Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 2 - Evidence for the meeting of April 25, 2001
OTTAWA, Wednesday, April 25, 2001
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-25, an act to implement an agreement between the Mohawks of Kanesatake and Her Majesty in right of Canada respecting governance of certain lands by the Mohawks of Kanesatake and to amend an act in consequence, met this day at 5:17 p.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum.
I would like to welcome Mr. Robert Nault, Minister of Indian Affairs and Northern Development.
In all the years I have been involved with land claims, I have never before seen a bill like this. It is very interesting and unique. As Senator Christensen has said, it looks simple on the surface, but when you get into it, it is very complicated.
Mr. Nault, I wish to thank your staff for the excellent background information with which we were provided today. The floor is yours.
Hon. Robert Nault, Minister of Indian Affairs and Nor thern Development: Honourable senators, I always welcome the opportunity to come before your committee. I have another engagement right after six o'clock on issues vis-à-vis residential schools. I hope you will excuse me today. I will not stay for two or three hours like our last visit. That comment is just to let you know how much I enjoy spending time with honourable senators. I would spend a couple of hours if I could, but there are a few other issues waiting.
Members of my staff who are present with me are quite prepared to stay on after I leave. I do not want to keep the Minister of Finance, the Minister of Justice and others waiting. They are apparently attending there because they wish to talk with me. It is a nice change that someone wants to speak with the Minister of Indian Affairs about something. My staff members are willing to stay and take further questions, because I believe this is important. Even though it seems simple on the surface, there are some unique issues when we are dealing with the Kanesatake, and Mohawk people in general. I should like, with your concurrence, to make some opening comments and then stay as long as I can to participate in questions.
Honourable senators, I am here to address the Standing Senate Committee on Aboriginal Peoples as it begins its consideration of Bill S-24, the Kanesatake Interim Land Base Governance Act. Before I begin my remarks officially, I would like to thank Senators for allowing us to send a number of what I think are important pieces of proposed legislation to the Senate before they go to the House. Historically we have not done that, and I do not see why we have not, because it is a good process. I know, through having met most honourable senators here personally, we have some experienced people vis-à-vis Aboriginal issues in the Senate. Without being too derogatory about my own colleagues in the House, maybe things will go better if I send them here first. Perhaps that is a good trend to continue. We will test it for a while. We have other pieces of proposed legislation that will be coming your way in the next year that we may have some discussions about and consider, with the approval of the House leadership.
I am extremely pleased to be addressing this proposed legislation at this time and I welcome the opportunity to discuss it with honourable senators. As implementing legislation for an historic land governance agreement between Canada and the Mohawk of Kanesatake, Bill S-24 is a key element of a broader process aimed at resolving the outstanding grievances of the Mohawks of Kanesatake, and bringing peaceful coexistence and economic prosperity to the communities of Kanesatake and Oka in Quebec.
It was my great pleasure to witness the initialling of this land governance agreement with the grand chief of the Mohawks of the Kanesatake on June 21, 2000, which was the first National Aboriginal Day of the new century. I cannot think of a better occasion for such a ceremony, as the agreement itself marks a new beginning and the promise of a brighter future for the Mohawks of Kanesatake, and for the Kanesatake and Oka communities that have been deeply divided for some time now.
Honourable senators are aware that it has already been more than a decade since the Oka crisis. A great deal has been accomplished since that time. However, we can go no further in our efforts to resolve outstanding grievances of the Mohawks of Kanesatake without this agreement and its implementinglegislation.
I know that a number of the senators here were in the Senate or the House of Commons when the Oka crisis took place, and some senators were not. I was a member of the opposition, at a tender age at the time, and was on the Standing Committee on Aboriginal Affairs in the House of Commons that studied the crisis at Oka. Thus, I have a significant history myself on the issue, having reviewed that crisis and what went wrong. That is why it is important for me to tell you that I see this bill as really the beginning of a new relationship after an incident that we all regret took place.
It is time to recognize an interim land base for the Mohawks of Kanesatake and to establish law-making powers for them that other First Nations have exercised for years. We are attempting to demonstrate, in a tangible way, this government's commitment to address Aboriginal issues as set out in "Gathering Strength - Canada's Aboriginal Action Plan," and reiterated in the recent Speech from the Throne.
The agreement to be implemented by the proposed legislation was negotiated in good faith by Canada and the Mohawks of Kanesatake. It also has the support of non-Mohawk officials and residents in the Oka region, some of whom live side by side with Mohawk people.
Honourable senators, perhaps some history is called for to put this bill in its proper context. I have already noted that the land governance agreement has its origins in the Oka crisis of 1990. However, the roots of that crisis go back much further than that. In the mid-18th century, the Sulpician order of priests received a grant from the French Crown to lands in an area of Quebec just 50 kilometres west of what is now the city of Montreal. These lands, which became known as the Seigneury of the Lake of Two Mountains, were also claimed, and continue to be claimed, by the Mohawks of Kanesatake.
In an effort to deal with the Mohawk claims to the area, in 1925, the Government of Canada began to purchase parcels of land for the use and occupancy of the Mohawks of Kanesatake. I am sure that during your briefings the officials showed you the patchwork of lands, and that is the rationale. We started in 1925, a very different time, to purchase land.
Over the years, this has resulted in a patchwork land base, so that today, while much of the Kanesatake land base consists of adjoining lands, at least some Kanesatake Mohawk lands are interspersed with non-Mohawk lands in and around the village of Oka.
More importantly, the legal status of these federal Crown lands has never been resolved, which has resulted in uncertainty about the application and enforcement of laws on Kanesatake Mohawk lands. This uncertainty has seriously undermined the ability of the Mohawks of Kanesatake to govern themselves. At present, Kanesatake Mohawk lands do not have reserve status, meaning that the Mohawks of Kanesatake have not had access to any of the land-related provisions of the Indian Act; most notably, the bylaw powers under section 81.
Honourable senators should keep in mind that even though the community, for all intents and purposes, was not under the Indian Act and did not have reserve status, we treated it as if it did for the purposes of all the programs and services. That should be kept in mind. We attempted, of course, to continue to meet our fiduciary obligations. As a result of not being under the Indian Act, Kanesatake has not had the legal tools that other First Nations have in order to control the development of its land base or to prevent potentially harmful uses of the land, such as simple things like garbage dumping.
Honourable senators, the deep frustration of the Mohawks of Kanesatake came to the surface in 1990. Some of you were present in the Senate during those difficult days and will remember them well. Much has been said and written about the Oka crisis in the intervening years, but we are not here today to reopen the debate, to lay blame, or to criticize. We are here to further a process launched shortly after the barricades came down and aimed at resolving the grievances that gave rise to the Oka crisis. The path of negotiation and reconciliation is the best option for Canada, for the Mohawks of Kanesatake, and for the non-Mohawk residents in that region.
As I have already noted, the agreement that will be implemented by Bill S-24, known formally as the Agreement with Respect to Kanesatake Governance of the Interim Land Base, is a vital step in this ongoing process. While it may appear to be relatively narrow in scope, this agreement will usher in a new era of legal clarity and good governance in Kanesatake.
This, in turn, will foster the right conditions for greater economic prosperity, social harmony, and an improved quality of life in the region.
Honourable senators, I would like to take a few minutes to review the key elements of the agreement that will be implemented by Bill S-24 in order that honourable senators can fully appreciate its importance for the Mohawks of Kanesatake, as well as its benefits for non-Mohawk people living in and around Oka.
As its name implies, the two main elements of the agreement are land and governance. I will begin by explaining how the agreement takes an important first step in addressing the land-related grievances of the Mohawks of Kanesatake, after which I will consider the issue of governance, something you have probably heard me speak about a lot, both in and outside the House of Commons.
The agreement formally recognizes, for the first time, an interim land base for the Mohawks of Kanesatake. I must emphasize the word "interim" for two reasons. First, additional lands may be bought in the future under the agreement, should both parties agree to do so. As well, describing the land base as "interim" makes it clear that this agreement in no way represents a final resolution of land issues for Kanesatake.
I mentioned earlier that Kanesatake Mohawk lands are not considered reserves under the Indian Act. This will continue to be the case. Instead, under the terms of the land governance agreement to be implemented by Bill S-24, Kanesatake Mohawk lands will fall under section 91(24) of the Constitution Act, 1867, which gives the federal government exclusive legislative authority over "Indians and Lands reserved for Indians."
This approach accomplishes two objectives. First and foremost, it clarifies the legal status of Kanesatake's interim land base, ending years of uncertainty about the application of laws on these lands. Second, it prevents the lands from falling under the Indian Act. Like many other First Nations, the Mohawks of Kanesatake would like to extract themselves from the cumbersome provisions of the Indian Act rather than become further embroiled in it.
As honourable senators know, this is completely consistent with the government's own thinking on this matter. Eliminating any uncertainty about the status of Kanesatake lands is a necessary precursor to the second main objective of the agreement, which is to enshrine in law the authority of the Mohawk people to govern their lands. Toward this end, Bill S-24 will ensure that the Mohawks of Kanesatake have powers similar to those exercised by other First Nations under the Indian Act.
The Kanesatake band will be recognized as a legal entity with the capacity to perform all the functions of a First Nations government, and with the authority to adopt and enforce land-related laws in such areas as resource management, land zoning, residency, waste management, the health and quality of life of residents, construction, and fire safety.
To provide a framework for the exercise of these powers, the agreement to be implemented by Bill S-24 commits Kanesatake to adopt a land governance code setting out the principles by which the Mohawk Council of Kanesatake will operate over these matters. The purpose of this code is to ensure open and responsible governance in the best interests of the community, with full political and financial accountability.
Madam Chair, I mentioned earlier that although the larger part of the interim land base consists of adjoining lands outside of the village of Oka, there are a number of Kanesatake Mohawk lands interspersed with those of non-Mohawk people in the village of Oka. To ensure that the Kanesatake Mohawk lands and non-Mohawk properties in the village of Oka are subject to compatible legal regimes, the agreement to be given effect by Bill S-24 requires a harmonization of Kanesatake laws and Oka bylaws on neighbouring lands. I am pleased to report that representatives of the two communities are already meeting to negotiate a harmonization agreement for their respective lands in the village and to address other issues of mutual concern.
Until a harmonization agreement is concluded, development of Kanesatake lands in Oka will be limited to uses currently permissible and the status quo will remain in place. Having said that, I am optimistic that an agreement will be achieved quickly, because it is clearly in the best interests of all residents of the region that future development of adjacent lands in the village of Oka be consistent and harmonious.
Bill S-24 will also ensure that Kanesatake has the authority to enforce its community laws. Kanesatake and Canada are already working together with the Province of Quebec to conclude a separate agreement on the administration of justice, after which Kanesatake will have the authority to appoint justices of the peace to adjudicate disputes over its laws.
Madam Chair, I want to assure honourable senators that the agreement that will be implemented by Bill S-24 does not affect the continued application of federal laws. In the event of any conflict between Kanesatake laws and federal laws, the federal laws will prevail. Any application of provincial laws on Kanesatake Mohawk lands will be subject to the same rules as for all other Indian lands in Canada, and is therefore likely to be fairly limited. Where provincial laws do apply, their application may be limited by Kanesatake laws.
In the event of any gaps in federal environmental standards, the agreement stipulates that Kanesatake laws, decisions and policies will be consistent with standards of environmental protection that prevail in the province.
Honourable senators may be aware that there has been some opposition to the agreement with respect to Kanesatakegovernance of the interim land base. However, it is important to remember that the agreement was ratified by a majority of Kanesatake members in a vote held last October. Although the majority was slim, the membership of Kanesatake hasspoken through a legitimate democratic process. Moreover, an independent legal review of the ratification process and a recount of the vote results, both conducted by a respected former Chief Justice of the Quebec Superior Court, have confirmed that the process was conducted openly and fairly and that the results should stand. For this reason, I had no reservations in formally signing the agreement on behalf of Canada on December 21, 2000.
I am consistently asked, by the national media in particular, what I would do as a minister if there were dissension or disagreement in a community, as if that is not supposed to happen in a First Nation community, as if it is only in the non-native world that we have opposition. I find it curious that people think there should be no opposition in a democratic society, be it traditional or non-traditional. All of you who have run for office must have had someone running against you on occasion. Senator Sibbeston was a premier at one time. I am sure that someone ran against him and that he was not appointed premier.
Senator Sibbeston: I won by 17 votes.
Mr. Nault: That did not make him less legitimate. Legitimate governments are formed through a process which sometimes includes much internal debate, which is a good thing. It is good for democracy when all sides express their view of community development. People should be encouraged to debate these issues.
Madam Chair, it rests with the Senate, and then with the House of Commons, to approve Bill S-24 so that this historic agreement can be implemented. To do otherwise would deal a serious blow to Canada's efforts to rebuild good relations with the Mohawks of Kanesatake and would jeopardize the significant progress that has been achieved in restoring peace and stability to Kanesatake and Oka.
When I visited Kanesatake last June to attend the initialling of the agreement, I witnessed firsthand that a turnaround is underway in the community. Although many issues remain to be resolved, people are optimistic about the future. They see recentachievements as evidence that progress is possible through negotiation and compromise.
These achievements include the creation of a Kanesatake police force to maintain peace, order and public security within the territory itself. The Kanesatake police are doing excellent work, honourable senators, and their job will be made easier with the implementation of this agreement because it will clarify the application of the laws to be enforced by these police officers.
It is a serious issue in any community when people are not too sure of what law they are trying to enforce. The Kanesatake police and the Sûreté du Québec have developed a positive and professional relationship and have worked together on a number of important issues.
Another important achievement and a source of great pride among the Mohawks of Kanesatake is the establishment in 1999 of a nursing home for the elderly. As well, administrative control over education has been transferred to the Mohawks of Kanesatake and a new Mohawk immersion school is being built as we speak. Planning is also underway for a youth centre in Kanesatake.
Economic development and employment prospects areimproving in the community. A Mohawk developmentcorporation has taken over management of the Crown properties purchased for the use and benefit of the Mohawks of Kanesatake. Under the terms of a property management agreement with Canada, the corporation leases these properties to Kanesatake members. All rents collected through this arrangement are used for the benefit of the community as a whole. The corporation is also pursuing other economic development initiatives that will keep money in the community and help address the high unemployment rate there.
Several potential projects have been identified and are awaiting the completion of detailed plans and the involvement of additional partners. Over two dozen new jobs have already been created by the establishment of the development corporation, the conversion of one federal property into a bed and breakfast, establishment of the elders' nursing home, and the creation of the Kanesatake Mohawk police force. Additional jobs will result from the construction of the youth centre and the Mohawk immersion school, and direct benefits will flow to local native contractors for these and other new projects.
We are clearly on the right path toward a resolution of the outstanding grievances of the Mohawks of Kanesatake. I cannot overemphasize the importance of Bill S-24 to this overall process, which dates back to 1991, shortly after the barricades came down.
Without the land governance agreement to be given effect by this proposed legislation, future negotiations on a wide range of issues are at risk. With regard to those negotiations, I want to assure honourable senators that the agreement to be implemented by Bill S-24 is without prejudice to any Aboriginal or treaty rights of the Mohawks of Kanesatake, to Kanesatake's historic grievance in relation to the Seigneury of the Lake of Two Mountains, or to further and more far-reaching arrangements.
It is important to know that we have a long way to go. I do not want you to get the impression that we are done. This is the beginning of building this new relationship.
Another important point is that this is not a comprehensive self-government agreement. It is a unique governancearrangement that recognizes the particular circumstances of Kanesatake. This is consistent with the government's commitment as set out in "Gathering Strength - Canada's Aboriginal Action Plan" to work in partnership with Aboriginal communities to improve their social and economic circumstances byimplementing governance and accountability arrangements and building governance capacity.
It is also consistent with the recognition in the Speech from the Throne that Aboriginal communities face diverse challenges and have unique needs. It fulfils Canada's commitment to strive to ensure that its actions and programs are coordinated to help build local solutions to local challenges.
I also want to advise the committee that the Municipality of Oka and its mayor are supportive of the land governance agreement. I was a member of the House committee myself in 1991 and at that time the mayor was very much opposed to what was happening. There has been a very important shift in attitude since then. In fact, relations between the Oka Municipal Council and the Grand Chief and the Mohawk Council of Kanesatake are greatly improved.
Provincial officials were also fully briefed on the land governance agreement on several occasions and have raised no objections to its implementation. We have shared with them the draft legislation through the two justice departments. I have communicated with Minister Chevrette on this issue and he is very supportive of this arrangement between ourselves and the Mohawk people.
Honourable senators, I firmly believe that providing the tools for a community to govern itself in an open and accountable manner is key to strengthening that community, both socially and economically.
All residents in the area, Mohawk and non-Mohawk alike, will benefit from having a government in Kanesatake that has these tools. In fact, the agreement to be implemented by Bill S-24 will have a profound effect on the entire region. It removes legal uncertainties that have been plaguing the communities of Kanesatake and Oka for many years, paving the way for economic and social development and improved quality of life. It sets out a framework by which neighbours will be able to live harmoniously. It will enhance and encourage the exercise of good governance and support the rule of law and order.
Some may question the decision to conclude an agreement over a land base that is characterized as "interim" when significant issues remain to be resolved with Kanesatake. My government and the Mohawks of Kanesatake believe that the time to clarify the legal status of Kanesatake lands and to establish a sound legal basis for Kanesatake to govern those lands is long overdue. There is no reason to deprive the Mohawks of Kanesatake of the legal tools that have long been enjoyed by other First Nations in Canada until a permanent resolution of their historic grievances can be achieved, and nor is there any reason to deprive the residents of this region of the opportunity to advance their social and economic prosperity today.
There is more work to be done, honourable senators, and this government is ready to tackle the job. However, we first need to implement this agreement because it is key to consolidating the gains we have made to date.
With that, I urge honourable senators on both sides of the Senate to support this bill. I wish you all the best in your deliberations. As I have said to you every time I have appeared before this committee, if there is anything I can do for you, including returning here to defend this bill, I am prepared to do that. I hope that will not be necessary in this case, because I think the intention of this bill is clear. However, if that is your wish, I will certainly make myself available. My officials will be available at a moment's notice to brief you individually or collectively.
Senator Rompkey: Minister, just to add to your reference to close votes, I remind you that, like Senator Sibbeston, the present Premier of Newfoundland won the leadership by 14 votes. More significant is the fact that Newfoundland became a province of Canada by a vote of 52 to 48. Mackenzie King, the then Prime Minister, was doubtful about whether the majority vote was large enough. He expressed that doubt to his assistant, Jack Pickersgill. Pickersgill, who was very assiduous, did his homework and informed Mackenzie King that this majority was greater than any he had received in any of his elections.
That convinced Mackenzie King and we became a province of Canada. Thus, we are no strangers to close votes.
I have two issues to ask about. The first is governance and the authority that the Mohawks will have. You mentioned resources, residency and safety. Will there be resource rights on the land and will there be revenues accruing to them? Will they have some rights to the resources under the land?
How will their rights compare to the rights that others have in land claim agreements that have been negotiated already, for example, the Nisga'a or in the Yukon?
Mr. Nault: I will respond generally and then perhaps ask legal counsel to confirm.
I understand it, they have no right to access resources below the surface, or mineral rights, if I can put it that way. As well, this is not a comprehensive land claim agreement. This is not the same as Nisga'a. We are not talking about section 35 and entrenching these. These are without prejudice. The issues that you raise are not specifically on the table at this point. We have a bit further to go down the road before we get there.
This is also in an urban environment and the reality is that the majority of these lands are residential to some extent. The laws will be more applicable to the harmonization of the zoning that deals with municipalities themselves, rather than trying to ensure that the zoning is either industrial, or for manufacturing bases, or residential. Thus, I would not see them going as far as the Nisga'a agreement or the Yukon land claims, which were much more comprehensive.
Senator Rompkey: This is one reason for calling it an "interim" agreement, I suppose, because there could be, as you said, more lands added. However, would you anticipate that the negotiations could develop further into a land claims agreement at some point?Mr. Nault: That is possible, depending on all sides and where we go with our negotiation. I cannot prejudice those. We certainly are open to moving further to deal with the grievances and some of the specific claims that are already being promoted by the community itself. The grand chief will probably speak to that when he comes before you. This is an interim step down the road to more discussion about the relationship between the Mohawk people and ourselves.
Senator Rompkey: With regard to permanence, once the House of Commons passes this bill, it will be law. I assume it will then have the permanency of law until such time as the law is changed. In that sense, it will be permanent and entrenched. I suppose it will not be entrenched constitutionally, but it will have the force of law and will be as permanent as it can be at the moment. Is that fair?
Mr. Nault: That is a fair position. Under section 91(24), obviously they will be considered Indian lands. It is interim because there are outstanding grievances, but there is also an intention, of course.
As a result of the issues raised within the community itself, there is a significant debate about being at the negotiating table at all, and the suggestion that this would be a finality in negotiations would cause many internal problems in the community. We chose to call it "interim" because it does send a message to the community, and to those traditionalists who do not want us to be at the table in this fashion, that there are other issues that must be dealt with, and that we will add land, as we do with other reserve lands, whether it is because of social issues, economic issues, or population growth itself. We need to add more land for First Nation development.
I hope that answers the question. It was intended to send a strong message that it will have a basis in law, but that we expect to continue to look at other lands as we work our way through this.
Senator Cochrane: I wish to speak about the land base. It implies that additional land acquisition is contemplated. Can you outline for us plans for further expansion of the Kanesatake land base? To what extent and where will the present land base be extended? When will it be done and what will be the cost?
Mr. Nault: You have asked a question that is extremely hypothetical in a number of ways. One point is that we have not progressed anywhere near that far in our discussions. As is always the case with negotiations on additions to land, it has much to do with lands that are available, lands that are adjacent, and the view that the lands proposed to be added will be acceptable to the surrounding third party interest. Therefore, I cannot not answer that question because I know we are not in the process of looking at adding on new lands as we speak. Unless the negotiators can tell me otherwise.
Mr. Walter Walling, Senior Negotiator, Specific Issues, Indian and Northern Affairs Canada: The Mohawks claim that they have a right to the former Seigneury of the Lake of Two Mountains. The parties have agreed to conduct historical research on the granting of the seigneury. Once that is done, legal counsel for the Mohawks and our legal people will review that.
The terms and conditions of the research were agreed upon both by Canada and the Mohawks. We also agreed on who the independent researchers would be. The results of that should be tabled soon, and I think that should give us some insight into how we expand or not.
Mr. Nault: Is there is a map of the seigneury? Did we bring it with us?
Mr. Walling: It is 270 square miles.
Mr. Nault: Do you have a larger map to show where that is?
Ms Deborah Corber, Senior Federal Negotiator,Self-Government Branch, Indian and Northern AffairsCanada: The briefing book has a number of maps.
Senator Cochrane: Since this is an interim report, it means that things are not finalized. You mentioned you wanted this bill passed now because you wish to consolidate the gains that you have made, that future negotiations may be at risk, and various things. Would the Mohawk people not like to see something final?
Mr. Nault: No, I think you will hear from the grand chief, as the representative of Kanesatake, that they would like to see the progress confirmed. They would like to see good faith from the Government of Canada. You may or may not know that we have what we call "interim" agreements in other parts of the country. In British Columbia, for example, we are signing interim agreements when we have not completed the treaty negotiations in that particular province with a particular group of First Nations.
We are implementing interim agreements to bring economic and social prosperity immediately to the community, instead of waiting for maybe five or ten years of negotiation. We can, therefore, bring the results of our work to this point for the benefit of those people without jeopardizing or prejudicing the work that we must continue to do in the years to come.
We have found that to be a positive way to show good faith by the Government of Canada, and that we are serious about resolving our differences and building a relationship.
Another concern - maybe not as much in Kanesatake as in other places - is the frustration of sitting at the negotiating table and discussing one's lands and the resources as they are going by the window and other people are benefiting from them. So we are attempting to bring benefit to the community, and not only to areas where we can bring certainty.
In this land parcel, you will see that we are bringing certainty of law and order for the community and for the surrounding region as we look at some of the other issues that may take us a significant amount of time to resolve.
That is the real rationale of our negotiating strategy and I suppose it is the position of the government that interim arrangements are a very positive process for both sides.
Senator Cochrane: Clause 19 in the bill provides that lands can be given to the band by Order in Council. Why is this power being given to the Governor in Council instead of requiring parliamentary approval?
Mr. Nault: This would be the same process used for all reserve lands in addition to lands under the Indian Act. We do that through Order in Council and it does not come back to Parliament as a whole. The reason is that we have over 600 First Nations in Canada and you would be a very busy committee if I brought every "addition to reserve" back to you. Sometimes it is a small parcel; sometimes it is a large parcel, but we have a set policy that deals with getting agreement from third parties from the surrounding region, the municipality, and the province. When those negotiations are all completed, we take it to cabinet for approval. For example, I did seven of them today.
Senator Cochrane: You have had precedents for this before?
Mr. Nault: Yes. We have been doing it this way for a number of years.
Senator Sibbeston: I commend the minister for hiscommitment to assisting Aboriginal peoples across our country. When I think of Oka, the picture that comes to my mind is of Mohawks standing face to face with police and of armed people. I had sympathy for the Mohawks from afar. I was very happy that the matter was resolved eventually. In the United States, they just kill people who challenge the status quo, as we saw in Waco, Texas.
I am glad we have people like you in this country who are committed to resolving sometimes very difficult matters.
I would be interested to know - and I am aware that substantive parcels of land there have been purchased - how much it cost. While it is good that the matter has been resolved, I would be still interested to know how much it cost us.
Mr. Nault: Mr. Walling will tell you the exact amount.
Senator Sibbeston: Probably not very much?
Mr. Nault: It depends on what you consider "a lot." I consider grievance resolution and relationship-building between First Nations, Aboriginal people, and Canada to be well worth the price, whatever it is. Our country has developed and has become successful on the back of our relationships with Aboriginal people. Our treaties were the first documents that gave rise to development right across the country.
Yes, it does cost money, and it does cost more in urban centres than it does in places like where I come from in Northern Ontario, where acres and acres can be bought relatively cheaply. It depends where the community is and where you are participating in the negotiation.
I will give you a small example while Mr. Walling looks up the numbers. We are negotiating some urban treaties in downtown Vancouver. Keep in mind that it will cost us a heck of a lot more to purchase lands in downtown Vancouver than just outside Kenora, Ontario, where I live and where you can buy land relatively cheaply. I have a nice, three-acre property on a beautiful lake, but if I wanted to buy that much land in Vancouver I would need to be a multi-millionaire.
Mr. Walling, what is it worth so far?
Mr. Walling: At the end of the fiscal year 2000, if you consider the actual acquisition of properties plus legal costs, with Public Works being the agent for Indian Affairs, the cost was $14,045,760.52.
Senator Sibbeston: Do you foresee much additional cost that might emanate from the governance terms of the agreement?
Mr. Walling: The implementation of the governance per se will cost $280,000. That covers the ratification process, the making of their laws. They need a development plan for their territory and how they will set up their institutions. Of that amount, $30,000 will be a recurring cost, all covered by Indian Affairs' regular budgets.
Senator Christensen: The administration of land in the community of Oka is laid out in your documents, but what about the lands that are outside the community? What provision is there with the Kanesatake for those lands?
Mr. Nault: You are speaking about within the community of Kanesatake?
Senator Christensen: No, I mean the lands that are outside the Mohawk community.
Mr. Nault: The 57 lots will be brought into the process once there is a harmonization agreement on by-laws with the Village of Oka. They have agreed to a process to ensure that no contradictory laws will cover adjacent lots.
Senator Christensen: Are there not lots outside of that main community?
Mr. Nault: All lots are part of the municipality, but one particular section is Kanesetake itself and some portions are disbursed within the municipality. If Parliament were to pass this proposed legislation, we would still not move on the 57 lots disbursed around the community until there is a harmonization agreement, as I understand it. Then the others would move right away. Am I right?
Ms Corber: You are right. I would just add a nuance by saying that those 57 lots in the village which the minister is referencing are part of the arrangement. They will have 91(24) status, but the minister is quite right: The Mohawks cannot pass laws to develop those lots until they have a harmonization arrangement with Oka.
Senator Christensen: My other concern is the closeness of the vote. We have discussed it here at some length. Did the ratification process clearly set out the acceptable majority?
Mr. Nault: Yes.
Senator Christensen: It was set out. Do you feel comfortable that the democratic voting process, which we are certainly very used to here, fits in with the traditional ways of that community in deciding issues of major importance?
Mr. Nault: Yes, senator, I would say I feel very comfortable. We have had discussions with the leadership on many occasions about what is considered acceptable, traditionally and by custom.
Senator Christensen: I ask that because I know we will be hearing about it.
Mr. Nault: This decision was made at the end of a long series of discussions between Canada and Kanesatake itself before we moved to sit down at the table. We always confirm at an early stage the details of the ratification process. As senators who are ex-cabinet ministers will know, I must get a mandate from cabinet that includes how we will assure ourselves that ratification was done fairly, legally and properly, and I must follow that. We do that up front before we move too far down the negotiating trail, because I must report back to cabinet that I have met the mandate that they gave me.
Senator Christensen: One more question: Is there any latitude for either the Senate or the other place to make any amendments to this proposed legislation?
Mr. Nault: No, honourable senators, obviously this is a negotiated agreement. It is like Nisga'a. I know that is always difficult for legislators, but we bargained in good faith on all sides. If this bill was amended by you, Canada would be accused of not negotiating in good faith. It is one of those take it or leave it kind of agreements. It is like a treaty; you either accept it or you do not. If you choose not to accept it, then I accept that and I will go back to the bargaining table. Obviously you would report to me why you do not accept it, but unfortunately, in these cases, no, I cannot accept amendments.
Senator Fraser: Minister, as I know you are aware, a number of members of both chambers are concerned about the matter of the rights of native women and, in this context, of residency rights. It is my understanding that the Kanesatake community actually has an inclusive residency policy and that there has not been a difficulty in practice. That is wonderful and very good news. I am sure we are delighted to hear it.
That makes me wonder why, since we are dealing with a situation that on the ground is already good, we could not have used this occasion to set down some markers in this agreement that would serve as a precedent for other situations where there have been rather greater difficulties.
Mr. Nault: Honourable senators, you and I have the same view. That is, the sooner we move to putting assurances of Aboriginal women's rights into the Indian Act and agreements, the better off we will all be. We are not there yet with these negotiations, and the reason I would not lose faith, I suppose, and feel that it would have to be part of these discussions, is that these are intended basically to get to where we are as a minimum, which is similar to the Indian Act.
I have told you and other senators that are close to me that it is my intention as a minister to come forward with legislation in the not-too-distant future that will amend the Indian Act to deal with Aboriginal women's rights. It would be my intention to have that as sort of the template or at least the starting point for negotiations and discussions with Aboriginal groups. We would negotiate higher standards with those outside of the Indian Act, but we would at least have minimums within the Indian Act that do not exist today. That was not the intention of this process, because this is much more restrictive.
Senator Fraser: Given that this agreement specifically does not put Kanesatake lands under the Indian Act, then in terms at least of residency - forget other questions of women's rights - you would have to come back and amend this proposed legislation as well, would you not?
Mr. Nault: No, because they will apply to the Charter. Thus, I would suspect that as we work our way through negotiations with this group and others, that women's residency and rights will be subject to federal laws. Even though this is not specifically stated in here, because all lands will be subject to and comply with the Canadian Charter of Rights and Freedoms, we could argue that this is better than the current Indian Act, because it does apply. However, it does not specifically state that because, as you know, the Indian Act is exempt from the requirements of the Charter. That is where the protection of women falls down.
Ms Sylvia Cox-Duquette, Legal Counsel, Native Law Section, Department of Justice Canada: Since the application of the Canadian Human Rights Act under the Indian Act, the Charter does apply to the Indian Act band. The Canadian Human Rights Act does not apply insofar as the authorities under the Indian Act. Interestingly, under the Kanesatake bill, which is not under the Indian Act, there is no exemption from the Canadian Human Rights Act. The residency laws here are subject to both the Charter and the Canadian Human Rights Act.
[Translation]
Senator Gill: I'd like to congratulate the Minister and his team for the results that they got. We all know the difficulties Oka and Kanesatake had to live with for a while. For having been involved in the administration of Kanesatake, I can tell you that your success is a master stroke. For quite a while, Kanesatake's claims were ignored. In fact, the argument was that Kanesatake was not eligible to land claims which indicates the situation in which the Aboriginals found themselves.
The lands are divided between Aboriginals and Non-Aboriginals. Furthermore, there are pressures between the two groups. That is why those who participated in the negotiations really deserve our sincere congratulations because their task was not an easy one.
You reached a compromise. Things are not perfect, but given the circumstances, nobody could have done better. Aboriginals and Non-Aboriginals have to live together, we have to accept it.
Nonetheless, I would like to raise an issue. Clause 1 of the English version of Bill S-24 is very clear for it talks about "Kanesatake Interim Land Base Governance Act." However, this is not the case in the French version where it reads: "Loi sur le gouvernement du territoire provisoire de Kanesatake." That doesn't mean the same thing.
[English]
We are talking about land that is there on an interim basis; that does not fit.
[Translation]
May be you could look at this more closely. I understand what you mean. It is clear that it is a temporary Act concerning a territory. But in French, this is not what it says.
[English]
Mr. Nault: Thank you for your compliment, senator. It is always nice for the negotiators in particular, and the team, to hear that someone appreciates how difficult and complex some of these negotiations can be. I think they can all take some comfort, as I do, from the fact that we appreciate their work.
As to language discrepancies between French and English, I can tell you that in a previous incarnation, when I was a backbencher, we had to clean up the French text on many occasions because it was not drafted properly. If that is the case, we can do that. That is not a big issue. We do not want to complicate things or give the wrong impression of what it means in French and English. That is perfectly legitimate. I would not consider that an amendment, but just cleaning up the wording. We will certainly have a look at that. Drafters are not perfect. We will get back to you on that in the next couple of days.
The Chairman: I would like to thank you all very much. If Minister Martin has anything to say, refer him to me.
Mr. Nault: I will do that, Madam Chair, with pleasure.
The Chairman: If the committee members would stay just a few moments, please.
This afternoon we received a fax from Grand Chief James Gabriel. I do not
know if you have all received a copy of this communication. I will read it into
the record:
Dear Honourable Senator,Is it your pleasure, honourable senators, to meet with him on Tuesday morning?As you know, Bill S-24, the Kanesatake Interim Land Base Governance Act, has passed through second reading in the Senate of Canada.
This Bill, which implements in Parliament, our Land Governance Agreement with Canada is of utmost importance for the Mohawks of Kanesatake. We hope to garner your support for this important legislation and would be very pleased to meet in order to discuss it with you.
Yours truly,
James Gabriel
Hon. Senators: Agreed.
Senator Fraser: Do we have any information on when we will meet the opponents of the bill from Kanesatake?
The Chairman: We can discuss that further on Tuesday morning. Perhaps we will have some names then.
The committee adjourned.