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Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 5 - Evidence, February 29, 2000


OTTAWA, Tuesday, February 29, 2000

The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, to give effect to the Nisga'a Final Agreement, met this day at 9:00 a.m. to give consideration to the bill.

Senator Jack Austin (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we have before us the Bill C-9, the Nisga'a Final Agreement legislation. This morning, our witness is Mr. Phil Fontaine, who is the National Chief of the Assembly of First Nations.

Mr. Fontaine, thank you for coming this morning. We are ready to hear your evidence.

Mr. Phil Fontaine, National Chief, Assembly of First Nations: Mr. Chairman, I am joined at the table by Roger Jones, a lawyer who works with the Assembly of First Nations.

Thank you for the opportunity to appear before this committee, Mr. Chairman and members of the committee.

The AFN represents 633 First Nations in Canada, and all First Nations citizens in this land, on and off reserve. We are part of a governmental structure with a constitutional mandate from our people resulting from democratic, transparent and accountable electoral processes at each First Nation level, and in turn at the national level for national office.

First Nations in Canada today face many challenges, ranging from the seeking of mechanisms to end crushing poverty among many of our citizens to the finding of mechanisms for economic development and job creation for our people, and to the establishment and recognition of First Nations' governments based on constitutionally protected aboriginal rights, treaty rights arising from the historic treaties, modern day treaty rights and aboriginal title.

Progress on all these issues, although constant and progressive, is slow and frustrating. Perhaps nothing is more frustrating to First Nations and to the Assembly of First Nations than the tendency of Canadian governments to enter into negotiations with us, conclude arrangements, make promises, and then either be very slow to implement or not to implement at all. The Supreme Court of Canada has, over and over again, defined the obligation of Canada to First Nations as one of a fiduciary nature that must deal with First Nations and take account of their needs and concerns, not only through consultative processes, but also always in the context of observing the honour of the Crown. Historically, all too frequently that honour has been observed in the breach.

The Nisga'a treaty and resulting legislation affords all governments in Canada, and the people of Canada, the opportunity to do the right thing and to do so in a timely fashion. The treaty represents the fulfilment of a long, complex and difficult process of negotiation among three levels of government in Canada -- the Nisga'a, Canada and British Columbia. It is a consensual treaty, in which all parties have been realistic in the give and take of hard bargaining at table. The product of their labours has already met favour with the Nisga'a people, with the Government of British Columbia, and with the House of Commons.

Notwithstanding the best attempts of reactionary forces -- not only in British Columbia but elsewhere, including within certain political parties -- to describe the terms of the treaty in inappropriate and misrepresentative terms, the truth is that its contents are fair, just and reasonable, not only because each and every part of the treaty is defensible but because the very process of its negotiation was transparent, civil and comprehensive -- a model of modern governance.

I do not intend to address you formally today on the text or details of the treaty, although I am happy to respond to any questions you may have. It is my view, and that of the Assembly of First Nations, that it is appropriate for the parties themselves, in particular the Nisga'a people, to articulate and explain the essence of the treaty arrangements. I will therefore restrict my formal remarks to the challenge that you and we all face today in light of the Nisga'a process -- the challenge to find a more certain mechanism to define our partnership in this land.

Section 35 of the Constitution Act envisaged exactly the process that brings us here today. It grants constitutional protection to both existing aboriginal and treaty rights and to those now negotiated in modern land claim settlements and treaties. It is the mechanism through which the other governments of Canada, at the federal and provincial levels, can and will recognize the inherent right of self-government and the inherent right of self-determination of First Nations peoples in Canada.

Those rights are not granted by section 35 of the Constitution; they existed long before European settlement; but they are recognized and protected within the fabric of Canadian law by virtue of section 35.

Frankly, it would be inexcusable -- indeed, it would be a return to old policies of seduction, racism, and isolation -- for Canada to do anything else now but to implement the treaty and give it full force and effect on its terms and at great speed and dispatch. To do anything else would be to blacken the reputation of Canada in the international community, and give fuel to those in the First Nations communities who would resort to militant action based on the premise that First Nations citizens and governments still cannot trust the other levels of government in this land even after a process of negotiation.

All Canadians today are faced with a new threshold. The decisions of the Supreme Court of Canada in Sparrow, Sioui, Badger, Delgamuukw, and most recently in both Marshall decisions, have sent a clear, loud and resonant message throughout this land: First Nation rights exist. Those rights include historic and current claims to a rightful share of the resources of this land. Those rights include self-government. Those rights include use and occupation of lands and waters. Those rights have never been ceded and surrendered. Those rights will be protected by the courts of this country, if not by its governments, and in the end will be defended forever by First Nations peoples themselves. Those rights and our relationships are best negotiated, not litigated.

We, therefore, find ourselves at a time in history when progress, development, and continued economic success for all of us depends on our finding and defining new mechanisms to bring certainty to these rights through recognition by other governments and the people of Canada and to defining much more precisely the nature of our partnership in the fruits and resources of this land.

The Nisga'a treaty is an example of such an exercise. It brings reliability and certainty to the relationship and allows all parties, public and private, governmental and individual, to develop politically, spiritually and economically with confidence and assurance.

The treaty brings to an end, as it should, the current comprehensive claims policy of the Government of Canada, which uses extinguishment of First Nations' rights as a core prerequisite to negotiations. That policy is outmoded, outdated, anachronistic and inappropriate. It must be withdrawn and redrawn, this time after a full and complete consultation process with the First Nations of Canada through the Assembly of First Nations.

In 1998, after consultation with the Assembly of First Nations, the Government of Canada issued an historic sets of promises entitled, "An Agenda for Action with First Nations", sometimes referred to as "Gathering Strength". In it, Canada recognized not only the requirement of adopting a new comprehensive claims policy and process, but joint federal government First Nations exploration of possible methods, other than surrenders or extinguishments of aboriginal rights or aboriginal title, to provide clarity, stability and certainty through comprehensive claims settlements that would be supported by federal and provincial governments, First Nations and the public.

It also promised to partner with First Nations in a strategy to deal with lands and resources issues, including working with provinces to encourage co-management and further programming opportunities to enhance the value of reserve lands and increase access to and ownership of land and resources.

It promised to explore with us and develop section 35 protection and other mechanisms to recognize First Nations governments and to establish a framework for working out jurisdictional and intergovernmental relations. This committee ought to pay close attention to the government's promises and see to their implementation. A copy of the document has been, or will be, filed with the committee for review.

The Nisga'a treaty is a step in that direction, an important but small step. Much more must be done. The notion of extinguishment of rights as a prerequisite to bargaining must be relegated to the historical trash bin, just as been done in the Nisga'a treaty with consensually defined rights, rather than requiring any of the parties to give up all rights.

Those First Nations that choose to define their relationships to the other governments of Canada and to the resources of this country through a similar treaty process must be encouraged and financed to do so quickly, efficiently and effectively. Other processes must be developed that meet the needs of the other governments of Canada and First Nations governments that choose to engage in non-treaty processes as mechanisms for the determination of the continuing relationship between First Nations and their neighbours.

Above all, our future economic development and wellbeing requires that all parties, First Nation and non-First Nation alike, act with integrity, dignity and honour. Economic activity requires a context of reliability and certainty. Investment will be made only when investors are confident and secure. To facilitate that context, the Government of Canada must bring its policies of claim settlements into the new millennium, including the establishment of an independent claims tribunal to deal with outstanding First Nation claims. It must reassess and renovate its comprehensive claims policy and process. It must develop acceptable processes of negotiation for all First Nations, whose relationship to the lands and resources must be articulated with the kind of certainty and reliability that prosperity and economic development require. It must honour its processes and their outcomes by full, speedy and effective implementation.

The Nisga'a treaty must now be accepted by the Parliament of Canada without further delay.

The Chairman: Thank you, Mr. Fontaine for your presentation. I will begin with a question and then call on colleagues to question you on your presentation and on the general nature of Bill C-9.

Mr. Fontaine, we have had some debate about the word "template". How much of a precedent do you see the Nisga'a Final Agreement to be in terms of the whole process of treaty settlement and rights recognition, which you have just outlined? Can you give us a sense of how you feel the Nisga'a agreement might be used precedentially?

Mr. Fontaine: The precedent that is important here is that fundamental change can be effected through negotiation, rather than change occurring because people have been forced to accept the different propositions that may have been advanced by those calling for change.

As far as the Nisga'a treaty being a template, it is not, and it should not be regarded as such. The Nisga'a treaty is good for the Nisga'a. It is right for the Nisga'a. It is their treaty. It should not be forced on other First Nations that need to negotiate equitable land settlements and -- important in the process of negotiating those settlements -- access to resources. It ought to be seen for what it is: A process that is unique to the Nisga'a.

Senator Christensen: Thank you for appearing before us, Mr. Fontaine.

The other concern that is raised is the question of overlap with the other two bands that are involved. I am familiar with the Yukon UFA and overlaps in those areas. This is not a new issue. What is your opinion on this overlap problem as it applies to the Nisga'a?

Mr. Fontaine: We should not be surprised that such an issue has arisen here. Undoubtedly, it will arise in other situations. The view of the Assembly of First Nations in regard to overlap is that it is a matter that is internal to the First Nation communities. Thus, it is something that ought to be resolved between the First Nations that are engaged in securing a fair and just land base. This is true in this case as well.

Senator Christensen: That is the position taken in the Yukon, as well. It was a matter between themselves, and they wanted to deal with it as such and not have other people trying to impose settlements on them.

Mr. Fontaine: The danger here, of course, is that we could end up with another jurisdiction imposing its views and its will on the communities. That will occur, when those who are engaged in such a dispute, if we can call it that, choose to go before the courts, because the courts will be obligated to decide.

I would much prefer to see an internal mechanism established by those communities, either through a mediation process or through an alternative dispute resolution mechanism, to allow that process to work its way through the dispute and to come up with a resolution.

Senator Gill: Mr. Fontaine, thank you for your presentation. Listening to different people from across the country, I am very much surprised, and sometimes disappointed, to see the state of communication and information between people on each group, on each other, on First Nations, and so on. Coming from inside the community, I feel that we have people who are as competent as anyone else; however, they are reluctant to step forward.

When we are talking about cultures, power, and so on, in general, I think many people love the First Nations. However, when we talk about business and serious matters such as taking over management, and so on, most people do not have the same level of confidence, although some do. What is your evaluation of the situation? Do the majority of people in this country have confidence in the First Nations? Are they ready to have a real partnership with the First Nations here or not? If not, as First Nations, do we not have a big responsibility to ensure that people know what is happening with regard to aboriginal people?

Mr. Fontaine: The decision we took three years ago was to engage with Canada in a cooperative, conciliatory, non-adversarial way. We wanted to negotiate change, as I said in response to an earlier question. We have tried to maintain our position, and we want to stay the course. However, we have met up with some stiff resistance. It seems that, in many quarters of the country, people are opposed to First Nations.

For example, there was the aftermath with the Marshall case, when it seemed that most of the country was opposed to the treaty rights that had been affirmed by the Supreme Court. The editorial pages of the country's newspapers were involved in getting people to oppose what had been affirmed by the courts. We have also had issues of accountability, where people have been given all kinds of coverage as they went about trying to discredit our communities and our leadership. We were dealing with allegations that were given all kinds of credence, which undermined our situation. It has caused us all kinds of problems.

The problems that that kind of campaign caused us were manifested in the budget that was brought down yesterday by the Minister of Finance, Mr. Martin. You will note that there is not one reference to aboriginal people or to First Nations people in the budget. This is after countless interventions with government and all the centres of power in Ottawa, where we came forward with reasonable propositions. We advanced clear recommendations regarding the situation that continues to challenge First Nations people and the government here -- namely, grinding poverty. That should be addressed. Those reasonable, well-articulated positions were rejected.

I believe that the campaign that has been waged by these people has accomplished what they set out to do. For example, if I made the kinds of allegations of corruption and all the serious allegations that have been made, I would be slapped with either a civil suit or a defamation suit. Yet these people can go on as they have done without any fear.

You will recall Oka, the crisis that lasted 79 days, when the situation of First Nations, or "first peoples" as we were being described then in the international press, played out. For the first time, Canadians were exposed to many of the situations that are faced by First Nations people. The exposure included a discussion on treaties and the historic relationship between first peoples and Canada. It talked about all the problems that had been experienced by our people. We had all kinds of good coverage. As a result of that coverage, the level of support for First Nations rose dramatically.

That support has decreased significantly since. Sometimes we think the only way to get people to think differently from their normal day-to-day view of the world is to impose a crisis on the nation and cause people to think more seriously than they want to do about our situation. We do not think that is the answer, although we see evidence that that kind of action works. I would prefer that we be able to engage in reasonable conversation and discussion about our issues. When we see this thing playing out as it does, and as it has in the last while, it is very frustrating.

The Chairman: Let us hope that this is part of the reasonable discussion process here in the Senate committee looking at Bill C-9, because what we have here, as you have said, Mr. Fontaine, is a negotiation among three parties who have come to a mutual agreement. We hope that this becomes more the precedent than physical confrontation.

Senator Gill: Aside from what we have been doing with Nisga'a, perhaps something should occur in the Senate. I hope to continue to ensure that the information is going out.

The Chairman: In a report that was tabled by my predecessor, Senator Watt, we examined the process of self-government, the meaning of "self-government," and the internal process of government in developing models and discussion about self-government, including, as you have said, Senator Gill, the question of implementation.

We have proposed that a completely different body or institution be set up to deal with implementation, a body apart from the department itself.

Senator Tkachuk: Welcome, Grand Chief Fontaine. I would like to ask a couple of questions on the general principles of how we approach settlement with First Nations people, since that was where you chose to focus your remarks, rather than on the specifics of the Nisga'a treaty.

When you say there are reactionary forces in the political system or in the communities that are opposed to the Nisga'a treaty, to whom would you be referring?

Mr. Fontaine: You probably know them better than I do.

Senator Tkachuk: I am asking you. I do not know that we agree on them.

Mr. Fontaine: I think it is clear that there are people who are opposed to the Nisga'a treaty. Some go beyond that. They are not just opposed to the Nisga'a treaty, they are opposed to First Nations generally. For example, the notion of sameness of treatment, that all Canadians are equal and ought to be treated equally, is used to undermine the historic and unique position of First Nations people in the country. It is an attempt to revise history. The fact of the matter -- and it is part of our true history -- is that there are treaties between our people and government, the federal Crown. This notion of sameness of treatment is used to try to undermine that.

The law of the land says that it is proper to treat people differently, provided that, at the end of the day, people are equal. In my view, there are far too many people who want to push the first notion to which I referred, sameness of treatment. There are people in the House of Commons, and I am sure there are some in the Senate, who have that view.

Senator Tkachuk: That answer leads me to my next question. I think people's concerns are based around the fact that this process is not a new one. It is new in B.C., but it is not a new process. There are treaties in other areas of the country. In British Columbia, they had reserves but no treaties.

Are the economic circumstances of the Indian people in British Columbia worse than those on the prairies, or would they be about the same?

Mr. Fontaine: It is difficult to compare poverty: Is this community poorer than another community?

Let us look at the situation of indigenous peoples worldwide. I have heard the argument many times that, if we did not have reserves or if we got rid of the reserves, that would put an end to poverty because people would then be like everyone else. People would be treated equally. People would be forced to make their own way through life.

However, if you look at the situation of the indigenous peoples in different parts of the world, the poorest of these societies are the indigenous peoples, and yet there are no reserves in most parts of the world. Therefore, it is not the reserve system that makes people poor. There are other factors that come into play that cause poverty. Quite obviously, one of those has to do with land and securing an adequate land base. Another has to do with access to resources, because that is how wealth is created.

Senator Tkachuk: We still have not got to the question. I was not talking about the reserves but about the treaties themselves. Some concerns have been expressed to us about them. For example, Gordon Gibson raised a concern as to whether we should approach treaties in a collective way or an individual way. In other words, does the collectivization of ownership of land and resources really benefit the individual First Nations person rather than grouping them as a people?

Let me give you an example. You said earlier that First Nations needed the resources to become wealthy, yet today I would say the greatest resource we can give a person, without a doubt, is the opportunity to educate himself or herself. There is a problem of poverty among the First Nations people -- and I think most Canadians realize that and sympathize with it and would like to see it alleviated. I do not think there is any question about that, and I have great faith in the Canadian people to do that. Yet many First Nations people have become very successful businessmen in the communities; they are lawyers, doctors, senators, engineers, nurses. They have done very well, and part of the reason they have done well, I think, is, first, because they wanted to, and, second, because the Canadian people made a decision to assist many of them -- not all of them but many of them -- in their opportunity to get an education and to be successful. Is that not a sharing of the people's resources and an opportunity for the Indian people that is unsurpassed? Will land and trees and rivers make that much of a difference to the poverty, or will it be education and entrepreneurial spirit and all of those other things that make people successful, not only in this country but all over the world?

Mr. Fontaine: Are you asking a question or making a statement?

Senator Tkachuk: I am trying to ask a question. You are making statements and I am challenging a few of them, and I would like your comments.

Mr. Fontaine: First, I do not pay much attention to Gordon Gibson. I think Gordon Gibson is one of those people who have waged a campaign to discredit the first peoples. We take whatever opportunity presents itself to challenge Mr. Gibson's views, which are destructive in the main.

I will not argue with you that education is one of the important vehicles for positive change in our community. In fact, in the short period of 30 years, the number of our people in post-secondary institutions has risen dramatically. Thirty years ago, we had about 80 people in post-secondary institutions. There are now about 27,000. The number of First Nations students in post-secondary institutions, of course, represents an incredible force for positive change.

However, that is only one vehicle. I think it would be wrong to minimize the importance of the need for access to resources. You talk about wealth creation. Resources are the most important vehicle for creating wealth in Canada. Oil and gas, timber, fish -- all of those important resources have been, in the main, denied our people.

Every time there has been an opportunity to secure the rights of our people, people have reacted strongly against our position. Donald Marshall is the most recent and the best example of that. There are more illegal boats in the waters than there were First Nations boats. There are more illegal traps than there were First Nations traps in the waters. We are talking about the richest lobster area in the world. It was a situation in which people did not want to share the resource.

When we talk about education, we are talking about something that is not given to us because it is public policy. It is a right. It is our right. It would make better sense for us if people recognized it for what it is. It is a right and governments are obligated to treat this for what it is. The important thing about education is that it provides our people an opportunity to decide for themselves what they want to do with their lives. It takes us away from the situation that was imposed on us. The education system was designed to force people to assimilate. It has cost us a great deal.

Senator Andreychuk: I wish to return to Nisga'a and the agreement. You indicate, and I very much support you, that negotiated settlements are the way to go in regard to aboriginal claims.

Negotiated settlements must be settled fairly and in a just manner. They cannot simply be imposed by one of the parties. What troubled me about your answer to the overlap question was that each one of the nations will negotiate, and you did not quite answer whether, if one beats the other to a negotiated settlement, the other's recourse is to go to the courts, after which they are precluded from their right to a full negotiated settlement. What is your position on that?

Mr. Fontaine: The point I was making is that we are talking about different jurisdictions. We are dealing with different governments. As far as the Nisga'a treaty process is concerned, we are dealing with the federal Crown, or the federal government, dealing with the provincial Crown or the provincial government, and we are dealing with the Nisga'a government. Each of these bodies has its own jurisdiction.

When it comes to First Nations, we are talking about First Nation governments and it is preferable, in my view, to have a process or a mechanism that is established internally -- internal to our communities or internal to our governments -- to resolve an issue that, obviously, is an internal matter between our governments and our communities.

I think you would get the same response from any of the communities that are involved: that it would make far better sense to have these issues and these matters resolved internally. That is one point.

The other point that I wish to raise is directly related to the section of my presentation that talks about comprehensive claims policy. Overlap is not dealt with in the comprehensive claims process; it is silent in that regard. Thus, that reinforces my point that what we need to do is establish either a mediation process or an alternative dispute resolution process designed by our communities to deal with such matters.

Senator Andreychuk: My point is that there are overlaps. I hope that we are not suggesting that the Gitxsan or Gitanyow claims are in any way not valid. I think they are coming to the table negotiating and saying they have an honest belief that those lands are theirs. The Nisga'a have done the same. We are now entering into Nisga'a. They happened to be able to bring that process involving the federal and provincial governments and their government together to some consensus. The others have not. The fact that they have not puts them in a different position, and in my opinion a prejudicial position relative to Nisga'a, simply because they could not come to an agreement as quickly as Nisga'a. Now their only recourse will be to go to the courts.

It is good to say that we should have some understanding, but there is none at the moment. We are at the point of approving the Nisga'a agreement. What is our responsibility then to the other two who continue? They have now lost some of their bargaining position.

Mr. Fontaine: I will go back to the point I made in response to your question, and in response to an earlier question, that it is important to respect the integrity of our governments and our institutions, and one of the shortcomings in the process as it exists now is that there is no vehicle to deal with this particular situation. I suggest to you very respectfully that the First Nations themselves have to design an alternative process to the courts, because what we will end up with here is an imposed decision. If you speak to most people who are involved in government, they say that it is far better to have these matters resolved through negotiations than to have a court impose a decision.

Senator Andreychuk: What role is your organization playing with the aboriginal nations to address this issue and to alert them to the difficulty? Are you bringing them to the table and suggesting that they find a way out of this so that we are not in this situation again?

Mr. Fontaine: I think it is important to note here that the Assembly of First Nations, as an organization, is not involved in any of the negotiations.

Senator Andreychuk: I appreciate that, but can you not play a facilitating role?

Mr. Fontaine: If it is something that is requested of us by First Nations involved in various negotiations, the Assembly of First Nations does get involved. However, we do not impose ourselves on any First Nation in the country.

Senator DeWare: You are saying, Mr. Fontaine, that the First Nations have to settle their overlapping land claim agreements. However, if you waited for an internal settlement by the First Nations governments, would that not hold up other treaty settlements?

Mr. Fontaine: It has been pointed out to me that there are in fact provisions in the agreement, sections 33 and 34, that deal with other aboriginal people. I refer to section 34, which states:

If a superior court of a province, the Federal Court of Canada, or the Supreme Court of Canada finally determines that any aboriginal people, other than the Nisga'a Nation, has rights under section 35 of the Constitution Act, 1982, that are adversely affected by a provision of this Agreement:

the provision will operate and have effect to the extent that it does not adversely affect those rights; and

if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision.

Senator DeWare: You will remember that to amend a treaty you will have to have all three parties in agreement; is that not correct?

The Chairman: This provision is the agreement that allows change in the event of a court's decision.

Senator Grafstein: First, Mr. Fontaine, welcome. I have followed your career with great interest over the years. I wish to ask you a policy question as it applies to the Assembly of First Nations. It is a question that I will articulate as it relates to the Nisga'a treaty. This is a policy question and then I would have your personal view -- that is, if you care to have a view.

On my analysis of the Nisga'a treaty, there are four groups -- I will not say "classes" -- that are encompassed by this treaty: First, the Nisga'a resident within the circumference of the land settlement; second, non-Nisga'a who reside outside the circumference of the treaty lands that are settled; third, non-Nisga'a whose ownership is preserved as holes in a doughnut throughout the Nisga'a lands; and, fourth, non-Nisga'a residents who may or may not have any ownership in the lands but work within the Nisga'a area.

In my analysis of the treaty, the first two groups have full voting rights, namely, those who are Nisga'a resident within the circumference of the lands and those who are resident without. They have representation and full voting rights. I want to focus not on property rights but on political rights and political rights to vote. In the Nisga'a treaty, there are strong words to suggest that those who do not have the vote, namely, non-Nisga'a, have strong opportunities to make their views felt. There is clear drafting to allow that to happen. However, at the bottom of it, the new minority groups, which are the non-Nisga'a within the Nisga'a lands, do not have a vote dealing with the Nisga'a issues themselves. They are exempt.

What is your view on minority rights of non-aboriginals or non-indigenous people within these settlement areas? To what extent should they have political rights to vote, recognizing that in this instance there are about 100 people who might fit into this category and the total Nisga'a are 5,000 to 6,000? Never, in the foreseeable future, can this minority ever overwhelm the majority. This is a question of minority rights.

Mr. Fontaine: Our understanding of this particular section related to political rights is that those people have rights to participate in public institutions. That right protects their interests. We believe that the rights of all peoples, whether they are part of a majority or a minority, must be protected. There must be provision for that, and many of the agreements are negotiated to recognize those rights. We must always remember that we are talking about, in this case, a treaty that is for the Nisga'a. We are talking about the rights and the interests of the Nisga'a. There are other governments in place to protect the rights and interests of those minorities that may be within the particular territory of the Nisga'a.

Senator Grafstein: As a question of Assembly policy, with respect to minority rights, you take the policy position that minority rights of non-indigenous people or non-Aboriginals within the lands should be treated, as you said earlier -- I think you said in response to questions that it is the government's obligation to respect rights. We now have the Nisga'a government and it is its obligation to respect -- and I am not trying to put words in your mouth, because I want to be careful here -- political rights, which means voting rights. Is that your position?

Mr. Fontaine: I will refer to the agreement again for this question. The heading is "Relations with Individuals who are not Nisga'a Citizens," and it is section 20:

Nisga'a Government will provide that individuals who are ordinarily resident within Nisga'a Lands and who are not Nisga'a citizens may participate in the Nisga'a Public Institution, if the activities of that Nisga'a Public Institution directly and significantly affect them.

Senator Grafstein: I have read those sections and I am clear. If you take a look at the transcripts -- and, I am sure you have -- I asked that question of Dr. Gosnell, who, in effect, said that the Nisga'a were not able to go the last step to provide political rights or voting rights under those provisions because he was not able to get support from the Nisga'a who were giving him instructions. I had just asked him why he did not go the last quarter to answer this and he said he was not able to do so because he was not able to get that support from his band. It is a problem for me; it has been a problem for you for practically your entire career. We now find ourselves in this position where we are coming to deal with these forms of self-government. One of the roles of the Senate has always been to protect minority rights. That is one of our implicit principles. Thus, it gives us some concern. I hope we will allow the Nisga'a, at the end of this hearing, to respond more fully to this concern.

I was interested not in your reading of this treaty but in how you feel, representing the assembly of First Nations, and how the First Nations feel about this as a question of public policy/minority rights.

The Chairman: Mr. Fontaine, if you have an answer to Senator Grafstein's eternal search, I would be happy to hear it, but the committee is about to adjourn. Would you like to make a short answer?

Mr. Fontaine: We will take it under consideration.

The Chairman: Thank you very much.

The committee adjourned.