Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 10 - Evidence
OTTAWA, Wednesday, June 17, 1997
[English]
The Standing Senate Committee on Aboriginal Peoples, to which was referred 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; and Bill C-30, to amend the powers of the Mi'kmaq of Nova Scotia in relation to education, met this day at 10:01 a.m. to give consideration to the bills.
Senator Charlie Watt (Chairman) in the Chair.
The Chairman: Honourable senators, our first witness this morning is the Honourable Jane Stewart, Minister of Indian Affairs and Northern Development. The minister will make an opening statement, and then she will be prepared for questions.
Madam Minister, I am sorry we have taken so long to deal with this particular bill. This has been due to the complexity of the bill. It is not easy to understand, especially when we are dealing with two components of the negotiations. One is the comprehensive land claims, and the other is the movement towards self-sufficiency. We do have an appreciation that your department is trying to answer some of the issues that have been highlighted by aboriginal groups, and I know that it is not an easy task.
We got ourselves into a bit of a predicament the other day when we were dealing with regions north of the Mackenzie Valley area that have already been taken into account in the settlement. Three others were involved in the early stages leading up to 1990, and they were no longer part of the process for reasons related to the extinguishment matter.
Please proceed, Madam Minister.
Ms Jane Stewart, P.C., M.P., Minister of Indian Affairs and Northern Development: Honourable senators, I am glad to be appearing before you this morning. In this very room, I met with my colleagues Ralph Goodale and Allan Rock and the Dene of Deline on some very important issues facing that community. It was a most appropriate setting in which to have our conversations.
I wish to recognize the great interest that senators have shown in Bill C-6. I want to thank you for being patient, and for waiting to get me here. This gives me the opportunity to reaffirm some of the information that I provided to you by letter concerning some of the issues identified over the course of committee hearings.
I have also had the opportunity to listen to some of the debate in the Senate chamber recently. My goodness, you senators can be pretty brutal when you are talking about ministers. I thought we were on friendly terms, but you are far more political here than we are in the House of Commons. At any rate, I enjoyed reading the transcripts, but most particularly I appreciate the interest you have shown in this proposed legislation.
I am sure all honourable senators are aware that the federal government has been criticized for its resource management regime in the north for decades. The criticisms have been that the process was not inclusive enough, not comprehensive enough, and ignored the views of local people. Decisions were being made with no substantive involvement of aboriginal people. We were consistently told that people wanted a real say in how natural resources were managed.
In this light, the bill that senators have before them now is historic. For the first time my department will be completely removed from resource management in the Mackenzie Valley. No longer will we make decisions isolated from the people who live on the land; no longer will my department alone issue land use permits and oversee environmental assessment.
With this bill, aboriginal people will have an equal partnership with government in making decisions on how resources are managed. Decisions that affect the Mackenzie Valley will be made by the residents of that valley. It is true co-management as supported in the Royal Commission on Aboriginal Peoples and as outlined in "Gathering Strength", the government's response to the royal commission's work.
Bill C-6 has a long and complex history. The roots for co-management in the Mackenzie Valley lie in the early to mid-1980s, and led to the Dene-Métis agreement of 1990. Unfortunately, as you know, this agreement failed to be ratified because of concerns over the extinguishment provisions.
Co-management continued as a key feature of the Gwich'in and Sahtu land claim agreements signed in 1992 and 1993. The agreements negotiated and signed by the previous Conservative government called for co-management boards, including a valley-wide environmental impact review board. The subsequent implementation legislation for these agreements was supported by both parties in the Senate in 1992 and 1994 respectively.
The agreement signed by the previous Conservative government required a valley-wide approach. I want to bring that to your attention. This is not something that has just been created. This is something that has been in development for a long time, and it is part of the process of building stronger partnerships with aboriginal people, and with people in the north in general.
The bill before you today has been developed as a result of these land claim agreements. It is the product of much consultation in the north. I would note that over 35 drafts of the bill have been prepared. We recognize that we might not have gotten it right in the first instance, and we have been working very hard to put this complex bill into a form that can be implemented, and one that will be productive.
Over 20 meetings were held with affected groups, and there have been community tours to review this bill with aboriginal groups. In all, it has taken five years to develop this complex and highly technical bill. The result before you now is Bill C-6, and I do believe that it represents good public policy.
As all senators are aware, the Mackenzie Valley is one of the great ecosystems in Canada and indeed, I believe, in the world. It holds Canada's greatest north-flowing river, and it is also a single ecosystem. Decisions that are made in one region of the valley can have an impact on other regions.
When looking at resource management in such an environment, we are faced with two choices. One is to have an integrated system that can take into account the entire ecosystem of the valley. The other is to negotiate a patchwork of different resource management regimes in the valley.
Bill C-6 recognizes that the Mackenzie Valley is a single ecosystem that requires protection. The Environmental Impact Review Board provides for an integrated approach to environmental management to take into account the entire valley.
The Mackenzie Valley Land and Water Board recognizes that land and water decisions can impact on the entire valley. The Government of the Northwest Territories, including the Minister responsible for Aboriginal Affairs, Jim Antoine, supports this bill as being good public policy. As his deputy minister, Mr. Fred Koe, said before this committee:
The maintaining of two or more regulatory regimes would be very impractical for our territory, for the western Arctic and the Mackenzie Valley.
This integrated approach will allow First Nations an important decision-making role in all lands, not just in their settlement lands. This gives First Nations decision-making authority in projects that are outside their lands, but which may have an impact on their lands. If there were to be a fragmented system in the valley, this would not be possible.
I think there is wide agreement that an integrated approach represents good public policy, both from a management perspective, and in terms of protecting the environment.
At this point, I would like to again address the statements made by some that we could restrict the application of this bill only to the Gwich'in and the Sahtu regions. I think senators should be fully aware of the implications of this approach.
First, it would mean that Canada would fail to fulfill its obligations under the constitutionally protected Gwich'in and Sahtu agreements. Those agreements were ratified and supported by both Liberal and Conservative senators in 1992 and 1994.
Section 24.1.1 of the Gwich'in Land Claim Agreement indicated that the following principle shall apply to this chapter:
(a) An integrated system of land and water management should apply to the Mackenzie Valley.
Section 24.3.2(a) goes on to state that:
An Environmental Impact Review Board ("the Review Board") shall be established as the main instrument for the conduct of environmental impact assessment and review in the Mackenzie Valley.
I would note that section 24.3.2(b) affirms that:
The Review Board shall have equal membership from nominees of aboriginal groups and of government, not including the chairperson. No less than one member of the Board shall be a nominee of the Gwich'in Tribal Council.
In section 25.3.2(a), the Sahtu land claim states that:
the Review Board established to implement the environmental impact review provisions of the Gwich'in agreement shall be the Review Board referred to in this agreement.
Restricting this bill solely to the settlement areas would require reopening these constitutionally protected agreements.
Second, I would note that restricting the bill to the settlement areas would lead to a patchwork of resource management systems in the Mackenzie Valley, which would be ineffective public policy for the reasons I explained earlier.
Third, it would mean that the bill would have to be withdrawn and substantially redrafted. This is not a simple amendment. Restricting the application of the bill to the settlement areas would mean that the eco-management boards would make decisions in the settlement areas, and DIAND and the Northwest Territories Water Board or CEAA would retain decision-making authority in the remaining areas.
If there is a project with valley-wide implications, there are no provisions currently in the bill to mandate any form of integrated decision making to take into account the single ecosystem of the valley. This would not be proper environmental protection, and it would not be proper management of resources.
I am aware of the concerns that have been put forward by several First Nations to this committee. I have met with many of those groups on this subject. I can assure the committee of my resolve to settle northern land claims, and to forge modern self-government arrangements with the First Nations. I can also assure committee members that Bill C-6 is flexible. Its whole intention is to anticipate the continued settlement of these land claim agreements. It is my belief that future agreements, should they require it, will modify the act as it is before you.
I view the Mackenzie Valley Resource Management Act as a start and not an end in tailoring a resource management regime in the Mackenzie Valley. The provisions of the bill, in fact, mandate and require this flexibility.
I refer the committee to clause 8(1), which requires consultation with First Nations when modifying this legislation, and section 8(2), which was added to the bill by Liberal members in the House of Commons standing committee. I fully endorse this addition, because it does increase the responsibility and the requirement for us to consult, not only in land claim agreements, but where there are self-government agreements as well. The flexibility is there, and the intention is clear as drafted.
I am sure that senators are aware that land claim agreements which are constitutionally protected are paramount. Therefore, this act will need to be modified to accommodate any future agreements. Clause 8(1) requires consultation with First Nations in developing amendments to the legislation.
The flexibility of Bill C-6 was outlined by Richard Nerysoo, president of the Gwich'in Tribal Council, in his presentation before this committee. He said:
Nothing in this legislation takes away the ability of First Nations to negotiate any additional arrangement that would allow for the amendment of this legislation.
The bill binds myself and future ministers of Indian Affairs and Northern Development to review this legislation in consultation with First Nations, and to make any amendments that are required as a result of the agreements with First Nations. Moreover, I should remind committee members that clause 5 contains a non-derogation clause, not just because it might offer comfort to First Nations, but because we affirm that we do not intend to ever abrogate or derogate from any aboriginal or treaty rights. Indeed, we cannot lessen the protection of those rights which are affirmed by the Constitution.
In summary, senators, I believe that Bill C-6 represents good public policy. It fulfills Canada's commitments under existing land claim agreements, and it is flexible to accommodate future land claim agreements.
I thank you for giving me the opportunity to be here, and I look forward to your questions as we further explore the bill.
Senator St. Germain: Thank you, Madam Minister, for appearing today. When I raised the issue of your not appearing before us, I did not think it would cause the kerfuffle that it has. As I have said before, I appreciate the straightforwardness, the integrity and the candour that you bring to your various ministries. I always look forward to working with you.
The main issue in these hearings on Bill C-6 is the possible effects of this bill on aboriginal title and future negotiations, and the fact that it covers a great deal more land than required under the agreements with the Sahtu and Gwich'in people. After hearing the groups that are opposed to the bill, I have come to the conclusion that this may be government doing things to people, and not for people.
Therefore, given the state of the law as illustrated in Delgamuukw, how can we accept that you have the legal authority to impose the regime contemplated in Bill C-6 on lands for which we have not settled claims?
I asked most of the groups directly whether this will affect their future negotiations. They all believe that it will, in spite of what you are saying and in spite of clauses 8(1) and (2).
That is why we wanted you to appear before us. We want to see if you can give us the comfort we will need to allow this bill to proceed. I know that both Conservative and Liberal governments have been involved in this. I think you will agree that we have all made errors on native issues in the past. It is to be hoped that we are not making one now. That is why I am pleased that you are here.
Ms Stewart: Senator, it is a pleasure to be here. I want it to be clear that my absence earlier was not intended as to slight the committee. As you know, I have respect for the committee, as well as for all the First Nations with whom I am in partnership. However, my schedule has been rather wild. I appreciate your patience.
I truly do view this legislation as an extremely positive step toward building the appropriate and respectful partnership that we must have with aboriginal people in this country. Co-management is the right approach. I will stand by that.
Senators must understand that there is nothing in this bill that deals with title and right. Titles and rights are constitutionally identified and protected. We are negotiating agreements with First Nations to resolve and reconcile those rights in modern times. This bill is not about rights. The rights exist. This bill is about how we appropriately manage and protect the environment in the Mackenzie Valley.
To use an analogy, it is like owning property and then deciding to build a house on it. No one is saying you do not have the right to your property. However, if you decide to build on it, your neighbours want to ensure that you do not build a pig pen or a 20-storey apartment building that will impact on them.
This is not about right and title. There is nothing in this bill that will derogate from those constitutionally protected rights. This is only a management regime that will give the entire valley a say should a title owner decide to proceed with some kind of development.
Let us separate those things and understand them. The First Nations that are concerned about that must understand that this is not about those titles. I do not agree with the Reform Party that you can legislate away aboriginal title, as was said in the other place.
In my view, it is tremendously important for different First Nations groups to have a broad view right up and down the valley. This is because what happens at the bottom end of the river affects the northern end. This is not about anything other than finding an appropriate mechanism to ensure that we can environmentally protect this very important ecosystem.
I will not talk about negotiations, because they are happening at other tables. However, if the government comes to the table with a mandate on certain issues then, of course, we will bring certain fiscal and other limitations with us, one of them being your government's decision that we take a valley-wide approach in developing the Mackenzie Valley. I will not change that point of view. That is one of the things that we bring to the table as we negotiate. I believe it is the right thing. I believe it makes good public policy.
The proposed legislation is historic, and actually puts a whole new way of thinking in place. We have something very positive here. In terms of the issue of rights, they are not derogated in this bill. In terms of our mandate at the table, I will protect the notion of having a valley-wide approach. I am even more convinced of that now. That is what I see as I travel from territory to territory.
We are attempting to develop the same sort of appropriate regime for managing both the environment and development in the Yukon. In that regard we look to Nunavut and see the legislation concerning water. Everyone says that we must look at the ecosystems in their entirety. Creating a patchwork strategy is not good for the individuals who live there. It is not good for the third parties and the economic sectors that we need to help to build a future in the north. We must lay a plan that makes sense and is manageable. Further, it must be respectful of all the parties involved, and it must allow us to protect the very sensitive ecosystem in the north.
Senator St. Germain: Madam Minister, why do you think that the Dogrib and the Dene would be so adamant in stating that this will definitely impinge on their abilities to negotiate land claim settlements? I agree that we must have an all encompassing system. Was it never thought that we could leave the present system for those who have not yet settled, and bring Bill C-6 in for just the Gwich'in and the Sahtu?
I return to Delgamuukw. The Delgamuukw decision, as we see in today's The Globe and Mail, is really impacting my province, which is likely the most contentious when we come to the issue of claims negotiations. I know your officials say this is the only way we can proceed, and that the proposed legislation will not derogate any future decisions regarding title. However, these bands were emphatic that this measure would impinge on their ability to negotiate.
That is really the only question I have, and I am not a lawyer by profession.
Ms Stewart: I am not a lawyer either, senator, which is, perhaps, a liability. I will not pretend to make any presumptions about the thinking of the Dogrib or other First Nations who have appeared here before you. I have met with them. In my view, our negotiations are proceeding very well.
If we look at Delgamuukw, we see that that direction was to ensure that consultation occurred and occurs with First Nations in anything that might impinge on their rights and on their title. The decision suggests that we consult with them as we look to interventions that may occur on lands to which they have rights and title. This bill is a reflection of Delgamuukw. In it, we see the requirement to include the First Nations in consultations on any amendments, and to participate with them in strategies for development.
In my view, this legislation reflects the direction the courts gave us to focus upon, in terms of the consultations that must be undertaken with First Nations as we proceed to take action, and as they proceed to take action on their own lands.
For those First Nations who are negotiating with us now, there are broader opportunities for them now than existed for the Gwich'in and the Sahtu in the late 1980s and the early part of this decade. We now have an inherent right to self-government policy. We have taken, and continue to take, a serious look at the requirement for extinguishment. We are building different strategies to attain certainty as a result of land claims.
In terms of this decade and, perhaps, the next, history will reflect positively on the changing dynamic and understanding of what the Supreme Court directed us to do through Delgamuukw, and what the Royal Commission directed us to do in terms of building a new partnership. Building on the model of mutual respect and recognition, responsibility and sharing, we are putting together regimes and partnerships that are far different than they were even 10 years ago, when we were negotiating with the Gwich'in and the Sahtu.
I cannot confirm the concerns that have been expressed to you, senator. What I can confirm is an understanding our understanding in the department that, as we proceed with negotiations, they are the right thing to do. In the context of this legislation, we believe that rights and titles are absolutely protected.
We believe that the right thing to do from a public policy point of view, supported by people such as Richard Nerysoo, is to have a valley-wide approach. This legislation takes us a huge distance in changing the markers that reflect our relationship with the past.
Senator St. Germain: When we had these hearings, one of your negotiators was present. That negotiator said that he felt this could impinge on the negotiations. I leave it at that, Mr. Chairman.
Senator Johnson: Madam Minister, thank you for coming today. We have had extensive hearings on this bill. I am asking a couple of questions today for Senator Andreychuk, who was unable to be here.
While the government is taking into account the national interest and can proceed with legislation, it is important that the government also take into account the minority interest. In other words, it is important that aboriginal groups be consulted. Further, their views must be taken into account when finalizing the national policy. How did you take that concern into account and consult with those groups who are opposed to Bill C-6?
Ms Stewart: As I mentioned in my opening comments, we have taken significant time to prepare this bill. It has been five years since we began talking about the strategies and implications of this approach in First Nations communities. Indeed, the bill was developed out of land claim agreements with the Gwich'in and the Sahtu and, as such, is very much reflective of aboriginal interests.
Since the drafting began, we have been in the communities, speaking with community members about what this strategy is about. We have discussed the notion of co-management, and the actual involvement that exists now for those First Nations who do not have land claim agreements in place. We have also discussed their ability to participate in the working groups that will be developed, and to become part of the implementation process should this bill receive Royal Assent.
The partnerships have been increasing in number. The relationship has been improving, not only in the context of this bill, but also in the broader context of reflecting a government-to-government working relationship that we are building on through our inherent right policy.
Senator Johnson: If clause 8 has been used as the clause which, in addition to the comfort clauses, protects those groups which have yet to negotiate their land claims, will the minister undertake that clause 8(2) be interpreted to also mean land claims? In other words, will the minister, upon completion of any further land claims, review this act in consultation with the First Nations groups with a view to ensuring that their interests are taken into account in the management of the land and water of the Mackenzie Valley? I believe you were speaking about that earlier.
Ms Stewart: Yes, I was. Subclauses 8(1) and (2) clearly require us to engage in full consultation with First Nations where there are land claim agreements. I would point out that such agreements are paramount and constitutional. They take precedence over this act.
Similarly, I was reading the Senator Andreychuk's comments in the chamber. She was concerned that, if there was only a land claim agreement, and if there was only a self-government agreement, would the same requirement for consultation exist? The answer is yes.
Senator Johnson: Total global environmental management is important. Once again, I have read some of your comments in the past in the House of Commons, and it was not something that was in dispute. However, it is also important to note that there are a number of ways to accomplish a global strategy. Your government has chosen one, and there are other management strategies. My comment is that it is important for you or your department to continue to review the practical implications with all those impacted by the management plan. I do not think we are in disagreement with that issue at all.
Ms Stewart: I find myself wearing two hats in this regard -- one as Minister of Aboriginal Affairs and the other as minister responsible for many province-like undertakings in the territory.
With this approach, we are creating a comprehensive bill, one that builds on those two responsibilities. It also gives us a capacity to move forward in the appropriate direction should we get to a devolution opportunity -- and I believe we are getting there -- where the aboriginal people of the Western Arctic could take this legislation and continue to build on it. We have tried to envision the next steps and not complicate our opportunities, but rather provide ourselves with a pathway to encourage the creation of a government that is closer to people and can make decisions on behalf of the people it represents indirectly.
Senator Johnson: Thank you for appearing this morning. It has made a big difference to the passage of this bill in the Senate.
Senator Forest: I, too, wish to thank you, Madam Minister, for appearing here today. As sponsor of this bill, I had a real concern that everyone's interests be taken into account.
I have visited the Mackenzie Valley on a number of occasions. I know the importance of a valley-wide ecosystem. I also have very close ties to the aboriginal community, so I wanted to make sure that their concerns were met.
My particular interest in sponsoring the bill was meeting the concerns of Senator Andreychuk. I met with her at length the day before yesterday. Since Senator Johnson has put those concerns on the table, I feel more comfortable.
Ms Stewart: I wish to recognize, too, the work of the honourable senator in carrying this bill forward, and of the other Liberal senators who have in no way shrunk from facing the concerns and the issues.
I said to Senator St. Germain at the outset -- not formally but informally -- that as we try to develop a more modern and appropriate relationship with aboriginal people in this country, I recognize that some of our greatest allies sit around this table. I would never want to jeopardize that relationship.
Senator St. Germain: I, too, would like to thank you, Madam Minister. Senator Forest has done an excellent job, as you have pointed out. I am pleased that you came here this morning to respond to these questions, and I look forward to working with you on the British Columbia file as well, which I think is key. I spoke to you informally about this.
The Delgamuukw decision will have a huge impact on British Columbia. Real leadership will to be required to make certain that all participants have the ability to live in the environment that may have been created by this Supreme Court decision. I look forward to working with you.
The Chairman: Senators, is there a motion to report the bill back to the Senate without amendment?
Senator St. Germain: I so move.
Senator Johnson: I second the motion.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
Madam Minister, I know you are short on time, but I would ask you to address Bill C-30. Perhaps you could give us some background on how we ended up with the bill. From the sound of things yesterday in the Senate, this bill is a positive move toward having aboriginal communities assume administrative responsibility for their own destinies.
Ms Stewart: I wish to recognize that Senator Butts will be sponsoring this bill, and to say how lucky I feel that we are to have someone of her calibre, and with her understanding of the Mi'kmaq people in Nova Scotia, spearhead this initiative.
It has been a pleasure for me to be able to more clearly understand the importance of moving ahead with self-government strategies, particularly in areas such as education, a jurisdiction which has so much to do with whether we will be able to build a brighter, healthier, happier and more respectful future for aboriginal children in this country.
When aboriginal children do not have the opportunity to learn their traditions, when they do not have the opportunity to learn in their languages, and when they do not have the opportunity to communicate with their elders, we have not provided for them a solid human base that will give them the confidence, courage and the ability to participate, not only in the confines of their own communities, but in the broader world.
Having met with the Nova Scotia chiefs who will be part of the new educational jurisdiction of the Mi'kmaq, and having seen the energy and the commitment that they have put into this, I am convinced that this is the appropriate step to take. The tripartite partnership between the federal government, the Mi'kmaq people, and the Province of Nova Scotia speaks to the direction this country is taking with its aboriginal people.
I had the pleasure to be there with the premier and Chief Marshall, the spokesman for the Mi'kmaq community. They are partners with us in this undertaking. We heard from community members about how important this is for them, and the value it will provide in preparing their youth for a brighter future.
Senators, I would commend this legislation to you. I see this as an historic piece of legislation. I believe we will see agreements of this kind over and over again as a reflection of how we can reconcile aboriginal rights in Canada in modern times.
I am encouraged by what is happening in the Province of Nova Scotia. I will be there on Friday to attend a tripartite meeting along with the Nova Scotia chiefs and the Province of Nova Scotia, as we continue to look for other jurisdictions on which to make progress.
This is extremely important for all of us. It is a way of recognizing and reconciling these rights in a jurisdictional as well as an administrative way. That is what is significant about this legislation.
The Chairman: Madam Minister, I once again thank you for an excellent presentation. Many matters have been cleared up.
Senator St. Germain: I am wondering why this has come at us so late and so quickly.
How was the federal base funding of $26 million arrived at, and how will it be administered? What comfort do we have that the management will not fall off the rails?
Ms Stewart: I would not like to start from the premise that the Mi'kmaq people cannot manage their own education. I believe that they can. We have every indication from community schools that the boards will work effectively.
The funding amount was determined based on existing programming and educational support. I would leave further details of the technicalities to my officials.
With regard to why the bill has come to you at such a late date with a request for quick passage, we can take lots of time to deal with legislation. If you wish to take longer to deal with it, please feel free to do so. It may be that the partnership between the First Nations and ourselves, and the commitment to proceeding with this, developed faster than anticipated. Once we started with it and the bill was drafted, the energy to go forward was significant.
I wish to again recognize Senator Butts, who has been encouraging us to get this bill before the Senate. That is why I was pleased that the House of Commons dealt with it so expeditiously.
Senator St. Germain: Was there any dissension within the group on this?
Ms Stewart: Some Mi'kmaq people have chosen not to participate. They were all present at the press conference in Nova Scotia when it was announced that we are moving forward with this. It was indicated to them that the legislation provides for them to participate at a later date, should they find that to be appropriate.
There is often a wait-and-see attitude among First Nations, which is appropriate. I do not wish to prescribe what anyone must do. As you point out, senator, we do not want to be pale faces directing the First Nations, as we have been in the past.
This legislation will accommodate those who are currently outside the process, and allow them to participate, should they so desire. We do not want to require them to do things that they view as inappropriate at this time.
Senator St. Germain: What percentage of the First Nations approved this?
Ms Stewart: Nine of the 13 First Nations are participating.
Senator Taylor: Madam Minister, although I do not think this question is unfair, it may be somewhat out of your ambit. Being a descendent of the Mi'kmaq community of New Brunswick, I may be more aware of their problems.
Often when the federal government enacts legislation to help First Nations in the field of education, which is the domain of the provinces under the BNA act, the initiative ends up going nowhere, because the province withdraws what the federal government puts in.
Are we gaining anything here? Are we sure that the net gain to the Mi'kmaq community will not be zero? Have we made any effort to ensure that the Nova Scotia government will still treat the Mi'kmaq people as Nova Scotians as well as Mi'kmaq, rather than backing out of its responsibility?
Ms Stewart: Senator, in addition to this proposed federal legislation, the provincial government will pass its own legislation. There are obvious interrelationships that add to the complexity of the legislation, such as non-Mi'kmaqs living on reserve. The bill provides for these difficulties. Working with the province, we have made agreements to accommodate everyone.
In my view, this is not at all being perceived as an off-loading or anything of that nature. It is being viewed as one of the first clear indications that the province does have a significant role to play in aboriginal issues. They understand that their responsibility is clear, and that they must be at the table.
The Mi'kmaq people, in terms of their relationship with the Crown, understand that the responsibility of the Crown is, in many cases, broader than only the federal Crown. I think this paves the way for an increasing number of important partnerships, and not only in the Province of Nova Scotia.
There are some very exciting developments in New Brunswick which signal a shift in the role which that province views itself as having in relationships with First Nations people. It has offered to negotiate not only timber issues, but broader issues of self-government and land claims.
It is starting to happen. If we proceed together in a positive fashion, we will see tremendous change happen more quickly than it has ever happened before, due to a broader awareness of how we can proceed with a different strategy. I do not see this at all as being viewed negatively or in an opportunistic way.
Senator Adams: Madam Minister, thank you for appearing here this morning. I have a couple of questions about Bill C-30.
The Mi'kmaq people have lost a lot of their language and culture. Does Bill C-30 address that, or does it simply address education?
When the federal government took over education in our communities in the 1950s, we were not even allowed to speak our own languages. Does Bill C-30 include funding for the reclamation of language and culture? The figure of $26 million dollars may sound like a lot of money, but it may not be sufficient for that purpose.
Ms Stewart: That is a very important question, senator. Indeed, it directs us to some of the recommendations made by the royal commission in terms of some of the approaches that we have taken in the past which have encouraged a loss of traditional culture and language. There is no single solution to reconciling that situation.
One approach that we have taken was set out in our statement of reconciliation, and in our response to those who suffered physical and sexual abuse at residential schools, and in the provision concerning the healing foundation which will help communities rebuild. Much of this is focused on a sense of restoring and rebuilding a pride and connection with the past.
This bill is another piece in that puzzle. It will encourage and allow for the Mi'kmaq language to more easily be part and parcel of the everyday lives of children. The curriculum will be developed in Mi'kmaq. The benefit of that is not only for First Nations communities. Clearly, as the curriculum evolves, it can be taken in modular fashion into non-aboriginal schools. In that way, the importance of public education concerning our shared histories can be much more a part of the everyday learning of non-aboriginal children as well.
To date, the creation and development of Mi'kmaq curricula has not been a priority of the Nova Scotian government, just as in my own province of Ontario the understanding of our traditional relationships with First Nations has not been part of the general curricula in the public school system. Focusing on this will not only energize this generation of Mi'kmaq children, but if we continue an effective partnership between school boards, that curricula can be used outside as well.
It is difficult for me to comment on how long it will take us to do this. Through every route and, in particular, through the broader strength of the inherent right to self-government policy, we will find a number of avenues that will allow for the restoration of culture and tradition.
You are right, this will not do it all. However, it takes us a certain way in the area of education, which is so fundamental.
Senator Adams: In the Northwest Territories we have had an agreement for funding high school students, which is not of much benefit for those of us who live in the community. The people from the south have more access to those funds. People who come from the south to live in the territory sometimes send their children to high school in the south. Therefore, that money benefits the people from the south, and is not of benefit to people living in the community. I hope that it is not how Bill C-30 will work. I hope it will work to help people in the community who need to send their children to high school in the south because there are not high schools in some communities. I do not know how many people living outside the community or the reserve will belong to the Mi'kmaq community.
Ms Stewart: Fundamentally, this is a strategy of administration as well as of jurisdiction. Our intentions and our policies are focused on providing education at home in the communities. This, of course, builds out of the old strategy of residential schools, when we did pull everyone into common locations. We have recognized that is not the approach with which we wish to continue.
Obviously, there are fiscal limitations in terms of how quickly we can build facilities. The approach of the department vis-à-vis education is that education should be at home in the communities whenever possible. It will not occur overnight. The cost of bricks and mortar is a challenge. However, that is fundamentally the approach that we have taken here.
Mr. Joe McNeil, Advisor, Intergovernmental Affairs, Atlantic Region, Department of Indian Affairs and Northern Development: Honourable senators, in anticipation of the passage of this bill, Eskasoni, which is the largest Mi'kmaq community in Nova Scotia, has entered negotiations with the private sector. It has built a high-tech high school on reserve. I have toured it, and it is one of the most modern facilities that they have. They will be bringing their high school students back from the provincial system to educate them at home. That is an indication of where the Mi'kmaq want to go with this increased jurisdiction.
The Chairman: Thank you, Madam Minister. I believe you have some other commitments. We have representatives from your department here.
Page 3 of the bill talks about a corporation to be established, and states:
A corporation without share capital to be known as Mi'kmaw-Kina'matnewey is hereby established for the purpose of supporting the delivery of educational programs and services under this Act.
This is not really a school board, but it is something like a school board. At the same time, I believe the Government of Canada has committed itself to a certain percentage of the funding required to maintain these operations. I also assume, and you can correct me if I am wrong, that there is also provincial input into this corporation. Could you tell us what the percentages are between the federal government and the provincial government in terms of the operational needs of this corporation?
Ms Stewart: I will defer to my technical wizards here.
The Chairman: Madam Minister, I am not trying to kick you out, but you may leave if you wish.
I appreciate your appearance here. It has helped a lot. It has given us a good understanding of where you are going with your department. All I can say is keep up the good work.
You have already committed yourself to appearing before this committee on its special study in the fall. I appreciate that very much.
Ms Stewart: Thank you, honourable senators. I look forward to see seeing you in the fall.
The Chairman: Could the two people representing the department please come forward?
When there is no specific incorporation clause within the legislation, sometimes we find ourselves inheriting what you call a modern agreement, such as this, which cannot be implemented. What is the funding formula attached to this particular bill?
Mr. McNeil: If it would prove useful, I could go through the funding process and clarify some previous questions at the same time.
The total current budget is in the vicinity of $24 million. The higher figure was used when we were negotiating for the 13 bands. When four bands did not sign on, they were relatively small bands and, therefore, it did not reduce the figure by that much, but it did reduce the amount.
The figure of $24 million consists of three different types of funding. First, what we call A-base education funding, which is funding that would normally be provided for education on reserve in Nova Scotia. It does not represent any major increase in the A-base.
Second, there is a capital component to the budget which is provided to maintain and replace existing on-reserve schools that were built by the federal government, and for which the Mi'kmaq will take over responsibility. This is in the vicinity of $1.5 million. That will be provided every year, and the Mi'kmaq will use this money both to maintain the existing facilities and to provide the money in the future to replace these buildings.
The third component of the budget is $1.2 million of governance money. That money is provided to exercise the jurisdiction which will be established on the passage of the proposed legislation, Bill C-30. Those are the three types of funding.
Now, involved in the governance funding, the corporation that the Chairman refers to will be funded directly out of that $1.2 million. Approximately $600,000 will fund the year-to-year operations of that corporation.
In addition to that, there is an escalation -- or what we call an adjustment clause -- in the funding arrangement, which is schedule B of the agreement. This provides for an increase from year to year. Honourable senators should know that this is a five-year funding arrangement, renewable and renegotiable after four years.
Two adjustment factors are included in the financial arrangement. First, the year-over-year percentage increase in population on reserve in Nova Scotia. Therefore, if the population increases by 3 per cent, for instance, the budget will be increased by that percentage to allow for the increased pressure on the Mi'kmaq to provide educational services. Second, if DIAND provides what we call a price increase across the board in the education budget on an annual basis, then that will also be provided to the Mi'kmaq. The combination of those two will provide a percentage increase from year to year in the first five years.
The Mi'kmaq and DIAND will engage in negotiations at the beginning of the fifth year, and we will establish a new budget regime for the following five years and the years to come.
It is a five-year agreement because DIAND only has the authority to sign a five-year agreement. It cannot go beyond five years. Otherwise, we would have entered into a longer agreement.
The Chairman: What about provincial input?
Mr. McNeil: There is no financial contribution from the provinces. When the Government of Nova Scotia signed on to the tripartite agreement, the premier made it clear that they supported the Mi'kmaq's desire for jurisdiction over education on-reserve. They were clear on the jurisdictional division between on-reserve and off-reserve. There is no encroachment involved here. The province was very clear.
Having said that, the province has done a number of things directly related to our negotiations and to the initiatives the Mi'kmaq have taken. Examples of that are the amendment to the Nova Scotia Education Act to allow participation of Mi'kmaq on school boards in Nova Scotia, and the creation of the Premier's Advisory Council. The Mi'kmaq actually sit at a senior level and advise the Premier on education, culture and linguistic input on Mi'kmaq culture in the province.
The province also created a Mi'kmaq language program at the grade 7 and 10 level in the regular public school system in Nova Scotia. They will be introducing a pilot this September for the grade 10 program. The province is very supportive and cooperative.
The School Board Association of Nova Scotia has extended an invitation to the Mi'kmaq to become associates. There is a very close tie there. A significant amount of in-kind service is provided by the province. However, they were clear that the federal government had the financial responsibility on-reserve.
The Chairman: What about the standards of curriculum development? Would the province have any influence over this corporation?
Mr. McNeil: In the agreement, the Mi'kmaq have committed to providing an education process that effectively guarantees transfer of their students to a provincial system in any part of Canada without academic penalty. The student will not be penalized in any way by being educated in the Mi'kmaq community.
The policy of the Mi'kmaq community, and I agree with them, is that not only will students receive a good general education, they will also receive a culturally and linguistically appropriate education.
The province will have no intervention with respect to the nature of the curriculum over and above that particular reference in that particular caveat of the agreement.
The Chairman: Would you consider that this is above and beyond administrative transfer? Is it not close to the transfer of jurisdiction?
Mr. McNeil: We consider this to be a delegated jurisdiction of what the federal government feels it now has with respect to education on-reserve.
My colleague can speak to this in a more legal sense. Our understanding, however, is that there is some question as to the concurrency of educational jurisdiction on reserve.
Mr. Allan Cracower, Legal Advisor, Department of Indian Affairs and Northern Development: With reference to the corporation itself, it is important to appreciate that the essential purpose of the corporation is to support the delivery of educational services and programs. The corporation will not be empowered to enact laws. That power will be vested in the particular communities, whether by school boards or by the councils. There must be an appreciation of this distinction.
The curricula to which the Chairman referred would be addressed within the individual communities.
With regard to the question of the jurisdiction to be exercised, section 93 of the Constitution provides that the provincial legislatures have exclusive legislative authority with respect to education. Section 91 enables Parliament to enact laws exclusively with regard to Indians and lands reserved for Indians. Consequently, there is the issue of concurrent jurisdiction. As a result, we have worked in harmony with the province and the First Nations so as to restrict the area of exercising jurisdiction to on-reserve education, only so that there would not be any potential conflict.
Senator Taylor: I am bothered by this proposed legislation. I am not as happy as Mr. McNeil and the minister. This is because of the long experience in the west on education in aboriginal and separate schools. I see a cloud or two on the horizon.
Our experience shows that we are talking about two things here -- sections 91 and 93. As you mentioned, that is fine. However, I hold the view, as do many others, that an aboriginal person is not only an aboriginal person and a citizen of Canada, but also a citizen of the province. The province cannot off-load education costs onto the federal government.
DIAND, in its ambition to expand the department, has always been quick to take on the responsibility of aboriginal education under section 91. I have often felt that, in the long run, this worked to the detriment of the aboriginal people. It allowed provinces that were trying to save money to back off and say, "Here are 5,000 or 10,000 people that the federal government will look after, and we will get out of this area of responsibility." My feeling is that the province, on a per capita basis, should be providing funding on-reserve, just as it does for downtown Halifax, for example.
One of the reasons this issue is coming home to roost, and we have noticed it in Alberta and Saskatchewan, is that we will have aboriginal schools teach language on the reserve, but there comes a time when the parents of those children want their kids to get out there and compete. They must compete in the mainstream world for jobs and university positions. We want them to mix in the high schools, and so on. Parents realize that they have given their children a basic understanding of the culture, but they want them to get out there and make a living.
Right off the bat, the federal government will say that it built this big high school, and it wants them to stay there. It does not want them going into the next town. The school board in the next town may say that these children are a federal responsibility, and they do not see why they should be supplying any classroom space.
What bothers me here is that you might be making the same mistake we made out west. There is no seamless system. That is most important, in my view. We can have chiefs talking about culture and politicians talking about noble ideas, but the student is the one who needs the education where and when he or she wants it. In this corporate setup, I do not see a requisite for the provincial government to look after the parents of a Mi'kmaq child when they decide that their child should go to school off-reserve or in the other system. What have you done to make that seamless?
Mr. McNeil: That is an excellent question. It is something we have discussed. There are two parts to your question. First, will the student have access or a choice of where to go to school given that he or she has reached a certain level of education on-reserve? Second, there is the resourcing question, and where the responsibility lies in this regard.
Speaking to the resourcing question, it has been DIAND's policy to date to assume financial responsibility for all students who live on-reserve, not only in this case of Nova Scotia Mi'kmaq students or other aboriginal students, but also non-Indian students who live on reserve. This is a policy. It has been a policy for as long as I can remember. It is a complex issue, in that it involves not only education, but also social development in the regions. It also involves other support structures on-reserve and the issue of financial responsibility, whether it be the province or the federal government.
The federal government has chosen not to try to solve the huge national problem of who has financial responsibility for program delivery on-reserve, or off-reserve for registered Indians who live off-reserve. It is a complex question, and we have been consistent with the existing policy. We have agreed to fund education for all students, including non-Indians on reserve, and the province has agreed to fund all students, including registered Indians and aboriginal people off reserve.
I am very supportive of the Eskasoni in establishing this high-tech, state-of-the-art, flagship high school. It was their choice, and they are the only reserve or community to have done that. All other students would normally go from grade 6 through 8 to the provincial school system.
Provincial tuition agreements are in place and administered by First Nations, by the way, and not by the federal government. They provide resourcing for those students if they go to community schools off-reserve in the provincial system.
After Bill C-30, the jurisdiction will lie with the communities. Our hope is that the communities will represent their individual students in the best way they can, and provide the opportunity for those who choose not to attend the school on reserve to attend a provincial school. Clearly, though, it will be the community's decision -- and not the federal government's decision -- once this proposed legislation is in place.
Senator Taylor: For some years, I represented an area in Alberta that had beautiful, high-tech schools off-reserve. The pressure is great on a family that wants to transfer their child from an aboriginal to a non-aboriginal school. The province says, "You have a big school over there." I am looking at it from the students' point of view.
I wish you well, but I am voicing a warning. I come from the side that thinks students and parents are more important than the band, the federal government, or the province, as long as they can make the system seamless.
Over half of our aboriginal peoples now live off-reserve in Canadian cities. I think the same thing is probably happening in Nova Scotia. What is done for a Mi'kmaq child or a child of mixed parentage? The parents may want to see their child living in Halifax or some other town or city. What happens to that child's education? Is there any busing to take him or her to an aboriginal school? Where does that line stop? I realize that you cannot bus such children 50 miles, but you might bus them 20 miles. Perhaps there is an aboriginal school in the city. What is happening in that regard?
Mr. McNeil: With respect to education, DIAND and federal government policy stops at the reserve boundary. Therefore, if a Mi'kmaq student were living in the city of Halifax, he or she would be provided with busing and all the other services that any resident of Halifax would receive with respect to education. However, there would be no provision to bus a student to a reserve.
By the way, the closest reserve to Halifax would be Shubenacadie, which is about a 45 minute trip one-way.
Having said that, this does not preclude the Mi'kmaq from negotiating with the province. They do have the negotiating authority. They have a delegated federal authority, and the jurisdiction that goes with that, to come up with a protocol with respect to First Nations students who live off-reserve. Indeed, they assume additional responsibility for those band members who live off-reserve. One must remember that we will define a new relationship whereby the communities and the chief in council will have a direct relationship with the province.
Throughout this entire process we have believed that these communities are much more able to make decisions and to negotiate on behalf of their constituents than are federal bureaucrats.
I am not sure whether that answers your question.
Senator Taylor: I do not think it does. By the way, a 45-minute ride to school is fairly normal for a prairie kid.
You say that the community can negotiate as far as Mi'kmaq children are concerned. However, will that community have the fiscal backing of the federal government? You said that your responsibility is limited to the reserve. Will there be any fiscal backing for Mi'kmaq families living off-reserve?
Mr. McNeil: As I mentioned earlier, there are tuition agreements which provide money for students who live on-reserve to attend provincial schools off-reserve. Under these tuition agreements, the bands actually pay an allowance of approximately $5,200 per student to allow them to attend provincial schools. That is in lieu of any other taxes paid.
Senator Taylor: Mr. Chairman, I do not know whether the witness is being elusive. I am asking a simple question about a Mi'kmaq child who may have never lived on a reserve who wants to attend school on reserve. What is the federal responsibility on that?
Mr. McNeil: This is a hypothetical situation. Under the current policy, the province clearly has the financial responsibility. However, they could negotiate with a First Nations community to provide education services. The province would be fiscally responsible for that student, because he or she lives within its jurisdiction, pays taxes and contributes to the revenue of the province as does every other person not living on federal Crown land.
The Chairman: Senator Taylor, at this time DIAND does not take responsibility for people who live off-reserve.
Senator Taylor: The point I am trying to make is that 55 per cent of our aboriginal people do not live on reserves, and DIAND is not taking any responsibility for them. I want that on the record. The witness keeps dancing around that point.
Senator Forest: I am very supportive of this bill. There will be implementation wrinkles, as there always are, but I am supportive of it.
I have a question about post-secondary education. I understood from Senator Butts that this bill covered post-secondary education. Did I misunderstand that?
Mr. McNeil: The bill covers jurisdiction for elementary and secondary education. It also allows for jurisdiction with respect to the funding provided for post-secondary education. We were very careful not to indicate in any way that we have jurisdiction over post-secondary education, because the federal government does not have jurisdiction in that area. However, nationally we provide post-secondary funding of approximately $240 million for First Nations students who live both on-reserve and off-reserve.
In the case of the Mi'kmaq, the amount is approximately $5 million. The Mi'kmaq would assume responsibility for that money, and provide assistance to both on-reserve students and off-reserve members of the bands involved to attend university on the same basis as they have in the past.
Senator Forest: In the literature provided I noticed letters of support from a number of universities. I gather these are the institutions that these students have normally attended.
Mr. McNeil: Yes. As an example, I believe that in excess of 200 Mi'kmaq students attend the University College of Cape Breton in Sidney. I believe that there are approximately 500 post-secondary students in Nova Scotia from a population of 9,800 Mi'kmaq people, which is, I believe, above the national average for attendance at post-secondary institutions.
Senator Forest: It would certainly be above the average in Western Canada.
Senator Butts: I can assure Senator Forest that this is not changed by this bill. Tuition is looked after for aboriginal students, of whom there are in excess of 200 this year.
This is not a sudden change. In 1996, 1,376 Mi'kmaq were in band-operated schools. There were 1,096 in Mi'kmaq provincially operated schools. Therefore, more than half of them were already in band-operated schools. This is a gradual transition, not something sudden. We have been preparing for this for years. The bands have gradually been operating more and more of their own schools, at both the elementary and secondary levels.
In university, they have studied the Mi'kmaq language as a second language, while most people studied French. They have also had a credit course in Mi'kmaq culture.
Therefore, this is not a sudden variation on what we have been doing. We have prepared for this for years. It does no good to compare this to what is done in other provinces.
At one time, I was principal of a high school where four bus loads of girls from reserves came to attend. They are most anxious not to have that bus ride, but rather to attend high-tech schools on their own reserves. This bill will enable them to do that.
I want to assure the committee that this is not a sudden transition or anything earth-shattering.
Senator Adams: I have one more question for our witnesses from the department.
What are the economic engines in the Mi'kmaq community? Is forestry one? Sometimes when you come from a small community, even if you have a good education, you must go to the city to look for a job. What economic prospects for the future do the people in the community have?
Mr. McNeil: I am sure the members of the committee are aware that the East Coast has had a serious problem with respect to economy over the years. The reserves in Nova Scotia would be that much more complicated with respect to revenue earning. The bands are underdeveloped with respect to industry or entrepreneurship. With the onset of the Sable Island gas industry and the forestry initiative with regard to which the province has extended an invitation to negotiate with the Mi'kmaq communities on the use of Crown land and some expansion into the fishery, the economic situation will hopefully increase. However, it is probably very similar to other areas in Canada where native communities are underdeveloped with respect to the economy.
You are quite right; many of these students will end up working off-reserve in urban centres or moving to gain employment, just as a lot of Eastern Canadian people must do.
The Chairman: Thank you for your testimony here today.
We will now proceed to our clause-by-clause study of the bill.
Shall clauses 2 to 13 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Shall the schedule carry?
Hon. Senators: Agreed.
The Chairman: Could someone propose that I report the bill without amendment?
Senator Forest: I so move, Mr. Chairman.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The committee adjourned.