STANDING COMMITTEE ON
ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT
COMITÉ PERMANENT DES
AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD
[Recorded by Electronic Apparatus]
Tuesday, November 16, 1999
The Chair (Mrs. Sue Barnes (London West, Lib.)): Good morning, and
thank you for this wonderful centre. We're very glad to see so many
people from the public join us today.
Before we start our meeting, to those who are not presenting but have
a brief that they have given up for translation and later
distribution, once the meeting has started, if you have something, one
of our clerks out in the foyer would be happy to take any briefs you
wish to table. That way they can get to the committee's attention.
My name is Sue Barnes. I'm the chair of the aboriginal affairs and
northern development committee. We're very happy to be here with you
Before we start introducing our witnesses of the morning, I would
like to have the committee members introduce themselves to you.
Mr. Keddy, would you start for us, please?
Mr. Gerald Keddy (South Shore, PC): I'm Gerald Keddy, the member
of Parliament for South Shore, Nova Scotia.
Ms. Louise Hardy (Yukon, NDP): I'm Louise Hardy, the member of
Parliament for the Yukon.
Mr. Daniel Turp (Beauharnois—Salaberry, BQ): My name is Daniel
Turp and I'm the Bloc Québécois MP for Beauharnois—Salaberry.
I'm also the spokesperson for intergovernmental affairs
for my party.
Mr. Ghislain Fournier (Manicouagan, BQ): I'm Ghislain Fournier and
I'm also a Bloc Québécois MP. I represent the riding of Manicouagan in
Mr. Claude Bachand (Saint-Jean, BQ): I'm Claude Bachand, the
Member for Saint-Jean and aboriginal affairs critic. Saint-Jean is
located 25 miles south of Montreal.
I suggest to those who can hear me but who don't understand what I'm
saying because they don't speak French that they pick up a set of
earphones at the back. My colleagues and I will be speaking French
most of the time.
Mr. Jim Gouk (Kootenay—Boundary—Okanagan, Ref.): I'm Jim Gouk,
Reform member of Parliament for Kootenay—Boundary—Okanagan in
southeastern British Columbia.
Mr. Mike Scott (Skeena, Ref.): I'm Mike Scott, member of
Parliament for Skeena. Smithers is part of Skeena.
Mr. David Iftody (Provencher, Lib.): I'm David Iftody, member of
Parliament for Provencher in Manitoba. I'm also the parliamentary
secretary to the Minister of Indian Affairs and Northern Development.
Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): [Member speaks in
her native language]
My name is Nancy Karetak-Lindell. I'm the member of Parliament for
Nunavut, which is the new territory in the eastern Arctic.
Mr. John Finlay (Oxford, Lib.): I'm John Finlay, the member of
Parliament for Oxford in southern Ontario. I'm the vice-chair of the
aboriginal affairs and northern development committee.
Mr. Raymond Bonin (Nickel Belt, Lib.): I am Raymond Bonin, the
member for Nickel Belt in northern Ontario.
Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): I'm John
O'Reilly, member of Parliament for Haliburton—Victoria—Brock in
The Chair: Up here with me are our two researchers with the
committee from the parliamentary library and our two clerks. Then we
have some assistants, as I noted before.
The order of the day is Bill C-9, an act to give effect to the
Nisga'a Final Agreement. As we have started 15 minutes later because
of taking the bus as opposed to the plane here, we will go 15 minutes
later and make sure everybody has the full time we had intended.
We have with us as witnesses today chiefs from the Gitxsan Nation.
There is one change to the presentation. Chief Martha Ridsdale is
also speaking this morning on behalf of the Gitxsan, and then Chief
Earl Muldon and Chief Jim Angus. We also have at the table Chief Art
Wilson and Chief Rosaline Starr.
As I understand, we are going to have presentations from three, but
then with the committee being able to ask any of the parties as they
go along. We also have simultaneous translation for anybody who
speaks in their own language at this time.
A voice: Madam Chair, would I be able to speak today?
The Chair: I'm sorry, but the situation is that the public is
welcome to listen to this meeting, but this is for the witnesses who
have been scheduled from the Gitxsan Nation. Thank you very much.
A voice: [Inaudible—Editor].
The Chair: We will go with our scheduled witnesses for this
Chief Martha Ridsdale, welcome. Please commence.
Chief Martha Ridsdale (Gitxsan Nation): Madam Chair, honourable
members of Parliament, it's a pleasure to be here talking to you about
the Nisga'a overlap. We have been talking about this issue for many
years, and we are hoping to have this resolved today. I thank you
very much for being here. That is all I have to say.
The Chair: Thank you very much.
Would the next speaker, Chief Jim Angus, please commence?
Chief Jim Angus (Gitxsan Nation): [Witness speaks in his native
I notice some of you are a little antsy because there's no
translation. I will try to translate this after.
The Chair: The translation will be coming after. We have a
translator in the booth, and if you'll just stay on your normal
translation stations, it will come through during the pause. That's
what I've been informed.
Chief Jim Angus: [Witness speaks in his native language].
Three years, ladies and gentlemen, honourable members, guests, we
were in court reflecting on and telling the courts and this country of
our history as Gitxsan people. For every square inch of the
territories we own, there is a history. There is a name for all of
Delgamuukw, as the head of our clan, our Gitxsan people, was our head
representative. He was the key member, and the Delgamuukw court case
is a world-renowned court case. It's one that just about every person
in this world and every court of the world knows about.
Ownership and jurisdiction, honourable members, is who we are and
what we are; it's what we reflect. When we put our blankets on—and
you heard the songs today—those songs reflect the history of those
particular houses. Because we have an oral history, history is passed
down by way of song, by way of adaawk. Adaawk, as you
will hear or probably have heard, is the history of each particular
house, the name of the house, and the name of the chief. Within our
territory there are a large number of chiefs, and it's reflected in
our court case.
This booklet explains a lot of that, and we would ask that you, as
honourable members and people with the standing committee, take the
time to read that. Part of our very, very serious concern today is
that the Nisga'a have overlapped into territories of particular chiefs
who are sitting with us at this table. They have a history of that
territory. It is their land, and they are going to apply the laws of
our forefathers. We wanted to make sure you understood that.
With that, ladies and gentlemen, I will turn it over to Delgamuukw,
Earl Muldon, to carry on with the presentation.
The Chair: Go ahead, Chief.
Chief Earl Muldon (Gitxsan Nation): Madame Chair, honourable
members of the standing committee, chiefs, ladies and gentlemen, first
I would like to thank you for inviting us to appear and make a
presentation to you on those parts of the Nisga'a treaty that will
have a profound impact on our lives.
I would like to thank Mr. Mike Scott, our member of Parliament, for
impressing upon you the need to hear the voices of people in
northwestern B.C. We would not have been able to tell you directly
about our concerns if you had not been able to meet us on the
territory of our neighbours, the Wet'suwet'en, who are graciously
hosting us at this meeting.
My colleague, Wii Eelast, James Angus, has already explained to you
how we, the Gitxsan, have struggled to get recognition of our title to
our land through the Delgamuukw case. I would like to point out that
the Delgamuukw case is probably the most famous aboriginal title case
in history. It is quoted worldwide.
It just so happens that my uncle, Albert Tait, was so respected by
his fellow chiefs that he was chosen to be the lead plaintiff on
behalf of all the Gitxsan people. We were all in this case together
during the sad days of defeat and the happy days of victory.
It is therefore extremely ironic that the Nisga'a, with the
assistance of the federal government and the provincial government,
have been able to get fee simple title to a parcel of land in the
territory of Delgamuukw that is many miles outside of their
traditional territory. This blatant act of trespass is a violation of
both Gitxsan and Nisga'a law.
I would like to tell you about some experiences that my house group
has had with the Nisga'a on our lax'yip. Lax'yip, to some
of you who don't know, is our territory. Our lax'yip at
Gwinagiisduuxw connects us with Chief Maa li's lax'yip in the
Nass Valley near Meziadin Lake. Maa li is one of the head chiefs of
the wolf clan in the village of Gitanyow.
Several years ago the federal Department of Fisheries and Oceans
funded the Nisga'a to conduct fisheries studies throughout the Nass
watershed. This included a salmon spawning area within my territory
on the Gwinageese River. Our family and those of our immediate
neighbours in Gitanyow have a long history of obtaining fish from this
Our lands of Gwinagiisduuxw have been in continuous use for as long
as we can remember, from my great-great-grandfathers down through time
to my late mother. My brothers and I and my sisters and nephews
continue to use our territory as our grandfathers did.
My late mother made a moderate living from the resources of this
lax'yip until she passed away at the age of 83 in 1995. During
the trapping season, which ran from the beginning of winter and lasted
until early spring, my mother and father stayed in the cabins that my
brothers and I built on our lax'yip.
One spring we discovered that the Nisga'a fisheries crew had set up
camp in our cabins. We told them that they should evacuate our
lax'yip. We warned them that if they did not leave in two
hours, they might face the consequences. They heeded our warning and
left on their own accord.
Much to our surprise, however, we found that the Nisga'a returned the
next year and built two cabins on our lax'yip. They built those
cabins using financial resources from the federal Department of
Fisheries and Oceans. We again served them notice that they had
trespassed and we told them to leave. Gitxsan ayookw, which is
law, had to be invoked. We removed the cabins that had been
wrongfully constructed on our land.
It is wrong that the Government of Canada and the Government of
British Columbia continue to work with the Nisga'a to break our
trespass laws, for now we know that the Nisga'a Final Agreement
includes an island within the territory of Delgamuukw that has been
granted to the Nisga'a in fee simple. This property is just a short
distance from our cabins and about 60 miles from their core land
Even if Parliament endorses the Nisga'a treaty, I assure you that the
Nisga'a will never again be allowed to trespass on our lands. I'd
like to emphasize that. It is a serious business.
We cannot allow them to have access to our lax'yip. Both
Canada and B.C. know that the Supreme Court of Canada in its 1997
judgment in Delgamuukw set a very high standard when it said that
treaty negotiations “should also include other aboriginal nations
that have a stake in the territory claimed.”
This aspect of Delgamuukw requires that the Gitxsan be part of the
Nisga'a negotiations, at least with respect to Gitxsan territory and
In 1996 our representatives presented the same concerns about the
Nisga'a treaty to British Columbia's Select Standing Committee on
Aboriginal Affairs. In its final report in July 1997 the standing
committee recommended that unsuccessful attempts to resolve overlaps
between the first nations should be referred to the B.C. Treaty
Commission, with the further recommendation that the commission
include mediation and arbitration in the resolution process.
On several occasions we have formally requested that the Nisga'a and
the provincial and/or federal government appoint a mediator for the
purpose of resolving this issue. To date the Nisga'a leadership have
declined to participate in mediation.
As I mentioned previously, the Supreme Court has acknowledged, in
Delgamuukw, the process we have used to validate aboriginal title.
The court further stated that, and I quote, “aboriginal title
encompasses an exclusive right to the use and occupation of the
land...to the exclusion of both non-aboriginals and members of other
The court went on to say that “it may therefore be advisable if
neighboring aboriginal nations intervened in any new litigation”.
The same principle obviously applies to treaty negotiations.
Notwithstanding the acts of trespass I just referred to, it is our
position that the federal and provincial governments may have failed
to exercise due diligence or to fulfil their fiduciary duty to us, the
Gitxsan, by allotting lands and resources management to the Nisga'a in
Furthermore, it is our view that the province is involved in trespass
here, and it is unlawful for them to allot lands and resource
management to the Nisga'a in our lax'yip. Nevertheless, if the
Nisga'a treaty becomes law, then the province will have transferred
its act of trespass to the Nisga'a.
We agree that the Nisga'a should have a treaty. We agree that the
centuries-old effort by the Nisga'a to resolve their land claim should
be dealt with, but it is not right to create a further injustice in
We too have spent more than a century trying to obtain justice with
regard to the land. It is not unrealistic to take a little more time,
perhaps as little as six months, to deal with the issue of overlap.
There is a vast body of evidence in such publications as Tribal
Boundaries in the Nass Watershed, a 1998 publication, and the
chapter on competing claims in B.C. Studies, volume 120,
1998-1999, which will contribute to your understanding of this issue.
Your committee can and should take the time to review in detail the
issues we have raised. We are prepared to work with you in order to
get the work done right and expeditiously. We look forward to your
questions, ladies and gentlemen.
The Chair: Thank you very much for your presentation.
For the information of people gathered today, we will go to our first
round of questioning. We will start with the opposition parties for
five-minute rounds. The five minutes, ladies and gentlemen, is for
both the question and the answer. After that the government will have
a chance. Then we'll be alternating back and forth, again in
five-minute rounds, until there are no more questions or the time has
I will warn people again today that I will try to keep to the time so
that people can follow up on each other's questions. It becomes a
dynamic exercise in this way.
Mr. Scott, perhaps you'd like to commence.
Mr. Mike Scott: Thank you, Madam Chair.
Thank you, Chief Muldon, for coming here today and telling the
committee about your concerns. I would like to ask you what
specifically you would want to see this committee recommend to
Parliament as a result of the hearings we're conducting in British
Columbia right now. We're going to be asked to make amendments to
this legislation and to report back to Parliament. What in particular
would you like to see recommended as a result of this meeting here
Chief Jim Angus: Ladies and gentlemen, we have with us Chief Elmer
Derrick, George Muldow, and Gordon Sebastian, who can answer some of
the technical questions. I would like to call on Gordon Sebastian to
answer the question Mr. Scott asked.
Mr. Gordon Sebastian (Member of Xsimwitziin): Thanks for the
question, Mr. Scott.
What we would like to see is an amendment that the portion of the
overlap not be given the force of law. As you heard Mr. Delgamuukw
say, the province will have transferred its act of trespass to the
Nisga'a. So we feel basically that right now the legislation on
Gitxsan territory is trespassing and breaking our laws of trespass.
For the governments to pass this piece of legislation, we feel they
have to make a consideration that this is a further act of trespass by
the province. We would like to request that the committee request
that the overlap not be given full force until Mr. Delgamuukw's
concerns are dealt with. Thank you.
Mr. Mike Scott: Thank you.
I think I heard Chief Muldon say during his address that he would
like to see the ratification of this treaty put off for as little as
six months, I believe you said, in order to give the parties involved
an opportunity to try to resolve the overlap situation. Is that the
thrust of your recommendation, that during that time you would like to
see the kind of amendment Mr. Sebastian has suggested incorporated
into the treaty? Is that really what you're looking at?
Chief Earl Muldon: Yes, I would like to see that. It would give us
a little time to look at this issue. Up to this date this whole issue
has been ignored by the Nisga'a, the province, and the federal
government. I would like to see time given to us to have our little
say on what is happening here on the Nisga'a Final Agreement.
Mr. Mike Scott: Have you had meetings with the Nisga'a leadership?
I know you touched on that a little bit, but could you give the
committee some further information? Have you had meetings with the
Nisga'a leadership in the last four or five years to try to resolve
this? What has come about as a result of those meetings?
Chief Earl Muldon: Basically, off and on, as you realize, the
chief of Delgamuukw, my Uncle Albert, my brother Ken, and finally
myself have taken a seat with Delgamuukw. Over the last 15 years we
have tried and tried to get to the table to discuss the overlap, but
it has never happened.
The Chair: Go ahead, Mr. Bachand.
Mr. Claude Bachand: First of all, I'd just like to say how very
much my colleagues from the Bloc and from the other parties
appreciated the welcoming ceremony you held for us. I've often
attended such ceremonies in my capacity of aboriginal affairs critic.
We were deeply moved by your performance and by your colourful dress.
It is a great pleasure for us to be here in Gitxsan territory.
I have two requests to make. Firstly, there are representatives of
the Department of Indian Affairs in attendance. When I get back to
Ottawa, I intend to ask these officials for a different map than the
one we have here today. I think it should be possible to come up with
a map that includes the Nisga'a land and the overlapping territory. I
don't think you're alone in this situation. The Gitanyow, who will
also be making a presentation to the committee, are experiencing a
Mr. Muldon, could someone step up to the map and show me the location
of the overlapping territories? When I get back to Ottawa, I'm going
to ask the department to provide us with some explanations of this
overlap and with a map. Could you quickly point out the area in
question to me?
Chief Elmer Derrick (Negotiator, Gitxsan Nation): This is the area
in question that he mentioned. He talked about the Gwinageese River,
which is about 60 miles from their core lands. There's the Meziadin
Lake up here. I won't take up too much of your time. The whole
Gitanyow territory starts about here. I'll be able to explain it in
better detail afterwards.
Mr. Claude Bachand: I'd like some clarification and perhaps you
can answer my question later. I don't know whether you're familiar
with the agreement, but page 25 contains a provision which spells out
the sequence of events that takes place if a conflict arises with
other aboriginal nations. I would also like to draw your attention to
article 34 of this agreement. It stipulates that if a superior court
of a province, the Federal Court of Canada or the Supreme Court of
Canada makes a determination, two things may happen. You've told us
that the matter is before the courts and that you are awaiting their
rulings. Therefore, two things are possible. Firstly, the courts may
rule that the provision will operate and have effect to the extent
that it does not adversely affect rights. However, as I understand it,
in this instance, there are some adverse effects. If that's the case,
then the provision will not operate and the parties will make best
efforts to amend the agreement. If a court finds in your favour and
determines that the agreement adversely affects your rights, then you
must make an effort to amend the agreement. Do you believe that such
an attempt would be pointless or, on the contrary, would you be
willing to make an effort to come to some agreement with your Nisga'a
The Chair: Chief Jim Angus.
Chief Jim Angus: Thank you for the question.
I have to admit, and maybe Gordie has looked at page 25 of the
agreement that deals with the lands that are in question, what I would
like to see is that we do not wait to apply that clause on page 25 to
deal with the particular issue of overlap.
I believe that this committee, if they wish, could make changes or
set it up in a way that this particular area of land is dealt with,
before the agreement is signed. There may be an amendment that needs
to be made to the agreement, and the small portion of it that has to
do with the overlap should be set aside. It should be amended or set
up in such a way that it can be dealt with and not become part of the
agreement as it is today. Our chiefs are very, very strong about
that. If you listen to what Delgamuukw had to say, he said the area
of trespass will not be allowed. I would not want to see us come to a
point that we are going to have to deal with people that trespass on
our lax'yip. I believe as legislation is looked at there can be
a way found to set it up so it can be dealt with expeditiously, very
quickly, so that problems will not arise between our nations, our
brothers, the Nisga'a.
We made it very clear also in our Delgamuukw statement that we want
the agreement to go through. We support what they're doing, but we
are not in agreement with the overlap. That is Gitxsan territory. We
have adaawk, we have history to that territory, and there has to
be a way found for it. I believe it's a little too late to apply page
25 of the agreement.
The Chair: Ms. Hardy, please.
Ms. Louise Hardy: You've stated that you do agree with the treaty
process because it will be beneficial to everybody involved. I know
there have been a lot of treaties, particularly in my area, where
there are overlapping jurisdictions. If your treaty came first, so
that you had claimed this land, which obviously the Nisga'a lay claim
to as well, would you want your treaty held up in order to deal with
it, when there are provisions in the treaty to deal with overlap? I'm
just worried that if we can't go forward with treaties because
everything isn't agreeable to everybody, the treaty process will be
slowed down even more.
The Chair: Chief Angus.
Chief Jim Angus: What I said earlier was that we support the
process, we support the Nisga'a with regard to their agreement. We
believe that what they're wanting is what they're wanting. It may not
reflect our thinking as Gitxsan people. The agreement we're working
toward is very different from that of the Nisga'a.
I believe the process can be set up in a fashion that the Nisga'a can
have an agreement, but have that portion of overlap left for a period
of time to still be dealt with. We don't want to hold up the Nisga'a
agreement, but it can be set up in such a way that this particular
area will be dealt with at a later date. And a process needs to be set
up, because if you heard what Delgamuukw said earlier...[Witness
speaks in his native language]. And those are just a few people
who have lands and territories that are overlapped by the Nisga'a.
Those territories have to be dealt with. We believe there are ways
and means to do that and still go with the agreement, which deals with
the major part of our territories. But leave those particular areas
alone. There can be amendments to this agreement that would allow for
a subagreement, in particular, to deal with the overlap at a later
The Chair: Thank you.
Mr. Gerald Keddy: Thank you, Madam Chair.
I would also like to welcome the Gitxsan delegation to the committee.
It's a pleasure to be in British Columbia.
I should mention that I'm the critic for Indian affairs and northern
development and for natural resources for the Progressive Conservative
I had written a letter to the minister some time ago regarding the
overlap with the Gitxsan, and the minister's answer was that this
would be put to the B.C. Treaty Commission and that there was a
process in place already that would deal with the issue. In the case
that there were specific claims that couldn't be dealt with, there
were still aboriginal rights for other bands protected under the
I'm not 100% sure that I agree with the answer; I'm just stating it.
You had mentioned the possibility of some type of binding arbitration,
so I guess my question to you is if you went to binding arbitration
with a negotiator, sat down with the Nisga'a Nation and your nation,
the two of you together, would you be satisfied with that answer if
the ruling didn't come in your favour?
Chief Jim Angus: I will ask Chief Gordon Sebastian to answer that
particular question. It's a good question.
Mr. Gordon Sebastian: Thank you.
We have an arbitration process and we will be able to show how the
Gitxsan have possessed the land for the last 10,000 years. You would
then believe and understand our position in terms of how the Gitxsan
have this ancient connection to the land, and you will find that the
reason the Nisga'a have never met with Delgamuukw is that they may not
have that same connection. So you will see clearly how it is that
Delgamuukw is connected to those territories. We would certainly
invite any sort of arbitration, as Delgamuukw indicated. The Nisga'a
have never participated with us, although we've tried many times with
our ayookw. We've invited them to our Gitxsan meetings, and
they've never participated.
Mr. Gerald Keddy: I have another question.
The lands in question are category B lands, outside of the category A
lands. There is still a fee simple title process, but it's a
different process, a different categorization from the category A
lands. How much land is there in total? I'm just looking at the map,
and it really doesn't clearly define it. Is it a couple of square
Mr. Gordon Sebastian: The Nisga'a fee simple lands are not that
large, but in terms of the Delgamuukw lands, the lax'yip is a
very large area.
Mr. Gerald Keddy: I understand that. I'm trying to narrow down
the amount of land the Nisga'a have claimed inside of what you
recognize as your tribal boundaries.
Mr. Gordon Sebastian: I understand it's a few hundred acres.
Mr. Gerald Keddy: Okay.
Mr. Gordon Sebastian: In terms of the territory itself, it does
affect the paying the Nisga'a a certain amount of resource and lands
with lands taken from another group of people, not from the provincial
The Chair: Ms. Karetak-Lindell, please.
Ms. Nancy Karetak-Lindell: Thank you.
Are you in the process of a land claims negotiation right now too?
Do you have parcels of land that are already identified right now, in
Chief Jim Angus: We missed the question. Sorry.
Ms. Nancy Karetak-Lindell: Are you in the process of doing a land
claim agreement right now, or have you submitted a land claim
application to secure your lands? And do you have those lands
identified within your group for that process?
Chief Jim Angus: Yes. As was mentioned earlier, the Delgamuukw
case is a very famous case. We spent three years in the provincial
court system and McEachern came down with a ruling that basically
denied our claim. There was a Supreme Court of B.C. hearing that made
some movement with regard to what we were claiming and then we went to
the Supreme Court of Canada. The Supreme Court of Canada dealt with
it in a bigger way, where we gained a lot of our title.
Gordon will be better to speak to the title portion of it with regard
to how the Supreme Court of Canada came down with a claim, but there
are maps. And if you look at the three-year court case we had in the
provincial court system, there were a huge number of chiefs that were
in the courts that actually talked and gave the adaawk.
If you remember what I said earlier, adaawk is the history of
who we are, the simogit, the chief's name, how it came about,
the house name of that particular chief and how it ties to the
territory or the lax'yip, as we call it. And sure, yes, we do
have a claim that is very, very well defined and it is in the court
We also went to the treaty table for a couple of years, and the
treaty table fell apart because of the different positioning we had.
The province backed away from it and so did the federal government. So
yes, we do have a claim, and it's very well defined.
Ms. Nancy Karetak-Lindell: But you had those lands identified
specifically as to which parcels of B.C. you're claiming?
Chief Jim Angus: Yes.
Ms. Nancy Karetak-Lindell: Okay.
My next question then is I can't see a first nations group of people
claiming land without having claim to it. I haven't had a chance to
ask the Nisga'a about it, but what reasons are they giving that it is
also their claim, that it is their land? They must have some claim to
it and some explanation as to why they would include it within their
Secondly, is there any possibility whatsoever of joint use of that?
In your earlier presentation you talked about trespassing, and in the
English term today that means if one person has it nobody else can get
Chief Jim Angus: Thanks for the question.
I believe we need to reflect on the fact that if you look at the
Calder case, there was a presentation by the Nisga'a with regard to
their boundaries. Then if you look at the different cases later on
there were presentations by the Nisga'a and their maps changed. As far
as we can see there are at least three changes from the time they
started, at least two more after the Calder case.
With regard to sharing land, we have tried. Our people have tried to
meet with the Nisga'a to compare. We actually went to one of the
meetings, and I was present at that meeting, where our people, one by
one, around the boundaries that connect with the areas, especially in
the overlap areas, gave our adaawk. Our simogit gave the
history of the land.
I mentioned earlier, when we talk about history, simogit
Delgamuukw has the name Delgamuukw. The adaawk reflects how
Delgamuukw's name comes about. The adaawk reflects how the name
of the house of Delgamuukw comes about. The adaawk reflects how
Delgamuukw has ownership and jurisdiction over the particular lands
they have, and there is a history of how those lands and territories
come about that Delgamuukw has ownership and jurisdiction of.
That is what we presented in the courts. If you go back into the
courts where they have the documents of the courts, especially of the
three years, you will see the very detailed and comprehensive
explanation of our adaawk—it is reflected in that—that each
one of our chiefs have given. You take that, what the Gitxsan have
presented in the courts, and with all due respect to the Nisga'a, go
to their adaawk and see what it looks like. That is what Gordon
Sebastian mentioned earlier. I believe when you really look at the
details of our presentation with regard to how and why we claim the
land.... And by the way, we don't claim the land; it is our land,
there is no question about it. We were here, we own it, we still own
it, and we'll still own it 50 years from today.
When we practise in a feast, the process in the feast hall is
activities that happen within the government of the Gitxsan people;
the government of the Gitxsan people is practised in the feast system.
The chiefs are there to witness the different activities, the change
of names, the change of territory jurisdiction, etc., and that is who
we are. We had a government before contact, we have a government
presently, and we'll have a government for years to come.
The comments our chiefs made when we were going to court.... Our
existence is not because of legislation from any government. Our
existence is because of who we are.
I hope I covered some of the areas you asked.
The Chair: Thank you. Mr. Gouk, please.
Mr. Jim Gouk: We have raised the question of land in dispute and
overlaps and the potential of court cases dealing with this, and the
general feedback we receive from other parties is that it is not a
serious problem because the courts will deal with it and it's in the
treaty. But I've heard you today say there will be consequences of
trespass, and I can understand a concern of any group to say it's okay
to take our land and then we'll try to get it back. I can understand
your concern in dealing with that.
So when you say there will be consequences of the trespass, and
others may think the consequence will be court action and they're
prepared to accept that, do you have definitions of consequence of
trespass other than a simple court action?
Chief Earl Muldon: As I explained, there is something really
missing here, both from the federal and the provincial government.
There is lack of consideration to even look at the previous existing
laws we have of this land. Basically, what's happened here is the
newcomers to the land have applied English law to its fullest without
recognizing the laws of the land or even listening to any of it. It's
kind of difficult; we have a system that was already in existence
before the newcomers settled the land.
I would like just to see that they look at some of our law, study
some of it and how it applies, because what's happened basically now
is that these laws of the way lands should be dealt with are simply
imposed on us. That's not the way we deal with land. I think there
should be an opening there to listen to how the native people have
applied laws to the lands they have existed on.
Mr. Jim Gouk: I don't disagree with you. These things should be
settled and, I believe, settled before any treaty is entered into. I
think one of the great errors of the treaty process is that all people
inside, over a particular region, where there can be overlap like
this, where there is not agreement...otherwise, you try to correct a
right for one group by creating a wrong for another, and we've
What I want to know about, if you can answer, is this. Most people
feel the overlap is not a real problem, that it is not a reason to
slow down or delay the implementation of the Nisga'a agreement,
because the court will deal with it. You will make a claim and the
court will deal with it. However, you said there will be specific
consequences of trespass. In telling us today of some of your more
recent history, you mentioned actions you have taken when trespass
occurred. I think it's important that the committee understand the
consequence of implementing the treaty without resolving this. Is it
only court action? Or is there something else you would do to protect
the lands that you have stated are yours?
The Chair: Chief Angus.
Chief Jim Angus: That is a very good question. Our ayookw is
set up in such a way that Delgamuukw land is Delgamuukw land and
another chief has no right to walk on that land. There is a process
that is in place with regard to our ayookw, our laws as Gitxsan
people. It allows us to trespass on Delgamuukw land. I will probably
get two warnings. The third time, it's not going to be a warning.
Very direct action will be taken.
With regard to what is happening with the treaty process and the
Nisga'a treaty, if it's a final agreement, it was very clearly stated
to all of you as honourable members that by signing this agreement as
a final agreement for the Nisga'a people, you will have turned over a
trespass to the Nisga'a, and they will trespass our territories, our
We have really seriously discussed and talked about what would
happen. We're here today to try to persuade you that there have to be
means and ways for this overlap to be dealt with, by way of an
amendment, by way of a special clause that enables us to deal with
this particular overlap; you can add it to the agreement at a later
date if need be.
If you sign that agreement, it becomes law, part of the laws of the
province and the federal government, and it will infringe on our
aboriginal title of ownership and jurisdiction. If that were to
happen—and I say “if”—we will act on it, likely through the
courts, and we will deal with it. Our view of this is that we see it
as a waste of resources to have to go that route to try to correct
something after it has become law. We believe the overlap needs to be
We don't have a problem with you signing an agreement with the
Nisga'a, but remove that overlap portion of land and deal with it. It
can be added to the agreement at a later date.
The Chair: Mr. Gouk, you're out of time.
Mr. David Iftody: Thank you. Thank you very much for your
presentation, chiefs and members.
I must say, Madam Chair, that I do recognize some of the faces around
the table. I've met with some of them in Ottawa on previous occasions
in discussing this particular matter.
I have a question, which I can perhaps put to Chief Angus, if I may.
The disputed territory you outlined only moments ago appears on the
top right-hand corner of the map. For those who can see it, there is a
little triangle there. You mentioned a lake, I believe. It's one of
the most contentious issues. In looking at that map, it's my
understanding that the area under dispute is probably about one or two
square kilometres. I'll make that my first point.
The second point is that in a negotiated process, and in the
negotiated process with the Nisga'a, there's always give and take and
compromise. We heard from a Mr. Barton yesterday. In his testimony,
he complained loudly. He has been to court on two occasions, at the
lower and appeal court levels, disputing the Nisga'a treaty. He
believes his rights as a member of that community were violated
because the Nisga'a settled for 8% of their traditional territory. He
feels, in his own words, if I can quote him properly, that this was
some kind of sellout.
But obviously, when the Nisga'a started with 100% and ended up with
8% of their wish list, this was a three-year, very difficult process,
in which give and take occurred. They settled what they felt was a
very honourable settlement—with some relief.
I am led to believe by the positions taken by your groups that you
are sort of maintaining that 100% position. In other words, if I
contrast your feelings, your views—which I must say parenthetically
here that I personally respect very deeply—I am having some
difficulty in the concept of fairness. If that territory is quite
small and the Nisga'a have reduced theirs.... Incidentally, they have
no governmental jurisdiction over that area that you point out.
If they reduced theirs to 8% and you're still out there at 100% in
your negotiating position.... Don't you think first nations brothers
and sisters could negotiate a settlement that is reasonable, peaceful,
and amicable and that we wouldn't have to talk about these things such
as trespassing and so on? I know that with your own people you find
it difficult even to say it publicly.
I guess this is my reasoning. For that piece of land up there, you
want to halt the whole treaty process. Under the principles of equity
and fairness, sir, I'd like you to explain to the committee how you
arrived at that. Perhaps you could answer those questions, Chief
Chief Jim Angus: Thank you for the question. I've said it before:
we do not want to hold up the Nisga'a treaty. It never was our
intent. Our focus is particularly on the area of overlap. We have,
over the last 15 years and even longer than that, tried to negotiate
with the Nisga'a. In our approach at the very beginning when we
talked treaty, we said to the treaty process that overlap land is an
internal matter among the first nations people, that it's not for the
government to settle. We still say that. It is not for the
government to step into Delgamuukw territory and say they are going to
give Delgamuukw territory to the Nisga'a. It isn't. We're saying
that territory is ours.
The other rider to our negotiations at the treaty table has always
been coexistence. It's a matter of definition as to how far we are
going to go with respect to ownership and jurisdiction and the sharing
of those particular areas.
At this time we're not in the position to make that statement that
we're prepared to share. It may be only two square kilometres, but
that land belongs to our people and we believe we should have been
involved when the Nisga'a treaty was negotiated. When it touches the
land of the Gitxsan people, we should have been sitting at the table
when that particular area of land was being talked about.
With that, I'd like to ask Gordon Sebastian to add to those comments.
Mr. Gordon Sebastian: You see, we never had the overlap claim
until about the second map that the Nisga'a produced. Way back in the
early days when they first went to Victoria and Ottawa, they had
Nisga'a lands. We don't know the reason for them expanding into
Gitxsan territory, but as you know, we have the ancient connection,
which has been stated to you quite strongly today.
The Delgamuukw decision from the Supreme Court of Canada sets out a
process to recognize those ancient connections. That is why that
particular decision has been left out of the Nisga'a situation. This
case was developed by the Gitxsan, and the decision itself applies
strongly to the Gitxsan position. There's no way the Gitxsan will
lose those territories through land selection or government giving it
away. So you're stuck with the Gitxsan and the ayookw, the
Gitxsan law, and Delgamuukw.
Mr. David Iftody: Thank you.
What I'm sensing here is that we're moving away from the actual point
of dispute in the sense that it's one or two square kilometres, but
there's a sense that you're saying to the committee that it's not so
much the land in question but being included in discussions, and you
feel that your feelings have been disrespected or hurt in some way.
Is that what you're conveying here?
I would say to you, sir, that I would think, given the overall
picture of this thing, I know if you held your court case abeyance to
sit down with the affected parties and negotiate a settlement, I truly
believe this can be accomplished quite easily, given the small size of
the property under dispute. It should not become the thin edge of a
wedge for ongoing problems between two first nations.
Mr. Gordon Sebastian: No, you're not hurting our feelings; what
you're doing is attempting to use land that has belonged to the
Gitxsan people for at least 10,000 years. We buried our people. Our
blood is in that land.
It's not our feelings you're hurting. What you are doing is ignoring
the Gitxsan. That's what you're doing, and that's just the basis of
The Gitxsan have attempted many strategies to indicate to the public
how the Gitxsan are connected to the land and have continuously been
ignored. Sadly, if you think you're hurting our feelings, I think
we're just going to have to sit down together so that we can educate
you as to how we're connected to the land so you will understand that
trespass is very important to the Gitxsan, and also to the Nisga'a.
They know what they have done. Your government also knows what they
have done. The Gitxsan are telling you that the tolerance level is
going to be very low.
The Chair: That's it for that round.
You're next, Mr. Bachand.
Mr. Claude Bachand: Madam Chair, with your permission, I'd like to
correct something that my colleague Mr. Gouk said. He maintained that
according to the general feedback received from other parties, the
problem wasn't that serious and that the courts would deal with it. I
have to say that the Bloc Québécois is not a firm believer in letting
the courts resolve disputes. Just yesterday, we discussed this. We
favour a negotiated settlement of disputes.
I also wanted to let Mr. Angus know that I understand his strong
sense of attachment to the land. I have an amusing tale for you. When
I was appointed aboriginal affairs critic, I went to see
representatives of the Mohawk Nation, one of the proudest nations in
Canada, and I told them that we were prepared to give back the lands
that had been taken from them. Their answer was: "We don't want the
lands back. They've always belonged to us." I understand your
fundamental ties to the land and I can understand your position on
Now, before you decide to take direct action—and those are your very
own words—let me just say that we are firm believers in the
negotiation process. This process must be followed through to its
natural conclusion and in my view, that hasn't happened yet. We are
pleased that the Nisga'a have concluded an historic treaty and we are
pleased to have been participants in this process, but everyone
deserves justice. Clearly, there is a problem here. And this
afternoon, we will hear about another problem when the Gitanyow Nation
make their presentation to the committee.
There are three possible courses of action. The committee can step in
and say that it doesn't want the government to enact the legislation
until such time as these disputes are resolved. That would be very
difficult, but admittedly, not impossible, for us to do. We can bring
pressure to bear on the federal government to attempt mediation, with
the help of the British Columbia Treaty Commission. You've requested
mediation, if I understand correctly, but the Nisga'a have refused.
Finally, there is the possibility of negotiating the terms of the
treaty's implementation. The interesting thing is that once the treaty
is signed, apparently it's no longer part of the agreement. The
support of British Columbia, the federal government and the Nisga'a is
not required to implement the agreement, because it's a separate
chapter. I'd like to meet with your team of negotiators later to see
if we can explore this matter further. I believe this is one option
worth considering. I have to tell you right now that this is also our
preferred course of action. We would like all parties to reach an
amicable settlement and for everyone to be comfortable with this
settlement. As I understand it, you're not pleased with the agreement
because part of your territory is being taken from you.
If you like, I can meet with you later and leave you my business
card. If we need to get in touch again once I'm back in Ottawa, then
the Bloc Québécois will be more than happy to listen to your concerns.
I'm interested in your reaction to the chapter on the implementation
of the treaty.
Chief Jim Angus: Thank you for the comments, and thank you, Madam
Chair, for recognizing.
I want to start responding to those comments by making something very
clear. Our adaawk as Gitxsan people includes a history, as I
said, of the name of the chief, the house of the chief, the
lax'yip of the chief, the crest of the chief, and the totem pole
of the chief. That particular adaawk includes all of that.
That particular adaawk includes one of the most important
factors as Gitxsan people, and that is land, lax'yip, and
lax'yip is Delgamuukw. Delgamuukw cannot let go of his
When you hear people making statements that our land is not for sale,
that is exactly what we mean. We will not be separated from our land,
and we want you people to know that. We want you to understand why
there were certain statements made at this table today that we will
apply our trespass laws if need be; we will go through the courts if
need be. We're saying to you that this process need not stop, but
that particular area needs either to be amended or a special clause
put into it so it's dealt with at a later date.
I am very pleased to hear my friend asking to meet with our
negotiators in our group so that we can look at avenues and try to
deal with the particular issue of overlap, and we will most certainly
set up to do that. We want to connect with people who want to know
about who we are. But I want to make it very clear: land and the
Gitxsan you cannot separate.
The Chair: Okay. That's the rest of that time.
Mr. Finlay, go ahead, please.
Mr. John Finlay: Thank you, Madam Chair.
I want to thank our visitors for their candour and their outline of
the problem. I must say I also support the suggestions from everyone,
including Mr. Claude Bachand.
I guess I've served on this committee longer than anyone else
present, or at least as long. I have a very uneasy feeling, and I
want some questions answered, because I think we're not quite
You went to the map. The green land is Nisga'a land. The land in
dispute, I take it, is a little bit of category A or B land.
A voice: It's B.
Mr. John Finlay: Okay. Within the huge territory—and I have your
maps, because I met with you in Ottawa—which surrounds like a huge
halo all that land.... There are three sections in this
agreement—33, 34, and 35—that cover precisely what you are talking
about. But you see, you're not really talking about a little piece of
two square kilometres; you're talking about a principle.
I must say it's too bad that two first nations who've lived on this
land for 10,000 years or more, and apparently peacefully, I take it
from your description, and with laws that set out trespass and so
on.... It's not a very good example for us to have you say you cannot
settle this issue without arbitration, or we must go to the courts
over a few hundred acres.
You mention the term “newcomers”, Chief. Do you have newcomers in
this Delgamuukw land we're talking about? Yes or no? Do we have
newcomers? And how did they own their land? Did they have a
fee-simple title to their land within Gitxsan territory? Do they own
the land now, then? Were you compensated for it?
Are they Canadians too, as I trust you believe you are? We have a
constitution that covers you and all the rest of us in this country.
I think I've been misled, because it seems to me that in answer to my
colleague's question, you said yes, you were in treaty negotiation.
Well, I'll have to find out about that. That's not the way I hear
what you're telling me. I hear you telling me the court came down
with a decision that was favourable to you, and that's fine and we
have to live with it. But there is a treaty process in B.C., and it's
not going to change radically. So I'm not sure whether you're here or
whether we're in never-never land.
I go back three and a half years, when we were trying to settle a
problem with management and land claims on a river in northern B.C.
and the Yukon. Mr. Ovide Mercredi came to talk to us, and it was very
difficult to talk about the problem at hand, because he wanted us to
tell Parliament and everybody else that aboriginal people owned the
whole country, and then we'd go from there.
We recognize that that was the situation, but we have some years of
history, and the rest of the citizens of B.C. aren't going to go away,
so eventually we're going to have to settle the problem.
I think it's too bad, Chief, that with all your oral history, which
is somewhat similar to that of the Scottish clans', who had tartans
and chiefs and who fought together.... You people got along without
fighting very much, I take it, and I don't think now is the time to
Thank you, Madam Chair.
The Chair: Thank you.
Chief Earl Muldon: Thanks to the last speaker for his comments
about citizenship. In my work I've travelled the Orient—Japan,
Korea, you name it—and I've worked there. He called me a citizen of
Canada. It's very rare that this happens, that anybody believes we are
truly citizens of Canada.
We too believe that, but I'd like to relate a little experience.
When I was in Tokyo, the Government of Korea asked me to come as a
Canadian citizen, as a native person, to go and work in Seoul. To be
able to do this, I had to go to the Canadian embassy in Tokyo. That
just about knocked the wind out of me.
I went there and applied for a work visa as a Canadian citizen to go
to work in Tokyo and represent Canada. The embassy in Tokyo told me I
was not really a Canadian citizen according to the Canadian
government. I was a ward of the government. They look after me.
Now, it's really hard to take something like that when you were born
in Canada—generations of your elders have lived there—and yet you're
still not fully recognized.
I was told they would write a letter to Ottawa. I said, well, why
don't you fax it? He said no, it's legal to mail it. That meant it
would take three weeks to get over there, and if it gets off somebody
else's desk, it could be three or four months before it got back to
them at the embassy. And this was something an immediate decision was
That's just to state that to so readily call me a Canadian citizen, I
The Chair: Chief Angus, I understood you wanted to add a point
before we go the next round.
Chief Jim Angus: Yes.
The Chair: We're just about finished the time for this round, so
please go ahead.
Chief Jim Angus: I'm sorry to sense a little bit of disrespect
from my friend who just spoke about questioning us with regard to our
In 1982, section 35 of the Constitution recognized first nations
people. What Delgamuukw mentioned just now applies to me. I live on
a place they call a reserve, in Kispiox. I don't own the land I live
on. I'm basically a ward of the government. I have a house, which
I've spent all kinds of money on to improve, to make it livable, so
that I enjoy my life in that particular house. I don't own that
house. That is why we're trying to deal with our situation.
With respect to the newcomer comment, as far back as our history
gives us, we can probably cite that we were in existence 10,000 years
ago in this country. We made contact with newcomers when they came to
this country maybe 150 years ago in this portion of the country. In
the east it was 300 or 400 years ago. That's what we're talking about
when we're talking about newcomers.
Do the newcomers have property on our territory? Yes. We have always
said, right from the very beginning when we sat down and went to
court, that we could coexist with the newcomers to this country.
This particular community we're in now is owned by the non-native
people who live here. We recognize that. We accept the fact that they
can stay here. How we deal with them later, when we have an
agreement, has to be worked out with regard to taxes, laws, etc. That
has to be worked out.
We were in a treaty process, but as I said earlier, the federal
government and especially the provincial government backed away from
that process. We have tried in every area to set up an agreement with
regard to dealing with government, dealing with third parties, and
dealing with the newcomers to this country.
With all due respect to the newcomers—and a lot of them are my good
friends, so I'm not calling them newcomers to be disrespectful—we
have made efforts at those particular things.
The overlap issue needs to be dealt with. We're prepared to look at
different avenues. We are very prepared to do that.
Thank you for listening.
The Chair: Ms. Hardy, please. No questions?
Mr. Keddy, do you have questions?
Mr. Gerald Keddy: Yes, I have some questions, Madam Chair, thank
The question of land ownership is certainly a question I recognize
and understand fully. I say that as a farmer, as someone who works
the land and can walk over the lands I control, certainly, and show
you every rock and every tree and every brook on it. What we have
here, I think, is an issue of ownership, but there's also a greater
issue at stake.
I wasn't privy to all of the negotiations that went on with the
Nisga'a, but it was my understanding that when that process was in
place, all other first nations affected by Nisga'a land claims and
everybody else affected—for instance, sawmills and logging
interests—would be part of that negotiation process.
I can tell you for a fact that the Progressive Conservative Party
supports the treaty process, because we see that as putting closure on
a number of issues that have been ongoing, and we have to move on from
that. However, we talk about arbitration.
If you sat down with a negotiator and you didn't receive the
negotiated answer you were looking for, would there be another
possibility? It's obvious the Nisga'a have some interest in these
lands. I assume these interests are because it's part of the
headwaters on the Nass River, or part of the headwaters that feed the
Skeena, or the area where salmon are spawning that all the first
nations are using. Is there an opportunity that, for instance...?
I don't want to put words in your mouth. I'm just trying to present
a different scenario.
If the Gitxsan had responsibility for that area because those areas
affect other bands—salmon are spawning on those grounds, say—would
you be willing to look at some type of overall agreement where all the
user groups who benefit from the salmon returning to spawn in those
areas, if that's correct, would have some say in how those areas are
preserved? I could ask that to the Nisga'a as well.
For instance, maybe you'd look at a forestry operation that wouldn't
encroach upon your riparian strips or your riverbanks and that
wouldn't dig gravel out of the banks. Would you recognize that other
groups would have some interest in that area even though you would
retain ownership of that land?
Chief Earl Muldon: You're referring to one of the comments made
about salmon and things like that.
With regard to the territory I mentioned in my speech, I personally
have been involved there for about 30 years, and my ancestors were
there before me. We have been basically managing the resources from
that area for 30 years, inasmuch as my family has provided the mapping
of some of those particular territories as far as salmon streams are
concerned. I've worked with the game department to protect the grizzly
habitat, the swan nesting. Basically, I've laid out on the map where
the salmon streams exist and what kind of salmon and what kind of
trout live in the lakes around the whole area. That's how I have
treated my territory and the territory around it.
I have worked with the game department, the biologists and the
forestry to see that the land is used properly. So it's nothing new
for the Gitxsan people to have helped through the newer agencies to
manage some of those territories now.
Mr. Gordon Sebastian: Dealing with third parties and also with
ownership, Mr. Angus has indicated clearly that the Gitxsan have
ancient possession of this land. And when you have possession of land
in a common-law world, the person who is trespassing has to show
better title. So your governments, federally and provincially, have to
show better title.
So where are you going to get that better title from? My suggestion
is you're not going to. So you're going to have to recognize the
Gitxsan possession of that territory, and we're going to have to
reconcile that possession with your interests.
The Gitxsan indicated clearly at the start of our court case, in all
our negotiations, that we're willing to accept third-party interests.
We've always stated that. We do not want to exclude anyone; we always
want to set up a process to accept the third-party interests. But
before the third-party interests are there, we don't like the
imposition that's been done.
I don't know if it's the Liberal Party or not, but I have a sense
that a Reformer slipped in over there. I'm just teasing.
The Gitxsan have to be recognized in terms of their ancient
possession of the land. That's all we're stating here today. We just
want that addressed. So if there's a process my friend can come up
with in terms of negotiating how the third-party interests are going
to be dealt with, including the Nisga'a.... They're becoming a
third-party interest on our lands, so we want to set up a process to
deal with that. It's going to take leadership from the Liberals.
We like the Bloc Québécois. They want to meet with us and we'd like
to invite them over. We'll set up a process and work together on how
we're going to deal with third-party interests on Gitxsan land.
That's all we're talking about.
The Chair: Mr. Iftody.
Mr. David Iftody: Thank you, Madam Chair.
I'd like to pick up on the line of questioning, and I think Mr. Keddy
was going there as well. We seem to be circling around the same
notions in terms of some settlements. I'm very interested in
clarifying the thinking of the group here today with respect to parts
of the general provisions within the Nisga'a agreement.
In paragraphs 33, 34, and 35 of chapter 2 I believe that is again
being consistent with the Supreme Court instructions in Delgamuukw.
There are provisions within the agreement whereby if section 35
entitlements or rights by other parties are affected by way of the
Nisga'a agreement, there are avenues, remedies available to address
those specific concerns. Frankly, it allows the affected parties to
bring those rights forward in the appropriate milieu or context and
perhaps to argue those.
Without repeating too much and pressing the point too far, I would
really like to hear from your technical people on their views on these
particular paragraphs. Perhaps I could take a few minutes to read the
...if the provision cannot operate and have effect in a way that it
does not adversely affect those rights, the Parties will make best
efforts to amend this Agreement to remedy or replace the provision.
What they're talking about, of course, and previous to that, is the
affecting of rights.
Let me go back to paragraph 34, and I continue to quote:
If a superior court of a province, the Federal Court of Canada, or the
Supreme Court of Canada finally determines that any aboriginal people,
—and I would suspect in this case that would be the good folks in
front of us—
other than the Nisga'a Nation, has rights under section 35 of the
Constitution Act, 1982 that are adversely affected by a provision of
Then it sets out in subparagraphs (a) and (b) two avenues where we can
deal with these contemplated problems. I already quoted from the
second one. Subparagraph (a) says:
a. the provision will operate and have effect to the extent
that it does not adversely affect those rights;
So what they're saying in legal jardon here is that there are
possibilities other than getting into disputes about who is
trespassing and what will be done and how many warnings will be given.
There are provisions even within the treaty itself and consistent
with other Supreme Court decisions that allow the affected parties to
address these problems.
So if you have read this paragraph and are familiar with the general
provisions of the treaty, there are possibilities for the two affected
parties to sit down and come to some resolution about the concerns—in
this case, the two square kilometres of land. We do have those
provisions in the treaty.
I'd like your technical people to comment on paragraphs 33, 34, and
35, and if they are at all comforted by those provisions in the
treaty, which I believe, Madam Chair, speak directly to the concerns
Chief Jim Angus: Thank you.
First off, I would like to point out that we're not talking about a
few kilometres of territory; we're talking about quite a large
amount—4,303 square kilometres in the Nass watershed and 3,486 square
kilometres in the Portland Canal and Observatory Inlet. So we're
talking about a large area of land here, and we're not satisfied with
this particular paragraph.
Mr. David Iftody: Excuse me. I want to clarify that.
When you went to the map earlier, in the top right-hand corner you
mentioned the name of the lake and you identified a small area where
we have a a small triangle. Each one of those areas in that lighter
pale-yellow area represents, as I understand it in reading the bottom
of the map, a few square kilometres. That was the hot spot of this
deeply contentious issue. Your folks pointed that out this morning.
But now you're saying it's somewhere different.
For the purposes of the arguments on this particular issue, I think
we should stay very focused and clear on that particular area, because
your earlier intervention, sir, or at least that of the people who
appeared before you, clearly outlined that was the area of contention.
I don't want to spill over into other areas to confuse the facts here.
It's really important to stay focused on those particular points of
contention that we might be most helpful in resolving. That's the
point I want to make.
Then I'd like to hear your comments on whether you think the
provisions in the treaty under paragraph 35 on guaranteed
rights—which are yours—can be of some help to you.
Mr. Gordon Sebastian: Yes, thank you very much. I would just like
to point out again that the area we are talking about is a large area.
If you recall, Delgamuukw said: “I would like to tell you about some
experiences that my house group has had with the Nisga'a”. So when
he referred to some experiences, that included the little area you're
But what we're talking about here is the Delgamuukw lax'yip.
That's the whole territory and all the other houses that are involved.
We're not talking about a small area here. We want to keep your
focus on the Gitxsan lax'yip, the Gitxsan territory. We don't
want you to lose that focus now or to belittle the position we're
taking here. We don't want you to go away with any impression that
you've negotiated a reduction of the Gitxsan territory.
The Chair: I would like a clarification, as the chair. I
understood that Chief Elmer Derrick pointed to that one small area.
Is that not what happened earlier today? I just think we should be
clear on this, because we will be talking apples and oranges then.
Chief Elmer Derrick: Yes, Mr. Bachand asked about the territory
Delgamuukw was referring to. I had to point it out at Gwinageese
The Chair: So that was the less than two square kilometres area.
Chief Elmer Derrick: That's right.
The Chair: Thank you; that's the clarification I needed.
Gordon Sebastian, go ahead.
Mr. Gordon Sebastian: Just to keep going, we are talking about all
the territory, all the Gitxsan lax'yip. We're not talking about
the small little fee simples. The fee simples come in terms of third
parties and the Nisga'a legislation.
With regard to this section on other aboriginal people, the Nisga'a
know right at this very moment that they're gluk, that they have
caused an embarrassment to themselves by encroaching on Gitxsan
territory. They have never wanted to meet with the Gitxsan or the
Gitanyow to deal with that.
In terms of the ayookw, the Nisga'a have the same ayookw
as the Gitxsan, and they understand them clearly. They have now
embarrassed themselves. So they will have to deal with that, and
we'll deal with them under our own laws, as to what their obligations
are and what our obligations are in those terms.
Since this is a third-party process that's set up within the
legislation itself, we don't feel it is sufficient, because the terms
of reference in there do not deal exactly with what we're concerned
about. Because of the negotiation process, we don't feel that the
federal government has set up terms of reference to deal with the
Gitxsan process, as to how we are connected to our territories,
through our ancient connection to the land.
The federal government has never set up policy or terms of reference
to deal with the Gitxsan or the Gitanyow. Sure, this is nice, and we
appreciate it, but we would like to have been consulted further as to
how to deal with the terms of reference in this particular section.
Then we could have dealt with it. But as I said earlier, we've been
ignored. We and Delgamuukw are here to tell you we want those changes
made before any further encroachment happens on Gitxsan land.
The Chair: Thank you.
Mr. Scott, please.
Mr. Mike Scott: Yes, thank you Madam Chair.
You've mentioned several times that the Nisga'a maps have changed
over time. I'd like to deal with that just for a minute.
I've had the opportunity to read the book Tribal Boundaries,
written, I believe, by Neil Sterritt, who is Gitxsan. It is my
understanding that the change in the Nisga'a maps did not occur as a
result of the Nisga'a looking at alternate areas from the original map
they were working from; it was actually an expansion of the areas. Is
that your understanding as well?
Chief Elmer Derrick: Yes, Mr. Scott. From the time the
comprehensive claims process started, we have been following the way
the Nisga'a have changed their boundaries. If you review the history
of their claim, they have continually taken the approach that their
traditional lands included the whole Nass River watershed. We've
always come to the table saying let's determine who has aboriginal
title to that. That's basically why my colleague, Chief Angus,
pointed out that we spent a few years in court, providing much detail
about the lax'yip of Hleekamlaxya, Will goobl, Delgamuukw, and
others who have legitimate claims to the territories in the upper
You will hear from the Gitanyow how they justify their territories
and their title, which includes a small part of that green area on the
Nisga'a core lands.
Over the past couple of years, the federal and provincial negotiators
have not taken the Nisga'a to task to have them justify their claim
title to the territories. We're still willing to sit down, go through
an arbitration process, and have somebody make a ruling, if necessary,
on who has actual title to the territories that are involved.
We take very strong issue to the fact that the Nisga'a have always
overstated their claim, and the core lands probably exceed more than
25% of their legitimate territory. We don't quibble with that. They
pulled one over on the negotiators from the crown. But we take issue
with the fact that they still use our Gitxsan territories as part of
how they arrived at their claim.
Mr. Mike Scott: Thank you, Mr. Derrick.
I'm familiar with what I think was the first map the Nisga'a used in
the 1970s, during the time of the Calder case. If my memory serves me
right, that particular map showed about 7,000 square kilometres of
territory that the Nisga'a were claiming as traditional Nisga'a
territory. In the final negotiations in the late stages of the
Nisga'a agreement, that map had been redrawn to include 23,000 square
kilometres of land, including territory that had been claimed by the
Gitxsan and Gitanyow people. Am I understanding that correctly?
Chief Elmer Derrick: As I said, we have been monitoring how
they've altered their maps over a period of time. If you go back to
the historical documents from 1913, you will find that they are fairly
close to their traditional territory shown on the first map they
tabled in 1913.
Mr. Mike Scott: Thank you.
Could you explain for the benefit of the committee the relationship
between the Gitanyow and the Gitxsan, just so everybody understands
what that relationship is?
Chief Elmer Derrick: If you look at the relationship we have, in
terms of how the Gitanyow have developed their own claim, they are
still part of what we regard as the Gitxsan Nation. I was born in
Gitanyow myself. My father was a chief of Gitanyow and both my
grandfathers were chiefs of Gitanyow. But my title is located in
Gitsegukla. A lot of the people who are living in Gitanyow now have
titles elsewhere—Kispiox, Gitsegukla, Gitwangak, and other Gitxsan
The Chair: Thank you.
Go ahead, Mr. Turp.
Mr. Daniel Turp: Thank you, Madam Chair.
First of all, we're pleased that you want to meet with us to consider
possible solutions to this problem, one that clearly is important to
you and undoubtedly to other nations.
I'd like to ask you if it's possible to devise some process and come
up with a solution to this sizeable problem, without threatening the
Nisga'a agreement in the process.
You realize, as we have, that many people, for various reasons which
in our view are unfounded, do not want to see the Nisga'a agreement go
forward. Some of these people are seated right here at this table.
Like most of the political parties represented in the House of
Commons, we want this agreement to be ratified and implemented.
Can you find a way to resolve this dispute with the Nisga'a regarding
the issue of overlap without threatening the overall agreement as
Chief Elmer Derrick: As has been stated by other chiefs here, we
have tried to sit down with the Nisga'a over the past number of years,
and we have received letters from the several different Ministers of
Indian Affairs suggesting we participate in a treaty process to arrive
at a resolution for our situation. We have resisted participating in
the B.C. Treaty Commission process, as was correctly pointed out by
It was suggested by Mr. Nault in a letter he replied to, which was
received by Jane Stewart, that we deal with these matters directly
with the Nisga'a, using the B.C. Treaty Commission process. We have
tried to use the B.C. Treaty Commission process, and as was pointed
out by my colleague Jim Angus, we were left sitting at the table when
the B.C. government abandoned our treaty process a few years ago. We
tried to use the B.C. Treaty Commission to bring the Nisga'a to the
table to take us through this process of resolving their overlap,
their claim over our territories. They resisted. They clearly
The B.C. Treaty Commission process had suggested we develop evidence
for them and the arbitrator to review, and we did that. It took us a
long time to develop the tribal boundaries book, and it cost us a
substantial amount of money, money we didn't have. We expected the
Nisga'a to produce the same kind of evidence that was asked of us, but
they never did.
So what we're saying right now is we're still willing to sit through
and deal with the bringing of information to the table that will
review both sides of the evidence, both the evidence we presented to
the Supreme Court over a number of years and the tribal boundaries
book, as well as other evidence that you'll hear from our oral
I don't see why this Bill C-9 has to be rammed through Parliament.
It has to be done right, and I do believe you have more than enough
time to allow us to take it through an arbitration process and have
this parliamentary committee monitor that process so that both
parties, both the Nisga'a and ourselves, are heard properly. I don't
see any urgency of ramming this thing through Parliament. We agree
that it's a very important issue, and it has to be dealt with
properly; it has to be done right. We're willing to participate in
any process that takes us through that just and rightful process.
The Chair: Ms. Hardy, do you have any further questions?
Mr. Keddy, go ahead please. This will be the last five minutes.
Mr. Gerald Keddy: There are a couple of issues at stake that I
think you and everyone else in this room should be absolutely clear
on, and that is the fact that this treaty's been signed by the
Nisga'a, it's been signed by the Province of British Columbia, and
it's been signed by the Prime Minister. So really, it's going to be
very difficult to present amendments to the process at this point. I
suspect the rest of the opposition parties as well have no problem
putting an amendment in, understanding the difficulty in the process
of getting it approved.
For all intents and purposes, the treaty is ratified now. It's only
awaiting the ratification of Parliament. That doesn't make this
process completely futile. I think it's an important process, and
it's a good thing we're out here in British Columbia, but we shouldn't
underestimate the difficulty of changing the Nisga'a treaty from what
it is at this time. With three parties agreeing to the change, it
certainly can be amended.
There may be room in the process to put an amendment in—and I think
you suggested that at the beginning—to enable it to be resolved in
the future, and still ratify the treaty as it exists. This would be
without coming down and trying to make a decision we're not capable of
making, with the information in front of us right now, clearly, of
who's right or who's wrong or how this can be resolved. I'm not sure
that can be done or if we can get that type of an amendment approved
by Parliament, quite frankly; however, the possibility is there.
Would you agree to go along with that process, if there's room in the
treaty for an amendment or for a negotiated process after it's
approved? I realize I'm not presenting exactly what you're looking
for, I'm just...
Chief Elmer Derrick: As I said, I believe there's time for this
committee to allow us to make our case directly, under a supervised
situation, between ourselves and the Nisga'a, so that we can justify
our title, as we've done in the courts.
Mr. Gerald Keddy: Thank you.
The Chair: Anything further, Mr. Keddy?
Mr. Gerald Keddy: No.
The Chair: Okay. I'm going to take these last few minutes to
thank very kindly all of the witnesses today. I think you've helped us
in our process.
To my colleagues, even though we went the 15 minutes over to give the
full time this morning, we will commence sharply in 45 minutes for our
afternoon meeting here.
Chief Angus, do you wish to say a word?
Chief Jim Angus: I'll be very brief with my thank you to the
standing committee for asking questions, because that, to us, is very
important. That education needs to be done across this country so
that you understand first nations people.
I am very glad to hear that it may be very tough to make
amendments, but it's possible, very possible.
With that, on behalf of the chiefs, on behalf of the Gitxsan people,
thank you very much for the opportunity to be heard. May God guide
you as you carry on with the work you need to do.
The Chair: Thank you.
The meeting is adjourned.