Proceedings of the Standing Senate Committee on
Issue 3 - Evidence
OTTAWA, Wednesday, February 16, 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 5:45 p.m. to give
consideration to the bill.
Senator Charlie Watt (Chairman) in the Chair.
The Chairman: Honourable senators, I see a quorum. It has been my plan from the
beginning to step down as Chairman of this committee after we completed our studies on
aboriginal self-government. We have done good work over the last two years. I am grateful
to all the senators who participated. The steering committee has been very helpful in
targeting the witnesses and the subject matters that needed to be addressed.
I am grateful for the help I received from each senator, especially Senators Austin,
Chalifoux, Gill, Pearson, Christensen, Sibbeston and DeWare. Senator Wilson has also been
involved in this committee from time to time. Each time she raised an issue, it was on
I will not disappear. I will remain as a member of the committee. I wish Senator Austin
success in dealing with the Nisga'a bill. I will try to remain useful.
Senator Austin: Senator Watt, before you step out of the Chair, I want to thank you for
the role you have played as Chair of this committee for quite a long time. You have
succeeded in focusing the work of the committee and making real progress. You reported to
the Senate on our work on self-government yesterday. It is a very solid report. Your
energy in getting us there was absolutely required.
For myself and on behalf of all my colleagues, I would express our appreciation for the
work you have done and the direction you have given this committee. It is unfortunate for
the committee that you are stepping down as Chair, but that is your decision. You gave us
notice a long time ago that you wanted to step down after you had tabled the report. We
appreciate what you have accomplished here.
The Chairman: I appreciate your comments, Senator Austin, especially since I have known
you for more than 30 years. I was practically a teenager when I first met you.
Senator DeWare: On behalf of the committee, I too would also like to express my thanks
to the Chairman, Senator Watt, for the time he has spent in looking after the affairs of
aboriginals and of this committee.
Senator St. Germain: Charlie -- I am going to call you Charlie in spite of the fact
that you are the Chairman -- I want to thank you as well. We have had an excellent working
relationship. Hopefully some of our work will benefit the aboriginal peoples in the
country. You are a credible, straightforward guy. I wish you well; and thanks.
The Chairman: Senators, it feels good to have completed our work on aboriginal
self-government and to have tabled our report in the Senate. Until now, I did not realize
that I had so much weight on my shoulders. Today I feel light.
Under the committee's new chairmanship, the Minister of Indian Affairs and Northern
Development now appear before you. Before I leave the Chair, I will table directly with
the minister a copy of our report.
Senator Charlie Watt (Chairman) leaves the Chair.
Ms Jill Ann Joseph, Clerk of the Committee: Honorable senators, as clerk of your
committee, it is my duty to oversee the election of a new chairman.
I am ready to accept nominations.
Senator Pearson: I nominate Senator Austin as Chairman.
Senator St. Germain: I second that motion.
Ms Joseph: Senators, there is a motion before you to elect Senator Austin as your new
Chair. Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms Joseph: Carried.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: Honourable senators, thank you very much for electing me as Chair. The
clerk advises that the resolution must be unencumbered by any qualification, but it is my
understanding and desire, and it is the understanding of the committee that, when we
complete our study of Bill C-9 regarding the Nisga'a Final Agreement, I will step down and
another senator will take my place.
I have been chosen because I am a senator from British Columbia, and I support the
government, of course. My colleagues Senator Perrault and Senator Fitzpatrick were out of
the room when nominations were taken. I will proceed with the local colour that I am
supposed to have in the issue because the bill affects British Columbia.
Senator Andreychuk: Mr. Chairman, Senator Johnson attended for the completion of the
report; she is now stepping down. I would like to nominate Senator St. Germain as
Senator Pearson: I second the motion.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
We have one other item of business. The chair would entertain a motion to approve our
budget for the fiscal year ending March 31, 2000, in the amount of $1,800.
Senator Chalifoux: I so move.
Senator St. Germain: I second the motion.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
Senator Watt: Will that pay for tonight's meal?
The Chairman: That will pay for tonight's meal, although I was hoping to slip it
through under another item.
Senator Watt: As you can see, everyone was on a hunger strike when I was chairman.
The Chairman: We will hear now from Minister Robert Nault, P.C., M.P., Minister of
Indian Affairs and Northern Development. With him are department officials, Mr. Andrew
Beynon, the senior counsel who has been fully involved in the negotiation of this
agreement; and Mr. Tom Molloy, the chief federal negotiator.
Mr. Nault, we welcome you here and we look forward to your evidence and that of your
officials. We know this is a very important bill for the government. I can tell you, in
advance, something that will not surprise you in the slightest, and that is that a number
of senators have a number of questions. I would invite you to proceed.
The Honourable Robert Nault, Minister of Indian Affairs and Northern Development: Mr.
Chairman, congratulations on your appointment.
Honourable senators, it is a pleasure and an honour for me to appear before this
committee to speak about Bill C-9, to give effect to the Nisga'a Final Agreement. This
bill, and the treaty to which it would give effect, mark an historic step forward in this
country's relationship with the Nisga'a people; indeed, with all aboriginal people. I am,
as is the government, proud of this accomplishment. The Nisga'a treaty is a symbol of the
reconciliation that can be achieved through patient negotiation with cooperation,
dedication and partnership -- reconciliation that is critical to moving forward and
building a modern relationship with aboriginal people in Canada.
The Nisga'a treaty is also a symbol of the promise of the future -- a future of great
economic, political and social opportunity. Since it is as important to reflect upon the
legacy of the past as it is to look to the future, the Nisga'a treaty is the intersection
of past and future in a dynamic and modern structure of governance. For the Nisga'a it is,
quite literally, the shape of things to come.
One of the most important elements of the treaty is that it is not a unilateral attempt
by government to impose solutions on aboriginal people. Those days are gone. The Nisga'a
people have been and will continue to be full partners in this renewed relationship. Not
only will the Nisga'a people continue to be full Canadian citizens in every sense, but
this treaty will enhance the participation of the Nisga'a people in the social, political
and economic activities of our country.
In practical terms, the Nisga'a will no longer be relegated to Crown-owned reserves.
They will own their land in fee simple and will use it for the advancement of all their
people. They will be able to create private landholdings -- something that is not possible
with their current Indian reserves. They will be able to benefit from investment in the
resources of the lands that they will own.
No longer will the daily lives of the Nisga'a be governed by the Indian Act. Federal
and provincial laws will continue to apply, of course, but now, instead of the Indian Act,
the terms of the Nisga'a treaty will apply -- the treaty that was fairly negotiated with
the full participation and contribution of the Nisga'a themselves.
Honourable senators, this is the essence of self-government, which is something that I
know this chamber has carefully studied in recent years, and something that I believe is
well recognized as the best opportunity for the long-term advancement of aboriginal people
in this country.
I recognize the profound importance of the role of this chamber in considering Canada's
legislative initiatives. There have been criticisms of the treaty, and many Canadians,
particularly British Columbians, are seeking to understand its full implications to
determine whether the treaty deserves their support.
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.
Honourable senators, as you undertake your review and give careful attention to this
bill, I want to again offer you the full support and resources of the federal negotiating
team so that you can assure yourselves of the facts of the treaty. However, as you begin
your deliberations, I am confident that you will see that the parties effectively balanced
all interests in the careful drafting of the treaty.
Honourable senators, the Nisga'a treaty was negotiated to be fully within the Canadian
legal and constitutional context. Therefore, it takes its place within the legal and
constitutional framework of our country. The Canadian Constitution is the supreme law of
Canada, as explicitly stated in the preamble of Bill C-9. The treaty also explicitly
confirms, in general provisions, paragraph 8, that it does not alter the Constitution of
Canada and, in paragraph 9, that the Canadian Charter of Rights and Freedoms applies to
I note that Senator Beaudoin had already clearly stated his view that this bill is not
a constitutional amendment. This is an important issue but, once again, I am confident
that this committee will be satisfied with how the treaty and the bill deal with these
Honourable senators, the Nisga'a treaty will bring certainty to the Nass Valley of
British Columbia. Certainty is a critical component of any treaty. In the Nisga'a treaty,
we have carefully developed an innovative technique to achieve certainty with regard to
Nisga'a aboriginal rights and title without using the old extinguishment model. The
modified rights certainty technique, developed by the three parties, has been carefully
scrutinized within government and by third parties, and is widely regarded as a solid,
effective alternative that meets the needs of all interested parties. The certainty it
achieves will allow third parties to have confidence in the investment opportunities in
the local resource sector of the Nass Valley. The certainty will also allow the Nisga'a to
form business partnerships and to develop resources within their Nisga'a lands.
Honourable senators, confidence in the business sector leads to financial investment,
and financial investment leads to more jobs and greater prosperity for the local economy.
This is important for all British Columbians and is one of the reasons why I place such a
high priority on negotiating more British Columbia treaties.
Under the terms of the treaty, the Nisga'a government must be open, democratic and
accountable. The Nisga'a would have it no other way, and I applaud them for their vision.
Some critics have expressed the argument that the treaty would establish a system to
segregate Nisga'a people from other Canadians, that it is race-based and would create an
enclave. I strongly disagree. Surely the opposite will result from these treaty provisions
which end the application of the Indian Act for the Nisga'a. This treaty discontinues
Nisga'a Indian reserve lands, ensures that Nisga'a citizens are taxed in the same way as
other Canadians, and ensures the application of all federal and provincial laws within the
Further, the treaty provides opportunity for fee simple land ownership and protects
individual property rights for all those in the area -- either Nisga'a or non-Nisga'a.
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. This is
self-government and an appropriate form of local government.
In the few situations where the actions of Nisga'a government might affect other people
within Nisga'a lands, the treaty requires that those people's interests be fairly
protected. Of course, those individuals will maintain all of their existing rights to
fully participate in existing local, provincial and federal governments. In fact, the
Nisga'a government arrangements do not take away anyone's rights. The Constitution,
including the Charter, will still apply.
The Criminal Code of Canada will apply. Federal and provincial laws will still apply.
Private property will remain untouched, and other land tenure interests will either be
replaced on equivalent or better terms or fairly compensated.
Mr. Chairman, an issue that is very important to me is women's rights. Those are fully
protected in this agreement. In fact, they are enhanced, if you compare the rights under
this treaty to those under the Indian Act, and when you consider the lack of wording
within the Indian Act, as it is today, relating to women's rights.
I know that honourable senators will want to be assured that the aboriginal and treaty
rights of other aboriginal peoples will not be negatively affected by the treaty. The
issue of overlap is one we have dealt with in British Columbia and elsewhere across the
country. There are, in fact, particular provisions in this treaty to ensure that the
aboriginal and treaty rights of neighbouring First Nations are not affected.
As I have just outlined, representatives from Canada, British Columbia and the Nisga'a,
in a spirit of goodwill, have found solutions for the key interests and issues of each
party. Without this shared spirit, solutions could not have been found. Without those
carefully negotiated solutions, an agreement would not have been possible.
Simply put, the Nisga'a treaty provides the Nisga'a with a means to democratically
govern themselves and to manage their treaty entitlements. In my view, that is exactly
what is appropriate for these circumstances.
Over the years, the Nisga'a people have distinguished themselves in a number of ways.
They have demonstrated leadership and commitment through the peaceful, cooperative means
they have chosen for negotiating a treaty with Canada and British Columbia. They have
shown respect for Canadian legal principles and have been instrumental in the struggle to
resolve aboriginal rights issues. The Nisga'a have proven themselves to be capable program
administrators, as demonstrated, for example, by their management of the Nass Valley
Health Board and provincial school district 92.
Mr. Chairman, I am very confident that the Nisga'a will continue to distinguish
themselves under the Nisga'a government provisions of this treaty, and that they will do
their utmost to administer the terms of the treaty effectively and in the best interests
of the treaty beneficiaries.
Neighbours of the Nisga'a, and local political leaders, indicated their support for the
Nisga'a treaty. They complimented the Nisga'a people as good, responsible neighbours, and
indicated their belief that this positive relationship would continue. They noted the
beneficial impact on the local economy of future investment that will result from the
Prominent business leaders mentioned the need for renewed partnership with aboriginal
people and indicated their belief that the certainty provided by the Nisga'a treaty would
create a more positive business climate in the Nass Valley. They anticipated that this
would lead to greater investment and a stronger local economy. Prominent union leaders
seconded this view and indicated their members' almost-unanimous endorsement of this
treaty. After all, a stronger economy is good for everyone.
Prominent legal scholars and academics gave testimony that the Nisga'a treaty has been
negotiated within Canada's existing legal and constitutional framework. They presented
compelling views that this negotiated agreement is the right and proper response to the
challenge of how to resolve Nisga'a aboriginal rights and title.
Honourable senators, I believe that the Nisga'a treaty will be good for the Nisga'a,
and that the interests of the Nisga'a people and their neighbours have been carefully and
properly balanced. We have reconciled differences by negotiating and bargaining in good
faith, and by involving the parties who are most affected by this treaty. That is why
there were approximately 500 consultation and public information meetings during the
negotiations. I might add, Mr. Chairman, that is unprecedented in our modern-day treaty
making with aboriginal people. As I have mentioned before, all three parties have worked
long and hard during these negotiations to find solutions to problems.
Your current review of the facts concerning Bill C-9 and the Nisga'a treaty reflects
the important role that the Senate of Canada plays in Canada's democratic tradition. I
know how seriously each and every one of you takes this role, and I wish you well in your
I would close by reflecting on what has been achieved in the Nisga'a treaty, and on why
I am so proud to be proposing this legislation. This treaty is about reconciliation and
renewal. It is about ensuring that we close the book on the century-long quest of the
Nisga'a people to achieve their rightful place within Canada.
The Nisga'a treaty is part of an ongoing process of strengthening relations with
aboriginal people. It demonstrates the maturity of our nation as we move forward with
respect for, and in harmony with, the aboriginal people who preceded us in this great
land. This treaty represents a wonderful opportunity for all of us to grow together as
Canadians, learning lessons from the past and building bridges to the future.
Cooperation, decency and respect for others are the hallmarks of the Canadian
character. The Nisga'a treaty is in keeping with the values we pride ourselves on in this
Thank you for the opportunity to come before you and for giving your full consideration
to this very important matter. I would be pleased to respond to questions. As you know, I
brought our chief negotiator and our legal counsel with me to answer technical questions
as they might come up. I have found Mr. Molloy, in particular, to be able to quote chapter
and verse as to exactly what transpired during the negotiations. We will do everything
within our power to answer those types of questions.
Mr. Chairman, if you would like the officials at the very least, and myself if
necessary, to come back at the end of the hearings, we would be very willing to do that.
This proposed legislation is so important to British Columbia and to Canada that I would
be willing to do almost anything to ensure that the facts are on the table so that you, as
senators, can make the right decisions.
The Chairman: We will now proceed with questions, and we will start with the Deputy
Chair, Senator St. Germain.
Senator St. Germain: Before I begin, I would congratulate Senator Austin on taking the
Chair. We are both from British Columbia, and I know that we will work for the best
interests of all British Columbians, especially the Nisga'a people, for whom this piece of
legislation and this particular agreement are so important.
Mr. Minister, I thank you for coming. This is not the easiest piece of legislation to
be christened with in a committee. I would like to pose a few questions to you. I have met
with your officials in the past. I know Mr. Molloy very well. He has done an excellent job
of providing us with information.
I am sure you -- or someone in your department -- read the speech that I made on second
reading debate in the Senate. What I tried to do in that speech was provide a checklist of
what I have been hearing in British Columbia. It does not necessarily reflect my thinking
or indicate that I have prejudged anything, it is simply a checklist of what I have been
told by a variety of British Columbians, some who are in favour of the agreement and some
who are against it. It is in that spirit that we go forward. Hopefully we can come to a
resolution as quickly as possible, because it is my understanding that the delay in
ratification is costing the Nisga'a people on a daily basis.
This is such an important issue to British Columbians, Mr. Minister, that we must ask
these questions so that they are on the record and so that British Columbians know that we
are not just rubberstamping this bill. That prospect has concerned many people, especially
in light of the fact that it is virtually impossible to amend the legislation because it
is a pre-negotiated settlement. That is an issue on which I may have some questions later
The Nisga'a Final Agreement is like no other agreement we have seen in Parliament.
Agreements that have been arrived at with the Gwich'in, the Sahtu and the Sechelt were
handled in a different fashion. Why is it that the process has been changed in this
particular instance? Why did we not stick to the process that was non-controversial and
which, I believe, fulfilled the needs of the Sechelt, the Gwich'in, the Sahtu and other
Mr. Nault: Mr. Chairman, I am not supposed to enter into debate. However, I would ask
what the senator means by "controversial". Are you talking about the fact that
it is now part of our landscape constitutionally as opposed to the process that we used in
Senator St. Germain: That is correct, sir.
Mr. Nault: The argument that has been made by First Nations people themselves is that
they wanted to assure themselves that the rights they have under the Constitution would be
enhanced and not able to be changed at the whim of governments. That is one of the major
reasons it has been suggested to us by First Nation leaders across the country that this
would be a more appropriate way to proceed.
As we move across the landscape and look at modern treaties, not just in British
Columbia but in other places such as Quebec, for example, you will find that there will be
an interest by First Nations to assure themselves that these are not administrative
agreements as such, but that they are more reflective of our unique relationship under
section 35(1). We have changed our approach in order to gain the certainty that exists. If
we acknowledge under the Constitution that First Nation people have rights, then there
should be no reason why we cannot proceed by acknowledging that fact in a particular
treaty or a particular piece of legislation.
I do not find this proposed legislation controversial -- some people may -- because it
is already in the Constitution. We are just reflecting reality. I would not see it as
controversial but, rather, as a continuum of our relationship changing over time.
I will provide an example of that, senator. As you know, there are other modern
treaties. In fact, one of our first modern treaties was the Cree Naskapi agreement, which
was passed a number of years ago. We are now in the process of revisiting that agreement
because of unresolved issues. For example, you will find in this agreement that there is
an implementation process. One of the first things we have noticed under the Cree Naskapi
agreement is that there were no implementation provisions in the agreement itself. Thus,
we have made some mistakes in the past, mistakes which we are trying to correct. This is
one of the issues that we think will make it much easier for us.
I could ask Mr. Molloy to give you the legal, technical reason why that is occurring.
However, that is the political landscape as I see it. These are the ways we will each
these agreements; otherwise we will have more difficulty.
You are well aware of and supportive of the Sechelt agreement. At the present time, we
are negotiating with the Sechelt people. They have requested that we not put their
agreement in the constitutional context. That is their choice. They have lived with their
agreement for some 13 years. For the most part, they are accustomed to governing
themselves under that particular piece of legislation, the bill in respect of which was
passed by this place, but which did not have the constitutional protection that the
agreement before you has.
Senator St. Germain: Mr. Minister, you say that this bill is not controversial. Yet,
all the modern-day agreements that were put in place did not generate the controversy that
this agreement has generated. I differ with you on that point. I saw what the Sechelt went
through. I was part of the government at the time. I also watched as the agreements were
reached with the Gwich'in, the Sahtu and the others, and they certainly did not go through
the same controversy.
I think, as do others, that the process we have entered into may pose problems down the
The other point I wish to ask about is the overlap. As far as I am concerned, the
overlap is the major issue. The fact is that the Gitanyow and the Gitxsan are quite
concerned. They have asked if their representatives may appear before the committee, Mr.
Minister, because they feel that their situation will not be resolved in a manner that is
acceptable to them. The argument that will come forward is that there are provisions in
the agreement that provide, if a dispute arises, that the Nisga'a will be compensated in
some other manner for any offsetting decision.
What is happening with the Gitanyow especially, is that they feel they could be 122
years in negotiation, basically like the Nisga'a have been, to resolve their situation.
That would create great uncertainty in a community which requires a lot of economic
assistance and development. The Gitxsan are not as impacted as the Gitanyow because,
according to the Gitanyow, 80 per cent of their land claims would be overlapped by the
When I first met with Mr. Robertson, chair of the B.C. Treaty Commission, I was given a
document which stated that there would be absolutely no agreements entered into or signed
as long as overlap situations and differences existed between neighbouring native bands.
Somewhere along the way the goalposts were moved. I have heard that at some point in the
future it is planned that they will be moved back. I do not know the reasoning behind
that, but I can draw my own conclusions.
There are 50 more settlements in the Province of British Columbia, Mr. Minister, which
have to be dealt with. Do you realize the impact this could have if we continue with a
policy whereby agreements are being signed and huge overlaps of this nature continue to
exist? I would like your comments on that, sir.
Mr. Nault: To be clear for the record, it was the province's policy that was changed,
not the federal government's policy. The federal policy has always been consistent. We
expect First Nations themselves to deal with the overlap.
As you know -- and I will not recite this to you verse by verse -- under the general
provisions of the agreement in paragraph 33 we make it clear that an agreement with one
First Nation will not affect the rights of another First Nation.
We have gone a step further. The final agreement goes on to require a court to read
down any final agreement provisions which are found to adversely affect the aboriginal
right of another First Nation. If it does take 122 years for the next agreement, which I
hope is not the case, the courts can come back and read down the agreement if it affects
another First Nation. We have taken an extra step to protect First Nations without putting
a halt completely on arriving at settlements so that we can proceed with the work that we
want to do. As you have said, senator, there are many reasons why people might not want to
solve their overlap issue, such as political and territorial reasons, as well as their own
negotiations with other levels of government. We have tried to build in these provisions
to assure First Nations who are not part of this agreement that their rights will not be
Senator St. Germain: Did the federal government have representation on the B.C. Treaty
Mr. Nault: Yes. We had our own representative.
Senator St. Germain: Is it correct to say that anything which evolved out of the B.C.
Treaty Commission would have had to have the blessing of the federal government, since it
was being represented on the treaty commission?
Mr. Nault: You must keep in mind that the Nisga'a treatment is not part of the BCTC.
Senator St. Germain: I realize that it is outside of that. However, it was my
understanding that the policies that were set were to be applied to all negotiations that
were in progress.
Mr. Nault: Mr. Molloy might want to clarify that for you, senator.
Mr. Tom Molloy, Chief Federal Negotiator, Department of Indian Affairs and Northern
Development: That is not correct. Each government brings its own policies to the
negotiations. The treaty commission sets the format under which negotiations are
conducted, but the federal and provincial governments come to those negotiations with
their own, often very different, mandates. The federal government and the government of
British Columbia wished to approach overlaps differently. I suspect that the document you
saw with respect to overlaps was one produced by the province.
Senator St. Germain: Speaking specifically of the aboriginal issue and the overlap
situation, although I know that many people do not like to hear this, logic dictates that
this will be the benchmark for other negotiations.
Mr. Minister, if you proceed with a policy of signing agreements with various native
bands where overlaps exist, we will end up with confrontation between native groups
themselves. That is the most important aspect of this whole process with which we must
Mr. Nault: I will take you a little further north to give you an example. We are in
negotiations with a number of First Nations in the Northwest Territories and the First
Nations themselves have been able to resolve those overlaps in the majority of cases so
far. A number of other communities are working toward resolving the remaining overlaps.
Therefore, the reverse of what you have suggested has occurred. In the majority of
cases you will find that First Nations will settle that themselves. It is not correct to
assume that, because in this case one or two communities are having difficulty, this will
occur right across the province. That is not the case in the Yukon or in the N.W.T. We
have been very successful in dealing with the overlap up until now. I would be surprised
if your prediction came true in British Columbia because that has not been the case so
Senator Beaudoin: This as a constitutional amendment because, as we all know, if it
were a constitutional amendment the formula would apply, and that is a very different
formula from the formula required to create a legislative statute. I have no problem with
that. The fact that the Constitution, the Charter and the Criminal Code will all apply is
a very good start.
I have two problems and I should like to hear your views on them. The first one relates
to the issue of dual citizenship and the paramountcy of the current power. In this country
there is only one citizenship and only one power may legislate in respect of that:
Parliament. What does "the other citizenship" mean? Is it related purely
We are not dealing here with individual rights at all; we are dealing with collective
rights. We have few such rights in our Constitution. We have the rights of section 93, we
have aboriginal rights, and now the Supreme Court has added linguistic rights in the
school system. It is obvious that, when we are talking about treaty rights, aboriginal
rights, we are concerned with collective rights, not individual rights, so it is not
exactly the same as an ordinary citizen who has dual citizenship. Many people have dual
citizenship, but in this instance we are dealing with a group.
If the agreement is to the effect that those constitute only the rights of a community,
I have no problem with that because, obviously, if there is a conflict, the Supreme Court
will find that Canadian citizenship is paramount.
Second, here we have concurrent rights and most often the federal authority has
paramountcy. However, in a few cases aboriginals have paramountcy, as stated in the
Nisga'a treaty. That may cause one difficulty. The only reason the Constitution is
respected is because there is no exclusive power. If those powers were exclusive,
obviously they would be invalid because it would go against the Constitution.
However, they are concurrent and that means that the Nisga'a and Parliament may
legislate; the Nisga'a under their collective rights, treaty rights, under section 35, and
Parliament under section 91.24. That is clear cut.
However, there is a paramountcy. Of course, it is not an exclusive power. It means that
if, in practice, there is a conflict it will go before the courts. We cannot avoid that.
The Supreme Court deals with many cases involving aboriginal issues and that will continue
because it is a complex situation and they have a very particular status because of
section 35, which deals with collective rights.
Do you consider that it is a matter of interpretation by the court?
Mr. Nault: I will start with the issue of citizenship. That question was asked by my
own colleagues in cabinet when we first went to cabinet for authorization to proceed with
the agreement. The issue of citizenship was raised by a number of my cabinet colleagues
and other colleagues in caucus.
I would ask you to look at this from a practical point of view. First, the Nisga'a
people believe that they have dual citizenship; they are citizens of Canada and citizens
of their community. It is a fancy way of saying that they are band members. Under the
Indian Act, as you know, people are classified as band members.
One of the objections of the Nisga'a people during the negotiations was that they did
not want to continue to use the Indian Act term "band member". They preferred to
use "citizens of the Nisga'a nation".
It is very similar to being a resident of Ontario and a citizen of Canada. I have
certain rights in Ontario that I do not have in Quebec. One of them is lower taxes, about
which we are, of course, happy.
It should not be looked at as creating a new citizenship outside of the Constitution or
the Canadian family. It is for the purpose of keeping records of who is part of a
community, as we do under the Indian Act today. All of the more than 600 first nations
that we serve have a band membership list. This would be a citizenship list.
Senator Beaudoin: It is community rights.
Mr. Nault: If they are part of the Nisga'a nation, then it is community rights.
However, if someone is a Nisga'a citizen it does not mean that he or she is not a
Canadian Citizen. That is not the intent of this. If that were the case, then those
individuals would not come under the Constitution or the Charter; nor would they have the
ability, as individual Nisga'a citizens, to go to court to protect their rights just as we
as individuals in this room can do.
I would ask Mr. Molloy to give you the technical side of the issue of concurrent power,
senator, because that information will be useful to you. We have had quite a bit of debate
about this with the official opposition, which suggested that there are powers that the
Nisga'a have that will be outside of federal and provincial powers. They say that the
Nisga'a would have unique powers that cannot be accepted by Canadian society.
I would ask Mr. Molloy to provide the rationale behind how this was dealt with during
the negotiations between the three levels.
Mr. Molloy: It is not a question of exclusive jurisdiction flowing in any way, shape or
form to the Nisga'a. It is a concurrent law-making authority only in areas that are
defined by the treaty. There are often circumstances when more than one government has the
ability to pass laws in the same area. We find that the provinces, the federal government
and even municipal governments have an ability to pass laws in the same area. Those laws
sometimes conflict. The courts have established a series of tests to determine which law
prevails in the event of a conflict or inconsistency.
We did not want to leave it to the courts, or future jurisprudence, to decide the
resolution of such a conflict. We have taken each individual law-making authority that the
Nisga'a have that could be concurrent with either the federal or provincial governments,
and we have put into the agreement the test that is to be applied to determine which law
We have specified that, in areas of conflict -- and "conflict" is defined as
where two laws cannot be obeyed without breach of the other -- and in the case of
inconsistency, in certain defined areas, the Nisga'a law will prevail. However, it only
prevails to the extent of the conflict or inconsistency. If there were a particular
section in a statute where this arose, it would be that specific section that would not
apply. The remaining portions of the federal or provincial legislation would continue to
be in force. It is only in the narrowest circumstances of conflict or inconsistency where
the Nisga'a law applies.
For Nisga'a laws to be valid, the powers that they are given are not like the powers
given to the federal and provincial governments under section 91 and section 22. They are
specific and are defined in the agreement. For example, when we talk about the citizenship
question that was raised earlier, the agreement provides that they do not have any
law-making authority concerning immigration, Canadian citizenship, landed immigrant status
and so on. There is a whole list of areas where we wanted to make it clear that they had
no law-making authority.
There are two categories of laws where their authority would prevail. The first deals
with areas regarding the administration of Nisga'a government. In the section on how their
government is structured and what their Constitution must provide, there is a whole list
of obligations that they must fulfil with respect to their government. In the areas of
governance, their laws would prevail.
In relationship to their lands and their assets that they receive from the treaty,
again in those circumstances, their laws prevail. With respect to Nisga'a citizenship,
culture and language, their laws prevail.
They have no law-making authority with respect to the official languages of Canada.
They have no ability to impose obligations on Canada or British Columbia. Their law-making
authority is circumscribed to their lands.
That is one category of law-making authority where their laws prevail. The second
category is in areas where their laws must meet or beat federal or provincial laws or
standards. Those areas include things such as education, child and family services,
adoption, their fishery, harvest and forestry. Again, their law-making authority is given
to them in order for their laws to be valid. However, if they are valid and there is a
conflict or inconsistency, then their laws would prevail, but they must meet or beat
federal or provincial standards.
The rest of their law-making authority is also defined. However, in the third area of
law-making authority, federal or provincial laws prevail.
Another important part about their law-making authority, is that they only have
law-making authority for the items that are specifically spelled out in the agreement. If
it is not in the agreement, and not defined in the agreement, there is no authority. There
is nothing in the agreement with respect to international law, defence and those kinds of
We considered each law power that the Nisga'a sought and, together with the province
and the Nisga'a, we defined specifically each area of law. We recognized that there would
be potential areas of conflict, so then we defined in each specific area the circumstances
to guide the courts in interpreting the agreement in order to provide more certainty
rather than allowing evolving jurisprudence to apply in a number of the areas.
Senator Beaudoin: We have the same system, for example, in the five areas of concurrent
power in our Constitution. However, in case of conflict, it still may go to the courts to
establish to what extent there is a conflict. There is nothing that says that the
paramountcy would apply only in cases where it may be related directly to their treaty
rights. That is my impression. The court will say that anyway. This is one point that will
be left to the court in the final analysis.
Mr. Molloy: It will be left to the court to determine whether or not there is a
conflict or an inconsistency and the extent of that.
We then provided what would occur if the court should find that there is a conflict or
inconsistency. However, you are right, ultimately it is the court that defines
inconsistency, if the parties cannot agree.
Senator Comeau: I would like to bring up a question that I raised with our chairman as
he was spearheading this proposed legislation in the chamber some weeks ago. He suggested
that I come to the committee and ask the question of you. Thank you for appearing before
I will have a short preamble and then a couple of questions arising from the preamble.
My question has to do with the fishery allocation. As I understand it, the treaty
reserves a permanent allocation of approximately 17 per cent of the total allowable catch
to the Nisga'a citizens. I know that your response later may be that a certain part comes
under the harvest agreement, and another part of it comes under the treaty. My
understanding, without going to full numbers, is that 17 per cent is under the treaty.
Having said that, I would like to cite the former Chief Justice of Canada, Antonio
Lamer.This is found in the Gladstone decision of 1996. Justice Lamer said:
It has been unquestioned law that since Magna Charta (sic), no new exclusive fishery
could be created by Royal grant in tidal waters, and that no public right of fishing in
such waters, then existing, can be taken away without competent legislation.
This citation emphasizes that fish are public property and the only way it can be taken
away from the public is by legislation. I think you would agree with me that the Nass
River salmon allocation creates a new exclusive fishery in the legal sense, as defined by
Gladstone. This is being done by legislation, so I assume that we are meeting Chief
Justice Lamer's definition in that we are expropriating it and creating a new exclusive
What follows, however, is that the legislation to implement the Nisga'a treaty can not
be amended by Parliament after it is passed. It permanently removes the 17 per cent Nass
River salmon stock from parliamentary jurisdiction and transfers this authority over to
the cabinet. The cabinet will then assume the federal legislative power to effect
amendments to the treaty. In other words, it removes it completely from our hands as
parliamentarians and hands it over to cabinet.
I have several questions for you. First, can you cite any precedents where
parliamentarians have permanently abdicated such parliamentary responsibility?
Second, given that Parliament is permanently abdicating all legislative authority and
responsibility over the salmon stock to the cabinet, would this not be subject to a
constitutional amendment? As I understand it, parliamentarians have all the power in
world, except to cede their responsibility.
Third, does this treaty not constitutionalize the 17 per cent allocation by placing it
under section 35 protection?
Fourth, are there precedents whereby the government has sought the consent of
Parliament to create exclusive fishery allocations of fish stocks for groups of people? If
so, are these allocations subject to parliamentary jurisdiction? I have not found any
exclusive fisheries examples in my research. I am quite sure you will have found some.
Those are my questions.
Mr. Nault: We were quite prepared for these questions, as they have interested a number
of people. Mr. Beynon has put together an extensive response to your questions.
Mr. Andrew Beynon, Senior Counsel, Department of Indian and Affairs Northern
Development: It is important to start with some of the comments in the 1996 Gladstone case
to which you referred. It is useful to add some extra points about what was also said in
Gladstone. After saying that the Magna Carta has protected a public right of fishing, the
court went on to say:
While the elevation of common law aboriginal rights to constitutional status obviously
has an impact on the public's common law rights to fish in tidal waters, it was surely not
intended that, by the enactment of s. 35(1), those common law rights would be extinguished
in cases where an aboriginal right to harvest fish commercially existed... As a common
law, not constitutional right, the right of public access to the fishery must clearly be
second in priority to aboriginal rights; however, the recognition of aboriginal rights
should not be interpreted as extinguishing the right of public access to the fishery.
Those statements were made in the Gladstone case. However, in that particular case the
court was not dealing with treaty rights. It would seem that those comments have similar
application in the case of treaty rights. Once again, one could interpret it as saying
that treaty rights should not be interpreted as extinguishing the right of public access
to the fishery.
This is somewhat similar to what Mr. Molloy was talking about in response to Senator
Beaudoin in terms of law-making authority. Rather than interpret it as an exclusive
fishery in this legal sense, we would note that the fishery is still remaining open to
recreational fishers and commercial fishing interests as well.
Obviously, the Nisga'a treaty deals with the allocation of Nisga'a fishing treaty
rights, and those rights apply only to the Nisga'a. The fact that those rights apply only
to the Nisga'a would not, in our view, in law, amount to creating an exclusive fishery
because it simply does not deny the public right of access to the fishery as well.
Senator Comeau: Are you saying that by creating an exclusive 17 per cent allocation, it
is not creating an exclusive fishery? I just want to be absolutely sure that is what you
Mr. Beynon: That is right. Fishing activities by persons who are not Nisga'a citizens
are not part of the Nisga'a fishery, and their rights would continue to be dealt with
under the ordinary law. Whether it is other groups who may be fishing pursuant to their
aboriginal or treaty rights or non-native persons who would be acting as either commercial
fishermen or recreational fishermen, the exclusivity of being a Nisga'a citizen does not
mean that those other fisheries are eliminated.
There is nothing in the terms of the Nisga'a treaty that would require the Department
of Fisheries and Oceans to close the Nass River fisheries or prevent other members of the
public from continuing to have public rights of navigation on the Nass River.
Legally speaking, it is not an exclusive fishery because the Nisga'a would not have any
authority to close any portion of the Nass River fishery or to prevent fishing on the Nass
River by any other group. That is to say, there is no property interest in terms of the
Senator Comeau: There cannot be because property is a provincial jurisdiction.
Mr. Beynon: True enough, but this treaty was negotiated with the participation of the
province. Yet, there was no carving away of a portion of the river from other users.
I wish to add a couple of comments in respect of the other questions that you raised.
You asked whether or not the creation of the Nisga'a fishing rights would permanently
remove any parliamentary authority in respect of that fishery. If you look at the terms of
the text of the fisheries chapter, yes, we do specify certain rights in respect of fishing
for the Nisga'a but, at the same time, we make it very clear that the Crown -- and, in
particular, the Minister of Fisheries and Oceans -- has an ability to impose federal
fisheries laws in respect of the Nisga'a.
Senator Comeau: I never questioned that.
Mr. Beynon: All right.
The only other comment, then, would relate to whether there are precedents for
Parliament creating an exclusive fishery. We do not believe that we are creating an
exclusive fishery here.
Senator Comeau: The 17 per cent salmon allocation is not then reserved for the Nisga'a
citizens, is it? You are saying that there is no reserve of 17 per cent of the allocation
of fish to the Nisga'a.
Mr. Beynon: I would not agree with it being characterized that way.
Senator Comeau: If it walks like a duck, and it quacks like a duck, it is not an
elephant or something else. Is it an allocation or it is not? If it is an allocation, then
it is an allocation.
Mr. Beynon: I agree with your view that there is an allocation to the Nisga'a and that
they are getting some treaty rights to fish. However, I would not agree with the legal
characterization of it as an exclusive fishery contrary to the Magna Carta.
Senator Comeau: Justice Lamer is a noted authority on this subject. Do you have
secondary legal opinions other than your own on this, or did you seek the opinions of
constitutional experts about what Mr. Justice Lamer said? If so, could you table those
Mr. Beynon: I am not sure if I am allowed to refer to what is subject to
Senator Comeau: It would be very helpful if you could do so.
The Chairman: You can certainly say whether you have consulted other counsel with
respect to these issues. However, you do not have to name them.
Senator Comeau: Do not say "trust me."
Mr. Nault: I would never say "trust me;" it does not work well in aboriginal
I can say that we have sought legal advice, and we have also been given lots of legal
advice by constitutional scholars as we have gone through this process. Senator Beaudoin,
who would probably be included in that category, has been giving us advice as well.
Have we hired someone specifically outside of the Department of Justice? As I
understand it, no.
Senator Comeau: I want to make this final point. I do not want to belabour this too
long. We do have a legal opinion from the Department of Justice which says that this does
not create an exclusive fishery. From everything that I have read, and I have been dealing
with these kinds of questions over the years, whenever you allocate a certain amount of
fish to a group in Canada, it is called some kind of an exclusive fishery if you exclude
others from fishing that allocation of fish. It certainly looks like an allocation to me
and an exclusive fishery in the process. Historically, it has been the prerogative of
parliamentarians, not the cabinet, to make amendments in this area.
You are suggesting that this is not an allocation or an exclusive fishery. We will have
to accept your rendition of this. I am still not satisfied. I would like to be able to, at
the end of the day, feel confident that we are signing off on a bill that will withstand
the test that will be placed before it, especially as there is now a case before the
Supreme Court of British Columbia that is completely contrary to what you just said a few
minutes ago. That case is now waiting for the passage of this bill. There are legal
opinions out there that say that you are wrong. I would like us to feel comfortable that
this is right and that we should pass the bill, and I do not feel that way. I will be
leaving tonight not much more confident than I was when I came in.
If you have any legal advice from constitutional experts who have said that
parliamentarians are not abdicating their responsibility and that what is being proposed
is fine, then I would be glad to have that.
The Chairman: May I say, Senator Comeau, that we will not consider the issue resolved
Senator Comeau: It certainly is not, in my view.
The Chairman: We will return to it as the evidence develops. Officials will consider
your comments, and I am sure they will be back here. Two points were raised: the historic
reservation of the public fishery; and the delegation of authority to the executive.
Senator St. Germain: I have no doubt that the Gitanyow will apply for a fishery on the
Nass, as will the Gitxsan. How will this impact other fishers, the non-native fishers?
Will they share in the 17 per cent, or will they be given an additional allocation? In
theory, 100 per cent could be given away. Where does that leave the other fishermen in
Mr. Molloy: First, the other aboriginal groups to which you refer already have an
amount of fish that they take under their aboriginal rights. In working with the
Department of Fisheries and Oceans, the percentage that was agreed to in the Nisga'a
negotiations has taken into account the aboriginal users that are on the Nass River. There
are not many, and they are not large users. We have taken into account the commercial
fishery that exists on the river, as well as the recreational fishery. It is the same
formula that was used with respect to the province in agreeing to wildlife allocations.
Consideration was given to ensure that these other fisheries would continue to exist on
As a percentage, of course, the catch goes up and down. It is not a fixed number of
fish. It is 17 per cent of whatever is available to be harvested. Any right they have to
sell the fish depends on there being another commercial and recreational fishery. If the
fish stocks increase dramatically, there is a cap on the total number of fish that they
Senator Comeau: I think the Minister of Fisheries and Oceans, in reading over this
testimony tonight, may hear from a Justice Department official suggesting that an
allocation to a group is not considered an exclusive fishery. The minister may, in fact,
now be able to do what he has been trying to accomplish for a number of years. I am not
referring to this particular minister. Many ministers of fisheries have wanted to allocate
stocks of fish to certain groups and, up to now, we have been able to prevent that. This
may open the floodgates. I think your justice officials should be very careful what they
give to the Minister of Fisheries who, by the way, has absolute discretion to grant or
take away a licence to whomever he wishes. If you are now giving the minister the right to
create exclusive fisheries or to allocate fisheries quotas, you must be very careful.
Mr. Beynon: I can perhaps just follow up with the comment that I offered the comments
in respect of the Gladstone case, particularly in the context of aboriginal and treaty
rights to fish and the way that they are crafted in this treaty. I am not commenting on,
generally, the commercial fisheries and taking away rights or the transference of rights.
Senator St. Germain asked a question in respect of other fisheries and aboriginal
rights to fish. Again, I agree with what Mr. Molloy said, but I would also point out the
general provisions. Once again, paragraph 33 says that nothing in the agreement affects
the aboriginal rights of other groups. When you look at the fisheries chapter including
all of the allocations, you must bear that particular provision in mind.
The Chairman: There is no question but that we will revisit the subject before we
Senator Tkachuk: Mr. Minister, the question that Senator St. Germain raised was the
idea that the form of government itself is within the treaty. I think you explained that
they wanted this protected. I think this is the issue that bothers many of us, at least
from what I could gather from the speeches in the Senate chamber. This was a fairly large
shift in federal thinking because all of the other previous settlements were by delegation
of authority by Parliament rather than the powers being set out in the treaty, which I
believe then falls under section 35.
You may not wish to speak on behalf of British Columbia, unless you know, but why would
the Government of Canada and the Government of British Columbia lock themselves into an
agreement which deals with the exercise of jurisdictional powers which cannot be changed
without unanimity? Why would the federal government do that?
As well, what are the practical differences between the type of government established
here and a third order of government which would have been established had the
Charlottetown Accord been implemented?
Mr. Nault: I am not sure I want to get into the Charlottetown Accord since it did not
get too far.
Senator Lawson: You have two lifelines.
Senator Comeau: Is that your final answer?
Senator Lawson: Do you call another minister when you call a friend?
Mr. Nault: I am not quite sure I understand the concern of the committee members. If we
accept the fact that First Nations people have rights that are already in the
Constitution, why would it make people uncomfortable to learn that we are entrenching a
right which we are simply reaffirming? I am not sure why that seems to cause a problem for
people. All we are doing is reflecting the reality that presently exists in the box that
we created, which is the Nisga'a Final Agreement, and the treaty itself. We define the
rights that exist under section 35. If it is not acceptable to define them, to bring
certainty to issues that need to be dealt with, then how do we get to the conclusion which
I think the business community and average Canadians are looking for? That conclusion is
certainty as to how our relationship would move from a position of where Delgamuukw is
suggesting title and other things, to no treaties at all; no relationship in a modern
context with a modern society, as we see it under this particular agreement.
The jurisprudence that we have had since the previous governments -- Delgamuukw being
one -- has certainly driven our interest in bringing certainty. One of the best ways to do
that is to define the right as a constitutional right.
Senator Tkachuk: You answered with a question.
Mr. Nault: That is the Jewish way, by the way. I have a friend, a former mayor of
Kenora, who said, "Always answer a question with a question and you will see what
kind of response you get."
Senator Tkachuk: Let us go through this one more time. My concern is the fact of
certain aboriginal rights which are stated in many treaties throughout this country, but
in this particular treaty it is not just aboriginal rights, it is aboriginal
self-government. I referred to the Charlottetown Accord because the people rejected that
concept which the federal government proposed.
The question was: What are the practical differences? I do not think you have explained
those. Two questions were raised: the question of citizenship, and the question of
fisheries. The responses to both those questions left me as confused as I was when we
started. I am sure that we are all sitting here wondering what are the answers to these
questions. Therefore, this is a problem.
Let me go through this one more time. What are the practical differences between what
the people rejected in Charlottetown and what is in this agreement here, or are there no
differences whatsoever? It would be fine if you answered the question that way. Why would
you cede power in an agreement, power that you can never get back, which falls, under the
Constitution, under federal jurisdiction?
Mr. Nault: As I understand, in the Charlottetown Accord -- and I cannot speak for the
millions of Canadians who voted against it -- there was a broad definition of
"self-government". This is a specific piece of legislation with a significant
amount of complicated detail as to how our relationship will be defined. That is the first
point. I do not think you can compare what took place at Charlottetown and what we are
doing this evening with this piece of legislation. It would do a great deal of injustice
to the work that has been done in the last number of years.
As I said at the beginning of my comments, I cannot not speak to the reasons why people
decided to vote against Charlottetown, however, I am of the view that they did not vote
against defining aboriginal rights. What we are attempting to do here -- whether we
consider it to be controversial or not -- is define the relationship based on aboriginal
rights, aboriginal title. We are attempting to define, in a modern context, what a
self-government relationship would look like. That is what this agreement is about.
I can try again to deal with citizenship, but I thought I explained it fairly clearly.
The term "citizenship" is the fancy way of saying "band member". We
have been dealing with that now for over 100 years under the Indian Act. We probably have
a number of band members in this room who can show you their status cards. That is exactly
the same thing. There are no special changes to the citizenship requirements, as has been
pointed out by Mr. Molloy, which should give you any concern that I can see.
Senator Tkachuk: On the question of jurisdiction, the agreement seemingly cedes powers
from both the provincial and the federal governments to the Nisga'a. Where does the
Constitution Act, 1867, indicate that the federal government can surrender power to
another government, which power cannot be unilaterally retrieved by the federal
Mr. Molloy: With respect, I do not quite follow how you can say that the federal
government has ceded or surrendered powers to the Nisga'a. I tried to explain at the
beginning, when I dealt with this, that it is concurrent law-making authority. The only
time that a test is applied to the laws as to which law prevails is with respect to a
conflict or inconsistency, which is a matter that the courts must do any time two or three
law-making authorities in Canada pass laws that are in conflict with one another. The
provinces, the federal government and the municipalities often pass laws where there are
conflicts and the courts have developed tests over which law prevails. Rather than leaving
it up to the courts to determine which law prevails, in certain circumstances we have
defined when the Nisga'a law would prevail. It is not a question of ceding or surrendering
or giving away any jurisdiction. The power remains fundamentally with Canada and with
Senator Tkachuk: I will just end this with these two points. The first relates to the
meaning of culture and language, and the extent to which paramountcy in this legislative
area leads to paramountcy in all other areas, for example, schooling. Second, when you
talk about the application of the Charter in the treaty you add the words, "bearing
in mind". Why would you not just say that the Charter applies? Why would you add
"bearing in mind"? What does that mean?
Mr. Molloy: With respect to the Charter, that language is the same language that
applies to other governments in Canada. Basically, it tracks the obligation on federal and
provincial governments with respect to the Charter. The language provides, as do the words
in the Charter, a test which the courts will apply in determining whether or not the
Charter has been complied with. In other words, there are measures which the courts must
consider in applying the Charter to any given circumstance.
Senator Tkachuk: Does that apply to culture and language?
Mr. Molloy: You have asked the question in relation to education. With respect to
education, there is a whole series of requirements with which the Nisga'a law-making
authority must comply. The teachers must be acceptable to professional organizations, and
have the same standards and training. The curriculum must be such that it allows students
to move freely into other schools within British Columbia, and allow them also to move
into post-secondary education, and so on. I am having a hard time relating the example to
Senator Tkachuk: You say that the question of education is dealt with almost as if it
does not come under provincial jurisdiction but, of course, it does.
Mr. Molloy: With respect, Mr. Chairman, the agreement specifically sets out the
requirements that it must meet under provincial legislation, and once the Nisga'a comply
with all of the requirements of provincial legislation, then they have the ability to make
laws. Therefore, they may pass a law with respect to the certification of teachers to
teach the Nisga'a language or the Nisga'a culture within the school system, but, as I say,
that is an exception. In all other respects, the teachers must meet the requirements of
the Province of British Columbia.
The Nisga'a have, in fact, run their own school board, and their school board is part
of the British Columbia education system under the Education Act, and they have been
involved in it for over 20 years.
Senator Andreychuk: I wish to return to the point Senator St. Germain raised with
respect to the overlapping jurisdictions.
Can you tell me whether the way you dealt with overlapping jurisdictions under this
agreement is different from how you did it in the Nunavut agreement where there were
overlapping claims; and in the umbrella Yukon agreement where there are still disputed
areas of overlap?
Mr. Nault: Senator, you lucked out tonight because, of course, Mr. Molloy was also the
chief negotiator on the Nunavut process, so he can tell you exactly how we deal with both
of these processes.
Mr. Molloy: With respect to the Nunavut agreement, for all intents and purposes, we
followed the same policy that we find in the Nisga'a treaty. There are some slight wording
differences, but we believe that the overall legal effect of the clauses in this agreement
and the Nunavut agreement are the same. As I say, the approach that we took with respect
to overlap was the same.
My recollection of the Yukon agreement is that there are some slight differences in
approach. It requires that there be some resolution of overlap before First Nations can
select lands within the overlap areas, bearing in mind that all of the First Nations that
are affected are part of the umbrella agreement in the Yukon. Thus, it is not as if we
were dealing with individual groups, as we were in Nunavut and in British Columbia.
If I might add, on the overlap issue, there were more overlaps than with respect to the
Gitanyow and the Gitxsan. There is a large overlap with the Tsimshian Nation as well as
with the Tahltan, and agreements have been reached by the Nisga'a and those two First
Nations with respect to those issues.
Senator Andreychuk: When I recall the Yukon agreement coming through here, the nations
that disputed the agreement were minorities within groups. Here you have not settled with
certain "total" groups, if I can refer to them in that fashion.
Mr. Molloy: The difference is that in the Yukon, we were dealing with one agreement
covering, I believe, 14 First Nations which were all part of an umbrella agreement that
set out the overall rules under which they would be conducting the balance of their
negotiations. Therefore, a different approach was used there than there was in the Nunavut
agreement and as there has been in the Nisga'a agreement.
Senator Andreychuk: Perhaps this could be reviewed, because there were also some groups
from British Columbia that were not covered under the umbrella agreement in the Yukon. It
would be good to compare how those overlaps and competing claims were dealt with to
determine if there is anything unique or different in this one or whether we are following
a pattern. I would like some advice on that.
Mr. Nault: Over the next number of days, we could give you a breakdown as to how we are
proceeding in different parts of the country.
If I may, this would be a good opportunity to return to one of the statements that was
made by Senator St. Germain which suggests that this is somewhat of a template. You are
basically answering the question for us that, in fact, there is no template. We look at
the issues based on the First Nations themselves, based on the history of the relationship
with the Crown, and we deal with it.
I want to tell you something else as well because it is important. In Quebec, we are
now close to entering into a process with the Algonquin which will be different again. The
entire objective is to define the rights that we say exist. We do say that there is an
inherent right to self-government but it is our objective to negotiate what that will be
in the modern context.
It will be different in different places. It will even be different in different places
in British Columbia because, as you can imagine, negotiations with a First Nation in
downtown Vancouver will not be the same. That would probably be the first obvious place
for you to consider as we start to move across the country and deal with First Nations in
We will need to accommodate the needs of non-native people. Certainly, we have a policy
that suggests that there will not be an ability of the government to remove the rights of
non-native citizens, and that it is a "win-win-win" situation, as we like to put
it. We will not ask people to leave land that is under dispute, or things like that.
Therefore, there are a number of initiatives and different ways by which we are
I am pleased that you have asked this question because it does give us an opportunity
to make it very clear that the Nisga'a agreement is not a template for any other
agreement. If you ask First Nations in British Columbia, they will tell you, "We
support the Nisga'a treaty, but do not think that that is where we are coming from because
we have a very different approach," and so we will look at the situation based on the
interest of defining the relationship on cultural and historical needs.
Senator Andreychuk: I want to return to the question of citizenship. When we dealt with
that in regard to the Yukon umbrella agreement, the Aboriginal Peoples Committee struggled
to determine what "citizen" meant. If my memory serves me correctly, we were
told that that was the first time that the word "citizen" was used. When we
pressed departmental officials, they simply said that there was a word in the aboriginal
language that meant "band member" or "community right", and that it
translated into citizen of that nation or of that group, and therefore they used the
English equivalent "citizen". At that time, we said that was terribly confusing,
that it would be a red flag in the eyes of Canadians because it gives the impression that
native people are leaving the country or somehow have different or special rights that may
supersede the rights of the rest of us.
I am wondering, again, why you would have used the word "citizen" and
referred to "citizenship", and why you did not just borrow the Nisga'a word, use
the tribal word, in the same way we borrow words from all kinds of languages that we
cannot quite translate. Then you could have defined what it meant for the purposes of the
We now have the second example -- there may be more but I only know of two -- where we
use the word "citizenship". It seems to me folly. We should use the native
historic word, which will become our word, as so many other words have. Would you care to
comment, Mr. Minister?
Mr. Nault: I do not know if, under the rules of Parliament, we are allowed to use First
Nation words in legislation as opposed to French and English. I will check that out. The
objective is to use it in the same context as "band member". We continue to say
that because it does not provide any special rights, if you want to put it that way. We
have a unique relationship which we have always maintained. If we did not have such a
relationship, they would not be under the Constitution.
I need to go back to give you a more thorough answer to ease your mind. I do not see a
red flag when someone says, "I am a citizen of the Nisga'a people, and I am a citizen
of Canada." It is like saying, "I am a citizen of the Province of Ontario, and I
am a citizen of Canada." I do not get uptight when someone from B.C. says, "I am
a citizen of B.C." I do not quite know the difference between the two.
Senator Andreychuk: I suppose I travel slightly different roads from you. Many people
across Canada are struggling to find some unity in Canada. We rally around symbols of
citizenship. This, of course, is therefore the comparison. As I say, I understand your
intention which is to define what individuals are within their own group and to set out
what rights they get as a result. However, using the word "citizenship" has
created an argument.
Mr. Nault: Senator, you are probably referring to page 19 of the agreement where, under
paragraph 15, it states:
Nisga'a citizens who are Canadian citizens or permanent residents of Canada continue to
be entitled to all of the rights and benefits of other Canadian citizens or permanent
residents of Canada, applicable to them from time to time.
You might want to ask your question of the Nisga'a people when they appear before you.
This is the second time in the last number of months that this has been flagged as a
potential problem for parliamentarians. I am not quite sure why that is, when it is meant
to be a term that includes "Canadian citizen".
We do not believe it will cause us problems in a legal context. However, from a
terminology point of view, perhaps we, as we have done with certainty, could modify the
way we do that. We could try to combine the interests of Canadians, if it is causing some
concern, and deal with that issue as we go forward with other agreements.
As you have said, you have seen this in a couple of agreements. We are dealing with a
number of others. If this matter continues to be raised, I would like to have a better
rationale, I suppose, to some extent. Is someone saying, "Now you have created
citizens within citizens of Canada"?
Senator Andreychuk: Yes.
Mr. Nault: That is more of a perception than a legal problem.
Senator Andreychuk: The feelings expressed state, "We want to be equal. We want to
be treated fairly and justly in this land." There is the feeling that
"citizen" conjures up some special rights in a way that diminishes others in the
If they are citizens of Nisga'a, are they still citizens of Canada? That is what I am
being asked. I do not know if it is a question of educating the public. However, it
creates a significant amount of unease.
You might think back to when a certain Prime Minister wanted to eliminate dual
citizenship. You will then understand why the word "citizenship" is such a
loaded concept. It is one that lawyers look at in one way while we may be looking at it in
another. The average person puts a lot of stock in the word "citizenship". There
is pride in becoming a citizen, if they come to this country from another. There is pride
in being born on this soil.
Perhaps there is no basis for their unease, but they are uneasy about the use of that
Mr. Nault: In my previous life, before I became a member of Parliament, I was a town
councillor. On a regular basis, we used to refer to people in the Town of Kenora as
citizens of Kenora. That did not cause flags to be raised all over the place. Thus, I am
not sure why it is okay in the non-native Town of Kenora, where we are all citizens of
that particular community, but it is not acceptable to call people who live in the Nass
Valley citizens of the Nisga'a community.
Senator St. Germain: The term is "Nisga'a Nation".
Senator Andreychuk: If you were a councillor today and you were to advise that the
citizens of Kenora would have a special act passed in Parliament and that their rights
would be identified, I can bet you a significant number of people would stand up and take
Mr. Nault: There is an act called the Municipal Act which applies to the Town of
Kenora. The citizens of Kenora govern themselves by it. There are also a bunch of by-laws.
That is not much different from what we are talking about this evening.
Senator Andreychuk: I suggest this in trying to aid the successful passage of this
bill. I think it is either a misconception or an emotional issue that must be dealt with.
We ought to take that into account.
Will this act extinguish all fiduciary responsibilities toward the Nisga'a by those of
us in Parliament who feel very strongly about our fiduciary responsibility to the
Mr. Beynon: The Supreme Court of Canada has described, on a number of occasions, the
fiduciary relationship between Canada and its aboriginal peoples. That legal principle
would continue because the Nisga'a will still be aboriginal peoples of Canada.
What the Supreme Court of Canada has done is identified a broad fiduciary relationship
between the Crown and aboriginal peoples. In particular cases, such as Guerin, it has also
identified fiduciary obligations. It is important to distinguish the two. Under the terms
of the Indian Act, the court dealt with the exact nature of fiduciary obligations that
flow from the wording of the Indian Act.
The Nisga'a treaty will make significant changes. One of the key changes is to
eliminate the reserves and to virtually eliminate the application of the Indian Act. Thus,
the fiduciary obligations of the Crown under the Indian Act will be gone. For instance,
the Guerin case turned on a golf club lease which was mishandled by the federal
government. Canada will not be doing the leasing of Nisga'a lands. That particular fact
pattern and that fiduciary obligation would not apply.
In summary, the fiduciary relationship with aboriginal peoples is still there. The
nature of the particular fiduciary obligations at law flowing from statutes and so on will
The Chairman: Nothing removes the head of power under the BNA Act which is awarded to
the federal government with respect to aboriginals.
Senator Sparrow: You were talking about the "citizens" of Kenora, an
expression you say is used. "Band member" is defined in the Indian Act. They do
not have "Indian" citizenship as such. The agreement clearly states that a
Nisga'a citizen means a citizen of the Nisga'a Nation as determined by Nisga'a law. That
means that they have the power to designate what is a Nisga'a citizen. Once that is in
place, there is no provision for changing that Nisga'a citizenship. I will ask you to
elaborate on that.
If you are a Nisga'a citizen, must you then be a citizen of Canada or a landed
immigrant; or must you have any designation in Canada at all? Can someone come in and be a
member of that Nisga'a Nation and not be a Canadian?
Mr. Molloy: I will attempt to answer that question. I will start with the first
question which deals with the ability of the Nisga'a to make laws with respect to who is a
Nisga'a citizen. They are subject to the requirements set out in the treaty with respect
to their constitution. They are also subject to the Charter of Rights and Freedoms in
terms of setting out their membership code.
With regard to the kind of status it brings them, the only rights that a Nisga'a
citizen has are those set out in the treaty. It does not connote rights beyond the treaty.
There is nothing in the treaty that gives them any authority with respect to international
law, external affairs, or Canadian citizenship. In fact, there is a specific provision
that they have no law-making authority with respect to Canadian citizenship, landed
immigrant status and the like. If you are made a citizen, it does not give you any ability
to come to Canada, save and except as required by Canadian law.
Senator Sparrow: If a person is not a citizen of Canada and does not have landed
immigrant status, then that person is a visitor to Canada. What would happen if he or she
went on to Nisga'a lands and they decide to make that person a Nisga'a citizen, for
Mr. Molloy: Under the treaty, all federal and provincial laws apply, except as may be
specifically provided for in the treaty. If someone comes to Canada legally and goes on to
Nisga'a lands and is made a citizen, whatever the federal law is with respect to that
person's ability to remain in Canada remains the law under which he or she is governed.
That person has no special rights with respect to Canadian citizenship as a result of
that. In other words, if you come here and you are only allowed to stay for a specified
period of time under the law, you are subject to that law. The citizenship of the Nisga'a
relates to their lands, their assets, and living within their territory.
People have asked why we use the word "citizen". That was an issue at the
table for many years. However, we were able to agree with it in the end because of the way
in which it is defined in the treaty and the fact that all of the rights that accrue to
such a person are specifically stated in the treaty and nothing that exists outside of it.
In fact, one of the provisions of certainty provides that, if any rights that may exist
with respect to aboriginal rights regarding lands, waters and self-government are not
found in the treaty, they do not exist and are released.
The Chairman: It is my understanding that the Nisga'a have no right to give anyone any
status to enter Canada or to stay in Canada. Nisga'a citizenship is totally domestic in
its import. The definition of "Nisga'a Nation" is "the collectivity of
those aboriginal people who share the language, culture, and laws of the Nisga'a Indians
of the Nass Area, and their descendants;".
Senator Sibbeston: Mr. Chairman, as I sit here listening to this discussion I feel
excited and happy that the Nisga'a bill is before us. The highlight of my time in Ottawa
was when I watched the Nisga'a bill pass in the House of Commons in December. As a
Canadian, I was so proud to see that something like the Nisga'a treaty could happen in
However, I also feel angry. I want to strike out at everyone who questions the Nisga'a
bill. Section 35 of our Constitution recognizes and affirms existing aboriginal rights. I
am sure that everyone in this room will agree that we have treated our native people
terribly. I have heard my colleagues in the Senate say that we have nothing to be proud of
in that regard.
We are here dealing with aboriginal rights. We all recognize that the status quo does
not work, so what do we as Canadians expect now that, in 2000, native people of our
country are involved in a very meaningful way in defining their aboriginal rights and
trying to make a life for themselves in this country? Do we expect that they will just
continue with the status quo? Do we expect that they will not seek any special rights?
When we deal with the Nisga'a bill and see that there is some recognition of rights,
why do we quibble? Why are we suddenly so alarmed about the business of citizenship?
Honestly, it means no more than what the minister has said.
For the past 100 years, the federal government has defined who is an Indian. Now the
Nisga'a will be able to define for themselves who is a Nisga'a. Is this not wonderful? Do
not be alarmed by that. Do not be worried. These are minute matters of concern.
Everyone wants to be the same. Some people say that they support native people, but as
soon as native people have any right that other Canadians do not have, they become alarmed
and say that that is not Canadian.
Take Quebec as an example. I support Quebec in terms of it being recognized as a
distinct nation. I want them to stay in Canada and I hope they do. Likewise, native people
want to distinguish themselves as nations. There is nothing terrible about describing
yourself as a group, as a nation. It goes to pride. They are not merely band councils,
they are nations that existed before the white people came to this country.
I believe in my heart that the Nisga'a bill is the solution and that, some day, native
people in this country will be happy, viable and economically independent. Then we, as
Canadians, will be able to say, "We have done the good and right thing." We will
point to Nisga'a as the turning point where this country began on this new road, where we
moved beyond reserves and beyond the status quo. Nisga'a is about that. Nisga'a is about
new hope, a new arrangement among the native people. I have no doubt that these modern-day
settlements are the solution and that they will eventually make aboriginal people happy,
economically viable, and contributing members of Canadian society.
I have heard senators query whether this process will lead to the destruction of
aboriginal people. I have heard senators question whether the Nisga'a treaty would
eventually make people poorer -- worse off than what they are now.
In my experience that has not happened in other treaty situations. In the Northwest
Territories, we have had a number of modern day treaties. We have the Innuvialuit, the
Sahtu, the Gwich'in, and the Dogrib. Every First Nation is better off. It has given them
new life, new hope, and new determination. That is what this is about.
I would vote on it tonight, the way it is, to support the Nisga'a. Let there be 100
more such treaties before the House of Commons and the Senate, and let us pass the bills.
We have failed our native peoples. Everyone admits that. Let us just do it, and stop
quibbling about these little legalities that amount to nothing.
The federal government has never given anything away to native people. They do not have
a history of jeopardizing their own interests. Trust the minister. Trust the government
that they have looked after the federal interests.
The Chairman: Senator Grafstein, in that spirit, I am sure you have some questions.
Senator Grafstein: I am as passionate and as concerned as Senator Sibbeston is about
renovating this situation. However, I want to do it in a way that is constitutionally
appropriate and politically acceptable, not just to the aboriginal people, but also to the
bulk of Canadians.
We will always have dissenters; I do not quarrel with that. I am trying in my own mind
to appeal to that mid-range of Canadians who think that the injustices to the aboriginal
people have to be renovated as quickly as possible.
In my comments, I have tried to be as delicate as possible, to not exaggerate or to
quibble with some of the fundamental issues.
I am not a member of this committee, and I find myself in a rather invidious position
because I have learned much from what I have heard and what I have read -- and I have read
about this exhaustively in the last six weeks. I almost wish that I had not started the
process because you cannot start the process and be fair to the Nisga'a, the aboriginal,
unless you go through the entire liturgy of at least the past 30 years. There are reams of
it. I have tried to go through most of it rather quickly.
My position is invidious because I know the Nisga'a, in an arm's length, major
negotiation, have given up substantive claims. They have taken this as part of their
negotiation, to give up claims.
They come to us, and say, "We gave that up at the table in exchange for this; how
can you change the bargain?" Regrettably, that is not our constitutional
We are here as a second chamber to review this, and quite frankly, I do not want to
quibble with this. I would like to approve it tonight myself, but my precedents and my
attitude about this, which goes back to the early 1960s about constitutionality in this
country, prevents me from doing so. It would be easy. I do not want to be here until
midnight. I am not even a member of this committee.
I sent a note to the chairman requesting that he not call on me unless all members of
the committee had had a full and fair chance to speak on this. I want to be sure that the
committee members who have the right to vote will have their full say.
I say to the minister and his negotiators that they have done an terrific job. This is
not to be critical of the good faith of the Nisga'a people who have done a magnificent
job. However, there are problems, and they recognize those problems. They have been
careful to choose certain words, minister, that would lend a certain connotation that is
different. We have to deal with those differences.
In your statement, minister, you have said this is not a template. I accept that,
because I think each individual negotiation is different. Each tribe, each set of rights,
each set of notions, right across the country, is entirely different. However, you have
This bill, and the treaty to which it would give effect, mark an historic step forward
in this country's relationship with the Nisga'a people; indeed, with all aboriginal
I believe that was the crux of Senator Sibbeston's comments. We are here to look at
this as a template, whether we like it or not. We are here to determine what principles
will or will not be acceptable.
I want to return to citizenship, if I might, Mr Chairman. I did not interject earlier
with a supplementary question. Mr. Minister, for me, citizenship is not a fancy word. It
is not a fancy word for a band member. It may be for my colleague opposite who just spoke,
but for me citizenship is the highest accolade this country can award to a resident of
this country. There is nothing more. Privy Council, Members of Parliament, Orders of
Canada, are impressive, but citizenship is the highest accolade. There is a long history
to this. I feel as passionately about Canada as my friend opposite. Citizenship is an
honour so high, it is beyond reproach. When we take this word, and we use it in a
particular way, giving it duality, it bothers me.
For me, a citizen is a person, without qualification. If he meets an objective
standard, he is entitled to vote. As a citizen of the Province of Ontario, I have the
right to vote, federally, provincially and municipally, if I qualify by objective
standards. That is what citizenship is.
There was an interesting case of a former colleague of ours, Senator Twinn, as I
recall, who refused to make the band list available. He refused to say what the definition
was of membership in the band. The court said, no, it must be open, transparent. This has
been included here.
The Nisga'a have a Constitution. They must openly set out what principles are to be met
to become a citizen. As Mr. Molloy said, it need not be according to the Charter. It has
to meet certain Charter principles, but it does not have to be in accordance with the
Charter. It can be exclusionary, and indeed, it will probably be exclusionary.
I make this statement because I will be asking the Nisga'a to tell us about this. I do
not know their practices. I do not know their history. I do not know what is required to
qualify as a member of the band. I do not know how a person can be adopted as a band
For me, the word "citizenship" means equality of treatment on a transparent
and open basis that makes anybody, resident or non-resident of the Nisga'a lands, eligible
to be a citizen.
I had to match the emotion of my colleague so he would understand that, while he is
passionate about being fair, I am passionate about being fair to Canadians as well. We are
here to do justice and to be fair.
Let me ask this question: The Nisga'a local governance decides the definition of who is
a Nisga'a citizen. We have on Nisga'a lands, a Nisga'a citizen and a non-Nisga'a resident
on Nisga'a lands who is not a Nisga'a citizen. Does the non-Nisga'a resident have a right
Mr. Nault: First of all, senator, you would have to define "Nisga'a
resident." There is no such thing in the treaty.
Senator Grafstein: There are Nisga'a people who live on Nisga'a lands.
Mr. Nault: There are people who live in the Nass Valley.
Senator Grafstein: There are people who are resident within the municipal boundary, who
are resident within the Nisga'a boundary, on the Nisga'a lands. The Nisga'a have a vote.
They decide what the governance is. Does that resident have a right to vote on matters
such as taxation? Can that resident be taxed in any, way, shape or form by the Nisga'a?
Mr. Molloy: Not under the treaty.
Mr. Nault: Not under the treaty.
Mr. Beynon: No.
Senator Grafstein: If I am living on the lands, I have a house or farm and utilize it,
is there no taxation that I must pay to the Nisga'a government?
Mr. Molloy: The only provision in the treaty that gives the Nisga'a power to tax is
with respect to Nisga'a citizens living on Nisga'a lands and to no one else.
Senator Sparrow: You live tax-free.
Senator Grafstein: No, you do not live tax-free.
Let me deal with the next question. This is salutary for me, as this reduces one of my
concerns to a large measure.
That non-Nisga'a resident has children and they go to the local school. Can that parent
be a member of the school board?
Mr. Molloy: There is a provision in the treaty that they will either run for office and
have a vote, or be given equivalent status to that running or having a vote. The Nisga'a
have had a school board for 20 years and there are non-Nisga'a who are members of that
Senator Grafstein: How are they elected?
Mr. Molloy: They are elected by the residents of the school district.
Senator Grafstein: Do the Nisga'a participate in their election, or just the
Mr. Molloy: Everyone within the school district participates in the election, senator.
Senator Grafstein: Everyone within the school board district is equal; is that correct?
Mr. Nault: Under the treaty, we guarantee certain seats.
Mr. Beynon: Under the terms of the treaty, in respect of these Nisga'a public
institutions like health boards and school boards, it is provided that there must be a
means of participation, including guaranteed seats or rights to vote for the non-Nisga'a
Senator Grafstein: Senator Andreychuk raised this question and maybe the Nisga'a
witnesses can give us some help on this. What is the Nisga'a word for citizen and what is
the exact translation of that? I do not want it now, but if that could be provided to the
clerk of the committee, that would be helpful.
I fully accept the desire of the Nisga'a to be free of the Indian Act. We all agree
that the Indian Act is retrogressive. However, "Nisga'a Nation" is defined as,
"the collectivity of those aboriginal people who share the language, culture, and
laws of the Nisga'a Indians of the Nass Area, and their descendents;".
They capitalize the word "Indians", and there is no definition under this
agreement of "Indian".
Mr. Beynon: The citizenship provisions that allow the Nisga'a to make laws with respect
to citizenship cannot deal with Canadian citizenship, and they also cannot deal with the
right to be registered as an Indian under the Indian Act. Therefore, Nisga'a laws would
not apply to that. It continues to be the Indian Act that deals with who is entitled to be
registered as an Indian. Throughout the text of this document, when we refer to an
"Indian", that is a matter determined through the registration provisions of the
Senator Grafstein: Is that still there?
Mr. Beynon: It is still there.
Senator Grafstein: The Nisga'a were not successful in negotiating that item out.
Mr. Beynon: That is the only portion of the Indian Act that would continue to apply
Senator Grafstein: Is that salutary, Mr. Minister?
Mr. Nault: That is something we are reviewing because it is a bone of contention with
aboriginal people across the country who believe that it is unacceptable for non-natives
to define who an aboriginal person or a First Nations person should be.
We are presently looking for solutions, to find ways that First Nations people can
define their own citizens. Those of us who are of liberal mind believe that would be a
much better solution than having legislation that defines the concept based on bloodlines.
For example, in this treaty, it is possible for a person like yourself to become a
citizen of the Nisga'a nation.
Senator Grafstein: I understand that.
Mr. Nault: That could occur, and rightfully so. However, you could not come under the
Indian Act, as you know.
Senator Grafstein: For me to become a Nisga'a citizen, would be a question of
discretion for the Nisga'a government; is that right?
Mr. Beynon: I picked up on the word "discretion". The Nisga'a can speak to
this question, however, the text does not refer to the Nisga'a government having a
discretion to decide who is a citizen; instead, they must make laws.
The Nisga'a treaty dictates that laws must be published, in a registry and publicly
available. They must be in the English language, et cetera. It must be done as a matter of
law. The terms of that law will dictate how one obtains citizenship; it will not be a
matter of broad discretion.
To elaborate further, it may interest senators to know that there is an eligibility and
enrolment chapter in the treaty which describes which individuals are eligible to be
enrolled under the terms of the Nisga'a Final Agreement. It is somewhat complicated, but
largely the test is Nisga'a ancestry -- persons who have Nisga'a ancestry.
What the treaty provides is that those persons eligible to be enrolled under this
treaty, because of their Nisga'a ancestry, are automatically entitled to Nisga'a
citizenship. The Nisga'a law-making authority, with respect to Nisga'a citizenship, has
some discretion. It would decide whether or not you could become a Nisga'a citizen.
However, it does not confer on the Nisga'a the authority to simply strip Nisga'a
citizenship from persons of Nisga'a ancestry. That is governed by the treaty.
Senator Grafstein: They can add, but they cannot subtract.
Mr. Beynon: That is right.
Senator Lawson: When Senator Comeau asked questions about constitutional opinions and
so on, a reference was made to solicitor-client privilege. Who, may I ask, is the client
in this case?
Mr. Nault: The client is the Department of Indian Affairs and Northern Development.
Senator Lawson: The solicitor acts for the Department of Indian Affairs and Northern
Development and the minister.
Mr. Nault: For the sake of argument, I get billed by the Department of Justice on a
Senator Lawson: They act for you and the department. Who do you act for?
Mr. Nault: I act for the people of Canada.
Senator Lawson: We may very well be the client; therefore, whatever opinions you have,
we have a right to have.
Mr. Nault: No, you do not. The courts have ruled on that already, it would then not be
client privilege at all. If I had to release every particular, I would then have to find
someone else to give me an opinion.
Senator Lawson: You say women's rights are fully protected by this agreement and are
In previous hearings we have heard from representatives of the Native Women's Council
who relayed horror stories about not being able to own land. They told us that, upon the
break up of a marriage, the male partner keeps the house and children, and, in certain
cases, had ordered the female native off the land at gunpoint -- probably an unregistered
gun, but that is incidental. Are you telling us that under this agreement women can own
land and, in the event of break up of marriage, their property rights are protected? If
you can say so affirmatively, that is a breakthrough from what we heard before.
Mr. Nault: Yes. Under the treaty, British Columbia's Family Relations Act will
determine the division of matrimonial property under Nisga'a law.
Senator Lawson: Well done.
Mr. Nault: It is a significant step in comparison to the Indian Act, which is
completely silent on First Nation women's rights. That is an issue which is of importance
not only to yourselves but also to this minister, who is presently reviewing that whole
aspect of the act. Presently, it is before the court. With the approval of First Nations
people who want to stay under the Indian Act, hopefully, I will be able to make
significant changes to the Indian Act before the courts decide for us. This is part of the
issue of the relationship that some senators referred to this evening.
When we talk about "building a relationship", we talk about a relationship
between ourselves as governments and the First Nation people. It is a political
relationship to some extent. However, if we continue to allow the courts -- in particular,
the Supreme Court -- to define our relationship, we may not like what we get. The courts
are not being asked to define a relationship based on what Senator Grafstein is suggesting
is acceptable to all Canadians. They are being asked to rule on a point of law. That may
not be as easy to implement, based on that particular theory. The objective, based on
these negotiated settlements, is that it would meet the test of all Canadians. That is why
we do this rather than letting the Supreme Court continue to define our relationship.
I can send you all the different parts of the Indian Act that are before the court now.
I cannot give you a legal opinion about what will happen, but I think you can guess, based
on the fact that it has not been significantly amended since 1951, and what that means in
today's context. That is why we are working hard at coming up with modern-day solutions
and looking to change the Indian Act. As a matter of fact, I was at a meeting this
afternoon where I was talking about amendments to the Indian Act.
Senator Lawson: That is giant step forward. You brightened my whole day.
My last concern was raised by Senator St. Germain. I agree with him that the important
issue that is still outstanding is the question of overlap. I share the senator's concern.
I am excited about what you said concerning protecting women's rights.
Senator St. Germain also said that he was angry. I am also angry, but for a different
reason. You are in a haste to put this Nisga'a agreement through, both in B.C. and here in
Ottawa. It is good that it will be accomplished, my anger stems from the fact that you are
trampling on the rights of the Gitxsan and the Gitanyow. It is no comfort to me to say,
"The minister told us that they made progress on overlap in the Northwest
Territories." I know will be asked: "How does that help us?"
In the last few minutes, you have demonstrated what a progressive minister you are.
Would it not make sense to have another negotiating team who would ensure that we do not
trample on the rights of these other two native tribes? Why not have a fast-track
negotiating committee to preserve and protect those rights so that your next statement
will be: "As the minister responsible here, I want a report that we have taken care
of the overlap with the Gitxsan and the Gitanyow." Would it not make sense to do
Mr. Nault: The policy of the Government of Canada as it relates to overlap is the right
one. We would much prefer First Nations to deal with the overlap themselves. That is out
of respect for the history and tradition of the First Nations themselves. That can be
done. I would suggest to you that in the large majority of cases that does occur. It is
occurring out there now.
Legally, we have protected the rights of other First Nations in the treaty itself and
have allowed the courts to stand it down, if necessary, in the future. We have given all
the protection we can legally to those other First Nations within the treaty to ensure
that it does not affect their rights. I do not know what else we can do except what we
used to do in the past, which was to make a dictatorial decision as a non-native person
and decree what the overlap issue will be and resolve it for them. If I take that route,
which is the only fast track of which I am aware, it will take a number of people to sit
around a table to come to up with a solution. We do not believe it is fair to hold back
other First Nations and the progress of the country to bring certainty, in particular, to
I was very involved in my previous life in the mining and forestry industries. I have
talked to the big players in those industries. In British Columbia, they are telling me
that they want the treaties because the lack of them affects their investments and their
ability to do business.
We can decree, as we have done in the past, and made all sorts of mistakes; or we can
protect their rights and then allow them to make decisions on an overlap, over time. We
are convinced that the Gitanyow and others will get together under different circumstances
with the Nisga'a people and resolve the overlap.
Senator Lawson: Why not a third option, namely, to facilitate mediation and bring the
people together and speed the process along?
Mr. Nault: We are doing some of that. I will let Mr. Molloy tell you what we are doing
on the negotiation side.
Mr. Molloy: It may be useful to step back and look at the policy with respect to the
conclusion of treaties when there is an existing overlap agreement. It might help to know
that it was not something that was done without paying attention to the rights of the
other First Nations. We did that, first, in terms of the agreement and putting in those
provisions. We have been operating under a different policy since 1992-93, because the
previous policy was that we would not conclude treaties unless overlap agreements were
concluded. That gave one group a hammer over the other. For example, one group may not be
interested in getting a treaty and, therefore, they could delay the process. The
government's policy was changed. In circumstances where the two groups have attempted, in
good faith, to settle or to negotiate their overlap and, despite all their efforts to do
so, the dispute remains unresolved -- and. the treaty contains an explicit statement that
the rights are not interfered with -- then the treaty will proceed.
From Canada's perspective, in the case of the Nisga'a and the Gitanyow -- and, I think
the Nisga'a will provide you with a full explanation of all they have gone through over
the years -- we called the parties together on several occasions and were present at
meetings whereby we were trying to encourage them to resolve their differences. We know
that the Nisga'a and the Gitanyow have met on a number of occasions on their own. We have
offered to put a mediation process into place. That offer has been outstanding since the
time prior to concluding the treaty. We have also offered to pay the costs of facilitating
the parties coming together. It is not that we have ignored the Gitanyow. We have tried to
resolve the situation.
In addition, there are ongoing negotiations with the Gitanyow and the province. As
well, Canada has put an offer before them which they are presently considering.
There are and have been negotiations going on with the Gitanyow since the British
Columbia Treaty Commission process began in 1993-94.
Senator St. Germain: What is your comment, Mr. Molloy, that funding is controlled by
DIAND or the federal government, and that funds are not forthcoming so that they can
properly deal with their claims? In a way, that inhibits their ability to negotiate
I am stating this on their behalf. This is not something that I am fabricating. This is
something that they say exists, namely, that the funds are not forthcoming from the
federal government, that they are not receiving proper funding because of their band size
and other issues that surround their ability to negotiate in good faith.
Mr. Molloy: Under the British Columbia treaty process, the federal and provincial
governments provide a sum of money to the British Columbia Treaty Commission which then
allocates it on the basis of the number of First Nations, and so on, negotiating. The
moneys that First Nations received from the British Columbia Treaty Commission -- and the
Nisga'a, prior, because they got into the process in advance of the treaties -- are loans.
Therefore, in the case of Nisga'a, under the treaty, they are required to repay the
amount. The other bands that are under the treaty process in B.C. are borrowing the money
from the treaty commission which allocates it according to criteria that they have
Senator St. Germain: It is this criteria that is contentious in their attempts to
negotiate as far as these other bands are concerned. I am only reiterating, Mr. Minister.
I am not trying to fabricate anything. I stand to be corrected if I am wrong on this, but
this is my understanding from the explanation from these other bands.
Mr. Nault: The B.C. treaty process, as I understand it as a principal at the table at
the summit that the BCTC group facilitates, is an agreement that we have all reached. I am
surprised to hear that. I would be interested to know the particulars of why that comment
would be made, simply because it is based on their necessity to negotiate. There are loans
involved here, so it is not as if we are giving money to them. We are not giving money to
them. If they want to make a loan, there are criteria for it. We are quite prepared to
make that loan. One of the biggest complaints we get is that they are loans. First Nations
believe they should not have to come to get a loan from the Government of Canada and
negotiate -- that in fact it should be a grant of sorts. That is a big issue for a number
of First Nations, especially the smaller ones when it takes too long to negotiate, because
it is a very expensive venture.
I would appreciate seeing that information and following it up for you because I am
surprised to hear that. I have heard a number of complaints about our BCTC, but that has
not been one of them. This is the first time I have heard that.
Senator Sparrow: The Charter of Rights, you state, does apply to the Nisga'a agreement,
because it says so. However, the Charter of Rights applies to the Parliament of Canada and
the provinces as well. Is that correct?
Mr. Nault: That is correct.
Senator Sparrow: Under the general provisions of the Constitution Act, the guarantee in
this Charter of certain rights and freedoms shall not be construed so as to abrogate or
derogate from any original treaty or other rights or freedoms that pertain to the
aboriginal peoples of Canada, including any rights or freedoms that now exist by way of
land claim agreements or may be so acquired. These certain rights are being acquired in
It seems to me that there is a conflict there of how the Charter of Rights is applied.
Even if it says in the agreement it applies, it does not necessarily apply under the
Mr. Molloy: The treaty provides that the Charter of Rights and Freedoms applies. You
then go to the Charter of Rights and Freedoms and look at all of the specific provisions
of the Charter. The Charter is made up of a balance of individual and collective rights.
In interpreting the Charter, obviously the court must look at section 35 as it applies in
any particular instance. In a number of other sections, the collective right is given or
it is suggested that it has to be taken into account in applying it against individual
rights. There are provisions with respect to French language, separate schools, and a
number of other such provisions.
Senator Beaudoin: There is no doubt that the Charter of Rights and Freedoms applies.
However, the treaty rights under section 35 would also apply. There is no contradiction.
In other words, they have the same rights as any other citizen, but, in addition, because
they are aboriginal, they have treaty rights under section 35.
Senator Christensen: I am very familiar with the Yukon umbrella final agreement. I am
certainly not an expert on it. Certainly many of the issues raised tonight, such as
overlap and the enrollment commission, are issues that were dealt with there, such as
identifying who are members of bands so they can ratify their different agreements. It is
not something that is new, and it is not something that is just being dealt with here.
This agreement is set out as a precedent-setting agreement, a blueprint, if you will,
and yet I do not see it as that. Each agreement, as you have pointed out, is being
negotiated site-specific to try to meet the needs of that particular band. There are many
things that are the same, but there are different parts of these agreements that are very
specific to that particular band and its needs.
I see this as being perhaps a blueprint for British Columbia because it is the first
one being put forward. Would you agree that that is what they are looking at? When they
say this is a blueprint for everything else, it really is not. It is following on other
agreements that have taken place in other areas.
Mr. Nault: Senator, one of the issues that confronts us every day as a government and
as Canadians is that we continue to get more advice from the courts when they define
certain areas of aboriginal law for us. Things have changed to some extent. I think it is
fair to put that on the record.
Certain principles are common to all the negotiations across the country. Certainly,
the Government of Canada has policies and seeks mandates based on those policies as we
prepare to negotiate. As you know, as a minister, I must go to cabinet to get a mandate on
every agreement on which we want to move forward. I cannot just go out there and decide
for myself based on my wishes. Certain principles need to be met. Therefore, you will see
some common elements across the country. Whether it be in the Northwest Territories, the
Yukon, or in British Columbia, or wherever we are, you will see some of those common
That is not to suggest that we are looking for a template. Those are obviously policy
initiatives that suggest, for example, that we insist that the Charter apply. Will someone
argue with me that that is a template? I suppose that, if you want to put it that way,
yes, it would be, because I insist that the Charter apply because we will end up in court
and we will be no further ahead than we were before. That is one of the principles that
the government insists on at the negotiating table. I can list a whole series of those for
you. That, for the sake of argument, I suppose, stimulates the opposition to suggest that
this is what you will get all across B.C.
As I mentioned earlier, Mr. Molloy is also the negotiator for Sechelt, and he can tell
you it is not in the interests of the First Nations Sechelt to be part of the
constitutional family in the same way that this treaty is. That is perfectly all right by
us because it still meets the principles that we have laid out -- that the Charter will
apply and certain laws that are important to Canada will apply.
Senator Christensen: Are there greater constitutional rights granted in the Nisga'a
agreement than have been granted in other recently negotiated agreements?
Mr. Nault: I would say the answer to that question is "no".
Senator Christensen: Is there any ability at this point for amendments to this bill?
Mr. Nault: If you amend the bill, then we would kill the agreement. In fact, we would
need to go back to the negotiating table because all three participants signed off on the
treaty in good faith.The agreement must be accepted, and it is no different from Mr.
Clinton signing a treaty with a foreign nation, or when we signed the Free Trade
Agreement. That was basically a take-it-or-leave-it relationship, and it is the very same
Therefore, it is up to you to decide whether it is a job well done or not well done. If
you throw the agreement back at me, then I must go back to the negotiating table because I
have two other partners who would want to have a say as to why the Senate decided to
change the treaty unilaterally. I do not have the right or the ability to do that.
Senator Gill: People have said that citizenship is a serious question. In this room we
have aboriginal and non-aboriginal senators. Who decided that the Nisga'a were different?
I think you have known that since the beginning. We have been trying to live together for
500 years. Today, I still have my Indian status card. Do you wish to know my number? I
have a number on that card. Senator Watt has perhaps lost his tag, but he did have a tag.
Senator Watt: I still have my tag.
Senator Gill: Senator Watt had a tag around his neck. Who made the decisions in that
The question of citizenship is a serious matter. In this country who has the right to
decide who we are or who we would like to be? I am sure that non-aboriginal people decided
for themselves, and their parents decided for themselves. We did not. The Nisga'a did not.
Someone else defined our status and our citizenship. If we want to talk about citizenship
seriously, then we have to consider the situation we have right now.
I do not wish to become emotional, but it is very difficult when we talk about that, my
The Nisga'a are asking to define their own status for themselves. Is this not normal?
Is that not the minimum that we can ask for in this country? It is about time that we
define our status. Give us some room for that and have confidence. I do not think that
aboriginal people are less capable than others. We can be very serious citizens of this
country. We would like to build this country with you people. We would like to be your
partners. You have been refusing to accept us since the beginning. We have tried to build
this country and we have brought peace to this country. It is about time that we were
given some room. The Nisga'a are asking for some room. Do you not think that it is about
time that something is done? We must open our minds and hearts.
We are talking about different values. I find lawyers to be very bright and very
useful, but sometimes it is very difficult to deal with lawyers. However, as a society, we
need lawyers. I would ask you to give the Nisga'a some room.
Senator St. Germain: Mr. Chairman, I would like to comment on what the minister said
regarding the opposition coming up with the word "template". We are not the
Mr. Nault: I was not talking about you, senator.
Senator St. Germain: You made reference to the fact that anybody who brings it up in
that context is the opposition. I want you to know, clearly and unequivocally, that we are
not the opposition. It is the chief justice of this country who said, "We are all
here to stay." We are being inundated.
I feel that my aboriginal ancestry is as important as Senator Gill's and Senator
Watt's. I am taking issue with you on this because I am here to find a resolution to the
Nisga'a agreement that all British Columbians can accept.
I will tell you what will happen. There will be a change of government some day in
British Columbia. If we do not get this right, future bands will not be able to negotiate
settlements because it is a tripartite situation where the province, the federal
government, and the natives need to be involved.
The Nisga'a agreement is one thing, and it is as important as anything else. However,
if you want certainty in future negotiations in the Province of British Columbia, we must
negotiate with all of them. If, for some odd reason, we create a situation that is against
the spirit of negotiation and the provincial government takes a stand of that nature, it
is detrimental to the other 49 agreements with which you or some other minister must deal.
That is why we are questioning this. The non-natives in B.C. are saying, "Great,
we will have a settlement. Will it be final? Is there accountability so that all the
natives will benefit, not just the chiefs or those who are at the top?" These are the
questions that we are being asked. We have a right and we have an obligation to question
it from all aspects because this will be an historic agreement.
You made reference to municipalities. The Nisga'a negotiators made reference to the
fact that transfer payments are made to municipalities. We are not dealing with a
municipality here. If it were a delegated authority, there would be no discussion. This is
different. This is another step. However, I am not saying we should not be doing this.
Senator Gill: It is a good step.
Senator St. Germain: I am not saying that it is not a good step. All I am saying is
that my hope is that others in the province will be treated fairly and in a manner which
will bring the certainty that we need for business.
Mr. Nault: Let me make something clear. I have stated over and over that this is not a
template. For having said "opposition" I apologize. I do not look at the Senate
as having opposition and I was always under the impression that, as the place of sober
second thought, you were past that. I was talking about the Reform Party when I said
"opposition". They have continually said to the B.C. population that this is a
template for things to come. I have never made that comment, nor will I, because it is not
the case. If I did make that comment, it would cause a gridlock in the negotiation of the
other agreements across the country. There are unique needs for First Nations, and I do
not want to be on record as saying that the government believes this is a template,
because it is not.
Senator Lawson: The former premier of B.C., Glen Clark, held it up and said, "This
is the template for all future agreements."
Mr. Nault: He is not here any more, so you know what happens to people who cannot get
it right. I am trying to distance myself from certain people in British Columbia, as you
might imagine, and none of them is in this room.
I wish to say, Mr. Chairman, that I have attempted to stay at your committee longer
than most would because this is very important business to the Government of Canada and to
the people of Canada. I believe that we are now entering into a new era with First Nations
Yes, we are going where we have never been before, and we are insisting that we do so.
We are breaking new ground, and we are suggesting, as some senators have suggested
tonight, that we allow First Nations people to make up their own minds on what their
relationship will look like. We need you to continue to review our work, because it is new
ground, and we must make sure we get it right.
I am not afraid to get into debate, even from a legal context. I have the same view as
some senators that sometimes too many lawyers at a negotiating table is not a good thing.
As a labour negotiator, I tend to think we get a lot more done if we leave the lawyers at
home. However, that is a different subject for a different time, and I do not want to
cause our lawyers some frustration tonight.
I do think the strategy and the position of the Government of Canada -- not just our
government but previous governments -- of negotiating versus litigation is really the way
If I would leave you with one message tonight, it is that we believe this is a very
good compromise. This is very much a middle-of-the-road agreement. A lot was given up by
the Nisga'a people. Believe me, if you were at some of the other negotiating tables, or
were aware of some of the things that were going on, you would probably agree that this is
a very good agreement for all parties. We think that it deserves your attention, and we
hope you will pass it, not just for the Government of Canada but, of course, for the
Nisga'a people themselves.
I want to thank you for allowing me to come, for the very first time, to the Senate. I
hope I will appear before you often, with other agreements and treaties, so that we can
have this discussion many times.
As I have said to my colleagues, I am the only minister in recent memory who lobbied
for this job. Maybe I am a little bit different, but I do think this is a great place to
work and an exciting place to be, working on our relationship for the new millennium. I
always enjoy the opportunity to talk about aboriginal people and their position in Canada.
If you want me to return, I will, but I cannot stay so late the next time because I
have a three-year-old who cries if I do not go home. He has been crying for the last hour
and a half, so I must go.
Senator Tkachuk: I recognize the frustration of Senators Gill and Sibbeston on this
matter but, Mr. Chairman, I would tell you now that I am going to be nitpicky about this
bill. Those of us from the west have seen what happens when closure takes place, as it did
in British Columbia, and people are afraid to talk about what is in the agreement.
I have no excuses to make to anyone about my commitment to see a resolution and an end
to this problem. I have stated my case for five years on this issue. I think our chairman
and our deputy chairman have done a good job in agreeing to a time frame of, I believe,
The Chairman: We do not have an agreement on a specific time frame.
Senator Tkachuk: I saw the list of witnesses, so I think that we will have a thorough
examination of this bill. We will expose this bill for what it is, which I think is a
reasonable agreement. It may have some problems, but they will be out in the public. That
is the job we have to do. That is the commitment we must make, and it has nothing to do
with anything but making sure that the Canadian people have an opportunity to see what is
contained in the agreement. A rush to do this will cause the same kinds of problems that
were caused in British Columbia, and I do not think we want to see that in other parts of
Canada. From my point of view, and from my side's point of view, we are committed to
examining this bill to its full extent. It has nothing to do with anything else but
examining this bill, which is our job as senators.
The Chairman: It is my intention to lead a thorough and careful examination of this
bill. It will be historic, particularly in the Province of British Columbia. Clearly, I am
a supporter of this bill. I have been working with the issues dealt with in this bill for
many years, so I am not racing to catch up. However, I recognize that a large number of
people at this table will have to make a decision, and that they need time to examine and
understand the issues before this committee. I know the minister understands and accepts
Mr. Minister, on behalf of the committee, let me say that we greatly appreciate the
three hours that you have spent with us tonight. I want to tell you that, at some later
time, your three-year-old will really appreciate the time you put in tonight with your
colleagues, working with us on these issues. I believe we have gained some focus. I do not
think you saw any partisanship in this committee of the kind you see in your house. I
believe that we will be sober, serious, and positive about our approach.
I want to note for the record that 18 senators were here this evening and stayed with
you all the way to hear what you and your colleagues had to say.
Mr. Nault: Before I go, I again want to extend the invitation that, if there is any
further information we can provide, we will. I am of the same view as Senator Tkachuk
which is that there is a need to have extensive discussion and to nitpick. We look forward
to that, because we had a lot of difficulty in the other place in getting down to the
facts of the treaty. We were very annoyed about the fact that, in the other place, we did
not get to talk about the particular clauses and the chapters and what they mean. I think
that was a disservice to Canadians and British Columbians. If there is anything we can do,
the officials are at your disposal. We are prepared to give you everything except our
The committee adjourned.