Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 8 - Evidence
OTTAWA, Tuesday, March 28, 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 6:07 p.m. to give consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum. I call to order this meeting of the Standing Senate Committee on Aboriginal Peoples to give clause-by-clause consideration to Bill C-9 and to consider whether the committee should attach opinions to the report of the committee.
Senator St. Germain: Mr. Chairman, before we proceed to that business, I should like to deal with a couple of matters.
Ms Wendy Lockhart Lundberg previously tabled an incomplete submission with us. I now wish to submit the complete submission and ask that it be attached to the record.
The Chairman: That will be done.
Senator St. Germain: As well, a petition was sent to me from non-native permanent residents of the Nass Valley. I do not know these people, Mr. Chairman. The petition says:
We, the non-native, permanent, residents of the Nass Valley and the Irene Meadows Community, would like it to be known to the members of the senate that Mr. Bill Young, not a permanent resident (owner of Tillicum Lodge and Nass Camp, a business operation) does not represent our feelings or opinions on the Nisga'a treaty and lands claims. We would appreciate the chance to have the Senate hear our views.
I would ask that this petition be attached to the record of the committee.
The Chairman: You have read it into the record. Could you read the names of the petitioners?
Senator St. Germain: They are: Larry Nord; M.K. McIntyre -- I cannot read the next one -- Marty Cox, Mr. and Mrs. Jepson, I think. The names are not printed beside the signatures and they are very difficult to read. Their addresses and the date they signed the petition are included. The signatures were affixed to the petition beginning on March 20 and ending on March 28.
Two petitioners are from Aiyansh and the remainder appear to be from Nass Camp.
The Chairman: The petition will be circulated to all members of the committee.
Shall we proceed to clause by clause consideration of Bill C-9?
Senator St. Germain: I would like to raise a point of privilege or a point of order.
According to one of the senators on this side, the hard copy transcripts that have been provided are incomplete. In view of that, I think we should deal with the matter. I do not know why they are incomplete. I personally have not perused them, but Senator Andreychuk has and she believes that some of the questioning that transpired between herself and the minister is not part of the record. Senator Andreychuk believes that her privilege is being violated in view of the fact that this has been presented as a complete transcript.
We stand to be corrected on this. We brought this to your attention this morning, and we have been going through the tapes since that time. The only possible way to reconcile this would be to go to the CPAC recording that took place during that portion of the hearings.
I beg the indulgence of the chair to deal with this immediately, if we can, sir.
The Chairman: It is remarkable that Senator Andreychuk does not speak to the point.
Senator St. Germain: She will.
The Chairman: Is this Senator Andreychuk's point or your point, Senator St. Germain?
Senator St. Germain: It should be everyone's concern, not only hers. However, since I am the deputy chair, I have raised the matter. I now yield to Senator Andreychuk.
Senator Andreychuk: As you know, I raised some points this morning that were significant to my concerns and deliberations. I have gone through the transcripts, as you notice.
I indicated last week that it was very important and that I wanted to go through all the evidence to ensure that I weighed properly and adequately all the evidence that had been put forward. I went through the evidence from Thursday, March 23, 2000, and some of the questioning that I put to the minister does not appear in the transcript. That is rather germane to my assessment. I do not want to go on recollection on that evidence because it is crucial.
I would prefer, and I think it is my right, to have the transcript so that I can review the evidence. However, certain evidence appears to be missing. How that has come about, I do not know. There must be some way of rationalizing our main recording and this transcript, because there is certainly a piece missing.
The Chairman: You raise an interesting issue. What makes it interesting is that the Senate does not provide transcripts that have been edited, they provide an instant electronic reprocessing of what was said. The accurate transcripts are probably not available for some days. That is the normal course of the Senate process.
The committee's consideration of issues does not rely on transcripts; we are to rely on evidence given, the notes that we take, and the impressions that we have of cross-examinations.
We endeavour to assist senators by producing these electronic transcripts overnight. However, those transcripts are not necessarily totally accurate. Every committee which wishes to see transcripts of evidence given by witnesses would have to wait for those documents for two or three weeks while they go through the process that we have here.
However, there is a CPAC "transcript", and we have made a request to compare it to the electronic transcripts which were prepared for this committee. That evidence, to assist you, will be available shortly.
Mr. Michel Patrice, Clerk of the Committee: The evidence should be ready within 24 hours.
The Chairman: There is no precedent for a Senate committee not proceeding with clause-by-clause consideration in the absence of a minor amount of material in the evidence. It may be significant to you, Senator Andreychuk, but it is a few minutes out of hours and hours of evidence that has been given in committee. If there is a precedent, I would like to know of it. I have not heard of one in a case like this. Thus, I am proceeding as a matter of normal practice. If any committee has ever interrupted its consideration of a bill to await a transcript at the request of one or two senators, that is something new to me.
I would be happy to hear from any other senator on this issue.
Senator Andreychuk: I have never been put in this position before. I have been given two options: first, either I accept that the transcript is not necessary to my deliberations, or, second, if I say that it is, we must adjourn to allow the transcript to be prepared so that it can be incorporated into our consideration of the evidence.
I am being put in a position of having to move ahead, on something as fundamental as this proposed legislation, without what I believe are the very germane questions I asked. It is curious, many of the other questions that are here I think are important questions, but do not necessarily go to the nub of what I need to determine how I will vote on this issue.
The Chairman: Are there other senators who wish to address this question?
Senator Nolin: I am new to this committee and I was informed of that little problem this afternoon. I understand that Senator Andreychuk has asked, with the full agreement of the committee, to review the transcript, and the committee has agreed to that.
Do I understand that, even if this were an accurate transcript of what took place at a meeting of this committee, it does not matter? I find that preoccupying. We should understand exactly what happened. It may be a minor matter. It may be only one page that is missing.
I was not there, but if the minister admitted something in response to a question, if it is only one paragraph of a one-inch thick document, that is an admission from the minister. According to Senator Andreychuk, that admission may cause her to change her mind on how she will vote on the bill. We must respect that.
Mr. Chairman, you must suspend the work of this committee to ensure that the full transcription of what the minister said is available to all the members of this committee. When you are satisfied as chairman that what took place in your committee is properly transcribed in the documentation of the committee, then your committee will be able to proceed properly. That is my opinion.
The Chairman: Would Senator Andreychuk tell us what evidence is missing?
Senator Andreychuk: The dilemma I have is that I cannot remember the exact words of the question I put to the minister. However, my question was put during the line of questioning on minority rights as it relates to the Gitanyow and the Gitxsan. There was a series of questions put to the minister. My memory fails me as to exactly how the question was phrased. I asked him whether he thought and believed that the Nisga'a claim was valid on the disputed lands, and was he therefore taking the position of the Nisga'a in the land dispute, to which he answered that he was.
I want to be absolutely certain how the question was phrased and what the answer was. It seems to be very germane to me on that issue. Unless my eyes are failing -- and I have also had some researchers look at it -- I cannot find that portion of the transcript.
The Chairman: Actually, I read that evidence when I reviewed Minister Nault's testimony. I have just asked the staff here to see where it is in the transcripts we have provided.
Senator Gill: If we are able to find something that was missing right now, who will make the decision that what we find is what we were looking for?
The Chairman: Me. Anything I decide can be appealed by this committee.
Senator St. Germain: In the full Senate?
The Chairman: In the committee to begin with. Of course, a question of privilege can be raised in the Senate tomorrow on this item.
Senator St. Germain: If you can find it, Mr. Chairman, it will resolve the entire problem.
The Chairman: Senator Andreychuk asked the question on page 46 of the transcript. It is marked "46", but that is not the page.
I will read it and then we will put it on the other pagination. Senator Andreychuk asked the minister:
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.
Senator Andreychuk: I believe it follows in that sequence.
Senator DeWare: Was there another question?
Senator Andreychuk: I believe there was another question.
The Chairman: What we have next is Mr. Molloy speaking to the issue as follows:
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 a overlap issue between the Gitxsan, the Gitanyow, and the Nisga'a. That is why we put in those three sections.
There, he is referring to paragraphs 33 to 35. He goes on to state:
That is also why, over a period of time, we tried to bring the parties together.
Mr. Molloy then goes on to state:
With respect to the area where there is overlap, we have provided the rights to the Nisga'a in respect of matters that are affecting them. It is their wildlife rights that they are managing in the wildlife area, and 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 then asks: "What about the fee simple?" Mr. Molloy answers that question. I then say, "Senator Andreychuk, are you done?" Senator Andreychuk responds, "I have just one more question." The question is not too long. Mr. Nault answers it. It is a question on a reference that Mr. Estey gave in his evidence. There is then more testimony between Senator Andreychuk and Mr. Nault. The last sentence states:
Mr. Nault: ...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 court define "political relationship". Let us define a relationship that needs to be done in a modern context by us, as parliamentarians.
I have several pages that seem to be knit together. I think you got your answer on the record, namely, that the minister believes that the lands do belong to the Nisga'a, based on the evidence that was submitted to the department.
Senator Andreychuk: My difficulty is that I have a recollection of slightly different questioning than just this point. I do not know what your page is, but it fits into page 34 and on to page 35 such that I am wondering whether it is complete. That is why I was asking for that reassurance.
The Chairman: In my view, it is not appropriate that, on the basis of the recollection of one or two senators that are vaguely different, the committee stop its work. There are two remedies for the senators who are dissatisfied: one is a question of privilege in the Senate; and the other is debate on third reading.
Senator Tkachuk: I was there when Senator Andreychuk was questioning the minister. The question was put that lands agreed to in this agreement were those of the Nisga'a and he said "Yes." There was then another question.
I do not know whether they changed the blues in the minister's office -- I do not think so -- but that is not what happened there or, at least, it does not follow that that is what happened.
The Chairman: I am bound to see the record and ask Senator Andreychuk what is missing. She told us what she thought was missing. I believe it is there. She has her answer. If her question to the minister was, "Do you agree that these are Nisga'a lands", he made it very clear that that is his view.
Senator Rompkey: There are no blues, as I understand it, for electronic transcript. All we get in committee work is an electronic record, unedited. If you were to wait for the final Hansard, it could be weeks down the road. I understand that committee Hansard transcripts are the last thing that we get. The priority is the Hansard for the chamber. It is weeks down the road before you see the actual record that has been edited by the Hansard staff. That means that this committee's work would be hung up for weeks.
In 27 years, I have never seen committee work interrupted by reason of a discrepancy in an electronically produced transcript. As in all discussions, we pose our questions, we get our answers, and we make up our minds individually as to what we believe. This is an unusual occurrence for me; I have never encountered it before. I agree with the position that the chair has taken.
Senator St. Germain: Mr. Chairman, in the spirit of getting on with the program, I would ask the clerk to make the CPAC tape available. I have talked to Senator Andreychuk. She can speak for herself, but if she is correct, then she could raise a point of privilege in the Senate and we will deal with it in that manner. Is that agreeable?
The Chairman: That is acceptable, thank you. That is my view of how to proceed.
Senator Andreychuk: Mr. Chairman, I just want to put this on the record. It may not have occurred in 27 years, as Senator Rompkey says, but I want to be absolutely certain, before I use the transcript before me as if it were full and complete, that, in fact, it actually is complete. I do not want to taint anyone's character or his or her judgment, particularly that of a minister, until I am absolutely certain that I have a complete record. What I was asking for was to be assured that the record is full and complete. I think that is a request that has been made before, and is properly made at this time.
The Chairman: The Senate provides these electronic transcripts for the convenience of the senators. The clerk has advised me that he will review the CPAC transcript with the electronic transcript and compare the two and show the comparison to Senator Andreychuk. He hopes to do this sometime in the next 24 hours.
Senator Andreychuk: I want to make another statement on that fact. We sat in almost deplorable conditions on Wednesday night in this room, with the heat and the length of the hearings, and then we proceeded immediately into the full-length day. It was not the usual hearings that we have in this Senate. I know some senators had to leave because it was too difficult for them to sit through.
I sat through it all, and I want to be absolutely certain that it was complete. There was also a lot of back and forth and questions being put to other questioners, et cetera, so it was not as clear-cut in my mind, and I wish to be absolutely certain.
It is not to cast aspersions on anyone, certainly not from my point of view, but electronic equipment fails as human beings fail, and I want to be absolutely certain before I take what I call a very momentous step in this process. This is not a bill, as you have pointed out, that is amendable. It is a significant bill, and I do not take it lightly.
The Chairman: No one here takes it lightly. We will try to complete the electronic record of your cross-examination at the earliest time. The clerk has it as his first priority.
I would like to say anecdotally that there was a time in the Senate -- and I think, Senator Andreychuk, you might have been here, although you are a bit young -- when the Hansard could not be produced the next day, and there were days when the Senate sat and the Hansard was three and four days late. The precedent set in the Senate that I recall was that, following a question of privilege, there was ruling that the Senate's business and public business would move on whether or not a Hansard had been printed.
However, we have agreed to proceed, so let us do it, and your rights will be held in reserve.
We will proceed to clause-by-clause consideration of Bill C-9, to give effect to the Nisga'a Final Agreement.
In the customary way, I would propose that the preamble stand postponed, that the title stand postponed, that clause 1 stand postponed. I am following our normal custom for clause-by-clause approval. Is that agreed?
Hon. Senators: Agreed.
The Chairman: Then we move to clause 2 of the bill, and this is the definitions clause, interpretation.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 3 refers to the Constitution Act, 1982.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 4: Nisga'a Final Agreement: rights and duties and saving clause.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 5: "The Nisga'a Final Agreement is binding on and can be relied on by, all persons". "Agreement binding".
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 6: "Conflict between Agreement and laws".
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 7 is next. Need I read them all or can I carry them all? With the unanimous consent of the committee, I do not have to read these paragraphs, paragraph by paragraph. Would that be agreeable?
Senator Tkachuk: Instead of proceeding clause by clause?
The Chairman: Shall all clauses carry save and except the preamble, the title and clause 1, or would you like me to go clause by clause?
Senator Tkachuk: On division.
The Chairman: Thank you. We will move, then, to the preamble.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: The bill is carried.
We now move to the question of observations. I have circulated a document with an observation that some senators are prepared to support. Should we discuss our observations? Is there any senator who wishes to lead off?
May I propose that we meet in camera to discuss our observations, or is there no interest in the committee in any observation, and should the bill be carried on division?
Senator Rompkey: By "observations", do you mean the paragraph that we discussed earlier today?
The Chairman: This is correct.
Senator Rompkey: That would have the force, as I understand it, of recommending that the federal government pursue the overlap issues and that these be resolved to the satisfaction of the First Nations concerned. I certainly can support that myself.
The Chairman: I see no need to proceed in camera. Perhaps I could read the observation that was tabled, and consider it tabled now on our part.
During the course of its hearings on Bill C-9, your Committee heard testimony concerning the potential impact of the Nisga'a Final Agreement on unresolved overlapping land claims of the Gitxsan and Gitanyow Nations in the Nass Valley region of northern British Columbia. Your Committee recognizes that the parties have attempted to address this question by including provisions in the Nisga'a Final Agreement that aim to preserve and protect the rights of Aboriginal peoples other than members of the Nisga'a Nation. Your Committee is nevertheless deeply concerned about the implications of outstanding overlap issues, not only in relation to the Nisga'a and neighbouring First Nations, but also in the broader context of the ongoing British Columbia treaty process involving over 50 First Nations. Your Committee therefore strongly urges the federal government and its negotiating partners to vigorously pursue...
That is a split infinitive; we may change that.
...all means at their disposal to ensure that overlap issues are resolved to the satisfaction of concerned First Nations prior to the conclusion of future land claim agreements.
Is there any discussion or comment with respect to that observation?
Senator Pearson: I support it.
The Chairman: Would you move that the observation be included in the report of the committee as I have read?
Senator Pearson: Yes. I so move.
The Chairman: Is there any further discussion? No?
Senator Tkachuk: I have a point of order. We voted on this on division, but it is five and five.
The Chairman: You said, "On division," and therefore it was carried on division. You are a little late in the day to raise that issue.
Senator Tkachuk: I just wanted to make a point.
The Chairman: I miss you, Senator Tkachuk. I enjoyed you so much in the Banking Committee. You keep a chairman on his toes.
Senator Tkachuk: Since it is really important to the government side, I just thought you would have your full contingent here.
The Chairman: There is a procedure for voting on the overlap which allows me to vote. I have to announce it before a vote is taken, or at the same time. I will ask those who support the observation being included to raise their hands. Any opposed? Therefore it is carried.
Senator St. Germain: I would like to abstain.
Senator Tkachuk: I would too.
The Chairman: How many abstentions are there? Four. Is it agreed that the motion to report the bill to the Senate with the proposed observation be carried?
Some Hon. Senators: Agreed.
The Chairman: On division?
Some Hon. Senators: Yes.
The Chairman: On division.
There being no further business, I would thank all members of the committee for their undoubted service. Many of us have been here throughout. My deputy chair has been here from the beginning to the end, and he has been very actively engaged in the debate of the issues, as have other senators. We will report to the Senate, and what happens in the Senate will undoubtedly be of much interest. Thank you very much.
Senator St. Germain: I wish to thank you, Mr. Chairman. This is a very difficult piece of proposed legislation on a very complex and, indeed, historical issue. I know that during the course of the debate you indicated that you had given all senators, particularly me, a lot of time for questioning. I wish to thank you personally for having given me that opportunity. As I said earlier, I would have gladly relinquished my questioning position to other members, but it seemed that I had more interest. Basically being from British Columbia, I would like to see this matter resolved. There is no question my concern about the overlap is first and foremost. I will be pursuing it in whatever way I possibly can in the Senate.
I thank you for your understanding and patience and, hopefully it will be a better day for our native people right across Canada.
The Chairman: Thank you very much. I believe it will be a better day. You and I both come from British Columbia, Senator St. Germain, and we understand how deeply significant this is in our province, and in time it will be significant in other parts of Canada.
Thank you, honourable senators.
The committee adjourned.