Proceedings of the Standing Senate Committee on
Issue 4 - Evidence, February 23, 2000
OTTAWA, Wednesday, February 23, 2000
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, to
give effect to the Nisga'a Final Agreement, met this day at 5:50 p.m. to give
consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: I call the meeting to order. We are here to consider Bill C-9, to give
effect to the Nisga'a Final Agreement.
Our first witness tonight is Michael de Jong, MLA, who is the opposition critic in the
B.C. legislature. Welcome.
Mr. Michael de Jong, M.L.A., Liberal Party of British Columbia:Honourable senators,
thank you for the invitation and the opportunity to address you today.
I have a couple of objectives in appearing before you.
First, I hope that, by the time I leave, I will have been able to convince you that it
should be possible to challenge or criticize provisions of this proposed treaty without
having one's commitment to the principle of fair and equitable treaties questioned. Too
often, people who have dared to withhold unconditional support, or even to ask questions,
have been unfairly accused of insensitivity toward aboriginal peoples.
Too often, the response from those defending this treaty relies exclusively upon the
proposition that, after years of patience and persistence by the Nisga'a in the face of
countless injustices, any agreement that has their support should simply be accepted.
Surely such a limited analysis ignores the responsibility we all have to ensure that what
is being created by this settlement represents a workable blueprint that will actually
help us achieve the goals of reconciliation and true equality of opportunity.
Second, I would like to ensure that members of this committee have some appreciation of
our -- and when I say "our," I mean the official opposition in the British
Columbia legislature -- specific concerns with the substantive provisions of the treaty.
Specifically, I will focus in the time available on the proposed model of self-government.
Third, I should like to leave members of the committee with a briefing on the court
action that has been commenced by the Leader of the Opposition and myself as the
Aboriginal Affairs critic in British Columbia, and simply advise you of the status of that
Senators, the document entitled "The Nisga'a Template," which I think has
been distributed, includes virtually all of the points I will be touching on today. I
apologize for the fact that that document was not transmitted in time to be translated
Dealing with the first issue, we could ask: Why is there a debate on this proposed
treaty? That is what many British Columbians are asking. They cannot help but think that,
in Ottawa and Victoria, the governments' minds are closed and that there is no appetite
for critical analysis of the document, let alone opposition. That certainly is not to be
The B.C. government, for example, promised a full and detailed debate, yet closure was
imposed before half of the clauses in the treaty had received detailed scrutiny.
The British Columbia government promised that all of the recommendations of a select
standing committee that travelled throughout the province, dealing with the agreement in
principle, would be considered and implemented. I have that material and will leave it
with the clerk of the committee, together with some of the other documents to which I will
British Columbians were promised that members of the treaty advisory negotiating
committee would review each chapter of the proposed treaty before it was signed off. That
did not happen.
They were told that there would be a resolution of overlapping claims before treaties
were finalized. That did not happen. I dare say that that is an issue that will come back
to haunt governments and treaty negotiators in the future.
Here in Ottawa, second reading debate was foreclosed after just a few days.
Many of us are asking: Why are governments afraid of the debate? Why are they reluctant
to answer questions about the treaty?
Two possibilities come to mind. One is that they do not have the answers; the second
possibility is that they do have the answers but are reluctant to share them with British
Columbians and other Canadians. Either way, I think that is unacceptable. You cannot, with
respect, in my view, impose treaties and expect them to work.
The irony is that neither government has a mandate to do what the Nisga'a treaty
proposes. Members of the House of Commons and of this committee have rightly pointed out
that there should have been an opportunity to debate those principles around which these
modern treaties were to be settled. That has never happened.
The second point I spoke of in my introductory comments deals with a number of
substantive concerns of members of the official opposition that are outlined in the
document that has been distributed to you. I will focus today on our major concern, which
is this unprecedented model for self-government that will be set in constitutional
concrete. We believe that it is unconstitutional. It creates, in our view, a third order
of government with special status. In 14 areas of jurisdiction, which are again listed in
the document that I have distributed at page 6 or 7, Nisga'a laws will take precedence
over federal and provincial laws. You can argue for or against that. I think my point at
this stage is that I am aware of no other aboriginal government in Canada that has such
constitutionally entrenched powers. I was taught that our Constitution divides all powers
exhaustively between federal and provincial jurisdictions. This treaty, perhaps for the
best of intentions, attempts to change that by the back door for I what I would suggest
are reasons of political expediency.
We should make no mistake that there are some dramatic implications to this. For
example, non-Nisga'a who will be subject to Nisga'a laws will be denied the right to vote
for a government that can regulate their lives. It was, in my view, senators, wrong to
deny aboriginal Canadians and Chinese Canadians the right to vote based upon ethnicity. Is
it suddenly right, therefore, to deny another group voting rights because of their
ethnicity? Do two wrongs make a right?
Section 30 in the self-government chapter creates, when implemented, a constitutional
obligation on provincial governments to pass four tests before they can amend their own
statutes. Please do not underestimate the heavy consultative and administrative burden
this treaty will place on provincial governments. Please ask yourselves, as you go through
this document, whether this model of self-government, replicated 50 or 60 times,
represents a workable solution to First Nations' legitimate desire to regulate their own
lives. Or are we pouring the foundation for a brutal, bureaucratic nightmare that will
haunt this country for generations?
Please ask yourselves how other provinces, from which some of you hail, will react when
they have this model of self-government imposed upon them. It will happen. Signatories to
the numbered treaties and other First Nations will want to reopen their settlements and
achieve something comparable. Why would they not?
When that happens, perhaps the concerns that we have tried to articulate, and that I am
trying to bring to your attention today, will become more relevant to Canadians, for whom
currently this is probably a document affecting a small group of people in a very isolated
part of our country.
Let me emphasize that I believe in the concept of aboriginal self-government. However,
I will tell you that I believe in self-government that is delegated by federal and
provincial statutes. That was the model that was used just a few years ago in the Yukon.
Apparently something of which I am not aware has changed.
The third and final matter that I wanted to alert you to is the court case that was
initiated in the British Columbia Supreme Court in the fall of 1998. The litigants are the
Leader of the Opposition, and the critics for Aboriginal Affairs and the Attorney General.
The defendants are the Crown in the Right of the Province of British Columbia and the
Crown in the Right of Canada. The parties consented to having the Nisga'a added to the
action at their own request.
The issues relate largely to what I have just discussed insofar as self-government is
concerned -- the proposal to change, via the back door, the constitutional division of
powers. Of course, in seeking a declaration that this represents an amendment to the
Constitution, it is significant that in British Columbia there is legislation that would
require a provincial government to hold a referendum approving any manner of
constitutional amendment of the sort that is contemplated here. The action also asks the
court to proffer an opinion with respect to voting rights and our submission that a
limitation of those rights on the basis of ethnicity runs afoul of the relevant Charter
provisions. That case is scheduled for argument in April or May, and I believe that
counsel for all parties are discussing a hearing that would last approximately two to
three weeks. Presumably the court will be in a position to render a decision thereafter.
Let me conclude by offering this opinion from one British Columbian: I am convinced
that British Columbians want treaties that will reconcile the constitutionally protected
rights of aboriginal peoples with the sovereignty of the Crown. I think they want to
negotiate those treaties, as opposed to referring matters to the courts for judicial
determination. I think they want to negotiate settlements that will remove the historical
obstacles and injustices that aboriginal people have faced, but at the same time they want
settlements that do not replace one set of inequalities with another.
Certainty, finality, workability and, surely, constitutionality are the objectives and
tests against which this historic treaty must be measured, and it is our considered view
that it does not achieve those objectives in its present form.
Thank you again for the opportunity to address you today. I will take whatever
questions time permits.
The Chairman: Thank you for your statement, which I am sure raises questions.
Senator St. Germain: You stated that you are extremely concerned about the overlaps,
but I do not know whether that is resolvable in a short period of time.
You make reference to a referendum. Do you honestly believe that a referendum would be
a fair way of dealing with this particular initiative? I would prefer to see the
negotiation process come before us for scrutiny before the final document is signed. I do
not believe that a referendum will work in a situation like this. Its use has ruined the
education system in California. What is your opinion on that?
Mr. de Jong: The "R word" has become contentious in this process. I will tell
you what I think of when I speak of referenda and their availability as a mechanism. I do
not think you should take a 250-page document to British Columbians, or to Canadians for
that matter, and ask them a "Yes" or "No" question about it. I do not
believe you achieve anything by that. Remember that this is the first of 50 or 60
meetings. If we want the process to result in settlements that are workable and have
support at the community level, we must find a means of bringing people into it. I do not
understand the hesitancy over taking a series of principle-related questions to British
Columbians, the results of which would be applicable and would be available for use by the
provincial negotiating team when they sit down at the 50 or 60 treaty tables yet to come.
A provincial mandate, to the extent that you can have such a thing, would exist. The
negotiators representing the province can say to their counterparts, "You saw us
receive our mandate. You know the principles that we are charged with trying to achieve in
these settlements." Perhaps part of your difficulty is that people talk about a
referendum as it relates to a now-negotiated document. My notion of how a referendum fits
into this is far different.
Senator St. Germain: These issues about referenda arose in British Columbia, in our
parliamentary system, as a result of the Reform Party. They are trying to introduce into
the parliamentary system processes that have been used elsewhere, but I will not belabour
Mr. de Jong: A previous government in British Columbia passed a law requiring a
referendum when the provincial government purports to amend the Canadian Constitution.
That is a statutory obligation.
Senator St. Germain: I am aware of that.
You mentioned that closure was invoked on the bill. Others have given evidence here
that it was debated at great length. Some say it was the longest debate in the history of
the B.C. legislature.
Mr. de Jong: I believe that is true.
Senator St. Germain: They invoked closure, but it was given a reasonable run?
Mr. de Jong: Let me place that in context. In assigning it that mantle of honour, of
being the longest debate, I wish to inform you that committee debates in British Columbia
take place in the legislature. The government indicated that there would be an opportunity
to scrutinize this treaty clause by clause. Yes, we took the government up on that offer
and went through the bill clause by clause. As we were going through the self-government
provisions, the Attorney General -- soon to be Premier of British Columbia -- exhibited
some frustration and said to my colleague, Mr. Plant, and I, "Why do you ask all
these questions? You do not trust Nisga'a or aboriginal people." I was very defensive
about that question because I understood his frustration. After three weeks, I finally had
a response for him, namely, "That was not the point, Mr. Attorney General. I do not
trust any government. We are here to test something very new, something that has never
been tried before. It is complex, by your own admission. Half of the provisions of this
treaty -- and whether or not we call it a precedent, there will be far-reaching
implications for subsequent negotiations -- have not withstood that level of scrutiny and
have not been considered in that detail. That is dangerous."
Senator Tkachuk: We heard testimony about the consultation process after an agreement
in principle. At what point did the consultation process take place? Was it at the point
of the development of the final treaty itself, or an interim paper on the treaty?
Mr. de Jong: The fairest answer I can give is that it evolved. The government struck an
all-party committee that travelled extensively following the signing of the agreement in
principle. The committee received a very large number of submissions and tabled
recommendations, which the government said it would implement. There were actually two
sets of recommendations, a majority report and a minority report. Let us set aside the
opposition's minority report and deal with the majority report.
That report contained recommendations that, if acted upon by the government, would have
prevented signing of the final agreement. Those recommendations were ignored. There was
additional "consultation". Opposition politicians like myself would say that the
sales job began after the signing of the final treaty.
It is difficult for people to get a balanced view. The document I have given you today
is our view of the treaty, its limitations and shortcomings. Conversely, there were things
in this treaty about which the government did not want people to know.
Senator Tkachuk: If the consultation process was so long -- and I know that you and
others have said that the debate was long -- was anything ever changed as a result of it?
Mr. de Jong: That is an excellent question, to which the answer is "No". It
was made clear from the outset, particularly following signing of the treaty, that there
was no room for change.
Senator Tkachuk: What then was the purpose of the consultation process?
Mr. de Jong: I wonder that, too.
Senator Tkachuk: I asked the witnesses from the Nisga'a Nation who came here last week
how they would finance their government. They have a population base approximately the
size of the city of Melfort, Saskatchewan, which is approximately 5,000 people. In our
province, you just meet the qualifications for a city with that number.
I thought that their answer was rather vague. In the paper that you distributed today,
on "The Nisga'a Template", you mention that it will have the power to impose
direct taxes on Nisga'a citizens living on Nisga'a lands. Are you saying that they cannot
impose income tax? From where do you get that?
Mr. de Jong: The negotiators will tell you that the deal contemplates taxation
agreements between the various levels of government. We try to be fair in this document by
pointing out where that taxation authority exists now and where it may be negotiated in
the future. That is particularly true when we raise a concern about the possibility of the
Nisga'a government imposing taxation on non-Nisga'a.
That is not in the agreement now. However, we have received information from the
negotiators that the deal is structured in a way that would allow for that transfer of
authority from the federal government in the future.
Senator Tkachuk: Both in newspapers and in testimony, we have seen a number of
different estimates as to what the cost of this agreement will be. What is your party's
position, for the record, on the cost of this agreement to the Canadian taxpayer?
Mr. de Jong: Our analysis puts the cost at approximately $490 million, close to $500
million. That appears at page 5, number 11, in the document that I distributed.
It is far from an exact science. When you look at issues like timber and mineral
rights, to the extent that they may or may not exist, these are assigned values. During
the debate in the provincial legislature, it was frustratingly difficult to learn the
basis upon which that quantum was agreed. The best we got was, "It is a negotiated
value." They determined, for example, the value of timber through the negotiation
process, but it was not particularly scientific.
Senator Tkachuk: Would it be safe to say that all three groups -- that is, you, the
department, and the Nisga'a -- are estimating the cost?
Mr. de Jong: In fairness, I am conceding that from the outset. This sounds very
partisan, but the proponents of the deal presented a figure that was significantly lower.
They defended that on the basis that it was indeed a certain figure; however, we have
since learned that the cost is far from certain.
I am not particularly comfortable picking on the Nisga'a, who have been patient and
persistent. They deserve a deal. However, there is a hidden cost that no one wishes to
discuss, namely, that of ongoing consultation. From the provincial government's point of
view, all the costs must be admitted and quantified by the people in positions of
responsibility. That has not taken place.
Senator Sparrow: There are three things that must be addressed. First, why do you feel
the bill is not constitutional?
Second, if the bill is unconstitutional and the agreement goes ahead under clause 35
and becomes constitutional on that basis, how should the agreement be amended, in your
opinion? This agreement states that three parties can agree to change it, but if it is
"constitutionalized," does it require an amendment under the constitutional
Third, the minister and the Nisga'a Tribal Council appeared before us. Both of them
stated that this agreement could not be amended or changed because that would destroy it.
That is a strong statement. If the Senate made an amendment of some description, it would
presumably have to go back and be dealt with by the Nisga'a people, by the signatories on
behalf of the federal government and British Columbia. That seems to be reasonable.
If the self-government provisions of this agreement were removed and established
separately, would that change your general opinion of the bill and how it would affect the
Mr. de Jong: I think I discerned about five issues there. The quick answer to your last
question is that it probably would. Let us take an issue like taxation and the fact that
Nisga'a, over a period of years, will assume some of the personal taxation
responsibilities that other Canadians have. We can argue about the length of time, but
that is a function of negotiation.
Senator, you have put your finger on a real cause for concern for us, namely, the
presence of self-government provisions within the treaty itself. Many of our concerns
would be addressed if we began to talk about a Yukon model, or even a Sechelt model. That
is the case.
On the question of amendments, this proposition has been put to us on numerous
occasions. First, the deal has been signed and you must ratify it. If you change the
agreement or reject it, all is lost. My response is that the Nisga'a had to ratify it.
They went through an onerous process of consultation, where they met with their people,
their constituents, and kept them apprised as best they could. They will tell you that it
was a considerable chore for them. This agreement passed, but not by an overwhelming
What would have happened if the Nisga'a negotiators had been confronted by rejection? I
guess we would have gone back to the table.
They would have received instructions from their constituents to try to get a better
deal. It would have been frustrating for everyone, but I do not think it would have been
catastrophic in the way that we are being told examining, critically analyzing and perhaps
changing parts of the agreement would be catastrophic. I take some exception to that
I cannot do the justice to your constitutional question that experts could. However, in
essence, if we have a constitution that contemplates an exhaustive division of powers
between two jurisdictions, federal and provincial, you can create a third animal. You can
create a third level of government that will have paramount authority in 14 specific
areas. Nothing prevents us as a nation from doing that. However, that is surely a change
from our present Constitution.
It is difficult to amend our Constitution. There are people in this room who know that
better than I. However, it is not acceptable to simply say that because the cause is right
and noble, in this case we will ignore the amendment procedure that is built into the
I have difficulty responding to people who ask me: Why do we have a constitution if, on
the altar of political expediency, or, when the cause is sufficiently just, we will find a
way to get around it through the back door? I have difficulty justifying that process.
Senator Grafstein: It is not up to this committee to deal with questions of process on
this issue. We are dealing with a Senate process. What happens in other jurisdictions is
We think we have an open and fair process. We have had a quiet but important debate and
the committee chairman has assured me that we will exhaustively address these issues. It
is not very useful for us to second-guess events in other legislatures. I say that to you
because I would prefer you to get to the heart of the matter, rather than deal with the
unfairness of the previous process. We will be fair. Second, I will not address
constitutional questions; we will wait for the experts.
I wish to deal with the political questions. In their testimony, the Nisga'a
representatives said some things that caused me to re-examine some of the basic
principles. You have raised this issue of basic political justice, which I wish to talk
about You have taken the position that the current situation is unjust for many different
reasons. Let me deal with one issue.
Last night I re-read the 1754 proclamation, written before Canada was a country. That
was referenced, in a Supreme Court of Canada case, by the counsel for the Nisga'a as a
basic principle upon which they are asserting their rights.
In reading that proclamation, it was clear to me that, as the Constitution of Canada
affirms, there were pre-existing but undefined rights. That is the Charter of Rights.
As I understand it, the Nisga'a are trying to formulate and define those particular
rights within the context of the Constitution. How do you deal with that issue as a
question of justice when, as we have been told, it was left up to a negotiated process to
define those rights? They have carefully parsed every aspect of them.
What troubles me in the proposition you are presenting -- which was the proposition
with which I came to the Senate, and I am trying to modify my view -- is how do you say to
those who have made, I understand, substantial concessions in the bargaining over lands,
rights, and other issues: Wait a second, I want to add something more; you can either
unbundle it or not? Where is the justice in that? I agree with you, the process is flawed.
We are here de facto and must deal with the situation as presented. How would we answer
the Nisga'a group, who have told us that they made substantial concessions at the
negotiating table? Do they re-open the whole process and ask for more?
The prospect of a simple amendment is very alluring for me, but how do I convince
myself that it is just, without the Nisga'a coming back and saying: I want this, this and
this, which may be more extravagant? How do you do that as a just politician?
Mr. de Jong: Senator, why then are we here?
Senator Grafstein: I understand the difficulty we are in. I want to know how, from a
political theorist's point of view, we can just in a political situation where we have
agreed in Canada, under the Charter of Rights, that aboriginals have pre-existing rights
that were undefined, but here is the process of definition.
I do not like the process, I am not happy with it, but at the end of the day the
parties have struck a bargain. I am asking you, do you think it is just for us to undo
that bargain? I am asking myself the same question.
Mr. de Jong: Let me give it a try.
The political theory that you are presenting forces me to conclude that the test of
whether or not a draft treaty is worthy of support is simply whether or not the Nisga'a
have signed it.
Senator Grafstein: No, the provincial and federal governments also signed; it was not
just the Nisga'a. This is a tripartite agreement.
The Chairman: I would prefer if the witness were allowed to answer and then we went on
to the next issue.
Mr. de Jong: I am not sure I can do justice to what I know is a well-considered
question, although I would love the opportunity to follow it up with you.
The Nisga'a have made concessions. The Gitanyow will tell you that they have had
concessions forced upon them by virtue of the manner in which this deal was signed. We can
all claim that concessions have been made.
I agree with you, senator, that this is about substituting a bundle of undefined rights
for something more certain. Surely, that is what this process is about.
I could ask you: Is constitutionally enshrined self-government an inherent right? It
will become an agreed-to right. However, I can tell you this: First Nations people in the
numbered treaties will look at this and conclude that self-government is an inherent
It is a process of negotiation and there have been concessions. It is a difficult
process, but I think it is problematic to limit the debate once the executive branches of
two levels of government have said they are satisfied.
Senator Andreychuk: You are challenging this process. Many of us challenge processes
wherein our governments, in the international arena, are caught up in negotiations and
then formulate treaties. We have no say in those. We also have a take-it-or-leave-it
situation when the executive arm negotiates an international treaty. That is a conundrum
throughout the whole treaty system and we should not isolate the Nisga'a situation as
If we were to undo this treaty now by virtue of amendment, what do you believe would be
the consequence for British Columbia? There is uncertainty now and questioning of this
negotiated settlement. Do you think there would be more difficulty or less?
Mr. de Jong: The objective, senator, has always been to reach workable settlements with
First Nations because the presumption is that a benefit will flow from that, that as long
as this claim, ill-defined as it is, hangs over title in the province, it will be an
impediment to attracting investment. All those issues that this committee has heard about
from other witnesses will continue to be problems.
The court will be asked to rule on the constitutionality of this deal. I wish that that
had happened some time ago, because if the Nisga'a people discover, after the lengthy
process through which they have gone, that courts in this country believe that not only
the process but also the result is flawed, they will be angry and frustrated, and that
will have repercussions throughout the aboriginal community. It would have been far
better, in my view, although I understand that we cannot undo history, to have had the
opinion of the court on this matter sooner rather than later.
Senator Chalifoux: Thank you for appearing before us. This is a very interesting
What is your definition of "template"? The title of your submission is
"The Nisga'a Template". Please explain the word "template" to me.
Mr. de Jong: There was much debate in British Columbia about whether this would be a
model for future negotiations. At one point, the premier, as he then was, Mr. Clark,
indicated that it would be. Later, the government indicated that that would not be the
case. First Nations people go to great pains to point out that the Nisga'a treaty is far
from being a template. They do not feel bound by it at all. One leading representative of
the aboriginal community said that this was a floor, not a ceiling, and that they will
start from there.
Whether we call it a template, a precedent, or a model, it is the first contemporary
treaty and it will surely influence the direction of future treaty negotiations. You will
be hard pressed to find First Nations negotiating for less than they perceive to have been
offered in this treaty.
Senator Chalifoux: I question your opinion on that. I have been involved in treaty land
claims since the 1970s in the Northwest Territories, Alberta, and B.C. Each claim is
totally different and is negotiated under different terms. They deal with different
nations, different cultures, and different languages. I think that the term
"template" is very misleading. I suggest that you change the title to "The
Nisga'a Treaty", because that is exactly what it is. It is not Treaty 8, or any other
treaty. It is not the Lubicon land claim. It is the Nisga'a treaty. I suggest that you
look at it that way, because once you begin lumping all land claims into one you create a
problem, since they are all different.
Also, you spoke about the cost to the Canadian taxpayer. Only about 2 per cent of
Canadians are aboriginal, yet they constitute over 60 per cent of inmates in our jails. We
must look at poverty. Over 49 per cent of aboriginal people are homeless, and there are
great costs to the taxpayer associated with that.
Are you saying that the money that will be given to First Nations peoples through the
Nisga'a treaty, which will assist them in become self-sufficient, will not help the
justice system, social services, and the homeless? Have you looked at the larger picture
of the benefits that a treaty such as this would bring to all of Canada?
Mr. de Jong: Senator, although I have offered a more critical assessment of this
document, please do not question the desire of myself and my colleagues to remedy the
terrible historical record to which you have correctly alluded. The fact that my idea
about how we might best do that is different from the one contained in these pages does
not disqualify me from participating in the discussion. That is surely what this is about.
I hope that this is about a recognition that we must eliminate these injustices,
inequalities, and lack of access to opportunities that all of us around this table
recognize. However, I genuinely have doubts that this document will do that.
I will communicate your observation on the use of the word "template". There
are currently about 50 independent treaty commissions in process in British Columbia.
Senator Chalifoux: I appreciate your comments and certainly accept your concerns. We
must be fair and look at all areas.
The Chairman: I have a question about the presentation to the Standing Committee on
Aboriginal Affairs and Northern Development on December 18, 1999, by Gordon Campbell, MLA,
Leader of the Official Opposition. He said:
...I am committed to giving all British Columbians a one-time, province-wide referendum
on the principles that will guide the Province's negotiating mandate for future treaties.
Make no mistake: a government under my leadership will not accept this Nisga'a treaty
as a template for future treaty settlements. We will not endorse any treaty until there
has been a genuine attempt to engage all British Columbians in a meaningful debate on the
principles that they expect treaties to embrace.
Is that the position of the Liberal Party of British Columbia?
Mr. de Jong: Yes, it is.
The Chairman: Mr. de Jong and I will agree that his party and the federal Liberal Party
are totally independent parties.
Mr. de Jong: Thank you, senator.
I have referred to some documents, while you have referred to another. I do not have 25
copies of everything. For example, I have the Statement of Claim for the court action in a
binder, if there are senators who need to refer to it, and I will leave this binder with
The Chairman: We appreciate that and will take it as a reference document. I also wish
to express my appreciation, Mr. de Jong, for your participation this evening. It has been
Our next witness is Gordon Gibson. Mr. Gibson is Senior Fellow, Canadian Studies,
Fraser Institute. In his past career, he served in Ottawa as well as a B.C. Liberal
leader. He is also a well-known writer on Canadian affairs in various newspapers and
periodicals. Mr. Gibson, thank you for coming.
Mr. Gordon Gibson, Senior Fellow, Canadian Studies, Fraser Institute: Mr. Chairman,
when I was B.C. Liberal leader, the two parties were the same. Things have changed since
It is a pleasure to follow Mr. de Jong and to associate myself in particular with his
remarks that British Columbians generally wish for a fair and equitable settlement of
aboriginal issues in our province, which, for historical reasons that I will get to, has
not happened thus far.
As the chairman said, I am at the Fraser Institute. My writings tend to be mainly on
federalism, governance, and aboriginal issues. Thus far, the Fraser Institute has
published four papers on the Nisga'a treaty over the past 18 months. The core of my
presentation today will be a fifth paper released this week, which is called,
"Principles for Treaty Making," and which has been written on the basis that
those who oppose the Nisga'a treaty have a duty to suggest alternate solutions. I have
left with the clerk a copy of each of the first four papers, as well as numerous copies of
the latest one.
I will talk mostly of principles, if I may, skipping relatively quickly over some other
matters. I wish to speak at the outset about the importance of this treaty. It is the
first of more than 60 in British Columbia, if things unfold the way I expect. I am
inclined more to call this treaty a floor than a template. It is a floor in the sense of,
let us say, union negotiations. Once one local has achieved such and such, it is very
difficult in political terms for another local in the same business to readily agree to
something less. Politically, it is an important floor.
Until the Nisga'a treaty, the generally accepted cash and resource equivalent of making
good on aboriginal issues in British Columbia was thought to be around $10 billion. The
Nisga'a treaty standard has escalated that to something closer to $15 billion. When
Delgamuukw fully kicks in, it will be $30 billion plus. There are direct implications of
this treaty for any of you who represent the eastern part of Quebec and most of the
Atlantic, where treaties other than peace and friendship treaties are not yet in place.
Land claim treaties, for the most part, have not been concluded there. There are
implications for reopening numbered treaties in other parts of the country.
Of greatest importance is the human question raised by the Nisga'a treaty, which
elaborates, deepens and entrenches 133 years of failed policy.
I should like to take a moment to set out the context for how we got here. By way of
the Oregon Treaty, the Supreme Court of Canada noted that in 1846 British sovereignty was
extended over the land that is now British Columbia. The Supreme Court further found that
British sovereignty and the underlying British title was burdened by Indian title. We know
that from Delgamuukw. That is the law of Canada.
A fascinating question that must be and will be pursued is: Was there any measure of
retained Indian sovereignty as well as title?
I will next draw your attention to the year 1867. At that time, seven dreadful words
were inserted into the Constitution, giving the federal government responsibility for
"Indians and lands reserved for the Indians". The society of 1867 was sexist,
racist, and religiously intolerant. Women, Jews, Catholics, Chinese, and Indians were all
second class in British Columbia. Only Indians were mentioned in the Constitution and
everyone else is fine today. Yet we propose to constitutionalize another chapter in that
Moving on in time, a period of enlightenment began to dawn post World War II, beginning
with the re-awarding of the franchise. One of the first things the new Province of British
Columbia did was to disenfranchise the Indian people. The residential schools were
gradually closed down. In 1969, the Trudeau-Chrétien white paper was published, an
indispensable document for anyone wishing to seriously research this question. In 1973,
there was the famous Calder decision, in which the Supreme Court of Canada found that
Indian title had existed, but split 3-3 on whether it still existed in British Columbia.
I am indebted to Doug McArthur, the previous deputy minister to the premier of British
Columbia, who is now at the University of British Columbia, Political Science Faculty,
where I taught as an associate of his in the fall. I am relying on an unpublished paper of
his. I do not wish to put any words in his mouth because I know he disagrees with me on
the treaty itself. However, he described the reaction of governments to the 1973 Calder
decision as one of confusion and alarm. A seminal decision was made at that point on
treaty negotiations that had commenced. That decision was to try to avoid considerations
of the past, and to avoid dealing with title and compensation, because they were said to
be impossible and too vague to deal with and possibly very costly. Instead, it was decided
to try to deal with the future. The result of that decision has been to put everything on
the table with no guidelines. In effect, there have been no principles for treaties
making. It has simply been a question of how to make a deal.
Post-1973, we have seen the development of the theory of a collective inherent right as
distinct from an accepted individual right to self-government. This is a doctrine that,
thus far, is entirely unsupported by the courts and in fact rejected by some of them.
Within that context, here are the chief errors of the Nisga'a treaty. The first and
largest error, an error of our entire policy, is treating Indians as fundamentally
different from other Canadians.
The second error is establishing a government based on a closed membership society. All
other governments in British Columbia are based on open membership.
The third error is constitutionalizing a third order of government.
The fourth error is the consequent undermining of common Canadian citizenship values.
The fifth is the constitutionalization of a pervasive power structure giving Indian
governments very unusual control over their subjects.
The sixth is elevating collective ownership over private property.
The last, which is very much to be underlined, though not directly the business of this
committee, is the short shrift given to the 50 per cent plus of Nisga'a citizens who do
not live on the lands. This is one of the chief problems of the treaty areas. Many people
think the treaty will solve the question of aboriginal and non-aboriginal relations, but
it does nothing, or very little, for people in urban areas.
If, in my view, the treaty is wrong, what is right? That is why we need to have
principles. We also need to recognize obstacles.
Our current Indian policy is based on Indians being different and has been built up
over many generations. There is a large class of persons who have a vested interest and
draw their own status, and in some cases income, from the fact that Indians are different
from other Canadians. To challenge that idea is guaranteed to generate a lot of
controversy. Vested interests always defend themselves as best they can.
I will adduce two categories of principles. For the first, I will move quickly over
procedure and settlement. The second, and important one, is the question of governance.
In procedure and settlement, the mandate of the negotiators has been totally
insufficient. One of the senators asked Mr. de Jong how this committee could possibly
re-examine what has been done. I would argue that the difficulty is that governments did
not seek a mandate, not even from their legislatures, in any kind of detail. Basic
principles, such as the equality of Canadians, were never brought into question by
governments before they sat down at the table. This is extremely fundamental; the basic
mandate was not there.
In my paper, I speak of the goal of reconciliation and the different motives around the
table on the issues of equality and finality, what I call the "forever problem".
Once you decide to put something in the Constitution, it is much tougher to reach
agreement. The difficulties of clarity. The matter of equity. All of us must accept that
the quantum of settlement will be very large. When I use numbers like $30 billion, I am
not exaggerating. When I use numbers such as 20 per cent of British Columbia forest lands,
I am not exaggerating.
In economic terms, it does not really matter who administers a particular piece of
forest land in British Columbia, whether it is chief or premier. Indeed, you can make
arguments for privatization. However, the numbers will be large.
Finally, under procedure and settlement is the question of disentanglement. I return
again to Mr. de Jong's statement about the great difficulty, especially when looking at
more than 60 treaties, that the government of British Columbia must consider. They are
required to consult with every third order of government before making amendments that
touch any of the vast number of provincial responsibilities in this agreement.
I move now to governance. The most important principle of treaties should be to ever
work towards political equality. Underline that word "political". Indians have
special rights in law that other Canadians do not, and they are property rights. I say all
treaties should work towards reducing the political inequality between Indians and other
Canadians. I say that there should be no third order governments.
I should like to suggest to you the three arguments as to why there should be a third
order of government and give you my views on them.
The first argument is that Indians are so different from other Canadians that they need
a different government system. The current system bridges the young and the old, the rich
and the poor, men and women, gay and straight, communist and capitalist, Scot and Chinese,
Catholic, Muslim and atheist, and the solitary hermit and the communal Hutterite. I reject
the "too different" arguments as patent nonsense.
The second argument is that we should establish a third order of government in the form
in which aboriginal government existed at the time of European contact. In response to
that I would say that every government in the world has changed immensely in the past 200
years, and surely the proper test of a modern government is utility, not history.
The final argument is that separate Indian governments are required in order to
preserve culture. I would note that other cultures have survived nicely around the world
without legal recognition and often in the face of persecution. More fundamentally -- and
this is an unending debate in Canada -- the preservation of a culture is the job of its
adherents, not of governments, and certainly not via the instrument of coercive law.
In that context, I would pose a moral thought experiment for the committee. I would ask
you to consider two newborn Canadian children.
One child is ordinary in every way and has the protection of the Charter of Rights and
Freedoms. The parents look after the inculcation of culture and morals. The school system
educates that child. The state stands ready to be backstop if things go wrong.
The second newborn child is status Indian. That child is subject to a distinct system
of law and a distinct system of financial and other incentives, which are imposed not by
the parents but by the broader Canadian society. The moral question I put to you is, what
right have we have to do that?
My conclusion on third order government is that ordinary municipal governments are the
I would go on briefly to talk of small governments with large powers. Imagine living in
a town where the mayor and council controlled almost all of the cash flow in that town.
They controlled whether you had a house, whether your plumbing got fixed in a timely
manner, whether you had access to a transportation pool, whether your kids got
scholarships and who got most of the jobs. The net result is a situation where, instead of
the people controlling their government, the government can control the people.
That is not imaginary; it is visible in some sections of Canada. It has nothing to do
with the Nisga'a people or the Indian people. It has to do with the words of Lord Acton,
who said that all around the world, power corrupts. It has always been the question, and
the genius, of modern society: how to control the government, to check and balance it?
The government to be created by this treaty will have immense power vis a vis its
citizens. Municipal government with municipal powers is more appropriate.
The Nisga'a agreement imposes a collective management regime. The single, mainly
agreed-upon economic lesson of the 20th century taught by the failure of communist society
is that collective asset management does not work, either in terms of efficiency or in
terms of freedom.
My conclusion is that forced collectivization is improper and should not be
constitutionalized. The other option is individual empowerment. It is to give individuals
the choice of taking some or all of a given settlement as their personal, private
This approach would do two things. It would empower the individual vis-à-vis the
collective, and it would serve as the only practical means of being fair to off-lands
members, both in financial and political terms. I would note that the off-lands Nisga'a
are in excess of 50 per cent of the population, but will have only 10 per cent of the
representation on the council under the Nisga'a consitution.
My final point under principles is transparency. Transparency is fundamental to
democracy, and the treaty language is not reassuring. Even Parliament, as is of course the
case at present but can be changed by law, will not be able to know the details of use of
public funds -- $ 33 million per year in the case of the Nisga'a. The treaty does contain
language about transparency. Unfortunately, it relates not to the high standards of
municipal disclosure, but to the disclosure levels of other, senior governments. The
relationship between the Nisga'a government and the federal government is to be protected
by intergovernmental privilege and kept secret.
In summary, Mr. Chairman, my advice is this: In a field that is so littered with
failure, flexibility, rather than a constitutionalized and therefore effectively
unchangeable approach to governance, is required.
To come back to Senator Grafstein's question, a very simple amendment would do that. It
would simply say that the governance provisions of the Nisga'a treaty are not entrenched
for the purposes of section 35. You would not have to change anything else in the treaty,
including the governance provisions themselves.
The second principle is this: The dignity and worth of individuals should supersede
that of collectivities, which are only public utilities.
The third observation: Solutions must have general support, unlike the Nisga'a treaty,
which does not have support in British Columbia -- indeed the majority are opposed to it,
the last I saw -- or else they will fail. Solutions that are not supported by Canadians
generally will not, in the long run, be funded by Canadians generally.
Even more basic than that, Canadian values such as equality, democracy, accountability,
the coupling of entitlement with responsibility, the tolerance of diversity, citizenship
and mobility rights, and so on are so fundamental and cherished that it is difficult to
see how any relationship not based on such ideas can endure. These value references are
not mere platitudes and they are not new concepts, but they are brought to the fore by
casting in constitutional concrete the mistakes of the past. These are genuine issues when
one assesses proposals for embedding, by treaty, small, special purpose, closed and
culturally homogeneous societies within a large and pluralistic open society.
The Chairman: Thank you, Mr. Gibson. Your presentation was very well articulated.
Senator Comeau: I am pleased that you did not mention the question of referenda. I hate
You mentioned approximately 60 treaties that have yet to be negotiated in British
Columbia, as well as treaties to be brought forth in other jurisdictions of Canada. You
mentioned specifically Quebec and Eastern Canada. As an Atlantic Canadian, I have seen
very little discussion, either publicly or in the news media, of the Nisga'a treaty. I
became interested in case it did have an impact on Atlantic Canadians. Given that I have
been following fisheries issues for a number of years, and I heard the word mentioned in
the Nisga'a issue, I started doing some reading.
I will not use the word "template". I understand it is a nasty word. I will
use the word "precedent". I received a response last week from a Justice
Department official that basically said that they now view allocations of fish not as
exclusive to fisheries, which is how they are described under the Fisheries Act, but as
something that the government can now allocate to groups, which as far as I know, has
never been done in the history of Canada. They can now do it, and any future amendments to
that allocation would be out of the hands of parliamentarians. That again is a brand-new
What would stop Minister Nault from signing a treaty in Atlantic Canada to allocate 50,
70 or 75 per cent of the lobster, snow crab, tuna or groundfish to the Mi'kmaq? What
prevents that if the Nisga'a agreement does go through? The Justice Department official
said: "This is not an allocation. It is perfectly within our rights as a
government." Have you looked at this question and what is your comment?
Mr. Gibson: I suppose my facetious response to what would stop him would be, an
Senator Comeau: It did not stop him last time.
Mr. Gibson: In a more serious vein, in the Marshall decision, which I am sure you have
read, while the Supreme Court swallowed itself whole in their amendment to that decision,
it unquestionably says there are aboriginal property rights in the Atlantic fishery, and
presumably it will be up to Minister Nault, his officials and the Government of Canada, to
decide, no doubt through negotiation, the quantum of those rights. I saw an article
stating that up to $500 million was being set aside to purchase licences from
non-aboriginals, so that may be a measure of the quantum.
Senator Comeau: The dollar amount as such is not the part that concerns me, if we spend
the money -- and I agree with this -- to encourage aboriginals to join our Atlantic
Canadian fishery. For some reason, they have not done so in the past, and I hope to see
them become part of the commercial fishery.
What is stopping Minister Nault from doing exactly what has been done on the West Coast
-- taking a part of the fishery and reserving it for a particular group? This has never
been done in the history of Canada, fisheries being a public resource. What is stopping
Minister Nault from going from what is being contemplated in the short term, which is to
buy licences in order to hand them over to the Mi'kmaq, to something much broader, which
is to actually reserve a part of the fishery for them?
Mr. Gibson: To the extent that the minister was recognizing the Mi'kmaqs' property
rights, as defined by the Supreme Court, I do not believe that anything could stop him,
and in fact I think he would be forced to do it.
Let me distinguish the question of property rights from that of political rights.
Property rights are there. They are in law and something we accept.
Senator Beaudoin: My question is about the third order of government concept. I agree
with you that this concept is the bedrock underpinning the recommendations of the Royal
Commission on Aboriginal People. I agree with you that, so far, no court has found any
constitutional support for this idea. The Delgamuukw case is central, and there was no
recognition there of such a third order of government. I do not know what the Supreme
Court will say in one, two or three years from now. Obviously they will continue to rule
on the issue of aboriginal rights, on collective rights, and on treaty rights. That is
different from a third order of government.
You seem to be in favour of some kind of government for the aboriginal nations. They
are nations, and there is no doubt about that in law. If I understood you correctly, you
conclude that it should be a municipal-type government. That is a possibility, of course.
However, I discuss this question quite often with the aboriginal nations, and in my
opinion, they will never accept that because they do not want delegated power. They want
to derive power from the Constitution itself. This is the constitutional problem that we
must face in this country. You see, if it were a question of delegation of powers, it
would be peanuts. That would not be a problem.
It is easy to delegate powers to municipalities. However, since aboriginals want their
powers to come from the Constitution itself, we must rely on their treaty and collective
rights, because they are a collectivity quite different from all others in this country. I
should like to know if you really think that the municipal type of government will settle
Mr. Gibson: In my section on reconciliation, I make the point that this is the
fundamental articulated goal of the treaty process, although the real goal of governments
is settlement of land titles. In any event, they say reconciliation is their goal.
The general public wants all Canadians to live together in goodwill and harmony.
Therefore it is highly desirable that arrangements be voluntary. I then go on to state the
It is this very strong wish by the majority of Canadians that gives great bargaining
strength to the numerically tiny aboriginal side of the table. Aboriginals must agree, or
the deal may not meet the "reconciliation" test.
However, this does not imply an aboriginal veto on all future arrangements. In
democracies everywhere, majorities reserve the right to eventually impose reasonable
ground rules on minorities if that is the only way to resolve urgent and important
Senator Beaudoin: Yes, but in the division of powers under the Nisga'a treaty, there
are no exclusive rights for aboriginals, if I am not mistaken. I will also ask Professor
Morse that question, but as far as I can see, they have concurrent powers with the federal
authority, with paramountcy in a few sectors. It is a nice debate, because then they have
the final word. Is this to be reconciled with the two orders of government that are the
basic foundation of this country? Federalism is a system of two orders of government. Is
this paramountcy adding a third order of government? I do not say that it is. The Supreme
Court of Canada has the last word because it is an interpretation, and when a law or the
Constitution is to be interpreted, the final word always comes from the Supreme Court. It
may be quite acceptable, but I should like to know a bit more about it. What do you think
of the question of paramountcy in some sectors?
Mr. Gibson: I agree that paramountcy is the issue. Federalism need not be only two
orders of government. The current Constitution of Belgium, for example, provides for three
Senator Beaudoin: No; it is a federal state.
Mr. Gibson: Yes, but there are the cultural as well as the territorial communities, and
then you have the central territory jurisdiction. It is an interesting mix that contains
more than the regular model of two.
Senator Beaudoin: It is more complex, but it works.
Mr. Gibson: If you are going to change the Canadian Constitution, then, to come back to
Mr. de Jong's language, you need to do it through the front door. What have the courts
said on this? In Delgamuukw, the B.C. Court of Appeal was extremely clear on the issue of
self-government. The Gitxsan claimed aboriginal title and sovereignty over the territory.
The B.C. Court of Appeal stated that "There is no room for additional
sovereignty." Sovereignty is entirely exhausted between the two orders of government.
The Supreme Court of Canada declined to rule on that issue. However, in Pamajewon, where
they found that there was no aboriginal self-government right to regulate gambling, in an
aside, they said that if there were any aboriginal right to self-government, it would be
extremely circumscribed. That is all we know about the views of the Lamer court. I do not
know what to say about the new court. Going back to 1846, you would have to find that not
only was British title burdened, which is a common law concept that is not difficult, but
that British sovereignty was burdened. That is a much more difficult exercise.
Senator Beaudoin: Yes.
The Chairman: Senator Beaudoin, could you continue this line of questioning with
Professor Morse? We should move on. We have a list that I am anxious to accommodate.
Senator St. Germain: My question concerns the remaining agreements to be negotiated in
British Columbia. British Columbia is our province and it is our concern. The impact is
directly on us as British Columbians.
One senator brought up the question of justice or injustice. I should like your comment
on the following. If this particular agreement is signed under the cloud that presently
exists in British Columbia -- and I will not get into a debate on what percentage is
supporting it and what percentage is not -- what chance do you think we have of settling
the other approximately 50 agreements? Do you think it puts other native groups, such as
the group that is sitting behind me, the Gitxsan, who have an overlap situation, in
jeopardy? How reluctant do you think future provincial governments will be either to enter
into these agreements or to carry on with these negotiations if the treaty is the floor
that you describe?
Mr. Gibson: Certainly Mr. Richardson, who will be appearing later, will be able to tell
you about the difficulties of the current treaty process. There seems to be no question
that the refusal of governments to discuss title and compensation is causing a great deal
of trouble. The aboriginal side of the table has every reason to be upset about this
because that is exactly what Delgamuukw awarded them. That is a difficult question to
resolve in terms of a future government of British Columbia. Perhaps Mr. de Jong has given
you some feel for that. I cannot speak for them, but I can say with great certainty that
unless the treaty process is supported by the people of British Columbia, it will not
work. I am suggesting that some of what we see in the Nisga'a treaty simply will not work.
It will not be supported. I am not talking about the dollars and I am not talking about
the land. I am quite prepared to say that there will be a change in the ownership of a lot
of the Province of British Columbia. The irreducible bottom line for a lot of people is
political equality for all Canadians.
Senator Sibbeston: Mr. Gibson, I appreciate your thoughtful comments. Obviously, you
have thought about it. I presume you really do mean "good for the people in B.C. and
native people and people elsewhere in Canada." It sometimes puzzles me when everyone
says that we have a history in which we have not been very good to native people. There
has been a turning point. You said that the Calder case was significant in changing the
attitudes of Canadians to the possibility of aboriginal people having title to land. There
have been many developments since then. The Supreme Court has been instrumental in
outlining aboriginal rights and the Canadian public has also been instrumental in putting
aboriginal rights in a constitutional context. All of these events have had a positive
effect on aboriginal peoples in the country.
I really have a hard time understanding why people like you neither see nor recognize
the process which has been in put in place for the Nisga'a people. This is an historical
process. They have been trying for over 100 years to assert their rights and obtain
recognition. Finally, in 2000, after years and years of work, they are thinking about the
how their lives may be improved.
I see this modern treaty, this bill, as a culmination of the best of Canada. The
federal government, the provincial government, and the aboriginal people themselves have
spent years negotiating this agreement.
Do you not think this agreement will work, considering all the time and thought that
has been put into it? So much effort and energy and money have been applied to the
process. Native people are now conscious of the system. It is not like the old days, when
native people were at a disadvantage in making treaties, accepting beads and blankets.
Native people today are entering into treaties with open minds and aware of everything.
You think delegated powers would suffice, but is it not true that the status quo of
delegating powers to bands in Canada is not working? That is how the Indian Act functions,
and it is obviously not good enough for the Nisga'a and other native people.
Do you not have hope? Do you not trust the native peoples? They are trying to improve
their lives and they believe this agreement offers them a good future.
I think of other peoples across the continent, such as the Navajo, who have typical
self-government rights. Nunavut has a public government. Other native bands have already
acquired some of the provisions contained in this Nisga'a treaty.
As Canadians, we have all worked towards bettering ourselves. Now it is up to the
native people to complete the job, asserting their own rights and making good lives for
themselves so they can be happy, contributing Canadian citizens.
Mr. Gibson: There is one key phrase in your question, senator, that tells me I have
failed to communicate something. That is, "Do you not trust the native peoples?"
Senator, I make no distinction whatsoever between native people and ordinary Canadians.
That is the essence of my argument. The political arrangements that foster and enlarge on
that distinction will work against concepts of Canadian citizenship for the polity as a
whole. They will work against the interests of the Indian people. Indeed, they are the
culmination of 133 years of policy failure.
I say that, casting no aspersions on the goodwill of those who have designed this
treaty. The evidence of history, all logic and reason, and the development of western
political thought say that this is wrong. There is much in this treaty that can be
salvaged, but it is wrong to treat the Indians as a different component.
Senator Grafstein: Mr. Chairman, I am curious about Mr. Gibson's suggestion that there
is an "immaculate conception" to the concerns that some of us share about
undoing this bargain. You have said that there is a simple amendment that would be
acceptable and not deleterious to the negotiations. Please explain that more fully if you
would. How can one simple amendment put all your concerns into neutral?
Mr. Gibson: Clearly, I do not say the amendment would not change things; it would
change things in important ways, in terms of theory and principle, but not in operational
terms. I suggest a simple amendment stating that the governance provisions of this treaty
are continued -- not changed by one comma -- but are not considered part of the rights
entrenched under section 35. In that way, one would preserve the experiment that has been
crafted by these negotiators but would leave open the possibility that, if it does not
work, it can be revisited and improved.
Senator Grafstein: How?
Mr. Gibson: How? As long as the governance structure remains delegated, it can be
changed by the governments concerned, by the federal and provincial governments
Senator Gill: Your statement is very strong. I think I understand your point. You want
the business of Native peoples or of the First Nations of this country to be managed
according to Western values. This is what I understood from the translation.
Have you been governed by Western or Eastern values, until now? Who devised the Indian
Act? On which basis and according to what values have Native affairs been managed until
now? Are you satisfied with the results?
Since I'm a new senator from Eastern Canada and that you are a Westerner, I would like
to understand how non-Natives and other Canadians perceive Native issues. Does the Fraser
Institute represent a majority of British Columbians? Who do you represent?
Mr. Gibson: Senator, I will answer the last part easily and first. I represent myself.
If my ideas have any value to you, then they have value. If you do not like them, they
have no value and no force. I do not speak for the Fraser Institute, nor does any other
analyst of the Fraser Institute. We all operate as individuals. I hope that will answer
As to your other question, the Indian Act was indeed created by non-aboriginals. That
is part of my criticism. It has been a terrible failure.
If I understood the translation correctly, you say the aboriginal people should
continue to be managed according to North American values. That is not my position at all.
It is my position is that every Canadian should be politically equal and free to choose
the culture and the life in which they live, subject to regular Canadian laws with no
special set of laws depending on who your parents were. That is my position.
Senator Wilson: You stated in your presentation that the premise that aboriginal people
are different is nonsense. You also said that simply extending the franchise in the usual
way would be the way to go, and I suppose I consider that nonsense.
In terms of the preservation of aboriginal culture, I think the identity of a people is
involved here. To simply say that they are no different from other Canadians is to ignore
the historical cultural context of native people, as well as federal policy, which over
the years has tried to either assimilate or wipe them out, or destroy that culture. In my
interchanges with native people, I have come to understand collectivity to be the bedrock
of their culture, as opposed to what you said, that the bedrock of Canadian society is
private property and individual choices. You also said that is your personal opinion,
However, if collectivity is the root of their culture for many aboriginal people, by
what stretch of the imagination can you say this whole treaty proposal is forced
collectivization? Were they not part of the process? Was someone twisting their arms? Were
they not able to engage as full partners in the treaty making?
Mr. Gibson: When the proposition was finally put to a vote, according to Minister
Stewart, 3,300 people were eligible to vote. In fact, only 2,400 did. Presumably, most of
those who did not vote were off the land, though I do not know that. Therefore, at the end
of the day, less than 50 per cent of the Nisga'a eligible to vote for this treaty actually
voted in favour. That is point 1.
Point 2 is that it was an up-and-down vote. There was no choice given, such as,
"Would you like this treaty or would you prefer no treaty?" There was no choice
given, such as, "Would you like some land of your own and some money of your own,
with this quantum going to you and that quantum going to the government?"
What I am calling for, senator, is not imposition of my rules on anyone. I am calling
Senator Wilson: You mentioned the numbers who voted. I am not sure how that is
connected with force.
Mr. Gibson: You said that the Nisga'a people got what they wanted.
Senator Wilson: No, I asked why you used the phrase "forced collectivization"
if, in fact, they were equal parties to the treaty.
Mr. Gibson: That is because the treaty sets up a trust and a collective ownership of
resources in which, essentially, all the assets of the community are owned and managed by
the state. That would be the same as if all the land in were Canada owned by the federal
government. It is the same idea. Therefore, it is forced in that sense because it is
imposed by the treaty.
Senator Wilson: From your point of view, it is forced then?
Mr. Gibson: Yes.
The Chairman: Thank you, Mr. Gibson, for your presentation. You have attracted a great
deal of interest from our senators and I appreciate the work you have done in preparing
Our next witness will be Miles Richardson, Chief Commissioner of the British Columbia
Treaty Commission. Mr. Richardson, I hope you will give senators a brief background on the
commission before you talk about Bill C-9.
Mr. Miles Richardson, Chief Commissioner, British Columbia Treaty Commission: The
British Columbia Treaty Commission consists of five commissioners. One commissioner is
appointed by the Government of Canada, one by the Government of British Columbia, and two
by the First Nations collectively. Once those commissioners are appointed by those
respective principals, we become an independent body. We act in a neutral, impartial way
to facilitate treaty negotiations. That is our mandate. We do not have the authority to
arbitrate any matter. We carry out our mandate by monitoring treaty negotiations, and by
facilitating the removal of obstacles or disputes in the negotiating process as they
arise, at the request of the parties collectively.
Also, a part of our role is to educate the public in British Columbia regarding the
treaty negotiating process. We are charged by the three principals with the responsibility
of administering negotiations support funding for First Nations' involvement in treaty
negotiations in British Columbia. There is a very simple reason for that, which is to
create as level a playing field as possible. We do not want interested parties on the
other side of the table allocating negotiations support funding for First Nations. That,
in a nutshell, is a description of the treaty commission.
I wish to make clear at the outset that I am here this evening to make a very simple
recommendation, and that is the British Columbia Treaty Commission asks this committee to
recommend the Nisga'a treaty be ratified at the earliest opportunity, so that treaty
making in British Columbia will not be delayed or derailed.
Failure to ratify the Nisga'a treaty will seriously harm the honour of the Crown and
would make it difficult, if not impossible, for Canada to continue with treaty
negotiations in British Columbia. If I am to bring any message here tonight, it is that.
I will speak to you today about treaty negotiations in British Columbia generally and
then I would be pleased to clarify anything that I have said or answer any of your
The treaty commission operates by consensus in carrying out its mandate. We appreciate
this opportunity to appear before the Senate Aboriginal Committee. The commission was
established in 1993 to facilitate treaty negotiations in British Columbia. Though not
involved in the Nisga'a negotiations, the treaty commission has watched them carefully
over the past six years.
The Nisga'a negotiations were well under way when the treaty commission was established
and therefore we are not part of the treaty process. However, when the Province of British
Columbia joined the Nisga'a negotiations in 1990, the modern era of treaty making in
British Columbia began. At approximately the same time, the B.C. First Nations Congress
and the governments of Canada and B.C. struck the British Columbia Claims Task Force to
recommend an approach to the negotiation of modern treaties in British Columbia. The 19
recommendations contained within their report were accepted by Canada, B.C., and First
Nations in 1991. The report and the recommendations contained in it are the blueprint for
the B.C. treaty process that the commission facilitates. In those 19 recommendations, and
the report, are the fundamental commitments, the fundamental principles that all of the
parties have committed to in building a new relationship through treaties.
In those 19 recommendations, the parties made fundamental commitments to each other,
the people of British Columbia, and Canada. A primary responsibility of the commission is
ensuring the parties honour those commitments.
The B.C. Claims Task Force report provides your committee with an insight into those
commitments, particularly the anticipated scope of negotiations. Some people have argued
the public did not know what we were getting into in these negotiations and that elements
of the Nisga'a Final Agreement are a surprise. Nothing could be further from the truth.
The task force report was clear about the scope of negotiations anticipated in 1991.
Looking at the Nisga'a Final Agreement, you may conclude the task force presented an
accurate picture of what people could expect in treaty negotiations and agreements.
The public did know what to expect, if not in 1991, when there was considerable public
interest in aboriginal issues following a period of heightened social unrest, then in
1993, when the B.C. treaty process was launched. Since that time, treaty negotiations have
been wide open, the most open and accessible process of its kind of which the commission
The Nisga'a have led the way in treaty negotiations, but the Nisga'a Final Agreement is
not a template for treaties in British Columbia. Many First Nations say it falls short of
their expectations. That is for individual First Nations to determine and not for us to
The Nisga'a Final Agreement is for the Nisga'a people, the people of Canada, and
British Columbia. It honours the commitments of the parties to negotiate voluntarily with
full and informed consent. By its nature, the treaty is an arrangement reached through
political negotiations, not through strict legal interpretations. It also addresses Canada
and B.C. 's legal obligations to the Nisga'a people in a mutually acceptable way.
The authors of the task force report wrote that:
Treaty negotiations in British Columbia provide an opportunity to recognize First
Nation governments on their traditional territories. It is important that the treaties,
which will receive constitutional protection, be explicit on matters of jurisdiction.
An element of the historical basis of First Nation entitlement to participate in treaty
negotiation lies in the fact that First Nations were once distinct and self-sufficient
nations, each having their own language, economy, laws, government and territory. This
entitlement does not arise simply because First Nations owned land, but because they also
While it is true that the courts have not yet been asked to determine if
self-government is an aboriginal right, their pronouncements on the nature of aboriginal
title give some indication of their thinking. In describing aboriginal title as belonging
to the community that has the ownership of the land, the Supreme Court appears to imply
that aboriginal title requires some form of collective jurisdictional arrangement for its
very exercise and regulation. It logically follows that some form of self-government is a
necessary component of aboriginal rights and title.
British Columbia's history is one of denial of aboriginal title and rights, but the
Supreme Court of Canada has clearly said that this must change. They are no longer a
subject for debate or inquiry. Our highest court pushed the land issue, the conflict
between the Crown and aboriginal title, into the political realm by urging negotiations.
The preference for political negotiations over litigation has been underscored
repeatedly in recent judgments of the court. The Nisga'a self-government provisions were
achieved through the give and take of political negotiations. Some people have argued
that, if we must have treaties, they should be settled by a one-time cash payment to each
aboriginal person. The Delgamuukw decision of the Supreme Court makes it clear that this
is not an option by reason of aboriginal title.
The concept of aboriginal title, found in many parts of the world, is based on the
fundamental principle that the people who historically occupied and used the land have
title to it. It is a fundamental element of property systems based on common or civil law.
One of the characteristics of aboriginal title is that it is held by groups and not by
individuals. Therefore, when the Supreme Court of Canada confirmed that aboriginal title
exists in British Columbia, it was clear that governments must respond to the needs of
First Nations, the holders of that title, and not to individual members.
An overwhelming majority of British Columbians agree that it is necessary to negotiate
treaties with First Nations in order to resolve the issue of land ownership and
jurisdiction in that province. Most people agree that for too long, these issues have been
ignored or denied, that for too long the people of that province have borne the costs of
There is a treaty process in place to deal with the issues that has informed the
Nisga'a negotiations, as the Nisga'a negotiations have informed the B.C. treaty process.
Let us remember that treaty negotiations are about change. Treaties mean change in the
fundamental aspects of our lives: Who owns the land; who exercises jurisdiction over it
and who manages it. Treaties also mean change in the allocation of resources and the
revenues from them.
As a result of special interest politics, there has been an attempt to ensure there are
no changes in these areas and that has been destructive to treaty making. If the process
unfolds with millions of dollars being spent, and if it is taking too long to reach
agreements, it will erode relationships and seriously threaten First Nations' willingness
The Government of Canada must remain true to the commitments it made when it entered
into treaty negotiations with First Nations in British Columbia. It must honour the
agreements it has entered into in good faith.
I wish to underscore that point in light of the last comment made by my friend, Mr.
Gibson, questioning the Nisga'a's ratification of this treaty. At the outset of each set
of negotiations, one of the first items dealt with is the ratification procedure. Before
you expend all the effort and money and commit to negotiating such a fundamental new
relationship, you must ensure that the people providing the mandate at the beginning are
the same people who will ratify it at the end. That was agreed to before negotiations
began. That ratification procedure must be adhered to through to the end. That is a
fundamental aspect of good faith negotiations. This is the logical part of the
ratification process agreed to by the Government of Canada, as the Nisga'a referendum was
a part of their agreed-upon ratification procedure.
First Nations, at this tense time in treaty making in B.C., need to know that Canada
and British Columbia remain committed to treaty making. The Nisga'a Final Agreement is an
expression of that commitment. We must stay the course in this journey that began when the
Government of British Columbia joined the Government of Canada in negotiations with the
Nisga'a in 1990. It is a journey that, for First Nations, began over 150 years ago. During
that time, First Nations in B.C. have consistently sought recognition of their aboriginal
rights and title through petition, protest, litigation, and negotiation.
The days of denial are behind us. Canadians have chosen the route of political
negotiations. There are compelling legal reasons for concluding treaties now, and there
have always been strong historical and economic reasons for concluding treaties. It is
time to get on with that job.
There is an agreement among the Nisga'a and the federal and provincial governments on
how to do that. That agreement was difficult to achieve, as future treaties will be
difficult to achieve if they are to meet the needs and interests of all parties.
Again, the treaty commission asks the committee to recommend that the Nisga'a treaty be
ratified at the earliest opportunity so that treaty making in British Columbia will not be
delayed or derailed.
Failure to ratify the Nisga'a treaty will seriously harm the honour of the Crown and
would make it difficult, if not impossible, for Canada to continue with treaty
negotiations in British Columbia. Failure to ratify the Nisga'a treaty will make other
options, such as litigation and direct action by First Nations, much more attractive.
Thank you for allowing the treaty commission to express its views. My four fellow
commissioners join me in wishing you well in your deliberations.
Senator Christensen: You said that this is not a template, yet we have heard in a
number of presentations that this is indeed a blueprint or a template. Can you tell us why
this perception exists?
Mr. Richardson: It is not a template. Those who perceive it as such would have to
explain that themselves. I grant you that the Nisga'a agreement preceded the treaty
negotiations I mentioned in my report, but at the outset there was a commitment that each
treaty would be negotiated according to the objectives and the needs of each of the First
Nations and the other parties, and that specific provisions entered into in a previously
negotiated treaty would not be assumed to be binding on any later ones. Having said that,
the governments of Canada and British Columbia have objectives that they must, under law,
uphold. Therefore, there will be some common threads running through the treaties, but how
those are reconciled with the interests and objectives of First Nations will be addressed
at each table.
The Chairman: I think you heard Mr. Gibson say that this agreement would be a floor,
that in labour relations and other negotiations you start from the last measurement. As
Chief Commissioner of the B.C. Treaty Commission, do you believe that negotiations from
now on will seek to improve on Nisga'a or will they settle for less?
Mr. Richardson: I have very strong views on that generally, but I do not look at it in
terms of more or less. I think the negotiations at each of the other tables will be
different. Many of the elements that are addressed in the Nisga'a treaty will be addressed
at other tables. Jurisdiction over core lands will most likely be an element addressed at
every table. Governance powers over those lands and over services to people -- health,
education, cultural matters -- will most likely all be negotiated in other treaties at
other tables. Financial matters will most likely be negotiated in other treaties. How
those relate to each other have very much to do with the circumstances in each of the
territories for which those will be negotiated.
Opportunities are different in different parts of the province and in different
territories. Prudence dictates that how the elements are put together in a treaty will be
different. Some will contain more on specific aspects and some will contain less. The
fundamental commitment at the outset of negotiations is that they will not all be the
same, that the opportunities in each area will affect the eventual treaties.
The Chairman: I am looking for a very brief answer this time. Do you think that the tax
provisions in Bill C-9, particularly the agreement of Nisga'a to pay taxes after 12 years,
is a template for British Columbia?
Mr. Richardson: I do not believe it is our business as a treaty commission to comment
on that. How the Nisga'a, or any other First Nation, work out specific governance
provisions in their treaties is their business.
Senator St. Germain: Mr. Richardson, we should clarify why the word
"template" is being used. The premier of the Province of British Columbia at the
time said that this was a template.
Mr. Richardson: He changed his mind, too.
Senator St. Germain: Those among us who are not from British Columbia would not know
that, and it is important to put that on the table. That is one of the reasons
"template" was used.
I met with your predecessor, Alec Robertson, on one occasion, where we discussed the
treaty process and how he saw it evolving, including how various treaties would function.
He gave us a document which stated clearly that no agreement or treaty would be entered
into with any native group unless all overlaps with other native groups were settled. I
realize that this agreement was negotiated outside the B.C. Treaty Commission, but I
believe that the commission was part of the process of funding, et cetera, although I
stand to be corrected on that.
How can a native leader in the Province of British Columbia say, in good conscience,
that we will proceed with this when it is known that the Gitanyow and the Gitxsan have an
overlap that is troubling them. I believe it was in Luuxhon that the judge stated that
sharp dealing should not be a part of negotiating with the Gitanyow.
The parameters of the claim set out in the Calder case in 1973 have changed
significantly. Do you not believe that these overlaps must be resolved before continuing?
You talk about direct action in the latter part of your submission.
I have been advised that native communities could take direct action. Do you think this
is the right way to proceed, sir?
Mr. Richardson: That is really not my business. I am not here to speak as a native
leader. I am here to speak as the Chief Commissioner of the British Columbia Treaty
Commission. The document to which you refer, that my predecessor Alec Robertson shared
with you, is the 1998 annual report of the British Columbia Treaty Commission. In that
report, we spoke very clearly about one of the most complex and serious obstacles facing
the negotiation of treaties in British Columbia. That is, the matter of the definition of
First Nation, the territorial boundaries of that definition, and the fact that overlaps
exist among the territorial boundaries of most of the First Nations engaged in
At the outset of my presentation, I clarified that the B.C. Treaty Commission has no
arbitration power. We cannot force any of the parties to do anything. We can recommend,
and we can suggest, that they take a certain course of action. In our 1998 annual report,
that is what we did on this matter.
We reiterated the fundamental principle for resolution of this matter. That is to say,
First Nations define themselves. That is a principle to which each of the parties
committed. Therefore, overlaps can only be resolved among the First Nations.
The B.C. Treaty Commission recommended that Canada and British Columbia help this
process to occur by not concluding agreements in principle with any First Nations that
have not resolved their overlaps, unless they have exhausted best efforts. That was our
As you correctly pointed out, senator, negotiations with the Nisga'a Nation preceded
the B.C. treaty process. However, the Gitanyow and the Gitxsan are part of that process. I
have a clear conscience on this, Senator St. Germain. I also recognize that it is not in
my power, nor is it in the power of the treaty commission, to resolve this issue. All we
can do is ask each of the First Nations involved to go to the table in good faith and to
use their best efforts to resolve it. I believe that option still exists.
If that does not happen, then I think it is quite clear the courts will have to become
involved. In fact, some of these issues are currently being referred to the courts.
However, that is not our business. We want to see them resolved properly through the
negotiating process. Among all the other options, we are unequivocal that that is the most
I am sorry for the long answer, Mr. Chairman.
The Chairman: Thank you, Mr. Richardson. It was a very helpful answer.
Senator Grafstein: I feel as if I am taking a post-graduate degree in aboriginal
negotiations. I appreciate your comments.
Of the 19 points that you raise as preconditions, you said:
At about the same time, the B.C. First Nations Congress and the governments of Canada
and British Columbia struck the B.C. Claims Task Force to recommend an approach to the
You went on to state:
The 19 recommendations contained within the report were accepted by Canada, B.C. and
First Nations in 1991.
I assume that that is your response to Mr. Gibson, who asked if there were any
principles for the negotiations. Am I correct in assuming those 19 recommendations were 19
Mr. Richardson: Yes.
Senator Grafstein: I recognize the difference between title rights, or property rights,
and political rights. We have an amalgam in this treaty, which makes it a bit difficult to
analyze. Were full political minority rights part of the 19 points? In other words, did
the 19 points include a recommendation for full political minority rights within, in this
instance, the Nisga'a lands?
Mr. Richardson: I am not clear on your question.
Senator Grafstein: Through previous testimony, we have discovered that there are
approximately 100 non-Nisga'a owners of property within the boundaries of the Nisga'a
lands. My question is: Were they, or future such residents, afforded full political
minority rights as a condition of the negotiations? Was that part of your 19 points?
Mr. Richardson: No. I would be happy to elaborate on that, if there is time.
Senator Grafstein: I would like you to elaborate, although I am conscious of the time.
The Chairman: I think the answer is of relevance, Mr. Richardson, and we would like to
Mr. Richardson: On that specific point, the purpose of treaty negotiations in British
Columbia as laid out in the British Columbia Claims Task Force, and embodied in those 19
recommendations, was to achieve jurisdictional certainty in British Columbia through
voluntary political negotiations -- who had the title? Who had the lawmaking authority
Coming into the negotiations, the treaty commission made it clear from the outset that
the starting point of negotiations as embodied in that report was mutual recognition. The
Crown jurisdictions, set out in sections 91 and 92, exist. First Nations recognized that
reality in coming to the table. The Crown recognized that the First Nations also have a
claim to jurisdictional authority.
Page 4 of the treaty commission's brief quotes from the task force report. It states
...the historical basis of First Nations entitlement to participate in treaty
negotiations lies in the fact that First Nations were once distinct and self-sufficient
nations each having their own language, their own economy, their own system of law and
government, and their own territory.
In the Delgamuukw decision, the Supreme Court of Canada clarified that further. They
said that this title that continues in British Columbia and is held by what I refer to as
First Nations, which is a political term, is a unique and exclusive, property-like
interest. It is a very important right.
Where does that put us when we come to the table? We have a complete overlap between
fundamental jurisdictions, which it is the purpose of treaty negotiations to reconcile.
How do you do that through political negotiations? The claims task force report did not
make any presumptions about the specifics of how that would be done, only that it be done
with the consent of all parties.
The Chairman: Mr. Richardson, my colleagues and I appreciate your appearance tonight.
You are obviously one of the experts in the field of treaty negotiations and we appreciate
Our next witness is Professor Bradford Morse. Professor, you have been here for a while
and have heard some references to the Constitution. We are looking forward to your views
as an expert witness on constitutional issues and aboriginal rights.
Professor Bradford Morse; Faculty of Law, University of Ottawa: I appreciate that it is
late. I will try to keep my comments reasonably brief, and hopefully I can provide some
illumination in response to your questions on these complex issues. I believe a written
text has been circulated. I apologize that it was distributed only this evening. However,
there was not a lot of time to prepare this presentation.
Let me just quickly go through my written remarks before attempting, as best I can, to
respond to your questions. It is obviously, and truly, a great honour to be invited to
appear before this committee tonight. I believe that you are currently participating in
perhaps the most important issue and assignment of this parliamentary session. Perhaps you
will reflect back upon this later in your careers in this august body as one of the most
significant achievements and most important events in helping to build this great nation.
You will recall participating in rebuilding the very necessary partnership between the
original owners of this land and the waves of newcomers who have arrived over the
generations since contact.
Being here today is, for me, a rather humbling experience, following in the footsteps
of so many people who have been involved over so many months and years, in British
Columbia and in Ottawa, in public discussions over this treaty. There have been
discussions in the House of Commons, standing committees, in the B.C. legislative process,
and in the hundreds of public meetings that have been held, particularly in British
Columbia, over the years as this treaty has been negotiated. There are distinguished
speakers here this evening -- and representatives of the Nisga'a Nation were here
yesterday -- who have devoted such particular energy and dedication, literally for
decades, to achieving justice in the traditional Canadian fashion through peaceful
It is worth remembering that it was over 113 years ago that the leader of the Nisga'a
Nation went to Victoria, British Columbia, to engage the provincial government in treaty
negotiations, to seek to join the circle of Confederation. They were turned away from the
door of the legislature. Some 87 years ago this spring, they petitioned the King and his
Privy Council in England for royal intervention to encourage treaty discussions, but with
They repeatedly attempted to prod the federal government into starting treaty talks.
However, the government consistently refused, as it really had no interest in acquiring
the lands of the Nisga'a for the benefit of the Province of British Columbia without
The unwillingness of our governments, and of all non-Nisga'a citizens, to confront the
fundamental and undeniable historical reality that it was Nisga'a land, to which we had no
lawful claim without having achieved a treaty relationship, did not stop us from seizing
large parts of their traditional territory and exploiting it for economic gain, from which
they gained little.
The Nisga'a Nation has consistently acted with honour and dignity as possessors of a
rich culture and history. They have also conducted themselves throughout in the finest
traditions of Canadians. They have sought to achieve fair and just results for all peoples
through quiet, peaceful diplomacy and truly persistent efforts at negotiations. Is not it
ironic that as Canadians we prize these values so highly and like to think they are part
of our national resources, even if they are not natural ones, yet they have been
demonstrated so rarely in relation to the Nisga'a Nation by our federal and provincial
governments over many years?
The Nisga'a Nation was compelled to go to the Canadian courts to have the existing law
reaffirmed in the famous Calder case of 1973. Even after the court unanimously confirmed
that aboriginal title was, and had always been, part of the common law doctrine that
formed the foundation of most Canadian law -- although I hasten to add the court was split
on the continued existence of that title -- the Nisga'a Nation had to wait a further 18
years for the province to agree to come to the table and commence effective negotiations.
It must have been extraordinarily frustrating for Nisga'a leaders like Frank Calder to
go to the great expense, effort and risk of litigating their rights all the way to the
Supreme Court of Canada, resulting in a fundamental shift in Canadian law and policy
towards First Nations, yet to receive no direct benefit. Thus, they had to stand by and
watch new treaties being negotiated in Northern Quebec, the Western Arctic, the Eastern
Arctic, the Yukon, and the MacKenzie Valley. They waited patiently while reminding the
people of Canada and British Columbia of the unfinished business.
How tragic too that so many Nisga'a leaders, like James Gosnell and others, did not
lived long enough to see an AIP and then a treaty reached. They did not see it ratified by
the Nisga'a people, the legislature of B.C. and now come before Parliament for approval.
The Chairman: I want my colleagues to be aware that AIP is the Agreement in Principle
arrived at in 1996 and which was canvassed at innumerable meetings in British Columbia.
Please carry on.
Mr. Morse: On the other hand, some of the outrageous accusations, myths and falsehoods
that have been spread by some, and I stress it is only by some, of the critics must give
rise to considerable personal pain for anyone who has devoted a considerable part of his
or her life to achieving a just resolution of this long-standing violation of human
rights. While I am not a member of the Nisga'a Nation, and have never worked for them, I
am still distressed by the cruel, crude, and sometimes racist comments voiced by some of
my fellow Canadians.
Genuine criticism is always welcome when it is intended to be constructive and is
delivered in good faith with an honest spirit. Unfortunately, I fear too much of what has
passed for criticism of the treaty emanates from ignorance, anger and prejudice.
Allow me to take a few minutes to address some of what I think are the core mistakes.
The first error is the idea that the treaty creates taxation without representation.
That is simply untrue. The Nisga'a will pay taxes to federal, provincial and Nisga'a
governments. Non-Nisga'a people in the area will continue to pay income, sales and
property taxes, as they do now, to the federal and provincial governments, and could pay
property taxes to a regional or municipal government, if one is created and relevant
provincial legislation is amended.
The second mistake is to think that the treaty treats people differently, based on
race. This is a fundamental issue that many critics fail to grasp. Aboriginal rights are
not recognized for a distinct group by virtue of their race. Rather, as the U.S. Supreme
Court has clearly and repeatedly indicated for the last 177 years, and is more recently
reflected in our own jurisprudence, certain peoples have been in possession of their
territory, since time immemorial, as independent nations with their own legal, cultural,
linguistic and political systems.
It is that unique legal position today, including their assertion of their right to
self-determination, that is reflective of their difference as political entities, not by
virtue of being distinct racial groups. It is that political and legal status that is
I understand that concerns have been voiced, within this committee in particular, on
the issue of citizenship. The treaty does speak of members of the Nisga'a Nation as
citizens. In my view, this does not create two classes of citizenship in Canada. Only the
federal Citizenship Act can determine the basis on which citizenship is acquired under
either domestic or international law.
The Nisga'a are choosing to label members who share in the communal rights of the
Nisga'a collectivity as "citizens" of their nation in the same manner as the
Yukon land claims settlement agreements reached to date. This was a conscious and wise
choice on their part because it captures a political relationship of the individual to the
government that is not tied to residency, as is the case for provincial and municipal
Given that over half of their members do not reside within the Nass Valley and
therefore are not within the territorial scope of their government, concepts of residency
would not accurately reflect the breadth of the agreement. Rather, I think the idea of
citizenship reflects the choice of the individual to affiliate with the Nisga'a people as
a people, and their government as a government with some authority over them, even though
they are outside that territory, while it also reflects the decision of the Nisga'a to
accept those individuals as full participants. I cannot really see another term that fits
as accurately. If we think in terms of "members", that is really more apt for
individuals who choose to join associations or groups, and of course can choose to quit.
This is really seeking more of a political relationship. As I say, with more than half
their members outside of their territory, residency concepts do not really work.
Third, it has been suggested that the treaty undermines the Canadian Charter of Rights
and Freedoms. Frankly, I view that as untrue. It is especially ironic when so many people
who make this claim appear, on the other hand, to be frequently attacking the Charter for
extending too much power to judges to overturn laws passed by legislatures, municipal
councils, and Parliament. The treaty, as you know, specifically states that the Charter
applies, and the preamble to the bill before you reaffirms that.
It has also been suggested that once Bill C-9 is passed, it will not be possible to
ever make any changes. I think that is also untrue. The treaty itself contains an amending
formula, so it envisions the prospect that the three parties to the agreement may agree to
amend it in the future. Furthermore, the Canadian Constitution itself has an amending
formula. It is not easy, granted, but it has been used successfully on several occasions.
Furthermore, the agreement itself will ultimately be interpreted by the Canadian courts as
they apply it in the future, and their interpretations will cause us to read the treaty
somewhat differently, changing our understanding. While not a formal method of amendment,
it will lead to differences in understanding and application of the treaty, and of this
bill, as time evolves.
As we all know, we have entered a new millennium. From their perspective, some
aboriginal people repeatedly told us that the last 500 years in the Americas have been
filled with oppression, colonialism, racism, and misguided visions of superiority. I can
think of no better gift to Canadians, or, for that matter, from Canadians to the rest of
the world, than to see this treaty -- albeit achieved through arduous, tough negotiations,
and filled with compromises that I am sure made no party entirely happy -- proclaimed, in
the less-than-poetically-stirring words of clause 4(1) as "approved, given effect and
declared valid and has the force of law".
Is the treaty perfect? No, but then what agreement reached through give and take is?
Should you insist on perfection before giving your approval? If that was your standard,
then probably no law would ever be passed and no worthwhile achievements reached, as the
enemy of doing good is demanding perfection. To transform the political, legal and
economic relationships between a majority and a minority population, when they are
neighbours and fellow citizens, is no simple feat. To do so with peace in our hearts and
goodwill, through our open hands extended, is something truly to be celebrated and shared.
With that, I urge to you pass Bill C-9.
The Chairman: Thank you.
Senator Beaudoin: I am inclined to agree with your distinction between Nisga'a
citizenship and Canadian citizenship. I am inclined to agree that if ever we have a case
before the Supreme Court on that subject:
Only the federal Citizenship Act can determine the basis on which citizenship is
acquired when one speaks of the concept of citizenship under either domestic or
I do not have a problem with that.
You did not say anything, if I am not mistaken, on the question that we discussed a few
moments ago, on the third order of government. It is not directly involved in this bill,
but it is certainly indirectly involved. You know very well, I am sure, of all the cases
before the Supreme Court in the last 10 years on aboriginal people. As was said a few
minutes ago, the court has not ruled on the question of whether or not there is such a
thing as a third order of government. However, they have ruled often, and adequately in my
opinion, on aboriginal rights, and we all agree with those.
I would like to know whether you consider that, in section 35, there is an inherent
right to a third order of government, or whether this question is still unsettled.
Mr. Morse: Let me answer your question -- I think it is almost a two-part question --
with "yes" to both. I think that section 35(1), within the concept of the
phrasing on existing aboriginal and treaty rights, does include an inherent right for the
aboriginal peoples referred to in that section to govern their own affairs.
Having said that, though, I would not say that the Canadian courts have decisively
resolved this issue. There is a certain level of uncertainty, as there always is until one
gets a decisive determination from the Supreme Court. Even then, as we know, the court can
subsequently change its mind somewhat, so that things may only be decisive for a period of
I have several reasons for taking that view. First, I draw some comfort from the
approach of the United States Supreme Court on this issue. From its earliest days, back to
Fletcher v. Peck, and particularly the trilogy of Johnson v. M'Intosh, Cherokee Nation v.
Georgia, and Worcester v. Georgia, the Supreme Court has spoken of Indian tribes in the
United States as being domestic-dependent nations. That was, in part, a political
compromise coming from the courts and, in part, a reflection of the demographic, economic
and military realities that existed in the United States at the time.
Also, in part, it is an attempt to try to reconcile the reality that the Supreme Court
of Canada, in the Dickson and Lamer courts, have been raising for us recently, and that is
that when the newcomers came, there were Indians here occupying the territory and
operating as nations, as political governments, and clearly with the capacity to enter
into treaties. American law and Canadian law, as with the Sioui case, have accepted that
that was a reality that clearly continued for many years after that.
The American attempt to come to grips with that, while at the same time asserting
international sovereignty of the newly created United States, was to impose a compromise
on Indian tribes that said, "You are still sovereign, but you are now sovereign
within our international sphere and within our external borders." Those decisions
have been repeatedly and favourably cited by the Canadian courts, including the Supreme
Court of Canada, on the concept of aboriginal title because those cases also dealt with
While the Supreme Court of Canada has not addressed this issue of self-government and
inherent right of self-determination -- or sovereignty, to use the American language --
those same cases have, without question, been fully embraced. That suggests to me that we
have, in fact, embraced the American doctrine of aboriginal title.
With that went a recognition of continuing residual sovereignty for the Indian tribes.
That is one thing.
Second, we are seeing Canadian jurisprudence develop in a way that recognizes the
capacity of aboriginal nations to engage in treaty making. Clearly the courts have said,
both in the U.S. and Canada, that those terms are chosen by non-aboriginal governments.
If we chose the word "treaty," knowing our experience from treaty making with
other nations in Europe, we did so for a reason; we regarded our treaty partners as having
the capacity to enter into treaties. If we say that today they have not inherited the same
capacity to govern themselves that existed previously, and therefore the same capacity to
enter into treaties, then how did they lose it? The only rationale would be that the power
was somehow given up willingly through a treaty, and clearly that does not apply here.
Perhaps it was expressly extinguished through some superior power of the Crown prior to
1982, but no one has been able to identify such an action. Thus we do not have anything to
suggest that their power disappeared.
In light of the Delgamuukw decision, the Supreme Court has said that our approach
towards aboriginal title in Canada is to recognize that the content of that title is
determined under traditional aboriginal law.
We have had about 150 years of Canadian courts recognizing traditional aboriginal laws
in certain selected areas, particularly in terms of family law governing marriage, divorce
and adoption. We have adopted Cree or Dene or Inuit law as being valid law that should be
respected, recognized and enforced within the Canadian courts.
Now the Supreme Court has said that the same is true for determining aboriginal title.
If traditional aboriginal law pours the content into aboriginal title, then what is the
source of that aboriginal law, except a continuing right to govern themselves, to be the
enactors of the law that the common law is now recognizing?
With that decision, in particular, the Supreme Court of Canada, following on some of
their prior comments in Pamajewon and Sioui, displays an unstated recognition that
aboriginal peoples have not only the power to negotiate treaties, but also the continuing
power to determine the content of what is now substantive Canadian law. If you can make
law, you are a government. If that is the law that is recognized by section 35, then that
right is included within it.
Senator Beaudoin: That is interesting. I am inclined to agree with you, but the problem
is not entirely settled at this stage. In the Delgamuukw case, and in some others, the
Supreme Court has not gone that far, but perhaps they will in the future. I would not be
surprised. Chief Justice Lamer was very prudent and clear. I am satisfied with that
Senator Grafstein: I found your presentation fascinating, but I would like to deal with
one subject that I am trying to study quickly, namely, the essence of Canadian
citizenship. You have given the same answer as the minister, namely, that citizenship as
it applies to the Nisga'a is different from citizenship under the Canadian Citizenship
Let me explain my concern here. You said to Senator Beaudoin that there is sovereignty
within sovereignty. In other words, there is national sovereignty within the envelope of
federal sovereignty. Therefore, within the encapsulated circle of sovereignty, one
expression of it is the right to make laws within the confine. I use that as a term of
description for the moment.
The Nisga'a have decided -- and we have heard testimony to this effect and you have
agreed with it -- to define themselves as Nisga'a citizens. Citizenship, as we understand
it in Canada and under the Citizenship Act, is very clear-cut and not very complicated.
The Citizenship Act is clear that "citizen" means a Canadian citizen. That is
the definition under the act.
What flows from that is more interesting. Obviously the essence of citizenship is equal
treatment but, more importantly, the political right to vote, including the right to run
for office. Those are paramount rights.
The Nisga'a have decided, because of their sovereignty within sovereignty, not to
extend that equal right to the minorities within their jurisdiction, even though it is
fair to say that with 100 as opposed to the few thousand, the minority would never present
Having accepted the European notion that with nationhood or sovereignty comes
citizenship, then why would you not take the next step under the European thesis, toward
the minority rights entailed in citizenship? In other words, why do we take two-thirds of
the package and not the last third? In these circumstances, there is no clear or present
danger of the minority undermining the cultural and linguistic sovereignty of the Nisga'a
on Nisga'a lands. This is a political argument, not a constitutional one.
Mr. Morse: I understand. Part of your premise is that the non-Nisga'a Canadian citizens
in the area are a small population now so they are not a source of concern. I suspect that
the ancestors of the Nisga'a, like other First Nations people across the country, once
thought too. Things have changed. Clearly, there are no guarantees for the Nisga'a that
their situation in the Nass will not change.
From the political/legal view, the agreement sets out law-making authority for the
Nisga'a Nation in reference to their citizens and not, by and large, non-citizens. If you
carry your argument through, the logic would be that non-Nisga'a people should have the
right to vote if they are being fully governed by the Nisga'a government. However, if that
government is largely restricted in its authority to its own citizens, then why would it
extend the vote to people who are not fully governed by its laws? The non-Nisga'a
residents of the Nass Valley are still property owners, still pay their property taxes,
and are still governed by the other orders of government that are present on the lands.
Therefore, they will still be voting in the elections for the governments that will
directly affect them as residents.
If they were voting in the Nisga'a election as citizens, then presumably they would not
be voting in any regional government elections held.
Senator Grafstein: I will not belabour this point. However, I wish to conclude with a
final comment. When I say that there is no clear and present danger, this agreement
provides for collective ownership of land. All that land is under the total control of the
Nisga'a government. There is no question here these lands, in effect, adhere to the
Nisga'a. There are holes in doughnuts that are outside that. I deal with those in part. We
have also been told that there are residents -- that is, people who work within the
Nisga'a community -- who are non-Nisga'a citizens. Again importing European ideas, which
were foreign to the aboriginal people before the so-called discovery, they have adopted,
in part, the terminology of nationhood and citizenship. There is no clear and present
danger that the minority will ever overwhelm the majority in the current context. I will
leave it at that.
The Chairman: Thank you very much, Professor Morse. I want to recall that a previous
chairman, Senator Marchand, used to opine that the aboriginals had a poor immigration
Our last witnesses are from the Gitxsan Nation and I invite them to the table.
Honourable senators have heard many references to the Delgamuukw decision. One of these
gentlemen will introduce himself as the person referred to in that particular decision.
It was the Gitxsan Nation that, through its perseverance, achieved through the courts
the results of Delgamuukw, which is such a significant and pivotal part of aboriginal
I understand that Charlotte Sullivan will lead off.
Ms Charlotte Sullivan, Gitxsan Nation: Honourable senators, colleague chiefs, ladies
and gentlemen, I should first like to thank the senate committee for inviting us to appear
to express our concerns about Bill C-9. It is with heavy hearts that we point out the
shortcomings in a vital piece of legislation that Canada is about to pass. Our hearts are
heavy because we, along with other aboriginal nations across Canada, have longed for the
day when we would see justice served with respect to aboriginal title and rights.
It is not without regret that we point out that Bill C-9 infringes on the title and
rights of several hundred Gitxsan House members. Specifically, the provisions for
fisheries and wildlife management, and some of the fee simple land allocations, include
lands that are within Gitxsan House territories. Also, the renaming of several important
Gitxsan heritage sites is simply rewriting history.
The Gitxsan have made serious and genuine efforts to resolve this issue directly with
the Nisga'a, but have faced a lack of good faith on the part of their neighbours. Canada
has resisted attempts to ensure that Gitxsan title and rights are not infringed, resulting
in a lawsuit being commenced by the Gitanyow chiefs of the Gitxsan Nation.
It is important to understand that the Gitxsan cannot call the matters at issue
"an overlap". In our eyes, and according to Gitxsan laws, the actions of the
Nisga'a, in which Canada and British Columbia are complicit, amount to an outright land
grab. As has been stated by some of our chiefs, such actions amounted in the past to a
declaration of war. The Crown is a party to an act of aggression.
The Nass area of the Nisga'a Final Agreement, which is territory claimed by the Nisga'a
Tribal Council, includes approximately one-quarter of the Gitxsan House territories. The
NFA gives the Nisga'a certain rights within Gitxsan House territories, including joint
salmon fishery and wildlife management rights, as well as fee simple lands.
By overstating the extent of their territories, the Nisga'a Tribal Council has
negotiated settled lands, Nisga'a lands, that amount to 25 per cent of their legitimate
claim. The tribal council claimed more than three times their historic territories, and
will end up with 1,930 square kilometres out of approximately 7,800 square kilometres to
which they can prove title. This misrepresentation may have repercussions on the eventual
settlements obtained by other aboriginal nations in British Columbia.
I should now like to describe the framework of the overlap situation.
The Supreme Court of Canada has made statements on overlapping claims, of which the
Crown should be aware. In his final statements in Delgamuukw, Chief Justice Lamer said:
By ordering a new trial, I do not necessarily encourage the parties to proceed to
litigation and to settle their disputes through the courts. As was said in Sparrow, at p.
1105, s. 35(1) "provides a solid constitutional base upon which subsequent
negotiations can take place." Those negotiations should also include other aboriginal
nations which have a stake in the territory claimed. Moreover, the Crown is under a moral,
if not a legal duty to enter into and conduct those negotiations in good faith.
Tom Molloy, when he was the chief negotiator for Canada at the Gitxsan table, in a
letter dated January 11 1996, urged the Gitxsan to conclude an overlap agreement with the
Nisga'a. He quoted a document entitled, "The Federal Guidelines for the Settlement of
Overlapping Comprehensive Claims or Treaties" dated February 15 1994, that stated a
clear preference for allowing aboriginal groups with overlapping traditional territories
to reach agreement among themselves on their future use of the overlap area. Absent such
agreements, the guidelines go on to "$set out a series of steps that negotiators can
follow in helping aboriginal groups to overcome impasses".
Finally, the guidelines state that the federal government is prepared to move forward
in the absence of an overlap agreement if (a) the group that is ready to settle has
negotiated with its neighbour in good faith; (b) measures taken to resolve the impasse
have proven to be unsuccessful; and (c) the treaty contains an explicit statement that it
will not affect any aboriginal or treaty rights of any other aboriginal group.
Although the direction of the Supreme Court of Canada came after the conclusion of the
NFA, the Gitxsan should have been invited to participate directly in the Nisga'a
The federal government knew of the infringement of Gitxsan title and rights by the
Nisga'a Tribal Council. The federal negotiator on the Nisga'a file had direct knowledge of
the impact of the NFA on the Gitxsan. Tom Molloy, prior to his appointment to the Nisga'a
table, was the chief negotiator for Canada at the Gitxsan and Gitanyow. As well, the
Gitxsan have sent extensive correspondence to Canada and British Columbia in an attempt to
have their concerns addressed in a serious fashion prior to the three parties committing
themselves to the execution of the NFA.
Many times over the past 30 years, Gitxsan and Gitanyow chiefs have met with the
Nisga'a to try to resolve a constantly expanding claim by the Nisga'a Tribal Council.
Finally, in 1995, under a joint Gitxsan/Nisga'a protocol, the Gitxsan presented the
Nisga'a leadership with an exhaustive study of all known evidence bearing on the overlap
issue that concluded that the Nisga'a boundary is between the Tchitin and the Kinskuch
rivers. Some of you have seen the evidence in the document entitled, "Tribal
Boundaries in the Nass Watershed".
We have yet to understand why the Crown is intent on infringing on our title and
rights. We know why the political imperative of the New Democratic Party took over the
process in British Columbia and we will survive what is happening on that political front.
British Columbians are a tolerant and optimistic people, in spite of the games that are
played in provincial politics. We believe that the people in this chamber have a duty to
take the serious steps necessary to ensure that the Nisga'a Final Agreement works for all
Canadians, including those of us who are not in the good books of the Department of Indian
In spite of a reasonable federal policy that Tom Molloy quoted to us, we are the
victims of a series of bad, politically motivated negotiations. The minister has
acknowledged that the NFA was negotiated outside the B.C. Treaty Commission process. The
minister knows that the federal overlap policy does not and has not been applied to the
Nisga'a Final Agreement.
Tom Molloy acknowledges the existence of overlaps with not only the Gitxsan and
Gitanyow, but also the Tahltan and the Tsimshian. With this admission, and with the
knowledge of the federal policy on overlaps, how can he come here and argue for the
passage of a bill that will surely face court challenges? We challenge the members of this
chamber to do the right thing and avoid taking the NFA through the unnecessary rigours of
the courts. We have time to come up with an agreement that will stand up to any test.
As stated earlier, the Gitxsan developed a set of evidence that has been embodied in a
document entitled, "Tribal Boundaries in the Nass Watershed." This document,
along with the evidence that is in the hands of the B.C. Supreme Court, is sufficient to
prove Gitxsan title to all the Gitxsan House territories. Federal officials have clear and
full knowledge of this evidence.
When Senator Lawson asked the minister about doing the right thing, he stated that the
overlap policy of Canada is the right one. We agree. The minister should immediately
instruct his departmental officials to come to the Gitxsan reconciliation table and we can
deal with the overlap issue as a priority matter. The Gitxsan reconciliation table, where
B.C. occupies a seat, has room for a federal negotiator.
If we take the instructions of the Supreme Court to heart, we can see that it does not
limit our interaction with the Crown on treaty discussions. The treaty process is where
our aboriginal rights and title are extinguished in favour of specific treaty benefits,
usually including a small percentage of the original territory, specific resource access,
and cash compensation paid over a period of years. The legacy of that process over the
past 100 years is a trail of broken promises, massive unemployment, continued
assimilation, and a downtrodden and dysfunctional people.
The Supreme Court, in its wisdom, directed that negotiations are the path to
reconciling the pre-existence of Gitxsan society with Crown title. Our pre-existence
includes Gitxsan laws, history, and a system of governance that has clear roles and
responsibilities for all citizens of Gitxsan territories.
We do not need to forsake being Gitxsan and forfeit our rights to the Crown. Our place
in the Canadian federation must be as a free people who have access to the resources that
the creator gave us. As free people, we can contribute to Canada and uphold our
responsibilities as citizens on terms that make sense. The new relationships that we are
talking about must include building on the foundations of Gitxsan culture.
The Gitxsan are committed to negotiations. We certainly hope that this chamber will
uphold the honour of the Crown and that two things will be done: First, the matter of the
overlap must be dealt with expeditiously and in good faith; second, that you direct the
Department of Indian Affairs to come to our reconciliation table and negotiate terms for
how we can be assisted in becoming free Gitxsan within Canada.
Senator St. Germain: I should like your opinion on the issue of attempting to negotiate
in good faith. Could you say that you have had ample negotiations and that you have
negotiated in good faith?
I put that question to you, Mr. Derrick, because I believe you have been part of the
negotiating process, if there has been one. I am speaking of the overlap situation.
Mr. Elmer Derrick, Gitxsan Nation: Over the past 30 years, there have been many
attempts to discuss the issues in-depth, but I believe that the Nisga'a treaty
negotiations were taken over and driven very much by the political situation in B.C., as
well as the need for the federal government to conclude the agreement fairly quickly.
We were involved directly in treaty negotiations for approximately 18 months. As was
pointed out, the chief negotiator for Canada at that time was Tom Molloy. Unfortunately,
the provincial government walked away from the table so we were left out in the cold. We
have not been involved in the B.C. Treaty Commission process since that time.
Senator St. Germain: The overlap situation in the case of your nation is much less. Mr.
Molloy and others have implied that the overlap situation in the case of the Gitxsan,
although not the Gitanyow, is insignificant.
Is it correct that it has been about four years since you have had any involvement in
Mr. Derrick: We have not been involved in negotiations for several years. The
provincial government left our table in February 1997. We were forced back into the court
system when they walked away. We have not been able to get the federal government back to
the table. They more or less insisted that we come under the B.C. Treaty Commission
process and we do not want to give up being Gitxsan in order to be Canadian.
The mass of land that is infringed upon by the Nisga'a Final Agreement amounts to the
territories of 11 different house groups.
The Chairman: Senator St. Germain, do you know the size of the infringement in
Senator St. Germain: No. However, I do have a map here that shows the area in dispute.
The Chairman: We will table the map as an exhibit to tonight's evidence.
Mr. Derrick, in your view, what is the total overlap?
Mr. Derrick: The area where our title and rights have been infringed is about 775,000
Senator St. Germain: Mr. Muldoe, I believe that you have some property on Kwinageese
Lake. I do not know whether it is held in fee simple or is part of your inherent right as
one of your houses. All the fee simple lands that were granted to the Nisga'a are in
fairly strategic locations in the areas of the overlap. In the Gitanyow there are five and
there is one just outside of the Gitanyow border in the Gitxsan on Kwinageese Lake.
Have you an interpretation of why these lands were deeded to them when they knew this
land was possibly in dispute?
Mr. George Muldoe, Gitxsan Nation: The land that was held in fee simple was basically
our home. We have two houses in that territory. The houses that those two houses replaced
were in existence for hundreds of years. This is the third time those houses have been
I do not know why this was included as fee simple lands, because 30 or 40 years ago we
designated that as a protected area. There are swans nesting in that area and it is
grizzly habitat. There is also a famous salmon spawning area in the Kwinageese River,
which runs into the Nass.
I do not understand why the Nisga'a have put a fee simple on this land, unless it is a
frontal attack on Delgamuukw. That is how I have taken it. That land, whether granted as
fee simple or not, would not be settled by any Nisga'a.
Senator St. Germain: Do you think there was a conflict in Mr. Molloy negotiating for
you for a number of years and then moving over to the Nisga'a? Did he know things that
would give him an advantage in negotiating for their side after having been on your side?
Mr. Derrick: I would not necessarily define it as a conflict, but it troubles us that
he knew a lot about what we were talking of in terms of the territories, the history, and
the interests that the Gitxsan-Gitanyow people had in the Nass watershed.
I know that as a negotiator he is given instructions and he must proceed according to
them. I cannot find a reason for him not knowing about our interests.
Senator St. Germain: The negotiations establishing your historical land claims involve
quite a costly process. It is my understanding that you must go to the B.C. Treaty
Commission to seek funding. Your nation represents 54 houses and approximately 7,000
members on a registered band list. Do you think you have been given adequate consideration
at this critical time when your land has been brought into question by another claim? Can
you tell us what support you received from the commission and whether you feel it has been
Mr. Derrick: We make representations on a regular basis both to the minister and the
bureaucrats. We are always told to go through the B.C. Treaty Commission process.
As was stated earlier, we do not want a treaty. We want a set of living agreements that
would enable us to reconcile our interests with the Crown. The Crown does not have to bury
us in order for us to be good Gitxsan within Canada.
Senator St. Germain: You are not looking for an agreement anything like Nisga'a?
Mr. Derrick: No, we are not.
Senator Sparrow: Is it correct that, if this agreement goes through, your only recourse
is through the courts, which is a costly process?
Mr. Derrick: That is what we believe, yes. Our only recourse in protecting our title
and rights is to take legal action.
Senator Grafstein: The witness mentioned -- and I hope I did not take it out of context
-- that this group was interested in an agreement as opposed to a treaty. I took from that
-- and tell me if I am wrong -- that they want to settle their property rights as opposed
to "some aspiration of political rights". Am I right about that?
Mr. Derrick: We now have a series of agreements, which are working, living agreements,
with both governments. We have an agreement on fisheries that actually works. We have
agreements in some sectoral areas such as health and education that work. Because we are
in the process of nation building with the rest of British Columbia, and Canada, we do not
think that the time is right for us to write down things that could be termed a
Senator Christensen: Do you have any concerns about what may happen to future
negotiations if, in fact, this treaty is not ratified?
Mr. Derrick: We believe that good, responsible governments can deal with this matter
either in the next few years or in the next two decades. Our timelines are such that we
see the entire objective of being free Gitxsan within Canada taking about 100 years. It
took us more than 100 years to get into a situation where we are totally dependent, where
a lot of our people are downtrodden and have had resource rights taken away. It will take
some time for us to get on our feet again. We believe that instead of playing a role as
keepers of a prison, the Government of Canada should help us do that.
As was stated earlier, it is with heavy hearts that we come here to say what we are
saying tonight with respect to Bill C-9. We fought alongside the Nisga'a, the Tsimshian
and the other people across British Columbia and the country for due title and rights. The
Supreme Court correctly recognized our position in December 1977. We are prepared to build
new relationships based on what the court said. We do not want to be a burden on the Crown
and we do not want the Crown to be a burden on us. I believe that we can sit down, using
the Nisga'a Final Agreement as developed, and proceed to forge better relationships among
all of us, including the Crown and the Nisga'a.
The Chairman: Thank you very much for that positive answer.
Senator Andreychuk: I am a little confused on the time frames. Was the Nisga'a
agreement completed, to your knowledge, and then your negotiations broke down when you
walked away from the table, or the province did?
Mr. Derrick: The answer to that question could take a long time. I want to revisit what
took place, although it has probably been explained to this committee more than once.
The Nisga'a negotiations began under the comprehensive claims policy of the Government
of Canada. At that time, the policy stated that only one set of negotiations in British
Columbia would proceed. When the B.C. Treaty Commission process got off the ground, we
went to the commission and commenced our negotiations. That whole process has its own
timelines. We got to stage 4 quite quickly, from our end, but the Nisga'a negotiations
were carried on without any synchronization with ours.
Senator Andreychuk: Have there been discussions or has the federal government ever
approached you to discuss the outcome for you on these disputed territories? Have they
given you any assurances that your claim will be considered? What have they said to you?
We have heard the Nisga'a side. I should like to hear yours.
Mr. Derrick: As I said earlier, any time we tried to speak to the Government of Canada,
they spent a lot of time running away from us. One of the previous ministers, Mr. Irwin,
used to run away. His assistants would also run away from us whenever we approached them.
They never allowed us to sit down and talk with them directly, to make proper
representations and start negotiations on the overlap.
Senator Andreychuk: Has that been the situation until today?
Mr. Derrick: That has been the situation to date.
Senator St. Germain: I believe Mr. Richardson said that in 1997 the B.C. Treaty
Commission came out with a policy on overlaps. The document that I had clearly stated that
there would be no negotiated treaties or settlements if an overlap existed with
neighbouring aboriginals. For political expediency, or for whatever reasons that I do not
fully understand, they changed that. Consequently, we are faced with a dilemma. Some of us
on this committee are convinced that we should not be nit-picking or looking at this
matter too closely. I see the issue of the overlap as the main issue of this agreement. It
is true that there are questions of citizenship, and so on, that are important -- and I am
not trivializing them. However, I am a British Columbian who knows your nation, the
Gitanyow, as well as the Nisga'a. I believe that this is the right way to go and it is the
right thing to do for the Nisga'a people.
Do you have any hope or a timeline in view for when you think this could be resolved,
or are they not talking to you? Do you think that your concern is sufficiently serious to
hold up the Nisga'a agreement until your overlap situation and that of the Gitanyow are
Mr. Derrick: We believe that it is serious enough for this committee to intervene and
play its role as a place of sober second thought. You must pay attention to what we are
saying. You must give some serious consideration to what we are asking, because
reconciliation in British Columbia is all-important. It must be done right. Our only
recourse is through the courts. We will again spend a large amount of money to pick a
fight with the Crown.
As we have said, this committee should also give instruction to the Department of
Indian Affairs to at least meet us halfway and open the door, so that we can talk and
obtain the resources to conduct legitimate discussions on this matter.
Senator St. Germain: Would you explain to us briefly why the Luuxhon case was brought
before the courts and what they actually said? I believe it related to this overlap
situation, did it not?
Mr. Derrick: Yes, it did. You will get better answers from the Gitanyow delegation on
that matter. However, the matter of negotiating in good faith is a serious thing of which
the Crown must be reminded. All the games that the departmental officials are playing now
should not be condoned by this chamber.
Senator St. Germain: My final question concerns the good faith negotiations. If you are
not negotiating at all, it is hard to be accused of negotiating in bad faith. Do you feel
that you have been available and cooperative in trying to resolve this overlap situation
and in negotiating a settlement that would be agreeable to the Nisga'a, Gitanyow and
Mr. Derrick: We have gone on the record as saying that if another body were to review
all the evidence that we have on our title to all the Gitxsan House territories as we have
outlined them on our maps, and it ruled against us, we would live with that.
Senator St. Germain: I think this is one of the most important aspects of this entire
deal. That is why these hearings are so important. It allows the Gitxsan and the Gitanyow,
who are severely impacted according to these maps, to have their say. When people say
quite reasonably that they are prepared to live with a decision, basically an arbitration
decision, they must have a great deal of faith that the case that they can present at
least holds some water. I would urge all honourable senators to take this into
The Chairman: I will make a comment after all the questions are over.
Senator Grafstein: I have a suggestion, because this is all new to me. I am not a
member of the committee, but there is a substantive factual question here that I am not
too clear about. Actually, I am not clear about how substantive it is either. It might be
useful for this committee, particularly because of Senator St. Germain's statement, that
we have conflicting maps. In other words, let us get his map, their map, and the Nisga'a
map so that at least when the committee deals with this issue, they will be able to look
at what we are talking about here.
I found it difficult to follow even the first statement that they made. I do not want
to hold up the hearing, but the statement says that:
By overstating the extent of their territories the Nisga'a Tribal Council have
negotiated settlement lands ("Nisga'a Lands") which amount to 25 per cent of
their legitimate claim. The Nisga'a Tribal Council claimed more than three times their
historic territories and will end up with 1,930 square kilometres out of approximately
7,800 kilometres to which they can prove title.
I do not want to get into a cross-examination on this, but it might be useful to see
the assumptions on a map. At least you will then have some clear understanding of what we
are talking about.
Senator St. Germain: This is a departmental map.
Senator Grafstein: That is just a suggestion.
Senator Comeau: We want to do this correctly. I agree with Senator Grafstein. This has
been a confusing time for me because the impression I received over the last several days
was that we should hurry and pass this. We now have a group before us that has presented,
from my vantage point, a very heartfelt plea to us not to rush this thing.
I am interested in receiving more information. I think the testimony we have heard
tonight was extremely important to me as a non-westerner, and as one who will, at the end
of the day, vote on an extremely important bill that will affect not only this aboriginal
group, but also many others throughout the country. We must do what is right, so let us
take our time.
We were accused the other day of nit-picking, but I do not think that is true, judging
from what we heard tonight.
The Chairman: That statement came from one of the senators. I do not know whether it
was focused on this particular issue, but the issue of the overlap is one that I agree we
must examine carefully.
We have only heard from the Nisga'a briefly on the subject. It is clear that we will
want to hear from them in more detail. It is also clear that we will want to hear from Tom
Molloy and, perhaps, the minister, before we complete our consideration.
Mr. Molloy has heard the evidence tonight. I am sure that what he will have to say will
be very interesting.
We will try to organize the evidence from here onwards on the question of the overlap,
so that we hear it within a day or two in order to consider it as what lawyers would call
"a trial within a trial".
It is not the role of the committee to resolve the dispute, Mr. Derrick, as you and
your colleagues well know. We will take an interest -- from the reaction of my colleagues,
a careful and detailed interest -- in the subject. Ultimately, however, the power to
settle or to continue negotiations will be in the hands of others.
I wish to thank you very much for your presentation. I wanted to ask Barbara Clifton
whether or not she wanted to speak to us tonight as a representative of the B.C. women's
society. I know that she is also an elder. Perhaps she would like to await another
Mr. Derrick: Ms Clifton is here as part of our delegation. She is a chief in one of the
houses. She is not here as a representative of the Native Women's Association of Canada.
The Chairman: Thank you. We have sought a representative from that organization. I
thought I would see whether or not she was prepared to proceed, but I certainly understand
that she is not prepared to do so in this context.