Proceedings of the Standing Senate Committee on
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.