Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 5 - Evidence - Meeting of February 27, 2008
OTTAWA, Wednesday, February 27, 2008
The Standing Senate Committee on Aboriginal Peoples met this day at 6:21 p.m. to examine and report upon the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples and on other matters generally relating to the Aboriginal peoples of Canada.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good evening colleagues and invited guests. We are continuing our examination of the implementation of comprehensive land claims. To assist us in our work, we will hear from Mr. Kevin McKay Chairperson of the Nisga'a Lisims government.
The Nisga'a Final Agreement is the first modern treaty in British Columbia and the first treaty in Canada to incorporate land claims and constitutionally protected self-government provisions. The agreement provides for the establishment of the Nisga'a Lisims government and payment of $190 million in 1995 dollars. Entitlements to salmon stock and wildlife harvests are spelled out as well. The agreement came into effect in May 2000. While the Nisga'a Final Agreement provides for an implementation plan, the plan does not form part of the final agreement and, therefore, is not a constitutionally protected document.
Mr. McKay, perhaps as part of your presentation you could tell the committee how the implementation plan has been of assistance to your nation. We would also like to hear about any limitations in the final agreement. I invite you to proceed with your presentation. It is with humility and gratitude that we have you here today.
Kevin McKay, Chairperson, Nisga'a Lisims Government: Thank you, Mr. Chair. I am pleased to appear before you on behalf of the Nisga'a Nation. On May 11, 2000, the Nisga'a Final Agreement, British Columbia's first modern treaty, came into effect recognizing the Nisga'a Nations right to self-government. The Nisga'a Final Agreement established Nisga'a Lisims government as the modern, democratically elected government of the Nisga'a Nation based on the traditional culture of the Nisga'a people. The treaty also established four Nisga'a village governments, each with its own elected membership and three Nisga'a urban locals representing the Nisga'a urban population.
The Nisga'a Final Agreement recognized the ability of the Nisga'a Nation to establish its own laws. Under the agreement, the Nisga'a Nation is granted jurisdiction over a wide variety of subject matters. To date, the legislative arm of Nisga'a Lisims government has enacted more than 50 laws dealing with many of these subject matters.
One of the things that I wish to make clear is that the Nisga'a Nation is not unhappy with the terms of the final agreement that we signed with the Government of Canada and the Government of British Columbia almost eight years ago. The Nisga'a Final Agreement is a combination of decades of hard work, sacrifice and compromise. We are happy with the terms of our treaty and with the opportunities that have arisen for the Nisga'a as a result.
I wish to convey to the committee today the sense of the challenges that the Nisga'a Nation has experienced in implementing our treaty. Since the treaty's effective date, we have experienced particular difficulties with the way in which the Government of Canada has approached the implementation of the important opportunities granted to us under the Nisga'a Final Agreement. By and large, the Government of Canada's approach to treaty implementation has been to fulfill the narrow, technically-defined legal obligations that are set out in the treaty. The Government of Canada has not been sufficiently concerned with working to achieve the overall broad objectives of the entire agreement. Our experience in this respect is not unique. The Auditor General of Canada expressed these very sentiments in her annual report tabled in the House of Commons on October 30, 2007, referring specifically to the implementation of the Inuvialuit Final Agreement. A press released issued by the Auditor General's office notes that in the 23 years since the agreement was signed, INAC has not shown the leadership and commitment necessary to meet the federal obligations and achieve the goals of the agreement.
The Auditor General added:
In 2003, we made similar observations about the department's approach to agreements with the Gwich'in and the Inuit. It is disappointing that INAC has continued to focus only on specific obligations and has not worked in partnership with Aboriginal groups toward the goals of these agreements.
The comments of the Auditor General are equally applicable to our experience with the implementation of the Nisga'a Final Agreement. This narrow approach to the implementation of our treaty has been the cause of much frustration and disappointment for the Nisga'a as we try to benefit from the opportunities that we worked so hard to achieve throughout our treaty negotiations.
Another of our frustrations with the implementation of our treaty has been Canada's failure to recognize the basic goals of our agreement. In our view, this approach has prevented Canada from being able to work with the Nisga'a toward the effective implementation of our treaty. This sentiment has been acknowledged by officials within the Department of Indian and Northern Affairs in respect of the Inuvialuit Final Agreement. In her report, the Auditor General noted that:
INAC officials have said that they do not view it as the department's responsibility to achieve the basic goals of the agreement, describing them as Inuvialuit goals, not Canada's. They stated that the agreement obliges them neither to achieve these goals nor to measure progress toward them.
We made a number of compromises during the treaty negotiation process. In fact, we maintain that were it not for the extent of compromise made by the Nisga'a Nation, there probably would not have been a Nisga'a Final Agreement. We maintain that we compromised the most when you compare the compromises made by Canada's negotiating party and British Columbia's negotiating party.
These compromises were hard fought and necessary to make the treaty a reality to achieve recognition of our inherent right to self-government. However, we now find ourselves in the same frustrating position of having to continue to fight with government to ensure that these opportunities are properly implemented and that the spirit and intent of our treaty is being respected.
One primary example of the frustrations we have experienced in the implementation of our treaty obligations has been with respect to the renewal of our Nisga'a Nation Fiscal Financing Agreement. Under the terms of the agreement, there is a treaty obligation on the part of all parties to negotiate and to seek to reach agreement every five years on a fiscal financing agreement.
For your information, we will soon be in year eight of our inaugural five-year fiscal financing agreement. The federal officials with whom we meet tell us that they have no mandate to put any money on the table. In December 2005, we provided our detailed funding submissions to Canada. We then waited more than 11 months for a response. The response we eventually received was extremely disappointing as we were only informed that the negotiators for Canada did not have a mandate to negotiate a final agreement with us. That is after waiting more than 11 months from December 2005. This is the message we continue to receive from Canada today.
Our current fiscal financing agreement is set to expire at the end of March, literally weeks away. As things presently stand, we do not know whether Canada will renew our old agreement or be in a position to negotiate a new agreement with us. The consequence is we are left in a state of uncertainty as to whether we will have sufficient funds to provide the ever-evolving array of programs and services that our citizens require, and that we fought so hard to provide under our agreement.
These funds are stretched even further when we are required to use them to continually prompt the federal government to provide a mandate to its negotiators. We do not even know, although we have our suspicions, whether the amount Canada will be willing to offer us will be far too low. There is still nothing on the table for us to negotiate, more than two years past the five-year mark of the fiscal financing agreement. We have not received an explanation as to why Canada has chosen to delay for such a long time, but are told only that consideration of the response is ``in the system.''
My purpose here today, honourable senators, is not to lay blame on one particular party for all the frustrations and challenges the Nisga'a have been experiencing in the implementation of our agreement. I do not feel it would be productive for me to do so. However, if the Government of Canada and the Government of British Columbia are as serious as the government of the Nisga'a Nation in meeting the treaty obligations that we all agreed to, then all parties should be willing to accept their fair share of responsibility when these challenges arise and are not met to the satisfaction of all governments. When one of the parties continues to come to the table without a mandate to negotiate a resolution to these difficulties and challenges, it is very difficult for the Nisga'a to believe that the party is taking our agreement and its obligations under that agreement very seriously.
As the committee is aware, the frustrations we have experienced in the implementation of our treaty are not unique to the Nisga'a. Many other Aboriginal signatories have experienced and continue to experience similar impediments to the implementation of their modern day treaties and land claim agreements. In order to address these concerns, the Nisga'a Nation feels a renewed approach to the implementation of these agreements is required by all parties.
In 2003, the Land Claims Agreements Coalition was formed, representing all Aboriginal groups that have completed modern day treaties, dating back to 1975 with the James Bay Cree and includes comprehensive land claims and related self-government agreements, including the Nisga'a Nation. Since that time, the members of the coalition have decided to work together on land claim agreement implementation issues.
In response to the challenges identified by the coalition's member groups, the coalition adopted the Four-Ten Declaration of Dedication and Commitment, setting out four points for a renewed relationship between the Aboriginal treaty groups and the Government of Canada. The four points include the recognition that the Crown in right of Canada, not the Department of Indian Affairs and Northern Development, is party to our land claim agreements and self-government agreements. The second point is there must be a federal commitment to achieve the broad objectives of the land claim and self-government agreements within the context of the new relationships, as opposed to mere technical compliance with narrowly defined obligations. This must include, but not be limited to, ensuring adequate funding to achieve these objectives and obligations. The third point is that appropriate senior-level federal officials representing the entire Canadian government must handle the implementation. The fourth point is that there must be an independent implementation and review body, separate from the Department of Indian Affairs and Northern Development. This could be the Auditor General's department or a similar office reporting directly to Parliament. Annual reports will be prepared by this office in consultation with groups with land claim agreements.
The Nisga'a Nation has endorsed these four principles as the basis for the development of a national land claims implementation policy to be adopted by the Government of Canada, which would be effective in assisting all parties to modern land claim agreements to more effectively implement these agreements.
In our view, the first three points of the declaration speak to the need for us to foster a nation-to-nation relationship with Canada. Throughout the decades of negotiating our treaty, the Nisga'a Nation has maintained its desire to negotiate its way into Canada, not out of it. I used to say at the negotiations that we are not trying to negotiate a seat somewhere between Nigeria and Swaziland in the United Nations. We are willing to allow Canada to represent us at the UN. We are negotiating our way into Canada. That was the premise of the treaty.
We want to take our rightful place within Canada. For the Nisga'a, the full and proper implementation of our treaty requires the Government of Canada to find a way to work with the Nisga'a Nation in a genuine government-to- government relationship. We need to work with both Canada and British Columbia to achieve this relationship. If this is to be done, however, major changes are required in both the attitude of governments and in the institutional framework of the federal government.
Currently, a great part of the frustration that the Nisga'a has felt in implementing its treaty is the lack of clout the Department of Indian Affairs and Northern Development appears to have with the other federal departments. Even when the department is trying its hardest and doing its best to bring about the objectives of the agreement, it is often frustrated when it arrives at other departments to find it has insufficient clout with them. The other departments consider it the Department of Indian and Northern Affairs' agreement and not theirs. In this way, they fail to acknowledge our nation-to-nation relationship with Canada, something we fought hard to achieve through the negotiation of our treaty.
Our treaty relationship is not with any single federal department or agency, but with the Crown represented by the Government of Canada. In practical terms, this requires all federal departments and agencies whose mandates and activities intersect with modern treaties to do their part to implement them. Every department and agency of the Government of Canada has an equal responsibility to ensure that their duties and activities are carried out in a manner consistent with the obligation of modern treaties, and that they contribute to the achievement of the objectives of these agreements.
To achieve this objective, a proposal put forth by the coalition and endorsed by the Nisga'a Nation is the creation of a body responsible for implementation with some sort of central agency function. This body would have the authority to elevate the power of those responsible for implementation to a point where they command the attention of other departments and make them aware of their treaty obligations. This arrangement, we believe, could also ensure the availability of a separate fund of money dedicated to the implementation and funding of land claims agreements.
Another proposal, as expressed in the fourth point of the four-ten declaration and endorsed by the Nisga'a Nation, is the development of a separate body in addition to the central agency. This body would be responsible for assessing the achievement of the objectives of the agreement and report back to Parliament and the parties on these matters.
In this way, if the objectives of the land claims agreements were not being adequately achieved, this body could identify where their responsibility lies. This body could be housed, for example, within the Auditor General's department. This suggestion of using the Auditor General's office to fulfill this task is simply one possibility. In an ideal world, this body would be a review body completely independent of government.
While we do not propose to know the exact way in which such a body might be set up, we are willing to sit down and discuss our proposal with the Government of Canada to explore the available options and to find out what might work most effectively. The reality that we have been experiencing and that we wish to address through our proposal is the inadequacy of the current systems in place to deal with the implementation of our treaty. As it currently stands, our experience tells us that leaving these implementation functions within the Department of Indian and Northern Affairs Canada alone is completely ineffective.
To summarize, the Nisga'a Nation recommends the development of a national policy for the implementation of land claims agreements. We recommend the acknowledgement on the part of the federal government that the agreements signed are nation-to-nation agreements, signed with the Crown in right of Canada, not with INAC. We recommend the development of mechanisms designed to ensure that all federal departments are made aware of and held accountable for Canada's treaty obligations under these agreements. Our fourth recommendation is the development of a central government agency responsible for the implementation of land claims agreements. Our fifth recommendation is the development of a separate, independent review body to monitor the way in which Canada fulfills its treaty obligations.
The Chair: Thank you very much Mr. McKay.
First, I will introduce the senators. The Deputy Chair is Senator Sibbeston from Northwest Territories; Senator Dallaire from Quebec; Senator Gustafson from Saskatchewan; Senator Dyck from Saskatchewan; Senator Peterson, also from Saskatchewan; Senator Adams from Nunavut; and Senator Watt from Northern Quebec and Nunavik.
This committee represents a good cross-section, Mr. McKay, and senators are interested in hearing what you have to say because you broke new ground when you established that modern treaty with the Province of British Columbia and the Crown in 2000.
Mr. McKay: Yes, 2000 was the effective date. The agreement was actually initialled by the chief negotiators in the summer of 1998.
Senator Dallaire: I would like to test your sense of humour. Mr. McKay you spoke about the Land Claims Agreements Coalition, and you spoke about your problems of getting to the right people in the federal government. You remarked that the people you do get to speak to are low on the totem pole. Is that okay? We can do that? Is that suitable?
Mr. McKay: Sure.
Senator Dallaire: I applaud your sense of humour. I would like to ask you some direct questions. I agree, your presentation is succinct and very much to the point, and the clarity of your recommendations are most appreciated. I am not going on the political side. I want to talk about INAC or any other public service officials.
Do you believe that you and others with similar responsibilities are treated as a nation speaking to a nation? Do you feel that you are considered at your full value? Mr. McKay do you feel that you are treated as an NGO? Do you feel that there is an underlying attitude that the officials still consider themselves a colonial power?
Mr. McKay: Thank you, Senator Dallaire. It depends on who you are talking about. If you are talking about senior bureaucracy, they will acknowledge and agree with the reality of the Nisga'a Final Agreement. These officials realize that we are building a new relationship based on the principles of a nation-to-nation relationship. However, there are times when you get away from the senior level of bureaucracy and there are times when you encounter other federal departments and provincial ministries when we are treated as though we are a band council under the Indian Act. In some cases, these departments and ministries are totally ignorant of the reality of the Nisga'a Final Agreement.
The Nisga'a Final Agreement replaced the archaic prescriptions of the Indian Act and we appreciate that there will be a period of transition. It will take some time for the non-Nisga'a to truly appreciate what the final agreement means in practical terms. However, to answer your question, the lower we get on that totem pole, the more ignorance we encounter. Giving them the benefit of the doubt, I would hope that they can plead ignorance, because if it is something else it certainly compounds the problem.
Senator Dallaire: Does the Nisga'a Nation and other Aboriginal nations, through the treaties or the implementation thereof, or by policy within the departments, particularly INAC and other departments, acquire knowledge in order to treat the interactions with your nations with the sensitivity of your culture and background? For example, do they have anthropologists? Have they worked on job training to acquire the necessary background to conduct these negotiations, not as a colonial power to a subordinate entity, but nation-to-nation?
Mr. McKay: Thank you for your question, senator. Any opportunity to provide cross-cultural sensitivity training to government and to the people that represent the government can go along way to alleviate some of these impediments.
To date, we are not sure what INAC does. INAC is the lead agency that we deal with, but there is a bit of irony there for the Nisga'a. We have maintained that we chose the political process of negotiations rather than litigation to resolve our land issue because we felt we would have more influence on what the end product looked like. In doing so, we felt we would be more effective in implementing those opportunities to meet the challenges.
In my opening comments, I referred to the need for the federal government, if it is serious; to consider changing the institutional framework so that it is more conducive to implementing modern land claims agreements. Right now, it is not.
Senator Dallaire: Cash is power; budget line is power within the departments in the government. If INAC had the financial power to ensure that other departments that have responsibilities or partial responsibilities for implementation were able to provide those funds or be the central agency to get those funds from cabinet, do you not believe that it would be a sufficient power base to respond to your needs. Do you think it would be sufficient instead of creating some other body?
Mr. McKay: No, because when we signed the Nisga'a Final Agreement with Canada and B.C., the Nisga'a Nation did not do it to say goodbye to the Government of Canada and the Government of B.C. We thought it was an important benchmark for us to begin working collectively in order to meet the challenge of implementing the treaty objectives. If you try to meet that challenge mainly on the basis of cash only, that is not the full answer for us.
At one point in our research, we hired Price Waterhouse to do an evaluation of the economic losses incurred by the exploitation of our resources on our traditional territories. We presented those results to the Treaty Negotiation Advisory Committee, TNAC. The committee had representatives from a cross-section of local governments and various stakeholders such as industry. I was the chairperson of that committee. Someone asked us if we thought we would get all the money that we were talking about. On the low end of the scale, Price Waterhouse identified a loss of $2.1 billion; on the high end, it was over $4 billion in lost opportunities. This information was gathered from the provincial government's archives.
I was told that if we all agreed, we would receive a cheque. I corrected the woman who offered the cheque. I said, ``In the first place, this is not an invoice. If you gather all of the financial resources of every level of government in Canada today, you would not even come close to what you really owe us. This is an historical statement of fact.'' That was my dramatic way of putting them on notice that if they thought a cheque would fulfil their obligations that was not what we envisaged. No, it is more than money. Money is important, but there are other important pieces of the puzzle.
The Chair: Senator Sibbeston and I were just down visiting with the Navajo Nation, where the president of the nation refused to deal government-to-government. He said that they have to deal nation-to-nation. He said that they are not Indians but Native Americans. He said that the term ``Indian'' is a misnomer because of some White people trying to find India. He said that they do not live on reserves; animals live on reserves and they live on their traditional lands.
Some things have failed to penetrate the bureaucracy, if you start dealing nation-to-nation with that thought process. I will leave it to Senator Sibbeston.
Senator Sibbeston: Mr. McKay, nice to see you again. When I came on the scene back in 1999, the Nisga'a claim was the first land claims and self-government agreement that we had to deal with. It was interesting and informative. At the time, there was a fair amount of opposition. One person who was there is now a premier. There was also a retired Supreme Court of Canada judge. They spoke against it. I remember thinking, ``Am I ever glad I come from the Northwest Territories where we do not have this type of opposition.''
It has been eight years since you formed your government and I had the good fortune to attend the official opening ceremony with the Premier of British Columbia and the Minister of Indian Affairs and many others in attendance. It was a very elaborate ceremony. After all the ceremonies were over, I was having lunch with Mr. Justice Tom Berger and we acknowledged that Aboriginal people have the ability to govern themselves. It was good to see this happening in Canada.
I appreciate that you came here to discuss the issues of implementation and the problems you are experiencing and have some good recommendations for us, but can you tell us where you are as a people? When you have an agreement, there is a lot of hope. People know that this is the fulfillment of Aboriginal aspirations in terms of self-governing and economic independence. I have no doubt you are on the road, but I am curious to see where you are in that quest and how you are doing.
Mr. McKay: In tangible terms, you could ask the question, how has the Nisga'a universe changed since the treaty? We are fast approaching the eighth anniversary of the implementation of our treaty on May 11 of this year. I dare say other governments are spoken about in terms of centuries in terms of their evolution. By that same token, though, it is an important question to ask every now and then.
One of the very important directions that the Nisga'a Nation took leading up to the eve of finalizing the treaty was a decision regarding individual payouts. After a very thorough debate of many assemblies of our nation, we agreed that the only exception to an individual pay out would be a dividend of $15,000 to our elders on his or her sixtieth birthday. This in part is in recognition of the contribution that our hereditary chiefs, matriarchs and respected elders have made during the long history of the land question. That is the only authorized exception.
We started the co-management of our fisheries with the Department of Fisheries and Oceans back in 1992. Under our treaty, we have completed eight salmon seasons, harvesting for food, social and ceremonial fisheries, individual Nisga'a marine and in-river sail fisheries and our communal sail fisheries with our fish wheel. Nisga'a Lisims government entered into an agreement with a large fish processing company to purchase and market our salmon as far south as the Southwestern United States.
The economic development act was implemented in 2002, to provide a known base process that would provide bridge financing for applications to other financial institutions. The loan fund is to foster a process that creates wealth, prosperity and cultural well-being for the Nisga'a Nation and Nisga'a citizens by promoting economic development and entrepreneurship by and of employment of Nisga'a citizens. We are currently reviewing that act so that economic and business development projects would benefit from contributions and grants.
We are also in preliminary stages of land tenure reform, which is very exciting for us. World-renowned economists such as Hernando de Soto compared Indian Act reserve lands to ``dead capital.'' Our nation has told us very clearly, that now is the time for us to begin those reforms. We have been told that at some time in the future, a Nisga'a citizen who has a dream will be able to use his or her home and the land it sits on to seek necessary funding to fulfill that dream. We might get there within the next three years. It could take that long because of the legal implications that we are seriously considering. Over the last seven years, the word ``groundbreaking'' has become overused and cliché. However, in this one particular area of land tenure reform that could be compatible to systems that are in place in the province of British Columbia, we are talking about some very dramatic and radical changes, but not at the expense of the Nisga'a Nation.
I talked about the Nisga'a Nation Fiscal Financing Agreement in my opening comments. The delivery of programs and services continues to be one of the main areas of responsibility of Nisga'a Lisims Government. The distinction we must continuously make between pre-treaty under the Indian Act days and post-treaty is that we serve the urban Nisga'a as well in the areas of programs and services. We serve these people but not to the extent we do to Nisga'a who reside on our lands and in one of the four villages, but there is a clear distinction to be made that there is a responsibility to provide legitimate services to those Nisga'a who reside off Nisga'a lands.
We inherited buildings from INAC, many that were due for thorough renovation if not outright replacement, and we cover off our needs in the area of the Nisga'a Capital Finance Commission.
The Lisims Fisheries Conservation Trust was established to help us guarantee that one of our most important resources, the salmon, will be there for our grandchildren and generations beyond that. Canada contributed $10 million and to show how serious we were, the Nisga'a Nation contributed $3 million. The initial contribution continues to provide key funding to the protection of that resource.
The Nisga'a commercial fishery fund is there to give Nisga'a commercial fishers access to funding to increase capacity and give them a better opportunity, especially now. It is no secret that the fishery is in a crisis state right across the land, and Nisga'a Lisims is not immune to that situation.
The same economic position allowed us to benefit, immediately upon the implementation of the treaty, from some harvesting of resources on Nisga'a lands. It was a compromise that we reached. Rather than on May 11, 2000, kicking off all the non-Nisga'a forestry companies that worked on Nisga'a lands, we negotiated a phase-out period. As things turned out, we live in a small part of the world up in Northwestern British Columbia. We all live and coexist among one another, and so our Nisga'a forest companies continue to work with non-Nisga'a forest companies in accessing forest resources on Nisga'a lands.
The Nisga'a highway side agreements were not part of the treaty but are a direct consequence of the treaty in two key areas. One was the continuous upgrading of the older portion of the Nisga'a highway. Equally as important, especially to our citizens who reside in Kincolith, is the extension of the Nisga'a highway from Nak'azdli to Kincolith. Prior to the extension, they were geographically remote from the other three Nisga'a communities.
I could go on and on. Those are some of the tangible results relating to how our Nisga'a world has changed since the implementation of the treaty.
Senator Dyck: Thank you for your presentation, Mr. McKay. It was very succinct, and your recommendations are well laid out.
I was struck by a comment you made when Senator Dallaire asked you about your relationship with INAC and whether you still met with a colonial mentality. You indicated that you considered the Nisga'a Nation not to be part of the Indian Act.
As I understand it, Indian and Northern Affairs Canada was constituted to deal with managing the legal aspects of the Indian Act, but it covered only those treaties that were initiated during the colonial times, the numbered treaties and the treaties before that; whereas your treaty is a modern treaty.
It seems to me that you should not be dealing with INAC. It seems illogical that you should be dealing with INAC in terms of the implementation because you are not part of the political structure that led to the development of INAC. You have essentially recommended another body be set up. Would you agree that you could push the idea that you are not part of the colonial treaties that were signed around the turn of the century, being a modern treaty?
Mr. McKay: I would agree with that. The Nisga'a Nation has been very consistent in our post-treaty message. We believe that INAC's institutional framework does not provide for the reality of implementing a modern land claims agreement. One of the main reasons for the Nisga'a Final Agreement, from our perspective, was to replace what we often described as the archaic Indian Act and its daily imposition on our lives for 130 plus years.
With respect to the Nisga'a Nation, our legends and oral history tells us that we have been on our traditional territory since before the beginning of time. We have archeological evidence in one of our communities, Nak'azdli that puts our ancestors there some 15,000 years ago. During that whole time, the Nisga'a Nation has evolved as a proud, vibrant, self-governing and independent people. With respect to the culture, one reason it is still so much a part of our lives today is that it has evolved over time; it has not become stagnant and irrelevant in today's contemporary society.
The Indian Act was in our lives for a little over 130 years, and look at the damage it created. Here we are, almost eight years later, and we are still encountering those horror stories on a daily basis when we deal with our citizens. It was obvious to us that the only answer would be to replace the Indian Act, and that was, in our view, what we thought we had achieved when we agreed to sign the Nisga'a Final Agreement. However, it is frustrating.
One of my main messages to INAC people is that we have no control over who the Government of Canada sends to deal with us, but we expect you to listen to us when we tell you that we do not appreciate being treated like Indian Act band councils. We are not Indian Act band councils.
Senator Dyck: As much as many people think the Indian Act should be abolished, do you consider that it would be a good idea to remove yourselves from the Indian Act, to amend the Indian Act to create another category of Indian nation status?
Mr. McKay: I can only speak for the Nisga'a. I would not presume to speak for all of my brothers and sisters across the land. As far as the Nisga'a is concerned, a long time ago the infinite wisdom of our leaders, our chiefs and our matriarchs, was that there was no other answer: We had to get rid of the Indian Act. Therefore, we have no qualms about saying that even today, with all due respect to INAC and its responsibility to continue implementing the act. However, I maintain that with all the royal commissions they have done over the years, why do you think they will never do a royal commission on the Indian Act. I think that would cut to the chase of many of the problems. All they are dealing with now in many superficial ways are the symptoms of the problem. The root of the problem is inherent in the institution itself.
The Chair: I think RCAP, the Royal Commission on Aboriginal Peoples made that recommendation.
Senator Adams: At the time of the celebration for your land claims agreement, I cannot remember how you wore your beard. I was the senator from Ottawa present at your celebrations, and I will never forget that you put on a very good ceremony.
I would like to know about your agreement with the Government of British Columbia before coming to Ottawa, with respect to the how the system works in that province. I know you have a department of Indian affairs at the provincial level. How does your community look after you as far as the agreement is concerned? Do you have authority in your land claims agreement?
Mr. McKay: By and large, the government representatives that we deal with on a regular basis in implementing our treaty are federal government officials.
Our experience has been actually quite positive in working with provincial government representatives. When you consider it, I believe someone mentioned in their comments about the challenges to the Nisga'a treaty in the early days, one of them was actually under the person who is presently our Premier in British Columbia. To Premier Campbell's credit, he has demonstrated that he was not afraid to change his attitude and become more proactive in helping us to implement the Nisga'a Final Agreement. We can only respect him as a person and certainly his government because of that change. It does not go unnoticed.
Coincidentally we deal with Minister de Jong who is the Minister of Aboriginal Relations and Reconciliation. He is a very high profile person and he was involved in that lawsuit challenging the Nisga'a treaty. We have a similar positive working relationship with Minister De Jong. Mostly, we deal with the federal government.
Senator Adams: You mentioned you have a fishery. Do you have agreements with either DFO or the B.C. government inside the 12-mile limit? I do not know how far you went with your water rights in the land claims agreement. Do you have a quota set up by the government or have you set up your own?
Mr. McKay: As I indicated, we have been co-managing the fishery resource with DFO since 1992, almost eight years before the effective date of the treaty. Over that time, it has evolved into a very positive relationship. To answer your question, Nisga'a fishing rights can be exercised in our Nisga'a Final Agreement in the Nass area, which encompasses 26,838 square kilometres.
Senator Adams: What is your annual quota?
Mr. McKay: We describe it as a Nisga'a entitlement. That entitlement is negotiated on a regular basis with our counterparts at DFO. We actually have a committee called the Joint Fisheries Management Committee, which represents both governments. That committee deals with the provincial wildlife ministry.
Senator Adams: I know you are the chairman of an excellent coalition of the Inuvialuit, Nunavut and Nunavik. How much of it did you set up on your own? How much was the government involved in the set-up?
Mr. McKay: The coalition is a result of all of the signatories to modern land claims agreements since 2003. We felt compelled to unite so that our message would be stronger. The government did not set it up. Currently, the co-chairs are the Nisga'a and NTI. President Kaludjak and President Leeson serve as co-chairs of the coalition.
Senator Adams: Do you have recognition from the department? Does the department communicate with President Leeson and the coalition?
Mr. McKay: They will not tell us directly, but I was pleased to read the unrevised transcript of Deputy Minister Wernick and his colleague Mr. Sewell, where they acknowledged the reality that the coalition exists and that they need to take our advice seriously. It is encouraging.
Senator Peterson: Do you have all the lands that you are entitled to under your control?
Mr. McKay: Yes, as a result of the Nisga'a Final Agreement.
Senator Peterson: The thing you are doing with INAC, whom you say are trying to be helpful — and I think you are being overly generous with them, because by their own admission they are not responsible for any of this — are you negotiating self- governance with them?
Mr. McKay: No, as Senator St. Germain acknowledged in his opening comments, one of the unique features of the Nisga'a Final Agreement is we negotiated our self-governing provision as part of the main body of the treaty. As such, it is constitutionally protected. It is all there.
One of the ways I describe it to our people — when we were doing our public education on the components of the agreement — is that the Nisga'a Final Agreement is not to be looked at as a book of guarantees; it is a book of opportunities. Those opportunities were very hard-fought and deliberately placed compromises on the part of the Nisga'a Nation. All we ask for is a fair opportunity to maximize their potential.
Senator Peterson: Do you think you are getting that opportunity?
Mr. McKay: Not presently.
Senator Peterson: How do you think you will get it?
Mr. McKay: It would be easy if we could wake up tomorrow and INAC was not there.
Senator Peterson: We have heard that before. That is something we will have to deal with. We have agreed on everything. We have everything in place, we know what we want to do, but we are not doing it.
Your patience is outstanding. Other similar groups have been here as well. Going into five-year, 10-year and 15-year reviews, and you are doing the same thing. It is absolutely painful. It is atrocious. I agree with you. INAC is the problem.
The Chair: Let us make that our objective.
Senator Peterson: I am for that. People have waited long enough. They should not have to keep coming back.
Senator Gustafson: I have been wondering whether I should ask this question.
At one time, I was with some of the native people and they said the only government they acknowledge is the Queen. Do your people acknowledge the Queen?
Mr. McKay: Yes, senator, we are Canadians. The Constitution of the Nisga'a Nation is consistent with the Canadian Constitution of 1982.
The Chair: There is nothing in your agreement that is not consistent with the Constitution?
Mr. McKay: No. The Canadian Charter of Rights and Freedoms applies to us on Nisga'a lands, as it does to all Canadians.
Senator Dallaire: When I joined this committee I had the staff look into the Indian Act to educate me on it. I would like to provide some background to set the scene.
This started in 1830 with what they called the Indian civilization program that was to assimilate the Indian people by temporarily placing Indian people on land reserves. The program aimed to convert them to Christianity and teach them to become productive. The feeling was that this transformation would be rapid. In 1858, the Brits handed over Indian administration to the Canadians. At that time, it was expected that the native population should be decreasing but it was not.
The Indian Act of 1876 was intended as a temporary set of laws until native peoples were successfully assimilated and involved with land management. It defined the First Nations membership with the ultimate goal of assimilation.
Nowhere in what I have researched have I seen a legislative change of mandate of the INAC in regards to shifting from the Indian Act fundamental premises to a new generation of responsibilities.
You have never been part of any sort of process in which INAC would go through a metamorphosis in regards to the implementation of a new generation of treaties and so on?
Mr. McKay: No. The startling reality is that I believe the Indian Act — since its implementation in 1876 — has only been amended once or twice.
Senator Dallaire: The Department of National Defence functions under the National Defence Act. That is the primary reference and it has been amended several times to meet the complex challenges of our time. In so doing, DND has significantly restructured itself and ``re-policied'' its responsibility during wartime or peacetime.
In your negotiations and subsequent exercises, in regards to the review of your first five-year fiscal plan, have you seen anywhere any of the future staffing within INAC that is looking at how to handle this new generation of creation and implementation of the signing of these agreements?
Mr. McKay: We have seen absolutely no creativity or innovation on their part.
Senator Dallaire: I come back to my question about INAC being a powerful department. If you are talking about defence, there is one department, whether it is the Government of Canada signing a treaty with all the other countries, with NATO or the Americans, there is still only one department.
If I pursue this, if INAC were to realign itself in order to meet these challenges, would it not then be able to go and get the funding required to respond, in a timely and progressive fashion, to even at a minimum, your fiscal deficiencies?
Mr. McKay: It is hard to say. They have not demonstrated that they are capable or willing to do so.
Senator Dallaire: At all levels?
Mr. McKay: Yes.
Senator Dallaire: I am not talking about the political side. I am only talking about the outfit.
The Chair: The recommendations that came forth in this presentation and also from the coalition are that the Crown, not the department, should be dealing with these people that have signed these modern treaties. They signed these treaties to get away from INAC. Unless the Crown will deal through the Privy Council Office, they will always get the same results dealing with the Department of Indian and Northern Affairs.
The independent review body is akin to the one we have recommended in the specific claims: Unless you have an arm's length distance, you cannot be judge, jury, prosecutor and everything else like the government is in many cases.
Senator Dallaire: We do not have a deliberate department that has the fiscal responsibility in regards to significant amounts of money. We hear all the time: ``$9.7 billion a year'' et cetera. That is a lot of money. Our defence budget was smaller than that.
Unless you have a department that has financial responsibility with significant amounts of funding, you will never get the right amount of cash, its disbursement and so on, under policies. There must be a designated agency.
The Chair: I think the government — whether they deal through the Privy Council Office — has to set up a system acknowledging the financial and legal obligations it has to these modern treaties. The government has to make the commitment. If there is a financial commitment, the government has to set aside funding. We asked the government to set up a special fund for the specific claims. That fund will be accumulative to a point of $3 billion to deal with claims. That is how the government should deal with these treaties.
If you go back to the Proclamation of 1763, it clearly indicated that First Nations people were nations. They recognized them as nations. The government was to deal with these people in a ``nation fashion.''
Senator Dallaire: It was a better deal than the French Canadians got at that time.
The Chair: You have not done too badly.
I want to thank you, Mr. McKay, for coming here and enlightening us with your views as to how to improve the implementation process of the modern treaties. It is a challenge that the committee has undertaken. I can assure you that the quality of membership on this committee should provide the recommendations to government that will reflect the recommendations that you have brought forward in your excellent report, as well as those that have been brought forward by other modern treaty signatories and the coalition.
Is there any other business, colleagues? Being none, thank you again Mr. McKay.
Mr. McKay: On behalf of the Nisga'a Nation, thank you very much for the opportunity.
The committee adjourned.