Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 7 - Evidence
OTTAWA, Tuesday, May 26, 1998
The Standing Senate Committee on Aboriginal Peoples met this day at 10:00 a.m. to give consideration to Bill C-6, to provide for an integrated system of land and water management in the Mackenzie Valley, to establish certain boards for that purpose and to make consequential amendments to other Acts.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: We have two groups making presentations to us today. This is our first experience with the teleconferencing technology, so please have patience with us.
Mr. Bill Erasmus, National Chief, Northwest Territories Dene Nation: Good morning, honourable senators.
The Chairman: Senator St. Germain has a question right off the bat. I am going to allow him to go ahead and ask his question.
Senator St. Germain: Mr. Chairman, before I start, I would like to say good morning to the group in Yellowknife. Mr. Erasmus, it is a pleasure to be in contact with you and your delegation, through the use of this new technology.
My question, Mr. Chairman, relates to this: I have received information that the department is already advertising for people to fill positions on the proposed boards that are supposed to emanate from this legislation. If this is correct, I find this very insulting to the parliamentary process. I think it is a slight to these people and to all witnesses who have appeared before us, if the government is already in the process of taking action, presuming that the proposed legislation is going to pass in its present form.
In the spirit of that, I ask you, Mr. Chairman, to find out whether the information that I have received is authentic. If it is, I think that the Department of Indian and Northern Development and the government in general are really being presumptuous and disrespectful to Parliament as a whole. I think that we should follow this up. I am asking you to consider my request.
Senator Andreychuk: I have a preliminary problem as well, which relates to some documents that were faxed to us. I understand they were faxed from the Aboriginal Affairs Committee. One was a letter from the Aboriginal Affairs Group Inc.; the other is a briefing note. I would like to know whose briefing note it is and how it got to our office. It appears to have come from the Aboriginal Affairs Committee fax machine.
Mr. Tõnu Onu, Clerk of the Committee: What document is this? What is the name of the document?
Senator Andreychuk: It is entitled, "Briefing Update on Dogrib Proposal to Amend C-6".
Mr. Onu: No, that would not have come from the committee.
Senator Andreychuk: It came noting Aboriginal Affairs, and the fax number on it was (613) 236-9837. Could you ascertain the origin of document to the committee members? My concern is that both the letter and the briefing note make assumptions about this committee that, in my opinion, are not correct. The committee did not accept Senator Austin's proposal. In fact, Senator Austin's proposal was one that we had been discussing before he attended one of our meetings. The proposal originated from other sources. It may be a valid expression of what we might want to do, but the letter implies that we have already made up our minds on the issue. I, for one, am worried, as Senator St. Germain said, that our impartiality is being compromised by negotiations between the Dogrib and the federal negotiators.
I wish that Senator Austin were here to explain whether he knows something more about it. He was not part of our earlier hearings. He attended a committee meeting, put forward a valid proposal, and I assume he did it on his own initiative and not on anyone else's behalf. I would want to explore that.
I also want to make it clear that I do not think we can make any special arrangements with the Dogrib group. We are evaluating the legislation and its appropriateness. I, personally, would want to hear all groups and keep an open mind as to what are our alternatives respecting this legislation. I am not going to make up my mind until we hear from everyone.
There is no consensus in this group; we are still exploring all the alternatives, at least from my perspective on this Bill C-6. I want that clearly noted. Before our hearings end, I would like to know the source of these documents, before we proceed further.
The Chairman: Senator Andreychuk, we will definitely find out the origin of the documents and how they got here. In addition, it is true that we have not come to any conclusion on this bill. We have to hear all presentations and views. From that perspective, I believe Senator Forest has a point she would like to make.
Senator Forest: I, too, have some questions about these documents, which have also been faxed to me. My understanding is that there have been some negotiations between the Minister of Indian Affairs and the Dogribs and that they were anticipated having something concluded before today. Has anybody heard anything further about that?
The Chairman: Not to my knowledge. I know for a fact that several negotiations are taking place with the department, not only with that particular group but also with other groups. The path their negotiations will take, in conjunction with how we deal with this bill, still remains to be seen. We are not yet at the stage where we can conclude anything.
Senator Forest: No, of course not. I was just wondering whether there was any further word on the state of negotiations.
The Chairman: Not to my knowledge, unless some of our resource people have any further information. Senator Andreychuk mentioned that this option does not necessarily originate from Senator Austin. At our first meeting, we talked about it in general terms amongst ourselves. We included it in the possible options that we might look at -- after calling upon the minister to see whether she could provide any flexibility in this area.
At this point, we are still far from being coming to any conclusion. Chief Erasmus, the floor is yours.
Mr. Erasmus: Thank you, Mr. Chairman. I will introduce our delegation and then give you the order in which the presentations will be made. We have with us, from the Akaitcho Territory and the Deh Cho Territory, Elder Leo Norwegian from Fort Simpson, Grand Chief Mike Nadli from the Deh Cho, Chief Lloyd Chicot from the community of Kakisa in the Deh Cho, Chief Greg Nyuli from the community of Fort Providence, and Grand Chief Felix Lockhart from the Akaitcho Territory. A number of other representatives may join us a bit later.
At the onset, I want to talk a little bit about what is happening in the North, in what we call Denendeh. In the early 1970s, the Dene questioned Treaties 8 and 11. Canada had indicated to us that we had surrendered our lands and had extinguished our treaty and aboriginal rights. We obviously took a different view and, in the end, we ended up in court. Judge Morrow, the judge at the time, after looking at the evidence and hearing both sides, ruled that title still existed and that we still maintained an interest in the land. If you remember, this is around the time of the Calder case in British Columbia.
So the government of the day, which was a Liberal government under Prime Minister Trudeau, with Jean Chrétien as the minister, began to develop a land claims policy to deal with people like ourselves who had never settled the outstanding question of land and resources.
We then began to negotiate with Canada. The government also invited other peoples to the table, the Inuit peoples from the Yukon, the Nishga, and so on. We negotiated quite extensively until 1990, at which time we had a final agreement initialled and were pressing the government very hard, insisting that our rights not be extinguished or surrendered through this process.
Canada took exception to that and, in the end, changed the process of negotiations. They refused to negotiate with us. Instead, rather than have all of us at one table, they designed a new process whereby our regional bodies would become the outlets for negotiation. As a result, the Mackenzie Valley now has five different regional land discussions ongoing. The Gwich'in and the Sahtu have settled their land and resource agreements.
This brings us to Bill C-6, which evolves from the Gwich'in and the Sahtu agreements. The idea is to develop a land and water regime that would govern their territory and also extend beyond their territories. What we are concerned about down the valley outside of their settlement areas is that this will infringe upon the rights of peoples at this table. We would like to talk to you about that. We have some specific presentations that will address our concerns.
Maybe the way we can do this is to proceed with making all of the presentations, and then we can deal with questions from the floor.
I would like to first call on Chief Greg Nyuli.
The Chairman: Senator Taylor has a question that he would like to raise before you make your presentation.
Senator Taylor: I wanted you to name what you consider the five areas. You mentioned the Gwich'in, Sahtu, Akaitcho. What are the other two?
Mr. Erasmus: There are the Gwich'in, the Sahtu, the Deh Cho, the Akaitcho Territory, and also the Dogrib Treaty 11.
Mr. Greg Nyuli, Chief, Deh Gah Got'ie Dene Council: Good morning. My name is Greg Nyuli. I am the Chief from the Deh Gah Got'ie Dene Council, which is located in Fort Providence, Northwest Territories. I have been involved in the political scene since about 1988, when the package that included the agreement in principle, the AIP, was presented to the people.
It was around 1988 as well that we met in Hay River to look at the AIP. Even at that time, the proposed land and management regime was not really acceptable to the people. At that particular time, we voiced our concerns in a large motion, vis-à-vis what we wanted to see happen within our lands.
Since then, I have also been involved at the local level, not as a chief, but as the chairman of our Fort Providence Resource Management Board. Basically, this particular board is charged with developing an integrated resource management plan based on Dene values and principles, having the Dene as the landlords.
As chief, in 1994-95, I never supported the Mackenzie Valley resource management legislation. In fact, during Treaty 8 negotiations, we voiced strong opposition to that legislation. As well, there is no support from the Deh Cho First Nations, of which I am also a chief and a member. We believe that claims agreements should not be imposed if you are a non-claiming group. We in the Deh Cho are, however, along with the federal government, trying to find common ground, in terms of a Deh Cho government, including land, water and resource jurisdiction and management.
With this in mind, I would like to suggest a very simple change: Simply exclude us. With that, I would like to say Mahsi-cho and thank you. I hope the Senate considers our concerns and suggestions. Mahsi.
Mr. Erasmus: Our next speaker is Chief Lloyd Chicot.
Mr. Lloyd Chicot, Chief, Ka'a'gee Tu First Nation: Good morning. I am presently the Chief of the Ka'a'gee Tu First Nation, which is just south of Great Slave Lake. We are members of the Deh Cho First Nations. I am honoured to be here this morning to make a presentation on behalf of our leaders, who are this week meeting in Fort Simpson. It is our spring leadership meeting. It is one of the times that we gather to discuss all of the concerns that affect us in our region. I am honoured to be here on their behalf making a presentation to this committee.
As Chief Nyuli mentioned, we were opposed to this legislation. We did not want to be part of it. We went so far as to suggest some amendments to this legislation. These amendments were designed not to exclude us but to include in the legislation parts that we felt would affect us. We wanted to make amendments. That has happened in the last couple of months.
This is not our first presentation. Our Grand Chief, along with a delegation, have made previous presentations on our behalf.
I am from Kakisa, which is a small and very traditional community, one that is based on the values and principles as seen in our Deh Cho proposal. Being traditional, we are people of the land. Our relationship to the land is sacred. That is one of the principles that I follow.
Our relationship with the federal government has not been as good as it should be. In the past, many decisions have been made at the federal level without our consultation. They think they have our consent to go ahead with decisions on our behalf, when they do not. That is one of the concerns that we have been stressing over the last couple of years.
I will give you an example. At present, along with two other communities, we are asking the court for an injunction against the Government of the Northwest Territories, the Minister responsible for Renewable Economic Development. One of our concerns is that there is no mechanism available to us to appeal any of the decisions that are made by them. These decisions are made on our behalf without our consent or without any consultation with our communities. That is one of the reasons that we area asking for this court injunction against the NWT.
As I said before, we have proposed amendments to the proposed legislation that is before us. We do not support it. It goes against everything we have been trying to accomplish in our region since the agreement in principle. It overrides everything that we have tried to do over the last couple of years. It puts us in the position of having to react to situations instead of being proactive.
My purpose in being here this morning is to make you aware that we are against this legislation, that we do not support it. Our Grand Chief will go into further detail. I would be pleased to answer any questions you might have. Mahsi.
Mr. Erasmus: Our next presenter is Grand Chief Mike Nadli. I believe his presentation was faxed to the committee yesterday, so you should have it before you. As well, Grand Chief Felix Lockhart's presentation was sent to you.
Mr. Michael Nadli, Grand Chief, Deh Cho First Nations: Honourable senators, good morning, from Yellowknife. It is a nice day here in Yellowknife. It was fairly warm yesterday. We expect another warm day today.
As Chief Erasmus had indicated, I am the Grand Chief of the Deh Cho First Nations. Mahsi -- good morning. I ask that you listen to our hearts and our concerns on this legislation.
As the Grand Chief of the Deh Cho, I, along with fellow leaders and a respected elder, am making my third presentation to the State of Canada on Bill C-6. We are taking time away from the first day of our spring leadership meeting back in Fort Simpson. My hope is that I will be able to take back with me, when I return to the Deh Cho and our spring leadership meeting, a positive message.
As the Grand Chief speaking for the Deh Cho First Nations, I thank the members of the committee for giving us this time to make a presentation on the proposed Mackenzie Valley Resource Management Act. We made a presentation to the House of Commons Standing Committee On Aboriginal Affairs on this very issue. Our concerns were not heeded by that committee, so we are appealing to the chamber of sober second thought to consider our case and our desire to have our amendments included in the proposed legislation.
Before I detail the amendments requested, I will give the members of the committee a little background so that the context of our amendments are clearly understood and, hopefully, appreciated by the committee members.
Deh Cho is a large territory in the Western Arctic. As Deh Cho People -- river people -- we have been living within our territories for thousands of years, and continue to live and use our territory. Until we entered into treaty with the British Crown, our peoples were the only users and occupiers of our territory. We never ceded, released or surrendered our lands to any other group, including the Crown of Great Britain. When the commissioner for the British Crown arrived in our territory, our sovereignty over our lands and territories was not in question. The treaty commission accepted that our ancestors were the sole owners and occupiers of our territory.
In this regard, the treaty commissioner requested that our ancestors enter into Peace and Friendship Treaties with the Crown. We are descendants of the Dene who entered into treaty with the British Crown in 1899, 1900, 1921 and 1922. As Dene, we have been occupying and using our lands for thousands of years. The Treaty Commissioner was given to power, by the Crown, to enter into Peace and Friendship Treaties, to allow for peaceful settlement. This requirement was set out in the Royal Proclamation of 1763. Canada inherited this obligation when Great Britain created the State of Canada in 1867.
As a result, the Treaty Commissioner asked our ancestors to enter into a Peace and Friendship Treaty. Our ancestors agreed. In the treaty-making process, our ancestors were assured by the Treaty Commissioner that our way of life would continue as it always had been. We were not to be molested or disturbed in our territory. As the settlers came North, into our territory, we welcomed them. One point needs to be emphasized: The settlers' treaty rights to live in peace within our territory have never been interfered with by our peoples. The settlers' treaty rights are confirmed and accepted by our peoples. We wish that we could say that about the Queen's subjects. We have been in a constant struggle to have Canada uphold our treaties. The struggle continues to this day.
It is our belief that the proposed legislation will alter our treaty relationship. We are not consenting to any change to the treaties or our treaty relationship.
In the early 1970s, the Dene Chiefs and leaders went to the Canadian courts to clarify the treaties. It was Canada's allegation that the treaties were land surrender treaties; our ancestors and elders firmly believed that the treaties were Peace and Friendship Treaties. In the now famous Paulette case, the courts upheld the belief of our ancestors and elders; in other words, Canada found that the treaties are Peace and Friendship Treaties.
The same court entreated the State of Canada to enter into discussions with the Dene of the Mackenzie to settle outstanding issues related to lands and resources. The Dene-Métis discussions, as they came to be known, continued for many years. This process failed in the early 1990s, when the federal government would not remove a clause related to the surrender and cession of our land rights to the State of Canada. When the Dene asked that this clause be changed in the agreement, Canada stopped the discussions and walked away from the table.
Since the State of Canada walked away from the table, the Dene have placed various options on the table, to resume discussions. In the fall of 1993, when the former Minister of Indian Affairs and Northern Development, Ronald Irwin, asked Indigenous Peoples to come forward with proposals to deal with outstanding treaty issues, the Deh Cho leadership submitted the Deh Cho proposal in the early part of 1994. That proposal was designed to begin discussions with the State of Canada on outstanding treaty issues.
In July 1995, when Queen Elizabeth visited Yellowknife, the leadership of the Dene made a presentation to Her Majesty on the failure of the State of Canada to deal with outstanding treaty issues. Within a week, the Minister of Indian Affairs made an attempt to explore ways to resolve the impasse. Although these talks clarified a number of significant points that needed to be discussed, the process did not produce any results.
The main reason for this, we feel, has to do with the internal operation of DIAND. DIAND officials are demanding of the Indigenous Peoples that we cede our rights to our lands and territories. The policy is a contravention of our treaty rights. It is also a contravention of our obligations to our ancestors and to future generations to take care of our lands and resources. The DIAND position is a direct attack on the Dene values and spiritual relationship to our lands and resources. As a result, the discussions in the summer of 1995 were unproductive, as the State of Canada, which wants to come into the Deh Cho, was not prepared to change its policies and programs.
We make mention of policies and programs because the legal requirement of the State of Canada to enter into discussion with us about our lands and resources is a legal obligation on the State of Canada. If Canada wants something from the Deh Cho, there is a procedure to follow. The state must come to us in a public forum and place its proposals before us in order to receive our fully informed consent. The state has not followed its own legal requirements in this regard, as it relates to proposed legislation before us.
The talks that started in the summer of 1995 were not productive. For more than two years, the State of Canada refused to talk to Deh Cho. Nothing occurred until the fall of 1997. The new Minister of Indian Affairs and Northern Development, Jane Stewart, has attempted to make a response to our proposal. The minister has appointed an envoy to discuss the Deh Cho proposal with the leadership and citizens of the Deh Cho territory. This process is presently taking place within the Deh Cho. It is our hope that the process will be completed in early July 1998.
We make mention of the history of the Deh Cho proposal and our relationship with the State of Canada to put into focus the present process. While we have been waiting to talk to Canada about its wants and needs in the Deh Cho, the officials of the Department of Indian Affairs and Northern Development have been developing legislation behind our backs. The proposed legislation, Bill C-6, does not have the approval of our leadership and citizens, despite an attempt by departmental officials' to make it appear to be the case.
The Department of Indian Affairs and Northern Development, during the summer of 1997, sent a copy of the proposed legislation to us by Priority Post. We disputed the fact that this was an appropriate form of consultation. Under the provisions of the Royal Proclamation of 1763, any changes to lands must be done in a public forum within a public gathering. The Deh Cho annual assembly was held at the end of August, 1997, and no representative of the State of Canada appeared to deliver the proposed legislation or information to the leadership. Rather, they have chosen to act in a dishonourable manner and not in conformity with their legal obligations.
In the covering letter sent by Gary Nicholl, Acting Director of Resource Policy and Transfers, DIAND, their stated objective in sending the material is "in an effort to consult further with you on the proposed legislation". Further, the letter requests that any other comments we wish to make should be sent directly to them.
There are a number of things which should be noted: One, that receiving a Priority Post envelope without knowing its contents is in no way an acknowledgement of receiving the goods for the purpose of consulting. It does not meet any legal standard for notification, unless we can ask: Does the Department of Indian affairs have a lesser standard for notification than is presently accepted in your legal system? We do not accept Priority Post as an acceptable method.
Two, it must be pointed out that the Deh Cho have a treaty right to consent to any changes in the treaty relationship which must be carried out in a specific manner. Sending a Priority Post envelope does not meet the criteria, set out in the Royal Proclamation of 1763, of achieving the fully informed consent in an open and public meeting of the citizens of the Deh Cho.
Three, the State of Canada is not the owner of the lands and resources in the Deh Cho area and has no legislative right to make laws or enact legislation in a territory where it possesses no jurisdiction.
Four, the Deh Cho leaders have never agreed that any other leadership -- Gwich'in and Sahtu -- has the right to consent on behalf of the Deh Cho.
In effect, this legislation is a coward's way of dealing with the issues related to the lands and territories of the Deh Cho. Canada does not want to discuss the real issues of implementation of the treaties.
The leadership of the Deh Cho is fully aware of the legislative history of the proposed legislation. There are outstanding legal obligations that the State of Canada has to the Gwich'in and Sahtu. When the Gwich'in and Sahtu were negotiating with Canada, they did not have any authority from our leadership to include our peoples in their discussions. As a matter of fact, their agreements are very specific to their territory. We have no dispute with Canada's obligations under those land settlement agreements. However, Deh Cho is very concerned when the State of Canada attempts to do an end-run and pass this legislation affecting our territory without having any agreement with our peoples.
As we previously outlined, we have attempted over the years to enter into discussions with the state. At this time, there is no agreement with the Deh Cho; however, the Department of Indian Affairs is attempting to use Parliament to impose legislation on our territory. We must state for your record that we have never given our consent -- implied or actual -- to the legislation. We are not giving our consent to this process.
The proposed Mackenzie Valley Resource Management legislation is a violation of the treaties. The State of Canada cannot impose legislation which fundamentally changes our relationship with our lands and resources and our treaties without consent. As Lord Denning stated in R. v. Secretary of State for Commonwealth and Foreign Affairs and the Indian Association of Alberta, Indigenous Peoples'
...rights and freedoms have been guaranteed to them by the Crown, originally by the Crown in respect of the United Kingdom, now by the Crown in respect of Canada, but, in any case, by the Crown. No Parliament should do anything to lessen the worth of these guarantees. They should be honoured by the Crown in respect of Canada `so long as the sun rises and the rivers flow'. That promise must never be broken.
The significance of this court case was that the decision was made before the constitution was sent from Great Britain to Canada. The case is binding on the Parliament of Canada, which cannot unilaterally change the treaties without the consent of the original signatories of the treaty. The Minister of Indian Affairs cannot argue that the Gwich'in and Sahtu entering into agreements with the federal government could affect the rights of the Indigenous Peoples in the whole of the Mackenzie Valley.
Any attempt by the department officials to put some spin on the proposed legislation only applying in the Gwich'in and Sahtu area is dispelled when you move into the text of the proposed legislation. If the members of the committee could look to the "Interpretation" section, there is specific reference to the Deh Cho leadership:
`first nation' means the Gwich'in First Nation, the Sahtu First Nation or bodies representing other Dene or Métis of the North Slave, South Slave or Deh Cho region of the Mackenzie Valley.
Deh Cho never agreed to have such a reference. Further, in the "Definitions" section, this legislation is intended to cover the area as defined:
`Mackenzie Valley' means that part of the Northwest Territories bounded on the south by the 60th parallel of latitude, on the west by the Yukon Territory, on the north by the Inuvialuit Settlement Region, as defined in the Agreement given effect by the Western Arctic (Inuvialuit) Claims Settlement Act, and on the east by the Nunavut Settlement Area, as defined in the Nunavut Land Claims Agreement Act, but does not include Wood Buffalo National Park.
In reviewing the map of the Northwest Territories, the intended area would include Deh Cho. This is unacceptable to us. Contrary to the provisions of the preamble, there is no intention to limit the application of the proposed legislation to the Gwich'in and Sahtu area. In the "Definitions" section, there is clear evidence that the federal government intends to make the legislation cover the Deh Cho.
Clause 3 of Bill C-6 relates to the power or duty to consult. We want to make a comment on the wording. "Consult" is not "consent." When a body asks for an opinion of a group, it is consulted; but if the group does not like the project, there is no provision for them to withhold their consent to go ahead. Clause 3(b) allows that the body will take into consideration any views presented. Without the further step that allows a group to withhold its consent, receiving a package in the mail could be considered consulting by the department and used as evidence at any further action or hearings.
It is critical that Deh Cho maintain their relationship to the land to fully determine the nature and scope of any activity within their territories, lands and resources. In the Gwich'in and Sahtu agreements, there is clear language that gives over these resources to the federal government. The federal government does not have any such agreement with Deh Cho. Consulting is not sufficient to meet the needs of the Indigenous Peoples and their relationship to their lands.
One of the most important and significant events in recent time was the federal inquiry into the construction of a pipeline down the Mackenzie Valley. In that circumstance, Mr. Justice Thomas Berger was designated by the federal government to conduct the inquiry. He went into the Mackenzie Valley and to the communities to seek the view of the Indigenous Peoples' views. The process that Berger followed was based on the tradition of the British, in consultation with Indigenous Peoples, set out in the Royal Proclamation of 1763. Just like at the time of treaty-making, there were open and public meetings in the community, with no hidden agendas. There was no time-line on the negotiations or any limit on the amount of information that could be discussed. As a result, witnesses provided a very detailed record of the treaty negotiations and their effect on the lands rights.
From the testimony that was presented at the Mackenzie Valley hearings, it is very clear that the Indigenous Peoples did not give up jurisdiction to their territories, lands and resources.
One of the greatest problems with this legislation is the assumptions it makes. The proposed legislation is drafted on the premise that the underlying title to the lands vest in the British Crown and then, by some magic wand, the underlying title passed to the State of Canada. The Sovereign of England did not possess any right to assume that the underlying title vested in the Crown without the consent of the Indigenous Peoples who were in legitimate occupation of their lands.
There is even less authority for the Crown to subsequently attempt to transfer these lands and resources to the new State of Canada. There could be no transfer without the consent of the Indigenous Peoples. The federal government must provide to the chiefs and headmen documented evidence that shows that the Indigenous Peoples freely, and with complete knowledge, transferred their underlying title to the State of Canada. This would be a prerequisite to the Parliament of Canada possessing any legislative authority to enact legislation over lands and resources for which they possess no authority.
If the State of Canada were truly honest about the legislation, they should amend clause 5(2) to read:
This Act applies in the Gwich'in and Sahtu Dene and Métis settlement areas as set out in their settlement agreements with the state of Canada.
This amendment would implement the State of Canada's legal obligations to the Gwich'in and Sahtu and fulfil the preamble of this legislation. To do otherwise is to violate our rights and invite difficulties.
As the Grand Chief of the Deh Cho, thank you for taking the time to listen to my presentation. If there are any questions, I am prepared to answer them. Mahsi-cho.
To summarize my statements before we move on, I want to say that we are concerned about this legislation before us because the very nature of the legislation being proposed sweeps us under legislation in the same category as the Gwich'in and Sahtu. It is generally applied. We are categorized as a claim and settlement area, which we are not.
We have reasons to be concerned about our outstanding treaty and aboriginal rights. Our contention and our position is that we have never surrendered our lands. Also, the recent jurisprudence in the B.C. Supreme Court case is very significant. Perhaps that could lead to appropriate measures for the federal government to seek to be informed of this decision, which is fairly significant for the First Nations right across Canada. Presently, we have entered into a dialogue with the minister envoy. That has been taking place over the course of four months. Prior to that, we had reached an impasse. The Deh Cho First Nations and the federal government were not talking. There was no dialogue. Basically, we not even talking to each other. In the recent four months, with Minister Jane Stewart's appointment of the minister envoy for the Deh Cho, I believe we have made progress. Four months into the discussions with Mr. Peter Russell, I am optimistic that perhaps a conclusive report will result that will allow us to present our findings to our general assembly.
The thing that I am concerned about is that some of our people are asking: If you have this ongoing process with the federal government and DIAND, why is the federal government passing this legislation at the same time? It does not make sense. That is what our people are telling us here at Deh Cho.
Also, Minister Jane Stewart has sent us a letter, dated May 8, 1998, reassuring us that our treaty and Aboriginal rights will not be affected. In that very same light, our people are questioning whether that is completely true, that our treaty and Aboriginal rights will not be affected. It is hard to believe that.
I thank you for listening to my presentation. I believe that Elder Leo Norwegian from the Liidli Koe First Nations will now make a presentation.
Mr. Erasmus: We are going to have the elder speak in his language, and we will provide interpretation for him.
Mr. Nadli: I will translate for Elder Leo Norwegian.
Mr. Leo Norwegian, Elder, Liidli Koe First Nation: [Editor's note: Mr. Norwegian spoke in his native language.]
Mr. Nadli: He says "thank you". He is aware who he is speaking to, the Senate committee in Ottawa, and he is thankful for this group in Yellowknife. Mr. Norwegian says that he is an elder and that the elders have a place in working with the leadership, especially where it concerns our young leaders, to help them and guide them in developing decisions on behalf of our people.
This legislation put forth before us concerns him. Concerning the treaty of 1921, Treaty 11, reflecting the proposed legislation at this time, if there ought to be any changes, they have to be made with the consent of two parties, the federal government and the Deh Cho First Nations, in this instance. For four months, we have had discussions and a dialogue with the minister envoy appointed by Minister Jane Stewart. Mr. Norwegian is very concerned that if this proposed legislation is passed it may bring doubt to the faithfulness of the federal government in having, on the one hand, discussions with us and, on the other hand, passing the legislation that would have far-reaching implications for us. He says thank you for listening to him.
Mr. Norwegian: [Editor's note: The witness spoke in his native language.]
Mr. Nadli: Elder Leo Norwegian further supplemented his initial statement. He gives thanks for the availability of translation so that you are able to understand him.
This morning, there are presentations from the Grand Chief of the Deh Cho and also the upcoming presentation by the Grand Chief of the Akaitcho Territory and the two Chiefs from the Deh Cho. Their presentations are reflective of what they have said, that the elders in the Deh Cho work along with their leaders, that they are not making decisions on their own. The elders help guide the decision-making process to support their leaders on this very matter. Essentially, what he is saying is that our young leaders are like our best hunters: They provide for us to sustain our communities and our families.
He says thank you for listening to him and that, hopefully, perhaps one day he will get an opportunity to meet the senators on the committee reviewing and studying Bill C-6. Mahsi.
Mr. Erasmus: Thank you, Elder Leo Norwegian. We will now hear from Grand Chief Felix Lockhart. I believe you also have his written presentation before you.
Mr. Felix Lockhart, Grand Chief, Akaitcho Territory Tribal Council: Good morning, honourable senators. Following my presentation, I would be pleased to answer any questions you might have.
I am sure that honourable senators are aware of other presentations by other groups -- by the Sahtu, the Gwich'in, and Dogribs, in our area here. My presentation is on behalf of the chiefs.
Just as a note of interest, a recent election in the Salt River First Nations band sees Chief Nora Beaver replace Chief Jerry Paulette. The other chiefs remain: Chief Florence Catholique from Lutsel K'e, Chief Don Balsillie from Deninu K-ue, Chief Magloire Paulette from Fitzgerald, Smiths Landing First Nation, Chief Fred Sangris from the Ndilo Band, and Chief Jonas Sangris from the Dettah.
I am quite sure that there will be many similarities between our position and that of the Deh Cho territory.
I am also participating in the Aboriginal Summit here in Yellowknife. Basically, we are addressing issues of self-government. We are discussing the inherent rights of self-government policy that were initiated in 1995 with the federal government, and we are undergoing discussions as we see that policy from our perspective.
We are dealing with many issues relating to the creation of two territories in our area. You are all aware of the 1999 separation of the NWT into two territories, with Nunavut on the east and then the western territory, which includes us. We are concerned in many ways, as the previous chiefs have indicated, about the situation here in relationship to boards being set up in what we believe is a random manner. If we are no consulted about the set-up of these boards and all these regimes, then it really undermines our languages, our way of life, and the way that our elders understand life here.
Honourable senators, as the Grand Chief of the Akaitcho Dene peoples, I would like to take this opportunity to thank you for allowing us to appear on this very critical issue. Bill C-6, the proposed Mackenzie Valley Resource Management Act, is proceeding through the legislative process without our consent.
Let me give you a brief description of our location. Our territory is approximately located on the north, south, and eastern arm of Great Slave Lake within Denendeh. As the Grand Chief of Akaitcho Territory, I am responsible for a territory that covers approximately 100,000 square miles. Akaitcho Dene realize that this session is via video conference, but I welcome you to our territory.
It is with regret that you could not have travelled to our territory, to see its vastness and its beauty. It is our life that we are going to discuss. When we speak about our territory, we are speaking for generations yet unborn. There is a heavy responsibility on us to make the right decisions. In making this presentation, we are thinking of these things.
In the past, we have had many discussions with the State of Canada in relation to our rights. In the mid-1970s, Mr. Justice Morrow, in the Paulette case, determined that the lands and resources belonged to the Dene. The treaties entered into with the British Crown did not extinguish our rights to our lands and resources. In that famous judgment, Judge Morrow urged Canada to enter into discussions with us about the nature of our lands and territories. During the hearings, Judge Morrow realized that, to hear the history of the treaty-making, he needed to listen to the people who were present at the treaty-making. As a result, he went to the communities in the Mackenzie -- Deh Cho -- Valley to listen for himself. It was following a precedent set by the Royal Proclamation of 1763 which commanded that no one enter into indigenous territories without our fully informed consent. These provisions also apply to the changing of the treaty: "...in a public forum without interference." These proceedings were not followed in relation to this legislation. We expect the procedures to be followed.
Our ancestors entered into peace and friendship treaties with the British Crown in 1899 and 1900. The Paulette decision confirmed this. There was no land surrender, extinguishment or alienation of our lands and resources to the Crown, nor to the State of Canada. Our peoples were involved in discussions with the State of Canada in the Dene-Métis negotiations, which failed when Canada walked away from the table in the early 1990s.
The Akaitcho Dene chiefs are aware of the legislative history of Bill C-6. Our leadership knows that during the negotiations the Gwich'in and the Sahtu entered into agreement with Canada, the result of which is a commitment by Canada to enact certain legislation. The result of the negotiations called for some action on the part of Canada. The state's response is presently before us -- proposed the Mackenzie Valley Resource Management Act.
The leadership of the Gwich'in and the Sahtu are aware that the Akaitcho Chiefs were not present at their negotiations. There was no mandate implied or given that would have given authority to the Gwich'in and Sahtu organizations to negotiate on our behalf. In all the discussions that have taken place during the past, no organization has been given the authority to negotiate for another. When the Gwich'in and Sahtu were makings their agreements, the Akaitcho chiefs did not interfere with the negotiations. For this reason, we are surprised and disturbed that Canada is unilaterally trying to extend this legislation to our territory without any agreement on our part.
We are equally disturbed to find this legislation unilaterally extending itself into our territory. At this time, Akaitcho Chiefs and leadership are separately engaged in Delgamuukw. The court said that negotiations provide a "solid constitutional base upon which subsequent negotiations can take place". The court also adds the following: "These negotiations should also include other aboriginal nations which have a stake in the territory claimed." The Supreme Court of Canada decision confirmed our understanding that no nation can negotiate on behalf of another nation. We know that the Gwich'in and the Sahtu did not have any mandate from the Akaitcho Chiefs during their negotiations.
In this regard, we want to continue discussions with the Crown based on a mutual respect and trust. The Delgamuukw case further stated that:
...the Crown is under a moral, if not legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgment of this Court, that we will achieve 'reconciliation'.
While the Gwich'in and the Sahtu have concluded negotiations, Akaitcho Dene have not concluded negotiations. We feel that the proposed legislation affects our position on lands and resources. If the State of Canada unilaterally imposes a regime on us, our rights have been violated by the state. For this reason, we are appealing to the members of the Senate to assist us. A great injustice is being done to our people by the state. We do not have the resources to attend meetings in Ottawa to defend ourselves. The very fact that a teleconference has been arranged tells the members of the committee of our economic status. The mining companies and other interested parties have appeared directly before your body because they want access to our lands and resources without our interference.
While we have attempted to continue discussions and to find mutual ground with DIAND's negotiator, DIAND has been drafting and promoting this legislation -- which is against the spirit and intent of our open discussion. There is no fairness and openness when one party is using its trusted position to act contrary to our interests. The Minister of Indian Affairs and Northern Development still holds a trust relationship with our peoples based on the treaties. We have not changed that relationship, and Canada cannot unilaterally change that relationship without our content.
Until we have finalized our discussions on the nature and use of lands and territory within the Akaitcho territory, we are prepared to live with the present structure. We want to enter into an arrangement with the State of Canada which can be an improvement on the proposed legislation. There is a possibility to develop something that will meet our expectations. There is an advantage for us to continue to talk to Canada on this issue. We have never surrendered or released our rights to our lands and territories. In our proposed process, we want to implement a management of our lands based on Dene values and laws. We need the time to fully complete our discussions. The proposed Mackenzie Valley Resource Management Act will undercut our position in a number of places. We take this opportunity to point out those areas. We are also giving brief explanations of our position.
The State of Canada has outstanding legal obligations to the Gwich'in and the Sahtu. Let us state clearly that we have no dispute with Canada's obligations to the Gwich'in and Sahtu. However, we are concerned when our territory is affected without having any agreement with our peoples. It appears to us that the Department of Indian Affairs and Northern Development has drafted proposed legislation that will affect an area outside the Gwich'in and Sahtu. We would like to have this matter cleared up prior to the passage of Bill C-6. This can be effected with three critical amendments to the present draft. We would like to take this opportunity to point out those areas.
In the preamble of the proposed legislation, there is a reference to the Gwich'in and the Sahtu agreements which need to be fulfilled by the State of Canada. The proposed legislation for the establishment of boards would extend beyond the settlement areas. In the "Interpretation" section of Bill C-6, there is a specific reference to the leadership. It says:
`first nation' means the Gwich'in First Nation, the Sahtu First Nation or bodies representing other Dene or Metis of the North Slave, South Slave or Deh Cho region of the Mackenzie Valley.
The legislation should be amended to remove any reference to the Dene of the North Slave, Deh Cho and South Slave. It should be amended to read:
`first nation' means the Gwich'in First Nation and the Sahtu First Nation.
This kind of language would make it clear that the Dene in other parts of the Mackenzie Valley are not to be affected by the legislation. As you can see, the proposed definition applies "first nation" throughout the valley.
Further in the "Definitions" section, this legislation is intended to cover the area as defined:
`Mackenzie Valley' means that part of the Northwest Territories bounded on the south by the 60th parallel of latitude, on the west by the Yukon Territory, on the north by the Inuvialuit Settlement Region, as defined in the Agreement given effect by the Western Arctic (Inuvialuit) Claims Settlement Act, and on the east by the Nunavut Settlement, as defined in the Nunavut Land Claims Agreement Act, but does not include Wood Buffalo National Park.
This section should also be amended. It should be clear that the application of the proposed legislation is to the Gwich'in and the Sahtu areas. Therefore, the definition of "Mackenzie Valley" should read:
`Mackenzie Valley' means the part of the Northwest Territories defined and ratified in the Gwich'in and Sahtu agreements.
There should be a further amendment to clause 5(2), to read: "This Act applies in the Gwich'in and Sahtu Dene and Métis settlement areas as set out in their settlement agreements with the State of Canada." This amendment would implement their legal obligations to the Gwich'in and Sahtu and fulfil the preamble of this legislation.
In making these three amendments, it would be clear that this legislation applies in the settlement areas without impacting the rest of the Dene who are presently negotiating with the State of Canada. As a result, we have been trying to correct the proposed legislation. This legislation need not apply to our peoples. There needs to be correction in the legislation prior to its passage, or else we will have to take action to protect our interests.
We are sure that our difficulties with the legislation can be corrected by making the necessary amendments prior to its passage in the Senate.
I thank you for taking the time to consider our requests. That concludes my presentation. I will now give National Chief Bill Erasmus the opportunity to lead us into further discussion and questions.
Mr. Erasmus: I want to make a few comments, just to make the position on this side clear. I think it is important to let you know that what we are talking of here is very significant. The communities of the Gwich'in and the Sahtu constitute eight communities within the Mackenzie Valley. We are concerned because there are 20 communities outside of their settlement areas that will be affected. This legislation will go well beyond their boundaries, extending into 20 other community jurisdictions. I do not think that was ever the intent when the agreement was negotiated. You could compare it to the Province of Newfoundland negotiating with the federal government an agreement that would include jurisdiction over the rest of the Atlantic and possibly over Quebec, and expecting it to be passed by Parliament and the Senate. It does not make sense. People do not have the authority to do that type of thing in other peoples' jurisdictions.
Clearly, what people here are saying is that they are not opposed to the land settlement agreements; that those agreements should apply to the specific boundaries as their land agreements specifically state. The proposed legislation attempts to go beyond what the land claims agreements are saying as a package. There is a lot of concern that Bill C-6, if passed, will alter, and rightly so, their treaty relationship, the actual understanding of what the treaty is, between the Dene and the Crown.
What also concerns people is that this proposed legislation will interfere with a number of ongoing developments in the North. Nunavut will become a formality next April, but at the same time, within our lands in Denendeh, we are going through a constitutional process which is looking at each of our respective territories developing a governing system. We are engaged in those discussions with all of our communities, which includes the Gwich'in and the Sahtu. Over the last number of years, we have begun to develop a working relationship with them. If Bill C-6 were to pass as it is now written, it will clearly create even more divisions amongst our people, and that is a concern not only to our elders but to all of our population. Therefore, we appeal to you to be sensitive to that.
The presenters have made mention of the recent Supreme Court decision in British Columbia. The Delgamuukw decision was handed down in early December. I think it is important just to highlight some of the realities within that judgment. The Gitksan Wet'suwet'n in British Columbia are in a very similar situation to the Dene. They had never extinguished their land rights, and their case went to the Supreme Court of Canada. In that ruling, the court made it very clear that the Gitksan Wet'suwet'n have aboriginal title and that title exists as an inherent right. That title is protected under section 35 of the 1982 Constitution Act 1982. The source of that title is the fact that they were in their territory first, within clearly defined boundaries and territory. Their title includes surface and subsurface rights to land and resources, and they have also extended this right to include air space.
This title is unique. It is classified as a legal burden on the Crown, which means that the Crown must deal with their title before it can express itself. That is what people here are saying. The Crown is compelled to negotiate in good faith and to recognize same and to resolve conflicts. The judgment also recognized that oral history is legitimate and can no longer be dismissed as hearsay. Finally, the ruling makes it clear that the Crown has a duty to consult in a meaningful way and that consent from the landowners is required if any extinguishment is going to be included.
The Gitksan Wet'suwet'n are, as I said earlier, almost in an identical situation to the Dene, and we believe that the judgment then applies equally to our lands in Denendeh. Therefore, when legislation is going to be passed or applied in the North, those certain circumstances within Delgamuukw would have to be recognized. We want to bring that to your attention.
We also want you to know that we have been in contact with the Gwich'in and the Sahtu. We have presented the proposed amendments to them, for their comments. We are asking that they support us, and they may come to you with something to that effect. As presented, we are asking for three clear amendments: One would redefine who the leadership is. There would also be a redefinition of the Mackenzie Valley, and also a definition of where the proposed legislation will apply. People are making it clear that they want the proposed legislation to apply to the Gwich'in and Sahtu areas.
If you look at clause 5(2), we suggest that it should read: "This Act applies in the Gwich'in and Sahtu Dene and Métis settlement areas as set out in their settlement agreements with Canada." What that is saying is that if you go strictly by the Gwich'in and Sahtu land claim agreements and you do not extend the definition of the Mackenzie Valley as they tried to do in the legislation we do not have a problem. If you go strictly by their land claim agreement, it will confine their decisions and their application to their settlement area, and that is what people want.
So that is clearly the amendment from this side.
Those are my comments. We are very pleased to be here. We thank you for this opportunity. People are open for comments, questions, and so on.
The Chairman: Thank you, Mr. Erasmus. Before we begin with questioning, I first would like to introduce the senators that are here: Senator Andreychuk, Senator St. Germain, Senator Forest, Senator Taylor, and Senator Adams. We appreciate the presentations that were made. I think they, first of all, pointed to your arguments. As you heard earlier on, no determination has been made yet on how we are going to deal with it at the end of the day. That still remains to be dealt with down the road.
Senator St. Germain: National Chief, it is nice to see you again. I am still wearing that blue cap you gave me from the convention that I attended. I believe it was the 25th anniversary of Denendeh that I attended. You gave me a blue cap. You wore it hunting, and I have had good fortune every time I have worn it.
In any case, I thank all of you for making your presentations here this morning. I think the presentations have been excellent. They clearly lay out your position.
My first question is to you, Chief Erasmus. Have you heard that the Department of Indian and Northern Development is already advertising for people to fill positions on this board that will evolve out of Bill C-6?
Mr. Erasmus: The advertisements, as we understand it, are being placed. We have a copy of a letter to some of our leadership which asks for us to present names to be nominated to this land and water board; as well, an office is being established in Yellowknife. I think they already have some staff, so the wheels are in motion for the legislation to kick in. That is as best I can answer that question.
Senator St. Germain: My question is to anyone who wishes to respond. Do you all concur that the passage of this bill in its present form will definitely inhibit future negotiations in attempting to settle your claims?
Mr. Lockhart: I believe that this regime, this piece of legislation that we are talking about here, will surely affect our negotiations with the Government of Canada. I know this may be a reference to the two settlement areas, but we also understand that it is a public board that is going to be set up for a territory-wide public regime. Nevertheless, negotiations are under way with the Government of Canada on lands and resources as well as our self-government agreements. We would like to have the same opportunity to negotiate those very specific items within our Akaitcho Territory so that we can ensure that our people in the communities, who want to know what is going on, will be well-represented.
Sometimes we have difficulty with the boards that are in place. They do not necessarily speak in our best interests. There have been many times where there has been confusion between consultation and consent. Whenever the government people come into our communities, they say that they have been consulting with us. They use the fact that they have consulted us as proof that we have consented to these issues or piece of legislation, whatever they are consulting with us on. I think that has to change. That order of business has to change. It is now time that we really feel part of Canada, that we really feel part of our own territory. We want to be able to walk around in our homeland with the feeling that we truly have a rightful place in our territory and are making the right decisions on our lands and resources. We do not want to put that solely in the hands of third-party interests or government officials.
I think it is very important that we are given an opportunity to negotiate whatever happens over our territory, right from the onset. The Minister of Indian Affairs said that she wants us to be able to take part in discussions that might change the proposed legislation after it is passed. We do not really want to be in that position. We want to be able to ensure that we have started to negotiate in good faith right from the start. That is what we are talking about.
We are talking about people working together. We are talking about the Gwich'in and Sahtu. We respect their positions. We respect the fact that they have settlement legislation in their area, but they did not expect that this would be a Mackenzie Valley-wide sweeping regime.
Mr. Erasmus: Grand Chief Mike Nadli also would like to make a comment.
Mr. Nadli: I indicated that, in our region, our leadership is engaging in discussions with Peter Russell, minister envoy appointed by Minister Jane Stewart for the Department of Indian Affairs and Northern Development. For some time, since 1994, there was a brief impasse, perhaps for a period of three years, where the previous Minister, Ron Irwin, had an opportunity to develop and move forward the whole Deh Cho proposal on the basis of having formal talks with the Deh Cho First Nations. Essentially, though, his attitude has been that he did not really want to move along with the Deh Cho First Nations. Hence, for a period of three years there has been an impasse -- no real discussions, very minimal communication, and a lot of political posturing through the media. The federal government has been portrayed as a dinosaur in the circumstance of the First Nations people trying to create self-determination, trying to achieve our aspirations for the future.
If Bill C-6 is passed, it will be a step backwards. As I indicated, I have been very optimistic with our discussions over the course of four months since February. We have covered substantive ground by having a very direct dialogue with Peter Russell, really assessing some of the hard core issues and the fundamental values that we have, and examining the various policies that the federal government has in trying to determine a resolution to the issues of governance and lands in the Deh Cho.
I cannot emphasize more how optimistic I am that we can lead to a conclusive report, that our people that are mandated to lead discussions with Mr. Russell will conclude the report to our general assembly. We have to, of course, as our elder indicated, work together. We have to listen to each other. We have been asking by people in our communities why we are talking with the federal government, with Peter Russell, when this proposed legislation is moving closer to being passed. One instance is an example of where the Ka'a'gee Tu through the Churchill land-use regulations have no provisions for appeal mechanisms. The Chief of Kakisa, which is a small community, alluded to the circumstance of filing a court injunction on behalf of two neighbouring communities to take the NWT Minister of Resources, Wildlife and Economic Development to task on why a timbering and logging permit was issued despite the opposition of our communities.
It is something that our people are very concerned about. They have asked us why our discussions with the federal government through the minister envoy should continue if this legislation goes through.
Mr. Erasmus: I would like to just quickly add to that. The Akaitcho negotiations are a bit ahead of the Deh Cho. Akaitcho territory has a federal negotiator. They have entered into full-scale negotiations. They are very close to signing or agreeing on a framework agreement that would guide their full discussions. The framework agreement includes a self-government package, lands and water resources. It deals with inherent rights. It deals with a very comprehensive approach to settling outstanding issues with Canada.
They are afraid that, if this legislation passes as is, it would affect their potential to negotiate the lands and water section and jurisdiction over their territory. Even though the legislation might say that if you have an agreement in the future with Canada, that agreement would apply, there is no incentive on the part of Canada to sit down with these people once this legislation is passed. Once something is passed, Canada will not want to change anything, to make room for these people to settle their own agreements. Canada will say that the status quo is there and that if it open's the door for them, they are going to have to open the door for everyone, not only north of 60 but also south of 60, so we get caught in the negotiating game. People are very aware that they have to negotiate their own agreements.
Senator Forest: We have appreciated your presentations. You made some very compelling arguments. It was mentioned that it was unfortunate that we were not able to visit the valley. I agree with you. I have been through a number of times in my work with northern transportation and visited most of the communities from Hay River to Inuvik. I appreciate your concerns.
We are talking here about jurisdiction. You have all made compelling arguments that, while this legislation is fine for the Gwich'in and the Sahtu, it should not apply to your regions and your settlements. You are saying that although you have been assured by the minister that this will not affect your treaty rights, you are still not confident that it is so.
We undertook these hearings on the understanding that it was not going to affect your treaty rights. Supposing you were ensured of that, or could feel reassured about that: Would you have specific concerns about the legislation as it applied to your settlement areas, or is it more a general concern that if the legislation goes ahead, as the last speaker said, there no longer will be people coming to the table to negotiate your treaties in good faith? I would like to ask, first of all, if that is the main concern.
Second, if there are other specific concerns about the legislation, should you be assured that it would not affect your negotiating or treaty rights?
Mr. Erasmus: I will try to answer that quickly. There are a great number of concerns, once you go through the legislation, of which people are aware. If you can appreciate, we have not been party to designing the legislation. Had we been involved from the beginning, there would be some major changes to it.
Some of the major changes include the fact that the boards are public. They include all residents of the north. It gives them a large say on our lands and resources. It takes away jurisdictions from the chiefs and their councils and their lands. In the end, it gives discretionary power to the minister responsible, which means that the people in the north really do not decide, and that the minister has overriding veto over decisions. Again, that was one of the big reasons for settlement in the first place -- to take power and control away from Ottawa, if not Yellowknife. It does not accommodate people that way.
There are a whole number of concerns. I know the Métis have also indicated that they have problems. We have never specifically gone through the legislation to pinpoint problem areas that exist. If you want us to do that, perhaps we can take the time to give you a better idea of other problem areas that we have. The easiest way we have found is that we would be open to making those three amendments that would exclude us, and we would like to continue with the present water board and deal with Canada as we are right now, until we can set up something different.
Senator Taylor: Thank you also for a very good presentation. I will not accept your invitation to come up and see the country now. As I recall, the mosquitoes there are big enough to haul off 737s about this time of year. I would just as soon wait until the frost comes in September, at which time I may come up and see you.
You mention, and I think it is quite clear, that you are not happy with clause 5(2), which says that the proposed act should not be "construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35". In other words, you are saying that that clause may not be good enough. Even more so, I get the idea that you are trying to hold the government's feet to the fire and you are afraid, if Bill C-6 goes through, that you will lose a lot of the pressure that you have to put on the government to get things done or get settlements made.
One problem I have is that I am under the impression that, if Bill C-6 does not go through to get integrated water management to the valley, possibly a number of projects, mining and others that are in the areas where you people live, would not get under way or continue and you would be out of jobs. You would lose jobs. Let us say that this proposed legislation gets suspended because you do not go along with it. Are you worried at all that you will kill development that would provide jobs to your people? In other words, why would you want to preserve the status quo, which could go on year after year? Should we not build something in here that ensure that the government will settle within, say, the next three years, rather than just junk it?
My question is directed to Mr. Erasmus.
Mr. Erasmus: If this legislation is passed and it does not apply to our area, the present water board and the environmental assessments, and so on, would still apply. Applications for diamond mines and other developments would still go on. What we are saying is that we would rather be engaged in that, knowing that we can change that in future, than be under a regime that we did not have any part in.
Development would not cease. Life would continue, and we would be able to participate in a process that would include our peoples in the regulatory system, and so on.
Senator Taylor: I have some businesses up there, in mines, and I think you are a little over-optimistic. If things are left unsettled, no one is crazy enough to invest a couple of million dollars into something that is still up in the air.
Mr. Erasmus: I would like to respond to that last comment and expand on my statement that development would still continue. Ideally, we would be working with Canada and agreeing on any kind of development that would proceed. For example, the diamond mines in this area are still going ahead without this legislation. That would continue. People are investing in the north, even though settlements are not taking place. We have been engaged in these discussions since the early 1970s. What we have been doing is sitting down and talking more to the investors and the developers, trying to come up with an interim or short-term understanding until the long-term question is resolved.
Senator Andreychuk: I want to echo the other comments about your briefs. You have stated your position loud and clear. We hear it.
Were you ever contacted by the government at the time the Sahtu and the Gwich'in were signing their agreements? At the time the legislation was moving through the two houses in Parliament, were you ever aware that your water rights would be affected? Were you ever consulted at that time?
Mr. Erasmus: When the Gwich'in and Sahtu began to negotiate, we had a common understanding that we would not interfere in each other's negotiations. They sent a communiqué to us saying that they are negotiating, and they asked us not to be involved. We upheld that. We were not at their table. We were not aware of what their agreement involved, and legislation passed. We did not make any presentations to any of the standing committees because we assumed that it was within their settlement area.
If you look at all of the other land agreements in Canada, the Inuvialuit, the James Bay Cree, and so on, they do not extend beyond their respective boundaries; they work within their settlement areas. Hence, we assumed that that would be the case. It was quite some time later that we found out that their jurisdiction extended beyond their settlement area. That is when we became very concerned.
If you look back in the record, you will notice that it was not until 1994 or 1995 that we began to speak out on the matter. Since then, we have been consistent in our approach that we feel that the whole process is not fair and that justice is not being served here.
Senator Andreychuk: If I understand your position clearly, you are saying the Gwich'in and Sahtu could go ahead, providing it did not affect you and your lands. If that is the case, do you think there is a way to have this legislation go ahead, because you cannot really divide up the waterways and water systems in that way?
Mr. Erasmus: I think it can go ahead. It is very similar to the Alberta-NWT border. They have a different regime in Alberta from the NWT. In our case, there will be another border, just north of us, that would have a very good regime for them. It would involve them. They will have their own process that they have negotiated, and that is fine. Within our own system, we would have something a little bit different, but still within the regulatory process that has been designed here. I think it is quite possible.
It would change Canada's plans, however, because, as you have heard, they are already advertising. They have set up an office in Yellowknife, and the wheels are in motion. In fact, what it will do is probably save them money because it will involve a smaller geographical area and fewer people.
Senator Andreychuk: If I understand you, this water board could be set up in such a way as to have it affect the Sahtu and the Gwich'in only; then if that agreement in any way impinged on your water rights or catchment area, they would be obliged to come to talk to you in the interim period, until you settled definitely your land claims and other issues?
Mr. Erasmus: Yes, that is right. They would be able to participate within their own lands and act on activities that are taking place therein.
Let us look at a scenario that is quite possible. Suppose Daishowa wanted to build another pulp mill in Alberta. That would affect all of us in the Mackenzie Valley. We would be able to participate and make our comments known through whatever system was available to us. We would do it through the federal government and the NWT water board. They would do it through their land claims process, through this land and water regime and through the federal environmental process. So we would both be able to participate.
Senator St. Germain: I have one brief comment. I am really shocked that Minister Stewart, for whom I have a great deal of respect -- she is an excellent minister as far as I am concerned -- would allow her officials to go ahead with this at this stage because I think it is an affront to the Senate and to the parliamentary system as a whole to take this presumptuous action. I can only assure the presenters here this morning that we will do our utmost to make certain that your positions are respected and, hopefully, we can effect the amendments to the legislation.
I thank them again for their excellent presentations.
Senator Forest: I can understand and appreciate your concerns about the two processes going on at the same time. I would just say, as a relative newcomer to government business, that at the glacial speed this legislation seems to be going ahead -- it was supposed to have been done in 1994 -- I would not be too concerned about that at the moment.
Mr. Nadli: Before we close, I want to make a note on the statement I made earlier that this legislation, with one sweep of the general brush, might lead us into a precarious situation. Even before the present minister, Jane Stewart, this whole initiative was unfolding as a follow-up to the 1990 Dene-Métis agreement in principle. I wanted to note that.
One thing I really take to heart is the purpose and intent of the minister's recent statement of reconciliation and Canada's aboriginal action plan. I believe it purports and expounds that we want to create a level playing field for First Nations people. The federal government contravenes the very principle that the minister, and perhaps her officials, are expounding to trying to achieve for First Nations not only here in the Deh Cho and the Denendeh area but right across Canada.
Senator Adams: For those three groups which have not yet settled a land claim, the minister was choosing members of the water board and the environmental board. I know you are against the bill. If you were asked to choose a member for the board in the future, are you going to go ahead and appoint someone from your region, if Bill C-6 is passed?
Mr. Nadli: At the outset of our presentation, and speaking with the Senate members, I believe it is very presumptuous for the legislation to be passed at the same time that measures are taking place alongside even this discussion that we are having with the Senate. It is rather kind of presumptuous for us to even say we will appoint a board member. The sense that I have is no, we will not.
Mr. Lockhart: Thank you for the question, Senator Adams. Taking into consideration what happened back in 1990 with the Dene-Métis negotiation we did not agree with the 50-50 board and veto power to the minister. We did not agree to the extinguishment. We are now in an area where I think we can work together.
I think we have the understanding that there has to be a negotiated position that we are going to enter into. Especially in the light of the Delgamuukw case, we feel there are going to be applicable rights throughout Canada and that the federal Justice Department is going to be able to respond to that court case soon. I think it is about time that we were given the opportunity. Even if this proposed legislation passes, and we hope that it is not going to be passed, we will not be able to present our appointments to this board because it will be in conflict with our position. To be consistent with what we are talking about today, we need to be able to continually talk to governments until we reach a comfortable and safe level with our situation here. That is my response to that.
I know that within our area, too, the South Slave Métis Council made presentations on behalf of their membership. I think we are all in the same light about that. I think what we need to do is be able to have more discussions on this.
I believe we can work out an arrangement that is going to be suitable for our people here in the Akaitcho Territory and also the Deh Cho. I believe there is that opportunity. I believe that honourable senators have a lot of influence in what goes on in Ottawa and Canada. The bills are going to be passed. A lot of it rests on how you deliberate. I certainly hope that all our concerns are given serious consideration. Thank you.
The Chairman: Thank you, everyone. Thank you for the excellent presentation. We will get back to you.
Mr. Erasmus: Thank you for your patience.
The Chairman: I am getting kind of homesick, too, because I know what the weather is like up north. I am still stuck here. I am hoping to get up north soon. Thank you, again. Hopefully, we will be able to come up and visit you some day.
The committee adjourned.