Proceedings of the Standing Senate Committee on
Issue 6 - Evidence, March 22, 2000
OTTAWA, Wednesday, March 22, 2000
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, to give effect to the Nisga'a Final Agreement, met this day at 5:45 p.m. to give consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: Honourable senators, we are resuming consideration of Bill C-9. We had as a witness before us yesterday Ms Mary Dalen, and while she presented her brief, she did not have an opportunity to be questioned by senators. If I could ask Ms Dalen to take a seat at the witness table, we will continue.
I will ask Senator St. Germain to ask the first question.
Senator St. Germain: Ms Dalen, I apologize on behalf of the committee that we have had to ask you to stay on because we did run out of time yesterday at the hearings. We have received your presentation to the committee, and I should like to thank you again for having travelled this far to make this presentation.
One thing that you brought up was the question of your family traplines. How is this agreement going to affect the ability to utilize these traplines, if it is going to at all? Can you explain that to the committee?
Ms Mary G. Dalen: I will present to you a map. My father has a letter dated 1947 that says that the traplines were handed down to them from generation to generation, and that meant that it was long before the missionaries or the Indian agents arrived. It looks very small.
Senator St. Germain: Is it this area shaded in green?
Ms Dalen: Yes.
Senator St. Germain: Part of your trapline is in that area, is that right?
Ms Dalen: Yes, but that area is not only a trapline. It is used for sustenance purposes -- hunting grounds and basic food sources.
Senator St. Germain: I gather that that small area -- it is small on the map -- is one of the areas of overlap that concerns you and the aboriginal people that live in Cedarvale.
Ms Dalen: Yes, and the surrounding neighbourhood.
Senator St. Germain: Mr. Chairman, I do not know how many questioners there are for Ms Dalen. I will pose only one more question. My question is with respect to accountability.
You spoke in your delivery yesterday of accountability in regards to the administration of bands. Your people have basically been off reserve for a number of years.
Ms Dalen: All our lives.
Senator St. Germain: Is your concern for other people mainly? Is that why you brought up the question of band leadership possibly not being accountable to the rank and file or the members of the band?
Ms Dalen: That is part of it. All my life, I have lived in Cedarvale, and my grandparents and parents lived off reserve. They leased their land and this is how it went. They agreed to have Robert Tomlinson, Sr., take all the lands on both sides of the river, and then they cleared the land. This land I am pointing to on the map was not unoccupied before. It was occupied by my father's people -- my father's paternal ancestors. My father's family was there already.
Senator St. Germain: And Mr. Tomlinson was the minister.
Ms Dalen: He was the Anglican Church minister. That is the way they set it up to avoid living on reserve.
Senator St. Germain: To avoid living on reserve?
Ms Dalen: Yes.
Senator St. Germain: For what reason? Was this the accountability reason, or was it that they just sought to live off reserve as a different way of life?
Ms Dalen: What Robert Tomlinson said was that he did not want the people to be treated the way Indian Affairs was treating people.
On the map, this is where my father's family were. The people that were left, the people of Gitlusec, lived here. They had 16 houses of assembly, and the black measles wiped them out. The people that were left lived on the island here. Robert Tomlinson and my grandfathers came down and they cleared all this land here, sectioned it off, five acres each, across the river. Indian Affairs was always around them. They had their own band, called Meanskinisht. I have been working on this since 1979 trying to get somewhere with Indian Affairs. That band had numbers, but Indian Affairs seems to be in denial today that there ever was a Meanskinisht band.
Senator St. Germain: Are these the people they declared all deceased?
Ms Dalen: They thought we were all dead. The band office that I belong to now was the one that declared us all deceased, because of my father's traplines. The traplines are on the Seven Sisters Mountains. I will show you. This is on the Seven Sisters Mountains.
Senator St. Germain: Are the Seven Sisters Mountains in this area here?
Ms Dalen: No, that is the north side.
The Chairman: Shall we include the maps as part of the evidence?
Senator St. Germain: Yes, especially the overlap situation. I think we have a copy of the maps. They were tabled yesterday as part of the proceedings.
The Chairman: Fine. I notice on one of the maps that you submitted to us that your land is on both sides of the Skeena River. Is that a correct understanding?
Ms Dalen: Yes. There were two families of Brights; one was my grandfather, Nathaniel Bright, who married into my father's family. There were two families of Brights because my father's uncle liked the name Bright, so he took the name. There were two huge families with the same name. Before that they had Indian names. I am registered on my father's traplines that I was talking about yesterday, which we finally got back last year.
The Chairman: Are you status under the Indian Act?
Ms Dalen: Yes.
The Chairman: And what is the tribal community that you belong to?
Ms Dalen: I belong to my father's village band, the Gitwangak band.
The Chairman: And they are?
Ms Dalen: Gitxsan people.
The Chairman: I should like to ask the same question that Senator St. Germain asked in order that we can understand clearly. You came to talk to us because your concern about the Nisga'a treaty is what? I do not want to put words in your mouth.
Ms Dalen: I am afraid that it will act as a template for the Indian people, especially individuals like myself. My father acted as an individual. He abided by the laws of Canada and British Columbia, and so did my grandfather.
The Chairman: Could I put this to you, Ms Dalen? Your fear is that if the Gitxsan entered into a similar agreement, it would give powers to a tribal council to take rights away from you.
Ms Dalen: From individuals, yes.
The Chairman: If there are no other questions, I thank you very much for appearing both yesterday and today and assisting us with your evidence.
Honourable senators, our next witness is Alex MacDonald, Q.C. I might say, as he is coming forward, that by my recollection he served as attorney general for British Columbia from 1972 to 1975.
Mr. Alex MacDonald: That is when I gave myself my Q.C.
The Chairman: That is not an unprecedented thing for politicians to do. When you are ready, I would ask you to proceed.
Mr. MacDonald: Honourable senators, I come to speak to you about the constitutionality or lack of it of the Nisga'a agreement. I do not want you to think for one minute that I do not believe in negotiations with native bands or that I do not believe in affirmative action programs on the basis of need -- not the legalities, if I may say so, but on the basis of need. As attorney general, when I had the honour of being in the legislature with Frank Calder, one of the first things we did was to --
Senator Grafstein: Mr. Chairman, I know of Mr. McDonald's background. Would not it be appropriate in the circumstances for him to give us a line or two or three about his background? We know him in several capacities, but I think for the purposes of the record it would be appropriate for all the committee members to have his record. I have not heard or seen him for a long time.
Mr. MacDonald: I am a former member of Parliament, and I served time in the B.C. legislature for 26 years, which is quite a long time to serve. I have been a practising lawyer. I have been in the Supreme Court of Canada many times. I taught children at the University of Simon Fraser for 10 years, among other things, on the Constitution of Canada. I had, incidentally, native children there, native young people, in my classes. I established a law school when I was attorney general and insisted that there should be native applicants. Some of them did extremely well, and we have had a distinguished judge as a result. As attorney general, I set up a native court worker system. I knew all about Frank Calder's case in 1976, and I was pleased with it in the sense that it would bring the problems of native communities to the table. They were being ignored.
Nevertheless, when you have a treaty like this, honourable senators, of 252 pages, and you entrench them in concrete -- I do not think I would have to go further than that. I think you have already heard enough to know what I am talking about. When you make it unchangeable except for a constitutional amendment or agreement, and agreements come at a price, then you have made a grave mistake, and what you have done is in violation of the Constitution.
I know that the agreement says that it is not changing the Constitution. It is. It is allowing a sovereign entity to make laws. They may be minor, or they may be sufficient to send someone to jail on breach of a bylaw -- I do not know -- but that is changing the Constitution.
It says that the Charter of Rights shall apply, and if I were speaking more slowly I would read the section about that, but then it says that the Nisga'a government is a free and democratic government. That comes from section 1 of the Charter, and that section therefore is of no effect. That section allows the limitation of rights like freedom from discrimination, but it says it is subject to limits that are justifiable in a free and democratic society. When this agreement says that the government structure is free and democratic, you have eliminated, for all practical purposes, the Charter.
Because I have to push right along, let me give the main reasons. This is the first time this has happened, and it is almost unbelievable. When Parliament makes a treaty by its legislation that gives power to a group of Canadians -- and I do not mind who they are, whether a very deserving group like the Nisga'a people or a Scottish community or anyone else -- and surrenders some of its own power to a group of other Canadians and cannot retrieve that power because it is cast in constitutional stone under section 35, it is making a grave mistake. We can delegate. Had we done this, I would not be here today. Had we given municipal status to the Nisga'a people, they would be the majority, and they would make the by-laws and so forth, and it would be a delegated power. However, to kiss power goodbye is not only a mistake for a Parliament or legislature to commit, but it is unconstitutional. You are part of the Parliament of Canada. You can delegate your law-making powers. That happens all the time. You cannot abandon them.
Some English judge -- perhaps he was an Irishman, but nevertheless, what he said was true -- said that Parliament is omnipotent in all except the power to destroy its own omnipotence. You are doing that in this treaty. Once it is passed, the 252 pages are cast in stone. If there are problems with their implementation, there is nothing you can do about it.
If it were a municipal act passed by a provincial government, then you know perfectly well, as experienced people, that in three or four years there would be problems with that act and a committee of the legislature would meet and make amendments to the act. You cannot amend this agreement except by a constitutional amendment. The lawyers will take over, and there will be an infinite number of cases as to how far this applies and how far that applies. It is a meal ticket for the legal profession, and not at McDonald's.
The first point I make is that you cannot abandon your power under the Constitution. You can delegate, but this is an entirely different thing.
I have a written brief in here, and you can read it, but someone asked me about the administration of justice because I was an attorney general. If you look at page 81 of the treaty, you find that, temporarily, law enforcement officers can go in to enforce the law. However, there is a section on page 185 that establishes the right of the Nisga'a council to have its own police force and, in effect, its own police board, because the appointees to that can only be recommended by the Nisga'a band, as well as a limited court system.
As attorney general, I was charged with the administration of justice in the entire province. That is mandated in section 92(14). That mandate has now been clipped. The ability of police forces to go in and investigate is severely limited, if it exists at all. The ability to manage police forces is severely limited. If you gave an ethnic community of any kind not municipal power, but power of this kind, misbehaviour would creep into city hall one time out of 100, but that is very serious.
In any jurisdiction, when someone who was assaulted believes that the powers that be are not investigating the case properly, or are favouring someone, the attorney general has the responsibility to correct that. The attorney general controls police boards. He or she can direct the RCMP to take over investigations in a municipality. In the justice section, the ability of the attorney general to administer justice in the province has been severely clipped, and that is unconstitutional.
As clearly stated in section 17, I believe it is, of the BNA Act, the Government of Canada consists of the Queen, the House of Commons and the Senate. The provincial legislatures are similarly constituted. Every law that is passed, even innocent bylaws, derives through that, which I call the royal prerogative. This bill gives a body sovereignty to make some laws itself without the Queen's assent or Parliament's assent, without it being changeable, which is a violation of the Constitution of Canada or the royal prerogative.
Section 15 of the Charter of Rights and Freedoms says that everyone is equal under the law and entitled to equal benefits and treatment under the law. Does that apply to this treaty? It certainly applies to the legislation you are now considering. The Charter says "without discrimination." It is inevitable that there is discrimination in this. The most glaring example, but not the only one, is that people ordinarily resident on Nisga'a lands would not have a vote. That is a violation of section 15 of the Charter. That is unequal treatment under the law. In the case of some other native bands, such as Westbank, 1,000 or 1,500 people would be affected. That is a very dangerous precedent to set. A person may be arrested, fined and jailed pursuant to a bylaw, yet have no voice in the government that made the bylaw. That surely is a violation.
Recently, the Supreme Court of the United States, in a case emanating from Hawaii, said that discrimination under the law in denying a vote in a public body is unconstitutional. That was a seven-to-two decision. I say that this special status offends section 15 of the Charter.
Section 15 goes on to speak of affirmative action programs, with which I totally agree. The native court workers program was affirmative action based on temporary need.You cannot call this treaty affirmative action under section 15(2) of the Charter of Rights.
I will talk for a minute about the law that has been decided by the courts of Canada. The famous Delgamuukw case cast a claim cloud over all the lands of the Province of British Columbia. It was for self-government and for lands. It went to the Supreme Court of Canada, which dealt only with the land claim and referred it back for further litigation. It did not touch on the question of self-government. However, the British Columbia Court of Appeal did. In that case, it ruled very carefully on whether sovereign self-governing powers could be granted to any group or community in Canada. The leading judgment in that case, that of Justice Macfarlane, said that in the Constitution there is no room for a third level of government, which this is. It may be limited, but it is there. There is a section in here that says that when any laws of Parliament or the legislatures are inconsistent with this agreement, the agreement prevails. That is a third level of government, and there is no room for it. That was the decision of the B.C. Court of Appeal, the highest current judicial decision in Canada. No other Court of Appeal has touched this question, including the Supreme Court of Canada, and the Court of Appeal of British Columbia has said that it is unconstitutional.
Forget that we are talking about the very fine people of the Nisga'a band and think of doing this for any other group in Canada. This bill says that everyone shall have rights, but some shall have more rights than others. If you had tried that out on Pierre Elliott Trudeau, how far would you have gone? You would have been laughed off the stage. I am sorry to say that that is what is happening in this agreement. It provides for special rights that people in other municipalities do not have, and that is unconstitutional. There is no room in the Constitution to allow that.
Another thing in here that I think is rather cheeky is the provision that says that once the treaty is enacted, a door slams shut. It says that the Government of Canada cannot challenge the validity of its terms or support a challenge to the validity of its terms. There can be a change of government in Canada. It is extraordinary to say that the new government could not launch a court reference or support a challenge to a certain aspect of this agreement. This is a trap that will slam shut.
I strongly suggest to this committee that the Senate should not reject this but that it insist that there be a reference on the constitutionality of the treaty to the Supreme Court of Canada. That fight is going to come anyway. There are citizens who will launch that case, and it would reach the Supreme Court of Canada perhaps in five or six years. It should not wait that long. The chance to make a reference is now, because once the treaty has been agreed upon, as I say, the trapdoor slams on a reference. That is the logical thing to do. You then carry on with your debate on the merits and the justice and the social justice of what we see before us, but you do it in the light of the opinion of the Supreme Court of Canada. That opinion is coming sooner or later; better sooner. Thank you, Mr. Chairman.
Senator St. Germain: Thank you, Mr. MacDonald, for attending. For clarification, the government you served and have supported in the past is obviously the same government that is now in power in British Columbia. That is just for clarification so that people know the background of your political past.
Mr. MacDonald: I know, senator, but I am an unreconstructed socialist.
Senator St. Germain: I do not happen to be a law professor or a lawyer or have the experience that you have, but I understand that the agreement clearly states that the Nisga'a people will abide by the Constitution and the Charter of Rights in this country. Yet, you are putting it in question under section 15. The agreement, in my understanding, says that, and yet you are saying something different. I have asked the Nisga'a people about this, and they have clearly stated that the Charter and the Constitution apply to everything that they do. Yet, when you talk about section 15, you say that it does not apply.
Mr. MacDonald: If you look at page 18, paragraph 9, it says:
The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement.
The exception is if they are justifiable. They have used the same phrase. The Charter is being snookered in this case. "Justifiable in a free and democratic society." Those are the same words. They have said that breaches of rights in the Charter by the Nisga'a government are all right because they are acceptable in a free and democratic society, and this is one.
Do not take that -- I should not talk like that. Do not think that the Charter of Rights will apply. If it applies, how could you deny people the right to vote? I know the voting section in the Charter section 3 applies only to provincial, municipal and federal elections. I know that. However, the equality, the right of Canadians to equal treatment and benefits under the law, is in section 15, and I am sorry to say it is being violated in this case. It does not get violated when you have good programs to help people, particularly in those native communities where the needs are terribly great for land, for cultural protections, and for social advancement.
Senator St. Germain: I thank you for appearing. Thank you for explaining. Do not restrain yourself in any way, shape or form in answering any of the questions. I am sure you will not.
Mr. MacDonald: By the way, I am not retained by anyone. I think it might be too late for that.
The Chairman: It is not often we have an unreconstructed socialist before us. We will not ask you your opinions about the Senate.
Senator Chalifoux: Good evening, sir. It is an honour and a pleasure to have you here before us.
Mr. MacDonald: It is my honour.
Senator Chalifoux: I am from Alberta and have been involved with aboriginal issues in Alberta and somewhat across Canada for many years. I should like you to explain to me a little bit about policing. In Alberta, several of the reserves have their very own police force. They have been trained by the RCMP, and they are totally controlled by the band councils. They are working quite well. In one reserve in Hobbema, they have a jail that is totally controlled by the band council, working within the Solicitor General's rules and regulations. It seems to be working very well.
If these are used as examples of possible good, regulated police forces within the organizations and within the aboriginal nations in Alberta, why would it not work with the Nisga'a?
Mr. MacDonald: The Nisga'a should have their own police force. The City of Vancouver has its own police force. However, it is under the general law. In the last resort, when things go wrong -- and they will with any community -- the Attorney General and the government under the Constitution have a duty to correct those wrongs. The Province of Alberta retains that today.
I am not objecting to the separate police force in the slightest. I am just objecting to the lack of oversight and superintendence in the general public interest, including that of some of the people of Nisga'a ancestry and some members who are not.
Senator Chalifoux: I have one more comment about the Nisga'a court. We just had one aboriginal judge appointed in the Tsuu T'ina Nation, and there is also one in the Peace River country. They are holding court within the reserves and appear to be doing very well on that. They are able to take and make appeals.
I am reading just a brief on the agreement here, but it indicates that the final decisions by the Nisga'a court may be appealed to the Supreme Court of British Columbia on the same basis as decisions made at the Provincial Court of British Columbia. There are safeguards in this brief. I should like your response on that.
Mr. MacDonald: In terms of court appeals, the safeguard is there. However, if you are trying to protect people through law and order, if you want it put it in that way, the investigations are very important. Will they be done properly? The police forces are very important. They are the ones who initiate charges if they are warranted. The prosecutor is very important. The police board is very important, as it has the superintendence over the police. If there is any misconduct or if they are lax about prosecuting a particular person, the police board is there. However, over all is the Attorney General of the province with a responsibility. If things fail, that responsibility is there.
I am not objecting at all to the separate police forces or the courts. That is a very creative thing that Alberta is doing. Certainly you should have native judges. However, the Constitution demands that you have a general, final oversight by the elected representatives of all the people.
Senator Grafstein: Welcome, witness. I found your testimony interesting and stimulating. I was not here the other day when Mr. Doug Sanders from the University of British Columbia gave his evidence, but I have reviewed that evidence and find it distinctly different from yours. I will just point to one or two issues to get your view. Let me read a short paragraph:
The year 1982, then, does represent, I think, something of a watershed, in that we come to terms in constitutional language with the fact of our colonial history and the continued existence of Indian communities within the country that have not been assimilated and who are determined to continue as distinct communities within the Canadian society.
Here is the sentence that is of interest, I think:
Once we constitutionalized those rights in 1982, the older idea of a simple division of authority between the two levels of government was gone.
Mr. Sanders goes on to say:
We also abandoned another fundamental principle in 1982, which is the idea of parliamentary supremacy, that the Constitution simply divided authority between two levels of government. The Charter represented a major change in Canadian constitutional life by creating limitations on the powers of both federal and provincial governments, something totally different from the scheme of the Constitution Act of 1867.
I take it that Professor Sanders is arguing the traditional position -- and I am not characterizing them fairly -- but the argument that you made has been diluted by 1982, in the Constitution. Could you give us your thoughts about that?
Mr. MacDonald: Whether it was wise or not to say in 1982 that future treaties will be constitutional is another question, but no court has said that you must make a treaty. It is there: you can make a treaty. It does become cast in concrete, and you can do that, but no court has said you must. As a matter of fact, I believe the former chief justice of the Supreme Court, Antonio Lamer, said that you need not make treaties.
There are other avenues. In British Columbia we have the Sechelt band, where the Government of Canada and the province have united to confer municipal status on a native band. It needs joint legislation. That is fine. It is that extra step. Back in 1986, in attempting to warn my own party, I wrote an article for The Vancouver Sun. It is that final step that is so serious. Do not embed the Nisga'a accord in constitutional controversy.
Senator Grafstein: Much of what you say commends itself to me, but I am trying to put it fairly for myself while I deliberate about this.
What you are saying is that if errant governments -- provincial and federal --decide to proceed by a treaty by agreement, does that agreement not take it out of section 15 in this example and move it to sections 25 and 35? Therefore, it may be politically incorrect, it may be politically undesirable, but one legislature and the other side have come to the conclusion that this is what they choose to do. I do not wish to hear the political arguments. We have heard political arguments. I am trying to wrestle my mind around the constitutional basis of what you are saying.
Mr. MacDonald: Do you think that by crafting into a treaty something that is clearly a violation of human rights, the legislation that authorized the treaty does not need to conform to the constitution? That is what we are talking about here. We have not reached the treaty stage. That must be constitutional. That is what is being tested here and that is what we tested in court. When it gets to that later stage, you are right.
Senator Grafstein: Let me take it the next step. I have agreed, prior to this evidence being presented, that it seems that the Nisga'a constitution and the treaty are deficit in the fact that non-Nisga'a residents on Nisga'a lands do not have the vote. They do, very clearly, have the right to fully participate in making their views felt and to present their viewpoints. They have a right of strong representation. Their views must at least be considered, if not agreed with. We have been told by the Nisga'a representatives that, in effect, that is almost equal to, if you will, rights under section 15.
Mr. MacDonald: Is that equal protection under the laws?
Senator Grafstein: I am not agreeing or disagreeing, I am saying that that is the argument that has been made. I want your thoughts on that.
Mr. MacDonald: The right to be consulted can be very important or it can be nothing, but the right to vote in a democracy is fundamental. I mentioned the example of a bylaw that is passed that affects the zoning of your property or something of that sort, and you have no say. You may disagree with it, but at least you have had your ballot. That is a fundamental democratic right and any infringement of it is an infringement of section 15, which provides for equal treatment under the laws.
Senator Grafstein: Again you have created another issue for me that we have heard but that you put in a different way, and that is the question of paramountcy of powers. Under the Nisga'a treaty, as I read it, the federal government retains, for instance, powers of labour law, and provincial governments retain their power of labour law. The representative of the B.C. Federation of Labour came here and said it is okay with us because federal and provincial laws apply.
Mr. MacDonald: In labour relations, right.
Senator Grafstein: If you take a look at the other powers that are paramount to the Nisga'a council, what powers do you think are deleterious in terms of giving the aboriginals an opportunity to develop their own lifestyle? What powers are deleterious to the Constitution?
Mr. MacDonald: You are not speaking legally; you are saying what policies might the Nisga'a adopt that were not good policies in terms of social development. Is that correct?
Senator Grafstein: Yes.
Mr. MacDonald: What might they do? Well, the fact that they can make laws that trump federal and provincial laws is the thing to which I object. If the municipal status was granted and they had the right, with a majority of Nisga'a people naturally, to make zoning laws, to make laws about speeding or not speeding on the highways, I would hope they would be good laws and I would thoroughly applaud that. However, in the next step that you take to give them sovereign power, that is where the unconstitutionality creeps in.
In my written brief I give an example -- as you say, it is innocuous -- about adoptions. It is a power that belongs to the Province of British Columbia and now it is being transferred to the Nisga'a people. There may be a different emphasis here. They are very fine people, but you are setting a precedent when you take the constitutional power of the Province of British Columbia and abandon that to a group of citizens. It is the unconstitutionality that I am speaking of, not the merits or the demerits of what the Nisga'a people might do.
Senator Grafstein: In your view, what then is the difference between delegation and fettering the federal or the provincial government's discretion? In other words, we can delegate the federal and provincial governments to delegate.
Mr. MacDonald: Yes, and take back.
Senator Grafstein: Here they have delegated with a fetter, and you are saying that the fetter makes it unconstitutional.
Mr. MacDonald: Yes, because when you delegate irretrievably you have abandoned. Your great grandchildren, with all due respect, will have this agreement in front of them; they will be voting for federal MPs, and they will not be able to change a word. That is serious. Who knows how it will work out? That is abandoning. This abandons. If it were delegation like the municipal acts of the province, I would be in favour.
Senator Sibbeston: We are in an era in our country where aboriginal rights are entrenched in the Constitution. We have had our courts, including the Supreme Court of Canada, delineating what these rights are, and they have been expanding. The native people, in particular, talk about inherent right to self-government.
I am of the belief that self-government can never be delegated. Do you really understand inherent right to self-government? That is the notion that aboriginal peoples have the same authority, the same government as it were, to govern themselves as they did before non-native people came to the country.
My understanding of the process that we are addressing here is that we are really just giving back to the aboriginal people the rights they held before Canada came into existence. After hearing you, Mr. MacDonald, I wonder if you would consider examining your views to see if you are somewhat paternalistic? You speak too much from your own sense of law and order and you do not give enough credit to the Nisga'a and the other aboriginal peoples of Canada. With the new treaties, they can set up their own self-government institutions and run their own affairs.
By this Nisga'a treaty, you will see aboriginal people basically getting on their feet. We have a bad history in Canada. The status quo does not work. Beads and blankets do not work any more. Are you surprised that we are now venturing into a whole new era where native people finally have their rights and can assert themselves to reach an agreement such as this? Are you not hopeful, through this, that eventually native people will get on their feet and be contributing members of Canadian society through this process?
Mr. MacDonald: Since the dawn of history, no occupied land has not been stolen. No culture has not been a blend. You can go to Ireland today, which is Britain's first colony, and you can speak to the people who have been terribly oppressed by the occupation of the British with their religion and their civil rights. The Irish were forced into immigration and poverty. Their lands were stolen. Would you seriously say that you do not look at the needs of today? In Ireland, if you brought up a question about a land claim, you would be shoved away. They would not hear about it. It has happened all over the world.
I stress again, senator, that I am not opposed to negotiations with native bands nor to working out agreements. I should like to make sure that they are based on need, as I have said, and not on the legalistic particulars of the situation, whatever those may be, but I am not opposed to that. That is a new start in terms of relations with the aboriginal peoples of Canada, but do not go that further step and freeze it irrevocably in constitutional concrete. It is that further step that is unconstitutional.
The Chairman: Thank you very much, Mr. MacDonald, for the answer.
Senator Sparrow: The constitutional aspect, under the agreement, requires agreement of all three parties for an amendment. That means it is very unlikely it would be changed in any event, but if an agreement were reached to amend, would it still require a constitutional amendment? Would the constitutional amending formula still apply if the parties agreed to a change?
Mr. MacDonald: No. The treaty would be constitutional law. If the treaty said that the three parties could amend section whatever, then they could do so. You can amend by agreement with a price. You give out particular rights and then you go to people and ask them to surrender something, to change something. There is a price for that but it can be done.
Senator Sparrow: If there were no agreement of the three parties and the Canadian people through their governments wanted to change something, would that make it a constitutional amendment?
Mr. MacDonald: They would have to change the Constitution and change section 35.
Senator Sparrow: Would it be all of section 35 or that section affecting the Nisga'a?
Mr. MacDonald: I refer to the section that says that treaty rights are recognized and affirmed as if they were constitutional. They would have to change that in a federal-provincial conference. Amending the Constitution of Canada on a matter of this sort is, for all virtual purposes, impossible. There would be a great outcry.
Senator Sparrow: The Minister of Indian Affairs appeared before both the House of Commons committee and this committee. He stated emphatically that the agreement does not amend or alter the Constitution. He would hardly be able to say that without the advice of his legal advisors.
Mr. MacDonald: I know that was said. It was said in the B.C. legislature that it does not change the Constitution. However, at page 18, the agreement states that in the event of an inconsistency or conflict between this agreement and any federal or provincial law, then this agreement will prevail to the extent of the inconsistency.
That is a constitutional change. You have never heard of that before. No other democracy -- Australia, the United States -- would ever write such a thing. That disenfranchises future generations. It is inconsistent with the Constitution, whatever they say.
Senator Andreychuk: What if your position is correct in law? We have seen the agreement go through the B.C. legislature and the House of Commons. No doubt the Nisga'a people have traded away some of their benefits as they saw them to make this compromise. It is a shame that there was not a full and fair debate earlier, but we are sitting here in the Senate.
If we were to do something other than pass this piece of legislation at this time, what in your opinion would be the fall-out, particularly into relations over the next 10 years in British Columbia between the aboriginals and non-aboriginals?
Mr. MacDonald: The fall-out either way is will be very difficult. The expectations of native Canadians are way up in the sky. We have created those expectations. Apparently, 110 per cent of British Columbia so far is under such claims and the expectations are high. I do not suggest that you reject it, but I do say that you get the court opinion first. You can do that just along Wellington Street by a quick reference from Jean Chrétien and his colleagues to the Supreme Court of Canada as a matter of major public importance. Of course, there will be objections from some of the native communities on that, but you are not denying them the benefits of the agreement, the lands and the other things. Much of that is needed and will be well used.
You are asking if it should be a treaty. If we make it a treaty, will that not be an upset with even greater fall-out and huge legal expenses later on?
Senator Andreychuk: If the Supreme Court reference that you are alluding to confirmed that this piece of legislation is fully constitutional, would that satisfy you and all of your worries?
Mr. MacDonald: Yes. I would have to pack up. I would disagree with them, but it would not be the first time that I have disagreed with the Supreme Court of Canada. That would be the law of the land. Everyone would have to be satisfied with it.
The Chairman: Thank you, Mr. MacDonald, for your contribution to the evidence before the committee.
It appears that this is constitutional law advice night in the Senate, and tomorrow morning we will continue in that line. We have some additional witnesses on the constitutional questions that you have addressed. Perhaps you would stay and listen to their evidence.
The next witness was scheduled to be Melvin H. Smith, Q.C., from British Columbia. Mr. Smith has had a long career as a constitutional advisor to various provincial governments in British Columbia, although I hasten to say not to the one that is in office at the moment. Mr. Smith has written to the committee, dated today, advising that, due to ill health, he is unable to travel to Ottawa. He has asked that we hear his former assistant, John Weston, on his behalf. I have no objection, Mr. Weston, to that request. I would ask you to come forward and provide us the evidence that Mr. Smith would have provided.
Mr. John Weston, Managing Partner, Pan Pacific Law Office: I was not only an assistant to Mr. Smith but also a great admirer of him. You will know more when I explain something about Mr. Smith.
Mr. Melvin H. Smith, Q.C, is well recognized as one of Canada's leading experts on constitutional affairs -- something he addresses from the heart as well as the head. He spent 31 years in the public service of British Columbia. A lawyer by profession, from 1967 through 1987 he was the ranking official on constitutional law for four successive provincial administrations. I should add that one of those was an NDP government. He was a key player in the patriation of the Constitution in 1981. When he left the field in 1987, he was the longest serving official on the subject in Canada.
Until recently, Mr. Smith had been spending time as a consultant, a commentator on public issues, a writer and a university lecturer. Mr. Smith had, up to the last minute, hoped to join you this evening in person. However, he is plagued by a life-threatening cancer and informed me at 7:00 p.m. last night that he was too ill to travel. I was both disappointed that he could not address you himself and honoured to deliver words on his behalf. I said that his illness was life-threatening but did not use the word "terminal" for good reason: he was in similar straits two years ago. Buoyed by prayers from a large circle of friends and admirers, he fought back from the brink.
Mr. Smith has demonstrated consistent willingness to stand up against overwhelming odds and challenge the status quo where he feels that it has frustrated Canada's development as a nation. One example was his successful but then unpopular fight against vetoes for constitutional change. Some consider him the father of the Vancouver formula, which, in our Constitution, allows for change to happen carefully but does not suffocate it. According to B.C.'s most listened to radio talk show host and a former B.C. minister in charge of constitutional affairs, Mel Smith has made an enormous contribution to Canada, more than any other person that commentator has met.
With those words, I find myself in the unlikely position of delivering remarks on behalf of someone who was at one time my boss -- someone who acts without fear or favour and someone who is admired by many. As I proceed, please remember that the following words are the remarks of Mr. Smith and not myself.
Honourable senators, I apologize for my absence this evening. I have spent the better part of my professional and a large part of my personal life working to preserve and protect the Canadian Constitution. I regard these hearings as an historic occasion and would have dearly loved to give my comments in person. Poor health has confined me to home, however, and I therefore asked John Weston to convey to you my thoughts on three issues and then to provide a simple but important suggestion.
First, let me comment on the effect of this treaty overall. I am of the view that if this final agreement is an example of the 50 or more land claim agreements or treaties yet to be negotiated in B.C., then, at the end of the exercise, Canadians will wake up to discover that their federal and provincial governments have substantially altered forever our economic, social and political fabric. We will discover that our governments have greatly diminished Canada's public land and resource base, the greatest source of our wealth. They will have turned over much of their taxing power to native bands and will have paid out billions of dollars in cash compensation.
The effect will extend beyond the boundaries of British Columbia, as no native band in the country will be able to resist the temptation at least to consider the reopening of treaty negotiations for other treaties in Canada, none of which provide the entrenched third order of government provided in the Nisga'a Final Agreement. If the agreement passes, we will find that you in the Senate and the other provincial and federal leaders involved will have constitutionally entrenched a native-only commercial fishery and authorized and financed an array of 50 or more ethnic-based governments whose laws supplant federal and provincial laws.
Having just addressed the effect of the treaty overall, I should now like to touch on a specific issue, namely, whether the Charter of Rights will apply to protect the interests of people governed by the Nisga'a Final Agreement. This, Senator Grafstein, touches directly upon your questions. The discussion tends to revolve around the interpretation of two key sections in the Charter and one section in the agreement itself. First, we have paragraph 9 of chapter 2 of the agreement, which states as follows:
The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement.
Some people have argued that this clause makes it plain; the Charter applies to all laws to be passed by the Nisga'a legislature. Nothing could be further from the truth. Those words are nothing more or less than window dressing. There is no way, short of amending the Constitution, to dictate how the Constitution will apply to other laws. While this paragraph 9 may have constitutional protection itself, it stops short of expressly amending the Charter of Rights. It is the Constitution itself and the Charter of Rights itself that dictate what laws apply to the Charter.
Another key section is section 32 of the Charter of Rights, which reads as follows:
(1) This Charter applies
(a) to the Parliament and Government of Canada in respect of all matters within the authority of Parliament$; and
(b) to the legislature and Government of each province in respect of all matters within the authority of the legislature of each province.
There, you have it. The Charter applies to the laws of the Government of Canada and the laws of the Province of British Columbia. Are Nisga'a laws in either of those categories? I do not think so. I doubt very much that the Charter applies.
When the issue comes before the court, as it certainly will, a court will look at those few self-serving words in the treaty I have already mentioned and simply say, "We are not bound by that. We are going to look at the Charter. The Charter tells us to what it applies and to what it does not apply." If there is any doubt, look at section 25 of the Charter, which the committee has been examining tonight. It states as follows:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal people of Canada$
On both grounds, the Charter of Rights more than likely does not apply to the laws to be passed by the Nisga'a. Anyone who says it does and points to this is merely giving a salve to those who raise the issue. It is an opiate to tell us that everything is all right.
There are people who persist in saying the Charter of rights will prevail even over Nisga'a laws. Even they must confess we have no certainty -- that is, no kind of court decision that deals with this or an equivalent kind of issue. We must therefore put in place some mechanism to facilitate a speedy review by the courts, a review that predates implementation of the agreement. Only then can we, with certainty, avert the disaster caused by bringing an illegal document into law, a document that, like the Berlin Wall, will have to be pulled apart, brick by brick, through endless litigation.
Before I reach my conclusion and recommendation, I should like to address one more question: Does the treaty attempt to change our Constitution? One way or another, the answer to this question is simple. It is "Yes" or "No". If the answer is yes, then a constitutional amendment is required, which can only be done by way of Canada's constitutional amending formula. Constitutions are meant to be basic governing laws that are difficult to amend and are not to be changed, except with great forethought on behalf of the generations of people who will be affected. If the answer is no, if the treaty is not an attempt to amend the Constitution, then mere passage by the B.C. legislature, the federal Parliament and the Nisga'a tribal council should suffice.
People who say the treaty does not change the Constitution argue, as we have just heard, that section 35 of the Constitution Act of 1982 anticipated treaties with provisions like those before us. Section 35 affirmed then existing aboriginal and treaty rights and was changed subsequently to include subsequent land claims agreements. Supporters of the agreement have to rely on that section as adequate authority for bringing into law this massive change in the way we govern ourselves. I ask this committee to look back at the debates that accompanied passage of section 35. At that time, did the House of Commons, the Senate or any of the provinces accept the idea that section 35 allowed for a third order of government in our country?
You are aware that many of the powers in the Nisga'a treaty surpass those of the federal and provincial governments. In fact, we will be creating sweeping powers that will be transferred, powers equivalent to the creation of an independent state within the boundaries of Canada. Those laws include the power to make law concerning the rights of citizens to regulate businesses, the power to amend the Nisga'a constitution itself, to appoint judges, to police citizens and to impose taxes. The list goes on and on. I believe the legislative powers given to the Nisga'a parliament, which is yet to be established, are unconstitutional because they amount to a diminishment of legislative power by both the federal and provincial governments.
You will hear that this is nothing more than a form of municipal government. It is much more than that. There is no analogy with the municipal illustration. Provinces can always take back or amend powers delegated to cities, but such a change cannot be done to the provisions in the treaty once it becomes law. This is not a case of merely amending the Indian Act, honourable senators. This is a case of trying to use section 35 as a back door to abdicate powers from our two major levels of government. Such an abdication of power was never contemplated by the framers of section 35 of the Constitution.
The point is that a government can do many things by enacting laws. It can act wisely, and it can act foolishly. It can give away vast tracts of land or large amounts of money, and the Constitution of our country will not stand in the way. But the Constitution does not allow a legislature to give away forever its rights to legislate. That is precisely what the legislature of B.C. has done and what the Senate is considering to do today.
If this example is followed in 50 other treaties, a great part of B.C. will no longer be under the legislative jurisdiction of the Province of B.C. or Canada -- forever. I am not the only one who fears this result. Mr. MacDonald -- and it is ironic that Mr. Smith would refer to Mr. MacDonald without knowing he would follow Mr. MacDonald on the witness roster -- a very distinguished member of Parliament for many years and later a member of the B.C. legislature, was the attorney general in the NDP government from 1972 through 1975. He shares my view on the unconstitutional nature of the Nisga'a treaty. We have already heard these words, but I think they are worth repeating. Legislatures cannot abandon forever even one iota of their constitutional powers, says Mr. MacDonald. Never can they do this. Parliaments are omnipotent in all save the power to destroy their own omnipotence. The Nisga'a Final Agreement attempts to destroy the omnipotence of the legislature of the Province of B.C. and the Parliament of Canada.
Would Lucien Bouchard accept the terms of the Nisga'a Final Agreement as the contract between Quebec and Canada? You are probably better able to answer that question than I, honourable senators. Please realize the unprecedented nature of the claim that is being made of senators today. This is the first time in Canadian history that a land claim agreement has ever included self-government. We have 14 self-government agreements in the Yukon, but they are outside the Yukon treaties. They are separate agreements. The reason for that is that the legislatures did not want to constitutionalize the self-government provisions in case some changes had to be made further down the line. What they have done in the Yukon is perfectly constitutional because they have kept the self-government provisions outside the treaty.
If I were before the House of Commons, I would urge you to make many changes to the treaty. Most important, I would ask you to sever from the treaty the self-government provisions in chapter 11 and put them forward as a separate chapter. I realize the Senate may not, practically, be able to contemplate such a serious change to the treaty at this point. I therefore have another suggestion that I will make in my conclusion.
Whatever you decide today, honourable senators, please consider that we are unlikely to act with divine inherency in any bill that we pass, let alone one that, with appendices, covers 700 pages. Legislatures constantly make amendments to their laws, but with the Nisga'a treaty we are simultaneously doing three things that are self-contradictory: We are attempting to make sweeping changes to the way we govern ourselves. We are making the new regime incredibly difficult to change. We are opening ourselves to the high likelihood of passing an illegal document into law.
I realize I will not have persuaded all of you, or maybe any of you, today that the treaty is unconstitutional or even unwise. However, I believe you will all agree with me that there is a large degree of doubt about the validity of this bill. Even if the bill were the wisest and most harmonious way to deal with the claims of Nisga'a citizens and needs of other Canadians, we have a problem. None of us wants to see a law of this magnitude come into force only to find out later that it was invalid from the starting point. I therefore recommend that, if the Senate passes the bill in spite of its flaws, you require its implementation await the earlier of adjudication by the Supreme Court of Canada or April 1, 2003.
I am going to switch back now from the words of Mel Smith to my own. Everyone recognizes that you have a tough decision to make. It will take courage to make it. Let me relate the account of an uncle of mine who also faced a tough decision, another courageous Smith who may provide a helpful illustration. Some of you may have heard of my uncle, who is one of two surviving Canadians who hold the Victoria Cross, our highest award for courage in battle. According to the book Valiant Men, on October 21, 1944, Earnest Smith, better known as "Smokey", stood in a roadside ditch near a river in Italy. He was with one other man, both members of the Seaforth Highlanders. Their task was to protect the bridgehead from enemy advance. Suddenly, a Mark V tank came lumbering down the road sweeping the area with machine gun fire and wounding Private Smith's colleague. At a range of 30 feet, and exposed to full view of the enemy, Smith fired his antitank gun. The bomb stopped the tank whose driver was frantically trying to turn the tank around but could not. Immediately, 10 enemy infantrymen tumbled off the back of the tank, charging Smith with machine gun pistols and grenades. Without hesitation, he moved into the centre of the road, shot down four with his Tommy gun and dispersed the rest. A second tank opened fire from a safe distance and more grenadiers came closing in on Smith. However, the intrepid Highlander dispersed the second threat just as steadfastly as the first. Replenishing ammunition from his wounded colleague, Smith continued to protect him and the bridgehead with a machine gun until the enemy gave up and withdrew in disorder. Smith and three others doggedly defended the bridgehead position for three days until they were relieved by reinforcements.
Today, honourable senators, we are not asking to you put your life on the line, or even to repel an enemy tank. We do implore to you consider the threat to our Constitution and to our country. If either Smith were here today, I know he would ask you to take a stand at the bridge.
Senator Sibbeston: Mr. Chairman, I must admit that after about 5 or 10 minutes I quit listening to the witness because, frankly, I am so insulted by his comments and with the attitude that he presents to us. It is possible that the Canadian Charter of Rights, technically, may not apply to the Nisga'a, but how do you know? How can you say publicly that the Nisga'a will not conduct themselves in such a way that they will respect the rights of people? You make such an assumption. Nothing could be further from the truth. I find the Nisga'a people, in my short time of knowing them, to be so patient. They have waited over 100 years to be at this table and get themselves a land claim. You and people like you want to tear it down. I just find what you have said so insulting and demeaning. You are sour and bitter and negative. You portray a picture of hopelessness --
Senator Tkachuk: A point of order.
Senator Sibbeston: They must take account for what they say. I have a right to say what I feel.
The Chairman: Let me act as Chair and say that the point of order is well taken. The witness has given his views and I do not think that contradiction is justified.
Senator Sibbeston: Mr. Chairman, are you saying that as a senator I am not able to express my feelings and views that I feel as a result of a witness who has come here?
The Chairman: I am saying that whether you are right or wrong in what you say, your words approach abuse of the witness. That is what I am saying.
Senator Sibbeston: He is abusing native people. He is speaking of native people as if we were creating a Berlin Wall. How much worse could his description of native people be?
The Chairman: Senator Sibbeston, you are out of order. I am moving to Senator St. Germain.
Mr. Weston: Mr. Chairman, I think this point is one that has to be addressed, and if you do not mind, I should like to address it. I think you are absolutely right. I think we do not know the answers to these questions. Some people think one thing and some people think the other.
What a shame it will be if, after 100 years of negotiation, we take a law that is invalid from the beginning, pass it into law, and then have to take it apart slowly when we have a very speedy way to deal with that. All I am saying is that, right or wrong, we should erase the uncertainty for the benefit of Nisga'a people, for other aboriginals and for people from coast to coast. That is all I am saying.
The Chairman: You have said that most eloquently tonight.
Senator St. Germain: I should like to thank the witness for coming. I would have hoped -- I am not casting aspersions, but the chairman and I agreed not to travel with these Senate hearings because we wanted them to be held under what we consider a thoughtful, civil scenario. It is in that spirit that we would like to continue with these hearings here tonight. I know that the man you speak for has become very controversial, and it is very unfortunate that we have turned this into a situation as opposed to a discussion over the validity of our Constitution. Possibly it has turned into a situation of racism and the problems in British Columbia. It is certainly not in that spirit that I want to conduct these hearings.
These hearings impact on overlap, which is something that you have not spoken about in regards to other natives. It is very important and something that will have to be dealt with.
You are questioning the constitutional aspect of the bill, and I asked Mr. MacDonald the same question basically. Are you of the same opinion that that particular section that Mr. MacDonald quoted in regards to where the agreement says that the Nisga'a must live by the rules and must live by our Constitution and Charter of Rights is put into question by the terminology in the agreement?
Mr. Weston: There is at least a high degree of uncertainty. It is hard for me to respond on behalf of someone like Mr. Smith, who is an eminent authority, but I will do my best. I know if Mr. Smith were here he would say that at minimum the issue is shrouded in uncertainty, and no one in the room can answer the question.
The question must go to the Supreme Court of Canada. It will go there sooner or later. The suggestion seems eminently pragmatic that we submit to the court an agreement that has taken so many resources and has raised expectations from coast to coast. I cannot think of a good reason not to do so. There was such a reference made when Mr. Trudeau sought to bring the Constitution back to Canada. There was a reference more recently under Mr. Chrétien. There is a conservation of resources reason to do that so that everyone can march forward on the certainty that we have something that not only has been agreed to politically by all the parties but has received a blessing from the supreme court of the country.
I think to debate the fine issue may marginally increase our understanding, but the fact is that there is contradictory language. Even the most adamant supporters on one side or the other must agree that there is a high level of uncertainty there.
Senator Grafstein: This is a very attractive proposal, but it is inconsistent with your argument. Mr. MacDonald made the same argument. He said that in this agreement, two parliaments have abdicated their responsibilities. They have abandoned power. Your very attractive proposal is that the Senate should abandon its constitutional responsibilities to satisfy itself that this piece of legislation is constitutionally appropriate. That is what I have been wrestling with since I sat as a non-voting member of this committee: to deal with my parliamentary responsibilities, which are to come to grips with this legislation and decide whether or not it is constitutionally appropriate. I am not about to abdicate my responsibility to judges, just as I would not expect judges to try to interfere unreasonably or unduly with the parliamentary process.
Therefore, Mr. Chairman, I should like that we not deal with this proposal. It is alluring, but get it off your desk and deal with the political issues. Maybe the public will accept a Supreme Court decision as opposed to Parliament, but we are here still. We are not functus officio yet. We have to deal with this issue. I should like to come back to it if I could. With your concurrence, Mr. Chairman, I want to ask a question or two.
The Chairman: Yes, a question or two but very pointed.
Senator Grafstein: I am trying in a way to be my own devil's advocate here. Professor Sanders said, and we heard from a colleague who made the same argument in a different way, that the rights of aboriginals predated the Constitution of 1867. There are inherent, pre-existing rights. The royal prerogative was not pre-empted, but was diluted somewhat by the pre-existing agreements, the Quebec Act, the earlier acts. We have heard it all. The evidence is there.
We must to look at this set of rights under section 35 and section 25 and see whether or not we can round the circle, which is inherent rights, pre-existing, pre-royal prerogative and still be consistent with the Constitution. There is a huge conundrum in the Constitution dealing with section 25 and section 35 because they said aboriginal rights are yet to be defined. We have two democratic legislatures -- the legislature of the Province of British Columbia and the other chamber -- who have concluded that these are aboriginal rights that should be encapsulated in this very complex arrangement. I take it for myself that this does not necessarily mean that all of these other negotiations will take the same route. It may very well be that this will be tested in the courts, and then different conclusions may arise.
How do you deal with the fundamental issue that my colleague put that this is a pre-existing, pre-1867 inherent right and that section 35 and section 25 only give some flesh to this as best they can with this imperfect arrangement under the Charter? How do we deal with that? He has made his argument, but how do we respond to that?
The Chairman: The witness will try to answer the question.
Mr. Weston: I read a transcript yesterday of testimony given by the same Professor Sanders and Melvin Smith together in November 1999 at the Empress Hotel in Victoria. It is unfortunate that they are not both in the room. They could agree that these issues have not been tested by the courts. First, there has never been something like this before, so we are dealing with a new animal. Second, there is therefore a high degree of uncertainty involved.
Professor Sanders says that there is a theory of law and government that predates our Constitution and therefore there are really three parties to the Constitution, something we had not considered before, at least before section 35 came into our Constitution. That is arguable. The problem is that we have two possible avenues. One avenue is that we can get our opinion from the court, which will ultimately decide this now, or we pass it. We have heard from Mr. MacDonald how difficult it will be to make references to the Supreme Court afterwards, because the federal government and the provincial government have somehow fettered their own ability to support a challenge. That means that Joe citizen has to be able to afford the challenge to get up to the Supreme Court of Canada on a section by section challenge rather than getting the whole bill put before the Supreme Court of Canada for consideration of these very weighty, profound issues that will affect our great, great grandchildren.
Senator Grafstein: Is it fair to say that you and Mr. MacDonald would be satisfied if there were an amendment that, in effect, said that the federal and provincial governments had not fettered their discretion by this agreement and that the division of powers is sacrosanct? Would another alternative be to follow the American experience that allows self-government, allows a model of policing and allows a model of court adjudication and yet keeps Congress free, at any time, politically if it chooses to do so, to intervene? Is that a suitable alternative for us?
Mr. Weston: Could you restate the question?
The Chairman: Actually, I should like to turn to Senator Andreychuk because the question asks for an opinion, but the witness is not an expert on American aboriginal law, unless he tells us he wants to be considered so.
Mr. Weston: I will be glad to duck that one.
Senator Andreychuk: First, I want to apologize for the way that this hearing has been conducted in your presence and I thank the Chair for intervening at the appropriate time. Since I started to study this, I have been impressed that the Nisga'a people are well and capable and have done an excellent job of putting forward their position and negotiating for themselves. They do not need the protections that appeared to be coming forward in this committee. I believe that the Nisga'a have negotiated in good faith with both the federal and the provincial governments, and I think that your comments and Mr. Smith's comments have been raised in good faith. Would it allay your fears if all three parties issued a joint undertaking by letter or otherwise, because we have gone so far down on the agreement, to state exactly what your concern is? Such a letter would indicate that they do not intend to violate the Charter of Rights and Freedoms and that they intend to be subject to it. Would that go a long way to allay your fears? What other legal point would you cover in such an undertaking?
Mr. Weston: I became interested in this when I returned two years ago from Asia, where I had spent many years. I now have two children, aged one and two. As I started to read the newspaper clippings of what was happening, I asked myself what would happen if these provisions were in place when my grandchildren are alive and when their grandchildren are. We are amending a document that is meant to be the basic law that will govern not only ourselves but people who come many years after us. It will also be a blueprint for other treaties that are entered into in British Columbia and perhaps treaties from coast to coast that are renegotiated in the years to come.
It is not the individuals who are at the table that concern me. We hear nothing but good reports about the good faith of the Nisga'a people. That is not an issue on the table. If anything, we can say they have inspired Canadians to be more patriotic by their following of the rule of law and their sincere efforts to make this a better place. I think everyone applauds that.
The issue is that we are changing a Constitution and it is our governing law. We cannot tell what the people will be like who come after us, those who have to operate under the governing law. That is why people who are thinking not six months ahead but 60 years or 600 hundred years ahead really want to make sure that we set out on the right foot.
Senator Andreychuk: If this went to the Supreme Court and they upheld this agreement, would you be satisfied and prepared to live positively with this agreement?
Mr. Weston: I would be much happier, because I would know that at least we had been given instructions from the highest court of the land and we would know the playing field upon which we are all to play. Whether we were foreign investors thinking about coming to do business here or simply citizens of Canada, we would know that this was how we were to proceed. The rest of the 50 agreements could be much more clearly negotiated.
The Chairman: Thank you, Mr. Weston. You have performed under difficult circumstances; it is always difficult to present someone else's brief and someone else's arguments. I am sure you know Mr. Smith's mind quite well and we thank you for appearing.
I should like to call on Mr. Bell-Irving, who is a native of British Columbia, if I can use that phrase, and has spent his business career there. Senator Grafstein will want you to give some additional details of yourself, Mr. Bell-Irving.
Mr. Harry Bell-Irving, Director, Citizen's Voice on Native Claims: Honourable senators, I am a native of British Columbia. I was born there, as were my parents and one of my four grandparents. I have practised law in Vancouver for over 50 years, but I have not ever worked in the constitutional field. I do not, therefore, make any claim to be a constitutional lawyer. Notwithstanding that, I will make statements in my paper relating to constitutional matters, because I have a legal background and I think the constitutional matters before us today are very important.
I concur with what Mr. MacDonald said and I also concur with Mr. Smith's remarks. I will try to deal quickly with the parts of my paper that duplicate what they said, and I should like you to know that, in the preparation of my paper, I did not know what either of those men would be saying. What I say in my paper is entirely my own.
I do appear as a director of Citizen's Voice on Native Claims, a federally incorporated company that came into existence shortly after the Nisga'a Agreement-in-Principle was tabled. Its prime purpose was to disseminate information to British Columbians and, to a degree, to all Canadians. We were, however, primarily interested in informing British Columbians on the treaty in an attempt to improve it. I acknowledge that we, as a group, were unanimously gravely concerned about many aspects of the treaty.
Bill C-9, to give effect to the Nisga'a Final Agreement, is, I believe, with the possible exception of the declaration of war in 1939, the most important legislation to come before the Senate in my lifetime. If enacted in its present form, the Nisga'a agreement will have a profound effect on every Canadian living in British Columbia. It will also have a profound effect on all Canadians, because aboriginals throughout Canada will seek to get as good or better a position for their band as is granted to the Nisga'a, particularly with respect to the rights of self-government.
While I have serious concerns regarding numerous important provisions of the Nisga'a agreement, I will in this presentation limit my comments to two matters: to chapter 11 of the Nisga'a agreement, which sets out the self-government rights, and to the manner in which the Nisga'a agreement has been negotiated and the conduct of the British Columbia and federal governments in passing or seeking to pass the agreement into law.
I heard Mr. MacDonald say that he would probably not be here if not for chapter 11. I am in the same position. That is the part of the agreement that causes me concern.
The Nisga'a have been given provincial- and federal-like powers to govern in a great many areas of law. In 14 different instances, chapter 11 of the Nisga'a agreement provides that in the event of an inconsistency or conflict between the Nisga'a law and a federal or provincial law, the Nisga'a law will prevail to the extent of the inconsistency or conflict.
To this point in our history, all legislative powers have rested exclusively in one or other of the federal government or the provincial governments. Under the Nisga'a agreement, in certain instances paramount powers will reside in a new third order of government: the Nisga'a government. How can the federal government continue to say it is sovereign? What will happen when 60 or more other aboriginal bands in British Columbia have been granted the paramount powers granted to the Nisga'a? What will the federal government say to aboriginal bands across Canada when they demand the same rights of self-government for themselves?
Chapter 11 of the Nisga'a Final Agreement provides for a Nisga'a constitution and Nisga'a citizenship and that only Nisga'a citizens can vote for the Nisga'a agreement. This clearly establishes a right to vote based on race. How can this racially based right to vote or, put the other way, the denial of the right to vote because you do not belong to the right race, be reconciled with the concept that all Canadians are equal? Is British Columbia to be balkanized so that there will be 60 or more areas within the province, some of them possibly many thousands of square miles, where 99.9 per cent of the people living in British Columbia cannot vote? Will this balkanization spread across Canada?
Paragraph 30 of chapter 11 of the Nisga'a agreement provides that in certain circumstances British Columbia will consult with the Nisga'a government before amending provincial laws. For practical purposes, that provision constitutes a further derogation of the powers of the British Columbia government and, if nothing else, will result in substantial additional bureaucracy at the provincial level and in delays in the enactment of provincial laws governing British Columbia.
Considering that there may well be 60 or more agreements with other aboriginal bands in British Columbia, will it be possible for the British Columbia government to continue to operate effectively and on a timely basis?
The Nisga'a agreement is in part in settlement of land claims and, accordingly, will be entrenched as part of the Constitution of Canada and, therefore, can only be amended pursuant to the constitutional process. The agreement provides that there can be no amendment without the consent of the Nisga'a. Accordingly, the Nisga'a could defy the wishes of the rest of Canada. Surely that is a significant derogation of the sovereignty of Canada and does not make sense.
In any event, it is only common sense to have an initial trial period of perhaps 10 years, giving Canada and British Columbia the power to make amendments where needed. That can be accomplished by moving the self-government rights to a separate agreement as has been the case in every treaty entered into by the Government of Canada to date.
Senator Joan Fraser, in a recent article published in the National Post, noted that last year the Senate proposed 55 amendments to Commons bills and also noted that it was The Financial Post that said, in 1998, that in recent years, the upper chamber has done a better job than opposition parties in improving legislation. Its committees, where the real work is done, have for years made a valuable contribution to the shaping of federal public policy. What better place to protect the interests and rights of citizens of Canada with respect to Bill C-9?
Keeping in mind the speeches made before the Senate by the Honourable Senator Austin and Minister Nault, I think it important that this committee hear from representatives of the majority of British Columbians. The polls have shown that the majority of British Columbians do not approve the Nisga'a agreement in its present form. The polls also show that the majority of British Columbians do approve of entering into treaties and being generous. I include myself in that majority, as I think did Alex MacDonald.
It is my understanding that prior to the introduction of the Nisga'a Agreement-in-Principle, the governments of Canada and British Columbia took the position that there would be no settlement of land claims until overlapping claims of adjoining aboriginal bands were solved. When or why this fell off the table I do not know, but it was an important and sensible position and its abandonment will come back to haunt us. I mention this because it has direct application to the Nisga'a, as I will note later in my submission.
The following is a summary of the atmosphere in British Columbia in which the Nisga'a agreement has been negotiated and passed through the British Columbia legislature and the House of Commons. In February 1996, the Nisga'a Agreement-in-Principle was signed and made available to the public. That was the first opportunity the people of British Columbia had to see the agreement, even though the negotiations had been going on for years. Regrettably, the negotiations had always been in secret and, also regrettably, the people of British Columbia had never been consulted on what should be in the agreement. In the period immediately following this signing, spokesmen on behalf of the federal government, the British Columbia government and the Nisga'a Tribal Council made it clear that there was very little room for change.
When concerned British Columbians requested a referendum to approve the agreement, the premier said no. When it was pointed out that there had been no consultation by the B.C. government with the people of British Columbia on what the people considered fair or, more important, on what British Columbians considered reasonable parameters for settling aboriginal claims generally, it was brushed aside as being unnecessary.
When it was pointed out to the premier that the Nisga'a would have to have a vote, their referendum to approve the agreement, and when the people of British Columbia pressed for their vote or referendum, the premier again said no; he said that it was too complicated for a referendum. When it was pointed out that the Constitutional Amendment Act of British Columbia provides that the government must not introduce a motion for a resolution of the legislative assembly authorizing an amendment to the Constitution of Canada unless a referendum had first been conducted under the Referendum Act with respect to the subject matter of that resolution, the premier said that the Nisga'a agreement did not amount to an amendment to the Constitution of Canada so there was no need for a referendum.
The three parties to the agreement continued to negotiate from February 1996 until August 1998 when the Nisga'a agreement in final form was initialled by the parties. Those negotiations were conducted in secret and the people of British Columbia were, for all practical purposes, excluded. There was a commitment by the B.C. government to release the agreement chapter by chapter as the chapters were finalized, but that did not happen, except with a few chapters at the very end. In answer to the pleadings of various organizations, including the official opposition in the legislature, the premier promised to release the chapter on Nisga'a government in advance of tabling the final agreement in the legislature. Of course, the premier did not keep that promise. In the British Columbia legislature, it was made clear by the NDP that no amendment would be permitted and, indeed, a form of closure was introduced to cut off debate.
Throughout the whole period, the federal and B.C. governments continued to misrepresent the agreement in a number of material aspects, the two most important misrepresentations being that the self-government powers granted to the Nisga'a were similar to local or municipal powers and that the agreement would create certainty.
The Prime Minister was asked to permit a free vote in the House of Commons on the Nisga'a agreement but refused, saying it is too important a matter for a free vote. Is it too cynical to ask the question: Are we to be grateful to the Prime Minister for saving us from the Liberal caucus, who apparently cannot be trusted to vote the right way?
In his presentation to this committee on February 16, 2000, Minister Nault said:
If I have one overwhelming concern about the public debate on the treaty to date, it is the amount of misinformation that exists. As you well know, the treaty arrangements are complex and, unfortunately, some critics have deliberately misrepresented the facts when discussing its implications.
I should like to challenge the word "deliberately". I have been accused in my work in British Columbia of misrepresenting and being a scaremonger. If I did misrepresent, it was not intentional, and it was certainly not deliberate. If I did, it was only because, after very careful work, I had apparently made a mistake. I have never had any representation in the writings of our organization or any statement that I have made corrected.
Minister Nault, in his submission to this committee, said this treaty
...ensures the application of all federal and provincial laws within the settlement area.
Considering that the Nisga'a agreement grants paramountcy to the Nisga'a government in 14 different areas of law-making, how can the minister make this extraordinary statement? Surely the Nisga'a agreement ensures that, in many important instances, federal and provincial laws need not apply. Does the minister really believe what he said? Is his statement misleading? I think it is misleading.
Minister Nault, in his submission to the committee, said:
This agreement, and its self-government provisions, were designed to meet the needs of those whom it may affect. The great majority of Nisga'a law-making powers will affect only the Nisga'a themselves, or their lands, assets, language, and culture.
Then the key words:
This is self-government and an appropriate form of local government.
To my knowledge, 100 per cent of the law-making powers of local government in Canada are delegated from either the Government of Canada or a provincial government, which means that the powers of the local government can be amended or even withdrawn. That is not the case with many important powers granted to the Nisga'a government. No local government anywhere in Canada has a constitution that entitles it to confer citizenship on the basis of qualifications of its choosing and to restrict the right to vote to those who meet such qualifications. No local government anywhere in Canada has direct free access to significant natural resources. Does the minister really think that the Nisga'a government is fairly described as "local government"? Is his statement misleading? I think it is misleading.
Tom Molloy, the chief federal negotiator, says that the Nisga'a agreement has been negotiated in good faith and that it is too late to try to change it now. The Department of Indian and Northern Affairs, which negotiated for the federal government, is in a fiduciary position with respect to aboriginals and accordingly is in a position of conflict of interest with respect to what I sometimes refer to as the 95 per cent minority -- that is, the 95 per cent of Canadians who are not aboriginals. I submit that in the practical, common-sense application of the word "represent", no one has represented Canadians as a whole and that it is misleading to say the agreement was negotiated in good faith.
Since I am speaking in Ontario, it seems fair to ask: Is the Government of Ontario prepared to cede to aboriginal bands in Ontario powers of self-government like those granted to the Nisga'a? Have the people of Ontario been kept informed, let alone consulted? The same questions must, of course, be asked with respect to all provinces. To my knowledge, neither Ontario nor any other province has been consulted. Have they been dealt with in good faith? I think not.
Both Senator Austin and Minister Nault unequivocally state that the Nisga'a agreement does not amend the Constitution of Canada. Senator Austin quotes evidence given by Professor Monahan. The Monahan opinion is that the Nisga'a agreement does not amount to an amendment to the Constitution of Canada and, furthermore, that if the federal government in the future entered into agreements with aboriginals it could cede paramountcy to aboriginals of other powers without that amounting to an amendment to the Constitution of Canada. It seems to me that the logical extension of the Monahan opinion is that the Government of Canada could gradually cede to aboriginals all of its powers without that amounting to an amendment of the Constitution of Canada.
Highly regarded constitutional experts, notably Melvin H. Smith of British Columbia, but certainly there are others, have expressed the opinion that parts of the Nisga'a agreement do amount to an amendment to the Constitution of Canada. Is it possible that you can add a 252-page agreement, together with hundreds of pages of appendices, to the Constitution of Canada but not have that amount to an amendment to the Constitution? Is it misleading to omit reference to serious doubts that have been raised as to the constitutionality of this agreement? I think the answer is yes.
The supporters of the Nisga'a agreement say that it is democratic, but 99 per cent of Canadians, including aboriginals who are not Nisga'a, will not be able to vote for the Nisga'a government. How can the Nisga'a government be described as democratic? Is it misleading to state that the Nisga'a agreement is democratic? Surely the answer is yes.
The supporters of the Nisga'a agreement say that the Charter of Rights will apply to the Nisga'a agreement but are silent on the fact that constitutional scholars are divided on that point.
I will not read further, because I assume it will be in the record. Am I correct, Mr. Chairman?
The Chairman: Your entire paper will be in the record.
Mr. Bell-Irving: I will not read further on the question of the application of the Charter because my points are similar to the points made by previous witnesses.
The supporters of the Nisga'a agreement say it will create certainty, but there are many sub-agreements yet to be settled in final form and made public, so how do they know? There are at least four lawsuits presently outstanding questioning the constitutionality and other important aspects of the Nisga'a agreement. One of those lawsuits is by the British Columbia Liberal Party, the official opposition in the British Columbia legislature, which received more votes in the last election than the governing NDP. Another is by a neighbouring aboriginal band that claims that much of the land that is given to the Nisga'a is their land and not Nisga'a land. Can anyone seriously doubt that the Nisga'a agreement will be before the courts for decades to come? How can the claim of certainty be made? Is it misleading to make the claim of certainty? Surely the answer is yes.
Why have the federal and the B.C. governments negotiated in secret, denied the Nisga'a agreement will create a new third order of government, denied that any part of it amounts to an amendment to the Constitution of Canada, denied British Columbians any meaningful say in the terms of the agreement, permitted the Nisga'a referendum on the agreement but denied British Columbians an opportunity to approve the agreement by referendum, and rushed and bullied the agreement through the legislature in British Columbia and the House of Commons using closure tactics? I submit that the answer is because they know that a clear majority of British Columbians, and, having in mind the Charlottetown accord, the majority of Canadians, do not approve the present agreement in its present form and on a referendum would vote it down. Is it too cynical to suggest that I can imagine the Prime Minister saying, "Heaven forbid that the will of Canadians prevail and that we have another result like the Charlottetown accord?"
To sum up, the supporters claim that the Nisga'a agreement is democratic, but I cannot vote; that the Nisga'a agreement does not create a third order of government and that the powers granted to the Nisga'a amount only to appropriate local government, but Nisga'a laws will have supremacy over the laws of the Government of Canada and British Columbia in at least 14 instances; that the Nisga'a agreement does not amount to an amendment to the Constitution of Canada, but they acknowledge that it will form part of the Constitution of Canada; that the Nisga'a agreement will create certainty, but, in fact, the only certainty is that there will be the uncertainty of ongoing disputes in the courts indefinitely into the future.
Canadians have a term for this sort of nonsense. We call it a snow job. This snow job has the proportions of a major blizzard. Canadians know that to be caught out in a blizzard can be fatal. The name of the party caught in this blizzard is Canada.
If the Nisga'a agreement in its present form is approved in the Senate and becomes law, the sovereignty of Canada will be significantly diminished. I believe it will be the first step in the breakup of Canada. I also believe that, if the Nisga'a agreement is to be the template for many agreements with aboriginals to follow in British Columbia, then British Columbia will be lost to Canada as an effectively governable and economic province.
I urge the Senate to put the Nisga'a agreement on hold until the constitutional questions have been considered by the courts. Failing that, and at the very least, I urge the Senate to recommend an amendment that would have the effect of removing chapter 11, dealing with self-government, from the Nisga'a agreement and placing it in a separate agreement, thus giving a reasonable time to experience the Nisga'a government in operation. If experience showed that the self-government rights needed amendment, it would be a simple matter to make amendments, and the self-government rights as amended could be written into the Constitution of Canada if it was thought wise at that time.
Senator Beaudoin: Mr. Bell-Irving, you say in the brief that our chairman and the minister state unequivocally that the Nisga'a agreement does not amend the Constitution of Canada.
Mr. Bell-Irving: That is correct.
Senator Beaudoin: It is a simple statute -- very important, of course, but a statute. If that is so, how can we reconcile that with the fact that in 14 areas or 20 areas, the rule of paramountcy is not federal or provincial, the paramountcy is Nisga'a? If that is so, it means that we have the equivalent of a third order of government.
We know that the Supreme Court right now, tonight, at least, has not said that there is a third order of government. We know that some jurists are disagreeing on this. Some say it is inherent in clause 35, and others say no. However, as I said, I have not yet seen any judgment of the Supreme Court saying that we now have a third order of government.
If all this is true, you conclude that the bill is unconstitutional, at least in respect of the paramountcy. Is that what you say?
Mr. Bell-Irving: That is right.
Senator Beaudoin: In those 14 areas?
Mr. Bell-Irving: At least, in respect of that. However, there are other matters in the agreement that I say are unconstitutional.
Senator Beaudoin: Perhaps, but that one is very different from all the others, the paramountcy rule, because this is the first time we have in a statute a paramountcy that is neither federal nor provincial. In the Constitution, so far we have only federal paramountcy in section 95 and provincial paramountcy in section 94.
In view of that, you say that we should ask the Supreme Court to rule on it. The bill is before the Senate. The only authority that may go before the court at this stage is the Government of Canada, the Governor in Council. Obviously, as far as I can see, they are not interested at all in going to the Supreme Court. The bill may be challenged once it is adopted, when it is enacted. We must decide, as my colleague has said. The courts are there but we are here. We are the legislative branch of the state and we must take our responsibility.
What you are requesting is a vote not against the bill, but a vote against that disposition that deals with 14 areas where paramountcy is not federal or provincial. Is that what you are suggesting?
Mr. Bell-Irving: First, it is my understanding that the court would not deal with the matter of constitutionality until either the bill becomes law or there is a reference to the court. My suggestion is that there should be a reference to the court, but the questions of constitutionality would not be limited merely to the 14 instances where paramountcy is given in the self-government chapters.
Other presenters this evening have dealt with very important aspects of potential unconstitutionality and, therefore, invalidity. As I see it, the position that they took, and certainly that I take, is this: Why try to make law something that may not be constitutional? Why not take a reference?
As to the honourable senator on the right, I agree with the other presenters this evening. If the Supreme Court of Canada states that the bill is constitutional, then, while that would surprise me and would not please me, I would accept it. That is the law of the land. That is what, in part, the last half my paper is really directed to. I believe the democratic process has been seriously abused in this matter.
Senator Beaudoin: We will have the opportunity tonight and tomorrow to ask two other experts on the Constitution to comment on this question.
Mr. Bell-Irving: I am sure they will know more than I.
The Chairman: Thank you, Mr. Bell-Irving, for your appearance. Obviously, as you have said, you have buttressed and reinforced the evidence given by Mr. MacDonald and Mr. Weston on behalf of Mr. Smith. It is very much in the same direction. We thank you for your presentation.
I will now call Professor Bruce Ryder and Professor Kent McNeil of Osgoode Hall to come forward. Professor Ryder, please proceed.
Professor Bruce Ryder, Osgoode Hall Law School: Mr. Chairman, it is an honour and a privilege to be part of the Senate's close study of Bill C-9 and the Nisga'a Final Agreement. I thank you for giving me the opportunity to participate in your considerations. I have been teaching, researching and publishing in the area of constitutional law since my appointment to Osgoode Hall Law School in 1987, and I hope I can be of some modest assistance to senators in trying to sort through some of the constitutional issues that have been raised in these hearings.
As you know, the Nisga'a Final Agreement is the culmination of a lengthy process aimed at reconciling the Nisga'a's prior sovereignty and prior occupation of their land with the subsequent assertion of Crown sovereignty. Its provisions, in my view, accomplish this goal in an honourable and just fashion. Moreover, the NFA is consistent with, and indeed advances, the foundational principles of the Canadian Constitution: federalism, democracy, the rule of law, and the protection of minority rights.
Therefore, in my view, rather than being an occasion to dwell in constitutional doubt, I see the NFA as an occasion to celebrate the realization of our historic commitments and our contemporary constitutional aspirations.
In my comments, I should like to focus on two constitutional issues that have been raised before the committee. I would speak to the constitutional status of the Nisga'a Final Agreement and the issue of whether it amounts to an amendment to the Constitution. I would also speak to the application of the Charter and the related issue of the protection of minority rights provided for by the agreement.
As you know, the Nisga'a Final Agreement is a treaty and a land claims agreement for the purposes of section 35 of the Constitution Act, 1982. Therefore, if the ratification process is completed by the passage of Bill C-9, the provisions of the NFA will be constitutionally protected. In the words of section 35(1) of the Constitution Act, 1982, the provisions of the treaty will become "recognized and affirmed." Any government action that is inconsistent with the provisions of the treaty may be declared of no force and effect, pursuant to section 52 of the Constitution Act, 1982.
It has been suggested that the entrenchment of Nisga'a government powers through the treaty process amounts to an amendment to the Canadian Constitution that can be accomplished only by following the amending procedures set out in Part V of the Constitution Act, 1982. This view, in my respectful submission, is erroneous.
Our Constitution, as amended in 1982 and 1983, expressly contemplates the entrenchment of rights through the negotiation of land claims agreements. In other words, the protection of existing treaty rights in section 35(1) is not limited to treaties that were already in existence in 1982. It also embraces treaty rights that have come, or may come, into existence after 1982. Given that the Canadian government has been committed since the mid-1970s to resolving outstanding land claims through the treaty process, it would have made no sense to limit section 35 to historical treaties.
To make this interpretation abundantly clear, section 35 of the Constitution Act, 1982 was amended in 1983. The amendments reflected the agreements reached in the constitutional accord on aboriginal rights signed on March 16, 1983 by representatives of four national aboriginal organizations, by the Government of Canada, by nine provincial governments and two territorial governments. One of the amendments added a new provision, section 35(3), which provides that:
For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
If ratified, the Nisga'a Final Agreement will embody treaty rights that have been acquired by way of land claims agreement in accordance with section 35(3). The Nisga'a rights of self-government, rather than amounting to a constitutional amendment, have been acquired according to the very process contemplated by the constitutional amendments ratified by Canadian governments and representatives of aboriginal peoples in 1982 and 1983.
It is true that the provisions of the NFA will have the effect of altering the degree to which federal and provincial laws will apply to Nisga'a lands and Nisga'a citizens. This is true of all constitutionally entrenched rights and freedoms. They have the effect of limiting the operation of federal and provincial laws to the extent necessary to protect those rights and freedoms.
One feature of the entrenchment of treaty rights in section 35(1) is that the impact of this provision on federal and provincial powers will change over time as new treaties are negotiated and ratified. The same could be said, for example, of the impact of the minority language education rights in section 23 of the Charter of Rights and Freedoms. The impact of this provision on provincial jurisdiction to pass laws in relation to education will change over time since the right to have separate educational facilities in section 23 exists only where the number of children so warrants. Nobody would suggest that the Constitution has been amended when the number of children in a particular locale reaches that threshold. Nor is the Constitution amended when new treaty rights are entrenched in section 35(1).
The NFA does not amend the division of powers between the federal and provincial governments set out in the Constitution Act, 1867. The federal and British Columbia governments' jurisdiction to make laws in relation to subject matters listed in sections 91 and 92 of the 1867 act are not affected. The NFA explicitly provides that this agreement does not alter the Constitution of Canada, including the distribution of powers between Canada and B.C.
As I mentioned, the provisions of the NFA will alter, compared to the current situation, the degree to which validly enacted federal and provincial laws can apply to Nisga'a lands and Nisga'a citizens. The application of the Indian Act, including the tax exemption set out in section 87, will be phased out. B.C. legislation dealing with the division of matrimonial property, which currently is inapplicable to immovable property on Indian reserves, will now apply to Nisga'a lands and Nisga'a citizens. The federal and British Columbia governments will continue to have jurisdiction to pass laws within the respective spheres of constitutional jurisdiction. Subject to the terms of the treaty, validly enacted federal and provincial laws will continue to apply to Nisga'a lands and Nisga'a citizens. The Nisga'a government will have no exclusive law-making powers. Rather, it will have concurrent or shared jurisdiction with the federal and British Columbia governments to pass laws in the range of subject matters stipulated by the NFA. With respect to some subject matters of primarily local or internal concern, such as Nisga'a government, citizenship, culture and language, and property, federal and B.C. laws will be rendered inoperative to the extent that they conflict with Nisga'a law.
If ratified, the NFA defines and gives explicit constitutional protection to Nisga'a rights of self-government. It is inaccurate, however, to describe the agreement as creating a new constitutional order of government. My colleagues at Osgoode Hall Law School, Dean Peter Hogg and Professor Patrick Monahan, in their presentations before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development on November 23, 1999, took the view that there is very little doubt that the Supreme Court of Canada will recognize that aboriginal self-government is already protected by section 35(1) of the Constitution Act, 1982. I share this view.
Although the Supreme Court, as has been mentioned in these hearings, has not yet authoritatively decided the question, the statements it has made in its rulings on the meaning of aboriginal rights recognized and affirmed by section 35(1) point very clearly in this direction.
The court has stated that aboriginal rights include any practices, customs or traditions integral to the distinctive culture of an aboriginal nation at the time of contact with European settlers that have not since been fully extinguished by the clear and plain intention of the Crown. Since aboriginal nations constituted organized societies with their own traditions of governance at the time of contact with European settlers, and since the Crown has not demonstrated a clear and plain intention to completely extinguish those traditions of governance, rights of self-government are existing aboriginal rights for the purposes of section 35(1).
The court has held, in the Delgamuukw case, that unextinguished aboriginal title is protected by section 35(1) and is composed of a right to the exclusive use and occupation of land. The right is held communally by all members of an aboriginal nation and, as the court stated in Delgamuukw, "decisions with respect to that land are also made by that community." In other words, implicit within the court's definition of aboriginal title appears to be a right of collective governance -- that is a right of self-government -- with respect to the use and occupation of lands subject to unextinguished aboriginal title.
Senators may know that the Supreme Court of Canada has twice had the opportunity to issue an authoritative ruling on whether rights of self-government are already protected by section 35(1). In its decisions in Pamajewon and Delgamuukw, it expressly declined to do so on the grounds that the claims were framed in excessively general terms.
As a result, the court said that it was beyond its institutional competence to address all of the complex issues raised by such general claims. Instead, the Supreme Court of Canada and other courts have repeatedly indicated that these issues are best addressed comprehensively through treaty negotiations. The only other option is to have specific aspects of an aboriginal nation's rights of self-government addressed piecemeal by the courts in litigation.
It is clear that the Nisga'a nation and the governments of Canada and British Columbia have made the right choice in reaching agreement on the NFA. It does not create a new order of constitutional government; rather, it transforms the uncertain content of Nisga'a rights of self-government, already included within section 35(1)'s protection of aboriginal rights, and transforms them into treaty rights that have been defined in an explicit and detailed manner through the consent of the parties.
I should like to take a few moments, Mr. Chairman, to address the Charter issue. As you know, the treaty expressly provides, in paragraph 9 of chapter 2, that:
The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement.
In other words, the treaty, by reference, incorporates the body of Charter law into the treaty and makes it applicable to the exercise of Nisga'a governmental authority. The reference to the free and democratic nature of Nisga'a government ensures that Charter rights and freedoms are guaranteed in the same way and to the same extent as they are guaranteed to Canadians by section 1 of the Charter in our relationships with federal and provincial governments. It means, for example, that the burden is placed on the Nisga'a government to demonstrably justify any violation of Charter rights or freedoms pursuant to section 1 of the Charter.
It has been suggested by some that the provision of the NFA that provides for the application of the Charter, which seems clear enough on its face, is rendered ineffective or illusory by section 25 of the Charter, which provides that:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada...
The argument that some have made is that paragraph 9 of chapter 2, despite its apparent clarity on this issue, will not be effective in making the Charter applicable to Nisga'a government because the Charter cannot be construed in a manner that will derogate from the powers of Nisga'a government set out in the treaty.
With all due respect, this argument is legally unsound. It is true that the Charter cannot be construed in a manner that will derogate from the treaty rights set out in the NFA. Thus, for example, section 25 means that the Canadian courts will not declare invalid the treaty provisions conferring law-making powers on the Nisga'a government on the grounds that they discriminate on the basis of national or ethnic origin contrary to section 15 of the Charter, because to accept such an argument would derogate from the treaty rights given to the Nisga'a people, contrary to section 25.
However, section 25 does not prevent the Charter from being applied to the exercise of Nisga'a government authority pursuant to the rights set out in the treaty. That is because the treaty rights themselves are defined as the power to exercise Nisga'a governmental authority in a manner consistent with the Charter. It is nonsense, therefore, to say that applying the Charter to the exercise of Nisga'a governmental authority, which pursuant to the treaty must be exercised in conformity with the Charter, amounts to a derogation from the rights set out in the NFA. Rather, this is precisely what the treaty expressly contemplates.
Given, in my view, that paragraph 9 of chapter 2 makes it perfectly clear that the Charter applies to the exercise of Nisga'a governmental authority, the basic human rights and freedoms of all persons are protected by the treaty. Let me address specifically the situation of non-Nisga'a residents on non-Nisga'a lands, which has been raised before the committee.
The NFA provides that all Nisga'a citizens are eligible to vote in Nisga'a elections and to hold office in Nisga'a government. Nisga'a government will be democratically accountable and elections will be held at least every five years. Elections will be held in accordance with the Nisga'a constitution and Nisga'a laws. The treaty does not explicitly confer a right to vote or a right to hold elected office on non-Nisga'a residents. That is perfectly appropriate, in my view, given the complex mix of governmental powers set out in the treaty. Some of these powers operate on a personal as opposed to a territorial basis -- that is, they apply only to Nisga'a citizens -- and some are in relation to matters of purely internal concern.
The interests of non-Nisga'a residents are not affected by the exercise of these laws; therefore, it would be inappropriate to guarantee them a right to vote with respect to all matters of concern to Nisga'a government. At the same time, it is important to emphasize, however, that there is no provision of the treaty, contrary to some suggestions that have been made, that prevents the Nisga'a government from extending the right to vote or the right to hold political office to non-Nisga'a residents.
Paragraphs 19 through 23 of chapter 11 confer certain rights on non-Nisga'a residents, including a right to be consulted on Nisga'a government decisions that directly and significantly affect them, and a right to participate in Nisga'a public institutions where the activities of those institutions directly and significantly affect them. There is nothing in the treaty to prevent Nisga'a government from passing laws that accord greater rights of political participation to non-Nisga'a residents and, indeed, they may well be required to do so by the Charter of Rights and Freedoms.
Recent decisions of the courts dealing with political rights in relation to the operations of band governments under the Indian Act have made it abundantly clear that the courts will use section 15 of the Charter to protect the rights of minorities or vulnerable groups within aboriginal communities. Members of the committee who are not familiar with the recent decision of the Supreme Court of Canada in the Corbiere case will find it instructive reading on this issue. The same will be true here; that is, the courts will interpret the Charter and apply the Charter to the exercise of Nisga'a governmental authority in a way that protects the rights of minorities or vulnerable groups.
Therefore, the concerns that have been raised about minority rights should not lead us to reject the treaty, since the treaty itself contains no provisions that prevent Nisga'a government from taking steps to provide appropriate rights of political participation to non-Nisga'a residents. The treaty gives Nisga'a government the flexibility to devise appropriate solutions tailored to the complex nature of their jurisdiction.
Ultimately, my conclusion on the Charter issue is that it will be the courts who decide whether Nisga'a government powers have been exercised in a manner that provides adequate protection to non-Nisga'a residents rights of political participation.
Professor Kent McNeil, Osgoode Hall Law School: Honourable senators, I have been teaching at Osgoode Hall Law School since 1987. I specialize in the area of aboriginal rights. I teach in that area and practically all my research and writing is in the area of aboriginal rights, including land claims and self-government issues.
I am in general agreement with the observations and remarks of my colleague, Mr. Ryder, so I will not repeat the things that he has already said. I should like to focus, rather, on some specific issues, the first of which involves the negotiation of agreements of this sort, agreements including land rights, self-government rights, and the constitutionality of that. Second, I should like to look at the issue of overlapping claims.
In a number of decisions, but significantly in the Delgamuukw decision in 1997, which, of course, came out of British Columbia involving the Gitxsan and Wet'suwet'en nations, the Supreme Court has been telling the Canadian government and provincial governments that these issues should be settled by negotiation. The Delgamuukw case involved both a land claim and a claim to self-government, and the court did not resolve the issue. It sent the matter back to the trial court. It said, in particular with respect to self-government, that it could not resolve that issue and it sent a very strong message. Quite expressly, the former chief justice, Antonio Lamer, said that these matters should be settled by negotiation. In other words, the courts can give guidance and they can make decisions about what the legal rights are, but the better place to settle these matters is at the negotiating table.
In my opinion, that is exactly what the Nisga'a and the Canadian government and the B.C. government have done. They have been negotiating this agreement for years. It has been a long and hard struggle for them. They have produced an agreement that, in my opinion, is a compromise on all sides. It was a very difficult agreement to reach and this agreement should be respected.
I think the Supreme Court of Canada, if the agreement were brought before it, would respect the agreement. I doubt very much that the Supreme Court would strike down the agreement or the self-government provisions in it when it has given explicit instructions to First Nations and governments in Canada to negotiate these matters. If the Supreme Court were to strike down the self-government provisions, it would be sabotaging the negotiations. We would be in a situation where these matters would have to be litigated in the courts over and over again. Each First Nation would have to litigate its rights to self-government.
The Supreme Court said in the Pamajewon decision in particular, which was decided in 1996, that broad claims of self-government cannot be decided by the courts. The courts must look at self-government issues in terms of specific powers. That means that each First Nation, if it is a matter of litigation, will have to seek self-government powers with respect to every little bit of jurisdiction that it claims. As I said, each First Nation must go through the process because the court has said that these matters are particular to the traditions and the customs and cultures of particular First Nations. On the constitutionality issue, just very broadly, I think the Supreme Court would support the agreement.
I now want to turn to the issue of overlapping claims. I know that quite a bit of concern has been expressed over this issue. In my opinion, the agreement does deal with this issue adequately. It is not clear to me, on the ground, whether there are valid overlapping claims or not. There may well be. I think that arguments have been made and it is really a factual matter that would have to be established one way or the other. The overlapping claims are there and whether they are valid or not is a matter that is to be determined, I think.
The agreement provides for that in chapter 2, paragraphs 33 to 35. Those provisions say, first of all, that the agreement does not affect the rights of other aboriginal peoples in Canada. In fact, it could not. There cannot be an agreement reached between one First Nation and a provincial government and the federal government that would take away constitutional rights of other First Nations.
The fact that the agreement is legislated, or will be legislated into law if the legislation passes, is not, in my opinion, going to affect other aboriginal rights even if the agreement itself did not provide for that, because, once again, those rights are constitutional. They cannot be taken away by ordinary legislation. They can be infringed on by legislation only if it is justifiable under a test that the Supreme Court laid down in Sparrow and other decisions.
The agreement does not affect the rights of other aboriginal peoples; not only that, but the next two sections provide specifically for that. First, they provide that, if a Canadian court decides that another First Nations has aboriginal rights that are in conflict with the agreement, the agreement will give way to the extent that those other rights exist. Second, the agreement also provides that, if another aboriginal nation negotiates an agreement with governments, with the federal and provincial government, that in fact infringe on or in some way are inconsistent with the Nisga'a agreement, the parties to the Nisga'a agreement will return to the table and renegotiate those parts. There is provision in the treaty for contrary court decisions on other aboriginal rights and also for negotiated settlements that will or may be inconsistent with the Nisga'a agreement. There is a mechanism there to resolve those kinds of disputes.
I do not see the overlapping claims issue as being a problem. I see it dealt with in the agreement. I know that arguments have been made that, well, in the past, the federal government as a matter of policy would not negotiate the claims if there were overlaps. In this case, they have negotiated an agreement even though there are overlapping claims. The problem here is that, if overlapping claims must be addressed before any agreements are reached, it could lead to an impasse in certain situations. Basically, it would give one aboriginal nation a veto over land claims brought by neighbours. I do not think that that is appropriate. I think, in practice, it is preferable if agreements can be reached before handing over overlapping claims, but I do not think they should be an impediment that would prevent any First Nation from going ahead with its own agreement. As I said, the provisions in the agreement itself deal very well and adequately with this issue.
The Chairman: Thank you both for your presentations.
Senator Tkachuk: My concern in regard to this bill and this treaty is the question of just exactly what we are getting here. Not being a constitutional lawyer, I may put this in more practical terms than in your learned paper as to what this treaty is and what it is not.
I want to address concurrent power. From what I understand, we have federal power and provincial power. We have all those powers delegated by those institutions to other forms of government -- municipalities; other Indian bands, frankly; the Yukon. What is concurrent power? This is unique and new; it has never been done. What is this? If it is not a delegated power and if sections 91 and 92 have not been given away by the federal or provincial governments, then what is it? What kind of an institution is it and what will we have in this country when they are all done and there are hundreds of them?
Mr. Ryder: On the issue of concurrent power, the appropriate contrast there is concurrent versus exclusive. I do not think it needs to be bundled with the issue of delegated power, which really needs to be compared to the question of whether the powers of self-government are delegated or inherent. They are separate issues and delegated or inherent powers can be either concurrent or exclusive. They are really distinct issues.
Our Constitution, at the moment, is familiar with the idea of both exclusive powers, which is the usual course in sections 91 and 92 of the Constitution Act, but there are also other powers that are concurrent or shared by the federal and provincial governments. We decided here not to take away any power from the federal or provincial powers but to confer concurrent jurisdiction on the Nisga'a nation.
More relevant for the issues that have been raised before the committee, however, is the distinction between inherent powers and delegated powers. There has been a great deal of discussion about how this agreement, by dealing with self-government, is part of the land claim, and entrenching powers is part of the delegated model that characterizes, say, the Sechelt legislation.
That is consistent with our evolving constitutional understanding of the nature of aboriginal self-government. It seems clear to me in the Supreme Court of Canada jurisprudence that the course of an aboriginal right of self-government lies in prior sovereignty and prior occupation of the land by aboriginal peoples. That is their definition of aboriginal rights. Aboriginal rights are not something that is delegated or created by any document enacted by non-aboriginal governments; they are inherent in the distinct history of aboriginal peoples. Not only is the Supreme Court taking that view of aboriginal rights, but the Canadian government has expressed its commitment to viewing self-government powers as inherent as opposed to a creature of federal statute.
The treaty embodies those evolving understandings of the nature of self-government. Frankly, it is not possible to turn back the clock and sit down realistically with First Nations and say, "We are willing to negotiate self-government, but only within the delegated model." The reason for that is the legal understandings have evolved to the point -- and it is primarily the impact of section 35(1) in the jurisprudence -- where we see aboriginal self-government as inherent in their history as the prior occupants of the land in organized societies. Given that that is the evolving and clearly expressed at this point legal understanding, it is not possible. It is not realistic to propose conducting negotiations with First Nations now within a delegated model. It asks them to give up far too much in terms of their current legal entitlements.
Senator Tkachuk: You are saying that in 1867, when they were drawing up the Constitution, lurking in the background was another power. It is almost like another power that they never considered at the time, but in 1983 or 1982 it was considered and it has evolved over the last 18 years into this creature that we now have, called the Nisga'a Final Agreement. You seem to be describing a third order of government here -- that is, another level that we had not considered.
Mr. Ryder: It is appropriate to describe a third order of government. We already have municipal government. When we say a third order, I mean a third order of government that has constitutional status. I did not mean to take issue with other witnesses who have suggested that the treaty gives constitutional protection to a third order of government; that is true. All I meant to suggest was that it is not new in doing so.
Senator Tkachuk: It is new to me and new to most of us.
Mr. Ryder: There are good arguments, but there is still room for debate -- and, senators have been fully exposed to the debate -- that the aboriginal right of self-government is already recognized in section 35(1). Therefore, the treaty is not creating a new order of government but it is giving clear definition to it in the form of treaty rights.
Senator Tkachuk: I have a lot to ask here. As you know, I have kept quiet the whole evening and have not used any time at all, but I have been waiting for this because it bothers me.
If the federal and provincial powers of sections 91 and 92 now lie concurrently within this agreement and within this particular governing body with the permission of the Parliament of Canada and the legislature of B.C., how much section 91 and 92 powers can we slide over to them? That is what you are saying, is it not? That means we can slide all of them, if we want. At one time, the Indians had their own method of defending themselves. They had their own army, had their own courier service, in a way, and they had their own communication system with smoke signals. I do not know how they did it in B.C., but in the Prairies you can see for miles. That could actually all be given away, could it not? Could all the section 91 and section 92 powers be given away as concurrently into this agreement? That is the logical argument that you are leading me to -- namely, that we can secede them all and give them all to the Nisga'a.
Mr. Ryder: As I said at the outset of my presentation, it is important to see this process as being primarily about the reconciliation of the prior sovereignty and prior occupation of Canada by aboriginal peoples, with the assertion of the sovereignty of the Crown. In 1867, because the aboriginal viewpoint was not represented in the negotiations and formulation of the 1867 Constitution Act, we did not take into account the aboriginal perspective. The 1867 act, from the point of view of aboriginal people, says absolutely nothing about their legal rights and entitlements.
What we are trying to do now -- and what we have been trying to do for many years with the 1982 act and the process of treaty making -- is reconcile the assertion of sovereignty that did not take into account the prior sovereignty of aboriginal peoples. We have, in a sense, rediscovered their rights.
Section 35(3) entitles the Crown to enter into treaties with aboriginal peoples and to have those treaty rights become entrenched and limit the powers of federal and provincial governments. It may well be that there are other constitutional principles and other parts of the Constitution that will restrict what governments can agree to in entering treaties with aboriginal peoples.
We do not need to be concerned about the federal government abandoning its powers entirely. What governments are embarking on here is achieving a compromise between federal and provincial powers of government and the self-government rights of aboriginal people.
Senator Tkachuk: Your logic leads me to think that this aboriginal power that has crept into our Constitution has come because in 1867 we did not recognize it. That is to say, it has arrived from somewhere in the past. That is almost an international way of looking at it.
I should like to know whether you think that this applies. In other words, this inherent right comes from some kind of law or some kind of philosophy of law. Perhaps this inherent right is true with respect to the Swedes and the Ukrainians. From where does this all come? Can we do this in the United States or in Australia? Does this inherent right apply everywhere? Does it sort of apply internationally? Is that what this is all about?
Mr. Ryder: That question is so large that, perhaps, I can pass it to my learned colleague Professor McNeil, who has knowledge of the status.
The Chairman: Why do we not do that? I will ask Senator Andreychuk to be patient for a few hours yet.
Mr. McNeil: The inherent right that my colleague has been talking about is rooted in the fact that aboriginal peoples were in North America -- and this includes the United States and Canada -- prior to the arrival of the Europeans. The Supreme Court has been telling us over and over again that that is where aboriginal rights come from.
Ever since the 1830s, the United States' Supreme Court has said that this inherent right includes a right to self-government. It is the sovereignty that the Indian tribes in the United States had prior to the arrival of the Europeans. They retained part of that sovereignty. They retained sovereignty over their own internal affairs. They lost international sovereignty. They no longer can enter into international agreements with Mexico, France or whatever. They are within the United States, but they have inherent sovereign powers that come from the fact that they were sovereign prior to the arrival of the Europeans.
In Canada, we have not reached that point in terms of our jurisprudence. I think the Supreme Court is moving in that direction, but it has thrown it back to the political arena. In other words, the Supreme Court has been hinting at self-government in its decisions, but it has not made a decision in that respect. It has been saying to governments: "Negotiate these things. These are really political questions that should be resolved in that way."
What we see in this agreement is, with all due respect, not really a shift of section 91 or section 92 powers to the Nisga'a. Rather, it is a recognition that the Nisga'a have an inherent right of self-government and that that right is constitutionally protected. It has been thus since 1982. It is necessary to define that right. How will it be defined? It will be defined either by the courts or by governments through negotiations. This agreement is the latter. It is a definition of the aboriginal right, through negotiations.
Senator Andreychuk: I wish to follow up on Senator Tkachuk's point, and I will try to use non-legalistic terminology. I have always taken the Constitution to be a reflection of the ability of a sovereign state to determine how it will govern itself in general ways. Senator Beaudoin has said time and time again that the rights are embedded in the Constitution, either with the province or with the federal government, and anything not contemplated in 1867 is residual with the federal government.
Section 35 has come along and recognizes that, perhaps, our Constitution of 1867 was not a full and complete Constitution. I understand it to that point. Your logic leads me to say that if the sum total of everything is either provincial or federal, and we later recognize that something is aboriginal, then someone has to cede power to the aboriginals. In my opinion, it is either a ceding of jurisdiction out of the Constitution, or we have to come to the conclusion that our Constitution was flawed to start with and, therefore, there has always existed a third level of government.
What you have said does not lead me to say that we need a constitutional change. In the one case, we are saying, "In 1867, we did not put it together, and the people of Canada must resolve, whether they are aboriginal or non-aboriginal, how they will live together with the Constitution." The more simplistic way of looking at it is to say, "If everything was vested into the provinces or the federal government, then what parts are now legitimately in aboriginal hands?" Therefore, the question is whether that is also a constitutional change.
Mr. Ryder: Senator Andreychuk, although it is a very complicated issue, the simple answer is that we made that decision in 1982 and 1983. That is to say, we made a decision to entrench in the Constitution an explicit recognition of aboriginal rights and treaty rights. We made the decision in 1983 to embrace treaty rights that were concluded in the future.
Canadian governments understood that by making that decision they were placing limitations on their own powers that had not previously been recognized, at least in the jurisprudence of Canadian courts. From the aboriginal perspective, however, those limitations on Canadian governments' powers ought to have been recognized because of aboriginal inherent rights of self-government grounded in their prior sovereignty and prior occupation of the land.
I see the crucial step in terms of altering our incomplete constitutional understanding, at least from the perspective of non-aboriginal governments. From the perspective of non-aboriginal drafters of the 1867 act, we have altered our previously incomplete understanding in an attempt to achieve reconciliation of the assertion of Crown sovereignty with the prior sovereignty of aboriginal peoples. We have done so by entrenching in the Constitution aboriginal and treaty rights. This process is exactly what was contemplated by those amendments in 1982 and 1983.
Mr. McNeil: In 1867, sections 91 and 92 affected the division of powers between Parliament and the provincial legislatures. Those were not exclusive powers at that time. For example, the Imperial Parliament retained legislative jurisdiction over Canada in matters generally until 1931 in the Statute of Westminster, and over constitutional matters until 1982, when we got our own amending formula. To regard sections 91 and 92 as an exhaustive distribution of powers is not really accurate in terms of our own constitutional history.
As Professor Ryder has pointed out, at the time aboriginal peoples were not considered. They were not part of the process. Today, and especially since 1982, there is recognition that there was something wrong with that: They were left out and they should not have been left out. Our thinking has changed a great deal over the last 140 years. We are now in a different situation.
The American situation is very similar. They have a constitution, state powers and federal powers in Congress. Yet, 45 years after their constitution was put into place, the Supreme Court said that that does not take away the inherent jurisdiction of the Indian tribes over their own affairs. The United States has not had a problem with a constitution not taking away the inherent jurisdiction of aboriginal peoples within the country. We can learn something from that.
Senator Andreychuk: I should like to return at a later time to the U.S. situation. They do not recognize a third level of government. They have gone their own way. I think that Canada, quite rightly, is exercising its sovereignty differently.
I was simplifying because our Chair told me to do so. I was not avoiding the Imperial powers that were left.
I want to ask a question about the overlap situation. I happen to believe that the court sidestepped or, perhaps, in its wisdom, said, "Since you must live together, negotiate how you can best solve this conundrum of aboriginal rights and non-aboriginal rights." I am concerned that other aboriginals, if they have valid claims, will not get to negotiate in the same way with the federal and provincial governments because it has been agreed that the overlapping areas are to be Nisga'a. If a court or some other process determines that their rights should be taken into account, then there is a methodology here to get to it. However, if full and unfettered negotiation is what the aboriginals should have, I see at least two groups that have been identified to us that have less of an opportunity to come to a just settlement than the Nisga'a have, as a result of moving the Nisga'a forward without the other two.
Mr. McNeil: That is not the way I interpret the agreement. There are actually three provisions dealing with overlapping claims. The first provision says simply that the Nisga'a agreement does not affect the rights of other aboriginal peoples in Canada. The second one deals with the issue of overlapping claims that may be decided by a subsequent court decision. That court decision will override the Nisga'a agreement to the extent that a court finds that there is a valid overlapping claim. There is a third provision, which I think does, in fact, address your concern, and I think it is a valid concern. The third provision provides that, if Canada or British Columbia enters into a treaty or land claims agreement with another aboriginal group in British Columbia and that agreement or treaty adversely affects the Nisga'a agreement, then the parties to the Nisga'a agreement will go back to the table and they will negotiate some kind of compensation or some alternative for the Nisga'a.
In other words, there is a possibility here for a negotiation of an agreement that actually takes away some of the rights that the Nisga'a have in their own agreement. If the parties cannot agree to that, that section of the agreement provides that it will go to the dispute resolution section of the agreement. In other words, if the Nisga'a, Canada and B.C. cannot agree on what the Nisga'a should receive in replacement for what has been negotiated away from them with an agreement with another aboriginal group, then they need to go to binding arbitration or have the issue resolved in court.
Your concern is valid but, on my reading of the agreement, it has really been dealt with.
Senator Andreychuk: My point was that we have been told repeatedly that this negotiation was in good faith from all three parties. If it was, surely the federal government negotiated lands believing that the Nisga'a should have those lands. It would be highly unlikely that the same government could sit down and now believe that they belong to another group. It seems like a negotiation going nowhere.
Senator St. Germain: Are you saying, Professor McNeil, that the final resort is that, if they cannot negotiate and they cannot arbitrate, those native bands that are affected by the overlap will be forced into litigation? Mr. Ryder has quoted Delgamuukw and what have you, and yet he said that non-residents would be forced into litigation if they wanted to enforce their rights under the Charter.
I have told the Nisga'a who are sitting here tonight that there is one issue that bothers me. It is the fact that we are pitting native against native. You have sat here fairly soberly and quietly and tried to dismiss this as nothing, really. The people who are impacted by this, believe me, see it totally differently. Am I correct in assuming that the court of final resort will be litigation at huge costs to these people? They are totally dependent on the federal government, who have negotiated, possibly in good faith, for the funds to enable them to defend their lands or claims, and you say that this is a fair way to proceed?
I am sure you are familiar with the Luuxhon case. I am no lawyer, but I know one thing came out of there. The judge accused the government of sharp dealing and made other references to the fact that the government was not dealing in good faith and predicted a devastating outcome to this whole process if this was not dealt with properly at this time. I ask for your comments in regard to that. I am sure you are familiar with the Luuxhon case much more than I shall ever be.
Mr. McNeil: I think that I did not express myself clearly. The dispute resolution part in this provision applies to the Nisga'a, to the federal government and to the B.C. government. In other words, if Canada and B.C. enter into an agreement with another aboriginal nation that negatively effects the Nisga'a agreement, then the parties to the Nisga'a agreement have to try to negotiate and come up with alternatives. In other words, the Nisga'a who have lost something to the neighbouring aboriginal people are entitled to get something else from the federal or provincial government.
Senator St. Germain: Unless they agree to changing the agreement, the Nisga'a do not have to change the agreement.
Mr. McNeil: The way this section is written, another agreement can override their agreement. They can actually lose rights that they have negotiated if a neighbouring aboriginal people negotiates an agreement that has an adverse effect. They have a remedy. The remedy is that Canada and British Columbia must provide them with an alternative.
Senator St. Germain: I recognize that.
Mr. McNeil: It is at that point that, if the Nisga'a and Canada and B.C. cannot agree on what alternative the Nisga'a should have, the issue goes to compulsory arbitration or to litigation. It is not the land claim.
Senator St. Germain: Arbitration or litigation -- which is it?
Senator Tkachuk: Or compulsory arbitration.
Mr. McNeil: The stage three provision in the dispute resolution chapter provides for one or the other.
Senator St. Germain: Are you aware of the details surrounding the overlap in that area?
Mr. McNeil: I know that there are overlapping claims, and they may be valid. I do not wish to comment on that issue. That is a factual issue rather than a strictly legal one.
The Chairman: Did you wish to comment, Mr. Ryder?
Mr. Ryder: No.
Senator Beaudoin: My question is very short. I listened very carefully; in my opinion, you are saying that this treaty was made after 1982 but that section 35 of the Constitution Act covers treaties made since 1982. Consequently, the treaty is just one treaty among many others under section 35. If that is true, it is protected by the Constitution. Whether it is tantamount to a third order of government or not, it is protected because it comes under section 35. Therefore, the whole discussion is over if your theory is right.
As far as I can see, the Supreme Court has said in many cases that the treaty rights there are those existing in 1982. If you say to me that the Supreme Court is going to include the treaties to come, then I agree with you. Is that what you say?
Mr. Ryder: Precisely, yes. I believe that the amendment in 1983 was enacted precisely to put that question beyond doubt. Of course, from the point of view of the purpose of section 35, it does not make any sense to limit the protection to treaties that were in existence in the past, given that section 35(1) is in response to the problems that arose when treaty protections did not have constitutional status and did not have, therefore, protection from unilateral derogations that were inconsistent with the honour of the Crown. It was an attempt to give constitutional protection to treaties and therefore make the rights in treaties more secure. In that sense, from the point of view of non-aboriginal Canadian governments, it was an effort to say that in the future we will behave in a more honourable way and give some constitutional priority to the treaties. Given that kind of understanding of the rationale and the purpose behind section 35(1), of course it made sense not to restrict it to historical treaties. I believe the 1983 amendment was just in case there is any doubt about that, because the words "existing treaty rights" could be interpreted as "existing as of".
Senator Beaudoin: That is the first time I have heard that argument.
Mr. Ryder: You would agree, would you not, that the language in section 35(3) is quite clear on this point? The section says that existing treaty rights include treaties that have already been concluded and treaty rights that may be so acquired in the future. I have not quoted exactly.
Senator Beaudoin: Yes, acquired in the future. If that is right, it means that the Government of Canada could conclude a treaty with any aboriginal nation at any time and it would be constitutionally protected by section 35. There is no need to amend the Constitution if they can do that. Is that your theory?
Mr. Ryder: That is my theory with respect to the establishment of the rights of aboriginal peoples, yes.
Relating back to Senator Andreychuk's earlier question, it is a mistake to conclude therefore that it is a completely unlimited treaty-making power, because the treaty-making power will be constrained by the other parts of the Constitution and by the Charter of Rights. Since the entering into of treaties is governmental action, it will be constrained by the Charter.
Senator Beaudoin: I should like the court to say that.
Mr. Ryder: I think it would be quite clear in this context of Bill C-9. It will be necessary to ratify the treaty and bring it into legal effect, and that is obviously an act of the federal government that is subject, like other legislation, to the Charter of Rights and Freedoms.
The Chairman: There is not a lawyer in this room who would not like to be on that brief, on one side or the other, before the Supreme Court of Canada.
Senator Beaudoin: I have been briefed.
Senator Grafstein: Everyone views 1982 and 1983 in a different way from their different perspectives. I was around in 1982 and 1983. Frankly, my personal version was that it was clear that land claims were to be dealt with by treaty but the question of self-government and questions like that were somewhat different and distinct. Hence, I assumed that the Royal Commission on Aboriginal Peoples concluded a few years ago that when it came to the governmental aspects, there had to be a constitutional amendment. You have read that. I think it is Volume 3, Governance Provisions. Why did the royal commission come to the conclusion that when we dealt with the third level of government, as opposed to land claims, it required a constitutional amendment, if your "growing tree" theory of the Constitution is correct?
Mr. Ryder: You are referring to the report of the Royal Commission on Aboriginal Peoples?
Senator Grafstein: Yes.
Mr. Ryder: Professor McNeil is probably more familiar with the report than I, but from my understanding of the chapter on governance and their earlier report entitled Partners in Confederation, and perhaps my memory is failing me, I do not recall them saying it was necessary to have a constitutional amendment to give effect. That was the recommendation. They concluded that aboriginal rights of self-government were inherent, and whether or not we explicitly recognize them through a constitutional amendment, they exist because they have not been fully extinguished through the clear and plain intent of the Crown.
Senator Grafstein: I do not want to debate this. Perhaps I should read it again. I concluded that they came to the conclusion, after weighing all the evidence, that for clarity and concision and certainty you needed a constitutional amendment when it came to self-government.
Mr. Ryder: My point is simply that they did not say it was necessary to give legal recognition to it.
Senator Grafstein: Nothing is necessary.
I wish to deal with another aspect that has been of particular interest to me. Your brief is very interesting when it comes to this issue. We have heard the earlier testimony about the Charter and the right to vote. It has been a particular concern of mine. The evidence before the committee is very succinct on this issue. There are somewhere between 80 and 110 non-Nisga'a residents on Nisga'a lands who do not own land. They tend to work on the land as teachers, doctors and the like. We were told that, when this question of their right to vote was explicitly discussed, they could not get concurrence of 70 per cent of their colleagues to agree to provide the vote.
Then I read Corbiere and your quote here and Justice McLachlin's last decision. This affects not the case that I am putting but an easier case, in a way. It is members of a tribe that live off the reservation demanding votes on the reservation. The conclusion was, in the words of Justices McLachlin and Bastarache:
But they present no evidence of efforts deployed or schemes considered and costed, and no argument or authority in support of the conclusion that costs and administrative convenience could justify a complete denial of the constitutional right. Under these circumstances, we must conclude that the violation has not been shown to be demonstrably justified.
I am waiting to hear the Nisga'a come back and deal with this issue. We have been told by the mayor of Terrace that a small number of people would like to have the vote. They are disturbed about this. I can understand them not wanting to make a claim, because they are working there, so it is up to us, the Senate, to deal with minority rights and regional responsibilities and to make the claim where they are not able to do so.
You dismiss this very lightly by saying that the courts will use section 5 to protect the rights. There is no provision in the Nisga'a agreement to provide for appropriate rights, but we have been told now on the evidence that at this moment they have no present intention of giving voting rights to that minority group. You say concerns about minority rights should not lead us to reject the treaty. I am not suggesting that I am about to reject the treaty; I am suggesting that I should like to have satisfaction before we approve the treaty that minority rights will be fully protected, as they are in every other place in Canada. What is your view about that?
Mr. Ryder: I did not mean to suggest that it is a matter that should be taken lightly.
Senator Grafstein: I discussed this with either you or your colleague by telephone one time.
Mr. Ryder: I wanted to address this issue because I think it is a matter of serious concern. I do not think it is appropriate to direct our concern to the treaty provisions about this issue.
I think the simple answer to your question is that non-Nisga'a residents of Nisga'a lands have the exact same rights that the rest of us have pursuant to the Charter of Rights and Freedoms. That is why I think the Corbiere case is very instructive, because what you have there is the Supreme Court of Canada recognizing that the situation of on-reserve status Indians and off-reserve status Indians is very different, in terms of their interest in band government, and therefore they say it is not appropriate to give them the exact same rights. We are not saying that they should have the right to vote on all issues. That would be wrong because it would fail to recognize the fact that they are in a very different position.
I think we can make the same argument about non-Nisga'a residents. It would be wrong to give them a right to vote because their interest in matters within Nisga'a jurisdiction are so very different from the interests of Nisga'a citizens. However, it would also be wrong to completely deny them a right to vote or rights of political participation generally, so there is nothing. This is where it is wrong to focus on the treaty. There is nothing in the treaty that says that non-Nisga'a citizens do not have, or cannot be given, the right to vote or cannot be given rights of political participation. The treaty leaves that issue open to a range of flexible solutions, which is exactly what the Supreme Court of Canada said in the Corbiere case. They said that there is a range of possible solutions that need to be discussed, and if the solutions adopted by Nisga'a government in the future on this issue are considered insufficient by non-Nisga'a residents, they have the right, like all the rest of us, to go to court and argue that the Nisga'a government is violating their equality rights in section 15 of the Charter. In other words, they have the exact same rights as the rest of us.
Senator Grafstein: The problem with that argument is that it requires us, to be fair to our constitutional mandate, to go through the 14 or 16 areas of paramountcy and parse each one, as opposed to the other side of the equation, which would be to grant them voting rights when it is absolutely clear, because of the numbers, that in no way, shape or form, in the foreseeable or any future, those 100 or so non-Nisga'a residents, which rotate from time to time, will jeopardize or prejudice the majoritarian position. I still am in this personal conundrum. Saying that we should leave it to the courts is an argument we keep hearing around here and, again, we are sweating, frankly, trying to provide a treaty, incorporated constitutionally, that has some certainty and will not be ravaged by the courts. You leave me with that conundrum.
The Chairman: Unless you wish to reply, I would consider that a representation.
Mr. Ryder: Just briefly, it is the exact same answer, that ultimately our basic rights and freedoms, including rights of political participation, are protected by the court. It is the same situation for people resident on Nisga'a lands. Ultimately, that is where our faith here, as in other parts of the country, has to lie, on these basic minorities rights that you are concerned with.
Senator Gill: I would like to say something here. We have been discussing a very important question this evening. I think most of the aboriginal people believe that they have rights there. People are not asking for rights. That must be clear. In my opinion, all the aboriginal people in this country are not asking for rights. They believe that they have rights. It was confirmed in the royal proclamation and reconfirmed after that in the patriation of the Constitution; non-native law also confirmed that.
People are looking for a way of dealing, a kind of partnership that they have to find with non-aboriginal people, to have a better relationship. In the patriation and in the 1983 law, it is clear that the government accepted that the aboriginal people have inherent rights. That means prior to everything, including the so-called discovery of this country. It is there. Do you agree?
I am coming back on point you have already raised, but I think it has to be clear. We are making a lot of progress in our discussion today. I am glad about that.
Mr. Ryder: I do agree. That perspective is completely consistent with what I have been trying to say today.
Mr. McNeil: I agree entirely, as well. What we are looking for here is a partnership, a way of building a relationship with aboriginal peoples, so that aboriginal peoples and other Canadians can live in a partnership. It involves much thought; there are important decisions to be made. However, as Professor Ryder pointed out, the decision was made in 1982 to constitutionalize the rights of the aboriginal peoples, to give them the protection they did not have before. We are now dealing with some of those rights through negotiations.
In negotiating agreements, aboriginal peoples are negotiating around what their aboriginal rights are. If the agreements themselves, the rights they receive in these modern-day treaties, if you like, were not constitutionally protected, they would be giving up constitutionally protected aboriginal rights for rights in treaties that are not constitutionally protected. For that reason, the constitutional protection extends to modern agreements of this sort as well as to historic treaties.
The Chairman: I want to thank you both for being here today and for providing your advice and support. As you can tell from the questions, there was a lot of interest in the opinions you gave us.
Our next witness is Mr. Bill Whimney. Welcome, and please proceed.
Mr. Bill Whimney, Committee Chair, Native Affairs, B.C. Wildlife Federation: Mr. Chairman, first, I would like to inform everyone that I am a layperson. I do not have a degree in law. I do not purport to represent the law in any respect, so please be patient with me.
I represent an organization of 35,000 conservationists in the province of British Columbia, comprising 147 composite organizations. The B.C. Wildlife Federation is the largest fish and wildlife conservation organization in British Columbia. My direct involvement in the Nisga'a treaty process, and the B.C. Treaty Commission process, dates back to the provincial third-party advisory committee on aboriginal land claims and continues through the treaty negotiation advisory committee and regional advisory committee to present.
Before looking at the Nisga'a treaty, I should like to give you some background on our interest in treaties. We have been long and willing participants in the process. Approximately 15 years ago, the B.C. Wildlife Federation foresaw the implication of the comprehensive claims issue, as it was known at the time, in terms of fish, wildlife and resource management. We believed that the Indian issue needed resolution, that negotiations were the best route for solution, and that treaties would touch all citizens in one way or another. We also recognized that we had common ground with aboriginal people in our concerns, interests and our traditional use of fish and wildlife resources.
I would like now to present for the record some of our concerns with the Nisga'a treaty. Because our invitation to attend this hearing arrived late, my submission will be neither detailed nor complete, but I hope I can highlight for you some of our most important priorities. I feel confident that our other concerns will have been, or will be, brought forward by other witnesses.
Our organization is guided by the policies adopted at our 1987 annual general meeting, and they are attached. I should like to express our concerns about the Nisga'a treaty in the context of some of the principles stated in our policy.
First, the fisheries and wildlife resources are not to be used as trade-offs in negotiations over land benefits and other resources. Immediately prior to the signing of the Nisga'a AIP, we were apprised of information at the TNAC wildlife committee with respect to fish and wildlife allocations and processes. When the AIP was signed, we were informed that the reason the document was so different from what we were being told in the wildlife committee was that there were trade-offs in the negotiations. We felt that the government did so because of pressing self-imposed timelines and a total lack of defined mandates with respect to fish and wildlife issues. The Nisga'a treaty has done nothing to improve this situation.
Second, the two senior governments, through legislation, will continue to be the final authority on fisheries, wildlife and other resources and for their management and allocation. The Nisga'a treaty states this to be the case repeatedly throughout the text. However, when it comes to management committees, the treaty states that the minister will institute the recommendations of the committee or provide reasons for not acting on them. This is contrary to the indications of the Supreme Court of Canada in R. v. Sparrow, where it stated that the onus of proving a prima facie infringement lies with the individual challenging the legislation. If the minister must justify every divergence between his management decisions and the recommendations of the committee, or if the process is allowed to become convoluted or cumbersome, it will prevent management from being done in a timely or effective fashion. This will adversely affect conservation and interfere with harvest for non-aboriginals. The Nisga'a will have the right to harvest for domestic purposes in any case.
Third, access to use fish and wildlife and outdoor recreation resources must be maintained for all citizens, consistent with the rights of land ownership and the requirements of management.
It appears that the Nisga'a will be allowed to impose fees and conditions on anyone who will harvest fish and wildlife on Nisga'a land. This is an expansion of the authority normally attached to land held in fee simple and has the potential to adversely affect the harvest of non-aboriginals on Nisga'a land.
Fourth, cost-benefit ratios in economic and social terms must be available for all proposals under negotiation. Understanding the cost and benefits to both aboriginals and non-aboriginals is required so that solutions can obtain public support.
We have received no indication that these studies were done prior to the AIP or the treaty. It becomes apparent by the lack of real input into the management of fish and wildlife in the area defined in the treaty that the costs or benefits to other than Nisga'a citizens is secondary to the benefits conferred in the treaty. Nor does there appear to be much protection for the rights of non-aboriginals in the piecemeal fashion in which fish and wildlife will be managed as a result of overlaps in aboriginal traditional territories, treaty land settlements and treaty-established fish and wildlife committees.
Fifth, Indian self-government to the level of municipalities and regional districts is acceptable, but the concept of separate and independent nations is not. The authority and responsibility of the provincial and federal governments must be paramount.
There are so many areas in the treaty where it is stated that, if there is a conflict between the laws of general application and the laws set down by the Nisga'a government, the Nisga'a laws will prevail. This does not happen in municipal or regional district governments; it appears to create a new level of government. This is unacceptable to our organization, as it has the potential to create jurisdictional conflicts with respect to fish and wildlife, and effective management will suffer as a result.
Sixth, third parties must be involved in the process of negotiation. The federal and provincial governments must, as the principles representing all non-aboriginal interests, ensure that non-governmental organizations have an active window to negotiations.
The agreement in principle and the treaty were negotiated in secrecy. Our participation was confined to being asked to comment on the general concepts only, and we were not party to actual information from the negotiations in enough detail to be able to assess the progress of negotiations or the extent of the impact on our interests or rights. Throughout the process, we were prevented from discussion, in any but the vaguest terms the information or discussions we participated in, by the confidentiality agreement that we had to sign just to be involved in the process. The new B.C. treaty process is considerably more open and it is our hope that the results will be more acceptable to all.
Seventh, the B.C. Wildlife Federation does not support the sale or trade of wildlife beyond the current laws of general application. This principle dates back to the late 1800s and the early 1900s, when market hunting almost destroyed the wildlife of Canada and the United States. The Nisga'a Treaty has provisions for it. In pre-contact times, this practice may have a necessary part of Nisga'a life. However, in modern times, with the ability to secure an income in other ways and with modern methods of harvest, we do not believe there is justification to return to this ancient and inappropriate practice.
Eighth, the sale of fish caught under the provisions for domestic -- food, social and ceremonial -- use must not be allowed to be sold. The treaty identifies their domestic harvest as separate and exempt from the normal provisions of the fisheries management protocols. If they are able to sell this fish, there is a potential for abuse in times when allocations are lower than in the other fisheries.
One of most serious problems with the Nisga'a treaty is the lack of certainty. We were told by government from the beginning that the treaties will bring certainty. This may be true at the level of government administration; however, the B.C. Wildlife Federation represents individual citizens and groups with respect to on-the-ground issues and dealing with fish and wildlife. The kind of certainty that our membership requires is that which will allow their interests to be addressed in a simple, effective and understandable fashion. They also require real opportunities to participate in the management of those resources as stakeholders and not just observers.
The migratory nature of the resource makes it imperative that management be done on a regional or watershed basis. Overlapping or conflicting jurisdictions, overlapping aboriginal management committees, or the exclusion of real participation by non-aboriginal organizations are the components of a recipe for disaster and discontent.
The effectiveness of any treaty or agreement is in its implementation. It will be very difficult to implement the fish and wildlife provisions of the Nisga'a treaty due to the potential for misinterpretation of the intent of those provisions in the treaty.
Throughout the process, as is well-evidenced in the minutes of the treaty negotiation advisory committee meetings, we called for a definition of terms we felt were important to understanding the issues. At the TNAC wildlife committee, we spent over six months developing a definition of "conservation", a very important and oft-used term. Another expression is "significant risk." These terms are used extensively in the treaty but do not appear in the definition section. It has been suggested that treaties are never contested in court, but their interpretations are. In the absence of these definitions, it will be impossible to interpret the fish and wildlife provisions of the treaty or the role of minister, the Nisga'a or third parties. Our definition can be found in the material attached to this brief.
Participation by non-Nisga'a people on the wildlife committee board will be hampered by the fact that Nisga'a participants will receive $20,000 annually, plus expenses for their participation, whereas non-Nisga'a participants will receive nothing and must cover their own costs. Combine this with the fact that wildlife management is effectively being moved from the regional and provincial wildlife offices to locations that are less central; one could get the feeling of being excluded. This, combined with the lack of progress toward the institution of the committees and the apparent conflicts already developing as a result of overlapping aboriginal use of the resource and some question of priority use on the part of various stakeholders, is already causing us to have grave doubts.
An interesting thing to note about the Nisga'a treaty is that all through the negotiation process we were told that the reasons for a negotiation climate that seemed to favour aboriginal rights over and sometimes to the exclusion of non-aboriginals was the interpretation of aboriginal litigation. It is important to note that the Supreme Court of Canada in R. v. Marshall, in November 17, 1999, in reference to a motion for rehearing and stay, indicated in reasons for judgment that the governments have, as a result of misinterpreting previous judgments, wrongly ignored the rights of non-aboriginals. We feel that misinterpretation led to unreasonable expectations on the part of aboriginals and provided the motivation for governments to hold the rights, interests and concerns of non-aboriginal stakeholders to be inconsequential. This might explain why so many of our recommendations are absent from this treaty and the degree of disharmony it seems to generate.
We believe that the purpose of the Nisga'a Treaty is to address the inadequacies in the relationship between aboriginal and non-aboriginal citizens and communities and to aid in developing a harmonious relationship between the communities while respecting the rights of all British Columbians. However, the concerns expressed here, if not otherwise addressed, may prove to be obstacles to that very important goal.
Senator Chalifoux: I have before me an interpretation of the treaties regarding fisheries and wildlife management. It says here that the Minister of Fisheries and Oceans and the province will retain responsibility for conservation and management of the fisheries and fish habitat according to their respective jurisdictions. In addition, the Nisga'a government may make laws to manage the Nisga'a harvest if those laws are consistent with the Nisga'a annual fishing plan approved by the minister.
I am hearing from you something entirely different, yet this is what I am reading out of the treaty.
Mr. Whimney: In actual fact, you answered your own question because it said that the minister must, if it agrees with the Nisga'a plan. The treaty very clearly states that in any case, where there is a deviation between the Nisga'a plan and what the minister wants to do in the ministry, he must justify that.
Senator Chalifoux: No, I did not say that. I said that if those laws are consistent with the Nisga'a annual fishing plan approved by the minister then the minister must approve that plan before anything is put into place.
Mr. Whimney: That is the jurisdictional issue. But elsewhere in the document it also says that if the Nisga'a put the plan forward, the minister "will" -- and that is the word they use -- accept the plan or justify his reasons for not so doing. We are saying that if the minister does not have the ultimate authority, and if in fact they must spend time justifying every little change in the management protocols, et cetera, they will bind up fisheries and wildlife management to the point where those decisions may not be made in a timely fashion.
Senator Chalifoux: Here again it says that the Nisga'a will prepare a Nisga'a annual fishing plan for all species of salmon and other fish. After its review, the Nisga'a annual fishing plan, if it is found to be satisfactory, will be approved by the Minister of Fisheries and Oceans. Therefore, the plan must be satisfactory to the minister.
Mr. Whimney: I am talking about the convoluted aspect of the process. I have no problem with the Nisga'a being involved in the management of fisheries and having the opportunity to put forward plans. To cite an example, our provincial hunting and fishing regulations at one time came out and would be available March 30, for the beginning of the new licence year, April 1. For the last three years, our regulations have arrived later and later; for example, last year's hunting regulations came out in the beginning of July, when the hunting season starts in the middle of July. That leaves no time for people to make plans, no time for people to understand where they were going or what they were doing, and we were told by government that this was done entirely as a result of aboriginal referrals.
We see the Nisga'a treaty as the first of many, and we see the processes created in the Nisga'a treaty as being the first of many. Our concern is that wildlife management and fisheries management will be so convoluted as to come to a standstill that will prevent non-aboriginals from harvesting either of those resources, when the aboriginals have a right to harvest for domestic purposes, which is the reason we harvest. In spite of that, if you notice in the treaty, their harvest for domestic purposes is outside of the question of a management plan.
Senator Chalifoux: At one time, I had a domestic licence for my family, and I fished in northern Alberta. I know exactly what you are talking about. That domestic licence was still just for my own family, for domestic purposes, not for sale. I really must question your rationalization.
Mr. Whimney: My organization does not question in the slightest the aboriginal right to fish for food, social or ceremonial purposes. In fact, we are firm in the belief that that is not just an aboriginal right, that it is a citizen's right. We identify that right as an aboriginal right, because when the question was originally asked in the courts it was answered in the context of aboriginals, because they asked the question. I firmly believe that if I were to ask the Supreme Court of Canada if I have the right to fish or hunt to feed my family the answer would be in the affirmative. They might inform me that my harvest needs to be within constraints of government management, and we think that is proper. The Supreme Court said very clearly that conservation was the first priority. However, the reality is that we believe that is the right of every citizen -- to harvest for food, social and ceremonial purposes.
What I am saying is that the nature of the structure that this treaty creates is likely to cripple that process and make it so convoluted that our harvest will come to a standstill while theirs is allowed to continue. Our concern is not that the Nisga'a will over-harvest or will abuse this. Our concern is that we think the Nisga'a will have the same problem that many other Canadians have, that is, that they will get caught up in the convoluted method in which government does business. The Nisga'a know how difficult it is to wade through government business. What we think will happen in this treaty is that you will put us in the same position they have been in for 125 years, and that we do not like. We understand why they do not like being in that position.
Senator Lawson: On your page 4, you say that participation of non-Nisga'a people in the wildlife committee board will be hampered by the fact that the Nisga'a participants will receive $20,000 annually, plus expenses for their participation, and non-Nisga'a participants will receive nothing and will need to cover their own costs.
Does the establishment of this committee flow from the terms of the Nisga'a agreement?
Mr. Whimney: Yes, it does.
Senator Lawson: It specifically provides for a $20,000 payment for the Nisga'a?
Mr. Whimney: It provides that the Nisga'a expenses will be covered. We have managed to convince government that one of the non-native participants on this committee should be the B.C. Wildlife Federation, because we represent so much of British Columbia. We have been told that, if so, we will need to cover our own expenses. Bear in mind that the Nisga'a committee will, logically so, meet in Nisga'a country. That is what they are dealing with, their territory.
Senator Lawson: What is the number on the committee? Does it provide for that?
Mr. Whimney: I believe it was seven or nine.
Senator Lawson: In total?
Mr. Whimney: I am not entirely sure of the total number of members. We have one member.
Senator Lawson: Who else, besides Nisga'a?
Mr. Whimney: The treaty is equally divided between the provincial government and Nisga'a, with one federal government position to be the odd man out. That is my understanding. We do not contest the makeup of that committee.
Senator Lawson: If there are nine, are there eight paid and one not paid?
Mr. Whimney: That would probably be the case.
Senator Lawson: What about our federal legislation for equal pay for equal work and equity? What happened to that? Who negotiated this?
Mr. Whimney: I have not used that argument yet. I thank you for that.
The Chairman: You can pursue this question tomorrow with the minister, or with the Nisga'a.
Senator Lawson: I would not vote for an agreement that provided those kinds of conditions -- even that one condition. If we do not deal with fairness in a simple matter like the establishment of the committee, how will anything else be considered fair?
The Chairman: We will now hear from the next witness, Mr. Neil Sterritt.
Mr. Neil J. Sterritt: I appreciate the opportunity to be here tonight. Before I begin, I would like to introduce my colleague, Wiimiwosiic Larry Skulsy. He is a hereditary chief from the Nass watershed, and he has a short presentation to make.
Mr. Larry Skulsh, Hereditary Chief, Nass Watershed: Mr. Chairman, honourable senators.
[Larry Skulsh spoke in his native language.]
I am a hereditary chief. I hold territory on the Nass watershed. I received the name in 1994, after my uncle passed away. This process has been ongoing since 1983. We have dealt with the Nisga'a on this issue for many years and we made very little progress on the protocol that was established in 1995. It eventually petered off as AIP accelerated.
Mr. Sterritt will address some of the matters we have been dealing with over the years.
Mr. Neil Sterritt: I have been working on these issues since I returned home in 1973. I was the research director of land claims for the Gitxsan Tribal Council back in the 1970s. With the Calder decision in 1973, I first began to work on the issue of the Nisga'a petition and this type of issue.
I was the leader of the Gitxsan from 1981 until 1987. From the very first, I worked very much with Dr. Gosnell's older brother, James, as well as with Rod Robinson, on constitutional issues. I have been working on these issues for a long time. I was the leader when Delgamuukw was launched. There was no political will on the part of the federal and provincial governments to deal with the issues that were important to us, the types of things you talked about earlier.
I recognize that you are very busy, so I will not go any further into that nor into the politics of the land claims issue. I do want to address the issue of the Gitxsan territories in the Nass watershed. In doing so, I am here as an individual, and because one cannot talk about the Nisga'a boundary in the Nass watershed without talking about the Gianyow boundary, I will talk about both.
I have distributed the brief, including a map from BC Studies: the Nisga'a Treaty. I will not use that map, but you may use it later to check your notes. I have referenced, in my presentation, where the maps appear in the brief. I was the author of a chapter in the BC Studies: the Nisga'a Treaty. I was the major author of Tribal Boundaries in the Nass Watershed, which is a comprehensive treatment of the issue that we launched under the protocol in 1995 and which was never addressed. I will deal with that when I go through my paper.
The brief also contains some material dealing with the joint negotiations between the Nisga'a and Gitxsan when we tried to resolve the overlap under the protocol. In brackets are either a confirmation of what was said in a meeting and forwarded by letter, either from the Nisga'a to the Gitxsan or the Gitxsan to the Nisga'a, as well as other correspondence that relates to this issue.
All of this information, all of the correspondence and any tapes that we had are available. The references are all in the brief. It is as comprehensive as it can be. We will go from there.
The purpose of this submission is to set out the implications of the government and Nisga'a refusal to fairly address competing territorial claims, in other words, the overlap during Nisga'a treaty negotiations.
Reason and common sense dictate that overlap issues be resolved before treaties are concluded. An aboriginal nation claiming title to land does not do so in isolation of its aboriginal neighbours. Nisga'a lands were determined without resolution of the clear and oft-stated statements of land ownership by the Gitanyow and the Gitxsan.
I turn now to page 2, point 3: Not only is the recent Nisga'a claim exaggerated, the evidence shows that they and the government set aside good faith standards when dealing with the Gitxsan and Gitanyow on the overlap issue. The Nisga'a have misled the public from the beginning. They and the federal negotiator -- and the provincial negotiators, but the federal negotiator in any event -- have misled the Senate about Nisga'a land entitlement in the treaty. I will provide evidence for that.
I will skip point 4 and go to point 5. I will address four issues: first, the existence of a territorial overlap in respect of land that belongs the Gitxsan and the Gitanyow; second, the history of efforts by the Gitxsan to get the Nisga'a to resolve the overlap; third, the absence of good faith on behalf of the Nisga'a, British Columbia and Canada in dealing with the overlap; and, fourth, misinformation about the overlap.
I turn now to page 3, point 2: There is no doubt that the Nisga'a have always been aware of the territories and borders of their Gitxsan and Gitanyow neighbours. This is under the heading, "Aboriginal Title and the Importance of Boundaries."
Aboriginal title was summarized by the Supreme Court of Canada in Delgamuukw as a "right to exclusive use and occupation of land..." The Nisga'a claim to the entire Nass watershed overlaps known Gitxsan and Gitanyow territories. The Nisga'a claim is not supported by the oral histories or the documentary record in respect of the Gitxsan and Gitanyow territories. Fee simple lands and other benefits allocated to the Nisga'a north of the Kinskuch River during treaty negotiations are situated in lands that do not belong to them; and if Bill C-9 becomes law, these fee simple lands and other benefits will be transformed into constitutionally entrenched treaty rights.
If you look at the map provided, the Kinskuch River is roughly one third of the way up the entire length of the river. It is about where the Nass River, going slightly northeast, turns northwest and continues up. That is the Kinskuch and Kiteen Rivers area.
There is no evidence that the Nisga'a have territory north of those two rivers, despite the fact that they claim the entire territory that is highlighted for you in yellow on your maps. The yellow area depicted is the entire Nass watershed.
I will go to number 4 on page 3: Historical and recent Nisga'a evidence proves a Nisga'a boundary with the Gitanyow one third of the way up the Nass River, and a territory one third the size claimed by the Nisga'a. The accompanying map of the Nass watershed shows the Kinskuch and Kiteen Rivers, which is where the Nisga'a-Gitanyow boundary is, and, by extension, the extent of the overlap. In other words, anything claimed north of the Kinskuch and Kiteen, which is roughly one third of the way up the river, creates an overlap with the Gitanyow and with the Gitxsan, and with the Tahltan, by the way. Examples that illustrate these points can be found in the appendix of this submission. The evidence is further elaborated in the two publications, Tribal Boundaries in the Nass Watershed, UBC Press, 1998, and BC Studies: the Nisga'a Treaty. As I mentioned, there are references to correspondence in the documents.
The next issue I will address is the lack of good faith by the Nisga'a -- an issue that has been raised in questions here in the Senate. First, it is the Gitxsan view that the Nisga'a have entered protocol agreements with the Gitxsan in order to make it appear to federal and provincial negotiators and the general public that they are serious about resolving the overlap. Examples abound in correspondence and tape meetings between ourselves to show that this is so.
Since 1983, the record shows that the Gitxsan have approved overlap discussions with serious intent to resolve the issue. That is why this book was written and other things have been done.
Point 2 on page 4: In October 1986, the Gitxsan went to a meeting in New Aiyansh where a Nisga'a spokesperson agreed with the Gitxsan that the 1913 petition does not include the entire Nass River. I will deal with that again later. That appears, as you will see, in Tribal Boundaries in the Nass Watershed in Appendix 5, page 261. That shows the Nisga'a petition as they interpret it, and it shows that they do not go to the very head of the river as they claim they do and as they claimed recently to the Senate.
Point number 4: In 1995, the Gitxsan and Nisga'a leaders signed a protocol that was to "set out a process to determine the territorial boundary between the Gitxsan and the Nisga'a." The protocol required that each party withdraw disputed lands from treaty negotiation until such time as the parties conclude an agreement. That protocol was signed by Dr. Gosnell and by our leader at the time, Gordon Sebastian, in May 1995.
Regarding the 1995 protocol, Dr. Gosnell wrote a letter to Mr. Ebbels and Mr. Osborn on June 12, 1995. In that letter to the federal-provincial negotiators, he said in part:
We did not anticipate negotiating the precise definition of Nisga'a Traditional Territory at this stage of our negotiations in any event, so our protocol with the Gitksan should not affect our contemplated negotiating schedule in any way.
That is from a letter that Dr. Gosnell wrote to the federal negotiators, dated June 12, 1995.
I will not go through point 6, point 7, or point 8, upon which I have already touched. On page five, under point 9, it notes that in a joint protocol meeting, held on April 26, 1996, Nisga'a representatives insisted on making "sharing and co-existence" the primary purpose of the protocol, despite the agreed purpose we already had. The Gitxsan agreed that sharing and coexistence are important principles, but not before determining who is doing the sharing and who shares what with whom. The issue of the extent of Nisga'a title needed to be resolved. The minutes of that meeting and those statements were confirmed in a letter by Mr. Don Ryan, our chief negotiator, written to Dr. Gosnell on April 26, 1996.
Mr. Ryan said in this letter that the Gitxsan would redraft boundaries if found wrong. When asked to reciprocate, the Nisga'a did not answer.
Point number 10 on page 5: Mr. Rod Robinson, the Nisga'a tribal council executive director at the time, wrote:
That is, the protocol committee.
...representing the Nisga'a were given specific instructions to conclude an agreement with the Gitxsan on sharing and co-existence which you have refused.
That is Mr. Robinson to Mr. Ryan, on May 7, 1996.
Mr. Robinson also said that they were not willing to acknowledge Gitxsan ownership of the upper Nass because they have powerful evidence of ownership of the upper Nass since time immemorial. The Nisga'a have never provided the Gitxsan with such evidence.
I refer now to point 11, on page 6. At a joint protocol meeting, the Nisga'a committee members stated:
[We] do not want to see anything impede the progress of our signing the Treaty ... the Agreement-in-Principle ... and I repeat, we realize now to allow this to go on any further only creates unnecessary blockage to our Final Agreement. That was stated in a meeting by the Nisga'a protocol committee.
Our chief negotiator confirmed that in a letter to Dr. Gosnell in May 1996.
In response, point 12, Dr. Gosnell wrote:
We hope that you will also understand that we cannot allow agreement on a territorial boundary to be a pre-condition to our concluding a final agreement with British Columbia and Canada. That is from a letter from Dr. Gosnell to Mr. Ryan, dated June 17, 1996.
It is extraordinary to think that Canada, with its special responsibilities to the Nisga'a's neighbours, would endorse this approach to treaty making.
The Gitxsan then proposed agreement on an independent arbitrator who would answer the following question: "Have the Nisga'a got aboriginal title and aboriginal right in the Nass Watershed above the Bell-Irving River-Nass River confluence? That question was included in a letter I wrote to Dr. Gosnell on June 20, 1996.
Locate Meziadan Lake in the middle of the map, and then go up a little and you will see where the Bell-Irving River joins the main stem of the Nass. That was the point that we said because our boundary with the Gitanyow is there. There cannot be a boundary with the Nisga'a, therefore have they territory to there? That was the nature of that question. We felt it was time to I have an independent arbitrator deal with that question.
Dr. Gosnell finally promised that a comprehensive response to our tribal boundaries document would be completed and would be made available to the Gitxsan, Gitanyow, British Columbia and Canada. That was in an August 1, 1996 letter from Dr. Gosnell to Mr. Ryan. Dr. Gosnell also said:
...there will be no further meetings between the Nisga'a and Gitxsan Protocol Committees until our comprehensive response to your Tribal Boundaries in the Nass Watershed document is completed and finalized.
We first handed the document, 15 copies, to the Nisga'a in November 1995. That is over five years ago. We have never had a response to this date.
Page 7 discusses the fact that the Nisga'a and the federal government misinformed the public. We say that rhetoric and political expedience have characterized Nisga'a and federal-provincial statements to the media and general public. The examples given show that the Senate has been misled as well.
I do not want to go through all of it.We have evidence; I can show it to you. We will just deal with what has come before you since you started your hearings.
First, the Nisga'a say they have consistently asserted their ownership of the Nass watershed, that they are the only aboriginal people residing on the Nass River, and that they have always relied upon the description of their territory set out in the 1913 petition. They said this in their submission to the Senate -- the submission was entitled "Facts about the Nisga'a-Gitanyow Dispute" -- on November 25, 1999.
This claim is unfounded on their own evidence. In 1986, Nisga'a leaders hand-delivered two maps to me in Terrace, B.C. They were labelled "Map 1" and "Map 2". Map 1 was exhibit 2 in Calder. May 2 contained the following notation, placed there by the Nisga'a: "Map 2 represents the Nisga'a Land Claims boundary as determined and outlined in the Nisga'a Petition... in 1913." In the book Tribal Boundaries in the Nass Watershed, on pages 142 and 143, you will see maps 18 and 19. Those are the two maps to which I am referring. These maps were not drawn by the Gitxsan, they were drawn by the Nisga'a. They were handed to me with those notations on them.
In addition, on pages 140 to 146, there is an elaborate explanation about the whole context, not only of the Nisga'a petition of 1913, but the fact that we discovered during research that there was a 1908 petition that said how far up the Nass River the Nisga'a petition was meant to go.
The Nass watershed contains 21,150 square kilometres. By their calculation, the Nisga'a claim 15,900 square kilometres in map 2 -- their own depiction of the 1913 petition -- of which approximately 5,300 square kilometres are outside the Nass watershed. Therefore, the Nisga'a claim in the Nass watershed using mapping calculations is about 11,000 square miles. That figure fluctuates from time to time, you should be aware of that.
The Nisga'a do not claim the whole Nass watershed. I made that point earlier. I referred to the Nisga'a petition of 1908 that we discovered. The fact is that the 1908 Nisga'a land committee included Gitanyow chiefs, as did the 1913 one. However, the 1908 petition claims land in the Nass valley, about 140 miles, or 224 kilometres, in extent, which is all that is needed by themselves as hunting, timber, and fishing ground. The entire length of the Nass watershed from Mill Bay on the ocean at tidewaters to the headwaters is 384 kilometres. In other words, the Nisga'a petition in no way includes the entire Nass watershed.
If it had even done what it said it did originally, the Calder case in 1968 would have had the Nisga'a petition as their evidence, rather than a reduced one based on the Gitanyow saying that they had an overlap. If they felt strongly about it, then why did they not put it in court? You can find that statement on page 139 in Tribal Boundaries in the Nass Watershed.
The Gitanyow-Gitxsan border is at Surveyors Creek, about 224 kilometres from tidewater. In other words, if you look on your map, just below Bowser Lake you will see Surveyors Creek. That is the boundary between the Gitxsan and the Gitanyow.
Therefore, the 1913 petition was wrong.
I will skip point 2. I want to save you some time. That was a statement made by a Nisga'a representative to you Ottawa. You can read that yourself. The evidence is extensive in Tribal Boundaries in the Nass Watershed and is included around pages 210 and 212.
Tom Molloy, when he was before this committee, "there is a large overlap with the Tsimshian nation as well as with the Tahltan, and agreements have been reached by the Nisga'a and those two First Nations with respect to those issues."
Tom Molloy was assigned to the Gitxsan and Gitanyow treaty tables prior to negotiating with the Nisga'a. I briefed Mr. Molloy on issues and progress with respect to overlap negotiations. He knew I was writing Tribal Boundaries in the Nass Watershed, and was given the report in November 1995.
Tahltan leader Vernon Marion submitted a statement to the Supreme Court of B.C. in 1987 that set out the Tahltan boundary with the Gitxsan in the north, almost to the very top of the map. It is not a very large area.
That boundary corresponds with our northern boundary in the Nass and Skeena watersheds. That information appears in detail in Appendix 1 of Tribal Boundaries in the Nass Watershed, pages 255 to 257.
Tom Molloy knows that the Nisga'a claim was to the whole Nass watershed, including Tahltan territory. How could he say in this statement that the Nisga'a had signed an agreement with the Tahltan? There is a contradiction in the two statements. He is simply wrong to suggest there is no Nisga'a overlap with the Tahltan, Gitxsan and Gitanyow.
Moreover, how can the honourable Robert Nault say to you that "the interests of the Nisga'a people and their neighbours have been carefully and properly balanced," and that they have "involved the parties most affected by the treaty"? This statement is blatantly wrong. The boundary between the Nisga'a and the Gitanyow is at the Kinskuch and Kiteen Rivers. The evidence in the appendix to this document is only two pages. This gives the rest of it.
This map was given to us by the Nisga'a. It depicts where their house territories end. It also shows in our language that they recognize that the Gitanyow have territory where they say it is. This map was drawn by the Nisga'a in 1984, when we started to go into court in Delgamuukw, and they tried to determine how to come up with a way of proving whether or not they had land to the head of the Nass River.
The Chairman: Mr. Sterritt, is that map known to Tom Molloy?
Mr. Sterritt: Yes.
The Chairman: Will you be hear tomorrow morning?
Mr. Sterritt: I am on an eight o'clock flight, but if I have to, I can stay.
The Chairman: It is your decision. The minister and Mr. Molloy will be questioned on these subjects tomorrow.
Senator St. Germain: Possibly.
The Chairman: What do you mean, "possibly"? The minister and Mr. Molloy will be here by fixed agreement at noon. The minister will be here for a hour.
Senator St. Germain: We had discussions, but nothing was cast in stone.
The Chairman: Not at all. That is cast in stone. It always was. When we invite a minister and we come to an agreement with the minister as to when he is here --
Senator St. Germain: You agreed; I did not.
The Chairman: You were advised by me that the appointment was a firm one. I am astonished that you are doing this.
Senator St. Germain: That is right. You advised me, Mr. Chairman, of what you were doing, and I advised you at the time, if you recall correctly, that we were going to hear all witnesses properly, and that in the event that we would not be able to get through the timetable these hearings would go into next week and we would do clause-by-clause either at midweek or later into next week. That was the agreement we had.
The Chairman: You are completely misunderstanding what we discussed. I said to you that we would suspend whatever we were doing at 12:00 noon to hear the minister. That was discussed at our steering committee. It may not have registered, but the minister will only be available to us between 12:00 noon and 1:00 p.m. tomorrow.
Senator St. Germain: The minister has to be available to the committee. The minister does not call the shots, Mr. Chairman. When I was a minister, I did not call the shots. I responded to the requests of committees. I am sure you did also when you were a minister.
The Chairman: We do not compel a minister to appear before this committee. He does not have to appear. We have invited him to appear and we have established a time for him to appear. You are getting a little bit offside with these aggressive comments. I would like to allow the witness to continue.
I would ask the witness to complete his presentation, and then Senator St. Germain and I can argue after all the evidence is in for the evening.
Mr. Sterritt: With regard to this map, it appeared in Tribal Boundaries in the Nass Watershed on page 188. The evidence is there. It contains the relevant information. This is the full map.
If I have to be here tomorrow morning, I would like to know because I will have to change my flight.
The Chairman: Is there someone else who could present the map? The reason I ask is that I intend to ask Mr. Molloy, whenever he appears tomorrow, "Are you familiar with the map? This is what Neil Sterritt said in evidence. This is what was in his brief."
If someone has possession of the map, I would be content. I certainly am not asking you to stay, Mr. Sterritt.
Mr. Sterritt: We can make some arrangements. Either Mr. Skulsh or one of the Gitanyow representatives can present the same issue.
I will just conclude this part and then begin my summary in a minute.
The boundary between the Nisga'a and Gitanyow is at the Kinskuch and Kiteen Rivers. That is one third the way up the Nass River. Nisga'a claims above the two rivers are incorrect and constitute an overlap, albeit an improper one. There can be no Nisga'a boundary with the Gitxsan on the upper Nass because the Nisga'a boundary is with the Gitanyow 130 kilometres downstream. In other words, the Gitxsan territory is in the upper Nass. You have to travel another 130 kilometres.
In summary, there is not one of us Gitxsan people who are opposed to the Nisga'a treaty. We are in favour of it. They have earned it. They have worked very hard for it and they deserve it. They have represented themselves well and are deserving of the first treaty in the modern era in British Columbia. Having said that, the process is wrong with regard to the overlaps. It must be changed.
Once they had studied Tribal Boundaries in the Nass Watershed, after 1995 the Nisga'a knew they could not prove a land entitlement north of the Kinskuch and Kiteen Rivers. In the final agreement, the provincial and federal governments gave the Nisga'a fee simple lands, and other benefits and privileges north of the Kinskuch River over lands belonging to the Gitanyow and Gitxsan, which, if Bill C-9 becomes law, will become constitutionally entrenched treaty rights.
The earlier debate about them being pushed back by a court case or some other means by the Gitxsan or Gitanyow and then getting something somewhere else means they have been rewarded for claiming our land. To flip this around, if the Gitxsan at the head of the Nass claimed the watershed right to tidewater, it would be equally ludicrous. However, that is the expectation created by the way treaties are negotiated, at least in this part of the British Columbia.
Canada and B.C. have an obligation to bargain in good faith over treaty entitlements. They should not encourage political or strategic opportunity in a treaty so that the aboriginal nation at the treaty table gets benefits over its neighbour's territory. Canada and B.C. have a legal, ethical and moral obligation to suspend all rights and benefits ceded to the Nisga'a in Gitanyow and Gitxsan territories.
There are crucial lessons to be learned for the Nisga'a treaty experience. First, aboriginal nations must use proper evidence and research methods to prove their boundaries where an overlap exists. The absence of standards is a flaw in the B.C. Treaty Commission process that encourages a first-come, first-served approach. Second, territorial overlaps must be resolved before a treaty is concluded. Third, it is morally and legally wrong to sacrifice the land entitlement of one or more nations to obtain a treaty with another nation. Fourth, certainty, which is considered so important by government, is not achieved when overlaps are left unresolved. Fifth -- and this is the biggest flaw in federal policy and in the BCTC process -- a binding third-party process is an absolute requirement when the aboriginal parties cannot resolve an overlap themselves. Where there is no good faith and where there is political opportunity, there needs to be a third party, and things should come to a halt as was set out in the protocol between ourselves.
Concerning resolution, in the present circumstance, the resolution is to sever off from signing of the treaty those parts of the territories that are subject to the overlapping claims so that they may be resolved through evidence, intertribal negotiations or third-party mediation.
This book written to be handed to the Nisga'a so that they would show us where we are wrong. They have had it for five years. That was the purpose of the book. We were not writing it to say, "This is the way it is." We said, "Tell us where we are wrong." We have never been told.
I will not take you through the appendices; however, they include some selected evidence, and they are before you now.
The Chairman: Thank you. I should like to ask you one question before I turn to Senator St. Germain, and it is a speculative question. Given the strength that you believe your evidence carries regarding your lands, why do you believe that the federal government and the provincial government were prepared to go ahead and conclude an agreement with the Nisga'a? Could you speculate with us about that?
Mr. Sterritt: I think the real driving force was Glen Clark, a premier with an ego who wanted to have the first treaty in British Columbia. He did not care how it happened. I have tracked his comments. I have tracked the pressure that was on the British Columbia negotiators at the Nisga'a table. I think that was the driving force. Given that people took positions, like the Gitxsan and others, we had a different model than what you are seeing, especially in the face of Delgamuukw coming down when it did. It was probably a good thing to get this treaty then and to do it, whatever it cost the neighbours. I think there is something to that and a case can be made. I have written a lengthy newspaper article or two, which I do not have here, that deal with those two issues.
The Chairman: Why would the federal government fall in with a scheme like that?
Mr. Sterritt: Well, it is part of that. The federal government wanted a treaty that was consistent with treaties that had been signed for a long time. Bear in mind that if the Delgamuukw test had been used when it came down in 1997, if it had been applied to the Nisga'a at that time or if they had used it, they would have had to prove where their boundaries were. That would have proved from this submission that the boundaries were one-third of where they should have been -- in other words, no fee simples in our area. There probably would have been serious question about wildlife management regimes and fishing regimes further up the river, knowing that we were coming down the pipe.
The Chairman: To get the facts clear, have you settled your overlapping claims with all other tribal communities?
Mr. Sterritt: In the Nass watershed, we have resolved the boundary with the Tahltan. You see on your map where it says "Treaty Creek". That is a treaty. There is a declaration in this document in your appendix. That was an event that happened around the turn of the century. We resolved that. There are some statements that Tom Molloy referred to that were contradictory, and the current leader of the Tahltan is George Asp. He was the leader in 1977. He has this book and has read it. If anyone wants to check that, they can talk to him.
The Chairman: So in the Nass River system, you have settled with everyone but Nisga'a?
Mr. Sterritt: The Gitanyow is the other group that we would have to settle with, and we have only a very small area at the very head of the river, which flows south. There is a small area that belongs to the Gitxsan up in there. The major areas in the north, our boundary with the Gitanyow now, were mentioned in documents back in the 1890s. They were mentioned back in 1875. It appears here. We know our boundary with the Gitanyow. We know our boundary with the Tahltan in the Nass watershed.
The Chairman: Thank you very much.
Senator St. Germain: Thank you, gentlemen, for attending and making this presentation. I have known Mr. Sterritt for several years, and I know he has done a lot of work in this particular area.
What really concerns me is that, basically, aboriginal minority rights appear to have been trampled on. I agree that there is no question that the Nisga'a deserve an agreement. Where are the native leaders that represent the concerns of aboriginals, people like Phil Fontaine and others? I find it very strange that the Gitanyow and the Gitxsan both seem to be relegated to the backwaters. There are senators here who I believe to be very sincere in their defence of this, and they want us to rubberstamp this thing and just fire it through. One said that we were nitpicking, and others said that it was just chicken manure that we were trying to take apart an agreement. My contention from day one has been that, if there is a problem with this, it is the fact that the adjoining aboriginal people's situations have not been resolved. Why is it that you have been neglected or relegated to the backwaters on these issues and they are not taking issue with them? They seem to be shying away from it. Is it simply for political expediency?
Mr. Sterritt: It is a bit of an historic issue, and I mean recent history. After the Calder case in 1973, federal policy was established on resolving six treaties at a time in Canada, one of which was in B.C. If you wanted to qualify for land claims research funding to start you negotiations and your research leading to land claims negotiations, you had to submit a map of what you thought your territories were before you had actually done the research. Many tribal groups in B.C. did their maps, but they made sure that they included a much larger area than they might own to make sure they did not leave anything out, and then they had the intention of going back later and doing the research.
When the Gitxsan did theirs in 1977 and presented it to the federal government, we made every effort to have it as accurate as it could be, and in almost every situation, when we did our detailed work, we moved it in. Of the other tribal groups around B.C., the Gitanyow had done their research. They probably have the best- documented land claim territory in North America, if not the world. Very few other tribal groups in B.C. did the kind of work that we did and that led up to the Delgamuukw case. The Tahltans were one of the groups that did some very good work. So, the work was never done.
On the issue of overlap, if they do not have the information, they may just get together and have a gentleman's agreement, which is what it appears the federal and provincial negotiators would like to see done. "Get together and resolve it; it must be easy." Not if you have elders who know where the boundaries are and have lived on them and if there is documentary evidence supporting that.
That is the situation generally in B.C., and that is why almost no one has wrestled with boundaries to the extent that the Nisga'a, the Gitxsan, the Gitanyow and the Tahltan have. That is why the summits and the UBCIC, the Union of BC Indian Chiefs, and so on really are not on top of that, and they do not want to interfere. That is part of the reason, in any event.
Senator St. Germain: Do you think Tom Molloy was in conflict by having represented you people and the Gitxsan and the Gitanyow at the negotiating table and then having moved over to the Nisga'a table?
Mr. Sterritt: I think he was to this extent. I asked him when he was at our table about the policy on resolving overlaps, and he laid it out. He said that, if in the opinion of the federal government the party at the table has made every effort to resolve the overlap in good faith and has not been able to do so, then the federal government will proceed. He was at our table. He then went over there. My question is this: Who decides good faith? In this case, Tom Molloy had a mandate to get a treaty in a hurry and he was the man who decided good faith. To that extent, I think that if this was going to be done properly, it had to go outside. Any conflict resolution process requires that. It is absolutely ludicrous to expect aboriginal people to sit together when one has the ear of both governments and the other is struggling to get to the table to resolve it. It is ridiculous. From that point of view, he was in conflict, and the federal policy was weak.
Senator St. Germain: With all due respect to the two professors who were here, who wanted to avoid litigation, in the final analysis, they were saying the only way that this will be resolved theoretically is through litigation on your behalf and on behalf of the Gitanyow; is that not correct? Did you not understand that as the eventual outcome, one which is very costly? Where would you get your funding from? It would have to come from the federal government, would it not?
Mr. Sterritt: We still owe money on Delgamuukw so it would not be easy.
The fact is there would be no need for litigation if this issue had been dealt with properly in 1995, when this book was produced, or 1996 or 1997 or 1998 or 1999. It should have been dealt with by negotiation, with third-party mediation or arbitration.
Senator St. Germain: We have here the Nisga'a territorial claim, Calder, 1968-73. That is on page 78 of BC Studies: The Nisga'a Treaty. My understanding was that the 1913 petition was basically the same as the Calder claim. Was it not?
Mr. Sterritt: No.
Senator St. Germain: Was it larger, different, or what?
Mr. Sterritt: Let me refer you to Tribal Boundaries in the Nass Watershed. I hope you have a copy in front of you.
Senator St. Germain: I do not have it with me.
Mr. Sterritt: If you look at pages 142 and 143, which are facing pages, you see both the Nisga'a petition of 1913 and Exhibit 2 in Calder. The one in the B.C. Studies book, Exhibit 2 in Calder, is the one on the left. The 1913 petition is the one on the right. You can see it goes up and includes Meziadin Lake, whereas the Calder exhibit does not include Meziadin Lake.
Senator St. Germain: It goes to the tidal waters as well, does it not?
Mr. Sterritt: It goes almost to Surveyors Creek, which is the boundary between ourselves and the Gitanyow. The reason for that is that the difference between the two is Gitanyow territory. The Gitanyow were included in the 1913 petition that was here.
The Chairman: I should like to tell you, Mr. Sterritt, that a number of senators do not have that book or the ability to refer to the document that you have introduced here.
Mr. Sterritt: We have copies for you.
Senator St. Germain: If you look at the 1968-73 Calder claim, you will see a claim twice as large. I have listened to both sides of this. I have spent time with Glen Williams and the Gitanyow, and I have spoken to you and to others. You are looking at a claim virtually twice as large as the original claim, virtually encompassing the entire Nass River watershed. The implication has been made, during my questioning of various people on this, that people were not prepared to negotiate. I find that hard to believe. If this Calder claim was legitimate -- and we have to give it credibility because it was a claim that went through the courts and it basically deals with the Kinskuch River and the Kiteen River -- why is it that there was not the possibility of coming to a resolution before now?
I can tell you one thing. If there is one reason and only one reason why this bill should not go ahead, it is because of this, as far as I am concerned. That is my personal view, for what it is worth.
The accusation is that people were not prepared to negotiate in good faith. That is what the Nisga'a have told me about the other parties involved. What is your reaction to that?
Mr. Sterritt: This book was written to put all the evidence in one place and present it to the Nisga'a to show us where we are wrong. If they could show us where we are wrong, we said we would withdraw our boundaries. We asked that same question of the Nisga'a at that same moment. They did not respond.
We have evidence by the Nisga'a that the boundary is not there. Did we negotiate in good faith? We were prepared to produce this and all our genealogies to show whether we are related. We had all that. We brought it all. We asked the Nisga'a for their genealogies and they did not produce them, and have not to this day.
We had to do all that for Delgamuukw. We knew we were up against it when we went into court on that case. We had all that evidence. We went to the table. We laid out a process with the Nisga'a saying, "We have to do this, this, and this. Let us start with the oral history. Never mind the white man's way or the written documents. Let us do this and then that." We could never get past that. If you look at the documentary record, the records of all those meetings, we could not get past square one where they wanted to do sharing and coexistence.
Senator St. Germain: The government is saying we should be listening to the courts. The courts have directed that there be negotiations, in Delgamuukw and also in Luuxhon, where the judge accused the government of sharp dealing and not dealing properly with the Gitanyow.
Where do we go from here? We are supposed to be negotiating and yet these negotiations never took place. What is your suggestion to us on how to help this process to be expedited in a manner so that your rights will not be trumped?
Mr. Sterritt: You have to hive off the area that is in the so-called overlap and go ahead with the rest of the treaty. They should get their treaty on schedule, but you should hive off this area.
The Chairman: Senator Tkachuk is next. Senator St. Germain, you have had a very good run.
Senator Tkachuk: I have a couple of questions.
Senator St. Germain: This is important, though, sir.
The Chairman: I recognize that this is your issue, so I have given you a very good run.
Senator St. Germain: I have another question.
The Chairman: When you are in full flight, you do not know how long you are taking.
Senator Tkachuk: I want to follow a little money here. You said something interesting during your presentation about the question of the land that falls under this agreement. With the resolution of this Nisga'a treaty, with the land in dispute, if the boundaries are settled prior to this coming into effect, there is no compensation to the Nisga'a. That is how I understand it. In other words, it is not part of the treaty. Or is it? If the treaty is passed and then you go into dispute and they lose, they get compensated under this agreement, as far as I can tell.
Mr. Sterritt: That is right.
Senator Tkachuk: So they win both ways. If they win the court case, they get the land. If they lose the court case, they get compensation for the land they lost. We hear all kinds of numbers, and we have never come to an exact one. We hear it is costing the governments anywhere from $350 million to $500 million. How much do you think it would cost to compensate the Nisga'a if the agreement passed and they lost the case?
Mr. Sterritt: I have no idea.
Senator Tkachuk: Who might know the answer to that question?
Mr. Sterritt: I do not know.
Senator Tkachuk: When Senator St. Germain asked why this agreement has been moved forward so rapidly, you mentioned that perhaps the ego of former premier Glen Clark was responsible, with the land disagreements not having been taken into consideration at the time. Would it also be true that he would have wanted this agreement passed, no matter what it would have cost the provincial government?
Mr. Sterritt: That is another question altogether. If you look at the fast ferries and a few other examples, perhaps; I do not know.
Senator Tkachuk: It is circumstantial evidence.
Mr. Sterritt: It could be.
Senator Tkachuk: I will leave it at that.
Senator Chalifoux: It is interesting that you mention national leaders not being here. I should like to recognize Marilyn Buffalo, the President of the Native Women's Association of Canada, who is here.
Senator St. Germain: I did not say they were not here; I said the voices were not being heard.
Senator Chalifoux: Would you give me an opportunity to speak? I have thoroughly enjoyed your voice all evening, sir, but it is my turn now.
We all know that the Assembly of First Nations is not supported by all aboriginal people. Do you support the Assembly of First Nations under the leadership of Phil Fontaine?
Mr. Sterritt: I do.
Senator Chalifoux: Has the AFN had any consultation with you or have you had meetings with them?
Mr. Sterritt: I do not know whether Mr. Fontaine met with our chief negotiator. I know that Barbara Clifton is in Ottawa with Marilyn Buffalo. They may have spoken about these issues. I have not had any discussions with our national chief.
Senator Chalifoux: I have been speaking to some people in the other place. I asked them why this situation has not been resolved before. I was told that it is because you cannot get your act together. You have proven them wrong by your evidence tonight. I should like to thank you for that evidence.
Mr. Sterritt: Thank you very much.
Senator Chalifoux: Do you support the Nisga'a treaty?
Mr. Sterritt: I do support the Nisga'a treaty. They have worked long and hard for it and they deserve it. The issue of boundaries needs to be dealt with. In our part of northwestern B.C. they must be dealt with.
Senator Andreychuk: Some honourable senators here have said that native rights should not to be defined by non-natives, and I agree with that. Do you agree with that? I am sure you do. It follows, then, that if the Nisga'a treaty goes forward, it will have been federal officials, therefore non-natives, who have said what your rights are to particular pieces of land.
Mr. Sterritt: There are two issues. First, we need to sit down and get beyond the rhetoric. I have been involved in these issues now since 1973 and very heavily involved in the constitutional talks. I played a major role in those.
We had to sharpen our pencils and our thoughts as we went from 1982, 1983, 1987 and 1992 because more people were asking questions and more people were challenging us. If we could have moved as fast as we could, in 1982, it might have been a great year. In any event, we had to be prepared to explain more to those people who were affected by what we were doing.
There cannot be a pig in a poke. We must be clear on what it is we are after and where we are going. We must take the time to educate the community around us in terms of what the issues are and the implications for them. The Nisga'a have done an excellent job of that. Their PR has been excellent. Other tribal groups have done the same. We deliberately set out to do that even back in the 1970s, to go to chambers of commerce and talk about our issues.
At the same time, there are different models and the Nisga'a model is one. We have another. We would like to advance it as Gitxsan people, and I believe so do the Gitanyow and a few others. We must explain what the model is or no one will negotiate with us. The negotiators are not prepared to talk to us at this time on that model. There is a responsibility on both sides to find out what is happening. There is a responsibility on our side to be clear about what it is we are doing and what we want. In the end, you will be approving what we do and you will not approve it if you do not understand it.
Senator Grafstein: You have a governance model somewhat different from the Nisga'a. We heard that earlier. What is the timing for the next case? In other words, if the Nisga'a treaty is approved or deferred or whatever in some form, are you next?
Mr. Sterritt: When we entered into negotiations in 1994, we moved along quickly. We got to stage four quickly. As a result of the effort naturally and rightfully going to the Nisga'a, and because we were not getting where we wanted to at the table, we decided to go back and take Delgamuukw to completion in the Supreme Court of Canada.
At this point in time we would have to take some time to decide whether we want to get there. There are several groups who are at the table and ready to sign, for example, in the Sechelt area. There is not a great desire to proceed at this time by most of the tribal groups in British Columbia. They are standing back.
Senator Grafstein: Why?
Mr. Sterritt: The position of the provincial and federal negotiators is very fixed. You could ask the Gitanyow when they come up here why they may not wish to. They had an offer that was totally unrealistic and not what they wanted. They can explain that better than I.
Senator St. Germain: In a nutshell, could you see yourself negotiating a deal with the overlap situation in existence?
Mr. Sterritt: The issue, once again, is the question of where the boundaries are. Let us say that you sent the Nisga'a and us out of the room for five hours or five days and we came back in at the end and could not agree, then what you would have to do is send someone out with the evidence. The Nisga'a have some documents, maps and other reports that have been written. We have these. That third party would have to take all of the evidence and critique theirs and ours. That third party would have to say where the boundary is.
Senator Lawson: The minister appeared before the committee on February 16. On the issue of overlap, he said that he knew that we would want to be assured that the aboriginal treaty rights of other aboriginal peoples would not be negatively affected by the treaty. The issue of overlap is one we deal with in British Columbia and elsewhere across the country. There are particular provisions in this treaty to ensure that the aboriginal and treaty rights of neighbouring First Nations are not affected.
I thought you would want to know that you are not affected. That is what the minister says. Just to make an observation, I am a poor simple layman, just a truck driver, but some learned professors came to tell us that everything in this treaty garden is lovely; they do not have a single hectare at risk. The minister does not have a single hectare at risk, and they tell us that you do not have a problem.
I happen to believe the people who once were standing on land and who now say that they are standing on air space because the land is gone because somebody took it. I think you are right. If I had to have a negotiator, I would want the Nisga'a negotiators. They are the best at what they do.
I would want to have this dealt with before the treaty was approved. Take it and set it aside and have it resolved. The government has a responsibility to do that. You simply cannot trample other people's rights in an attempt to protect the rights of some.
Mr. Sterritt: Those statements under those sections of the Nisga'a agreement could well be true. However, once you have been hit on the head a few times -- I started at this process in 1973 or 1974 -- the examples I gave you show there is no good faith. Let us assume we have to invoke that. How do we know that the governments or the Nisga'a will not use all of their resources to prevent us from resolving that issue in a way that is proper? I have nothing to tell me that because there has been no good faith thus far.
Senator Lawson: You would have to rely on what happens in most cases: a third party tribunal -- men and women of integrity, maybe a committee of the Senate, but people of integrity who would review the evidence fairly and make a decision that people would agree to be bound by. I think both sides would do that. However, we cannot simply, in a rush to get it done, say that we happen to trample on a few small tribes into the process but, by God, we have a completed treaty.
The Chairman: Would the witnesses from the Gitanyow Hereditary Chiefs please come forward?
Please proceed with your presentation.
Mr. Glen Williams, Chief Negotiator, Gitanyow Hereditary Chiefs: This is approximately the fourth time that we have appeared before a parliamentary committee studying the Nisga'a agreement. We have basically said the same things about the Nisga'a agreement each time and how it impacts the people and our territory.
Honourable senators, you have probably heard over the last few weeks from government representatives, from negotiators, from lawyers, from academics that we are protected by paragraph 33 of the Nisga'a Final Agreement. Witnesses have probably talked to you about paragraph 34 as well. They have probably talked to you about paragraph 35 of the Nisga'a Final Agreement.
Before I start, I wish to state for the record on behalf of our people that the evidence led by Mr. Sterritt, referring to Tribal Boundaries in the Nass Watershed and the BC Studies booklet, the maps referred to, the chapters in the book dealing with what Nisga'a people and elders have said, the history of the Gitanyow and the Gitxsan, is all correct. We agree with Mr. Sterritt. We agree to where those boundaries are.
I should like to show you who we are. I wish to take you into our territory. There is now a map before you. The map depicts the territory in black and you can see the Nass watershed coming down. Above it is the Meziadin River. On the side are totem poles, and those poles are still standing in our communities. The pole that is now being pointed out is the one that belongs to our house group. That pole is about a grizzly bear that is referred to in our oral history. The grizzly bear is the crest for our particular house. It was in 1994 that we erected that pole. It was at great cost to our house group to publicly show to other Gitxsan people, the people in the territory, that we still exist and that we are still related and connected to a particular territory. That crest originates from our territory.
If you look near the boundary of Luuxhon, that is the Kinskuch River to which Neil Sterritt referred. Next to it is another totem pole with a Kingfisher attached. That points in Luuxhon oral history right to the boundary at Kinskuch, which is about 800 metres below the Kinskuch River. Those poles stand today in our community. We still practice our systems. We still have laws that connect us to those particular territories.
The Chairman: Mr. Williams, when were the poles erected?
Mr. Williams: Some were erected in the last decade and some in the last few years. Some were erected over 100 years ago.
The Chairman: Are the ones you have referred to now old poles that have been there for 100 years or are they relatively new?
Mr. Williams: Some are over 100 years old and some are more recent. They were erected in the last four to five years.
In the Meziadin area, those two poles belong to the House of `Wiilitsxw. They tell the story about how `Wiilitsxw was involved in the war at Meziadin and those poles tell the oral history of how the Gitanyow and `Wiilitsxw had a war with the northern tribes and how they acquired that particular territory in about 1861. That history is in travel boundaries in the Gitanyow chapter.
What I am telling you, senators, is that our history, our system, our house system, our laws, our hereditary names are still strongly in place today. We are Gitxsan people. In Delgamuukw they talk about nature, content and the importance of oral history. We are no different from our neighbours the Gitxsan. We are Gitxsan people.
I will now turn to how earlier agreements, the Nisga'a Comprehensive Land Claims Interim Protection Measures Agreement of 1992, the Agreement-in-Principle of 1996, and the Nisga'a Final Agreement have already adversely impacted our people. In our brief and the appendices we refer to some of the impacts on our people. With regard to the fishery component, as shown on page 7 of our brief, the Nisga'a Final Agreement grants the Nisga'a a fishery management regime over the entire Nass watershed, which encompasses 84 per cent of our territory. With regard to wildlife, the situation is basically the same. The Nisga'a are on the verge of having newly created, constitutionally protected treaty rights on our territory in wildlife and in the fishery. The Nisga'a and governments have studied the highest and best use of lands in our territory. They have identified backcountry recreation tenures that are part of the Nisga'a Final Agreement. They have identified the five highest and best-use lands to be converted into fee simples in our territory. They will be granted angling licences for all the major rivers. Areas that currently have our aboriginal names will soon have Nisga'a names.
What does that do to our system? As I said, our system is very strong. We still use the territories right on the boundary. They produce salmon for our people and our house groups. We have prime hunting sites in those areas. Our people have laws that govern those territories. We want to continue to use those areas.
This bill will affect our hereditary system in that there will now be constitutionally protected Nisga'a treaty rights overlapping our undefined Gitanyow rights. The Gitxsan system and laws have been in place for thousands of years. Our chiefs have said numerous times that we will not move off our territory.
Whose rights will take precedence on that ground? Lawyers and negotiators can hide behind paragraph 33, but when it comes right down to it, whose rights will apply first? Will the newly created, converted, modified Nisga'a rights override our rights? We will not move over. We also have constitutionally protected aboriginal rights on that territory. We have not moved over on other agreements. That is the problem you will create if you pass this bill.
We have been in negotiations since 1993. The Nisga'a have been granted rights to the fishery, wildlife, highest and best-use lands, and all the prime economic opportunities in our territory. Paragraph 33 states that you can negotiate with another group, but what is left for us with which to enter into an agreement with both governments? As our chiefs have said, we are negotiating for crumbs in our own territory.
At the end of November, we received a cash and land offer from both governments. We were offered 20,000 hectares and $13.5 million to give up our rights. That offer was designed deliberately by both governments not to touch the Nisga'a Final Agreement because all parties to the Nisga'a Final Agreement were bound to change not a word, a comma or a period in it. Shortly after we received the offer we asked for modifications, and negotiators from both governments told us that they could not touch the Nisga'a Final Agreement.
You have been told about paragraph 35. I listened to the professors here this evening. They have the remedy and this is it. Paragraph 34 talks about litigation. It says that we must prove our rights in court. We initiated a court action in March of 1998. Shortly thereafter, we were viciously attacked by both governments. They tried to strike our action from the courts. They did that numerous times, attempting to wear us down. They knew that we did not have the resources to sustain a court action. That was expensive for us, but the remedy provided in this country for the resolution of overlaps is to go to court. If you have the resources, you can fight all the way to the Supreme Court of Canada.
That is why we have offered some solutions for the Gitanyow people and a way out for Canada. We agree with what Mr. Sterritt said this evening, that our neighbours the Nisga'a should have the treaty in their own territory. Former Gitanyow leaders are on record saying that. I have said it and I will say it again. They have worked hard for that agreement, but we want our area carved out of the agreement.
As we propose in our submission at page 9, if you are so confident of paragraphs 33, 34 and 35, why do you not include them in Bill C-9 as you have done other things? Amend the bill to include those paragraphs. If you believe the briefings you have had, add on another clause: The approving and ratifying of the Nisga'a Final Agreement will not hold us nor bar us from negotiating freely in our own territory. That is the second amendment that we are seeking. As Mr. Sterritt said, we agree with carving off or suspending those chapters, those provisions, that have an impact on our territory. We provided you language on page 10 of our brief, in addition to clause 27 of Bill C-9.
As a house of second thought on legislation in this country, we seek your help so that we can have calm and certainty in our territory. This is what these agreements are all about; we have heard many times about the need for certainty. We want certainty as well. We are asking you to support us in adding these suggested amendments to clause 27. We have crafted the language for you, to make it easier for you.
The Nisga'a people may have told you that their neighbours do not want you to change anything in Bill C-9, but it is the prerogative of the Senate of Canada to do that themselves. We appeal to you to add those amendments, to support us and to take immediate action to do that. If you cannot do that, then there should be a litigation fund to support us in advancing our claim and to support those individuals who may be charged on the ground in exercising the constitutionally protected rights that they have always exercised, which our forefathers have exercised for centuries.
In the implementation of this bill, a Nisga'a fishing plan will be developed. It is being developed as we speak, and we have seen the initial draft. It talks about the entire Nass area. That will create uncertainty and confusion on the ground. I have talked to the fishery managers. They are scratching their heads. We asked them: Whose rights will take priority in our territory come June when the fish start coming? Whose rights will play out? There were about 10 people there. They all turned to each other. They had no answers to our questions.
In our last discussion, they told us that they are seeking a legal opinion on whether to uphold the constitutionally protected treaty rights of the Nisga'a or the undefined rights of the Gitanyow.
We left you some evidence as well. We cited what will happen to the wildlife because of the continuing uncertainty that will occur in our territory. The B.C. government has already flagged the concerns. That evidence is provided in the appendices regarding the B.C. government, the wildlife branch thereof; they have serious concerns about operational management on the ground.
I refer you also to paragraph 34. I ask our counsel to give you a brief summary of what the judge said in our case. Our case is called the Luuxhon case, named after one of our hereditary chiefs who live right on the boundary.
Chief Peter Hutchins, Legal Advisor, Gitanyow Hereditary Chiefs: Honourable senators, the Luuxhon case is still before the courts, presently on appeal to the Court of Appeal of British Columbia.
Our brief contains a section dealing with the systemic or structural flaws in the modern treaty process. It is very important for this committee to see beyond the immediate problem of the Nisga'a treaty and the particular problems of the neighbours of the Nisga'a, and see how this reflects on what is happening across the country. Frankly, it is a matter of national importance if indeed this country wants to continue, honourably, a treaty process and putting into place secure treaty arrangements with the First Nations and aboriginal peoples of this country.
There is a danger for the modern treaty process in what is happening. It is important for you to bear in mind what the courts are saying about this and, in particular, what the courts are saying about negotiations.
The courts are not just saying to go off and negotiate, that it is better to negotiate than to litigate. The courts are also saying now, very interestingly, that there is an appropriate conduct in those negotiations. The Luuxhon case is the most interesting of these cases. The courts are also directing both the Crown and aboriginal peoples as to the appropriate conduct. They are going behind the process and saying how that process should be conducted.
That information is absolutely essential. You cannot just send a group of aboriginals or a First Nation into a process with the Crown. One does not have to be a rocket scientist to know that there is no level playing field there. Despite some statements these days that aboriginal peoples are well equipped with many resources and competent counsel -- and I will not comment on that -- the truth is they will never have equivalent resources.
There are other serious disadvantages suffered by First Nations in the negotiations. An appropriate standard of conduct in those negotiations is necessary. The courts are beginning to say that at least there should be a binding duty on the Crown to negotiate in good faith.
Two cases are now before the courts. In the Federal Court of Canada, the justice in the Nunavik Inuit v. Canada case, which dealt with overlap and with Canada's conduct of treaty negotiations with Nunavik Inuit who reside in Quebec but who have territories into northern Labrador, declared that there is a legally enforceable duty on the Crown to negotiate in good faith. That was not appealed by Canada so it is a final judgment of the Federal Court of Canada.
As Mr. Williams mentioned, the Gitanyow also filed in the British Columbia courts an action commonly known as Luuxhon, addressing the same question: Does the Crown in its two aspects, federal and provincial, have a duty to negotiate with First Nations aboriginal peoples in good faith once they have agreed to enter into a treaty process?
In that case, Justice Williamson at first instance said, yes, the Crown does. As I say, that judgment has been appealed by both Canada and British Columbia. I do not know what the minister and the officials gave have been saying to you about how they conduct treaty negotiations. I can tell you, being right in the heat of preparing for that appeal and answering the factums of the two governments, that the governments are arguing strenuously that there is no legally binding duty to negotiate in good faith. It is all very political and discretionary.
We have the final decision, of course, and that case is an appeal. It is interesting that the courts are not just saying, as the Chief Justice said in Delgamuukw, that it is preferable to negotiate than to litigate. They are now going the next step, asking: How should those negotiations be conducted? That is absolutely essential. Otherwise, my experience is -- anybody who has worked in this area has the experience, and the Nisga'a of course have the experience -- that one spends many grinding years expending huge amounts of money and resources to negotiate a reasonable and equitable treaty. It is not easy. It is very wearing, and at the very least there should be some rules of the game. That is what the Gitanyow are trying to establish through the Luuxhom case.
There has been some discussion here about First Nations against First Nation, internal fights. There are differences, of course. The Luuxhon case in the British Columbia courts is a case brought against the Government of Canada and the Government of British Columbia. It is a case seeking declaratory relief -- seeking directions from the court as to the duties on those two Crowns.
Is there a duty to negotiate in good faith? That is the first declaration that is before the courts they have dealt with. A second phase of that case, a phase that is not yet before the courts, asks: If there is a duty to negotiate in good faith, have the Crowns breached that duty in concluding a treaty with the Nisga'a? Have they breached their duty toward the Gitanyow in concluding the treaty they have with the Nisga'a? That has not been heard by the court and will not be for some time.
That is what is happening in the Gitanyow specific cases. The Nunavik Inuit case that I described is the same thing. It was not a case brought against other Inuit, other aboriginal peoples. It was a case asking the court for directions as to the duties on the Crown.
The brief also suggests what we consider to be practical solutions. We would like to have some time to go over that with you, and specific amendments that Mr. Williams has mentioned. The brief also asks this committee to give specific direction to the Government of Canada in terms of what we perceive to be its undertakings and its commitments in the very language of the Nisga'a treaty. This is very important because there we will be talking about not amending the Nisga'a treaty but giving the non-derogation language a specific and real effect.
I should have disclosed at the outset that I do act as counsel in the Luuxhon proceedings or in other cases before the courts. Since we have raised the issue in the brief -- and I hope to be able to address it briefly -- I was also involved as one of the counsel in the negotiations of the James Bay northern Quebec agreement in the mid-1970s.
We bring that to the committee's attention as a possible -- not perfect, for nothing is perfect -- interesting precedent and model for resolving aboriginal overlapping claims. It is a model that has been on the books and has been the law of Canada for 25 years.
I sometimes scratch my head when I hear people in British Columbia asking, for example: How can we possibly resolve these overlap issues? It is all so complex and difficult. Staring us in the face is a concluded treaty, initially involving two aboriginal peoples and then a third aboriginal people, with substantial overlaps. It was worked out. We would like to have the opportunity just to point you to some of that material.
Perhaps this is an appropriate moment to break. I hope we have tantalized you sufficiently to come back tomorrow and fill it in.
The Chairman: I would like to ask you, Mr. Williams, are you available tomorrow morning?
Mr. Williams: Early in the morning.
The Chairman: How early is early.
Mr. Williams: 9:00 a.m.
The Chairman: We will start with you at nine. I hope you can wind up your presentation within about 15 minutes of 9:00 a.m., to allow an opportunity for senators to ask some questions. The evidence you have given us this evening has stimulated some real interest.
Mr. Williams: We have basically finished our presentation; we will need perhaps just a few more minutes.
The Chairman: Most counsel welcome the opportunity to review their submission and have another hearing, and I am sure you do too, Mr. Hutchins.
We will commence with you at 9:00 a.m., and you will fill the space that was vacated by Professor Monaghan. We will not be behind schedule.
The committee adjourned.