Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 4 - Evidence
OTTAWA, Tuesday, October 25, 2011
The Standing Senate Committee on Aboriginal Peoples met this day at 9:30 a.m. to examine and report on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples. They will either be watching on CPAC or the web. I am Gerry St. Germain from British Columbia and I have the honour of chairing this committee. The mandate of this committee is to examine legislation in matters relating to the Aboriginal peoples of Canada generally. Under this broad mandate, one of the matters that the committee has studied in the past is the treaty-implementation process.
Our witnesses are here to address us on this subject. This morning, we will hear from the British Columbia Treaty Commission. In September 1992, the B.C. Treaty Commission was established as an independent body to oversee and facilitate the negotiations of treaties between the Crown and First Nations. The responsibilities of the commission include accepting First Nations into the treaty process and assessing when the parties are ready to begin negotiations. The commission also develops policies and procedures applicable throughout the treaty process, reports on the progress of negotiations, assists in dispute resolution between the parties in negotiations, and allocates federal and provincial funds to First Nations involved in treaty negotiations.
[Translation]
Before listening to our witnesses, I would like to introduce the members of our committee here this morning.
[English]
We have Senator Larry Campbell from the province of British Columbia; Senator Ataullahjan from Ontario; Senator Brazeau from the province of Quebec; Senator Greene Raine from the province of British Columbia; and Senator Demers from the province of Quebec.
Members of the committee, please help me in welcoming our witnesses from the British Columbia Treaty Commission: Chief Commissioner Sophie Pierre, Commissioner Robert Phillips, Commissioner Dave Haggard and Commissioner Celeste Haldane.
We look forward to your presentation. I believe you will make the presentation, chief commissioner.
Sophie Pierre, Chief Commissioner, British Columbia Treaty Commission: Good morning, Senator St. Germain, senators and ladies and gentlemen. Thank you very much for having the B.C. Treaty Commission to make this presentation to you today. It is almost exactly two years ago to the day that the B.C. Treaty Commission was here in Ottawa making a presentation to the House of Commons Standing Committee on Finance, in the pre-budget consultations. We came here specifically to seek support in achieving the economic-stimulus effect that can be possible through negotiating treaties with First Nations in British Columbia.
We have travelled here to appear before your committee to ask for your help again to unlock the economic potential of the B.C. treaty process. We are asking for your support to regain the sense of urgency in negotiation. For modern treaty making to succeed in Canada, we must move from a social agenda to an economic agenda. Basically, our message is that treaties are an economic stimulus and should be considered as an economic agenda.
The Government of Canada has a unique constitutional obligation to Aboriginal people, as you are very well aware. Under our Constitution, Aboriginal and treaty rights, those that exist now and those that may be acquired, are recognized and affirmed. That is our starting point.
The reality in Canadian law is that Aboriginal land title, and rights that go along with it, exist whether or not there is a treaty. However, without a treaty there is uncertainty about how and where those rights apply. That is our situation in British Columbia. There is uncertainty.
Through treaties we can address that uncertainty. Through treaties, the free, prior and informed consent of First Nation citizens in British Columbia is achieved. There is certainly of ownership and jurisdiction.
In September of 1992, the Government of Canada committed to this unique, made-in-B.C. treaty process. As such, treaty making in British Columbia is distinct and different from treaty making, or the historical treaties that exist already, in the rest of Canada. We have been in this process for the last 19 years. This year, we start our annual report, which we have made available to you, by asking the very important question: How do we start to realize the benefits from the investment that has already been made? There has been a substantial investment already. On the First Nations side alone, we are talking about half a billion dollars. How can we start to realize benefits from that investment?
I think we invest in these processes to see some benefits at the end of the day. We are very concerned that right now we are spinning our wheels and that it will be very difficult for us to actually see those benefits that we should be seeing. The state of the economy worldwide is on everyone's minds today. Understandably, the Government of Canada has to be strategic in its investments.
The Canadian Chamber of Commerce recently put out a report called The Business Case for Investing in Canada's Remote Communities. It makes a very strong case for strategic investment in the remote communities of Canada. We believe the same case can and should be made for First Nation communities because, of course, many of these communities are in remote and rural areas of Canada.
Also, the Canada-First Nations Joint Action Plan aims to unlock the economic potential of First Nations. This is not only the right thing to do, but also it just makes economic sense for all of us to look toward an economic agenda. The treaty commission believes that settling treaties is an effective way to ensure that there is economic growth in all regions of British Columbia. Treaties are an untapped source of economic growth because when a First Nation benefits the whole region benefits. It is not necessarily true the other way around. That is why we have such poverty in some areas of our country.
While First Nations have been at the centre of the debate over natural resource, energy and transportation development in British Columbia, they have often been outsiders in the decisions being made. They have not very often been the beneficiaries.
Recently the Government of British Columbia has unveiled their plan to ensure the economy remains strong for all British Columbians, including First Nations. Priority, right now, is being given to short-term arrangements with First Nations, although the government does say that it is their intent to tie them to treaties to bring about the certainty that we are all looking for.
While long-term reconciliation with First Nations remains the stated goal of the provincial government, practical considerations favour agreements that provide short-term certainty on the land where the Crown and First Nations share an interest.
Unfortunately, though, the federal government, for the most part, has not been party to these bilateral agreements between British Columbia and First Nations. While we, as a commission, applaud what the bilateral agreements bring — immediate benefits to First Nations — it will be helpful when there is a stronger tie to certainty through treaties. For its part, the federal government has been providing funding to some First Nations for treaty-related measures. It has taken time for the federal bureaucracy to be able to get that online, but now we feel fairly confident that First Nations can take advantage of it. They can have bilateral agreements on land and treaty-related measures around governance and capacity-building, et cetera.
The social agenda, though, has always been a focus of federal government spending when it comes to the Aboriginal envelope. This is of concern. We need to be moving to a greater emphasis on an economic agenda for our communities, otherwise we will always be in this same pattern of trying to deal with social problems. What we really need is to have an economic agenda where First Nations people can deal with social issues themselves.
Last spring, the Mining Association of British Columbia made a comment that treaties are one of the best ways to provide a level of certainty on the land base and a vehicle for reconciliation with First Nations. However, the Mining Association of BC said: ``. . . the federal government's commitment to the BC treaty-making process appears to have waned in recent years.'' The Government of Canada has demonstrated that it can move quickly; for example, last year's passage in Parliament of the Maa-nulth First Nations Final Agreement. It made its way through the house, the Senate, the standing committees, and received Royal Assent in just four days. We applaud that; it is wonderful. Another treaty is knocking at your door now: Yale First Nation. We hope that the Yale treaty will be able to move quickly also.
However, the opposite has also been true. We have an example where the federal government took more than 16 months to simply initial — not sign off on but initial — the Sliammon First Nation Agreement-in-Principle. Again, you have an example of where the government can move very quickly and another example of the usual experience of delay after delay after delay. Some confidence may be restored as a result of the federal decision to delay Sliammon agreement by the fact that it was initialled last weekend. Minister Duncan was in attendance as was Minister Polak for that initialling. As I mentioned, quick passage of the Yale First Nation final agreement by Parliament this fall will also help to restore some of that confidence.
We know that we are involved in treaties to avoid litigation. You have either negotiation or litigation. Litigation sometimes gives a direction to the negotiations, but really we are looking forward to and encourage negotiation — the alternative to litigation. We are also looking forward to continuing as a treaty commission and to being aggressive in proposing dispute resolution at the tables where there is no progress or where it has been stalled. As a treaty commission, we are always there to propose solutions and to help with the disputes.
One of these disputes has to do with territorial issues between First Nations. We have a situation of overlapping claims on shared territory. Our advice to First Nations, of course, is that they have to deal with that internally rather than look to the courts to find solutions to those kinds of internal disputes. In all likelihood, after spending a couple of million dollars on legal fees, the courts will tell the First Nations to go home and settle it themselves; so we are saying, ``start settling it.'' We have been saying all along that we need to settle such disputes ourselves, and we need some resources to help First Nations to do that. We provide either direct mediation support to First Nations — and my colleague Commissioner Haggard has some good experiences in supporting that kind of mediation to bring people to final agreements; or we could provide resources for First Nations to bring other mediators in. In the past, for the Tsawwassen table, for example, Mr. Justice Lambert came in and helped Tsawwassen and Lake Cowichan First Nations to reach an agreement.
We see that as one of the priorities that the commission has to focus on. The other priority as a commission in terms of our relationship with First Nations is to support capacity building for governance. We have the everyday example of the Tsawwassen First Nation and now the Maa'nulth First Nation with treaties in place. We can learn from them what each of these First Nations needs to have in place in order to govern effectively and efficiently without having to bring in a whole bunch of other consultants to do the work for them; they can do it themselves. That has been our priority and will continue to be our priority.
We are looking to you to help us with this agenda of realizing the economic potential of treaties. Specifically, from the federal and provincial governments and from the First Nations Summit we are looking for a recommitment to the treaty process and real negotiations. Next September will be the twentieth anniversary of the B.C. treaty negotiation process. We are asking that in acknowledgement of the twentieth anniversary we have a public recommitment. We are not saying how that should be done, but we feel that it needs to be done. A message of recommitment to support negotiations as opposed to litigation needs to come from all three parties to the negotiation directly from the prime minister, from the premier, and from the First Nations Summit. We need this recommitment and to have the process move forward so that the agreements in principle and the final agreements receive initialling off faster rather than slowly, as they have been before. We also recommend that First Nations deal with their overlapping claims.
Specifically, we recommend that the Government of Canada develop some way of overcoming the bureaucratic inertia that we have in this process. When I started two and a half years ago as chief commissioner, I commented after a couple of months on the job that we were not in negotiation; we were simply another program of the government. We have become a program of the Department of Aboriginal Affairs and Northern Development, which is wrong. We are supposed to be in negotiation.
Because this happens over years, a real bureaucratic inertia has developed that causes lengthy delays. Federal negotiators and the whole bureaucracy seems to need to come back to Ottawa all the time to get approval on things as opposed to having the mandate to move things forward and actually close deals. We are looking for negotiators that can close deals. The negotiators need to have the authority and flexibility to be closers.
We need a commitment to transparency. We recommend that the land and cash offers made at these tables be made sooner rather than later and that we do not get bogged down in the process. First Nations are borrowing money to go through this process. As I mentioned earlier, it already adds up to $0.5 billion, with 80 per cent in loans and 20 per cent in contributions. We have an incredible debt load that continues to build because of bureaucratic inertia and because everything is moving so slowly. We spend a lot of time moving commas in the chapter language, as opposed to making substantive deals. One way to get beyond that would be to have a more transparent process when the land and cash offer is made. For example, First Nations really cannot start dealing with their overlapping claims until they know what land is on the table. If they do not know what land is on the table until they have been in negotiations for 17 or 18 years and they have built up this incredible debt and then they have to start dealing with their neighbours, they already have all this wasted time. That is basically what we have here.
We cannot go forward for the next few years doing the same thing. It is not right. It is not good for anyone.
The federal negotiators need real mandates to negotiate. Right now they do not because of a series of multi-year planning that is going on. You all know the intent of negotiations. Right now, the federal negotiators are not able to actually go to the table to negotiate because they are held up with all of these various Canadian reviews that are being done.
I will give you an example of just a few of them that directly affect the B.C. treaty negotiations. We have right now a comprehensive claims review. We have the fiscal harmonization review going on. We have the Cohen inquiry, and before that we had the West Coast fisheries inquiry. That was put aside and the Cohen inquiry started. We have the national capacity program review, and we also have looming before us the expiration and the review of the current five-year federal budget for Canada's participation in the treaty process. This will come due in 2014.
We have all these reviews going on. The negotiators are held back because of all these reviews. They do not have a mandate to finish these things because the reviews have to happen first. We really question, are we actually in a made- in-B.C. treaty negotiation process?
We are recommending that, with your support, we can revive the spirit and the meaning of the made-in-B.C. treaty process by supporting this recommitment as part of marking the twentieth anniversary of the B.C. treaty process, which is approaching in September of 2012.
Mr. Chair, that is my presentation.
The Chair: Thank you.
In your presentation, you talk about the overlaps in the territorial claims and the question of jurisdiction. Yet, on the Yale treaty, we are receiving presentation after presentation in regard to this particular treaty. Certainly in Maa- nulth and Tsawwassen there was not the same issues that surrounded them.
Ms. Pierre: There was.
The Chair: There was, but there was not to the extent that we have in the Yale case with the Sto:lo nation. The way to expedite these things is to look at something that is acceptable to all parties. In this case, I would like your comment. The issue here is fishing locations on the Fraser River. These are like oil is to Alberta; cattle are to Texas type of thing — that is, fish to our First Nations on the West Coast. I am telling you something you know.
In the spirit of that, have you any suggestions as to how we can deal with this in an expeditious and efficient manner?
Ms. Pierre: Yes. I will start the answer and then I will ask my colleague Mr. Haggard to speak to that also. He does have the direct experience of Maa-nulth. I will let him explain because it was a volatile situation also.
The Chair: I know there was a fellow by the name of Dennis, one of the chiefs. Go ahead.
Ms. Pierre: With Yale and Sto:lo, the situation is such that these fishing sites had, over the last 130 years, already been impacted by the creation of the Yale Indian reserve. These are historic fishing sites that go back thousands of years. They are right in the middle of the Indian reserve. When an Indian band wants to get into the treaty process, the treaty process has said that it is open for either individual bands or groups of Indian bands that form a nation. When Yale and Sto:lo entered the treaty process, they were already dealing with this issue that had been created by the formation of the Indian reserve. Over the years, they have been able to mansion how they can have access to those fishing sites on the Indian reserve.
It is now up to Yale and Sto:lo — and, again, this is what we are saying, namely that we encourage the First Nations to deal with these issues themselves — to continue to find ways of having those historic fishing sites available for all people that have the traditional use of those fishing sites. This particular situation has not been created by the treaty process. It was created when the Indian reserve was first set up. They need to deal with that. They need to figure out how they will use that collectively, like they always have for thousands of years, before the Indian reserve was formed.
Dave Haggard, Commissioner, British Columbia Treaty Commission: The Maa-nulth and Tseshaht First Nation were a matter of about six weeks before the celebration for the implementation of the Maa-nulth treaty, when we approached both the Tseshaht and the Maa-nulth to see if we could not assist them in finding some resolve to the problem. You can almost overlay the two groups into the same territory down in the Alberni Inlet and the Broken Group Islands.
We started discussions and it took us six weeks. It was probably the quickest mediation that ever happened with First Nations of that nature. They signed an accord with the five nations in the Maa-nulth treaty and the Tseshaht First Nation. The celebration went ahead without any protests or arguments or any more court challenges.
Unfortunately, when you get into the Yale situation and the Sto:lo, the dynamics are always changing. We have worked to the point where Yale has a desire to sit down and find a solution. We just got a phone call this week about one part of Sto:lo wanting to talk about finding a solution. We have been working for quite a few months to try to convince the other Sto:lo group that we should sit down and see if we can find a mediated settlement. You are right when you say that it is about fish. It is about access to the river. The family ties between all of those nations play a huge part as well because there have been some parts of the old reserves where Sto:lo have fished and have actually built cabins and have fished on the Yale reserves that now are treaty settlement lands. There is a solution there. It is about access to the river.
I believe that that solution will not be reached until after the treaty is between ratification and implementation. Right now, the Sto:lo nation is putting all their efforts into lobbying the federal government to not pass it in government. I think that is making them feel that if they have that one last kick at the cat, if you will, that they will have the opportunity then to change things and change the treaty itself, which does not help us find the solution.
They have to have the feeling that the only place to go is to sit down and negotiate between those nations what access to the river will look like. We think it is there. We think it can be done between ratification and implementation, in that period of time, because they know they will not win it in the courts.
Senator Campbell: I have always wondered that, when you go into the treaty process, there has to be a commonality among issues, be it land, resources, language, all of this. I know of Mr. Haggard's prowess at negotiating.
I have a couple of questions. The first is that when you look at the treaties that are already there, is it not possible to bring the First Nation to the table and say, ``Okay, here are our issues. What are your issues?'' Sign off on all the ones you agree on, figure out which ones could be deal breakers, and then negotiate the rest of them and then go to the deal breaker. The successes you had have been dramatic, and there have to be things that we have learned from that that will push the process along. Is that possible? Can we use examples of what has already taken place to make it speed up?
Ms. Pierre: Yes. The short answer to that is yes, there are examples. There are lessons to be learned from Tsawwassen and from Maa-nulth. I agree that, when you enter into negotiations, everyone states their interests, and then you try to figure out how you get to the point of meeting everyone's interests to a certain degree. Some people will be less happy than others in meeting those interests. What we encourage is that type of negotiation as opposed to what is happening, where we have, in particular, the chief negotiators from the federal government coming in with positions as opposed to interests. When you come in with a position, it is natural for the other parties to also say, ``Well, if that is your position, this is my position.'' Pretty soon you are going nowhere.
In the ideal situation, where you can deal with your interests, one of those interests, though, will be fish. I have to tell you that that is a really big one. In British Columbia, it is the major issue that will be dealt with for probably 80 per cent of the First Nations, and certainly those who are at the treaty table. We have not had a federal fish mandate for going on seven years now. It is not acceptable.
We had the Pearse report way back when. When I started, we were in the middle of something called the West Coast fisheries review. I have a serious question about that, which we will be asking Fisheries, because we are meeting with them this week. They are saying that once the Cohen review is done, we will be able to get back on track. We do not quite agree with that, because once the Cohen review is done, it will take a couple of years to figure out what to do with the Cohen review. Then what do we do with the West Coast fisheries review? Whatever happened to that? Do we then bring that forward and continue on that review? All we have been doing is reviews, so we have not had a fish mandate.
It has been difficult for us to agree on what are our interests in fish and then how can we negotiate a fish chapter with Tsawwassen, with Maa-nulth and with Yale. They were all exempt. They were able to go ahead, even though these reviews were on. We made recommendations that other First Nations would also be exempt: Sliammon, Yekooche, In- SHUCK-ch. We now have the initialling of the Sliammon. We did not have the fish. It was not taken off the table for Yekooche.
Right now, I really do not know what we will have. We got some language from the federal government in January, when Chuck Strahl was still the minister, about ``carve-out,'' but we have not seen that actual language at any of the tables. If we could see that language, it would be helpful. Again, you would kind of meet those interests.
Senator Campbell: From my point of view, the word ``review,'' any time it is tied in government, is simply a stalling tactic.
Ms. Pierre: Thank you.
Senator Campbell: I believe there is no reason why a review should have to stop ongoing negotiations. As you say, it is all about fish, no matter where you are. My home is in the Penelakut First Nation. For members of the committee, if you ever question how serious fish are, we had a huge run of sockeye last year. The Penelakut are part of a much larger treaty group, but they believe their land is Southern Gulf Islands, east coast of Vancouver Island, and they believe they go all the way up to Yale, which is up the Fraser River. They all went over fishing, and the Musqueam threw them off the river because they said this was not their traditional land. It goes on back and forth.
In saying that, with regard to the reviews, I cannot understand why you announce a review that throws a monkey wrench into the process. It basically brings it right to a dead stop.
How do Indian Affairs and Fisheries relate in this? Do they relate like this, where they are all trying to move forward and help, or are they sitting off in their own bailiwicks? My personal opinion is that Fisheries has no idea where the salmon go once they leave the Fraser. None, period. We do not have the capability of understanding that. Every time we try to frame it and understand where they go, it just gets more muddled and confused. I would like to know how INAC and Fisheries are participating in this.
Ms. Pierre: We do not get the sense that there is a lot of real joint work in this. From what we can gather, it seems that when Fisheries is involved in their various reviews, they are quite territorial about that. They are there to do their fisheries review, and that was the West Coast fisheries review. When I came on the scene, we were in the middle of that. Now, of course there is the Cohen review. There does not seem to be a way to really get the various departments to work together.
However, it is not just Fisheries and Indian Affairs. One of the recommendations we make in our annual report, of which you have a copy, is that we really need to have a way of having all the various ministries that have an impact on the treaty process to have a way that they can work together. When the table reaches agreement on a chapter or they reach an agreement in principle, then it has to go to so many different departments to be worked through — through DOJ, Fisheries, Indian Affairs and Treasury. It goes all over the place.
Senator Campbell: My question is: Why are these people not all part of the working group to start with? You move into a room, and part of that group is everyone who has an interest, and that includes government agencies. It should be these government agencies sitting down and saying, ``I do not have a problem with this. This works for me.'' Do it quickly. They have staff coming out the yingyang. I do not understand that.
Ms. Pierre: We do not get the sense that that is what happens, but that is what should happen. Definitely we agree with that. If we really had that kind of cooperation happening, as a treaty commission, in reviewing our files, we know that we could have upwards of 16 treaties in the next three to five years. However, we have to get some real work done in order to reach that. I guess the question is: Do we really want treaties or not? Do we want that economic stimulus that we can get from those treaties?
Senator Patterson: I found the presentation excellent and clear, and your recommendations are clear. I really wish we could do something about bureaucratic inertia in Indian Affairs. We are all too familiar with it, I think, in our work, but it needs to be said.
I do believe that the principle of moving from the social to the economic agenda is good for Canada. It resonates with our government, it resonates with the enlightened leadership of First Nations, and that is music to my ears.
I will ask maybe a simplistic question, but I was very interested in what you said about the federal negotiators taking a positional approach and also not being transparent with their mandate on land and money. There is another approach to negotiating, and it is the Harvard school. It is interest-based negotiating. Do we need to tell Aboriginal Affairs, from the top, that the interest-based approach will succeed and that the confrontational approach is dated, ineffective and inappropriate? There is an interest-based approach to negotiating. Do the feds need to be told that?
Ms. Pierre: I would hope not. When we signed onto this process 19 years ago it was with that intention. We all had an interest in avoiding litigation in British Columbia. That is our interest, so we figure out how to do that. We negotiate a treaty. Of course, the courts were also telling us to go back and negotiate rather than litigate. We all have that particular interest. Over the years, the style of negotiation was to determine your interest and figure out how everyone could reach a comfortable level. It might not be to the degree they wanted but no party was left behind. However, that style does not seem to exist anymore. Is it a requirement that federal negotiators are given the direct instruction of interest-based negotiations? It could very well be that that is needed.
Senator Patterson: We will give them all copies of Getting to Yes. I believe in that. It is my Bible.
Capacity is a huge issue across Canada. It is a big story in Nunavut, where I work. You said you learned from the Tsawwassen experience and others. Could you tell me a bit about how that went, what was learned and what strategies were used? I think you suggested that it is a good story.
Ms. Pierre: Yes. It is a good story in terms of helping other First Nations prepare for treaty. It is a hard story in terms of Tsawwassen First Nation and what they had to go through. As you move out of agreement in principle and start to narrow down, you know which areas the First Nation will have governing responsibility for. It is at that point that you need to start planning for your human resource capacity to meet those responsibilities taken over in a treaty. Once you have the effective day, a whole public service is in place to service that treaty.
We have been able to speak quite at length. We have invited Chief Kim Baird to come to some of the major conferences and workshops we have had. She is very open in sharing her experience and what they had to go through. The message from Chief Kim Baird is that it is hard work but it has to be done. No one else can do it except the First Nation that will implement that treaty.
Taking that message and Mr. Haggard's experience with the Maa-nulth First Nation, we were then able to start supporting First Nations at that introductory step of doing a review of what you will need, where you will go in treaty, who you will need when you implement your treaty, who you have now, who you can start training up to those positions, and what other positions you need to create.
We have this tool. We have had the support of Aboriginal Affairs in preparing the tool, and now we look to the federal and provincial governments to provide financial resources so we can introduce the tool into the community where they can start using it. There is a tremendous amount of interest. It is just finished now but when it was still in draft, we did a workshop with the three First Nations that are at the final agreement: Yale, In-SHUCK-ch and Sliammon. We brought them together and found this tool helpful. Now, we have lots of requests from other First Nations.
This is the first level of a self-assessment, but we have made sure that once they do that, they know where to go then to start getting the training that they need. We have a good burgeoning program in British Columbia called the First Nations Public Service headed by Christa Williams. She has a tremendous amount of energy in terms of capacity building for First Nations. After we do our first level of assessment, First Nations can work with the First Nations civil service to start filling up the spots that they have.
Senator Brazeau: Good morning and thank you for being here. I must say, we have heard a lot of refreshing words coming from a province where there have been no historical treaties. I appreciate a lot of the challenges that you face in B.C. You have been a lot more progressive than we have been in Quebec, unfortunately.
Three things that you said stuck in my mind. First, you talked about realizing the full benefits and opportunities out there for First Nations in terms of the treaty-making process resulting in treaty. Second, you talked about the responsibility of First Nations in dealing with some internal issues at the forefront when initiating a treaty process and negotiations. Third, you talked about an economic agenda as well. Those three things stuck in my mind. Obviously, I support that wholeheartedly.
However, I must be blunt and ask a question. When you hear politicians speak, sometimes you know their intentions. That happens on both sides. I have had experience dealing with both Liberal and Conservative ministers of Aboriginal Affairs. Often you will hear nice words and sense their intent to move forward. However, in dealing with some AAND negotiators, or with AAND in general, at times the direction is not the same or perhaps they are not on the same page as the minister whom they serve at any given time.
Would you say that one of the issues is a lack of political will to get things done well and on a fair basis? Do you think it is simply a case of the age-old AAND culture or perhaps a combination of both?
Ms. Pierre: It is probably a combination of both. In particular, Aboriginal Affairs has a long history and culture of trying to find answers to the social ills of First Nations rather than having a partnership based on helping to develop an economic base that will allow First Nations to deal with their social issues.
I do not even know what the budget of Aboriginal Affairs is anymore. It is huge and 99 per cent of it goes to social areas. I understand that the little bit we have in economic development will be cut again. We continue to dig ourselves deeper and deeper into this hole; and we have to stop. We have to start filling the hole with economic stimulus.
In terms of the relationship between ministers and the actions of the department, I gave you an example a few minutes ago where in January 2010, Minister Strahl tabled with the principals — the province and the First Nations. We chair those meetings and are the keeper of the process. We all heard the minister say that carve-out language is available for Fisheries, which is a major part of the negotiations in British Columbia. However, we have yet to see that carve-out language. We all applauded Minister Strahl. It was really good. It was the right thing to do. However, I do not know why it has to take so long for us to get that language on the table.
We understand that recognition language has been developed, and again it goes back to transparency. When that language is developed, it would be helpful if it were available at all the tables. It is part of this positional negotiation where it is only presented at one table and they figure it out and it leaks out to everyone else. If we could just get that language out there, it would be so much more helpful to the table and to the negotiations in general.
Senator Brazeau: Do you believe AANDC is the right department or that those individuals within the department who negotiate should be the ones actually doing the negotiating on behalf of the Government of Canada? If your answer is in the negative, what should replace it so that, perhaps, it is more independent — and I am talking hypothetically in the future — and would create a wave of greater support amongst First Nations into buying into whatever process that would be established as opposed to the current AANDC process that is established?
Ms. Pierre: As a quick answer, because my colleague also wants to have a word on that, I have a really difficult time in supporting a lot of what is presently the culture of what happens within Aboriginal Affairs, just because of what I said earlier. I think they are too steeped in this culture of holding our hands. The problem is that they hold both of them, so we cannot do anything. They have to at least let one go.
Mr. Haggard: I remember when the free trade agreement was negotiated with the United States. Whether I agreed with it or not was immaterial. It was done in a much different fashion than today. There was a body that was created that did the negotiations, and it worked. They got a deal. That is no different than we run into with AANDC today.
To give you a quick example, the federal government took a position at the table and the First Nation caucus came back and gave them exactly what they wanted. The chief negotiator for the federal government said, ``That is very good. Now I have to take it back into my system.'' What happens? Another eight months before we get an answer on that one issue. It was their language. It was their request at the table that it take place in that venue. It is now lost in the quagmire of AANDC again. That is the issue that we try to deal with at the negotiating tables with First Nations. You cannot even capitulate with grace and get anywhere. It goes round and round.
I honestly have never talked to First Nations about it; we have only started to talk about it amongst ourselves. I personally believe that the creation of a body that has a mandate to negotiate would be more beneficial for the federal government than what we have today.
Senator Brazeau: A final comment to build on your analogy of AANDC holding both hands. Like the old saying goes, shake with the right and hit with the left.
Ms. Pierre: I guess that is why they do not want to let them go.
The Chair: Maybe they are not that bad after all — that foolish, I should say.
Senator Meredith: Thank you, panellists. I apologize for my delay this morning.
Ms. Pierre, I heard your comments and I sense your frustration with respect trying to get these treaty agreements signed and solidified. You mentioned that the government negotiators have always come with strong positions.
What have you done to really tell these negotiators that we need to ensure that the full interest of these communities that are impacted economically, strong economic communities have a better quality of life? Many of the social ills that are plaguing many of the communities or the Aboriginal people would be stymied if they had strong economic means, and so forth.
I apologize for my voice this morning. That is not normally not how I like to speak. I am not Barry White here. We do try to move forward in any case. I should go on radio, Mr. Chair.
In terms of what positions have you laid out in being fervent in your attempt to ensure they understand where you are coming from? A position put forward by AANDC took eight months. That could be incredibly frustrating on your part. I would like to see negotiators come to the table with a willingness to ensure that these communities are viable and productive rather than being constantly, as Senator Campbell indicated, stonewalled. I think it is high time in this country that we begin to move forward, that the Aboriginal people get what they deserve and that they are treated fairly, as all Canadians.
I am always frustrated to hear of the plight and the frustrations that you feel, as negotiators. Outlay for me what you have done. How can this committee help to move these agenda items forward for the mutual benefit of these communities?
Ms. Pierre: I would like to give a short answer and then ask my colleague Commissioner Haldane to speak to this also.
As the commission, we are called the keeper of the process. Part of our mandate is to facilitate. Of course, that particular word can be interpreted so many different ways. The way that we describe it is that we are there to support the process and to prod and push, where necessary. My colleagues actually sit and witness the negotiations. They are not part of the negotiations. They are simply there to witness and to assist the parties to move forward. That is our role. I believe that we do it very well.
There are instances where, with the agreement of the various parties, they were able to come together, chaired by the commission, on something called the common table. I will ask Ms. Haldane to talk about this.
Celeste Haldane, Commissioner, British Columbia Treaty Commission: The common table was a process that was established in British Columbia where 60 negotiating tables or 60 First Nations came together. They were attempting to address issues in common, where there were fixed positions. It was take-it-or-leave-it language, certainty, recognition. There was an issue around taxation and own-source revenue. The fisheries were another issue in common that these negotiating tables and chief negotiators were experiencing.
Through that process, they were actually able to engage with both the province and the federal government to try to break down some of these barriers and to flesh out the real integral issues on the ground at the table, but also to provide solutions to these issues that we now, as commissioners, are dealing with. In my role previously — I was not a commissioner at the table — the discussions were facilitated by the B.C. Treaty Commission. That was the one big attempt.
There was a report that was commissioned and delivered from the B.C. Treaty Commission, which was then taken back into the federal system. There was, unfortunately, a delay in some responses coming out of the federal government, which then delayed some of the other work. However, there have been several attempts. From my understanding, this work was built on work that started in 2001. There has been a lot of momentum on the ground at the table level between First Nations to try to address these really fixed positional language and negotiating tactics that come to the table.
There has been a lot of support from the B.C. Treaty Commission to facilitate that dialogue and to try to come up with some practical solutions to these very real issues that, again, hold the process back. Hopefully, I have recapped that.
The Chair: On the common table, did you discuss the aspect of establishing who belongs to what as far as territorial jurisdiction, the overlaps?
Ms. Pierre: No, that was not one of the issues with the common table.
The Chair: Why?
Ms. Haldane: It was a large issue that was to be dealt with nation to nation. One issue that was addressed was co- management and how that could work. That goes into the work that Mr. Haggard has undertaken and the commission has undertaken to see how maybe two nations can resolve that. However, it was not an actual common table issue.
Ms. Pierre: I think it is because the common table, those where the interests were at all three parties and the overlapping territorial issues are primarily a First Nations issue amongst themselves.
Senator Meredith: In terms of once these treaties are signed and established an economic value, have you put a number on that?
What we are doing in terms of stimulus right across this country is looking to engage communities and businesses. What are the numbers that have been placed on that in terms of saying, ``Let us get on with it; we are missing the boat here?''
Ms. Pierre: As an opening number, I was talking about an economic stimulus of about $10 billion. This was done by Price Waterhouse. We commissioned an update. Price Waterhouse, over the years, has done these updates on the economic benefit of settling treaties in British Columbia. The first one was done about 1993-94, when the process first started. We commissioned Price Waterhouse to update that report in 2009. That was the type of number it was bringing forward.
Senator Raine: Thank you very much, commissioner, for being here. I agree that it is very important to recommit to the process. I admire your tenacity. Keep on pushing the elephant a little bit.
I would like you to outline your relationship with the British Columbia side of the treaty negotiations. Obviously, you are having trouble with the federal side. How is it going with the provincial side? Also, is there a chief negotiator for the federal government? I am getting the feeling there is not one. Is there not anyone who has the power to negotiate? I guess therein lie a lot of the difficulties.
Ms. Pierre: I will answer that second question first. Each table has a chief negotiator from the federal side. Then they have a chief negotiator from the province and a chief negotiator from the First Nation. These chief negotiators from the province and the feds often do more than one table. Does anyone know offhand how many chief negotiators there are in B.C. from Canada right now? There are three or four. They have multiple tables.
No, there is not, that I or any of the commissioners are aware of, one person out of those three or four who is sort of the chief-chief negotiator. We do not know that. I do not think there is, but maybe there is.
In terms of the other question, we encourage the bilateral agreements that are happening in B.C. They are awesome. They are ways of getting the First Nations to see some real economic benefits. B.C.'s part in this, in most instances, is to put land on the table. B.C. puts up land, and the feds put up the cash. We are saying that we need to have these things happening sooner.
B.C. is now entering into these bilateral agreements that have various names. They have ITAs, which are interim treaty agreements. They have SEAs, which are strategic engagement agreements. I am not exactly sure what the difference is between all these agreements, but they are all bilateral. They all have the intent of supporting the First Nation to get some economic activity happening before the final signing of the treaty, which was always part of the intent of the task-group report. When we entered into this treaty process, the intent was that we would start negotiating now. It did not mean that we would have to wait until a treaty was signed before any benefits flowed to First Nations. We have to have interim benefits as we go along. B.C. is doing that. What we are concerned about is that there is more and more emphasis being placed on these bilateral agreements. It is pulling away what little movement we had in the treaty process. More energy is being put into these bilateral agreements.
Quite frankly, we hear very clearly from British Columbia that the reason they are doing this is because they are totally frustrated that the treaty process is going absolutely nowhere. We are saying, ``This does not help, really.'' It helps the First Nation, but it does not help the treaty process.
Senator Raine: I am reading from my notes here. In September 1992, the tripartite British Columbia Treaty Commission Agreement established the treaty commission as an independent body to oversee and facilitate negotiation of treaties between the Crown and First Nations. The agreement was subsequently made the subject of federal and provincial legislation and confirmed by resolution of the First Nations summit. This treaty commission should have an ability to move forward, and it is very frustrating that you do not seem to be able to move quickly enough.
I notice that Jerry Lampert is the federally appointed commissioner, on a two-year term. Do you think the two-year term is part of the problem, or has he been reappointed many times?
Ms. Pierre: He has been reappointed once. This is the second term that he is going into. We are certainly hopeful that he will be reappointed again.
By the way, I do apologize. I meant to pass along the regrets of Commissioner Lampert. He got tied up with a family situation in Toronto. He will be here tonight, but he was not able to be here for this particular presentation.
Yes, he is in his second term, as is Commissioner Haggard. All of them are two-year terms, and I do not know that that has really created an issue for the commission. It certainly has not in my time because we have not had any change other than having Commissioner Haldane elected. At the summit, people are elected. The others are appointed. Ms. Haldane was elected last spring.
Senator Raine: I am looking at Mr. Lampert's background. I know him, and he is very well respected in British Columbia. I wonder if he has much experience in dealing with the Ottawa bureaucracy and the way things work here. Maybe that is something you need.
The Chair: He knows Ottawa. He has been here. He was born and raised here. He knows the ins and outs of this place.
Ms. Pierre: In addition, I have found that Commissioner Lampert, with his business background, has been invaluable to the whole work and to the emphasis we are placing on an economic recovery for First Nations communities. He understands that language.
Senator Raine: I hear your cry for help in requesting a recommitment by the federal government for the process itself and for speeding it up. I wish you the very best.
Senator Demers: Negotiations can be awfully frustrating at times. Your presentation, Ms. Pierre, was great. As Senator Patterson said, we understood exactly where you are going.
There are times in negotiations — and I do not know if there is an answer to this — when stubbornness and ego are involved. One party thinks they are right, and no one listens to each other. They are holding both hands. In North America, not only here in Canada, sometimes they bring in a neutral mediator. That mediator has one focus — to get this done. It just seems the more you talk, the more you disagree. Has there ever been a thought to bring in someone, male or female, with a plan to get this done and get it to work out for the good of both parties? In negotiating, someone will say, excuse the expression, ``I got screwed.'' A negotiation, a deal, or a treaty signed means that both parties have said, ``It is good for your people; it is also good for us.'' Has this ever been a thought of bringing in someone? Maybe this is something that can be done.
Ms. Pierre: In a sense, the role of the commission is to come in and provide that kind of assistance. In instances where First Nations are dealing with their territorial issues and it is getting very difficult for them because it is so internal that it divides families, et cetera, it is very helpful to bring in a third party.
We continually lobby the federal and provincial governments to provide the resources for First Nations to be able to do that.
Again, we have a request that has gone in to the federal government, and a request that has gone into the provincial government, because we tell the province, quite frankly, that they are the ones that will really benefit. There is so much economic activity that is dependent on some certainty on the land, particularly in mining, or in the oil and gas industry. There is a lot of activity that is dependent on having that certainty on the land.
We feel that the Government of British Columbia then has to provide the resources to those First Nations so that they can have a mediator come in, you are right, someone that is just totally apart from the parties and has only one focus, and that is to reach an agreement, something everyone can live with. Like my stepfather used to say, consensus means chewing on something until everyone can swallow it without choking.
Senator Campbell: I am looking at the In-SHUCK-ch. Douglas First Nation voted to withdraw from negotiations. Why would the negotiations not just carry on in the absence of them?
Ms. Pierre: It will.
Senator Campbell: There could be a treaty among all of those who are still participating?
Ms. Pierre: Yes.
Senator Campbell: Douglas would be able to look and say, ``We can go with this,'' or, ``No, we need to negotiate further.'' It does not necessarily stop the negotiations when one nation wants to —
Ms. Pierre: No, it does not stop the negotiations. It changes the face of the negotiations, obviously, because now they will be dealing with a smaller group. One First Nation has pulled out.
Again, the commission was able to provide some assistance because, while the leadership at the Douglas First Nation wanted to pull out, there were still many members of their community that did not want to pull out. We had to help with that particular situation.
Senator Patterson: Talking about the economic potential of settling treaties and the $10 billion figure, I may be out of line here in asking about this, and I know your typical role is with regional or local First Nations, but there is a big development project in Northern B.C., the Enbridge pipeline, that has attracted national attention and seems to be problematic. Do you have a role in projects that of nature, and is that part of the economic potential of B.C.?
Ms. Pierre: It most definitely is part of the economic potential. We do not have a formal role, although we have a lot of opinion about it. We do not have a formal role. Our role is strictly for those First Nations that have chosen treaty negotiations to meet their plans for getting on into the future. There are many First Nations in British Columbia that have chosen to stay away from the treaty process. There are other First Nations who were in, got frustrated and left. All that of continues to create the uncertainty, and that is really the underlying case we have in British Columbia. With Enbridge, we have a pipeline that will cross numerous First Nations territories and a whole lot of uncertainty.
Senator Patterson: This may be somewhat out of your mandate, but would you have any thoughts about how that situation could be better addressed or could be addressed?
Ms. Pierre: For the First Nations that are in the treaty process, if they could see what British Columbia is doing having some initial benefits that would come to those First Nations, I think that it is almost — it would not be right to just be picking those First Nations where a pipeline happens to be running through, but it certainly would help if there were some benefits immediately going to those First Nations.
For the rest of the process, though, if we could see some real movement, if we could see that, yes, Yale gets through, Sliammon gets through — then we have In-SHUCK-ch and Yekooche and we have the K'ómoks agreement in principle — if we could see some movement and the First Nations could take some comfort that ``Yes, we are moving here and there will be some economic benefit coming to our communities,'' I think that would go a long way toward rebuilding some of that trust. Right now, a lot of the situation is created by mistrust. First Nations do not want to talk to all of these companies because they feel they will get it.
Senator Meredith: On October 3, 2011, the B.C. Speech from the Throne indicated they had a willingness to work on these treaties. In your comments, you indicated that you are adverse to these bilaterals simply because they take away from the true treaty agreements.
Do you not think that, in your opinion, this thing causes more economic stimulus on those actually benefiting from these bilaterals at this time, in line of two streams running here where you are trying to work out an agreement but these bilaterals are, in fact, helping communities?
Ms. Pierre: They are, yes, and that is our position. We say, ``Yes, B.C., keep doing what you are doing, but just make sure that what you are doing ties in to the treaty process.'' That is our message to B.C.
Senator Raine: I wanted you to reiterate a little bit on the frustration of not getting the wording for the carve-out language with regard to the fish. I know a lot of people out there are wondering how this is approached in terms of fish, because if the fish stocks decline, is what is being negotiated a share of or absolute volume of?
Ms. Pierre: That is why the carve-out language is so important. We are saying we would finish a treaty, and the fisheries part of it would continue to be an ongoing negotiation with Department of Fisheries, once they finish all their studies, I guess. At some point, there would be an agreement. You are right that the stock is declining. We all know that. First Nations know that. However, First Nations are concerned about the access to that resource, which is fundamental to who they are as Aboriginal people.
We are recommending just as an added part to the carve-out that we actually look at co-management of the fishery. It is not such a big leap to go there, because Canada has just recently signed a co-management agreement on First Nations health with the First Nations of British Columbia. It is quite groundbreaking. We have this co-management on health. Why could we not have co-management on fish? In fact, Mr. Haggard can speak to one of the communities that already has it, and it is working well. We have a co-management on fish. If there really is concern about First Nations health, fish is part of First Nations health. If you do not have fish, you do not have healthy First Nations. If we have already the co-management on health, let us get the co-management on fish.
Mr. Haggard: DFO has started all kinds of experiments, is the best way of putting it, but they are having a lot of success. Out of Prince Rupert, a nation call the Metlakatla has gone into co-management with DFO and is having a great deal of success. They are much stricter on themselves than you see happening in other parts of the coast of British Columbia, because for them it is a long-term project. Short-term does not work for First Nations. First Nations need long-term success to be able to continue the way of life as far as food is concerned that they have always had. They are much more strict upon the management of the resources than other people that currently manage the fish and seafood. It is not just fish; it is all of the seafood. They are having a lot of success. You will see that replicated. We suggest that you do that on a B.C.-wide basis. I think it would come down in some type of tiers where, at the end of the day, you would see a lot more success as far as the fish stock no longer being depleted, but instead increasing.
Senator Raine: They are there; they are on the land.
Mr. Haggard: Absolutely.
The Chair: I would like to thank you, chief commissioner, and your commissioners.
Mr. Phillips, do you have anything you want to say?
Robert Phillips, Commissioner, British Columbia Treaty Commission: I appreciate the opportunity to speak. I did not want to say too much because it was pretty much covered. I appreciate the questions that everyone asked, especially along the lines of the socio-economic conditions of our communities.
We are throwing out ideas. We had the common table that was referenced. We are thinking of maybe a smaller common table for those 16 tables out of 42 that are on the verge of treaties. That is about one third. We are so close in many of these final agreements and agreements in principle.
Also, when the Auditor General left, she said it quite eloquently in terms of the bureaucracy and the bureaucrats and all the structures that are out there. It is almost a hindrance to get things done across Canada.
That is what Chief Commissioner Sophie Pierre is saying in terms of all the bureaucrats. We do not have negotiators at those tables. In many cases, we have bureaucrats at those tables. What are bureaucrats mostly trying to do? They are trying to get their 20 or 30 years in, and it is almost 20 now. That is why we are saying next year is the twentieth anniversary. We want a recommitment and we want the Prime Minister, the premier, the task group and Ms. Pierre there to have that signing, the recommitment, and get treaties in British Columbia. That is what we believe will happen and should happen, and we need your help to do that.
The Chair: That is loud and clear.
I want to thank you for your presentation, Ms. Pierre, and as well the responses and comments that were generated from your commissioners. There is no question the recommitment process is number one on your agenda, and to find a way to get negotiators at the table as opposed to bureaucrats.
I have spoken to you before, chief commissioner, in regard to overlaps. You want us to expedite these agreements when they get to us. In most cases, we do try to expedite, but when there is a major situation like Mr. Haggard pointed out, that the agreement on Yale may come between ratification and implementation — I think those are the exact words that he used — that could conceivably generate a problem, with the sensitivity of fish. I have lived on or around the Fraser River for 40-some years. I was the member of Parliament in Mission—Port Moody, which ran from Port Moody out to Harrison Hot Springs. I am fully aware of this. If you could reinforce the situation as far as establishing an agreement between First Nations on overlaps, it would greatly assist us in being able to expedite things the way they should be expedited and get on with life and get that economic development going.
Senators, I thank you for your participation.
(The committee adjourned.)