts on that.
Mr. MacDonald: The right to be consulted can be very important or it can be nothing, but the right to vote in a democracy is fundamental. I mentioned the example of a by-law that is passed which affects the zoning of your property, or something of that sort, and you have no say. You may disagree with it, but at least you have had your ballot. That is a fundamental democratic right and any infringement of it is an infringement of section 15, which provides for equal treatment under the laws.
Senator Grafstein: Again, you have created another issue for me that we have heard but you put it in a different way, and that is the question of paramountcy of powers. Under the Nisga'a treaty, as I read it, the federal government retains, for instance, powers of labour law and provincial governments retain their power of labour law. The representative of the B.C. Federation of Labour came here and said it is okay with us because federal and provincial laws apply.
Mr. MacDonald: In labour relations, right.
Senator Grafstein: If you take a look at the other powers that are paramount to the Nisga'a council, what powers do you think are deleterious in terms of giving the aboriginals an opportunity to develop their own life-style? What powers are deleterious to the Constitution?
Mr. MacDonald: You are not speaking legally, you are saying what policies might the Nisga'a adopt that were not good policies in terms of social development?
Senator Grafstein: Yes.
Mr. MacDonald: What might they do? Well, the fact that they can make laws that trump federal and provincial laws is the thing to which I object. If the municipal status was granted and they had the right, with a majority of Nisga'a people naturally, to make zoning laws, to make laws about speeding or not speeding on the highways, I would hope they would be good laws and I would thoroughly applaud that. However, the next step that you take to give them sovereign power, that is where the unconstitutionality creeps in.
I give an example -- as you say, it is innocuous -- about adoptions in my written brief. It is a power that now belongs to the Province of British Columbia and now it is being transferred to the Nisga'a. There may be different emphasis here, they are very fine people, but you are setting a precedent when you take the constitutional power of the Province of British Columbia and abandon that to a group of citizens.
It is the unconstitutionality that I am speaking of, not the merits or the demerits of what the Nisga'a people might do.
Senator Grafstein: What then is the difference in your mind between delegation and fettering the federal or the provincial government's discretion? In other words, we can delegate the federal and provincial governments to delegate.
Mr. MacDonald: Yes, and take back.
Senator Grafstein: Here they have delegated with a fetter, and you are saying that the fetter makes it unconstitutional.
Mr. MacDonald: Yes, because when you delegate irretrievably you have abandoned. Your great grandchildren, with all due respect, will have this agreement in front of them, they will be voting for federal MPs, and they will not be able to change a word. That is serious. Who knows how it will work out? That is abandoning. This abandons. If it was delegation like the municipal acts of the province, I would be in favour.
Senator Sibbeston: We are in an era in our country where aboriginal rights are entrenched in the Constitution. We have had our courts, including the Supreme Court of Canada, delineating what these rights are and they have been expanding. The native people, in particular, talk about inherent right to self-government,.
(Take 1840 follows--Sibbeston continuing: I am of the belief that self-government...)
MA March 22, 2000 36161 Aboriginal
(tk 1830 ends-Senator Sibbeston: continuing--inherent right to self-government.)
**I am of the belief that self-government can never be delegated. Do you really understand inherent right to self-government? That is the notion that aboriginal peoples have the same authority, the same government as it were, to govern themselves as they did before non-native people came to the country.
My understanding of the process which we are addressing here is really just giving back to the aboriginal people the rights they held before Canada came into existence. After hearing you, Mr. McDonald, I wonder if you would consider examining your views to see if you are somewhat paternalistic? You speak too much from your own sense of law and order and that you do not give enough credit to the Nisga'a and the other aboriginal peoples of Canada. With the new treaties, they can set up their own self-government institutions and run their own affairs.
By this Nisga'a treaty, you will see aboriginal people basically getting on their feet. We have a bad history in Canada. The status quo does not work. Beads and blankets do not work any more.
Are you surprised that we are now venturing into a whole new era of where native people finally have their rights and can assert themselves to reach an agreement such as this? Are you not hopeful, through this, that eventually native people will get on their feet and be contributing members of Canadian society through this process?
Mr. MacDonald: Since the dawn of history, no occupied land has not been stolen. No culture has not been a blend. You can go to Ireland today, which is Britain's first colony, and you can speak to the people who have been terribly oppressed by the occupation of the British with their religion and their civil rights. The Irish were forced into immigration and poverty. Their lands were stolen.
Would you seriously say that, today, you do not look at the needs of today? In Ireland, if you brought up a question about a land claim, you would be shoved away. They would not hear about it. It has happened all over the world.
I stress again, senator, that I am not opposed to negotiations with native bands nor to working out agreements. I would like to make sure they are based upon need, as I have said, and not on the legalistic particulars of the situation, whatever those may be, but I am not opposed to that. That is a new start in terms of relations with the aboriginal people of Canada, but do not go that further step and freeze it irrevocably in constitutional concrete. It is that further step that is unconstitutional.
The Chairman: Thank you very much, Mr. MacDonald, for the answer.
Senator Sparrow: The constitutional aspect, under the agreement, requires agreement of all three parties for an amendment. That means it is very unlikely it would be changed in any event, but if an agreement was reached to amend, would it still require a constitutional amendment? Would the constitutional amending formula still apply if the parties agreed to a change?
Mr. MacDonald: No. The treaty would be constitutional law. If the treaty said that the three parties can amend section whatever, then they can do so. You can amend by agreement with a price. You give out particular rights and then you go to people and ask them to surrender something, to change something. There is a price for that but it can be done.
Senator Sparrow: If there was no agreement of the three parties and the Canadian people through their governments wanted to change something, does that make it a constitutional amendment then?
Mr. MacDonald: They would have to change the Constitution and change section 35.
Senator Sparrow: Would it be all of section 35 or that section affecting the Nisga'a?
Mr. MacDonald: I refer to the section that says treaty rights are recognized and affirmed as if they were constitutional. They would have to change that in a federal-provincial conference. Amending the Constitution of Canada on a matter of this sort is, for all virtual purposes, impossible. There would be a great outcry.
Senator Sparrow: The Minister of Indian Affairs appeared before both the House of Commons committee and this committee. He stated emphatically that the agreement does not amend or alter the Constitution. He would hardly be able to say that without the advice of his legal advisors.
Mr. MacDonald: I know this was said. It was said in the B.C. legislature that it does not change the Constitution. If you look at page 18, it states that in the event of an inconsistency or conflict between this agreement and any federal or provincial law, then this agreement will prevail to the extent of the inconsistency.
That is a constitutional change. You have never heard of that before. No other democracy -- Australia, the United States -- would ever write such a thing. That disenfranchises future generations. It is inconsistent with the Constitution, whatever they say.
Senator Andreychuk: What if your position is correct in law? We have seen the agreement go through the B.C. legislature and the House of Commons. No doubt the Nisga'a people have traded away some of their benefits as they saw them to make this compromise. It is a shame that there was not a full and fair debate earlier, but we are sitting here in the Senate.
If we were to do something other than pass this piece of legislation at this time, what in your opinion would be the fall-out, particularly into relations over the next 10 years in British Columbia between the aboriginals and non-aboriginals?
Mr. MacDonald: The fall-out either way is something that is very difficult. The expectations by native Canadians are way up in the sky. We have created those expectations. Apparently, 110 per cent of British Columbia so far is under such claims and the expectations are high. I do not suggest that you reject it, but I do say that you get the court opinion first. You can do that just along Wellington Street by a quick reference from Jean Chrétien and his colleagues to the Supreme Court of Canada as a matter of major public importance.
Of course, there will be objections from some of the native communities on that, but you are not denying them the benefits of the agreement, the lands and the other things. Much of that is needed and will be well used.
You are asking if it should be a treaty. If we make it a treaty, will that not be an upset with even greater fall-out and huge legal expenses later on?
Senator Andreychuk: If the Supreme Court reference to which you are alluding confirmed that this piece of legislation is fully constitutional, would that satisfy you and all of your worries?
Mr. MacDonald: Yes. I would have to pack up. I would disagree with them, but it is not the first time I have disagreed with the Supreme Court of Canada. That would be the law of the land. Everyone would have to be satisfied with it.
The Chairman: Thank you, Mr. MacDonald, for your contribution to the evidence before the committee.
It appears that this is constitutional law advice night in the Senate and, tomorrow morning, we will continue in that line. We have some additional witnesses on the constitutional questions that you have addressed. Perhaps you would stay and listen to their evidence.
The next witness was scheduled to be Melvin H. Smith, Q.C., from British Columbia. Mr. Smith has had a long career as a constitutional advisor to various provincial governments in British Columbia, although I hasten to say not to the one who is in office at the moment.
(tk 1850 follows--Chair cont.--Mr. Smith has written to the committee)
(Following Take 1840, The Chairman, in office at the moment. TAKE 1850 begins here, The Chairman continues)
Mr. Smith has written to the committee, dated today, advising that, due to ill health, he is unable to travel to Ottawa. He has asked that we hear his former assistant, John D. Weston, on his behalf. I have no objection, Mr. Weston, to this request. I would ask you to come form and provide us the evidence that Mr. Smith would have provided.
Mr. John Weston Managing Partner of Pan Pacific Law Office: I was not only an assistant to Mr. Smith but also a great admirer of him. You will know more when I explain something about Mr. Smith.
Mr. Melvin H. Smith, Q.C, is well recognized as one of Canada's leading experts on constitutional affairs -- something he addresses from the heart as well as the head. He spent 31 years in the public service of British Columbia. A lawyer by profession, from 1967 through 1987 he was the ranking official on constitutional law for four successive provincial administrations. I should add that one of those was an NDP government. He was a key player in the patriation of the Constitution in 1981. When he left the field in 1987, he was the longest serving official on the subject in Canada.
Until recently, Mr. Smith has been spending time as a consultant, commentator on public issues, writer and university lecturer. Mr. Smith had, up to the last minute, hoped to join you this evening in person. However, he is plagued by a life-threatening cancer and informed me at 7:00 p.m. last night that he was too ill to travel. I was both disappointed that he could not address you himself and honoured to deliver words on his behalf. I said his illness was life-threatening but did not use the word "terminal" for good reason; he was in similar straits two years ago. Buoyed by prayers from a large circle of friends and admirers, he fought back from the brink.
Mr. Smith has demonstrated consistent willingness to stand up against overwhelming odds and challenge the status quo where he felt it has frustrated Canada's development as a nation. One example was his successful but then unpopular fight against vetoes for constitutional change. Some consider him the father of the Vancouver formula which, in our Constitution, allows for change carefully to happen but does not suffocate it.
According to B.C. 's most listened to radio talk show host and a former B.C. minister in charge of constitutional affairs, Mel Smith has made an enormous contribution to Canada, more than any other person he has met. With those words, I find myself in the unlikely position of delivering remarks on behalf of someone who was at one time my boss -- someone who acts without fear or favour and someone who is admired by many. As I proceed, please remember the following words are the remarks of Mr. Smith's and not myself.
Honourable senators, I apologize for my absence this evening. I have spent the better part of my professional and a large part of my personal life working to preserve and protect the Canadian Constitution. I regard these hearings as a historic occasion and would have dearly loved to give my comments in person. Poor health has confined me to home, however, and I therefore asked John Weston to convey to you my thoughts on three issues and then to provide a simple but important suggestion.
First, let me comment on the effect of this treaty overall. I am of the view that if this final agreement is an example of the 50 or more land claim agreements or treaties yet to be negotiated in B.C. then, at the end of the exercise, Canadians will wake up to discover that their federal and provincial governments have substantially altered forever our economic, social and political fabric. We will discover that our governments have greatly diminished Canada's public land and resource base, the greatest source of our wealth. They will have turned over much of their taxing power to native bands and will have paid out billions of dollars in cash compensation. The effect will extend beyond the boundaries of British Columbia, as no native band in the country will be able to resist the temptation at least to consider the reopening of treaty negotiations for other treaties in Canada, none of which provide the entrenched third order of government provided in the Nisga'a Final Agreement. If the agreement passes, we will find that you in the Senate and the other provincial and federal leaders involved will have constitutionally entrenched a native-only commercial fishery and authorized and financed an array of 50 or more ethnic-based governments whose laws supplant federal and provincial laws.
Having just addressed the effect of the treaty overall, I would now like to touch on a specific issue, namely, whether the Charter of Rights will apply to protect the interests of people governed by the Nisga'a Final Agreement. This, Senator Grafstein, touches directly upon your questions. The discussion tends to revolve around the interpretation of two key sections in the Charter and one section in the agreement itself. First, we have paragraph 9 of chapter 2 of the agreement, which states as follows:
The Canadian Charter of Rights and Freedoms applies to Nisga'a government in respect of all matters within its authority, bearing in mind the free and democratic nature of the Nisga'a government as set out in this agreement.
Some people have argued that this clause makes it plain; the Charter applies to all laws to be passed by the Nisga'a legislature. Nothing could be further from the truth. Those words are nothing more or less than window dressing. There is no way, short of amending the Constitution, to dictate how the Constitution will apply to other laws. While this paragraph 9 may have constitutional protection itself, it stops short of expressly amending the Charter of Rights. It is the Constitution itself and the Charter of Rights itself that dictate what laws apply to the Charter.
Another key section is section 32 of the Charter of Rights, which reads as follows:
This Charter applies:
(a) to the Parliament and Government of Canada in respect of all matters within the authority of Parliament; and
(b) to the legislature and Government of each province in respect of all matters within the authority of the legislature of each province.
There, you have it. The Charter applies to the laws of the Government of Canada and the laws of the Province of British Columbia. Are Nisga'a laws in either of those categories? I do not think so. I doubt very much that the Charter applies.
When the issue comes before the court, as it certainly will, a court will look at those few self-serving words in the treaty I have already mentioned and simply say, "We are not bound by that. We are going to look at the Charter. The Charter tells us to what it applies and to what it does not apply." If there is any doubt, look at section 25 of the Charter, which the committee has been examining tonight. It states as follows:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal people of Canada.
On both grounds, the Charter of Rights more than likely does not apply to the laws to be passed by the Nisga'a. Anyone who says it does and points to this is merely giving a salve to those who raise the issue. It is an opiate to tell us that everything is all right.
There are people who persist in saying the Charter of rights will prevail even over Nisga'a laws. Even they must confess we have no certainty -- that is, no kind of court decision that deals with this or an equivalent kind of issue. We must therefore put in place some mechanism to facilitate a speedy review by the courts, a review which predates implementation of the agreement. Only then can we, with certainty, avert the disaster caused by bringing an illegal document into law, a document which, like the Berlin Wall, will have to be pulled apart, brick by brick, through endless litigation.
Before I reach my conclusion and recommendation, I would like to address one more question: Does the treaty attempt to change our Constitution? One way or another, the answer to this question is simple. It is "Yes" or "No". If the answer is "Yes", then a constitutional amendment is required, which can only be done by way of Canada's constitutional amending formula. Constitutions are meant to be basic governing laws that are difficult to amend and are not to be changed, except with great forethought on behalf of the generations of people who will be affected. If the answer is "No", if the treaty is not an attempt to amend the Constitution, then mere passage by the B.C. legislature, the federal Parliament and the Nisga'a tribal council should suffice.
People who say the treaty does not change the Constitution argue, as we have just heard, that section 35 of the Constitution Act of 1982 anticipated treaties with provisions like those before us.
(TAKE 1900 follows, Mr. Weston continuing: Section 35 affirmed then existing aboriginal...)
RC/Aboriginal Peoples 36161/Mar22/00
(Mr. Weston continuing.)
Section 35 affirmed then existing aboriginal and treaty rights and was changed subsequently to include subsequent land claims agreements. Supporters of the agreement have to rely on that section as adequate authority for bringing into law this massive change in the way we govern ourselves. I ask this committee to look back at the debates that accompanied passage of section 35. At that time, did the House of Commons, the Senate or any of the provinces accept the idea that section 35 allowed for a third order of government in our country?
You are aware that many of the powers in the Nisga'a treaty surpass those of the federal and provincial governments. In fact, we will be creating sweeping powers that will be transferred, powers equivalent to the creation of an independent state within the boundaries of Canada. Those laws include the power to make law concerning the rights of citizens to regulate businesses, the power to amend the Nisga'a constitution itself, to appoint judges, to police citizens and to impose taxes.
The list goes on and on. I believe the legislative powers given to the Nisga'a parliament, which is yet to be established, are unconstitutional because they amount to a diminishment of legislative power by both the federal and provincial governments.
You will hear this is nothing more than a form of municipal government. It is much more than that. There is no analogy with the municipal illustration. Provinces can always take back or amend powers delegated to cities, but such a change cannot be done to the provisions in the treaty once it becomes law. This is not a case of merely amending the Indian Act, honourable senators. This is a case of trying to use section 35 as a back door to abdicate powers from our two major levels of government. Such an abdication of power was never contemplated by the framers of section 35 of the Constitution.
The point is that a government can do many things by enacting laws. It can act wisely, and it can act foolishly. It can give away vast tracts of land, or large amounts of money, and the Constitution of our country will not stand in the way. But the Constitution does not allow a legislature to give away forever its rights to legislate. That is precisely what the legislature of B.C. has done and what the Senate is considering to do today.
If this example is followed in 50 other treaties, a great part of B.C. will no longer be under the legislative jurisdiction of the Province of B.C. or Canada. I am not the only one who fears this result. Mr. Smith said that Mr. MacDonald, a very distinguished member of Parliament for many years, and later a member of the B.C. legislature, was the attorney general in the NDP government from 1972 through 1975. He shares my view on the unconstitutional nature of the Nisga'a treaty. We have already heard these words, but I think they are worth repeating. Legislatures cannot abandon forever even one iota of their constitutional powers, says Mr. MacDonald. Never can they do this. Parliaments are omnipotent in all save the power to destroy their own omnipotence. The Nisga'a Final Agreement attempts to destroy the omnipotence of the legislature of the Province of B.C. and the Parliament of Canada.
Would Lucien Bouchard accept the terms of the Nisga'a agreement as the contract between Quebec and Canada? You are probably better able to answer that question than I, honourable senators. Please realize the unprecedented nature of the claim that is being made of senators today. This is the first time in Canadian history that a land claim agreement has ever included self-government. We have 14 self-government agreements in the Yukon, but they are outside the Yukon treaties. They are separate agreements. The reason for that is that the legislatures did not want to constitutionalize the self-government provisions in case some changes had to be made further down the line. What they have done in the Yukon is perfectly constitutional because they have kept the self-government provisions outside the treaty.
If I were before the House of Commons, I would urge you to make many changes to the treaty. Most important, I would ask you to sever from the treaty the self-government provisions in chapter 11 and put them forward as a separate chapter. I realize the Senate may not, practically, be able to contemplate such a serious change to the treaty at this point. I therefore have another suggestion that I will make in my conclusion.
Whatever you decide today, honourable senators, please consider that we are unlikely to act with divine inherency in any bill that we pass, let alone one that, with appendices, covers 700 pages. Legislatures constantly make amendments to their laws, but with the Nisga'a treaty we are simultaneously doing three things which are self-contradictory.
We are attempting to make sweeping changes to the way we govern ourselves. We are making the new regime incredibly difficult to change. We are opening ourselves to the high likelihood of passing an illegal document into law.
I realize I will not have persuaded all of you, or maybe any of you, today that the treaty is unconstitutional, or even unwise. However, I believe you will all agree with me that there is a large degree of doubt about the validity of this bill. Even if the bill were the wisest and most harmonious way to deal with the claims of Nisga'a citizens and needs of other Canadians, we have a problem. None of us wants to see a law of this magnitude come into force only to find out later that it was invalid from the starting point. I therefore recommend that if the Senate passes the bill in spite of its flaws that you require its implementation await the earlier of adjudication by the Supreme Court of Canada or April 1, 2003. This is what Mr. Smith recommended in his conclusion as well.
Everyone recognizes that you have a tough decision to make. It will take courage to make it. Let me relate the account of an uncle of mine who also faced a tough decision, another courageous Smith who may provide a helpful illustration. Some of you may have heard of my uncle, who is one of two surviving Canadians who hold the Victoria Cross, our highest award for courage in battle. According to the book Valiant Men, on October 21, 1944, Earnest Smith, better known as "Smokey", stood in a roadside ditch near a river in Italy. He was with one other man, both members of the Seaforth Highlanders. Their task was to protect the bridgehead from enemy advance. Suddenly, a Mark V tank came lumbering down the road sweeping the area with machine gun fire and wounding Private Smith's colleague. At a range of 30 feet, and exposed to full view of the enemy, Smith fired his antitank gun. The bottom stopped the tanning whose driver was frantically trying to turn the tank around but could not. Immediately, 10 enemy infantrymen tumbled off the back of the tank, charging Smith with machine gun pistols and grenades. Without hesitation, he moved into the centre of the road shot down four with his Tommy gun and dispersed the rest. A second tank opened fire from a safe distance and more grenadiers came closing in on Smith. However, the intrepid Highlander dispersed the second threat just as steadfastly as the first. Replenishing ammunition from his wounded colleague, Smith continued to protect him and the bridgehead with a machine gun until the enemy gave up and withdrew in disorder. Smith and three others doggedly defended the bridgehead position for three days until they were relieved by reinforcements.
Today, honourable senators, we are not asking to you put your life on the line, or even to repel an enemy tank. We do implore to you consider the threat to our Constitution and to our country. If either Smith were here today, I know they would ask you to take a stand at the bridge. Thank you.
Senator Sibbeston: Mr. Chairman, I must admit that after about 5 or 10 minutes I quit listening to the witness because, frankly, I am so insulted by his comments and with the attitude that he presents to us. It is possible that the Canadian Charter of Rights, technically, may not apply to the Nisga'a, but how do you know? How can you publicly say that the Nisga'a will not conduct themselves in such a way that they will respect the rights of people?
(take 1910 follows Sen. Sibbeston continuing: You make such an assumption....)
DV/March 22, 2000 - Aboriginal - 36161
(Senator Sibbeston continuing)
You make such an assumption. You say you say nothing could be further from the truth. I find the Nisga'a people, in my short time of knowing them, to be so patient. They have waited over 100 years to get to this table. You and people like you want to tear it down. I just find what you have said so insulting and demeaning. You are sour and bitter and negative. You portray a picture of hopelessness...
Senator Tkachuk: A point of order.
Senator Sibbeston: They must take account for what they say. I have a right to say what I am saying.
The Chairman: Let me act as chair, and say that the point of order is well taken. The witness has given his views and I do not think that contradiction is justified.
Senator Sibbeston: Are you saying that as a senator, I am not able to express my feelings and views that I feel as a result of a witness who has come here.
The Chairman: I am saying that it is not whether you are right or wrong in what you say, your words approach abuse of the witness. That is what I am saying.
Senator Sibbeston: He is abusing native people. He is speaking of native people as if we were creating a Berlin Wall. How much worse could his description of native people be.
The Chairman: You are out of order. I am moving to Senator St. Germain.
Mr. Weston: I would like to address that. I think you are absolutely right. I think we do not know the answers to these questions. Some people think one thing and others think something else.
What a shame it would be if after 100 years of negotiation, if we take a law that is invalid in the beginning, pass it into law, and then have to take it apart slowly when we have a very speedy way to deal with that. I am saying that whether right or wrong, we should erase the uncertainty for the benefit of Nisga'a people, other aboriginal and for people from coast to coast. That is all I am saying.
The Chairman: You have said that most eloquently tonight.
Senator St. Germain: Mr. Chairman, I thank you. I would like to thank the witness for coming and I would have hoped that -- I am not casting aspersions. We wanted to hold these Senate hearings and the chairman and I who agreed not to travel because we wanted them to be under what we consider a thoughtful, civil scenario. It is in that spirit that we would like to continue with these hearings here tonight. I thank you for coming. I know that the man for whom you speak has become very controversial, and it is unfortunate that we have turned this into a situation as opposed to a discussion over the validity of our Constitution. It has turned into a situation of racism and the problems in British Columbia. It is certainly not in that spirit that I want to conduct these hearings. These hearings impact on overlap, which is something that you have not spoken to in regards to other natives. It is very important, and something with which we must deal. You are questioning the constitutional aspect of the bill, and I asked Mr. Macdonald the same question basically. Are you of the same opinion that that particular section that Mr. Macdonald quoted in regards to where the agreement says that if the Nisga'a must live by the rules and must live by our Constitution and Charter of rights is put into question by the terminology in the agreement.
Mr. Weston: There is at least a high degree of uncertainty. It is hard for me to respond on behalf of someone like Mr. Smith who is an eminent authority, but I will do my best. I know if Mr. Smith were here he would say that at minimum the issue is shrouded in uncertainty, and no one in the room can answer the question.
The question must go to the Supreme Court of Canada. It will go there sooner or later. The suggestion seems eminently pragmatic that we submit to the court an agreement that has taken so much resources and has raised expectations from coast to coast. I cannot think of a good reason not to do so.
There was such a reference made when Mr. Trudeau sought to bring the Constitution back to Canada. There was a reference more recently under Mr. Chrétien. There is a conservation of resources reason to do that so that everyone can march forward on the certainty that we have something that is not only politically been agreed to by all the parties but has received blessing from the Supreme Court of the country.
I think to debate the fine issue may marginally increase our understanding, but the fact is there is contradictory language. Even the most adamant supporters on one side or the other must agree that there is a high level of uncertainty there.
Senator Grafstein: This is a very attractive proposal, but it is inconsistent with your argument. Mr. MacDonald made the same argument. He said that in this agreement two parliaments have abdicated their responsibilities. They have abandoned power. Your very attractive proposal is that the Senate should abandon its constitutional responsibilities to satisfy itself that this piece of legislation is constitutionally appropriate. That is what I have been wrestling with since I sat as a non-voting member of this committee to deal with my parliamentary responsibilities. I want to come to grips with this legislation and decide whether or not it is constitutionally appropriate or not. I am not about to abdicate my responsibility to judges, just as I would not expect judges to try to interfere unreasonably or unduly with the parliamentary process.
Therefore, Mr. Chairman, I would like that we not deal with this proposal. It is alluring but get it off your desk and deal with the issues. Maybe the public will accept a Supreme Court decision as opposed to Parliament. We are here still. We have to deal with this issue. I would like to come back to it if I could. With your concurrence I want to ask a question offer two.
The Chairman: Yes, a question or two but very pointed.
Senator Grafstein: I am trying in a way to be my own devil's advocate here. Professor Sanders said, and we heard from a colleague who made the same argument in a different way, that the rights of aboriginal predated the Constitution of 1867. There are inherent pre-existing rights. The Royal prerogative was not pre-empted, but was diluted somewhat by the pre-existing agreement, the Quebec Act, the earlier acts. We have heard it all. The evidence is there.
We must to look at this set of rights under section 35 and section 25 and see whether or not we can round the circle, which is inherent rights, pre-existing, pre-Royal prerogative and still be consistent with the Constitution. There is a huge conundrum in the Constitution dealing with section 25 and section 35 because they said aboriginal rights are yet to be defined. We have two democratic legislatures -- the legislature of the Province of British Columbia and the other chamber -- who have concluded that these are aboriginal rights that should be encapsulated in this very complex arrangement.
I take it for myself that this does not necessarily mean that all of these other negotiations will take the same route. It may very well be that this will be tested in the courts, and then different conclusions may arise.
How do you deal with the fundamental issue that my colleague put that this is a pre-existing pre-1867 inherent right and that section 35 and section 25 only gives some flesh to this as best they can with this imperfect arrangement under the Charter?
(Take 1920 Follows -- Senator Grafstein continuing: How do we deal with that?)
(Take 1920 follows--Senator Grafstein: continuing.)
How do we deal with that? He has made his argument, but how do we respond to that?
The Chairman: The witness will try to answer the question.
Mr. Weston: I read a transcript yesterday of testimony given by the same Professor Sanders and Mr. Melvin Smith in November 1999 at the Empress Hotel, Victoria. They could agree that these issues have not been tested by the courts. First, there has never been something like this before, so we are dealing with a new animal. Second, there is a high degree of uncertainty involved. Professor Sanders says that there is a theory of law and government that predates our Constitution and therefore, there are really three parties to the Constitution, something we had not considered before, at least before section 35 came into our Constitution. That is arguable. The problem is that we have two possible avenues. One avenue is that we can get our opinion from the court, which will ultimately decide this now, or we pass on it. We have heard from Mr. MacDonald how difficult it will be to make references to the Supreme Court afterwards, because the federal government and the provincial government have somehow fettered their own ability to support a challenge. That means that Joe citizen has to be able to afford the challenge to get up to the Supreme Court of Canada on a section by section challenge rather than getting the whole bill put before the Supreme Court of Canada for consideration of these very weighty, profound issues that will affect our great, great grandchildren.
Senator Grafstein: Is it fair to say that you and Mr. MacDonald would be satisfied if, in fact, there was an amendment that, in effect, said that the federal and provincial governments had not fettered their discretion by this agreement; and that, in effect, the division of powers is sacrosanct. Would another alternative be to follow the American experience that allows self-government, allows a model of policing and allows a model of court adjudication, and yet, keeps Congress free, at any time, politically if it chooses to do so, to intervene? Is that a suitable alternative for us?
Mr. Weston: Could you restate the question?
The Chairman: Actually I would like to turn to Senator Andreychuk because the question asks for an opinion, but the witness is not an expert on American aboriginal law unless he tells us he wants to be considered so.
Mr. Weston: I will be glad to duck that one.
Senator Andreychuk: First, I want to apologize for the way that this hearing has been conducted in your presence and I thank the Chair for intervening at the appropriate time. I have been impressed with, since I have started to study this, is that the Nisga'a people are well and capable and have done an excellent job of putting forward their position and negotiating for themselves. They do not need the protections that appeared to be coming forward in this committee. I believe that the Nisga'a have negotiated in good faith with both the federal and the provincial governments, and I believe that your comments and Mr. Smith's comments have been raised in good faith. Would it allay your fears if all three parties issued a joint undertaking by letter, or otherwise, because we have gone so far down on the agreement, to state exactly what your concern is. A letter that would indicate that they do not intend to violate the Charter of Rights and Freedoms and that they intend to be subject to it. Would that go a long way to allay your fears? What other legal point would you cover?
Mr. Weston: I became interested in this when I returned two years ago from Asia, where I had spent many years. I now have two children, aged one and two. I started to read the newspaper clippings of what was happening, I asked myself, "what would happen if these provisions were in place when my grandchildren were alive and their grandchildren?"
We are amending a document which is meant to be the basic law that will govern not only ourselves, but people who come many years after us. It will also be a blueprint for other treaties that are entered into in British Columbia and perhaps treaties in other areas from coast to coast that are renegotiated in the years to come.
It is not the individuals who are at the table that concern me. We hear nothing but good reports about the good faith of the Nisga'a people. That is not an issue on the table. If anything, we can say they have inspired Canadians to be more patriotic by their following of the rule of law and their sincere efforts to make this a better place. I think everyone applauds that.
The issue is that we are changing a Constitution and it is our governing law. We cannot tell what the people will be like who come after us, those who have to operate under the governing law. That is why people, who are thinking not six months ahead, but 60 years or 600 hundred years ahead, want to ensure we set out on the right foot.
Senator Andreychuk: If this went to the Supreme Court and they upheld this agreement, would you be satisfied and prepared to live positively with this agreement?
Mr. Weston: I would be much happier. I would know that at least we had been given instructions from the highest court of the land and we would know the playing field on which we were all to play. Whether we were a foreign investor thinking about coming to do business here or a citizen of Canada, we would know that this was how we were to proceed. The rest of the 50 agreements could be much more clearly negotiated.
The Chairman: Thank you, Mr. Weston. You have performed under difficult circumstances because it is always difficult to present someone else's brief and someone else's arguments. I am sure you know Mr. Smith's mind quite well and we thank you for appearing.
I would like to call on Mr. Bell-Irving, who is a native of British Columbia and has spent his business career there. Senator Grafstein will want you to give some additional details of yourself, Mr. Bell-Irving.
Senator Grafstein: We are not from British Columbia, so it would be helpful for us to know to whom we are speaking.
Mr. Harry Bell-Irving, Director, Citizen's Voice on Native Claims: Honourable Senators, I am a native of British Columbia, as were my parents and one of my four grandparents. I have practiced law in Vancouver for over 50 years, but I have not ever worked in the constitutional field. I do not, therefore, make any claim to be a constitutional lawyer. I will make statements in my paper relating to constitutional matters, not withstanding that, because I have a legal background and the constitutional matters before us today are very important.
I concur with what Mr. MacDonald said and I also agree with Mr. Smith's remarks. I will try to deal quickly with the portions of my paper that duplicate what they said, and I would like you to know that, in the preparation of my paper, I did not know what either of those men would be saying.
(Take 1930 follows--Mr. Bell-Irving continuing: I do appear...)
(Mr. Bell-Irving: continuing.)
** I do appear as a director of Citizen's Voice on Native Claims, a federally incorporated company which came into existence shortly after the Nisga'a agreement in principle was tabled. Its prime purpose was to disseminate information to British Columbians and, to a degree, to all Canadians. We were, however, primarily interested in informing British Columbians on the treaty in an attempt to improve it. I acknowledge that we, as a group, were unanimously gravely concerned about many aspects of the treaty.
Bill C-9, to give effect to the Nisga'a Final Agreement, is, I believe, with the possible exception of the declaration of war in 1939, the most important legislation to come before the Senate in my lifetime. If enacted in its present form, the Nisga'a agreement will have a profound effect on every Canadian living in British Columbia. It will also have a profound effect on all Canadians, because aboriginals throughout Canada will seek to get as good or better a position for their band as is granted to the Nisga'a, particularly with respect to the rights of self-government.
While I have serious concerns regarding numerous important provisions of the Nisga'a agreement, I will in this presentation limit my comments to two matters; to chapter 11 of the Nisga'a agreement which sets out the self-government rights, and to the manner in which the Nisga'a agreement has been negotiated and the conduct of the British Columbia and federal governments in passing or seeking to pass the agreement into law.
I heard Mr. MacDonald say that he would probably not be here if not for chapter 11. I am in the same position. That is the part of the agreement which causes me concern.
The Nisga'a have been given provincial- and federal-like powers to govern in a great many areas of law. In 14 different instances, chapter 11 of the Nisga'a agreement provides that in the event of an inconsistency or conflict between the Nisga'a and a federal or provincial law, the Nisga'a law will prevail to the extent of the inconsistency or conflict.
To this point in our history, all legislative powers have rested exclusively in one or other of the federal government or the provincial government. Under the Nisga'a agreement, in certain instances paramount powers will reside in a new third order of government; namely, the Nisga'a government. How can the federal government continue to say it is sovereign? What will happen when 60 or more other aboriginal bands in British Columbia have been granted the paramount powers granted to the Nisga'a? What will the federal government say to aboriginal bands across Canada when they demand the same rights of self-government for themselves?
Chapter 11 of the Nisga'a agreement provides for a Nisga'a constitution and Nisga'a citizenship, and that only Nisga'a citizens can vote for the Nisga'a agreement. This clearly establishes a right to vote based on race. How can this racially based right to vote or, put the other way, the denial of the right to vote because you do not belong to the right race, be reconciled with the concept that all Canadians are equal? Is British Columbia to be balkanized so that there will be 60 or more areas within the province, some of them possibly many thousands of square miles, where 99.9 per cent of the people living in British Columbia cannot vote? Will this balkanization spread across Canada?
Section 30 of chapter 11 of the Nisga'a agreement provides that in certain circumstances British Columbia will consult with the Nisga'a government before amending provincial laws. For practical purposes, this provision constitutes a further derogation of the powers of the British Columbia government and, if nothing else, will result in substantial additional bureaucracy at the provincial level and in delays in the enactment of provincial laws governing British Columbia.
Considering that there may well be 60 or more agreements with other aboriginal bands in British Columbia, will it be possible for the British Columbia government to continue to operate effectively and on a timely basis?
The Nisga'a agreement is in part in settlement of land claims and, accordingly, will be entrenched as part of the Constitution of Canada and, therefore, can only be amended pursuant to the constitutional process. The agreement provides that there can be no amendment without the consent of the Nisga'a. Accordingly, the Nisga'a could defy the wishes of the rest of Canada. Surely this is a significant derogation of the sovereignty of Canada and does not make sense.
In any event, it is only common sense to have an initial trial period of perhaps 10 years, giving Canada and British Columbia the power to make amendments where needed. This can be accomplished by moving the self-government rights to a separate agreement as has been the case in every treaty entered into by the Government of Canada to date.
Senator Joan Fraser, in a recent article published in the National Post, noted that last year the Senate proposed 55 amendments to Commons bills, and also noted that it was the Financial Post that said, in 1998:
In recent years, the upper chamber has done a better job than opposition parties in improving legislation. Its committees, where the real work is done, have for years made a valuable contribution to the shaping of federal public policy. What better place to protect the interests and rights of citizens of Canada with respect to Bill C-9?
Keeping in mind the speeches made before the Senate by the Honourable Senator Austin and Minister Nault, I think it important that this committee hear from representatives of the majority of British Columbians. The polls have shown that the majority of British Columbians do not approve the Nisga'a agreement in its present form. The polls also show that the majority of British Columbians approve entering into treaties and being generous. I include myself in that majority, as I think did Alex MacDonald.
It is my understanding that prior to the introduction of the Nisga'a agreement in principle, the governments of Canada and British Columbia took the position that there would be no settlement of land claims until overlapping claims of adjoining aboriginal bands were solved. When or why this fell off the table I do not know, but it was an important and sensible position and its abandonment will come back to haunt us. I mention this because it has direct application to the Nisga'a, as I will note later in my submission.
The following is a summary of the atmosphere in British Columbia in which the Nisga'a agreement has been negotiated and passed through the British Columbia legislature and the House of Commons.
In February 1996, the Nisga'a agreement in principle was signed and made available to the public. This was the first opportunity the people of British Columbia had to see the agreement, even though the negotiations had been going on for years. Regrettably, the negotiations had always been in secret and, also regrettably, the people of British Columbia have never been consulted on what should be in the agreement. In the period immediately following this signing, spokesmen on behalf of the federal government, the British Columbia government, and the Nisga'a Tribal Council made it clear that there was very little room for change.
When concerned British Columbians requested a referendum to approve the agreement, the premier said no. When it was pointed out that there had been no consultation by the B.C. government with the people of British Columbia on what the people considered fair or, more important, on what British Columbians considered reasonable parameters for settling aboriginal claims generally, it was brushed aside as being unnecessary.
When it was pointed out to the premier that the Nisga'a would be required to have a vote, i.e., their referendum to approve the agreement, and when the people of British Columbia pressed for their vote or referendum, the premier again said no, that it was too complicated for a referendum.
When it was pointed out that the Constitutional Amendment Act of British Columbia provides that the government must not introduce a motion for a resolution of the legislative assembly authorizing an amendment to the Constitution of Canada unless a referendum had first been conducted under the Referendum Act with respect to the subject matter of that resolution, the premier said the Nisga'a agreement did not amount to an amendment to the Constitution of Canada so there was no need for a referendum.
The three parties to the agreement continued to negotiate from February 1996 until August 1998 when the Nisga'a agreement in final form was initialled by the parties. These negotiations were conducted in secret and the people of British Columbia were, for all practical purposes, excluded.
There was a commitment by the B.C. government to release the agreement chapter by chapter as the chapters were finalized, but this did not happen, except with a few chapters at the very end.
In answer to the pleadings of various organizations, including the official opposition in the legislature, the premier promised to release the chapter on Nisga'a government in advance of tabling the final agreement in the legislature.
(Take 1940 follows -- Of course, the premier did not keep this promise.
36161/Aboriginal/March 22, 2000/DM
(Mr. Bell-Irving continuing -- the final agreement in the legislature.)
** Of course, the premier did not keep this promise. In the British Columbia legislature, it was made clear by the NDP that no amendment would be permitted and, indeed, a form of closure was introduced to cut off debate.
Throughout the whole period, the federal and B.C. governments continued to misrepresent the agreement in a number of material aspects, the two most important misrepresentations being that the self-government powers granted to the Nisga'a were similar to local or municipal powers and that the agreement would create certainty.
The Prime Minister was asked to permit a free vote in the House of Commons on the Nisga'a agreement but refused, saying it is too important a matter for a free vote. Is it too cynical to ask the question: Are we to be grateful to the Prime Minister for saving us from the Liberal caucus, who apparently cannot be trusted to vote the right way?
In his presentation to this committee on February 16, 2000, Minister Nault said:
If I have one overwhelming concern about the public debate on the treaty to date, it is the amount of misinformation that exists. As you well know, the treaty arrangements are complex and, unfortunately, some critics have deliberately misrepresented the facts when discussing its implications.
I should like to challenge the word "deliberately". I have been accused in my work in British Columbia of misrepresenting and being a scaremonger. If I did misrepresent, it was not intentional, and it was certainly not deliberate. If I did, it was only because, after very careful work, I had apparently made a mistake. I have never had any representation in the writings of our organization or any statement that I have made corrected.
Minister Nault in his submission to this committee said this treaty
… ensures the application of all federal and provincial laws within the settlement area.
Considering that the Nisga'a agreement grants paramountcy to the Nisga'a government in 14 different areas of law-making, how can the minister make this extraordinary statement? Surely the Nisga'a agreement ensures that, in many important instances, federal and provincial laws need not apply. Does the minister really believe what he said? Is his statement misleading? I think it is misleading.
Minister Nault, in his submission to the committee, said:
This agreement, and its self-government provisions, were designed to meet the needs of those whom it may affect. The great majority of Nisga'a law-making powers will affect only the Nisga'a themselves, or their lands, assets, language, and culture.
Then the key words:
This is self-government and an appropriate form of local government.
To my knowledge, 100 per cent of the law-making powers of local government in Canada are delegated from either the Government of Canada or a provincial government, which means that the powers of the local government can be amended or even withdrawn. This is not the case with many important powers granted to the Nisga'a government. No local government anywhere in Canada has a constitution which entitles it to confer citizenship on the basis of qualifications of its choosing and to restrict the right to vote to those who meet such qualifications. No local government anywhere in Canada has direct free access to significant natural resources. Does the minister really think that the Nisga'a government is fairly described as "local government?" Is his statement misleading? I think it is misleading.
Tom Malloy, the chief federal negotiator, says that the Nisga'a agreement has been negotiated in good faith and that it is too late to try to change it now. The Department of Indian and Northern Affairs which negotiated for the federal government is in a fiduciary position with respect to aboriginals and accordingly is in a position of conflict of interest with respect to what I sometimes refer to as the 95 per cent minority -- that is, the 95 per cent of Canadians who are not aboriginals. I submit that in the practical, common-sense application of the word "represent", no one has represented Canadians as a whole and that it is misleading to say the agreement was negotiated in good faith.
Since I am speaking in Ontario, it seems fair to ask: Is the Government of Ontario prepared to cede to aboriginal bands in Ontario like powers of self-government to those granted to the Nisga'a? Have the people of Ontario been kept informed, let alone consulted? The same questions must, of course, be asked with respect to all provinces. To my knowledge, neither Ontario nor any other province has been consulted. Have they been dealt with in good faith? I think not.
Both Senator Austin and Minister Nault unequivocally state that the Nisga'a agreement does not amend the Constitution of Canada. Senator Austin quotes evidence given by Professor Monahan. The Monahan opinion is that the Nisga'a agreement does not amount to an amendment to the Constitution of Canada, and furthermore, that if the federal government in the future entered into agreements with aboriginals, it could cede paramountcy to aboriginals of other powers without that amounting to an amendment to the Constitution of Canada. It seems to me that the logical extension of the Monahan opinion is that the Government of Canada could gradually cede to aboriginals all of its powers without that amounting to an amendment of the Constitution of Canada.
Highly regarded constitutional experts, notably Melvin H, Smith of British Columbia, but certainly there are others, have expressed the opinion that parts of the Nisga'a agreement do amount to an amendment to the Constitution of Canada. Is it possible that you can add a 252-page agreement, together with hundreds of pages of appendices, to the Constitution of Canada but not amount to an amendment to the Constitution? Is it misleading to omit reference to serious doubts that have been raised as the constitutionality of this agreement? I think the answer is "yes. "
The supporters of the Nisga'a agreement say it is democratic, but 99 per cent of Canadians, including aboriginals who are not Nisga'a, will not be able to vote for the Nisga'a government. How can the Nisga'a government be described as democratic? Is it misleading to state that the Nisga'a agreement is democratic? Surely the answer is "yes. "
The supporters of the Nisga'a agreement say that the Charter of Rights will apply to the Nisga'a agreement but are silent on the fact that constitutional scholars are divided on this point.
I will not read further, because I assume it will be in the record. Am I correct, Mr. Chairman?
The Chairman: Your entire paper will be in the record.
Mr. Bell-Irving: I will not read further on the question of the application of the Charter because my points are similar to the points made by previous witnesses.
The supporters of the Nisga'a agreement say it will create certainty, but there are many subagreements yet to be settled in final form and made public, so how do they know? There are at least four lawsuits presently outstanding questioning the constitutionality and other important aspects of the Nisga'a agreement. One of these lawsuits is by the British Columbia Liberal Party, the official opposition in the British Columbia legislature which received more votes in the last election than the governing NDP party. Another is by a neighbouring aboriginal band which claims that much of the land that is given to the Nisga'a is their land and not Nisga'a land. Can anyone seriously doubt that the Nisga'a agreement will be before the courts for decades to come? How can the claim of certainty be made? Is it misleading to make the claim of certainty? Surely the answer is "yes. "
Why have the federal and the B.C. governments negotiated in secret, denied the Nisga'a agreement will create a new third order of government, denied that any part of it amounts to an amendment to the Constitution of Canada, denied British Columbians any meaningful say in the terms of the agreement, permitted the Nisga'a referendum on the agreement but denied British Columbians an opportunity to approve the agreement by referendum, and rushed and bullied the agreement through the legislature in British Columbia and the House of Commons using closure tactics? I submit that the answer is because they know a clear majority of British Columbians, and, having in mind the Charlottetown Accord, the majority of Canadians, do not approve the present agreement in its present form and on a referendum would vote it down. Is it too cynical to suggest that I can imagine the Prime Minister saying, "Heaven forbid that the will of Canadians prevail and that we have another result like the Charlottetown Accord?"
To sum up, the supporters claim that the Nisga'a agreement is democratic, but I cannot vote; that the Nisga'a agreement does not create a third order of government and that the powers granted to the Nisga'a amount only to appropriate local government, but Nisga'a laws will have supremecy over the laws of the Government of Canada and British Columbia in at least 14 instances; that the Nisga'a agreement does not amount to an amendment to the Constitution of Canada but acknowledge that it will form part of the Constitution of Canada; that the Nisga'a agreement will create certainty, but, in fact, the only certainty is that there will be the uncertainty of ongoing disputes in the courts indefinitely into the future.
(1950 follows -- Mr. Bell-Irving continuing -- Canadians have a term)
NP/March 22, 2000/Aboriginal 36161
(Mr. Bell-Irving: continuing.)
Canadians have a term for this sort of nonsense. We call it a snow job. This snow job has the proportions of a major blizzard. Canadians know that to be caught out in a blizzard can be fatal. The name of the party caught in this blizzard is Canada.
If the Nisga'a agreement in its present form is approved in the Senate and becomes law, the sovereignty of Canada will be significantly diminished. I believe it will be the first step in the break-up of Canada.
I also believe that if the Nisga'a agreement is to be the template for many agreements with aboriginals to follow in British Columbia, then British Columbia will be lost to Canada as an effectively governable and economic province.
I urge the Senate to put the Nisga'a agreement on hold until the constitutional questions have been considered by the courts. Failing this, and at the very least, I urge the Senate to recommend an amendment which would have the effect of removing chapter 11, dealing with self-government, from the Nisga'a agreement, and placing it in a separate agreement, thus giving a reasonable time to experience the Nisga'a government in operation.
If experience showed that the self-government rights needed amendment, it would be a simple matter to make amendments, and the self-government rights as amended could be written into the Constitution of Canada if it was thought wise at that time.
Thank you.
Senator Beaudoin: Mr. Bell-Irving, you say in the brief that our Chairman and the Minister state unequivocally that the Nisga'a agreement does not amend the Constitution of Canada.
Mr. Bell-Irving: That is correct.
Senator Beaudoin: It is a simple statute; very important, of course, but a statute. If this is so, how can we reconcile that with the fact that in 14 or 20 areas, the rule of paramountcy is not federal or provincial, the paramountcy is Nisga'a?
If this is so, it means that we have the equivalent of a third order of government.
We know that the Supreme Court right now, tonight, at least, has not said that there is a third order of government. We know that some jurists are disagreeing on this. Some say it is inherent in clause 35, and others say no. However, as I said, I have not yet seen any judgment of the Supreme Court saying that we now have a third order of government.
If all this is true, you conclude that the bill is unconstitutional, at least in respect of the paramountcy. Is that what you say?
Mr. Bell-Irving: That is right.
Senator Beaudoin: In those 14 areas?
Mr. Bell-Irving: At least, in respect of that. However, there are other matters in the agreement that I say are unconstitutional.
Senator Beaudoin: Perhaps, but that one is very different from all the others, the paramountcy rule, because that is the first time we have in a statute a paramountcy that is neither federal nor provincial. In the Constitution, so far we have only federal paramountcy in section 95 and provincial paramountcy in section 94.
In view of that, you say we should ask the Supreme Court to rule on it. The bill is before the Senate. The only authority that may go before the court at this stage is the Government of Canada, the Governor in Council.
Obviously, as far as I can see, they are not interested at all in going to the Supreme Court. The bill may be challenged once it is adopted, when it is enacted. We must decide, as my colleague has said. The courts are there but we are here. We are the legislative branch of the state and we must take our responsibility.
What you are requesting is a vote not against the bill, but a vote against that disposition that is dealing with 14 areas where paramountcy is not federal or provincial. Is that what you are suggesting?
Mr. Bell-Irving: First, it is my understanding that the court would not deal with the matter of constitutionality until either the bill becomes law or there is a reference to the court. My suggestion is that there should be a reference to the court, but the questions of constitutionality would not merely be limited to the 14 instances where paramountcy is given in the self-government chapters.
Other presenters this evening have dealt with very important aspects of potential unconstitutionality and, therefore, invalidity. As I see it, the position that they took, and certainly that I take, is, why try to make law something that may not be constitutional? Why not take a reference?
As to the honourable senator on the right, I agree with the other presenters this evening. If the Supreme Court of Canada states that the bill is constitutional, then, while that would surprise me and would not please me, I would accept it. That is the law of the land. That is what, in part, the last half my paper is really directed to. I believe the democratic process has been seriously abused in this matter.
Senator Beaudoin: We will have the opportunity tonight and tomorrow to ask two other experts on the Constitution on this question.
Mr. Bell-Irving: I am sure they will know more than me.
The Chairman: Thank you, Mr. Bell-Irving, for your appearance. Obviously, as you have said, you have buttressed and reinforced the evidence given by Mr. MacDonald on behalf of Mr. Smith. It is very much in the same direction. We thank you for your presentation.
I will now call Professor Bruce Ryder and Professor Kent McNeil of Osgoode Hall to come forward.
Professor Ryder, please proceed.
(take 2000 follows: Mr. Ryder ( in full): Thank you very much, Mr. Chairman..)
Mr. Bruce Ryder, Professor of Law, Osgoode Hall: Thank you very much, Mr. Chairman. It is an honour and a privilege to be part of the Senate's close study of Bill C-9 and the Nisga'a Final Agreement. I thank you for giving me the opportunity to participate in your considerations. I have been teaching, researching and publishing in the area of constitutional law since my appointment to Osgoode Hall law school in 1987, and I hope I can be of some modest assistance to senators in trying to sort through some of the constitutional issues that have been raised in these hearings.
As you know, the Nisga'a Final Agreement is the culmination of a lengthy process aimed at reconciling the Nisga'a's prior sovereignty and prior occupation of their land with the subsequent assertion of Crown sovereignty. Its provisions, in my view, accomplish this goal in an honourable and just fashion. Moreover, the NFA is consistent with, and indeed advances, the foundational principles of the Canadian Constitution, namely federalism, democracy, the rule of law, and the protection of minority rights.
Therefore, in my view, rather than being an occasion to dwell in constitutional doubt, I see the NFA as an occasion to celebrate the realization of our historic commitments and our contemporary constitutional aspirations.
In my comments, I would like to focus on two constitutional issues that have been raised before the committee. I would like to speak to the constitutional status of the Nisga'a Final Agreement and the issue of whether it amounts to an amendment to the Constitution. I would also like to speak to the application of the Charter and the related issue of the protection of minority rights provided for by the agreement.
As you know, the Nisga'a Final Agreement is a treaty and a land claims agreement for the purposes of section 35 of the Constitution Act, 1982. Therefore, if the ratification process is completed by the passage of Bill C-9, the provisions of the NFA will be constitutionally protected. In the words of section 35(1) of the Constitution Act, 1982, the provisions of the treaty will become "recognized and affirmed". Any government action that is inconsistent with the provisions of the treaty may be declared of no force and effect, pursuant to section 52 of the Constitution Act, 1982.
It has been suggested that the entrenchment of Nisga'a government powers through the treaty process amounts to an amendment to the Canadian Constitution that can be accomplished only by following the amending procedures set out in Part V of the Constitution Act, 1982. This view, in my respectful submission, is erroneous.
Our Constitution, as amended in 1982 and 1983, expressly contemplates the entrenchment of rights through the negotiation of land claims agreements. In other words, the protection of existing treaty rights in section 35(1) is not limited to treaties that were already in existence in 1982. It also embraces treaty rights that have come, or may come, into existence after 1982. Given that the Canadian government has been committed since the mid-1970's to resolving outstanding land claims through the treaty process, it would have made no sense to limit section 35 to historical treaties.
To make this interpretation abundantly clear, section 35 of the Constitution Act, 1982 was amended in 1983. The amendments reflected the agreements reached in the constitutional accord on aboriginal rights signed on March 16, 1983 by representatives of four national aboriginal organizations, by the Government of Canada, by nine provincial governments and two territorial governments. One of the amendments added a new provision, section 35(3), which provides that, for greater certainty, subsection (1) treaty rights include rights that now exist by way of land claims agreements or that may be so acquired.
If ratified, the Nisga'a Final Agreement will embody treaty rights that have been acquired by way of land claims agreement in accordance with section 35(3). The Nisga'a rights of self-government, rather than amounting to a constitutional amendment, have been acquired according to the very process contemplated by the constitutional amendments ratified by Canadian governments and representatives of aboriginal peoples in 1982 and 1983.
It is true that the provisions of the NFA will have the effect of altering the degree to which federal and provincial laws will apply to Nisga'a lands and Nisga'a citizens. This is true of all constitutionally entrenched rights and freedoms. They have the effect of limiting the operation of federal and provincial laws to the extent necessary to protect those rights and freedoms.
One feature of the entrenchment of treaty rights in section 35(1) is that the impact of this provision on federal and provincial powers will change over time as new treaties are negotiated and ratified. The same could be said, for example, of the impact of the minority language education rights in section 23 of the Charter of Rights and Freedoms. The impact of this provision on provincial jurisdiction to pass laws in relation to education will change over time since the right to have separate educational facilities in section 23 exists only where the number of children so warrants. Nobody would suggest that the Constitution has been amended when the number of children in a particular locale reaches that threshold. Nor is the Constitution amended when new treaty rights are entrenched in section 35(1).
The NFA does not amend the division of powers between the federal and provincial governments set out in the Constitution Act, 1867. The federal and British Columbia governments' jurisdiction to make laws in relation to subject matters listed in sections 91 and 92 of the 1867 act are not affected. The NFA explicitly provides that this agreement does not alter the Constitution of Canada, including the distribution of powers between Canada and B.C.
As I mentioned, the provisions of the NFA will alter, compared to the current situation, the degree to which validly enacted federal and provincial laws can apply to Nisga'a lands and Nisga'a citizens. The application of the Indian Act, including the tax exemption set out in section 87, will be phased out. B.C. legislation dealing with the division of matrimonial property, which currently is inapplicable to immovable property on Indian reserves, will now apply to Nisga'a lands and Nisga'a citizens. The federal and British Columbia governments will continue to have jurisdiction to pass laws within the respective spheres of constitutional jurisdiction. Subject to the terms of the treaty, validly enacted federal and provincial laws will continue to apply to Nisga'a lands and Nisga'a citizens. The Nisga'a government will have no exclusive law-making powers. Rather, it will have concurrent or shared jurisdiction with the federal and British Columbia governments to pass laws in the range of subject matters stipulated by the NFA. With respect to some subject matters of primarily local or internal concern, such as Nisga'a government, citizenship, culture and language, and property, federal and B.C. laws will be rendered inoperative to the extent that they conflict with Nisga'a law.
If ratified, the NFA defines and gives explicit constitutional protection to Nisga'a rights of self-government. It is inaccurate, however, to describe the agreement as creating a new constitutional order of government. My colleagues at Osgoode Hall Law School, Dean Peter Hogg and Professor Patrick Monahan, in their presentations before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development on November 23, 1999, took the view that there is very little doubt that the Supreme Court of Canada will recognize that aboriginal self-government is already protected by section 35(1) of the Constitution Act, 1982. I share this view.
Although the Supreme Court, as has been mentioned in these hearings, has not yet authoritatively decided the question, the statements it has made in its rulings on the meaning of aboriginal rights recognized and affirmed by section 35(1) point very clearly in this direction.
The court has stated that aboriginal rights include any practices, customs or traditions integral to the distinctive culture of an aboriginal nation at the time of contact with European settlers that have not since been fully extinguished by the clear and plain intention of the Crown. Since aboriginal nations constituted organized societies with their own traditions of governance at the time of contact with European settlers, and since the Crown has not demonstrated a clear and plain intention to completely extinguish those traditions of governance, rights of self-government are existing aboriginal rights for the purposes of section 35(1).
The court has held, in the Delgamuukw case, that unextinguished aboriginal title is protected by section 35(1) and is composed of a right to the exclusive use and occupation of land. The right is held communally by all members of an aboriginal nation and, the court stated in Delgamuukw, decisions with respect to that land are also made by that community. In other words, implicit within the court's definition of aboriginal title appears to be a right of collective governance. That is a right of self-government, with respect to the use and occupation of lands subject to unextinguished aboriginal title.
Senators may know that the Supreme Court of Canada has twice had the opportunity to issue an authoritative ruling on whether rights of self-government are already protected by section 35(1). In its decisions in Pamajewon and Delgamuukw, it expressly declined to do so on the grounds that the claims were framed in excessively general terms.
(take 2010 follows, Mr. Ryder continuing: As a result, the court said it was beyond its institutional competence to address all of the complex issues raised by such general claims.)
(Take 2010 Begins -- Mr. Ryder continuing)
As a result, the court said it was beyond its institutional competence to address all of the complex issues raised by such general claims. Instead, the Supreme Court of Canada and other courts have repeatedly indicated that these issues are best addressed comprehensively through treaty negotiations. The only other option is to have specific aspects of an aboriginal nation's rights of self-government addressed piecemeal by the courts in litigation.
It is clear that the Nisga'a nation and the governments of Canada and British Columbia have made the right choice in reaching agreement on the NFA. It does not create a new order of constitutional government; rather, it transforms the uncertain content of Nisga'a rights of self-government, already included within section 35(1)'s protection of aboriginal rights, and transforms them into treaty rights that have been defined in an explicit and detailed manner through the consent of the parties.
I would like to take a few moments, Mr. Chairman, to address the Charter issue. As you know, the treaty expressly provides, in section 9 of chapter 2, that the Canadian Charter of Rights and Freedoms applies to Nisga'a government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a government as set out in this agreement.
In other words, the treaty, by reference, incorporates the body of Charter law into the treaty and makes it applicable to the exercise of Nisga'a governmental authority. The reference to the free and democratic nature of Nisga'a government ensures that Charter rights and freedoms are guaranteed in the same way and to the same extent as they are guaranteed to Canadians by section 1 of the Charter in our relationships with federal and provincial governments. It means, for example, that the burden is placed on the Nisga'a government to demonstrably justify any violation of Charter rights or freedoms pursuant to section 1 of the Charter.
It has been suggested by some that the provision of the NFA that provides for the application of the Charter, which seems clear enough on its face, is rendered ineffective or illusory by section 25 of the Charter, which provides that the guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from treaty rights that pertain to the aboriginal peoples of Canada.
The argument that some have made is that section 9 of chapter 2, despite its apparent clarity on this issue, will not be effective in making the Charter applicable to Nisga'a government because the Charter cannot be construed in a manner that will derogate from the powers of Nisga'a government set out in the treaty.
With all due respect, this argument is legally unsound. It is true that the Charter cannot be construed in a manner that will derogate from the treaty rights set out in the NFA. Thus, for example, section 25 means the Canadian courts will not declare invalid the treaty provisions conferring law-making powers on the Nisga'a government on the grounds that they discriminate on the basis of national or ethnic origin contrary to section 15 of the Charter because to accept such an argument would derogate from the treaty rights given to the Nisga'a people.
However, section 25 does not prevent the Charter from being applied to the exercise of Nisga'a government authority pursuant to the rights set out in the treaty. This is because the treaty rights themselves are defined as the power to exercise Nisga'a governmental authority in a manner consistent with the Charter. It is nonsense, therefore, to say that applying the Charter to the exercise of Nisga'a governmental authority, which pursuant to the treaty must be exercised in conformity with the Charter, amounts to a derogation from the rights set out in the NFA. Rather, this is precisely what the treaty expressly contemplates.
Given, in my view, that section 9 of chapter 2 makes it perfectly clear that the Charter applies to the exercise of Nisga'a governmental authority, the basic human rights and freedoms of all persons are protected by the treaty. Let me address specifically the situation of non-Nisga'a residents on non-Nisga'a lands, which has been raised before the committee.
The NFA provides that all Nisga'a citizens are eligible to vote in Nisga'a elections and to hold office in Nisga'a government. Nisga'a government will be democratically accountable and elections will be held at least every five years. Elections will be held in accordance with the Nisga'a constitution and Nisga'a laws. The treaty does not explicitly confer a right to vote, or a right to hold elected office on non-Nisga'a residents. This is perfectly appropriate, in my view, given the complex mix of governmental powers set out in the treaty. Some of these powers operate on a personal as opposed to territorial basis, and that is they apply only to Nisga'a citizens, and some are in relation to matters of purely internal concern.
The interests of non-Nisga'a residents are not affected by the exercise of these laws and, therefore, it would be inappropriate to guarantee them a right to vote with respect to all matters of concern to Nisga'a government. At the same time, it is important to emphasize, however, that there is no provision of the treaty, contrary to some suggestions that have been made, that prevents the Nisga'a government from extending the right to vote or the right to hold political office to non-Nisga'a residents.
Sections 19 through 23 of chapter 11 confer certain rights on non-Nisga'a residents, including a right to be consulted on Nisga'a government decisions that directly and significantly affect them, and a right to participate in Nisga'a public institutions where the activities of those institutions directly and significantly affect them. There is nothing in the treaty to prevent Nisga'a government from passing laws that accord greater rights of political participation to non-Nisga'a residents and, indeed, they may well be required to do so by the Charter of Rights and Freedoms.
Recent decisions of the courts dealing with political rights in relation to the operations of band governments under the Indian Act, have made it abundantly clear that the courts will use section 15 of the Charter to protect the rights of minorities or vulnerable groups within aboriginal communities.
Members of the committee who are not familiar with the recent decision of the Supreme Court of Canada in the Corbiere case, will find it instructive reading on this issue. The same will be true, that is the courts will interpret the Charter and apply the Charter to the exercise of Nisga'a governmental authority in a way that protects the rights of minorities or vulnerable groups.
Therefore, the concerns that have been raised about minority rights should not lead us to reject the treaty, since the treaty itself contains no provisions that prevent Nisga'a government from taking steps to provide appropriate rights of political participation to non-Nisga'a residents. The treaty gives Nisga'a government the flexibility to devise appropriate solutions tailored to the complex nature of their jurisdiction.
Ultimately, my conclusion on the Charter issue is that it will be the courts who decide whether Nisga'a government powers have been exercised in a manner that provides adequate protection to non-Nisga'a residents rights of political participation.
Mr. Kent McNeil, Professor of Law, Osgoode Hall: Honourable senators, I have been teaching at Osgoode Hall Law School since 1987. I specialize in the area of aboriginal rights. I teach in that area, and practically all my research and writing is in the area of aboriginal rights, including land claims and self-government issues.
I am in general agreement with the observations and remarks of my colleague, Mr. Ryder, so I will not repeat the things that he has already said. I should like to focus, rather, on some specific issues, the first of which involves the negotiation of agreements of this sort, agreements including land rights, the self-government rights, and the constitutionality of that. Second, I would like to look at the issue of overlapping claims.
While the Supreme Court of Canada, in a number of decisions but significantly in the Delgamuukw decision in 1997, which, of course, came out of British Columbia involving the Gitxsan and Wet'suwet'en nations, the Supreme Court has been telling the Canadian government and provincial governments that these issues should be settled by negotiation. The Delgamuukw case itself involved both a land claim and a claim to self-government, and the court did not resolve the issue. It sent the matter back to the trial court. The court said, in particular with respect to self-government, that it could not resolve that issue and it sent a very strong message. Quite expressly, the former chief justice, Antonio Lamer, said that these matters should be settled by negotiation.
In other words, the courts can give guidance, they can make decisions about what the legal rights are, but the better place to settle these matters is at the negotiating table.
(Take 2010 Follows -- Mr. McNeil continuing: In my opinion, that is exactly what...)
MA March 22, 2000 36161 Aboriginal
(Tk 2010 ends-- Mr. McNeil: continuing.)
In my opinion, that is exactly what the Nisga'a and the Canadian government and the B.C. government have done. They have been negotiating this agreement for years. It has been a long and hard struggle for them. They have produced an agreement which, in my opinion, is a compromise on all sides. It was a very difficult agreement to reach and this agreement should be respected.
I think the Supreme Court of Canada, if the agreement were brought before it, would respect the agreement. I doubt very much that the Supreme Court would strike down the agreement or the self-government provisions in it when it has given explicit instructions to First Nations and governments in Canada to negotiate these matters.
If the Supreme Court were to strike down the self-government provisions, it would be sabotaging the negotiations. We would be in a situation where these matters would have to be litigated in the courts over and over again. Each First Nation would have to litigate its rights to self-government.
The Supreme Court has said in the Pemajewon decision, in particular, which was decided in 1996, that broad claims of self-government cannot be decided by the courts. The court must look at self-government issues in terms of specific powers.
That means that each First Nation, if it is a matter of litigation, will have to seek self-government powers with respect to every little bit of jurisdiction that it claims. As I said, each First Nation must go through the process because the court has said that these matters are particular to the traditions and the customs and cultures of particular First Nations. On the constitutionality issue, just very broadly, I think the Supreme Court would support the agreement.
I now want to turn to the issue of overlapping claims. I know that quite a bit of concern has been expressed over this issue.
In my opinion, the agreement does deal with this issue adequately. It is not clear to me, on the ground, whether there are valid overlapping claims or not. There may well be. I think that arguments have been made and it is really a factual matter that would have to be established one way or the other. The overlapping claims are there and whether they are valid or not is a matter that is to be determined, I think.
The agreement provides for that in chapter 2, sections 33 to 35. Those provisions say, first of all, that the agreement does not affect the rights of other aboriginal peoples in Canada. In fact, it could not. There cannot be an agreement reached between one First Nation and a provincial government and the federal government that would take away constitutional rights of other First Nations.
The fact that the agreements are legislated, or will be legislated into law if the legislation passes, is not, in my opinion, going to affect other aboriginal rights even if the agreement itself did not provide for that because, once again, those rights are constitutional. They cannot be taken away by ordinary legislation. They can only be infringed by legislation if it is justifiable under a test that the Supreme Court has laid down in Sparrow and other decisions.
The agreement does not affect the rights of other aboriginal peoples; not only that but the next two sections provide specifically for that. First, they provide that if a Canadian court decides that another First Nations has aboriginal rights which are in conflict with the agreement, that the agreement will give way to the extent that those other rights exist. Second, the agreement also provides that if another aboriginal nation negotiates an agreement with governments, with the federal and provincial government, which, in fact, infringe or in some way are inconsistent with the Nisga'a agreement, that the parties to the Nisga'a agreement will return to the table and renegotiate those parts.
There is provision in the treaty both for contrary court decisions on other aboriginal rights and also for negotiated settlements that will or may, in fact, be inconsistent with the Nisga'a agreement. There is a mechanism there to resolve those kinds of disputes.
I do not see the overlapping claims issue as being a problem. I see it dealt with in the agreement. I know that arguments have been made that, well, in the past, the federal government as a matter of policy would not negotiate the claims if there were overlaps. In this case, they have negotiated an agreement even though there are overlapping claims. The problem here is that if overlapping claims must be addressed before any agreements are reached, it could lead to an impasse in certain situations.
Basically, it would give one aboriginal nation a veto over land claims brought by neighbours. I do not think that that is appropriate. I think, in practice, it is preferable if agreements can be reached before handing over overlapping claims, but I do not think they should be an impediment that would prevent any First Nation from going ahead with its own agreement. As I said, the provisions in the agreement itself deal very well and adequately with this issue.
The Chairman: Thank you both for your presentations.
Senator Tkachuk: My concern in regard to this bill and this treaty is the question of just exactly what we are getting here. Not being a constitutional lawyer, I may put this in more practical terms than in your learned paper as to what this treaty is and what it is not.
I want to address concurrent power. From what I understand, we have federal power and provincial power. We have all those powers delegated by those institutions to other forms of government -- municipalities; other Indian bands, frankly; the Yukon. What is concurrent power? This is unique and new; it has never been done. What is this? If it is not a delegated power and if sections 91 and 92 have not been given away by the federal or provincial governments, then what is it? What kind of an institution is it and what will we have in this country when they are all done and there are hundreds of them?
Mr. Ryder: On the issue of concurrent power, the appropriate contrast there is concurrent versus exclusive. I do not think it needs to be bundled with the issue of delegated power which really needs to be compared to the question of whether the powers of self-government are delegated or inherent. They are separate issues and delegated or inherent powers can be either concurrent or exclusive. They are really distinct issues.
Our Constitution, at the moment, is familiar with the idea of both exclusive powers, which is the usual course in sections 91 and 92 of the Constitution Act, but there are also other powers which are concurrent or shared by the federal and provincial governments. We decided here not to take away any power from the federal or provincial powers but to confer concurrent jurisdiction on the Nisga'a nation.
(TAKE 2030 follows, Mr. Ryder continues: I think more relevant for the issues that have been raised before the committee)
(Following Take 2020, Mr. Ryder, the Nisga'a nation. TAKE 2030 begins here, Mr. Ryder continuing.)
More relevant for the issues that have been raised before the committee, however, is the distinction between "inherent powers" and "delegated powers". There has been a great deal of discussion about how this agreement, by dealing with self-government, is part of the land claim and "entrenching powers" is part of the delegated model that characterizes, say, the Sechelt legislation.
That is consistent with our evolving constitutional understanding of the nature of aboriginal self-government. It seems clear to me in the Supreme Court of Canada jurisprudence that the course of an aboriginal right of self-government lies in prior sovereignty and prior occupation of the land by aboriginal peoples. That is their definition of "aboriginal rights". It is not something that is delegated or created by any document enacted by non-aboriginal governments; it is inherent in the distinct history of aboriginal peoples. Not only is the Supreme Court taking that view of aboriginal rights, but the Canadian government has expressed its commitment to viewing self-government powers as inherent as opposed to a creature of federal statute.
The treaty embodies those evolving understandings of the nature of self-government. Frankly, it is not possible to turn back the clock and sit down realistically with First Nations and say, "We are willing to negotiate self-government, but only within the delegated model." The reason for that is the legal understandings have evolved to the point -- and, it is primarily the impact of section 35(1) in the jurisprudence -- where we see aboriginal self-government as inherent in their history as the prior occupants of the land in organized societies. Given that that is the evolving and clearly expressed at this point legal understanding, it is not possible. It is not realistic to propose conducting negotiations with First Nations now within a delegated model. It asks them to give up far too much in terms of their current legal entitlements.
Senator Tkachuk: You are saying that in 1867, when they were drawing up the Constitution, lurking in the background was another power. It is almost like another power that they never considered at the time, but in 1983 or 1982 it was considered and has revolved over the last 18 years into this creature that we now have, called the Nisga'a agreement. You seem to be describing a third order of government here -- that is, another level that we had not considered.
Mr. Ryder: It is appropriate to describe a third order of government. When we say "third order", we already have municipal government. I mean a third order of government that has constitutional status.
I did not mean to take issue with other witnesses who have suggested that the treaty gives constitutional protection to a third order of government, that is true. All I meant to suggest was that it is not new in doing so.
Senator Tkachuk: It is new to me and new to most of us.
Mr. Ryder: There are good arguments, but there is still room for debate -- and, senators have been fully exposed to the debate -- that the aboriginal right of self-government is already recognized in clause 35(1). Therefore, the treaty is not creating is new order of government but it is giving clear definition to it in the form of treaty rights.
Senator Tkachuk: I have a lot to ask here. As you know, I have kept quiet the whole evening and have not used any time at all, but I have been waiting for this because it bothers me.
If the federal and provincial powers of sections 91 and 92 now lie concurrently within this agreement and within this particular governing body with the permission of the Parliament of Canada and the legislature of B.C., you are saying: How much section 91 and 92 powers can we slide over to them? That means we can slide all of them, if we want. At one time, the Indians had their own method of defending themselves. They had their own army, had their own courier service, in a way, and they had their own communication system with smoke signals. I do not know how they did it in B.C., but in the Prairies you can see for miles. That could actually all be given away, could it not? Could all the section 91 and section 92 powers be given away as concurrently into this agreement? That is the logical argument that you are leading me to, namely, that we can secede them all and give them all to them.
Mr. Ryder: As I said at the outset of my presentation, it is important to see this process as being primarily about the reconciliation of the prior sovereignty and prior occupation of Canada by aboriginal peoples, with the assertion of the sovereignty of the Crown. In 1867, because the aboriginal viewpoint was not represented in the negotiations and formulation of the 1867 Constitution Act, we did not take into account the aboriginal perspective. The 1867 act, from the point of view of aboriginal people, says absolutely nothing about their legal rights and entitlements.
What we are trying to do now -- and, what we have been trying to do for many years -- with the 1982 act and the process of treaty making is reconcile the assertion of sovereignty that did not take into account the prior sovereignty of aboriginal peoples. We have, in a sense, rediscovered their rights.
Section 35(3) entitles the Crown to enter into treaties with aboriginal peoples and to have those treaty rights become entrenched and limit the powers of federal and provincial governments. It may well be that there are other constitutional principles and other parts of the Constitution that will restrict what governments can agree to in entering treaties with aboriginal peoples.
We do not need to be concerned about the federal government abandoning its powers entirely. What governments are embarking on here is achieving a compromise between federal and provincial powers of government and the self government rights of aboriginal people.
Senator Tkachuk: Your logic leads me to think that this aboriginal power that has crept into our Constitution has come because in 1867 we did not recognize it. That is to say, it has arrived from somewhere in the past. That is almost an international way of looking at it.
I should l
Respectfully submitted,
JACK AUSTIN
Chair
to the Fourth Report of the Standing Senate Committee on Aboriginal Peoples
[Please ensure that Report is signed before giving it to Page.]
Speaker says:
When shall this Bill be read a third time?
Will respond (Rule 97(4) Rules of the Senate). (At the next sitting of the Senate)
EVIDENCE
EVIDENCE
OTTAWA, Wednesday, March 22, 2000.