Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 12 - Evidence
OTTAWA, Tuesday, April 29, 2008
The Standing Senate Committee on Aboriginal Peoples met this day at 9:37 a.m. to examine and report on 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 morning, colleagues and witnesses.
From time to time, this committee invites organizations to speak to us about the particular challenges they face and how this committee can assist them. We are fortunate to have with us today representatives from two organizations, Manitoba Keewatinook Ininew Okimowin and the Gitxsan Nation from Canada's West Coast.
I will introduce the senators present. We have Senator Hubley from Prince Edward Island; Senator Gustafson from Saskatchewan; Senator Peterson from Saskatchewan; and me. I am privileged to chair this committee. I am originally from Manitoba, but was appointed to the Senate from the province of British Columbia.
Joining us today during our first session, from Manitoba Keewatinook Ininew Okimowin, are Grand Chief Sydney Garrioch; Chief Shirley Castel, Mathias Colomb Cree Nation; Kevin Carlson, Assistant to the Grand Chief; and Louis Harper, Legal Political Advisor. With a title like that, he must be a great adviser.
I thank you for coming today. We look forward to hearing your presentation, Grand Chief. It will become part of the record here in Ottawa, and hopefully we can help you in some of the challenges you face.
Sydney Garrioch, Grand Chief, Manitoba Keewatinook Ininew Okimowin: I thank the members of the Standing Senate Committee on Aboriginal Peoples for the invitation and allowing us to appear. I am happy to make a presentation in the matter of examining and reporting on the federal government's constitutional, treaty, political and legal responsibilities of First Nations, Inuit, Metis and other matters generally related to Aboriginal peoples of Canada.
We thank the Standing Senate Committee for allowing the team to make a presentation in regard to our submission. Chief Shirley Castel from Matias Colomb Cree Nation will discuss the soil contamination. Kevin Carlson will continue after I speak, followed by Louis Harper and Shirley Castel.
Tansi, Boozhoo, Edlanet'e. Good morning. On behalf of 53,000 First Nations citizens of the 30 northern Manitoba First Nations represented by the Manitoba Keewatinook Ininew Okimowin, MKO, I am pleased to share MKO's views on Canada's treaty, political and legal obligations to First Nations and First Nations citizens.
MKO wants to share four principles important to this committee's consideration of our treaty, political and legal relationship with Her Majesty the Queen in the right of Canada: the treaty relationship and the joint commitment to nation building; our laws are in our language; Keewatinook Ininew Okimowin; and consultation, justification, accommodation and consent.
The treaty-making process acknowledges and recognizes our Creator-granted sovereignty and authority within our traditional homelands. The combined traditional homelands and territory of the MKO First Nations covers almost three quarters of the lands and waters of the province of Manitoba and includes lands within Ontario, Saskatchewan, the Northwest Territories and Nunavut.
The MKO First Nations entered into Treaty No. 4, 1874, the Qu'Appelle Treaty; Treaty No. 5, 1875-1910, the Winnipeg Treaty; Treaty No. 6, 1876, the treaties at Fort Carlton and Fort Pitt; and, finally, Treaty No. 10 of 1908.
The treaties establish a relationship that is intended to reconcile the Aboriginal title, the MKO First Nations, to our own lands and traditional territories. The treaty medal that today symbolically represents MKO confirms our joint commitment to nation-building that is bound by our promises of sharing, peace and good will. It is founded on principles of mutual faith, recognition, honour and respect.
The principles that guide our government, community organization and social order are expressed in the Cree, Oji- Cree and Dene languages. Therefore, our laws are literally within the languages of the MKO First Nations.
Each MKO First Nation continues to exercise its jurisdiction and law-making processes in accordance with its customs, traditions, principles and beliefs. The MKO First Nations have also entered into other treaties and agreements with governments, including the modern-day treaty known as the Northern Flood Agreement. The MKO First Nations and MKO are working to implement fully the intent, terms and provisions of these treaties and agreements, and to establish the governing processes and structures provided for within these treaties and agreements.
I will ask Mr. Carlson to continue.
Kevin Carlson, Assistant to Grand Chief, Manitoba Keewatinook Ininew Okimowin: The MKO First Nations exercise community decision-making processes based on our customary law, culture and beliefs. For example, the Pimicikamak Cree Nation and other MKO First Nations have passed comprehensive laws regarding elections, the development and passage of laws through direct community involvement, the management of land and wildlife and other things.
Collectively, the MKO First Nations exercise this authority as Keewatinook Ininew Okimowin, which translates from the Cree language into ``Northern people's government.''
The MKO First Nations cannot and will not accept that Her Majesty or the Government of Canada has, or ever had, the capacity to unilaterally alter or terminate our sacred relationship through subsequent domestic legislative and constitutional enactments. The MKO First Nations do not recognize that the Government of Canada acquire any right through the treaties or the Constitution of Canada to make and impose a system of foreign laws upon our people, whether through the courts, commissions or tribunals.
Her Majesty consulted with our nations to reconcile our Aboriginal title, and sought our consent to share our ancestral lands and resources with settlers. Consultation must take place and our consent is required before changes to the terms of our treaties or the imposition of Canada's domestic laws will be accepted by our nations or by our people. Consultation and consent are binding principles of the treaties. The treaty relationship can be modified or affected only following consultation and with the joint consent of the treaty signatories.
To give effect to the treaty relationship and uphold the honour of the Crown, MKO advises the Standing Senate Committee on Aboriginal Peoples that Canada must: recognize the inherent sovereignty of each of the MKO First Nations; reflect the sacred and joint relationship established by the treaties entered into between the MKO First Nations and Her Majesty's government; respect and recognize the contemporary systems of First Nations government, decision-making and community organization established in accord with the customary law, principles, values and beliefs of the MKO First Nations, and which systems we continue to exercise, develop and implement on our own terms; recognize and leave room for the exercise and further development of the authority of First Nation governments as reflected in our existing systems of customary laws and the legislation established by individual MKO First Nations through government-to-government agreements involving the MKO First Nations and through the continuing development of Keewatinook Ininew Okimowin; and ensure that the actions and decisions of Canada do not unjustifiably infringe the rights of the MKO First Nations that are recognized and affirmed by section 35 of the Constitution Act, 1982, in part, by ensuring that Canada fully implements the Crown's duty to engage in a consultation in accord with the doctrine established by the Supreme Court of Canada.
To give effect to, preserve and promote the treaty relationship's doctrine of mutual consent and reconciliation, Canada must not impose Canada's vision of the treaty relationship and Canada's standards for reconciling this relationship with government and corporate actions; Canada must not impose arbitrarily narrow time frames during which the elected leadership of First Nations must respond to the demands of the government, such as in the case of responding to notices of a pending federal government decisions; Canada must not create uncertainty in First Nation authority and community decision-making processes by imposing the jurisdiction of the federal government or institutions over matters that would otherwise be addressed by the elected First Nation leadership and through community-based processes; Canada must not impose any review of the First Nation customary laws, beliefs, values and principles by the federal government or federal institutions without a corresponding requirement for the federal government to take into account how the MKO First Nations perceive inherent, treaty, constitutional, individual and collective rights, as well as First Nations' concepts of transparency, access, and accountability; Canada must recognize that a source of many issues affecting the treaty relationship arise directly from the federal government policies, including the significant and persistent under-funding of education, social services, housing and infrastructure that are administered under the authority of First Nation governments and that are beyond the capacity of most First Nations governments to remedy.
The MKO approach is to seek solutions where First Nations governments and our citizens develop and exercise systems to protect the human rights of First Nations citizens in accord with the customs, traditions, principles and beliefs of the First Nations; to address and resolve the persistent inequities between First Nations communities and non-Aboriginal Canadians in respect of the access to basic community services that may give rise to complaints by the First Nations citizens; and to ensure that the relationship established by treaties and agreements is honoured, upheld and enforced.
With our recommendations, I will turn to our legal counsel, Louis Harper.
Louis Harper, Legal Political Advisor, Manitoba Keewatinook Ininew Okimowin: On page 6 of our presentation are the recommendations of MKO.
It states that the Standing Senate Committee on Aboriginal Peoples should report and recommend that the Government of Canada honour its treaty and constitutional obligations by: upholding the honour of the Crown; recognizing that the distinctive relationship between Canada and First Nations is rights-based and is intended to reconcile the original Aboriginal title; ensuring a meaningful reconciliation of Aboriginal title through implementation of treaty promises and commitments in accord with the spirit and intent of treaties and in a spirit of good faith and compromise; and recognizing the inherent authority of First Nation governments and institutions that are established in accord with the customary laws, values, principles, beliefs and languages of First Nations.
We recommend that the Government of Canada enact no legislation that will impose the authority of the federal government and its institution upon the customary laws, legislation, acts and decisions of First Nation governments, their officials or employees; and revise the legislation of Canada to provide conclusively that authority of First Nation governments shall not be impacted or infringed upon in respect of any matter that affects or is in relation to the inherent authority of the First Nation or the application of customary law of a First Nation.
We recommend that Canada faithfully exercise its duty and obligations as a trustee under section 91.24 of the Constitution Act, 1867, and the Indian Act, until such time as First Nations and Canada agree to a constitutional and legislative mechanism necessary to repeal or replace the present Indian Act; and that by entering into Canada-First Nation fiscal relationships and agreements that will ensure the operational viability of First Nation educational, health, social, and community services, facilities and infrastructure in accord with standards acceptable to contemporary Canadian society.
We recommend that the Government of Canada engage First Nations in a process of consultation, justification and accommodation in accord with the doctrine established by the Supreme Court of Canada in R. v. Sparrow, and subsequent decisions, in respect of any act or decision that has impacted or infringed or may impact upon or infringe the rights of First Nations recognized and affirmed under section 25 and section 35 of the Constitution Act, 1982; and that the scope of the process of consultation, justification and accommodation include: all legislation and regulations enacted by Parliament or enacted by the provincial legislatures in the absence of clear federal powers since at least 1982 that continue to impact upon or infringe the authority of First Nation governments and the rights of First Nation citizens, including legislation defining the status of First Nation citizens or affecting First Nation authority over the protection and care of First Nation children and families; and all federal authorizations, allocations and designations issued prior to 1982 that have continued to impact upon or infringe the rights of First Nations since 1982, including those federal authorizations, allocations or designations related to natural resource developments such as hydroelectric projects, mining projects and forestry projects.
MKO endorses in principle certain of the recommendations of the Standing Senate Committee on Legal and Constitutional Affairs in its December 2007 final report, Taking Section 35 Rights Seriously. Those recommendations include: recommendation 1 that the Government of Canada take immediate steps to introduce legislation to include a non-derogation clause within the federal Interpretation Act; recommendation 2, that the legislation to amend the Interpretation Act also provide for the repeal of all non-derogation clauses relating to Aboriginal and treaty rights included in federal legislation since 1982; unequivocal direction that any non-derogation provision in the Interpretation Act is to be ``read in'' as a provision binding the Crown in all its federal statutes; a clear provision that any non-derogation provision in the Interpretation Act will be constructive in terms of processes and mechanisms that will be established, implemented, monitored and enforced, as distinct from merely presumptive in respect of the correctness of any action or decision of the federal government; and the development of the judicially reviewable and enforceable code of conduct and the policy and procedure applicable to all of the Government of Canada to give practical effect to the inclusion of a non-derogation provision in the federal Interpretation Act.
That concludes our submission. The Grand Chief will now introduce Chief Castel.
Mr. Garrioch: We have attachments to our paper submission as well, for the record. The Mathias Colomb Cree Nation Chief, Shirley Castel, will speak to an attachment in regard to soil contamination.
The other two attachments record that the federal government failed in its obligation to attempt to resolve the matters before. These are the only three examples we have, but we are working on other areas.
The attachment from the Fox Lake Cree Nation concerns land claims. Members of the Fox Lake Cree Nation were forced off their land by the Manitoba hydroelectric development in the Gillam area. Minister Chuck Strahl was addressed on this issue a number of times, and also the previous ministers, in regard to the land in question. We are still trying to obtain a land resolution to the matter.
The other attachment is about the Sayisi Dene relocation claim. Between August and September of 1956, the Department of Indian and Northern Affairs forcefully relocated the members of Sayisi Dene First Nation by airlifting them from their community at Little Duck Lake, Manitoba, to North River, Manitoba, and later to the camp tent at Churchill, Manitoba. These people are still waiting for acceptance of their claim, as well as the negotiations, and we do have that claim in the recommendation.
Now I will pass it over to Chief Shirley Castel to deal with soil contamination.
Shirley Castel, Chief, Mathias Colomb Cree Nation, Manitoba Keewatinook Ininew Okimowin: Thank you for allowing me to do a presentation on our community. The issue with the Mathias Colomb Cree Nation is a long- standing one — the emergency replacement of government critical infrastructure and housing.
Between 1953 and 1989, soil in the main town site area of Mathias Colomb Cree Nation at Pukatawagan, Manitoba — including the school, government, community and commercial facilities — was contaminated by leakage and spillage of an estimated 570,000 litres of diesel fuel and heating oil. This diesel fuel contains PCBs that are cancer- causing agents.
Canada accepted full responsibility for addressing the soil contamination in an April 1997 agreement with Manitoba Hydro. Since 1996, several homes valued at $3 million and Mathias Colomb Cree Nation government, community and commercial facilities, with an original construction cost in excess of $15 million, were demolished as a direct or indirect result of soil contamination.
Mathias Colomb Cree Nation asserts that Canada's delay in addressing soil contamination, Canada's failure to replace homes, offices and infrastructure, Canada's reduction in funding for operations and maintenance related to the delisting of affected or demolished assets and the use by Canada of $7.5 million of band-based capital funding to defray the $16 million cost of replacing the Saskatew School are directly responsible for Mathias Colomb Cree Nation being placed in co-management; for the loss of eligibility for numerous federal programs, initiatives and loan guarantees; and for the resulting significant decline in community governance, public safety, health and quality of life.
Contrary to the April 1, 1997 diesel site remediation agreement, Canada has not prepared a remedial action plan for approval by Mathias Colomb Cree Nation to replace the homes and 1,839 square metres of government infrastructure, community and commercial facilities that were affected. Canada carried out $12 million of the estimated $18 million in remediation activities identified in a 2000 report by Toxcon Health Sciences Research Centre, although the extent of contamination and total remediation cost identified by Toxcon have each increased due to Canada's delay.
Canada's failure to replace lost homes, buildings and government critical infrastructure has resulted in the present emergency in community governance, public safety and health. Mathias Colomb Cree Nation has attempted to conduct government functions — including the delivery of statutory programs and services and the keeping of government and financial records — from two trailers that were previously condemned by provincial labour officials, and which are not presently connected to water and sewer services.
Mathias Colomb Cree Nation has no public safety office, no emergency response centre, nor any effective emergency preparedness capability as the local authority responder. Mathias Colomb Cree Nation has not constructed any new, band-funded housing units since 1989 and has not constructed any new CMHC housing units since 1995.
Citizens of the Mathias Colomb Cree Nation live in overcrowded conditions that The Globe and Mail described in a December 21, 2005 article as ``Packed in on a toxic Manitoba reserve.''
The accounting firm of Myers Norris Penny resigned as Mathias Colomb Cree Nation's co-manager.
On the second page of the attachment, the buildings in the picture are marked. The red Xs are the ones that have all been condemned and the school that was replaced. That picture shows the centre of Pukatawagan. On both sides of the community, houses have been constructed. The children walk through this area every day. This centre is desolated. There is nothing there, basically. We have endured that situation for over 20 years now.
We have two recommendations. To address the present emergency in community governance, public safety and health at the Mathias Colomb Cree Nation, the Minister of Indian Affairs and Northern Development, first, must develop a remedial action plan for approval by Mathias Colomb Cree Nation to replace homes and 1,839 square metres of Mathias Colomb Cree Nation government critical infrastructure, community and commercial facilities that were demolished as a direct or indirect result of soil contamination; and second, enter into a contribution agreement for the approved remedial action plan no later than December 31, 2007. That was last year; this document is another presentation to other ministers.
In the corner of the second page, you can see the original tanks where the diesel spill came from. The spill is still migrating today because it has not been fully cleaned up. We are still dealing with the damage done to our community. It has forced us into co-management and band-aid solutions throughout the years.
We have had construction within our community but, again, the damage forced us into co-management. These are the things that we are dealing with. You also heard of the fire that spread out nationally where I lost three of my grandchildren. That is part of the diesel contamination, co-management and the whole government that has not assisted thoroughly within Mathias Colomb Cree Nation. It is part of the overcrowding that has occurred within my community, and I fear for the safety of my people because they live in overcrowded homes. We have not been able to build homes for the past 20 years.
These are the real life stories of Mathias Colomb. Our people in our community are suffering. It is not that we are not able to stand up for ourselves. We have built companies within Mathias Colomb to try to reduce the poverty in our community by providing as many jobs as we can through creativity and employment.
I thank the Department of Human Resources and Social Development for supporting the University College of the North and other programs. We have joint ventures with outside organizations but funding is only limited and does not deal with the real issues of the contamination and co-management that has been forced upon us. Soon, we will need to deal with third parties because of this issue. It continues to drive our community under.
I present this case to this Senate committee with the hope that you will support the recommendations in our document. We would like to have what Canada has promised, along with Manitoba Hydro, to Mathias Colomb — replacement of what was lost. We are not asking for anything more than to replace what they have damaged.
The contamination is migrating and we are surrounded by a body of water that is our drinking water. I am certain the contamination has migrated into the drinking water. We have high cases of cancer within our community. It is critical at this stage for Canada to intervene and come to support our community. Mathias Colomb is not the only community that faces these difficulties. Other communities as well have been abandoned, as I see it, by our government.
Our grand chief talks about the treaties but where are they? I ask you today: Where are they? Where is the support? All I see is suffering in my community.
Yes, we are proud First Nations people but how can we carry on any further with the amount of financial damage to our community? In today's world, we need that dollar to survive. If we do not have that dollar, we will be forced into third party co-management and Mathias Colomb will have no say in its future.
We need your support of our recommendations for the replacement of the buildings and houses and the clean-up of the environmental damage in our area. There should be no more piecemeal clean-up because the diesel fuel is migrating. The cancer rates are increasing and there are skin diseases, other disorders and lost pregnancies. The numbers are increasing every day because the soil is contaminated with cancer-causing PCBs that are buried underground; and the spill added to that contamination.
I thank the committee for listening to my case. Hopefully, within the next few days or month, we will hear from someone. I have been presenting this information for a long time.
I have been a political leader in my community for many years as a councillor and chief. It is a difficult task being a leader and not being able to do anything for the community, especially replacement of housing. There are 20 or 30 people who come to my office every day asking for housing and I know I cannot do anything because of the financial struggle that Mathias Colomb faces because of this environmental damage placed upon us and the co-management that we are forced into.
There are so many other issues, such as health services, social services programs and education, which are supposed to be mandatory dollar-for-dollar. This environmental issue is the most important one at this time for Mathias Colomb. We want it rectified so we can bring closure to this matter. We have not been able to do that because the government has not lived up to its responsibilities, even though they signed a document.
Brenda Kustra, Director General of Governance at Indian and Northern Affairs, and Bob Brennan, President and CEO of Manitoba Hydro, signed an agreement that they would fully accept responsibility for the environmental damages within Mathias Colomb. However, they have not done so. As of today, clean-up has been piecemeal only.
Every year, the government puts $1 million into this clean-up but it is still sinking because of the contamination that continues to migrate. We are surrounded by a body of water, as I said, and the contamination is migrating. You have to see it for yourself firsthand to understand what I am talking about. I invite you to come to our community to see for yourselves. In pictures, you can see the destruction but when you see it in person, you will see the destruction better.
Thank you for listening to me and I have hope in my heart for my community, for the children and for the unborn that you will take these recommendations seriously.
The Chair: What is your population, Chief Castel?
Ms. Castel: The population is 3,000 but on-reserve it is about 2,600.
The Chair: Where are you geographically located in Manitoba?
Ms. Castel: The closest urban areas are about 100 kilometres away — The Pas and Flin Flon. Going north, it takes about 12 hours by train or about 45 minutes by plane.
The Chair: Your access is either by train or by plane?
Ms. Castel: Train, plane and winter road access.
Senator Hubley: It is important that you have these opportunities to tell Canadians about the conditions in your community and what you are dealing with. Chief Castel, can you tell me a little more about the spreading contamination and about how you are rebuilding and moving some of your facilities to cleaner areas, if that is happening, or are you still required to use the land?
Also, please comment on how your people are managing, and if part of this destruction is taking their livelihood and their opportunities for economic development away from them. The water issue is critical, as well, if your people depend on the water systems for livelihoods, food, et cetera.
Can you tell us again, chief, a little more about the problems you face day to day?
The Chair: This comment is not a reflection on the present question. However, I ask senators to keep questions short and witnesses to keep answers as tight as possible. I want to fit in as many questions as possible because the area of subjects to cover is huge.
Ms. Castel: Like I said, the school has been replaced. The contamination was originally found underneath the school. An extension was added to the school and a beam was not secured properly. It fell through the gymnasium floor. We were lucky no one was there. When it fell through the gymnasium floor, the fumes were exposed.
Before that, the children, teachers and education staff complained of headaches, nausea and miscarriages. There were many health issues that one given year. I was the health director at the time. We had two miscarriages that year, which is high within our community. I asked a doctor to conduct research. Unfortunately, she was moved to the Northwest Territories so she was not able to complete the research.
Throughout those years, all the buildings market with Xs in the picture have been removed; they are no longer there. The yellow Xs are the school that has been replaced. When we talk about economic development, as you can see, our main office was destroyed. We had the restaurant, post office, convenience store, motel and laundry mat. They were all taken away. Today, they have not been replaced.
You also see the nursing station. We have replaced that through our own resources. When I was health director, we replaced it through a bank loan. At that time, Health Canada said ``no'' but we did in it anyways. We knew we needed the facility to service our people. A few years after that, Health Canada came through and gave us a portion of the replacement of that building in the amount of $800,000. However, it cost more for the health centre itself and also the equipment.
Some teacher units have been replaced. Again, they are mobile homes, basically; they are not built right on site. They deteriorate faster. Their lifespan is not long-term.
For the water and sewer system, they cleaned the water; they flushed out the water system, I think, in 1998. However, it is time to have it cleaned again. We also need an extension of the water and sewer itself. It has not been expanded further into the community. We are using septic and water tanks. I hope I answered your question.
Senator Hubley: Yes, you did. Thank you.
Senator Peterson: Over what period did this leakage and spillage occur? It is a lot — about 3,000 barrels of fuel oil. Were these tanks surface or underground?
Ms. Castel: They were surface tanks. Before the school or that area was built, Manitoba Hydro had their diesel generating station there. Of course, then the Manitoba Hydro land line came in. After that, the school was built there and they had the same thing, diesel tanks. You see these barrels on the side there. The Manitoba Hydro tanks leaked throughout a number of years. Then the Department of Indian and Northern Affairs ran the school and those tanks were still leaking. They pretty well saturated the ground.
Senator Peterson: Therefore, the remediation then was to remove all the contaminated soil?
Ms. Castel: To remove the contaminated soil and to replace the buildings. However, the buildings, except for the school, have not been replaced.
Senator Peterson: They started, though: $12 million of the estimated $18 million remediation occurred. Why did it stop? Was it completed? Was all the contaminated soil removed? Your picture shows it was hauled away somewhere. Is that right?
Ms. Castel: All the buildings you see are no longer there. They have been condemned or taken down. There are no more buildings there. The contamination occurred back in the late 1960s and early 1970s when Manitoba Hydro first came into our community. The reason it is $12 million is because the clean-up has been piecemeal every year; $1 million here, $1.5 million there. The clean-up has been taking place over 20 years now, and growing. It has not been fully cleaned up.
Senator Peterson: You cannot or should not build new buildings if the soil is still contaminated. Will you not have the same problem again?
Ms. Castel: Some of this area has been cleaned, such as the site where the old school was. I will show you more pictures. On the second page of the pictures, you see the digging that is happening. They dig right to the bedrock. They wash the rock, haul out the contaminated soil and bring clean soil into that area.
Most of this area here that you see has been cleaned, but our community is on a down-slope on both sides because we are surrounded by a body of water. Therefore, the contamination has migrated farther into the housing development area. For the clean up to continue, we need to make the decision to bring down these houses or move them. They are basement houses. We must relocate them somewhere, but then the issue is always funding. What do we do? We cannot tear down houses where people are living if we do not have any place to move them to. We need to make a decision to move them out of the community into a nearby town like Flin Flon.
We do not have the housing capacity within the community to house them. The people in our community do not have a choice. They live in contaminated homes in this environment. It is unfair especially for the children because they do not have a choice. Where do I send my people when I have no place to send them?
The Chair: During your presentation, grand chief, you made mention of repealing the Indian Act. Also, you put into question the honour of the Crown in living up to the terms of treaties.
The problems we face, from my perspective, is the inability of the Department of Indian and Northern Affairs or the Department of Indian Affairs and Northern Development to live up to the terms of the treaties and honour the position of the Crown. I do not think it is because the people in the department do not want to live up to the terms of the treaties but rather, the design or the evolution of INAC as a department is not able to deal with them.
We have problems with fresh drinking water. There were close to 200 instances at one stage and they have been reduced considerably. However, we then see the situation at Mathias Colomb Cree Nation, which is a disaster. Provincial governments do not seem to be any better than INAC or the federal government. This is a clear case where the First Nations obviously did not contribute to this problem. The problem was caused by Manitoba Hydro.
Approximately how many First Nations communities do you have in MKO?
Mr. Garrioch: We have 30 First Nations communities in northern Manitoba that are members of Manitoba Keewatinook Ininew Okimowin.
The Chair: How many are not members?
Mr. Garrioch: Under the Manitoba Municipal Act, there are probably another 25 or more Aboriginal communities beyond the urban industrial communities like Flin Flon, Thompson and The Pas.
The Chair: Are they largely one linguistic group? Would you say the large majority is Cree?
Mr. Garrioch: The other Aboriginal communities belong to the Northern Association of Community Councils under the Northern Affairs Department. Most people in those communities are Cree.
The Chair: The situation of INAC trying to deal with 611 First Nations across the country is not working. I believe that somewhere along the line, we must look at dealing with treaty groups. We gain strength in numbers. Historically, INAC evolved to deal with these 611 communities, or whatever the number is, right across Canada.
You have the experience, the wisdom and the knowledge. MKO covers treaties 4, 5 and 6. Do you think it would be beneficial if the government dealt with treaty groups as opposed to dealing with the smaller communities?
Mr. Garrioch: There are different ways to consider that question. Treaties have different structures. For example, treaty 4 communities are in both Saskatchewan and Manitoba. Working with two provinces is difficult, given the division of powers in the BNA Act. It is a complicated matter to work in that fashion. Treaty 5 covers three provinces — Saskatchewan, Manitoba and Ontario. Therefore, to consider working with those groupings would be challenging.
I mentioned that MKO deals with four treaties covering 30 communities. It may be advisable to go through the treaty setting to deal with common issues like the outstanding land or resources disputes in that way.
You mentioned the Indian Act and whether it is advisable to repeal it or replace it. There are certain things under the Constitution, as we mentioned, such as section 35 where we want protection. The fiduciary duty of the Crown also needs to be considered in the Indian Act provisions. However, those matters need to be discussed among various Aboriginal groups and the federal government to be able to deal with them in a cooperative and collaborative way.
Section 37 also failed do what it is supposed to do, but we must keep trying to find solutions. We cannot stop talking. We need to confront the problems in the best possible way to deal with them.
That is my comment on the question.
The Chair: With regard to resource revenue sharing, do First Nations people in northern Manitoba receive a share of resource revenues? There are various resources there such as hydro electric power and mining.
I will use Manitoba as an example because the majority of your area is in Manitoba. Is the Manitoba government prepared to work towards self-sufficiency for your people by sharing in the revenues that come from the land?
I am not sure about your treaties, but some treaties clearly state that First Nations are to share in the resources of the traditional lands that are established for them.
Mr. Garrioch: Currently, I would say there is no resource sharing in the system. That is why we are confronting that issue. The federal government has a fiduciary duty based on our treaty relationship that we share in our resources. However, the federal government created another law governing this, the Natural Resources Transfer Act. As First Nations, we maintain the act is unconstitutional. The federal government did not discuss with us, or involve us in, transferring those resources and lands to the provinces.
We maintain that the federal government must step up as leaders to deal with the provinces and the territories. We are trying to maintain resource sharing as Aboriginal title. We assert that we have a right to resource sharing.
The only thing that exists is based on trap line areas that were divided in 1945. An unconditional grant was passed to the provinces based on the wildlife resources that they extracted.
Manitoba Hydro pays the Province of Manitoba in the neighbourhood of $110 million per year as a user's fee for the water resources. First Nations people do not share that money. The same is true for mineral and timber resources. There are a lot of minerals in northern Manitoba and all the timber that is harvested for pulp and paper mills. We have no access. We maintain we should have the right to share the natural resources revenue.
Senator Gustafson: You indicated that the accounting firm of Myers Norris Penny resigned. What was their reasoning or why did they resign?
Ms. Castel: The reason for their resignation is that they could not manage the co-management agreement — they were our co-managers. There was not enough funding provided to administer Mathias Colomb Cree Nation for that given year. There is not enough money for any co-manager who works for us under the co-management agreement enforced through INAC.
For example, we recently had to lay off staff. We are decreasing employment because of co-management and because of these environmental issues. The list goes on. They are dragging our community under.
Right now, I have five staff to service a community of 2,500 and administer programs. It is difficult. I am my own secretary. I am a Jill of all trades to administer all I must administer as a chief.
Senator Gustafson: Do you perform your own accounting?
Ms. Castel: Yes, that co-management agreement is the reason why Myers Norris Penny resigned. They could not handle the situation because we were going into a deficit. The co-management agreement states that the co-manager should see a surplus within the community, but the only way to achieve that is to lay off more staff. Pretty soon, we will lay off our public works people and we need them.
The Chair: This situation is a complex one. We are dealing with the honour of the Crown in regard to terms of treaty and resource revenue sharing. Education was also brought up. There are so many issues to consider.
I thank Chief Castel. Obviously, she has an urgent need to resolve some of these issues because they deal with drinking water and the health of the community.
I cannot make you any promises, Chief Castel, other than the promise that we will definitely keep your file in mind. We appreciate the invitation to your community. I am not sure that we can go there, but now that we have the invitation, we will discuss it as a committee. I see members of the committee nodding their heads in the affirmative.
We have a lot of work to do but we need your support as well. What often happens when we work with First Nations is that various groups make little side deals that undermine the bigger picture. We need to rise above that situation. This is why the Senate is an ideal place for these things to happen, because we operate, under most circumstances — Senator Gustafson, you may not agree — in a non-partisan manner. However, there are days when we have our challenges.
We look forward to working with you. Keep us up to date. If there is anything you think we can do as a committee, do not hesitate to contact the clerk of the committee. You have excellent senators here: Senator Sibbeston from the Northwest Territories, who has a vast understanding; Senator Hubley, who is part of the steering committee and always an excellent member; and Senator Peterson and Senator Gustafson from Saskatchewan, both of whom have a good understanding of First Nations challenges. Let us work in a positive manner and hopefully we can resolve some of these things.
Senator Sibbeston: The First Nations people coming before us come with hope that something will happen. They have told us their story, and it is a sad story in many ways. They come to the Senate, but we do not have the power. They need to talk to the minister and officials of the Department of Indian and Northern Affairs. That is where decisions are made in government.
We can help their cause by writing or making a report, and by making recommendations to the government that they deal with the situation — that they take the stories and the pleas that we have heard seriously and do something. That is the sort of thing our committee can do.
Maybe we can undertake, if members are agreeable, that we will, as a result of this meeting, write a report and file it in the Senate with a view to bring the whole matter of your concerns to the attention of the federal government — particularly the Minister of Indian Affairs and the Prime Minister — so that we will do the best we can to ensure your case is heard. Perhaps in some small way, our actions can lead to the government dealing with these issues, focusing on them and bringing attention to them.
Chair, are you agreeable?
The Chair: I never said it here, but I will speak to the minister, and possibly the Prime Minister, on this matter. I can guarantee that I will speak to the minister responsible for INAC, Chuck Strahl. We will discuss further what Senator Sibbeston has also recommended this morning.
I welcome our next panel of witnesses from Gitxsan Nation, British Columbia: Elmer Derrick, Gordon Sebastian and Catherine Palmer.
Mr. Derrick, please proceed.
Elmer Derrick, Chief Negotiator, Gitxsan Nation: Thank you, Mr. chair. Before I make my presentation, I ask my colleagues, Gordon Sebastian and Catherine Palmer, to introduce themselves.
Gordon Sebastian, Executive Director, Gitxsan Nation: I hope you have questions that will assist each of you in your work. I have a question for you. Do you have a mandate to work with the Gitxsan hereditary chiefs? If you want one, we would like to help you develop one.
My name is Simooghet Ludkudzeewus. I have 571 members in my house group. We own a large tract of land that is known publicly as Crown land. It is not a reserve. It is about 300 square kilometres located in the Suskwa Valley. Our goal of the Gitxsan hereditary chiefs is to take full control of resources on our 33,000 square kilometres of territory. Our strategy is to make decisions regarding our resource development. We have nine watersheds and we have numerous policies. Clearly, the federal mandate in terms of dealing with the Gitxsan hereditary chiefs must be changed. We view the 33,000 square kilometres of territory as lands under section 91.24 of the Constitution Act, 1867, not as reserves.
At this time, I thank you and ask you to please listen carefully to what Mr. Derrick has to tell you today. He has a good plan.
Catherine Palmer, Research Analyst, Gitxsan Nation: I am honoured to be here today as part of the Gitxsan hereditary chiefs delegation. I am an independent consultant working out of Vancouver, British Columbia, for a variety of Aboriginal communities, government and industry. I have been fortunate over the last 10 years to have an association with the Gitxsan chiefs. I worked as a treaty negotiator for the Province of British Columbia and was there in 1998 when the Gitxsan entered into bilateral negotiations with the province to try to achieve reconciliation as was discussed in the Delgamuukw decision in 1997. I was there when they re-entered treaty negotiations in 2001.
They have been in treaty negotiations for over 10 years. It is clear there is a limited mandate on the part of the federal and provincial Crown. I have been fortunate to witness and to learn about their governance structure. I have always been struck by how clearly organized it is. There are two limited mandates to reconcile the Gitxsan with the Crown. Hopefully, we will be able to talk about how that might be rectified today.
Mr. Derrick: I had some of the staff members copy the presentation I was planning to read. I apologize for not having this presentation translated into the other official language but I hope it will be circulated after translation.
I am glad that this Senate committee has agreed to meet with us today. We had a similar opportunity to meet with representatives of your committee in Prince George a few years ago. We note that your work on specific claims reflected the representations made by the Gitxsan, and we thank you for that. It is a pleasure to meet with you again. We know that the committee undertakes a great deal of important work that would enable the Aboriginal leadership to make progress at the community level to address our social and economic needs. We thank the committee for taking the time to understand our issues and to study what can be done in cooperation with one another.
The issues that our communities face may seem insurmountable but, if we work together and bring our collective resources into play, we might succeed. It has been ten years since the Supreme Court of Canada made a ruling on Delgamuukw. The questions and issues that we raised in our legal challenge were straightforward. The responses from the courts were also clear. The Supreme Court of Canada told us to go back for retrial on the matter of title. The court also gave us direction to reconcile our pre-existence with Crown title.
Our explicit purpose today is to offer a challenge to this committee to establish a reconciliation process with the Gitxsan that would honour the direction of the court and that would allow the Gitxsan and the Crown to negotiate the fundamental issues of ownership, jurisdiction and governance.
From our perspective, the current processes are not working. The Crown spends billions of dollars every year on programs, negotiations and projects for Aboriginal people, yet fundamental issues of ownership, jurisdiction, title and governance remain unresolved. We know that court costs are staggering.
We are reminded by taxpayer groups that Canada spends about $10 billion to look after section 91.24 responsibilities of the Constitution. Where is this money spent? If the Gitxsan were to receive its fair allocation of this largesse, it would be eligible for more than $90 million. Currently, our organizations receive less than one third of that amount. I know that Gitxsan territories are a long way from Ottawa and the Vancouver federal offices but the inequity should not be that stark. If we were to receive our fair share, our organizations might be able to deal with the basic needs of the Gitxsan people.
The Crown needs to stop fighting with Aboriginal people. When we went to the Supreme Court of Canada, one of the justices casually asked his colleagues if anyone could recall a time when the Crown supported Aboriginal people before the courts. They all answered in the negative. There is something wrong with that picture. Having responsibility for section 91.24 of the Canadian Constitution must mean more than fighting the Indians.
Attitudes that we, as leaders from the Aboriginal community, encounter are difficult to understand. The only difference that we people have is the colour of our skin. That difference does not go deep for many of us yet we encounter hostile public servants. The attitude that the Crown has the only solution is all-pervasive. Crown negotiators that we encounter simply dismiss what we present as non-viable. We wonder about people who get up every morning and think about ways to say no to us.
I have taken the tack of asking people why they are so mad. Does someone in the system tell them to get mad at Aboriginal peoples? Why do public servants spend so much time finding ways not to be able to work together? I have heard that there are floors of lawyers at 10 Wellington Street in Gatineau that spend all their time strategizing to frustrate our efforts to help ourselves. Surely there is a better way.
Crown mandates under existing processes are limited and unyielding. The Gitxsan are told that the Crown will only recognize Gitxsan rights and authorities over future Gitxsan lands, which are essentially Indian reserves and only slightly bigger than what we have now. The Crown has no policy on how to accommodate a hereditary system. The Gitxsan are told by the Crown that they must accept a constitution similar to a band council to be recognized as a government.
My presentation will focus on the following key areas. First, I will provide you with a brief history of the Gitxsan Nation, and give you some background on our lands and resources and how we govern ourselves. I will then briefly review the relations between the Gitxsan and the Crown over the past 200 years, and provide you with examples of viable private partnerships that the Gitxsan have forged during that same time period. Third, I will talk briefly about why current government policies and mandates will not lead to reconciliation between the Crown and the Gitxsan. Finally, I will propose a solution, and request support from the Senate committee to work with the Gitxsan to initiate a pilot project that ultimately will lead to reconciliation.
The history, or the adaawk, of the Gitxsan goes back in time to the last ice age. Our history records events that take us back 10,000 years. Our history includes events like the great flood that the Christian Bible also records. Our history includes times when the salmon disappeared and the Gitxsan people starved. Our history records how the Gitxsan have had to adjust to influences of other people. Some people came into our territories with the explicit intent to disrupt our lives. We learned to deal with intruders and invaders. Our history reminds us how we welcomed visitors that respected who we are and the lands and resources that we own.
The laws, or ayookw, that have helped build our civilization over millennia continue to guide the Gitxsan people in their daily lives. Our laws are not written down nor are they changed when new governors come into power. Our laws work to accommodate changes that new societal values impose on all of us. These laws are placed in front of the citizenry every time we conduct our feasts. All of our citizens continue to be reminded of their personal and community responsibilities on a regular basis.
I will now talk about lands and resources. The lax'yip, or the lands and resources that the Gitxsan title covers, were affirmed by the Supreme Court of British Columbia in the 2002 Tysoe decision on Yal. The Gitxsan have not been conquered nor have we willingly forfeited the Gitxsan rights that the Canadian Constitution recognized and affirmed in 1982. We continue to work within the laws that different courts have clarified for us. We believe in the rule of law and we expect Canada to work within the law.
Our lax'yip has new management units to enable our title holders to work more efficiently with the Crown. We have more than 100 separate territories that Gitxsan house groups own and manage. However, in recent years, we have brought these territories under nine manageable units organized around watersheds. The nine watersheds are now working to help the title holders decide to what uses the lands may be put.
The plans that house groups are developing focus on projects that will enable the Gitxsan Nation to be sustainable. This management responsibility was recognized in the Delgamuukw decision as being part of the Gitxsan jurisdiction. The process of enabling our management units to work efficiently will help lessen the burden that the consultation and accommodation process seems to place on the Crown and the title holders.
The Gitxsan watersheds are currently operating on limited budgets as we do not receive financial support from agencies that should invest in this valuable work. The process of deciding to what uses the lands may be put requires a great deal of time and effort on the part of Gitxsan title holders. However, after the maps and substantiating data is put together, the consultation and accommodation process will be more meaningful and productive.
The Gitxsan lax'yip covers more than 33,000 square kilometres in northwestern British Columbia. The Supreme Court of Canada stated in 1997 that the Gitxsan title has not been extinguished. We do not believe that reconciliation involves relinquishing Gitxsan title to the Crown. The Crown has not conquered the Gitxsan and the Crown does not have enough beads and trinkets to entice us to forfeit our title.
The lands and resources that we continue to treasure have sustained us for 10,000 years and we are here to stay. The lands and resources are a critical part of our gwelx'yeinsxw, or inheritance, and the courts acknowledged this in paragraph 166 of the Delgamuukw decision. We need our lax'yip to continue to exist as Gitxsan people in this country. We cannot capriciously pave over our territories and create parking lots for big or little yellow taxis.
The Gitxsan governance system is alive and well. The system that enables the Gitxsan house groups to work together is guided by management principles and a framework that has been passed down from generation to generation. Values that guided the ancient Gitxsan are the same ones that current decision makers uphold. These values that guide us are now contained in formal policies that have been written down to enable the Crown and development proponents to understand the Gitxsan management framework. For the record, the Gitxsan have policies on water, salmon, forests, carbon credits and oil and gas. We are in the process of developing policies on wildlife and minerals.
The Gitxsan governance system has evolved over many centuries. Our civilized approach to taking care of our community has not simply come out of a piece of legislation. The ayookw, or the traditional laws that guide the Gitxsan people, have a solid foundation of fairness, honour, respect, truth, openness, inclusiveness, accountability and responsibility. The underlying principle of democracy as espoused by J.S. Mill, Aristotle, Plato, Machiavelli and others from across the pond is the same as what Delgamuukw, Guxsan, Sagemhiigookw, Denimghet, Gitludahlth and many other Gitxsan thinkers defend.
The Gitxsan governance system is taught continually to all citizens. Every child is taught about their responsibility to themselves, to family and to the community. When a Gitxsan child is born, they are referred to as guests and are treated as guests. Every Gitxsan person is taught about responsibilities to the family. As children reach certain stages they are expected to exercise their free will and either assume more responsibility or leave the responsibility to others.
As they advance in the Gitxsan governance system, they learn to leave their personal interests aside. People who become Simghiighet and assume the positions that hold title no longer have personal interests. The Simghiighet are charged with the responsibility of maintaining the histories, laws, customs, names, territories, resources, songs and other treasures. It is the main mission in their lives. You will all understand this concept as your oath covers the same commitment that you have made to Canada.
All Gitxsan citizens pay taxes into the coffers when feasts are held. All this payment is voluntary, but these transactions take place in the public domain. The commitment of public responsibility is there to be witnessed by all other citizens. People defend and protect their proprietary interests by paying their taxes. Women, men, elders and children all have equal voices in the Gitxsan governance system. No one is disenfranchised because of colour, sex, age or creed. People who are citizens but who live in other territories maintain their rights and responsibilities. They are not denied their rights. The process of renewal is civilized. There is no major turnover of governors that is left to the whims of a fickle and ill-informed electorate. The process of renewal happens when a governor passes on to the other side. Successors are chosen for their knowledge and their commitment to the community. People of limited means are not excluded from holding offices of responsibility; governance is not only for the privileged.
The songs and dances that we perform are tied to historical events that remind us about our connection to other forms of life. Our place on this earth is not one that makes us superior to other living things. Our existence always must be in balance with the needs of other forms of life. We should not exist at the expense of other lives, whether they are plants or animals.
There is a finite amount of water on earth and it is incumbent upon us all to protect what exists. In Canada, we should be able to drink from the creeks, lakes and rivers. However, due to the lack of good public policy, many Canadians must rely on bottled water. The Gitxsan do not want to create songs and distances about this new phenomenon. The Gitxsan are alive and well and living in Gitxsan territory.
With regard to Gitxsan-Crown relations, the Gitxsan people were Gitxsan until the latest Indian Act came into being in 1951. Those of us that were born prior to 1951 have not always had Indian band numbers. We were Gitxsan people that lived in British Columbia and Canada. Life was good.
Indian agents began to impose their regulations on our communities shortly after the 1951 Indian Act was put into place. I remember the reaction of my community when the Indian agent started talking about elections. He said that we needed leadership. People were polite and listened. They did not want to offend the poor ignorant soul.
More than 10 years passed before people entertained the notion of elections. For centuries our governors were trained to govern. Selection of governors was not left to a popularity contest. Gitxsan people of all ages, colour, creed and sex were expected to contribute to the community good and they did. All Gitxsan people had roles and responsibilities in looking after each other. The imposition of the Indian Act has taken responsibility away from the community.
Other people came from the outside and settled close to our communities. Those people worked with us and feasted with us until they were told that it was against the law. Most of them worked for traders like the Hudson's Bay Company, but others worked for the railway, schools and hospitals.
The committee is well informed of the history that has gone on record with regard to Crown-Aboriginal relations. Much the history is bereft of developments or accomplishments of which anyone can be proud. We all know the shortcomings of past public policy and the best efforts of some good people that only wanted to see good public policy bring benefits to Aboriginal people.
With regard to Gitxsan economic partnerships, the Gitxsan have had many positive relationships with different partners over the past 200 years. These partnerships demonstrate the Gitxsan willingness and ability to create viable relationships. The traders that came from the east basically followed traders that came from China and Russia. The traders that developed contracts with Gitxsan people were, for the most part, honourable.
The traders made deals with Gitxsan title holders that harvested fur bearing animals from their own territories. All the activities were governed and regulated under existing Gitxsan land use laws.
The fur trade brought a vibrant economy to Gitxsan territory for many decades. When demands for salmon products increased, the Gitxsan and other nations that had access to the bounty of the Skeena River and the Nass River responded by becoming commercial fishers and producers. At this point, the Gitxsan nation along with their Nisga'a and Tsimshian partners own a majority of the salmon licences in the north coast. The state of the commercial fisheries on the West Coast is such that the fisheries need attention and a major overhaul. Our investment in the boats and licences no longer brings our community and our nation a return.
When the forest economy demanded more wood products from the northwest of British Columbia, the Gitxsan people responded by providing products to the marketplace. The cedar pole operations that each chief ran were regulated by Gitxsan laws. The chiefs harvested trees from their own lands and delivered products to Terrace and Smithers and loaded them on to railway cars. Lumber was cut on saw mills that were owned and operated by Gitxsan entrepreneurs. The early mining activity in Gitxsan territories were manned by Gitxsan miners.
Our economy started to fall apart when the Crown rights of British Columbia started challenging the forest tenure system. The first major forest licence, or Tree Farm Licence 1, was created in northwestern B.C. Tree Farm Licence 1 took over all the licence and harvesting rights that the Gitxsan chiefs had enjoyed for decades.
We were eliminated from the forest industry in the late 1970s and big corporations took over all the forest activities in the region. They had access to free raw material and were heavily subsidized by Canada and British Columbia to utilize every good tree until they could no longer make a profit. The last multinational died about 15 years ago and now all Gitxsan loggers and lumber men are living on welfare. Canada's and British Columbia's public policy has not been good for the Gitxsan people.
With regard to reconciliation, the Supreme Court of Canada rendered its decision on Delgamuukw on December 11, 1997. This court case was launched by the Gitxsan and Wet'suwet'en people in recognition of our title to over 57,000 square kilometres of land. In Delgamuukw, the court determined that Aboriginal title means the right to the land itself, not only the right to hunt, fish and trap. Due to procedural issues, the court did not rule on the facts of the case but directed the parties to negotiate to achieve reconciliation of the pre-existence of Aboriginal societies with Crown title.
When the Supreme Court of Canada gave instructions to the Gitxsan to reconcile our pre-existence with Crown title, we were optimistic. The literal translation of the term reconciliation in our language, miin hugii ganst, is ``to meet in between.''
We thought that the late Chief Justice Lamer and his colleagues gave sound advice. We came out of the starting gates quickly to engage the Crown in discussions. It took nine months to bring British Columbia back to the treaty reconciliation table. We worked with British Columbia on a reconciliation agenda for several months before Canada joined the table kicking and screaming.
The discussions have been futile because we continue to stay with mandates that do not abide by the rule of law. In the meantime, we continue to spend borrowed money and to go nowhere fast.
I propose the next steps. The Government of Canada needs to take the time to review what the Supreme Court of Canada means by reconciliation.
From the Gitxsan perspective, it does not mean that we have to be Indians. It does not mean we have to be impoverished. It does not mean that our families and communities have to be dysfunctional. It does not mean that federal public servants have to be superior to us. Reconciliation does not mean that we have to forfeit title to the lands and resources that we have always sustained our people over the past 10,000 years.
The only way reconciliation will occur is if the Gitxsan and the Crown finally talk about fundamental issues of ownership, jurisdiction and governance. The Crown does not have to be scared to have these discussions. The Gitxsan do not want to be a burden on the Crown. We want to live free as Gitxsan people in the Gitxsan territory. We want to participate fully in Canadian society.
The Gitxsan nation proposes to establish a reconciliation process with the Crown as part of our ongoing tripartite treaty negotiations. Such a process can serve as a prototype for other negotiations throughout B.C. and Canada and can finally resolve the issues between the Crown and Aboriginal people.
The Gitxsan requests that the Senate committee work with the Gitxsan and the Crown negotiators to initiate a minimum one-year pilot project with the Gitxsan that would allow for the following conditions.
One, provide funding for a facilitator to lead the reconciliation process. The facilitator would have substantive knowledge of legal and negotiation matters and would be an impartial person in the process.
Two, provide resources to allow for discussions at the reconciliation table that go beyond the current mandates of the treaty process.
Three, provide a framework for at least three agreements under the reconciliation process. Likely topics are governance, social policy and economic policy.
That is our submission. Thank you for listening.
The Chair: Thank you, Mr. Derrick. I will pose the first question.
From past meetings and trying to understand the problem that exists in the province I represent, I see the real issue as that the Crown has put such stringent conditions on federal negotiators that really they are not negotiating. They have come to the table virtually to tell the First Nation what they can do and it is a take-it-or-leave-it situation after they made their presentation.
What difference would the funding of a facilitator make if the situation is not changed from what it is currently?
Mr. Sebastian: The facilitator would address the issues dealing with, first, the Constitution, the division of powers in section 91 and section 92. The Gitxsan believe that section 91(24) deals with the whole 33,000 square kilometres of territory, rather than the 70 square kilometres on reserve. The other issue is to deal with the accommodation of the Gitxsan interests in present legislation, be it under section 91 federally, or section 92 provincially.
The basis for that accommodation is set out in the common law presently in Canada, so the facilitator can then take these tools and implement that accommodation. Hopefully, if Canada agrees to go down that path, the facilitator will coordinate that process that is already there; we only need to implement it.
The Chair: Have your negotiations taken place under the auspices of the B.C. Treaty Commission? I have been advised by First Nations of the position of the federal side but we are not experiencing any great success. They have spent $1 billion and I think we have had ratification of one basic treaty, which was Tsawwassen. It has its problems because the overlap and various other scenarios are being challenged in British Columbia by other First Nations.
You made suggestions here. Do you think these suggestions apply to most of British Columbia? We have a dilemma there, which is that many First Nations do not have a signed treaty and are in negotiations for treaty arrangements.
Mr. Derrick: We believe that if we find out how we can reconcile, as directed by the courts, reconciliation will provide a much better path for all of us who are involved in treaty negotiations. Currently, the mandates that Canada brings to the table are stuck in the 1980s. The same mandates that are placed before us as nations that are involved in treaty negotiations in British Columbia are common.
We want to go forward from here and take into consideration what the courts mean by reconciliation. The approach that the court has taken to deal with the many issues that are brought before it is that the courts are mindful of the current situation with respect to the legislation in Canada; with respect to what the Constitution says, as Mr. Sebastian pointed out. The commitment is to work with the Crown in terms of determining how section 91 and section 92 apply to us, and how section 35 provides for working out the viable arrangement under that scenario.
We hope to flesh out that meaning through perhaps a retired justice as a facilitator who would work with us to find out what reconciliation means. We know it does not mean certain things, but we want to find out what it means so we can go forward and work within the legislative framework, as well as the prehistory that we bring to the table.
We do not want to be stuck and go nowhere. We are determined to move forward under the guidance of the Supreme Court decisions; but currently we cannot seem to be accommodated by the Crown as much as we were prepared to accommodate the Crown.
Senator Hubley: On the use of a facilitator, I think it is always nice to have solutions to problems or suggestions of solutions. I think the selection of that facilitator is important in the success of any negotiation. Is that something you have given thought to?
Second, you illustrated for us that the present system is not working, and some of the negative situations that you have run into in the process of your negotiations. How can we change that situation? Is the problem the Department of Indian and Northern Affairs? Does it go back to laws that we have had in the past? Do you have any suggestions for what type of a body should look after this type of situation?
Mr. Derrick: We have given a great deal of thought to the kind of facilitator we need. Like we said in our presentation, we need someone who has a background in the subject matter — perhaps a retired justice from the Federal Court of Appeal or the Supreme Court of Canada even — to focus on how we can be brought ahead to deal with the reconciliation component. We need a facilitator that accepts us as Gitxsan people. As I said, we do not want to be a burden on the Crown and we do not want the Crown to be a burden on us like it is.
The whole mandate seems to be one of take away. The Crown seems to want to take away from our being Gitxsan and make us into Indians. Being Indian is probably good for other people, but not for the Gitxsan. The attitude of trying to change us, trying to make us into something that we are not, continues to be there.
I have come to the point of asking people wherever I go, if they are Crown people in negotiations, do you wake up every morning wanting to beat the heck out of me — wanting to beat the heck out of those damn Indians? That is the attitude we find at the table all the time.
We should not encounter hostility. We should not try to deal with the floors of Crown lawyers at 10 Wellington, who seem to be there to obstruct everything that we do. I might be wrong, and I hope that I am, when I say that someone across the river gives directions to people to go out and beat the heck out those damn ignorant Indians.
The Chair: The problem, colleagues, is that one size does not fit all in dealing with First Nations people. As some of you who were with us at the Navaho Nation will know, and I have mentioned this comment before at this committee, Grand Chief Joe Shirley of the Navaho Nation said, I am not an Indian. He said that some White men left Europe and landed on North American shores looking for India, and they called us ``Indians.'' He said that he is a Native American and does not live on a reserve but on traditional lands. He said that reserves are for animals.
We have before us this morning the historical structure of governance in the Gitxsan Nation that is creating some of the frustration and turmoil in negotiations or lack of negotiations. The business of one-size-fits-all is a myth and that is why we must deal with nations as a federal government rather than dealing with individual bands because the government has divided and conquered. We heard testimony this morning about Manitoba, which is governed by a certain political party, that it does not matter what political party is at the helm because our First Nations are treated similarly. We are making progress but the progress is unsatisfactory. Chief Negotiator Derrick did not describe the economic dilemma that faces his people and the problems that the lack of economic development causes in their communities.
I will share with you in camera some of the horror stories that have been told to me because of the lack of economic development.
Senator Sibbeston: I appreciate that Mr. Derrick and the Gitxsan think the Senate has enough stature and respect to be of some assistance to them. How do you see this process coming to fruition? Do you see us going with you to meetings? Do you see us convening a meeting to establish a relationship and understanding of our role in this one-year project that you talk about? How do you envisage this process and how this Senate committee can be involved?
Mr. Sebastian: Thank you for the question. Trying to write with this pencil reminds me of the time I went to Indian day schools and the pencils they provided. Maybe these are leftovers. Just teasing.
Regarding the process that we envision, I want to paint a scenario that the Gitxsan have proposed to the federal and provincial governments. We do not want law-making for our government and we will leave it under section 91 and section 92 of the Constitution Act, 1867. We want to be under the present Constitution of Canada for our governance. We do not need to establish some sort of society governance or constitution. We want to exist under the present Constitution of Canada. We also proposed specifically to the federal government that it make a proposal to the Gitxsan if they want us to take over the administration of the Indian Act on the reserves. That proposal surprised them because they thought we were negotiating from that position.
Those three points are where we see this Senate committee becoming involved in the facilitation process. We feel that the Senate committee can truly assist us in expressing that view in terms of mandate of the federal government.
The two treaties in British Columbia that have been signed recently have ratified changing the reserve lands under section 91.24 of the Constitution Act, 1867,to fee simple under the provincial government. The other thing they have done is to sign away the protection provided under section 35 of the Constitution Act, 1982. We spend all our time obtaining protection in the Constitution, then these Indians have signed it away. My concern is the kind of legal advice we are provided with in British Columbia. I see that advice as our problem in terms of what we did on those treaties.
We see this Senate committee assisting us in what Mr. Derrick has set out in terms of the facilitator in the reconciliation process. We see the committee expressing the fact that the Gitxsan are not seeking law-making authority; that we want to attach ourselves to section 91 and section 92 and to protect ourselves under section 35. In addition, we want to see the accommodation of our interests with all the legislation of the two powers. We see a lot of work for this committee if senators decide to take that on.
The Chair: We will study your presentation seriously and try to assist you if it is at all possible. I thank all of you for participating in the committee's deliberations this morning. On behalf of the committee, I wish you well in your negotiations.
We have operated in a non-partisan manner with the present government on issues such as specific claims and fresh drinking water for First Nations. As well, we are studying issues surrounding implementation. If you think we need any additional information to assist us in assisting you, ensure that you send it to the clerk of the committee, who will deliver it to the committee.
The committee adjourned.