Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 6 - Evidence
OTTAWA, Tuesday, May 12, 1998
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-6, to provide for an integrated system of land and water management in the Mackenzie Valley, to establish certain boards for that purpose and to make consequential amendments to other acts, met this day at 10:06 a.m. to giver consideration to the bill.
Senator Gerry St. Germain (Acting Chairman) in the Chair.
[English]
The Acting Chairman: Honourable senators, we have a quorum.
I should like to take this opportunity to welcome the people from the Dogrib Treaty 11 Tribal Council. We have with us today Mr. John B. Zoe, Chief Negotiator. Please proceed and kindly introduce those who are appearing with you this morning.
Mr. John B. Zoe, Chief Negotiator, Dogrib Treaty 11 Tribal Council: Honourable senators, appearing with me today is Mr. Ted Blondin, Land Claims Manager. He is also our resident expert in resource management in the Mackenzie Valley. Mr. Blondin will be assisting in my presentation. Also with me is Mr. Rick Salter, our legal counsel who will be responding to questions about law as it concerns Bill C-6.
I should like to clarify that, in the Dogrib language, when we make reference to the "North Slave area," for the purposes of the elders in the Dogrib area, we will refer to it as "Monfwi gogwa ndeniitle."
The Dogrib are the largest single group in the Western Arctic, with over 3,000 members in four communities. We constitute the majority of people in our region.
Senators, I wish to stress that we have given careful conversation to Bill C-6. Our approach has been guided by three core principles. First, is the principle that Bill C-6 should remain true to its intent and origins. This bill has been the subject of extensive negotiations with the Gwich'in and Sahtu First Nations. The bill in its stated objectives is supposed to carry into law the obligations of Canada that were assumed in 1992 with the Gwich'in land claim agreement and in 1993 with the Sahtu, Dene and Metis land claim agreement.
You have heard a great deal about how the government is legally obliged to enact this legislation to bring into force the land use planning boards and the land and water boards for operation in the Gwich'in and Sahtu settlement areas, as well as to introduce a new environmental review board.
We do not object to the goals of the legislation as claimed. We fully support the implementation of the Gwich'in and Sahtu land claim agreements. Moreover, we know that the Gwich'in and Sahtu only want this legislation applied to their settlement areas. They ask for no more.
What we do object to is the totally unnecessary extension of the legislation to our lands, waters and people without our consent. The land and water board structures that the Gwich'in and Sahtu agreed to for themselves are, through this bill, proposed for application to us as well without our consent and without our agreement. There is nothing in either the Gwich'in or Sahtu agreement that requires anything more than the establishment of their own land use planning and land use and water boards.
This expansion of the bill beyond its origins and beyond its required scope is neither needed nor legitimate.
Our second point of principle relates to the objective, stated in the bill, of bringing about an integrated system of land and water management in the Mackenzie Valley. We do not object to integration. We agree with it. Indeed, we are doing our utmost in our own negotiations to ensure that land use planning and land and water permitting authorities to be established for Dogrib lands in the North Slave region are integrated with other regimes in the Mackenzie Valley.
However, senators, an integrated system does not and cannot mean the imposition of an identical system. The obligation of Canada to legislate for an integrated system that was assumed in negotiations with the Gwich'in and Sahtu cannot and must not be imposed upon the Dogrib without our consent. Yet, as we will demonstrate, that is precisely what is happening in anticipation of this bill being passed as it is now drafted.
The third principle relates to self-government. Unlike the Gwich'in and the Sahtu, the Dogrib treaty negotiations, which are now at a critical stage, address both title and jurisdiction over our lands, waters and people. Our approach is to provide for Dogrib law-making powers, not delegated powers but inherent authorities for the management of our land and resources. Moreover, this is what we have been led to believe that we could achieve in our negotiations -- or at least until very recently. We do recognize and accept that Dogrib titles and powers are not absolute or exclusive, whether of territorial or of federal interests or powers. However, the commitment of Canada to negotiate our inherent right of self-government can mean nothing if it does not mean that the Dogrib will be able to make binding decisions about our own lands and waters.
However, based on the most recent actions by the federal government negotiators, as expressed in their positions tabled at our negotiations, we are now forced to the conclusion that the government's commitment to negotiating self-government is being undermined or clawed back as a result of the intention of the Department of Indian Affairs to have this bill, Bill C-6, prevail over all.
At this point, I would ask Mr. Ted Blondin to give you a brief background on the significance of self-government in our treaty negotiations and what has recently happened to shake our faith in the government's commitments.
Mr. Ted Blondin, Land Claims Manager, Dogrib Treaty 11 Tribal Council: Briefly, I will provide you with the necessary background on why we are so concerned about Bill C-6 and why we are proposing a new approach to dealing with that concern.
As you know, the Gwich'in-Sahtu approach to land claims was largely set out in the 1990 Dene-Metis Agreement in Principle, an agreement that was turned down by our people. The Gwich'in and Sahtu went ahead on the basis of that approach, which is their right. However, a lot has changed since 1990 in the stated willingness of Canada to address a key issue: the issue of self-government.
In August, 1995, the federal government announced its willingness to accept that our aboriginal and treaty rights, as protected in section 35 of the Constitution Act, 1982, include the inherent right of self-government. Two years ago, the Dogrib and the federal and territorial governments signed a framework agreement which said that, within a certain time frame, we were going to negotiate to implement the inherent right of self-government and the use and management of resources in our claim area. We have been trying to negotiate an agreement in principle on the fast track ever since, and we are getting close. Because we are negotiating both self-government and land matters, we are in a fundamentally different position from that of the Gwich'in and Sahtu. Most importantly, we are negotiating an agreement in principle that we, the Dogrib, will have jurisdiction over certain matters relating to land and water -- jurisdiction, not delegated authority that is subject to legislation or override, but real, constitutional jurisdiction.
As our chief negotiator has said, we accept that our jurisdiction will have to work in harmony with others, such as the territorial government and the federal government. However, having jurisdiction, as an expression of the inherent right of self-government, does mean that we will take a different approach to land and water management in our area. It means that the public, delegated system of land management that is set out in the Gwich'in-Sahtu agreement, and as reflected in Bill C-6, will not apply in the same way to Dogrib territory.
I would add that our territories are facing unique pressures for development. We have experienced the biggest rush of claim staking in the mining history of Canada, so much so that these claim-staking activities cover 75 per cent of our traditional territory, and right into one of our communities, Snare Lake.
Over the past few years, knowing that we are in very detailed and sensitive negotiations on our own self-government agreement, we have worked out an interim-protection regime with government. This is working. We are consulted on permitting land use under the existing legislative system.
No one is insisting on a change until our land claims and self-government agreement is completed. There is no clamour or call for Bill C-6 to be brought into force in our area, not by us, not by developers, not by anyone we know. The status quo is working. It is working because everyone knows that it is a temporary way station until our self-government agreement is completed.
Everyone knows that we are looking to develop a special jurisdiction over land and waters, and they are patiently waiting for completion of our negotiations. This is why we are so concerned about Bill C-6. It is in our area, the North Slave, where Bill C-6 would have the most immediate impact. There is nothing requiring Bill C-6 to apply in our area, but it will apply as it is now drafted.
It will impose a delegated, ministerially controlled system based on what the Gwich'in and Sahtu have consented to for their region. We have not been the sponsors of this legislation. It was never intended to apply to us without our prior consent and a treaty agreement.
Mr. Zoe: I turn to the new events that have taken place and which have increased our concerns about Bill C-6 tenfold.
When we appeared before the House of Commons committee last November, we were prepared to state very clearly that we did not, in any way, shape or form, want the system set out in Parts 3 and 4 of Bill C-6 to apply to us. Before we appeared, we were sent a letter from Mr. Moore, Assistant Deputy Minister, Northern Affairs Program in an attempt to reduce our concerns. I would like to table that letter for you now.
As you can see, Mr. Moore, for the government, states that our self-government negotiations over land use permitting should not be prejudiced by Bill C-6 and that steps would be taken to ensure that the land and water regulations of Bill C-6 will not apply to the Dogrib. We relied, in good faith, on the assurances expressed by the government, and we trusted that our negotiations would proceed with mapping out Dogrib jurisdiction over land and water permitting. However, senators, just a few weeks ago, the tables were turned. Just days before you started to examine this bill, we received a new and fundamentally different message from the federal negotiating team at the Dogrib table. All the key concepts set out in Parts 3 and 4 of Bill C-6 were tabled as the new federal position on land and water resource management. Bill C-6, virtually word for word, has now become the new federal negotiating mandate with the Dogrib.
I apologize that we cannot, in good faith, table with you the federal position at our table. That would be a breach of our obligation of confidentiality. If the federal negotiators wish to explain their mandate or table it with you, that is up to them. Mr. Blondin will return to this later.
What we can tell you is that the public delegated system for land use and water permitting that is set out in Bill C-6 is now the new federal position for application to us.
Yet, we have not agreed to that approach. We were not party to the Gwich'in or Sahtu claims. We were not supporters or co-drafters of this legislation. It has been imposed on us in an end run, around what is supposed to be our independent, self-government negotiations.
We are very concerned, so much so that our Grand Chief wrote last Friday to the Minister of Indian Affairs and Northern Development, the Honourable Jane Stewart, to state our deeply felt sense that our right to negotiate self-government is being totally undermined by this legislation. A copy of that letter is being supplied to you, as is my letter to the federal chief negotiator.
As you will see, I have been instructed to take a new approach to this long-standing concern. It is an honest approach and it reflects the real and present danger of the bill to our right to negotiate self-government.
Mr. Blondin: In light of the realities we now face in our treaty negotiations, there is only one way to resolve the core issue regarding the unnecessary and damaging expansion of the land and water management regime agreed to by the Gwich'in-Sahtu to application to other First Nations in our regions. We call for a clear, clean and simple amendment that would allow Bill C-6 to do what it is supposed to do: Implement the Gwich'in and Sahtu agreements while respecting the harmony and sanctity of our Dogrib right to negotiate self-government in these areas.
In our view, this can be accomplished by adding only one clause to the bill. The amendment would have the effect that Part 3, dealing with land and water regulations, and Part 4, the Mackenzie Valley Land and Water Board, would not apply beyond the settlement areas of the Gwich'in and Sahtu unless provided for by agreement.
We propose the following text for insertion in the beginning of Part 3 of the bill:
Part 3 and 4 apply in the settlement areas, and may apply in other portions of the Mackenzie Valley in accordance with the terms of applicable Comprehensive Land Claim Agreements or other agreements between Her Majesty the Queen in right of Canada and first nations other than the Gwich'in First Nation and the Sahtu First Nation.
There is no harm that this amendment would do to the Gwich'in or Sahtu objectives for this legislation. The only thing that would change is that there would be no implied new government policy, no legislative concrete poured over the top of our negotiating table. The departmental officials you have heard from like to say that the bill already protects us from any conflict between our own agreements and this legislation. We have already shown you the reality; the proof is in the actual federal mandate now appearing at our negotiating table.
In summary, senators, we do not want to leave you with an accusation and a demand. It is clear that the accusation is a serious one. It is equally clear that you will want to take your responsibilities seriously and investigate the realities of how Bill C-6 is being used as a hammer in our negotiations. All the letters of comfort, all the conflict-of-law sections and all the notwithstanding clauses in the world do not alter this simple reality. If this bill is passed as is, it will become a new glass ceiling for the government negotiators. In fact, it has already become one.
If this bill is passed with application to us, particularly Parts 3 and 4, it will have the sanction of government policy and of Parliament. There will be a direct consequence in our negotiations, as there already has been. Our capacity to negotiate our inherent right of self-government, to negotiate and integrate a management system in our own terms, will be severely if not fatally undermined.
In closing, all we ask is that you stick to the stated goals of the bill. All we ask is that you honour the obligation of the Crown and of Parliament to not encourage government to engage in sharp dealing. There is no reason or justification to impose the public and delegated system of land management on the Dogrib. The sole obligation is to implement this system for the Gwich'in and the Sahtu. Stick to that obligation.
We have given you a clear, simple and clean amendment that will meet that goal. As far as the honour of the Crown is involved in our negotiations, we do not ask you to simply accept our word that we are being subject to sharp dealing, ask the federal negotiators. We are unable to breach the confidentiality of the negotiation table by tabling the federal mandate and positions. However, that cannot stop you from asking the federal negotiator to explain his mandate. We would not object.
It is only from the federal negotiator that you will hear about this mandate. The departmental officials who have appeared before this committee are not able to speak to the Dogrib negotiations. Only the federal negotiator and his team can do that. Ask them to appear. Ask them if Bill C-6 is becoming the new mandate. Ask them if there is any reason why this legislation must be imposed on the Dogrib.
Senators, we hope to work with you and the government to ensure that the obligation made to the Gwich'in and the Sahtu is honoured. All we ask is that our right to make our own decisions to enter into our own treaty negotiation agreements not be dishonoured in the process. All we ask is that the Dogrib and our homeland, the Monfwi gogwa ndeniitle, be respected.
The Acting Chairman: Thank you, gentlemen. What you are attempting to negotiate is jurisdiction, not delegated authority. Has this ever been done before in any negotiations?
Mr. Rick Salter, Legal Counsel, Dogrib Treaty 11 Tribal Council: I appeared before this Senate committee regarding a previous bill that was passed by the Senate related to the Yukon self-government agreements. The Yukon self-government agreements are based on jurisdiction, not delegated authority. Having been involved in the Yukon agreements for many years, and being legal counsel, I can say with comfort that nothing the Dogrib have put on the table is beyond what has already been approved by Parliament in the Yukon self-government agreements.
The Acting Chairman: Do you want these three letters that you have tabled, Mr. Zoe, to form part of the record?
Mr. Zoe: Yes.
The Acting Chairman: Thank you. It will be done.
Senator Taylor: Thank you for coming all this distance to assist our committee. I welcome you to Ottawa during the tulip season which is about a month ahead of yours.
I first became familiar with your people in 1946. I worked up in the north and have been back and forth many times since. One of the questions that bothers me is that there is only the one big river going through there. I can see jurisdiction on land or jurisdiction on a lake, but I do not see how you could have different jurisdictions over the Mackenzie and the Mackenzie floor. It seems to me that there would have to be some sort of common denominator. We certainly have it for the St. Lawrence Seaway, the Saskatchewan River basin, and so on. Everyone stands up and waves their fists at the beginning, but they realize it all goes together at the end.
Are you suggesting that there be a separate agreement and everyone would have different authority on the Mackenzie?
Mr. Zoe: You are right in saying that the Mackenzie River covers everyone, but in the North Slave area, the Mackenzie River does not touch us except that it goes through the Slave River into the Mackenzie up north. Basically, the area that we are in drains into the Mackenzie.
Senator Taylor: I should have said "Mackenzie drainage system."
Mr. Zoe: As Mr. Blondin said in his presentation, the major percentage, approximately 90 per cent, of the development is happening in the Dogrib area. That is why it is important to have jurisdiction over these things.
Senator Taylor: That leads to another question. You mentioned that Parts 3 and 4 should only apply to the Gwich'in and the Sahtu. When it comes to the Mackenzie basin, were you ever invited to these other talks? In other words, if you follow my original idea that the this should be handled as an unit, that, of course, applies to the other side as well. The government should not go ahead and chop up the river into little pieces. Were you ever invited to the Gwich'in and the Sahtu negotiations where that portion of the drainage system is covered?
Mr. Zoe: No, we were not.
Senator Taylor: Although you are being accused of trying to divide the river, perhaps the government did the same thing by making deals on the river further down.
Mr. Salter: We are not accusing the government of that. We are not talking about dividing up the river. The Dogrib have made it clear that they support Part 5 of the bill which deals with the valley-wide environmental protection, because there is no way you can do environmental protection unless it is integrated, as you pointed out. That is what you are concerned about.
Parts 3 and 4 have to do with the land and water-use permitting, and the land and water-use boards.
Senator Taylor: Is water use not part of that?
Mr. Salter: We are talking about the issuance of land-use permits on lands that will be owned by the Dogrib. As the bill is now drafted, the land and water board will issue those permits, not the Dogrib First Nation government.
Senator Taylor: I say all this because of what happened recently in Spain. I am also interested in mining issues.
Mr. Salter: That is the environmental issue. That would be covered under Part 5.
Senator Taylor: You want authority to issue the permit to the mining companies and to approve the tailings pond. Yet, if that is poorly done, the collapse of the system would pollute the river all the way down.
Mr. Salter: That is true of the whole drainage system, I agree.
Senator Taylor: I do not see how you can separate water use and water permitting from the whole system, and you seem to want to do that.
Mr. Salter: No. The bill is divided up into separate parts for that reason. In dealing with the land-use permitting process, and the land and water board, its jurisdiction is to deal with several aspects. In Part 5, the Mackenzie-wide environmental impact resource board deals with the matters you are talking about, and the Dogrib support that because it must be integrated.
Senator Taylor: I will come back to that later.
Senator Andreychuk: I thank the witnesses for attending and putting their position on the record.
I think it is very clear what you are objecting to and what your long-term objective is. As with Senator Taylor, I have some difficulty with your approach to solving the problem in the interim. If you get the type of land claim agreement that you want, all the rights that you are asking for will be negotiated. The problem is that this bill usurps some of your authority, and sets negotiations in a way that restricts some of your discretion, if I am correct. On that basis, I tend to agree that the answer does not lie in having a certain part of that. I do not think you can divide it up, any more than we could divide up your land claim, as the government is doing. Would we not get into the same mess if we tried to exclude you from certain parts?
Mr. Blondin: We are in negotiations right now. They are supposed to be free-wheeling and cover matters of concern. However, it is not right that a bill such as this sets preconditions to negotiations, and that is what is happening. The letter from Mr. Moore indicates that the bill will not impact on our negotiations, or on our ability to include certain rights as we negotiate them. What is, in fact, happening is that this bill is a precondition to our negotiations, and our negotiations are being hampered on key issues of land and water.
Senator Andreychuk: The Gwich'in and the Sahtu signed agreements and you did not. Have you pursued your land claims continuously since then, or were there interruptions in your land claims negotiations?
Mr. Blondin: In 1990, I was the chief negotiator in the Dene-Metis claim that failed. When it failed, the Gwich'in and the Sahtu began their negotiations region by region. I was privileged to sit in as an observer to the Gwich'in implementation negotiations on this very issue. Even then, the federal government was pushing this, and the Gwich'in were more concerned about things on a regional level.
Other than that, we have not been involved. Since they were drafting this bill, we volunteered to provide some amendments.
Senator Andreychuk: Perhaps I did not make myself clear. Have you continued your land negotiations since the failure of the Dene-Metis agreement, or have you restarting them in the last year?
Mr. Zoe: The first time we decided to get involved in the claim process was in 1992. Since 1992, we have been at the table. Since 1992, we have been involved in the process on a continuous basis.
Senator Andreychuk: If I am correct, you knew at the time the Gwich'in and Sahtu signed, and water was involved in that, that it would have some impact on you. If that is so, did you raise your concern with the government at that time?
Mr. Zoe: It is not a matter of whether we raised it or not. We were assured by the claiming groups that their agreement would not affect what the other aboriginal groups were doing.
Their agreement only deals with certain portions of land and water regulations. The legislation goes beyond what the Sahtu and the Gwich'in agreements call for. As the legislation is based on those agreements, and the legislation goes beyond the scope of their agreements, it is affecting us in our negotiations in a way that the Gwich'in and the Sahtu did not wish.
Senator Andreychuk: Are you saying that the Gwich'in and the Sahtu agreements did not affect your water rights, but Bill C-6 will?
Mr. Zoe: Yes.
Senator Forest: I wish to pursue the letter from Mr. Moore in which he says that he expects to negotiate the scope, extent and relationship of a proposed self-government jurisdiction over land use permitting as it relates to the regulatory regime of the land and water board.
Are you now saying that the federal government has put forward the negotiating position which encompasses the proposed provisions of Bill C-6? Perhaps you do not want to answer that.
In my experience, in negotiations, each side puts forward the best position they would hope for. Considering that those positions are on the table, and the fact that they are assuring you they will negotiate everything, does that not put you in a strong bargaining position?
Mr. Zoe: During negotiations, different positions are taken. We know the realities of the positions that are put forward. This one, in particular, is the reality of it all. This is not a position that is put forward for discussion. This is a position that is being imposed on us on the basis that the legislation will go through. This is all that we can get. We will get nothing more than what is here. We are locked in. We can do nothing about it.
Senator Forest: If the bill were passed before the land claims were completed, there would have to be changes to the bill, otherwise, it would apply.
Mr. Blondin: What was stated in our discussions with the drafters earlier was that, whatever was negotiated in the Dogrib land claims agreement, if our agreement caused changes to be made to that proposed legislation, it could happen then. The federal government is trying to design the legislation so that there will be no need for amendments in the future. They have said that what was negotiated by the Gwich'in and the Sahtu would be reflected in the Dogrib claim. As I said earlier, that sets a precondition to our negotiations.
Mr. Salter: That wreaks havoc with the comfort clause in the bill which is that the land claims agreements will be paramount to the legislation. We know that as a matter of law. However, if the government comes to the table and will not agree to anything in the land claim that differs from what is contained in the bill, it is a hollow promise. I have a hasher word, however I will not use it.
Senator Forest: In regard to the membership and the nomination procedure to the boards that will be set up, there was a concern about there being a limit of seven members on the board. A floor has now been suggested rather than a ceiling. Could you explain your concerns about the membership on these boards?
Mr. Blondin: The Gwich'in-Sahtu claim deals specifically with setting up regional land and water boards and regional land use planning boards. However, there is nothing in the agreement that sets out an overall land and water management board. This is why we say that this legislation goes beyond what is being identified in the Gwich'in-Sahtu claim.
We feel that we must be involved in this because the majority of mining activities take place in our region. Most likely, this board will be dealing with many matters related to our region. This is why, as we stated previously, we are trying to develop an integrated system, a system where we are plugged in. We are trying to design that during the negotiations and we are being hampered by what is being imposed on us by this bill.
Senator Forest: In the briefs from the South Slave and North Slave people, they expressed the concern that there would only be a certain number of spaces so that each individual group would not have its own person at the table. Would it give you any comfort if assurances were given that each group would be represented at the table?
Mr. Blondin: When the legislation was originally drafted, it was suggested that there were five regions and that there would be one representative from each of the regions.
The difficulty arises in that, in our area, the Yellowknives are negotiating a different claim. Surely they want representation. The Metis from North Slave and South Slave also want some form of representation. Therefore, the number of representatives on these boards will become larger. It can only grow.
That is only one difficulty. There are many complicated matters in this bill. We hope to clear up many of these issues in our negotiations. It seems that the bill, as it is worded now, is trickling into our negotiations. I am not sure whether we can ever smooth this out. It will probably continue to be confusing.
Senator Forest: You are hopeful that if your amendment were agreed to, it would protect your autonomy in your region to a certain extent?
Mr. Blondin: We hope so.
Mr. Salter: It would still leave the problem in Part 5 concerning the number of people on the Environmental Impact Resource Board. That is where the numbers game was first played. The Dogrib, before the House of Commons committee, spoke against that because we did not think it made provision for all the groups that would have a valid position to be on that EIRB. It was amended. I think the language now is that it shall be no less than seven. Formerly it provided for no more than 11.
You would have to ask the federal government to explain themselves on that. We have had many discussions with them on the numbers. I think it is a question of their wanting to ensure that they have a situation where as groups come on -- which for the department means they make some kind of agreement and buy into the package -- that they then get a seat, and that until groups come on, they do not get a seat. However, I do not know that for a fact. You should ask the department what they intend to do.
Senator Chalifoux: Thank you very much for coming down here and making this very interesting and important presentation. It is nice to renew old acquaintances from many years ago.
In the last paragraph of your letter to Jane Stewart on page 1 you state:
But in fact the protection that was promised has now proved to be empty. That is because your officials are now using the Bill as the basis of your Chief Negotiator's mandate for our negotiations.
Can you expand on that?
Mr. Blondin: As we said earlier, we are presently negotiating land and water management. When the bill went through second reading in the House of Commons, we were prepared to make some very strong statements. To avoid that, we had meetings with Mr. Moore and that is when that letter came forward. The intent of the letter was to allow negotiations to continue, and not have this bill considered to be a precondition to these negotiations. However, at the latest meeting we had with the federal government, the wording they used in the position they were taking came directly from Bill C-6. Therefore, we feel that the original intent of their letter was hollow, because the bill is having a negative impact on our negotiations. It is hampering the free flow of negotiations.
Senator Chalifoux: I understand you have been negotiating your land claim for approximately six years. How long do you think it will be before it is completed?
Mr. Blondin: We are hoping to present an agreement in principle to our annual assembly in August. However, this is one of the key issues. Land is always an important issue for our elders, so this key area must be addressed. I am not sure whether we will be able to do that by August unless there is a change in the mandate.
Senator Chalifoux: Looking at Senator Forest's map, it appears as if your drainage area flows into the Mackenzie. What is your major concern regarding this bill as it relates to the river that flows into the Mackenzie from your territory?
Mr. Zoe: A number of rivers flow into the lake itself. Some are small and some are large.
Most of the mining activities parallel those river systems. We are probably most affected by anything that happens in the area. As well, we are probably the most knowledgeable about how any development will affect the people downstream.
You asked about how the bill affects our claims negotiations. During the various draftings of the bill, we tried to keep abreast of how it was being developed. From the beginning, we have known from the Gwich'in and the Sahtu are making agreements for themselves. We knew there would be an integrated system of management of some sort. From them, First Nations to First Nations, we were assured that what they were doing would not affect us. We took their word and put a lot of trust in it. We do not have a problem with the First Nations themselves.
The question always is: Is there an interpretation beyond that given by the Gwich'in and the Sahtu? In that regard, we are always seeking assurance from our negotiating team and the federal negotiating team from the department. We tell them that those First Nations are telling us that it will not affect us, and we ask for reassurance of that position. We are dealing with major legislation to implement their agreement. Verbally, we have been assured from time to time, but we are getting down to the crunch. Legislation is about to be passed. We asked if we could get something in writing saying it will not affect our negotiations. It was on the basis of receiving that letter that we toned down our presentation to the House of Commons committee. However, now the legislation is at its final stage.
Until recently, we thought our discussions were going well. The letter says that we are to have our discussions in an open and free environment. Suddenly, the reality is that this has hit the negotiating table and we have no means of having it excluded.
We keep our membership updated. Our Grand Chief, Joe Rabesca is abreast of our discussions.
We were shocked. In probing, we found that the position taken comes from the bill itself, which we were assured would not affect us. Beyond that, we do not know much about why it was tabled or where the impetus for it comes from on the federal side. That is something that the federal negotiating team has answers for, because we do not. All we have is trust in the First Nations, and trust in the letters that we get. We know that we can design something for an area that is largely impacted by this bill.
We wanted some assurance that we could do something which is a little different and still be integrated into the large Mackenzie-Valley-wide regime.
Senator Chalifoux: You feel the amendment you have proposed here would satisfy your fears and would give you some confidence in this bill?
Mr. Zoe: Yes.
Senator Austin: Mr. Zoe, I was very interested to hear you say that you want something in writing to assure you that this bill will not affect your negotiations. I think you deserve that assurance. When I look at the bill and consider your presentation and the letters, my position is that you are entitled not to have the negotiating position you have taken on self-government compromised by the legislation. That is your point. You want to be free without that compromise to negotiate your position. Clause 5 does not quite give you that.
Without going into a long discussion of what you are requesting and what the government has done so far, I would ask you to consider the acceptability of a letter from the minister which says that the provisions of Bill C-6 are in no way to be taken to compromise your deeply-felt sense of a right to negotiate self-government.
I will not ask you to answer that question here. That is for your own position in your discussions with the government. It seems that you agree there must be a joint management system for the resources. You disagree with the imposition upon you of a system which impairs your claim to negotiate entitlement to self-government. That being the case, perhaps the minister could be approached to give you a letter so that this legislation can go forward in its present form.
The system proposed here is a workable and necessary system. I am sympathetic to your submission as made to this committee in that regard. We do not want to lose the legislation or have it postponed for two or three more years. We can never put a time limit on the negotiations. That is not something that is fair to ask.
I wonder whether the committee, through you, Mr. Chairman, could present this evidence to the minister and ask if he would be prepared to provide a letter so that the negotiators would not gain an edge because, as lawyers know, this legislation could then be argued to be some form of consent or assent or precedent of some kind. Only the minister can give an undertaking that it does not have that impact.
The Acting Chairman: You being a lawyer, Senator Austin, I would throw it back to you. I am prepared, as acting chairman, to take your submission to the necessary level to try to obtain the letter which will give the required assurance to the concerned parties. I do not know whether the letter would suffice or whether the legislation is too onerous and too imposing, requiring us to do something further.
Senator Austin: The witnesses would have to agree to the concept and to the terms of the letter. It is a common parliamentary practice for ministers to give written undertakings to committees. This then becomes the evidence that the position has not been conceded on the part of the government. A minister's letter has a different standing from an official's letter, although I must say that, when I read the official's letter, I see that it does not cover your point.
Senator Andreychuk: I took that to be the reasonable course of action in light of the fact that we just had tabled today a letter from the assistant deputy minister, in essence, doing that. Then the negotiations took the turn that they were relying, if I understand, on clause 8(2) which states:
The federal Minister shall, in the course of any negotiations with a first nation relating to self-government, review the pertinent provisions of this Act in consultation with that first nation.
They will use this section of this act to negotiate. In my opinion, it certainly violates the trust of Mr. Moore. As well, it is an affront to the Senate because the government is negotiating, presuming that the bill has been passed. Not only are the Dogrib questioning the intent, but I am also questioning it now. I do not know how we can now frame a letter that gives assurances that the government is not proceeding in its negotiations today on the grounds that the act is a fait accompli. Why should we, as the Senate, accept that word any more than the Dogrib should? How do we get out of this conundrum?
The Acting Chairman: I do not see it as conundrum but rather as a reason for a debate.
Senator Austin: It is critical.
The Acting Chairman: Do the witnesses have anything to say?
Senator Austin: I do not think they should say anything until we are satisfied, ourselves, that we have something to offer them. What I see in reading it is that this proposed legislation does remove from land and water regulation the position of the Dogrib.
I think they are entitled to maintain the position, but the letter from the assistant deputy minister does not make the point that I have made, or even come close to it. We need a minister's letter that says that in no way does this proposed legislation compromise the issue of self-government; and that she fully recognizes the right of the Dogrib to negotiate from their claim of entitlement to self-government, rather than from the supremacy of the Parliament of Canada to impose something on them without their consent.
The position is very flexible with respect to water and land regulation, however they are determined to maintain, without compromise, their belief that they have an inherent right to negotiate a self-government. The minister must provide a letter that clearly accepts that that is their position and that this proposed legislation will not be interpreted in a way that is inconsistent with that particular claim. The negotiations between the Government of Canada and the Dogrib will then proceed without compromising that critical issue.
Senator Andreychuk: Without reference to this bill?
Senator Austin: No, the letter must refer to this bill.
Senator Andreychuk: However their negotiations would be without reference to this proposed legislation. Bill C-6 is simply a bill; it is not a law.
Senator Austin: I am proposing that the bill be passed, with the caveat that the minister will provide an undertaking that the department will not argue that this bill compromises the Dogrib claim to have an inherent right to self-government. That is what I understand to be the principal concern of the witnesses. I believe that the ministerial undertaking would cure what I see to be a just position on the part of the Dogrib. That is a common parliamentary practice.
If we were unanimously agreed as a committee to recommend to the minister that she provide a letter, then the question would then pass to the witnesses as to whether that letter would satisfy them that the negotiating position, in principle, has not been compromised.
The Acting Chairman: For clarification, the Dogrib have made a representation, but we have other groups which feel as impacted on the same issue.
Senator Andreychuk: We still have to hear from other witnesses.
Senator Austin: You leave the minister to decide whether she is prepared to give the same assurances to other claimants.
Senator Taylor: Why not ask the witnesses whether that would be satisfactory?
The Acting Chairman: Do you wish to comment at this time or would you prefer to hear other senators first, Mr. Zoe?
Mr. Zoe: We can wait.
The Acting Chairman: You have been waiting for a long time.
Senator Forest: I share senator Austin's concerns. Not only this group has raised this concern, it was also raised by the North Slave and South Slave peoples.
Certainly, as Senator Austin points out, it is a common procedure. We used it last year in connection with one or two bills.
I would suggest that it is not in conflict with what Mr. Moore stated. It would be going beyond what he said. It would be making a further commitment. Certainly, from our experience last year, the minister did honour the commitment and it did enable the passage of a bill. At the same time, it provided an avenue for addressing the concerns of some of the witnesses. We have heard from three groups that this is a concern and we will hear from others. We will probably want to ask the departmental officials to return to our committee. This is a suggestion that is worthy of consideration.
Senator Taylor: Senator Andreychuk covered clause 8(2) which states:
The federal Minister shall, in the course of any negotiations with a first nation relating to self-government, review the pertinent provisions of this Act in consultation with that first nation.
I would flip back to the definition of "first nation" which states:
...means the Gwich'in First Nation, the Sahtu First Nation or bodies representing other Dene or Metis of the North Slave, South Slave or Deh Cho region of the Mackenzie Valley.
"Dogrib" is not mentioned. Do you consider that definition of first nations to include you?
Mr. Salter: Yes.
Senator Taylor: I am not familiar with the Gwich'in-Sahtu agreement. Is there any sort of favoured nation clause in that agreement that says if we reach an agreement somewhere up or down the Mackenzie, or otherwise, that we have to come back and reopen it? In other words, as you know, there is often a chain reaction; is there a reason for that?
Mr. Salter: The only one I know of is in the Yukon self-government agreement. There is none that I know of in the Gwich'in-Sahtu agreement.
Senator Adams: I would ask Senator Austin if he could restate his position.
Senator Austin: Let me summarize my point. I believe that the submission is well made by the witnesses. What is lacking in the assurances that they have in the bill or in the letter of November 19 is a statement that this legislation is without prejudice to their claim for a right of inherent self-government.
I believe their position is well made that the bill is an encroachment on their right to negotiate from a position of self-government. I do not hear them saying there is anything wrong with water management, however, they do not want their basic starting point to be compromised.
My suggestion was that we ask the minister to provide a letter that basically says that it is recognized that in the Dogrib allowing this bill to proceed -- or anyone else in the same position -- there is no compromise of their claim of inherent right to self-government and that if, as and when it becomes law, this legislation will not be argued as the basis for the derogation of that right.
Senator Adams: That was my first concern. The witnesses from the department attempted to ensure that there was no overlap.
In regard to the clause that Senator Austin is concerned about, a week ago we heard witnesses from the North Slave, South Slave and Metis groups and this was discussed. I am concerned that everyone understands what that means and that there is no overlap.
Before we conclude our consideration of this bill, the departmental officials, perhaps including the minister, should return to address Senator Austin's concern.
The Senate can make amendments, and the House of Commons can either accept them or not. Perhaps this time it would be acceptable to amend certain clauses.
Senator Austin: I should like to see the bill passed, Senator Adams, but without prejudice to the Dogrib claim or to anyone else in their position.
Senator Adams: We all agree with that.
The Acting Chairman: Perhaps we should pass the provisions as they apply to the Gwich'in and the Sahtu and leave all the other groups out. I am not saying we should not proceed with obtaining a letter, but many groups would be left out. In fact, the majority would be excluded, with the minority consisting of the two that have settled their claims. Does that suggestion complicate it, Senator Austin?
Senator Austin: There was a wonderful event in the B.C. legislature many years ago when Premier W.A.C. Bennett was presenting a bill to authorize the construction of what became known as the Bennett Dam. An MLA by the name of Gordon Gibson opposed this, whether rightly or wrongly. He proposed that they amend the bill by removing the bottom 10 feet of the dam.
That is the type of problem you can run into when you do not have a comprehensive water management system. You have a resource that is very important to the people who live in the area. It is not only an environmental resource, it is also an economic resource. There is no dispute over the need to manage this resource for the benefit of the people, but we do have a concern that the Government of Canada is imposing a solution. Even if it is the right one, it is being imposed.
Amongst others, the Dogribs are arguing that this would prejudice their claim to an inherent right of self-government. They must resist the bill if that prejudice is raised. I am looking for a way of removing the prejudice.
The Acting Chairman: They are negotiating under different terms of jurisdiction versus delegated authority. I do not know whether that makes a difference.
Senator Austin: I am saying the same thing. If it is delegated, they lose their claim to an inherent right of self-government. If they agree, that must be done without prejudice to the claim. The decision must be without prejudice.
The Acting Chairman: Perhaps the witnesses would care to comment.
Mr. Salter: I wish to comment on several of Senator Austin's points. I have great respect for Senator Austin, having worked with him when he was a minister of the Crown. The work he did on behalf of aboriginal people while holding that position is something of which many people are not aware, but Senator Austin certainly deserves thanks for that. I am sure that people do not know that many of the impacts and benefits of the agreements made between corporations and aboriginal people are the result of Senator Austin's work in that field years ago when no one ever heard of an IBA. Thank you, senator.
Senator Taylor: Do not overdo it.
Mr. Salter: He is also from British Columbia. We Vancouver boys have to stick together.
There is no doubt that the Dogrib Treaty 11 Council agrees with you on the need for integrated resource management in the Mackenzie Valley. The key protection for the environment is in Part 5. The Dogrib have made it clear that, even though the board that will be established will be a public government board, they support that idea. They do not think you can divide up the environment region by region.
However, one thing has not been made clear, and I do so now. When we talk about the Dogrib inherent right of self-government, we are not talking about something as large as controlling the water system or the environment. The Dogrib, as part of the land claim, will have their own land, like every land-claim group. They are trying to negotiate self-government for their own land so that their government will decide what happens with those lands. The whole purpose behind the Government of Canada's self-government policy is so that aboriginal people can have those kind of controls. As a government, if you cannot issue a land use permit on your own land, never mind the region, then what does it mean to have your own government?
The position being taken by the Government of Canada is that the Dogrib not only have a participating integrated resource management system but that they cannot exercise governmental authority to issue a land use permit on their own land. That, in our view, is going way beyond the need for integrated resource management.
This is a straight question of ideology. The government wants to retain control, not let it be part of the self-government expression, which is strange. That is one key component of the act which passed for Yukon self-government. The Yukon First Nations have the jurisdiction to issue land use permits on their own lands. There is an integrated resource management system with regard to the environment. That was not what was called for when the Gwich'in and the Sahtu made their agreement.
That is what you must ask the federal government. We have no objection to you asking the chief negotiator for the federal government to explain their position.
Mr. Zoe: To add to that, as I stated earlier, we look at the reality of propositions that are laid on the table. When a position is tabled, we know that it derives from somewhere. Usually, it is dictated by the mandate the negotiators are given. We know in this case, because of what they tabled, that their mandate is basically driven by pending legislation. When things change at the table, that means their instructions have changed. I am not familiar with how those instructions are given, or their scope.
We have here with us the senior federal civil servant, David Wilson. He also spends time at the table. I know he is not the chief negotiator, but perhaps he can give us an insight into this without giving away too much. There must be some system which would allow them to change their position.
The Acting Chairman: Senators, as Mr. Zoe pointed out, we have with us, senior federal civil servant, David Wilson. If any member wishes to put questions to him, I would ask the permission of the committee to bring him forward. We are trying to establish a clear position. We should have all the information we possibly can obtain. If the chief negotiator can shed some light on this discussion and support the presentation here today, I would ask for your permission to hear from him.
Since there are no objections, I ask Mr. Wilson to come forward.
Senator Taylor: I will try to make my question as straightforward as possible. Is it possible, Mr. Wilson, to give a band or a First Nation exclusive authority to grant land use permits and not have that possibly conflict with the overall environmental water policy? In other words, can those two exist side by side?
Mr. David Wilson, Acting Senior Negotiator, Dogrib Treaty 11 Claim, Comprehensive Claims Branch, Department of Indian Affairs and Northern Development: Perhaps before I answer your question, I should give you a very brief background of who I am and where I fit into the grand scheme with reference to negotiations.
Senator Taylor: I just assumed that you knew everything.
Mr. Wilson: I am the acting senior negotiator on the Dogrib claim. I was part of the federal inquisiting team for the Dene-Metis claim up to April of 1990 when Ted was the chief federal negotiator. I have worked on the Dene-Metis claim, the Gwich'in claim, and the Sahtu claim, and now I am involved in the negotiating team regarding the Dogrib claim.
I am not the chief federal negotiator. That person is a contract person, but I am the senior federal bureaucrat on the negotiating team.
Within the Department of Indian and Northern Affairs, there is a branch or a sector that deals with negotiations, and that is the sector to which I belong. There is another sector, colleagues who work for the Northern Affairs Program. They are also part of the federal caucus, and they are the bureaucrats who deal with the drafting and the preparation of the legislation. We form two different groups.
I did not come here prepared to make a speech. I would be very nervous about crossing the line between the negotiating point of view and the drafting-of-the-bill point of view. With that caution, I will give you a brief background with reference to how we ended up where we are today with the Mackenzie Valley Resource Management Bill.
In April of 1990, the federal government and the Dene and Metis of the Northwest Territories initialled a final agreement which, had it gone through to its conclusion, would have created a land use planning board, a land and water regulation board, and an environmental impact review board for the whole of the Mackenzie Valley, the five Dene-Metis regions. There would have been one land use planning board, one land and water board, and one environmental impact review board.
In July of 1990, negotiations broke down, and in November of 1990, we received a mandate to negotiate regional claims with those Dene and Metis groups that wanted to continue to negotiate.
Part of our mandate -- and we cannot talk too much about mandates because they are supposed to be secret -- was that the 1990 agreement that had been initialled was to form the basis for the negotiating mandate for regional claims that were to follow. It was a land-claims-only mandate at that point.
We were supposed to regionalize what had been a valley-wide approach to land claim agreements. Part of that mandate was that we would regionalize these boards, but where the minister felt that it was necessary, we could expand the jurisdiction of the board to include not only the settlement area of the claimant group but, perhaps, all of the Mackenzie Valley.
In our negotiations with the Gwich'in and the Sahtu, the Dene and the Metis, these groups did not want to force their views upon any other group which might follow. It was at Canada's insistence that we have an environmental impact review process for all of the Mackenzie Valley because environmental concerns, as you have heard this morning, do not have regional boundaries. Canada insisted that we have a Mackenzie Valley-wide environmental impact review process.
In the Gwich'in and the Sahtu agreements, we ended up with regional land and water boards and regional land use planning boards. However, in the area of land and water regulation, not only did we provide for the establishment of regional bodies, but in those land claim agreements we also provided the option that the legislation which would implement these bodies could expand the boundaries, from a land and water point of view, so that it could be a larger area. It could be the Gwich'in and the Sahtu area together or it could be, as we see in the legislation, the whole of the Mackenzie Valley. That was an option that was included -- not an obligation, an option.
As a result of that, we ended up coming into our Dogrib negotiations. We started to negotiate in January of 1993 and, because of the inherent right policy issue, we stopped negotiating in the fall of 1995. We went back to get another mandate date which was, for the first time in the Northwest Territories, a combination of a land claim and self-government mandate and, since June of 1996 we had been negotiating on that basis. We ended up with a land claim mandate and a self-government mandate and we were trying to blend the two of them together. However, in the area of the Mackenzie Valley Resource Management Act process, while we have been pushing the envelope with reference to the inherent right policy and the recognition, to the extent possible, of Dogrib jurisdiction over matters that are contained within the Mackenzie Valley Resource Management Act process -- land use planning -- we will be able to recognize Dogrib jurisdiction for land use planning on their lands. Beyond that, however, we were bound by our mandate to have it consistent with the Mackenzie Valley Resource Management Act process. We tried to push the envelope, but we can only push it so far.
As to the position that we have tabled with the Dogrib, it is true we were very anxious to get that paper in front of them because we did not want them to miss an opportunity to bring their concerns before you, and so we have tabled that position. This position goes further than the positions that we had tabled with the Gwich'in or the Sahtu, but it does not go as far as the Dogrib would like.
If I can go back to the question with reference to water, as to why the Northern Affairs Program drafted the legislation as it did, putting in the larger land and water board at this point in time, you would have to ask them about that.
I can understand the rationale from a water point of view. Like the environment, water knows no boundaries. I can see the need for a water board that would encompass all of the five regions. Part of the inherent right policy is a statement that it is Canada's preference with reference to the North that, to the extent possible, the inherent right be implemented through public government. That is what the inherent right policy states. That is Canada's preference, this government's preference, with reference to the inherent right of self-government.
We have tabled a position with the Dogrib from a self-government point of view that would recognize the Dogrib jurisdiction over the use, management and control of Dogrib lands. We have not provided the details of that. We still have to work out those details with the Dogrib.
With reference to the provisions that deal with land and water management, the position that we have tabled with them is a Mackenzie Valley resource that is based upon the MVRMA.
The Acting Chairman: You are at the negotiating table as the senior civil servant. Does this legislation in its present form, without an amendment or without a letter as suggested by Senator Austin, jeopardize your negotiations?
Mr. Wilson: Does it prejudice the Dogrib's inherent rights and wishes? Yes, it does. It puts a frame around that. I am in an awkward spot here. We are negotiating on the basis of a mandate that we have been given. That mandate has, as its basis in this area, Bill C-6, the Mackenzie Valley Resource Management Bill. We get that mandate from cabinet.
Senator Forest: With respect to land use and issuing permits, there could be a problem. In Alberta, government can authorize land use, say, for a pulp mill. They have the right to do that but it surely pollutes the river downstream.
Mr. Wilson: Yes. From a water-management point of view, I think the Dogrib would agree that there is probably a need for water management to be universally applied.
Senator Forrestall: There would be a caveat on a land use of that type which would affect the water?
Mr. Salter: Any land use which would have an impact on the environment would have to be covered through the Environmental Impact Review Board which is valley-wide.
Senator Austin: I do not understand that comment or your earlier comment that the Dogrib want the right to issue a land use permit, yet, you see the requirement for an integrated management system.
Mr. Salter: Issuance of a land use permit is a different activity from approving a project through an environmental assessment. Any project that would be proposed that would have an impact on the environment would require to be approved after an environmental assessment. That would be done through the valley-wide Environmental Impact Resource Board.
Senator Austin: What power do you want to retain over that process?
Mr. Salter: We want to retain the ability to restrict Company X if it wants to set up on Dogrib lands, if it is not assessed at an environmental impact of zero. We want the ability to issue the land use permit the same way the Government of Canada does it now. The Government of Canada in the North not only forces the environmental assessments under CEAA but they also, in the end, will issue the land use permit and the lease.
The Dogrib, as owners, would have the ability to issue the lease but not the land use permit, including all the rules and regulations for access and protecting the land. Those are different sets of issues from environmental issues. That is what I mean.
Senator Taylor: You want to be the first hurdle.
Mr. Salter: Yes. That is, within Dogrib lands.
Senator Taylor: There might be a second hurdle.
Mr. Salter: If there is a potential for environmental impact, there is always a second hurdle.
Senator Taylor: There might even be a third hurdle if we have a circumpolar government.
Mr. Salter: I do not know about that.
Senator Austin: You have two objections that we have discussed.
Mr. Salter: There are more.
Senator Austin: Essentially, my simplistic suggestion of a without-prejudice letter is not enough assurance for you to approve of this bill going forward. Is that correct?
Mr. Salter: We are taking your suggestion under advisement. We will discuss it, as you suggested.
Senator Austin: The proposal was stimulated by Mr. Zoe's comment which I have already repeated.
Mr. Salter: We think our proposed amendment is sufficient. That exempts us from Parts 3 and 4 only.
The Acting Chairman: Honourable senators, I would thank the representatives of Dogrib for their excellent presentation.
The committee continued in camera.