---

Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 7 - Evidence

---

OTTAWA, Thursday, March 23, 2000

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

Senator Jack Austin, P.C. (Chairman) in the Chair.

[English]

The Chairman: This morning, Mr. Glen Williams, Chief Negotiator for the Gitanyow Hereditary Chiefs will continue with his testimony. Mr. Williams will be assisted by his counsel.

Mr. Peter Hutchins, Chief and Legal Advisor, Gitanyow Hereditary Chiefs: Thank you Mr. Chairman, honourable senators. Last evening, we gave you a list of items that are covered in the brief. We believe these items are of considerable importance, not only to this particular bill, but to the modern treaty process itself. I will begin with that particular subject which is dealt with briefly in the Gitanyow submission, that is, the structural, or systemic, problems in the modern treaty process. In our opinion, the process is in big trouble. There are numerous examples of problems across the country. We can further explore these during questions later.

Some of the problems that we see and that we have identified in the brief are as follows: First, there is the failure of Canada and the provinces in the process to deal with the practical issues of overlap, not just the strict extinguishment of rights, but rather, the exercise of the rights and the frustration of that exercise which Glen Williams mentioned that last evening.

Second, there is a tendency to identify one aboriginal group, or one aboriginal people, and to proceed with that people whatever the cost to the neighbours. That is done for various reasons. We have referred in the brief, to the first-come first-served principle that we see across the country. For whatever reason, if one aboriginal group is in a position to start negotiating, the federal government tends to latch on to that, proceed with them, and ignore the problems of others or stonewall people who are trying to get into the process.

There is a place of residence test that seems crazy when you think of traditional territories and provinces. Newfoundland, for example, takes the position that, if you do not live in Newfoundland, you cannot possibly have aboriginal rights or title in Newfoundland.

There is the question of who is best organized and financed.

There is also the question of external political considerations that were touched on last night. That is a problem as well.

Third, there is a tendency to hide behind standard non- derogation provisions. I am certain that you have heard this mentioned during your study of the bill. There was some mention of it last night. The federal government seems to believe that as long as you put something in the treaty that implies, "Do not worry, other people's rights are not affected", then everything is taken care of, all the problems are solved, and you can do anything you want and say anything you want in the treaty instrument. In the real world it does not work like that. In consideration of the non-derogation provisions in the Nisga'a treaty, you will notice that paragraph 33 is basically redundant because it states that aboriginal rights and title will not be extinguished. I would remind you that, since 1982, the federal government has not been able to do that without Gitanyow consent.

Paragraph 34 is an invitation to litigate and therefore does not seem exactly on all fours with the directions of the Supreme Court of Canada to try to negotiate, not litigate.

Paragraph 35 is an interesting opening and should be explored but it is a little vague. It states that: if treaties with other aboriginal peoples are concluded that are in conflict, or incompatible, something will be done. Will that happen? Is the Government of Canada committed to negotiating those substantive treaties?

Fourth, is the tendency to treat treaty making as a political matter and not rights-based. We hear this coming out of the BC treaty process, that is, it is all discretionary and political. That is hard to take for an aboriginal people who are negotiating an instrument that is to secure and recognize aboriginal title and aboriginal rights into the future.

For all those reasons, and many more, there is a problem across this land with the way modern treaties are being negotiated by the Government of Canada and the provinces, and this is one good example.

Last night I dealt with what the courts have said. The Luuxhon judgment is and interesting and important one. However, I would stress that it is under appeal. I mentioned last night is that there are two parts to that appeal. The first one, which is before the courts, is whether there is a duty to negotiate in good faith; and the second one, which has not yet been argued, is whether Canada has breached that duty. There were suggestions from senators that, perhaps, the judge in this case had said that Canada has conducted treaty negotiations in a manner of sharp dealing and in bad faith. That has not yet been determined. Justice Williamson did say, however, that there is a legal obligation to negotiate in good faith, and that seems to have a certain content that includes no sharp dealing. We must decide whether or not there is a breach.

In our brief, we have put forward several solutions. We refer to the James Bay and Northern Quebec Agreement that sets a precedent in that very complicated overlaps involving three aboriginal peoples were negotiated and included in the treaty. The treaty did not state that it would be dealt with later somehow. The parties actually dealt with it. That is important.

The bill bringing into force the James Bay agreement did extinguish the rights of certain third party aboriginal peoples. In 1975, that was the federal government's solution to these complicated matters. This was a period where Parliament purported to be able to extinguish rights, and everyone was under threat. I know that the James Bay Cree and the Inuit of Quebec did not support that. They did not want it. However, the federal government and the Government of Quebec absolutely insisted.

We are pointing you to the provisions in the James Bay agreement that deal with joint management between the Crees, the Inuit and the Naskapi <#0107> those provisions dealing with joint sharing of territory, and reciprocal rights. It is a complicated process, but it can be done. In that instance, it was done over a period of two to three years. It did not take 17 years. In the last 25 years, there has been virtually no litigation among those three parties. There has been plenty of litigation with Canada, but those three parties have lived with that arrangement. Thus, it can be done.

During this process, the Gitanyow have attempted to put forward practical solutions. You will find that in appendix 5 of the brief where the Gitanyow put forward proposals for joint management and various other matters.

Finally, we come to the amendments that we suggest be made to the bill. This morning I gave your clerk copies of the proposed amendments. They basically reflect what is already in our brief.

Essentially, there are two types of amendment. I do not know if honourable senators have this in front of them. It is a two-page document.

Senator Grafstein: Is the document entitled "Gitanyow Heriditary Chiefs, Proposed Amendments to Bill C-9"?

Mr. Hutchins: Yes. The first grouping of amendments deals with non-derogation. We are proposing, as I think I mentioned last night, to simply take the non-derogation provisions in the Nisga'a treaty and put them into this bill. In other words, have Parliament explicitly acknowledge and direct in regard to that matter. The suggested amendments, 20A, 20B, and 20C are the non-derogation provisions from the Nisga'a treaty, as they deal with paragraphs 33, 34 and 35, with their imperfections. We are at a point now where we are trying to suggest certain minimal measures to mitigate the impact.

Amendment 20D is a new suggestion, but it was in our brief and we talked about it last night. That amendment would simply direct the Government of Canada not to invoke the Nisga'a treaty as a reason for not concluding comprehensive treaties with other aboriginal peoples. That, as far as we are concerned, is what is contained in paragraph 35 of the Nisga'a treaty. It is important, and it is certainly reasonable, to have clarification in that regard.

We suggest suspension of the coming into force of certain provisions of the treaty pending either a settlement between the parties as to how overlaps are to be dealt with or the conclusion of a final Gitanyow treaty. It should be understood that, for the last three or four years, Canada and B.C. have undertaken to the Gitanyow to accelerate the treaty process and bring it into synchronization with the Nisga'a treaty process. It did not happen. We are now faced with a treaty that is about to be, presumably, ratified by Parliament and the Gitanyow are still working towards an AIP.

Finally, in our brief we suggest that the Senate of Canada send clear directions to the federal government to make representations to and give undertakings to Gitanyow and to the other Nisga'a neighbours that paragraph 35 of the Nisga'a treaty says what we believe it says. That is, there should be clear message that not in the unlikely event that a treaty with the neighbours is concluded that might conflict, Canada remains committed to negotiate comprehensive treaties and to make the adjustments to the Nisga'a treaty, if necessary, as provided in paragraph 35 of the Nisga'a treaty. That is very important. I do not think that Canada should be allowed to hide behind language that, in the final analysis, is empty language.

Senators, that would conclude the brief summary of our submissions. Mr. Williams and I welcome questions.

The Chairman: Thank you, Mr. Hutchins.

Senator St. Germain usually has questions on the overlap issues.

Senator St. Germain: Mr. Chairman, as you have quite adeptly pointed out, my real concern about this legislation has been the overlap situation.

At the outset, I must compliment the Nisga'a on being excellent negotiators. Based on the way they negotiated this agreement, I believe that at least those who are here today will provide excellent governance for the Nisga'a people.

Last night, Mr. Sterritt asked us to look at the tribal boundaries in the Nass watershed. As you know, there was the Calder case, and Mr. Calder, a distinguished British Columbian happens to be with us today. The original Nisga'a land claim area was a certain size, but that area is now twice as large as it was in the original Calder claim in 1969. It is also quite a bit larger than the area claimed in the Nisga'a petition of 1913.

Obviously, our government negotiators were either out-negotiated by the Nisga'a, or there is something here that we still have not learned, Mr. Chairman. I hope before these hearings are over that fairness will be brought to the fore.

Mr. Williams, is it true that, at the negotiating table, the government negotiators said that they would refuse to negotiate with the Gitanyow once a land deal was negotiated with the Nisga'a? If so, can you explain why that would have been said?

Mr. Glen Williams, Chief Negotiator, Gitanyow Hereditary Chiefs: The government has indicated to us that they want to continue to negotiate. The government negotiators representing both governments at our table have been very clear to us that they will not amend the Nisga'a Final Agreement. In fact, when they delivered the offer on November 29, that offer was deliberately designed in such a way as to preclude any amendments being made to the Nisga'a Final Agreement.

Senator St. Germain: You stated in your testimony last evening, Mr. Williams, that you concurred fully with the position taken by Mr. Sterritt. Is that correct?

Mr. Williams: In what regard?

Senator St. Germain: In regards to his description of traditional lands of Gitanyow, Gitxsan, and the Nisga'a. I am not trying to put words in your mouth. If that is not correct, is it close to being correct?

Mr. Williams: I go to the boundary area nearly every year. We have cabins in our territory on the Lower Cranberry. I have been to Meziadin and my grandfather and mother grew up at Meziadin Lake. We have numerous cabins and fishing sites there. I talked for a number of years with our elders, and I totally agree with what Mr. Sterritt said. I agree with the evidence he gave, including his clarification of the Calder map and the petition of 1913. I fully agree with him.

Senator St. Germain: Do you also agree with the statement he made that this was driven by a political agenda of the then premier of British Columbia?

Mr. Williams: I fully agreed with Mr. Sterritt when he stated it was driven by Mr. Clark.

Senator St. Germain: In regards to his description of traditional lands of Gitanyow, Gitxsan, and the Nisga'a. I am not trying to put words in your mouth. If that is not correct, is it close to being correct?

Mr. Williams: I go to the boundary area nearly every year. We have cabins in our territory on the Lower Cranberry. I have been to Meziadin and my grandfather and mother grew up at Meziadin Lake. We have numerous cabins and fishing sites there. I talked for a number of years with our elders, and I totally agree with what Mr. Sterritt said. I agree with the evidence he gave, including his clarification of the Calder map and the petition of 1913. I fully agree with him.

Senator St. Germain: Do you also agree with the statement he made that this was driven by a political agenda of the then premier of British Columbia?

Mr. Williams: I fully agreed with Mr. Sterritt when he stated it was driven by Mr. Clark.

Senator St. Germain: You have been the head negotiator for the Gitanyow for a considerable number of years. Were you at the table when Tom Molloy, the head negotiator for the federal government, was negotiating land claims on behalf of yourselves and the Gitxsan?

Mr. Williams: Yes, I was.

Senator St. Germain: Do you believe that, when Mr. Molloy was at the Nisga'a negotiating table he may have been in a conflict situation in that he would have had information that would have put your people at a disadvantage and that would have given the Nisga'a an advantage? Obviously he would have had information that you would have shared with him, and that he would have been able to take to the other table and use against you.

Mr. Williams: I would have to agree. We had numerous discussions with Mr. Molloy during which we briefed him about almost every meeting we had with provincial and federal government representatives. We made sure that we alerted them to our concerns regarding the fact that there were negotiations going on and that they may include parts of our territory. Mr. Molloy was well aware of our territory. When we submitted our statement of intent map, the federal government and the B.C. Treaty Commission accepted that. They agreed to a framework agreement with us.

Yes, I would agree that Mr. Molloy would be in a conflict situation.

Senator St. Germain: Honourable senators, I will couch my words, because I recognize that we have more evidence to hear. I have spoken to Earl Muldoe, who is Delgamuukw, and also to representatives of the Gitanyow. The management lands that have been granted in fee simple are close to being, I was about to say "sinister," in the way that they have been strategically chosen. It makes it impossible in some ways to resolve future land claims with the neighbours of the Nisga'a. I am referring to the five areas in the Gitanyow that are outlined in blue. They all seem to be in strategic locations. The one on Kwinageese Lake is where Mr. Muldoe's cabin is and it is also the disputed area of the Gitxsan. The area circled in blue where the five fee simple lands are is the area of the Gitanyow.

I do not want to put words in your mouth. As I look at this, I must also look back at the original claim. I would compliment the Nisga'a who are obviously excellent negotiators. It seems to me as if this will either be bound up in litigation for 1,000 years or that it may never be resolved in a suitable fashion. Have you any comments on that?

Mr. Williams: From the information we have been given, my understanding of the fee simple sites is that there was a study conducted by our neighbours and government to determine the highest and best use lands in what they indicated was their land claim area. Of the 75 sites that were identified, five are in our territory.

I believe there are two fee simple sites in Jade Lake in the Kinskuch area. There is a huge back country recreation tenure along with those two fee simple sites. In the Meziadin area the fee simple site they identified is an area where we once had a traditional village. That has since been moved.

Another fee simple site was on the lower Nass or along Highway 37. That has now been moved to Grizzly Bear Lake. That area has business opportunities.

That is our understanding of what was considered to be the highest and best use lands identified.

Senator Andreychuk: You indicated that either the government negotiators or government officials said to you that they will not negotiate anything that is the subject matter of the Nisga'a agreement.

Mr. Williams: That is correct.

Senator Andreychuk: Does that include, therefore, the disputed part of the lands? Have they addressed that directly in any way?

Mr. Williams: There is a small area of the Nisga'a core lands or settlement lands that impact on the boundary. They have indicated to us that they will not change that part of that core land that impacts or includes our fishery. We had a major interest in that area.

They indicated they will not change the wildlife or the fishery management area. They indicated that we could work together on that particular area.

The question is: How do we work together when we have undefined rights of the Gitanyow versus constitutionally protected treaty rights? We asked them to explain how they envision that working, and we asked how we could capture that in an agreement. They could not answer those questions.

Senator Andreychuk: To whom are you referring when you say, "they"?

Mr. Williams: The government negotiators.

Senator Andreychuk: Who were they at that time?

Mr. Williams: That would be the chief negotiators for the federal government and the province.

Senator Andreychuk: You indicated that Mr. Molloy at one point was your negotiator, then he was no longer negotiating for you. Can you tell us how you came to know he was no longer your negotiator?

Mr. Williams: There was an announcement made by the Government of Canada that he was now appointed to the Nisga'a table.

The Chairman: If I may point out for clarification, Mr. Molloy has always acted for the Crown. He never acted for any aboriginal community.

Senator Andreychuk: I appreciate that. I used my words loosely. I want to know how you found out Mr. Molloy was no longer negotiating on behalf of the Crown with the Gitanyow. You say you found out from an announcement?

Mr. Williams: Yes, there was an announcement.

Senator Andreychuk: If the Nisga'a are not successful in retaining the disputed lands, they will get some compensation. Have there been any discussions with the federal government about what happens to you if you are successful in regaining those disputed lands? Has there been any discussion about compensation for you if you do not regain those lands?

Are you being provided any resources, financial or otherwise, to pursue this disputed land issue?

Mr. Williams: No. Over the last several years we tried to get resources. We inherited the problem, and we were always willing to attempt to bring it to the attention of government and to our neighbours and to engage in a process to attempt to work this out. We used borrowed money in an attempt to bring this to the attention of government. We used our own resources.

Senator Grafstein: I am curious about a question that has not arisen but is referenced in appendix 11 of your submission. I will read you this and perhaps you would comment briefly. This has been of particular interest to me in these hearings. You say in section 7:

Our model, which has been presented to both the federal and provincial negotiators and politicians is one based on a recognition of aboriginal rights, title and governance and a reconciliation of this with the rights and interest of non-aboriginal Canadians.

What is your position on minority rights for non-Gitanyow on Gitanyow lands? For the purposes of the record, what is the recognition of minority rights for those who are non-Gitanyow on Gitanyow lands?

Mr. Williams: We are in the process of developing some internal laws related to the particular point you are raising. We are looking at our traditional laws, Canadian laws, the Charter of Rights and Freedoms, and the democratic principle. We are just getting to the point in our internal discussions and in our negotiations where we want to advance that issue. We want to accommodate those interests and to identify exactly what minority rights interests would be. We want to give full consideration to the Charter and to the principles of democracy. However, currently, those people are accommodated in our system.

Senator Grafstein: How?

Mr. Williams: We mentioned yesterday that we have house groups and many of those people who are not Gitanyow -- they may be Cree or non-aboriginal people -- are accommodated in our feast hall. They are given names, not very high names, but they are part of the decision-making body for that particular house. Certain privileged rights apply to them.

Senator Grafstein: Privileged rights?

Mr. Williams: Yes, privileged rights.

Senator Grafstein: Effectively, you have not come to grips yet with the question of equality of rights for Gitanyow and residents who are not Gitanyow on Gitanyow lands.

Mr. Williams: We are working on that. As I explained, in our traditional system we accommodate people like that.

Senator Grafstein: Let me deal with another topic of your amendments. Would you not agree that your proposed clause 20A is already law and that an amendment is not necessary?

Mr. Hutchins: Senator, I mentioned when I was going through the three provisions in the Nisga'a treaty, 33, 34 and 35, that yes, in effect, 33 is redundant. It is the law, to the extent Gitanyow have aboriginal rights, not treaty rights yet. They are entrenched.

Senator Grafstein: Item 20A is the law. We do not have to say this is for greater certainty. Is this not the existing law?

Mr. Hutchins: Certainly, anyone can go to court. I assume that the parties included the following subparagraph in the treaty: "a. the provision will operate and have effect to the extent it does not adversely affect those rights", to clarify the ongoing situation during a court challenge.

Senator Grafstein: I am just trying to get a fundamental understanding of this. That is the law. I do not know why, whether one agrees with the treaty process or not, one has to put a gloss on the law as it already exists. Items 20A and 20B are already law. Why should we further complicate the situation? I would like to get to the substantive reason for this. Tell me how your amendments differ from what is already contained in the law?

I acknowledge that 20C seems to me to be a little different from the existing law. It seems to say that an aboriginal nation can make a claim, as Senator Tkachuk says, for greater lands, and then receive less than greater lands and compensation for the greater claim. This seems to be a reiteration of that principle. Is that what is intended by 20C?

Mr. Hutchins: First, 20A, 20B and 20C are, word for word, from the Nisga'a treaty, with the exception that the treaty reads "this agreement" and we replaced that with "the Nisga'a Final Agreement". We are replicating those paragraphs. In fairness to the parties, we are negotiating, presumably, a package, so the three should go in.

Our proposed amendment 20C reflects paragraph 35 of the treaty. That is different. As I said, senator, we read paragraph 35 as being a commitment by Canada and by British Columbia, incidentally, to the Nisga'a neighbours, to negotiate treaties with them and not to invoke the Nisga'a treaty as a bar, as a reason not to conclude comprehensive treaties. That is how we read it. We think it would be important for the Parliament of Canada to include that in the bill. We also think it is important for Canada to clearly confirm that to the Gitanyow and the other neighbours by way of a letter or other means. That is important. It is not just a matter of repeating the law. It is an important idea.

The Chairman: It may be a question we will put to the minister when he is here.

Senator Grafstein: I take it the heart of your objection is covered by your proposed clauses 27(2) and 27(3) which would provide that proclamation be delayed until the overlap issue is settled.

Mr. Hutchins: Yes. Items 27(2) and 27(3) deal with the idea of suspending not the entire treaty, but parts of the treaty that impact on the Gitanyow and the other neighbours. However, we are here representing the Gitanyow. A great deal of the treaty can be brought into effect. As Glen Williams and Neil Sterritt have said, this is not an initiative to block the Nisga'a treaty holus-bolus or to stop it, rather, it is to allow them to immediately have the benefits of their treaty to the extent that those do not impact adversely on the neighbours. However, it is an initiative to ask you to suspend the provisions of the treaty that do impact on the neighbours until such time as there is a chance to deal with the overlap, or that Canada has come through with its commitment under section 35 and negotiated a comprehensive treaty with the neighbours, in this instance, the Gitanyow.

Senator Gill: My question is related to the James Bay and Northern Quebec Agreement.

[Translation]

Let us stress the fact that the negotiations undertaken by federal, provincial and native authorities between 1970 and 1975 occurred in an entirely different context. In that situation, we were dealing with rights that had become extinguished. That is not, however, the context of the present negotiations.

[English]

Mr. Hutchins: In the context of the negotiations of the James Bay agreement in 1975, I would point out that no extinguishment was already in place. However, there was a threat of extinguishment through the Parliament of Canada if the James Bay Crees and the Inuit of Quebec did not come to an agreement. That agreement was negotiated in the light of James Bay I, the first major hydro-electric project, and in the light of injunctions the Crees and the Inuit had obtained.

To a certain extent, the James Bay agreement was a settlement out of court. However, the threat hung over the table that, if there was no arrangement or agreement, the solution would be to ask Parliament to extinguish the rights, and Parliament, at that point, purported to have that authority. Those were the conditions under which the parties negotiated the James Bay agreement.

Senator Gill: I have a question for Chief Williams. Indian bands or aboriginal people can negotiate and sign contracts but, according to the Indian Act, there must be an endorsement by the Minister of Indian Affairs. Perhaps some do sign agreements and do not obtain the endorsement of the minister but, according to the Indian Act, that is illegal.

The purpose of most aboriginal people who have been negotiating, is to provide the opportunity to make decisions in respect of their own destiny and future. Much of this can be articulated differently, but I believe that most of the bands are looking for the capacity to do things for themselves and for their people.

If you were in a position to negotiate with other nations without requiring the Minister of Indian Affairs to act as a co-signatory or as a referee, do you think that it would be possible for the aboriginal people to reach agreements?

Mr. Williams: I believe we can, and we have attempted to do that over the last two decades. We have tried to identify specific problems or issues and create solutions without the involvement of government. I think that is possible. However, there must be a level playing field for both parties. The current situation involves attempted negotiations and interim agreements that were in place in the early 1990s, and an AIP in 1996 and again in 1998 that compel all parties not to amend a particular agreement. Despite all of this, I believe that it is possible. We have had agreements with our neighbours, the Gitxsan, and we have reached some understanding in certain areas, but there must be a level playing field.

Senator Lawson: Further to Senator Andreychuk's question, Mr. Williams, we understand that, under the treaty, if you mount a claim for the return of your lands against the Nisga'a and you are successful, the Nisga'a will be compensated in cash or kind. What happens if you are unsuccessful in mounting a legal challenge, you do not get your lands, and they are lost forever? Has any undertaking been given to you by the government or anyone as to how they will compensate the Gitanyow?

Mr. Williams: Our people, as I said yesterday, are there on the lands. We relied on that territory for our food -- for fishing and for hunting. We have cabins and smoke houses out there, and we have the Gitxsan aboriginal law playing out on that territory. There will be a clash between the Nisga'a treaty rights and the Gitanyow undefined rights. The Gitanyow yoke, or the law, has been there for thousands of years. We pay great money to hold traditional names. In respect of the poles that I referred to yesterday, one house group and a chief may invest up to $100,000 to erect that pole. My grandfather and our elders have always said that the territory is like a bank to us, and like a table where we get our food. Our people are very committed and determined to continue to uphold the system that we have and the law that we have on the territory. We will probably be forced off the territory, and we will probably be charged and restrained from continued access to the territory. Again, there will be confusion on the territory as to whose rights will play out first on the ground.

Senator Lawson: Specifically, you have been given no undertaking from the federal government for compensation if you lose your lands.

Mr. Williams: We have been given no compensation from the federal government.

Senator Lawson: Why would you be treated differently from the Nisga'a? If we are talking about fairness and application throughout the whole treaty, on which the whole system is supposed to be based, why would you not be given the same undertakings that the Nisga'a received?

Mr. Williams: I do not know.

Senator Lawson: Neither do I.

Senator St. Germain: It appears that it is aboriginal minority rights that are in the process of being trampled on. My colleagues are sensitive to these rights, as is Senator Chalifoux, because of their direct involvement in relationships with natives, or being native or part native. This sensitivity dictates that we must explore every aspect of what appears to be the will of the Government of British Columbia to force something through at the expense of the Gitanyow and the Gitxsan.

Mr. Chairman, the committee may want these witnesses to reappear after we hear from Mr. Molloy and the minister. I forewarned you that I would, indeed, make that suggestion, and you advised me that you would call a vote on it. However, I do not know if that is how you will proceed.

To me, in all fairness, this is the most egregious error possible that could be part of the process. In light of the importance of the situation, would it be possible to have the witnesses reappear?

In the emotions of this meeting, people said things before understanding the whole process, and before fully understanding some of the issues that we, as British Columbians, knew about firsthand. Mr. Williams, is there anything that you would like to tell the senators at this time?

Perhaps our chairman will rule on the question of whether we should invite our witnesses to return.

The Chairman: Let us defer that question until we have heard the evidence of all the other witnesses. We will then make a decision.

The representatives of the Gitanyow have been before us for a hour and three-quarters. This is the longest appearance by any witness. I agree that the issue is one of great interest to senators, but I believe we have heard their submission in full.

I am quite willing to defer the issue to a future time. If they want to come back after they have heard the minister, Mr. Molloy, and other witnesses, they can advise me at that time.

Senator St. Germain: Will you make this decision arbitrarily or will the committee make the decision?

The Chairman: I am always subject to the committee's wishes. I resent the suggestion that I would act arbitrarily. My temperature is rising as a result of your interventions because your questions have taken as much time as all the questions asked by all other senators put together. I think an accusation that I am not treating you fairly is unwarranted.

Senator St. Germain: I apologize if that is the situation, but I do not believe that an issue so important to British Columbia and to Canada should be restricted by a time allocation decided by you or by the government.

The Chairman: No, you should decide it.

Senator St. Germain: We should decide it. That is what I am saying. I appreciate the fact you have given me the time to question, sir.

The Chairman: This committee has business to do. Senators have other issues about which they are equally passionate, Senator St. Germain. We have not denied your witnesses time for examination.

Senator St. Germain: They are not my witnesses. They are our witnesses.

The Chairman: You have had every opportunity to make your case.

Senator Chalifoux: Point of order. We are wasting time in the debates and arguments between the chair and the deputy chair. I would rather hear the witnesses. Thank you.

Senator Grafstein: Mr. Chairman, as a non-voting member of the committee, I want the witnesses to know that I found the evidence last night and this morning very informative and very precise. The issues are clear. We will hear from the minister and Mr. Molloy later on, and we will be able to make a judgment on factual matters. As someone who has serious questions about this process, the evidence, to my mind, is becoming very clear. It is a question of credibility on some points.

We have questions of law, questions of constitutional law, and questions of credibility. The witness are clarifying the issues. Rather than the chair and the deputy chair debating this particular point, I agree with Senator Chalifoux that we should get on with it. We have witnesses here and we are anxious to draw other information from other witnesses.

The Chairman: Mr. Williams, I invite you to make a last comment.

Mr. Williams: Thank you for hearing us. As I said yesterday, our people at home may be small in number, but we are a people in this country. We are now at the eleventh hour before you pass this bill. By next Friday, you will have it done. The new fiscal year is the timing chosen by this government to implement this bill. We have put forward to you our evidence to prove that we exist and that we have a territory. Our people are quite concerned. Our elders sit in silence and watch this process as it plays out. They too are very concerned.

The fishery will begin in the next few months. We are not certain if our constitutional rights will be protected. These may be undefined aboriginal rights; that is why we are pleading with you to make some minor amendments as we proposed last night and again this morning. These are very minor amendments. We would like to see Bill C-9 passed with the exception that our territory is not included in it. It is a small request to make to you today which will give us some certainty and some peace on the ground.

The Chairman: We will now hear from Mr. Willard Estey. I doubt whether anyone can remember a former justice of the Supreme Court of Canada appearing before a Senate committee. I have been here 25 years and I cannot recall such an occasion.

We have been very much looking forward to your appearance. I do not know whether Senator Grafstein, in this instance, will be willing to take judicial notice of your background. He has been asking for information concerning the background of other witnesses. If he feels compelled to ask you for that background information, I will let him do so.

Senator Grafstein: I want to declare a former conflict of interest. Mr. Estey and I were co-counsel on a very important matter for the federal government some 30-odd years ago. That will in no way, shape or form, inhibit me from asking crucial and miserable questions.

Mr. Estey: I am afraid that contaminates you and you have a conflict of interest.

The Chairman: Please proceed.

Mr. Willard Z. Estey, Q.C.: Honourable senators, you are about to be regaled by a quite informal presentation. The intention is not to try to transform this committee into a law school and a debating house discussing how the constitutional judgments of the Supreme Court and other courts really add up.

I would like to tell you first that I am not here as a witness primed by some client to say whatever the client wants said. You will hear what I believe. I emphasize that because occasionally, the press thinks that all lawyers at all times talk only when someone puts money in the parrot's beak. That is not the case.

The second point is that we represent a kind of rag-tag homogeny of Canadian citizens -- people who have a vested interest in the welfare of our nation. We are not oriented in any formal way to any cause or any undertaking of which I am aware, but rather I have come here with a very simple pitch. That is, we recognize and welcome section 35. It is high time we started its implementation.

We are not here to derail anything in this process vis-à-vis the Nisga'a and section 35, or any other provision. We simply point out the obvious, that we are toying here not with a who-hit-who-accident case, or even what the Landlord and Tenant Act means, we are dealing with the backbone and nervous system of the nation of Canada. We have struggled a long time to get to this point. We have achieved what the Americans had to go through a rebellion and a civil war to achieve. We have not experienced either. Perhaps we suffer from that.

We have reached a new threshold in Canada's organization. The steps in our creation can be ticked off quickly. One step was taken at Versailles, when Canada came out from under the British umbrella. We had benefited from that umbrella, rather than being oppressed. However, the time had come to spread our wings.

The next big jump was the crisis created by the originally European conflict, World War II, where Canada really showed its muscle. The odd thing about it historically is that we had the stupidity, or the gall, or the courage, to declare war without even phoning Washington. We have gone downhill a long way since then. We would now need to phone the New York Stock Exchange.

The essence of that is by the time we emerged from World War II, we were a full-blown, large trading power in this world. We have come a long way in the last 50 years. Our history is one of a nation with complete balance in capacity and experience, and a financial strength, despite what we say about ourselves. If we lack any talent at all, it is the ability to brag. We do not want to give away any secrets, such as how much more oil we have than OPEC, or anything like that. That would be a complete breach of faith in our country.

Now we are facing something new. This is the third plateau -- section 35 in the Canadian Constitution, 1982. It is high time we activated that section, and we all welcome this process in the Senate as one important line going back to the community as to what section 35 is all about. You will not find much about it in the newspapers.

We think that progress for the Nisga'a and people in that same category can be better and more quickly achieved if we do not waste our strength on fooling around with litigation and the slow process of obtaining authoritative rulings en route to our destiny. Our destiny is to finally deal with the consequences of heavy, intense European immigration after World War I, and the arrival of another great avalanche of immigrants after World War II.

Our simple plea today is that there are many ways to achieve the success heralded by section 35. The best way, in our humble submission, is to get a grasp on what can be done constitutionally, without furore, and what must be done only after we hear from the high court on the limitations of section 35.

To be practical, it means that if we take away power from the provinces or the federal government to put into some other body -- Nisga'a being one of them, but there are many more -- then there is a change in the balance of the Canadian Constitution. It is a welcome change, but it must be directed according to law. It is wasteful for us to explore the alleys and byways. We wish to get on the highway.

It is our humble submission that the legislative process, now in the hands of this committee and the Senate, should be long enough to allow us to obtain a blessing, or advice on change, for the process so fully set forth in the documentation with which you are confronted. If anything, that documentation has been overpowered. We have lost sight of the main track in a mass of alleys and criss-crossing tracks going to the same destination.

Our pitch is very simple. It is so simple that it is illusory. There are at least five actions in the works now in the British Columbia courts, all of which could lead to the advice I am talking about. Alternatively, and in parallel to that, we have the reference power, which is for the national government to invoke and not the citizenry.

You will appreciate that I should have stated something at the start. There are three people who have come together to put the wheels on this locomotive. We have 150 years of experience amongst the three of us in presenting the law to the courts and in deciding the law in the courts. If we are wrong, God help us, but we think we are right because we have been there many times before.

Someone from the press phoned me a few days ago. The upshot of the phone call was that we are just like all other hack lawyers, we get a big fee to come here and spin some kind of yarn that sounds good and then leave. The three of us decided, when we had put the finishing touches on the huge amount of work done on all sides here, that we would trim this down to the essentials and everyone would sign that. This is the argument we will put forward. That gets me down to where we are going.

The simple truth of the matter about constitutional law is that it is unbelievably simple and pure, and my profession owes much to the public for cluttering it up with non-essentials. Here, all we will need to do is add together section 91 and section 92 of the old British North America Act, amended now as the Canadian Constitution. You add those together and you get 100 per cent of governmental power. The whole sovereign shebang is all there in those two sections.

In law school, we considered constitutional law to be an easy course because you only needed to learn two sections, but that was the biggest mistake I ever made in my legal life. Those two funnels come together, and from that we must extract, lawfully, the power necessary to fuel the idea of section 35. That idea is simple. We have gone through the early civilizing process of settling land and turning it into farms. Now we are into the secondary industries, and we are heavily involved in trading. We have gone through that process and made innumerable treaties, which are binding on all parts of the nation.

Anything we do here now must reflect the existence of those 40-odd treaties. It is amazing how those have flourished since the first simple tax treaty with the United States. We have trade treaties with many countries.

There is 100 per cent sovereignty contained in the two sections. Section 35 causes us to weld together the original settlers, who now manage affairs through sections 91 and 92, and the aboriginals, who have been ignored for a century and a half. Their rights must now be sifted out of sections 91 and 92.

That takes me to the only rule you will hear me talk about this morning, that being the difference between delegate, derogate, and abdicate. Those three verbs are all the same, according to the cases.

We suggest that the details of the bill, of the agreement appended to it, and of the studies that back it all up, must be viewed from the simple reality that we are trying to put muscle into section 35 without destroying the power in sections 91 and 92, except to the extent it is found necessary. When it is found necessary, we have to amend the act. That is no big deal. You would not do it to change a white line in the middle of a highway, but you do not have to wait until you repeal the banking legislation. Those complexities are not encountered here.

We must now decide what part of this agreement is clearly within the bounds recognized by the Supreme Court in surveying the impact on sections 91 and 92, on section 35. That has never been before the court. It is new ground that must be explored.

Again, I think the result will be simple. Clearly, the aboriginals do not need to be sealed off at the level of a municipality. At the other extreme, assuming that we will all continue to live in Canada, we do not wish to violate sections 91 and 92 unnecessarily in order to get the principles of section 35 off the ground. That is the delicate balance we are discussing this morning.

The way out of the woods, in my humble opinion, is to assign -- "assign" being a neutral word -- to the new unit, sufficient domestic powers to allow it to exercise its new-found existence in section 35 without abusing the provincial and federal jurisdictions under sections 91 and 92, except where necessary. That will require an amendment.

We see no provision requiring an amendment that would attract debate. There are some obvious things that could be settled by agreement and then backed up by the amending process. However, it requires a certain amount of time to obtain a judicial guideline.

By coincidence, two or three days ago fate put a newspaper into my hands. Unlike most newspapers, it was quite useful. In it, the Honourable David Collenette, Minister of Transport for Canada, is reported to have said that the one-and-a-half-year delay in the railway merger caused by the necessity of bringing the matter before the Surface Transportation Board in the United States is reasonable, because that is a big decision. I suggest that that decision is peanuts compared to this.

Our pitch is simple. The action before the court is a motion on a point of law, not a trial, and can be fast-tracked. In case of appeal, there is not an enormous amount of evidence. The whole process can be compressed. It will not take very long. It is all practicality. It is the product of 150 years of experience in stickhandling through the courts. We welcome that.

The minutiae that come from the main agreement are not very important. I had to read about 500 pages to discover that. What is important is the goal of section 35, and that will not be solved by battles over minutiae. The question is, how many sovereign powers will be disturbed in sections 91 and 92 if a minimal but successful operation in constitutional law is undertaken? I say, not many. There are things in the minutiae such as paramountcy. That word has given us more trouble constitutionally than any other word in our vocabulary. It is a swamp that we do not want to get into. You do not need paramountcy unless you have legitimate conflict between equally empowered powers, and that does not happen very often. Sections 91 and 92 are examples of that. The law books of the Supreme Court of Canada used to be laden with decisions on the allocation of power between the federal and provincial levels. There is not much of that any more. In the United States federal system, there has not been an allocation of powers appeal in the last century. We are moving into that zone of maturity.

Paramountcy can be avoided here if, in creating an aboriginal government, we use, rather than something akin to a municipal structure, something akin to a province, but not to a nation state. It would be horribly complicated to try to operate a nation state inside the geography of Canada. There would be endless problems.

That will not solve the Nisga'a's problems. What will is to live within the federal system -- one that Canada has made work much better than anyone else, including the Americans. That system can accommodate section 35 with little or no problem.

We may oversimplify, Mr. Chairman, when we say that the first step is also simple. That is, put down your gavel on the legislative process of Bill C-9. Do not throw it in the wastepaper basket, just adjourn the matter and, perhaps, consult with the executive branch of government to see if they want to make a reference. I do not advocate that. I would sooner see it roll through without any further political intervention. It can roll through, if the lawyers decide they will do it.

I have only a few things left to say. There is a size problem here from the Nisga'a point of view. It is a small unit with about 5,500 people, according to the information I saw. They do not have much industrial capacity, in the sense of manufacturing automobiles, for example, and the geographical location is such that it will not happen tomorrow. We must take into account our treaty obligations, but a lot of them do not apply to the level and the locale of operations that we have in Nisga'a. I do not think we should suffer nervous frustration worrying about theoretical problems. Get down to the street level and solve the problems there.

We have prepared an 11-page typewritten document that contains the points that I have been talking about. We will leave that behind as our brief. It speaks for itself. I do not want to take the time of the committee to go through it. If you have any questions that I am capable of answering, or my colleagues wish to help me answer, I would like to hear them now.

The Chairman: Thank you very much, Mr. Estey. I have a number of people who would like to question you. Often, however, that includes comments.

Senator St. Germain: Do we need a motion to append Mr. Estey's report?

The Chairman: No; I will include it as part of the evidence before the committee.

Senator Beaudoin: It is a pleasure to see you. My question is on section 35 and paramountcy. That is the only point that worries me. The rest is all right.

This is an accord, and it will obviously have great importance. In 20 areas, however, the bill stipulates a paramountcy. That was not strictly necessary, in my opinion, but it is there. It reactivates the whole debate about whether we can construe section 35 as meaning a third order of government, or whether the power of the aboriginal peoples is protected by that section. Obviously it is. There is controversy about that. Some people say that we already have a third order of government under section 35, and some jurists say otherwise. The Supreme Court has not ruled on that yet, but former Chief Justice Lamer has said, "Let us face it. We are all here to stay." That is the way the Supreme Court sees the problem now.

I am inclined to think that if we stipulate a paramountcy, it will deal directly with the division of powers. In that sense, it may be unconstitutional. Yesterday, we heard from Professor Ryder, who said, "No. It is only the application of section 35, paragraph 3. It is an accord. It deals with aboriginal rights. We do not change the division of powers for everyone in Canada, only for the Nisga'a." It is done by an accord, and subsection 3 of section 35 says that "Treaty rights may include the rights to be acquired." Some rights are acquired by that accord, under section 35. That is the end of it. It is not a constitutional amendment. It is an accord with the Nisga'a. It comes directly under section 35 and it is protected by the current Constitution. That is his argument.

His argument is strong, in my opinion, because it is indeed an accord. The Government of Canada has the right to make accords with the aboriginal people. We have the right to legislate for aboriginals under section 91(24). We are paramount in that, but we accept a certain paramountcy in 14 areas.

If it comes under section 35, it is probably perfectly legal. However, if it does not, then I see a problem. That is my starting point on this issue.

Mr. Estey: When people do this to me, I always like to ask: "Is that a question?" It is a question, and I understand you. I recognize your background from my long association with you. You are steeped in constitutional law and I will not insult your knowledge by starting at A and going down to Q in the alphabet.

First, we must remember that the Constitution is the real wall between chaos and civilized progress. No community on the face of the earth has ever achieved the higher standard of living to which we all aspire without a set of rules that is called a constitution. The reason for that is that you must have consistency -- consistency between master and servant, between employer and employee, between the municipalities and the provincial government, and for the competitiveness of provinces now in our world trade hunt. We are out wooing the other fellow's customer. Quebec and Ontario are trying to bribe the same foreign manufacturer to come to the country. We need rules to keep our impulses in check.

Section 35 is not one of those generators. Section 35 is an embarrassing confession by the vast majority of Canadians, most of whom are second generation émigrés themselves. That body became dominant in our way of life after World War II. We had to and did recognize the problem. I do not think it is solved by creating a vehicle that itself calls for a treaty which is ex contractu from the Constitution.

The treaty that we are talking about is probably a misuse of the word, but whatever the agreement is, it must conform to existing law. That is part of the Constitution and part of the stability it brings to our community. It is not designed to tire the Nisga'a out, slow them down, and lead them around as the wolf is led around in the Peter Rabbit bedtime stories by smart old granny fox. It is not that.

Section 35 is opening a door that has been shut for a long time but has been in our demographic structure for a long time. It confuses me, and I think probably others, when we approach the exercise of this liberated right. It is not a new right; it is a liberated right. When we do that, we tend to bring our paraphernalia with us, because it has got us through the past. That is not the right way to do it. Here we have to sit down and give the new body such muscle, nerves and bloodstreams as is necessary to make it survive as a governmental unit.

As well, survival is not good enough. It has to succeed competitively as a governmental unit. The populations are at different levels of materialistic demands, but the goals are the same: a higher standard of living, security in employment, peace at home, peace on the streets. That is civilization, and that cannot be achieved with a rolling-stone Constitution.

You need an anchor in the Constitution, and that anchor is that you can do what you want as to having a third order of government. Incidentally, for me that is a self-illusory term. It is not necessarily a third order of government any more than carving out Saskatchewan was creating a third order of government. Some people say we did not create a government at all. You find a lot of value in Saskatchewan because it illustrates everything and it is simple. It is like looking through a pane of good glass.

When it was carved out in 1905, sections 91 and 92 were there. Saskatchewan inherited the powers of section 92 and the limitations of section 91. A statute came with it that modified some things temporarily on a timetable, but it did not subtract anything. All of section 91 is there. The burden of section 91 is there, including the right to Parliament, the right to vote and everything else. All of those things are almost biblical. It is embedded in us that we must all have the right to vote, and anything that discounts that value or blocks it is, amongst everything else, unconstitutional. If third order of government means you create an element of civilization that is new, you have to clothe it with power, but if you do it under the Constitution, you must obey the Constitution.

I will not descend into the minutia. The room is full of people who have forgotten more about this document than I know. However, I am clear on the fundamentals, and that is that we have to carve this thing out and set it up under the existing paraphernalia or get an amendment. There is nothing wrong with having to get an amendment. It is not meant to slow things down and it should not slow things down. In the long run, it pays off like a savings account. If you deposit things in it, it accumulates.

So no, I think that we have got all we need in here, and about three-quarters of what is in that agreement are things that attract friction and burden and expense and make it difficult for the Nisga'a. I think simplicity is a way of life. You are not in the courts long before you realize simplicity is a road to survival. You cannot think if you get off the simple track. Maybe Einstein could, but I doubt that. He got E=MC2 into one paragraph. We cannot put anything in one paragraph in our court system. We have to go back to first principles.

The Chairman: Thank you very much for your question and for your answer. We will turn to Senator Andreychuk, who is a native of Saskatchewan.

Senator Andreychuk: Thank you for bringing us back to the simple message and also for reminding us that your roots were in Saskatchewan. Coming from Saskatchewan, I guess I need a simple answer. Professors have come and said to us that section 91 and section 92 are not 100 per cent of governmental power. When our Constitution was created -- I think this is where Professor Ryder was going -- there were these other powers because the other nations were there. Somehow they have been dormant, and now section 35 resurrects them.

I want to make it very simple. We have an act before us. We have a parliamentary responsibility to determine, I think in this sense, whether it is constitutional. Whether it is a practical arrangement and whether it could have been done differently are questions that we can ponder at a later point. In our system, the executive has the right to negotiate treaties, but it is our parliamentary responsibility, in my opinion, to ensure that that piece of legislation does not violate any fundamental principles and that in fact it meets the constitutionality test.

I do not know whether you are prepared to answer me or not. Do you find this bill constitutional? If not, our conundrum is that we unravel an agreement between three parties if we interfere at this point. We have been told strongly by the federal government that we cannot do so. It would be our right to amend the bill, if we wanted, but in essence we would be collapsing the entire agreement, which was executive authority, because treaty- making powers are not within our purview.

Mr. Estey: That is a mouthful to answer. I pondered that. I was a professor at one time in Saskatchewan for one year. I remember a student got up and asked me, "What about that Saskatchewan Act? Does that give us complete run of government?" That is essentially what you are you are talking about. The 1905 act does not seem to be a God-given power to get airborne here and erect a new community in the world and a profitable province. The only thing I could think of telling that young fellow, who was a smart kid and who went on to become a great lawyer, was this: All I know is that when I look out the window and I see the horizon 8,000 miles away and not a tree in sight, I think that, if it is God given, why does God not come back and finish the job? I think that is my answer now.

I do not know that we need to solve that riddle that you pose. The executive branch of government is the servant and semi-master of the legislative branch, without which neither one can function fully. It is not unlike an atomic reaction. You need the two electrodes and things moving around to generate the heat we need. That is the same here.

You have a duty. I thought pretty hard about this before coming here. The Senate has a senior duty to perform. It has to perfect the process of legislation. That duty must clearly entail, on occasion, an amendment or a refusal or an automatic approval. All three are within your power. Not only are they within your power, they are within your duty. You have to scrutinize this thing and see what is good and bad and purify it. That is why you are here. The second house invariably around the world is set up as a brake on the first level of legislation, but the executive branch tags along all the way up the ladder.

In the United States, the executive branch there is much more active. If they wish to interrupt the process of Congress, they do it. We do not have that separation of powers. Many people say, "Thank God," and I am probably one of them. Our system is not simple, but it probably is a lot easier to live with than the presidential system.

You have to listen to the executive when it presents a statute, but you are not bound. You are probably bound to think about it, but that is an untraceable performance. Here, you have those three choices, and your conscience will have to guide you as to where you come in.

Certainly, one of the driving factors, I recognize, and I think everyone does, is that the Nisga'a waited a long time to get here. They did not come here just this morning. I read the submission from 1913 when they were here trying to obtain justice. I thought twice about saying we should have another delay. We have all suffered this other delay business. Anyone who has dealt with National Revenue knows how long that takes.

I do not know the answer to your question, but my strong feeling is that the Senate should simply bear down, exercise its conscientious duty, and pass, amend and send back the bill. Do what you have to do to achieve justice and do it on time. We waste so much time now, but I do not think it will be wasted here.

I think that the Surface Transportation Board issue is a waste of time. A railroad is a railroad. You cannot make it very complicated. A year and a half is appalling. I am not proposing that. We do not take a year and a half to do that in Canada, and perhaps that is why we survive.

Senator Andreychuk: You said that time is the issue and I agree. You seem to be saying that a reference is not your first choice. You said that the parties should proceed to court and the court should act expeditiously.

I am a touch more cynical. Having watched the process, particularly on aboriginal cases, I know that is simply not happening. I have no idea why. Everyone says it is the other guy's fault, but I have great hesitation in putting my faith into a timely resolution through the courts. I have great faith in achieving a good resolution in the end, but not a timely one. Where does your optimism that it can be expeditiously handled by the existing cases come from?

Mr. Estey: I have the same struggle as you. I was a bencher of the law society in Toronto for some years and we struggled with how to speed up the courts. We brag about our past; we solved that. Today it is worse than ever. It is the bar's fault, and the judges' fault. They lose control of the trial.

In B.C. they have a "rule 34". There is a similar rule in Ontario. It allows you to extract from a complicated record, an issue that you must have answered, and you can have it answered first. There is a lot of verbiage behind it, but that is all there is to it. You go there with no witnesses and no evidence, except affidavits, and it does not take very long. I prefer that partly because I am a denizen of that jungle, and I profited by that experience.

The reference is a tricky thing. First, the executive government has to be aroused to the need, and then you have to define what the reference consists of -- what is in it and not in it. The lawyers abuse a reference terribly because their clients sit at the back of the hall and cannot bother them. They say, that is going to have to do. I would not turn down a chance of a reference, I just prefer the thing I am accustomed to.

Senator St. Germain: From your experience, sir, as a chief justice, do you believe that it makes a difference in the eyes of the court, or puts undue pressure on them, if they are dealing with a reference -- I believe you said section 84 -- rather than a piece of ratified legislation, in trying to arrive at a decision on an issue like this?

Mr. Estey: I do not know the full answer to that. It was different in the different places we sat. I found that the strength of the reference is that the lawyer does have an informal avenue to help round out its terms. That is a big improvement. An experienced lawyer can push pretty hard to get the thing expanded or contracted.

The downside is that it takes for ever to get people in this city moving on a problem somewhere else. The reference gets delayed and kicked around and all the members of staff have input. It gets complicated.

To answer your question, I do not think that the presence or absence of an articulated piece of legislation is very influential in the amount of attention you receive. I think the issue attracts the attention. If you have a good issue, as with our banking industry, it is attended to. If the issue is some environmental cause, for example, a 50-year damage proposition or a smokestack that is 800 feet high and cannot be taken down anyway, it will drag on, no question about it. International questions drag on. I think that railroad example could go on for ever. However, I do not think that this would fall into that evil category. The lawyers are closer to the provincial courts than they are to the animal in Ottawa, the Supreme Court. You can push the registrar to get the thing tried. You can pick your judges, and all judges are not the same. It is like athletes at the Olympics. You time them to see how fast they are. It does not matter a lot, but I would prefer, if I had my choice, to take what we have and get on with it.

The Chairman: We have Senators Grafstein, Joyal and Sparrow.

Senator Grafstein: I am glad you reminded us once again of our constitutional duties. As I see them, our constitutional duties in the Senate are very simple.

First, we must decide if legislation is constitutional or not. You are providing us with an escape clause, but I am not sure we can take it. It might be neat, but we have a primary responsibility to decide whether or not legislation that comes from the other place, that popular place, is consistent with the Constitution. Second, we must represent, as best we can, regional interests and minority rights within that.

We had a very interesting exposé by two professors at Osgoode Hall last night that reminded me of the first question I was asked when I applied to law school at age 19. It was: "Grafstein, do you know the difference between what the law is and what the law should be?" Nobody had ever put that question to me before, and that still reverberates today.

I first have to decide what the law is, and then hope to perhaps persuade people what it should be. However, we are here today to decide what the law is. I say that by way of a preliminary, because you very kindly and very succinctly summed up our constitutional responsibilities, about which some people neglect to remind themselves.

Let me turn to the two subjects that concern me. You are clear on one of them. Paragraph 15 of your brief deals with the question of powers, and whether or not we can evolve self- government or devolution of powers from the federal government beyond its reach -- in effect, not a delegation, but a transfer. I just want to read this to see if it sums up your position. This is paragraph 15 of your brief.

From the foregoing it is clear that the Agreement provides for the transfer from the governments of Canada and British Columbia to the Nisga'a nation very significant sovereign powers presently possessed by Canada and British Columbia in accordance with the Constitution of Canada. This transfer is by itself unconstitutional;

I do not want to debate that. However, I want the committee to clearly understand that that is your view. If it is, I will leave that alone and deal with a more delicate matter on which I also want your views.

We have heard conflicting opinions. We heard Professor Sanders from British Columbia say that once we constitutionalized these rights in 1982, the old idea of a simple division of authority between the two levels of government was gone. In other words, he says that section 35 complicated the simplistic position. Please give me your view of paragraph 15 and of the position of Professor Sanders.

I am intrigued by what we have heard from two of the nations represented here. We heard it from the Nisga'a earlier, and now we have heard it from the witness today from the Gitanyow. I asked them, and I also asked Chief Fontaine of the Assembly of First Nations, this very simple question: "Do you believe in minority rights as it affects the lands and the governance that you will be granted by this legislation"? The answer was, "Well, sort of." Last night we heard "sort of." The Nisga'a call themselves Nisga'a "citizens" in the agreement. I asked them: "What about the right to vote for non-Nisga'a on Nisga'a lands"? I was told, "Not quite, but they will have the right to be heard and participate, sort of."

There are two fundamental issues here that are quite simplistic. First, can the government fetter its discretion this way by delegating these sovereign powers under this treaty without a constitutional amendment? Second, within that context, does the Nisga'a nation, or any aboriginal nation or group, have the right to grant "sort of" rights to residents within their lands?

Mr. Estey: I should tell this august audience that Senator Grafstein and I have had more sidewalk debates than any two people in the city of Toronto on most of the issues he raises. I had the unhappy experience of being in competition with him once. Since then, I have adopted that old saying, "If you can't lick 'em, join 'em." The competition is furious.

Those are wonderful questions. That is why constitutional law is a great subject of study. My own feeling -- and I was not able to sell it to a majority of the Supreme Court on one occasion -- is that section 35 does not disturb the bedrock position of our country. Sections 91 and 92 are Precambrian rock, Canadian style. You cannot have a successful country and shift the basement like that.

With all due respect, I learned a lot more after I became a practitioner than I did as a professor and the scars are there to prove it. I strongly believe, Senator Grafstein, that we must conform to the Constitution until we can demonstrate a need for change. We went through a need for change in my time as a student during the Depression, which paralyzed Eastern Canada and rubbed out Western Canada. My father was the attorney general of the province at that time and I remember listening in on Sunday afternoon meetings in his den. The big issue usually was: "Do you think the Bank of Montreal will lend us enough money by Tuesday to pay Friday's salary?" They were talking about the University of Saskatchewan. We got through that Depression with the support of the other provinces. Western Canada, and even Alberta, would have gone down the tube without the support of everyone east of Winnipeg. That taught me a lesson I never forgot: If we weaken the accord that is represented by Confederation, we weaken everyone's life. There is no question about it.

We are not now isolated. When we bring in the Nisga'a, you must think hard about bringing them into a circus instead of a peaceful climate of political progress. They can make all the changes they need once they are included. If there is something fundamental involved, you should amend the agreement before you. There is no question about that. It is not a deferral-sensitive item to get into the game and learn the rules, not from the penalty box, but from centre ice. I find that question easy to answer.

I cannot answer your other question and I do not think anyone can. There is a mysticism about political union that is not unlike chemical union. When the radical meets the positive, and the H2SO4 combine, the result is a molecule much more dangerous and less to be fooled with than either ingredient. That is what happens if you put someone into a constitutional framework into which they do not fit. A shoe horn will not help. It may get you into a tighter spot than you want.

I am an optimist on this. I think we can live and prosper with section 35 and prosper more quickly if it is implemented within the framework of the Constitution, subject to amendment where the circumstances shout for it. It must be a loud shout.

Senator Joyal: I was involved in the implementation of section 35, in the drafting of the Charter of Rights, and related articles of the Constitution in 1982. There was no doubt in our minds at that time, 18 years ago, that the issue of land claims was outstanding. In other words, we knew that we were entrenching an objective for which borders were not defined and that they would be defined through time. I have always stood by that objective.

What you have said to us this morning is somewhat helpful. I will take into account some of the concepts that you defined for us this morning. You talked about something that would not be a nation state, not akin to a province, but certainly not a municipality. You referred to domestic powers within sections 91 and 92. In other words, we must define the attributes of nation states that are included in sections 91 and 92 and, fundamentally, the concept of citizenship, because there cannot be different definitions of "citizenship" if we are one country. This is very fundamental to the definition of the parameters of what is included in section 35. You will understand that what we do here with this bill will have an impact on all the other land claims negotiations, because it will be seen as a further step toward understanding the implication for land claims under section 35(3) of the Constitution.

I would like to try explore further your statement about what is not akin to a province and a nation state, whereby, in the definition of "self-government" included in land claims, we have a better understanding of what we are doing in accepting the bill as is. On the other hand, you have stated in your paragraph 15 that the transfer of power between sections 91 and 92, provincial and federal, is, "by itself, unconstitutional." You referred to the 1983 case of McEvoy v Attorney General of Canada. That is a pretty strong statement on the nature of the bill. As my colleagues have said, one of our major roles in the Senate is to ensure that we are abiding by the Constitution, by the Charter of Rights. Some people thought that the Charter of Rights did not totally apply in the land claim. I remember stating in 1991 that the Charter of Rights was for general application all over Canada, whatever your background -- First Nation or, as you said, World War I, World War II, 17th century, 18th century, 1,000 years ago. We live on this land, as Justice Lamer said. We are here to stay and we share some fundamental rights as individuals in this country. If you are telling us this morning that the transfer of powers between sections 91 and 92 to the new Nisga'a authority is unconstitutional, I will have to wrestle with how I will vote on this bill very soon, or later on, when it comes back to the Senate.

To me, that debate is fundamental, because this bill, as I mentioned to you, is a further step in defining the overall implications for all the other tribes and land claim settlements in Canada. If we do it right in this bill, we are doing it right for other negotiations and settlements with other tribes that have pending land claims. As you know, there are many, and there will be many more to come, especially on the basis of the way we settle the Nisga'a issue.

The Chairman: I think you are finished.

Senator Joyal: Yes.

The Chairman: It is another challenge for you, Mr. Estey.

Mr. Estey: I wish we had unlimited time to answer that textbook question. That is a good one.

I do not have the answer but I can get close to it.

First, the nation state on our planet is dying. Germany, the most powerful nation state we had after the United States, almost ceases to be one. Why is that?

Second, the federal system is under attack everywhere but in the United States. The United States has a magic formula. They can live with it and make a fortune out of it.

It is more difficult in Canada than in the U.S. because, first, we are spread out. We are a long string of pearls and there is not much in common between Cape Breton and Esquimalt. They do not meet, they do not talk, and it is difficult to govern. Therefore, political balance is essential to Canada's survival. It is not essential to the survival of the compact United States, or the United Kingdom, where they can work it out. You cannot here. You operate by long-distance telephone.

Second, I do not believe the nation state is the answer to the problem of the Nisga'a. They do not have a long spectrum of human activity within their population. They are not big enough, and the natural resources they are staking out are not varied enough.

That does not mean they cannot go independently and survive. They can. It would be difficult, because you could not emulate Denmark. You have everyone around you; you are sealed and you cannot engage in international trade unless you transgress over Canada. I do not think that is the answer.

That drives us back to federalism. It will not work for the Nisga'a people unless they get all the powers under sections 91 and 92 and a lot of executive assistance from the whole panoply of federal power and federal taxation.

The first time I ploughed my way through this elaborate agreement, I could not help laughing, going back in my memory to the times I sued the Municipality of Metropolitan Toronto, or defended them -- I did both. The apparatus described in those two operations -- one was the old city and one was the new Metro -- was far less complicated than what is appended to this agreement. You do not get four pages into it before you start thinking, who is going to pay for all this?

It is a huge shot in the arm for the law profession. The litigation will be endless, overlapping, duplicative, expensive, and time-consuming.

You are right. Whatever you do now is put into a printing press and rolls around and prints out at a rate of 47 a minute down the road. The question is, how far can we take this without wrecking the whole Constitution? That brings me back to your core question.

The fault, if there is a fault, in the agreement is that it is neither fish nor fowl. You get into the paramount/not paramount issue, which is totally digressive and friction-creating kind of talk -- again, good for the litigious lawyer. There is going to be a lot of litigation because there is a compulsory arbitration clause in there.

You have to remember arbitration is only good for A versus B. C can sit on the curb and laugh and not be bound by it. Third party issues do not get stamped out. You have to arbitrate three times to catch everyone. It is not the answer.

The answer is to set up a smooth, simple member of a federal nation, an equal member. If they are short of money now, they have to be sustained by the rest, the same way the prairie provinces were sustained.

Alberta now is a great donor. In my lifetime, Alberta was a basket case economically and we looked down our noses at them.

The answer is federalism, but there has to be some stimulus to help groups coming in through section 35 by definition, almost axiomatically. Nobody quarrels with that, that I have heard. Thank God for that.

Therefore, the question is, how much do you have to bend things to bring in a workable state? The less you bend it the better, but if, in the fullness of time, the students of this whole thing decide this has to be amended, let us get on with it.

My own semi-educated knowledge of this thing, municipal law, is that if you went through that complex schedule to chapter 11 and combed out all the superfluities in it, then you would be on the road to success. You will not get there if you allow it to be encrusted even before it is born with all manner of expensive, time-consuming gadgetry appended to a simple form of government in a confined area for a confined population.

Yet, a population needs economic support, and that should be further facilitated in the agreement. You have to read it very carefully to see where the support is going to come from, and when and how much.

It is not up to us to decide whether it is a good or bad deal. We are not going to do that. We are all for you going ahead with your responsibility, and we confirm it, but as citizens of Canada, it is our view that everyone, Nisga'a included, is better served if we do not introduce something that is going to be challenged successfully.

No one is going to thank us for allowing this to go down the road, with money spent organizing this, that and the other institution, if the whole thing collapses because of a court order. That is why I think you should get there by the fastest route.

The Chairman: That was a very good summing up of your position. Thank you again for appearing. We are happy to have had your contribution here today.

I am going to call now on Dave Merz, Chair of the aboriginal affairs committee and treaty negotiator for the B.C. Cattlemen's Association. He will be followed by Jack Ebbels, the Deputy Minister of Energy, Mines and Resources for the Government of British Columbia.

Mr. Merz, we recognize that you have been involved in treaty negotiations and the treaty process in British Columbia for a long time. Perhaps you could give us the background to that experience.

Mr. Dave Merz, Member of the Regional Advisory Committee, B.C. Cattlemen's Association: I am past president of the British Columbia Cattlemen's Association and I am currently chairman of the aboriginal affairs committee.

I have also participated in the Northern Interior Regional Advisory Committee, providing federal and provincial treaty negotiators with advice for the past four years.

I am a rancher. My wife and I have operated a ranch west of Prince George for 35 years. We are surrounded on all sides by aboriginal people and the reservation system as we now know it. We have some knowledge of what is going on and how things are working out.

On behalf of the cattlemen of B.C., I thank you for the opportunity to appear before you today. I believe you have a copy of our brief concerning Bill C-9.

What I would like to do in my presentation this morning is touch on some of the highlights in that brief and leave some time for questions.

Let me begin with an introduction to the B.C. Cattlemen's Association. In the 150 years since the Gold Rush days, beef cattle production in British Columbia has grown to become an important part of agriculture in the province. The cow-calf sector is the mainstay of the industry. In 1998, an estimated 322,000 head of cattle and calves were sold, worth $252 million, that were raised on 1,900 ranches. The B.C. Cattlemen's Association has been the official voice of ranchers throughout British Columbia since 1929.

Most of the deeded land owned by ranchers is used for the production of forage to sustain their herds over the winter months. Ranchers in the interior regions of the province are totally dependent on assured access to Crown lands for spring, summer and fall grazing. Security of the tenures, which are leases, licences and permits, over those lands is critical to the continuing viability of the industry. Access to water for livestock and crop production is equally important.

Ranchers have a unique perspective on aboriginal claims and treaty negotiations, since many ranches are located adjacent to Indian reserves. Indian people are friends and neighbours and are often actively involved in cattle ranching. We do not dispute the legal, social and economic reasons for treaty-making in British Columbia. We hope to see treaties negotiated that will make Indian people better off, both economically and socially, and which will leave us in business, living and working harmoniously with all our neighbours. The settlement of treaties without displacement of aboriginal people is the objective of livestock producers, one we share with other resource users and rural British Columbians.

Turning to the Nisga'a Final Agreement, you may ask why the B.C. Cattlemen's Association should care about it and Bill C-9. It is easy to say the Nisga'a Final Agreement includes few members of the B.C. Cattlemen's Association within its scope. It was also negotiated outside the B.C. Treaty Commission process.

The B.C. Cattlemen's Association has three general concerns about the Nisga'a Final Agreement. Our first concern is that there is confusion about what the agreement really means.

As was mentioned several times this morning, at least in part, the agreement becomes a template or a model for future treaty settlements. As I sit on the advisory committee to the treaty negotiators, we are continually referring back to the Nisga'a agreement, and so we see this as a template. The agreement establishes a precedent for settlements, as no other group will want to accept comparatively less than what has been negotiated with the Nisga'a. Therefore we must look at the implications of the Nisga'a Final Agreement for other treaty settlements.

I will comment first on resource issues raised by the agreement, and then on the broader social issues on which all Canadians should state their views.

The Nass Valley has forest resources, but little, if any, range resource. Range tenures -- where we run our cattle in the summertime, spring, and fall -- are much like forest tenures. We look at how forest tenure holders are treated in the Nisga'a treaty as an example of what to expect from settlements elsewhere in the province. Some 1,930 square kilometres of provincial Crown land subject to forest tenure will become Nisga'a land. That represents approximately 250 acres per Nisga'a citizen. If settlements of similar magnitude are made in the British Columbia interior, there is no question that ranch families will be seriously affected. Think of the Nisga'a settlement in terms of city blocks rather than acres and contemplate that impact.

Treaty negotiators, native people, and the general public often think of Crown land with no buildings on it as available for treaty settlement. In fact, Crown land in the interior is not vacant. Through a series of overlapping Crown tenures, it is as developed for resource use as city blocks are for residential use.

Land subject to agricultural lease and woodlot licences will be excluded from Nisga'a lands. Since these tenures will be interspersed throughout Nisga'a lands, access provisions of the treaty are of fundamental importance. No single issue has created more ill will towards Indian people in British Columbia than difficulties with access.

The Nisga'a Final Agreement relies on the existence of a substantial volume of unlicensed water. This water is reserved for the Nisga'a, who can then apply for water licences. In much of the rest of British Columbia, water bodies are fully recorded and have no excess capacity. This element of the Nisga'a agreement will not be transferable to regions of the province where water is scarce, and we hope that the negotiators will realize this. Water for livestock and irrigation is the life blood of every ranch family, whether the operation is large or small.

The agreement describes treaty rights off settlement land, primarily dealing with wildlife harvesting. As a rule, the B.C. Cattlemen's Association believes treaty rights off settlement land should be very limited. Such rights will not contribute to certainty over the use of land and resources. Treaty rights have constitutional status, while other rights to use of land and resources do not. This unequal status makes resolution and accommodation between conflicting or competing treaty rights and other rights to the use of the land and resources complicated, if not impossible.

From a resource user's perspective, a major flaw of the Nisga'a negotiations is the fact that compensation for displaced third party interests was not addressed up front. We understand that the Government of Canada will provide B.C. with a contribution of $3 million in 1993 dollars to assist those who may be negatively impacted by the Nisga'a treaty. Canada and B.C. will share the cost of purchasing third party interests, estimated to be $30 million. We believe these figures greatly underestimate the value of lands and resources and subsequent third party compensation.

I will now comment on some of the broader social issues. Although the B.C. Cattlemen's Association rejects an inherent right to self-government, we do accept that native people in British Columbia should be able to govern as many of their affairs as possible in ways that are chosen by themselves and which mesh easily with non-native government. The Nisga'a must be responsible not only to their people, but also to other Canadians, for the results that they achieve. We do not see the issue of accountability adequately addressed in the final agreement. It is our observation that financial accountability may be even more important than additional lands and resources in furthering the progress of our aboriginal communities.

One of the most confusing aspects of the Nisga'a Final Agreement for us is its relationship to the Canadian Constitution. Does it create a third order of government without amending the Constitution? The agreement must not become part of the Constitution and therefore impossible to amend. Challenges to past treaties show that circumstances change and that all possibilities cannot be anticipated when a treaty is negotiated.

Throughout the Nisga'a Final Agreement, there are statements about whether or not provincial or federal laws on a particular subject apply on Nisga'a lands and which order of government overrides the other. The agreement is said to supersede federal and provincial powers in 14 areas in the event of an inconsistency or conflict, even if only in matters internal to the Nisga'a people. This precedent is unsettling. The result is jurisdictional complexity and confusion that we believe will make provision of services exceedingly difficult.

We have qualms about the economic suitability of the level of government proposed by the Nisga'a. It was mentioned here that there would be 5,700 people involved.

I sit on an RAC where some of the nations that are under discussion for treaty settlement have under 500 members. When those are settled, how will this come forward? We do not believe that Nisga'a government should be the mainstay of the Nisga'a economy, nor should this be the case with any other treaty settlement.

Although the final agreement states an objective of phasing out reliance on transfer payments over time, the fiduciary duty of Canada remains. What is to prevent modern-day treaties from becoming open-ended financial commitments on behalf of the Canadian taxpayer?

We are alarmed at the growing separation between native communities and the larger non-native society around them. In the Nisga'a treaty, there will be a separate fishery, separate school system, separate post-secondary education, separate health care, separate justice system, separate government administration, and so on. We accept the need of Indian people to maintain their culture and traditions and we accept that some separation is needed for that purpose. We do not accept that there must be a separate system for every activity. That is not the direction Canadian society should take.

The negotiation of the Nisga'a Final Agreement is a remarkable achievement and we hope it truly represents a final settlement of Nisga'a claims. We are apprehensive about moving away from the language of "cede, release and surrender" used in historic treaties and recognized by the Supreme Court. We hope the certainty provisions found in the Nisga'a Final Agreement are proven effective when tested over time.

Let me now outline the B.C. Cattlemen's Association's views on how aboriginal claims and treaties should be approached. Our members are very fearful about the outcome of treaty negotiations. Many of these fears stem from the failure of governments to communicate a clear vision of post-treaty British Columbia that all residents can understand and support. We do not know what the province will look like when it is broken up into these small states, and I do not think the federal or the provincial government knows either.

The courts appear to have a clear vision. Ranchers do not know how or where they will fit in or how their needs will be met. There is no vision to guide negotiations. The courts appear to have a clearer vision of a post-treaty reality than do our political leaders. This does not reassure our members as we attempt to cope with and resolve the current uncertainty. A vision for post-treaty British Columbia must include a means to achieve certainty of jurisdiction and ownership and finality to claims of aboriginal rights and title that are acceptable to all residents.

Our members continue to believe that aboriginal claims should be settled primarily with cash. Some have been offended by this position, but we believe there are sound reasons behind this approach. First, money allows aboriginal people the freedom to enter the mainstream economy through the same channels as everyone else. They may purchase any number of land- and resource-based interests. We believe strongly that inclusion in the economy should be through existing, not new and unique, methods.

Second, it must be recognized that sustainable, environmentally friendly resource development cannot occur without adequate capital. Many interior Indian reserves already have a significant land base. Additional land and resources may result in land-rich, cash-poor rural ghettos. Without capital and the skills to effectively utilize resources in the modern economy, aboriginal people will not be better off.

Third, cash provides for economic opportunities that are not necessarily tied to treaty settlement land. We are concerned that many of the areas where Indian people now live will not provide a decent living for the number of families involved, no matter how many local resource-based businesses are transferred. I look at some of the isolated areas where settlements are to be completed. I can see no way that they can become economically viable in those areas.

We continue to see education and development of off-reserve opportunities as the primary way in which Indian people will become economically more advantaged. The last reason we believe in cash settlements is it provides for equal distribution amongst all Canadians. The current land selection model used for the B.C. treaty negotiations places an undue burden on rural British Columbians and on those who rely on land and resources for their livelihoods.

I want to mention right now that I am approaching the age of retirement. When it comes time to sell my ranch, I know this will have a very large impact on its value.

It is not certain that this large-scale reallocation of land and resources will meet the needs of the aboriginal people. What is certain is that user groups such as the B.C. Cattlemen's Association members may lose their livelihoods and will bear a disproportionate share of the cost to resolve land claims relative to Canadian society as a whole.

This is not an equitable way to achieve a societal goal. In order for treaties to gain the acceptance of British Columbian society, it will be necessary for the issue of compensation to be dealt with openly before entering into treaties. Canada has a cost-sharing agreement with B.C. for third party compensation. This is of no comfort if the basis for compensation does not exist. Governments must establish a fair and timely compensation policy for affected third parties.

The B.C. Cattlemen's Association supports the B.C. Treaty Commission's process as one that native people and provincial and federal governments have accepted. However, we would like to see it replaced with a simpler procedure. To the extent that there is legitimacy in referring to an aboriginal group as a nation, we think treaties should be negotiated with recognized aboriginal nations. We see groups breaking away from established aboriginal nations so that they can carry out their own negotiations. I could name them, but I will not. It will create great costs to society to set up these different groups.

Self-identification of a first nation under the B.C. treaty process has no legal basis and may not stand up in court. It creates many inefficient, overlapping sets of treaty negotiations. Perhaps the process could be shortened by having governments outline the overall financial resources that are attributed to each negotiating entity and have them decide how these resources will be used.

The negotiating group could then decide on the amount it wants to use for negotiation costs, self-government costs, and compensation for displaced third parties.

We believe treaties should include only "for ever" stuff, the principles that will govern and shape the new relationship. This complex and detailed agreement about implementation, on which we are working right now, should be contained in renewable implementation agreements to allow for evolution in the working relationship between federal/provincial governments and the governments of the native people.

Ottawa must acknowledge the need for broad public support for treaties and seek out ways to secure it. In the case of the Nisga'a, provincial governments passed the treaty because, "It is the right thing to do."

This may be so, but those same governments -- neither elected by a majority of voters in British Columbia -- also have a duty to address the concerns of other British Columbians, and they have failed in this regard. Approximately 30 per cent of our aboriginal neighbours are not participating in the comprehensive B.C. Treaty Commission process.

On an ongoing, daily basis, our members are affected by specific claims and other Department of Indian and Northern Affairs policies, such as the addition to the reserve policy. One of my cohorts was here recently to talk about the tremendous impact that this is having on ranchers and citizens who live in those areas.

These policies involve negotiations over not only the Crown land base upon which our members rely, but often also fee simple holdings. Early involvement of the ranching community in discussions regarding the land base is therefore essential.

Lastly, we wonder if carefully crafted federal legislation could help define the nature and scope of aboriginal rights and title. The Supreme Court of Canada has clearly stated that the federal government has the authority to regulate aboriginal rights. We believe that there is an opportunity to complement negotiation processes with legislation and regulation.

In conclusion, British Columbia ranch families hope to see treaties concluded with aboriginal people that advance their interests in ways acceptable to non-aboriginal people.

Perhaps more than others, ranchers can appreciate the connection of aboriginal people with the land. It is something that we share. However, we firmly believe that a reallocation of land and resources is a simplistic solution to the plight of B.C.'s Indian people, and that to do so without compensating those who now have rights to them is profoundly wrong.

It is our sincere desire that the outcome of treaty negotiations will be a strengthening of rural British Columbia. This strength will come from finding a balance between aboriginal and non-aboriginal interests, and from finding a balance between recognizing differences and providing equal opportunities.

We hope to once again live in communities where a spirit of acceptance, cooperation, and friendship can prevail. Our comments regarding Bill C-9 are intended to direct governments towards this objective. We do not expect the Senate to prevent the implementation of the Nisga'a Final Agreement. We do hope that you will hear our concerns and that the information we provide will serve as background and knowledge to aid your future deliberations.

It has been very frustrating for third parties in British Columbia to express their views, especially those with interest in land and resources. Governments have a "we know what is best" attitude. Critics label us as racists, and aboriginal people often perceive our intent as an attempt to thwart their interest in land. In fact, our interest is simply to be treated fairly by our government and our neighbours.

The Chairman: Thank you, Mr. Merz. You have certainly given a strong brief on behalf of your association.

Senator Rompkey: I have just a brief contextual question first. On page 1 of the text from the BCCA, you refer to no displacement of non-aboriginal people, but in your remarks I think you said "aboriginal people". I assume you meant to say non-aboriginal?

Mr. Merz: Yes.

Senator Rompkey: You questioned self-government, and also the control of schools and other institutions. How can a first nation preserve its culture without the control of schools? I would think that that would be a key institution for preserving culture. It seems to me that there is a pattern for that across the country.

As a matter of fact, in my own Province of Newfoundland, although we are moving slowly in terms of settlement, that was the first order of business with regard to the Innu. The government moved to jurisdiction by the Innu over schools and other local institutions such as health care. How do you preserve your culture unless you have control over those institutions?

Mr. Merz: I look at our area. I live west of Prince George. There are schools being set up on the reserves that do work very well. As the students get older, they are working into the public school system. They have people sitting on the school board who help work the language and customs into the public school system so they are available for those coming from the reserves. I think that it is important that these people understand how the country operates and how things are carried out, but still be able to carry on their own traditions. I cannot see them becoming totally isolated.

Senator Rompkey: There must be some middle ground between total isolation and assimilation.

You also said that we do not know what the future is going to look like. Can it look any worse than the past? We know what the past looks like. We know that there is a much higher rate of incarceration for aboriginal people than for the general population. We know that there is a much greater rate of alcoholism. We know that there is a greater rate of family difficulty. Those facts are as a result of isolation and the inability to control their own lives or future. We may not know what the future looks like, but we clearly know what the past looks like. Can the future look any worse than the past?

Mr. Merz: I guess that comment was directed more towards the non-aboriginal people, such as the ranching community in Williams Lake, and my area, where range land is currently being used. We know that this is going to be under direct competition when the claims are being settled. What is our industry going to look like? That is my concern. Where are we headed? Are we going to lose a little portion of our range year by year? Are we going to lose all of our range?

That has a direct impact on the viability of ranching operations throughout the Province of British Columbia. What happens to us? Where are we going? We have had meetings to try to discuss this with negotiators, and they say they do not know. They have not talked about it yet. We know that the negotiations are being carried out in these different areas, including my own, and I do not know what is going to happen.

We are looking more at the non-aboriginal aspect when we say this. What about the people in Vancouver, how do they see the province looking? What is going to happen with the claim on Stanley Park? What is going to happen to these different areas? There is a research station in Prince George currently owned by the federal government. I understand that that is one of the places that is up for negotiation. What will it look like? What is going to happen?

Senator Chalifoux: I must compliment the Nisga'a on their negotiating skills, because when my ancestors negotiated land they only got 160 acres, and the Crees only got 140.

The amount of land that they have negotiated is smaller in area than some of the ranches in B.C.

I do not know whether you were aware of that or not. It is interesting that you are worried about your land when the area of land that they have negotiated is smaller than the Douglas Ranch, for instance. I would like your comment on that.

In "A Separate Nation", on page 6, you state that in the Nisga'a treaty there will be a separate fishery, and separate school, post-secondary education, and health care systems. It is interesting that other reserves across Canada have separate health care systems under the Indian Act. They have separate school systems on the reserves, and I find that students are beginning to learn the culture. We are the most discriminated against people in Canada and that has been verified in studies. I cannot understand your position on those areas. Many years ago, our ancestors helped your ancestors survive. They worked together as human beings. The aboriginal people taught the newcomers about the hardships of life in this country and how to survive.

Do you communicate with your neighbours? Do you have meetings with them? The Nisga'a have attempted to meet and negotiate. We heard from the people who work within the Nisga'a lands that they are happy and satisfied with the relationship that they have developed with their neighbours. I would like your comment on that.

You have stated that native people have withstood cultural integration. I do not believe that, Mr. Merz. When the history of our people, and what has happened throughout the centuries, is examined, it is only with a great instinct for survival that we have been able to retain even a small amount of our culture. It is coming back now. There again, as Canadian citizens, we must look to our neighbours.

The last item that I will put forward concerns the cash. You suggest that no land should be exchanged, just cash. Our people have never been cash wealthy. That is evident on some of our reserves in Alberta, where the suicide rate is 10 times greater than elsewhere in Canada. I would like your comments on the deaths, the terrible suffering, and the repercussions of throwing cash at a person who has never had any. Thank you.

Mr. Merz: The first comment will be on the size of the lands in question. It is unfortunate that you mention Douglas Lake and two or three other ranches, because they are certainly the exception. There are between 1,900 and 2,000 other ranches that are much smaller. In the case of Douglas Lake and some of the others, you are looking not only at deeded land, but land that is used for grazing permits and leases. They do not own that land and they pay by the animal unit for the grazing rights. The land size itself is derived from figures related to the Crown land that is under tenure to a particular ranch. It is a matter of interpretation of ranch size and the perspective taken.

It is important to us because our livelihoods are tied to this grazing land. What will happen during the negotiations if we lose those lands? What will happen to our livelihoods? I understand what will happen if there are land claims on those areas. Our proposal is that they receive cash, buy the land on a fee simple basis, operate the ranch as they choose, buy any other business that they want, and use all of that for their economic viability.

I agree that cultural integration is a problem, and we do not see a solution to it. We do not know how it will work. However, I know that in our area, they have their own health and school systems that are working well and must continue to work well. I do not understand how they will work if they become individual entities. How or from where will they derive revenue from taxes to operate these systems? They have brand new, beautiful schools in our areas that are working, but without that source of revenue, they cannot continue successfully.

I have referred to why we believe that cash is one viable solution. We recognize that when land is taken away in order to enter into an agreement, the rural property owners will bear the brunt of these land claim issues. You are looking at the people who will be involved in that.

We worked very hard to obtain this land. What will the compensation be if someone has to go out of business because of lost grazing rights or leases? No definition has been set up to cover that. Therefore, we are concerned. If I choose to sell my place, who would want to buy my ranch right now, since I utilize Crown range for the development and grazing of my cattle? This is in place through a proper tenure, or lease system, and has been around for years and years in British Columbia. These new suggestions are quite different. Where do we fit?

Senator St. Germain: I have lost grazing rights without being able to defend myself, thus I know what you are talking about and I know what your concerns are.

I am concerned with your simplistic view of the solutions to these native issues in our country. Assimilation has been attempted through the residential schools and in other manners and it has not worked. It has created some of the most horrific situations in our society. I continually hear people saying that we have got to do something for our poor natives. Now we are trying to do something for them, but we have various people in our society suggesting that we should do something but "not this" and "not that" and "not really". You have come up with money as part of the solution. I do not believe that is the answer because you cannot buy back dignity. The Nisga'a, the Gitanyow and the Gitxsan are responsible people. I have taken issue with some of the aspects of the negotiation process and others have questioned the constitutionality of the whole thing. In real terms, it may be the only way we can proceed in order to restore their dignity, because we have destroyed it. When I was a police officer in Vancouver, I worked undercover for seven months. What I saw was a horror story of conditions for our native people, adults and children alike, who were forced there possibly because they did not have a place such as the Nisga'a will develop for themselves. I say to you, sir, in all fairness, I believe your third party involvement in the negotiations is critical.

I believe that you must be at the negotiating table in some way in order that your interests can be dealt with fairly, openly and properly.

However, hearing the cattlemen's association advocating assimilation by way of cash reminds me of residential schools, and this may emanate from my background. I am part native and grew up in Manitoba, where I was told that "half breeds" are thieves. However, I do not think that your recommendations in that area are very constructive. I say that in all sincerity as a landowner and cattle rancher in British Columbia. However, I do think that third party involvement is critical in order that we do not rectify one problem by destroying someone else.

You may comment in response to that, if you desire.

Mr. Merz: Our entire paper deals with not destroying others, being present, and looking after third party interests. Mr. Newton's point was basically the same, although he spoke of a different procedure from that we advocate. He has been totally excluded, as have entire portions of the province. Fortunately, my area falls under the regular negotiating procedure and we have had an opportunity for input, which is critical.

The Chairman: The B.C. Cattlemen's Association has been a long-serving member of the Treaty Negotiation Advisory Committee. You may not have found that to be as satisfactory as you wished, but at least, on a more or less contemporary basis, you know what is going on.

Senator Sibbeston: Mr. Chairman, I wish to make a comment that may offer some hope. I agree with others that cash alone does not solve the problem. I do not agree with Mr. Merz's contention that reallocation of land resources is a simplistic solution. For any group of people to succeed and flourish, they need money, land, resources, and government, and that includes non-natives. As non-native people came to this country, native people were pushed onto reserves, and we are trying to deal with that.

In the Northwest Territories, where I live, through land claims and the involvement of native people in government, people are beginning to flourish. As an example, in the 1970s, when native people in the NWT had no control or involvement in government and no ownership of land or money, they opposed a major pipeline that may have been beneficial to our country. As a result of their opposition, the Berger inquiry eventually suggested a moratorium. Now in the 1990s, after land claims by the native people, they are the ones promoting a pipeline. That is only because they have resources and ownership of land and involvement in government. All of those things have given native people confidence and strength to take part in Canadian society. If the Nisga'a achieve what they are asking for, it will result in them becoming contributing members of Canadian society.

I appreciate that the NWT is not as populous as B.C., and therefore native people may have a better chance of achieving success. Nevertheless, in northern parts of Alberta and B.C., it is still possible for native people to accomplish what native people in the NWT have done.

I say that to give some hope that all of this will not end up in disaster for native people.

Mr. Merz: I appreciate those comments. Our real concern is our livelihood. The biggest reason we are talking of a cash settlement is that perhaps it will keep the pressure off us a little more than it may off someone in Vancouver.

As I stated earlier, when Vancouverites drive by a piece of vacant land, they think that it could be used, but they do not realize that it is under tenure to many people. It is a very serious problem for rural people in British Columbia.

The Chairman: Thank you, Mr. Merz, for your presentation, which evoked much interest. We appreciate hearing your point of view.

Our next witness is Mr. Robert Nault, Minister for Indian Affairs and Northern Development. Mr. Nault is accompanied by Mr. Tom Molloy and Mr. Andrew Beynon.

We thank you for returning, Mr. Minister. We know that you have been following the evidence and the issues that we have been discussing. Rather than preventing you from starting immediately, I would invite you to provide your comments. A number of senators have questions for you. Please proceed.

The Honourable Robert Nault, Minister of Indian and Northern Affairs Canada: It is an honour and a pleasure to be back with my colleagues in the Senate and to speak about Bill C-9, to give effect to the Nisga'a Final Agreement. This being my fourth hour of testimony, I hope I can elaborate a bit on the comments I made in my first appearance.

A number of weeks has passed since we last met, and I understand that you have had the opportunity to hear from a significant number of important witnesses. You have certainly undertaken what I consider to be a thorough examination of the Nisga'a Final Agreement. I think you would agree that the input you have received from stakeholders and others clearly illustrated the needs for the parties to effectively balance all interests in a careful drafting of the agreement. As I stated in my previous submission to this committee, I think we have achieved that necessary balance in the agreement before you. Moreover, I believe that the Nisga'a treaty is in keeping with the values of cooperation, decency and respect for others on which we pride ourselves in this country.

In my return appearance today, I thought it would be worthwhile to address five key issues that have received considerable attention in these many days of hearings. I am sure you are aware, as any committee would be, that my office has been following your deliberations very closely. We are very much aware of what witnesses are saying and the questions that senators are asking. I have chosen these five key issues because they have been raised over and over again. There are other issues, but I think these are five very important ones.

The first is how the Nisga'a Final Agreement operates within the Canadian legal and constitutional context. I wish to emphasize that this treaty was clearly designed to function within that legal and constitutional framework. The treaty defines Nisga'a rights under section 35 of the Constitution Act, 1982. In doing so, it also reconciles those rights with the rights and interests of others.

The relationship of the final agreement to Canada's Constitution, Canada's laws and the Charter of Rights and Freedoms is fundamental. Canada's full legal and constitutional framework is reflected throughout the Nisga'a Final Agreement. No constitutional amendment is required to give effect to the Nisga'a Final Agreement. Nor does the Nisga'a Final Agreement alter the Constitution of Canada. Nisga'a law-making authorities will operate concurrently with existing authorities, including the self-government provisions of the final agreement.

Perhaps Peter Hogg, Dean of Osgoode Law School and a recognized authority on constitutional law in Canada, said it best when he stated:

It is true that once the Nisga'a treaty has come into effect it will be constitutionally protected by section 35 of the Constitution Act, 1982, which recognizes and affirms aboriginal and treaty rights. But this occurs automatically by virtue of the language of section 35. Section 35 is not amended when a treaty is entered into. Nor does the treaty become part of the Constitution of Canada.

I would respectfully draw the attention of honourable senators to the many ways that the Nisga'a Final Agreement has been negotiated within the constitutional framework of Canada. In the general provisions chapter, paragraph 8 on page 17 of the English text expressly states that the Nisga'a Final Agreement does not alter the Constitution. This reflects our intentions that the final agreement should be interpreted in a manner consistent with the Constitution.

The general provisions chapter, paragraph 13 on page 18, also expressly confirms that federal and provincial laws apply to the Nisga'a and to Nisga'a lands. Moreover, the preamble of the Nisga'a Final Agreement act states that the Constitution is the supreme law of Canada. It also restates that the Nisga'a Final Agreement does not alter the Constitution. This language in the preamble can be used by the courts when interpreting the Nisga'a Final Agreement act. Finally, consistent with the Nisga'a Final Agreement, the Nisga'a themselves have adopted an internal constitution, which expressly states that their constitution is subject to the Constitution of Canada.

Honourable senators, before I leave this matter, I wish to refer you to paragraph 9 of the agreement's general provisions, where it provides that: "The Canadian Charter of Rights and Freedoms applies to the Nisga'a government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement." This makes it clear that the Charter will apply to all activities of Nisga'a government, including its law-making authority, and that the protections of the Charter will be available to all persons -- and I stress "all persons" -- affected by Nisga'a government decisions.

The second of these is the matter of Nisga'a citizenship. Webster defines "citizen" as "an inhabitant of a city or town, especially one that is entitled to its privileges of franchises." The Nisga'a will no longer have Indian Act bands under the final agreement, as I am sure all honourable senators are now aware. Therefore, the concept of a Nisga'a band membership will no longer apply. Having said that, the Nisga'a right to determine Nisga'a citizenship would be similar to the authority of the many Indian Act bands who currently control their membership. The defined term "Nisga'a citizen" will be used instead to identify those who have the rights set out in the final agreement.

The Nisga'a Final Agreement clearly sets out the criteria for determining who is eligible to be enrolled as a Nisga'a citizen. In plain language, these include people of Nisga'a descent, their adopted children, and aboriginal spouses who have been adopted by a traditional ceremony. Canadian citizenship, or permanent residency in Canada, are also prerequisites of Nisga'a citizenship.

The Nisga'a law-making authority would not prevent the Nisga'a from providing citizenship to non-aboriginals and, in fact, this possibility has been publicly discussed for longstanding members of their community who are deeply immersed in Nisga'a culture and community life.

It is also worth noting that the Nisga'a law-making authority cannot be used to take away citizenship from those persons who have successfully enrolled under the treaty.

No Nisga'a law can impose obligations on Canada or British Columbia to provide rights and benefits beyond those set out in the final agreement. That is, Nisga'a authority cannot confer Canadian citizenship, interfere in immigration matters, or deal with Indian Act status or rights.

Honourable senators, the third matter I wish to mention is the matter of minority rights. I believe that the presentation you received from Bill Young -- the owner of Nass Camp, a site within what will become Nisga'a lands -- shows how we have protected those rights in the Nisga'a treaty. It is useful to review a few of the points he emphasized.

First, with respect to property rights, privately owned land are expressly excluded from Nisga'a lands. To ensure real protection of these property rights, the treaty provides guaranteed rights of access for property owners and that the main Nisga'a highway will be a public one. As an extra measure, members of the public will have access to Nisga'a public lands for recreational activities. These, senators, are the terms of the treaty.

Second, nothing in the treaty takes away the political rights of Mr. Young, or any other non-Nisga'a citizen. All existing private landowners will continue to vote in federal, provincial and regional district elections. However, even though he is not a Nisga'a citizen, the treaty guarantees political rights to participate in Nisga'a institutions that could affect Mr. Young, such as health or social services. As Mr. Young noted, the existing Nisga'a Valley Health Board already provides services to non-Nisga'a persons, and this has worked well. There is every reason to expect that the system that has worked well will continue to work well.

Honourable senators, the treaty provides a practical arrangement to provide real protections for the minority population. Most Nisga'a laws will deal with issues that only affect Nisga'a citizens -- for example, decisions on how to spend money obtained under the treaty. Consequently, the treaty will ensure that those Nisga'a citizens have control over their government on these matters. At the same time, this is balanced with provisions to protect the political rights of non-Nisga'a on matters that affect them.

Not only are these rights of political participation for non-Nisga'a, but also there is an obligation on the Nisga'a to consult in respect of the activities of Nisga'a public institutions. This is a very substantial protection because the treaty defines consultation as including a guarantee of a reasonable amount of time to present views on a proposal, and an obligation on the Nisga'a to provide a full and fair consideration of any views. This is the kind of protection that those people asked for, and that is appropriate and fair.

The fourth matter I bring to your attention concerns the fishery that is contained within the treaty. The Nisga'a treaty does not provide for an exclusive fishery, but rather the very opposite -- a shared salmon fishery in the Nass area for the benefit of all Canadians. The treaty is consistent with Canada's broad goal of promoting healthy fish stocks on the West Coast. Their first priority is the Nass River fishery. All other rights, including Nisga'a fishing rights, are provided for only in the context of the fishery itself as a priority.

The very first provision of the Nisga'a fisheries chapter says that all Nisga'a fishing rights are subject to conservation and laws enacted for public health and safety. Conservation measures can be applied for the benefit of all Canadians, and all persons who fish on the Nass River. In fact, the Minister of Fisheries and Oceans will have full authority to impose conservation requirements and the Nisga'a have agreed to this in the treaty.

Conservation measures will apply to the Nisga'a and the other fishers who share in the Nass River fishery and apply even more strictly than they apply to aboriginal rights to fish today. The Nisga'a treaty clearly provides for sharing -- sharing the bounty and sharing the pain of conservation measures. For chinook salmon, the average treaty allocation is less than their current harvest. If the Minister of Fisheries decides to shut down commercial or recreational fisheries that target any particular species of Nass salmon, then the Nisga'a commercial fisheries for these fish will also be shut down. This is clearly set out in section 33 of the fisheries chapter.

Some try to say that the Nisga'a treaty creates exclusive fishery rights because only the Nisga'a have the rights to fish set out in the treaty. It should hardly be surprising that the Nisga'a treaty deals with Nisga'a rights. The rights of other Canadians are already found in the ordinary law. The treaty was negotiated while taking into account the rights of other Canadians, such as existing property rights, the protection of the Charter, rights of other aboriginal groups, and the fishing rights of other Canadians, including those of non-Nisga'a commercial and recreational fishers.

The treaty does not deny or take away fishing rights from non-Nisga'a fishers. The Nisga'a will not have any property right to fish. The public right of navigation on the Nass River will continue. The Nisga'a cannot prevent public, commercial or recreational access to the fishery, nor fishing by other aboriginal groups under their aboriginal treaty rights to fish. It is clear that this is not an exclusive fishery.

Please note, honourable senators, that the Nisga'a fish allocations are set out as a percentage of the allowable catch. Here is the key: A percentage must, by definition, be a share of the fishery.

I should now like to make some brief comments on the matter of overlaps. As you know, the position of the Government of Canada is that in negotiating modern treaties it is always preferable for aboriginal groups with overlapping traditional territories to reach agreement amongst themselves on their future use of the overlap areas. We recognize that sometimes groups may find it difficult to reach agreement and to address such situations in a way that resolves them. As you know, over a number of years, attempts have been made to facilitate a resolution of the overlap issue between the Nisga'a and the Gitanyow. The federal government has arranged meetings between the parties and has supported mediation. Unfortunately, resolution has not yet been possible but we remain optimistic that it is still achievable.

Let me be clear. The federal government is prepared to move forward in the absence of an overlap agreement if, and only if, the following criteria apply: The group that is ready to settle has negotiated with its neighbours in good faith; measures taken to resolve the impasse have proven to be unsuccessful; and the treaty contains an explicit statement that it will not affect any aboriginal or treaty rights of any other aboriginal group.

The federal policy on overlaps recognizes that in the face of unresolved impasses on overlap issues the only solution may be to negotiate a treaty with each group in turn, while respecting the rights of other affected aboriginal groups.

It is important to note that, in the case of the Nisga'a Final Agreement, the Nisga'a and the Gitanyow are both signatories to the 1991 northwest treaty accord that addresses common property. In addition, the Nisga'a have entered into bilateral overlap memorandums of understanding with both the Tsimshian nation and Tahltan peoples. The Nisga'a Final Agreement contains an explicit statement in the general provisions chapter, and thus prevailing over other chapters, that its provisions will not affect the aboriginal treaty rights of any other aboriginal group. This, I respectfully submit, is the appropriate way to deal with this difficult issue.

Mr. Chairman, honourable senators, this concludes the remarks I will make to you. I thank you very much for your attention and this second opportunity to come before you to give the views of the Government of Canada and the Department of Indian Affairs and Northern Development.

I am now prepared to take questions.

The Chairman: Certainly your response covers the key topics that we have been reviewing. Senator St. Germain has particularly focused on the overlap issue, and I will ask him to lead off.

Senator St. Germain: Thank you, Mr. Minister. No doubt there are other questions besides the overlap, but that has been my main interest in these entire negotiations. Were you apprised, Mr. Minister, before you made this statement today of the Gitanyow's presentation last night as well as that of the member from the Gitxsan, Neil Sterritt?

Mr. Nault: Yes, I was. They were gracious enough to give me copies of their presentation a few days ago.

Senator St. Germain: What they say in their presentations, Mr. Minister, basically flies in the face of what you are saying -- namely, that the government has negotiated in good faith.

Another issue has arisen. On your right is Tom Molloy. I think the government has placed him in an untenable position as federal negotiator. They asked him originally to be at the negotiating tabling as the negotiator for the Gitanyow and the Gitxsan, and then they moved him over to the Nisga'a table, where we know there was a definite conflict and a difference of opinion as to which land was which and what belonged to whom. He went over to the Nisga'a table, and I believe there possibly could be information that would be detrimental to the Gitxsan and Gitanyow. Why would the government do that? Do you not see a conflict there, sir?

Mr. Nault: No, I do not think so. This is all knowledge that is made available to all parties. We, through the BCTC, make information available to all sides. As a matter of fact, we make the information available to the general public. Whether it was Tom Molloy or anyone else, they would all have the same information. It is perceived to be an open process. I do not quite understand the whole issue of conflict of interest.

Mr. Molloy wants to deal with this, because he has been made aware of it. I would like him to elaborate on the role of negotiators in this process to enlighten you, senator, as to how it might work.

Mr. Tom Molloy, Chief Federal Negotiator, Department of Indian and Northern Affairs Canada: The issue of conflict arose at the previous hearing, the hearing last evening and again today, and these are the only times the issue has ever been raised to myself or the government. I act on behalf of the federal government. Any knowledge that I have is within the domain of the federal government. I do not act independently or secretive of the federal government. It is like being part of a corporation, where the knowledge of one officer is the knowledge of the entire corporation.

I started off with 33 files for which I was responsible at the beginning of the British Columbia treaty negotiation process. There are 51 negotiations presently ongoing in British Columbia. I believe there are something like eight negotiators representing Canada. I would fully share any knowledge that I have within the federal system, as do other negotiators. There is no such thing as taking what might be called secret knowledge and using it to the advantage or disadvantage of other groups.

As the minister said, the process is very open. The knowledge I have from whatever tables I am at must be passed on. The decisions with respect to mandating and so on are made by ministers and also, ultimately, by cabinet. Thus, all the parties within the system would be in the same position as I am in terms of the knowledge that I get at one table or another.

Senator St. Germain: Why are negotiations, then, not held in the wide open public? They are not. The accusation is that they were done secretly. Whether they were secret or private or whatever, the perception is that you were the defence counsel and then you became the prosecutor.

Mr. Molloy: That is not my role. I am a negotiator. I am charged with negotiating a number of agreements with different people. I see it no differently than a negotiator within a corporation who is negotiating with three or four or five different unions spread out across the country. I do not see how the information that you get at one table could be used to prejudice the other. Canada does have an obligation to negotiate with First Nations in good faith, recognizing the honour of the Crown. Those are the things that all the negotiators take to the table. We do not seek to get information from one group that can be used to the detriment of that group.

Senator St. Germain: Mr. Minister, we were given these publications. I have seen them before and have had one for quite a while. The original Nisga'a claim was a certain size, and it ended up being twice as large, encompassing the Gitanyow lands and some of the Tahltan lands in the North and some of the Gitxsan land. A core land was established, and then fee simple parcels were given within the disputed area. These parcels are described to us as being the highest and best use sites within the disputed areas. It seems that the negotiators failed to negotiate.

I have not been able to ask the Gitanyow -- I hope I will be able to ask them after you leave -- whether or not they would accept an arbitrator. If I remember correctly, Mr. Chairman, Mr. Derrick, who represented the Gitxsan, said that he would have accepted arbitration. I do not want to speak for the Gitanyow, but they clearly stated that they felt their case was strong enough to face the test of public scrutiny, or the scrutiny of an arbitrator, and that they would be successful. It is in that spirit that these questions are being asked.

Mr. Minister, I stand to be corrected, and I am not here to be confrontational, but it seems we are treading on the minority rights of aboriginal peoples in this area. Others have said that this has gone through because of political reasons in the province of British Columbia, which is my province. Everything is political to a degree. I ask you, Mr. Minister, do you think in all fairness that we should not take some further steps before we enshrine this agreement?

Professors of law were here yesterday, and they said that litigation was not the answer; however, in the final analysis, litigation would be the only way of dealing with these problems. We are forcing this minority group, the Gitanyow and the Gitxsan, into litigation, which is very costly.

Do you agree with proceeding in this manner? Why are we not going to an arbitrator? If we are not, will you give them the money to defend their position?

Mr. Nault: There are days when I put my labour negotiating hat back on, but I try not to do that because we have people like Mr. Molloy who negotiate on behalf of the Government of Canada. It is unfortunate that the Gitanyow have left the impression that somehow things are not working, because they are still at table with us. I have a list of all of the meetings we have had in the last few months -- and I am prepared to share it with you -- at which we have made significant progress on working toward a treaty with that group as well. It seems passing strange to me that they would come to the committee and suggest otherwise, because we are there right now at the table.

I am not prepared, however, to take this opportunity to have them negotiate some changes to what we are talking about by suggesting to senators that they are being mistreated. We have protected their rights in this treaty, as we will protect other rights of other First Nations, as we work out the overlap issues that occur all across the country. I mentioned when I last appeared before you that we have worked hard in places like the Northwest Territories and Yukon, and we are doing the same in British Columbia. I mentioned a few in my presentation.

We have to be careful, senator, not to give the impression that somehow we are pushing the Gitanyow to go to court. If they were being pushed to go to court, what are they doing still at the table with me? If they are accusing me of negotiating in bad faith, I take that seriously, with my labour background. I have written a few letters to a few First Nations in the last couple of months -- since I have become minister -- letters that went something like this: "If you were accusing me of negotiating in bad faith, shut the table down and go to court." I take it as an insult when they say that we as a fiduciary are not negotiating in good faith. It is unfortunate that some First Nations use this word loosely. I take it seriously. I received a letter back, just so you know, that basically said, "That is not what we meant. We were just suggesting that your mandate is not as flexible as we would like it to be." Yes, I have a mandate from cabinet.

Senator St. Germain: But they have gone to court. They have gone in the Luuxhon case and in Delgamuukw. In the Luuxhon case, you have been instructed by the judge to desist from sharp dealing. I am not a lawyer, and you have legal counsel beside you where I have not, but you have appealed this decision. The judge has told you to bargain in good faith with these people, yet the federal and provincial governments have appealed rather than accepting the judge's recommendation that you bargain in good faith. It is Chief Justice Lamer who said that, as quoted here by several witnesses. We are all here to stay. It is not a question of who is going.

Why is it that you are appealing what we have asked the judge to decide? We are forcing these people into litigation. I do not think there is anything wrong with staying at the table. They are looking for a resolution, not a problem. If they were looking for a problem, they would say, "Sure, let us scrap it and we will go to court."

Mr. Nault: Before I ask Mr. Beynon to explain why we are before the court, I want to make it clear that a number of First Nations have accused this government -- and this minister, I suppose -- of not bargaining in good faith, because they do not like our mandate. They do not think the mandate is strong enough, that there is not enough land on the table or enough cash on the table. Because I come to a particular negotiating position does not mean I am negotiating in bad faith. When I was a labour negotiator and put something on the table and the company said to me, "We have no intentions of accepting that," I did not say, You are negotiating in bad faith. We were just being given the bottom line. If our bottom lines are not to the liking of some of the First Nations, then they have two options. They can try to convince us to change those bottom lines, which we have done in British Columbia where we have made some changes over the last number of months, or they can walk away from the table and take a different route, which is litigation. That is perfectly within their right.

I will ask Mr. Beynon to give you the legal reasons for our appeal, but it is in essence because there is some strong suggestion that we have to adhere to a principle that is not conducive to negotiation. In fact, you just agree on what a particular other side of the table wants.

Mr. Beynon will give you the details as to why we are there, because it is not as has been presented in the submission that I understand you heard.

Mr. Andrew Beynon, Senior Counsel, Federal Treaty Negotiation Office, Indian and Northern Affairs Canada: Maybe I can add a few words. As Mr. Molloy said, the Government of Canada accepts the notion that it should be negotiating in good faith. In the Statement of Defence filed in the Luuxhon case, we say that there is a political commitment on the part of the Government of Canada to proceed in that manner. It is precisely that, a matter of a political commitment. It is a matter of an agreed-upon approach to negotiations. Our reason for appeal is that we are suggesting to the courts that they should not dictate the procedure for negotiations and exactly how it is to be done. It is better left to the parties to negotiate themselves.

The other comment I should make is that you were suggesting, senator, that the court in the Luuxhon case had accused the Government of Canada or, perhaps, the Government of British Columbia, of sharp dealing. I would offer the comment that the issue of whether or not there is any breach of good faith, if that is a legal duty, is not an issue that has been tried by the court yet. That awaits determination.

Senator St. Germain: We have those who say that this is an act of aggression against the people on the ground there, Mr. Minister. What your legal counsel has said is that litigation is not the answer. Yet, according to the professors who came here, and who do not want anything changed, these people will be forced into litigation.

Based on the history of the area, do you not think that an arbitrator should be brought in, if the federal and provincial negotiators cannot deal with these people, if these people are prepared to accept an arbitrator?

Mr. Nault: There is always that option, senator. However, it is our preference to have the First Nations deal with themselves. They know best their history. Certainly, I am of the view that we will be at the negotiating table with these two groups and that we will be successful. There will be a meeting of the minds between themselves and the Nisga'a. Contrary to the position they have taken in front of you, we are still at the table and we are still making significant progress. Without getting into the details, because we are not there yet, we made an offer in November. They are still mulling over that offer and we are now in the process of looking at land selection. We are making significant progress.

Thus, I find it strange that someone has come to the committee and suggested somehow that we are not making progress. We are. Without making things too public, I am prepared to brief honourable senators on the details of where we are with this. I find it a bit disappointing that people would come to the committee and suggest that we are in the process of going to court with these groups when we are not. We think we are making good progress.

Senator Tkachuk: I hope that on Tuesday we can take you up on the briefing of the overlapping land claims.

I want to follow up the questions asked by Senator St. Germain with a question to the minister or Mr. Molloy. Approximately when was the issue of the territory that we find in the final agreement resolved?

Mr. Molloy: The actual lines on the map would have been agreed to some time after the Agreement-in-Principle.

The boundary had been agreed to prior to my joining the negotiating table. The core lands had been agreed to prior to my joining the negotiating table. The issue with respect to the fee simple lands had received some general agreement as to where they might occur. However, as a result of consultations -- it is a matter in which the province is more involved than the federal government -- changes were made to the fee simple parcels.

Senator Tkachuk: In what year would that have been?

Mr. Molloy: I was not there at the time. It was done prior to my joining the table in 1996.

Senator Tkachuk: Yesterday, we heard representation from either the Gitxsan or Gitanyow who gave us this book entitled Tribal Boundaries in the Nass Watershed. It was Mr. Sterritt's group. They had asked for a reply from the Nisga'a. If this was arranged around 1996, the Nisga'a really had no self-interest in negotiating the land out of their agreement at all, did they?

Mr. Molloy: I am sorry, I do not follow you.

Senator Tkachuk: If the boundaries were organized in 1996 -- the book was sent in 1995 and they asked the Nisga'a to come back to them with whatever they objected to in this particular boundaries book. However, since 1996, the Nisga'a would have had no self-interest in negotiating these boundaries whatsoever because they were set and they had them. Therefore, in the last four years they would have had no self-interest.

Mr. Molloy: As far as I am aware, discussions had been going on between the Nisga'a and Gitanyow for many, many years. I am sure that many of these issues were discussed between them.

In terms of the boundary for the Nisga'a claim, we were satisfied that, with the non-derogation clauses that appear in the treaty, as well as the fact that in terms of the wildlife area and those kind of things being non-exclusive, we were not in a position to be interfering with the rights of the Gitanyow. There were mechanisms put into the treaty to accommodate in the event that there was some unintended interference with Gitanyow rights.

Senator Tkachuk: I think every one in some way acts in their own self-interest. I will try to put it in other terms.

According to this agreement, the Nisga'a are compensated for whatever land they lose under the agreement in future negotiations.

Mr. Molloy: There is a provision to renegotiate, whether it is compensation or additional land.

Senator Tkachuk: Since 1996, they may have gone to the negotiating table, but they have absolutely no self-interest in settling the boundary dispute. If they go to court and they win, then they get to keep the land; if they go to court and they lose, they get cash. The only way they get cash is if this agreement passes, therefore, I cannot see any self-interest for the Nisga'a.

It is no wonder the other groups are frustrated. They have come to the table, but why would anybody in their right mind -- and I know the Nisga'a are in their right minds -- want to negotiate this?

Mr. Molloy: As I mentioned, there were negotiations around the fee simple parcels that changed as a result of some of the representations that were made. We negotiated other fee simple parcels with the Nisga'a.

Senator Tkachuk: Suppose this bill passes, they go to court and the Nisga'a lose. What estimate does the federal government have on what it would cost the Canadian taxpayers, whose interests we also must protect, because of what I would consider to be negligence by the federal government? How much money would it cost the Canadian taxpayer to pay to the Nisga'a to satisfy the agreement they would have lost in court when we could have resolved it earlier?

Mr. Nault: Mr. Chairman, there are a lot of hypotheticals there -- what if, what if, what if. The fact remains that we are not in court. We do deal with overlaps. It is not as it is being perceived. The Gitanyow and the Nisga'a from the Nass Valley happen to be very close. You have probably heard that in the submissions.

The issue is not who wins and who loses. Certainly, we have not arrived at an agreement yet; however, we are comfortable that we will arrive at one. To ask the Government of Canada what would happen if a meteorite were to hit us -- perhaps I could make up an answer, but I cannot predict the future. I do know that if we do not get treaties signed in British Columbia, and if we do not get modern day treaties and bring certainty to our relationship, it will cost us a lot more money than may be suggested in your comments, senator, because we will then have to deal with loss of economic opportunity in a changing relationship.

The Chairman: You have one more intervention if you need it, Senator Tkachuk.

Senator Tkachuk: Mr. Minister, you claim that I am asking hypothetical questions. We have the Gitxsan and the Gitanyow here, as well as the Nisga'a agreement, which everybody has said, has to pass. These are not hypothetical questions. The agreement says that if they lose they will get compensation for the land they lost, which was claimed, when all this could be resolved before this bill is passed. You can comment on that later, but I have one other area that I would like to cover, and that is taxation.

My understanding is that at 8 years and 12 years, they will pay provincial tax and federal tax. I also understand that there is an exemption to that. I would like you or Mr. Molloy to help me through this. I do not know in what instance that exemption would apply. It may be that, if another Indian band in the treaty process in British Columbia received a tax-free exemption, this would be open to negotiation. Perhaps you can walk me through this.

Mr. Molloy: There is a provision in the tax agreement to provide certain exemptions to Nisga'a governments so that they are treated in the same way in which the federal government income tax laws apply to other governments in Canada. There is also a provision that deals with government treatment of governments, so that if there are other provisions that are negotiated with other First Nations, provisions that affect the way in which the governments are taxed, then we would revisit that in terms of the tax agreement. The tax agreement is outside the treaty. However, the 8 and 12 personal tax exemption is within the treaty and, therefore, is not subject to change.

The Chairman: This is definitely your last question, Senator Tkachuk, in this round.

Senator Tkachuk: If the 8-year and 12-year provisions are in the treaty, which will fall under section 35, it probably can never be changed unless there are changes in the federal laws on taxation. Is that right?

Mr. Molloy: Under the treaty, at the end of the 8-year and 12-year period, the individuals will be treated in exactly the same manner as other taxpayers are treated by the Income Tax Act.

Senator Tkachuk: That will be protected under section 35, will it?

Mr. Molloy: Yes.

Senator Andreychuk: Mr. Minister, thank you for returning here today. I have no self-interest in saying this, but I think that, perhaps, had you been in negotiations from the beginning, with your attitude, perhaps there would be a different conclusion to the Gitanyow, the Gitxsan and the Nisga'a. I am not sure that your position, as you are stating it, has always been your government's position. That is why we are in such a conundrum. Let us hope the future is better for all of us.

In the interests of the fine reputation of the negotiator and the neutrality and impartiality of the government, I would suggest that while moving the negotiator from one side of the dispute to the other may not in fact be a conflict it does have the perception of being one. It would be like moving the prosecutor halfway through a case. The Crown would have to have a very good reason, and I doubt the prosecutor would be moved to another party in the proceedings. For future reference, it is for the benefit of people like Mr. Molloy, as well as for the parties involved, that it not be done.

I want to turn to page 6 of your brief, Mr. Minister. You indicate that the federal government will move in the absence of an overlap agreement, and you set out three criteria that must apply. One is that you would not move if the group that is ready to settle has negotiated with its neighbours in good faith. What if the other groups are negotiating in good faith? The third criteria you set out is that the treaty must contain an explicit statement that it will not affect any aboriginal or Treaty rights of any other aboriginal group.

You believe that the Nisga'a negotiated in good faith, so you move ahead in the disputed area. You put that disputed area within the agreement. You then put the management and the process that you have negotiated with the Nisga'a into that disputed area. After that, you say that if in the future there is a different conclusion -- in other words, it could be Gitanyow land or Gitxsan land -- then they will get it and you will deal by way of some sort of compensation for the Nisga'a. Have you not lost your impartiality by doing that? You have already said that you think it is Nisga'a land because you have included it in the agreement. Is that not a clear signal to everyone that that is your preferred interpretation of the dispute? That is what troubles me in respect of your chosen approach.

Continuing on page 6, you suggest that there will be some sort of methodology for compensation for the Nisga'a. However, you put the Gitxsan, the Gitanyow and anyone else who is in dispute in the future in a difficult position. They do not have any money, except what they can borrow or have from their own means, to negotiate their side of the dispute, and they have no guarantee of outcomes if they do not win. You have lost your neutrality. You have preferred one group of aboriginals to another. You have set up a hierarchy of aboriginals. It seems to me that that is the most troublesome thing in this agreement.

Mr. Nault: I am a little concerned and I am being careful, which is not normally my style, only because we are in serious negotiation with these people, contrary to what they have told you. I do not want to make comments that would jeopardize negotiations, despite my annoyance with some of the comments that have been made about our efforts and about what we are trying to achieve.

It would make absolutely no difference if Tom Molloy were at the table or not. The information that he has is common to all the negotiators in British Columbia. There are no differences. As a matter of fact, one of the best negotiators in Canada is at the table, because that is what Tom is, and I do not mind telling you that. For the Gitanyow to suggest that I took the best negotiator away from the table and put someone with less experience in that place seems rather strange to me. I will ask them directly if that is what they want, and if that is what they want, I will do that.

However, I find that passing strange because what Mr. Molloy knows every one of my negotiators in British Columbia knows. There is no difference. We have a common mandate, to some extent, about certain positions. I do not go into these negotiations with a blank piece of paper; rather, I go into negotiations with a mandate from cabinet, as the Government of Canada, as to our bottom line in some cases; for example, that the Charter will apply. I would never suggest that we would withdraw or forget about the Charter if they said that they did not like it.

The second issue is that if we, as a government and governments, were held, to some extent, hostage by the particular political interest of one group over another, we would never get the job done. Thus, we have built in a process of protection so that we can move forward. Are we convinced that we have done the right thing -- and the suggestion that you are making is that somehow we are not impartial -- well, of course, the Government of Canada has a position, as does the Government of British Columbia. It must be remembered that this is a negotiation. People sometimes forget that we are negotiating aboriginal rights. We are not coming at this from a Supreme Court that has said, "Here is what you should give people." We are saying, "You have aboriginal rights; now let's define those rights in the modern context and come up with an agreement." That is what the treaty does.

I have difficulty understanding why some people think that the Government of Canada would not have a position at the negotiating table. Of course we do.

Senator Andreychuk: Is it your position at the table that the lands in dispute but covered by the Nisga'a agreement are legitimately within the purview of the Nisga'a?

Mr. Nault: Yes. If it is proven otherwise, through a process outside this treaty, then we will make the necessary changes. That is the protection we allow in the treaty. We certainly would not be going ahead with this treaty if we did not have an opinion, or the belief, that this was the process in which we believe.

Mr. Molloy: Under the British Columbia Treaty Commission process, First Nations define their traditional territories, as the Gitanyow did and as the Gitxsan did, and we were negotiating based on the territories that they described. We recognized that there is an overlap issue between the Gitxsan, the Gitanyow, and the Nisga'a. That is why we put in those three sections. That is also why, over a period of time, we tried to bring the parties together.

There was fallacious talk about me moving from prosecutor to defender. I did not move from one side to the other; I still represented Canada. Our role was not to take sides against one First Nation over another. We tried to facilitate, arrange meetings and set up the mediation process in order to bring the parties together to work out these issues.

With respect to the overlap area, we have provided the rights to the Nisga'a in respect of matters that are affecting them. It is their wildlife rights they are managing in the wildlife area, it is their hunt, and so on. We are not dealing with other people's rights. There is no reason in the world that other rights cannot be negotiated in that overlap area with the Gitanyow and the Gitxsan.

Senator St. Germain: What about the fee simple?

Mr. Molloy: That is a question of negotiating. The Nisga'a received the core land, and they received some small parcels of fee simple lands outside the core area. I have seen the offer that was made by the federal government and by the province to the Gitanyow, and that offer involved parcels of land. It is now a question of the parties negotiating what those parcels actually will be.

Senator Andreychuk: I have just one more question.

There have been two points of view, but all points of view seem to say that section 35 has to be given meaning and that we must move toward giving rights to the aboriginal people. Some suggest that that can be accomplished without a constitutional amendment, where others say that a constitutional amendment is needed.

We heard this morning from Mr. Estey that, if we do not seek some reference from the court or if we do not allow the court processes to evolve, and if we should happen to be wrong by saying that we do not need a constitutional amendment, that will wreak more havoc than perhaps delaying and taking the obvious step of the constitutional amendment.

Mr. Nault: You may recall that the court ruled that they would stay the case with Mr. Campbell until the bill passed. If you did not proclaim this particular treaty, then the courts would have nothing to work with. What would you give them as a reference? The bill has not passed.

Senator Andreychuk: There could be a reference to the court.

Mr. Nault: You cannot send a reference to a court on a bill that has not passed.

Senator Andreychuk: Yes, you can.

Mr. Nault: You are saying, "Do all the work, agree to everything, but do not proclaim the bill." Is that your argument?

Senator Andreychuk: The argument is to get greater certainty so that we can move ahead with clear and definitive instruction on this issue and get rid of the grey areas. It can be done by either a reference or an amendment.

Mr. Nault: With all due respect, the highest court in the land is the one in which you are sitting. I, for one, have been told by every single Supreme Court ruling that I have read in the last 10 years or more that the courts are telling us to get on with negotiation and to create a relationship with First Nations, not the reverse. "Please do not send it back to us." The courts are not asking for that.

I find it passing strange that Mr. Estey, who sat on the bench himself and has had the opportunity to read all the cases since his retirement in 1988 <#0107> and there have been a number of cases since his retirement; for example, Sparrow, Delgamuukw, and so on -- would make the statement that he did here. In those cases, the court made it clear not to continue to send these things to them but to get on with it, because this is not only a legal matter but also a political matter. That is what a relationship is.

Therefore, it is my opinion and the opinion of the Government of Canada that this is the appropriate way to proceed. If someone decides to go to court, as they do on all sorts of matters that come before this place and respecting legislation that we pass, then so be it. However, to suggest that we would hold up legislation or implementation of what we believe in politically in order for someone who is not elected to decide for us is difficult to accept. That is not what the courts are indicating to us, if you look at all the rulings. They are telling us the reverse. They are telling us to get on with the job of negotiating a relationship with First Nations. That is what this objective is.

There are differences of opinion, I agree with that. Certainly, that matter will be dealt with. However, it is the learned opinion of our people at the Department of Justice and of many learned scholars -- some who are in this room -- that this is not a constitutional amendment. I would not be prepared to wait until the courts decide for us because we would then go back to the same problem we have had for a number of years, namely, letting the courts define "political relationship." The definition of that relationships needs to be done in a modern context by us, as parliamentarians.

Senator Grafstein: Mr. Minister, you have summed up my position quite well. Mr. Estey's approach and others is to delegate our responsibility to a court. On the other hand, when I sum up the evidence, it is not very complicated. There are two former attorneys general of British Columbia, one former Supreme Court judge of Canada, one law professor from McGill and at least three senators who have serious reservations as to whether the powers allocated here and the way they have been allocated exceed sections 91 and 92 and go beyond the purport of section 35. Thus, we have serious doubts about it.

We are now in a position -- since you have ruled out a reference to the Supreme Court, and I do not quarrel with you about that -- to decide whether this bill in its current form is so egregious that it exceeds the Constitution, notwithstanding your brilliant argument in your paper today. We will leave that, because it sets out the issue clearly.

Let me deal with a matter that is a constitutional and a political question that continues to reverberate with me. I appreciate greatly your careful references to the issue that I raised with you at our first hearing, where you felt it was an incidental matter. I think you understand now that there is more weight to it. Let me put a proposition to you to see if I can convince you both constitutionally and politically.

Under the model presented by you, we now have a governance model that places it beyond the reservation of the federal power -- not beyond the courts as it applies to the Charter but beyond the reservation of the federal power. There are anywhere from 11 to 14 to 20 powers granted to the governance model of the Nisga'a that will govern the lives, as Mr. Estey put it, at the street level of the people who reside on the Nisga'a lands. You referred to Mr. Young, who I was not concerned about, who has his own property. He has his own rights and his own taxation methodology and has full rights to appeal his taxation powers and his rights to the provincial government. He is not really included. My concern remains a minority of minorities within the boundaries of the Nisga'a lands. This has been accelerated, frankly, in the last two days because we have now heard from both the Gitxsan and the Gitanyow that it may well be that other members of other bands may continue to reside on Nisga'a lands.

We then go back to Webster -- and I wish to thank Mr. Webster. Your statement on page 3 is that Webster defines "citizen" as "an inhabitant of a city or town, especially one that is entitled to privileges and franchises." We have now moved beyond the first proposition that was made here, namely, that the only rights and powers we are dealing with for these residents, these non-Nisga'a citizens, are things that deal with their local affairs. They are cultural items. We are talking about anywhere from 14 to 20 items. I have not parsed the powers, but look at them. They are very broad. They are not minor. They do not just relate. All that the non-Nisga'a residents have is a constitutional right, under the Nisga'a constitution, to be heard and to participate. You are quite right, Mr. Minister, they have said that they have the right to change and allow these non-Nisga'a residents to become citizens. They have the power to do that. However, when I asked Mr. Gosnell and Chief Fontaine that question, namely, whether they have solved the problem of minority rights -- the answer is "No; sort of; we will; we will think about it; not yet; not quite; by the way, it is not important."

I leave you with this proposition: Is it a politically desirable situation -- constitutionally it is not desirable -- to transfer 11 to 20 powers to a body of good men and women and not allow the residents within the ambit of their power to have the right to vote? In no way, shape or form would that threaten them in terms of their culture, their lifestyle, their day-to-day life. How do you feel about that, Mr. Minister, and what are we to do?

Mr. Nault: You are asking me a very political question, senator, and one that I have asked myself on a number of occasions as it relates to the definition of a First Nations person, or an aboriginal person, for that matter. The law of the land now is such that non-natives have decided to define, for native people, what an Indian is under the Indian Act. I find that to be completely unacceptable. People should be self-defining. Therefore, we must give aboriginal people the opportunity to self-define over time. We have not done that up to now. That is what this is about.

I agree with Mr. Gosnell and Mr. Fontaine that, over time, that will change, because presently we are working on a proposal with First Nations people to allow them to self-define and to look at the whole issue of registration and defining what a citizen is or a band member.

If we stay with the present system, it is defined under the Indian Act. It was created by us, as non-natives, in terms of culture and whether one can define oneself as a status Indian based on those things.

My political preference is to allow people to make those decisions and to include a non-native person as a citizen if they are involved in the culture, not just a passerby. Hence, a teacher or a nurse, for example, that happens to reside there for a few years, should they have the same rights as a Nisga'a person? I would say no, that is not the case. However, if a person has lived there his whole adult life or whole childhood, then I believe there is room for that person to be part of the democratic process.

Senator Grafstein: We have a five-year rule in Canada.

Senator Lawson: I wish to refer to one of the presentations that was made yesterday, the presentation of the B.C. Wildlife Federation. I will start with something small, because sometimes the small things are the most upsetting and the most offensive, when they appear to be so blatantly unfair.

We were told in their presentation that the participation of non-Nisga'a people on the wildlife committee board will be hampered by the fact that the Nisga'a participants will receive $20,000 annually, plus expenses, for their participation, whereas non-Nisga'a participants will receive nothing and will need to cover their own costs.

Is this contained in the treaty or in non-treaty documents?

Mr. Beynon: Paragraph 46 of the wildlife chapter, page 141 in the English text, deals with the composition of the wildlife committee, and it identifies the split between federal, British Columbia and Nisga'a representatives. As far as I am aware, the treaty does not speak at all to the question of costs of participation.

Senator Lawson: There was a witness who spoke about it, and we examined that issue carefully and were told that this was the deal. I think that person will be the nominee.

Mr. Beynon: I am not aware of the provision in the treaty to which he referred.

Senator Lawson: Mr. Minister, I wish to get an undertaking from you. Surely, in the face of the multi-billion dollar lawsuit on pay equity and so on, someone has learned the lesson that this is not the thing to do. Fairness must apply. If there are nine people on that committee, they should all be paid the same rate. There should not be one rate for those on the Nisga'a committee and a different rate for someone else.

Mr. Nault: Are you talking about a non-native?

Senator Lawson: I believe he was a non-native. He was the nominee.

Mr. Nault: We will give you an undertaking to get back to you with that information. We are not aware of this $20,000 issue, but we will certainly find out for you and let you know.

However, I will tell you this, senator. The Government of Canada and this minister's fiduciary responsibility is vested with an obligation to give provincial-like services to First Nation people. I do not have the mandate to give non-native people that. That is done through another ministry, department, province, or whatever. Unless this is a board created specifically to deal with Nisga'a lands and issues, I would think that we would not be funding a non-native person who is put on the board to deal with wildlife in the whole Nass Valley. We would be dealing with the First Nation people, as we have done on numerous occasions. I am not quite sure of the details but I certainly will get back to you, senator, with the information.

Senator Lawson: He did tell us it was a provision of the agreement and that they had made a case for participation, on behalf of the wildlife federation. I do not care whether it was $20,000, $2, or $1 a year. Whatever it is, everyone should get the same rate. All I want is fair treatment.

You said earlier, minister, that as far as the Gitanyow are concerned you were protecting their rights. I must ask how are you protecting their rights by ceding a large portion of their ancestral land to the Nisga'a?

Mr. Nault: Senator, as I said before, that is a difference of opinion, and so you can accept their opinion over the Nisga'a, if you like. We have decided not to decide one or the other, to a point of saying that there may be the opportunity to revisit this in negotiation and come up with a solution. That is why we have protected them in the treaty, in order for their rights not to be trampled on.

You will need to make this decision for yourselves, honourable senators, as to whether you are being told the truth or whether someone has had a difference of opinion with someone else. We have tried to go to the negotiating table with the notion of bringing people together and arriving at solutions, and the overlap will include some of the Nisga'a lands.

Senator Lawson: You and I have both been negotiators. I have negotiated for the Province of British Columbia, for the construction industry as a whole. The process was very simple. When an issue was agreed to, we would both sign it, and then it went into the agreed box. If we had a technical or complex issue, it was put in the hold basket. At the end of the negotiation, there might be three or four items in the hold basket. If we could not settle, we would arbitrate.

However, you are not doing that. You are taking sides. You decided in favour of the Nisga'a, you turned the land over to them; you have severely prejudiced the Gitanyow in their position, in my judgment. What really troubles me is something Mr. Molloy said a few minutes ago. The case was made that the land belongs to the Nisga'a; therefore, this is my quandary. Tom Molloy said that you made an offer to the Gitanyow on these fee simple parcels. The only reason you made an offer, which is obvious to me, is that you assumed they owned the land, or why would you bother making them an offer? Is that correct?

Mr. Molloy: As I said, under the British Columbia treaty process, the Gitanyow defined what they considered to be their territory. The Government of Canada has been negotiating. As I say, Canada and British Columbia made an offer to them with respect to parcels of land, as did the Government of British Columbia with the Nisga'a, as have Canada and British Columbia with several other First Nations in British Columbia.

You used the phrase "ceding a large portion of land," and I do not accept that statement.

Senator Lawson: What did you do? Give me your words. You are a lawyer, I am not. Did you give it to them? Did you put it in their boundaries? How did you arrive at that? I do not care if you ceded it to them or gave it to them, but the Gitanyow lost the land.

Mr. Molloy: You said "a large portion" of their territory. In looking at the maps, I see the five parcels.

Senator Lawson: I am not talking about the five parcels; I am talking about, according to the map, what we saw from the Gitanyow. There is a large portion of their land on the map, at least to my layman's eye, that went to the Nisga'a. That was in addition to the five separate parcels, and at least three of the five separate parcels came from former territory claimed by the Gitanyow.

Mr. Molloy: It was in an overlap area, where we recognize both the Gitanyow and the Nisga'a and, in some cases, the Gitxsan, Tahltan, and Tsimshian have interests.

Senator Lawson: You obviously concluded that a large portion, ceded or whatever, belonged to the Nisga'a because you have it in the treaty. You must have concluded, in order to make an offer to the Gitanyow, that some of these fee simple parcels in their former claimed land -- you were making them an offer because you believed it to be owned by them.

Mr. Molloy: We accept that that is the area they are claiming and we are willing to negotiate on the basis of those boundaries.

Senator Lawson: The Nisga'a are obviously outstanding negotiators. I think this should be placed in the hold basket. You should settle that issue separately. You should adopt the treaty for the rest of it, but what is in conflict should be settled after the fact, in negotiation. If you cannot negotiate, then arbitrate. However, you made provision that if the Nisga'a lose whatever additional lands that are being claimed by others, they will be compensated.

My second question is: What arrangement have you made? Let us assume the Gitanyow fail by court action and they lose the land. What compensation are you prepared to give them?

Mr. Molloy: I believe you answered that yourself. If they go to court and lose, they obviously have no aboriginal right or interest in the land so obviously there would be no compensation. If they went to court and proved that they had an aboriginal right, and that that aboriginal right had been somehow interfered with, then they would be entitled to compensation. To ask, if they lost, what compensation would they get, obviously they lost the lawsuit and do not have an aboriginal right.

Senator Lawson: Do you not accept that you prejudice their position when you take what they claim is theirs and give it to someone else? You will not finance their lawsuit, will you? There is no provision to give them any financial assistance.

That seems to me to be unfair. You are asking me, as a senator, in voting in favour of this agreement, to join with the federal government, the B.C. government and the Nisga'a in a conspiracy to take lands claimed by others without giving them a fair hearing.

Mr. Nault: Senator, it is unfortunate that you have made that conclusion based on, I suspect, one submission by a group who has a vested interest in promoting their negotiating strategy here at this table. Frankly, that is what it is.

I have no difficulty in telling you that I am not prepared to negotiate with the Gitxsan or any other group at this table. We are prepared to sit down with them. We have continued to negotiate with them. We are of the view that we can arrive at quantums of land that will meet their needs. It is, frankly, not the whole territory, as some people are aware, if they look at the map. There is a lot of wiggle room concerning which lands will be accepted for offer.

I cannot go much further than to say that if you think there is some sort of conspiracy, I beg to differ.

Senator Lawson: Maybe that is a bad choice of words. The federal government, the provincial government and the Nisga'a have a position and you are asking me to support it. Where I come from, that is a conspiracy. You are asking me to accept your proposal that you were right in what you did with the Nisga'a.

Mr. Nault: Yes, you are right, we are asking you to accept the proposal and to move on to building a relationship without having one group or another hold back the aspirations of the Nisga'a people. That is what this policy is about. I am not a big fan of non-native people deciding on arbitrating issues. We did that for a long time. I would much prefer that the First Nations groups get together themselves. We will do everything in our power to promote that.

Our policy is not to make arbitrary decisions, which is something we used to do. It was a very ineffective way of doing things because it left a sour taste in people's mouths to have the federal government making those decisions. We are doing everything we possibly can to have the First Nations governments come up with a solution to these overlaps.

Senator Beaudoin: My colleague, Senator Grafstein, has summarized the legal situation. If I may use the term, we are stuck.

There are two points of view. Some people are of the opinion that there is a doubt about constitutionality in one area only, which deals with the paramountcy. The rest may be of great importance, but I have no problem with that. The other thesis, of course, is the one put forward by you, sir. I have the greatest respect for that opinion. As a matter of fact, yesterday, Professor Ryder and some other professors were of the opinion that everything comes under section 35. If they are right on that premise, then I agree that it is the end of the matter and it is constitutional.

Having heard the pros and cons of this, I cannot see how the problem will not go to the Supreme Court. If it has not right now, it will one day in the future. Those two points of view are clashing. Either it is constitutional or it is not. No one is entirely sure, but when you have a doubt, a very serious doubt, usually you go to court. You say the Supreme Court has said to negotiate that, settle it in the political area. They agree with the point. I agree with you when you say we have to negotiate this. I have the greatest respect for that, but it is not going to solve the problem in the long run. It is obvious, because of this controversy, that the final arbiter here will be the Supreme Court of Canada. If it is not now, by virtue of a reference, then it will be later by virtue of a challenge. I cannot see how it will not be challenged one day.

I must say that section 35 is very important. It is not too precise, but it is very important nonetheless.

The Supreme Court has not settled everything in this area, at least not yet. They will not do that until they have the obligation to do it.

In using one word, it was not necessary to have that word in the agreement. What is supreme in our country is the Constitution itself. What is supreme is the federal government in its sphere and the provinces in their spheres.

We have now the question of a third order of government, nation state, et cetera. I do not want to invade that. If it has to come one day, then it has to be done very clearly, because federalism is a system of two orders of government.

I am entirely in favour of giving to the aboriginal nations very generous powers. I am all in favour of that, because we have not been fair to them. We have to repair that situation.

Is this the best way to open the door to a new kind of federalism, with three orders of government in 14 or 20 areas? I have my doubts about that. Can we do that without a constitutional amendment? Perhaps we can, if it comes under section 35, and the Supreme Court may rule that way; I am not sure. The only institution that has the final word in a case like that is the court. We cannot escape that.

This being said, we are here in the Senate. We have to take our responsibility and we have to vote. If there is a challenge after we vote, then the court will decide. There is no other way to go, because the clash is too obvious.

I always say that aboriginal law is a very difficult field because it is unique in our country. We have been accustomed to federal and provincial problems for over one century. We have many decisions of the court. Even with the Charter of Rights, the court is doing fantastic work.

When we are dealing with aboriginal rights, it is more difficult. It is probably the most important thing, because they were here before the Europeans and we have to take care of this.

I understand the government will not consider the possibility of making a reference case. I do not criticize that. The government may do that. It may say "yes" or "no".

Do you consider that the problem is already settled by section 35 and that the best thing to do is to vote for the bill? I am sure you will say yes. I do not think it solves the problem.

The Chairman: I think your statement helps us to understand the issues and the choice, Senator Beaudoin. Does the minister wish to respond or not?

Mr. Nault: I will make one quick point, Mr. Chairman.

It is not unusual for members of Parliament to tend to focus on the opposite side of an issue. There are many learned scholars who have come before you and many who have not. I was disappointed to hear Mr. Monahan had to cancel, because he has been very involved in aboriginal law and would have been able to give you our view, the view of the Government of Canada, that this is not a constitutional amendment.

There are both sides to the issue. My point has always been that this is a political discussion as much as a legal one.

Defining a political relationship is very important, and that is what we are doing at this table. I take our work as representatives of the people very seriously. I would be disappointed if the Supreme Court of Canada were to continue to define my relationship with aboriginal people in this country. I do not see that as their job but as ours. If it does go to court, then we will have to deal with specific items relating to it. It may make it more difficult for us to succeed in building a relationship that has not gone well over the last couple of hundred years if the courts try to dictate what that relationship should be. That is a political question.

The Chairman: Senator Sibbeston, you are the last questioner.

Senator Sibbeston: I always feel when I speak that I will be cut off the moment I become a little emotional. I will take the chance anyway and say that I will give this my sober second thought, which we must do as senators, and ask the question: Is this legislation going to improve the lot of the Nisga'a people? We can get involved with all the technical questions but, in the end, I think the issue that is most important is the answer to that question. Is what we are dealing with here the answer? Does it advance the state and cause of native people in our country?

I believe it does. I am convinced that this is the right approach. I am convinced that what the Nisga'a are seeking and what we are dealing with is the answer for native people in the country. We are delving into new ground, talking about a third order of government. Sometimes I get a bit impatient with the academics and the technical questions raised, primarily of minority rights for the non-Nisga'a people who live amongst the Nisga'a people. My experience of non-native people who live amongst the native people is that they are generally treated like kings and queens. I do not think non-native people need to fear. Non-native people would be among the Nisga'a because their services are needed. There would be professional people, policemen, social workers, doctors, teachers and so forth. Generally, these people do very well, particularly if they have a good relationship with the people. They are the ones in power. They are the ones who have the money. They are the ones who have the education. They are the ones who have the power and who are making decisions all day and throughout their lives.

I am not worried about the rights of non-native people amongst native people; generally, they have been treated well. I am sure that the Nisga'a people will continue in that vein. I think sometimes we get too hung up on the academic questions. The reality on the ground is that non-native people have been treated very well, and they are very involved in the life of the communities. We need not fear their plight.

The Chairman: Thank you, Senator Sibbeston. It is now past 1:30 and I believe the minister must leave.

Senator St. Germain: I want to ask Mr. Molloy a question.

The Chairman: You have had time.

Senator St. Germain: We have discussed this before, Mr. Chairman.

The Chairman: This is not solely for your benefit, senator.

Senator St. Germain: I have gladly listened to Senator Sibbeston and all the others. It is a question of trying to resolve this.

Senator Sibbeston: Every time I try to say something --

The Chairman: Stop it, stop it. Senators, I am going to thank the minister on our behalf. He has stayed half an hour beyond his time. Mr. Molloy will stay, I am sure, as will as Mr. Beynon.

Mr. Minister, we are grateful for your contribution, which I believe has been important to our deliberations.

Mr. Nault: I am pleased to leave my learned colleagues here with you for a few more minutes to answer a couple more questions. I appreciate the opportunity to have made some comments and to put the government's position on the record. I want to take this opportunity to thank you very much for what I think has been a job well done. There have been many good questions and lot of work done here in your committee. Certainly, there will always be differences of opinion. I accept that with the greatest amount of respect. However, I want you to know, senators, that we have been at this now for over 100 years, and it would be helpful if we could finally make a decision. There will be those who say we have made the wrong decision and others will say we have made the right one. However, I think we should make a decision and get on with what we believe is the right thing, as far as Parliament is concerned.

I would agree with Senator Beaudoin that we will be in court many times to define these things, unfortunately. However, we certainly want to encourage negotiations instead of litigation because we find it much more conducive to building respect and cooperation and of course building that kind of relationship I was talking about earlier.

The Chairman: I would now like to pursue an item that Senator St. Germain raised, which is the question of the witnesses from the Gitxsan and Gitanyow. I simply would like to ask them, Neil Sterritt and Glen Williams, whether they would like to contradict anything in the evidence that the minister or his associates have given us, whether there is anything they would like to change in what they have said to us, or whether there is anything they would like to add to what they have said to us.

I see Mr. Sterritt nodding his head. Would you come forward, please? Before we get to that, though, Senator St. Germain has a question for Mr. Molloy.

Senator St. Germain: Taking into consideration this document and the Calder claim, the claim of the Nisga'a increased virtually twofold, even more. If we go back to the 1913 petition, it was a little larger than the Calder claim. It includes the lands that are in contention.

Can you say that the Gitanyow did not have enough historical data to justify their claim?

Mr. Molloy: We are dealing somewhat with apples and oranges. Let me make a comment about the issue raised around the Calder map, and I am sure that the Nisga'a will address it. It is my understanding from reading the court documents related to the map that, at the beginning of the trial, the lawyer for the Nisga'a stated that the map they were using at the trial was without prejudice to their claim for a larger territory and that, for the purposes only of the trial and the issues around the Calder case, they were relying on that map. That is my understanding from having read the court documents.

Senator St. Germain: Does this apply as well to the petition?

Mr. Molloy: I do not know.

With respect to the question about the evidence, senator, as I mentioned during the course of my evidence, the British Columbia Treaty Commission process does not require an aboriginal group or a First Nation to prove or to provide evidence with respect to their traditional territories. They file a map that outlines the area that they consider to be their traditional territory. When the Nisga'a entered into the negotiations with the Government of Canada, there was a different policy in effect and they were required, in order to be accepted for negotiations, to file evidence with respect to their use and occupation of their traditional territory. Their claim was accepted for negotiations back in the 1970s, I believe.

Mr. Beynon: Could I add a small point to that. I think it is an important one. The settlement of the Nisga'a treaty identifies areas of land to be held by the Nisga'a and fishing rights, et cetera. Those decisions do not amount to a recognition of aboriginal title or rights. It is what is decided to be the terms of the treaty rights without any admission or denial as to the scope of aboriginal rights or title.

Senator St. Germain: Are you talking about the management area, sir?

Mr. Beynon: That is correct.

Mr. Molloy: Talking about the whole area, the whole treaty.

Senator DeWare: Did I understand today that you, Mr. Molloy, referred to the fact that there were some extra land claims, small portions, that were presented to the B.C. negotiating team that were accepted for the Nisga'a agreement?

Mr. Molloy: No. What I referred to were a number of fee simple parcels outside of their core lands.

Senator DeWare: That were presented?

Mr. Molloy: That were originally presented by the Nisga'a as being parcels of the land that they wished to own in fee simple. As a result of representations and so on, there was a renegotiation; some of the parcels were not agreed to and other parcels were offered in their place.

The Chairman: Thank you very much Mr. Molloy and Mr. Beynon.

I will now call on Mr. Sterritt to respond to my earlier question.

Mr. Neil J. Sterritt: I want to clarify a few things that the minister said as well as a couple of points that Mr. Molloy made. Also, there was a question about an undertaking on our part.

First, the minister repeated in his presentation the fact that he understood there was a Nisga'a-Tahltan agreement. Actually, there were two agreements, one in 1977 and one in 1992. The 1977 one was a flawed agreement. New leadership came in 1992, and that leadership was not aware of what happened in 1986 or 1987 between the Tahltans and us. That is explained in an appendix of Tribal Boundaries in the Nass Watershed. By the Nisga'a claiming the entire Nass watershed, they nullified what they claim to be an agreement. The very fact that they claim 21,150 square kilometres in the Nass watershed would nullify any agreement they are saying they might have with the Tahltan. They created an overlap after the fact. George Asp, their current leader, was there in 1977. He knows what the situation was right after that undertaking with the Nisga'a. It is also elaborated in detail in Tribal Boundaries.

Mr. Molloy mentioned that the issue of a possible conflict on his part was never raised. That may be true; I would have to review the letters. After a certain point, the Gitxsan wrote a letter to both ministers and raised the issue of the federal government exercising due diligence with respect to the overlap issue. I am not sure whether we raised the issue and the appearance of a conflict. However, that letter was there and the negotiators certainly received all the correspondence that went to the ministers.

Who decides goods faith? I believe that naturally the issue of conflicts would come up. I would not want to swear to it, but definitely it had the appearance of a conflict, if not a real conflict. They end up being the same thing; you have to declare yourself.

The issue keeps coming up about what went on the in Yukon in terms of dealing with overlaps. I do a lot of work in Yukon. There is the umbrella final agreement in the Yukon. The Council of Yukon Indians negotiated the broad issues. It was left to the 14 First Nations to negotiate bank final agreements, First Nation final agreements. A First Nation that had an overlap with another First Nation could not conclude a band final until they resolved the overlap. In other words, they were compelled one way or another, by compromise or whatever, to conclude that. I was witness almost exactly a year ago to where that was done. Mr. Molloy is right. It was dealt with in the way that he describes it, but not in situations where there was not good will at the table.

When was the issue of the territory the Nisga'a federal agreement resolved? The fee simples and the wildlife management and fisheries management were arranged in the AIP. We have the correspondence from Dr. Gosnell in which he said that there would be no further discussions -- this was the 1996 letter, which can be found in the handout I gave you yesterday -- until they had reviewed and provided an answer to Tribal Boundaries in the Nass Watershed.

I would be surprised if they did not have their technical people review Tribal Boundaries. If they did not, they are negligent on that front. If they did and they have not acted, then, clearly, they acted in their own self-interest because it was not their interest to do that. That was in 1996. To this day, the only response that we received is that they own the whole thing.

In fact, the issue of trap lines appeared in the submission yesterday. The Nisga'a say that the Gitanyow came into the valley in the 1930s with trap lines. Everybody ended up doing their trap lines in the 1930s, including the Nisga'a, who had trap lines that almost exactly corresponds to their territory, as with the Gitanyow and the Gitxsan. Trap lines can be a shadow of what aboriginal territory is.

The evidence is that back in 1875 the Gitanyow were speaking to their ownership of that territory to a traveller who went through. It is in the evidence I gave yesterday.

The Chairman: It is particularly on what the minister had to say that we are asking for your response.

Mr. Sterritt: The minister said that he takes exception that we are at the table and trying to leaver a position in the negotiations while here in the Senate. I can state categorically that that is not my position. I am here an individual. At the same time, I do have the full support of the hereditary chiefs who are affected by the Nisga'a in the overlap area.

We are not at the negotiating table at this time and we have not made any commitments to go to the table. There have been some letters on the subject, but it has not happened.

The Chairman: That is a direct contradiction. The minister said you were actively negotiating.

Mr. Sterritt: We are not negotiating by any means.

The Chairman: It may be true of the Gitanyow but not true of the --

Mr. Sterritt: It is untrue of the Gitxsan. We went to court. We got money from the province. We sought dual bilateral. The federal government would not bring money on that basis. We were never at the table.

The Chairman: Thank you very much.

Mr. Williams: I want to make a point with respect to the point by Mr. Nault that these were Nisga'a lands. The evidence put forward by Mr. Sterritt yesterday and in Tribal Boundaries carefully looked at our oral history, documented that and the earliest documentary record available, that it is Gitanyow land starting at Ginsgoix all the way up past the Bell-Irving. It is also true that it is Gitxsan land to the east and north of us. We went through Tribal Boundaries yesterday.

We heard from the minister and his staff that paragraphs 33 and 34 will protect us. I gave evidence yesterday and this morning that paragraph 33 of the Nisga'a Final Agreement is not adequate to protect the interests of Gitanyow in exercising their constitutionally protected aboriginal rights on the territory.

I told you about how our system works. It is strongly intact. We have laws that are in play up there now. If this bill is passed, we will see continued conflicts on the territory by treaty rights versus undefined aboriginal rights.

That is why we are putting forward the proposed amendments that we tabled this morning.

The Chairman: Are you in active negotiations?

Mr. Williams: Yes, we are in active negotiations.

The last point I want to make is that we are here to leverage our negotiations. We did not come here with that intent; but we came with the intent of making sure that our concerns on the ground with respect to our chiefs and our relationship to that territory be heard and to make the committee aware of the issues that will play out on the ground. That is why we are here. As well, we are here to offer some solutions, some comfort, and some protection for our people in the next months.

Mr. Hutchins: I have two points. The minister mentioned that he was disappointed at the prospects of the courts directing the relationship, or giving the Government of Canada direction. We have to be reminded that, since the Calder case in 1973, which, of course, greatly assisted the Nisga'a case, the Government of Canada and the provinces have absolutely required court direction before they made any move. If there are active treaty negotiations taking place in Canada, and if there is any semblance of a recognition of aboriginal rights and aboriginal title in Canada, it is because the courts, starting with Calder, have directed it. If Canada is saying that we have a fiduciary duty, it is because the court, in Sparrow, directed it. Now the courts, as we say, are directing good faith negotiations.

The courts themselves have said that they have a role to assist people in negotiations; it is not an either-or situation. The minister said that they can either negotiate or litigate. Our position, and I believe the courts are saying this, is that we can complement the negotiation process. We can help the parties while they are in negotiation. Therefore, it is unacceptable that the Government of Canada would force aboriginal peoples to make that choice, between either negotiate or litigate; it is more nuanced than that.

The final point is that I do not think the minister responded to or addressed our proposal about deferring the coming into force of certain aspects of the treaty. Senator Lawson referred to it as the "resolved box" and the "unresolved box." We are suggesting that certain matters in the treaty be put into the unresolved box, that we create a process for resolving those rights -- those are in our amendments to paragraph 27 -- and do it rationally. Senator Beaudoin is correct when he says that the chances of this thing going to the Supreme Court -- not necessarily the Gitanyow -- are great. There are too many issues involved to suggest that there will not be a court challenge.

I am always amazed by the possibility that politicians and the Government of Canada would not make, at least, best efforts to solve these problems before forcing people to go to the courts. I do not believe the minister addressed this issue. I think the Gitanyow are making a concrete and positive suggestion. I hope that the committee will consider it.

The Chairman: Thank you for your summaries. It was not my intention that this would be another round of questions; all the questions have been asked. I simply wanted to hear, because I assured the witnesses I would want to hear, a comment on the minister's evidence.

Mr. Sterritt, did you have one more comment to make?

Mr. Sterritt: Yes. This issue should never have come to this table. I told that to Jack Ebbels, the negotiator for the province, as well as to the deputy minister, who is a good friend of mine. This should never have come here. It should have been dealt with in 1996. If it was not dealt with in 1996, then it should have been dealt within 1997. If the parties could not resolve it, then we should have had an independent third party. We proposed that. These kinds of issues should not get to this table; it is indicative of a problem.

Mr. Chairman and honourable senators, I want to thank you for the opportunity to attend before the committee. I am leaving on a five o'clock plane; I regret that I cannot stay to hear what other people will have to say.

The Chairman: I wish to thank the three of you, Mr. Williams, Mr. Sterritt, and Mr. Hutchins.

I would now ask Mr. Ebbels, who is the Deputy Minister of Energy, Mines and Resources, and his colleague to now proceed.

Mr. Jack Ebbels, Deputy Minister, Energy, Mines and Resources, Government of British Columbia: Thank you for inviting us. As the chairman said, I am currently the Deputy Minister of Energy and Mines for the province of British Columbia. From November 1996 to November 1998, I was Deputy Minister of Aboriginal Affairs for the province. Prior to that, since August 1992, I was the province's chief negotiator in these treaty negotiations.

I would like to read in a presentation to this committee by the Honourable Dale Lovick, Minister of Aboriginal Affairs for British Columbia. Unfortunately, he could not be here today. The Honourable Dan Miller, Minister of Energy, Mines and Northern Resources and former premier of British Columbia, and whose constituency includes the Nass area, also sends his regrets for his inability to attend today. I believe this paper has been distributed to the senators. I will read it in on Mr. Lovick's behalf.

As Minister of Aboriginal Affairs for British Columbia, I regret I am unable to appear in person before this committee to give support on behalf of the Province of British Columbia for the passage of the Nisga'a Final Agreement, but I am pleased that Jack Ebbels, the former Nisga'a chief negotiator for the province and my former deputy minister of Aboriginal Affairs, is with you to discuss issues of concern to you and to answer your questions. He is accompanied by Patrick O'Rourke, Assistant Deputy Minister in the Ministry of Aboriginal Affairs, and a former member of the Nisga'a negotiating team for B.C.

The Nisga'a Final Agreement represents an important point in the history of British Columbia and Canada -- it represents our reconciliation with the Nisga'a people and establishes a new relationship with them. We look forward to the passage of the Nisga'a agreement so that we can begin the work of implementation of the treaty provisions, which will create self-reliance for the Nisga'a Nation and certainty for the regional economy.

As you have heard, the Nisga'a Final Agreement was achieved after many years of negotiation. The Nisga'a have been trying to negotiate a treaty for 112 years. Tripartite negotiations took more than eight years, and since the achievement of an agreement-in-principle in March 1996, the agreement has been the subject of the most intense debate and consultation that any piece of legislation in British Columbia has ever seen.

More than 450 meetings with advisory groups and the public were held before and after the signing of the agreement-in-principle in March 1996. A legislative committee held 31 public hearings in 27 British Columbia communities from September 1996 to March 1997. More than 20,000 people called the Ministry of Aboriginal Affairs 1-800 line for information and tens of thousands of copies of the final agreement were mailed to British Columbians. There were more than 250,000 visits to the ministry Web site in a nine-month period.

The Nisga'a Final Agreement Act was debated longer than any other piece of legislation in the history of B.C. and was passed by a free vote in the B.C. Legislature.

I am pleased that the Senate has taken this time to gain some detailed knowledge of the Nisga'a agreement. Therefore, instead of attempting to summarize the contents of the treaty, I will focus on a few key arguments against the treaty and some of the myths that have been circulating for the past months, since the conclusion of the final agreement. I encourage you to question Mr. Ebbels on these and other matters.

The first argument concerns overlap, an issue your committee has been examining. The Nisga'a Final Agreement clearly states that it does not affect the constitutionally protected rights of any aboriginal people other than the Nisga'a. There are also provisions and remedies in the agreement, under the general provisions section, to address aboriginal rights of other FirstNations. Paragraphs 33 and 34 state that, if the courts were to find that the treaty does affect the rights of other aboriginal peoples under section 35 of the Constitution Act, then that section of the treaty will no longer be operative. Best efforts will be made to amend the treaty to remedy or to replace the provision.

I would also point out that in 1998 the Gitanyow sought a court declaration that the province and Canada could not enter into a final agreement with the Nisga'a prior to the conclusion of negotiations with the Gitanyow. However, the court dismissed that claim last June.

The province's position on overlap is consistent with the 1991 B.C. Claims Task Force, which recommended that the First Nations should resolve overlap issues among themselves. It is worth noting that the Nisga'a Tribal Council has a long history of good faith efforts to resolve overlap issues with neighbouring First Nations. They have signed agreements with the Tahltan and Tsimshian and have actively worked with the Gitanyow in attempts to resolve overlap issues during the past 10 years.

B.C, for its part, has been actively involved in an ongoing effort to facilitate discussions between the Nisga'a and the Gitanyow and has supported mediation efforts. We remain committed to Gitanyow negotiations. Along with Canada, we presented a land and cash proposal to them late last year. Negotiations are ongoing in hopes of reaching an agreement-in-principle with the Gitanyow in the next few months.

The second issue I want to address is one of governance. I know you have heard several witnesses who believe this agreement will create a race-based enclave and those who say the treaty is unconstitutional. The Province of British Columbia strongly refutes that claim. We have sought legal opinions from leading constitutional experts and they say the powers being granted to the Nisga'a in this treaty are within the framework of the Canadian Constitution.

With this treaty, provincial and federal laws will prevail in the event of a conflict in most areas. We have agreed that, in some areas, including those integral to Nisga'a language and culture, as well as Nisga'a lands and treaty entitlements, Nisga'a laws will prevail. In all areas, including these powers, the Nisga'a government will not have exclusive jurisdiction. Rather, the jurisdiction will be concurrent with federal and provincial laws.

In fact, the treaty gives the Nisga'a the usual powers of any municipal government -- traffic, land use, zoning and police. Any laws created by the Nisga'a authorities must conform to federal and provincial standards. If there are problems, federal and provincial laws will take precedence.

Nor is B.C. giving up any powers; just the opposite. For the first time, important provincial laws, such as the Wildlife Act, Highways Act and Schools Act, will now apply to people who used to be exempt because they were governed by the federal Indian Act. The only real difference is that the federal Indian Act will no longer tie the Nisga'a to the federal government's apron strings. The agreement allows them to manage their own local affairs and maintain their culture. That leads me to a general argument in support of self-government, the sticking point for many opponents of the treaty.

Let us be clear that the existing system has not worked, for aboriginal people and the rest of society. One of the key indicators of health and well-being of aboriginal people and their communities is the incidence of suicide. As I am sure you well know, suicide rates for status Indians, especially youth, are as high as six times the rate for non-native persons.

I want to refer the committee to a paper published by Michael Chandler and Christopher Lalonde of the University of British Columbia, entitled "Cultural Continuity as a Hedge Against Suicide in Canada's First Nations." It offers the premise that increased control by aboriginal communities over their own social and economic affairs can lead to improved health and well-being.

Here is a quick summary of the study's conclusions. Some First Nations control over policing and fire services resulted in a 20 per cent reduction in the relative risk of suicide. Some First Nations control over health care resulted in a 29 per cent reduction. Community-based land claims initiatives resulted in a 41 per cent reduction. Some First Nations control over education resulted in a 52 per cent reduction. Most important, some form of self-government resulted in an 85 per cent reduction in the relative risk of suicide. The message is clear. If we want to assist aboriginal people in undoing the damage of the past, we must get out of the way and let them take charge of their lives, their communities and their futures.

Finally, I want to touch on the claim that the Nisga'a agreement is a template for all treaties in the province. Every First Nation community is different and has very different local interests and needs. As each community's circumstances are different, so too will each treaty be different. The proof of this is in the text of the Sechelt Agreement-in-Principle, which was signed last year, and the five land and cash offers the province and Canada have tabled since then. An examination of these agreements and offers will show that, although there are areas of similarity, each of them is adapted to the unique circumstances of the communities involved.

In closing, I urge the Senate to give their support to this agreement, which gives the Nisga'a the opportunity to manage resources and services on their own lands, subject to B.C. and Canadian laws, and offers them a real opportunity to build an economic base, become self-reliant and to participate on an equal footing in Canadian society.

British Columbia is already paying the price of doing nothing about land claims issues. We are paying the price by marginalized communities and systemically high rates of unemployment. We are paying in lost investment, lost employment and lost opportunities, which is costing us billions of dollars.

The Nisga'a want this treaty. It is the product of over 20 years of long and difficult negotiations. The provincial government has been at the table for eight years. The agreement has been carefully crafted and it has been molded to accommodate the needs of all three parties. It is a compromise in the best sense of the word, in the sense that Chief Justice Lamer spoke of when he spoke of give and take, and when he reminded us that at the end of the day "we're all there to stay."

The Nisga'a nation and British Columbia have ratified the Nisga'a Final Agreement. I urge the Senate to now pass this agreement as it stands.

I will end my remarks by posing two questions to the committee: If not after 20 years this treaty, then what treaty? If not now, after all this time, then when?

The Chairman: Thank you very much, Mr. Ebbels.

Mr. Ebbels: If I may, Mr. Chairman, having spent so much time at this and having traipsed around the province to so many different places, so many times, I felt it might be helpful to the committee if I referred to several things. I would appreciate a chance to set the record straight on a few things I have heard over last couple of days.

There are two other pieces of paper that I believe have been handed out to honourable senators. One is a list of all of the advisory committee meetings we had prior to the signing of the Agreement-in-Principle in March 1996. Then it goes on to list all of the advisory meetings we had between the Agreement-in-Principle and the final agreement.

Prior to the Agreement-in-Principle, there were some 220 or 230 meetings. After the Agreement-in-Principle, there were another some 230 meeting. We stopped counting after the final agreement became public, but there were hundreds more prior to the bill being introduced into the legislature.

When people talk about the agreement being negotiated in secret, I would refer them to the list of all of those meetings. Patrick O'Rourke and I probably attended two thirds or three quarters of them, in addition to many private meetings with people of all walks of life throughout British Columbia. I would refer those who talk about the agreement being negotiated in secret to the list of the provincial treaty negotiation advisory committee members, which I believe is before the members in this chamber. You will note that it includes virtually every umbrella organization, lobby organization or interest group organization that exists in British Columbia.

In addition, there were six regional advisory committees, a number of them listed before the members, that we met with on a regular basis. I am sure that the Nisga'a will attest to how often we had to not show up at the table or leave the table in order to discuss the treaty, not just in general but in great detail.

I would also remind honourable senators -- I believe there has been evidence of this before you already -- that a select standing committee travelled around the entire province between the time of the Agreement-in-Principle and the final agreement.

I will speak to the contention that no changes were made to the Agreement-in-Principle, or, to put it another way, "Even if you consulted, you did not listen." The certainty provisions, which were far and away the most controversial and high-profile issue everywhere we went in the province, with every advisory group we ever spent time with, were changed dramatically. You need only refer to the final agreement to see how they were changed. We had very detailed and lengthy meetings with the Business Council of British Columbia. We reviewed all the options in great and painful detail with the treaty negotiation advisory committee. Consequently, you have a product before you that has been, I think it is fair to say, widely acceptable as a solution to the problem.

Those provisions were not in the Agreement-in-Principle. There is a brand new title on land titles that makes it crystal clear that Nisga'a lands are fee simple lands within the Province of British Columbia.

There is an entire about face on the provisions regarding highways, and a whole new chapter has been included largely because of consultations we held widely around the province. It is assured that the highway into the Nass Valley and through the Nass Valley is a provincial highway.

Contrary to what I thought I heard yesterday from the representative from the B.C. Wildlife Federation, there are very significant changes to the wildlife chapter because of the Wildlife Federation. The final agreement, and I hate to bore you with the details, includes a cap on the amount of moose that can be harvested. That was not in the Agreement-in-Principle. Grizzly bear entitlements are included. That was not in the Agreement-in-Principle. We expanded the wildlife committee at the urging of the wildlife committee so that there were enough provincial members <#0107> and I regret that Senator Lawson is not here, because I would be happy to answer his question about the $20,000.

The Chairman: We will tell him what your answer is.

Mr. Ebbels: We wanted to ensure that we had enough seats, so that we could put a member of the B.C. Wildlife Federation on our team at the committee. We struck that deal with the B.C. Wildlife Federation, and you will see that in the final agreement.

The Chairman: Could you explain the deal you struck with the Wildlife Federation?

Mr. Ebbels: Would you like me to?

Senator St. Germain: Yes, quickly.

Mr. Ebbels: First, the negotiations were between the Nisga'a, the province and Canada. Negotiations centred on the reconciliation of their rights and entitlements with ours and Canada's, not with the B.C. Wildlife Federation.

The deal we struck with the B.C. Wildlife Federation <#0107> and, by the way, the process was very painful. I am sure that I was accused of negotiating in bad faith a number of times over there. We had to go back and change what we had agreed to tentatively in an agreement-in-principle, to expand it. The deal was that we would expand it in order to create a place for the Wildlife Federation on our team but that we would not pay them. That was the deal.

The Chairman: Did they accept that arrangement?

Mr. Ebbels: Yes. The $20,000 that the witness referred to is not specifically for Nisga'a's attendance on that wildlife committee. It is for wildlife management purposes. It is not in the treaty. It is not a treaty entitlement forever. The $20,000 is in the fiscal financing agreement that is in place for, I think, five years. It is like a contribution for start-up costs.

I will speak to the issue of regional government relations. We negotiated with the representative of the Regional District of Kitimat-Stikine at the table, and precisely parroted what they wanted to see in the final agreement.

There is an entire chapter on forestry transition. A portion of Nisga'a land comprises TFL No. 1, which is held by Skeena Cellulose. There will be a gradual ramp down of Skeena Cellulose involvement in that area of Nisga'a lands and a gradual ramp up of engaging Nisga'a contractors. There are very detailed provisions in the treaty that were not in the Agreement-in-Principle. We discussed those provisions extensively and in painstaking, boring detail with Skeena Cellulose, contract loggers, IWA representatives. I think it is fair to say they were generally pleased with the transition provisions.

I will stop there. The list is actually fairly endless, but I wanted to make those comments in address to comments I have heard in the last couple of days.

I do not know if anyone has mentioned this, but an ombudsman's report was done in 1997. The ombudsman in British Columbia is an officer of the legislature and is appointed by an all-party committee. The ombudsman was asked to look into and determine whether there had been an adequate opportunity for public consultation and input into the treaty. The ombudsman concluded, I do not have the exact date before me, that the public in fact had adequate and ample opportunity to provide input into the treaty and that they were adequately consulted.

The next issue refers to something you heard from the representative of the B.C. Cattlemen's Association. They are alarmed about potential impacts on private tenure holders and private interests in a treaty area. I can tell you that there is not one existing tenure -- except the one whose majority owner is the Crown, that is, Skeena Cellulose -- that is adversely affected by this treaty. In fact, the opposite is true. Not all fee simples were affected. There is an existing agricultural lease and a woodlot lease that are completely unaffected.

In fact, the opposite is true. Those of you who are familiar with rural B.C. know that access is terribly important. There are only so many ways you can go through the mountains and valleys. There are not a lot of provincial bureaucrats out there, and for a century or so, governments have not paid much attention to the First Nations out on the land. Consequently, there are many unperfected access routes into fee simple parcels, into BCTel repeater sites, things like that. We in fact negotiated, put in an appendix to the treaty, detailed provision that secured access that did not heretofore exist.

If the Nisga'a treaty is a template -- and I hate to use the word "template" because the Nisga'a treaty is not a template -- and the cattlemen are afraid of it, they need not be. The treaty is a fabulous template for the impact of treaties in other parts of the province.

The issue of water rights was raised with some concern. I want to tell you how much water is in the Nass. It is something like 233 million cubic decametres per year, I think. The Nisga'a's water allocation -- which, by the way, is for possible future small power projects, a kind of economic opportunity -- is 300,000. I believe that is the figure. Their allocation is a small fraction of the unrecorded water available on the Nass River.

You do you have a very different situation in the interior of British Columbia where there is no unrecorded water. That means that all the available flow is licensed, is all taken up.

Therefore there will have to be a different solution in the interior, particularly over water rights. As the senator from Alberta and Senator St. Germain admonished the witness, the way to solve is it to meet with your neighbours and come up with a solution that was not invented for you in Victoria or Ottawa, something that will work on the ground. However, it will have to be a different solution.

One other point before I turn it over to Mr. O'Rourke. We wanted to talk about paramountcy. There has been a lot of discussion about the 11 or 14 or 16 areas where Nisga'a laws trump federal or provincial laws. I think it is worth some elaboration from our point of view.

With due respect to Mr. MacDonald, who is a distinguished British Columbian, I want to correct the record on at least one point. He was expressing some concerns about policing and the administration of justice, and the inability of the attorney general to manage policing in British Columbia. I will refer you to paragraph 19 in the Administration of Justice chapter. It is on page 189 of the document I have before me.

If the Minister is of the opinion that:

effective policing in accordance with standards prevailing elsewhere in British Columbia is not being delivered within Nisga'a Lands; or

it is necessary or desirable to ensure effective delivery of policing in accordance with standards prevailing elsewhere in British Columbia

the Minister, on terms approved by the Lieutenant Governor in Council, may provide or reorganize policing within Nisga'a Lands by appointing individuals as constables, using the provincial police force to provide policing, or by other means.

The minister referred to is the attorney general. It is a recitation of the attorney general's power over municipal policing as provided for in the British Columbia Municipal Act. It is the ultimate hammer that the attorney general has over policing of a municipality in British Columbia and it is protected in this treaty.

Again, I cast no aspersions, but I sometimes get a little frustrated when factual details exist to address some of the concerns. I know that it is a very large and complex document. It is a complex topic. I think that is the answer to Mr. MacDonald's concern.

There has been so much discussion about concurrency and paramountcy, I will ask Mr. O'Rourke to give you our view on it.

Mr. Patrick O'Rourke, Assistant Deputy Minister, Negotiations Support Division, Ministry of Aboriginal Affairs, Government of British Columbia: The starting point in understanding this issue is to recognize that this agreement does not give the Nisga'a any exclusive powers; all of their governmental powers are concurrent. That means that they operate together with federal or provincial authority. I should mention that I am a lawyer, but I will try not to talk too much like one.

If there are two laws that appear to govern the same issue, there are rules of paramountcy. Sometimes those are judicially imposed, and sometimes those rules are set out in legislation or, in this case, a treaty.

I will give one very simple example. Currently, both Canada and the province can legislate. While sections 91 and 92 are exclusive in theory, in practice, both governments legislate in the same areas. If you are convicted of impaired driving, under the Criminal Code of Canada, you lose your driver's licence for a set period of time. The B.C. Motor Vehicle Act, which governs the provision of licensing and drivers licences, states that in the event of such a conviction, you lose your licence for a longer period. There are two rules; is there a problem? The courts say that is not a conflict, that is simply a case where there are two laws and people have to obey both. In this case, you lose your licence for the longer period, 12 months.

Sometimes laws do conflict. There can be a circumstance where one law says you must do this, but another law says such an action is illegal. In those cases, you need a rule of paramountcy. In the Nisga'a treaty, we negotiated rules of paramountcy that cover every area of Nisga'a law-making authority. In some cases, we agreed that Nisga'a laws would be paramount. That means that in those rare cases where the laws are saying different things, the Nisga'a law will be the deciding law, at the margins, is one way to put it.

We agreed to that in two general areas. The first group of law-making powers concerns issues where in the province's view, it is not the government's job to have the last say -- Nisga'a language, Nisga'a culture. When governments had the last say on aboriginal language, they passed rules forbidding aboriginal people to speak their language. We did not think that the Nisga'a should ever face that risk again. In the past, the federal government enacted laws banning aboriginal culture. Potlatches were illegal in B.C. and people went to jail over it. We felt that in the future, under the treaty, the Nisga'a should never face that risk again. We accomplished that not by giving them exclusive authority over their culture, but concurrent powers that prevail in the event of a conflict. They have paramountcy on internal matters.

Similarly, where they are treaty benefits -- money and lands provided under the treaty -- it is the Nisga'a who ought to have the final word on their use. They ought to have the final word on how to organize their government. We agreed to paramountcy in those areas.

The other broad areas, and these are probably of more concern to the province because they relate to areas of provincial jurisdiction, were things like education and child welfare. We built in conditions on Nisga'a law-making authority that protect -- fully protect -- critical provincial interests.

Let me use education as the example. I am talking about the education of Nisga'a people on Nisga'a land -- not of me, not of you, not of my children. However, those laws must contain standards equivalent to provincial standards in terms of curriculum content, examinations, teacher qualifications, and objective tests. Those standards are needed to allow Nisga'a students to transfer into other provincial schools and to gain entry into provincial universities. If they do that, then the law is valid.

If the law is inconsistent with a provincial law in some other area, the Nisga'a law prevails. What are those other areas? The province says that the school year starts on September 15 and ends June 26. Perhaps the Nisga'a decide to start on September 18 and end on June 29, for whatever reason. The province may consider that to be acceptable, as long as the system educates students to prescribed standards and teachers meet required standards and qualifications. Other differences would be acceptable.

I will not go through every one of the powers. Of the 14 that have been listed, each one falls into one of those two general areas, where either we did not think it appropriate for governments to have the final say, or government interests were adequately protected by the limits built into the treaty. We were prepared to allow the Nisga'a other variances in areas that simply were not critical to proper or appropriate education.

The Chairman: Thank you very much for that presentation.

Mr. Ebbels: I want to add one thing. I would like to try to give you a feel for the concern about paramountcy. You have heard many presentations arguing that sections 91 and 92 cover exhaustively all legislative authority in Canada. That is it; there is no more. It is argued, therefore, that if you are going to establish a self-government arrangement, it must be delegated.

On the other hand, you have heard many submissions that the aboriginal rights that are protected under section 35 of the Constitution include the inherent right to self-government, and thus there is something to negotiate. If you do, it is protected by the Constitution.

Now, for the purpose of the argument and without taking sides, someone is right and someone is wrong and a court will likely determine that some day. It is very important in British Columbia that treaties are negotiated and that we show some progress. Minister Lovick touched on a number of these points in his submission. They are: legal reasons, such as those that you have heard here before, and exhortations by the Supreme Court of Canada and others to get on with it and negotiate resolutions; social reasons, such as consideration of the conditions on reserves, as generally they are absolutely appalling -- I believe that no one would disagree with me; and economic reasons that are urgent and not just for the benefit of the non-aboriginal population, but rather all British Columbians. I am in the Energy and Mines portfolio and I spend a lot of time with companies trying to raise capital. There is a discount for doing business in British Columbia because of unresolved aboriginal land claims. There are estimates that we are losing $1 billion in investment annually -- money not coming into British Columbia because of the uncertainty in the landscape.

In consideration of these facts, it is important that we settle treaties in British Columbia as soon as possible. In terms of the legal disagreement, there was no way that the Nisga'a were going to sign a treaty that contained a delegated form of government, for the very reasons that Mr. O'Rourke just explained. As an example of what can occur, in the past, a delegated government could leave a Status Indian who went into a bar with no status. You could not speak your own language, you were taken off to residential school, and you could not partake in the homestead legislation that provided settlers with about 100 acres per person. Indian people were not entitled. That is what happened, and the ability of delegated government to change things unilaterally resulted in a perspective that was eventually brought to the negotiating table: "No treaty if it is going to be delegated. It ain't on." Thus, we needed to figure out a way around it, and this is the solution we came up with.

It was, in my view, a very practical way to get through an extremely difficult situation.

The Chairman: You have covered a lot of ground that would have had to be covered in questions because, as you were well aware from the evidence, many were raised in these areas.

Senator Rompkey: I will make some general comments because I am a newcomer to the committee and I am running very hard to get up to speed on the details. I am not thoroughly familiar with the details of the Nisga'a agreement but I have listened very carefully to what has been said.

I want to make some general comments. First, I wish to congratulate these two witnesses on what is obviously hard, intense, profitable work -- successful work. That has not only involved ability, but courage, and that should be expressed to the Government of British Columbia as well. These things are never easy, and it not only takes determination, but some courage.

I will comment on one of the remarks about the template. The comment was made that perhaps Nisga'a will be a template. A further comment was made that each first nation is different and has different interests and needs, and so treaties will be different. In fact, Nisga'a will be a template. That is not a bad thing, it is a good thing. I can tell you that at the other end of the country, in Northern Labrador, while Nisga'a was being negotiated, there was a great deal of attention being paid to it. Indeed, you will see this summer, when the agreement in principle is voted on, that the self-government agreement in Northern Labrador is very similar to the Nisga'a agreement. The Nisga'a agreement, in fact, has set a bar and it is good that we have something to aim at, that we have a standard, and that it is substantial. Hopefully, it will be an effective one with the same concepts of concurrency and paramountcy included.

I will make a comment on that point about the template. Indeed, it will be the template and I believe that it is having a very positive effect.

The Chairman: I will comment that both Minister Nault and representatives of the province of British Columbia, as well as others, do not see the agreement as a template. They see it as a stand-alone type of agreement in a very particular circumstance. You may be correct, over time, but certainly the government is not seeking to push the agreement as a template. Mr. Ebbels, would you speak for the Province of British Columbia?

Mr. Ebbels: Thank you for those kind remarks. It is not a template in the sense that it is a cookie-cutter. If the names and numbers are changed, you have another deal. It is necessary to play with the cards that you are dealt in a particular area as diverse as British Columbia. However, there is no question that we spent thousands of hours trying to solve the certainty problem. In other words, is there other language that you can use to bring some certainty and finality to treaty-making, rather than in exchange for what is in the treaty, or having the rights and title extinguished. Thousands of hours were spent on that and thousands of hours on the dispute resolution system. We believe that we have got it right and that we have done a good job. There are numerous such aspects that we will be promoting at other tables, such as whether the Charter or the Constitution applies, and the fact that we want parks to be parks at the end of the day, and so on. I look more toward the asset side of the treaty as being dramatically different, depending on where you are. There will be some completely different solutions to the example that I gave before of water rights.

Senator Rompkey: I was not referring to the intention of the Government of Canada -- perhaps it was not the intention that this be a template -- but rather I was talking about reality, and examining models. It is like union contracts, in that one union will sign a contract and others will follow suit throughout the industry. The same thing is happening in aboriginal communities. People in those communities are watching what is happening in this country, and they are drawing conclusions from the efforts of other people. That was what I wanted to say, not that the Government of Canada wants to implement this. You said that in your presentation and I agree. Every circumstance is different. Naturally, there will be models, as that is the reality of the game.

Senator St. Germain: I phoned former premier Dan Miller, who told me, "Jack Ebbels is coming." I understand his enthusiasm, as you are well versed in the agreement and the surrounding issues, Mr. Ebbels. You have delivered that information well. You spoke of delegated authority being a non-starter with the Nisga'a. In discussions with Mr. Aldridge, we determined that this entity continues, based on economics. With transfer payments, it would be like a municipality. I asked this because there are agreements, such as those with Yukon, Gwich'in, Sahtu and others, on a delegated basis. I do not see that those are in jeopardy in any way, shape or form.

What Nisga'a will be is not cast in stone, and yet that has not triggered controversy. It has brought an end result where these people seem to be very happy. Could you comment on that?

Mr. Ebbels: That is a legitimate point. I tried that one on the Nisga'a and failed. We will pursue a delegated model at a table, if all parties are willing, and the Sechelt is an example. It is a form of double delegation. They are happy, have been heretofore happy with it, as is the province and Canada, and there is no desire among those parties to change it. We will not force the Nisga'a approach down their throats.

Senator St. Germain: I agree with you that we must have stability. You know better than anyone, having served as a deputy minister, of the problems at Gustafsen Lake in British Columbia.

My question -- and I know you have been sitting here and either putting up with the proceedings or enjoying them -- is on the overlap issue. If I am misreading this, I would like you to correct me.

I look at the documentation that has been supplied and have to believe that it is correct that the Calder claim, and then the 1913 petition claim, were considerably smaller in size, and certainly did not include any fee simple claims on lands that are now in contention.

The minister said today that these people were in negotiations. He is partly but not completely right, because the Gitanyow are at the table but the Gitxsan are not.

We look at what we have to deal with, including minority rights being trampled on. You are a professional and you will be there. One thing I discovered, as a minister and a member of Parliament, is that you people last for ever and we come and go.

Mr. Ebbels: In British Columbia, I think the lifespan of a deputy these days is about two and a half years.

Senator St. Germain: I know things do change.

We have a horrific situation to deal with. I do not know if you listened to the evidence. It was not veiled threats exactly, but there were statements to the effect that they will protect their territory on the ground. We could end up, in theory, sir, with serious confrontations among our own aboriginal peoples, which would be a terrible situation for everyone. It would exacerbate things to the point that I do not know where it would end up.

Mr. Ebbels: I will begin, and you stop me if I go on too long.

It is a very difficult problem.

I want to, for the record, take exception to some of the opinions that former Premier Clark, or other government members, barrelled ahead with the Nisga'a treaty with the intention of steamrolling Gitanyow's or anyone else's aboriginal rights.

I cannot, as you know, disclose cabinet caucuses, but I spent hundreds and hundreds of hours there while we were developing positions and there were very serious, very lengthy discussions on this issue for many years.

I can try to encapsulate the problem. Disputes between first nations have been going on for who knows how long -- decades, hundreds of years maybe. The power of a community waxes and wanes and there are many reasons for that.

Please do not forget this imperative in British Columbia to try to bring more certainty to the landscape by resolving treaties for those three general reasons that I spoke of: legal, social, and economic. They are with us all the time, together with a fair amount of expectation on first nations' part, given various cases like Delgamuukw and Sparrow that have affirmed various kinds of aboriginal interests, that they will be resolved.

You are faced with an unresolved overlap. The Province of British Columbia, and Minister Nault said the same thing earlier about Canada, does not want to go in and decide whose claim takes precedence over others. That would be an impossible task from the outset. We want to see it resolved by first nations.

What do you do when you have tried and failed? There were efforts by Canada that Minister Nault referred to, and numerous efforts by the province. There have been efforts by the Nisga'a and Gitanyow themselves.

What do you do when the processes that everyone has tried have not resolved them? Both you and Senator Andreychuk were getting at the nub of one side of the problem when you were suggesting that by proceeding with the Nisga'a treaty, we were favouring the Nisga'a to the alleged disadvantage -- I do not mean that in a mean-spirited sense -- of the neighbouring first nation. That is a legitimate point of view.

The other point of view is that by not proceeding with the Nisga'a treaty because of this unresolved overlap, that is to their prejudice. Why should they be held up because of the positions taken by neighbours? Conversely, why should the neighbours feel aggrieved because of the position of the Nisga'a?

Senator St. Germain:Why is it then that you would not go to arbitration? It could be a native arbitrator. At one time, the B.C. Treaty Commission produced a document stating that there would be no treaties or agreements signed unless overlaps were resolved.

Mr. Ebbels: You hear that a lot. The recommendations of the B.C. Claims Task Force do not say that. I might not have it quite verbatim, but it reads that no treaties should be concluded unless there is a process for resolving overlaps. It does not require that overlaps be resolved before treaties are concluded.

Senator St. Germain: Is that the revised one?

Mr. Ebbels: No, that has been there since day one.

Senator St. Germain: Okay.

The Chairman: May I move to Senator Grafstein and give Senator St. Germain the opportunity to resume?

Senator Andreychuk: I have a supplementary question on that.

The Chairman: Certainly, Senator Andreychuk.

Senator Andreychuk: Your point of view is that perhaps the Gitanyow and Gitxsan are disadvantaged by the way you chose. If you had not proceeded, the Nisga'a would have been disadvantaged. I agree with that. My difficulty is that you change the game when you put in compensation. You did not say, let us proceed with the Nisga'a, let us talk about the disputed area, and then let us leave the options open as to who has that right. You seem to have weighted it in favour of one party. That is the point I would like you to explain.

Mr. Ebbels: I will make two points on that. The Government of B.C. believes, as does the Government of Canada, that paragraphs 33, 34, 35 and the general provisions are the best solution to enable us to proceed with treaty making in the face of unresolved overlaps. We believe that they are the best protection imaginable while still allowing us to proceed with treaty making, considering the imperative in British Columbia that we must get on with it and show that we can do it.

Second, the negotiating team spent hundreds of hours considering that. We talked about placing certain areas in some sort of limbo, or deferring the implementation of part of it, however big or small that part might be. The problem is how to unbundle that. You cannot deal with access rights as thoroughly and as definitively as the rural public in British Columbia in particular demands without having pinned down the land quantum. You cannot pin down the cash quantum without pinning down the land quantum because there are notional values attached to the land. It is very difficult to pin down the wildlife management regime, for example, with part of it in limbo.

We came to the conclusion that it was extremely difficult to do. You may disagree with that, but this is the solution we arrived at. I would love it if they were all resolved. Arbitration is usually preceded by mediation, and we have been in mediation. I believe that mediation was put on hold while we tried to speed up the negotiations. Those negotiations are going on, albeit not very well according to the Gitanyow.

Senator Grafstein: Thank you for your evidence. I want to get back to a central point that you raised, the choice of models of governance. You have heard my position on this, so I will not repeat it. You have given some answers and obviously we will look at that.

There were really two models of governance. One is the delegated model that, as we have been told, works very well. This model of governance was, in a way, not unlike the establishment of new provinces. Historically, the federal government was concerned that the establishment of a province might interfere with the Royal Prerogative or sovereignty rights. Therefore, we had the disallowance provision under our Constitution.

As you know, as constitutionalists, we have been told recently that the disallowance provision, which was a check on errant provincial legislatures, has atrophied over the years. It is my understanding that in the United States, the Navaho Nation, for example, has full powers to explore their identity, clarify their rights, be independent, self-determine their issues and so on, yet the American Congress has never ceded its powers. It is my understanding that since 1888, there has been a devolution of activity so that the Navaho nation now has a court system. They even have courts that are appointed, contrary to the other provisions. Yet at the end of the day, the American Congress has always sustained its overriding powers without interfering with the so-called right of determination under the federal umbrella.

We have been told that there are 51 negotiations yet to go -- although we have heard various numbers on that -- in British Columbia alone. We have heard the chairman and the minister say, in contradiction of Senator St. Germain, that this is not a template, that this is a one-off.

Does this not present a real problem in future negotiations? The delegated model would ease the concerns of many senators, a lot of Canadians in general, and a lot of people from British Columbia who object to this from a constitutional or policy standpoint. Where do we go from here? We have evidence that the delegated model works. We have evidence that the other model raises serious constitutional issues. We have heard from you on concurrent powers. There is still some concern about that. Paragraph 35 is not as clear as you say you would like it to be. Where do we go from here?

Mr. Ebbels: There are 197 Indian bands in British Columbia. There are approximately 600 across Canada. Therefore, one-third of them are in British Columbia. They are all operating under the delegated model under the Indian Act. Subject to what the band council resolutions say, hardly any provincial laws apply. It is state administration and has been a disaster, as evidenced by the social problems. We hope to get rid of that.

One of the problems with the current process is that there are so many bands involved. Some are very tiny and arguably should be part of a larger tribal or linguistic group, but that is for the treaty commission to sort out.

At the end of the day, I would like the 197 delegated forms of local government that are disasters to disappear. I heard it said here earlier that we are creating mountains of consultative obligations with 40 or 50 Indian bands and that that brings the province to a standstill. That is what we have now. The Supreme Court of Canada is telling us that we must consult, that we cannot impact aboriginal rights. Who do we consult with? In dealing with the Nisga'a, we had to deal with at least four village governments, and a bunch of clan chiefs or family heads. That costs the province an incredible amount of money and takes an incredible amount of time.

That is one of the reasons that there is a discount for doing business in British Columbia. If you want to put in a new mine or highway, there are always questions about who has been consulted, whether the consultation has been adequate, and whether the bands have sufficient capacity to properly assess the project. After this treaty comes into effect, we will only have to consult with the Nisga'a central government, and the treaty specifies precisely what we must consult on. If it is not in the treaty, we do not have to consult.

It will save us and the Nisga'a great deal of time and money. The province believes that this solution is worthy and too late in coming. It is not going to create a plethora of consultation obligations. It will have the opposite effect.

The Chairman: Senator Grafstein, I thank you and the witnesses. Are there any other senators who would like to ask a final question?

Senator St. Germain: This agreement was outside of the B.C. Treaty Commission process, was it not?

Mr. Ebbels: That is right. The negotiations were not conducted under the auspices of the B.C. Treaty Commission because they were started in 1976 and the commission got up and running in 1991.

Senator St. Germain: In response to Senator Grafstein's question about delegation versus constitutionalization, or whatever you want to call the process that we are going through now, the Sechelt have delegated self-government. Their plight has been improved by virtue of that. I do not think it is fair to say that delegation will relegate these people to abject poverty and is responsible for the social dilemmas that they are facing now. I wanted to clarify that.

Mr. Ebbels: I did not mean to leave that impression. That is a good point.

Senator St. Germain: Okay.

The Chairman: Thank you very much, Mr. Ebbels and Mr. O'Rourke. We greatly appreciate your being here and speaking for one of the parties to the agreement.

We have, as an individual witness, Mercy Thomas.

Ms Mercy Thomas: Honourable senators, ladies and gentlemen, my name is Mercy Thomas. I am also known as Nisibilada, a matriarch from Nee'is'lis'e'yans wilp. wilp means "house" in the Nisga'a language. Nee'is'lis'e'yans Wilp is part of the Wolf Clan of the Git Gingolx and the Nisga'a. My crest is the howling wolf. I am married with four sons and one daughter, 16 grandchildren, four great grandchildren, and I do not know how many more on the way.

I started working when I was 10 years old. Presently, I work as an aboriginal cultural worker in the Surrey School District. My job is to create awareness and bridge other cultures to the aboriginal culture. Now that I am 65 years old, I will be retiring in June. I would also like you to know that I am one of the survivors of the residential schools.

There were eight siblings in my late mother's family. I have two sisters living. There are approximately 600 people in our wilp. I come from Kincolith, which is accessible only by air and water. Kincolith is part of the other Nisga'a villages of Greenville, Canyon City, and Aiyansh. It is a part of the Upper Nass.

Our way of life is distinctly different. Under the Indian Act, I am a member of the Kincolith band. I am a Canadian citizen.

Honourable senators, as a matriarch, I have direct responsibility for the people in my wilp and on our lands. Each wilp, under the guidance of the chiefs and matriarchs, has exclusive control over certain areas of land that cannot be infringed upon by other clans. From that land, the members of the wilp gain the right to sustenance, like hunting, fishing, and gathering of food. This is our way of life in Kincolith.

To make my point quite clear, I would like to add that the people from Canyon City, Aiyansh, and Greenville do not have rights to use these Ango'askws, which are ancestral lands in Observatory Inlet, Anyox, Sandy Beach, Alice Arm, Portland Inlet, and Stewart on the Alaskan border. The Upper Nass River people have their own Ango'askws to which the Kincolith people have no rights and upon which they cannot infringe.

It was easy for the negotiators to bargain the Kincolith lands away to achieve this treaty as the majority of them are from outside Kincolith. I noticed today, senators, that there is no Kincolith representative sitting with the Nisga'a who are here.

A wilp and its Ango'askws, its land, are intricately intertwined. The history, the foundation, and the future of a wilp is its land. Without land, there is no wilp or entitlement to ancestral names, songs, stories, dances, and history. Our way of life will be damaged for ever because the Nisga'a Final Agreement excludes land related to my ancestral wilp and the other wilps from Kincolith. Furthermore, the Kincolith people will have no land for development in order to be self-sufficient.

Honourable senators, in the late 1800s, or early 1900s, my father and his brother-in-law accompanied the government surveyors to Aiyansh, Canyon City and Greenville to survey their lands. They were turned away at gunpoint. My father said that they surveyed only the Kincolith land. These are registered in the Department of Indian Affairs and the Land Registry Office in Ottawa.

All landowners in Kincolith have a certificate of possession as a legal document. These were the Kincolith lands that the negotiators used to achieve this treaty.

The Upper Nass will be the beneficiaries of increased lands while the Kincolith lands were decreased. We almost fell off the negotiated map. Is this a fair, just, and equitable treaty? By all appearances, it is not. We, the Kincolith people, have too much to lose, and this is unacceptable.

Under the Indian Act, the elected band councils must gather all band members to inform them that a piece of their land is to be sold, leased, released, or given away. A referendum or a plebiscite must be conducted. A majority vote of all members is required to release any of our lands. This did not take place. The Kincolith chiefs and matriarchs did not sign any release documents. We are losing our Ango'askws and our lands. We will be lost.

Honourable senators, by way of the agreement, most of the services we previously received from Canada and British Columbia will be received through the Nisga'a Tribal Council, the future lisims government.

If we want to benefit from any of these essential services, we will be subjected to the authority of the Nisga'a Tribal Council's future lisims government, thereby validating the surrender of our lands and the destruction of our wilps, our way of life, and the genocide of our people in Kincolith.

Honourable senators, I have read that the Charter of Rights and Freedoms is there to protect us as Canadian citizens. I have concerns about inequity under this new treaty. I am concerned that the non-Nisga'a aboriginals outside the Nisga'a culture who marry Nisga'a will not be protected. For example, my daughter-in-law, an aboriginal, married to my son for over 25 years, voted on the treaty ratification. Her vote was taken and put in an envelope. They wrote her name on the envelope, which was supposed to have been a secret ballot. She received a letter from the ayuuk committee, which is the Nisga'a law, seven months later telling her that she was not eligible to vote because she was not adopted into a tribe or wilp. My husband, a Canadian citizen of Welsh descent, was legally adopted under Nisga'a law into Nisga'a Eagle Wilp, yet he was denied the vote in the treaty ratification because he is not a Nisga'a aboriginal.

These are only two examples, and there are many similar inequities in this treaty process. The Nisga'a say that they practise the Nisga'a law, and yet they do not recognize and uphold the absolute essence of that law -- the decisions of the wilps and chiefs.

It is my opinion that this treaty has been structured by a dictatorship. Those who have concerns are left on the outside looking in. There is nothing in place to ensure that the future lisims governments are credible administrations, with proper protocols and equality rights.

I am not alone in these concerns. There are many like me who do not have access to the funds from the federal and provincial governments that the negotiators for this treaty received to make our concerns heard, making it look as if we all agree with this treaty process -- and we do not. Hence, our concerns are excluded. We are the poorest of the poor. As always, our concerns are not heard.

I would like to depart from the text and tell you that I am also here representing Frank Barton, who could not be here because he did not have the money to come with me. However, I do have his letter confirming that I can represent him.

We the Nisga'a are a matrilineal society and it is quite evident that the negotiators did not make room for a female representative on the negotiating team, which defies the laws of our wilps and the Canadian Charter of Rights. My concerns are not only for myself, my wilp, and other Nisga'a women, but also for other First Nations women who are likely to suffer under similar provisions in other treaties. I worry about the loss of fundamental gender equality and other rights provided by the Canadian Charter, the Constitution, and common law.

My late husband was Judge Anthony Robinson, who was one of the plaintiffs in the Calder case. His and my determination at that time was never to surrender Kincolith Ango'askws and our lands to achieve this kind of treaty.

The potential harm, which extends to the termination of my wilp, leads me to ask that this treaty first be reviewed by the courts before it is implemented. The court cases of those who feel their lands are infringed upon should be heard before the final decision is made. This is only fair and equitable.

There are many other deficiencies that need to be reviewed and rectified before Royal Assent is given to this treaty. I seek a fair, equitable and just decision from the Senate. This is a request from me and the wilp that I represent.

At this time, I would like to express my gratitude and thank the committee for giving me time to express my concerns, the concerns of Wilp Git Gingolx, and for listening to the plight of the many who have been left out of this historic process.

The Chairman: Thank you very much for your evidence.

Senator St. Germain: Do you want Mr. Barton's letter to become part of the record?

Ms Thomas: Yes, please.

The Chairman: Is that agreed?

Hon. Senators: Agreed.

Senator St. Germain: How many people are in your particular wilp?

Ms Thomas: Our wilp is constantly increasing.

Senator St. Germain: I noticed that.

Ms Thomas: At this moment, I can probably say approximately 600, and that is only the one house.

Senator St. Germain: Have you filed suit in the courts in regards to your grievances? Have you taken legal action?

Ms Thomas: Yes, and I am tabling for the Senate the statement of claim.

Senator St. Germain: On the question of women, you are correct, I have not seen many around.

Ms Thomas: There are none.

Senator Grafstein: I see a lot of women around.

Senator St. Germain: I mean with the Nisga'a. Is there a member on the team who represents Kincolith?

Ms Thomas: I feel that the chiefs and councillors from each of the bands are wearing two hats, and I think this is a conflict of interest. There is supposed to be one, but I do not see him here today. I do not know the reason for that. There are no women on the negotiating team.

Senator St. Germain: You brought up the question of how this new government will be held accountable. It is a concern that many of us have had, and I addressed this in my initial speech in the Senate. We often hear that this compares to a municipal system and that transfer payments will go to these people, but under a municipal system, since the municipality is a creation of the province, if it is misbehaving, it can be denied funds or the act that created it can be revoked. In this case, by contrast, we are creating something that cannot be changed other than with the approval of the three parties. We are virtually casting this in stone. As I have said, I have no reason to distrust these people, they are excellent, but it is what happens down the road that creates the problems.

Is one of your concerns that there will not be any accountability to the rank and file in the Nisga'a nation, and that people like you, who are possibly in outlying areas, will suffer even more because of the inability to properly represent yourselves at the government lisims?

Ms Thomas: You took the words right out of my mouth.

Senator Andreychuk: How many wilps are there in the Kincolith area?

Ms Thomas: There are four clans and there can be two, three or four wilps in one clan.

Senator Andreychuk: Do they all feel as you do? Have you had discussions?

Ms Thomas: The majority do, but they are afraid to speak up. They are not like me.

Senator Andreychuk: I should know this perhaps, but will all the Kincolith lands then be under the jurisdiction of the Nisga'a treaty or are some outside?

Ms Thomas: The only lands that Kincolith will receive are the lands they are living on right now. There is no room for development. We went into this treaty with 42 reserves. From what I understand, the Upper Nass has been increased by 23 reserves and Kincolith has 19 fee simple lands that can be bought and sold. Once we go broke, they can sell those lands and we will not have anything left of the Kincolith lands.

Senator Andreychuk: Are you saying that your lands are not part of the Nisga'a lands and that they are only represented in the fee simple portion?

Ms Thomas: We are not in the core land. The others were put into fee simple land.

Senator Andreychuk: If we were to trace all the Kincolith bands, would we have to look at these fee simple packages?

Ms Thomas: Yes.

Senator Andreychuk: For further clarification, none will be outside the Nisga'a agreement? That is to say, geographically, none are left to negotiate or dispute?

Ms Thomas: Once the treaty is signed, there is nothing to negotiate.

Senator Andreychuk: They are all inside the tent?

Ms Thomas: That is right.

Senator Andreychuk: Do you know how many people in your wilp voted?

Ms Thomas: That is one of the discrepancies that I feel is wrong. According to the records, we are 6,000 Nisga'a; 5,000 voters. There were 2,395 who registered to vote. I believe that 2,605 voted from that number. At one time, we were told that those who did not vote would be counted as a "no" vote, but that did not happen. A lot of the Kincolith members are outside the village right now, either in employment and/or getting an education. Those who were in Kamloops, Prince George or Vancouver Island did not receive any information about the vote. Therefore, they were left out. Some of them are from Kincolith. As a matter of fact, perhaps the majority of them were.

Senator Andreychuk: With respect to these new governmental structures within the Nisga'a, do you know if any of the Kincolith have been approached to be part of the formulation establishment and to be members of these panels?

Ms Thomas: We are quite a distance from Aiyansh, where Government House will be situated. We are right at the very mouth of the Nass River. That is why I said we are distinctly different. We are seafaring people who eat all the different seafoods found in the Upper Nass. The fishers must do a lot of travelling, and I presume that is why a representative from Kincolith is not here.

To answer your question, I believe that some are included in the membership of some of these institutions, but it is very difficult to take part. Kincolith can only be reached by air or by water.

Senator Andreychuk: Finally, did you approach the federal government or the British Columbia government at any time, protesting the process and the procedure?

Ms Thomas: Yes.

Senator Andreychuk: What response did you get?

Ms Thomas: We approached the provincial government before the agreement was passed. When we approached them, they pushed it through. We sent letters to the ministers in Ottawa, at their offices in the Parliament Buildings, and we were referred from one person to another. We do not have the kind of funding that many other Nisga'a have. We do not have a loan from either the federal or the provincial government to travel. That is the why we have not been heard.

Senator Grafstein: You said that you protested. How have you protested to the provincial government?

Ms Thomas: We have written letters. As a matter of fact, I have all the letters that we wrote, for example, to the Minister of Aboriginal Affairs, and so on. We have tried every way to be heard -- not only by the provincial government but also by the Nisga'a themselves. We tried to tell them that we do not want to lose our lands, but it is my understanding that Kincolith will always be outvoted. We have letters as proof that we have written to these people.

Senator Grafstein: You have protested to the provincial government and you received no response?

Ms Thomas: Yes, Frank Barton received a response from Ujjal Dosanjh, when he was the attorney general. He said that if Mr. Barton found there was any criminal negligence, he should go to the RCMP. Mr. Barton did, and it is still in the hands of the RCMP in Prince Rupert.

Senator Grafstein: About what, the electoral process?

Ms Thomas: That is part of it, yes.

Senator Grafstein: What steps did you take to protest to the federal government?

Ms Thomas: We wrote letters to them. We could not travel. It was too expensive.

Senator Grafstein: I understand. That was to whom, to the minister, Mr. Nault?

Ms Thomas: To different ministers, yes.

Senator Grafstein: You received no response from them either, I take it?

Ms Thomas: The responses were quite curt. They referred us to another department. Frank Barton has all those backup letters, but unfortunately, he is not here.

Senator Grafstein: This is the first time you have been in court on this issue?

Ms Thomas: For me, yes. Frank Barton and others filed a claim against the Nisga'a Tribal Council, which was heard in Kamloops.

Senator Grafstein: What happened?

Ms Thomas: The judge said that the Nisga'a Tribal Council had already spent a lot of money and there was nothing that they could do. Also, they did not prove that there was anything wrong. Not too long after that, James Robinson and Frank Barton received letters from the Nisga'a Tribal Council asking them to put on a feast, disrobe in front of the public and bathe. That is their way of inflicting shame on those who took them to court.

Senator Grafstein: Let me understand your rights as they presently exist and as they will exist. You are a Nisga'a?

Ms Thomas: Yes.

Senator Grafstein: The 600 people in the four clans that you mentioned as part of the Kincolith are all Nisga'a?

Ms Thomas: Yes, but first we are Git Kincoliths. We come from Kincolith.

Senator Grafstein: Will you be able to vote under the new governance provisions?

Ms Thomas: We will be able to vote. The irony, however, is that there are three other villages in the Upper Nass that will always outvote us. It does not matter what we do. We have been classified as the dissidents.

Senator Grafstein: You have the right to vote, but you say you will be outvoted because of your location or different positions on various issues; is that right?

Ms Thomas: No, it is a case of the numbers. The three Upper Nass villages will always outvote Kincolith no matter how we look at it.

Senator Grafstein: You would have the right, if you could persuade others to be part of the governance structure, to be a member of the government?

Ms Thomas: If it was a free vote, it would be possible, but it is not a free vote. Each reserve chooses its chief and council and they are the ones who automatically become part of the NTC.

Senator Grafstein: It is block voting, something with which we are familiar in other places.

Thank you, witness.

Senator Sparrow: Your comments illustrate that it took a great deal of courage for you to appear today. You referred to the fact that there are many in your 600 who have shown -- and you did not use the word "intimidated" -- signs of being intimidated for taking a stand in opposition to what is happening. Can you explain some of the repercussions that you have faced or which you or your people are afraid of facing?

Ms Thomas: To be honest with honourable senators, it took a great deal of courage for me to stand up for the rights of those who have not been included in this process, especially for my people in Kincolith. They feel intimidated. We had a meeting in Kincolith and we were going to withdraw from this treaty process. People put forward a resolution whereby they would withdraw because they felt they were losing too much. We were meeting as Kincolith citizens. The Nisga'a Tribal Council then came to Kincolith, and although I am not sure what happened, I understand that the council, under much pressure from the NTC, withdrew the resolution. The resolution was put forward by the people of Kincolith, not by the council. They had no right to withdraw it. It belonged to the people. It still has not gone back to the people to this day. We would like to see it come back to the people.

Senator Sparrow: What is the answer to your problem? Is it that the agreement as proposed be dropped? What changes do you want to see in that agreement? Would you rather go back to the status quo? If things were to remain as they are, do you see a future for your people?

Ms Thomas: I do not want the status quo. I would like to see changes. As I said earlier, we participated in the first court case, but it was not to give away our lands, especially the Kincolith lands. I would like to see this process delayed. We have no alternative but to go to court. There is no other way at this very late date.

As I said earlier, we are the poorest of the poor. It will be a miracle if things change. I realize my appearance today might not change anything for the senators. However, on the other hand, I cannot see us working under the Department of Indian Affairs, because we were suppressed under that system.

I feel that the only thing left is to bring this before the courts to be determined.

Senator Sparrow: You are suggesting a delay. What would the delay accomplish? What would be the benefit of a court case to your 600 people?

Ms Thomas: Hopefully, senators will look at this a little more deeply because our side has not been heard. Those who disagree with the process should be heard. The only thing I can see is that the delay would help us bring out a lot of these discrepancies. The court case, of course, would say, one way or the other, what our rights are. I know my rights and I am a Canadian citizen. However, as I see the situation today, the alternative to what we have been trying to do all this time is to go to court. Hopefully, they will listen to our concerns and define what our rights are as far as this treaty is concerned.

Senator Sparrow: Do you mean including land as well as other issues?

Ms Thomas: Yes, that is right.

Senator St. Germain: When the Nisga'a Tribal Council came to Kincolith, were you actually there when the resolution to remain outside the agreement was withdrawn?

Ms Thomas: When the resolution was read to the people of Kincolith and the Nisga'a Tribal Council, two chiefs stood up and said to the people, "If any of you feel, as I do, that we are losing too much of our land, please walk out with me." The majority of the Kincolith people did just that. The only ones left, those who were in a conflict of interest, were members of the general executive council. They voted to become the council of the village and part of the Nisga'a Tribal Council. The only ones left were the elected chief and council, and we all walked out.

Senator St. Germain: How many were there approximately?

Ms Thomas: There were quite a few who walked out. During that time, many people were brought into the back rooms to pressure the councillors. They told us later that they were taken into the back rooms and told to withdraw the resolution.

Senator St. Germain: Thank you, Mr. Chairman. That is excellent evidence.

The Chairman: For clarification, you were present at that meeting where Chief Robinson rose and asked members to walk out with him?

Ms Thompson: Yes. I walked out with him.

The Chairman: Thank you for your evidence. It is much appreciated.

Ms Thomas: It is unfortunate that I cannot sing with my drum because I did have a song for you.

The Chairman: No, no. Our rules state that there must be no placards, no flags, no demonstrations, just evidence. I don't want to abuse those rules.

Senator Sparrow: If it is a short song, we should hear it.

Senator St. Germain: We have done it before.

Senator Andreychuk: When this committee travelled to conduct hearings, we always had ceremonial input.

The Chairman: We can always vary our rules by practice.

Senator St. Germain: Go ahead, if you wish to sing.

Senator Sibbeston: Yes, sing us a song.

Senator Andreychuk: Will we hear from Mr. Monahan?

The Chairman: If Ms Thomas would excuse us for a moment. Mr. Monahan does not wish to speak and has asked that his evidence before the House of Commons be taken as read. He and Justice Estey served in the same law firm and he felt that it was not appropriate for him to appear.

Senator Andreychuk: In other words, he has withdrawn. You have given me the reason; they were in the same office. It appears, therefore, that he has deferred to Mr. Estey.

The Chairman: No, he is not deferring to his arguments.

Senator Andreychuk: I do not know that because he is not here to tell me so.

The Chairman: I am telling you that he advised me that he would like us to take his evidence as given in the House of Commons as evidence before this committee.

Senator Andreychuk: Are we going to do that?

The Chairman: Yes, of course we will do that. I intended to speak to that at the end of our hearings, rather than get into procedural discussions at this stage. I am trying to accommodate the witnesses. There are time schedules and airline flights to be considered.

Senator Andreychuk: There is no cross-examination.

The Chairman: You give it the credibility you wish to give it because there is no cross-examination.

Ms Thompson, please proceed.

Ms Thompson: Thank you. This song was composed after the agreement in principle was first reached. It states exactly some of the things that I expressed today. We will lose our ancestral lands. I think of my great-grandfather and great-grandmother, my uncles' hunting grounds, my mother's stories.

Our negotiators were paid a lot of money and now we will lose our lands. What will happen to our children? Our great-grandchildren will be no more. In Nisga'a, there is a word, ayuu'waa, a term of distress. If an accident happens, we say ayuu'waa. If something is going wrong, we say ayuu'waa. This is my song, and it is called Ayuu'waa.

[Witness performed song in native language.]

The Chairman: Our next witnesses are from the Nisga'a Tribal Council. They are appearing again with a supplementary submission and to answer your questions resulting from evidence you have heard from other parties.

Dr. Joseph Gosnell Sr., President, Nisga'a Tribal Council: Mr. Chairman, we will not read our presentation into the record, recognizing that time is limited and that we have provided our views and our thoughts in other submissions to this particular committee.

I should like to start from the back, from the tail end of the hearings that we just witnessed here and heard within the last few minutes. A note was passed to me, and it states, "If this is a matriarchal society, where are the women on your committee?" I wish to respond, as briefly as I can, to the question that was posed.

Over the many years, we have had women who have sat on our respective band councils at the will of their constituents. They are voted in and out just like members of the House of Commons, members of federal and provincial governments or any governing body. It is at the will of the electorate. We do not just appoint people at will. It does not happen that way. However, we do periodically have women on our band councils.

We have a majority of Nisga'a women who operate our Nisga'a Valley Health Board, and I am very pleased with their participation within our structure. In School District 92, Nisga'a, the majority of not only the teaching staff but the personnel who operate the school district are women. The personnel on each of our respective band councils, and there are four in the Nass, are mostly women.

One of the most important historical events that happened in the history of the Nisga'a nation was the ratification vote of the treaty. We set up a separate committee to oversee this very important aspect of the work that was done. That committee was formed not by the Nisga'a Tribal Council but by names that were submitted from each of our four communities and three outlying locals. I am very pleased to say that the majority of that committee were women. The commissioner who looked after the entire process was a woman. Her co-chair was a woman. I am pleased with the participation of Nisga'a women on the things that we do within our society.

Mrs. Thomas is quite correct. Frank Barton did approach the RCMP with allegations that fraud was taking place within the Nisga'a Tribal Council. The RCMP from the Prince Rupert detachment reviewed the documents that he had submitted and came to the conclusion that there was nothing amiss. We have a letter to that effect. The allegations that were made by Mr. Barton were dismissed by the RCMP. If you so wish, we can provide you with a copy of that letter.

I must correct Mrs. Thomas in one of the most important requirements of our culture. When a wrong has been done, an apology is required. We do not oversee that. That is not handled by the executive board of the Nisga'a Tribal Council. We have a committee that oversees and interprets the laws of our people. They clearly indicated to Mr. Robinson the committee's view of what had transpired and what he had to do under the laws of our nation. There was no such thing as requiring him to be disrobed in public to show the shame of the man. An apology would have been sufficient. I believe things here within this committee room are being exaggerated.

If there is anything that I miss, Mr. Chairman, my colleagues will fill in any other aspects. We have set out many times, not only to the standing committee here but to committees in the province of British Columbia, the views and the comments of the Nisga'a nation. We have made submissions to you, and we will not regurgitate or repeat those submissions that we have provided to you. I am sure you can read them and reread them at your pleasure.

March 22, 1996, is the anniversary date of our signing of the Agreement-in-Principle in the city of Vancouver. Our fourth anniversary date was yesterday. It has been four years since we signed that historic document in Vancouver. Within that four-year period, up until today, we have heard many views from people from all walks of life. We heard some of them over the past few days: judges, mayors, and ordinary people from all across this country. My colleagues and I go on television and radio talk shows. We do interviews. We speak to universities and colleges and high schools to try to get our story across as to what this treaty means for the future of the Nisga'a nation and to move away from this Department of Indian Affairs rut that we have been in for over 130 years. We are trying to get out of that. We believe that the contents of this treaty over a period of time will enable our people to do that.

Few people are aware of the compromises that have been made to enable us to be seated here before you in the very last stages, requesting the final approval of our treaty -- compromises that we made to be able to be seated here before you. Hopefully you are the last group that we will sit before. You will make a determination based upon what you have heard and the evidence provided to you as to whether or not this treaty deserves your approval. You can do either one of two things. You can approve this treaty and send us on our way to, in my view, a brighter future, or you can say no to this treaty and we will remain under the Indian Act. That is what you can do. Our future literally is in your hands. You will make that determination based upon what you have heard.

I indicated the vote that was taken, and we have provided you with the results of that ratification vote. Collectively, the Nisga'a nation made a decision to accept the contents of the Nisga'a treaty and the Nisga'a constitution. That is what they did. I will not tell you what the numbers are, because you have it somewhere in your possession.

We did not force people. We did not go and solicit votes. We indicated very clearly, "You will make that decision yourself based upon what you think this treaty will do for us." They did that, and the majority of our nation accepted the contents of the Nisga'a treaty along with the Nisga'a constitution. Certainly, as we have heard here this afternoon, there are those individuals who hold very strong views, and they express those views and comments in whatever shape or form that they will. However, at the end of this exercise, honourable senators, the will of the majority of our nation must be respected -- the will of the majority, not the will of the few.

I believe that, if the vote had turned out the other way, if there had been a total rejection of the treaty, the negotiating team would have been given instructions to take a different route. Such was not the case. We were given instructions to proceed and to finalize the treaty, which we have done.

During the vote, federal and provincial representatives were also present to ensure that everything was done above board. There were no underhanded happenings that occurred. How could they occur? The process was overseen by representatives from Canada and the Government of British Columbia.

I shall now turn to the subject of minority rights. Much has been said about the minority rights of those individuals who will work within our communities following the effective date. At the last committee meeting that we attended, I listened to Senator Grafstein. He said that never in the foreseeable future could that minority ever overwhelm the majority. This is a question of minority rights.

Mr. Chairman, my views differ from those of Senator Grafstein. History has taught the aboriginal people across North and South America well. I recall that several centuries ago, 500 years or so ago, a group of so-called explorers, the so-called discoverers of our lands, stumbled upon North and South America and they ventured onto the shores of this great country of ours. I believe that the views of the aboriginal people then were the same views that were expressed by the honourable senator: we would never be overwhelmed by the people coming off those ships. However, here we are, in the year 2000, 500 years after the discovery of North and South America and we are completely overwhelmed. I need not remind you that Statistics Canada indicates that we form 2 per cent of the population. We are completely overwhelmed in our own country.

That is what we fear, honourable senators, with respect to the total recognition of minority rights within our lands. Aboriginal people of both North and South America paid a devastating price for this march that we know today is a march toward progress. We paid a terrible price for that.

Why have we not gone that extra distance the honourable senator indicated? Why did we not go 100 per cent and grant everyone within our lands the right to vote and participate in our government? I just indicated to you one of my views. However, by way of comparison, would any one of you seated across the table in this room allow strangers or individuals who stay with you temporarily to decide how your family's internal assets would be handled? Would you do that? That is the problem that faces us: people who come into our communities maybe for a year, two years or three years and then they are gone. Would we allow that to happen? I ask you the same thing: If you were in our shoes, would you do that? Would you allow someone to handle your family's personal assets? I do not think so.

Honourable senators, we left the door open for the government of the future to have the ability to make a decision after reviewing the situations of some of our people who have been married to non-Nisga'a; they can look at how well the non-Nisga'a have fit into our society, how well they have abided by the laws of our people and have participated in our culture. They will have the ability to grant the right to those people at some time in the future. I cannot make that determination. It is not for me to do that. I will leave that topic at this point; I am sure there may be further questions.

I shall now turn to the overlap situation. All sides have expressed their views with respect to the situation that faces us. Some honourable senators may be aware of what the federal requirements were to deal with the so-called overlap situation.

Mr. Chairman, after hearing some of the comments that were made yesterday, we categorically reject the accusation made that we misled or that we acted in bad faith to our neighbours, to the House of Commons and to this Senate. We reject that sentiment outright.

I wish to respond to a remark that was made with respect to one of the documents that were printed a number of years ago under the heading "Lock, Stock and Barrel." My late brother James had a role to play in that, because that was a quotation he said during the constitutional debate quite some years ago. That is not the only document that we have. One of the requirements of Canada, right at the outset, before negotiations began, was that we must do a land use and occupancy study. We had to prove that we owned this land. We did that. We have volumes and volumes of the land use and occupancy study that proves that the land we talked about belonged to us.

There have been several references to court cases of the future that could or may possibly be launched against us. I wish to point out very clearly that we, too, are prepared to go to court based on the information we have now compiled and have in our possession in the land use and occupancy study.

Glen Williams stated yesterday that their claim is unproven in court. I would have to agree with the man. A requirement of the Delgamuukw decision is that a group laying claim to territory must prove exclusive use and occupancy with other tribes totally locked out. No doubt, some time in the future we may get into that situation and we are prepared for it.

Representatives from both Canada and British Columbia were present when we agreed to utilize the services of a mediator. We have that on paper and we are still prepared to stand by that statement, provided certain conditions are met.

It was also stated yesterday that the offer Canada and British Columbia made to our neighbours the Gitanyow were the crumbs that fell off the Nisga'a table. In my view, that is false. You may be aware that a cost-sharing formula was initiated by both the Government of Canada and the Government of British Columbia with regard to how much land tribal groups will get and how much cash transfers will be made. The formula is based on population.

The opening paragraph of the 1913 petition says that we will decide the terms and conditions upon which we will deal with our territory and that, if certain conditions were met, we would take a reasonable and moderate position. Having fulfilled that commitment made by our forbearers, we are attacked from all sides. Some people said that the Indians were getting too much land and too much money. Other said that we were not getting enough. Still others said that the situation was unconstitutional. The courts must decide on this.

We hear threats of violence and war, even here in this Senate committee room. I remind honourable senators that we live not in the 18th century but in the 21st century, and the rule of law is applicable to every citizen of this great land.

Mr. Chairman and honourable senators, we negotiated the Nisga'a treaty in good faith. Are the rules to be changed by the Senate at this late hour? Will the goal posts be moved once again after this 25-year process?

We must all recognize that the Nisga'a treaty is not a perfect document. The Senate gives sober second thought to legislation that emanates from the house next door. Can you show me a perfect piece of legislation, either provincial or federal? Can you show me a perfect international treaty? There are none, just as this treaty is imperfect. However, we agreed to its contents. Our people voted in favour of it. That is what negotiation is all about. Compromises must be made at the negotiating table, and that is precisely what we have done.

Mr. Edmond Wright, Secretary Treasurer, Nisga'a Tribal Council: Honourable senators, I have been involved for quite a number of years with the Nisga'a Tribal Council. I was first involved as an elected trustee in the early 1970s and have been involved as an elected member of the Nisga'a Tribal Council continuously since then.

It has been asked why certain individuals from some of our villages are not here. Our group decided that the three representatives who are elected by the entire nation would attend here to make the presentation before you. Next week and the week after, we will bring four elected people from the villages with us. We have, as well, brought a couple of our very senior people who have been involved in this for many years.

I am proud to say that this spring we will have the forty-third annual assembly of the Nisga'a nation. That assembly rotates among the four villages and the two urban locals that are near the villages, Prince Rupert and Terrace. This year the assembly will be in Prince Rupert. The executive members participate in those assemblies only when asked. The grassroots people give us direction there. We play no major role. We are simply part of the membership.

I wish to touch on some issues that were dealt with yesterday. Spokespersons of the Gitxsan and Gitanyow Hereditary Chiefs continue to assert that the Nisga'a treaty will somehow infringe on their rights. We do not believe that is true.

On November 25, 1999, we made a supplementary submission to the House of Commons committee after our initial submission to that committee on February 22. We stand by that submission.

As well, we rely on the chairman's statement that this committee will not be playing a dispute resolution role.

The Chairman: I said that we are not mediators, arbitrators, judges, or a dispute settlement institution, although would love to facilitate a dispute settlement.

Mr. Wright: We want to state to the committee that the Nisga'a did agree in 1998 to utilize the assistance of a federally appointed mediator to help resolve the dispute with the Gitanyow. The details are in our November 25 submission. We look forward to possibly continuing with that process.

One of the obstacles that we had at that particular time when we broke that off was that the Gitanyow had not yet received an offer from Canada and British Columbia. They now have received an offer, and most likely they will be having discussions. When we are sure of what rights and jurisdictions they would have, that would facilitate the talks we would have in mediation. We will stand by our word that we wish to continue with that if we are able.

There is another issue that sometimes infringes on this process, and that is legal actions that are taken by the parties that I have mentioned. It is very hard to try to have mediation and have an exchange of information when courts are also being used. Even though I stated that we do not want you to rule on any disputes, I wish to let you know that, as I have stated, I have been involved with the Nisga'a since the early 1970s.

Yesterday, I heard a fourth description of a southern boundary of the Gitanyow. They told us yesterday that they owned a territory 800 metres below Kinskuch. That is the fourth description that I have heard over the past 20 some odd years. The first description I heard, which certainly hurt my feelings way back then, was when they said they owned up to the mouth of Sgaskinist. The Sgaskinist is a creek that is owned by our president. It is his house territory. I reacted strongly to that because my father was in his house. I remember that area as a child. The second boundary that I saw over these last 20 some odd years was just north of Ts'imanwihlist, which is at the mouth of the entrance of the first canyon. It was halfway up that first canyon. I have a copy of that map at home. Then the eight chiefs signed a letter to us and told us that their boundary was right at the mouth and including the Kinskuch River, which we abided by. Yesterday I heard it was 800 metres below it.

Over the years we have developed maps. We were one of the first aboriginal groups to have a GIS process. We can make pretty glossy maps, too. We choose not to do that because we do not want you to be dealing with these issues. We have a process where we would like to deal with that.

Again, I want to mention that we believe, although it has been rejected by our neighbours, that paragraphs 33 to 35 of the general provisions will take care of the problems in the disputed area. Also, it is very clear through the submissions of Neil Serritt and the Gitanyow Hereditary Chiefs that they do not want us to have any rights in any of their area.

I want to go a little further beyond what our president stated when he described Delgamuukw. That case also spoke of "shared exclusivity," which is a funny term. How do you have shared exclusivity? I think they meant that we shared the area, and that is what Delgamuukw said. There is a lot of that all over British Columbia and all across Canada.

It is just not right that when we sit down to mediate or discuss it is all or nothing for the other sides and nothing for us. We have rights, too, and we know that. After all, our position has been very consistent since the coming of the surveyor. We have not deviated at all. We have been consistent and have gone on and on, as our president stated, very patiently.

The areas that they are very concerned about have been mentioned by others. They are non-exclusive hunting and fishing rights. They are really rights for our membership. There were calculations made by DFO and Fish and Wildlife British Columbia that there would be enough for everyone, for the non-aboriginals and the aboriginals who have claims there. A formula and a rationale were developed for allocations in order to accommodate everyone. That is very important to note.

The Gitanyow have claimed that we have five fee simple areas in their area. They are very small, as we state in our other submission: 1.5 square kilometres in total. There are many other non-aboriginal fee simple sites throughout that whole area, but somehow if some aboriginals get something the other aboriginals get mad at them. If the white man gets it, it seems like we are quite content. There are many up there who feel that way.

We still believe that we are the owners of the entire area that we have set out, as our president stated. The Gitanyow and Gitxsan believe that there are portions of their territories in the areas that we claim. That will hopefully be resolved in the future.

We want to coexist. We started a process with Gitanyow quite a number of years ago without any outside interference. We tried to get a memorandum of understanding to give them fishing rights so that younger people and others would not misunderstand the relationship we wanted to strike with them. Even though they were not at the stage of the treaty talks, we were close to the AIP stage. We knew where our lands were. We said that we had no problems if others wanted to come onto Nisga'a lands to hunt and fish. We offered that they could set up their fishing camps on the boundary. That offer was rejected. We hope to continue to do that. We want to coexist; our people have coexisted a long time.

I noted with great interest that you did not question the model that I heard the Gitanyow and the Gitxsan representative Neil Sterritt saying yesterday. I think he was telling you that they had a different model. I did not hear anyone follow up and ask what was the model. We heard them state earlier that they would prefer a lengthy process of reconciliation, a process that would take 100 years. We are very different, of course; we want to go on with the agreement that we have concluded with Canada and British Columbia.

It is not something that is new. Four years ago we completed the Agreement-in-Principle. Canada and British Columbia joined us on January 12, 1976, and said, "Let us now begin." Two months later, they were saying that they did not mean it, that they just wanted to be observers. But we have continued. We have worked a long time. Many people have scrutinized the document, and we want to continue with the document.

Mr. James Aldridge, Legal Counsel, Nisga'a Tribal Council: Mr. Chairman, the executive has asked me draw your attention to a couple of things from the previous submission. You have indicated, Mr. Chairman, that the submission entitled "Facts about the Nisga'a-Gitanyow Dispute," filed originally with the House of Commons, has now been distributed to senators, and it speaks for itself. Due to the lateness of the hour, it will not be necessary to go through that, but we would implore senators to review that document in light of the evidence of the last few days because, in the view of the Nisga'a, it provides a complete answer to many of the things that you have heard.

However, there are two things from that document that I wish to draw your attention to specifically. If you do not have it, that is fine, I will read it. The first thing is something that Senator St. Germain has referred to frequently; accordingly, it is incumbent upon the Nisga'a to respond directly.

The allegation has been made repeatedly, as recently as last night -- and it has been referred to several times today in what Senator St. Germain has been told -- that, when the Nisga'a went to the B.C. Supreme Court in 1968 in the Calder case, their claimed territory was much smaller than what they subsequently told you is the true size of their claim. That is simply incorrect. It is necessary for honourable senators to be aware that the statement of claim in the Calder case, way back 32 years ago now -- and I might say that predates my involvement with the file -- quite clearly set out the metes and bounds of the Nisga'a traditional territory verbatim from the 1913 petition. It was the entire territory as described in the 1913 petition, including all of the waters flowing into the Nass watershed. I am not quoting the petition exactly, but it is there for your reference.

There was indeed at that time, as there is now, a dispute between the Nisga'a and their neighbours, the Gitanyow. In order to avoid having that lawsuit turn into an issue between First Nations when the Nisga'a really sought to get a declaration against the Attorney General of British Columbia, the Nisga'a instructed their legal counsel, Tom Berger, to proceed on the basis of the undisputed territory only, for the purposes of that lawsuit only. We have attached a photocopy of the transcript of the trial. I know that some of you have this and I remember going over it with Senator St. Germain some time ago in his office. He will recall that Mr. Berger said to the court on the very first day of the trial:

My Lord, I should add in this connection that in the statement of claim, paragraph 8, I don't want your lordship to refer to it, is just simply an explanation... The plaintiffs have delineated the area that they claim constitutes their Nishga tribal territory.

That is the 1913 petition description.

The plaintiffs have delineated the area that they claim constitutes their Nishga tribal territory. The territory that they have occupied since time immemorial by metes and bounds, by reference to landmarks well known in that part of the North Pacific Coast. The area delineated by Professor Duff's map, signed by my learned friend and by me, is a limited area and I simply want to say that the plaintiffs do not give up their claim to the larger area referred to in paragraph 8 of the statement of claim but are limiting their claim for purposes of this action only to the area delineated in the map.

The court responded:

Paragraph 8 does not coincide with the map, the map is smaller? As far as this action is concerned, I am examining the title to the area delineated on the map?

Mr. Berger replied:

Yes.

The court said again, so there would be no doubt:

For the purpose of this action the description in paragraph 8 is abandoned?

Mr. Berger replied:

That's right.

They then proceeded on the basis of the smaller map that Senator St. Germain has referred to, but it was absolutely clear on the record that that was for the purposes of that lawsuit only, while the plaintiffs retained the 1913 description as set out in the 1913 petition.

The second very specific point -- and this is not to understate the importance of the balance of the submission, which we implore you to read -- is one I raise because it was evident to us there was misunderstanding among certain honourable senators. Perhaps Senator St. Germain could do me a favour and make that map visible to all members of the committee.

Senator St. Germain: This was supplied to me by the department.

Mr. Aldridge: We have the same map and we will give the same statement. It is a departmental map but we believe it is accurate about these matters.

Honourable senators will note the dark green area in the lower part of the Nass River. That is Nisga'a lands. We must be careful of the use of terminology here. For senators' reference, it is at the very back page. You will see a larger example of that very large green area.

That is so-called 2,000 square kilometres of Nisga'a lands, and what is meant by that is the land that is owned as an estate in fee simple by the Nisga'a nation under the treaty. The large green area around the outside is what the Nisga'a assert is their traditional territory, and there are different lines on the map that show what the Gitanyow have claimed and what the Gitxsan and Tsimshian have claimed.

During negotiations prior to the Agreement-in-Principle -- and it is worth noting that this was back in 1996, some time before Glen Clark became premier -- the position that the Nisga'a had at the bargaining table would have had Nisga'a lands quite some distance further upstream into that part of the territory, which they believe is theirs.

On January 17, 1996, in a letter attached to the previous submission from them, addressed to the president, the Gitanyow Hereditary Chiefs said, among other things:

However, we are requesting your assurance by return letter that the A.I.P. will not encompass any territory or resources on the Nass watershed upstream of the mouth Kinskuch River.

The Kinskuch River is in fact the northern boundary of Nisga'a lands. As a result of that letter in which the Gitanyow said to the Nisga'a, "We want your assurance that you will not go upstream of the mouth of the Kinskuch River," the Nisga'a decided, "Okay, let us make a decision and avoid the problem." Indeed, the northern boundary of Nisga'a land was defined as the mouth of the Kinskuch River. That is not to say that this was complete acquiescence to the request, because when the president wrote back in a letter dated January 29, 1996, the president advised the Gitanyow chiefs that:

Nisga'a Land, which is that portion of our traditional territory which will be wholly owned by the Nisga'a nation under the treaty, will not be located north of the Kinskuch River, nor upstream on the Nass River above the mouth of the Kinskuch.

Reference was made earlier today by Senator Lawson that suggested there was a massive grant of land in the disputed territory. It did not happen. In fact, as the president pointed out in his January 29 letter, there would be some non-exclusive rights of hunting and fishing upstream, and there would be a number of small fee simple sites. That is what the president assured them of. I do not suggest they acquiesced in it. The Nisga'a at least agreed to the Kinskuch as the border beyond which there would be no Nisga'a land, and that is the case today.

I will not address the proposed amendments that the Gitanyow chiefs put before you unless there is some serious consideration to be given to them or you wish to hear from us and ask a question.

The second part of the supplementary submission simply refers to the numbers on the Nisga'a support for the treaty. Senators should have received this press release, which provides a detailed breakdown on it. You will see for yourself when the statistics are in.

The next section of the supplementary submission deals with the topic of citizenship and minority rights. I do not want to repeat arguments made previously. This has gone around a great deal. I do not know if this next point has been made clear, so we feel that it is incumbent upon us to bring it to your attention. Parliament has already recognized use of the word "citizen" to refer to someone who belongs to a First Nation. This is not one the things on which the Nisga'a are first.

The Yukon First Nations Self-Government Act, as passed by Parliament, including the Senate, provides that:

"citizen", in relation to a first nation, means a citizen as determined in accordance with the constitution of the first nation.

Section 8 of that act requires simply that a Yukon First Nations constitution provide for a citizenship code that includes the requirements for citizenship in the First Nation and the procedures for determining whether a person is a citizen. That code must entitle all persons enrolled to become citizens of the First Nation. The Yukon act does not require First Nations to grant citizenship to other individuals, regardless of residency or whether those individuals are affected by Yukon First Nations laws. The citizenship provisions of the Nisga'a treaty are virtually identical to those provisions, which Parliament has already enacted and which are in force today. We thought it was very important that senators understand that.

As others have said -- and, this is found on page 7 of the supplemental submission -- the starting point must be to understand that the primary function of Nisga'a government is to make decisions about Nisga'a peoples' shared assets. The land, the trees, the fish and the wildlife are owned collectively by a group. The primary function of the government is to deal with the group's own stuff. The point that the Nisga'a make -- and it has been made by others -- is simply this: Why would someone who has no share in those assets and someone who does not participate in the language and culture but merely comes to live there to work as a police officer or nurse or whatever for a period of time have a say on how those assets are distributed or managed or protected or used or sold?

We attempted to list the things that we say address minority rights. It would not be correct to suggest that the Nisga'a treaty does not address minority rights: it does. Whether it addresses them adequately, however, is something for each of you to consider and, ultimately, for whomever to consider. The treaty addresses minority rights first and foremost in the same way they are addressed by every other government in this country, and that is through the application of the Charter of Rights.

Forgive me if I do not voluntarily go into the argument about sections 25 and 35 and paragraph 9 and their application. You have heard it enough. I have been over it a million times. All I can say is that it applies. If anyone suggests that the Charter does not apply, then I challenge him or her to come up with a clearer way in which it can be made to apply. Some have suggested that, because of section 33 of the Charter, which refers to the House of Commons and legislative assemblies, the Charter prohibits itself from applying to other governments. With the greatest of respect, it does no such thing. The Charter applies.

The other limitations are set out in my brief. I will not repeat them, but I should like to draw your attention to the following: namely, the fact that non-Nisga'a do not have the right to demand Nisga'a citizenship had a consequence at the negotiating table. The consequence was the restricting of Nisga'a jurisdiction to Nisga'a citizens and Nisga'a lands in almost all cases. Where there are significant facts -- and they are unavoidable -- means of participation are provided for.

If the parties had gone the other way and said that every resident has the right to Nisga'a citizenship even they though no ownership exists, Nisga'a jurisdiction would have been broader. That is to say, either we would have negotiated a broader set or we would not have been driven by government negotiators to narrow the jurisdiction as much as we did.

Everyone agrees with the fundamental principles of democracy. No one is trying to oppress minorities. We wrestled through what made sense to the three parties, after difficult negotiations. The governments negotiated the provisions that are there on behalf of their constituents; the Nisga'a agreed. It would be wrong to reopen the negotiations at this stage.

There is a page in my brief that deals with fishery issues. I will not read it, but it responds to Mr. Eidsvik's presentation. I hope it is clear that conservation is paramount here. The authority of the minister remains in place. We have given you the page, chapter and verse that applies. You should also be aware of a document that was tabled some time ago. It was a memorandum from me to the chairman, addressing the narrow technical legal issue of Magna Carta application.

The Chairman: That has been circulated to the members of the committee and we have it as an exhibit.

Mr. Aldridge: I now wish to comment on the big subject of Nisga'a government. We have a few comments about Mr. Estey's presentation this morning.

Concerning the Nisga'a government, we were here at the beginning and we made a number of points. We have read through the transcripts of what various people have said and, with the greatest of respect to all, we think there is still conceptual confusion about some very important concepts. Professors Ryder and McNeil also made these points last night.

It has often been said around this table that our problem is that the power is not delegated. If it were delegated, we would love that. However, it has constitutional protection. That set-up is in opposition. I implore you to keep the concepts separate. Delegation versus inherence is about the source of the authority, not about the protection of the authority.

An honourable senator said at one point that we decided not to give you the inherent right. With all due respect, I gasped when I heard that. Listen to the language. That is what the word "inherent" means. It means it cannot be given because it inheres. The point is simply this: Why is it that some people are so troubled by the concept that First Nations have a right to govern themselves that arises from their original occupation of this soil as organized society since time immemorial? Why is there an obsession that says that if it does not come from the Crown, it does not exist? Why would anyone say to a First Nation that, before a treaty, either they never had the inherent right to govern themselves, or they did have it and it was extinguished, or the price they must pay to enter into a treaty is to come before you and say, "Whatever we have had has been extinguished and in future all our authority comes from the Crown"? Why should that be the price of entering into a treaty?

With respect, the source of the authority is not really the important question. What is important is what senators have said is the other side: constitutional protection. It is not whether it is delegated or inherent. It is whether it is constitutionally protected. That seems to be the issue.

You heard from witnesses last night and this morning who seemed to think that constitutional protection of a right in a treaty to govern oneself shakes the fundamental foundations of Canada's constitutional structure. What is the assumption that is implicit in that? Is it that a fundamental aspect of Canadian constitutional structure is ultimately non-native governments running Indians' lives? That has been the case up to now as a matter of fact but not as a matter of law.

You need to understand that the issue of whether or not the self-government provisions would be constitutionally protected was specifically negotiated on the table. It was not something that came about by happenstance. We did not stumble or blunder our way into it. It was not done without a great deal of consideration and thought, not only by those of us who were federal, provincial and Nisga'a negotiators, but by the batteries of Department of Justice lawyers, Attorney General department lawyers, and whatever additional assistants they got and we got. This was looked at very carefully and compromises were made to achieve it. No one should think that it is possible now to deny constitutional protection without rejecting the treaty in its entirety. It cannot be done.

Senators are also, perhaps, being led to believe by the discussion that has gone on, or perhaps mistakenly believe of their own information, that there has never been constitutionally protected self-government before; we are the first. We tried to indicate in our previous submission that it is not a huge leap; it is an evolutionary step.

The court has ruled in a case that I refer to on page 12 of our supplementary submission about a band operating under the Cree-Naskapi (of Quebec) Act, a statute enacted pursuant to the James Bay and Northern Quebec Agreement. The court said:

That being the case, it seems that the federal Parliament cannot adopt laws encroaching upon the rights conferred upon the Crees and the Naskapis under the Cree-Naskapi (of Quebec) Act, without violating the Constitution. Such laws would be inoperative as they would be inconsistent with the rights guaranteed the Natives by s.35(3) of the Constitution Act, 1982 (s.52). Any change to the Natives' existing rights would be legal only if brought about by a constitutional amendment.

That decision, a Provincial Court decision, was referred to with approval in Tawich Development Corporation, when the Court of Quebec Civil Chamber referred to the earlier case and relied upon it in finding that a band exercising powers under the Cree-Naskapi (of Quebec) Act is not a municipality. The court said:

Contrary to municipalities, the Band does not exercise delegated, subordinate powers. It derives its powers from a treaty, i.e. the Agreement.

The James Bay and Northern Quebec Agreement was negotiated and agreed to back in the 1970s. What is the suggestion that this has never happened before? People have said many times, and I am sorry the Deputy Chairman is not here, "What about the Yukon? What happened in the Yukon? It is good enough for them."

Senators are perhaps not aware that the Yukon Umbrella Final Agreement and, hence, all the individual final agreements include this provision. I have taken the liberty of reproducing it in its entirety, and it starts on the bottom of page 12 of our supplementary submission: section 5.5.0 of the Yukon Umbrella Final Agreement, regarding Yukon First Nation management powers. I want to emphasize that the section you see on pages 12 and 13 is not from a self-government agreement. It is not from the Yukon self-government agreement. It is from the land claims agreement, and it says that:

...each Yukon First Nation...may exercise the following powers of management in relation to its Settlement Land:

To enact bylaws for the use of and occupation of its Settlement Land.

That is a very broad power.

...to develop and administer land management programs related to its Settlement Land.

That is also a very broad power. And that section provides further that each Yukon First Nation may charge rent or other fees and establish a system to record its interests. Since subsection 35(3) of the Constitution applies to the Yukon First Nation Final Agreements, those law-making authorities today have constitutional protection.

The point we are making is that the Nisga'a treaty should not be seen as a completely new initiative. It is the next logical step. The important difference between this and the previous agreements is the extent. All of the self-government provisions are in the land claims agreement with the Nisga'a.

I have sat here and listened to some people suggest that back in 1982 and 1983 it never occurred to anyone that protecting land claims agreements meant we would give constitutional protection to self-government agreements. It is astonishing for those of us who have been around as long as some of us have.

I had the privilege of attending my first meeting in front of a Senate committee in 1983 with the delegation of the Nisga'a Tribal Council. That was on September 22. We attended before the Standing Senate Committee on Legal and Constitutional Affairs, which was considering the motion to amend the Constitution to include section 35(3). Then, as now, I was privileged to be with the Nisga'a delegation as counsel. During that hearing, the Nisga'a delegation testified about what would happen. After describing the purpose of the Nisga'a land claims agreement, which was even then under negotiation, as a process to define the way in which Nisga'a aboriginal rights would be recognized in the future, the Nisga'a made it clear that self- government was one of those rights and that they would negotiate an appropriate governmental structure and relationship with the rest of the Canada. Of course, the amendment was made, and we respectfully submit that our treaty does what we said it was intended to do.

We were not the only ones to give that testimony to the Senate at that time. It was clearly understood that part of land claims agreements would be working out constitutional protection.

That leaves us here. When people, whether the witnesses last night or today, or senators, have said that they would be in favour of all of this if only self-government did not have constitutional protection, what they are really saying is that they want federal and provincial governments to be able to infringe on Nisga'a rights in a way that is not in pursuit of a valid legislative objective and is not justifiable in accordance with the honour of the Crown. In other words, they want governments to be able to infringe on Nisga'a rights whenever they decide to do so, without any requirement that they do so in accordance with the constitutional standards set out in Sparrow. Why would the Nisga'a or anyone else ever agree to that?

The Nisga'a believe, and it is a view shared by virtually every aboriginal group in the country, by the royal commission and by all the legal academics that you heard, that the inherent right of self-government is already in section 35(1). People might disagree with that view, but if you take it that that is a view held universally by First Nations, with academic and judicial support, why would they ever enter into an agreement in which they would give up that constitutional protection as the price of an agreement?

Senator Beaudoin is not here, but I was prepared to have a paramountcy discussion with him. It comes to the same point. I will simply say this: The notion that paramountcy amounts to an abdication, cession, transfer or reduction in section 91 and section 92 powers is wrong. Sections 91 and 92 remain intact. The treaty says it does not alter the Constitution of Canada.

Are there limitations on the exercise of section 91 and section 92 powers by virtue of the treaty? Of course, there are. There are limitations on the section 91 and section 92 powers by the fishing provisions, by the land provisions, by the wildlife provisions. Your power has not been absolute since 1982. There are constitutional limitations on your authority.

However, the courts have said section 35 is not absolute. It is not like sections 91 and 92. Therefore, if governments within their valid areas of jurisdiction feel the need for disallowance, feel the need to say, "We know we agreed, Nisga'a, that your laws would prevail but we have changed our minds", pass the legislation. Say "Notwithstanding the Nisga'a treaty, federal law prevails in this instance."

That is a breach of the treaty. However, a breach of the treaty does not mean it is ultra vires, like sections 91 and 92. A breach of the treaty means that the Crown must show that it is acting in pursuit of a valid legislative objective in a manner consistent with the honour of the Crown and that it is justified. That is all.

When everyone says, "Today's Nisga'a leadership are wonderful folks, no worry about you, but we do not know about the rogues who might come in the future", the Nisga'a say, "We are getting to like you senators and the House of Commons pretty well, but we do not know about the rogues who will come in the future, too." The Nisga'a say, "Well, if the rogues appear and do something really wonky, abuse minority rights, attempt to do something so bad that the Crown needs the disallowance power" -- it is an analogy but a useful one -- "then act." If it is justified, it will be upheld. There is no cession, abdication or transfer. In light of that, what are we to make of the comments made by the former justice Mr. Estey and by Mr. Weston on behalf of Mr. Mel Smith?

The theme of the last two days seems to have been that the treaty is pretty good but you should not let it come into force for whatever reason was on the agenda of the particular witness who was speaking.

What are we to make of the suggestion of Mr. Estey and Mr. Smith, addressed at page 17 in our supplementary submission, that the implementation of the Nisga'a treaty should be delayed until the Supreme Court of Canada has ruled? That is a period of three years according to Mr. Smith and five years according to Mr. Estey. Five years would have the effect of a hoist, pending the outcome of the lawsuit commenced, ironically, by the provincial Leader of the Official Opposition, Gordon Campbell, and his colleagues.

The Nisga'a disagree profoundly with that suggestion. With the greatest of respect, it is somewhat distressing that Mr. Estey would make this suggestion at this late date, more than four years after the publication of the Agreement-in-Principle, more than two years after the Final Agreement, and as the last stage of parliamentary consideration is about to conclude.

It is not a new suggestion. There was nothing novel about it. The Senate should be aware that the court has already ruled on the effort by Gordon Campbell and his colleagues to have the court determine the validity of the treaty prior to its enactment. The court ruled that the litigation should not proceed until the settlement legislation has passed.

Echoing some of the comments made by Senators Grafstein and Beaudoin earlier today, I refer you to Mr. Justice Williamson's decision of February 1999:

Under our system of government, it is essential that the courts respect the right of Parliament and of the legislative assemblies to exercise unfettered freedom in the formulation, tabling, amendment, and passage of legislation. This obligation is no less than that of the duty of the legislative and executive branches to respect and defend the independence of the judiciary. These are matters fundamental to our democratic beliefs, our history and our constitution. They should not be impinged upon lightly, if at all.

The result is that the legislative branch must be given free reign to introduce bills and to explore in debate the ramifications of proposed legislation. Legislatures are, nonetheless, bound by the rule of law. Should they pass legislation which the courts subsequently find to be unconstitutional, they are bound to respect such a ruling.

The plaintiffs did not appeal that decision. With respect, you should not -- as Senator Grafstein pointed out earlier today -- abdicate your decision to a court saying, "We are all right; you decide." You should not do through the back door something the courts have already rejected.

The Reform Party tried the same or a similar thing last spring. The majority of members of Parliament rejected it.

Senators should also know that, under paragraph 19 of the general provisions, it is provided that if, despite the view of the three parties, a court determines any provision of the treaty to be invalid, the parties will make best efforts to remedy the provision. The important point is that the provision is severable from the treaty to the extent of its invalidity or non-enforceability. The remedy of invalidity is not to set aside or suspend the whole treaty. You sever that which needs to be severed and carry on. Why would we need to wait for five years to have any of the treaty, if the remedy in the case of a lack of success is as I have said?

With the greatest of respect, I address the reasons advanced by Mr. Estey, and all we had before today was the news release, as reflected in his submission as well. With the greatest of respect to someone of his stature and seniority, it appears to us that his arguments evince a lack of accurate understanding of the treaty and of the nature of the constitutional protection afforded by section 35 of the Constitution Act as that section has been interpreted in the last 10 years.

The committee should note that while Mr. Estey, we understand, met with the so-called CANFREE organization, a group apparently organized to oppose the Nisga'a treaty, he at no time made any effort to contact the Nisga'a Tribal Council to discuss his concerns or to hear our side of the issues. Of course, if he was appearing as counsel for CANFREE, why should he meet with us? However, I was left unclear as to his status as counsel. I did not meet with them, either. If Mr. Estey had heard our side, we would have explained to him that the Nisga'a treaty can in no way be construed as creating, in his words, an "independent state." I say with respect that his use in his submission of the phrase "creating an independent state" is so over the top as to make one wonder whether any regard was paid to the clear contents of the treaty and so on. These matters have all been discussed.

When Mr. Estey appeared before you this morning, and I believe when Mr. Weston spoke on behalf of Mr. Smith last night, the constitutional orthodoxy, if I can use that term, was advanced as follows: All legislative jurisdiction is exhaustively distributed between the federal and provincial governments under sections 91 and 92 and nothing is left over. Sorry, First Nations, but when the Fathers of Confederation got together in 1867, all the powers got split in half. We were not thinking about you; there is none left over. How about a delegated power?

That is the constitutional orthodoxy. It is wrong, with respect. The British Columbia Court of Appeal actually ruled just that in Delgamuukw. The Supreme Court of Canada set that decision aside. The Supreme Court of Canada did not make a final decision. As Professors Ryder and McNeil pointed out last night, you cannot deal with the right of self-government in excessively broad terms. That means you cannot prove it but you cannot deny it either.

They set the Court of Appeal decision aside. The Court of Appeal ruled -- I repeat for emphasis -- exactly what Mr. Estey said, and the Supreme Court of Canada set it aside and said to go back to trial and start again. The professors last night told you the challenge that is then presented to First Nations: having to prove each power one at a time.

The Campbell case is scheduled to commence on May 15, 2000, a little over six weeks from now. The process of exchanging documents between the parties has already commenced. Mr. Justice Williamson said he would hear this case as soon as possible after the bill is in force or proclaimed.

That hearing is going ahead on May 15. We do not need to suspend anything or wait. These arguments will all be made, and perhaps others, in front of the Supreme Court of British Columbia, starting a month and half from now if the bill has been passed. The courts will hear the arguments and make decisions. In the meantime, it would be completely unjustifiable to impose the financial and other costs of another five years' delay on the Nisga'a people.

This situation is a little ironic. Over the last umpteen years the courts have said, "Negotiate, do not litigate; these problems are not appropriate for judicial resolution." The Nisga'a did negotiate. The Nisga'a have been at it since 1976. They have played by the rules of the game as those rules were dictated to them. Now, on the last couple of days of Senate consideration, the Senate is asked to consider and the Nisga'a hear from all these learned people the idea that, "Well, it is good, Nisga'a, that you negotiated, but before you get to reap the fruits of your negotiation, you must go and litigate. You must wait until you have litigated." If those are the rules of the game, to spend 20 years negotiating and then be required to go to court before the treaty can be implemented, why would anyone bother?

Senator Grafstein: I cannot match the eloquence of Mr. Gosnell so I will not try. I must say that I will take a fresh look at the positions I have tried to enunciate here. I will take the weekend to do that. As the Senate is a chamber of sober second thought, I give myself an opportunity for sober second thought. In that sense, I wish to assure him that this has been, for me, a very intriguing and interesting and informative hearing. I came to this as an orthodox person. I am not sure I am about to change my orthodox stripes, but, having said that, I will certainly give it due consideration. The witnesses have answered, as best they can, my fundamental issues and I then must wrestle with those.

I have one question. Would you please read for me section 35 of the Constitution of Canada?

Mr. Aldridge: This is from Part II of the Constitution Act of 1982:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

Senator Grafstein: Thereon hangs the tail. I do not want to suggest to you that these submissions were not made to Parliament, where the aboriginal submissions took the strong position that is outlined here. I will go back to Hansard and the debates, because for me it is a crucial issue. Those words were carefully parsed, as I recall, and the question of self-government could have been included in that for greater clarity. Again, it is all for speculation, and this is a supposition that I have made, perhaps wrongly, but I think that had the words "self-government" been included in that for greater clarity, it would not have carried. I think the review of Hansard will show that. I leave that not as a conclusion but as a thought. Hence, we now have the problem of how far land claims have evolved from land claims to constitutionally protected self-governance, which is the issue with which we have been wrestling.

Again, there is the problem with subsequent interpretation and the "living tree" doctrine of the Constitution. Things evolve. Things change. You have been fair to say there has been evolution here, as did Professor Ryder and the other gentlemen yesterday.

We must, quite frankly, measure the Constitution through two distinct prisms. One prism is the circumstances of today. They cannot put us into a straightjacket, because that would not be effective. We must bring practical things to bear. Also, we must look at the intent at the time, and we must be fair to that.

Your submissions were correct, but had those words been parsed differently, as I say, I would have concluded that that would not have carried and that the proposition that was put forward was to allow land claims to evolve in a constitutionally protected way that in no way diminished the inherent rights argument. I leave that not as a conclusion but as another view.

I wish to say in conclusion that I feel that your brief and the previous brief by the provincial government have been immaculate in their conception, hopefully immaculate in their persuasion, but I am not about to take yet that second, second, second sober thought until I have a drink to help me through the weekend.

The Chairman: I wish to supplement, if you like, I hope helpfully, what Senator Grafstein was saying, though I am convinced absolutely that there is an inherent right of self- government within the definition. However, for greater certainty, I should like to read into the record something from the famous Charlottetown Accord, section 41. The governments of the day, including Mr. Mulroney's government, sought the following paragraph:

The Constitution should be amended to recognize that the Aboriginal peoples of Canada have the inherent right of self-government within Canada. This right should be placed in a new section of the Constitution Act, 1982, section 35.1(1).

If you are a political scientist and also a lawyer, your "growing tree" doctrine would be well served by that political consensus. It was referred, of course, to the people, but who knows on what basis the people defeated it.

Senator Grafstein: You beg the question of what was the will of Parliament and the public at that time.

The Chairman: The will of Parliament and the legislatures of Canada was clear, but the question was referred to the public at large and, as lawyers might say, went off on another issue.

Senator Andreychuk: The professors argued that it was there in 1982.

Mr. Aldridge: I was going to refrain, but, in fairness to the professor and, more important, in historical fairness to the aboriginal organizations of this country, I should like to respond to that if I may. Everyone has been talking about his or her qualifications, so forgive me. I was at every single first minister's conference during the 1980s. I was at virtually every preparatory conference for those meetings with officials and politicians with the Nisga'a, and for some time with the Council of Yukon Indians as well. On every occasion that the subject of an amendment to explicitly entrench self-government was put forward by any of the organizations, it was always done knowing that some day history would come back and say, "Well, you must have thought you did not have it or you would not be proposing it." People were alive to this. On every occasion, they said, "We wish to make it clear. It is there already, but we know that there will be people with the opinion that it is not there. We know there are people who disagree about that. We think it is there, but in order to be sure we want it to be made express." It was always done under reserve of the view that it is already there.

Last night, the conversation went a little sideways about whether or not RCAP recommended that the amendment was necessary. I thought there were cross-purposes there. My recollection of RCAP is that they said that the inherent right is already protected in section 35.1 but, to put the matter beyond doubt, there should be an explicit amendment to that effect. Unless I am very much mistaken, that was precisely the view of the Beaudoin-Dobbie committee in 1992.

It is not fair to aboriginal people or to the history of the debate to suggest that by asking for the express reference to the right of self-government they were somehow conceding that it was not already there.

Senator Andreychuk: In fairness to me, that was not the argument I was making. You were making a rebuttal to something I did not say.

Mr. Aldridge: I apologize.

Senator Andreychuk: The words speak for themselves in 1982 and 1983. We were referring to words of the Charlottetown Accord. I was referring back to the professor. I think it is a needless debate, however, at this late hour. You are attempting to put forward what you believe were the negotiations leading up to 1982. I think the point that Senator Grafstein made was the correct one. In interpretation, you look back to the words at the time, and then you look beyond that to the attempt. That is for us to reflect on the evidence, not to resolve here, because otherwise we would have to call all the witnesses who were there in 1982, to be fair.

The Chairman: I was one of those, and I have already stated my conclusion. I served on the Special Joint Committee on the Constitution for six months. I will decline your non-invitation to dance.

Senator Pearson: I have followed this debate with enormous interest and I have not asked many questions. There seemed to be plenty of others who have plenty of questions to ask and therefore I could hear what was going on in the dialogue. But I wanted to express my appreciation for your patience. Generally speaking, I, like the Chair, have no reservation whatsoever on the issue of inherent self-government. It is something that I believe in very strongly.

I appreciate what you have done in your table here, giving us the jurisdiction in a nice neat way, partly because I felt that a lot of our discussion got so abstract. They started talking about all these areas of jurisdiction, and somehow you had all the powers in the world. In fact, when you look at them, you are looking at very straightforward powers that relate entirely to the management of your Nisga'a community. I do not have a problem with any of that. You have done an admirable job of combining federal, provincial and your own jurisdiction.

Those are the comments that I wanted to make. I am always interested in those abstract arguments, but I think that people go too far away from what the real people are doing on the ground. We keep our fingers crossed.

Mr. Aldridge: We had asked for the table for senators' reference. I did not refer to it. We wanted to spare any unnecessary parsing. We have broken down the list of powers with the appropriate paramountcy rule to the best of our ability.

Senator DeWare: I was in provincial politics in the 1980s with the New Brunswick government. At that time all the premiers in Canada agreed with the Prime Minister to attend the Meech Lake meetings. Our premier at the time was Richard Hatfield, who was very interested in constitutional matters. He was convinced at the time that Meech Lake was the right way to go. Unfortunately, they got off the track over three years.

We asked our premiers at that time about the aboriginal people. Aboriginal people were not included in Meech, as you know. Our premier told us explicitly that he had been told that if we got Meech, then we could sit down and negotiate with our aboriginal people. Do you feel that, if Meech had been ratified then, this negotiation would have been finished before now?

Mr. Aldridge: Remember that the reason that Meech did not go through was that it failed to include concerns of aboriginal people, and Mr. Harper in Manitoba, of course, was the one who ultimately withheld his consent.

Part of the frustration, as you will recall, was that there had been by that point four first ministers conferences dedicated to aboriginal rights, since the first one had not resulted in a single amendment. Then look what happened when they got together to discuss everyone else's concerns; right away they had an accord. One of the concerns at the time was why is it that it takes us four conferences without getting anywhere but everyone else's concerns get dealt with immediately?

If things had evolved differently and Meech had gone through? I do not know.

Senator DeWare: It was almost 20 years ago.

The Chairman: Senators and witnesses, let me pitch a commercial for the Senate. I should like you to make everybody you know aware that this Senate committee was in session from 9:00 a.m. until 5:30 p.m. without a break. We were all awake listening to all the witnesses including your summing up.

Mr. Gosnell: Thank you, Mr. Chairman. Honourable senators, today I think we stand on the brink of a new threshold, something totally new for the Nisga'a nation. I ask you, as the members of this committee, to walk with us, to join us. I ask all members of the Senate to join us in this new journey of reconciliation.

The Chairman: With great pleasure, I adjourn this committee.

The committee adjourned.

---