Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 10 - Evidence - Afternoon sitting
OTTAWA, Tuesday, October 17, 2000
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-14, respecting an agreement with the Norway House Cree Nation for the settlement of matters arising from the flooding of land, and respecting the establishment of certain reserves in the Province of Manitoba, met this day at 4:35 p.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Please proceed, Mr. Hart.
Mr. Bryan Hart, Band Member, Norway House Cree Nation: Madam Chairman, I am pleased to be here today before your committee. I was present at the Standing Committee on Aboriginal Affairs and Northern Development in March 1998 when this bill, Bill C-14, was considered by that committee. I cannot say that I was very pleased with how the committee responded and addressed any of the issues or concerns that I raised or the issues and concerns raised by other people who might be considered as dissidents in terms of dealing with the Northern Flood Agreement and this bill. I cannot say that I am overly positive that today's meeting will do anything constructive, at least from where I would like to see things go. Nevertheless, I am here and I am pleased that you are here.
There is much to be said about the Northern Flood Agreement in northern Manitoba. I cannot possibly go into enough detail to give it the justice that is required. I want to provide a very basic picture of a dynamic that Norway House, over a number of years, has been a part of and has been subjected to by the Government of Canada. It is a very simplified dynamic, a scheme or set of events.
I understand that each senator at the committee will have very little information on what the issues are, what the Northern Flood Agreement is, and about where Norway House is. I believe that you have very little information on a number of things. That was the case with the standing committee at the House of Commons.
I will provide a straightforward, condensed and streamlined version of a power play dynamic that I want to share with you. It is called the destruction of a treaty, and it is Canada's policy. There are 13 steps that I want to share with you. They illustrate how I see why we are here today.
The first of those 13 steps is to dispossess First Nations people from their lands and resources. That has been Indian policy in Canada since day one. The Canadian government signed with First Nations an agreement that is not intended to be honoured. The only reason for signing the agreements is because public pressure forces your hand. That is the only reason.
The second step is that once the land and resources are taken to supply their benefits to large non-First Nations populations, you ignore the obligations and liabilities of the agreement itself, because public pressure is less of a factor. That has been Indian policy in Canada from day one. It is about the dispossession of lands and resources from First Nations.
Third, in 1982, something happens. The Northern Flood Agreement was signed in 1977. You realize that the agreement has now been given constitutional protection by section 35 of the Constitution Act, 1982, which provides that existing agreements, such as the Northern Flood Agreement, are hereby recognized and affirmed. There is a bit of a concern that this agreement is much more real now than it was when it was signed. You have to pay attention to it. Because it is more expensive now, you will have to look at it. Perhaps it will look as if you are moving toward implementation of it.
Fourth, you continue to hold back the discharge of the obligations and liabilities. Thus, the five affected Cree First Nations involved do not receive any benefit from this agreement. You even cut back normal programming dollars with the intent to impoverish the communities. The policy of duress or starving them out continues. That is highlighted in the 1985 Nielsen report, which showed per capita funding and funds for normal band programming was lowered considerably for NFA bands. Roughly $10,000 per capita was spent on each band member in each of the five communities, as opposed to $25,000 per capita for other First Nations who were not part of the Northern Flood Agreement.
The Nielsen task force report said that this dynamic is consistent with Canada's way of dealing with treaties. When there are liabilities at stake, this is what happens, this is what Canada does. I urge you to look at the Nielsen report of 1985, which speaks directly of duress and impoverishment and the starve-them-out position and policy of the Government of Canada.
The fifth step is to divide and conquer the affected First Nations by cutting off core funding to their representative organization, the Northern Flood Committee, which spoke with one voice on behalf of the five bands. The bands no longer speak with one voice. I refer to the testimony before the Standing Committee on Aboriginal Affairs and Northern Development in 1985 when a bill with respect to the Split Lake First Nation was before the House of Commons and the Senate and then became law. After a number of years of duress and impoverishment, you pick one of the smaller, weaker communities and offer them a few carrots to go with the stick approach. In this case, it was Split Lake.
After 10 to 15 years of policies based on duress, impoverishment and denial of the agreement's status, integrity, its spirit and intent, eventually First Nations people get impatient and demand that their leadership provide visible benefits. Where are the benefits, they ask? Over the course of time, leaders are elected on the premise that they will finally bring home the benefits.
I would like to refer to the Report of the Aboriginal Justice Inquiry of Manitoba, which concluded that the Northern Flood Agreement was a modern-day treaty and had clear treaty rights. I would like to refer to the testimony that Warren Allmand gave to the Standing Committee on Aboriginal Affairs and Northern Development in March of 1988. As the minister responsible for Indian Affairs who negotiated the Northern Flood Agreement on behalf of Canada, he said that it was understood that the Northern Flood Agreement was a treaty and that its benefits, its provisions and the liabilities that the government had would be ongoing. I would like to refer to his testimony.
Seven, you work with this new leadership. Sometimes it is not new leadership; sometimes it is the old leadership who change because they want to be re-elected. You work with the First Nations leadership by pretending to negotiate the implementation of the agreement. However, all the while, you offer them only the prospect of money, only if the original agreement is in place by a buy-out, a termination agreement, something that cuts off liabilities. In other words, the message is, "Cash today. No more worries tomorrow. No more liabilities or benefits or obligations." It was a misrepresentation campaign that continued right there.
Eighth, you advance the First Nation money and a few other perks on the condition that that money will be part of a final settlement package. This is early in the so-called negotiation process. However, once this money is advanced and quickly spent, the First Nation leadership will be locked into the completion of the buy-out process. The end result is known right from the start. That is how First Nations leaders are used today by the Department of Indian Affairs and Northern Development and the Government of Canada.
Ninth, you make the First Nation leadership feel good about who they are and you take good care of them. You can even wine and dine them. They do not know it, but they have just become the government's new Indian agents. From this point, your new Indian agents will complete the majority of the remaining work.
Tenth, watch as this leadership provides only one side of the story. They even finance this misrepresentation and this propaganda process. You ignore complaints by community dissidents when they write letters and they call you and they say that they cannot access local media or speak their minds or they are punished. They lose their jobs and are intimidated. You respond by saying, "Well, this is self-government." Never has there been integrity of self-government from the Government of Canada. Only in these instances do you speak so highly of self-government. We are told that we should run for chief. Why? So we can be your chief in council? So we can work for the Government of Canada?
Eleventh, through cash advances and other direct and indirect measures, you tighten up the resolve of the new Indian agents in order to deal with the growing community concerns about the process. You recognize that since this agreement has constitutional protection it needs the informed consent of the membership of the people of the nation. It cannot be a decision of the chief and the council to sign away the Northern Flood Agreement. You recognize that the committee will need to vote yes in a formal referendum in order to manoeuvre legally around the agreement's constitutional protection.
Twelfth, you actively encourage the First Nation leadership to offer individual $1,000 per capita payouts on every man, woman and child on the condition that the outcome of the vote is positive. With 60 per cent, 70 per cent, 80 per cent unemployment and a huge dependence on social assistance, I think the intention is quite clear. It is the Department of Indian Affairs and Northern Development that I am speaking about. It is the Government of Canada.
Thirteenth, support the leadership as much as possible in the referendum process in order to garner the desired results. Hold a subsequent referendum if the results of that first referendum come up short. In fact, change the rules. Make it easier the second time, less than two months after the first time. You make it easier for the outcome of the vote to be yes. You take away any kind of special or important thresholds that were felt important to have in the beginning to ensure that the decision was clear. You then lower the bar on it so that you can get your desired result, less than two months after the first referendum result fails to achieve the required terms. That is what the Department of Indian Affairs and Northern Development did. They administered this process. While all this was happening with the referendum process, the federal government was before the Supreme Court of Canada arguing the case of Quebec's secession and saying that a referendum is not a formal mechanism for constitutional change. You talked about the wrongdoing of subsequent referenda. You talked about the importance of fairness to make sure that all the information is out to Quebecers, anglophones and francophones. Canada used strong-armed, firm principles. Canada was sucking and blowing with the Supreme Court of Canada. At the same time they were before the Supreme Court of Canada dealing with Quebec's secession, they were in Norway House. They were overseeing a second referendum and changing the rules to garner their results.
I wish to refer to the testimony of Peter Russell. I am guessing that everyone has heard of him. He also appeared before the Standing Senate Committee on Aboriginal Peoples in March of 1988. I would also refer to Mr. Jackson's letter to the officials at the Department of Indian Affairs and Northern Development. Mr. McKay has a copy of that and he can provide it to you. The destruction of a treaty and Canada's policy -- in this case the treaty is the Northern Flood Agreement and the First Nation people affected by it are the Norway House Cree Nation -- is no different than anything that has happened in the past and it is probably no different than the things that will happen in the future.
In conclusion, I wish to deal with the issue of the NFA as a treaty. Although reputable people have come forward from the legal profession and other areas and have said that the Northern Flood Agreement is clearly a treaty, the government pretends that it is not. No one comes forward and puts their reputation on the line and says that it is not, because they cannot do so. Throughout this entire process, including a few minutes with the Standing Committee on Aboriginal Affairs in March of 1988 and a few minutes with department officials from Indian Affairs some time ago, no one has wanted to address that issue and bring it out in the open. Yet you are being asked to pass this quickly and to not address the question of treaty rights. You are being asked to move this quickly because an election is being called on Sunday and this must go through to become law in Canada.
No one wants to talk about the issue of treaty, but that is why I am here. I want you to look at that. It has all been smoke and mirrors on the issue of treaty rights. I will leave you with a couple of thoughts and one recommendation. The first question is the following: What would Canada's position be in response if Lucien Bouchard controlled the media in Quebec so that anglophones could not speak in public and could not provide a different side of the story? What if he offered every Quebecer a sum of money, say, $1,000 per man, woman and child, providing a yes result was achieved? What would Canada's position be? How would the federal government respond? How would you respond, as senators?
Treaty rights are interesting. They are sometimes viewed as just aboriginal problems and aboriginal issues. One thing that is forgotten and sometimes not even recognized is that all Canadians have Treaty 5 rights. Everyone in your room has Treaty 5 rights. You have the right to come to live in northern Manitoba, buy a house, work in a job and call that your own. That is the flip side of the signing of that treaty. You do not have First Nation treaty rights, but you have your own treaty rights stemming from that treaty. You also have treaty rights from the Northern Flood Agreement. You have the great benefit of hydroelectricity if you want to come to Winnipeg and enjoy cheap electricity. Those are your treaty rights from the Northern Flood Agreement. I do not think Canadians recognize that they have treaty rights.
My question to you as Senate committee members is the following: Why do Canadians have their treaty rights implemented lock, stock and barrel, and why do First Nations have to fight every day to protect their rights? If you do not have treaty rights from these treaties, then I am afraid to say that you are living on stolen land, because that is the benefit that you have from the treaties.
Last, I would like to provide a recommendation. I am not here just to blow fire and get angry. I think I understand what you as a committee have the authority to do. I believe that you can send the bill back to the House of Commons for more work. My recommendation is that you send Bill C-14 back to the House of Commons. There are two reasons.
First, split the bill into two parts; let's make two bills out of the two parts. Part 1 is what I am speaking of. Part 2 is a different matter, and I have no problems with it. However, the two parts have been put together so that we fight amongst ourselves. We have many people who want Part 2 to pass because they have no problem with it. Let us separate the two parts; they really are separate issues.
Second, include a treaty protection clause right in the bill. The buyout agreement has a very weak non-derogation clause in protection of treaty rights. It says that nothing in this buyout agreement is intended to alter or affect aboriginal or treaty rights. It says "intended" -- we did not intend to, but we did. That is not good enough for me and it is not good enough for any fair-minded individual. Why not just say that we will not impact aboriginal treaty rights? Let us make it very clear for people. That is a very reasonable request. I ask you to send Bill C-14 back to have a strong non-derogation clause on the issue of treaty put into Part 1. A draft amendment drawn up by a member from the Bloc was before the House standing committee. It was motioned, but it was defeated. This is a simple, reasonable request. Let us deal with the issue of treaty; let us actually look at that. The issue of treaty rights is important, not just for us but for you as well, because you have treaty rights.
The Chairman:Mr. McKay, would you like to say a few words?
Mr. Leonard McKay, Band Member, Norway House Cree Nation: I will try to be brief. Thank you for this opportunity. I was also at the committee hearings in Ottawa in 1998.
I wish to touch on three items: referendum, environment and occurrences. I will begin with environment. There was no post-impact study done prior to the MIA, the master implementation agreement. In the MIA, and what was finally agreed to, the geodetic datum changed from 1977 to 1970. The consequence of that change within the MIA was to allow one additional foot above and beyond the NFA requirement agreed to in 1977. The impact of one foot of water in a lake that is 300 miles long would be tremendous in terms of additional water that hydro could use. No impact study was done on what that change would cost. That is crucial, because the issue of the environment was never addressed -- with Norway House or with the parties. We never saw them in Norway House. I believe that it is crucial to look at that issue; it will have profound ramifications.
At cottages along Lake Winnipeg, high water has destroyed property. We live at the tail end of the basin that blocks the water and releases it for hydro purposes, and thus it has a major impact. The environment is the main concern because the geodetic datum was changed and the consequence was one additional foot of water in Lake Winnipeg, above and beyond what was agreed to in the NFA.
Regarding referendum, I will refer to the things that happened with Indian Affairs. I maintain the position that Indian Affairs was in a conflict of interest, and the reason for that is threefold. First, DIAND was at the negotiating table; they were the people from the Manitoba region who were involved. Second, DIAND was running the referendum. Because the first referendum failed, Sandy Jackson wrote to the senior negotiator, indicating that it was possible to get a second referendum provided the council agreed and the other parties did not object. Ms Jackson is a senior negotiator who is supposed to represent our interests. Third, if any appeals were to be done, they had to go through Indian Affairs. The person who responded to me was John Sinclair, the assistant deputy minister responsible for claims and Indian government. Those people were running the referendum, they were at the negotiating table, and they were the people I had to appeal to when I did not like the outcome of the second referendum because the rules were changed.
It is important. I sent my appeal on September 26, 1997. The response letter was dated November 18. I did not get it in the mail until approximately November 25.
I raise those points because they are crucial. The matter was before the court from September to November. The council wanted to make matters visible. It was planning to organize 10 busloads of people to go to the Federal Court to protest if the federal judge was taking too much time.
On November 20, two days after the letter I got was mailed, monies were committed by Canada for the per capita payout on December 15 and 16. The same people who were supposed to represent my interests and my children's interests advanced money. At the same time, on December 17, John Sinclair met with the chief and some of the assistant deputy ministers, people in high places in Ottawa, regarding the MIA. That was the man I had just appealed to.
There was no Cree ballot that we saw that was posted. There was none. It might have been there, but we did not see it because it was not posted anywhere. That is in regard to the first and second referenda. As a matter of fact, there was no Cree ballot for the second referendum, although it was shorter. When the people were asked if they wanted a second referendum, they were asked if they wanted their money. That is why many people signed the petition to hold the second referendum: they wanted their $1,000 and their $1,500. It was close to Christmas. The only time I was able to access the Cree ballot was through Access to Information. All they had was a summary of the ballot, not the actual translation of the long ballot.
The guidebooks that were given on June 6, 1997, state that our treaty rights will not be altered in the MIA. The main document of the MIA, a big thick document, contains a little clause saying that it is not intended to affect treaty rights. The people were left with the impression that their rights would not be affected, because the guidebook, which was paid for by the Government of Canada, stated that. Their signatures are on that book.
The Government of Canada stated in no uncertain terms that it would arbitrate that thing to death if they did not get the desired result. During the second referendum, the doors were closed twice. Nobody was allowed to go in. Some people had to wait half an hour. Would that be permitted in any referendum conducted by Lucien Bouchard? That is what happened in this case. People could not go to the ballot. At the same time, a large number of them said that the ballots that they put in the ballot box were numbered and their number matched their name on that ballot. Monies in the amount of $1,000 or $1,500 for seniors aged 55 and over were promised at the date of signing if the agreement was ratified.
There is also a strange twist. Once the document was signed, and people wanted their per capita payment in December of 1997, people who had been on the court challenge were told that they would not receive their money unless they signed an affidavit that had been prepared by Harvey Secter, who was supposed to be an independent legal advisor regarding the MIA. In order to access their money, which was owed to them from the start, the people were forced to sign an affidavit stating that they did not know what was going on.
Another strange twist is that when the referendum failed and it was reported that there were problems with the voters list, the band did not appeal that decision. Instead, new rules were added on. The band had the choice to appeal but did not want to, and it would also look ridiculous if DIAND appealed to itself. Instead of going through the formal process of appealing, the department changed the rules in order to hold a second referendum.
Finally, from 1981 to 1984, a few things happened. I received this document through Access to Information. The James Bay Agreement was as ambiguous as the Northern Flood Agreement. However, because the James Bay representatives went to the standing committee meetings in regard to the non-compliance of their agreement, the committee took the extraordinary step of writing to the Minister of Indian Affairs to ask him to fulfil and implement the agreement. The government was embarrassed. It did not want a reoccurrence of the James Bay situation, so it strung out what was supposed to have happened with the agreement. The government delayed the agreement and used arbitration to the fullest extent to deny benefits.
In some cases, the federal government, as part of its strategy, wanted to buy out the arbitrator for the $25 million that it was prepared to offer the bands. That was simply because it impacts on the financial and policy-making decisions of ministers and Parliament. That is why the government wanted to get rid of that arbitrator. The government is supposed to be our trustee and has contractual and statutory obligations. It was that very department, DIAND, that was doing all of this. All the department wanted was to conclude the settlement. It did not want to leave anything behind.
They talked about having exclusive constitutional authority regarding our Cree rights and interests. They had exclusive constitutional authority. You cannot tell me that they did not address that issue regarding the treaty during negotiations; it would be most strange. Even more strange is that there are no minutes regarding the negotiations as they transpired. I tried to access that information from Hydro, from the Government of Manitoba, from the Government of Canada. You tell me whether it makes sense that one would sit at a table on a major document like the Northern Flood Agreement and the MIA and not take any minutes.
How did they arrive at those settlements? How did they arrive at those figures?
My recommendation is the same as Mr. Hart's: Split the bill in two. We put in an amendment to clause 6 and it was voted out during the Commons review a month or two ago when Bill C-14 was passed in the House. The Bloc introduced it and it was voted out by the government.
The Chairman: Senator Watt is from northern Quebec.
Senator Watt: I have lived through the James Bay and Northern Quebec Agreements, the ones you referred to. I have also lived through an experience similar to what you are experiencing now, in terms of upgrading and trying to have the government live up to its obligations, a process that can be very difficult.
I have many questions but I will limit them to the issue you raised. You are wondering if there is a safety mechanism to protect your inherent rights. The fact is that your rights are entrenched in the Constitution under section 35, but you feel that you need to have much more than what exists now. Section 35 and related matters, section 25, the non-derogation clause, I believe quite adequately protect you, but are you talking about a certainty? Are you implying that you want a definite protection, even though you already have protection in the Constitution? Could you be a little more explicit in terms of the type of wording that you might be prepared to put forward, if there is any? I do believe you have that in the text.
Mr. Hart: You would like me to clarify the need for a non-derogation clause in this bill itself?
Senator Watt: Yes.
Mr. Hart: You mentioned that the Constitution, section 35, exists as it is, and people might think that there is a blanket assurance that treaty rights and aboriginal rights are protected regardless. Yes and no: that is kind of how it works and how it does not work.
You can actually sell your treaty rights. A First Nation can compromise and sell its treaty rights, providing that the people of the nation are informed and consent to it. It is like anything else. You cannot stop someone from wanting to sell his or her treaty rights. The issue is informed consent. That is the important issue legally, that you have informed consent in selling your treaty rights. That is a very important point. You can sell your treaty rights for a bowl of soup, if that is what you choose to do. It is a matter of informed consent: Were you aware of what you were doing?
My point is that this whole thing has been misrepresented from day one by the Government of Canada. We are not talking about treaty rights, the government says. We will not even deal with treaty rights. This new agreement has lots of cash. You see lots of dollar signs. We will call it the implementation of the Northern Flood Agreement, but in fact what it does is end it. It is like a purchase agreement today. I tell you that people in Norway House would not sell their treaty rights, which were given in the master implementation agreement, if they knew that that is what is at stake.
The replacement agreement had this very loosey-goosey non-derogation clause reading that nothing in this agreement is intended to alter or affect aboriginal treaty rights. That is not good enough and I do not think anyone would disagree with me. That is just not good enough.
There is no protection anywhere. It looks like we, through our informed consent, sold our treaty rights. All we ask, as a reasonable request, is that this bill affirm in a more solid manner that there is protection of aboriginal treaty rights. That is reasonable.
We can produce a copy of the amendment that was provided to the House of Commons.
Senator Watt: I believe we have a copy of the same one that you have. I am looking at it now. I did not have that earlier.
The Chairman: We have a copy. I would like to thank you both very much for appearing before us and for suffering through the technical difficulties we had this morning.
Mr. Hart: Are there any other questions?
The Chairman: There are no other questions.
Mr. Hart: Does anybody want to try to answer my questions?
The Chairman: We will put the questions to the department officials when we meet with them. It is now 5:30 p.m. and we have other presenters. Thank you both.
Mr. Fred Muskego, Councillor, Norway House Cree Nation's Band Council: Thank you, honourable senators, for this opportunity to make my presentation as a councillor for Norway House Cree Nation and as a member of the board of directors for the Treaty Land Entitlement Committee. We represent 19 communities on that board. I was elected six months ago to my position.
Honourable senators, I will not take up too much of your time because I am not here to pinpoint what is wrong or to criticize this agreement. We have sent, by a quorum of council, a letter, which I hope you have received. It is dated today. The letter is in support of Bill C-14 and it is from the chief and council. Did you receive a copy?
The Chairman: Yes, we have those letters here. We have a letter dated October 3, 2000, from the Treaty Land Entitlement Committee, and we have one from the Norway House Commission, chief and council.
Mr. Muskego: I will present a brief history on the Northern Flood Agreement and how I was involved. My portfolio was as councillor, and prior to being elected I was an implementation worker for the Northern Flood Agreement. My friend here, Leonard McKay, said that when this agreement was signed it had good intentions. He also said, however, that it is an ambiguous agreement. Mr. McKay and I finally agreed on that point.
I worked on the Northern Flood Agreement on and off for about five years. I saw the process of the structure and how this claim process worked. In those five and a half years I saw little, if any, benefits come back to the membership of the five communities. This agreement, in my view, benefited lawyers and consultants.
I worked directly with the Northern Flood Agreement. I knew exactly how much was spent on lawyers and consultants. I believe it was approximately $3 million a year. That is a great deal of money. When the MIA process came and when we started the implementation agreement, I saw a change in the content of the agreement -- to the process, to the accountability. All of those elements were built in. We thought that we had protected our treaty rights to the best of our ability, and I still believe we have done that.
Our membership is involved in deciding how this money is spent. As you probably know, our money is held in trust. Any money that we have that comes from interest and through investments amounts to approximately $3 million. That is why I wish to point out the difference between the NFA and the MIA.
We receive approximately $3 million a year on funds available from our trust. The people who are benefiting are the Norway House Cree Nation members -- not all, but a majority. We are benefiting socially, through programs. We have benefited culturally. We have our annual international york boat race event, which is the only event of its kind. We also fund a powwow. We have done that for the last couple of years.
Also, in the way of infrastructure, we have built a new church. We are leaving our historical church on the site where it is now, but our new church is right beside the old one. We make pastoral donations to our four denominations. They have difficulty accomplishing their goals without money. Last year each denomination got $20,000, I believe, and that helps.
In the MIA process, it is not the lawyers and consultants who are getting the $3 million, it is the people; and the people decide how the money is spent through a CAP or community approval process. We do that every fall. We are due for such a process in the next three weeks. That is the biggest change that I have seen up to this point. That is why I totally support the passing of this bill.
I will go into a little history on per capita payments. Everyone seems to be hung up on this per capita payment, that it was intended to buy people's votes. I was on council at the time, back in 1998. I know Chief Ross was mentioned here. At one time we were negotiating what was called a global settlement. We had some advance dollars, in good faith, from the federal government. At the time, $3.3 million was given as an advance, with no strings attached.
We, as a quorum of councillors, were not involved then. It was more or less a one-man show run by the chief. We did not know about that $3 million. A band meeting was called to discuss the matter of the money -- at the time, we knew only about $1 million -- and how it would be spent. We were planning some housing development. We had plans to improve the quality of life in Norway House. There were quite a few people at that meeting. I think there were over 150 people, and that is good attendance for a band meeting in any community.
When the matter of the $3.3 million came up, we asked people if they wanted to build houses. They were enthusiastic about that, but then Chief Ross wanted to get the credit. To make a long story short, he became angry and left the meeting. Then he told people that it was their money, they could do with it as they pleased. He left us, as a council, to make a response for his comment.
It is only human nature to want to be given money, when someone talks about an amount of money such as $3.3 million and says that it is yours to do with as you please. As the previous witnesses mentioned, our unemployment was at 80 per cent or 85 per cent at the time. We were pressured into doing this. To cover our end, we wanted 50 per cent plus one to sign a petition saying that they want the money. We did not want 100 people telling us how they wanted to spend their money. In six hours they got the 50 per cent plus one in order to get the authority from the people -- the membership we represented -- on how they wanted the money spent. We followed up with a BCR.
You can see that a procedure was put in place by the leadership of that day. Per capita payments have been ongoing through negotiations. People who point fingers and tell us that we, as the government of the day -- this is my second term -- used this as a tool to get a yes vote should do their homework a bit better. I can see by their presentation that they are good at doing research.
There are no more per capita payments out of the MIA. That was explained to the people, and they understood that this was the final per capita payment. We were looking to the best interests of our children and the future of Norway House. We did not want people asking each year for the interest from the investments rather than making improvements in community infrastructure. We have some pictures of Norway House 10 years ago, and today you will see a vast improvement since then. All of the improvement is not attributable to MIA, but it helped.
In response to the referendum issue, in the first referendum some benchmarks were set. We were a big band at that time with 5,500 members. There was a requirement that we meet with people who lived off the reserve to inform them of their right to vote. Our people are scattered from B.C. to the East Coast. We know that because of our funding of education. About 500 people live in Winnipeg alone. I am not making excuses. I am simply explaining that the threshold that we were required to meet on the first referendum is more difficult for bigger bands than it is for smaller bands.
It was a requirement that a majority of the people from outside the reserve had to be opposed to it, and we could not meet that threshold. We did not want to go back to Indian Affairs and ask to appeal it, so we left it. Then suddenly we had a petition. I refer back to the other petition dealing with the per capita issue. We were respecting the wishes of the people of Norway House. We had a petition signed by 50 per cent plus one of the members of the Norway House Cree Nation asking for a second vote. We followed the wishes of the people. After that, 76 per cent of the people approved the MIA.
I will move on to TLE, treaty land entitlement, as I think I have said enough about the MIA. Over the last two or three years, we have seen the benefits of the MIA. By no means will it eradicate mass poverty, but if it puts a big dent in it, the MIA will have been beneficial in helping Norway House to achieve its economic and social goals to make life a little easier for Norway House.
As I said, I am not here to point fingers. Without the MIA, Norway House has achieved many benefits economically, and I think that that is due to the strong leadership and sound management that we have in Norway House. We inherited a debt reduction plan eight years prior, and we have cleaned that out as of this year. We had a surplus of $500,000 this year, and that is due to sound management. Also, when people trust and support the leadership, positive things happen to the benefit of the people we represent.
I strongly urge that there be no more delays in the passage of this legislation, because this also impacts our treaty issues. If we have a positive response on this bill, justice will be done for Norway House.
The Chairman: Thank you very much, Mr. Muskego. That sheds a lot of light on your position of support for this bill. I am sure it will help us in our deliberations.
Senator Andreychuk: Thank you for explaining your position to us. In the first vote that you held, who set out what the thresholds would be? Was that done under the constitution of the Norway House Cree Nation or was that imposed by the Indian Act or the department?
Mr. Muskego: It was a combination of the Indian Act and the department.
Senator Andreychuk: That was for the first vote?
Mr. Muskego: Yes.
Senator Andreychuk: Under what rules was the second vote held? It seems to me that if there is a formula in your constitution and in the Indian Act you should follow the formula. How did the formula change?
Mr. Muskego: If we had followed the formula, we would not have met the threshold anyway. Going by memory, we were off by three or five votes. In the first election, we were off by five votes. If we had used the same numbers on the second vote, the threshold would have been more than met. However, the requirement under the Indian Act is 50 per cent plus one of the membership.
I will give you an example of how we have carried out referendums or voting procedures in band meetings. I was on council at the time that we were under an alternate funding arrangement so I am privy to some information from that time. The funding was approximately $20 million per year for a band of this nature. The chief called a band meeting at which 37 people represented the Norway House Cree Nation. The requirement for the vote to pass was 50 per cent plus one. That is what we wanted in the MIA to begin with, but it was not followed. On the second referendum the chief said that since that was what our people wanted, we would use the traditional 50 per cent plus one.
As I was saying about the AFA meeting, there were 37 people there. Of those 37 people, I think 22 were in favour of going with the AFA for a five-year agreement. People keep saying that it was not done properly, but that is what the leadership traditionally used. Mr. McKay was involved in that process as well.
Senator Andreychuk: I am still confused. Did you settle on a formula with the department and your own people the first time around? If so, did everyone agree to the formula? What I heard from the other witnesses troubled me. I heard that a formula was set and a vote was taken. You did not get a yes vote so you changed the formula. Is that the case?
Mr. Muskego: Yes, that is what happened, but I am saying that it has traditionally always been 50 per cent plus one.
Senator Andreychuk: What was the first vote based on if not 50 per cent plus one? What would have resulted in a yes vote on the first round if not 50 per cent plus one?
Mr. Muskego: Going from memory, the first vote that we had was about 75 per cent in favour, but there was a catch. The people outside the Norway House reserve, those who were not living there, had to be in favour by a certain percentage. That is the criteria that we did not meet. It was off by five. Do not quote me on the numbers, but it was very, very low.
Senator Andreychuk: Did the vote change very much from the first to the second in numbers of the off-reserve and the on-reserve?
Mr. Muskego: No, it was basically the same. More on-reserve voted, but the percentage was still the same. It was 76 per cent in favour of the implementation agreement.
Senator Andreychuk: What have you done to meet with those people who are dissatisfied? Have you met with them to try to find some common ground?
Mr. Muskego: We tried. Even prior to the referendum, we asked Mr. McKay, who was involved in some of our meetings, to be involved to ensure that this MIA agreement was satisfactory to everyone. We were trying to please everyone. When he said that he was not involved, that is not entirely true, because I asked him in a public meeting if he had concerns to come to the table with them, and he did not show. It is not that we did not try, but politics being the way they are, that is what happened. It is not an issue of what is right or wrong; it is a local political issue.
Senator Andreychuk: There was also some discussion, certainly in the House of Commons originally, that the phraseology in the MIA does not protect the treaty rights to the extent that some people had wanted. The words are "nothing is intended to alter," whereas most other agreements say "nothing can alter" the treaty rights. Are you concerned about that?
Mr. Muskego: No. I was part of that negotiating team, and I have no problem with it.
Senator Andreychuk: Do you feel that your treaty rights are being protected?
Mr. Muskego: Yes.
Senator Andreychuk: Did you ever question why the wording is so different in your MIA from most agreements in Canada?
Mr. Muskego: We questioned the intent, and I am not totally sure what the intent was, but they told us it would protect our treaty rights.
Senator Andreychuk: Was that your council, or was that government?
Mr. Muskego: It was the government, yes, with the negotiating team that was there.
Senator Andreychuk: Did you have your own counsel?
Mr. Muskego: Yes. Mr. Robert Roddick was our counsel, along with Harvey Secter, who was mentioned earlier.
The Chairman: Thank you for your presentation. It has been enlightening.
If everyone is satisfied, we can go through this shortly. If not, we will have to set another meeting.
Senator Andreychuk: My concern is that the agreement does veer off the normal language. It would be interesting if the department people would explain to us why.
Senator Watt: Why is it so different from the others?
The Chairman: I look at it this way. Norway House has approved this. The Manitoba government has approved this. Hydro has approved this. Parliament has approved this. It has gone through extensive hearings for five and a half years.
Senator Andreychuk: I should like to correct you. We are part of Parliament, and we have a fiduciary responsibility for aboriginals.
The Chairman: You do not have to correct me, senator. I realize that. I meant the other house.
Senator Andreychuk: We have not approved it yet, and it concerns me.
The Chairman: We have time to go through it clause by clause. If not, we have to meet again. Do you feel we have enough information to go through it clause by clause?
Senator Johnson: I feel we do.
Senator Christensen: I agree.
Senator Watt: Even if we go to clause-by-clause consideration on this piece of legislation, for our own personal satisfaction, I should like to know why.
The Chairman: Why what?
Senator Watt: Why the wording regarding non-derogation is so different from other pieces of legislation that we have handled. It would not hurt to get an explanation from the department. Perhaps that can be given now. Every now and then we have run across this when dealing with other pieces of legislation.
The Chairman: The officials are coming. They are on their way here. You can have a juice or a coffee for a few minutes, and then you can question them.
Senator Watt: Even if we go through it clause by clause, we should satisfy ourselves and get that answer from the department. I am not saying that I would hold you up.
Senator Pearson: Obviously, getting it out of this committee is not finishing with it. We have the opportunity to have our chair build into her final speech the answer that you want before we actually get to the vote back in the chamber.
The Chairman: Yes.
Senator Cochrane: We also need confirmation, and they probably have it with them, ensuring compliance with the Charter, as you asked this morning.
The Chairman: We have that response here in writing. It was given to me when I arrived at the committee.
Senator Cochrane: So that is taken care of.
The Chairman: Yes, it is.
Senator Pearson: While we are waiting, I should like to ask Senator Andreychuk a question. When this language turned up, it sounded familiar to me and I thought I had heard it in a number of other bills.
Senator Andreychuk: It says "intended to." Matthew Coon Come and the lawyers testified that using the words "intended to" is not the same as saying "you are bound by." In court, your intention is not important. It is what you bound yourself to do, not what you intended. The courts would not give any weight to that. Therefore, there is some ambiguity as to whether in fact the derogation clause is a full derogation clause, and it is strange that they would do that. Why would they use those words? It is weakened.
Senator Pearson: I could have sworn I saw this in several other pieces of legislation. It did not arise for me as an issue.
Senator Andreychuk: The rest of it is exactly the same.
Senator Watt: That wording was never used before.
Senator Johnson: I suggest that we listen to the officials briefly on this question and then move on to clause-by-clause consideration.
Senator Watt: There is another issue which is perhaps more a matter of administration than anything else. The text itself talks about "ratification." When they made oral presentations to us, they talked about "referendum."
The Chairman: They were talking about the referendum that was held on the reserve.
Senator Watt: I was going through the text, and when they talk about referendum, they are actually talking about ratification, not referendum.
The Chairman: It was the language.
Senator Watt: The meaning is very different.
Senator Johnson: They were calling the ratification process a referendum.
Senator Watt: A referendum is a consultative process.
The Chairman: When we talk about referendum and ratification, it is interesting to note that the Cree of northern Alberta consider a referendum to be a count and a vote. They do not understand ratification. When people come in to vote, they call that a referendum. That is what I understood them to be.
Senator Gill: This is new stuff for most aboriginal people.
Senator Watt: When we were negotiating the James Bay agreement, I remember negotiating such wording with the minister.
The Chairman: The researcher explains that the ratification process for the master implementation agreement is actually in Article 14 of the master implementation agreement. It goes through the referendum process. Referenda are part of the MIA itself.
Senator Andreychuk: Does the MIA set out the formula?
The Chairman: It does.
Senator Andreychuk: How did it change, then?
The Chairman: To tell you the truth, there is interpretation and then there is interpretation at the band council level. I think that one group said it changed, and the other group said it did not. She was asked what she meant by "formula"? They do not want to say that they do not understand what formula is. Their first language is Cree or Saulteaux, which makes a big difference there.
Senator Gill: This is not a comprehensive claims agreement.
The Chairman: No, it is not.
Senator Gill: It is very different from what took place before.
Senator Watt: I am aware of that.
The Chairman: Before the departmental officials arrive, Senator Christensen has presented me with a petition to the Honourable William Jefferson Clinton, President of the United States of America. It says:
Sir, we the undersigned respectfully request that you declare the coastal plain of the Arctic National Wildlife Refuge a national monument, in recognition of its vital role as a nursery and sanctuary for the Porcupine Caribou Herd and numerous other wildlife, bird and fish species, which need this special place to raise their future generations and bring joy to ours.
Senator Christensen: The Old Crow First Nations have been circulating these petitions, and they would like us to write a letter, based on that information, to the President before he leaves office.
Senator Pearson: Legally, the answer is no.
Senator Andreychuk: We cannot write a letter as a committee, but we could sign it individually. I would suggest you do something I do with international things all the time. I send a petition around to all the senators' offices, and the ones who wish to sign do so individually. So instead of, "We the committee," it becomes, "We the undersigned." Then we are free to do as we wish.
Senator Pearson: Committees cannot do that.
Ms Joseph: Legally, you can do it under the parks order of reference, because it relates to environmental concerns regarding parks.
Senator Andreychuk: However, I do not think we can sign a petition.
Ms Joseph: No, they want a letter.
Senator Pearson: I would consult with Mr. O'Brien before you do that. We cannot interfere in the affairs of another country.
Senator Andreychuk: We could comment in our report on how another country's activity affects us and make recommendations as a result, but I think you are right -- we cannot petition another government, by custom. We should perhaps get some legal advice from Gary O'Brien.
The Chairman: We can now return to Bill C-14. Our witnesses have arrived. Welcome back. Two of our senators have questions.
Senator Andreychuk: Two issues came up that presented some difficulty. One is with respect to the vote for ratification. We were told by some witnesses that the formula for the vote to legitimize this was agreed between the federal government and the Norway House Cree Nation and that it followed the provisions of the Indian Act, et cetera. Is that a correct assessment of how you determined the right constituency for the vote? They also said there were three conditions, and when they did not meet the threshold, they renegotiated the formula to accomplish a positive outcome, which they did on the second vote.
My second question has to do with the peculiar wording in the master agreement about derogation, where it states that nothing in this agreement is "intended" to abrogate any of the treaty rights, whereas most agreements simply say "nothing abrogates treaty rights," or words to that effect. Why was the word "intended" used?
Ms Sandy Jackson, Acting Manager, Claims Unit, Intergovernmental Affairs/Operations Policy, Manitoba Region, Indian and Northern Affairs Canada: Yes, we did have two ratification votes on the Norway House implementation agreement. I would point out that we do not have any legislative base for ratification of agreements of this nature. The ratification process set out in the implementation agreement was a negotiated agreement on how we were going to secure ratification by the community. There were three criteria set out for ratification in the first process.
Senator Andreychuk: Yes, they are set out in our tabs.
Ms Jackson: The question is why?
Senator Andreychuk: It seemed to me that you are bound by the Constitution, or convention or negotiation, to say what will be a fair and adequate process for ratification.
The Chairman: Senator Andreychuk, perhaps the witness can finish her statement and then you can ask questions.
Senator Andreychuk: I thought she had. I am sorry, please continue.
Ms Jackson: The process was negotiated and set out. You have the criteria.
It is set out under tab 4 of your briefing book. The decision to have a second ratification vote was made collectively among the four parties to the agreement, namely, Norway House, the Department of Indian Affairs and Northern Development on behalf of Canada, Manitoba Hydro, and Manitoba. We agreed to a second vote because of the degree of support that was secured in the first round of balloting.
A large majority of people in the community were in support of the agreement but they were about five votes short of ratification. In the initial vote, there was a requirement for the total membership to vote and then a requirement for a majority of on-reserve members to vote in favour. The major impact will be on the majority of on-reserve members in the community. That was why that was included.
The second round required a simple majority, as opposed to this double majority that was initially set up. The second round of balloting was based on a simple majority. The rationale behind that was that the first vote showed there was a large number of supporters of this agreement. We wanted to test that to make sure that the support was actually there. We met all thresholds in the initial round, but we did not need them because of the way the criteria were set out. The community expressed an overwhelming degree of support for the agreement.
For a community the size of Norway House, quite a number of ratification votes were being held. For them to get the turnout that they did to ratify this agreement was an achievement on the part of the community. They supported it because they knew that if they wanted this deal, they had to come out and vote, particularly since they did not get it on the first ballot. They really came out there to support this deal.
Senator Andreychuk: The question was, though, did you feel the first vote was fair and the rules were adequate? If so, is changing the rules something that has been done elsewhere?
Ms Jackson: This was a negotiated process. Whether or not we changed the criteria, the numbers that came out and voted in support of the agreement exceeded the criteria that we had established for the second vote. The support in the community is very strong.
Was it fair? We thought it was fair when we made the decision to go ahead with the second vote. We considered it to be fair because we already knew there was a large number of members in support of it, and a second vote was held to confirm that.
Senator Andreychuk: I have not done the calculations, but when the people came out for the second vote, did they exceed the criteria for the first vote?
Ms Jackson: They met it and exceeded it.
Mr. Austin: It was 76 per cent, actually.
Senator Andreychuk: I do not mean that they met the criteria of the second vote, but that the second vote met the requirements of the first.
Ms Jackson: They met the criteria set out for the first vote. It was met by the second ballot.
Senator Watt: Was there a low turnout for the first one?
Ms Jackson: No. Actually, there was quite a high turnout.
Mr. Austin: I think the votes were 65.9 and 65.2.
Ms Jackson: A large number of people voted. They had to, because the threshold for the vote was 50 per cent plus 1. The population is 5,000 and at least three-quarters of them are voting members. That is a large number of people to show an interest and come out to vote.
Senator Pearson: That was 50 per cent plus one of eligible voters, or 50 per cent plus one of people who voted?
Ms Jackson: Of eligible voters.
Senator Pearson: That is quite different.
Senator Sibbeston: What failed in the first round? What happened so that the criteria were not met in the first round?
Ms Jackson: There was the 50 per cent plus one on the total of on- and off-reserve members, but there was also a criterion for 50 per cent plus one of the electors in the community, which are the on-reserve members. They were five votes short of the 50 per cent plus one for the on-reserve members.
Senator Christensen: The overall vote met the criteria, though?
Ms Jackson: For the overall vote, 69 per cent were in favour.
Senator Andreychuk: That represented 49.79 per cent of the on-reserve members. It was tallied overall to about 60 per cent.
Senator Sibbeston: It was people off reserve who voted more overwhelmingly in support, then.
Ms Jackson: It is difficult to say because of the numbers. There are more people living on reserve than off reserve.
Senator Sibbeston: Could you identify the vote from those off the reserve and those on the reserve?
Ms Jackson: No, because you cannot tell who is from off reserve and who is from on reserve.
Senator Christensen: There were two ballots, then. There was the overall ballot and then one for on-reserve members.
Ms Jackson: No.
Senator Christensen: How did they identify who was on reserve and who was off reserve?
Ms Jackson: You are right. They had two voters' lists; one for off reserve and one for on reserve.
Senator Christensen: They had two ballots?
Ms Jackson: They had two lists. It was the voters' list.
Senator Christensen: Once the ballots are put into the box you cannot tell.
Ms Jackson: No, you cannot tell.
Senator Christensen: As they came in, they were ticked off the list. They were five short of the number required. I see.
The Chairman: Is there anything else?
Senator Andreychuk: The answer to the second question?
Mr. Austin: As you know, that has to do with treaty rights, and in particular, the non-derogation clause. The treaty rights are protected under section 35 of the Constitution. Thus, you are right that both the master implementation agreement and the TLE agreement contain the derogation clause.
Furthermore, I should point out that Justice Muldoon of the Federal Court has ruled that the wording in the non-derogation clause in the master implementation agreement is sufficient to protect treaty rights. That is an independent legal opinion.
Senator Andreychuk: In this case?
Mr. Austin: Exactly this case.
Ms Jackson: It was exactly in relation to the non-derogation clause which appears in the Norway House agreement. We had that decision from the Federal Court.
Senator Andreychuk: Who went to the Supreme Court?
Ms Jackson: The delegation from Norway House that was opposed to the implementation agreement.
Some of the members of the first nation launched a court challenge. The Federal Court came down with a decision that the process used to ratify the implementation agreement was fair and democratic. The judge also looked at the non-derogation clause and came out with the opinion that it was sufficient to protect the treaty and aboriginal rights of the Norway House First Nation.
Senator Andreychuk: Do you have that decision?
Ms Jackson: I do not have a copy of the decision but I could provide one.
Senator Andreychuk: I would appreciate receiving a copy of that, not necessarily for this hearing, but it is important that we see it.
When was that decision rendered? Was it recently? There was much discussion of the need to amend this bill in the House of Commons from the NDP and the Bloc, I believe. Was the court decision before or after that?
Ms Jackson: The decision came down in November 1997.
Senator Andreychuk: Did it specifically deal with the word "intended"?
Ms Jackson: It dealt with the entire issue of the protection of treaty and aboriginal rights.
Mr. Austin: An independent judge made that decision.
Senator Watt: You must know why we worry here. If I were to interpret how that phrase might affect section 35, I would see it as watering things down to a certain extent, because the word "intended" is not an absolute.
Ms Jackson: No.
Senator Watt: You might say no, but I think if we put it to legal scholars across the board, it could be argued.
Senator Pearson: They have done that.
Mr. Austin: I do not quite know how to respond, senator, except to say, with respect, this question was raised in the Federal Court and a judge ruled on it.
Senator Watt: This does not correspond to the other pieces of legislation. It does not carry the same flavour because the word "intended" is used.
Mr. Austin: I believe we have used that wording in other agreements. I am not suggesting in all, but in some others. That is an opinion.
Senator Watt: That is the point.
Senator Sibbeston: One possible view of the effect of section 35 is that it is in the Constitution and protects treaty and aboriginal rights. Anything else is subservient to that protection. You can make an agreement without using those words and the Constitution would still protect treaty rights.
Mr. Austin: I think you are right, senator.
Senator Watt: Are you agreeing that this is a watering-down?
Mr. Austin: No.
Senator Andreychuk: That was not the position on the Nisga'a agreement. You can negotiate your rights and that will have some effect on section 35.
From a drafting point of view, it would be clearer to say that nothing in this agreement alters aboriginal treaty rights, and then we need not have this debate about what the word "intended" means. That is for future reference.
I presume the judge said in this decision that those words were superfluous. He does not expand on that. The ruling was just handed to me by the researcher, who is always one step ahead of all of us. The judgment is dated November 25. In paragraph 13.3, he says that the above provision satisfies the court -- the court meaning himself -- that section 35 will not be breached and that is sufficient in these circumstances.
So it is sufficient for Norway House, but why would the department get involved in the future in this kind of unease about section 35? Would it not have been clearer to state that nothing in the agreement alters rights, rather than stating an intent? We could then avoid these constructions of interpretation, et cetera. That is a suggestion for the future.
This is not an elaboration at all, but I presume neither party appealed?
Mr. Austin: There was an appeal but it was abandoned.
Senator Andreychuk: That is too bad; we could have had a definitive decision.
Mr. Austin: I think that is a definitive decision.
The Chairman: There being no other questions, I thank the witnesses for appearing.
We shall now proceed to clause-by-clause consideration of the bill. The committee can decide to proceed that way, or we can consider the bill as a whole.
Senator Pearson: I move that the committee adopt the title, all clauses, and the schedule of Bill C-14.
Senator Johnson: I second the motion.
The Chairman: Is there any discussion? All in favour?
Hon. Senators: Agreed.
The Chairman: Is it agreed that I report this bill -- with or without observations, as we wish -- at the next sitting of the Senate?
Hon. Senators: Agreed.
Senator Andreychuk: If it goes forward without observations, then I will certainly make my own observations on those two points.
The committee adjourned.