Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 24 - Evidence for February 21, 2002
OTTAWA, Thursday, February 21, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 39, to replace the Yukon Act in order to modernize it and to implement certain provisions of the Yukon Northern Affairs Program Devolution Transfer Agreement, and to repeal and make amendments to other acts; and Bill C-33, respecting the water resources of Nunavut and the Nunavut Surface Rights Tribunal, met this day at 9:10 a.m. to give consideration to the bills.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: I welcome the witnesses from the Kaska Nation and from the Carcross/Tagish First Nation.
Mr. Porter, please proceed.
Mr. Dave Porter, National Negotiator, Kaska Nation: On behalf of the Kaska Nation, I would like to thank the members of the committee for giving us an opportunity to present the Kaska's views on Bill C-39 and the proposed Devolution Transfer Agreement.
As some of you know, the Kaska were denied any opportunity to appear before the House of Commons Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources to voice our concerns over this historic piece of proposed legislation. To us, that remains a mystery. In any event, we are pleased to appear before your committee today to share our views on this very important legislation.
By way of introduction, the Kaska Nation is one of the Aboriginal peoples of Canada. Our traditional territory comprises about 93,000 square miles of land, stretching from Northeastern British Columbia through the southeastern part of the Yukon and the adjacent parts of the Northwest Territories.
Bill C-39 addresses the Yukon portion of our traditional territory, which includes about 45,000 square miles that is roughly 25 per cent of the Yukon. For the purpose of negotiating land claims agreements or treaties with Canada, the members of the Kaska Nation are represented by the Ross River Dena Council, the Liard First Nation and the Kaska Dena Council. Working together as the Kaska Nation, we are attempting to negotiate a number of related agreements, including two First Nations final agreements of the Yukon, two self-government agreements in the Yukon, a transboundary agreement in the Yukon, including self-government provisions, a transboundary agreement in the Northwest Territories, two transboundary agreements in British Columbia and a treaty in British Columbia.
I should point out that our land claims affairs are organized this way not because of any design or preference on our part, but rather as a direct result of the policies of Canada in respect of the negotiating of land claims agreements and treaties.
In 1867, when Canada came into being, our traditional territory was not a part of Canada. Instead, it was a part of the old North-western Territory, referred to in section 146 of what was then known as the British North America Act of 1867. On December 16 and 17, 1867, during the first session of the first Parliament of Canada, the House of Commons and the Senate invoked the provisions of section 146 of the BNA Act and jointly adopted a resolution, asking Britain to transfer control over the North-western Territory, including the Kaska traditional territory, to Canada under the solemn undertaking that, and I quote:
... upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.
The Senate and the House of Commons subsequently resolved in March of 1869, upon the transference of our traditional territory to the Canadian government, that:
... it will be the duty of the Government to make adequate provision for the protection of Indian tribes whose interests and well-being are involved in the transfer.
In the summer of 1870, the old North-western Territory, including a large part of the Kaska traditional territory, was transferred to Canada under the constitutionally protected terms of the Rupert's Land and North-western Territory Order of 1870, the 1870 Order. It is the position of the Kaska that, as a result of the terms of the 1870 Order, Canada acquired our traditional territory in the Yukon subject to the constitutionally entrenched requirements to consider and settle the Kaska's claim to our traditional territory prior to opening our land to settlement by others.
Even though the 1870 Order resulted in the post-Confederation treaty process and even though the Klondike gold rush occurred during the heart of the post-Confederation treaty process, Canada made no attempt to enter into a treaty with the Yukon Indian people, as they were known at the time of the Klondike gold rush.
Following the conclusion of the post-Confederation treaty process around 1930, there were no more attempts to enter into treaties with the Aboriginal peoples of Canada until 1973. In that year, following the Supreme Court of Canada's landmark decision in the Calder case, the then Minister of Indian Affairs and Northern Development, Jean Chrétien, formally announced a new comprehensive land claims policy on behalf of the Canadian government. The claims of the Yukon Indian people, including the Kaska, were the first comprehensive land claims accepted under that policy.
Today, almost three decades after our claims were formally accepted, Canada has yet to fulfil the duties and obligations it owes to the Kaska under the 1870 Order, and, as well, has not fulfilled the commitments made to us under the policy announced by Mr. Chrétien in 1973. Nonetheless, Canada is now proposing to transfer administration, control and the right to beneficially exploit the Kaska's non-surrendered traditional territory to a hostile party in advance of the settlement of our long outstanding claims, without taking adequate steps to first protect our interests.
The Kaska are of the view that Canada's attempts to transfer control of our traditional territory to the Yukon Territorial Government, YTG, falls far short of the standard of conduct required of Canada in its dealings with the Kaska, and those attempts represent a major breach of Canada's constitutional obligations to us.
In essence, our concerns about Bill C-39, the proposed Devolution Transfer Agreement, fall into three categories, as follows:
First, neither Bill C-39 nor the Devolution Transfer Agreement makes it plain and clear that the transfer to the Yukon Territorial Government of jurisdiction over the administration, control and the right to beneficially exploit land in the Yukon Territory is subject to our rights, titles and interests in and to our non-surrendered traditional territory and to the Canadian government's obligation to protect our interests into that territory.
Second, the combined effect of Bill C-39, the proposed Devolution Transfer Agreement, and chapter 25 of the Yukon Umbrella Final Agreement, UFA, has the potential to destroy any attempts of a fair and just settlement of the Kaska Dena Council's recognized transboundary claim in the Yukon.
Third, Bill C-39 is being used as a back door to the achievement of constitutional development for the Yukon Territorial Government.
Regarding the first point mentioned above, the Kaska believe that both Bill C-39 and the Devolution Transfer Agreement are fundamentally flawed and that they require substantive amendment because they fail to adequately protect our basic rights and interests, and because they also fail to honour the letter and spirit of the agreements that we negotiated and concluded with the Yukon Territorial Government and Canada in respect of devolution.
For example, neither Bill C-39 nor the Devolution Transfer Agreement makes it plain and clear that the federal government is not devolving any of the Canadian government's constitutionally entrenched obligations under the 1870 Order to the Yukon Territorial Government, and, similarly, neither fails to make it plain and clear that the Yukon Territorial Government is not acquiring jurisdiction over the administration and control of, or the right to beneficially exploit any lands where Canada's obligations under the 1870 Order remain unfulfilled.
Throughout the negotiations over Bill C-39 and the Devolution Transfer Agreement, our representatives repeatedly and consistently stated that our rights under the 1870 Order must be expressly protected, but Canada's representative refused that protection. Given that Canada's authority to enact such legislation was acquired under the 1870 Order, we are deeply concerned by Canada's refusal to expressly confirm that it is not devolving its duties and obligations under the 1870 Order to the YTG.
We also share the views of others, including the Premier of Nunavut, that the non-derogation wording now contained in Bill C-39 is fundamentally unacceptable. It has always been our position that our claims to the Kaska's unsurrendered traditional territory must be settled prior to the transfer to the Yukon Territorial Government of administration and control and the right to exploit our lands.
As is shown in the documents that we have submitted, the Kaska were induced to enter into negotiations toward a devolution transfer agreement on certain clear understandings and written agreements with the YTG and Canada regarding our right to a settlement of our claims prior to the devolution of our traditional territory. Unfortunately, these understandings and commitments have not been honoured by either Canada or the Yukon government.
Contrary to Premier Duncan's comments to the Commons standing committee on November 22, 2001, the Kaska entered into the devolution negotiations on the very clear understanding that, without our consent, devolution would not apply to the unsurrendered traditional territory of the Kaska prior to the settlement of our claims. I turn your attention to appendices 2, 5, and 6 to speak to that issue.
Similarly, we were induced to participate in the devolution negotiations by clear written recognition that the Kaska, including the Kaska represented by the Kaska Dena Council, continued to have Aboriginal rights, titles and interests in and to that roughly one-quarter of the Yukon Territory which comprises the Kaska traditional territory. I bring your attention to the appendices 3, 4 and 5, which contain material that speaks to this issue.
When it came time to comply with the terms of section 1(e) of the 1998 Protocol Accord, which is at tab 7 of our document, regarding the need for a bilateral schedule in the Devolution Transfer Agreement between the Kaska and the Yukon Territorial Government setting out provisions to safeguard our rights, titles and interests, the Yukon government, in bad faith fashion, reneged on its earlier acknowledgment and refused to reaffirm its recognition of the Kaska's rights, titles and interests, notwithstanding it was that recognition which induced us into the negotiating process in the first place.
Regarding the second point referred to, it is clear that the combined effect of Bill C-39 and the Devolution Transfer Agreement could have potentially disastrous implications for the Kaska Dena Council's prospects of achieving a fair and just settlement of its long outstanding recognized transboundary claim in the Yukon Territory. In 1989, Canada, the Kaska, and the Yukon agreed on the terms for settling the Kaska Dena Council's transboundary claim in the Yukon. However, in 1992, without any notice whatsoever to the Kaska, Canada, the Yukon Territorial Government and others entered into an agreement to amend the chapter to the Yukon Umbrella Final Agreement dealing with the Kaska Dena Council's transboundary claims. Many amendments were agreed to. In particular, Canada agreed that the Yukon Territorial Government would have a veto over the Kaska Dena Council's transboundary claim in any area under the territorial government's jurisdiction, and Bill C-39, of course, proposes to expand tremendously the Yukon government's jurisdiction over lands and resources.
We considered this an act of great bad faith because the agreement to amend the transboundary chapter was concluded behind our back and, meanwhile, Canada was refusing to provide the Kaska Dena Council with any funding to protect its recognized interests.
Today, to make matters worse, Canada proposes to transfer the Kaska's traditional unsurrendered lands resources over to the YTG. This will give the territorial government a veto over the settlement of our long outstanding transboundary claim. We believe that this is so clearly inconsistent with Canada's obligations to the Kaska, as well as the good faith commitments made on land claims policy announced by Mr. Chrétien in 1973, that it would not survive a court challenge.
In the 1998 Protocol, it was agreed, in essence, that the legislation would be developed in the form of amendments to the Yukon Act to give effect to the transfer to the territorial government of provincial-type powers, programs and responsibilities associated with a northern affairs program in the Yukon. However, it now appears that the legislation, which was supposed to implement the Devolution Transfer Agreement including the provisions we negotiated to protect First Nations' interests, is being used to ``back door'' constitutional developments for the benefit of the Yukon Territorial Government.
First Nations negotiators have all argued that the legislation to implement the Devolution Transfer Agreement should not be used for constitutional development purposes; that the First Nations have not agreed to negotiate constitutional development in the context of devolution of the northern affairs program, and, that First Nations have not been funded to participate in any constitutional development process.
In conclusion, the Kaska urge your committee to conclude that both Bill C-39 and the proposed Devolution Transfer Agreement are fundamentally inconsistent with Canada's obligations to the Kaska. We have come far in the nearly three decades since our Prime Minister first accepted the Kaska's claim under the policies he announced when he was Minister of Indian and Northern Affairs. It would be wildly inconsistent with those policies to transfer our unsurrendered lands to an adverse party prior to settling our claims to those lands through the agreed-upon processes. Accordingly, we urge the committee to recommend that either Bill C-39 not be enacted, or that it be amended to make it plain and clear that it does not apply to the unsurrendered traditional territory of the Kaska.
Prior to turning to questions, I would like to introduce to the committee Mr. Hammond Dick.
Mr. Hammond Dick, Tribal Chief, Kaska Nation: Good morning.
The Chairman: Before we enter into discussion, I would like some clarification of your writings. On page 6, you mention ``a flagrantly hostile party.'' Who is that?
Mr. Porter: That reference is to the Yukon government, given the context of the bill and the effect of section 25 of the UFA.
The Chairman: The Yukon government has a number of its members of the legislature elected covering areas of your land. The Aboriginal vote in the Yukon is so high that I would have thought that the government would be fairly receptive to any Aboriginal claims.
Mr. Porter: Historically, the Yukon government has been very hostile to transboundary claims of First Nations outside of the Yukon that extend into the Yukon. A part of the Kaska Nation, the Kaska Dena Council, falls into that category. The Yukon government opposed both the Inuvialuit settlement of 1984 to the North Yukon and the 1992 settlement of the Gwich'in of the Northwest Territories in the Yukon.
It is because of that opposition that section 25 of the Umbrella Final Agreement was put into effect. Very specifically, section 25.5.5 of that agreement conveys to the Yukon a constitutional veto over the transboundary interests of Aboriginal peoples outside of the Yukon whose claims extend into the Yukon. The Yukon government's insistence brought about that change to the Umbrella Final Agreement. We were not a party to those negotiations. It is fair to state that it has been adverse to our interests, and, in a political sense, has been hostile to the achievement of a just settlement of those interests.
The Chairman: There was hostility basically on the traditional mineral and subsurface wealth of the Yukon. Did they not wish to let it go?
Mr. Porter: For the most part, it has been a very competitive type of process from their perspective and relative to our interests. In terms of being able to substantiate a charge of bad faith, we have a signed document, in the kit that you have before you, in which the Yukon government agreed to recognize that we have Aboriginal rights, titles and interests in Southeast Yukon.
These are not rights that we assert, or we suggest; the Yukon government recognized that we have those Aboriginal interests. Yet in our attempts to have a bilateral agreement on that, it refused and reneged on including that recognition.
What is needed is that this committee point out to the parties that it is required that we have a settlement of these claims, which is a constitutional obligation.
The Chairman: Let the record show that I welcome Mr. Hammond Dick. I welcomed your two helpers earlier.
To help sharpen my understanding of your brief, I refer to page 12. You mention that, ``... without any notice whatsoever to the Kaska, Canada, the Yukon Territorial Government and others entered into an agreement ...'' Who are the others?
Mr. Porter: The others are the other First Nations in the Yukon.
The Chairman: Do you feel, although the other First Nations signed it, you were not a part of that?
Mr. Porter: That is right.
Senator Sibbeston: I find the submission by the Kaska interesting. In some respects I find it a bit alarming in that there appears to be so much dissatisfaction. You use words such as ``reneged'' and ``hostile.'' The Yukon government is referred to as being a ``hostile party'' and we heard mention of great bad faith and so forth. These words are not very comforting and not very nice when we recognize the importance of First Nations having good relations with their governments. It is a bit alarming, and I find a bit distressing to find that you consider the Yukon government in such terms.
While you express your views as to why you feel this way in terms of negotiations or agreements that have been in place and you feel that the Yukon government has not lived up to the agreement, where are you with respect to your negotiations with the federal government? As senators, and as a committee, we are faced with concurring with you and delaying the bill until your claims are resolved. It is a balance between trying to deal with the goals and aspirations of the Yukon people to achieve more self-government and fully responsible government and trying to satisfy your wish.
Would you want us to delay the legislation until your claims are settled? Where are you in that process, and what is the likelihood of this occurring in the foreseeable future?
Mr. Porter: In terms of the process, we do not deny that there must be an evolution of self-government for all peoples of the Yukon. We do not deny that there has to be more responsible government and that there has to be local decisions affecting the resources of the territory, made by local people.
However, we suggest that Canada, as a country, when it acquired the lands of what constitutes Canada now as a result of the 1870 Order, took on a constitutional obligation that prior to the settlement of that part of our world, it would make a treaty with the Aboriginal interests, that it would negotiate an agreement. Canada has not discharged that responsibility.
We are in the process of negotiating — with Canada and the Yukon — agreements in the Yukon on our interests there. The negotiating process, recently, has accelerated and we are making progress. The minister has imposed a unilateral decision on his part with respect to the conduct of his mandate to the negotiators. That unilateral timeframe is March 31, 2002. He unilaterally made that decision for the negotiation deadline.
As to whether we can conclude in that timeframe, although there is progress at the table, I do not believe that we will have the time to make the kinds of agreements to bring in a comprehensive settlement on all of the outstanding issues. There is progress, but I am afraid that the deadline will not be met. It is not because we are not trying our hardest, but simply because there are too many issues and not enough movement on Canada's part with respect to a couple of the outstanding issues that remain on the table.
Senator Sibbeston: There are provisions in the Yukon Act that recognize that lands to which you have claims can revert back to the federal government. There would be, I am sure, a plan to transfer that land to the First Nations when land claim agreements have been concluded.
Do those provisions in the Yukon Act give you comfort to know that the act does provide for lands being transferred back to the federal government and thence to you? I would like to hear your comments.
Mr. Porter: I will ask our legal counsel, Mr. Walsh, to respond.
Mr. Steve Walsh, Legal Counsel, Kaska Nation: We understand your question, Senator Sibbeston, but we take no comfort whatsoever in the so-called take back lands provisions. We think that the appropriate course for Canada is to maintain administration and control until the claims are settled and not hold out any false prospects that it will be taking land back.
We had this very discussion with senior departmental officials. I am thinking of Assistant Deputy Minister John Rayner, in the fall of 1994. We were talking about the proposed devolution of oil and gas to the Yukon Territory. That proposal had the take back land provisions in it. We asked, at a meeting between Mr. Rayner and the Kaska leadership, if the territorial government creates third party rights, would the government take those lands back. He was really candid with us, and we appreciated his candour. He said it would be very unrealistic to think that the federal government will exercise the take back lands provisions when third party rights have been created on that land.
We take no comfort whatsoever in those provisions. The better course is for Canada to hold onto its jurisdiction over those lands and not to transfer those rights to an adverse party until Canada has fulfilled its constitutional obligations to the Kaska. That is our response to the take back lands issue.
Senator Banks: Would you please give us your take on the very confusing issue of the new non-derogation clause as opposed to the old non-derogation clause? Please explain your view of the difference between the two. Why does the current non-derogation clause, which is in many acts of Canada since 1995, not provide the kind of protection that you seek with respect to lands claims?
Mr. Walsh: Senator, our response to that is twofold. First and foremost, the most important constitutional provision for those Yukon First Nations that do not have a land claims settlement is not section 35. It is the 1870 Order. All our focus in the negotiations was on having clear, plain expression that Canada will honour its obligations under the 1870 Order and will not devolve them to the territorial government.
We want non-derogation regarding Canada's obligations under the 1870 Order. We view section 35 issue as hopelessly secondary because it is just not as important in the Yukon Territory to a First Nation that does not have a land claims settlement.
Our second point relates to the first one. Our focus was on the 1870 Order, not section 35. It was not until we reviewed some of the arguments being advanced by our friends in Nunavut and the content of Senator Sibbeston's letter to the other senators that we realized there was a legal issue that we may have overlooked. In our review, we found the arguments as laid out in Senator Sibbeston's letter to be very compelling. Like the Nunavut people, we would be better off without any non-derogation clause rather than having the one that is there.
Mr. Porter: This is only one of the protection clauses we negotiated.
Mr. Walsh: Mr. Porter reminds me of an important point. Perhaps I should have said that my response is threefold.
We negotiated other non-derogation provisions that were not entirely satisfactory, but they are in the Devolution Transfer Agreement. These are not reflected in Bill C-39.
Our position throughout the negotiations was that if you put some of the non-derogation clauses in the bill, put the ones we want, not the ones we do not need. That is not where we ended up.
Senator Banks: You can appreciate in respect to your claim, I am sure, that negotiating agreements that will take into account the interests of five governments is a complex process. Could you give us a thumbnail outline of the stumbling blocks for those negotiations that you say may not be completed by the end of March?
Mr. Porter: One of the issues with which we are dealing right now over which the federal government has jurisdiction is the issue of the section 87 provisions of the Indian Act. The federal government took the view that the UFA, three years after it came into effect, took that right away from the Yukon. We disagreed with the government's interpretation.
Senator Banks: Did the government take that away from the Yukon?
Mr. Porter: It took section 87 rights out of the Yukon. We said that that was wrong. The federal government forced us to go to court.
The next group that will speak here took court action, as did we, and it lost on the first round and won on the second round. Three to zero was the decision that Canada was wrong.
Canada, in its interpretation of that decision, said the application was restricted to a reserve. We said that it could not have it both ways. The government dealt with it and forced us to the courts. The courts said that the government had not dealt with it. We want Canada, on the section 87 issue, to treat us as fairly as it has treated everybody else. The first four parties that signed the agreements in the Yukon got the protection of the section 87 right. They got the phase- out period of three-years under the agreement. Canada refuses to extend the same kind of agreement to those of us who do not have an agreement today.
The government refuses to keep in place the moratorium on the collection of taxes. We had to go to court again. We went to the Supreme Court of Canada on December 11, 2001, and we are arguing now that land set aside in the Yukon for use by Indians is the same thing as reserves that are set aside for the use of Indians. We have had to march all the way to the Supreme Court of Canada to make that argument.
Canada says that if we win that case, it will then extend the same treatment to us. This does not make sense to us. It is not an expensive proposition for Canada to simply say, on a measure of fairness, that it will treat all Yukon Indian people the same and allow us to have a final agreement and then three years later the tax right will be phased out. To date Canada has refused to do that.
There are a number of other areas at issue. There are questions about the gravel issue under chapter 17 and some issues under chapter 17 dealing with forestry. As well, there are site-specific lands that must be negotiated. Under the gravel and forestry chapters of the UFA, the Yukon government, from our perspective, is taking an unnecessary lead role in the negotiations and opposing clauses that we want. It is almost as if devolution has already occurred in the Yukon and that it has control of those measures.
We made it very clear to the minister that he must assert his authority and the authority of his government at that table. The minister has the constitutional obligation to settle, not the Yukon government, which is constitutionally a junior government to the federal government.
Senator Banks: I am not sure about junior. Do I understand from what you have said, with respect to some interests, that you are, in effect, asking that 93,000 square miles be treated as a reserve?
Mr. Porter: No, not at all. It is land set aside. When reserves were created in Canada, reserves were set across the country including the Yukon, where there are six reserves. Then the government stopped creating those reserves. Then it started identifying lands and called them ``lands set aside for the use of Indians.''
Our legal argument is that those two designations of land are the same thing, and that ``lands set aside for the use of Indians'' should be interpreted legally as lands reserved for Indians.
Mr. Walsh may wish to comment further on the legal aspect.
Mr. Walsh: I have had a fair degree of experience in this matter, as has my colleague Mr. Joe. You may have more questions when he presents.
Canada did not do a treaty during the time of the gold rush even though the gold rush occurred during the heart of the treaty making process. Treaty 8 was a direct result of the gold rush.
Canada, in my view, became a little bit too greedy and decided not to make treaties in the Yukon. Instead it made small residential reserves that were always segregated from the white community and were just barely big enough for the residential needs of the Indians. It intended them to be reserves: It called them reserves; it administered them as reserves.
In 1948 a Department of Justice lawyer rendered an opinion that there was a flaw in the Orders in Council creating these reserves. The government had neglected to name the specific band for whom the reserves were created. Literally overnight, the government took the position that there were no reserves in the Yukon and maintained that position until 1970-71 when the then Minister of Indian Affairs, Mr. Chrétien, wanted to build a bridge on the Skagway road. The footings of the bridge landed on Carcross Reserve No. 4.
The government revisited the issue and determined that it had one reserve in the Yukon. It revisited that again, as Mr. Porter mentioned and said, ``Some of the Orders in Council could be interpreted differently, so now we have six reserves in the Yukon.'' It maintained the position that there were six reserves until about 1995.
I settled a specific claim establishing a seventh, and I won a court case one year ago next month, saying that there is an eighth one. Now, the issue of some of the land set aside has gone all the way to the Supreme Court of Canada. Depending upon what decision it renders in the next 12 or 13 weeks, there may be many more reserves in the Yukon. Again, it is an ambiguous federal government position that has resulted in this uncertainty over the First Nations' land.
Mr. Porter: We were talking about 50 square miles.
Mr. Walsh: Not even that. All of the recognized reserves in the Yukon would amount to less than two square miles.
Mr. Porter: Not the 93 —
Senator Christensen: Gentlemen, I am sure you are well aware that we are not negotiators. This is an extremely complex issue, as you have pointed out. I have certainly been following this for many years and I do not have the in- depth knowledge that you people have through your long years of the negotiating processes.
We have Bill C-39 in respect of the Yukon Act before us. We are not dealing with the Devolution Transfer Agreement, which, as you are well aware, was negotiated. We are dealing with an act that is an enabling piece of legislation in which to include the DTA and other issues. The Yukon Act is not time-sensitive. It is the DTA that sets the date of March 2003.
I have a few questions to ask so that we have the numbers and other information on the record. Could you tell us how many First Nations we have in the Yukon?
Mr. Porter: The UFA recognizes 14 First Nations in the Yukon.
Senator Christensen: How many of those have completed their final agreements?
Mr. Porter: I believe eight have done that to date.
Mr. Walsh: Eight final agreements have been concluded. Seven are in effect.
Senator Christensen: Seven are in negotiation. Is the Kaska Nation a part of the signatories to the UFA?
Mr. Walsh: No, they were not. The Kaska Nation voted against it.
Senator Christensen: You did not sign it.
Mr. Walsh: We voted against it, and we did not sign it for the reason, as Mr. Porter set out in his main presentation, that the deal was done behind the Kaska's back to amend chapter 25 that gives the YTG a veto over any area of its jurisdiction. Once we learned of that, then the wheels fell off. We voted no and we initiated litigation.
Senator Christensen: Of the 14 First Nations, you are not signatories to the UFA. Are there other First Nations in the Yukon that are also not signatories to the UFA?
Mr. Walsh: My understanding is the Kwanlin Dun First Nation voted against it and withdrew its membership in the Council of Yukon First Nations, CYFN, over concerns about the UFA.
Senator Christensen: Twelve bands are represented by the CYFN.
Mr. Walsh: There are eleven bands, and that does include any of the recognized transboundary claims into the Yukon such as the Kaska Dena Council or the Tagu River Tlingits or some of the Dene Métis in the Northwest Territories.
Senator Christensen: What success have you had with your transboundary agreements into B.C.? I assume that your nation includes bands in B.C., in the Yukon and in the Northwest Territories. What is the status of the negotiations of lands for those of your members in the Yukon who want lands in B.C.?
Mr. Porter: We are waiting for the provincial government in Victoria to conduct a referendum. The treaty process, for all intents and purposes in British Columbia, has ground to a temporary halt. Until Mr. Campbell and his government have a referendum asking the majority to vote, the interests and rights of a minority are not concluded.
Senator Christensen: What is the status of your negotiations with the Northwest Territories?
Mr. Porter: In the Northwest Territories, we have established a table with the Sahtu Dene Métis. We have received funding from Canada to conduct those negotiations, as has the Sahtu Dene Métis. There is a proposed agreement constructed by the Kaska and the Sahtu Dene on the table, and there are two clauses yet to be agreed upon.
In respect of those claims in 1988, we, the Kaska, filed a comprehensive set of maps with Canada indicating our traditional territory and our land selections. We selected lands adjacent to the Yukon in the Northwest Territories. Canada, with no consultation with us, breached its fiduciary and turned most of those lands over to the Sahtu Dene Métis as a result of their agreement. This is not a comment on the Sahtu Dene Métis, which went into the negotiations in good faith and did not know about the specific maps that we tabled with Canada, I assume. However, Canada certainly knew about them, and, despite its knowledge, Canada went ahead and concluded an agreement.
We called Canada on its breach of its fiduciary. We have a letter from a representative of Canada acknowledging that yes, Canada has a responsibility and will negotiate. We then attempted to engage the government of the Northwest Territories and its response was it would like to have an agreement between the Sahtu Dene Métis and the Kaska worked out prior to having a formal table at which it would join the talks. That is the status of the negotiations.
We have a proposed agreement with a couple of outstanding clauses on the table. Once that has been completed, we would then envision the territorial government of the Northwest Territories and Canada joining those talks to bring a conclusion to that transboundary claim.
Senator Christensen: In 1998, there was a devolution protocol accord entered into. Were you a signatory to that? That included the federal government, the territorial government, CYFN, the Kaska Nation, and who else was involved?
Mr. Walsh: Yes, we were signatory to that. We fully participated in the negotiations leading up to that, and it is in no small part the failure of the other two parties to honour the terms of that agreement that results in our fundamental opposition to it.
The heart of that 1998 protocol is replicated at tab 7 of our presentation in paragraph 1. The main parts that the First Nations who do not have land claims agreements is set out at paragraph 1 of that 1998 protocol. It says that the Devolution Transfer Agreement shall outline, in subparagraph 1(b):
b) the intent of the Parties to conclude, as matters being of the highest priority, the negotiation of any outstanding Yukon First Nation Final agreement or self-government agreement and any Transboundary agreement into the Yukon.
Yet, as Mr. Porter now says, notwithstanding that highest priority, the minister has decided that the mandate is over in about five weeks. That is not the highest priority from our perspective.
Paragraph (d) states that the transfer agreement must have provisions to safeguard the interests of claimants that have not settled. We say that it is not there.
Paragraph (e) is perhaps the worst breach of all. It talks about the requirement for a bilateral agreement between YTG and the Kaska, which has not settled, to safeguard our interests. We have signed agreements with the YTG calling for the rolling implementation of devolution and the recognition of the Aboriginal rights, titles and interests of the Kaska Nation.
As Mr. Porter said, it was those agreements that enticed us into this process. When it came time for the negotiations on 1(e), the bilateral schedule to protect those rights, it reneged on the recognition of the very rights that got us into the process. Canada now wants to transfer jurisdiction and the right to beneficially exploit the unsurrendered lands and resources to those guys. It is a head-scratcher for us.
Mr. Porter: Even the provinces under, section 109, have that right.
Senator Christensen: You said you were at the main table to the full negotiating period on the DTA.
Mr. Walsh: We were there for about 98 per cent of it. We were not party to the last part of the negotiations in the last couple of months. There have been a number of fundamental changes.
I am certain senators will find the following quite interesting: The definition of the land being transferred in the Devolution Transfer Agreement is different from that in your legislation. There is a big disconnect in that respect.
Senator Christensen: Why were you not at the table for the last portion of the negotiations?
Mr. Walsh: We were not even notified about many of the meetings that went on in the last couple of months. We were desperately unhappy with the shape of the agreement. We thought it represented a fundamental breach of the understandings under which we entered into the process. You could ask the departmental officials why we were not notified of a number of the important meetings.
Senator Christensen: Are you aware of the resolution that was passed by the Council for the Yukon First Nations and the conditions that were put in that resolution regarding the implementation of the DTA?
Mr. Walsh: We are aware that it has passed a resolution.
Mr. Porter: It is calling for a settlement.
Senator Christensen: It is calling for a settlement that is conditional on devolution no earlier than April 2003, in accordance with the Devolution Transfer Agreement, initialled by the parties, that all land claims of the First Nations and self-government agreements be finalized.
Mr. Walsh: I understand it says ratified as well. I understand it passed a resolution giving conditional support, the principle condition being all of its members' agreements be concluded and ratified. Of its members, a number still has not concluded or ratified.
Senator Christensen: There are three that have not.
You raise many questions that we will address with the minister when he appears before us again.
Senator Watt: On page 4 of your presentation, for the benefit of all, we need clarification in terms of whether the matter that is related to 1870, the old Northwest Territory, is the Constitution or the appendices to the Constitution. I am from Northern Quebec. We have dealt with claims, utilizing whatever availability of equal avenues we could use in terms of what the Constitution says and appendices to the Constitution. Taking into account the similar experience that I have with the matters you are raising with regard to the 1912 Quebec Boundary Extension Act and Rupert's Land, how is it explicitly mentioned in the Act? Is that a constitutional act of 1870?
Mr. Walsh: The 1870 Order is actually an Imperial Order in Council. It was an Order in Council made in London, England, effective July 15, 1870.
Senator Watt: Is that an appendix to the Constitution?
Mr. Walsh: It is a part of the Constitution. If you look at section 52 of the Constitution Act, 1982, it says the Constitution Act includes the acts and orders listed in the schedule, and you will see the Rupert's Land and North- western Territory Order of 1870 is item number 3 in that schedule. It is the basis upon which the land, which you were referring to, Senator, the land which is now Northern Quebec that was transferred to Northern Quebec in the 1912 Quebec Boundaries Extension Act, came to Canada under the 1870 Order — the same order that we are talking about. The land that comprises Northern Ontario came to Canada under the same order on the same day. So too Manitoba, Saskatchewan, Alberta, what is now the Yukon Territories and the NWT and Nunavut all came to Canada under the 1870 Order.
The essential part of the 1870 Order is the quote that starts on the bottom of page 3 and concludes on the top of page 4 of our submission. Our position is that the 1870 Order is the constitutional historic basis for the post- Confederation treaty process. After land came to Canada in 1870 under the 1870 Order, the post-Confederation treaty process started. Treaties 1 and 2 are 1871. Treaty 3 is 1873. Treaty 4 is 1874. This continued up to 1877, with Treaty No. 7 in the far southwest corner of Alberta.
As of 1877, the so-called fertile belt and the corridor for the CPR was opened up so Canada could comply with the terms of union with British Columbia. As soon as the land was transferred on the basis of these words, Canada, which adopted these words, instituted the post-Confederation treaty process. There were no more treaties in the 1870s, 1880s or the early 1890s, even though Aboriginal people in the North were writing to have the government treat with them. Their game was being decimated, they were falling victim to diseases they had not experienced before.
Father René Fumoleau, an Oblate priest in the NWT who worked with the Dene there for many years and who wrote a book entitled As long as this land shall last: a history of Treaty 8 and Treaty 11, 1870-1939, talked about writing to the federal government to ``come treat with us.'' The federal government said no, it did not need those lands for settlement yet.
What changed that was the discovery of gold in the Klondike and the gold rush. The principal reason why Treaty 8 was negotiated was because of the Klondike gold rush the stampeders heading up from Edmonton disturbed the First Nations along that route. When Treaty 8 was negotiated, Bishop Bompas of the Yukon Territory heard about it. He wrote from Dawson City on behalf of the First Nation there, the Hän, now known as the Tr'ondëk Hwëch'in, and asked for a treaty also to provide reserve lands, which were needed because the Indians were being displaced. The response that Bishop Bompas received was an early version of the run-around. The government wrote him back and said he was writing to the wrong department and to write to another branch. Two years later, 100 years ago this month, Chief Jim Boss from the Whitehorse area took a more secular approach and hired legal counsel to petition the King to do a treaty. He ended up with the same results as the Bishop Bompas. Being a lawyer did not help him any more than being a priest. There were no treaties in the Yukon while the post-Confederation treaty process ran from 1870 until 1930. It was sixty years long. The gold rush was smack dab in the middle of it.
When the Calder decision came down and shocked Prime Minister Trudeau and his Minister of Indian Affairs, Mr. Chrétien, it is not surprising to me that the first claim that was accepted was the claim of the Yukon Indians because of the great aberration that occurred in the Yukon in 1898. The treaty process went on all around the Yukon, yet the government did not treat there.
Professor Ken Coates did his Ph.D. thesis on the history of the Indian-White relations from 1840-1950. It was titled Best Left As Indians, which comes from a letter from a federal bureaucrat trying to decide what to do about Indian policy in the Yukon. One idea was to move all the Indians to a reserve north of the Peel River in the North Yukon. That was discounted because the land there might be mineral rich as well.
The government came up with many outlandish ideas, but in the end all that came about were little reserves, which were subsequently denied. That is why the Yukon Indian claims were the first ones accepted in 1973. In that regard, there is unfinished business for the Government of Canada, with which the legislation you are considering is wildly inconsistent.
Mr. Porter: Canada has admitted in court documents that the 1870 Order does apply to the Yukon.
The Chairman: We have covered that ground well.
Mr. Porter: Wait, there is more.
Senator Watt: You have painted a picture well to give us an appreciation of your position.
In a sense, you are saying that you were supposed to be the first to be dealt with, but in fact Yukon claim is being negotiated first.
My interests go a little further. Can you give me the explicit wording upon which you could hang your hat in the act of 1970? Which are the words that show that the Government of Canada has direct obligations to deal with you?
Mr. Walsh: The words are at the bottom of page 3 and the top of page 4. Those are words that were adopted by the House of Commons and this Senate on December 16-17, 2001. Section 146 of the BNA Act says that on a joint request from the Commons, the other place and this place, Britain can transfer this land.
The words that are at the bottom of page 3 and the top of page 4 are the principal constitutionally-entrenched condition upon which the lands were transferred. That segment reads:
...upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with aborigines.
That is the operative part. We have commenced litigation against Canada on this.
Senator Sibbeston: Mr. Chairman, I come from the Northwest Territories where we have had a long relationship with the federal government. The Aboriginal people there have made a lot of progress with the territorial government. I am pleased to say that in the Northwest Territories relations with Aboriginal people are generally on pretty good terms. Aboriginal people have made intrusions and have taken the lead in northern society and government. They are making quick progress in the entire business-economic area.
In the Northwest Territories today, I do not know whether we would hear anybody like you talking about your government in terms of being hostile. I am curious to know your relationship with the Yukon government. What is the state of Aboriginal people in the Yukon vis-à-vis the Yukon government? The impression you are giving us is that it is not a very healthy relationship and that you are not happy campers in the Yukon.
We must know where you stand. Is it a serious position on your part that if the proposed Yukon Act before us now is passed your claims would be seriously in jeopardy?
Mr. Porter: Senator Sibbeston, in terms of the tone of our submission and the inclusion of the words like ``bad faith'' and ``hostile,'' those are fair words to capture the history between the Yukon government and the Aboriginal community.
Having said that, I recognize, appreciate and understand that the relationship has changed and evolved significantly over the years and has improved. We are speaking no longer of the two solitudes, a description that was applied to Anglo-Canadian and French-Canadian relations not too many decades ago.
However, from the perspective of the negotiating process of our Aboriginal rights and interests, there has been an adverse competitive process between the Yukon government and the Aboriginal community. Every agreement that we have signed with the Yukon government has been breached in respect to negotiating a fair and just settlement.
In the Southeast Yukon, we possess potentially rich lands in terms of hydro, oil and gas and tourism. Eighty per cent of all the merchantable forestry is in our territory. The key to firing up the economic engine of the Yukon is in Southeast Yukon. The key to doing that is to conclude agreements with us.
We bring the message that there must be a greater commitment to concluding those settlements. Canada has a constitutional responsibility. If we made any point this morning, hopefully we have driven home that Canada has a constitutional obligation under the 1870 Order to settle this claim.
Yet we are witnessing, after 30 years of negotiation, the possibility that the Yukon government will get its land claim before the Aboriginal people. That is fundamentally wrong.
For the Senate to consider being a party to that kind of process would be to entrench an historical wrong. The way in which the Senate can bring heat on all parties is to say that you will suspend the hearing on this bill and not proceed any further until there is a settlement. The Senate should say that it wants the parties to come back in six months or so and report on whether they have done all of the outstanding claims in the Yukon, and if not, why not.
That would certainly put pressure on all governments, including the federal, the territorial, and us, to conclude those outstanding claims. They can be done in that time frame. Can they be done by March 31? No. Can they be done within a six-month period starting on March 31? Yes.
Senator Banks: This is a comment and observation in ignorance with respect to negotiations. You have completed numerous negotiations. I have as well in another forum. Negotiations, in order to be successfully concluded, however long they take, do not proceed well when somebody has a gun at someone's head.
You have clearly pointed out the obligations today. You have made a persuasive argument.
You spoke earlier about the transboundary agreements. I am referring to the 1989 framework agreement that was signed by the various Aboriginal interests, the Government of Canada and the Government of Yukon that made reference to the potential of transboundary agreements involving British Columbia, but is silent with respect to any transboundary interests that might exist under the claim in regard to the Northwest Territories. Parts of the Northwest Territories, if I understand correctly, are now included in your current claim.
Did that interest in the boundary area along the Northwest Territories not exist prior to 1989? Was that claim made subsequent to 1989? Why was that interest not included in the framework agreement? Why was the Northwest Territories not involved in the 1989 framework agreement?
Mr. Porter: In the information provided to the committee, tab 1 provides a replication of the 1989 framework agreement to which the honourable senator refers. I point out to the committee item number 6 on page 2 which states:
6. Unless the Parties otherwise agree in a Kaska Agreement, Kaska Agreements shall not affect the aboriginal rights, title or interests, if any, of the Kaska Parties in British Columbia and the Northwest Territories.
We have asserted our claims to those portions of land for a number of years.
Mr. Walsh: I could add to that, senator. The land selection that the Kaska made in the NWT was tabled in negotiations that occurred in 1988 and 1989. There were active negotiations at that time on the NWT portion of the claim.
The Chairman: We must leave time for the Tagish First Nation.
Senator Christensen: It is my understanding that it was the Council of Yukon First Nations, CYFN, that had requested and had implemented in the act the non-derogation clause. It wanted that there. The CYFN also insisted on the delay of the date on the devolution agreements and also caused to be included in the proposed act the condition that the commissioner's powers continue for ten years. Is that correct?
Mr. Walsh: I am not aware of the CFYN having made those representations. We were shut out of some of the final negotiations and cannot speak to what happened there.
The 10-year clause is a real problem. As things stand now, under section 4 of the Yukon Act, the minister can direct the Commissioner of the Yukon Territories to take whatever actions the minister wants. Senator Christensen would be more familiar with that than anybody, going back to the events of October 1979.
The Yukon First Nations wanted that clause to stay in the Yukon Act. They consider it a protection against a potentially hostile government. If the Yukon territorial government does not toe the line, that clause gives some protection. Yukon did not want it. Canada wanted to agree with Yukon's wishes. The compromise was to extend the life of that clause for ten more years.
We did not support that, by the way.
Senator Christensen: As you pointed out on October 10, 1979, commissioners do not necessarily carry out the orders of the minister.
Senator Sibbeston asked you about the relationship between yourselves and the Yukon government. What is the relationship between your nation and that of the Council of Yukon First Nations?
Mr. Porter: The relationship could best be described as respectful. We do collaborate on certain issues. We were at the table with it to try to negotiate a good arrangement here.
Although we are not a part of the CYFN formally, we do work with it as well as the Kwanlin Dun First Nation on major issues that affect the Yukon.
Senator Buchanan: You said something a while ago that I do not follow. You said that provinces do not have the rights that have been given to the Yukon Territory. What do you mean by that? Provinces are sovereign entities under the BNA and the Canada Act; territories are territories. Where is the parallel?
Mr. Walsh: If Canada wanted to enact something like Bill C-39 to delegate those types of powers to a province, it would be unconstitutional.
Senator Buchanan: That is right.
Mr. Walsh: As the territory is not a province, it is competent for Canada to devolve any federal jurisdiction to the territory. In this case, we are most concerned about the jurisdiction, under section 91.24 of the Constitution Act, 1967, over Indians and lands reserved for Indians. It is wholly inappropriate for Canada to be devolving any of that jurisdiction. The devolution was supposed to be about the northern affairs program, not about Indians and lands reserved for Indians.
We were concerned throughout the devolution negotiation that there is not an express reference that no lands reserved for Indians are being transferred. We wanted that in there. We thought that would be fair.
We thought that there should be reference in here that there is no devolution of jurisdiction over Indians. We could not get it.
Senator Buchanan: Constitutionally, the federal government cannot do with with the provinces what it is doing with the territories because they are different constitutional entities, of course. There is nothing unconstitutional about what it is doing as far as the Yukon government is concerned.
Mr. Walsh: Is it able to do it? Yes. Is it consistent with its constitutional obligations to my clients under the 1870 Order? We say no.
Senator Buchanan: I see what you are doing. You are bringing in the 1870 Order, which is really not part of the Constitution of Canada of 1867 or the Canada Act of 1982.
Mr. Walsh: It most definitely is. It is most definitely a part of the Constitution. If it is not a part of the Constitution of Canada, then you must ask yourself —
Senator Buchanan: This would be in regard to the provinces and the federal government and the jurisdictions of the two. It certainly relates to the territories but not to provinces. I am trying to distinguish between the constitutionality of the provinces, the federal government and the territories.
Mr. Walsh: The 1870 Order does not apply today in any of the provinces. Arguably, the only places in Canada where it is not spent are those areas in the Yukon Territory where there are no land claim agreements in effect. It is very much a part of the Constitution, and it is being breached by the bill.
The Chairman: Thank you for coming. I hope when you return to your home, and also all the way across Canada, you will announce that the Senate found time to listen to you whereas the other place did not.
Mr. Porter: Mr. Chairman, in closing, we would like to thank the Senate for hearing us. As you read the transcript of the standing committee in the House of Commons, you will note that it dealt with this matter in basically five minutes. We also noted that in the attempt to deny our rights and to impose obstacles with regard to our rights, the House committee found it to be quite thirsty work and voted themselves a beer in the process for their efforts.
On a serious note, thank you for making available some of the fundamental institutions of democracy to people like us.
The Chairman: I welcome our next group of witnesses from the Carcross/Tagish First Nation. Mr. Wedge, please proceed.
Mr. Mark Wedge, Chief Negotiator, Carcross/Tagish First Nation: Good morning. My traditional Carcross/Tagish name is Aan Goosh oo — a Tlingit name belonging to the Dèshîtàn tribe — and I have paternal European ancestry.
We have a submission to present but I am not familiar with the process. Please bear with me if I stumble along.
In our area we revere the elders and hold them in high regard. If I may, I will look upon the members of this committee in much the same way. To us, elders are important and sacred. It is an honour to appear before you today.
We ask our ancestors to watch over us and look after our communities. We ask them to help our people in our communities in a good and sacred way. We ask our ancestors to watch us, to watch over our hearts and our minds, to watch that our thoughts and our words might be in a good and sacred manner and to watch that we might do things in a good way for our communities, for our country and for our people. We ask you to watch over us.
Thank you for allowing the Carcross/Tagish First Nation, CTFN, to address our concerns on Bill C-39.
Our First Nations traditional territory saddles the current boundaries of B.C., the Yukon and the State of Alaska. We have been actively negotiating our treaties with the governments of Yukon and Canada since 1973, and we hope to conclude all of the substantive issues respecting our final self-government agreements by March 31, 2002. These agreements, once concluded, will be put to a vote by our citizens for ratification.
Before we outline some concerns respecting Bill C-39, the committee should be aware of who we are and whom we represent. The Carcross/Tagish First Nation is an amalgamation of two nations coming together — the Tlingit and the Tagish First Nations. Both groups have adopted a constitution, as our chief earlier pointed out, which allows each nation to function cooperatively through the Carcross/Tagish First Nation, while retaining our respective and unique cultural traits and languages. The traditional territories of the Carcross/Tagish First Nation is made up of these nations.
The Carcross/Tagish First Nation is part of Dakha, which is the common tribunal group vested with the responsibility of advancing the common and collective interests of the interior Tlingit First Nations, including the Carcross/Tagish First Nation, CTFN. Currently CTFN is constitutionally structured upon the foundation of six clans and as part of our inherent right of self-government, this traditional form of government will be the basis of any future CTFN government.
For thousands of years the Carcross/Tagish First Nation have lived off the land and used its resources to sustain our lives. In order to survive, everyone had to work hard. The traditional economies of hunting, fishing, trapping and gathering traditional medicines and berries are still an important part of our lifestyle and livelihood. We go out on the land each year.
There is a respect for the land and the water and all that the land has to offer in our tradition, and this is what we have been taught. It is these values that we will continue to teach our children. Bill C-39 and its incorporation and adoption without first the entrenchment of our rights and values will allow other newcomers to our land to reap the benefits and riches of our traditional territory in a manner that is inconsistent with our values and inconsistent with our rights. This is why we ask for the opportunity to briefly outline our concerns about both the process and the particulars of Bill C-39.
As part of the historical and legal record, it is important to note that our First Nation has never ceded or surrendered any part of our traditional territory, nor have we sold any part of our land, nor have we agreed to surrender our territory, nor have we been conquered. The Constitution of Canada 1982 has constitutionalized the Rupert's Land and North-western Territory Order of 1870 by virtue of section 52, which provides the following.
52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
(2) The Constitution of Canada includes:
a) the Canada Act 1982, including this Act.
b) the Acts and orders referred to in the schedule; and
c) any amendment to any Act or order referred to in paragraph (a) or (b).
The Rupert's Land Order is contained in a third item in schedule 1 to the Constitution Act and contains the following provision:
— upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have been uniformly governed the British Crown in its dealings with the aborigines.
We maintain that this constitutional obligation is outstanding and requires first a settlement with all Yukon first Nations, including Carcross/Tagish First Nation, prior to transferring the administration and control of all ``public lands'' to the Government of Yukon, in fulfilment of this constitutional requirement.
Second, both the Devolution Protocol Accord of September 23, 1998 and the Devolution Transfer Agreement of August 28, 2001 contain provisions to ensure the protection of ``unsettled'' First Nation interests, including various non-derogation clauses. For example, under 1.3 and 1.6 of the Devolution Transfer Agreement, DTA, there are provisions that state respectively:
1.3 The Parties hereby acknowledge and confirm their mutual consent to conclude, as a matter of the highest priority in the Yukon, the negotiation of any outstanding Settlement Agreement or Self-Government Agreement.
1.6 Nothing in this agreement shall 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 of the Constitution Act, 1982.
These agreements and understandings are not given statutory effect in Bill C-39, except as restated in clause 3 of Bill C-39. The assumption that the CTFN makes is that the constitutional obligations of Canada contained in the 1870 Order are paramount over the amended Yukon Act and any infringements that may incidentally occur vis-à-vis the amended Yukon Act and the powers of Yukon over public real property are secondary to our legal and equitable interests in our traditional territory in Yukon. This would effectively give a rolling application to Bill C-39 in that it would not apply to our traditional territories until there is a land and self-government settlement with our First Nation.
On this point, our First Nation successfully challenged the application of a provision of the Umbrella Final Agreement, which purported to erode our taxation rights in advance of a final agreement with our First Nation. The Federal Court of Appeal held that our taxation rights under the Indian Act would continue to apply until our First Nation entered into a final agreement. These circumstances appear to be similar, and if we fail to conclude a final agreement prior to the implementation of the Devolution Transfer Agreement, or if we fail to obtain a successful ratification of our final agreement, we may have to resort to litigation of these matters, which, we must strongly state, is not our preference.
Third, ``public real property'' is transferred to the administration and control of the commissioner and the commissioner with the consent of the Executive Council may ``use, sell, or otherwise dispose of that property, or any products of that property, that oil or gas, or any interest in that oil or gas and retain the proceeds of that disposition.''
The term ``public real property'' includes ``any estate, right, title or interest, including an easement, a servitude and a lease held by Her Majesty in right of Canada in or to land in the Yukon.'' The DTA has excluded certain lands including the Carcross Indian Reserve. However, what becomes of our Aboriginal title?
The common law makes no distinction between Indian Reserve lands and Aboriginal title lands, as Guerin taught, and Canada may have inadvertently allowed the Yukon to justifiably infringe upon Carcross/Tagish First Nation Aboriginal title by sale or other disposition through the amended Yukon Act. This is not to say that CTFN agrees with this perspective. However, the infringement of CTFN Aboriginal title may be easier due to the delegation of the administration and control of Canada's public real property interests to Yukon.
Fourth, the Governor in Council may take back from the Commissioner certain lands if the Governor in Council thinks it necessary to do so for the welfare of Indians or Inuit and the settlement of an Aboriginal land claim or the implementation of an Aboriginal land claim agreement. These terms do not appear to contemplate a circumstance in which a court finds that a Yukon First Nation, without a final agreement, may have Aboriginal title to all or a portion of its traditional territory based on Delgamuukw or subsequent common law tests. Any interim wrongful use of CTFN lands would be subject to compensation, and frankly the indemnification clauses in favour of Canada under clause 64(1) do not give us any comforting reassurance that Yukoners can pay for such an award.
Finally, our status or standing as a party is not clear for purposes of enforcing our rights under the Devolution Transfer Agreement or Bill C-39. If there is a breach under the terms of a contract respecting CTFN rights or interests, it is not clear that the contract is enforceable by a Yukon First Nation or whether Yukon or Canada must apply to enforce our contractual rights under the terms of the Devolution Transfer Agreement. The DTA may be considered as an intergovernmental accord and Yukon and CTFN may not have any contractual rights other than those provided in statute or by the courts.
In summary, the Carcross/Tagish First Nation cannot deny that it makes eminent constitutional sense to ensure local control of land and resources with broad contemporary constitutional powers as reflected in the Devolution Transfer Agreement, Bill C-39 and the final and self-governing agreements. However, there must first be respect for the founding constitutional principles that brought Yukon and our traditional territories into Canada. These constitutional principles demand our rights as Aboriginal titled citizens of Canada to settle our issues prior to allowing other third parties to infringe upon our title. This is contained in the 1870 Order and as part of the Constitution of Canada. This progression of settling with us first and then dealing with the matters considered under the Devolution Transfer Agreement would be the proper sequence to rationalize the constitutional evolution of our ancient homelands.
In addition, the Carcross/Tagish First Nation accepts that there are significant benefits under the DTA and Bill C- 39 such as forest fire protection and environmental remediation. However, these benefits will only flow after our First Nation has ratified a final agreement.
In conclusion, we have asked for time before the standing committee of the Senate to reflect some fundamental concerns that the Carcross/Tagish First Nation citizens have on the DTA and C-39. I would like to thank the committee for allowing me the time to offer the foregoing comments, and I can answer any questions that you may have on these matters.
The Chairman: Part of the problem, as submitted by the Kaska Nation, which I think is legitimate, is that if the Yukon or the government were to make an agreement with a third party, it would become difficult to transfer Aboriginal lands to the Carcross/Tagish First Nation. Have you thought about accepting the bill if we obtained agreement from the Yukon government that it would not encumber any of the lands in question to a third party until an agreement was signed, thereby putting a little heat on the government and, at the same time, assuring the CRFN if and when the lands are transferred to you they will not be encumbered by a third party agreement?
Mr. Wedge: One of the matters we spoke about in the concept of rolling repeal is not to include those things if it is going to go ahead. First of all, we would like to finalize our agreement. We are very close to our agreement.
In the Yukon, when we are talking about something called ``interim protection,'' which is to protect those lands in which we have interests, we were informed by the federal negotiator that we were not negotiating interim protection, that it was just being provided, which is an Order in Council. What is difficult about that is lands that we have vested interests in that we are currently negotiating are excluded from those protections because there is a vested interest by the Yukon government and the federal government. One of the difficulties to begin to move there is the tools we are using do not give us comfort as they are. As a result, if we were to consider an agreement by the Yukon government to say the government will not alienate any of our lands, how enforceable is that? Our experience has been it is not always maintained. There is an element of trust that we would have to address.
Obviously, we would like to conclude our agreements. We want to ensure that our lands are protected.
The Chairman: I can see that as a first choice. Could you swallow this pill if you knew the government would not encumber you with a third party agreement of some sort, in particular oil and gas exploration or mining?
Mr. Wedge: That is not a comfort because we have interim protection sites that have been alienated. Even after interim protection has been placed, it has been opened up to people. We have not gone to court because we do not like to go to court. Our experience is that our interests are not protected even with Orders in Council.
Senator Banks: Can you give us an example of a third party interest having been imposed over your rights?
Mr. Wedge: On the west arm of Bennett Lake, we have something called an interim protection area. It is a traditional area of hunting. There are sheep on one side, goats on the other side and moose in between. A mine went in and staked and actually performed exploratory work there until we said, no, this is not right. It was interim protected. We did not proceed further with that. The mine said it had been a mistake. Yet it went ahead and it is very problematic. That is one example.
Senator Banks: Did it stop when you raised the alarm?
Mr. Wedge: No.
Senator Banks: Is there a mine there now?
Mr. Wedge: No, there is not. The exploration itself has not proceeded further. Currently, it is not moving ahead, yet those interests are still there.
Senator Sibbeston: It appears critical to you and your rights to know whether this act provides protection to you. From reading the proposed legislation, particularly those that deal with the administration of lands and oil and gas resources, the plan is that once this proposed act is passed, there will be a transfer of control of lands to the Yukon government.
There is provision for excluding certain lands. It says in paragraph 45(2) that:
(2) The Governor in Council shall, on the date of coming into force of subsection 1, list public real property that is excluded from the administration and control of the Commissioner.
This would seem, on the face of it, to be provisions so that the claims that are questionable by the Aboriginal people can be protected by real property being set aside.
Do the provisions in the proposed act provide that kind of protection to you? I appreciate that you have concerns. Considering this in a technical and legalistic way, are there not sufficient provisions in the bill to avoid Aboriginal people in the Yukon being dispossessed and put in a weak position with respect to their Aboriginal claims?
There are provisions too that the federal government can take back lands that it has transferred to the Yukon. I would like to hear you on that just to help us understand the situation and how you feel.
Mr. Wedge: Again, I understand those provisions are under what is called ``interim protection.'' There are various provisions that provide for interim protection. If we are told that we are not allowed to put those areas of interest into that, then they are not protected.
The Yukon government actually has a vested interest. These areas are protected for the Yukon government by exclusion. Even though you can purchase them back, our experience has been with the negotiation that third party alienations are usually removed from being included.
Those inclusions do not give us comfort because the lands in question that have multiple interests are not protected. Second, they are actually protected for the Yukon government, which also gives it an unfair hand in negotiating. It upsets the balance of negotiating, which we do not think is fair and equitable because it gives the Yukon government the upper hand in selecting some of those areas that we are currently negotiating.
Mr. Dave Joe, Legal Council, Carcross/Tagish First Nation: To answer your short question with a short answer, no. The assurances that we see within Bill C-39 provide us with very little comfort. In the event that my client does not reach a final agreement, what happens at that point in time?
I think that the Yukon Territory has achieved its own land claim in advance of the legitimate interests of my client. There would be no subsequent protection, if you like, for the interests of my client.
There is, as we have stated, a right of the Yukon to vicariously infringe upon my client's rights and title. The current bill, as addressed in advance of a land claim, does not provide those assurances.
Senator Sibbeston: Mr. Wedge indicated that there is a possibility of conclusion of your claim by March of this year?
Mr. Wedge: We were targeting March of this year. That is five weeks away. The minister who acts in our interests, the Minister of Indian Affairs, said that he would meet with us and help us.
We have come here and are requesting a meeting with him at this time. We are trying to work on it. We think we can conclude it. It means that there has to be the political will from all parties. We have stated that we have the political will. Is there political will from the federal and territorial governments?
There are three substantial issues that require movement from all parties. If that occurs by March 31, we could get it done. If not, it is ironic that this legislation says completion of the agreements is ensured, but we are told that there is no mandate past March 31 if there are substantial amounts outstanding to negotiate in these agreements.
We are concerned in that context because the mandate expires on March 31, 2002. We have been told that if the substantial items are not finalized, there is no more negotiating. This document says we will conclude before that. We have the resolution from the Council of the Yukon First Nation, of which we are a part and we support, that says that we will move ahead with this subject to finalize our agreements.
We are kind of in a Catch-22 situation. We do want an agreement. We think that we are close, but it takes substantial movement from the governments.
Senator Sibbeston: I would be interested to know more about your relationship with the Yukon government. In the Kaska presentation we heard words that give the impression that its relations were not good with the Yukon government. What is your standing with the Yukon government? What is your relationship?
Do you seriously believe that if the bill proceeds and is passed by the Senate and is given Royal Assent you will be put in a bad situation in terms of your claims? Will you be weakened substantially, resulting in years without settlement?
Mr. Wedge: The short answer is yes. We would be in a very difficult situation. Our First Nation is still very attached to the land, but we are in a region that has high impact in the Southern Yukon. There is large impact. Already we are experiencing difficulty with caribou. Moose are coming under question. Some of the things in the agreement address how to look after these interests, not just for us but for all people. Those are important parts of the agreement. If these things do not proceed, then our interests are compromised.
Senator Sibbeston: Are you an active, major participant in the life of the Yukon? Are you away up in the hills, or on the fringe, or are you participating in the society of the Yukon in terms of involvement in government? Are any of your people involved in government? Are any of your people involved in the economic life of the Yukon?
Mr. Wedge: Yes. As a matter of fact, we are involved in major economic projects. There are tourism projects for which we see a benefit for all of the Yukon.
Our people are in a very rich mineral belt that goes through the Yukon. It is very important for the governments to have that relationship, to come to these understandings because this mineral belt is where development of minerals occurs. There is high tourism in Southern Yukon and we are in close proximity to major airports.
Are we involved in the Yukon? We see our traditional territory to be very important. We have met with other local government structures to say that we want to work together. We want to do this in a good way. We have worked with several governments. We are trying to follow the direction of our ancestors to be respectful and to try to work with people. We believe that we should look after the interests of the people. We want to do that. The self-government agreements will give us opportunities to ensure that we work in that good way in these areas.
That is why these are critical to us and it is critical that these agreements are put to place before these other things. Once some of these things are passed, it imbalances the relationship. It gives an upper hand to the Yukon government.
Senator Watt: I have a short question directed to Mr. Joe. I understood from the previous presenters that the issue of interpretation of the 1870 Order is in the courts. If the ruling is in your favour, that the Government of Canada is infringing on your rights, what impact would that have on this piece of legislation if it becomes law? Would that mean that this matter has to be revisited if you receive a favourable ruling from the Supreme Court of Canada?
Mr. Joe: To use your example, if the bill were to proceed and the Yukon were to dispose of a mining interest within CTFN territory and my client were to go to court, if the courts were to rule that the 1870 Order basically allows us to retain our interests within the land itself, and that the actions of Canada, if you like, were offside, at that point in time any use of the territories or the lands within my clients' territory are claims subject to compensation.
Yukon, under the bill now being considered, has indemnified Canada in that in using these lands they would save harmless the Crown, in right of Canada, and Yukoners would have to compensate CTFN. Frankly, the amount of funds that come within the Yukon Territory, transferred as part of this DTA agreement, would not be sufficient to compensate us. That would place a very unfair burden on the 30,000 people who reside in the Yukon Territory. To avoid that problem, settle our claims first.
Senator Christensen: For the record, are you one of the eleven First Nations that are part of the CFYN?
Mr. Wedge: That is correct.
Senator Christensen: You were part of the group that passed the resolution in October at CFYN. Were you represented at the Yukon Devolution Protocol Accord when that was signed in 1998 and at the main table during the devolution negotiations?
Mr. Wedge: There were always conditions upon that, and that is even with these resolutions.
Would it be appropriate to hand out these resolutions from the Council of the Yukon First Nations?
The Chairman: Yes.
Mr. Wedge: These resolutions say that we agree to these things, subject to our agreements being finalized. We also said that if agreement cannot be finalized, and this must go ahead, we would want to consider the role in repeal. Simply exclude our traditional territories from the legislation until we finalize the agreement.
Senator Christensen: Was the CYFN, or any other First Nation, a signatory to the devolution agreement?
Mr. Wedge: This is what we found interesting because initially they were all going to be signatories to it. Then what happened is the First Nations were taken off as signatories. They were not part of it.
Senator Christensen: Were they taken off or was there a decision not to sign it?
Mr. Wedge: All I know is that their names ceased to appear. It could not go ahead because not everyone was agreed. Therefore, the names were taken off as participating with the signing.
Senator Christensen: There were negotiators, were there not, representing CFYN and others at that table?
Mr. Wedge: That is correct.
Senator Christensen: Did those negotiators sign off on the agreement?
Mr. Wedge: That is correct.
Senator Christensen: The final agreement was entered into in 1973. It went forward and in 1992 it was finally signed as the Umbrella Final Agreement, under which all bands negotiated their own individual claims. Was that agreement for all Yukon First Nations to come up with an equitable settlement as it was reflected in the 1870s in order to try to settle the inequities that had gone forward?
Mr. Wedge: Yes. Part of the approach of the UFA was to consider how to settle that.
Senator Christensen: It was to rectify this inequity.
Mr. Wedge: The approach was to consider how to resolve that. In some instances, the ratification of the Umbrella Final Agreement was not taken to the community. There are concerns within our community that we are working with. We are trying to honour it, to start asking how we can work within these parameters.
Senator Christensen: Was the income tax problem that arose one of those?
Mr. Wedge: It was one of the problems. We had to go to court to ensure that our rights were not infringed.
Senator Christensen: How much longer do you think it would take to complete your final agreement?
Mr. Wedge: We can do it fairly quickly. Can we do it by March 31? . Negotiation means how we work together. There are outstanding issues and unless a miracle occurred in terms of the federal and territorial positions we can probably do it within six to eight months.
Senator Christensen: The Kaska say that with goodwill on all sides it can probably have its final agreement completed within six months.
You also mentioned in the devolution agreement that there are benefits regarding forestry and the like that will flow to First Nations that have signed the agreement. Eight First Nations have signed and would be eligible once that devolution agreement is settled. Eight out of the fourteen would benefit now. What are their feelings? Are they willing to wait if there is a delay in the implementation?
Mr. Wedge: They would prefer to have it move ahead. What we have always maintained is that, first of all, exclude our traditional territories and exclude us from the agreement if you want to move ahead. We are not a party to it. None of those things apply to our traditional territory. It is a big problem, of course. That would be fair. We have done that so we would not hold back the First Nations that have agreements. We understand that there are benefits and that they would like to move ahead. At the same time, they have also understood, which is why that resolution was passed subject to finalizing these agreements.
Senator Banks: It is just a feeling that I would like to get from you. On the one hand, we have heard stories of intransigence or obfuscation on the part of the governments involved with respect to arriving at land claims agreements specifically. Yet both the previous presenters and you say that you could probably conclude such an agreement within six months or eight months. What is it that gives you comfort now that something that has not been achieved for 30 years is now achievable within a foreseeable, finite time?
Mr. Wedge: We have been working very hard. We notice at the negotiating tables that when a bill like this moves very quickly other governments' willingness to negotiate tends to shift. That potentially makes it harder. We have agreed to work within the Umbrella Final Agreement, which sets parameters within which to negotiate.
We have been creative on how to resolve substantive issues. We sometimes have numerous different options. Sometimes what comes back to us is not a creative response and we have to make another creative approach. This proposed legislation closes down creativity. We know that we can get an agreement. We can be creative and we can still meet all the interests.
Senator Banks: Is that provided that we do not pass this bill?
Mr. Wedge: This upsets the balance of some of the negotiating items. If another party gets its claim, our claim becomes of less importance.
Senator Christensen: You also have a transboundary claim into British Columbia. Is that correct?
Mr. Wedge: That is correct.
Senator Christensen: However, yours is different from the Kaska in that part of its nation lives in British Columbia and is considering claims within the Yukon. Do you have people who live in the British Columbia area?
Mr. Wedge: Yes, we do.
Senator Christensen: How are you resolving transboundary issues?
Mr. Wedge: We are similar to the Kaska in that we have been doing transboundary negotiations. We work with the Taku River Tlingit and the Teslin Tlingit Council, as part of Da'ak Ka, to consider some of these negotiations that revert in these areas.
In the same manner, there is not a willingness to move ahead in the current government in British Columbia. It has been very problematic because there is no clear mandate.
Part of the difficulty has been that to negotiate these things, we have to borrow money that must be repaid. Oftentimes we wind up spending a lot of time — I do not want to use the word training — working with other governments to inform them of the state of progress. It is not necessarily a wise use of some of these resources that we have to borrow.
It becomes very hard for us to have meaningful discussions in some of these areas. We must be there, we must be negotiating, but we also must have meaningful negotiations.
The Chairman: We appreciate your coming here. You have shed light on the proposed bill. Thank you.
Mr. Wedge: I just want to say thank you to my esteemed elders. That is my way. We do entrust you with making sure that you will look after our interests and give wise counsel.
The Chairman: I ask the committee to remain for a few minutes to get some business out of the way.
The main budget is $352,000. We need the paper that we had the other day. To go from memory, it runs between $250,000 and $400 000. This is not an unusual amount. You can see the breakdown here.
Senator Christensen: Is that the global warming study?
The Chairman: Yes. The biggest item, $82,000 is for air travel from Ottawa to Whitehorse. That is the global warming trip. We usually have something in there for global warming each year. Last year, we had OPEC and the energy item overseas. The year before we went into the U.S. This budget is for the north country.
The budget includes the usual membership, registration fees, and environmental conferences for about $40,000. Air transportation to bring people in for hearings is around $25,000. As I mentioned, the big item is $108,000 for our tour through the North. All tolled, it comes out to about $352,000. I think we can defend that quite easily when we go to Internal Economy.
Senator Christensen: This amount is to complete the energy study and begin work on the global warming study.
The Chairman: This amount is not only our travels to determine how this occurs, but also to bring in experts to give us lectures.
Senator Christensen: Where are we with the energy study?
The Chairman: We hope to write the report this year and complete the study. The energy sector is covered. In the first section we had put $40,000 aside for public hearings in Vancouver and Calgary, memberships and visits including the New England governors, the hydroenergy conference, meetings on global mining, and drinking water.
We hope to complete the energy study this year because it could go on forever. It is in an interim stage. That first draft on nuclear safety should be to the committee soon.
Do I have a motion for approval?
Senator Adams: I so move.
The Chairman: Moved by Senator Adams, seconded by Senator Sibbetson.
The Chairman: All those agreed?
Hon. Senators: Agreed.
The committee adjourned.