Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 6 - Evidence, March 21, 2000
OTTAWA, Tuesday, March 21, 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, today we are continuing our examination of Bill C-9. Our first witness is Professor Doug Sanders, Faculty of Law, University of British Columbia.
Professor Sanders, welcome to our committee hearings.
Professor Doug Sanders, Faculty of Law, University of British Columbia: Mr. Chairman, I want to address, essentially, some of the questions involved in self-government and the constitutional status of Nisga'a government that will result from the treaty.
The idea of Indian self-government is not new. The Royal Proclamation of 1763 referred to the "...nations or tribes of Indians with whom we are connected and who live under our protection." That indicated a suzerain relationship of the colonial power to continuing tribal governments. Tribal government structures existed and established leaders negotiated with Crown representatives.
The Indian Act, from its inception in the 19th century, used a form of indirect rule that involved the recognition of traditional leaders and councils, although with an agenda of pushing the establishment of elected band councils. It is the indirect rule Indian governments that bridge between wholly traditional governments and modern Indian governments, exercising what is called "tribal sovereignty" in the United States and "the inherent right of self-government" in Canada.
John Diefenbaker, when he was Prime Minister, referred to Indian self-government in a speech in the House of Commons. Jean Chrétien, when he was Minister of Indian Affairs, endorsed a national Indian brotherhood position paper entitled "Indian Control of Indian Education" that supported Indian government control of aspects of the education system.
The only significant amendments to the Indian Act in the last 20 years occurred in 1985 and 1988. The 1985 amendments transferred much of the control of Indian membership to bands. The 1988 amendments gave band governments the power to tax, zone and license non-Indian residents and businesses on leased or designated reserve lands. Both sets of amendments expanded band government powers.
Self-government was, of course, endorsed very convincingly in the 1983 report by the Special Committee on Indian Self-government. That was a unanimous all-party report that established our now common language of self-government and First Nations. Self-government is part of the James Bay and Northern Quebec Agreements, the Yukon and Northwest Territories settlements, the Sechelt Self-government Act and Nunavut.
Given the history, I am somewhat surprised that critics of the Nisga'a treaty see it as a radical departure. Gordon Gibson, writing two years ago in the journal B.C Studies, referred to it as a "radically new system" .
I should like to comment on a number of points relating to self-government and the Nisga'a treaty, some of which I know have arisen in your deliberations. First, there is the question as to whether this is establishing some kind of collectivist or communal system. Gordon Gibson, in that same article, referred to the treaty as establishing a "massively powerful collectivity". That language has been used frequently in terms of media coverage in British Columbia.
The Indian Act has provisions for allotments of parcels of reserve land to individual members. That is done by the band council with ministerial concurrence. The courts have consistently said that the allotment gives full title to the individual; band interests in that land are ended. The treaty states that the interest that individual Nisga'a already hold in reserve lands will continue with at least equal legal protection. In my experience, having visited many reserves in British Columbia and other parts of the country, the private property system on reserves is obvious. People own their houses, sell them to other band members, leave their houses to their children, and they run their own businesses on allotted lands on reserves. Even in the reserve communities that refuse to follow the Indian act allotment system, there is a customary private property system that is respected in practice. So there are collective aspects and individual aspects; that is true on-reserve and it is true off-reserve.
Second, are the powers that Nisga'a government will have under the treaty massive? To hear some critics, one would think that Canada is left only with jurisdiction over the currency, national defence, and Sable Island. The Nisga'a will take over the running of a number of social services, health services, social assistance, and other such things, but what of substantive legislative authority? The Nisga'a will gain no jurisdiction over criminal law; they will not gain the broad jurisdiction over commercial law that is characteristic of Indian tribal governments in the United States.
I will attempt to summarize the powers that the Nisga'a will have. They have jurisdiction over matters of culture, language and education. They can make laws on the devolution of Nisga'a cultural property, but have no jurisdiction over intellectual property. Educational programs in Nisga'a schools must conform to provincial standards. The Nisga'a governments can control land use, building standards and local business. They can control gambling and gaming that is subject to federal and provincial laws. Nisga'a governments have roles in family law matters that include child and family services, the solemnization of marriages, and some control over the adoption of Nisga'a children.
They have limited jurisdiction on certain law and order matters subject to federal and provincial laws. That jurisdiction includes laws on the possession, consumption and sale of alcohol. There can be a Nisga'a police force and a Nisga'a court with appeals into the regular court system. Wills and estates will come under provincial law, but there will be a gradual assumption of these legislative powers by the Nisga'a governments.
In writing previously about the Nisga'a treaty, I summarized my view of the Nisga'a powers in the following way:
The self-government powers of the Nisga'a are: (a) matters already recognized under the Indian Act; or (b) matters already recognized under intergovernmental agreements -- for example, policing, corrections, education and child welfare; or (c) matters such as language and culture, in which the Nisga'a are the logical level of government from any point of view; or (d) new matters such as the sale of liquor or gaming, but only as the province may allow.
Perhaps the only surprising items in the list of powers are adoption and the solemnization of marriage, neither of which, I believe, is seriously contentious.
Having discussed then the powers of Nisga'a governments, I want to address the question of the application of the Charter of Rights and Freedoms. There has been very legitimate confusion here.
The Charter, by its own terms, applies to the federal and provincial governments. Professor Peter Hogg and then Professor Mary Ellen Turpel wrote that in their view the Charter would apply to aboriginal governments exercising the inherent right of self-government under section 35 of the Constitution Act, 1982. Section 25 of the Charter provides that the Charter will not abrogate or derogate from any aboriginal treaty or other rights and freedoms of the Aboriginal Peoples of Canada.
The question has arisen as to how broad this exemption based in section 25 is. Does it effectively exempt First Nations governments from the Charter? We have little guidance on that, but it is clear that the courts are not interested in construing section 25 as a blanket exclusion of the Charter. The Supreme Court of Canada, in Corbiere, in 1999, said that not all legislation dealing with Indian matters would be protected by section 25. It is reasonable that that ruling would apply both to federal legislation and to legislation by the Nisga'a government.
There must be some aboriginal cultural significance to the legislative provision to warrant protection under section 25. Gordon Gibson has suggested that the declaration of the Nisga'a government as a free and democratic government has the effect of barring any Charter challenge. In my opinion there is no question that it will not have that effect.
The next question is: Should we be concerned about constitutionalization of Nisga'a powers of self-government? As my remarks already indicate, I suggest that the idea of self-government is not new, and has in fact had very wide support in Canada. I have also pointed out my view that the powers involved in Nisga'a self-government are modest. I have suggested that the Charter will apply and that actions of Nisga'a government will be subject to regular judicial review.
In fact, I argue that the Nisga'a treaty will integrate Nisga'a government into the Constitutional order of Canada, and in particular will normalize or structure its relationship to provincial governments, something that the present system does not do adequately. Indian critics of the treaty in British Columbia would argue, indeed, that there is too much integration, too much control in the treaty.
Finally, I want to deal with the question as to whether this treaty represents some kind of constitutional amendment directly or indirectly. Perhaps I should say that I have taught Canadian federalism for more years than I care to remember. I think I began teaching here in Ontario in 1969. My answer is that, no, there is no constitutional amendment involved. The Constitutional amendment occurred in 1982 with the recognition and affirmation of existing aboriginal and treaty rights in the Constitution act, 1982. As the Supreme Court of Canada has commented since, that amendment gave constitutional force to treaties within the Canadian legal system. Before that time, there was no general principle in the Canadian legal system giving legal force to treaties, although there were some legislative provisions that gave force to particular treaty promises.
It is basic to constitutional law that constitutional language must, as it is often put, continue to speak. We do not amend constitutions frequently. Therefore, the provisions have to endure through many kinds of changes within the society. The categories that the Constitution uses can remain the same, but the exact content of the categories will change over time.
I will give an example. Over the years, Indian reserves have been created and some reserve lands have been surrendered. That has meant that the content of the Constitutional category "lands reserved for the Indians" has changed, with some land coming within the category and some land going out of the category.
The content has changed, but the language of the category itself has not changed. Of course, if we look at jurisdiction over Indians -- Indians are born, Indians die -- the content of the category changes over time.
I would say, then, that whatever treaties exist from time to time come within the category of existing treaties in section 35 of the Constitution Act, 1982. Any other interpretation of the Constitution would be inconsistent with established rules and would create unworkable rigidity. The content of the Constitutional category changes with the Nisga'a treaty; the Constitution does not change. There is no constitutional amendment.
In writing earlier about the Nisga'a treaty, I concluded with these two sentences:
The Nisga'a agreement is complex, but the fundamentals are reasonably clear. The Nisga'a have secured a land base in their traditional territories, and a modest degree of constitutional autonomy in order to further their collective control over their own lives.
Senator St. Germain: Mr. Sanders, you say that it is not a radical departure that we are venturing into here. I would like your view. We are going from a delegated methodology of granting native peoples the right to self-government, vis-à-vis this compared to the Sechelt. Many people feel it is quite radical that we would go to the constitutionalization or legislated methodology that we are using.
I would like your comment in regard to the fact that any affected persons, like other native bands or any other groups that are affected, will be forced into the court system to remedy any situations that they feel are unfair to them as a result of this particular agreement. The Nisga'a will have an agreement that can only be amended with all three parties in agreement -- the federal government, the provincial government and the Nisga'a.
I would like your comment on that, because I am being told by British Columbians that that is a radical departure from what we have done in the past, sir.
Mr. Sanders: The model that we have had of Indian government has been a delegated model with powers specified in the Indian Act. We have seen an increase of Indian control, in fact, by delegation of administrative roles, in addition to the respective powers that are there. One of the problems that Indians have long identified with the present system is the lack of any guarantees within it. There has been from time to time, because of our history, considerable Indian distrust of governments in power. Therefore, we can see a long history of Indians asking for some kind of stronger protection for the treaties and for treaty and aboriginal rights. We saw that in the legislative hearings that occurred in the 1940s and at the end of the 1950s.
The constitutionalization does represent a change; it represents a change that responds to longstanding Indian views based on distrust of the larger system.
Should we be concerned about constitutionalization? Is it a major change? If we still have hopes of assimilation or termination in this area to dismantle the existing system of rights and some degree of cultural autonomy on the part of Indian bands, then we should not constitutionalize these provisions. If we do have a consensus in the country at this point that Indian autonomy should be supported and should be seen as part of the political, social and constitutional order in the country, if we have a sense of a consensus on this, then constitutionalization on its own is not problematic, unless, of course, the powers that are involved are, as some of the critics suggest, very sweeping.
That is why I spent some time trying to describe the powers which any person fairly looking at them would see to be modest and to be community-oriented. The reserve system at the present time does not have the marginalizing impact that it had in earlier administration. The Nisga'a treaty does not isolate Nisga'a from larger governmental, social and economic patterns within the country.
The reassurance that is given to Indians by constitutionalization I see as positive. I do not see Canada resuming overt policies of assimilation and termination. I see the powers that are involved here as modest, appropriate and workable. For those reasons, I do not see constitutionalization as a problem.
I have not addressed the problem that you have alluded to, which is the question of overlapping with the territory of other groups. That is a particularly troublesome issue. The evidence indicates an inability, unfortunately, of the tribal groups themselves to resolve the issue. This is an issue that has been dealt with in every case asserting aboriginal title to land, not the specific issue, but the issue of traditional tribal boundaries. Therefore, it is an issue in which our system is capable of delivering an answer.
Senator St. Germain: We are quite restricted for time, Mr. Chairman, so I will yield to somebody else at this point. I have other questions.
The Chairman: We will try to come back to you, Senator St. Germain.
I would add a supplementary question. The concern that is expressed as a constitutional question, apart from the social and political value substrata to which you have addressed your answer, is that simply for the first time the federal and provincial governments are creating an authority in another entity to create laws that some say supersede, but I would say build on, provincial and/or federal laws. Is that of any constitutional concern to you? Do you see that as a political issue or as a constitutional issue?
Mr. Sanders: First, let me be clear about my view of Nisga'a powers. Certain of the Nisga'a powers will prevail over federal and provincial legislation. We have in the Nisga'a powers differing rules for differing powers, but I do not want to suggest that there is not an area of jurisdiction which the treaty will confirm in Nisga'a hands.
At the moment, we have a situation in which a number of provincial laws are excluded from application in relation to reserve communities, but basically in relation to reserve lands.
The Chairman: Under the Indian Act.
Mr. Sanders: This is under the Indian Act, a judicial decision interpreting the present situation outside the areas in which self-government agreements exist.
There have also been some rulings in relation to fisheries that band bylaws dealing with on-reserve fisheries oust the more general provisions of the Fisheries Act. We have a situation in which some degree of autonomy exists under the existing arrangements. Therefore, the new system under the Nisga'a treaty, in which Nisga'a law can bar the application of certain provincial laws, is not a radical departure.
One says yes, of course, but we have moved from the delegated system to a constitutional system. All commentators on Indian policy in Canada in the post-war period, whether they like it or not, have had to come to the conclusion that the reserve system, the Indian Act system, cannot be politically terminated by the federal government, that we are not prepared to steamroller an integrationist, assimilationist, terminationist agenda.
As Dr. Sally Weaver, the anthropologist, commented, the Indian Act was essentially unamendable, and that has been true for 30 years. The two amendments to which I referred are highly exceptional, and the second represents and was described at the time as being an amendment that could go forward because it was Indian-initiated and Indian-supported. The 1985 amendment which preceded it was not opposed by status Indian organizations when we got to the point of that legislation.
We have an existing situation in which Indian communities exist. They have been legally separate. Ideas of campaigns of assimilation or privatization or termination of these systems have been articulated from time to time. That is not politically possible in Canada in this period.
Therefore, what do we say? Does this tell us that we are to allow the status quo to continue? That is also seen by people in Canada as unacceptable. Here we are trying to give good foundations to a Nisga'a autonomy that is highly integrated within the legal, social and political system of the country. That is my view of what the treaty sets out to do and achieves.
The Chairman: To try to sharpen my question, is there anything in our constitutional law that says that creating in the Nisga'a a right of self-government that can exclude certain federal or provincial laws is unconstitutional?
Mr. Sanders: We do not have an old answer on this, because we proceeded for so long with a constitutional order that simply mentioned Indians as a head of federal power and not as having any necessary autonomy. One can see the federal jurisdiction in relation to Indians and lands reserved for Indians as an acknowledgment that separate measures in relation to Indians were going to be necessary in Canada, but, in fact, that was filled with some indirect rule, delegated power, and a lot of government paternalism.
The basic notion that we articulated early in our constitutional history was that the Constitution Act of 1867 simply divided authority between two levels of government. In other words, there was no consideration of the colonial character of the Canadian Constitution in that kind of analysis and in that period.
The year 1982, then, does represent, I think, something of a watershed, in that we come to terms in constitutional language with the fact of our colonial history and the continued existence of Indian communities within the country that have not been assimilated and who are determined to continue as distinct communities within the Canadian society. Once we constitutionalized those rights in 1982, the older idea of a simple division of authority between two levels of government was gone.
We also abandoned another fundamental principle in 1982, which is the idea of parliamentary supremacy, that the Constitution simply divided authority between two levels of government. The Charter represented a major change in Canadian constitutional life by creating limitations on the powers of both the federal and provincial governments, something totally different from the scheme of the Constitution Act of 1867.
Section 35 also resulted in a major change in the Constitutional assumptions that we had between 1867 and 1982. The old wisdom was gone, and I would say thank goodness.
Senator Tkachuk: I am still a little confused on this. I understand what you say about 1982, and treaties coming into force after the 1982 constitutional amendments, not necessarily including self-government, and how the scheme was rejected by the Canadian people in the Charlottetown referendum. This treaty is different, because it includes self-government within it and then gives it effect under section 35.
Are we not constitutionalizing another level of government in Canada?
Mr. Sanders: In 1982, when section 35 was drafted, with its reference to existing aboriginal and treaty rights, I think it is clear -- and I have written this in law review articles that I force students to read -- that the framework used by the politicians who did the drafting revolved around hunting and fishing rights and land claims, and that the drafters did not address in their thinking the issue of self-government in drafting the wording in 1982. That gave rise to some of the confusion and uncertainty that came afterwards. Should we say that the treaties then should only deal with what the drafters had in mind when they drafted section 35 in 1982? That is essentially why, in my comments, I went back to before 1982.
To a large extent, we tend to see the report of the Special Committee of the House of Commons on Indian Self-Government in 1983 as a kind of dawn of history. They held a very effective series of hearings, did good background research, and produced an extremely readable report. It was a time of considerable change. The recommendations of the report were adopted by the leaders of the then two opposition parties in the House of Commons. Prime Minister Trudeau had stepped down. Seven candidates were seeking the leadership of the federal Liberal party, and all seven endorsed publicly the recommendations of the special committee; so we rather see that as the dawn of this particular history.
Of course, that occurred one year after the constitutional amendments of 1982 came into force. However, if one looks behind 1983 and 1982, one sees a continuing pattern of recognition of some jurisdictional or governmental character to the Indian communities. That is true in both Canada and the United States. It is not true in Australia.
The question then becomes: What will the courts do in relation to self-government? That question has not been squarely addressed by the Supreme Court of Canada. The most positive statement comes in the case dealing with the sales tax exemptions in New Brunswick, in which now Chief Justice McLachlin refers to the exemption in effect as serving self-government goals by allowing a tax base that Indian governments will be able to use. That is the closest the Supreme Court of Canada has come to directly addressing the question of self-government.
The Charlottetown accord reflects the uncertainties that existed after 1982, the sense that we needed to put something in the Constitution, something that was clear and explicit on self-government and on the question of the application of the Charter of Rights and Freedoms.
The self-government provisions of the Charlottetown accord were the most popular provisions in that package of constitutional amendments. Jacques Parizeau was at that point the Leader of the Opposition in the province of Quebec. He said that the accord should be junked, but that the Indian provisions should be implemented. Sharon Carstairs, the Liberal Leader of the Opposition in Manitoba, was a major spokesperson against the Charlottetown accord. She took essentially the same position, that the Charlottetown accord should be junked, but that the Indian position should be supported. It was clear that the Indian self-government provisions had the widest support in the country of any of the provisions in the Charlottetown accord.
That accord is history, but I do not think we can say that the defeat of the Charlottetown accord represented any defeat of the idea of self-government. That part of the package was not the reason that the Charlottetown accord went down. The accord was not supported in the votes in Indian reserve communities. We assume it was supported, from what material we have, by Metis and by Inuit, but it was rejected; so these questions, which were seen as real questions that needed to be addressed, were addressed in the Charlottetown accord, but that is gone.
In the time since then, the analysis in the country that self-government is an aboriginal and treaty right recognized implicitly in section 35 has developed in academic writing, in the position of political parties and the position of various governments, and in the work of the Royal Commission on Aboriginal Peoples. We now are in a situation in which I think it is fair to say that the dominant analysis, judging by the kinds of figures I have referred to, is that self-government is recognized in section 35 of the Constitution Act of 1982. Therefore, what we are doing in something like the Nisga'a treaty is reducing the uncertainty, defining the specific powers, and defining the relationship of Indian governments to the federal and provincial governments within the Constitutional system.
Senator Tkachuk: When you talked about a question of individual land ownership, you mentioned Mr. Gibson and his comments on collectivization on Indian reserves.
In this particular agreement, how will that work? If an individual Indian family buys a piece of property, do they get title to that piece of property?
Mr. Sanders: The present system is referred to as an allotment confirmed by a document called a certificate of possession. The Nisga'a will have the authority to legislate about this. The exact terms --
Senator Tkachuk: Will it be ownership in fee simple? Does an individual Indian get land in fee simple.
Mr. Sanders: They will not get it in fee simple in the sense of a transferable title. They can sell it to people within the membership of the band. They cannot sell it outside of the band without going through specific procedures.
The Chairman: May I interrupt, because time is moving. Are you just about finished? If not, continue.
Senator Tkachuk: I wanted to make sure that the testimony reflected how land ownership would be treated on a reserve.
Professor, you said in your earlier comments that land ownership will be respected, but that, legally, the person who obtains the land does not have fee simple jurisdiction over that land, nor can he sell it to whom he wants. In other words, he is restricted to selling it only to the people within that reserve. His market is basically the market of his neighbours, the Nisga'a itself, and no one else. That is defined by race. He can only sell to that group of people, and to no one else.
Mr. Sanders: He will only be able to sell, transfer or leave it by will to people who are within the Nisga'a membership. Any dealing with third parties by the individual holder of an allotment would require special arrangements, which are possible under the present system. They will be possible, I believe, under the Nisga'a system once their legislation on land is put in place.
Senator Andreychuk: You have stated as a public policy issue what I think most Canadians believe, that there should be support for self-government for aboriginal peoples. I happen to subscribe to that. I think you said that eloquently.
My concern regarding this bill is whether it is constitutional. As you come from the faculty of law, I should like you to tell me. I understand section 35, but I do not think section 35, even in its negotiations, was contemplated to go as far as you are saying. Under what basis do you believe section 35 legitimizes the Nisga'a agreement?
Mr. Sanders: I indicated my view that in the drafting of section 35 -- and a very political process was involved in the drafting of this particular section -- the politicians involved did not address the issue of self-government. The question then becomes: How will section 35 be interpreted now? Will it be interpreted as including self-government or not including it?
If we look back to the historic treaties, before 1982, we can say that they include elements of self-government. The historic patterns, including the Indian Act system of indirect rule, involved elements of self-government. Therefore, the fact that section 35 was not what the politicians were thinking about in 1982 is not an answer as to how the courts might interpret the content of section 35 if a full argument were presented to the courts about the history.
My view is that there has been considerable policy evolution in Canada since 1982, and that self-government has attained a broad support in the country that was not articulated in 1982 by any other group than Indians. There was a lot of Indian opposition, we must remember, to the Constitution Act of 1982. Much of it was concerned with the fact that Indian positions arguing for recognition of self-government had not been expressly met.
We have controversy in terms of the content. The question becomes what is the best assessment at this point of what our courts would interpret section 35 as encompassing. I think there is a broad consensus among academics, at least those writing on this question, that the court would interpret section 35 as including self-government.
Senator Andreychuk: As a follow up to that, what troubles me is that I think those of us who wish to have that measure of self-government are concerned that the methodology chosen in the Nisga'a agreement could conceivably lead to a decision in the courts of its being unconstitutional. The devolution of powers is being done in a rather abstract way, and not by constitutional amendment, for example.
Therefore, if your point of view is not accepted, I am concerned that two things will happen. First, aboriginal claims and rights will be set back, which is not what I want. Second, the onus will be on the courts again to make judge-made law. As you know, in your area of expertise, they are having a field day in the judiciary, when in fact it should be a matter of parliamentary process to put the law correctly. In other words, if there is as much confusion as you say there is around that point, you are inviting the courts to be creative, and they might well be.
On the other hand, the courts may say that this is well beyond what is creative interpretation and that constitutional amendment is warranted, or some other methodology. I worry about the conundrum we might get ourselves into by virtue of the methodology chosen to implement the Nisga'a agreement.
Mr. Sanders: I think the courts would be greatly relieved with having a text like the Nisga'a treaty, which in considerable detail spells out what exactly the powers are and how they relate to the powers of federal and provincial governments. I think the major factor that has inhibited judges so far in dealing with self-government issues is their fear of having to define those powers and structure the relationship of Indian government to other governments within the Canadian constitutional system.
The courts have urged over and over that issues be settled by negotiation. This fits perfectly within that concern of the Supreme Court of Canada. I think they would look at this as delivering certainty and as saving them a lot of headaches. I believe we will have strong judicial support for this document.
Senator Andreychuk: I will pursue that further, but I should like to put on the record that the professor has indicated that all aboriginal groups were in favour of that one clause in the Charlottetown accord. I should note that there were a number of aboriginal women's groups that had some concerns about the Charlottetown accord.
Senator Gill: Professor Sanders, I will speak in French, if you do not mind.
[Translation]
You can presently see around this table, and you certainly have seen previously, a lot of people who were concerned and somewhat worried because with the James Bay, the Nunavut, the Sechelt and Nisga'a agreements, people are under the impression that we are creating or giving rights. The intention is to find means to establish partnerships in the application of rights. This is completely different. I can understand that they still have such an attitude because since the Royal Proclamation, the Treaty of Paris, the Quebec Act, the extension of provincial boundaries, et cetera, it has always been a unilateral confirmation of rights on the part of the colonizers. Over the last 30 years or so, the courts have confirmed these rights and told people to sit down and negotiate in order to find a way to apply these rights. It is now a matter of adopting an attitude and getting into the habit of finding a solution so that Aboriginals and non-Aboriginals can live in harmony. We are not asking you to create rights. These rights exist and have been confirmed many, many times. We must ask ourselves how these rights must be applied. The discussion and the way we do things would then change considerably, don't you think?
[English]
Mr. Sanders: I certainly agree that we have had, during the colonial history in this country, the recognition of aboriginal rights at many basic points, the Royal Proclamation of 1763 being simply the most famous of these. The history in North America simply was not possible without some recognition of aboriginal rights. We have been able to get beyond the reliance on colonial-era recognition through the Constitutional provisions of 1982. Those provisions, in a basic way, have brought aboriginal peoples within the Constitutional order; they are not objects to be manipulated within the Constitutional order, but rather they are part of the constitutional order. Therefore, ideas of partnership and reconciliation become feasible in political and legal terms because of this shift that has occurred, and rights are seen, not simply based upon recognition in the colonial documents, but tracing back directly to the aboriginal peoples themselves -- a great decolonization of our thinking in this area.
The Chairman: We are indebted to you for your assistance this morning, and we thank you for coming from Vancouver to provide your evidence.
We will now move to our next witness.
Senator St. Germain: Mr. Chairman, I am concerned about the time we have available for the many witnesses we have before us.
The Chairman: I can put a quota on questions, if you like, senator, but I am trying to give every witness the opportunity to appear, particularly on issues that are critical to the committee, such as the constitutional questions that your colleagues are asking.
Senator Tkachuk: I believe the point Senator St. Germain is raising is valid. If we are only here to listen, we might as well just read a brief. We need an opportunity to ask questions, not just listen to the evidence. I had many questions to ask of Mr. Sanders, and I only asked two.
I am sure I will have the same comment to make next Thursday, as we will be just as busy then. In fact, we would not normally sit next Thursday, and we will be here the following week as well. If that is the way we do business, I am not very happy. We should give everyone who comes here to make a presentation the opportunity to answer questions and provide opinions. It will be upsetting if Wednesday and Thursday are too busy to afford witnesses the appropriate amount of time. I object to proceeding that way, and I will make my objection known each time we meet.
The Chairman: We will continue as expeditiously as we can. This bill has been with this committee for a few weeks. There will be ample opportunities to address your issues when the committee reports back to the Senate.
Senator Tkachuk: Surely, that is not the sole reason for a committee meeting. Why are we sitting in committee, if we cannot have a reasonable amount of time to ask our questions? Perhaps we should have a Committee of the Whole in the Senate and get it over with.
The Chairman: I am sorry that we have to air this matter now, but let us do so. This committee has a parliamentary agenda, and it is not the business of the committee to give individual senators the opportunity to pursue every issue they want to pursue for as long as they want to pursue it. That has never been the way Senate committees have operated.
As the Chairman of this committee, I am trying to provide relevant witnesses on all sides of the issue and to have all relevant evidence before the committee. It is the job of the Chair to manage and, if you disagree, I do not mind your objecting at every session that you disagree with my handling of the committee. That is fine. You are entitled to do that.
Senator Tkachuk: I am entitled, and I disagree with what you say about why we are here. I understand that there is an agenda, but unless I have got it wrong, we are still in March and we will not be adjourning anytime soon. The bill has passed in the House of Commons and, unless the Prime Minister calls an election next week, we have time to pursue this matter. Why the undue haste? That is why there is so much suspicion, Mr. Chairman.
Since I have been in the Senate, every time there has been a bill concerning aboriginals, as soon as it got here it was passed with undue haste; there was some sort of invisible timetable -- at least I never saw it -- that required ramming the bill through quickly.
I want to see this bill dealt with appropriately. I want to see it studied and I want to see a reasonable amount of time spent on it. I do not understand the rush. At any rate, I am just stating my opinion, and I have the right to do that, sir.
The Chairman: I do not deny that you have the right to state your opinion.
Senator St. Germain: Without delaying the process, because we have Mr. Newton here, Mr. Chairman, I concur with what Senator Tkachuk has stated. You speak of a parliamentary agenda; well, closure was invoked in the province and there was closure in the House of Commons, and possibly that was done for good reason, but the fact remains that people are left with the perception that the government is trying to ram something through.
Our committees are meant to provide a venue for sober second thought, where we give issues a proper airing in a civil manner, without trying to jam in too many witnesses in too little time.
I gather we will be holding a steering committee meeting of this committee, where I hope I will be able to deal with some of these issues with you and the other member of the steering committee on behalf of senators who are concerned, but for now I suggest that we proceed with the witness that we have.
The Chairman: The two comments deserve an additional answer from me as Chair. It is my objective to hold a hearing that canvasses the issues in an open and impartial manner. However, I am aware as Chair that there are some -- and I do not direct this to anyone in this room -- who have such basic disagreements with this legislation that their objective is not to assist in an open debate of this legislation; it is to try to divert the legislation and have it re-examined by the parties.
That is not something I will fail to take into account. I believe that after a fair and open examination of these issues, the matter deserves to be considered by the Senate as a whole and disposed of by the Senate as a whole. I do not want to get the bill bottled up in this committee. I want to move it through this process. We have examined and we will continue to examine evidence.
Senator St. Germain: There is no doubt that you tried to expedite this at the time I started dealing with it. I told you from the very beginning that we were not going to be obstructionist, in any way, shape or form. However, it must be given a proper hearing. As you know, the hearings in British Columbia were really not that great, because of protestors and other occurrences, and we had hoped that we would be able to give it a proper airing in this particular venue.
The Chairman: I believe we are.
Senator St. Germain: I am concerned right now with the jamming up of these witnesses. I am concerned, like my colleagues here, that we are trying to force too many witnesses into too short a period of time.
Senator Tkachuk: I have one question, and you brought up this issue. You are saying that, because you suspect that some people may be trying to block this bill, we must rush through it. I thought that is what democracy was all about. People who have opposition to certain bills should have an opportunity to properly air their opposition, in a fair and reasonable manner.
The Chairman: I deny that anyone who is in opposition to this bill is being blocked from airing his or her views in any way, shape or form. That is an accusation that I am beginning to resent.
Senator Tkachuk: Why did you say it?
The Chairman: I am saying that there are people who want to block the bill. I did not name anyone. I said it did not apply necessarily to anyone in this room. However, as a senator from British Columbia, I am aware of blocking actions that have taken place in the B.C. legislature, and the attempts at blocking action in the House of Commons. I want an open, non-blocking examination of this bill here.
I am not prepared to let this process go at the most leisurely pace of the most leisurely senator in the room. My job as Chair is to manage fairly a process of examination in order that our witnesses, on all sides, are called and give their evidence, and the evidence has to be pointed to the issues in the bill. That is what I am trying to do. I am sorry if you disagree with me and my management of this committee. That is your privilege. I will try to continue the process.
Senator Sibbetson: I understand the process. I would have liked to question Mr. Sanders too, but I understand. I would have liked to make my point. I find that if we are to finish and deal with matters, we just have to move on. This is not a partisan thing.
I have something to say, but I will use another occasion. I am excited about all the people that will appear before us. I understand the process. If we are to hear all these people, we simply cannot delve too deeply with, or focus solely on, one person in particular. I agree. We could spend an entire day or morning talking with Mr. Sanders. I had many questions, but I deferred because I can make my point with another witness. I am satisfied with that.
The Chairman: We could spend the whole day with many witnesses, because they have fascinating things to say. I do not think the committee has that privilege. We have to focus on the issues and move along.
Mr. Newton, we welcome you, on behalf of your organization. I would ask you to present your views.
Mr. Bruce Newton, Land Claim Committee of the Pinantan Pemberton Livestock Association: Mr. Chairman, honourable senators, on behalf of the members of the Pinantan Pemberton Livestock Association, thank you for the opportunity to address this committee.
Our objective in this presentation is to provide this committee with a perspective on how one group of British Columbians are influenced by the Nisga'a Final Agreement and related debates. Our membership is comprised of both large and small cattle ranching operations, woodlot holders, and stock breeders. Geographically, we are a long way from the Nisga'a lands. We are neighbours with, and in some cases work with and share land with, four native bands -- the Kamloops Indian Band, Adams Lake, Little Shuswap and the Neskonlith Bands. These bands are members of the Shuswap Tribal Council and the Interior Alliance. The Interior Alliance represents almost one-third of the province's native bands and is opposed to the treaty process. Their suggestions and implementations of more extreme actions in order to resolve land claim issues give us serious concern.
The members of the Pinantan Pemberton Livestock Association are entangled in two of the over 100 specific claims currently either active or in dispute in our province. In addition, we face the prospect of a large neighbouring ranch being transferred to reserve land through the "additions to reserve" policy. The Harper Ranch near Kamloops spreads over an area of 65,000 acres. The holdings include a combination of deeded land, grazing leases, grazing permits, and border many of our members' properties and ranges. The Kamloops Indian Band has purchased the land and has publicly, and privately to our committee, expressed the goal of adding the ranch to the existing reserve.
To the best of my knowledge, neither specific claims policy nor the additions to reserve policy have been mentioned in these hearings. There is a great deal of uncertainty and concern surrounding the application, interpretation and lack of involvement by stakeholders in these policies. The Nisga'a Final Agreement and related debates are only helping to fuel that uncertainty and, in some cases, fear that our members and other landowners are facing.
We do not profess to know the intricacies of the Senate's ability to influence the Nisga'a Final Agreement. However, as Senator Grafstein observed during the presentation by Mr. Phil Fontaine, National Chief, Assembly of First Nations:
One of the roles of the Senate has always been to protect minority rights. That is one of our implicit principles.
We hope that by the conclusion of this presentation you will have developed an appreciation for how the debate over Nisga'a is touching one group of British Columbians who are neighbours with, work with and share forests and range with their aboriginal neighbours.
Imagine, if you will, a large window divided into three panes. Imagine that each of the panes displays a label. The first pane is titled "process", the centre one "trust", and the third "fairness". Further, imagine someone trying to peer through that window, feeling very much on the outside and desperately wanting to see what is taking place on the inside. However, the window is so coated and smeared with years of accumulation of grit and grime that it is impossible to obtain a clear image. Let us say for the purposes of this presentation, that the grit and grime are symbolic of the complex legalese, bureaucratic process, delays and broken promises surrounding the land claims in this country.
There is no question that native Canadians have been trying to peer through that window for nearly 200 years. I do not pretend to speak for the natives, but I venture to say that, if everyone were truly honest, they would admit that in the past quarter century the window has been clearing marginally for the natives. I might add that that is occurring through no lack of extraordinary effort on the part of the native leaders. However, some of the more recent of these efforts are giving us grave concerns and misgivings.
Mr. Chairman and senators, there is a new group trying to peer through that window. For them, not only are the images unclear, but they are becoming increasingly indiscernible. The group to which I refer is the other stakeholders, conveniently designated as third parties, people immersed in the land claims issue. Permit me to take you to the first windowpane that we have labelled "process".
The supporters of Bill C-9 have stated that British Columbians were involved in the Nisga'a negotiations and process. If that is the case, why was it so necessary for the provincial government to conduct an extensive selling campaign following the signing? That campaign cost $25 million, I believe. If British Columbians were involved, why did they need to be deluged with slick TV adds and glossy brochures and educational programs in the schools expounding on the pros of the Nisga'a Final Agreement? Why have so many knowledgeable, respected people expressed so much concern over the exclusion of British Columbians in this treaty process?
If British Columbians were as included as has been portrayed by the defenders of the agreement, why have the people of British Columbia not openly, en masse, embraced the agreement as a significant step forward?
The answer, honourable senators, is that although a few select British Columbians, some of whom have appeared before you, were consulted, in fact the grassroots British Columbians were kept out of the Nisga'a process, in just the same way as stakeholders with a direct vested interest are excluded from the specific claims and additions to the reserve process.
The Nisga'a Final Agreement process is symptomatic of how the federal government is excluding people who are directly impacted by land claims.
I wish to quote from the transcript delivered to this committee by Mayor Talstra of the City of Terrace, B.C.:
The people who live in the area and the ones who would be affected by the treaty were excluded.
It is my understanding that it took the Terrace Municipal Council over two years to get involved, and even then representation was only through the province. The federal government would not allow them representation. In fact, Mayor Talstra's comment was:
The federal government, although asked, has steadfastly refused such local input on their negotiating team.
What about the community of Chatham Kent in Ontario? Anyone familiar with that situation knows that the entire community was caught completely by surprise when the federal government signed a specific claim with the Caldwell Band. Even the MP for Chatham--Kent--Essex, Mr. Jerry Pickard, who is a member of the governing party, was unaware of the claim.
The Pinantan Pemberton Livestock Association land claim committee is a volunteer group that has worked diligently and meticulously for four years to gain admission to the land claims processes. Our direct contacts and communication efforts include three senators, our MP, neighbouring Indian bands, appearances before three committees dealing in the Nisga'a Final Agreement, including this one, and endless numbers of bureaucrats.
We, perhaps naively, have attempted in every way possible to follow the rules. We have not ranted and raved and run to the press at every opportunity. We are a peaceful and proactive solutions-oriented group. We have even gone so far as to document a proposal, which I have attached to this, as to how a local group might be allowed into the process. That proposal has been distributed and presented to the majority of the groups and individuals noted previously. Its purpose was to show our willingness to be part of the solution. We certainly did not regard it as a final say. All we wanted was to open up the dialogue between the federal government and ourselves and to include the natives. The one comment we did receive from Indian Affairs was to the effect that, if they recognized our proposal, it might send a wrong message to the natives.
It took our organization two years and $500 to force, through the Freedom of Information Act, Indian Affairs to release the document outlining the Kamloops specific claim. When we finally received and analyzed the lengthy document, it was a mystery as to why the federal government thought it was such a sensitive document. The one thing we did question was why, based on the material we have obtained, it has taken 10 years and still the Kamloops band have not received a definitive response as to either the acceptance or the rejection of the claim.
In a lengthy meeting two weeks ago between our committee and some of the Kamloops members of the Kamloops Indian Band Council, we certainly agreed on one thing, and that was the inadequacy of response from our federal government.
As treaty settlements move further south in British Columbia, there will be an ever-increasing number of people impacted by each treaty land claim or addition to reserve. To exclude people who possess an intimate working knowledge of the land claim area in question, at least in an advocacy capacity, will be to invite divisiveness, mistrust, and outright animosity within the community. Surely the use of exclusion cannot be the federal government's solution to good faith negotiations.
We believe there is a genuine will on the part of the general population to settle native issues, and our membership supports that view, but solutions must embrace all parties. A solution will work when all people directly impacted have ownership to that solution. Attempting to build better relations with the natives using secrecy and exclusion of other stakeholders will not work.
Let us now move to the centre pane, the one we have labelled trust. Trust is like respect -- it must be earned. The parties that drafted the Nisga'a Final Agreement asked us to have a lot of trust. As we understand it, there are 52 sections that will be negotiated after the treaty is signed. One section that concerns us is the question of whether or not non-Nisga'a people ultimately have voting rights being deferred to the period after the treaty is placed into legislation. It is our observation that the style and actions surrounding the Nisga'a Final Agreement mirror many of the practices of the federal government with respect to land claims.
We do not oppose the desire and actions of the natives to re-establish their own governance. However, what trust do we have in a system that embraces the concept of native self-government, encourages and supports the natives to pursue self-government without fully defining the powers and jurisdiction of that government, and then turns around and directs a private citizen to independently negotiate with a native government?
In an exchange of letters with Indian Affairs, our association asked for help with an impending additions to reserve involving the Harper ranch, which I previously described. Indian Affairs refused to offer any direct assistance, but rather directed us to our local, regional district to negotiate for us. They also suggested we should cooperate as good neighbours and meet with the natives to resolve our concerns. In a meeting with the executive of our regional district, they acknowledged that they have no capacity to negotiate on our behalf and even added they too feel left out and powerless in these matters. The correspondence related to these matters is attached to this presentation.
What trust can be possibly earned when stakeholders, in an attempt to understand a situation that directly affects their homes and livelihoods, are refused, time and time again, the material and access to information critical to that understanding?
The third and final pane of our mirky window is fairness. Our native Canadians are no strangers to striving for fairness. However, in much of the land claims process, our federal government, whatever the motivation, appears to be attempting to correct one inequality by creating another. In their attempt to solve land claim issues, they are discounting, rejecting or outright ignoring concerns expressed by people whose homes, families and in many cases livelihoods are in some way threatened by a land claim.
In our more cynical moments, based both on experience and observation, we view the federal government as systematically abandoning the rights of rural, farming and ranching people in the government's efforts to achieve a politically correct solution to an extremely complex problem. What has the government done to protect our minority rights? Show me where and how the Charter of Rights and Freedoms and the Constitution are being applied to each individual Canadian and Canadian community in British Columbia. Where is the fairness when a government policy outlines a series of costs to be borne by the government for one group but does not recognize the costs incurred by another group directly impacted by the very same policy?
Another expression for fairness may be "level playing field". Where is the effort on the part of the government to establish a formula for compensation if people find their properties are caught up in a land claim and they choose to leave? The government has discussion papers that address the subject of "willing seller, willing buyer," and the concept of "land banking," but they are not willing to discuss land values and business values.
Where is the fairness of expecting an individual landowner to negotiate directly with a group who regard themselves as a governing nation? The relationship our government is encouraging us to establish with the natives is in contrast to the fact that the native leaders are travelling internationally with the purposes of reinforcing their status as leaders of nations and to discredit Canada's treatment of the aboriginal peoples. If we as individual Canadians are expected to negotiate with and sign agreements with a native government, what resources are we offered by the federal government to carry out that task? What municipal, provincial, federal or native government codes, act or legislation do we have to refer to or comply with when our property is encompassed or impacted by a specific claim boundary or an addition to reserve?
The United Nations Draft on the Rights of Indigenous Peoples states in the preamble:
First Nations treaties and agreements with other governments are an international concern and responsibility.
What recourse do private citizens have in the way of a dispute process if it means they are faced with an international legal issue?
As an aside, honourable senators, it makes me wonder to what extent Canada's sovereignty has been compromised by the Nisga'a Final Agreement and the future treaty tables. At my own peril, appreciating the depth of constitutional knowledge present in this room, I ask: Why can all treaties not contain in the preamble an unqualified statement of allegiance not just to the Constitution of Canada but to the sovereignty of Canada? Will the Senate express by way of amendment the sovereignty of Canada in all land claims and aboriginal rights agreements?
As I stated earlier, Mr. Chairman, we do not know the intricacies of how the Senate might affect the Nisga'a Final Agreement, but perhaps you can bring the weight of your positions as senators to influence the government to reflect on their practices regarding the policies and some of the philosophies behind the development of the Nisga'a agreement. It is to be hoped that your influence and advice will persuade them to step back and alter some of their strategies and not repeat the mistakes a second, third or fiftieth time.
Who knows, with a little senatorial "elbow grease", you might be able to remove just enough of that grit and grime to allow the rest of us, natives and non-natives alike, to do our part to clean up the rest of the window.
Mr. Chairman and honourable senators, I come before you not supported by a bank of lawyers or consultants. With no apologies, what I have presented to you today is our interpretation and assessment of the land claims uncertainty and issues in our area and how the Nisga'a Final Agreement is influencing them. I welcome questions, but I will leave you with one more vision in addition to our murky window.
Picture a large wall map portraying the area where you live. The map is all colour-coded and your property and those of some of your neighbours are clearly marked, surrounded or identified. Imagine your feelings of uncertainty and concern when your native neighbour points out the band's land claim boundaries and they encompass the land that contains your home. Further, imagine your sense of fear when he explains with conviction, and in all honesty, that your home and your deeded land belongs to his people. Finally, imagine the sense of hopelessness you feel when you know the federal government could care less about your problem, your livelihood and generations of your family's legacy.
The Chairman: Thank you, Mr. Newton.
Senator St. Germain: Very briefly, Mr. Chairman.
Thank you, Mr. Newton, for travelling all the way here to make your presentation.
The question I have to ask you does not deal with constitutions or anything but is more practical. How do you see ranchers like yourself being properly represented? Do you see it through the B.C. Cattlemen's Association or through your own association?
To be realistic, it is virtually impossible for the government to deal with everybody on an individual basis. What would you recommend for future negotiations?
As you say, as we move further south, it will have an impact on many more people. In the case of the Nisga'a, there were very few non-natives affected. Have you given any thought as to how we go into the Williams Lake area or to your area around Kamloops? How would you recommend that we proceed or how it could be done?
Mr. Newton: Senator, in reading some of the transcripts, I know there was much discussion over the bad word called "template". People who opposed using the word "template" stressed that there were 50 to 60 treaties in the province. I believe there are more than that, but we will settle on 50 or 60. Those represented individual bands. Each treaty would be negotiated based on the needs of those bands.
The proposal that I refer to in Attachment A talks to individual treaties; we are not in the treaty process, but I will use the term "treaty". I believe strongly that when you are negotiating a treaty you need someone at the table who represents the people in that given area. They know the area. They know the watersheds. They know the accesses to grazing. In our proposal, we were limited, because we were making a proposal based on a specific claim. We suggested that each time the government makes the decision to negotiate a specific claim, which is quite a process in itself, but once they do that, they establish a structure whereby the other stakeholders -- I do not like the term "third parties" -- are involved in that specific negotiation.
In a treaty, it is much broader and takes a much broader area. I appreciate that. As you move further south, there are people who are involved with the land. We have some people on our committee that are fourth generation ranchers. They know the area intimately. It would make for a better negotiation and one where there would be less doubt and concern if you included local people in your structure.
We are members of the B.C. Cattlemen's Association, and they are making a presentation Thursday. If you look at their presentation, you will get a relationship, a presentation of a more general scope versus the more specific scope, which I do not think conflicts with ours in any way.
Senator St. Germain: If we were to go to your region tomorrow and duplicate what the Nisga'a are doing in your region, would you recommend that your organization represent the other stakeholders? How would that be determined?
I am trying to look at a practical solution so that we can make a recommendation that, in the future, other stakeholders or third parties, or whatever we want to call them, can be adequately represented during this negotiation process. If we do not come up with a recommendation, the governments could theoretically continue.
This is not a question of partisanship. This is a question of practicality for British Columbians.
Mr. Newton: There are recreational people and people who have small properties and so forth. I appreciate that. That is why, in our recommendation, we wanted to involve the regional district, the natives, ourselves, the federal government and provincial government, to create a committee of that group to elect or select representative groups that could agree upon an advocacy person or whatever word we want to use. I am not suggesting that that individual, that subject-matter expert who knows the area, necessarily be on the negotiating team. I am saying they are in an advisory and advocacy capacity.
Senator Andreychuk: I think some of the points have been covered. If I understand you correctly, you are surrounded by some aboriginal nations that are now negotiating settlements similar to Nisga'a.
Mr. Newton: No. What I wanted to convey was the exclusion that we experience, graphically, with the Nisga'a every day, with the specific claims policy in addition to reserve policy. The Kamloops and Neskonlith bands both have specific claims. Those policies are intertwined in many ways. What we have to contend with is being totally excluded from any negotiation whatsoever of this specific claim or the addition to reserve. We just cannot be involved. There is no vehicle to permit us to be involved.
Senator Andreychuk: You are talking land claims only, not agreements, to your knowledge, of the implication of Nisga'a self-government.
Mr. Newton: That is correct. The Interior Alliance, which are our neighbours, do not approve of the treaty process. We have no vehicle, and the government will not recognize our position of having no vehicle, to talk to the federal government because there are still land claim issues. The Westbank and the Neskonlith bands took over the logging because, according to their information, they felt those logs were theirs and they went ahead and logged. That activity will increase. We need a way to find a table to sit down at with these people before something more serious happens.
Senator Andreychuk: Are you saying that in your area there are no provincial initiatives or federal initiatives to look at co-management policies of resources?
Mr. Newton: In the same manner as Indian Affairs referred us to the regional district, which was a mistake on their part, when we go to the province and ask them for help on specific claims or additions to reserve, they refer us to the federal government. We have been on a merry-go-round for four years, and we have met a lot of delightful bureaucrats.
They are articulate, and we enjoy them, but we are not moving forward.
However, I sincerely appreciate the opportunity to come here. I do see a connection between Nisga'a and us. The problem is in the process and the style that was used to reach the Nisga'a Final Agreement.
Senator Andreychuk: It shocks me that citizens must continually resort to Access to Information to deal with the government. This seems to be a trend on which we may wish to comment.
Senator Chalifoux: I do not know whether I would ask for a response to this, but I must make some comments and observations on your presentation.
First, I would thank very much for your presentation. Now you must know how the aboriginal nations of this country felt 100 years ago, when they were denied access to the government and were denied any consultation. You must know now how the aboriginal people felt when they were thrown out of their homes, and their lands were taken away from them. What you are saying here in your presentation brings me back to some of my ancestors and what happened to them.
On page 4 of your presentation, in the second paragraph, you say: "All we wanted was to open up the dialogue between the federal government and ourselves and to include the Natives."
I should like you to comment on that. Why would you not have a dialogue between yourselves and aboriginal Canadians. You keep referring to "the natives". We are Canadians. I would like you to comment on that.
Mr. Newton: That is a good question. I have two answers. First, I attended a meeting that described Delgamuukw to the Kamloops Indian Band.This was about a year ago. It is on the records. It was on CBC. We were requested to ask the presenters questions. Herb George was there. He gave a presentation. I asked, perhaps naively, if he were a Canadian -- a hyphenated Canadian or something else. He blew up at me and swore at me in the meeting. He was extremely upset over my question. Later on, I learned that that question is an extremely sensitive question. I had no idea. Therefore, I am now very sensitive.
I would hope that aboriginals view themselves as Canadians. If my presentation were not as smooth and slick, as perhaps it should be, I apologize. However, on the other hand, we have, I believe, a good relationship with the Kamloops Indian Band. They reminded me that we are now in the same position that they were in.We have had a few really good meetings with them and are looking forward to establishing a protocol agreement. To my understanding, it is now going before council. It is in draft form.
However, just because we are working with the Kamloops Indian Band does not give my federal government the right to abandon me. One inequality will not be corrected by creating another one. My federal government has no right to abandon me.
Senator Chalifoux: Do you feel that you rightfully belong under Indian Affairs, because that is with whom you were trying to deal.
Mr. Newton: I have no where else to go. If I were to go to Transport, they would ask what it was regarding. I would reply that it was about my section 4 road. They might ask what the problem was. I would say that, if the natives turn the Harper Ranch into a reserve, the section 4 road goes through the native land and a section 4 road only gives surface rights and there are weak definitions of section 4 roads, so I am cut off. Transport would say to go to Indian affairs.
A private citizen, senator, gets the royal run around when he tries to go to the government. We are trying to make a living too.
Senator Chalifoux: Indian Affairs does have jurisdiction over roads within the reserve, but in your case when you wanted to dialogue regarding land claims, I am sure that there was some place else you could have gone. They did advise you to go to your municipal government.
Mr. Newton: And we did. As a matter of fact, I am an alternate for one of the council members in the municipal government. We sat with them, and they are totally frustrated. We presented it to them on the basis that we had found someone who was going to negotiate for us. They said that they could not negotiate for us. Their response to the federal government is in writing.
Senator Chalifoux: You are negotiating with your neighbours.
Mr. Newton: We are negotiating with the Kamloops Indian Band. Part of the protocol agreement will identify those areas. John Jewels expressed them under two subject headings -- interests and issues. Interests are the five or 10 miles of fences we have; the issues are whether or not their government and they recognize me as someone who is important. That is what it is.
Senator Chalifoux: You are in negotiations, which is excellent.
Senator Sparrow: Some of the evidence before the committee indicates that if the land claims were pursued on the basis of Nisga'a, they would affect somewhat less than 2 per cent of the land base in British Columbia.
Have you any figures on the land base in British Columbia? My research indicates that only 4 per cent of the land in British Columbia is suitable for any agricultural development, due to soils and climate. A total of only 4 per cent of that land is available for those purposes. Taking into account other aspects of possible development of land, 2 per cent is available for residential and commercial development, and there are also the forestlands, which are unsuitable for development. Do you have those figures?
When we talk about only 2 per cent, it is a pretty high percentage of the available land base for British Columbia.
Mr. Newton: Senator, I do not have the numbers that you mention, but they sound familiar. I heard 5 per cent. The problem that we have is that, when they say 2 per cent, all the usable lands are already being used in one form or another. If it is Crown land, there are a number of different licences and activities being explored with that land -- logging, grazing, and maybe in some cases recreational and perhaps mining. I do not know. The problem that the ranchers are seeing is that they are very dependent on accessing grazing land.
With all due respect to people who come from Toronto, Hull and Victoria, they do not understand necessarily the relationship between grazing lands and the ranch. The ranch will not survive without grazing lands. The ranch requires the grazing lands to send its cattle up there in the summer, grow the hay for the winter, and bring the cattle back down with enough hay to support the herd for the winter.
We are concerned about what land it is that they are talking about in land claims. I have never been in the Nass valley, and I apologize, but I understand that it is not as heavily populated as it is around Kamloops. The moment you start talking about land claims, it is very difficult to talk about land that is not already settled and used in some form or other -- some of it might be Crown, some of it might be deeded. I respect that. When they say only 2 per cent, I am not sure what that is 2 per cent of. If it is 2 per cent of the usable land, that is a lot of land, and it is all being used.
Senator Sparrow: I am sorry; it was 2 per cent of the total land base in the Province of British Columbia.
Mr. Newton: My understanding, and perhaps I should not even comment, is that it is a very small percentage that is even usable in British Columbia. That land is already being used, and if I were on the other side of the table with native Canadians, I would not be arguing for the top of some mountain peak, unless I wanted the water off it.
The Chairman: Mr. Newton, I should like to make two or three observations. First, in your evidence you were foreshadowing the future in terms of other aboriginal claims and the impact of those claims on existing communities, both economic and physical communities. I appreciate that. There are many British Columbians in this room. British Columbians know that this is a major issue in the life of our province, and it will take many years and much goodwill, trust and transparency to deal with it.
You referred to Mayor Talstra, and I wanted to let you know and remind the committee that he gave his endorsement to the Nisga'a Final Agreement. He did say, as you mentioned, that they felt excluded at the beginning. However, that process was changed, and he felt fully included by the time the process ended.
You are obviously one of the groups that were part of the consulted community, and you have made that clear in your evidence. We had a process in British Columbia, as you know, where a provincial legislative committee travelled the province extensively, taking evidence. Were you able to appear before that committee?
Mr. Newton: We sat for eight hours through two sessions, one at the Kamloops Indian Band and one in downtown Kamloops, and finally we were given our four minutes. Those four minutes were extended once I got my foot in the door.
The Chairman: I see your capability in that respect. Finally, there is a group in British Columbia called TNAC, the Treaty Negotiation Advisory Committee, and the Cattlemen's Association is represented in that committee.
Mr. Newton: That is right. I am a member of the Cattlemen's aboriginal affairs committee. Depending on whom you talk to, I might be regarded as the black sheep of that committee. I am not always popular. TNAC has certain values, but it is churning out so much. The last TNAC meeting in January produced 285 pages of reading. I think that is a lot of reading for someone who is trying to survive and do two things at once. TNAC does not really apply to us. We would like to get a TNAC-like organization. We would like the federal government to please just recognize that the additions to reserve policies and the specific claims policies have an impact on us. We are asking questions that may be easily answered, but we need to ask the question. You are sent all over the place, to 45 different civil servants, and you cannot even get the question asked.
The Chairman: You can appreciate that we are focused on a very narrow aspect of aboriginal relations taken as a totality in British Columbia, which is Nisga'a and its land base and its part of the province, much of which I think is mountain top. The larger issue is one that we will hear much more about.
I thank you for your appearance here. It was a most interesting contribution.
We will now move from cattle to fish. Our next witness is Phil Eidsvik of the BC Fisheries Survival Coalition. Mr. Eidsvik, you have a brief; however, I believe that you indicated that you will not be reading it, and I thank you for that. Your brief will be part of the evidence of this committee. I know there are some key points you want to make. Please proceed.
Mr. Phil Eidsvik, Executive Director, BC Fisheries Survival Coalition: Honourable senators, we have been to a number of hearings on the Nisga'a treaty or on the treaty process. I can see there are differences between the senators on how effective these hearings are, but I can tell you today that compared to what we experienced with the House of Commons and what we experienced with the Province of B.C., this is by far the best. The level of discussion here is far superior to what we have seen previously. I recognize that we would like to see more witnesses here from our side who have concerns about the treaty, and I should like to see more time for them. There are certainly problems. However, senators should be congratulated for the level of debate to date.
We are a coalition of commercial fishermen formed in 1992 to deal exclusively with aboriginal fishing issues and aboriginal claims. We have been involved in the political process and heavily involved in the legal process, with numerous appearances before the Supreme Court of Canada as intervenors and before the B.C. Court of Appeal and over 200 appearances in the provincial court of B.C. As such, we bring a unique perspective to the issue.
When we talk about fish, we are talking about something different than land. It is different than cattle. Fish are not owned by the federal government, and that is so often forgotten. Fish are a common property resource of every Canadian in this room and every Canadian across Canada. It is not the property of the federal government to give away. That would be the first principle you recognize when you start treaty negotiations.
There has been much discussion on whether the Nisga'a Final Agreement is a precedent or a template. Certainly the federal government and the provincial government deny that fact. We disagree. You can see in some excerpts from some leaked memos that senior DFO officials are describing the agreement as pivotal, as a template. Last week, in the TNAC body to which Senator Austin just referred, federal negotiators approached the members of TNAC, the forestry, fishing and other communities represented there, to endorse a federal policy to implement native-only commercial fisheries throughout British Columbia, because other bands were refusing to accept less than what the Nisga'a have successfully and skillfully negotiated. It may not be a template in the sense of a word-for-word copy, but it has set basic principles and a floor.
Why, when the Nisga'a have X, would any other group be willing to settle for less than X? I think that is an important principle. When you look at the Nisga'a Final Agreement, do not look at it as the Nisga'a Final Agreement -- look at it as what will settle treaties across British Columbia and what will settle the treaties in the Maritimes. As you know, the Supreme Court of Canada decision in Marshall said that the peace treaties that were signed in the Maritimes do not extinguish aboriginal title. Several years from now, you can probably look forward to the first treaty from the Maritimes coming before this chamber. Look at the Nisga'a treaty as it applies across Canada and consider whether you want these principles applied across Canada.
Flaws in the negotiating process caused us problems. We have been told again and again now that it is too late to change the treaty and that it is not fair to change it. However, the treaty was negotiated in secret. We litigated in 1984. In 1987 we went to the Federal Court of Canada to get into the negotiations because we knew that public property, common property resources -- in other words, fish -- were being reallocated from the public fishery to a private Nisga'a fishery. Both the federal government and the Nisga'a opposed it and were successful. We lost the case. They said there is no reason to issue a judgment now because as soon as the treaty is signed we will have our fair say. Now, of course, we are told that the agreement is set in stone and we cannot change it. Where was our fair say?
The TNAC process wrote a letter in 1995 to the Minister of Fisheries. The letter was signed by all the major industries in British Columbia whose principles employed more than 120,000 people. They advised the minister that they had no confidence in the federal treaty negotiators. The letter was ignored. Despite that letter, nothing changed and nothing happened.
A mining representative from TNAC suggested that he would simply stop going, get a hydrogen balloon with his name printed on it, and tie the balloon to the back of his chair. He felt that that would do as good a job as he had done over the past seven years. It is a severe indictment of the negotiating process.
The other issue that is rarely addressed is the problem with conflict of interest. As everyone here knows, the federal government has a fiduciary obligation to represent the interests of aboriginal people. That is a legal obligation that is enforced by the Supreme Court of Canada. We asked Ron Irwin, when he was the minister of Indian affairs, how he could negotiate in the best interests of aboriginal people and at the same provide representation to other Canadians. He said: "Don't worry, I just take my hats off." That silly response illustrates the level of intellectual vacuum that was present on the federal and provincial sides of the negotiating process.
There will probably be litigation on the issue of conflict of interest. Certainly, if I were an aboriginal person I would be concerned about the focus of the representatives and whom exactly Jane Stewart, Ron Irwin, or Robert Nault represents. I would be concerned about whether other Canadians were being represented or I was being represented as an aboriginal Canadian. This is a serious issue.
I will review the impact on the B.C. commercial fishery. I have attached a number of leaked documents from the Department of Fisheries. These documents relate to an offer that was put on the table to the Nisga'a in 1987, later revoked, and then put back on the table. You will see that the Nisga'a Final Agreement is very close to the 1987 offer.
Those memos will reveal more about the fishery than I can, so I will only say that the fishery in British Columbia is unique. It is the only industry in Canada where aboriginal participation exceeds 30 per cent. For the sake of comparison, employees in the federal government amount to less than 1 per cent, and in the media, also less than 1 per cent. Aboriginal fishermen can fish side by side anywhere along the coast, in any fishery, head to head with the best fishermen on the coast. They have done so since the inception of the fishery in the 1800s. That is something we should be proud of.
One example of this accomplishment occurred at a meeting I attended with Minister Anderson a few years ago. Mr. Hutch Hunt from Port Hardy was at the meeting where we criticized the Fraser River policy that has created a separate commercial fishery for certain aboriginal groups. Mr. Hunt told the minister that in 1993 he spent $1.5 million building an aluminum seiner. Mr. Hunt continued to say that he had five crew members on his boat and, therefore, supported five people on his reserve with the income earned from the salmon and herring. It was suggested that he had made a mistake and that he should, through the band, carve off a piece of the public fishery for the band so that it could be divided up among them. Mr. Hunt was told that he had made the wrong decision to compete fairly and equally with all other Canadians. As a result, Mr. Hunt sold a salmon licence in the last buy-back because he did not think there would be a future for him in the fishery.
We find that very distressing because most of us have had a long history with aboriginal people in our fishery. Now, in some of the communities, people do not talk to each other. People that have been friends for years do not talk to each other. There are fights in schoolyards. That is the price of separateness and that is the long-term impact of continuing in this direction.
The important thing is that there were alternatives in the initial Nisga'a treaty. We did not have to set up a Nisga'a-only commercial fishery. We did not have to take a chunk of the public fishery and allocate it to the Nisga'a. We could have simply opened a public commercial fishery with fish wheels for those Nisga'a who chose to fish up the Nass River that way. Let us include everyone so that they have a chance to compete under the same rules and regulations as everyone else. Share the fishery and allow everyone an equal opportunity. It has worked successfully for over 100 years in Canada. It was not a bad thing to try to continue for the future.
You will see that our first program to include more aboriginal people in the fishery started in 1968, 15 years ahead of the 1982 constitutional changes, decades ahead of university professors telling people that the commercial fishery had done badly, and decades ahead of affirmative action programs in the federal government. Industry and people from across Canada should look at the success and the harmonious participation in what used to be a colour-blind, multi-racial commercial fishery.
The issue of self-government is important to us because we feel that the Department of Fisheries needs to be the sole authority for managing fishery resources in British Columbia. Fish pass through many jurisdictions. On the Fraser River alone there are over 100 aboriginal bands, a number of whom are grouped in various tribal organizations. The problem is that, with so many groups, if one of those 100 bands suggests taking 5 per cent and his neighbour takes 5 per cent and the next neighbour takes 5 per cent, pretty soon 500 per cent of the run has been taken. There needs to be a central authority to manage the fishery. With all due respect to Mr. Sanders from the University of British Columbia, even the Supreme Court of Canada recognizes that there must be a central authority managing the fishery.
In Regina v. Nikal, a decision was made on May 6, 1996. We were intervenors. An aboriginal band near Smithers was litigating because they wanted their chief to say who could fish, when they could fish, and what species they could fish. They did not want to get a licence from DFO. The Supreme Court of Canada rejected that emphatically and said that there needed to be one manager.
We are concerned about the Nisga'a agreement because it will divide management authority. If you give it to the Nisga'a, then how do you say no to the Kwagiulth and how do you say no to the Haida. Soon there will be a dozen different managers. If you look at the ongoing battle between the United States and Canada in the Pacific salmon treaty, you can see what a recipe this is for institutional paralysis and damage to the fish stocks.
We do not like self-government in the fishery. We have had our battles with DFO. But as bad as those battles have been sometimes, we still need only one manager of the resource.
On page 14 of our submission there is a summary of the Aboriginal Peoples Survey of 1991 conducted by Statistics Canada, which included 46,000 aboriginal people from communities in British Columbia. When asked what could be done to make their communities better, only 910 aboriginal people said, "Self-government." It is an interesting question, who wants self-government. Mr. Sanders said that self-government was wanted unanimously across the country.
In 1982, there was to be a series of constitutional conferences that would flesh out aboriginal rights. One of those components was self-government. No agreement could be reached. I remember one of our more colourful premiers, Mr. Vander Zalm, coming back from Ottawa saying that he could not agree with the self-government proposals that had been put through by aboriginal bands.
There will be disagreement on this. Almost everyone I know in B.C. supports a municipal-style of self-government where if mistakes are made you can take the authority back. In this case, we are setting up a permanent abrogation of power in the fisheries as well as in numerous other areas. What if the people who drafted this agreement are wrong? What if the House of Commons was wrong? What are we going to do 50 years from now if it is wrong? That is why I am so pleased that the Senate is taking this much more seriously than either the House of Commons or the B.C. legislature.
The last thing I want to deal with is the issue of guilt. You cannot live in Canada and not feel guilt towards what has happened with aboriginal people since European contact. Compensation needs to be paid, wrongs have been done, but it is not a one-way street. No one in the tide of history has clean hands. As we come to this point, where we are looking forward for the next 500 years, we should make a decision on what will be the best for Canada and the best for the average citizen in Canada. We should not be looking backwards and making a decision for the future based on something that happened in the past.
The Chairman: Thank you very much. Your starting point does not take into account the Sparrow decision and the law as laid out by the Supreme Court of Canada. I am sure you are familiar with Sparrow, are you?
Mr. Eidsvik: The 1990 Supreme Court of Canada decision in Sparrow affirmed an aboriginal right to fish for food. There are a number of tests that have to be passed, you could say, before you prove a food fishing right. Those tests were developed in a case called Van der Peet, the decision in which came down on August 26, 1996.
The test is very long and complex. An aboriginal group would have to prove that the harvest of a certain species of fish in a certain area was integral to their community prior to European contact. Then they would have to prove that the tradition continued. Then they would have to prove that something the DFO was doing was infringing that right. Then the burden falls on DFO, and DFO would have to prove that the infringement of the right was justified.
However, we are not talking about food in the Nisga'a treaty. Our primary objection is with the commercial component. The Nisga'a could probably prove a commercial right on oolichan but it is very doubtful that they could prove a commercial right on salmon. Even if they could prove a commercial right, it is not an exclusive right such as has been granted in the Nisga'a treaty. In the 1996 case of Gladstone, the Supreme Court of Canada affirmed a right to harvest herring spawn on kelp for the Heiltsuk, and in that case the court re-endorsed the Magna Carta and the public fishery. They said aboriginal rights were not intended to extinguish the common property right to the resource.
The resource is big enough for us to share. There is not enough for everyone in British Columbia but there is 30 per cent already in the fishery. On the law, we would prefer to go to court any time on these issues than trust either the federal or provincial governments to deal with us fairly.
Senator St. Germain: Senator Comeau, who happens to sit on the Fisheries Committee, brought up the aspect of the commonality of the fishery, that it does not belong to anyone but it belongs to everyone. Do you see a court action being taken in regards to the fishery itself, if the agreement is passed in its present state?
Mr. Eidsvik: We filed an action in B.C. Supreme Court against the treaty almost a year and a half ago. We will proceed with that action through to the end.
Senator St. Germain: Has it been delayed because the courts do not want to deal with it until the agreement is in place?
Mr. Eidsvik: That is correct. The court basically said that looking at this treaty right now before it has been formally passed would be interfering with the legislative process, and the courts are extremely hesitant to do that.
The reality is, though, that we do not want to go to court. The Nisga'a do not want to go to court. No one wants to go to court. We thought there was a better solution, but things did not work out and that is what courts are for. When you have irreconcilable differences, you go to court. This and many other issues about fish in the Nisga'a treaty will end up in a courtroom.
One of the big problems with the fisheries component of the treaty is a problem of understanding. I do not understand it. The experts in the industry do not understand it. Our legal team does not understand it. The lawyers who write just on fisheries issues do not understand it. Maybe the Nisga'a understand it. Certainly the federal government officials we talked to do not understand it. Where there is misunderstanding, there is fertile ground for litigation, and I think we will see litigation on the Nisga'a treaty fisheries issues for decades to come, even if we lose on the public right issues. There will be litigation about who gets what fish, what fish is supposed to be counted where, who does the counting, those sorts of issues.
The Chairman: I just want again to refer you to the document.
Senator St. Germain: Mr. Chairman, I find it strange that you are always clarifying.
The Chairman: I am a senator equal to any other senator here in right to ask questions. Are you objecting to that?
Senator St. Germain: No, but the fact is that normally other senators are given the opportunity to question.
The Chairman: I have led with your side time and time again with witnesses.
Senator St. Germain: That is fine.
The Chairman: And, very occasionally, I have some comments to make.
I will just ask you about chapter 8, the fisheries chapter, and the role of the minister in dealing with issues. Do you have the document there?
Mr. Eidsvik: The treaty itself.
The Chairman: Page 117 and the preceding pages of the Nisga'a Final Agreement set out the process, and then it comes to the review of the recommendations of the Joint Fisheries Management Committee, which the minister is to take into account. It refers to conservation requirements and the availability of fisheries resources, Nisga'a preferences in respect of methods, timing and locations of harvest throughout the Nass area, utilization of the fisheries resource for the benefit of all Canadians, efficient and effective harvesting of fisheries resources, requirements for integration and efficient management of all fisheries, accepted scientific procedures for management of fisheries resources, and any other matters that the minister thinks appropriate.
Do you believe that the commercial fishermen will have the opportunity to make representations to the minister, or do you think you are excluded from a process under which the minister will deal with the Joint Fisheries Management Committee?
Mr. Eidsvik: It is difficult to see how the committee will evolve. I see that there are no commercial or recreational fishing representatives on the joint management committee. I would expect we could probably still have the occasional meeting with the minister.
In some ways, it is not a bad model, where DFO sits down with aboriginal groups and other Canadians to establish fishing plans. In fact, the Sparrow decision requires the federal government to consult with aboriginal groups. It does not mean a veto but it means they must sit down and take aboriginal concerns about the fishery seriously. Where we have a problem is when the process gets so bulky, like this one is, it handicaps the minister's ability to move quickly in the season, and it does tend to exclude some people because now you will have an aboriginal group sitting down privately with federal and provincial officials, creating a fishing plan for a common property resource without the involvement of other people.
Perhaps I can give you, as an example, how the herring fishery works in B.C. Right after the herring fishery closes in April, the first meeting we have in May is to review the fishing plans of the previous year. Those meetings include aboriginal people and commercial fishing representatives. The meetings seem to be growing now to include recreational users. Those meetings carry on all through the season. They look at the whole coast and determine where we can and cannot fish during a year. You see involvement of everyone in a fairly consistent and easy manner.
How is DFO going to handle fisheries plans and management plans going on with dozens of different aboriginal groups up and down the coast? Fisheries officers on the water are trying to decide what law to enforce in a particular area. Do they look at the Fisheries Act? Do they look at this agreement? Do they look at some regulations that may be passed by the Governor in Council relating to this agreement? It is a mess. Fishery officers already have a very tough job. DFO's rate of successful prosecutions is already extremely low because of all the technicalities to get off. We would prefer to see this process simplified.
That does not mean that aboriginal people should be excluded from the consultation process. They have a legal constitutional right to be there, and we have an obligation to make sure that happens. However, I think we have gone too far in the Nisga'a process. I think that institutional paralysis will result.
The Chairman: I should like to point out to my colleagues that the committee is made up of six members -- two from the Nisga'a nation, two from Canada and two from British Columbia. The Nisga'a are not a majority of that joint management committee. That is paragraph 79.
Mr. Eidsvik: No, I was not saying that they were, Senator Austin.
Senator Andreychuk: Your basic concern in this agreement is not that the aboriginals will have their continued rights to fish for their own food. If I understand, you are more concerned about the commercial aspect.
Mr. Eidsvik: That is correct.
Senator Andreychuk: In that case, if I understand you, you are concerned that the government will not move quickly enough.
Mr. Eidsvik: That is one of the concerns. Maybe I can deal with it quickly. Last week we were in the Federal Court of Canada on an injunction application by an aboriginal group near Prince Rupert. They were arguing that DFO did not consult with them properly and that DFO did not give them enough money so that they could consult properly. That is only under the Sparrow guidelines, where there is not a formal process but there is a serious obligation to consult meaningfully.
Now we have got 30 pages or 40 pages in the fisheries section telling DFO what they have to do and how they have to interact. If I cannot understand it, if my directors cannot understand it and if our lawyers cannot understand it, we are heading back to court more frequently. We may end up in the type of situation that exists in the United States where the court actually runs the fishery. Certainly, it is not something that we would be looking forward to here.
The Chairman: There was a case, Senator Andreychuk, in the state of Washington, where the courts awarded the Washington aboriginals 50 per cent of the commercial fishery, based on their historic rights.
Senator Andreychuk: I read through and I found curious language from a legal point of view, that the minister shall attempt to come to an agreement. He would have to make reasonable efforts, and that is time consuming. Does it give you any concern that conservation is missing in the agreement? I would have thought that the agreement would have said conservation was paramount to all the other obligations that the minister has. Do you feel the same way? Are you simply arguing that there should have been more co-management and less bureaucracy?
Mr. Eidsvik: Yes, senator, and I do not know anyone in the fishing business, be it a recreational, aboriginal or commercial fisherman, anyone who is solid in any of those sectors, who would not say other than that conservation is first. I think the intent of this agreement is to create a serious conservation regime. The problem is that the Nisga'a Final Agreement is just plain too bulky and difficult. If you duplicate it with 100 other groups or 50 other groups throughout B.C., it will be terrible.
DFO is already completely stressed with trying to meet the Sparrow consultation requirements. This will finish the department. Talk to John Fraser, the ex-speaker of the House of Commons, about it and I think he will confirm what I am telling you. It is an alarming precedent.
The Chairman: I should like to hear from Mr. Fraser. He would be an interesting witness.
Senator Tkachuk: I have a question on the consultation process, which has been quite a topic of conversation in this committee. Was there a fair consultation process with involvement by other stakeholders in the Nisga'a treaty negotiations? What is your view of the process that took place?
Mr. Eidsvik: Madam senator sitting beside you commented earlier about the need for us to go to Access to Information. DFO used to have Access to Information people who were not that good, and we used to get a fair amount of information out of them. The only information we got about the Nisga'a treaty is that it was being negotiated. That was from leaked documents from certain officials. There was a very good secret screen over those negotiations.
We still want to see the study that DFO paid for that takes the Nisga'a precedent and applies it to other fisheries up and down the coast. That is of prime interest to us. We insisted on that study. They finally agreed to do it in 1993 or 1994. They paid a lot of money for it. A very good scientist was hired to do it. When the study was done they told TNAC that it was part of the negotiations and we could not se it. The negotiations have been over for more than two years, and I still have not seen that document.
Our members who are fishing on the Fraser River want to know what will happen to them if the Nisga'a treaty precedent is applied coast-wide. They want to know if they should start bail out now and start looking for another job. I cannot give that answer because DFO will not give us the study. That is just one example of how bad the consultation process was. There is the saying about mushrooms fed in the dark. I think it really applies, and I do not think there is anybody on the TNAC committee from any resource industry that will tell you differently.
Senator St. Germain: Did I hear in your delivery that, if this authority were delegated as opposed to being constitutionalized, you would have no problem with it going forward?
Mr. Eidsvik: I did not say that, but at least, if our fears prove true, then you guys could come back in 10 years or five years or two years and take the authority away. No, the Minister of Fisheries needs to be the manager and DFO officials need to be the guys doing the science and enforcing the law. That is our preference.
Senator St. Germain: Have you been given the opportunity to sit down with the people that negotiated at all? I am not challenging what you are saying, but in any conversation that I have had with them, the representatives of Nisga'a have clearly stated that the minister is definitely in charge of the fishery as far as they are concerned. I am not putting into question your testimony here today, but I am hearing two different things, Mr. Eidsvik -- one from the Nisga'a and another from you.
I think that you have a responsibility to represent your organization, but I think the Nisga'a have clearly stated that the they feel that they will be held responsible to the Minister of Fisheries in regard to the fishery allocations. They also believe that conservation will be first and foremost. That has really been hammered home.
It is unfortunate that it has ended up like this. You are representing a coalition of fishermen in B.C, and we are getting these two conflicting positions. I do not know how we resolve this in the future. I have strong feelings that this will most likely go forward and it is of great concern. I know how emotional it is in the fishery. When I was in the other place, I represented Mission--Port Moody, where many gillnetters on the Frasers were severely impacted by cutbacks. Perhaps this is more of an observation, but that does exist.
I think if you talk to the Nisga'a people that are here right now, and there are many of them in this room, they will, without hesitation, say that their fishery will be controlled by the Minister of Fisheries.
Mr. Eidsvik: It puts everyone in a bit of a difficult position. You are put in the position of having to argue about Nisga'a intentions. I do not think that that is appropriate. I believe that every Nisga'a involved in this process has the best intentions for the fishery. However, if my fishing partner, with whom I own part of a boat, were sitting beside me, I would not let him enforce the fishery, even though I think he is the most trustworthy guy around. It is a conflict of interest.
You simply cannot have a financial interest in the fishery and be in charge of managing it. DFO fishery officers are required by law to swear an affidavit that they have no financial interest in the fishery. We have had too many incidents. Mr. Tobin insisted when Canada signed the agreement with the EU over the turbot war that the observers and monitors on the EU boats had to be impartial and independent from the EU.
I do not think it says anything bad about the Nisga'a to say that they are put in that difficult position. You simply should not be put in that position. I would not put the Nisga'a in that position; I would not put my friends in it; I would not put anyone I know in it. That is why I want DFO enforcing the law. That is a roundabout answer, but it is a difficult question to answer.
Senator St. Germain: I know it is difficult.
The Chairman: Mr. Eidsvik, I am sure you know the provisions of Chapter 8, but because of your evidence I should like to point out that under the general provisions, conservation is the first obligation of DFO. On the question of sale, paragraph 67 reads:
Any sale of non-salmon species and aquatic plants harvested under Nisga'a fish entitlements will be in accordance with federal and provincial laws of general application and any Nisga'a law in respect of sale of fish or aquatic plants.
Paragraph 68 reads:
Subject to this Agreement, the Minister is responsible for the management of fisheries and fish habitat.
Paragraph 73 reads:
In the event of a conflict between a law made under paragraph 72 and a federal or provincial law of general application, the federal or provincial law will prevail to the extent of the conflict.
Senator Andreychuk: Mr. Chairman, in fairness, paragraph 89, however, indicates:
In considering recommendations of the Joint Fisheries Management Committee, the Minister will take into account:
conservation requirements and availability of fisheries resources.
Speaking from an environmental point of view, I would want it reinforced so that there is no ambiguity that conservation is the prime account, not the other issues of effective management of the fisheries. The survival of the species, I think, should be everyone's first consideration. It is not clear here in a way that I think it should be. That is the environmental point of view on that section.
The Chairman: I believe the authority of the minister in terms of conservation is paramount, but we can delve into that.
Mr. Eidsvik: You referred to paragraphs 67 and 68. Paragraph 71 says:
In the event of an inconsistency or conflict between a Nisga'a law made under paragraphs 69 or 70 and a federal or provincial law, the Nisga'a law will prevail to the extent of the inconsistency or conflict.
Paragraph 69 deals with the distribution of Nisga'a fish entitlements, who is authorized to fish, the trade or barter of fish, the designation and documentation of fishing vessels, the identification of those vessels, and other matters agreed to by the parties. Paragraph 70 deals with the Nisga'a government establishing and administering licensing requirements and the documentation of people. Those laws, the Nisga'a laws, prevail to the extent of an inconsistency. That is clearly an abrogation of federal authority.
The Chairman: What you are reading applies to their allocation. What I read applies to the right of sale, which is controlled by federal and provincial laws. You had remarked on the question of sale.
Mr. Eidsvik, you raised a number of very interesting issues for us, which we will consider. We appreciate your submission.
We have as our next witness Ms Mary Dalen. We have 20 minutes. I will ask Ms Dalen to come forward. If we cannot finish with her today, she can come back tomorrow.
Senator St. Germain: Mr. Chairman, Mrs. Dalen has apparently booked a flight at 8:45 tomorrow morning, so that puts her in a difficult position.
The Chairman: The committee could meet again at 3:30 tomorrow afternoon, if it is your wish, and the witness could catch a flight at 6:20 tomorrow and still be home tomorrow, if she wishes. It is very much in your hands. As you know, I am in the hands of senators as to how long questioning of any witness takes. We have arrived at this point. We could hear her evidence, or we could wait until tomorrow, or we could take her brief as submitted. If she wishes to go home, I would suggest that she address the evidence and that we take her brief as submitted.
Ms Mary G. Dalen: I will do my presentation. I think I can do it in 20 minutes. I have maps and evidence of my father's papers and evidence of the overlap, and I will briefly run through my brief. I sent my brief ahead, but there are mistakes in it. I am sorry. I misprinted because I was in a hurry. I did not really know I was going to come. I was hoping that the university professor who was here would stay so he could hear what I have to say, because I think what I am going say is important.
Honourable senators, I was born and raised in the village of Cedarvale in the province of British Columbia. I should like to thank the Senate of Canada and the legislative clerk, my husband and son, and my friends in New Hazelton for enabling me to come here. I was given encouragement and good wishes from my family and friends in Vancouver.
I live close to where the Nisga'a people are claiming lands as their own. I will elaborate on how close these claims have become with maps and with history as to how our grandparents and parents lived and how they were able to go through the transitions from their way of life to the European way of living. The maps and other material with this brief belong to the Meanskinisht Village Historical Association and are not to be distributed outside of the Senate. That is because we, the directors of our association, paid for them and restored the history of the Meanskinisht village on our own time and with our own money, without government help.
The Chairman: I have to tell you, Mrs. Dalen, that anything you give us is public and is available to the public.
Ms Dalen: Our ancestors and grandparents were able to walk back and forth on family traplines and hunting-ground trails that border the Nass Valley. The missionaries used those trails with guides from our villages. I can see the mountain peak from my place at Aiyansh village. Our family's traplines and hunting grounds, which border the Nass area, have an overlap with the Nisga'a people's land claim. These lands were used by our families from generation to generation. No one in my family has written documents stating that they have given them up. These areas were used for our survival, especially during the two world wars when food was so scarce. We can prove use and occupation with my father's documents.
This is the reason I wanted the university professor to stay. The Meanskinisht band and Koonwats Indian Reserve number 7 are situated in the village of Cedarvale. The Meanskinisht village was established in 1887-88 under the guidance of missionary Robert Tomlinson, Sr., and his wife, Alice Mary. The people lived under strict Christian rule. They built their own homes, churches and schools, on their own time and money. The people had a sawmill in the steamboat days and supplied lumber to neighbouring villages. They were tradesmen: blacksmiths, carpenters and bricklayers. They made things with handmade lathes. The women played a great part in the building of this village. They were seamstresses and they also had their own trades. The people worked from dawn to dusk, with a bugler waking them up at 6:00 a.m.
As far back as 1909, some of the Indian people started to acquire land through someone acting as their agent. Our documents show our father and his brothers bought land in 1912. They bought and owned land as their own under the provincial government laws. My father and his brothers also had licensed traplines dating back to 1939, under the name of Josiah Bright and Company, which included his wife and all his children. In 1999, my son and I were able to have those traplines returned to us by the provincial Ministry of Environment, Lands and Parks, under the provincial government laws.
Our local band councillors, their associates and the tribal council office had declared my family all deceased. We uncovered this when someone from the government office handed me my father's documents. It took my son Lyle and me eight years to have those traplines returned to us and to other members of my family who would have inherited them from their parents who were on the list.
Pages 1 and 2 will lead to the Nisga'a Final Agreement. My grandfathers and parents abided by the laws of British Columbia and Canada. While living under strict Christian rule, they did have a say on the religion they wanted and became Methodist. There was also a council of elders. They also kept their tradition and culture. Indian Affairs kept close rein and were always around keeping census records, and then in 1952 they discovered our people were taxpayers on the lands they lived on, and quickly had the people and their children amalgamate with other bands. Indian Affairs, after coming and talking to our parents and grandparents, who were still alive, inadvertently returned the people to each village under the hereditary chiefs system. Our fathers and uncles became hereditary chiefs and were made to amalgamate in their own villages. I will give you some of the important documents that go with my statements.
I still live on my grandfather's and grandmother's property handed down to family members, and I pay taxes to the province.
I have some comments on the overlap issue. With respect to the north side of Cedarvale, I have documents from my father that clearly state that these lands were used and occupied by our family from generation to generation. This area borders the Nass area. I will show you the area and my father's letter dated 1947.
What is the government going to do with the unresolved issues of the overlap situations, and what measures will be taken to resolve the impasse if the treaty negotiations between the Nisga'a people and other tribal groups prove to be unsuccessful?
We have often heard tribal groups in their land claims say that private lands are not on the table and not negotiable. Why are some private lands caught up, and why do those holding private property feel the threat of losing their lands they pay taxes on to the province? There has been, and still is, a great deal of uncertainty among private property owners. All of my family, who were declared deceased, to my knowledge were not included in any of the land claims. My meaning is that if there is ever a land claim settlement in our area, we would likely not benefit from it. We have also heard that, if and when any land claims or self-government proposals are implemented, those living off reserve will be left out forever.
Our band numbers are used for capital for Indian Affairs and band offices, land claims tribal groups and for government program funding for tribal offices. The benefits of off-reserve Indian peoples are minuscule compared to those on reserve. In cities and towns, there may be low rental apartments and housing for Indian people, but their wages are restricted. If they ever make any more than they need to live in these houses and apartments, they have to move.
People want a land base and individual settlements so that they will not be left out. Indian Affairs does not want to deal with people as individuals. The federal government chooses to deal with aboriginal people as collectivities. Therefore, we are frozen in time under the Indian Act and caught up in bands that deal under a collective system. Individual rights should have priority over collective rights, meaning individuals should acquire land and the benefits they have never received. The federal government must stop lumping people together.
There are those who have negotiated treaties and land claims. If they are successful, it will hurt the people. The government will create self-government and will leave out those who they choose not to be on their eligibility enrolment list.
When individuals speak out, they are left in dire straits, completely ignored by chiefs and councils, the First Nations native leaders, the negotiators and the associations. Life is worse than living under the old Indian agents from the Department of Indian Affairs. Stepping back to our grandparents' days, where is the legality of Indian agents watching the people off reserves, taking census and segregating the Indian people listed under the Department of Mines and Resources, Indian Affairs Branch?
Honourable senators, why can individuals not have individual claims, specific claims, within the areas where they were born and raised? Indian Affairs has our individual numbers. All some of us want is lands that were taken from the people and made into reserves. In some areas Indian Affairs did not have consent to add lands to reserves. Indian reserves do not belong to individual Indian people. Indian Affairs holds the underlying title to all the Indian reserve lands.
I will speak about the Nisga'a Final Agreement and Crown lands. Crown lands have always been there for all Canadians to use. Crown lands should be left as they are, in the care of provincial and federal governments. I am concerned to see the negotiators from both federal and provincial governments give the Nisga'a ownership of huge areas of lands and its resources. That is my concern on any land claims issues. It is the concern of many people in this area who are not willing to give up Crown lands.
Governments should not willingly expand Indian reserves. Indian reserves should be given back to the Nisga'a people without expanding those lands. Their settlement should come to a conclusion and not be given 20 years to implement their tax system and still receive their benefits and millions of dollars in settlements to the collective tribal council. Where does that leave the average, grassroots Indian people, especially the people who do not have very much and those who live off the reserves?
If the Nisga'a Final Agreement bill is to be legislated, section 35 of the Constitution is mentioned throughout the final agreement, and they are protected under section 35. In my view this is not a final agreement. It is a constitution of special status for 5,000 people, half of whom do not live on reserve.
The Nisga'a deal is a third order of government. There justice system and their own police system should be considered. Land claims and treaties should be final and government responsibilities and obligations after settlement of agreements should be the same for all citizens. The sovereignty of Canada must be upheld. With all due respect to the honourable senators, it seems like governments are losing a grip on democracy in this country.
Honourable senators, the Nisga'a Final Agreement, the Nisga'a deal, in my view, is an agreement that should not be passed in Parliament as it is written. Only you, honourable senators, can decide to have the members of Parliament make the changes needed.
Many people will be hurt if this deal goes through. Some people will not know what is at stake for them until it hits them square in the face. Then it is too late. Nothing can be done for them.
It is in the best interests of the band members for the Minister of Indian Affairs to ask First Nation native leaders to return the loans and administration costs for negotiation of land claims. We have found that the burden of land claims costs are left for the band members to pay in our area. The grassroots Indian people are asking the federal government for accountability and asking questions on where is the money allotted for them.
The people are getting tired to the point of complete exhaustion trying to get somewhere on this earth. They are tired of watching the First Nations native leaders, chiefs and councils get rich before their eyes, while land claims keep people from moving on. There should be a cap on these negotiations of land claims. The time limit and the cut-off date and the burden of bills should not be put on the band members, who are left holding the bag. They did not see any of the money.
When I got my father's traplines back, the band I belong to took it away from us again. The tribal council office declared us all deceased. Mike Scott, MP for Skeena, wrote letters on my behalf to the Ministry of Environment, Lands and Parks. It was a very lengthy process with a lot of paper work. I signed an affidavit.
My father bought land in 1912. I have his documents here. I have proof of how much they paid. I have proof of the lease they paid. My Uncle Sam, in 1912, paid $254.30 plus taxes plus transfer costs.
The Chairman: We are unfortunately out of time. Senator St. Germain would like to ask you a brief question, and then we will end.
Senator St. Germain: Mrs. Dalen, I complement you because I know how tough it is as an individual to make a presentation of this nature and express your concerns without any legal assistance or anything. Is everything that you have here what you want us to see as a committee? Are you satisfied with your presentation?
Ms Dalen: I have a map here that shows the overlap.
Senator St. Germain: Would you be prepared to leave that map with us?
Ms Dalen: Yes, a photocopy.
Senator St. Germain: Would the Chair accept this and put this on the record as being part of the presentation?
The Chairman: Yes, it is part of the presentation. We have copies circulated to the senators, so everyone has a copy.
Ms Dalen: I should like to have this overlap returned to the family. I do not want to negotiate anything. It belongs to my family, and I want it back.
Senator St. Germain: Is it on private land, Mrs. Dalen?
Ms Dalen: It is on Crown lands. As my father said, it has been used from generation to generation. These letters are dated 1947.
Senator St. Germain: In view of the time, we will have to stop here, but the chairman has recognized that that map will form part of the record. I should like to thank you, and I am sure everyone thanks you for your presentation.
The Chairman: Thank you very much.
The committee adjourned.