Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence for December 12, 2007
OTTAWA, Wednesday, December 12, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-11, An Act to give effect to the Nunavik Inuit Land Claims Agreement and to make a consequential amendment to another act, met this day at 4:10 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[Editor's Note: Some evidence was presented through an Inuktitut interpreter.]
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are gathered today to begin our study of Bill C-11.
[Translation]
To start our study, we have the pleasure to welcome here Mr. Rod Bruinooge, M.P., Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians.
[English]
Accompanying Mr. Bruinooge, we have Mr. Tom Molloy, Chief Federal Negotiator; Mr. Pat Walsh, Senior Negotiator, Makivik/Cree Offshore of Quebec; and Mr. Brian Keogh, Senior Counsel, Department of Justice Canada.
I am sure you know we would be expecting an introductory statement from the Parliamentary Secretary. We will then go to a question period. At that time, all senators will have the opportunity to put the questions they wish either to Mr. Bruinooge or to the officials. You have the floor now.
Senator Watt: May I ask a question?
The Chair: Senator Watt, we will make a list, but you are the critic. This is a point of order. Do you want to ask a question of me on a point of order? Points of order are addressed to the chair, Senator Watt.
Senator Watt: All right. I have a question for you. I did not see the Minister of Indian Affairs and Northern Development here. I was hoping to see him. That is the why I raised my hand for a point of order.
The Chair: That is not technically a point of order, Senator Watt. For your information, we invited the minister. While it is preferable to have a minister, it is customary in the Senate, if necessary, to welcome in the minister's stead, the minister's parliamentary secretary. That is what we are doing today.
Senator St. Germain: As you so adeptly pointed out, it is not a point of order to bring the lack of presence of any individual to the attention of a committee. I thank you for pointing that out.
Rod Bruinooge, M.P., Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians: Honourable senators, I am very happy to be here today to speak in support of Bill C-11, especially as an Aboriginal Canadian from Manitoba. I am particularly pleased to join with representatives of the Makivik Corporation: President Pita Aatami and Chief Negotiator Johnny Peters.
I cannot emphasize enough the critical importance of Bill C-11, which when passed by Parliament will give the force of law to the Nunavik Inuit Land Claims Agreement, a complex and detailed document that has taken years to negotiate and will positively impact the lives of Inuit of Northern Quebec for many years to come.
The Nunavik Inuit Land Claims Agreement is the second land claims agreement to be concluded by Quebec Inuit in Canada. The first was the James Bay and Northern Quebec Agreement signed in 1975 and considered to be the beginning of the modern era of Aboriginal treaty making in this country. However, the James Bay and Northern Quebec Agreement could deal only with rights within the boundaries of Quebec. Inuit of Northern Quebec were told that their interests in marine areas stretching from James Bay to and including Ungava Bay, as well as the northern part of Labrador, would have to be considered at another time and later date. After more than 30 years, that other time and later date is finally here.
One has only to look at a map of Nunavik for an illustration of the importance the marine region has for the Quebec Inuit. All 15 of their communities, from Chisasibi on James Bay to Kangiqsualujjuaq on Ungava Bay, are found along the coast. From these communities, Nunavik Inuit, both literally and figuratively, look to the sea each and every day. Their livelihood and traditions, their past and future, are tied to that area, which the agreement defines as the Nunavik Marine Region. That is why it is so important to have their rights in this region, as spelled out in the Nunavik Inuit Land Claims Agreement, enacted into law.
I am sure that all members of this committee are aware that Senator Watt has raised numerous issues, concerns and criticisms of Bill C-11 and the agreement. Knowing of the senator's experience and knowledge of the North and Inuit people, I think it is very important that I address his concerns.
I want to assure all committee members that the Minister of Indian Affairs and Northern Development and his officials have given the concerns raised by Senator Watt careful scrutiny and review. In doing so, we are left quite perplexed. Let me explain.
As president of Makivik, Senator Watt was key to initiating negotiations that have culminated in the Nunavik Inuit Land Claims Agreement, including personally signing the framework agreement in 1993 that stated that Inuit of Northern Quebec would be represented by the Makivik Corporation. Yet, one of the senator's key concerns is that Makivik has no mandate to negotiate an agreement on behalf of the Inuit of Quebec.
I know Senator Watt has followed the progress of negotiations closely over the years and has had several opportunities to express criticism on the direction or content of these negotiations: when the agreement in principle was signed in 2002; when the final agreement was initialled in 2005; during the lengthy information campaign leading to the Nunavik Inuit ratification vote in October 2006; at the time of the signing of Nunavik Inuit Land Claims Agreement on December 1, 2006; and when Bill C-11's predecessor, Bill C-51, was introduced on March 28, 2007. However, it was not until May 11 of this year, and in a letter to Pita Aatami, President of Makivik Corporation, that Senator Watt first expressed ``serious concerns'' about the agreement and the bill. That is perplexing when we consider that the senator has been a member of the upper chamber during a period when virtually every modern-day treaty, from the Inuvialuit Land Claim Agreement in 1984 to the Labrador Inuit Land Claims Agreement of 2005, has had the necessary enabling legislation come before Parliament multiple times.
Senator Watt has been a consistent champion of these land claims agreements and legislation. That is why the position taken by the senator concerning Bill C-11 and the Nunavik Land Claims Agreement is so surprising. It is clearly out of step and out of sync with his previous record. I must say that I am confounded that, after putting years of effort into laying out the very foundations and direction of the agreement now before us, the senator would suddenly change his mind.
Nonetheless, it does not change our circumstances here today. Although in the past all the senators' concerns have been very thoroughly addressed, I would like to take the opportunity to examine a few of the issues he has raised.
Concerns were raised in the last session of the Senate, in correspondence and recently reiterated at second reading, respecting the requirement for certainty in the land claims agreement. There has been a great deal of discussion and some measure of confusion about the government's certainty policy. What this government is seeking, and what a succession of previous governments have sought, is clarity concerning the rights of everyone to own and use lands and resources.
The problem with Aboriginal rights is that they are unclear. They are fact- and site- specific and can be known only through examination of current use and historical and anthropological data. That is why it is so important to enact the Nunavik Inuit Land Claims Agreement into law. Clarifying these uncertainties benefits the Aboriginal harvester as much as the developer or government regulator.
The means of achieving certainty was traditionally through surrender and extinguishment of Aboriginal rights. This was the technique used in the James Bay and Northern Quebec Agreement, which the Inuit signed in 1975, and it is a technique that has been used in several agreements since, including much of the area dealt with in the Labrador Inuit Agreement, the legislation Parliament considered and passed in 2005.
Some Aboriginal groups have objected to what they saw as the spiritual implications of extinguishment of rights. In order to accommodate this view, the government has developed other techniques that seek the same level of legal certainty without requiring a surrender or extinguishment of Aboriginal rights. This includes the modification technique used in the Nisga'a agreement and the non-assertion technique found in this agreement. The non-assertion technique is based on a promise from Nunavik Inuit that they will not assert Aboriginal rights concerning lands and resources, except as set out in the treaty.
The treaty includes a backup release, but this is triggered only if, for some reason, the promise made by the Inuit is not given effect by the courts and there is resulting prejudice to the rights of Inuit or to the rights of others. In such a case, the release operates only to the limited extent necessary to avoid the prejudice to rights. The treaty has no effect on any self-government rights that the Inuit may have, except those that may relate to lands and resources.
The rights negotiated in the treaty are intended by the Inuit to protect their relationship with the land and their traditional way of life. Nothing in the treaty contemplates requiring the Inuit to turn away from their traditional lifestyle or to prejudice their relationship with the land.
While we do not wish to extinguish Aboriginal rights, we do wish to ensure that these rights will not compromise the clarity set out in the new treaty. This means that the parties are no longer obliged to litigate respecting Aboriginal rights. It is true that the Inuit will not benefit from future court decisions concerning Aboriginal rights, but neither will they be prejudiced by any such decisions. The Supreme Court of Canada has been clear that Aboriginal rights issues are better negotiated than litigated. This treaty clarifies the ability to use and own land so that future litigation will not be required.
There has been some concern expressed that clarifying rights in this manner is contrary to the Constitution because Aboriginal rights are protected by section 35 of the Constitution Act, 1982. However, the Constitution provides equal protection to treaty rights, including specific rights set out in land claims agreements, both existing and to be negotiated in the future. There is no loss of constitutional protection from clarifying rights in the form of a treaty, and the Constitution specifically contemplates such treaties. As noted above, the courts have also encouraged government and Aboriginal groups to define their rights in negotiated agreements.
Another issue raised by Senator Watt during debate in correspondence concerns technical requirements arising under Quebec law for representation of individuals and the requirement for powers of attorney. There are two important points to consider here.
First, although the members of Nunavik Inuit reside in Quebec, they are not prohibited from entering into agreements in other provinces or territories. This is an agreement about Nunavik Inuit rights in Nunavut. It concerns both land ownership and land harvesting rights under Nunavut law. It concerns the creation and participation in Nunavut bodies of public government. This is not a Quebec contract, and it is not governed by the Civil Code. Section 2.22 of the agreement is very clear that it is to be governed by the laws of Nunavut, Newfoundland and Labrador, because certain rights pertain to that province, and the laws of Canada.
More important to note, however, is the fact that Nunavik Inuit are not bound by this agreement just because it was negotiated or ultimately signed by their chosen representative, but because they overwhelmingly indicated their collective support of the agreement in a fair and transparent vote. Aboriginal rights are collective rights and, while they are exercised by individuals, the collectivity determines how these rights are exercised and how they may be defined. In this case, an overwhelming 78 per cent of eligible Nunavik Inuit voters supported the agreement.
Senator Watt has been critical of the make up and powers of the management boards that will be established by the Nunavik Inuit Land Claims Agreement. It is important to recognize that currently there are no management regimes in the Nunavik Marine Region. The agreement that will be enacted through this legislation will give Nunavik Inuit a strong voice on how the lands and resources will be managed.
These boards will be institutions of public government, meaning that they will perform a public governance role that encompasses the views of Makivik and the federal and territorial governments. It is also standard protocol in any land claims agreement for the minister to make appointments to an institution of public government.
While each governance structure has a specific make up, they all generally follow the principle of 50 per cent Makivik representation and 50 per cent government representation. A chair is then selected from the nominations put forward by the representatives. Senator Watt was concerned that Nunavik Inuit would have minority representation, but if we look at boards established by other agreements, such as the Nunavut Land Claims Agreement, we see that the majority of chairpersons are from the Aboriginal group. Very often, the Aboriginal group is in the majority.
Committee members are no doubt aware that a precise process is required for the ratification of the agreement. This includes the establishment of a ratification committee, composed of representatives from Makivik, the Government of Nunavut and the Government of Canada, to oversee the Nunavik Inuit ratification vote. Honourable senators will also know that, when it comes to constitutionally protected land claims agreements that affect the Aboriginal rights of a collective, Canada demands a very high test of approval. The bar is set at 50 per cent of all eligible beneficiaries — not 50 per cent of those who vote, but 50 per cent of all eligible voters.
Committee members should be aware that the information campaign leading up to the October 2006 vote was conducted not by Makivik but by the ratification committee, on which Makivik was represented. The ratification committee went to great lengths to inform the electorate. The committee provided every Nunavik Inuit household with a copy of the agreement in English, French and Inuktitut. They also provided a summary of the agreement in the three languages.
To further help the Nunavik Inuit understand the agreement, the negotiators from all parties participated in an open mic forum on the local radio station in every community. During the tour, the negotiators also made themselves available to meet with anyone who wanted further information on the agreement. Furthermore, Johnny Peters, the chair of the ratification committee and negotiator for the Nunavik Inuit, also taped an oral summary of the agreement in Inuktitut that was aired on all the community radio stations in the weeks leading up to the vote. As well, aware of and sensitive to the demographic reality of the population, the ratification committee targeted Nunavik Inuit youth, delivering a presentation to them and giving them an opportunity to ask questions. Therefore, to say that Nunavik Inuit were not informed is inaccurate.
I learned a long time ago that it is neither wise nor productive to question the verdict of the voter. Sometimes we might not like what the verdict is, but the voter is always right.
Let us look at the numbers. In October of last year, out of a total of 5,999 eligible voters, 4,844 ballots were cast, or 81 per cent. There were 4,651 ``yes'' votes, or 78 per cent of all eligible voters; 183 ``no'' votes for 3 per cent of all eligible voters; and 10 rejected ballots. These numbers speak for themselves. The ratification committee and those who supported its efforts, the Makivik Corporation and, most importantly, Nunavik Inuit, deserve the congratulations of us all.
I regret that my remarks here today could not have been simply to elaborate on the benefits that the agreement brings to the Nunavik Inuit, the North and Canada. However, I needed to clarify the misconceptions that have been circulated about this bill and the agreement. I have taken the time to set the record straight, because the existence of the agreement is threatened.
Committee members should be under no delusion. Senator Watt's criticisms, if acted upon, would require much more than mere tinkering with the agreement. It would be throwing out Bill C-11, tearing up the signed Nunavik Inuit Land Claims Agreement and starting anew. Such an option this government cannot consider.
It has been over a year since the Nunavik Inuit, in resounding fashion, ratified the agreement. We have just celebrated the first anniversary of the signing of that agreement, and it is more than five months since the members from all parties in the other place first agreed to the passage of Bill C-51, Bill C-11's predecessor, at all stages. This has been a shining example of how modern-day agreements ought to be concluded. It is overwhelmingly supported by all sides. It is well planned, well reasoned and brings great new opportunities to Northern Quebec.
I ask all honourable senators to put first and foremost before their thoughts the good of the Inuit of Northern Quebec and to support the timely passage of this bill, thus concluding the ratification process of the Nunavik Inuit Land Claims Agreement without further delay.
The Chair: Thank you. We will go first to Senator Watt, followed by Senator St. Germain.
Senator Joyal: I have a point of order.
The Chair: On a point of order, Senator Joyal.
Senator Joyal: I saw a map that the witnesses brought with them. Would it be possible first to identify on the map which region we are talking about and which marine section we are dealing with? That would help us to understand and to visualize where we are.
The Chair: That would be very helpful.
Mr. Bruinooge: As I said in my presentation, this agreement is specifically in relation to the marine area surrounding the Nunavik area. You will notice that there is a boundary that covers off part of the waters that surround the northern part of Quebec. That represents the area we are talking about.
The Chair: There is also the national park region at the northern tip of Labrador. That is the pale green triangle, I believe.
Mr. Bruinooge: That is correct. That is also included.
Senator Joyal: Could you identify for our record the city where the lines start? As you know, we are not just oral; the proceedings of this committee are printed.
Mr. Bruinooge: This is Chisasibi and this is Kangiqsujuaq.
Senator Joyal: It starts on the James Bay side and it goes up to the tip of the province of Quebec and it then goes up to the piece of land that belongs to Newfoundland and Labrador, up to the line where the pink —
Pat Walsh, Senior Negotiator, Makivik/Cree Offshore of Quebec, Indian and Northern Affairs Canada: This part here is what the parliamentary secretary referred to as the Nunavik Marine Region. It is treated slightly differently in the agreement than the Labrador portion.
Senator Baker: Does it start north of Hebron?
Mr. Walsh: Yes. It includes the entire area of the park reserve.
Senator Baker: It is 40 miles from Hebron, then.
Mr. Walsh: The agreement itself does not cover those communities. Nunavik Inuit come from those 15 communities that border on it.
The Chair: The islands concerned are uninhabited but used by the Nunavik Inuit, is that correct?
Mr. Walsh: That is correct. There are no permanent residents there at the moment.
The Chair: Senator Joyal, do you have a question on this point?
Senator Joyal: Yes. According to international law, when we are talking about offshore limits there is a constant line around the solid continental land. I am looking to understand the lines that you have identified on the map. Could you explain to us why the line through the water around the land is closer to the shore at some points than at others?
Mr. Walsh: Are you referring to where it is narrow, such as near Chisasibi, and in other areas it is wider?
Senator Joyal: Yes. Why have you chosen to trace that line that way instead of having a constant line around the shore?
Tom Molloy, Chief Federal Negotiator, Indian and Northern Affairs Canada: That would include the area used by the Inuit as part of their traditional territory. It also comes up to the line that was part of the Nunavut Settlement Area, which did not encompass all of Nunavut. In part, that line also represents where the Nunavut Land Claims Agreement settlement line is. This one abuts against it.
Senator Watt: I will not make an attempt to answer all the points that have been raised. Rather, I would like to say that I have not changed my mind with regard to land claims. It is a question of how the land claim is being done. That is why I have been quite critical on the points I have raised. I want to make sure that that is on the record.
First, existing Aboriginal rights will be extinguished, and the justificatory process developed by the Supreme Court of Canada is not being met. This is my assessment and what I am concerned with here. This is in the agreement. Neither Makivik Corporation nor the federal government has the legal power to extinguish the constitutional rights on the basis of a policy that was developed after 1982. That is my point: after 1982. I was part of the negotiations and the signing of the James Bay and Northern Quebec Agreement before 1982. I remember the exact policy and what it was, and should it have changed in 1982. This is only a policy; it is the law. This policy was never ratified by the rule of law while section 35 of the Constitution of Canada, 1982, recognized and protected existing Aboriginal treaty rights.
The United Nations raised a question asking if this technique is another semantic term for an older extinguishment policy. Are you coming from the empty-box theory or from the full-box theory?
I remember the discussions shortly after the negotiations on the Constitution. There was a lot of uncertainty as to whether it was a full-box or an empty-box theory. The Supreme Court, with Chief Justice Lamer, developed conditions if there is to be an infringement of Aboriginal rights: first, there must be a clear, plain and legal justification; second, the consent of the informed beneficiaries is required; third, the beneficiaries must understand clearly the consequences of their consent; and fourth, the federal government must have fully consulted the persons affected, and a fair compensation must have been offered.
Do you agree with the Supreme Court of Canada? It is referred to in the agreement on pages 11 and 12, article 2.29.3 and 2.29.4.
Those are my first questions. I have four others to put forward, but I do not know how you want me to handle this.
The Chair: You can certainly get in at least one more, and we will have a second round. We will ask the parliamentary secretary for his response.
Senator Watt: I will put another question forward, this one on the Statutory Instruments Act.
This agreement makes me very uncertain as to what it means by operating outside the Statutory Instruments Act. It implies that you will be operating outside of the law. Why is that? We are Canadians citizens. Why do we not comply with the law that is set out? Why do we have to operate outside the law? This is a huge concern, because a statutory instrument is a law to ensure that regulations are not against or threaten the rights in the Charter of Rights and Freedoms. This is protection for all Canadians. Why does clause 11 in Bill C-11 keep us outside of the law?
The Chair: I will now ask the parliamentary secretary to respond to that group of questions.
Mr. Bruinooge: Thank you, senator, for those questions. I will go back to the first question, which was a very big question with a lot of different points. I will try to answer the parts of it that I am capable of answering.
The first part of the question was in relation to extinguishment of rights. This is one of the most important parts of the agreement in the sense that the Nunavik Inuit are in fact not extinguishing rights; they are entering into this agreement fully. They acknowledge the agreement itself and are endorsing it with a popular vote from their people. That stands at about 80 per cent. They are agreeing not to assert rights in certain areas, but only agreeing to assert rights that are listed within this important piece of legislation.
They are entering into this freely; it is not being imposed by Canada. That is the essential part. If Canada was bringing some action upon the people of Nunavik, then I believe we would be in a much different situation. However, this agreement has been mutually entered into.
The most important thing for us to think about here today as individuals who are all part of the Canadian government is this: Should this committee choose to set aside Bill C-11, as the senator is suggesting, we would then be signalling a whole new precedent to Aboriginal groups across the country. We would be signalling that even if they choose to enter into an agreement with Canada and they ratify it with a very large popular vote in good faith with their people, take that agreement to the Parliament of Canada and have it endorsed unanimously by all 308 members of Parliament, they could still at that point not get an agreement. If we set this agreement aside now, I see a chilling effect in all of the negotiations occurring. It would be a remarkable set of circumstance should we set aside Bill C-11 at this stage.
Senator Watt: You are not answering my questions.
Mr. Bruinooge: I answered the first one.
Senator Watt: You are only indicating how important it is because it has been overwhelmingly voted in by the population of Nunavik. I fully know that information.
The questions I am asking here you are not addressing.
Mr. Bruinooge: Are you suggesting that the Nunavik people cannot enter into agreements?
Senator Watt: I am not suggesting anything yet. I did not even get to that point.
Mr. Bruinooge: The question you are raising would suggest that the Nunavik people cannot enter into agreements.
Senator Watt: Did I say that?
Mr. Bruinooge: You are suggesting that we are extinguishing rights, and I am suggesting that there is a non-assertion clause.
Senator Watt: The question I asked has nothing to do what you are asserting now.
Mr. Bruinooge: Perhaps you could rephrase your question once more.
Senator Watt: Do you want me to repeat the whole question again?
The Chair: Not the whole thing, but the core of the question.
Senator Watt: The core of the question is this: In 1982, the new ball game began. Before 1982, there was an old policy calling upon Aboriginal people to extinguish their rights. I went through that with the James Bay and Northern Quebec Agreement. When an opportunity came around to look at this differently — and not to deal with extinguishing rights again — I jumped on the boat that was about to depart, which was dealing with repatriating the Canadian Constitution. I took the opportunity to get involved and negotiate a provision that is today called section 35. The ball game changed. You say extinguishment does not apply because non-assertion is the new term being used, but it still has the same effect. That is my point.
Mr. Bruinooge: The people of Nunavik believe that through their vote their rights are being asserted in this agreement. The rights they would like included are here. Those that are not, they are agreeing not to assert as part of this agreement. That was the choice of the negotiators.
I think the people of Nunavik should be able to make these agreements with Canada. There is no reason why they should not.
Senator Watt: There is another part of this issue. Let me try to make it explicit.
To tell the truth, I congratulated Mr. Aatami on succeeding in something that had never been done before. However, I was doing that on the basis of what I was hearing, before I started to dig into the agreement and the implications of this issue.
When I examined the agreement to see what benefit there was for the Inuit people, I saw approximately $30 million in implementation money for three bodies. I will not describe who they are. There was also money for social, economic and education programs which amounts to a little over $50 million. I began to calculate what that amounts to: in 10 years it is a little over $500 per person in compensation. Where do you go after 10 years with that? I looked further to see whether the customary and traditional aspects were incorporated into the agreement, but I did not see any.
The only thing I saw in the agreement is an instrument that the government wants so that we can become a participant of the governmental institutions in order to be able to regulate ourselves and the wildlife and natural resources in the area. Is that a benefit? That is why I am here before you, because I do not consider those to be benefits.
Mr. Bruinooge: I believe that the people of Nunavik have spoken for themselves. As a parliamentary secretary from Manitoba, I cannot speak for the Nunavik people. They have negotiated in good faith. They have voted 78 per cent in support of the belief that this is a good agreement and that the benefits in the agreement are good for their people. I can only take the verdict of the voters that they believe having 80 per cent of the total area comprised by the islands in the Nunavik Marine Region accessible to them is a good thing.
There will be a capital transfer of $54.8 million. There is an additional $38.7 million in the implementation funding payments. Resource royalty sharing is negotiated in the agreement; traditional hunting and fishing rights will be preserved in the region; parks impacted through this agreement will benefit; commercial fishing benefits are being extended; and wildlife will be compensated at the regimes that are in place.
Many things within this agreement were communicated in a number of ways throughout the region.
My perplexed mentality comes back. As a parliamentarian, I look to the endorsement of the people. If the people did not vote for this, I would be the first to say that we cannot proceed. However, they have; and 308 MPs stood up and voted for it as well. I believe that as a parliamentarian I am bound to be here today to attempt to convince everyone that we must proceed.
The Chair: I would observe, sir, that it is our job to try to understand what it is that we are being asked to vote for. That is the purpose of these hearings.
Senator St. Germain: Like many others here today, I have dealt with the First Nations people with regard to agreements. Senator Sibbeston and I go back to the Nisga'a agreement.
Mr. Bruinooge, can you give an overview of the benefits that would be jeopardized if the Senate did not approve this legislation? This legislation has been dragging on. This is not a partisan issue. It is not about us; it is about First Nations people.
Mr. Bruinooge: There is no doubt that what has been negotiated with Makivik Corporation on behalf of the Nunavik people will bring forward new rights and control of the Nunavik Marine Region we identified earlier. This control had not been in place since the earlier James Bay and Northern Quebec agreement; it had been long promised but not enacted by a multitude of governments from both political stripes. After some 30 years, we now have the opportunity to finally ratify this agreement and bring forward a multitude of benefits to the people of this region.
I had the pleasure of meeting a number of the leaders from Nunavik — people who are very interested in proceeding and in being able to enjoy a form of autonomy in areas that they have been fishing and hunting for thousands of years. To put that into legal text in Canadian law is something I would be proud to be part of in a small way, being a rookie member of Parliament.
This is a great honour for me to speak before you as senators. I have never had the pleasure of doing so. This is my first appearance, which is perhaps why I am a little nervous.
To finish my answer to the question, I will list some of the benefits — and there are more. First is the land. Although it is covered by water, it includes 80 per cent of the total area comprised by the islands in the Nunavik Marine Region, as well as subsurface rights to these islands. In addition, there is a capital transfer of over $50 million, an additional $38.7 million implementation funding and, of course, the resource royalty sharing, which could be substantial in light of the fact that there is a multitude of resources in this region.
Perhaps most important, though, to our Inuit friends is the access to traditional hunting and fishing areas and having these rights preserved. This is one of the most important elements of their culture. As I have travelled through Inuit regions, I have very much enjoyed all of the benefits of this cultural practice, being a big fan of this staple myself.
The benefits go further than that, of course. There are many commercial fishing aspects to the agreement, as well as a number of management board opportunities that will continue to be acknowledged in the agreement and that have Nunavik involvement and representation. The agreement will allow the people to democratically have a lot of control over this region. As I said, I am very excited to play my small part in assisting this important community in finally ratifying this agreement.
Senator St. Germain: My next question is to Mr. Molloy. I have known him for several years, as has Senator Merchant and many senators from Saskatchewan, because Mr. Molloy is from Saskatchewan. He brings exemplary credentials to this table. He is an officer of the Order of Canada, a chancellor of the University of Saskatchewan and the author of many publications relating to the subject that we are studying here today. I believe he is the most experienced chief negotiator this country has.
Mr. Molloy, am I correct in asserting that you are the most senior of our negotiators in Canada? I hate to put it like that, sir, but we are both getting there.
Mr. Molloy: As long as the question is not related to age. I have been a chief federal negotiator for Canada for 25 years. I began in 1982 and, through a lot of good fortune with the people I have worked with in the federal system and also some of the First Nations and Inuit groups I have dealt with over the years, I have been able to come to successful conclusions on three treaties, with another one in the works.
Senator St. Germain: Honourable senators, I think Mr. Molloy clearly indicates, by way of his response, that he transcends all partisan politics. He works for everyone and does an excellent job.
The Chair: We will take that as established, senator. Do you have a question?
Senator St. Germain: Well, it is very important. Yes, I do have a question, Madam Chair.
How does the Nunavik Inuit Land Claims Agreement compare with other agreements you have worked on?
Mr. Molloy: It is difficult to provide a fulsome answer in a short period of time. First, let me say that no treaty is identical to another treaty. Each First Nation and Inuit group has their own history, use of the land and culture; and each has a different interest that they wish to put forward or put emphasis on in concluding their treaty.
One common feature is that every treaty is negotiated by an organization on behalf of the claimant group, whether it is the Labrador Inuit Association, the Tungavik Federation of Nunavut that negotiated the Nunavut agreement, the Nisga'a Tribal Council or Makivik. The rights are held by the collectivity and someone needs to represent the collectivity in dealing with these rights. However, as the agreement moves forward, there is no legally binding document or agreement until it is ratified by all of the parties.
One technique that has been used in all of the ratification votes I have looked at and all of the treaties that have been negotiated since the James Bay and Northern Quebec Agreement is the following question is put to the beneficiaries: Do you authorize the organization that negotiated on your behalf the authority to sign the agreement on your behalf?
I think it is also important that no one gets everything they want. The treaty is a package of compromises that are made by the federal government, the First Nation or Inuit group and in some cases a province or territory. Everyone must compromise.
There are things in every agreement that each of the parties may be uncomfortable with, but they look at the totality of the package. Is everything contained in that agreement sufficient to enable the three parties to say that this represents a fair and reasonable treaty that they will be prepared to move forward with?
An important part of every treaty, from Canada's perspective — and one of the reasons that Canada negotiates treaties — is to acquire certainty to the lands and resources. Aboriginal rights in this country are undefined. The courts have made some attempt at providing guideposts, but no one can tell you specifically what an Aboriginal right is or where that Aboriginal right exists and to what extent. Therefore, there is uncertainty in the land and how people and governments can deal with land.
The purpose of treaty negotiations is to remove that uncertainty. In the early days, that was by requiring cede, release and surrender of rights; now, since the Nisga'a treaty, we have provided different techniques, where we believe that Aboriginal groups are not surrendering or extinguishing rights. I know there is some argument among some legal scholars about whether or not that is extinguishment, but our intention is not to extinguish rights.
Another important part is the ratification process to ensure that all of the beneficiaries, all of the potential rights holders have an opportunity to express their view on that treaty in a fair and democratic process. There are negotiated provisions in all treaties that require a ratification process to ensure, first, that all persons who are eligible under the treaty have an opportunity to be enrolled; second, that all persons who are enrolled have an opportunity to vote; and, third, that that vote be an informed vote and that they have opportunities to become informed with the agreement.
A ratification committee is established, much like electoral offices are created in parliamentary elections, to oversee the conduct of the vote and the distribution of information to the beneficiaries and, finally, to ensure that the vote is held in a democratic manner and that the votes are properly counted and accounted for. Also, as I mentioned earlier, the committee is to ensure that authority has been granted to the organization negotiating the agreement to conclude and sign that treaty on their behalf.
I would make one final comment, and that is that I have always considered — and others have, too — that treaties are a tapestry of 1,000 strands of compromise. If you cut one strand, the tapestry will start to fall apart.
Senator St. Germain: As you say, negotiations are the key to this give and take. I guess we abide by the old saying that we should never let perfection become the enemy of the good.
I will ask you straight up. You are the negotiator and you have negotiated many agreements. Is this a good agreement, in your opinion, for the people of that area?
Mr. Molloy: In my opinion, from the perspective of a negotiator at the table, it was an agreement that all three negotiators were prepared to recommend to their principals for ratification.
Senator Joyal: I would like to state as an opening remark that our responsibility in relation to agreements that have been negotiated in good faith by the three parties at the table, whom we will hear from later, is essentially on two fundamental grounds. The first is to determine how well the fiduciary duty of the Crown has been discharged. Of course, the federal government has a special responsibility, according to the Constitution, with respect to the Aboriginal people of Canada. The second is to determine whether Aboriginal rights are to be extinguished. A moment ago, Mr. Molloy stated, ``our intention is not to extinguish rights.'' How far does this agreement generally protect the interests of the Aboriginal people?
As I understand it, this agreement covers two levels of resources, the marine resources and the seabed resources. Am I right?
Mr. Molloy: No, not seabed resources.
Senator Joyal: If oil is found along the shore that has been identified on the map, who is the owner of that resource?
Mr. Molloy: I believe the federal Crown owns the subsurface, but the Inuit would benefit from royalties that would be paid from the production of that resource. The agreement provides for 50 per cent of the first $2 million received by the federal government in royalties and 5 per cent per year thereafter.
Senator Joyal: In other words, if Newfoundland continues to be a land blessed by God in terms of oil and if oil is found along the shore, as you have identified, the first $2 million in royalties —
Mr. Molloy: It would not be the offshore of Newfoundland. It does not apply to the Labrador portion of the agreement.
Senator Joyal: It does not include Labrador?
Mr. Molloy: No.
Senator Milne: Does it apply to any of the overlapping areas?
Mr. Molloy: It applies to the overlapping areas with respect to the Cree.
Senator Joyal: Can you identify the area?
Mr. Walsh: On this line down here, up to the line there. This is all part of the overlap area with the Cree.
Senator Joyal: In other words, it is clearly recognized that there is a formula for sharing the proceeds from the exploitation of seabed resources. I mentioned oil, but the seabed could contain other minerals. Would that sharing formula apply to any seabed resources that in the future are identified and exploited in the area?
Mr. Molloy: Where there are royalties paid, yes.
Senator Joyal: What would be the circumstances in which no royalties would be paid?
Mr. Molloy: It depends on the legislation that would be in place with respect to royalties.
Senator Joyal: Does that mean that if the agreement goes forward as provided to us in the documentation you have tabled, the Aboriginal people would still own those resources if no royalty is paid?
Mr. Molloy: They are the owners of the resources on the lands that they own. They own the subsurface on 80 per cent of the islands they own; they would control any development that occurs on those lands and they would set their own rate as required from any developer. With respect to the seabed area, they would be entitled to share in the revenues on the basis of 50 per cent of the first $2 million and 5 per cent of all revenue thereafter on an annual basis.
Senator Joyal: How do you determine the scale of payment of the royalties? On which precedence or former agreements did you base that 5 per cent figure, which seems to be rather low?
Mr. Molloy: That was a matter negotiated by the parties. It is similar to the royalties paid in the Nunavut Settlement Area.
Senator Joyal: You used the precedent of the Nunavut area to propose that as being the acceptable solution for the sharing of royalties?
Mr. Molloy: That is correct, because the area in which we were negotiating was part of Nunavut.
Senator Joyal: Do you have any additional comments?
Mr. Molloy: The Labrador Inuit Land Claims Agreement also provided for resource revenue sharing.
Senator Joyal: Was that part of the discussion presented to the Inuit population during the education campaign?
Mr. Molloy: The amount of the royalty was provided in the summaries.
Senator Joyal: I would like to come back to your statement, ``our intention is not to extinguish rights.'' How far are the rights extinguished or not extinguished in that agreement?
Mr. Molloy: Perhaps I was not as clear as I should have been. It is not the intention to extinguish rights. However, there is a provision that would cause the rights to be released if they were asserted by the Inuit as continuing to exist — in other words, if the Inuit tried to argue that there are rights other than those contained in the agreement with respect to lands and resources. Any such assertion would cause those rights to be released, only to the extent of that assertion.
I will ask our lawyer, Mr. Keogh, to explain further.
The Chair: Mr. Keogh, perhaps you can also explain what ``released'' means.
Brian Keogh, Senior Counsel, Department of Justice Canada, Indian and Northern Affairs Canada: We use a number of different words to achieve the same effect. The words ``cede,'' ``release,'' ``surrender'' or ``extinguish'' were previously used in some earlier land claims agreements. You might still find them in more recent agreements applying in certain areas.
In the Nunavik Inuit Land Claims Agreement, we have attempted to avoid any sort of release or surrender of rights by using a technique called non-assertion, which comprises an undertaking by the Inuit not to seek to assert their rights, except those that are set out in the agreement. To the extent that the Inuit have included Aboriginal rights within the agreement, those rights remain as Aboriginal rights and they can be asserted. It is only the rights that have not been negotiated — the rights outside the agreement — that the Inuit may not claim or assert. This is a fairly novel technique that was used as well in the Tlicho agreement.
The courts have not commented yet on the effectiveness of this technique, so we have included a backup release or surrender. It is hoped that it will never be triggered. If the courts give effect to the non-assertion, there will never be any release or surrender of rights. That exists simply as a backup and will apply only to the extent that those rights might prejudice the obligations or rights of Canada, the Inuit or third parties.
Senator Joyal: Could you provide an example of a situation whereby the Inuit would not assert their rights within the context of this agreement?
Mr. Keogh: I can give only a wild example.
Senator Joyal: I would ask for an example that helps us to understand those concepts that are new in terms of legal implication.
Mr. Keogh: A possible example would be as follows: The Inuit will receive fee simple title to about 80 per cent of the land surface in the offshore. If an Inuit person attempted to claim that he had Aboriginal title to some of the remaining 20 per cent of the islands or the land surface, and if the courts actually gave effect to that claim, there would be a release of the Aboriginal right or title to that other land surface to the extent necessary to allow government to use the lands in the way they intended. In some cases, it would allow the Inuit to use the lands in the way they intend.
Here is another example: On the 80 per cent of the land the Inuit receive in fee simple, they are entitled, under the very notion of fee simple law, to use those lands in any way they wish. Aboriginal title contains certain restrictions on the way the land can be used. If someone attempted to tell the Inuit they could not use the lands in the way they wished because Aboriginal title prevented them from doing so, there would be a release of the Aboriginal title, not the fee simple, to the extent necessary to allow the Inuit to make full use of their fee simple rights.
The Chair: I have a supplementary for clarification. As I understand it, the rights that are not to be asserted are only those rights relating to lands or natural resources; therefore, rights that would relate to customary law or tradition in matters other than those touching lands and natural resources remain intact under section 35.
Mr. Keogh: That is correct, Madam Chair. We do not provide self-government rights in the land claim, which does not address self-government rights. There is no release of any self-government rights, except those that affect land or resources, which is what the agreement tries to deal with.
The Chair: I understand the parliamentary secretary has to take his leave. We hope that we can meet with him again.
Mr. Bruinooge: I hope so as well.
The Chair: However, we will continue with testimony from officials.
Senator Joyal: We are trying to understand complex issues.
Senator Sibbeston: I wanted to ask Mr. Bruinooge this question, but it has been more or less answered. Senator Watt was concerned about the fact that in 1982, Aboriginal rights were recognized in the Constitution. From his questioning, I understand that Senator Watt is concerned that these Aboriginal rights were being diminished or extinguished by this agreement. I heard you quote Supreme Court of Canada Justice Lamer on things that need to be done with respect to Aboriginal rights. It seems that the parliamentary secretary launched off speaking to the ratification process and the ability of the Inuit to negotiate.
Is the simple answer not that these are the Aboriginal rights of the Inuit people contained in the agreement? It is not an extinguishment but a delineation of the Aboriginal rights of the Inuit people. This is what we need to understand. I have been a bit of a student of Aboriginal rights. When I went to law school in the 1970s, Aboriginal rights were not well defined. The only Canadian case law then was found in R. v. St. Catharines Milling and Lumber Co. and in the Calder case, which established that government needed to recognize Aboriginal rights.
Since then the courts have written and spoken about this. Year after year, it becomes clear to Canadians what Aboriginal rights are. We have come to the point where land claims agreements are becoming clear and less definitive. We started with treaties that contained words like ``surrender,'' cede,'' and ``release.'' I have reviewed the last three agreements — the Nunavut, Tlicho and Labrador agreements — and have found that the clauses defining Aboriginal rights are much the same as this. I was a bit concerned about Senator Watt's concern that Aboriginal rights are being dealt with differently or are more extinguished than in other agreements.
In response to Senator Watt's concern, can we not simply say that the Aboriginal rights are contained herein with respect to land, water and resources. There is still no limit. I understand that in the Tlicho agreement, if Aboriginal rights surface in the future that have not yet been considered because of lack of awareness, then Aboriginal people will still be entitled to those rights.
Mr. Molloy: I have a comment, after which I will ask Mr. Keogh to speak to the technique in comparison to that of the Tlicho agreement. There is some confusion with respect to what we are doing. The case law referred to and the obligations of the Crown deal with matters of infringement of rights. I do not quarrel with the authorities that have been cited and the principles that governments must follow with respect to when it is infringing rights.
However, we are not infringing rights with this treaty. We negotiated with the rights holders as to how their Aboriginal rights will continue to exist and how those rights will be exercised. We are not infringing Aboriginal rights or title, and we are not affecting section 82 in that respect. We sat down with the people who are the collectivity of the rights and negotiated an agreement. It is not like government taking action by causing a development to go ahead where Aboriginal rights are being interfered with or infringed. That is not what we are doing. It is not an infringement; rather it is negotiating how those rights will continue to exist and how they will be exercised. Perhaps Mr. Keogh will want to deal with the Tlicho certainty.
Mr. Keogh: I will confirm what Mr. Molloy has said. Much of the discussion that led up to the hearing today seemed to be premised on an examination of the case law that deals with infringement of rights. A treaty is not something the government is doing to Aboriginal people. It is a consensual attempt at reconciliation. The applicable law is whether or not the parties are in agreement and have understood what is in that agreement. We are not really looking at a justification test or infringement. All those cases that dealt with justification and infringement really had to do with unilateral action by the Crown that may have harmed Aboriginal people. Then there is a test set up in terms of how section 35 requires government to justify that kind of action. That does not apply to treaty making.
I am not sure what Mr. Molloy wanted me to explain in terms of Tlicho.
Senator Sibbeston: These are the Aboriginal rights of the people, are they not? Can you not say that? It is so simple.
Mr. Keogh: In large part, I think that is right. However, we cannot guarantee that all the Aboriginal rights of the Nunavik Inuit are included in this document. This document may include rights that never existed as Aboriginal rights. It is a negotiated arrangement where the Nunavik Inuit are attempting to put in this agreement what they feel is necessary to protect their traditional way of life plus secure some economic development or whatever else they consider their interests.
Senator Sibbeston: Are there not provisions that state that if in the future there are rights that come to light, they can be included? Aboriginal rights are in the Constitution, so they will be there forever. A hundred years from now, Aboriginal Inuit people may assert an Aboriginal right that is not known today. Does this agreement make that possible? It does not completely shut out or eliminate all the Aboriginal rights that could ever exist and be known. In 100 years from now, if there is an Aboriginal right, let us say, to go to the moon or to Mars, would it be possible for the Aboriginal people to have that right written in the agreement?
Mr. Keogh: This agreement will not affect any rights outside the Nunavik Marine Region. It will not affect rights that do not affect lands and resources. It is intended to be a full list of all the rights that the Nunavik Inuit will have in the area covered by the agreement with respect to lands and resources.
It is intended to avoid issues about future litigation, whatever those rights may be. Both parties in a sense are taking a bit of a leap of faith. Aboriginal rights are ambiguous. Nobody really knows exactly what they are, who exercises them or the exact location of the rights. In order for both parties to avoid that ambiguity, those rights will now be within the corners of the agreement.
The Chair: I have a couple of points. Senator Watt has a short supplementary. Before I give him the floor, however, I will give you the bad news and the good news. The bad news is that I will hold these witnesses until 6 o'clock and then ask them to leave even though we have a long list of questions for them, because we have other witnesses waiting to be heard. The good news is that the officials will join us again tomorrow morning. Therefore, any questions that we do not have a chance to ask this evening, we will be able to ask tomorrow.
Senator Watt: I wish to clarify further an extension to the question asked by Senator Sibbeston, who raised the issue of the Aboriginal rights contained in here. Mr. Molloy has confirmed the worry I have. That is to say, the title to the Inuit has been removed through these negotiations and replaced by the fee simple title. At the same time, the lawyer explained that the customary laws, the traditional knowledge and the Inuit rights remain in existence. However, they are given an instrument such as the land use management review board and the wildlife board to be able to discuss those issues. Is that correct? That is what I understand.
In other words, you are giving an instrument three bodies to allow them to be able to eliminate the rights through their regulatory fashion.
Mr. Molloy: I do not agree with the premise of the question. The Aboriginal rights to self-government continue to exist. The boards that are created in the land claims agreement are not self-government. They are public institutions that are created through or promised through a land claim agreement. They are not intended to be part of the inherent right of self-government. They are part of the public government of Nunavut and are created to provide a role for the Inuit of Nunavik to be able to participate in the decision making that occurs in Nunavut.
They are instruments of public government. The persons appointed to those boards, the three representatives from the Inuit of Nunavik and the representatives of the federal government and the Nunavut government, make recommendations with respect to the chair. Once that board is appointed, there is an oath of office that they take which is contained in the agreement and was negotiated as part of the agreement so that they cease to represent the parties who appointed them and they become part of a public board.
Senator Watt: You are not answering my question.
Senator Adams: Thank you for appearing. I have known Mr. Molloy since the beginning of the Nunavut Land Claims Agreement.
Before I talk about Indian and Northern Affairs Canada, I have a question. When those people first negotiated between Nunavut, the Cree and the Labrador Inuit Association, how did the beginning of the agreement work with respect to the boundaries of hunting rights and the Makivik Corporation?
Mr. Molloy: The Cree and the Inuit had negotiations and discussions among themselves about the location of the boundaries of their shared areas. I think they would be better able to describe the process they followed. Their process was similar to the one used by the Inuit of Nunavik and the Inuit of Nunavut when they dealt with their overlap areas at the time the Nunavut agreement was being concluded. They also sat down with the Labrador Inuit Association and worked out their overlapping arrangements.
A very important part of this treaty is that the Cree, the Inuit of Nunavut, the Labrador Inuit Association and the Inuit of Northern Quebec have talked about how they will use their territories, how they will share the lands and the resources and how they will participate in the management of the region. Some of the agreements they negotiated have been reflected into and respected in the Makivik treaty. It is another example of how, working together, solutions have been found and how these arrangements stand at risk if the treaty is not ratified.
Senator Adams: It may be spring before Nunavik and Makivik Corporation will be entitled to have a hunting area at Hudson Bay. Did that have anything to do with them saying, ``We like to hunt over there?'' I was an MLA in 1970 with Senator Sibbeston in the territorial government. At that time, we were only allowed up to that tidal water. Is that true today?
Mr. Molloy: The agreements make provision for the Inuit harvesting from Nunavut within their traditional areas to continue.
Senator Adams: Up to tidal water? If this passes, however, they will have a boundary up to the islands. They did not have that right previously.
Mr. Molloy: They had the ability to continue to exercise the right in their traditional area. Whether or not it went up to the tidal waters, I cannot answer that question specifically.
Senator Adams: In the negotiations between Nunavut and the Department of Fisheries and Oceans, was some of that developed for the future hunting rights for whales, seals and polar bears?
Mr. Molloy: There is provision in the agreement for participation in the commercial fishery. Also, part of the negotiations included recognition that the Nunavut Inuit also use the Davis Strait area for commercial harvesting. That was taken into account.
Senator Adams: Officials from the Department of Fisheries and Oceans, DFO, came to see us early in the fall. Five years ago we passed Bill C-5 regarding risk to species and certain mammals. Right now the people of Nunavut have a hunting quota for beluga whales of 100 whales. If this bill passes, I understand the quota will go up to over 200 every year. I do not know if you are familiar with that, because you are not from DFO. This may be something we have to talk about later.
Mr. Molloy: I do not have any knowledge of that.
Senator Adams: Does anyone else know about this? Do you, Mr. Walsh?
Mr. Walsh: I cannot speak about Bill C-5, but regarding the quotas on belugas, my understanding from speaking with DFO officials is that there is a management regime now that encompasses the various Inuit communities in the Hudson Strait area; quotas are set and a management plan is established. Once a Nunavik Marine Region wildlife board is established under the agreement, then there will be a formal way of influencing those quota decisions. They will be able to make formal representations.
Senator Adams: Mr. Molloy, perhaps you can explain this further. Right now, the Inuit do not have rights to get at the bottom of the sea around Hudson Bay up to Ungava Bay. Anything now between that boundary and inside the island, anything to do with mining or things like that, would you say there is up to about 50 per cent agreement with the companies, or is it the same as in Nunavut? That is, if there is anything in the Nunavut side, there can be up to 50 per cent agreement between the mining companies and the oil companies. It is the same?
Mr. Molloy: In terms of offshore, I indicated earlier that there was a royalty sharing arrangement similar to the Nunavut arrangement. However, I am not clear on the question with respect to the other percentages that were referred to.
Senator Adams: Nunavik is entitled to anything on those islands. It can go up to 100 per cent, can it not?
Mr. Molloy: They own 80 per cent of the islands. They would control whatever development occurs on that 80 per cent of the land.
Senator Baker: I shall recognize the presence of former member of Parliament Guy St-Julien, who was a Liberal member as I recall, but then the Conservatives told me that he was also a Conservative member.
Senator St. Germain: A man for all seasons and all reasons.
The Chair: Let me note for the record that Mr. St-Julien is not at the table but he is in the room, and we are always pleased to welcome former parliamentary colleagues.
Senator Baker: In an agreement such as this is, I think about certain regulatory authority given under specific legislation, such as the Fisheries Act. In the Marine Mammal Regulations, which undergo substantial changes as the years pass, there is a marvelous phrase that states that this section of the regulations applies, except for beneficiaries. The beneficiaries are defined as beneficiaries under land claims agreements that have been made by the government.
Under the Marine Mammals Regulations that cover the harvesting methods and the killing of marine mammals, seals and so on, beneficiaries are excluded from some of the regulations. Does this agreement provide for the necessary exclusion from some of those ridiculous regulations that DFO has related to the killing of marine mammals? Will the people in this marine regulatory area that we are speaking about have the same recognition as beneficiaries? For example, the sale and marketing of whitecoats, or harp seal pups, is restricted and prosecuted in provinces such as Newfoundland. Will the people covered by this agreement be excluded from such prosecution, or am I hoping beyond all hope that that will be the effect, Mr. Molloy?
Mr. Molloy: There is a provision that deals with methods of harvesting. It is 5.3.23, which provides that:
A Nunavik Inuk may employ any type, method or technology to harvest pursuant to the terms of this Article that does not:
(a) conflict with a non-quota limitation on type, method or technology of harvest established by the NMRWB pursuant to sections 5.2.19 to 5.2.22;
(b) conflict with laws of general application regarding humane killing of wildlife, public safety and firearms control; or
(c) result in harmful alteration to the environment.
Senator Baker: Good. I take it from that that your opinion, without deciding the matter, Mr. Keogh, is that as the James Bay and Northern Quebec Agreement affords rights to beneficiaries — which are excluded under the marine mammals section dealing with the method of killing seals, for example — so this legislation will afford the same protection for the people under this act. Without deciding the matter, your opinion on that would be appreciated, Mr. Molloy.
Mr. Molloy: They would be excluded from the provisions of the legislation, subject to complying with the sections of the agreement.
Senator Baker: I am glad to hear and to read that, because people are being bothered by Fisheries and Oceans Canada for no reason at all. They are being arrested for carrying out a method of killing that is necessary and that they have always done.
Will this agreement guarantee now something that was not guaranteed before? That is, when there is an increase in quotas — we are talking about the water and fish swim in the water — are we here guaranteeing the people covered by this agreement a guaranteed percentage of the quotas of turbot as a groundfish and shrimp — perhaps the most profitable thing coming out of the ocean — under this agreement?
Mr. Molloy: With respect to the turbot, they are now entitled to 2.54 per cent of an area in the Davis Strait — up to 5,500 metric tonnes and 10 per cent of any quota over and above that.
Senator Baker: You say 10 per cent of any quota over and above. Do you mean that for any increase that would happen in the future, they are guaranteed 10 per cent of that increase?
Mr. Molloy: If licences are granted for it, yes.
Senator Baker: Are they guaranteed 10 per cent, as you just mentioned, of the increase in the quota of turbot?
Mr. Molloy: No; it is the increase over the 5,500 metric tonnes.
Senator Baker: In other words, they are guaranteed something they did not have before.
Mr. Walsh: They are guaranteed the same amount they have now. If the quota is increased, they will get 10 per cent of the increased quota. The other 90 per cent will be reserved for the Nunavut Inuit.
Senator Baker: That is turbot; what about shrimp?
Mr. Walsh: For any increase in shrimp licences or quotas for the offshore of Labrador — in that portion that is Canadian fisheries water — they will get a certain percentage; I believe it is 10 per cent of that increase in quota. That is, if the quota or licences are increased.
Senator Baker: My final question is a legal one that perhaps Mr. Keogh, Mr. Molloy or Mr. Walsh could answer.
In the past, we have had certain ministers of Fisheries and Oceans Canada who were judged to have gone outside the law by our Federal Court in giving quotas for fish without consulting with the people of Nunavut. Will this guarantee that consultation will take place before a minister gives a quota and that we will not have a minister in Ottawa giving away quotas of fish to foreign nations as they have in the past, without consultation?
Mr. Walsh: With regard to Nunavut, there is a clause in the agreement that specifically states that in all cases, Nunavut Inuit will always receive more fish than is ever granted to Nunavik Inuit. It was a clause requested by the Nunavut government and agreed to by Canada and the Nunavik Inuit.
Senator Baker: That was not my question. The court said that the minister must consult, and this thing went to trial. Mr. Keogh, do you recall the case?
Mr. Keogh: No, I am not aware of the case.
Senator Baker: It was Minister Mifflin who at the time was the Minister of Fisheries. Do you recall that?
Mr. Keogh: No.
Senator Baker: There is a mandatory consultation process before increases in quotas are given in areas covered under this agreement; is that correct?
Mr. Molloy: I think that the agreement is protecting and guaranteeing the percentage of quota that is increased. How that quota is set is not determined by this agreement.
Senator Baker: However, you are getting something you did not have before.
Mr. Molloy: In some cases, yes.
Senator Milne: I will be extremely brief. It really does not ask a question. I want the officials, or whoever may be sitting here in the audience who has the minister's ear and the ear of the parliamentary secretary, to take back a message.
I think that because the minister was not here, it tells me that he really is not terribly concerned with the passage of this extremely important matter. I believe that this is the first time I have ever sat in this committee and heard a witness come before us and spend three pages of their presentation —
Senator St. Germain: I think this is out of order, Madam Chair.
Senator Milne: — describing the history of a member of this committee. I was appalled and I think he wasted his time and ours.
The Chair: That was not a question; that was a statement and I think it came right up to the line. It is true that the parliamentary secretary's presentation was unusual in form, which is why I went first to Senator Watt rather than, as would normally be the case, to the lead representative of the party other than the party of the chair. That is why I am going back to Senator Watt now.
Senator Watt: Thank you, Madam Chair. I would like to continue in the hopes that I can exhaust the questions that I have prepared. I would like to have some time to get some answers.
Let me start off with the question raised by Senator Baker in relation to the commercial activities. I did as much as I could to try to identify and find a section in the agreement that deals with the subsistence needs of the Inuit people, namely the right to eat. I failed to recognize anything other than the fact that their subsistence needs will be dealt with by regulatory bodies such as the wildlife management board. Is that the case?
I have difficulties when people lump together in law commercial, sport and subsistence hunting. In the James Bay and Northern Quebec Agreement, we made a full attempt to make sure that ``subsistence'' is a priority that must be taken into account, because the people are depending on that. For the Inuit in the James Bay, Hudson Bay and Hudson Strait areas, food source requirements represent 75 per cent from the subsistence harvests. This is very important. You might not consider this to be an economy, but this is a big source of their economy.
Can you enlighten me on that? Please try to make your answer short because I have other questions that I would like to put forth.
Mr. Molloy: The treaty contemplates that there is a presumption that for 20 years, any quota that may be fixed for a number of species will be the total allowable take of the Inuit. They have an exclusive priority to a number of species, and there is a presumption that if there is a quota set, they will be entitled to the full quota.
Senator Watt: You said 20 years; is that correct?
Mr. Molloy: Yes.
Senator Watt: My reading of the text is that 20 years is applied to restrict the beluga harvesting level. That is not necessarily a benefit to the Inuit; it is an extraction. That is my reading of it and that is the legal advice I was given, also.
Mr. Molloy: The section says that the total allowable take of these species, which included the beluga, are the exclusive take of the Inuit.
Senator Watt: We will re-examine that aspect of it to see whether my point is clear or not.
I would now like to deal with the question of the Nunavut laws that would apply to Nunavik Inuit and Nunavik Inuit land. I assume when you say the Nunavik Inuit lands, that applies only to this particular agreement that deals with offshore islands?
Mr. Molloy: That is correct. Those lands are in the political jurisdiction of the Government of Nunavut.
Senator Watt: When looking at the map, you can see the distance between Nunavik, which is in Quebec, and the tip of Baffin Island, which is Nunavut. If the Nunavut Inuit law will apply for regulating the islands and the activities within the ocean, which Inuit will have a membership within those various bodies? I do appreciate that they have membership in those bodies.
However, when I count the numbers of your board, the Inuit who are directly affected do not have the majority; they are in the minority in the board structure. This is a regulatory body and not a legislative body, without having influences in the Legislative Assembly of Nunavut. Perhaps if we did have a membership within the legislative assembly, perhaps our interests would be taken into account and we would have a certain amount of influence. However, in this case, we are at the bottom of the ladder of that regulatory body that has the ability to make recommendations and also the ability to enforce the law.
Do you not see the uneasiness that, over time, will develop between Nunavut and Nunavik?
Mr. Molloy: We recognize that, historically and before Canada was formed, the Inuit used all of those lands in Labrador, in Quebec and in the Nunavut offshore. However, in negotiating this agreement in the context of the Canadian Constitution, we must recognize the boundaries of provinces and of territories. I believe that this is the first land claim agreement that has guaranteed beneficiaries who live in one political jurisdiction a role in a public government body in another political jurisdiction.
I do not believe that this has ever happened before. The Inuit of Nunavik who live in Quebec are guaranteed representation on public institutions in the political jurisdiction of the Government of Nunavut. That is, I would say, one of the ways in which we tried to ensure that the Inuit of Nunavik have a role in the management that is critical to their use of the islands: land use, planning, wildlife management and impact review.
Senator Watt: I understand that is the case at the regulatory level.
Mr. Molloy: That is right.
Senator Watt: I understand that.
Mr. Molloy: The issue is that we face is the reality of political jurisdictions in Canada and lines that were drawn on maps that are part of our Constitution.
Senator Watt: Mr. Molloy, this is why the Government of Canada realized the rights and claims that do exist. If you do not realize that they exist, you would not enter into negotiations. There must be some flexibility, regardless of the boundaries and jurisdictions. This is what the negotiation is all about. It is necessary in order for the people in the country to be able to live in harmony with each other. That is what I am looking for. I am not looking for any destruction. I am worried that, due to the department trying to respect jurisdictional boundaries, this could lead to further uneasiness in this country.
Mr. Molloy: Today, the reality is those islands are subject to the Government of Nunavut. We are providing management regimes through this agreement that will give Inuit living in Quebec a role in the decision making of the Government of Nunavut. With some of those boards, the ministers are bound or constrained in their ability to override decisions of the management boards. You have to look at each board and see how the discretion of ministers is fettered by those boards, and examine what particular circumstances a minister has an ability to override. These boards are decision-making boards subject in some cases to ministerial overrides. I think that gives the Inuit quite a strong role in the management of the resources that are critical to them.
The Chair: We will continue this tomorrow, Senator Watt.
Senator Watt: I have only one small question.
The Chair: I will give you and Senator St. Germain 30 seconds and then I will close the discussion.
Senator Watt: We will clearly examine those issues. I fully understand the different levels of authority. I am not new to this issue. Do not think that you will pull the wool over my eyes when you say that they will have an ability to make decisions. Mr. Molloy, with all due respect, the way I understand it, they have recommendatory functions but nothing more. On top of that, they are a minority, I am sorry to say.
Mr. Molloy: Madam Chair, I disagree with the interpretation.
Senator Watt: We do not agree, then.
Senator St. Germain: Mr. Molloy, first, I wish to say that Senator Watt's concerns should be addressed. I am respectful of the fact that he has brought forward concerns. I think that the government tried to respond to his concerns as a result of the speech that he made in the Senate. However, this agreement has been negotiated for years, Mr. Molloy. It transcends governments; I do not know how many.
I think I will ask the following of the next set of witnesses as well: Do you have any reason to believe that if the ratification process were revisited, there would be any change? I am not trying to put you on the spot. If you cannot answer, that is fine. While you wait for this bill to pass, and before we deal with it, is there any reason for you to believe that ratification would change?
Mr. Molloy: I follow the papers and look at some of the materials published by Makivik, and I have not seen any indication of issues that have arisen in public, at least. I do not tend to be fully on top of everything that is happening in that region, but certainly nothing has come to my attention in the public forum that would indicate that.
The Chair: Thank you very much. Thank you in advance for agreeing to return tomorrow. I already have a long list of senators who want to continue asking you questions. We look forward to having you with us tomorrow.
Honourable senators, I will have to return to the Senate chamber. Therefore, the chair will be taken over by Senator Milne. The deputy chair of the committee is caught in the toils of the airline system and will be with us when she can. Senator Milne, as we all know, is the third member of the steering committee as well as the former chair of this committee. She has kindly agreed to take over as chair now.
Senator Lorna Milne (Acting Chair) in the chair.
The Acting Chair: Honourable senators, our next set of witnesses are from Makivik Corporation: Mr. Pita Aatami, President; Mr. Johnny Peters, Chief Negotiator; Mr. Sam Silverstone, Legal Counsel; and Mr. Putulik Papigatuk, Negotiator. As well, an interpreter is present to ensure that we all understand each other. Mr. Aatami, please proceed.
Pita Aatami, President, Makivik Corporation: I am sorry that some of the senators had to leave. You have made introductions. My name is Pita Aatami. I am the president of the Makivik Corporation. I was first elected in 1998 and have been the president since then.
I appreciate the opportunity to come before you today to speak about the Nunavik Inuit Land Claims Agreement, NILCA, and Bill C-11. The NILCA treaty is a historic achievement for the Inuit of Nunavik and for Canada as a whole. It serves to confirm our Aboriginal rights in the offshore areas surrounding Quebec and in the northern part of Labrador. It has taken over 30 years of research, negotiations and hard work by all the parties to achieve this treaty.
I will give you an example. I know some of the members from the Government of Canada were saying that we had to have overlap arrangements. It was a complicated case to reach overlap arrangements with our fellow Aboriginals from the Cree side and from the Inuit of Labrador. We had overlap arrangements with the Inuit of Nunavut previously. The offshore area comprises five parties: the Government of Canada, the Government of Nunavut, the Inuit of Labrador, the Cree, and the Inuit of Nunavik. Just to give you an idea, it has taken that long to reach an agreement.
For the Inuit of Nunavik, the Government of Canada and the Inuit of Labrador and the Government of Nunavut, this treaty is an important milestone for many reasons. Permit me to mention only a few. This treaty fulfills a promise made by Canada to Nunavik Inuit in 1975 at the time of the signing of the James Bay and Northern Quebec Agreement, which addressed Nunavik Inuit rights in Quebec. At that time, Canada promised to complete in the future the settlement of Nunavik Inuit land claims by negotiating an Inuit treaty for an offshore area of Quebec. NILCA is the constitutionally protected treaty that addresses the Nunavik Inuit claims to the offshore. Passage of Bill C-11 will show that Canada has kept its promise to Nunavik Inuit.
This treaty and Bill C-11, when adopted, will create the Torngat Mountains National Park in Northern Labrador. Bill C-11 will not only bring into effect our treaty but it will also bring into existence the new Torngat Mountains National Park in Northern Labrador and protect this important part of Canada. Creation of this new national park by Canada will provide a special opportunity for Nunavik Inuit to confirm their rights in Northern Labrador and to achieve an overlap agreement with the Labrador Inuit. The overlap agreement provides for both Nunavik Inuit and Labrador Inuit to share in the management and benefits of the new Torngat Mountains National Park and to continue to enjoy and share their harvesting activities in the park.
The treaty contains three major overlap agreements with three Aboriginal groups: the James Bay Cree, the Labrador Inuit and the Inuit of Nunavut. I give special mention to these three overlap arrangements because they represent the product of years of tough negotiations by all parties concerned. These overlap arrangements mean that once Bill C-11 is adopted, the Aboriginal groups party to these overlap arrangements can exercise and share their rights in the overlap areas in peaceful coexistence and friendship.
These overlap arrangements can serve as a model for claims negotiations in other parts of Canada. Too often, Aboriginal claims are settled without sufficient and timely consideration of the overlapping claims and interest of other Aboriginal groups. This approach only serves to create conflict and, in too many cases, litigation. The incorporation of all the necessary overlap arrangements in a treaty, as was done in the NILCA treaty, is a much more positive and productive way of addressing overlapping interests of other Aboriginal groups. Respect of each other's viewpoints is the key. We appreciate that Canada took the time and effort to encourage concerned Aboriginal groups to cooperate and to reach overlapping arrangements in our negotiating process.
There are many other positive features that the Government of Canada highlighted when they made their presentation earlier to you, so I will not go into those details today. It is very important for the Inuit of Nunavik to have this treaty passed by the Senate. We have worked too many years to get here to have it stopped specifically by one person now. I am sorry to say it, but 80 per cent of the people voted, and 78 per cent of the population voted in favour of it. There was full consultation done. The Makivik executives went to all the communities twice. The negotiating team in conjunction with the Government of Canada and the Government of Nunavut went to all communities once again. Everyone was given copies. To have someone say that Inuit did not know what they were voting for is not true at all.
As an Inuk person wanting to ensure that my rights are protected under the Constitution, one of the first questions I asked was whether my rights will be protected if this agreement is passed and adopted. I was given a clear yes, they will be protected under the Constitution. As an Aboriginal person, I can still hunt and fish on these islands as we have done for thousands of years. We do not even know how long we have been using these islands.
I have come a long way to talk to you on behalf of the Inuit who voted in favour of this to have it pass in the Senate. I am very hopeful that my visit will make a difference. If all the people that voted in favour could come here and say what I am saying, they would do that. Unfortunately, the cost is prohibitive to come here to speak to you. I can assure you that, as I said, I wanted to make sure that my rights gained under the Constitution that Aboriginal people have worked so hard for will be protected, and I have been assured of that. If you have any questions of a legal or technical nature, I have invited my legal counsel, Mr. Silverstone, to sit with me if I cannot answer the legal or technical questions.
There is a lot of good in this agreement, and it was already highlighted. Please listen to the Inuit of Nunavik.
The Acting Chair: Thank you, Mr. Aatami. Your sentiments are deeply felt. Does anyone else wish to comment?
Mr. Aatami: One of the negotiators, Mr. Peters, could say a few words. He has been involved from the beginning.
The Acting Chair: Absolutely.
Johnny Peters, Chief Negotiator, Makivik Corporation: I will speak in Inuktitut.
[Interpretation]
Honourable members of the Senate, my name is Johnny Peters. I am the Vice-President of Resource Development of Makivik Corporation. I was also the chief negotiator for the Nunavik Inuit through the negotiations leading to the Nunavik Inuit Land Claims Agreements.
The briefing material submitted for this hearing provides the specific details concerning the treaty. I would like to take a few minutes to try to convey to you the importance of this treaty to Nunavik Inuit and their families.
We are a people who have lived for thousands of years on the land. The land is our world view, which also includes marine waters and the islands. Many of us were born on islands and spent much of our lives travelling the waters and harvesting the marine resources. Many of our ancestral and archaeological sites are found on the hundreds of islands in the Nunavik Marine Region. There are also many places of spiritual importance to us on those islands. Our elders regularly bring young people to those sites to teach them the traditional Inuit way and to share their experiences.
Many of us Inuit were born in igloos. I was a youth before I saw a southerner. Much has changed in our lives, but what has not changed is our attachment to the sea and to the marine resources. We use the offshore year round. In the summer, we travel by boat and set up our summer camps on the islands. In the winter, we use the sea ice as our highway and hunt seal and fish through the ice. Much of our food comes from the marine area. Seal, beluga, walrus, fish and waterfowl are plentiful. Many of our skills have evolved around the hunting of marine mammals. Every young hunter remembers the thrill of his first seal.
One of the important objectives when we began negotiating this treaty was to try to streamline the jurisdictional complexities we faced when trying to manage wildlife and other resources in the offshore area. Many of the species are migratory and are harvested by both Nunavik Inuit and Nunavut Inuit.
We have succeeded in creating management regimes in the Nunavik Inuit Land Claims Agreement that are compatible with those established in the Nunavut Land Claims Agreement. Cooperation and collaboration will be assured between the two regions.
The public institutions, which will include wildlife, land use and impact review regimes in the Nunavik Inuit Land Claims Agreement, will have boards where Inuit from Nunavik and government representatives will work together to manage, research and monitor the lands, waters and resources in the Nunavik Marine Region.
Since the signing of the James Bay and Northern Quebec Agreement in 1975, I have been actively involved in wildlife issues in Nunavik. Makivik Corporation now has a well-respected research centre in Kuujjuaq and a unique Inuit land use and ecological database that has been developed over the past 30 years. It represents information from hundreds of interviews with Inuit, many of whom are no longer with us today. We have much to contribute as these new regimes are being implemented.
Members of the Standing Senate Committee on Legal and Constitutional Affairs, I have dreams of the day when Nunavik Inuit rights to harvest wildlife in the offshore area would be recognized and safeguarded. I have dreamed of the day when Nunavik Inuit would sit together with governments and bring our traditional knowledge and skills to the task of managing the wildlife and resources of the offshore region.
We have worked long and hard to come to this day. I am proud of what we have achieved in these agreements — not so much for myself and for my generation but for our children. We are providing them with an important sense of continuity in their land base and an array of tools for managing resources.
Nunavik Inuit voted overwhelmingly to ratify their treaty in October 2006. The agreement was signed on December 1, 2006. The time to conclude this work is now.
[English]
The Acting Chair: Thank you Mr. Peters.
Senator St. Germain: I participated, starting with the Nisga'a agreement. I know how tough these negotiations are. I abstained from voting because overlap situations were not resolved. You are to be congratulated on being able to resolve these overlap situations with your neighbours and on making real progress.
Mr. Aatami, the Nunavik Inuit have been through two treaty negotiations — the James Bay and Northern Quebec Agreement in 1975 and now the Nunavik Inuit Land Claims Agreement signed in 2006.
Do you consider, from your expertise and experience, the latest treaty signed to be an improvement over the James Bay and Northern Quebec Agreement? Where do you see yourselves today? Are you ahead or at the same level, but further down the road?
Mr. Aatami: I was too young when the James Bay and Northern Quebec Agreement was signed, but I can tell you that the current agreement is much better.
I will give examples why this agreement is a step up from the James Bay and Northern Quebec Agreement. In that agreement, we got 2 per cent to 3 per cent of the land mass, when Nunavik is bigger than the country of France.
With the current agreement, we own 80 per cent of the islands and subsurface rights. We will have wildlife management boards in which we will have a say in what happens around these islands and the marine regions, which was never the case before. There will also be compensation funds that are badly needed for economic development in the region.
With overlap arrangements with the Inuit of Labrador and Nunavut and the Cree, we will have no more disputes once this is ratified. Overlap arrangements are complicated and take years sometimes to reach an agreement, but we managed to reach agreement with three different parties, which surprised the Government of Canada. This is much better. There has been no surrender of anything. Yes, they are using the word ``certainty'' in particular clauses but, in our opinion, it is a step up and it is much better.
Senator St. Germain: You are getting 80 per cent of the land. Prior to that, you said you got only 2 per cent; is that correct?
Mr. Aatami: Under the James Bay and Northern Quebec Agreement, we got 2 per cent to 3 per cent of the land mass of Nunavik in Northern Quebec.
Senator St. Germain: Was Mr. Peters part of the ratification process?
Mr. Aatami: As one of the negotiators, he was part of the ratification process in conjunction with the governments of Nunavut and Canada.
Senator St. Germain: We all know that we live under a democratic system. I am sensitive to the concerns of everyone, because if the Metis were at the table, as a Metis myself, I would want to be present to have my voice heard as part and parcel, in all likelihood.
I do not think we can discount the fact that what is happening is being questioned by some — not many, but by some.
My question is this: If you went back for ratification tomorrow, do you think you would get the same results, based on the information that is being circulated today, that there were apparently 4,800 people who voted for this — 78 per cent — 183 voted against, and there were 10 abstentions from your vote? Do you think you would come close to the same percentage of approval to proceed as you did at that time?
Mr. Aatami: That is irrelevant now. The people already voted. They understood what was in the agreement. It was a ratification process. They were consulted. They were given the agreement. Every household received the agreement. It was also on the website. Therefore, it is irrelevant now if they were to vote again. They have already voted. Once a vote is cast, it is done. However, I believe they would vote overwhelmingly again.
Senator St. Germain: That is what I wanted to hear.
Senator Adams: I will ask this question in English. I asked the officials from the department about the James Bay and Northern Quebec Agreement. Before that, for any mammals, such as whales and polar bears, there was a chance to negotiate between the territory government and the land claims settlement with Nunavik. Every year, there were quotas that were negotiated. Is that true?
[Interpretation]
Mr. Peters: In Nunavik, the quota system on the whale hunts has been an ongoing issue for a long time because the Province of Quebec has no jurisdiction over marine waters or the islands.
Although the Department of Fisheries and Oceans has had a lot of presence in the other regions, such as in Labrador and Nunavik, recently the Department of Fisheries and Oceans has been active in Northern Quebec. It has been a few years.
One of the issues that is complicating when it comes to quotas is that in our area, an Inuit community that is within the Nunavut Land Claim is separate from us. They can hunt whales as much as they want, but we cannot do that. We are restricted.
[English]
Senator Adams: Will we still have negotiations between Nunavut and Nunavik in the future about the quotas on whales in the land claims settlement? Right now, the Nunavik government has a 12-mile limit. I see that you have more than a 12-mile boundary around Hudson Bay. Will that still be the case in the future, since it is run by DFO with respect to beluga whales and other species at risk?
Mr. Aatami: Mr. Peters already mentioned why this agreement should be passed; namely, in order to start the discussions with the Government of Nunavut and the Government of Canada. We will be actual players in this, along with the wildlife management boards that will be created under the Nunavik Marine Region.
That is why we ask this to be passed, so that we can look at the beluga question, or any other species at risk. I will give you an example. Regardless of which government is governing, whether it is the Government of Nunavut or the Government of Manitoba, there is a certain jurisdiction in the ocean where the Species at Risk Act, SARA, will always override. If the Government of Canada feels that any species is at risk, it will override that, regardless of whether or not I have an Aboriginal right. I want to make that clear.
If we have an agreement, we will start the discussions to look at the beluga question. Why can some people catch so many, and we are only allowed hunting within the same species?
Senator Adams: This afternoon we heard from officials from Indian and Northern Affairs Canada stating that we had 2.2 per cent in 0B in the quotas in the Nunavut area. With the agreement here, you will be able to go up to 10 per cent. Is that true with respect to the quotas in the 0B region?
Mr. Aatami: I am trying to figure that out. I believe we answered that question. It would be repetitive to answer it again.
Senator St. Germain: He has answered that question.
Senator Adams: Will Mr. Molloy look at that?
The Acting Chair: No. Mr. Molloy is not at the table right now, Senator Adams. You may want to ask him later.
Senator Adams: I heard from the Indian and Northern Affairs Canada that there are quotas in the 0A and 0B regions of Nunavut. You usually get a percentage for Nunavik for the quotas up there. Perhaps that was never negotiated. Is that the way it works?
The Acting Chair: If our witnesses do not have a response to that, Senator Adams, you can ask that question of the officials tomorrow when they are here again.
Senator Joyal: I would like to make a brief comment and then defer to Senator Watt, because he has been mentioned by the witness and has not had an opportunity to express himself.
Mr. Aatami, I take exception to your statement that one person may be holding up this agreement. I have known Senator Watt for 27 years now. He appeared in front of me when we were discussing Aboriginal rights in section 35 of the Constitution. I saw him in the intervening months when the premiers in Canada decided to review the substance of that section of the Constitution. He fought for all the Aboriginal people of Canada, be they Indian, Inuit or Metis.
I think the comments you made around this table hurt me because we are not experts. There are not many senators who have Senator Watt's expertise and background. It is helpful for us to listen to him and to have the opportunity to hear him exchange points of view with you. It is helpful not only for the Inuit people but for all Canadians in order to understand the implications of such an important agreement and precedent.
We celebrate that you have brought so many diverse groups together. We know how difficult it is to bring different parties that have different backgrounds and histories, whether there were conflicts or celebrations of achievement. As much as we applaud the fact that the various groups that you mentioned have come to terms and made an agreement, we owe Senator Watt a lot of respect. I differ from you on the basis that daily Senator Watt helps the Senate to understand the implications of legislation that might affect the Inuit people.
Perhaps I over-read your statement, but as one who has worked with Senator Watt for 27 years, I can testify to his good faith and his dedication to helping the Inuit people take part in the Canadian fabric.
The Acting Chair: Thank you, Senator Joyal.
Mr. Aatami: Before Senator Watt asks a question, I would like to make a comment.
Regarding what I said previously, that is how it is perceived by the Inuit of Northern Quebec; namely, that one person tried to stop a process that the people have already voted on.
I have known Senator Watt all my life; you have known him for 27 years. I know the work that Senator Watt has done on the behalf of Aboriginal people. I acknowledged that in the past and I still do today.
However, we are in very different circumstances today. If you need information about Aboriginal people and the Inuit of Nunavik, talk to the elected people like myself. I am ready to come and talk to you about the Inuit. As I said, I will not go out of my way to lessen the rights that we gain under the Constitution. Why would I do that? An Inuit person would understand where I am coming from.
For Mr. Peters, wildlife has been his life. It is our life. We will not throw away the rights that Senator Watt achieved for us. I know that. However, today we are discussing this agreement. We appreciate what the senator has done on our behalf; I have never denied that. If I said something wrong to make it sound like it is only Senator Watt, I do so because that is how it is perceived by the Inuit of Nunavut.
Senator Watt: Let us not get too personal. We are all supposed to be professional. Otherwise, we have no business being here.
I do thank Senator Joyal. There are still a lot of issues that we must deal with. I think we all acknowledge that.
I am not here to block you. I am here to defend your rights. That is my poor occupation. My goal is not to destroy you or to get you somewhere that will lead you into believing something that is false. I am here for you and nothing else. I do have responsibilities as a senator, and not only as a senator but as an individual Inuk person here as a parliamentarian to do my best with regards to the way I see things and the way I understand how the law works.
As you know, you cannot marry two professional people because they always have their own way to interpret certain things. Maybe this is where we are. Nevertheless, I still have a great deal of concern.
First, I speak fluent Inuktitut.
[Senator Watt spoke Inuktitut.]
I realize who we are and I do not take that lightly. However, there is one thing that I will tell you: The law works in mysterious ways. There are always evils in the details, which I deal with on a daily basis. This is what I am trying to alert you to.
I listened carefully to Mr. Molloy and the points that he made. I also understand why those actions are taking place. Once we have titles, we have freedoms. We had 100 per cent rights of all the activities of the area that you are dealing with now. If the government does not realize that you have that 100 per cent and you have a constitutional right, they will not negotiate with you. Make that clear. This is important.
You talked about 80 per cent — what you gained. You did not gain that as a title. The lands are clearly owned by the Government of Canada under the fee simple, but you do have rights on top of that. This is clear; this is the way the law is.
What concerned me most is this, and let me try to illustrate it in a way that any ordinary person can understand. You are undressing me as a Inuk, so to speak. When I wake up the next morning, I will no longer be dressed as a Inuk person because I have to correspond with the law that exists — what Mr. Molloy has stated.
This is why I am trying to make the point that there are consequences. Everything has a consequence. I know the people have voted for this, but did they understand the consequences? I am one of you. I listen to the radio. I followed the programs that you were delivering into the community. The questions that I am raising were never raised. That is why we are here.
I am not trying to block you, but I am trying to say that if you think Aboriginal rights are important, can we try to improve this? We have the time probably to improve this because it is in the hands of the committee now. I am not trying to block it or stop it. I would like you to succeed. However, there are certain weaknesses in the agreement that we need to focus on and correct.
If we cannot correct them, let it be. Or, if the Inuit turn around and say, ``Well, the deal is done. It has already been ratified. Forget about those consequences,'' then I will live with that. I have lost many points over the 23 years since I have been here, for political party reasons. Often, when I start to make headway, I lose it. This will not be the first time.
The point is this: what you lose as Aboriginal rights is everlasting, and you will never gain it again. That is my understanding. That is why I am worried. There are no other reasons.
The Acting Chair: Thank you, Senator Watt, for that statement. I will allow our witnesses to make a statement in reply and then at seven o'clock we will close the session down.
Mr. Aatami: In no way am I trying to remove anyone's Aboriginal rights. I made myself very clear when I spoke. Before I signed anything, I wanted to make sure that what I was signing was not going to lessen the rights that you and others worked so hard for and that are protected under the Constitution now. It was made very clear to me that what I am signing was going to be protected under the Constitution. It is a treaty. Whatever is under the Constitution as Aboriginal rights would be recognized.
I make that very clear again, Senator Watt. Our rights will in no way be diminished under this agreement. It was made clear to you by Mr. Molloy and others that what we are gaining will be protected under the Constitution. I am disappointed that you did not become involved before. We negotiated for 14 years. You never asked questions. You had opportunities and you never came to us.
The Chair: This is not a fault-finding session and it should not be. I want to thank all the participants very much.
Putulik Papigatuk, Negotiator, Makivik Corporation: This issue has been outstanding for quite a while and it has been ratified significantly by the Inuit of Nunavik.
With Christmas just around the corner, with the spirit of Christmas in the air, whereas the Inuit of Nunavik have ratified this agreement, I think this would be an appropriate time for the Senate of Canada and the senators to give a merry Christmas to the people of Nunavik.
The Chair: Thank you for that sentiment, Mr. Papigatuk.
Mr. Peters: I would like to say something concerning Senator Watt. He hired me in 1993 to help with negotiating. He was the president of Makivik. For 14 years, I negotiated with the federal government. When I showed him the agreement we arrived at after 14 years, Senator Watt said they want to wipe out our rights. I do not understand.
He said the Inuit did not understand voting. What does that mean? I do not know. Senator Watt was the president of Makivik. I was accepted to do the negotiations. When I gave away my land, I thought that was my island. Before any other people arrived here, we were here for thousands of years.
The Chair: I thank you for that addition, Mr. Peters. We all realize how very deeply and strongly everyone in this room feels about these issues. We assure you that we will take what you have said into consideration.
Mr. Aatami: I have one last word. I want to thank everyone again for providing us this opportunity to make our presentation to you. I would like my legal counsel to say a few words.
Sam Silverstone, Legal Counsel, Makivik Corporation: I will try to be brief. I listened very carefully to what Senator Watt said and to what some of the other senators said. There seems to be some misconception that there is this pure, unfettered, natural Aboriginal right in title; and that once you tamper with it, or try to subject it to a treaty or put it into the confines of a treaty, that you are diminishing those rights. This is incorrect.
The Supreme Court of Canada, over the last 10 years in a number of very significant decisions — Senator Watt mentioned one of them — has said very clearly that there is no such thing as an absolute right when it comes to Aboriginal rights. The government, subject to certain tests of justification, is allowed to infringe on Aboriginal rights, whether they are Aboriginal rights untreated or whether they are rights treated. They are allowed to do this for certain fundamental purposes, such as conservation or public safety, as long as they follow the tests.
When people say we are taking away these raw, untreated rights — that people can hunt and fish wherever they want — and now exchanging them for a more restricted right, that is incorrect. They are already restricted and subject to restriction through the Supreme Court of Canada.
The Chair: I thank you for that, Mr. Silverstone. This committee will undoubtedly hear witnesses that appear before it on this particular subject. You may have a brief word, Senator Watt. I am trying to keep people calm.
Senator Watt: Mr. Silverstone, I hired you and you became an expert over time. I know where you are coming from. I know where everyone is coming from, except the Inuit. I am talking about the legal scholars. You are coming from the empty-box theory. That is clear to me now.
The Chair: With that, this meeting is adjourned. I thank you all for your patience.
The committee adjourned.