THE SIZE OF THE FONT)
Extract from the Journals of the Senate, Wednesday, April 12, 2000
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, An Act to give effect to the Nisga'a Final Agreement,
And on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Andreychuk, that the Bill be not now read a third time, but that it be read a third time this day six months hence.
After debate,
With leave of the Senate,
In amendment, the Honourable Senator Sparrow moved, seconded by the Honourable Senator DeWare, that Section 3 of the Bill be amended by adding the word "not" following the word "is".
The amended Section 3 will therefore read:
"3. The Nisga'a Final Agreement is not a treaty and a land claims agreement within the meaning of Sections 25 and 35 of the Constitution Act, 1982."
After debate,
With leave of the Senate,
In amendment, the Honourable Senator Sparrow moved, seconded by the Honourable Senator DeWare, that Section 27 of the Bill be amended by adding the following:
"which day shall not be earlier than the date upon which the Supreme Court of Canada pronounces on the validity of the Nisga'a Agreement."
The amended Section 27 will therefore read:
"The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council, which day shall not be earlier than the date upon which the Supreme Court of Canada pronounces on the validity of the Nisga'a Agreement."
Debate.
-----
With leave of the Senate,
The Honourable Senator Hays moved, seconded by the Honourable Senator Kinsella:
That all Senate Committees scheduled to sit at 3:30 p.m. today have power to sit while the Senate is sitting, and that Rule 95(4) be suspended in relation thereto.
The question being put on the motion, it was adopted.
-----
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, An Act to give effect to the Nisga'a Final Agreement,
And on the motions in amendment of the Honourable Senators St. Germain, P.C., and Sparrow.
After debate,
The Honourable Senator Kinsella for the Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator DeWare, that further debate on the motions in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Extract from the Journals of the Senate, Tuesday, April 11, 2000
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, An Act to give effect to the Nisga'a Final Agreement,
And on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Andreychuk, that the Bill be not now read a third time, but that it be read a third time this day six months hence.
After debate,
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator LeBreton, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Extract from the Journals of the Senate, Monday, April 10, 2000
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, An Act to give effect to the Nisga'a Final Agreement,
And on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Andreychuk, that the Bill be not now read a third time, but that it be read a third time this day six months hence.
After debate,
The Honourable Senator Carstairs for the Honourable Senator Christensen moved, seconded by the Honourable Senator Wiebe, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted. WEDNESDAY, March 29, 2000
The Standing Senate Committee on Aboriginal Peoples has the honour to present its
FOURTH REPORT
Your Committee, to which was referred Bill C-9, an Act to give effect to the Nisga'a Final Agreement, has, in obedience to the Order of Reference of February 10, 2000, examined the said Bill and now reports the same without amendment, but with the observations appended to this report. OBSERVATIONS During the course of its hearings on Bill C-9, your Committee heard testimony concerning the potential impact of the Nisga'a Final Agreement on unresolved overlapping land claims of the Gitxsan and Gitanyow Nations in the Nass Valley region of northern British Columbia. Your Committee recognizes that the parties have attempted to address this question by including provisions in the Nisga'a Final Agreement that aim to preserve and protect the rights of Aboriginal peoples other than members of the Nisga'a Nation. Your Committee is nevertheless deeply concerned about the implications of outstanding overlap issues, not only in relation to the Nisga'a and neighbouring First Nations, but also in the broader context of the ongoing British Columbia treaty process involving over 50 First Nations. Your Committee therefore strongly urges the federal government and its negotiating partners to pursue vigourously all means at their disposal to ensure that overlap issues are resolved to the satisfaction of concerned First Nations prior to the conclusion of future land claim agreements.
Speaker calls:
Presenting Reports from Standing or Special Committees
Senator Austin rises and says:
Honourable Senators, I have the honour to present the Fourth Report of the Standing Committee on Aboriginal Peoples which deals with Bill C-9, an Act to give effect to the Nisga'a Final Agreement.
Senator Austin gives Report to Page. Clerk at the Table reads Report. Sponsor of the Bill (Senator Austin): THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Tuesday, March 28, 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 6:00 p.m. to give consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: Honourable senators, I see a quorum. I therefore call to order this meeting of the Standing Senate Committee on Aboriginal Peoples to give clause-by-clause consideration to Bill C-9 and to consider whether the committee should also attach opinions to the report of the committee.
Senator St. Germain: Mr. Chairman, I should like to deal with a couple of matters before we begin with that business.
Ms. Wendy Lockhart-Lundberg previously tabled a submission with us. It was incomplete and I wish to submit the complete submission to be attached to the record.
The Chairman: Certainly.
Senator St. Germain: As well, a petition was sent to me from non-native permanent residents of the Nass Valley. I do not know these people, Mr. Chairman. The petition says:
We, the non-native, permanent, residents of the Nass Valley and the Irene Meadows Community, would like it to be known to the members of the senate that Mr. Bill Young, not a permanent resident (owner of Tillicum Lodge and Nass Camp, a business operation) does not represent our feelings or opinions on the Nisga'a treaty and lands claims. We would appreciate the chance to have the Senate hear our views.
I should like to have this petition attached to the record of the committee.
The Chairman: You have read it into the record. Could you read the names of the petitioners.
Senator St. Germain: They are Larry Nord, M.K. McIntyre -- I cannot read the next one -- Marty Cox, a Jepson, I think. The names are not printed beside the signatures and they are very difficult to read. Their addresses and the date they signed the petition are included. The signatures were affixed to the petition beginning on March 20 and ending on March 28.
(Take 1810 follows - Senator St. Germain continuing: Two petitioners are from Aiyansh and the rest are from Nass Camp…) DC/Aboriginal/36169/March 29, 2000
(Senator St. Germain: continuing.)
Two petitioners are from Aiyansh and the rest appear to be from Nass Camp.
The Chairman: We will circulate the petition to all members of the committee.
Shall we proceed to clause by clause consideration of Bill C-9?
Senator St. Germain: I would like to raise a point of privilege or a point of order.
The hard copy transcripts that have been provided are not complete, according to one of the senators on this side. In view of that, I think we should deal with it. I do not know why they are not complete. I personally have not perused them, but Senator Andreychuk has and feels that some of the questioning that transpired between she and the minister is not part of the record.
That being so, Senator Andrechuk feels that her privilege is being violated in view of the fact that this has been presented as a complete transcript. We stand to be corrected on this. We brought this to your attention this morning, and we have been going through the tapes since that time. The only possible way to reconcile this would be to go to the CPAC recording that took place during that portion of the hearings.
I beg the indulgence of the chair to deal with this immediately, if we can, sir.
The Chairman: It is remarkable that Senator Andreychuk does not speak to the point.
Senator St. Germain: She will.
The Chairman: Is this Senator Andreychuk's point or your point, Senator St. Germain?
Senator St. Germain: It should be everyone's concern, not only hers. However, since I am the deputy chair, I brought this matter forward. I now yield to Senator Andreychuk.
Senator Andreychuk: As you know, I raised some points this morning that were significant to my concerns and deliberations. I have gone through the transcripts, as you notice.
I indicated last week that it was very important and that I wanted to go through all the evidence to ensure that I weighed properly and adequately all the evidence that had been put forward. I went through the evidence from Thursday, March 23, 2000, and some of the questioning that I put to the minister does not appear in the transcript. That is rather germane to my assessment. I do not want to go on recollection on that evidence because it is very crucial to me.
I would prefer and I think it is my right to have the transcript so that I can review the evidence and it appears to be missing. How that has come about, I do not know. There must be some way of rationalizing with our main recording and this transcript, because there is certainly a piece missing.
The Chairman: It is an interesting issue that you raise. What makes it interesting is that the Senate does not provide transcripts that have been edited, they provide an instant electronic reprocessing of what was said. The accurate transcripts are probably not available for some days and this is the normal course of Senate process.
The committee's consideration of issues does not to rely on transcripts; we are to rely on evidence given, the notes that we take and the impressions that we have of cross-examinations.
We endeavour to assist senators by producing these electronic transcripts overnight. However, the transcripts are not necessarily totally accurate. I cannot see your argument, based on every committee which wishes to look at transcripts of evidence given by witnesses waiting for the two or three weeks in the process that is taken here.
However, there is a CPAC "transcript", and we have made a request to compare it to the electronic transcripts which were taken for this committee. That evidence, to assist you, will be available shortly.
Mr. Michel Patrice, Clerk of the Committee: The evidence should be ready within 24 hours.
The Chairman: There is no precedent for a Senate committee not proceeding with clause-by-clause consideration in the absence of a minor amount of material in the evidence.
It may be very significant to you, Senator Andreychuk but it is a few minutes out of hours and hours of evidence that has been given in the committee. If there is a precedent, I would like to know it. I have not heard of one in a case like this. Thus, I am proceeding as a matter of normal practice here. If any committee has ever interrupted its consideration of a bill to await a transcript at the request of one or two senators, that is something new to me.
I would be happy to hear from any other senator on this issue.
Senator Andreychuk: I have never been put in this position before. I have been put into two positions, either the transcript was not necessary to my deliberations, or second, when I have said that they were, we have adjourned to allow the transcripts to come forward so that we could incorporate them into our consideration.
To be in a position to move ahead and particularly on something as fundamental as this proposed legislation, without what I believe are the very germane questions -- it is curious, many of the other questions that are here I think are important questions, but do not necessarily go to the nub of what I need to determine how I vote on this issue.
The Chairman: Are there other senators who wish to address this question?
Senator Nolin: I am new to this committee and I was informed of that little problem this afternoon. I understand that Senator Andreychuk has asked, with the full agreement of the committee, to review the transcript and the committee agreed to that.
Do I understand that even if this were a correct transcript of what took place, of the hearing of this committee, it does not matter? I find that preoccupying. We will need to understand what happened exactly. It may be minor, even if it is only one page that is missing.
I was not there, but if the minister admitted something to a question, if it is only one paragraph of a one-inch thick document, it does not matter, that admission from the minister, and according to what Senator Andreychuk just said, it can change her mind. We must respect that.
Mr. Chairman, you must suspend the work of this committee to ensure that the full transcription of what the minister said is available to all the members of this committee. Then, when you will be satisfied as chairman that what took place in your committee is properly transcribed in the documentation of the committee, then your committee will be able to proceed properly. That is my opinion.
The Chairman: Would Senator Andreychuk tell us what evidence is missing?
(Take 1820 commences, Senator Andreychuk: This is the dilemma I have.)
Victoria Aucoin /March 28, 2000/Aboriginal Peoples #36169
(Following Take 1810, The Chairman, what evidence is missing. TAKE 1820 begins here.)
Senator Andreychuk: The following is the dilemma that I have. I remember not the exact words of the question I put to the minister, and that is the difficulty. It was in the line of questioning as to minority rights with the Gitanyow and the Gitxsan. There was a series of questions about whether the minister -- and this is where my memory fails me in exactly how it was phrased. I asked him whether he thought and believed that the Nisga'a claim was valid on the disputed lands, and was he therefore taking the position of the Nisga'a in the land dispute, to which he answered that he was.
I want to be absolutely certain how the question was phrased and what the answer is. It seems to be very germane to me on that issue. Unless my eyes are failing -- but I also have had some researchers look at it -- I cannot find that portion of the transcript.
The Chairman: Actually, I read that evidence when I reviewed Minister Nault's testimony. I have just asked the staff here to see where it is in the transcripts we have provided.
Senator Gill: If we are able to get something that was missing right now, who will decide that we will get what we want to get? Who will say, "This is the thing that we are looking for?" Who will decide about that?
The Chairman: Me. Anything I decide can be appealed by this committee.
Senator St. Germain: In the full Senate?
The Chairman: In the committee to begin with. Of course, a question of privilege can be raised in the Senate tomorrow on this item.
Senator St. Germain: If you can find it, Mr. Chairman, it will resolve the entire problem.
The Chairman: Senator Andreychuk asked the question on page 46 of the transcript. It is marked 46, but this is not the page.
I will read it and then we will put it on the other pagination. Senator Andreychuk asked the minister:
Senator Andreychuk: Is it your position at the table that the lands in dispute, but covered by the Nisga'a agreement, are legitimately within the purview of the Nisga'a?
Mr. Nault: Yes. If it is proven otherwise, through a process outside this treaty, then we will make the necessary changes. That is the protection we allow in the treaty. We certainly would not be going ahead with this treaty if we did not have an opinion, or the belief, that this was the process in which we believe.
Senator Andreychuk: I believe it follows in that sequence.
Senator DeWare: Was there another question?
Senator Andreychuk: I believe there was another question.
The Chairman: What we have next is Mr. Molloy speaking to the issue as follows:
Mr. Molloy: Under the British Columbia Treaty Commission process, First Nations define their traditional territories, as the Gitanyow did and the Gitxsan, did and we were negotiating based on the territories that they described. We recognized that there is a overlap issue between the Gitxsan and the Gitanyow and the Nisga'a. That is why we put in those three sections.
There, he is referring to sections 33 to 35. He goes on to state:
That is also why, over a period of time, we tried to bring the parties together.
Mr. Molloy then goes on:
Mr. Molloy: With respect to the area where there is overlap, we have provided the rights to the Nisga'a in respect of matters that are affecting them. It is their wildlife rights that they are managing in the wildlife area, and it is their hunt and so on. We are not dealing with other people's rights. There is no reason in the world that other rights cannot be negotiated in that overlap area with the Gitanyow and the Gitxsan.
Senator St. Germain then asks: "What about the fee simple?" Mr. Molloy answers that question. I then say, "Senator Andreychuk, are you done?" Senator Andreychuk says, "I have just one more question." And the question is not too long. Mr. Nault answers it. It is a question on a reference that Mr. Estey gave in his evidence. There is then more testimony between Senator Andreychuk and Mr. Nault. The last sentence states:
Mr. Nault: … I would not be prepared to wait until the courts decide for us because we would then go back to the same problem we have had for a number of years, namely, letting the court define "political relationship." Let us define a relationship that needs to be done in a modern context by us, as parliamentarians.
I have several pages that seem to be knit together. I think you got your answer on the record, namely, that the minister believes that the lands do belong to the Nisga'a, based on the evidence that was submitted to the department.
Senator Andreychuk: My difficulty is that I have a recollection of slightly different questioning than just this point. I do not know what your page is, but it fits into page 34 and on to page 35 such that I am wondering whether it is complete. That is why I was asking for that reassurance.
The Chairman: I will say that it is it is not, in my view, appropriate that, on one or two senators' recollections that are vaguely different, that the committee stop its work. There are two remedies for the senators who are dissatisfied: one is a question of privilege in the Senate and the other is debate on third reading.
Senator Tkachuk: Before we got into this general discussion that we just completed, I was there when Senator Andreychuk was questioning the minister. The question was put that lands agreed to in this agreement were those of the Nisga'a and he said "Yes." There was then another question.
I do not know whether they changed the blues in the minister's office -- I do not think so -- but that is not what happened there or, at least, it does not follow that that is what happened.
The Chairman: I am bound to see the record and ask Senator Andreychuk what is missing. She told us what she thought was missing. I believe it is there. She has her answer. If her question to the minister was, "Do you agree that these are Nisga'a lands", he made it very clear that that is his view.
Senator Rompkey: There are no blues, as I understand it, for electronic transcript. All we get in committee work is an electronic record, unedited. If you were to wait for the final Hansard, it could be weeks down the road. I understand that committee Hansards are the last thing that we get. The priority is with he Hansard in the chamber. If you were to see the actual record that has been edited by the Hansard staff, it would be weeks down the road. That means that this committee's work would be hung up for weeks.
In 27 years, I have never seen committee work interrupted by means of an electronic Hansard question. As in all discussions, we bring our questions, we get our answers and we make up our minds individually as to what we believe. This is an unusual occurrence for me; I have never encountered it before. I agree with the position that the chair has taken.
Senator St. Germain: Mr. Chairman, in the spirit of getting on with the program, I would ask the clerk to pursue the CPAC tape and make it available. I have talked to Senator Andreychuk. She can speak for herself, but if she is correct, then she could bring up the point of privilege in the Senate and we will deal with it in that manner. How is that?
(TAKE 1830 follows, The Chairman: That is acceptable. That is my view of how to proceed...)
The Chairman: That is acceptable, thank you. That is my view of how to proceed.
Senator Andreychuk: Mr. Chairman, I just want to put this on the record. It may not have been brought up in 27 years, as Senator Rompkey says, but if a senator feels that there was a certain line of questioning -- I want to be absolutely certain, before I use the evidence before me as full and complete, that in fact it actually is. I do not want to taint anyone or their judgment, particularly a minister, until I am absolutely certain that I have the record full and complete. What I was asking for was to be assured that the record is full and complete. I think that is a request that has been made before, and is properly made at this time.
The Chairman: The Senate provides these electronic transcripts for the convenience of the senators. The clerk has advised me that he will review the CPAC transcript with the electronic transcript and compare the two and show the comparison to Senator Andreychuk. He hopes to do this sometime in the next 24 hours.
Senator Andreychuk: I want to make another statement on that fact. We sat in almost deplorable conditions on Wednesday night in this room, with the heat and the length of the hearings, and then we proceeded immediately into the full-length day. It was not the usual hearings that we have in this Senate. I know some senators had to leave because it was too difficult for them to sit through.
I sat through it all, and I want to be absolutely certain that it was complete. There was also a lot of back and forth and questions being put to other questioners, et cetera, so it was not as clear-cut in my mind, and I wish to be absolutely certain.
It is not to cast aspersions on anyone, certainly not from my point of view, but electronic equipment fails as human beings fail, and I want to be absolutely certain before I take what I call a very momentous step in this process. This is not a bill, as you have pointed out, that is amendable. It is a very significant piece of legislation, and I do not take it lightly.
The Chairman: I think no one here takes it lightly, and we will try to complete the electronic record of your cross-examination at the earliest time. The clerk has it as his first priority.
I would like to say anecdotally that there was a time in the Senate -- and I think, Senator Andreychuk, you might have been here, although you are a bit young -- when the Hansards could not be produced the next day, and there were days when the Senate sat and Hansards were three and four days late. The precedent set in the Senate that I recall was that following a question of privilege there was ruling that said the Senate's business and public business moves on whether there is a Hansard there or not.
However, we have agreed to proceed, so let us do it and your rights are held in reserve.
We will proceed to clause-by-clause consideration of Bill C-9, to give effect to the Nisga'a Final Agreement.
In the customary way, I would propose that the preamble stand postponed, that the title stand postponed, that clause 1 stand postponed. I am following our normal custom for clause-by-clause approval. Is that agreed?
Hon. Senators: Agreed.
The Chairman: Then we move to clause 2 of the bill, and this is the definitions clause, interpretation.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 3 refers to the Constitution Act, 1982.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 4, the Nisga'a Final Agreement, rights and duties and saving clause.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 5, the Nisga'a Final Agreement is binding on and can be relied on by all persons, agreement binding.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 6, the conflict between agreement and laws.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 7 is next. Need I read them all or can I carry them all? With the unanimous consent of the committee, I do not have to read these paragraphs, paragraph by paragraph. Would that be agreeable?
Senator Tkachuk: Instead of going clause by clause?
The Chairman: Shall all clauses carry save and except the preamble, the title and clause 1, or would you like me to go clause by clause?
Senator Tkachuk: On division.
The Chairman: Thank you. We will move, then, to the preamble.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: The bill is carried.
Now we move to the question of observations. I have circulated a document with an observation that some senators are prepared to support. Should we discuss our observations? Is there any senator who wishes to lead off?
May I propose that we meet in camera to discuss our observations, or is there no interest in the committee in any observation, just the bill to be carried on division?
Senator Rompkey: By "observations", do you mean the paragraph that we discussed earlier today?
The Chairman: This is correct.
Senator Rompkey: That would have the force, as I understand it, of recommending that the federal government pursue the overlap issues and that these be resolved to the satisfaction of the First Nations concerned. I certainly can support that myself.
The Chairman: I see no need to have this in camera. Perhaps I could read the observation that was tabled, and consider it tabled now on our part.
During the course of its hearings on Bill C-9, your Committee heard testimony concerning the potential impact of the Nisga'a Final Agreement on unresolved overlapping land claims of the Gitxsan and Gitanyow Nations in the Nass Valley region of northern British Columbia. Your Committee recognizes that the parties have attempted to address this question by including provisions in the Nisga'a Final Agreement that aim to preserve and protect the rights of Aboriginal peoples other than members of the Nisga'a Nation. Your Committee is nevertheless deeply concerned about the implications of outstanding overlap issues, not only in relation to the Nisga'a and neighbouring First Nations, but also in the broader context of the ongoing British Columbia treaty process involving over 50 First Nations. Your Committee therefore strongly urges the federal government and its negotiating partners to vigorously pursue...
That is a split infinitive; we may change that.
…all means at their disposal to ensure that overlap issues are resolved to the satisfaction of concerned First Nations prior to the conclusion of future land claim agreements.
Is there any discussion or comment with respect to that observation?
Senator Pearson: I support it.
The Chairman: Would you move that the observation be included in the report of the committee as I have read?
Senator Pearson: Yes. I so move.
The Chairman: Is there any further discussion? No?
Senator Tkachuk: I have a point of order. We voted on this on division, but it is five and five.
The Chairman: You said, "On division," and therefore it was carried on division. You are a little late in the day to raise that issue.
Senator Tkachuk: It is okay. I just wanted to make a point.
The Chairman: I miss you, Senator Tkachuk. I enjoyed you so much in the Banking Committee. You keep a chairman on his toes.
Senator Tkachuk: Since it is really important to the government side, I just thought you would have your full contingent here.
(take 1840 follows, The Chairman: There is a procedure for voting on the overlap…)
36169/Aboriginal/March 28, 2000
The Chairman: There is a procedure for voting on the overlap which allows me to vote. I have to announce it before a vote is taken, or at the same time. I will ask those who support the observation being included to raise their hands. Any opposed? Therefore it is carried.
Senator St. Germain: I would like to abstain.
Senator Tkachuk: I would too.
The Chairman: How many abstentions are there? Four. Is it agreed that the motion to report the bill to the Senate with the proposed observation be carried?
Some Hon. Senators: Agreed.
The Chairman: On division? On division.
There being no further business, I thank all members of the committee for their undoubted service. Many of us have been here throughout. My deputy chair has been here from the beginning to the end, and he has been very actively engaged in the debate of the issues, as have other senators. I think it is the finish of a work as a committee. We report to the Senate, and what happens in the Senate will undoubtedly be of much interest. Thank you very much.
Senator St. Germain: I wish to thank you, Mr. Chairman. It is a very difficult piece of legislation, a very difficult issue, very complex and historical in many ways. I know that during the course of the debate you indicated that you had given especially me a lot of time for questioning. I wish to thank you personally for having given me that opportunity. As I said earlier, I would have gladly relinquished my questioning position to other members, but it seemed that I had more interest. Basically being from British Columbia, I would like this resolved. There is no question my concern about the overlap is first and foremost. I will be pursuing it in whatever way I possibly can in the Senate. I thank you for your understanding and patience and, hopefully it will be a better day for our native people right across Canada.
The Chairman: Thank you very much. I believe it will be a better day. You and I both come from British Columbia, Senator St. Germain, and we understand how deeply significant this in our province and, I believe, in other parts of Canada in time.
Thank you, honourable senators.
The committee adjourned.
THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES OTTAWA, Thursday, March 23, 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 9:00 a.m. to give consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
(Take 0900 begins--The Chairman)
The Chairman: We have a quorum of senators. Our order of business is to continue with the appearance of Glen Williams, Chief Negotiator for the Gitanyow Hereditary Chiefs. Mr. Williams will be assisted by his counsel.
Mr. Peter Hutchins, Chief and Legal Advisor, Gitanyow Hereditary Chiefs: Thank you Mr. Chairman, Honourable Senators. Last evening, we gave you a list of items that are covered in the brief. We believe these items are of considerable importance, not only for this particular bill that is under study by the committee, but also for the modern treaty process itself. I will begin with that particular subject, which is dealt with briefly in the Gitanyow submission.
There are structural, or systemic, problems in the modern treaty process, and in our opinion, the process is in big trouble. There are numerous examples of problems across the country. We can further explore these during questions later. Some of the problems that we see and that we have identified in the brief are as follows:
First, the failure of Canada and the provinces in the process to deal with the practical issues of overlap, not just the strict extinguishment of rights, but rather, the exercise of the rights and the frustration of that exercise that Glen Williams mentioned that last evening.
Second, there is a tendency to identify one aboriginal group, or one aboriginal people, and to proceed with that people whatever the cost to the neighbours. There are various reasons why this is done. We have referred in the brief, to the first-come first-served principle that we see across the country. For whatever reason, if one aboriginal group is in a position to start negotiating, the federal government tends to latch on to that, proceed with them, and ignore the problems of others, or stonewall people who are trying to get into the process.
There is a place of residence test that seems crazy when you think of traditional territories and provinces. Take the position in Newfoundland, for example, where you cannot possibly have aboriginal rights or title in Newfoundland if you do not live there. There is the question of who is best organized and financed. There is also the question of external political considerations that were touched on last night. That is a problem as well.
Third, there is a tendency to hide behind standard non-derogation provisions. I am certain that you have heard this mentioned during your study of the bill. The federal government seems to believe that as long as you put something in the treaty that implies, "Do not worry, other people's rights are not affected", then everything is taken care of, all the problems are solved, and you can do anything you want and say anything you want in the treaty instrument.
Well, it just does not work like that in the real world. In consideration of the non-derogation provisions in the Nisga'a treaty, you will notice that section 33 is basically redundant because it suggests that we are not extinguishing aboriginal rights and title. Since 1982, you have not been able to do that without Gitanyow consent.
Section 34 is an invitation to litigate and therefore does not seem exactly on all fours with the directions of the Supreme Court of Canada to try to negotiate, not litigate.
Section 35 is an interesting opening and should be explored but it is a little vague. It states that if treaties with other aboriginal peoples are concluded, or are in conflict, or incompatible, something will be done. Will that happen? Is the Government of Canada committed to negotiating those substantive treaties?
Fourth, is the tendency to treat treaty-making as a political matter and not rights-based. We hear this coming from the BC treaty process that it is discretionary and political. That is hard to take for an aboriginal people who are negotiating an instrument that is to secure and recognize aboriginal title and aboriginal rights into the future.
For all those reasons, and many more, there is a problem across this land with the way modern treaties are being negotiated by the Government of Canada and the provinces, and this is one good example.
Last night I dealt with what the courts have said. The Luuxhon judgment is interesting and important, and is under appeal. The other matter that I mentioned last night is that there are two parts to that appeal. The first one before the courts is whether there is a duty to negotiate in good faith, and the second one, which has not yet been argued, is whether Canada has breached that duty. There were suggestions from the senators that, perhaps, the judge in this case had said that Canada has conducted treaty negotiations in a manner of sharp dealing and bad faith. That has not actually been determined yet. Justice Williamson said that there is a legal obligation to negotiate in good faith, and that seems to have certain content that includes no sharp dealing. We must decide whether or not there is a breach.
We put forward several solutions in the brief. We refer to the James Bay and Northern Quebec Agreement that sets a precedent in that very complicated overlaps that involve three aboriginal peoples, were negotiated and included in the treaty.
The treaty did not say that it would be dealt with it later somehow. The parties actually dealt with it. That is important.
I will mention the James Bay Agreements, because I am sure someone will. The James Bay Agreement, not the agreement itself but the bill, but the federal bill bringing it into force, did extinguish the rights of certain third party aboriginal peoples. That was the solution of the federal government in 1975 to these complicated matters. We are well beyond that.
It was in the context of a period where Parliament purported to be able to extinguish these rights, and every one was under threat. I can tell you that the James Bay Cree and the Inuit of Quebec did not support that. They did not want it. The federal government and Quebec absolutely insisted. That was the context.
We are pointing you the provisions in the James Bay agreement that deal with joint management between the Crees, Inuit ands Naskape, joint sharing of territory, and reciprocal rights. It was complicated, but it can be done. In that instance, it was done in two to three years. It did not take 17 years.
There has been in the last 25 years, virtually no litigation between those parties. There has been plenty of litigation with Canada, but those three parties have lived with that arrangement. Thus, it can be done.
Gitanyow have attempted to put forward practical solutions during this process. You will find that in appendix 5 of the brief where the Gitanyow put forward proposals for joint management and various other matters.
Finally, we come to the amendments that we are suggesting for the bill. I gave to the clerk copies of the proposed amendments this morning. They basically reflect what is already in our brief.
If I may just comment on it, to explain, there are essentially two types of amendment. I do not know if honourable senators have this in front of them. It is a two-page document.
Senator Grafstein: Entitled "Gitanyow Heriditary Chiefs, Proposed Amendments to Bill C-9"?
Mr. Hutchins: That is correct. The first grouping of amendments deal with non-derogation. We are proposing, as I think I mentioned last night, to simply take the non-derogation provisions in the Nisga'a treaty and put them into this bill. In other words, have Parliament explicitly acknowledge and direct in regard to that matter. Thus, 20A, 20B, and 20C are the non-derogation provisions from the Nisga'a treaty, 33, 34, 35, with their imperfections. We are at a point now where we are trying to suggest certain minimal measures to mitigate the impact.
Amendment 20D is a new one, but was in our brief and we talked about it last night. That is an amendment simply to direct the Government of Canada not to invoke the Nisga'a treaty as a reason for not concluding with other aboriginal peoples comprehensive treaties. That, as far as we are concerned, is what section 35 of the Nisga'a treaty says. It would be important, and it is certainly reasonable, to have a clarification in that regard.
We suggest suspension of the coming into force of certain provisions of the treaty pending either a settlement between the parties as to how overlaps are to be dealt with or the conclusion of a final Gitanyow treaty. It should be understood that Canada and B.C., for the last three or four years, have undertaken to the Gitanyow to accelerate the treaty process and bring it into synchronization with the Nisga'a treaty process. It did not happen. We are faced with a treaty that is about to be, presumably, ratified by Parliament and the Gitanyow are still working towards an AIP.
Finally, we suggest in the brief that this committee, the Senate of Canada, send clear directions to Canada to make representations and to give undertakings to Gitanyow and to the other Nisga'a neighbours that section 35 of the Nisga'a treaty says what we believe it says. That is, there should be clear message that not in the unlikely event that a treaty with the neighbours is concluded that might conflict, Canada remains committed to negotiate comprehensive treaties and to make the adjustments to the Nisga'a treaty if necessary as provided in section 35 of the Nisga'a treaty. That is very important. I do not think that Canada should be allowed to hide behind language that ends up being essentially empty language.
Senators, that would conclude the brief summary of our submissions. Mr. Williams and I welcome questions. Thank you.
The Chairman: Thank you, Mr. Hutchins. I will ask senators for questions. I usually turn to Senator St. Germain on overlap issues. Are you ready to go?
Senator St. Germain: I hope you guys are with me this morning.
First, Mr. Chairman, as you have quite adeptly pointed out, my real concern about this legislation has been the overlap situation. First, I must complement the Nisga'a on being excellent negotiators. Based on the way they negotiated this agreement, I believe that they will provide excellent governance, at least those that are here today, for the Nisga'a people.
If we look at what Mr. Sterritt asked us to look at last night regarding the tribal boundaries in the watershed, the original claim that was put in by Mr. Calder, who happens to be a distinguished British Columbian and with us today, the Nisga'a land claim area was a certain size and has grown to over twice as large as the original claim that was put in 1969, I gather. It is quite a bit larger than the Nisga'a petition of 1913, also.
Obviously, our government negotiators either were out-negotiated by the Nisga'a, or there is something here that we still have not learned, Mr. Chairman. I hope before these hearings are over that fairness will be brought to the fore.
My question will be to Mr. Williams. Is it true that at the negotiating table, that the government negotiators had said that they would refuse to negotiate with the Gitanyow once a land deal was negotiated with the Nisga'a? Is that correct? Can you explain why this would have been said?
Mr. Glen Williams, Chief Negotiator Greg Rush, Treaty Negotiator Harry Daniel: The government has indicated to us that they want to continue to negotiate. The government negotiators at our table have been very clear to us, both governments, they will not touch and they will not amend the Nisga'a Final Agreement. In fact, when they delivered the offer in October, November 29, that offer was deliberately designed in such a way as to not touch the Nisga'a Final Agreement or make any amendments to it.
Senator St. Germain: You stated in your testimony, I believe last evening, Mr. Williams, that you concurred fully with the position taken by Mr. Sterritt. Is that correct?
Mr. Williams: On?
Senator St. Germain: In regards to his description of traditional lands of Gitanyow, Gitxsan, and the Nisga'a. Is that correct? I am not trying to put words in your mouth, if that is not correct. Is it close to being correct?
Mr. Williams: I have been on that territory. I have been on the boundary nearly every year. We have cabins in our territory on the Lower Cranberry. I have been up in Maziadin. My grandfather and mother grew up at Maziadin Lake. We have numerous cabins and fishing sites on there. I talked for a number of years with our elders, and I totally agree with what Mr. Sterritt said yet.
All the evidence, the maps that he provided, the clarification on the Calder map, the petition of 1913, yes, I agree with him fully.
Senator St. Germain: Do you also agree with the statement he made that this was driven by a political agenda by the then-premier of British Columbia?
Mr. Williams: I fully agreed with Mr. Sterritt when he stated it was driven by Mr. Clark.
Senator St. Germain: You have been the head negotiator for considerable years for the Gitanyow nation. In your negotiations, were you there when Tom Molloy, the head negotiator for the federal government, was also negotiating land claims on behalf of yourselves, the Gitanyow, and the Gitxsan?
Mr. Williams: Yes, I was.
Senator St. Germain: Do you feel that Mr. Molloy would have had information, in being moved to the Nisga'a table, for negotiations that would have put him in conflict, that would put your people at a disadvantage and give the Nisga'a an advantage, by having someone that had information and confidences, possibly, that you would have shared with him, that he would have been able to take to the other table and use against you?
Mr. Williams: I would have to agree. We have had numerous discussions with Mr. Molloy, briefing him with our concern at almost every meeting that we had with provincial and federal government representatives. We made sure that we alerted them about our concerns regarding the fact that there were negotiations going on and that they may include parts of our territory.
Yes, Mr. Molloy was there. He was well aware of our territory. The federal government and BC Treaty Commission confirmed to us when we submitted our statement of intent map, they accepted that. They agreed to a framework agreement with us.
Yes, I would agree that Mr. Molloy would be in a conflict.
Senator St. Germain: Honourable senators, I want to couch my words, because we have more evidence to hear. The fee simples that have been granted -- and I have spoken to Earl Muldoe, who is Delgamuukw, basically, and also to the Gitanyow, and the strategic fee simples that have been granted on the management lands look very close to being, I was about to say "sinister" in the way that they have been strategically chosen. It makes it impossible in some ways to resolve future land claims with the neighbours of the Nisga'a.
Can you explain these fee simples? They are in the Gitanyow, the blue outline here is the Gitanyow, and there are five. They all seem to be in strategic locations.
This is the one on Kwinageese Lake, which Mr. Muldoe or Delgamuukw pointed out was where his particular cabin is and which is the disputed area of the Gitxsan. The area circled in the blue here where the five fee simples are is the area of the Gitanyow.
I do not want to put words in your mouth. I look at this, and I look back then at the original claim. I compliment again the Nisga'a on being excellent negotiators. It seems as if it is either going to be bound up in litigation for 1,000 years or else it will never be resolved in a suitable fashion. Have you any comments on that?
The Chairman: This is your last question, Senator St.-Germain.
Senator St. Germain: Is it going too well?
The Chairman: You have colleagues who also have the right to ask questions.
Mr. Williams: My understanding of the fee simple sites and what we have been informed is that there was a study conducted by our neighbours and government to look at the highest and best use lands in what they indicated was their land claim area. There were 75 sites that were identified, and five of those sites are in our territory.
If you look at the area up in the Kinskuch area, in Jade Lake, I believe there are two fee simple sites. There is a huge back country recreation tenure along with those two fee simple sites. You can look at the Meziadin area; the fee simple site they identified earlier was right in our own traditional village that we had there at one time. That has since been moved.
There is another fee simple site on the lower Nass or along Highway 37 which has now been moved to Grizzly Lake. Those are business opportunities.
Senator St. Germain: Is this Grizzly Bear Lake?
Mr. Williams: Those are our understanding of what was the highest and best use lands identified.
Senator Andreychuk: I want to be sure this is correct. You indicated that either the government negotiators or government officials have said to you that they will not negotiate anything that is the subject matter of the Nisga'a agreement.
Mr. Williams: That is correct.
Senator Andreychuk: Does that include, therefore, the disputed part of the lands? Have they addressed that directly in any way?
Mr. Williams: There is a small area of the Nisga'a core lands or settlement lands that impact right on the boundary. They have indicated to us that they will not change that part of that core land that impacts or that includes our fishery. They have indicated that. We had a major interest in that area.
They indicated they will not change the management area for wildlife or the fishery wildlife management area. They indicated that we could work together on that particular area.
The question was, how do we work together? How do you envision that operating on the territory when you have undefined rights of the Gitanyow versus the constitutionally protected treaty rights? Please explain to us how you envision that working and how we can capture that into an agreement that we may negotiate with you? They could not explain that answer.
Senator Andreychuk: When you say "they"...
Mr. Williams: The government negotiators.
Senator Andreychuk: Who were they at that time?
Mr. Williams: That would be the chief negotiators for the federal government and the province.
Senator Andreychuk: You indicated that Mr. Molloy at one point was your negotiator, then he was no longer negotiating for you. Can you tell us how you came to know he was no longer your negotiator?
Mr. Williams: There was an announcement made by Canada that he was now appointed to the Nisga'a table.
The Chairman: If I may, for clarification, Mr. Molloy has always acted for the Crown. He was never acting for any aboriginal community.
Senator Andreychuk: I appreciate that. I used my words loosely. I want to know how they found out Mr. Molloy was no longer negotiating on behalf of the Crown with them. You say you found out from an announcement?
Mr. Williams: Yes, an announcement.
Senator Andreychuk: In the Nisga'a agreement, the disputed lands -- and we spent some time yesterday in the heat here talking about that -- if they are not successful in retaining those lands, they will get some compensation. Have there been any discussions with the federal government about what happens to you if you are successful in regaining those disputed lands? That is one situation. If you do not regain then, is there any discussion about compensation for you?
Are you being provided any resources, both financial and otherwise, to pursue this disputed land?
Mr. Williams: We have not been provided the resources. We have tried over the last several years to get resources. We inherited the problem, and we were always willing to attempt to bring it to the attention of government and our neighbours to engage in a process to attempt to work this out. It was borrowed money that we had from a process that enabled us to attempt to bring this to the attention of government. It was our own resources.
Senator Grafstein: I am curious about a question that has not arisen but is referenced in appendix 11 of your submission. I will read you this and perhaps you can just give us a brief comment. This has been of particular interest to me in these hearings. You say in section 7:
Our model, has been presented to both the federal and provincial negotiators and politicians is one based on recognition of aboriginal rights, title and governance and a reconciliation of this with the rights and interests of non-aboriginal Canadians.
What is your position on minority rights for non-Gitanyow on Gitanyow lands? What is your position? For the purposes of the record, what is the recognition of minority rights for those who are non-Gitanyow on Gitanyow lands.
Mr. Williams: We are in the process of developing some internal laws, getting to that particular point that you are raising, on how we look at our traditional laws and how we look at the Canadian law, the Charter of Rights, and the democratic principle. We are just getting to that point in our internal discussions and part of our negotiations to advance that. We are looking to accommodate those interests and identify exactly what minority rights interests would be. We want to capture that and involve the Charter of Rights and Freedoms and the principles of democracy. For the time being, without having that yet, those people are accommodated in our system now.
Senator Grafstein: How?
Mr. Williams: We mentioned yesterday that we have house groups. A lot of these people that are not Gitanyow, that may be Cree or non-aboriginal people, are accommodated in our Feast hall. They are given names, not very high names, but they are built in and a part of a decision making body for that particular house. Certain privileged rights apply to them.
Senator Grafstein: Privileged rights?
Mr. Williams: Yes, privileged rights.
Senator Grafstein: Effectively, you have not come to grips yet with the question of equality of rights for Gitanyow and residents who are not Gitanyow on Gitanyow lands.
Mr. Williams: We are working on that in our traditional system, as I explained, we accommodate people like that.
Senator Grafstein: Let me deal were another topic of your amendments. Item 20 (a) is the law any way, is not? We do not have to provide an amendment for that. Is that not the law in any event?
Mr. Hutchins: Senator, I mentioned that when I was going through the three provisions in the Nisga'a treaty, 33, 34 and 35, that yes, in effect, 33 is redundant. It is the law, to the extent Gitanyow have aboriginal rights, not treaty rights yet, they are entrenched.
Senator Grafstein: Item 20 (b) is the law. Is it not? We do not have to say for greater certainty, this is the law. Is this not the existing law?
Mr. Hutchins: Certainly, anyone can go to court. I assume that the parties put this into the treaty probably with respect to (a), the provision will operate and have effect to the extent it does not adversely affect those rates, to clarify during a court challenge what the ongoing situation is.
Senator Grafstein: I do not mean to cut you off. I am just trying to get a fundamental understanding of it. I read this, and say that is interesting. That is the law. I do not know why, whether one agrees with the treaty process or not, one has to put a gloss on the law that already exists that the law. Items 20 (a) and 20 (b) seem to be the law. We can incorporate the law by a whole appendix, but the law is the law. Why should we further complicate our life? I would like to get to the real substantive. Do not tell me what the law is for greater certainty. Tell me what it is that is different in your amendments.
For instance, 20 (c) seems to me to be a little different. It seems to say that an aboriginal nation can make a claim as Senator Tkachuk says for greater lands, and then receive less than greater lands and compensation for the greater claim. This seems to be a reiteration of that principal. Is that what you are saying in 20 (c)?
Mr. Hutchins: First, 20 (a), (b) and (c) are word for word from the Nisga'a treaty, with the exemption that the treaty reads "this agreement" and we put "the Nisga'a Final Agreement". We are replicating those. In fairness to the parties, we are negotiating presumably as a package, the three should go in.
Items 35, 20 (c) reflects paragraph 35 of the treaty. That is different. That is an idea, and as I said, senator, we read 35 as a commitment by Canada and by British Columbia, incidentally, to the Nisga'a neighbours, to negotiate treaties with them and not to invoke the Nisga'a treaty as a bar, as a reason not to conclude comprehensive treaties. That is the way we read it. We think that it would be important for the Parliament of Canada to put that into the bill. We think, also, it is important for Canada to confirm that clearly to the Gitanyow and the other neighbours by way of a letter or other means. That is important. It is not just repeating the law. It is an important idea.
The Chairman: It may be a question to the minister when he is here. I am sure that would interest you. Thank very much. Senator Grafstein.
Senator Grafstein: One last question. I take it, I heard it all, but really, the heart of your objection is 27.2 and 27.3, which essentially says to not proclaim until the overlap is settled.
Mr. Hutchins: Yes. Items 27.2 and 27.3 deal with the idea of suspending not the entire treaty, but parts of the treaty that impact on the Gitanyow and the other neighbours, but we are here representing the Gitanyow. There is a great deal of that treaty that can be brought into effect. As Glen Williams has said and Neil Sterritt has said, this is not an initiative to block the Nisga'a treaty holus-bolus, and stop it. It is to say, let them immediately have the benefits of their treaty, to the extent that those do not impact adversely on the neighbours, suspend the provisions of the treaty that do impact on the neighbours, until such time as there is a chance to deal with the overlap or that Canada has come true with its commitment under section 35 and negotiated a comprehensive treaty with the neighbours, in this instance, the Gitanyow.
The Chairman: Thank you very much.
Senator Gill: I would like to ask a question regarding the James Bay. If you do not mind, I will go in French.
(Take 0940 Follows - Senator Gill: Il est important...)(French follows)
(après anglais) Le sénateur Gill continuing:
Il est important de clarifier le fait que les négociations entre les instances fédérale, provinciale et autochtone pour la Convention de la Baie-James, qui ont eu lieu entre les années 1970 et 1975, se sont tenues dans un contexte différent. Il y avait eu extinction de droits au préalable. C'est différent du contexte actuel des négociations.
(Mr. Huhchin: The question was dealing with the climate if you will or the context of négocations of the James Bay Agreement...)
(anglais suit)
(Following French--Take 0940--Mr. Hutchins)
Mr. Hutchins: In respect of the climate, or the context, of the negotiations of the James Bay agreement in 1975, there was not an extinguishment already in place. However, there was a threat of extinguishment through the Parliament of Canada if the James Bay Crees and the Inuit of Quebec did not come to an agreement. That agreement was negotiated in the light of James Bay One, the first major hydro electric project, and in the light of an injunction that the Crees and Inuit had obtained.
To a certain extent, the James Bay agreement was a settlement out of court. However, the threat hung over the table that, if there was not an arrangement, or an agreement, the solution would be provided by the government of Canada. That solution was to ask Parliament to extinguish the rights.
Parliament, at that point, purported to have that authority. Those were the conditions under which the parties negotiated the James Bay agreement.
Senator Gill: I have a question for Chief Williams. Thus far, the Indian bands or aboriginal people can negotiate and sign contracts, but, according to the Indian Act, there must be endorsement, as a chief or a band, by the Minister of Indian Affairs in all instances. Perhaps some are signing agreements without the endorsement of the minister, but according to the Indian Act, that is illegal.
For most of the aboriginal people who have been negotiating, their purpose is to provide the opportunity to make decisions in respect of their destiny and future. Much of this can be articulated differently, but I believe that most of the bands are looking for the capacity to do things for themselves and for their people.
If you are in a position to negotiate with other nations without Indian Affairs or non-aboriginal people as a co-signature or a referee, do you think that it would be possible for the aboriginal people to come to an agreement? What is your feeling on that?
Mr. Williams: I believe we can, and we have attempted to do that over the last two decades. We have tried to identify specific problems and issues and create solutions without the involvement of government. Certainly, I think that that is possible. However, there must be a level playing field for both parties. The current situation involves attempted negotiations, interim agreements that were in place in the early 1990s, and an agreement in principle in 1996 and 1998 that compels all parties not to amend a particular agreement. Despite all of this, I believe that it is possible. We have had agreements with our neighbours, the Gitxsan, and some understanding in certain areas, but there has to be a level playing field.
The Chairman: Thank you.
Senator Lawson: Mr. Chairman, I have an extension to Senator Andreychuk's earlier question. Mr. Williams, we understand that under the treaty, if you mount a claim for the return of your lands against the Nisga'a and are you successful, the Nisga'a will be compensated in cash or kind. However, we did not hear your answer. What happens if you are unsuccessful in mounting a legal challenge and you do not get your lands and they are lost forever? Has any undertaking been given to you by the government or anyone as to how they will compensate you or the Gitanyow?
Mr. Williams: Our people, as I said yesterday, are there on the lands. We relied on that territory for our food, for fishing and for hunting. We have cabins and smoke houses out there, and we have the Gitxsan aboriginal law playing out on that territory. There will be a clash between the Nisga'a treaty right and the Gitanyow undefined right. The Gitanyow yoke, or the law, has been there for thousands of years. We pay great money to hold traditional names. In respect of the poles that I referred to yesterday, one house group and a chief may invest up to $100,000 to erect that pole. My grandfather and our elders have always said that the territory is like a bank to us, and like a table where we get our food. What will happen? Our people are very committed and determined to continue to uphold the system that we have and the law that we have on the territory. We will probably be forced off the territory, and we will probably be charged and restrained from continued access to the territory. Again, there will be confusion on the territory as to whose rights will play out first on the ground.
Senator Lawson: Specifically, you have been given no undertaking from the federal government for compensation if you loose your lands.
Mr. Williams: We have been given no compensation from the federal government.
Senator Lawson: Why would you be treated differently from the Nisga'a? If we are talking about fairness and application throughout the whole treaty, on which the whole system is supposed to be based, why would you not be given the same undertakings that the Nisga'a received?
Mr. Williams: I do not know.
Senator Lawson: I do not either.
Senator St. Germain: It appears that it is aboriginal minority rights that are in the process of being trampled on. My colleagues are sensitive to these rights, as is Senator Chalifoux, because of their direct involvement in relationships with natives, or being native or part native. This sensitivity dictates that we must explore all the aspects of, what appears to be, the will of the government of British Columbia, to force something through at the expense of the Gitanyow and the Gitxsan.
To me, in all fairness, this is the most egregious error possible that could be part of the process. I should like to have that prerogative. I now ask Mr. Williams and the Chairman and the committee members whether it would be possible to have the witnesses reappear on the basis of the importance of the situation.
In the emotions of this meeting, people said things before understanding the whole process, and before fully understanding some of the issues that we, as British Columbians, knew firsthand. Mr. Williams, is there anything that you would like to tell the senators at this time? Mr. Chairman, would you like to rule on that as to whether or not we can have them back?
The Chairman: Let us defer that to the evidence of all the other witnesses, and then we will take a decision.
(Take 0950 follows--The Chair continuing: The Gitanyow have been...)
(TK 0940 ENDS--The Chairman continuing--Then we will take a decision.)
The Gitanyow have been before us for a hour and three-quarters. This is the longest appearance by any witness. I agree that the issue is one of great interest to senators, but I believe we have heard their submission in full.
I am quite willing to defer the issue to a future time. If they want to come back after they have heard the minister and Mr. Molloy and other witnesses, , they can advise me at that time.
Senator St. Germain: Will you make this decision arbitrarily or will the committee make the decision?
The Chairman: I am always subject to the committee's wishes. I resent the suggestion that I would act arbitrarily. I am getting quite a temperature at your interventions because we have given you hours of time compared to every other senator. You have virtually questioned about as much as all the other senators put together. I do not think I deserve an accusation that I am not treating you fairly.
Senator St. Germain: I apologize if that is the situation, but I do not believe that an issue so important to British Columbia and to Canada should be restricted by a time allocation decided by you or by the government.
The Chairman: No, you should decide it.
Senator St. Germain: We should decide it. That is what I am saying. I appreciate the fact you have given me the time to question, sir.
The Chairman: This committee has business to do. Senators have other issues about which they are equally passionate, Senator St. Germain. We have not denied your witnesses time for examination.
Senator St. Germain: They are not my witnesses. They are our witnesses.
The Chairman: You have had every opportunity to make your case.
Senator Chalifoux: Point of order. We are wasting time in the debates and arguments between the chair and the deputy chair. I would rather hear the witnesses. Thank you.
Senator Grafstein: Mr. Chairman, as a non-voting member of the committee, I want the witnesses to know I found the evidence last night and this morning very informative and very precise. It is very clear as to what the issues are. We will hear from the minister and Mr. Molloy later on and we will be able to make a judgment on factual matters. For myself, as someone that who has deep questions about this process, the evidence to my mind is becoming very clear. It is a question of credibility on some points.
We have questions of law and questions of constitutional law and questions of credibility. The witness are making the issues clear. Rather than the chair and the deputy chair debating this, I agree with Senator Chalifoux. Let us get on with it. We are here. We have witnesses and are anxious to draw other information from other witnesses.
The Chairman: Mr. Williams, I invite you to make a last comment.
Mr. Williams: Thank you for hearing us. As I said yesterday, our people at home may be small in number, but we are a people in this country. We are now at the eleventh hour before you will pass this bill. By next Friday, you will have it done. The new fiscal year is the timing chosen by this government to implement this bill. We have put forward to you our evidence to prove that we exist and that we have a territory. Our people are quite concerned. Our elders sit in silence and watch this process as it plays out. They are very concerned.
The fishery will take begin in the next few months. We are not certain if our constitutional rights will be protected. These may be undefined aboriginal rights; that is why we are pleading with you to make some minor amendments as we proposed last night and again this morning. These are very minor amendments. We would like to see Bill C-9 passed with the exception that our territory is not included in it. It is a small request to make to you today to give us calm and some certainty, to give us some peace on the ground. Thank very much.
The Chairman: Thank you, Mr. Williams and Mr. Hutchins.
We will now hear from Willard Estey. I doubt whether anyone can remember a former justice of the Supreme Court of Canada appearing before a Senate committee. I have been here 25 years and I cannot recall that.
We are very much looking forward to your appearance here. I do not know whether Senator Grafstein in this case is willing to take judicial notice of who you are. With the other witnesses, he has been asking for their background. If he feels compelled to ask you for that background, I will let him do so.
Senator Grafstein: I want to declare a former conflict of interest. Mr. Estey and I were co-counsel on a very important matter for the federal government some 30-odd years ago. That will in no way, shape or form, inhibit me from asking crucial and miserable questions.
Mr. Estey: I am afraid that contaminates you and you have a conflict of interest.
The Chairman: Please proceed.
Mr. Willard Estey: Honourable senators, you are about to be regaled by quite an informal presentation. We do not intend to try to transform this committee into a law school and a debating house discussing how the constitutional judgments of the Supreme Court and other courts really add up.
(tk 1000 follows--Estey follows--I would like to first tell you that I am not here)
(Take 1000 Begins -- Mr. Estey continuing)
I would like to first tell you that I am not here as a witness primed by some client to say whatever the client wants said. You will hear from me what I believe. I emphasize that because occasionally the press think that all lawyers at all times talk only when someone puts money in the parrot's back. That is not the case.
The second issue is that we represent a kind of rag-tag homogeny of Canadian citizens -- people who have a vested interest in the welfare of our nation. The group Canfree is not oriented in any formal way to any cause or any undertaking of which I am aware, but rather has come here with a very simple pitch. That is this: We recognize section 35 and welcome section 35. It is high time we started its implementation.
We are not here to derail anything going through this process vis-à-vis the Nisga'a and section 35, or any other provision. We simply point out the obvious, and that is that we are toying here not with a who-hit-who-accident case, or even what the Landlord and Tenant Act means, we are dealing with the backbone and nervous system of the nation of Canada. We have struggled a long time to get to this point. We have come through what the Americans had to go through a rebellion and a civil war to get. We have not had either. Perhaps we suffer from that.
We have reached a new threshold in Canada's organization. The steps of our creation can be ticked off quickly. One step was at Versailles, when Canada came out from under the British umbrella. We benefited from that umbrella, rather than being oppressed. However, the time had come to spread our wings.
The next big jump was the crisis created by the originally European conflict, World War II, where Canada really showed its muscle. The odd thing about it historically, if you look back, is that we had the stupidity, or the gall or the courage, to declare war without even phoning Washington. We have gone downhill a long way since then. We would now need to phone the New York Stock Exchange.
The essence of that is by the time we came out the other end of World War 2, we were a full-blown, large trading power on this globe. We have come a long way since in the 50 years that have gone by. Our history is one of a nation of complete balance in capacity and experience, and a financial strength, despite what we say about ourselves. If we lack any talent at all, it is the talent of bragging. We do not want any secrets let out, such as how much oil we have and how much more oil we have than OPEC, or anything like that. That is a complete breach of faith in our country.
Now we are facing something new. This is the third plateau -- section 35 in the Canadian Constitution, 1982. It is high time we activated that section, and we all welcome this process in the Senate as one important lifeline, going back to the community, as to what section 35 is all about. You will not find much about it in the newspapers.
We think that the progress to be made on behalf of Nisga'a and people in that same category can be better experienced and more quickly achieved if we do not waste our strength in fooling around with litigation and the slow process of climbing the ladder to get authoritative rulings en route to our destiny. Our destiny is to finally equate the consequences of a heavy, intense European immigration after World War I and the arrival of another great avalanche of immigrants into our country after World War II.
Our simple plea today is that there are many ways to achieve the success heralded by section 35. The best way, in our humble submission, is to get a grasp on what can be done constitutionally without furore, and what must be done only after we find out from the high court what the limitations are in the operations of section 35.
To be practical about that, it means that if we take away power from the provinces or the federal government to put into some other body -- Nisga'a being one of them, but there are many more -- then there is a change in balance of the Canadian Constitution. It is a welcome change, but it must be directed according to law. It is wasteful for us to prowl out and explore the alleys and byways. We wish to get on the highway.
It is our humble submission that the legislative process, now in the hands of this committee and the Senate, should be long enough to allow us to get the blessing, or the advice for change, to the process so fully set forth in the documentation with which you are confronted. If anything, that documentation is overpowered. We have lost sight of the main track in a flock of alleys and criss-crossing tracks going to the same destination.
Our pitch is very simple. It is so simple that it is illusory. There are at least five actions in the tube now in the British Columbia courts, all of which could lead to the advice which I am talking about. Alternatively, and in parallel to that, we have the reference power which is for the national government to invoke and not for the citizenry, such as we are.
You will appreciate that I should have said something at the start. There are three people who have come together to put the wheels on this locomotive. We have 150 years of experience amongst the three of us, in presenting the law to the courts and in deciding the law in the courts. If we are wrong, God help us, but we think we are right because we have been there before many times.
Someone phoned me a few days ago from the press. The upshot of the phone call was that we are just like all other hack lawyers, we get a big fee to come down here and spin some kind of a yarn that sounds good and then leave. The three of us decided, when we put the finishing touches on the huge amount of work done on all sides here, that we would trim this down to the essentials and everyone would sign that. This is the argument we will put forward. That gets me down to where we are going.
The simple truth of the matter about constitutional law is that it is unbelievably simple and pure, and my profession owes much to the public for cluttering it up with non-essentials. Here, all we will need to do is add together section 91 and section 92 of the old British North America Act, amended now as the Canadian Constitution. You add those together and you get 100 per cent of governmental power. The whole sovereign shebang is all there in those two sections.
In law school as we considered constitutional law to be an easy course because you only needed to learn two sections, but that was the biggest mistake I ever made in my legal life. Those two funnels come together and from that we must extract, lawfully, the power necessary to fuel the idea of section 35. That idea is simple. We have the early civilizing process of settling land and turning it into farms. We have gone through that. Now we have gone into the secondary industry, and we are heavy in trading. We have gone through that and we have innumerable treaties, and those treaties bind all parts of the nation.
(Take 1010 Follows -- Estey continuing: Anything we do here now must reflect...) (Mr. Estey: continuing.)
Anything we do here now must reflect the existence of those 40 odd treaties. It is amazing how those have flourished since we had a simple tax treaty with the United States. We have trade treaties all over the place.
There is 100 per cent sovereignty between the two sections. Section 35 causes us to weld together the original settlers, who now manage the affairs through sections 91 and 92, with the aboriginals who have been ignored for a century and a half. Their rights must now be sifted out of sections 91 and 92.
That takes me to the only rule you will hear me talk about this morning, that being the difference between delegate, derogate and abdicate. Those three verbs are all the same, according to the cases.
We suggest that the detail of the bill, the detail of the agreement appended to it, and the massive detail and studies that back it all up, must be viewed with the simple reality that we are trying to put muscle into section 35 creatures without destroying the power in sections 91 and 92, except to the extent it is found necessary, and when it is found necessary, we have to amend the act. That is no big deal. You would not do it to change a white line in the middle of a highway, but you do not have to wait until you repeal at the banking legislation. Those complexities are not encountered here.
We must now decide what part of this agreement is clearly within the bounds recognized in the Supreme Court in surveying the impact on sections 91 and 92 on section 35. That has never been before the court. It is new ground that must be explored.
Again, I think the result will be simple. Clearly, the aboriginals do not need a sealing off at the altitude of a municipality. On the other extreme, assuming that we will all continue to live in Canada, we do not wish to violate sections 91 and 92 unnecessarily in order to get the principles of section 35 off the ground. That is the delicate balance we are discussing this morning.
The way out of the woods on that, in my humble opinion, is to assign -- "assign" being a neutral word -- to the new unit sufficient domestic powers to allow it to exercise its new found existence in section 35 without abusing the provincial and federal jurisdiction under sections 91 and 92, except where necessary, and that will require an amendment.
We see no provision requiring an amendment which would attract debate. There are some obvious things that could be settled by agreement and then backed up by the amending process. However, it requires a slight lapse in time to get a judicial guideline.
By coincidence, two or three days ago fate put a newspaper in my path. Unlike most newspapers, it was quite useful. In it, the Honourable David Collenette, Minister of Transport of Canada, is reported to have said that the one-and-a-half-year delay in the merger of railway companies caused by the necessity of bringing the matter before the Surface Transportation Board in the United States is reasonable because that is a big decision. I suggest that that decision is peanuts compared to this.
Our pitch is simple. The action before the court is a motion on a point of law, not a trial, and can be fast-tracked through the courts. In case of appeal, there is not an enormous amount of evidence. The whole process can be compressed. It will not take very long. It is all practicality. It is the product of 150 years of experience of how to stick handle through the forest of the courts. We welcome that.
The minutia that falls off the main agreement is not very important. I had to read about 500 pages to discover that. What is important is the goal of section 35, and that will not be solved by battles over minutia. The question is how many sovereign powers will be disturbed in sections 91 and 92 if a minimal but successful operation in constitutional law is undertaken. I say that it will not be many. There are things in the minutia such as paramountcy. That word has given us more trouble constitutionally than any other single word in our vocabulary. It is a swamp that we do not want to get into. You do not need paramountcy unless you have legitimate conflict between equally empowered powers that collide, and that does not happen very often. Sections 91 and 92 are examples of that. The law books of the Supreme Court of Canada used to be laden with decisions on allocation of power between the federal and provincial levels. There is not much of that any more. In the United States federal system there has not been an allocation of powers appeal in the last century. We are moving into that zone of maturity.
Paramountcy can be avoided here if, in creating the government for the aboriginals, we give them, rather than something akin to a municipal structure, something akin to a province, but not akin to a nation state. It would be a horrible complication to try to operate a nation state inside the geography of Canada. There would be endless problems.
(TAKE 1020 begins here, Mr. Estey continues: That will not solve any problems...)
(Following Take 1010, Mr. Estey… geography of Canada. TAKE 1020 follows, Mr. Estey continues)
**That will not solve any problems the Nisga'a might have. What will solve their problems is to live within the federal system -- a system which Canada has made to work much better than anyone else, including the Americans. That system can accommodate section 35 with little or no problem.
We may oversimplify, Mr. Chairman, when we say that the first step is also simple. That is, put down your gavel on the legislative process of Bill C-9. Do not throw it in the waste paper basket, just adjourn the matter and, perhaps, consult with the executive branch of government to see if they want to do a reference. I do not advocate that. I would sooner see it roll through without any further political intervention. It can roll through, if the lawyers decide they will do it.
I have only a few things left to say. There is a size problem here from the Nisga'a point of view. It is a small unit with about 5,500 people, according to the information I saw. They do not have much industrial capacity on the surface in the sense of manufacturing automobiles and the geographical location is such that it will not happen tomorrow. We must take into account our treaty obligations, but a lot of them do not apply to the level of operations and the locale of operations which we have in Nisga'a. I do not think we should suffer nervous frustration worrying about theoretical library problems. Get down to the street level and solve the problems you need to get along the street.
We have prepared an 11-page typewritten document which contains the points that I have been talking about. We will leave that behind as our brief. It speaks for itself. I do not want to take the time of committee to go through it. If you have any questions that I am capable of answering, or my colleagues wish to help me answer, I would like to have them at this time.
The Chairman: Thank you very much, Mr. Estey. I have a number of people who would like to question you. Often, however, that includes comments.
Senator St. Germain: Do we need a motion to append Mr. Estey's report?
The Chairman: No; I will include it as part of the evidence before the committee. We do not need a motion.
Senator Beaudoin: It is a pleasure to see you. My question is on section 35 and paramountcy. That is the only point that worries me. The rest is all right.
This is an accord, and it will obviously have great importance. In 20 areas, however, the bill stipulates a paramountcy. That was not strictly necessary, in my opinion, but it is there. It reactivates the whole debate about whether we could construe section 35 as meaning a third order of government or whether the power of the aboriginal peoples is protected by that section 35. Obviously, it is. There is a controversy with that. Some people say that we already have a third order of government under section 35 and some jurists say "No". The Supreme Court has not ruled on that yet, but Chief Justice Lamer has said, "Let us face it. We are all here to stay." That is the way the Supreme Court sees the problem now.
I am inclined to think that if we stipulate a paramountcy, it will deal directly with the division of powers. In that sense, it may be unconstitutional. Yesterday, we heard from Professor Ryder, who said, "No. It is only the application of section 35, paragraph 3. It is an accord. It deals with aboriginal rights. We do not change the division of powers for everyone in Canada, except for the Nisga'a." It is done by an accord, and subsection 3 of section 35 says that "Treaty rights may include the rights to be acquired." Some rights are acquired by that accord, under section 35. That is the end of it. It is not a constitutional amendment. It is an accord with the Nisga'a. It comes directly under section 35 and it is protected by the current Constitution. That is his argument.
His argument is strong, in my opinion, because it is an accord. The Government of Canada has the right to make accords with the aboriginal people. We have the right to legislate for the aboriginal under section 91(24). We are paramount in that, but we accept a certain paramountcy in 14 areas.
If it comes under section 35, it is probably perfectly legal. However, if it does not come under section 35, then I see a problem. That is my starting point on this issue.
Mr. Estey: When people do this to me, I always like to ask: Is that a question? It is a question, and I understand you. I recognize your background from my long association with you. You are steeped in constitutional law and I will not insult the knowledge that you have by starting at A and going down to Q in the alphabet, starting with you.
First, we must remember that the Constitution is the real wall between chaos and civilized progress. No community on the face of the earth has ever made it into the higher standard of living to which we all aspire without a set of rules, which are called a constitution. The reason for that is that you must have consistency -- consistency between master and servant, between employer and employee, between the municipalities and the provincial government, and with the competitiveness of provinces now in our world trade hunt. We are out wooing the other fellow's customer. Quebec and Ontario are trying to bribe the same foreign manufacturer to come into the country. You need rules to keep our impulses subdued.
Section 35 is not one of those generators. Section 35 is an embarrassing confession of the vast majority of Canadians, most of whom are second generation émigrés themselves. That body became dominant in our way of life somewhere after World War II. We had to recognize and did recognize the problem. I do not think it is solved by creating a vehicle which, itself, calls for a treaty which is ex contractu from the Constitution.
The treaty that we are talking about is probably a misuse of the word, but whatever the agreement is, it must conform to then existing law. That is part of the Constitution and part of the stability brought to our community by a constitution. It is not a design to tire the Nisga'a out and slow them down and lead them around as the wolf is led around, in the Peter rabbit bedtime stories, by smart old granny fox. It is not that.
(1030 starts here -- Mr. Estey continues: Section 35 is opening a door...)
(Mr. Estey continuing -- granny fox. It is not that.)
Section 35 is opening a door which has been shut for a long time but has been in our demographic structure for a long time. It confuses me, and I think probably others, when we approach the exercise of this liberated right. It is not a new right; it is a liberated right. When we do that, we tend to bring our paraphernalia with us, because it has got us through the past. That is not the right way to do it. Here we have to sit down and give the new body such muscle, such nerves and blood streams as necessary to make it survive as a governmental unit.
As well, survival is not good enough. It has to succeed competitively as a governmental unit. The populations are at different levels of materialistic demands, but the goal is the same: a higher standard of living, security in employment, peace at home, peace on the streets. That is civilization, and that cannot be achieved with a rolllng-stone Constitution.
You need an anchor in the Constitution, and that anchor is that you can do what you want as to have a third order of government. Incidentally, I think that for me is a self-illusory term. It is not necessarily a third order of government any more than carving out Saskatchewan was creating a third order of government. Some people say we did not create a government at all. You find a lot of value in Saskatchewan because it illustrates everything, and it is simple. It is like looking through a pane of good glass. When it was carved out in 1903, sections 91 and 92 were there. Saskatchewan inherited the powers of 92 and the limitations of 91. A statute came with it which modified some things temporarily on a timetable, but it did not subtract anything. All of section 91 is there. The burden of there, including the right to Parliament, the right to vote and everything else. All of those things are almost biblical. It is embedded in us that we must all have the right to vote, and anything that discounts that value or blocks it is, amongst everything else, unconstitutional. If third order of government means you create an element of civilization which is new, you have to clothe it with power, but if you do it under the Constitution, you must obey the Constitution.
I will not descend into the minutia. The room is full of people who have forgotten more about this document than I know. However, I am clear on the fundamentals, and that is that we have to carve this thing and set it up under the existing paraphernalia or get an amendment. There is nothing wrong with getting an amendment. It is not meant to slow things down it should not. In the long run, it pays off like a savings account. If you deposit things in it, it accumulates.
So no, I think that we have all we need in here, and about three-quarters of what is in that agreement is things that attract friction and burden and expense and make it difficult for the Nisga'a. I think simplicity is a way of life. You are not in the courts long before you realize simplicity is a road to survival. You cannot think if you get off the simple track. Maybe Einstein could, but I doubt that. He got EM=MC2 into one paragraph. We cannot put anything in one paragraph in our court system. We have to go back to first principles.
Senator Andreychuk: Thank you for bringing us back to the simple message and also for reminding us that your roots were in Saskatchewan. Coming from Saskatchewan, I guess I need a simple answer. Professors have come and said to us that section 91 and section 92 are not 100 per cent of governmental power. When our Constitution was created -- I think this is where Professor Ryder was going -- there were these other powers because the other nations were there. Somehow they had been dormant, and now section 35 resurrects them.
I want to make it very simple. We have an act before us. We have a parliamentary responsibility to determine, I think in this sense, whether it is constitutional. Whether it is a practical arrangement and whether it could have been done differently is something that we can ponder at a later point. In our system, the executive has the right to negotiate treaties. It is our parliamentary responsibility, in my opinion, to ensure that that piece of legislation does not violate any fundamental principles and that in fact it meets the constitutionality test.
I do not know whether you are prepared to answer me or not. Do you find this bill constitutional? If not, our conundrum is that we unravel an agreement between three parties if we interfere at this point. We have been told strongly by the federal government that we cannot do so. It would be our right to amend the bill, if we wanted, but in essence we would be collapsing the entire agreement. Treaty-making powers are not within our purview.
Mr. Estey: That is a mouthful to answer. I pondered that. I was a professor at one time in Saskatchewan -- for one year. I remember a student got up and asked me, "What about that Saskatchewan Act? Does that give us complete run of government?" That is essentially what you are you are talking about. The 1905 act does not seem to be a God-given power to get airborne here and erect a new community in the world and a profitable province. The only thing I could think of telling the young fellow, who was a smart kid and went on to become a great lawyer, was, "All I know is that when I look out the window and I see the horizon 8,000 miles away and not a tree in sight, that if it is God given, why does God not come back and finish the job." I think that is my answer now.
I do not know that we need to solve that riddle that you pose. The executive branch of government is the servant and semi-master of the legislative branch, without which neither one can function fully. It is not unlike an atomic reaction. You need the two electrodes and things moving around to generate the heat we need. That is the same here.
You have a duty. I thought pretty hard about this before coming here. The Senate has a senior duty to perform. It has to perfect the process of legislation. That duty must clearly entail, on occasion, an amendment or a refusal or an automatic approval. All three are within your power. Not only are they within your power, they are within your duty. You have to scrutinize this thing and see what is good and bad and purify it. That is why you are here. The second house invariably around the world is set up as a brake on the first level of legislation, but the executive branch tags along all the way up the ladder.
In the United States, the executive branch there is much more active. If they wish to interrupt the process of a Congress, they do it. We do not have that separation of powers. Many people say, "Thank God," and I am probably one of them. Our system is not simple, but it probably is a lot easier to live with than the presidential system.
You have to listen to the executive when it presents a statute, but you are not bound. You are probably bound to think about it, but that is an untraceable performance. Here, you have those three choices, and your conscience will have to guide you as to where you come in.
Certainly, one of the driving factors, I recognize, and I think everyone does, is that the Nisga'a waited a long time to get here. They did not come here just this morning.
(1040 follows - Mr. Estey continuing -- I read the submission of 1913)
(Mr. Estey: continuing.)
I read the submission of 1913 when they were here trying to get justice. I thought twice about saying we should have another delay. We have all suffered this other delay business. Anyone who has dealt with national revenue knows how long that takes.
I do not know the answer to your question, but my strong feeling is that it is for the Senate to simply bear down and exercise their conscientious duty and pass, amend and send back. Do what you have to do, to do justice and do it on time. Time is a big quantum that we waste so much now. I do not think it is a waste here.
I think that surface transportation thing is a waste of time. A railroad is a railroad. You cannot make it very complicated. A year and one-half is appalling. I am not proposing that. We do not take a year and one-half to do that in Canada, perhaps that is why we survive.
Senator Andreychuk: You said that time is the issue. I agree. You seem to have said that you do not prefer a reference as your first choice. You were saying that the parties should proceed to the court and the court should act expeditiously.
I am a touch more cynical. Having watched the process, particularly on aboriginal cases, that is simply not happening. I have no idea why. Everyone comes and says it is the other guy's fault, but I have great hesitation in putting my faith into a timely resolution through the courts. I have great faith in having a good resolution at the end, but not a timely one. Where does your optimism that it can be expeditiously handled by the existing cases come from?
Mr. Estey: I have the same trouble struggle as you have. I was a bencher for some years of the law society in Toronto and a big struggle of my time was how do we speed up the courts? We brag about our past, we solved that. Today it is far worse than it ever was. It is the bar's fault, and the judges' fault. They lose control of the trial.
In B.C. they have a thing called "rule 34". In Ontario, there is a similar rule. It allows you to take out of a complicated record, an issue that you have to have answered and you can have that answered first. There is a lot of verbiage that goes behind it, but that is all there is to it. You go there with no witnesses and no evidence, except affidavits, and it does not take very long to go. I prefer that partly because I am a denizen of that jungle, and I profited by that experience.
The reference is a tricky thing. First, the executive government has to be aroused to the need, and then you have got to rouse about what the reference consists of -- what is in it and not in it. The lawyers abuse a reference terribly because they have a client who sits back at the back of the hall and cannot bother them. They say that is going to have to do. I would not turn down a chance of a reference. I just prefer the thing I am accustomed to.
Senator St. Germain: From your experience, sir, as Chief Justice in the courts, do you believe that it make a difference in the eyes of the court, or put undue or different pressure on them, if they are dealing with a reference, I believe you said a section 84, rather than a piece of ratified legislation in trying to arrive at a decision on an issue like this?
Mr. Estey: I do not know the answer fully to articulate that. It was different in different places we sat. I found that the strength of the reference is that the lawyer does have an informal avenue to help round out the terms of reference. That is a big improvement. An experienced lawyer can push them pretty hard in getting the thing expanded or contracted.
The downside is that it takes forever to get people in this city moving on a problem somewhere else. The reference gets delayed and kicked around and all the members of staff have input, and it gets complicated.
To answer your question, I do not think that the presence or absence of an articulated piece of legislation is very influential in the amount of attention you get. I think the issue attracts the attention. If you get a good issue on our banking industry, it is attended. If the issue is some environmental cause, a 50-year damage proposition or the smokestack is 800 feet high and cannot be taken down anyway, it will drag, no question about it. International questions drag. I think that railroad example could go forever. However, I do not think that this would fall into that evil. I like taking what you got because you are closer to the court. The lawyers are closer to the provincial courts than they are to the animal in Ottawa, the Supreme Court. You can push the registrar to get the thing tried. You can pick your judges, and all judges are not the same. It is like athletes at the Olympics. You wait and time them to see how fast they are. It does not matter a heck of a lot, but I would prefer, if I had my choice, to take what we got and get on with it.
The Chairman: We have Senators Grafstein, Joyal and Sparrow.
Senator Grafstein: I am glad you reminded us once again of our constitutional duties. As I see them, our constitutional duties are very simple in the Senate.
First, we must decide if legislation is constitutional or not. You are providing us with an escape clause. I am not sure we can take that escape clause. It might be neat, but we have a primary responsibility to decide whether or not legislation that comes from the other place, that popular place, is consistent with the Constitution. Second, we must represent as best we can regional and interests and minority rights within that.
We had a very interesting exposé by two professors at Osgoode Hall last night that reminded me of the first question I was asked when I attended to apply for law school at age 19 . The question was, "Grafstein, do you know the difference between what the law is and what the law should be?" Nobody had ever put that question to me before, and that reverberates today.
I first have to decide what the law is, and then hopefully, perhaps persuade people about what the law should be. However, we are here today to decide what the law is. I say that by way of preliminary because you very kindly and very succinctly summed up our constitutional responsibilities, about which some people neglect to remind themselves.
Let me turn to the two subject matters that concern me. You are clear on one subject matter. You said this in paragraph 15 of your brief, and that is the question of powers, and whether or not we can evolve self-government or devolution of powers from the federal government beyond the reach of the federal government, in effect not a delegation but a transfer. I just want to read this to see if this sums up your position. This is paragraph 15 of your brief.
From the foregoing it is clear that the Agreement provides for the transfer from the governments of Canada and British Columbia to the Nisga'a nation very significant sovereign powers presently possessed by Canada and British Columbia in accordance with the Constitution of Canada. This transfer is by itself unconstitutional;…
I do not want to debate that. However, I want the committee to clearly understand that that is your view. If it is, I will leave that alone and deal with a more delicate matter on which I want your views.
We have heard conflicting views. We heard from Professor Sanders from British Columbia who says that once we constitutionalized these rights in 1982, the older idea of a simple division of authority between the two levels of government is gone. In other words, he says that section 35 complicated the simplistic position. Please give me your view about paragraph 15 and your view about the position of Professor Sanders.
(Take 1050 Follows -- Senator Grafstein continuing: I am intrigued…)
(Following Take 1040, Senator Grafstein, the second question. TAKE 1050 begins here, Senator Grafstein continues.)
** I am intrigued by what we have heard from two of the nations that are represented here. We have heard it from the Nisga'a earlier, and now we have heard it from the witness today from the Gitanyow. I asked them and I also asked Chief Fontaine of the Assembly of First Nations this very simple question: Do you believe in minority rights as it affects the lands and the governance that you will be granted by this legislation? The answer is, "Well, sort of." Last night we heard "sort of." The Nisga'a go on in their agreement to call themselves Nisga'a citizens. I asked them: What about what about the right to vote for non-Nisga'a on Nisga'a lands? I was told, "Not quite, but they will have the right to be heard and participate, sort of."
There are two fundamental issues here that are quite simplistic. First, can the government fetter its discretion this way by delegating these sovereign powers under this treaty without a constitutional amendment? Second, within that context, does the Nisga'a nation, or any aboriginal nation or any aboriginal group, have the right to grant "sort of" rights respecting the right to vote of residents within their lands?
Mr. Estey: I should tell this august audience that Senator Grafstein and I have had more sidewalk debates than any two people in the city of Toronto on most of the issues he raises. I had the unhappy experience of being in competition with him once. Since then, I have adopted that old saying, "If you can't lick 'em, join 'em." The competition is furious.
Those are wonderful questions. That is why constitutional law is a great subject of study. My own feeling -- and I was not able to sell it to a majority of the Supreme Court on one occasion -- is that section 35 does not disturb the bedrock position of our country. Sections 91 and section 92 are Precambrian rock, Canadian style. You cannot have a successful country and shift the basement like that.
With all due respect, I learned a lot more after I became a practitioner than I learned becoming a professor. The scars are there to prove it. I am a strong believer, Senator Grafstein, that we must conform to the Constitution until you can demonstrate a need to change. We went through a need to change in my life time, as a student, during the Depression, which paralyzed eastern Canada and rubbed out western Canada. My father was Attorney General of the province at that time and I remember listening in on Sunday afternoon meetings in his den. The big issue usually was: Do you think the Bank of Montreal will lend us enough money by Tuesday to pay Friday's salary? They were talking about the University of Saskatchewan. We got through that Depression by the support of the other provinces. Western Canada and even Alberta would have gone down the tube without the support of everyone east of Winnipeg. That taught me a lesson I never forgot: If we weaken the accord that is represented by Confederation, you weaken everyone's life. There is no question about it.
We are not now isolated. When we bring in the Nisga'a, you must think hard about bringing them into a circus instead of a peaceful climate of political progression. They can make all the changes they need once they are included. If there is something fundamental, you should amend the agreement before. There is no question about that. It is not a deferral sensitive item to get into the game and learn the rules not from the penalty box but from centre ice. I find that question easy to answer.
I cannot answer your other question. I do not think anyone can answer it. There is a mysticism about political union which is not unlike chemical union, when the radical meets the positive, the H2SO4 combine, the result is a molecule much more dangerous and less to be fooled with than either ingredient. That is what you get if you shove someone into a constitutional framework where they do not fit. A shoe horn will not help. It may get you into a tighter spot than you want.
I am an optimist on this. I think we can live with section 35 and prosper with it and prosper more quickly if it is implemented within the framework of the Constitution, subject to the amendment where the circumstances shout for it. There must be a loud shout.
Senator Joyal: I was involved in the implementation of section 35 in the drafting of the Charter of Rights and related articles of the Constitution in 1982. There was no doubt in our mind at that time, 18 years ago, that the issue of land claims was outstanding. In other words, we knew that we were entrenching an objective for which borders were not defined and that it would be defined through time. I have always stood by that objective.
What you have said to us this morning is somewhat helpful. I will take some of the concepts that you defined for us this morning. You said something that would not be a nation state, not akin to a province, but certainly not a municipality. You referred to domestic powers within sections 91 and 92. In other words, we must define the attributes of nation states that are included in sections 91 and 92 and, fundamentally, the concept of citizenship, because there cannot be different definitions of "citizenship" if we are one country. This is very fundamental in the definition of the parameters of what is included in section 35. You will understand that what we are doing here with this bill will have an impact on all the other land claims negotiations because it will be seen as a further step toward the understanding and implication under land claims to section 35(3) of the Constitution.
I would like to try explore further your statement about what is not akin to a province and a nation state, whereby, in the definition of "self-government" included in land claims, we have a better understanding of what we are doing in accepting the bill as is. On the other hand, you have stated in your paragraph 15 that the transfer of power between sections 91 and 92, provincial, federal, is, "by itself, unconstitutional." You referred to the 1983 case of McEvoy v Attorney General of Canada. That is a pretty strong statement on the nature of the bill. As my colleagues have said, one of our major roles in the Senate is to ensure that we are abiding by the Constitution, by the Charter of Rights. Some people have thought that the Charter of Rights was not totally included in the land claim, and I remember stating in 1991 that the Charter of Rights was for general application all over Canada, whatever your background as an ancestor, First Nation or, as you said, WWI, WWII, 17th century, 18th century, 1,000 years ago. We live on this land, as Justice Lamer said. We are here to stay and we share some fundamental rights as individuals in this country. If you are telling us this morning that the transfer of powers between sections 91 and 92 to the new Nisga'a authority is unconstitutional, I will have to wrestle with the decision of how I will vote on this bill very soon or later on, when it comes back in the Senate.
(TAKE 1100 follows, Senator Joyal continues: That debate is fundamental...)
(Senator Joyal: continuing.)
To me, that debate is fundamental because what we are doing with this bill, as I mentioned to you, is a step further in defining the overall implications for all the other tribes and land claim settlements in Canada. If we do it right in this bill, we are doing it right for other negotiations and settlements with other tribes that have pending land claims in Canada. As you know, there are many and there will be many more to come, especially on the basis of the way we settle the Nisga'a issue.
The Chairman: I think you are finished.
Senator Joyal: Yes.
The Chairman: It is another challenge for you, Mr. Estey.
Mr. Estey: I wish we had unlimited time to answer that textbook question. That is a good one.
I do not have the answer but I can get near the answer.
First, the nation state on our planet is dying. Germany, the most powerful nation state we had after the United States, almost ceases to be one. Why is that?
Second, the federal system is under attack everywhere but the United States. The United States has a magic formula. They can live with it and make a fortune out of it.
When we come to Canada, it is more difficult than the U.S. because, first, we are spread out. We are a long string of pearls and we do not have much in common between Cape Breton and Esquimalt. They do not meet, they do not talk, and it is difficult to govern. Therefore, political balance is essential to Canada's survival. It is not essential to the survival of the compact United States or the United Kingdom where you can work it out. You cannot here. You operate by long-distance telephone.
Second, I do not believe, in my own opinion, the nation state is the answer to the problem of the Nisga'a. They do not have a long spectrum of human activity within their population. They are not big enough and the natural resources they are staking out is not varied enough.
That does not mean they cannot go independently and survive. They can. It would be difficult because you could not emulate Denmark. You have everyone around you; you are sealed and you cannot do international trade unless you transgress over Canada. I do not think that is the answer.
That drives us back to federalism. Coming to us like the Nisga'a people, it will not work unless they get all the powers under section 91 and 92 and a lot of executive assistance from the whole of the panoply of federal power and federal taxation.
The first time I ploughed my way through this elaborate agreement, I could not help laugh, going back in my memory to the times I sued the Municipality of Metropolitan Toronto, or defended them -- I did both. The apparatus described in those two operations, one was the old City and one was the new Metro, was far less complicated than what is appended to that agreement. You do not get four pages into it before you start thinking, who is going to pay for all this?
It is a horrendous shot in the arm for the law profession. The litigation will be endless, overlapping, duplicative, expensive and time-consuming.
You are right. Whatever you do now is put into a printing press and rolls around and prints out 47 a minute down the road. The question is, how far can we take this without wrecking the whole Constitution? That brings me back to your core question.
The fault, if there is a fault, in the agreement is that it is neither fish nor fowl. You get into the paramount, not paramount thing, which is totally digressive and friction row-creating kind of talk -- again, good for the litigious lawyer. If you say there is going to be a lot of litigation, then you say yes because there is an arbitration clause in there, compulsory.
You have to remember arbitration is only good against A versus B. C can sit up on the curb and laugh at it and not be bound by it and live by it. Third party issues do not get stamped out. You have to arbitrate three times to catch everyone. It is not the answer.
The answer is to set up a smooth, simple member of a federal nation, an equal member. If they are short of money now, you have to be sustained by the rest of them, the same way the prairie provinces were sustained.
Alberta now is a great donor. In my lifetime, Alberta was a basket case economically and we looked down our nose at them.
The answer is federalism, but there has to be some stimulus added to help someone coming in through section 35 by definition, almost axiomatically. Nobody quarrels with that, that I have heard. Thank God for that.
Therefore, the question is, how much do you have to bend things to bring it in as a workable state? The less you bend it the better, but if, in the fullness of time, the students of this whole thing decide this has to be amended, let us get on with the amendment.
My own semi-educated version of knowledge of this thing, municipal law, is that if you went through that complex schedule to chapter 11 and combed out all the superfluities in it, then you are way down the road to success. You are not getting there if you allow the thing to be encrusted even before it is born with all manner of expensive, time-consuming gadgetry appended to a simple form of government on a confined area to a confined population.
Yet, a population needs economic support, and that should be facilitated more in the agreement. You have to read it very carefully to see where the support is going to come from, and when and how much.
It is not up to us to criticize whether it is a good or bad deal. We are not going to do that. We are all for you going ahead with your responsibility and we confirm it, but as citizens of Canada, it is our view that everyone, Nisga'a included, are better served if we do not introduce something which is going to be challenged successfully.
No one is going to thank us for allowing this to go down the road, money spent organizing this, that and the other institution, and the whole thing collapses because of a court order. That is why I think you should get one by the fastest route.
The Chairman: That was a very good summing up of your position. Thank you again for appearing. We are happy to have your contribution here today.
I am going to call now on Dave Merz, Chair of the Aboriginal Affairs Committee and Treaty Negotiator for the B.C. Cattlemen's Association. He will be followed by Jack Ebbels, the Deputy Minister of Energy, Mines and Resources for the Government of British Columbia.
Mr. Merz, we recognize that you have been involved for a long time in treaty negotiations and the treaty process in British Columbia. Perhaps you could give us your background in that experience.
Mr. Dave Merz, Member of the Regional Advisory Committee, B.C. Cattlemen's Association: {BOff}Thank you. I am past president of the British Columbia Cattlemen's Association and I am currently Chairman of the Aboriginal Affairs Committee for the province.
I have also participated on the Northern Interior Regional Advisory Committee providing federal and provincial treaty negotiators with advice for the past four years.
I am a rancher. My wife and I operate a ranch west of Prince George and have operated it for 35 years. We are surrounded on all sides by aboriginal people and the reservation system as we now know it. We have a knowledge of what is going on and how things are working out.
On behalf of the cattlemen of B.C. , I thank you for the opportunity to appear before you today. I believe you have a copy of our brief concerning Bill C-9.
What I would like to do in my presentation this morning is touch on some of the highlights of that brief and leave time for some questions.
(Take 1110 continues: Mr. Merz continuing: "Let me begin with an introduction to the B.C. Cattlemen's Association...)
(Mr. Merz continuing.)
Let me begin with an introduction to the B.C. Cattlemen's Association. In the 150 years since the Gold Rush days, beef cattle production in British Columbia has grown to become an important part of agriculture in the province. The cow-calf sector is the mainstay of the industry. In 1998, an estimated 322,000 head of cattle and calves were sold, worth $252 million, and these were raised on 1,900 ranches. The B.C. Cattlemen's Association has been the official voice of ranchers throughout British Columbia since 1929.
Most of the deeded land owned by ranchers is used for the production of forage to sustain their herds over the winter months. Ranchers in the interior regions of the province are totally dependent on assured access to Crown lands for spring, summer and fall grazing. Security of the tenures, which are leases, licences and permits, over those lands is critical in the continuing viability of the industry. Access to water for livestock and crop production is equally important.
Ranchers have a unique perspective on aboriginal claims and treaty negotiations. Many ranchers are located adjacent to Indian reserves. Indian people are friends and neighbours and are often actively involved in cattle ranching. We do not dispute the legal, social and economic reasons for treaty-making in British Columbia. We hope to see treaties negotiated which will make Indian people better off, both economically and socially, and which will leave us in business, living and working harmoniously with all of our neighbours. The settlement of treaties without displacement of aboriginal people is the objective of livestock producers, one we share with other resource users and rural British Columbians.
Turning to the Nisga'a Final Agreement, you may ask why the B.C. Cattlemen's should care about Bill C-9 and the Nisga'a Final Agreement. It is easy to say the Nisga'a Final Agreement includes few members of the B.C. Cattlemen's Association within its scope. It was also negotiated outside the B.C. treaty commission process.
The B.C. Cattlemen's Association has three general concerns about the Nisga'a Final Agreement. Our first concern is that there is confusion about what the agreement really means.
As was mentioned several times this morning, at least in part, the agreement becomes a template or a model for future treaty settlements. As I sit on the advisory committee to the treaty negotiators, we are continually referring back to the Nisga'a agreement, and so we see this as a template. The agreement establishes a precedent for settlement, as no other group will want to accept comparatively less than what has been negotiated with the Nisga'a. Therefore we must look at the implications of the Nisga'a Final Agreement for other treaty settlements.
I will comment first on resource issues raised by the agreement, and then on the broader social issues on which all Canadians should state their views.
The Nass Valley has forest resources but little if any range resource. Range tenures -- where we run our cattle in the summertime, spring and fall -- are much like forest tenures. We look at how forest tenure holders are treated in the Nisga'a treaty as an example of what to expect from settlements elsewhere in the province. Some 1,930 square kilometres of provincial Crown land subject to forest tenure will become Nisga'a land. That represents approximately 250 acres per Nisga'a citizen. If similar settlements or settlements of similar magnitude are made in the British Columbia interior, there is no question that ranch families will be seriously affected. Think of the Nisga'a settlement in terms of city blocks rather than acres and contemplate that impact.
Treaty negotiators, native people and the general public often think of Crown land with no buildings on it as available for treaty settlement. In fact, Crown land in the interior is not vacant. Through a series of overlapping Crown tenures, it is as developed for resource use as city blocks are for residential use.
Land subject to agricultural lease and woodlot licences will be excluded from Nisga'a lands. Since these tenures will be interspersed throughout Nisga'a lands, access provisions of the treaty are of fundamental importance. No single issue has created more ill will towards Indian people in British Columbia than difficulties with access.
The Nisga'a Final Agreement relies on the existence of a substantial volume of unlicensed water. This water is reserved for the Nisga'a, who can then apply for water licences. In much of the rest of British Columbia, water bodies are fully recorded and have no excess capacity. This element of the Nisga'a agreement will not be transferable to regions of the province where water is scarce, and we hope that the negotiators will realize this. Water for livestock and irrigation is life's blood to every ranch family, whether their operation is large or small.
The agreement describes treaty rights off settlement land, primarily dealing with wildlife harvest. As a rule, the B.C. Cattlemen's Association believes treaty rights off settlement land should be very limited. Such rights will not contribute to certainty over the use of land and resources. Treaty rights have constitutional status. Other rights to use of land and resources do not. This unequal status makes resolution and accommodation between conflicting or competing treaty rights and other rights to the use of the land and resources complicated if not impossible.
From a resource user's perspective, a major flaw of the Nisga'a negotiations is the fact that compensation for displaced third party interests was not addressed up front. We understand that Canada will provide B.C. with a contribution of $3 million in 1993 dollars to assist those who may be negatively impacted by the Nisga'a treaty. Canada and B.C. will share the cost of purchasing third party interests, estimated to be $30 million. We believe these figures greatly underestimate the value of lands and resources and subsequent third party compensation.
I will now comment on some of the broader social issues. Although the B.C. Cattlemen's Association rejects an inherent right to self-government, we do accept that native people in British Columbia should be able to govern as many of their affairs as possible in ways which are chosen by themselves and which mesh easily with non-native government. The Nisga'a must be responsible not only to their people but also to other Canadians for the results that they achieve. We do not see the issue of accountability adequately addressed in the final agreement. It is our observation that financial accountability may be even more important than additional lands and resources and furthering the progress of our aboriginal communities.
One of the most confusing aspects of the Nisga'a Final Agreement to us is its relationship to the Canadian Constitution. Does it create a third order of government without amending the Constitution? The agreement must not become part of the Constitution and therefore impossible to amend. Challenges to past treaties show that circumstances change and that all possibilities cannot be contemplated when a treaty is negotiated.
Throughout the Nisga'a Final Agreement, there are statements about whether or not provincial or federal laws on a particular subject apply on Nisga'a lands and which order of government overrides the other. The agreement is said to supersede federal and provincial powers in 14 areas in the event of an inconsistency or conflict, even if only in matters internal to the Nisga'a people. This precedent is unsettling. The result is jurisdictional complexity and confusion which we believe will make provision of services exceedingly difficult.
We have qualms about the economic suitability of the level of government proposed by the Nisga'a. It was mentioned here that there would be 5,700 people involved.
(1120 follows -- I sit on a RAC where some)
(tk 1110 ends--Mr. Merz continuing ---- be 5,700 peo
Respectfully submitted,
JACK AUSTIN
Chair
to the Fourth Report of the Standing Senate Committee on Aboriginal Peoples
[Please ensure that Report is signed before giving it to Page.]
Speaker says:
When shall this Bill be read a third time?
Will respond (Rule 97(4) Rules of the Senate). (At the next sitting of the Senate)
EVIDENCE